[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Rules and Regulations]
[Pages 24340-24363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07114]
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DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2021-BT-STD-0003]
RIN 1904-AF13
Energy Conservation Program for Appliance Standards: Procedures,
Interpretations, and Policies for Consideration in New or Revised
Energy Conservation Standards and Test Procedures for Consumer Products
and Commercial/Industrial Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy (EERE),
Department of Energy.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'')
is revising its ``Procedures, Interpretations, and Policies for
Consideration of New or Revised Energy Conservation Standards and Test
Procedures for Consumer Products and Certain Commercial/Industrial
Equipment.'' The revisions are consistent with current DOE practice and
will allow DOE to better meet its statutory obligations under the
Energy Policy and Conservation Act (``EPCA'').
DATES: This rule is effective June 24, 2024.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at www.regulations.gov. All documents in the
docket are listed in the www.regulations.gov index. However, not all
documents listed in the index may be publicly available, such as
information that is exempt from public disclosure. The docket web page
can be found at: www.regulations.gov/docket/EERE-2021-BT-STD-0003. The
docket web page contains instructions on how to access all documents,
including public comments, in the docket.
FOR FURTHER INFORMATION CONTACT:
Mr. Lucas Adin, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Office, EE-5B,
1000 Independence Avenue SW, Washington, DC 20585-0121. Email:
[[Page 24341]]
[email protected].
Ms. Ani Esenyan, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585.
Telephone: (240) 961-8713. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Final Rule
II. Authority and Background
A. Authority
B. Background
III. Discussion of Specific Revisions to Appendix A
A. Coverage Determinations
B. Process for Developing Energy Conservation Standards
C. Process for Developing Test Procedures
D. ASHRAE Equipment
E. Analytical Methodology
F. Other Topics
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866 and 13563
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. Review Consistent With OMB's Information Quality Bulletin for
Peer Review
M. Congressional Notification
V. Approval of the Office of the Secretary
I. Summary of the Final Rule
In July of 1996, the United States Department of Energy (``DOE'' or
``the Department'') issued a final rule that codified DOE's
``Procedures, Interpretations and Policies for Consideration of New or
Revised Energy Conservation Standards for Consumer Products'' at 10 CFR
part 430, subpart C, appendix A (``appendix A''). 61 FR 36974 (July 15,
1996) (``July 1996 Final Rule''). The July 1996 Final Rule acknowledged
that the guidance contained in appendix A would not apply to every
rulemaking and that the circumstances of a particular rulemaking should
dictate application of these generally applicable practices. 61 FR
36979.
On February 14, 2020, DOE published a final rule (``February 2020
Final Rule'') in the Federal Register that made significant revisions
to appendix A. 85 FR 8626. DOE also published a companion final rule on
August 19, 2020 (``August 2020 Final Rule''), that clarified how DOE
would conduct a comparative analysis across all energy conservation
standard ``trial standard levels'' (``TSLs'') when determining whether
a particular TSL was economically justified. See 85 FR 50937. Contrary
to the July 1996 Final Rule, the revisions made in the February 2020
Final Rule sought to create a standardized rulemaking process that was
binding on the Department. 85 FR 8626, 8634. In creating this ``one-
size-fits-all'' approach, the February 2020 Final Rule and the August
2020 Final Rule also added additional steps to the rulemaking process
that are not required by any applicable statute.
Subsequent events have caused DOE to reconsider the merits of a
one-size-fits-all rulemaking approach to establishing and amending
energy conservations standards and test procedures. Two of these events
are particularly salient. First, on October 30, 2020, a coalition of
non-governmental organizations filed suit under EPCA alleging that DOE
has failed to meet rulemaking deadlines for 25 different consumer
products and commercial equipment.\1\ On November 9, 2020, a coalition
of States filed a virtually identical lawsuit.\2\ In response to these
lawsuits, DOE has reconsidered whether the benefits of a one-size-fits-
all rulemaking approach outweigh the increased difficulty such an
approach poses in meeting DOE's statutory deadlines and obligations
under EPCA. As mentioned previously, the July 1996 Final Rule allowed
for ``case-specific deviations and modifications of the generally
applicable rule.'' 61 FR 36974, 36979. This allowed DOE to tailor
rulemaking procedures to fit the specific circumstances of a particular
rulemaking. For example, under the July 1996 Final Rule, minor
modifications to a test procedure would not automatically result in a
180-day delay before DOE could issue a notice of proposed energy
conservation standards. Eliminating these unnecessary delays would
better enable DOE to clear this backlog of missed rulemaking deadlines
in a timely manner and meet future obligations and deadlines under EPCA
while not affecting the ability of any interested person, including
small entities, to participate in DOE's rulemaking process. Further,
the sooner new or amended energy conservation standards eliminate less-
efficient covered products and equipment from the market, the greater
the resulting energy savings and environmental benefits.
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\1\ Natural Resources Defense Council v. DOE, Case No. 20-cv-
9127 (S.D.N.Y. 2020).
\2\ State of New York v. DOE, Case No. 20-cv-9362 (S.D.N.Y.
2020).
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Second, on January 20, 2021, the White House issued Executive Order
13990, ``Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25, 2021).
Section 1 of that order lists a number of policies related to the
protection of public health and the environment, including reducing
greenhouse gas emissions and bolstering the Nation's resilience to
climate change. Id. at 86 FR 7037, 7041. Section 2 of the order
instructs all agencies to review ``existing regulations, orders,
guidance documents, policies, and any other similar agency actions
(agency actions) promulgated, issued, or adopted between January 20,
2017, and January 20, 2021, that are or may be inconsistent with, or
present obstacles to, [these policies].'' Id. Agencies are then
directed, as appropriate and consistent with applicable law, to
consider suspending, revising, or rescinding these agency actions and
to immediately commence work to confront the climate crisis. Id. Under
that same section, for certain explicitly enumerated agency actions,
including the February 2020 and the August 2020 Final Rules, the order
directs agencies to consider publishing for notice and comment a
proposed rule suspending, revising, or rescinding the agency action
within a specific time frame. Under this mandate, DOE was directed to
propose any major revisions to these two rules by March 2021, with any
remaining revisions to be proposed by June 2021. Id. at 86 FR 7038.
In light of these events, DOE has identified several aspects of the
February 2020 and the August 2020 Final Rules that present obstacles to
DOE's ability to expeditiously clear the backlog of missed rulemaking
deadlines while meeting future obligations under EPCA. In accordance
with E.O. 13990, DOE proposed major revisions to appendix A in a notice
of proposed rulemaking (``NOPR'') that was published on April 12, 2021
(``April 2021 NOPR''). 86 FR 18901. DOE proposed additional revisions
to appendix A in a second NOPR that was published on July 7, 2021
(``July 2021 NOPR''). 86 FR 35668. DOE finalized the major revisions
from the April 2021 NOPR in a final rule published on December 13, 2021
(``December 2021 Final Rule''). 86 FR 70892.
In this document, DOE is finalizing the revisions listed in table
I.1. As noted in the table, DOE is not finalizing any
[[Page 24342]]
of the proposed revisions that would have updated the methodology
sections in appendix A to reflect the Department's current rulemaking
practice. Prior to issuing the July 2021 NOPR, DOE had entered into a
contract with the National Academies of Sciences, Engineering, and
Medicine (``NAS'') to conduct a peer review of the analytical methods
used in the Department's energy conservation standards rulemakings. The
peer review was originally scheduled to be completed in May of 2020.
However, when DOE began to consider revisions to appendix A in early
2021, the NAS peer review process was still ongoing without a
definitive completion date. At that point, DOE decided that the
benefits of updating the analytical methodology in the July 1996 Final
Rule to reflect the Department's current practice outweighed the
potential inefficiency of having to amend these methods again in a
subsequent proceeding. As a result, the July 2021 NOPR contained
proposed revisions to the methodology sections in appendix A. DOE
stated that if it made any revisions to its analytical methods based on
the NAS peer review, the Department would propose any necessary
corresponding revisions to appendix A in a subsequent proceeding. Id.
at 86 FR 35677.
In response to the July 2021 NOPR, DOE received numerous comments
from stakeholders that the Department should wait to revise its
analytical methodologies until NAS had completed its peer review. (See,
e.g., Carrier, No. 54 at p. 4; Lutron, No. 64 at p. 4; GEA, No. 72 at
p. 4; Joint Industry Commenters, No. 62 at pp. 10-11) \3\ While DOE was
in the process of considering those comments, NAS completed the peer
review and transmitted to DOE its report, ``Review of Methods Used by
the U.S. Department of Energy in Setting Appliance and Equipment
Standards'' (``NAS Report''), on January 7, 2022.\4\ In light of the
publication of the NAS report and stakeholder comments in response to
the July 2021 NOPR, DOE has decided not to finalize the proposed
revisions to the methodology sections in appendix A in this rule.
Instead, DOE will consider changes to its methodologies in a separate
notice-and-comment process that is informed by the results of the NAS
Report.
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\3\ The parenthetical reference provides a reference for
information located in the docket of DOE's rulemaking to revise
appendix A. (Docket No. EERE-2021-BT-STD-0003, which is maintained
at www.regulations.gov) The references are arranged as follows:
(commenter name, comment docket ID number, page of that document).
\4\ The NAS Report is available at www.nap.edu/catalog/25992/review-of-methods-used-by-the-us-department-of-energy-in-setting-appliance-and-equipment-standards.
Table I.1--List of Revisions in This Document
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Proposed revisions from the July
Section 2021 NOPR Final revisions
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1. Objectives......................... No revisions proposed.............. No revisions.
2. Scope.............................. No revisions proposed.............. No revisions.
3. Mandatory Application of the No revisions proposed.............. No revisions.
Process Rule.
4. Setting Priorities for Rulemaking No revisions proposed.............. No revisions.
Activity.
5. Coverage Determination Rulemakings. Revise introductory text and Revised, as proposed, introductory
paragraph (a) to eliminate the text and paragraph (a) to
requirement that a coverage eliminate the requirement that a
determination rulemaking begins coverage determination rulemaking
with a notice of proposed begins with a notice of proposed
determination and allow DOE to determination and allow DOE to
seek early stakeholder input seek early stakeholder input
through preliminary rulemaking through preliminary rulemaking
documents; revise paragraphs (b) documents; revise paragraphs (b)
and (c) to eliminate the and (c) to eliminate the
requirement that final coverage requirement that final coverage
determinations be published prior determinations be published prior
to the initiation of any test to the initiation of any test
procedure or energy conservation procedure or energy conservation
standard rulemaking and at least standard rulemaking and at least
180 days prior to publication of a 180 days prior to publication of a
test procedure NOPR; revise test procedure NOPR; revise
paragraph (d) to allow DOE to paragraph (d) to allow DOE to
propose, if necessary, an amended propose, if necessary, an amended
coverage determination before coverage determination before
proceeding with a test procedure proceeding with a test procedure
or standards rulemaking. or standards rulemaking.
6. Process for Developing Energy Revise to modify these provisions Revised, as proposed, to allow for
Conservation Standards. to allow for a more expedited a more expedited rulemaking
rulemaking process in appropriate process in appropriate cases,
cases, including but not limited including but not limited to
to eliminating the requirement for eliminating the requirement for a
a separate early assessment separate early assessment request
request for information (``RFI'') for information (``RFI'') and
and clarify that DOE will issue clarify that DOE will issue one or
one or more documents during the more documents during the pre-NOPR
pre-NOPR stage of a rulemaking and stage of a rulemaking and
revisions to clarify public revisions to clarify public
comment periods for pre-NOPR and comment periods for pre-NOPR and
NOPR documents. NOPR documents.
7. Policies on Selection of Standards. No revisions proposed.............. No revisions.
8. Test Procedures.................... Revise paragraph (a) to eliminate Revised, as proposed, paragraph (a)
the requirement for a separate to eliminate the requirement for a
early assessment RFI and clarify separate early assessment RFI and
that DOE will issue one or more clarify that DOE will issue one or
documents during the pre-NOPR more documents during the pre-NOPR
stage of a rulemaking; revise stage of a rulemaking; paragraphs
paragraphs (a) and (b) to clarify (a) and (b) to clarify public
public comment periods for pre- comment periods for pre-NOPR and
NOPR and NOPR documents and NOPR documents and eliminate the
eliminate the requirement that DOE requirement that DOE identify
identify necessary modifications necessary modifications to a test
to a test procedure prior to procedure prior to initiating an
initiating an associated energy associated energy conservation
conservation standard rulemaking. standard rulemaking.
9. ASHRAE Equipment................... Revise section to follow ASHRAE Revised section to follow ASHRAE
rulemaking requirements in EPCA. rulemaking requirements in EPCA.
10. Direct Final Rules................ No revisions proposed.............. No revisions.
11. Principles for Distinguishing No revisions proposed.............. No revisions.
Between Effective and Compliance
Dates.
12. Principles for the Conduct of the Revise to reflect current DOE No revisions.
Engineering Analysis. rulemaking practice.
13. Principles for the Analysis of Revise to reflect current DOE No revisions.
Impacts on Manufacturers. rulemaking practice.
[[Page 24343]]
14. Principles for the Analysis of Revise to reflect current DOE No revisions.
Impacts on Consumers. rulemaking practice.
15. Consideration of Non-Regulatory Revise to reflect current DOE No revisions.
Approaches. rulemaking practice.
16. Cross-Cutting Analytical Revise to reflect current DOE No revisions.
Assumptions. rulemaking practice; move
discussion of emissions analysis
into new section 17.
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* As part of the proposed revisions, DOE will reorganize and redesignate sections and paragraphs as required.
II. Authority and Background
A. Authority
Title III, Parts B \5\ and C \6\ of the Energy Policy and
Conservation Act, as amended, (``EPCA'' or ``the Act''), Public Law 94-
163 (42 U.S.C. 6291-6317, as codified), established the Energy
Conservation Program for Consumer Products and Certain Industrial
Equipment.\7\ Under EPCA, DOE's energy conservation program for covered
products consists essentially of four parts: (1) testing; (2)
certification and enforcement procedures; (3) establishment of Federal
energy conservation standards; and (4) labeling. Subject to certain
criteria and conditions, DOE is required to develop test procedures to
measure the energy efficiency, energy use, water use (as applicable),
or estimated annual operating cost of each covered product and covered
equipment during a representative average use cycle or period of use.
(42 U.S.C. 6293; 42 U.S.C. 6314) Manufacturers of covered products and
covered equipment must use the prescribed DOE test procedure when
certifying to DOE that their products and equipment comply with the
applicable energy conservation standards adopted under EPCA and when
making any other representations to the public regarding the energy use
or efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s);
42 U.S.C. 6314(a); and 42 U.S.C. 6316(a)) Similarly, DOE must use these
test procedures to determine whether the products comply with energy
conservation standards adopted pursuant to EPCA. (42 U.S.C. 6295(s); 42
U.S.C. 6316(a))
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\5\ For editorial reasons, upon codification in the U.S. Code,
part B was redesignated part A.
\6\ Part C was added by Public Law 95-619, title IV, section
441(a). For editorial reasons, upon codification in the U.S. Code,
part C was redesignated part A-1.
\7\ All references to EPCA in this document refer to the statute
as amended through Energy Act of 2020, Public Law 116-260 (Dec. 27,
2020).
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In addition, pursuant to EPCA, any new or amended energy
conservation standard for covered products (and at least certain types
of equipment) must be designed to achieve the maximum improvement in
energy efficiency that is technologically feasible and economically
justified. (42 U.S.C. 6295(o)(2)(A); 42 U.S.C. 6316(a)) In determining
whether a standard is economically justified, EPCA requires DOE, to the
greatest extent practicable, to consider the following seven factors:
(1) the economic impact of the standard on the manufacturers and
consumers; (2) the savings in operating costs, throughout the estimated
average life of the products (i.e., life-cycle costs), compared with
any increase in the price of, or in the initial charges for, or
operating and maintaining expenses of, the products which are likely to
result from the imposition of the standard; (3) the total projected
amount of energy, or as applicable, water, savings likely to result
directly from the imposition of the standard; (4) any lessening of the
utility or the performance of the products likely to result from the
imposition of the standard; (5) the impact of any lessening of
competition, as determined in writing by the Attorney General, that is
likely to result from the imposition of the standard; (6) the need for
national energy and water conservation; and (7) other factors DOE finds
relevant. (42 U.S.C. 6295(o)(2)(B)(i)) Furthermore, the new or amended
standard must result in a significant conservation of energy (42 U.S.C.
6295(o)(3)(B); 42 U.S.C. 6313(a)(6); and 42 U.S.C. 6316(a)) and comply
with any other applicable statutory provisions.
B. Background
DOE conducted an effort between 1995 and 1996 to improve the
process it follows to develop energy conservation standards for covered
appliance products. As part of this effort, DOE reached out to many
different stakeholders, including manufacturers, energy-efficiency
advocates, trade associations, State agencies, utilities, and other
interested parties for input on the procedures, interpretations, and
policies used by DOE in considering whether to issue new or amended
energy conservation standards. This process resulted in publication of
the July 1996 Final Rule which codified these procedures,
interpretations, and policies in appendix A. The goal of the July 1996
Final Rule was to elaborate on the procedures, interpretations, and
policies that would guide the Department in establishing new or revised
energy conservation standards for consumer products. The rule was
issued without notice and comment under the Administrative Procedure
Act's (``APA'') exception for ``interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice.'' (5 U.S.C. 553(b)(A))
On December 18, 2017, DOE issued a request for information
(``RFI'') on potential revisions to appendix A. 82 FR 59992. DOE
subsequently published a NOPR regarding appendix A in the Federal
Register on February 13, 2019. 84 FR 3910. On July 26, 2019, DOE
subsequently issued a notice of data availability (``NODA'') in the
Federal Register. 84 FR 36037 (``July 2019 NODA''). After considering
the comments it received DOE then published a final rule in the Federal
Register on February 14, 2020, which significantly revised appendix A.
85 FR 8626.
While DOE issued the July 1996 Final Rule without notice and
comment as an interpretative rule, general statement of policy, or rule
of agency organization, procedure, or practice, the February 2020 Final
Rule was issued with notice and comment. As discussed in the December
2021 Final Rule, DOE believes appendix A is best described and utilized
not as a legislative rule but instead as generally applicable guidance
that may guide, but not bind, the Department's rulemaking process. In
accordance with Executive Order 13990, DOE used a notice and comment
process to revise appendix A. 86 FR 7037. DOE held a public webinar for
the July 2021 NOPR on August 10, 2021.
[[Page 24344]]
In response to the July 2021 NOPR and public webinar, DOE received
comments from the following parties:
Table II.1--List of Commenters
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Commenter(s) Affiliation Acronym, identifier
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Air-Conditioning, Heating, and Manufacturer Trade Group.......... AHRI.
Refrigeration Institute.
Air-Conditioning, Heating, and Manufacturer Trade Groups......... Joint Industry Commenters.
Refrigeration Institute (AHRI), AMCA
International (AMCA), American Lighting
Association (ALA), Association of Home
Appliance Manufacturers (AHAM),
Consumer Technology Association (CTA),
Hearth, Patio & Barbecue Association
(HPBA), Heating, Air-conditioning &
Refrigeration Distributors
International (HARDI), Information
Technology Industry Council (ITI),
International Sign Association (ISA),
Manufactured Housing Institute (MHI),
National Association of Manufacturers
(NAM), National Electrical
Manufacturers Association (NEMA), North
American Association of Food Equipment
Manufacturers (NAFEM), Power Tool
institute, Inc. (PTI), and Plumbing
Manufacturers International (PMI).
American Boiler Manufacturers Manufacturer Trade Group.......... ABMA.
Association.
American Gas Association, American Utility Trade Group............... AGA.
Public Gas Association, Spire, Inc.,
and Spire Missouri, Inc.
Appliance Standards Awareness Project Advocacy Group.................... Joint Advocacy Commenters.
(Joint Comments filed with the American
Council for an Energy-Efficient
Economy, Consumer Federation of
America, and National Consumer Law
Center).
Attorneys General of California, State, Local Governments.......... State Commenters.
Colorado, Connecticut, Illinois, Maine,
Maryland, Michigan, Minnesota, Nevada,
New Jersey, New York, Oregon,
Pennsylvania, Vermont, Washington, the
Commonwealth of Massachusetts, the
District of Columbia, and the City of
New York.
Bradford White Corporation.............. Manufacturer...................... BWC.
California Energy Commission............ State............................. CEC.
California Investor-Owned Utilities..... Utilities......................... Cal-IOUs.
Carrier Corporation..................... Manufacturer...................... Carrier.
Crown Boiler Company.................... Manufacturer...................... Crown Boiler.
Edison Electric Institute............... Utility Trade Group............... EEI.
GE Appliances........................... Manufacturer...................... GEA.
Goodman Manufacturing Company, L.P...... Manufacturer...................... Goodman.
Grundfos Americas Corporation........... Manufacturer...................... Grundfos.
Ahmed Ahmed Hamdi....................... Individual........................
Hoshizaki America, Inc.................. Manufacturer...................... Hoshizaki.
Hussmann Corporation.................... Manufacturer...................... Hussmann.
Hydraulic Institute..................... Manufacturer Trade Group.......... HI.
Hydronic Industry Alliance--Commercial.. Manufacturer Trade Group.......... HIA.
Institute for Policy Integrity--New York Academic Institution.............. IPR.
University School of Law.
Lennox International.................... Manufacturer...................... Lennox.
Lutron.................................. Manufacturer...................... Lutron.
Manufactured Housing Institute.......... Manufacturer Trade Group.......... MHI.
New Yorker Boiler Company, Inc.......... Manufacturer...................... New Yorker Boiler.
North American Association of Food Manufacturer Trade Group.......... NAFEM.
Equipment Manufacturers.
National Propane Gas Association........ Utility Trade Group............... NPGA.
Natural Resources Defense Council, Advocacy Groups................... Joint Environmentalist Commenters.
Earthjustice & Sierra Club.
Nortek Global HVAC, LLC................. Manufacturer...................... Nortek.
Northwest Power and Conservation Council Advocacy Group.................... NPCC.
Northwest Energy Efficiency Alliance.... Advocacy Group.................... NEEA.
Signify................................. Manufacturer...................... Signify.
Small Business Administration (SBA) Federal Government Agency......... SBA Office of Advocacy.
Office of Advocacy.
Southern Company........................ Utility........................... Southern.
Sullivan-Palatek, Inc................... Manufacturer...................... Sullivan-Palatek.
Sara Taylor............................. Individual........................
Trane Technologies...................... Manufacturer...................... Trane.
Unico, Inc.............................. Manufacturer...................... Unico.
U.S. Boiler Company..................... Manufacturer...................... U.S. Boiler.
Weil-McLain Company..................... Manufacturer...................... Weil-McLain.
Westinghouse Lighting Corporation....... Manufacturer...................... Westinghouse.
Whirlpool Corporation................... Manufacturer...................... Whirlpool.
Zero Zone, Inc.......................... Manufacturer...................... Zero Zone.
----------------------------------------------------------------------------------------------------------------
III. Discussion of Specific Revisions to Appendix A
A. Coverage Determinations
In addition to specifying a list of covered products and equipment,
EPCA contains provisions that enable the Secretary of Energy to
classify additional types of consumer products and commercial/
industrial equipment as ``covered'' within the meaning of EPCA. (42
U.S.C. 6292(b); 42 U.S.C. 6312(b)) This authority allows DOE to
consider regulating additional products and equipment to further the
goals of EPCA, i.e., to conserve energy, as long as certain statutory
requirements are met. Under 42 U.S.C. 6312(b), DOE is required to
include commercial/industrial equipment as covered equipment ``by
rule.'' While there is no corresponding requirement to include consumer
products as covered products by rule,\8\ DOE conducts coverage
determination rulemakings for both
[[Page 24345]]
commercial/industrial equipment and consumer products.
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\8\ Under 42 U.S.C. 6292(b), DOE is authorized to ``classify'' a
consumer product as a covered product if certain conditions are met.
But there is no mention of DOE having to make such classifications
by rule.
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In the February 2020 Final Rule, DOE added a section on coverage
determination rulemakings. Among other things, the new section provided
that DOE will: (1) initiate a coverage determination rulemaking with a
notice of proposed determination; (2) publish final coverage
determinations as separate notices prior to the initiation of any test
procedure or energy conservation standard rulemaking and at least 180
days prior to publication of a test procedure NOPR; and (3) finalize
any changes to an existing scope of coverage before proceeding with a
test procedure or energy conservation standard rulemaking. 85 FR 8626,
8648-8653.
As discussed in the July 2021 NOPR, DOE has reconsidered whether
the benefits of a one-size-fits-all rulemaking approach that lacks
flexibility and includes extra procedural steps not required by EPCA
outweigh the increased difficulty such an approach poses in achieving
EPCA's goal of increased energy conservation. First, with respect to
the requirement that DOE initiate a coverage determination rulemaking
with a notice of proposed determination, DOE noted in the July 2021
NOPR that in some cases it may be necessary to gather information about
a consumer product or commercial/industrial equipment before issuing a
proposed determination of coverage. DOE went on to state that it may
only classify a consumer product as a covered product if it is
necessary or appropriate to carry out the purposes of EPCA and the
average annual per-household energy use of the consumer product is
likely to exceed 100 kilowatt-hours per year. As such, DOE explained
that it may be beneficial to first issue an RFI or other document to
solicit comment on whether a consumer product is likely to meet these
requirements. Accordingly, DOE proposed to clarify that it may issue an
RFI or other pre-rule document prior to a notice of proposed coverage
determination. 86 FR 35668, 35672.
Second, regarding the requirements to finalize coverage
determinations prior to the initiation of any test procedure or energy
conservation standard rulemaking and at least 180 days prior to
publication of a test procedure NOPR, DOE noted in the July 2021 NOPR
that coverage determination, test procedure, and energy conservation
standard rulemakings are interdependent. Id. A coverage determination
defines the product/equipment scope for which DOE can establish test
procedures and energy conservation standards. It also signals that
inclusion of the consumer product or commercial/industrial equipment is
necessary to carry out the purposes of EPCA, i.e., to conserve energy
and/or water. In order to make this determination, DOE needs to
consider whether a test procedure and energy conservation standard can
be established for the consumer product or commercial/industrial
equipment. If DOE cannot develop a test procedure that measures energy
use during a representative average use cycle and is not unduly
burdensome to conduct (42 U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2)) or
prescribe energy conservation standards that result in significant
energy savings (42 U.S.C. 6295(o); 42 U.S.C. 6316(a)), then making a
coverage determination is not necessary as it will not result in the
conservation of energy. Thus, DOE explained in the July 2021 NOPR that
it was important that the Department be able to initiate test procedure
and energy conservation standard rulemakings while considering whether
to establish coverage for a new consumer product or commercial
equipment. Accordingly, DOE proposed to eliminate the requirement that
coverage determination rulemakings must be finalized prior to
initiation of a test procedure or energy conservation standard
rulemaking. 86 FR 35668, 35672.
As for the requirement that a coverage determination be finalized
180 days prior to publication of a test procedure NOPR, DOE explained
in the July 2021 NOPR that there are significant differences between
the benefits of finalizing a coverage determination prior to publishing
a test procedure NOPR and the benefits of finalizing a test procedure
prior to publishing an energy conservation standards NOPR. Id. As
discussed in the December 2021 Final Rule, a delay between publication
of a test procedure final rule and an energy conservation standards
NOPR may be beneficial in some cases as it could allow stakeholders to
gain greater familiarity with complex test procedure amendments before
providing comment on a proposal to amend standards. 86 FR 70892, 70911.
But DOE does not see a corresponding potential benefit for delaying
publication of a test procedure NOPR after a coverage determination,
which establishes the scope of coverage, i.e., a definition, for the
newly covered product or equipment, is finalized. Accordingly, DOE
proposed to eliminate the 180-day period and require that coverage
determination rulemakings be finalized prior to publication of a test
procedure NOPR. 86 FR 35668, 35672.
Finally, the February 2020 Final Rule also stated that, if DOE
finds it necessary and appropriate to expand or reduce the scope of a
finalized coverage determination during a test procedure or standards
rulemaking, the Department will initiate a new coverage determination
process prior to moving forward with the test procedure or standards
rulemaking. As DOE would be expanding or reducing the scope of an
existing coverage determination, DOE proposed in the July 2021 NOPR to
clarify that in instances where DOE needed to modify the scope of a
coverage determination, DOE would simply amend that determination, as
opposed to initiating an entirely new coverage determination. 86 FR
35668, 35670.
Comments Supporting DOE's Proposal on Coverage Determination
Rulemakings
A number of commenters supported DOE's proposal to allow for early
stakeholder input prior to issuing a notice of proposed coverage
determination. (See, e.g., ASAP, No. 53 at p. 14; Carrier, No. 54 at p.
2; Lutron, No. 64 at p. 2; NEEA, No. 71 at p. 2; Advocacy Groups, No.
70 at p. 2; State Commenters, No. 67 at p. 6) For example, State
Commenters noted that DOE's proposal would allow the Department to
collect necessary information prior to issuing a proposed coverage
determination. (State Commenters, No. 67 at p. 6) Similarly, Lutron
also favored allowing DOE to obtain public input before issuing a
proposed coverage determination. (Lutron, No. 64 at p. 2)
Several commenters also supported DOE's proposal to remove the
requirement that coverage determinations be finalized before initiating
test procedure and standards rulemakings. (See, e.g., ASAP, No. 53 at
p. 14; Carrier, No. 54 at p. 2; Lutron, No. 64 at p. 2; CA IOUs, No. 69
at p. 2; NEEA, No. 71 at p. 2; CEC, No. 55 at p. 2; State Commenters,
No. 67 at p. 6; Advocacy Groups, No. 70 at p. 2) Appliance Standards
Awareness Project (ASAP), in expressing its support, noted that
information learned during test procedure and standards rulemakings can
help inform the coverage determination and avoid potential delays
resulting from DOE having to amend a coverage determination after it
was initially finalized. (ASAP, No. 53 at p. 14) The California
Investor-Owned Utilities (CA IOUs) also cited several successful
negotiated rulemakings where standards, test procedures, and scope were
considered simultaneously as evidence of the potential benefits of
DOE's proposal. (CA IOUs, No. 69 at p. 2) While recognizing that
information
[[Page 24346]]
obtained during a test procedure rulemaking may help inform a coverage
determination, Carrier and Lutron emphasized that test procedure and
NOPRs should not be issued before a coverage determination is
finalized. (Carrier, No. 54 at p. 2; Lutron, No. 64 at p. 2)
DOE also received support for its proposal to eliminate the 180-day
required period between finalization of a coverage determination and
publication of a test procedure NOPR. (See, e.g., NEEA, No. 71 at p. 2;
CEC, No. 55 at p. 2; State Commenters, No. 67 at p. 5) In particular,
Northwest Energy Efficiency Alliance (NEEA) supported removal of the
180-day requirement between a finalized coverage determination and a
test procedure NOPR as there are times when completing these
rulemakings in parallel would be the most efficient use of DOE's and
stakeholders' time. NEEA stated that DOE should consider the
appropriate timeline between a coverage determination and a test
procedure NOPR on a case-by-case basis, as there are many circumstances
when a 6-month delay may be unnecessary. (NEEA, No. 71 at p. 2) State
Commenters also agreed with DOE that a mandatory delay between
finalization of a coverage determination and issuance of a test
procedure NOPR did not offer the same benefits as a delay between
finalization of a test procedure and issuance of a standards NOPR.
(State Commenters, No. 67 at p. 5)
Comments Opposing DOE's Proposal on Coverage Determination Rulemakings
While many commenters expressed support for most, if not all, of
DOE's proposals, some commenters expressed concerns with and/or
alternatives to DOE's proposed revisions to its coverage determination
rulemaking process. These concerns and alternative proposals were
centered around DOE's proposed elimination of the 180-day period
between finalization of a coverage determination and publication of a
test procedure NOPR. (See, e.g., ASAP, No. 53 at p. 14; Grundfos, No.
53 at p. 16; Carrier, No. 54 at p. 2; ABMA, No. 61 at p. 2; Lutron, No.
64 at p. 2)
Several of these commenters stated that some period of time between
finalization of a coverage determination and publication of a test
procedure NOPR is necessary. For example, the American Boiler
Manufacturers Association (ABMA) stated that although it supported the
180-day delay between finalization of a coverage determination and
publication of a test procedure NOPR, it is also sensitive to DOE's
concerns about delays to the rulemaking process that jeopardize its
ability to meet statutory deadlines. Consequently, ABMA suggested a
compromise approach of shortening the required spacing from 180 days to
90 days. (ABMA, No. 61 at p. 2) Lutron and the Joint Industry
Commenters stated that there could be a number of reasons why adequate
time is needed between those two events, so DOE should consider whether
such time is necessary in each case and seek stakeholder feedback on
that matter during the coverage determination process. (Lutron, No. 64
at p. 2; Joint Industry Commenters, No. 62 at p. 4) The Joint Industry
Commenters specifically mentioned a scenario where a standards
development organization is developing a test procedure as a reason for
having some period of time between finalization of a coverage
determination and publication of a test procedure NOPR. Similarly,
Carrier recommended that DOE should make it a standard practice to seek
early public input through an RFI (or other appropriate mechanism) to
obtain input on the appropriate time needed between a coverage final
rule and a test procedure NOPR. (Carrier, No. 54 at p. 2)
In contrast to these comments requesting some period of time
between finalization of a coverage determination and publication of a
test procedure NOPR, DOE also received comments to eliminate the
requirement altogether that DOE finalize coverage determinations prior
to publishing test procedure NOPRs. ASAP suggested that DOE should be
able to finalize a coverage determination concurrent with finalization
of any energy conservations standards. ASAP contended that allowing the
Department to incorporate information learned during the rulemaking
process into the coverage determination would avoid any potential
delays associated with having to amend the coverage determination after
it was initially finalized. (ASAP, No. 53 at p. 14) Similarly, the
Advocacy Groups encouraged DOE to adopt an approach allowing for
concurrent coverage and standards finalizations. They noted that the
proposed regulatory text would still require DOE to finalize a coverage
determination prior to publishing a proposed test procedure and, in
their view, this requirement would limit DOE's ability to incorporate
information learned during the related test procedure and standards
rulemakings into the coverage determination, which could result in
unnecessary delays if DOE is required to pause the rulemaking process
to amend the coverage determination. (Advocacy Groups, No. 70 at p. 2)
DOE's Response to Comments
In response to comments, DOE first notes a large majority of
commenters, representing a wide variety of stakeholders, supported both
the elimination of the requirement to begin a coverage determination
rulemaking with a notice of proposed determination and the requirement
that a coverage determination be finalized prior to initiation of a
test procedure or standards rulemaking. In both cases, commenters
recognized that allowing for more early stakeholder input, including
information on prospective test procedures and standards, will help
make for a better, more-informed coverage determination rulemaking
process. Accordingly, for the reasons discussed in the July 2021 NOPR
and this document, DOE is removing the requirements from section 5 of
appendix A that a coverage determination begin with a notice of
proposed determination and be finalized prior to initiation of a test
procedure or standards rulemaking.
Additionally, DOE did not receive any comments regarding its
proposed clarification that, if DOE finds it necessary and appropriate
to expand or reduce the scope of a finalized coverage determination
during a test procedure or standards rulemaking, the Department will
amend the existing coverage determination prior to moving forward with
the test procedure or standards rulemaking. Accordingly, for the
reasons discussed in the July 2021 NOPR and this document, DOE is
revising section 5(d) of appendix A to clarify that, if necessary and
appropriate, the Department will amend the existing coverage
determination prior to moving forward with a test procedure or
standards rulemaking.
As for the comments regarding the 180-day period and sequencing of
the coverage determination, test procedure, and standards rulemakings,
DOE first notes that several commenters stated there could be potential
benefits of having a period of time between finalization of a coverage
determination and publication of a test procedure NOPR. Specifically,
the Joint Industry Commenters gave an example of where a delay between
finalization of a coverage determination and publication of a test
procedure may allow a standards development organization more time to
develop an industry test procedure. DOE does not disagree with these
commenters in that a delay between finalization of a coverage
determination and publication of a test procedure NOPR may offer some
[[Page 24347]]
benefits in certain cases. But, as stated throughout this rulemaking
process, DOE has reconsidered whether the benefits of a one-size-fits-
all rulemaking approach that lacks flexibility and includes extra
procedural steps not required by EPCA outweigh the increased difficulty
such an approach poses in accomplishing the purposes of EPCA, i.e., to
conserve energy. So, while a 180-day period in between finalization of
a coverage determination and publication may offer benefits in certain
situations, in other cases it will simply result in a 180-day delay in
implementing energy conservation standards without benefiting the
rulemaking process. Thus, DOE is declining to adopt a specific time
frame associated with the sequencing of a coverage determination and
test procedure rulemaking.
As for those comments suggesting DOE allow concurrent finalization
of coverage determinations and energy conservation standards, the
Department believes any benefits from concurrent finalization of
coverage determinations and energy conservation standards are more than
outweighed by the uncertainty this would add to the rulemaking process.
The commenters argued that concurrent determinations could avoid
potential delays by incorporating information learned during the
standards rulemaking process into the final coverage determination. But
DOE's proposal already allows for coverage determination rulemakings to
be informed by the preliminary stages of test procedure and standards
rulemakings. Further, DOE notes that the negotiated rulemaking process
allows stakeholders to simultaneously consider scope of coverage, test
procedures, and energy conservation standards.\9\
---------------------------------------------------------------------------
\9\ DOE, through its Appliance Standards Rulemaking Federal
Advisory Committee (``ASRAC''), established a working group to
negotiate energy conservation standards for commercial and
industrial fans and blowers. 80 FR 17359 (Apr. 1, 2015). The working
group submitted a term sheet containing recommendations on scope of
coverage, test procedures, and energy conservation standards
analysis methodology. The term sheet is available at https://www.regulations.gov/document/EERE-2013-BT-STD-0006-0179.
---------------------------------------------------------------------------
Accordingly, for the reasons discussed in the July 2021 NOPR and
this document, DOE is revising section 5 of appendix A to eliminate the
180-day required period between finalization of a coverage
determination and publication of a test procedure and, instead, provide
that coverage determinations be finalized prior to publication of a
test procedure NOPR.
B. Process for Developing Energy Conservation Standards
As part of the February 2020 Final Rule, DOE made a number of
changes to its process for developing energy conservation standards.
The February 2020 Final Rule, among other changes: (1) required that
DOE initiate a standards rulemaking with an early assessment RFI; (2)
required that the preliminary stages of a standards rulemaking include
either a framework document/preliminary analysis or an advance notice
of proposed rulemaking (``ANOPR''); and (3) set minimum comment periods
for NOPR and pre-NOPR documents. 85 FR 8626, 8704-8706.
As discussed throughout this rulemaking process, DOE has
reconsidered whether the benefits of a one-size-fits-all rulemaking
approach that lacks flexibility and includes extra procedural steps not
required by EPCA outweigh the increased difficulty such an approach
poses in meeting DOE's statutory deadlines and obligations under EPCA.
As such, DOE proposed additional revisions to the process for
developing energy conservation standards in the July 2021 NOPR. First,
DOE proposed to eliminate the requirement for an early assessment RFI.
DOE reasoned that because stakeholders can comment on whether a new or
amended standard would meet the relevant statutory criteria at any
stage of the rulemaking process, a separate rulemaking document limited
to only that topic (i.e., the early assessment RFI) may delay the
overall process without adding an appreciable benefit. Instead, DOE
noted that it would welcome the same type of information in the context
of an RFI, preliminary analysis, ANOPR, or some other pre-NOPR
document, while at the same time asking other relevant questions and
gathering information in the event that the Department decides to
proceed with an energy conservation standards rulemaking. 86 FR 35668,
35673.
Second, in conjunction with the proposal to eliminate the early
assessment RFI, DOE also proposed to eliminate the requirement that the
pre-NOPR stage of a standards rulemaking include either a framework
document/preliminary analysis or an ANOPR. DOE tentatively concluded
that one round of pre-NOPR input may be sufficient for some
rulemakings. For instance, DOE is required to revisit final
determinations that energy conservation standards do not need to be
amended within three years. (42 U.S.C. 6295(m)(3)(B)) In such cases, it
may not be necessary to issue a framework document/preliminary analysis
or an ANOPR, as an RFI or NODA may be sufficient to update DOE's
rulemaking analysis in preparation for proposing amended standards or a
determination that standards do not need to be amended. Another example
for which a single round of pre-NOPR input may be sufficient would be
if a product has been subject to multiple rounds of rulemaking, relies
on mature technologies, and for which the market is well-understood. As
such, DOE proposed to publish one or more documents in the Federal
Register during the pre-NOPR stage of a rulemaking to gather
information on key issues. Such document(s) could take several forms
depending upon the specific proceeding, including a framework document,
RFI, NODA, preliminary analysis, or ANOPR. 86 FR 35668, 35673.
Finally, DOE proposed revisions to the comment periods for pre-NOPR
and NOPR rulemaking documents. For pre-NOPR documents, which do not
have a statutorily required minimum comment period, DOE proposed to
eliminate the 75-day minimum public comment period and, instead,
determine the appropriate comment period for these documents on a case-
by-case basis. This would allow DOE to establish comment periods that
are commensurate with the nature and complexity of the issues presented
in a pre-NOPR document, while also allowing DOE to proceed more
expeditiously with its rulemaking process. Id. DOE also proposed to
eliminate the 75-day minimum public comment period for standards NOPRs
and revert to the Department's prior practice, consistent with EPCA, of
requiring a 60-day minimum public comment period. DOE stated that 60
days offers an adequate amount of time for comment in most standards
rulemakings, while helping to streamline the rulemaking process. And,
for those rulemakings involving more complex issues, DOE noted that 60
days is the minimum comment period, and the Department may extend
comment periods as appropriate. 86 FR 35668, 35673-35674.
Comments Supporting DOE's Proposal on Energy Conservation Standards
Rulemakings
Several commenters supported DOE's proposal to eliminate the
requirement for an early assessment RFI and instead clarify that DOE
will issue one or more pre-NOPR documents intended to gather
information on key issues, including whether new or amended standards
would satisfy the relevant statutory criteria. (See, e.g., ABMA, No. 61
at p.
[[Page 24348]]
3; Grundfos, No. 53 at pp. 24-25; ASAP, No. 53 at p. 24; CA IOUs, No.
69 at pp. 1-2; NEEA, No. 71 at p. 2) In expressing their support, the
CA IOUs stated that the decision of whether a rulemaking should move
forward can be made through a normal RFI, rather than through a formal,
mandatory early assessment stage. (CA IOUs, No. 69 at pp. 1-2)
Similarly, ASAP supported DOE's proposal to eliminate the requirement
for an early assessment RFI because the Department can elicit the same
type of information through other types of pre-NOPR documents, and DOE
should be allowed the flexibility to determine the specific rulemaking
documents that are appropriate in each case. (ASAP, No. 53 at p. 24)
Grundfos and ABMA supported eliminating the early assessment RFI as
long as DOE continued to provide opportunities for early stakeholder
input. The Advocacy Groups supported DOE's proposal because it would
provide DOE with the flexibility to determine the specific rulemaking
steps that are appropriate in individual cases, thereby avoiding
unnecessary delays while continuing to provide an opportunity for early
stakeholder input. (Advocacy Groups, No. 70 at p. 4)
Several commenters also expressed their support for DOE's proposal
to determine comment periods for pre-NOPR documents on a case-by-case
basis and revise the minimum comment period for standard NOPRs to be
consistent with EPCA. (See ASAP, No. 53 at p. 24; NEEA, No. 71 at pp.
2-3; Advocacy Groups, No. 70 at p. 3; NPCC, No. 52 at p. 2) The
Advocacy Groups noted that the proposal would avoid unnecessary delays
by allowing DOE to select appropriate comment periods for pre-NOPR
documents, while continuing to provide an opportunity for early
stakeholder input. (Advocacy Groups, No. 70 at p. 4) In expressing
their support for the proposal, ASAP also noted that the requirements
are for minimum comment periods and DOE is free to set longer comment
periods where merited. (ASAP, No. 53 at p. 24)
Comments Opposing DOE's Proposal on Energy Conservation Standards
Rulemakings
Several commenters opposed DOE's proposal to eliminate the
requirement for an early assessment RFI and instead clarify that DOE
will issue one or more pre-NOPR documents intended to gather
information on key issues, including whether new or amended standards
would satisfy the relevant statutory criteria. (See, e.g., AHAM, No. 53
at p. 27; Lutron, No. 64 at p. 3; Mercatus, No. 48 (Attachment) at pp.
3-4; Lennox, No. 60 at p. 6; Joint Industry Commenters, No. 62 at p. 5;
GEA, No. 72 at p. 3) In expressing their support for the early
assessment process laid out in the February 2020 Final Rule, AHAM
stated that the early assessment procedure could help DOE streamline
its process by prioritizing rules that satisfy EPCA's requirements,
thereby conserving DOE and stakeholder resources and allowing DOE to
meet its deadlines more often. (AHAM, No. 53 at p. 27) Similarly,
Lutron stated that the early assessment process will help prevent time
and resources being invested in standards rulemakings that cannot meet
the applicable statutory criteria. (Lutron, No. 64 at p. 3) Mercatus
argued in favor of retaining the early assessment process as it would
ensure that a wide variety of viewpoints are considered by DOE prior to
a regulation being formally proposed. In its view, once a regulation
has been proposed, an agency has already made up its mind about what it
wants to do, and public input comes too late to matter. (Mercatus, No.
48 (Attachment) at pp. 3-4)
In addition to opposing the elimination of the early assessment
RFI, the Joint Industry Commenters offered their own proposal on what
an early assessment process should entail. They first suggested that
DOE issue a pre-rulemaking document of its choice aimed at obtaining
comment on whether a standard should be amended using the criteria in
42 U.S.C. 6295(n)(2). They added that the pre-rulemaking document used
by DOE should also: (1) present data and information DOE has gathered
during informal, pre-rulemaking stakeholder engagement; (2) identify
and seek comment on design options; (3) identify and seek comment on
the existence of or opportunity for voluntary, nonregulatory action;
(4) seek comment on cumulative regulatory burden; (5) identify
significant subgroups of consumers and manufacturers that merit
analysis; and (6) seek comment on whether, if DOE moves forward with
rulemaking, DOE should pursue negotiated rulemaking. The Joint Industry
Commenters remarked that their suggested approach did not differ
dramatically from DOE's proposal but would include a NODA/Preliminary
Analysis step after the initial pre-NOPR document. In their view, the
inclusion of a pre-Technical Support Document (``TSD'') as part of this
process is important in initiating a vital exchange of information
early in the rulemaking process. (Joint Industry Commenters, No. 62 at
p. 6)
Several commenters also opposed DOE's proposal to determine comment
periods for pre-NOPR documents on a case-by-case basis and revise the
minimum comment period for standards NOPRs to be consistent with EPCA.
(See, e.g., Grundfos, No. 53 at pp. 25-26; Carrier, No. 54 at pp. 3, 4;
BWC, No. 63 at p. 2; Joint Industry Commenters, No. 62 at pp. 7-8;
Lennox, No. 60 at p. 3) For example, Lennox stated that at least 60
days should be provided for comment for pre-NOPR documents as DOE
regulations are typically complex, often may involve significant market
and manufacturing changes, and pre-NOPR documents by definition are
early in the regulatory process, so the timing of their release is
generally unpredictable and stakeholder personnel are not necessarily
immediately available to assess them. (Lennox, No. 60 at p. 3) BWC
opposed shortening the standards NOPR comment period from 75 days to 60
days, noting that manufacturers and all other stakeholders are expected
to read, analyze, and investigate substantial documentation between a
NOPR itself and an associated TSD. BWC argued that these documents take
DOE and its consultants' months to prepare, and to expect a complete
and thorough analysis by stakeholders in 60 calendar days is
unreasonable, especially when considering the necessary effort in
managing other regulatory activities that currently impact it. (BWC,
No. 63 at p. 2)
DOE's Response to Comments
In response to these comments, DOE first notes that commenters
raised several valid points about the benefits of the early assessment
process and longer comment periods. For instance, DOE agrees that early
stakeholder input is essential in the rulemaking process. It would also
be beneficial, from an allocation of resources standpoint, to determine
as early as possible whether a new or amended standard would satisfy
the applicable statutory criteria. And that is why DOE did not propose
to eliminate the early assessment process in the July 2021 NOPR.
Instead, DOE proposed to eliminate the requirement that the Department
solicit information on whether a new or amended standard would meet the
applicable statutory criteria in a rulemaking document limited to only
that topic, i.e., the early assessment RFI. 86 FR 35668, 35673. DOE
stated it would issue one or more pre-NOPR rulemaking documents and
made it clear that the Department would welcome the same type of early
assessment information in these documents, while at the same time
asking other relevant questions. Id. With respect to the early
assessment proposal
[[Page 24349]]
from the Joint Industry Commenters, DOE notes that the commenters
remarked on the similarities with DOE's own proposal, with the only
notable difference being the requirement to issue a NODA or preliminary
analysis after the initial pre-NOPR document. While DOE acknowledges
that many rulemakings may involve an RFI followed by a NODA or
preliminary analysis, that certainly is not the case for all
rulemakings. For example, if DOE is revisiting a decision not to amend
standards within the 3-year period specified under 42 U.S.C.
6295(m)(3), a pre-NOPR RFI requesting any information relevant to the
previous analysis may be sufficient to proceed with a proposed
determination that standards do not need to be amended. As such, a
requirement to issue a NODA or preliminary analysis would consume time
and resources without providing an appreciable benefit to DOE or the
public.
Finally, regarding the benefits of early stakeholder input, DOE
strongly disagrees with the assertion from Mercatus that DOE does not
properly consider stakeholder input received in response to NOPRs. DOE
values stakeholder input at every stage of the rulemaking process and
has made changes to proposed test procedures and standards in response
to stakeholder comments. For example, in an energy conservation
standards rulemaking for dishwashers in which DOE initially proposed
more stringent standards, DOE determined, in part, based on comments
received raising concerns with potential impacts on consumer utility
that more stringent standards were not justified. 81 FR 90072, 90114
(Dec. 13, 2016). In the January 10, 2020, final rule establishing
energy conservation standards for portable air conditioners DOE updated
its equation for calculating the combined energy efficiency ratio from
that presented in the proposed rule based on information and data
submitted by stakeholders. 85 FR 1378, 1398.
DOE also recognizes that the standards rulemaking process is
necessarily complex. And stakeholders need sufficient time to comment
on rulemaking documents. But there are also instances where DOE issues
rulemaking documents of limited scope and a 30-day comment period, or
even less, is more than sufficient. For example, as discussed
previously, DOE is required to revisit a determination not to amend
standards within three years. In such cases, DOE may issue an RFI on
whether there have been any material changes to the market that would
affect the analysis conducted in the previous determination not to
amend standards. As the scope of the RFI is limited, a 30-day comment
period may be more than sufficient to allow stakeholders a meaningful
opportunity to comment. With respect to NOPRs, EPCA requires at least a
60-day comment period. (42 U.S.C. 6295(p)(2)) Similarly, Executive
Order (``E.O.'') 12866, ``Regulatory Planning and Review,'' 58 FR 51735
(Oct. 4, 1993), states that in most cases a comment period should not
be less than 60 days. As stated previously, DOE's main purpose in
revising appendix A is to minimize the inefficiencies and unnecessary
delays that come with a one-size-fits-all rulemaking approach. DOE sees
no reason to establish a longer minimum comment period than required by
EPCA or recommended under E.O. 12866, which applies to other Federal
agencies that conduct rulemaking analyses of comparable complexity.
Accordingly, for the reasons discussed in the July 2021 NOPR and
this document, DOE is revising section 6 of appendix A to specify that
the Department will issue one or more pre-NOPR rulemaking documents and
comment periods for standards rulemaking documents will be determined
on a case-by-case basis with a minimum 60-day comment period for NOPRs.
C. Process for Developing Test Procedures
As part of the February 2020 Final Rule, DOE made a number of
changes to its process for developing test procedures. The February
2020 Final Rule, among other changes: (1) required that DOE initiate a
test procedure rulemaking with an early assessment RFI; and (2)
required that DOE identify any necessary modifications to established
test procedures prior to initiating the standards development process.
85 FR 8626, 8653-8654, 8676-8682, 8707-8708.
As discussed throughout this rulemaking process, DOE has
reconsidered whether the benefits of a one-size-fits-all rulemaking
approach that lacks flexibility and includes extra procedural steps not
required by EPCA outweigh the increased difficulty such an approach
poses in meeting DOE's statutory deadlines and obligations under EPCA.
As such, DOE proposed additional revisions to the process for
developing test procedures in the July 2021 NOPR. First, DOE proposed
to eliminate the requirement for an early assessment RFI. Because
interested parties are free to raise the matter of the need for an
amended test procedure at any preliminary stage of the rulemaking, DOE
tentatively concluded that a separate rulemaking document limited to
only that topic (i.e., the early assessment RFI) unnecessarily delays
the overall process without appreciable benefit. Consequently, DOE
proposed to issue one or more pre-NOPR documents that would welcome the
same type of early assessment information, while at the same time
asking relevant questions and gathering information about other test
procedure issues, such as the applicability of any industry test
procedure. 86 FR 35668, 35674.
Second, for pre-NOPR documents for which there is no statutorily
required comment period, DOE proposed to clarify that the Department
would determine an appropriate comment period for pre-NOPR documents on
a case-by-case basis. This would allow DOE to account for the nature
and complexity of the test procedure rulemaking at issue. Id. at 86 FR
35675. DOE also proposed to clarify that it will provide a minimum 60-
day public comment period with at least one public hearing or workshop
for test procedure NOPR documents. Id. DOE has historically provided a
75-day comment period for test procedure NOPRs, consistent with the
comment period requirement for technical regulations in the North
American Free Trade Agreement, U.S.-Canada-Mexico (``NAFTA''), Dec. 17,
1992, 32 I.L.M. 289 (1993); the North American Free Trade Agreement
Implementation Act, Public Law 103-182, 107 Stat. 2057 (1993) (codified
as amended at 10 U.S.C.A. 2576) (1993) (``NAFTA Implementation Act'');
and Executive Order 12889, ``Implementation of the North American Free
Trade Agreement,'' 58 FR 69681 (Dec. 30, 1993). However, Congress
repealed the NAFTA Implementation Act and has replaced NAFTA with the
Agreement between the United States of America, the United Mexican
States, and the United Canadian States (``USMCA''), Nov. 30, 2018, 134
Stat. 11, thereby rendering E.O. 12889 inoperable. Consequently, since
USMCA is consistent with EPCA's public comment period requirements and
normally requires a minimum comment period of 60 days for technical
regulations, DOE proposed to provide a minimum 60-day public comment
period for test procedure NOPRs. 86 FR 35668, 35675.
Finally, DOE proposed to eliminate the requirement that the
Department identify any necessary test procedure modifications prior to
initiating the standards development process. Id. As DOE recognized in
the December 2021 Final Rule, it is important that test procedures be
finalized prior to
[[Page 24350]]
proposing standards so stakeholders can properly evaluate and provide
comment on the proposed standards. 86 FR 70892, 70911. But this
reasoning does not extend to requiring DOE to identify test procedure
modifications prior to initiating a standards rulemaking. Conducting
preliminary standards-related work and information gathering in concert
with the test procedure proceeding can lead to a more-efficient
rulemaking process without sacrificing the quality of DOE's analyses or
the opportunity for public input.
Comments Supporting DOE's Proposal on Test Procedure Rulemakings
Several commenters expressed their support for DOE's proposal to
eliminate the requirement for an early assessment RFI and instead
clarify that DOE will issue one or more pre-NOPR documents intended to
gather information on key issues, including whether a new or amended
test procedure would satisfy the relevant statutory criteria. (See,
e.g., NEEA, No. 71 at p. 2; Advocacy Groups, No. 70 at p. 4; State
Commenters, No. 67 at p. 6; Grundfos, No. 53 at p. 33; CA IOUs, No. 69
at pp. 1-2) In expressing their support, the CA IOUs stated that the
decision of whether a rulemaking should move forward can be made
through a normal RFI, rather than through a formal, mandatory early
assessment stage. (CA IOUs, No. 69 at pp. 1-2) The Advocacy Groups
supported DOE's proposal because it would provide DOE with the
flexibility to determine the specific rulemaking steps that are
appropriate in individual cases, thereby avoiding unnecessary delays
while continuing to provide an opportunity for early stakeholder input.
(Advocacy Groups, No. 70 at p. 4) Similarly, the State Commenters noted
that requiring DOE to commence test procedure rulemakings with an early
assessment request for information unnecessarily imposes a one-size-
fits-all approach on DOE's rulemaking course and constrains the
agency's discretion to pursue rulemaking in the most expeditious manner
possible. (State Commenters, No. 67 at p. 6)
Several commenters also supported DOE's proposal to determine
comment periods for pre-NOPR documents on a case-by-case basis and
revise the minimum commenter period for test procedure NOPRs to be
consistent with EPCA and USMCA. (See, e.g., NEEA, No. 71 at p. 3; CEC,
No. 55 at p. 3; CA IOUs, No. 53 at p. 32) The Advocacy Groups noted
that the proposal would avoid unnecessary delays by allowing DOE to
select appropriate comment periods for pre-NOPR documents on a case-by-
case basis, while continuing to provide an opportunity for early
stakeholder input. (Advocacy Groups, No. 70 at p. 4)
Finally, DOE also received comments supporting its proposal to
remove the requirement that the Department identify any necessary test
procedure modifications prior to initiating the standards development
process. For example, the Advocacy Groups supported DOE's proposal to
clarify that it would not be precluded from issuing pre-rulemaking
documents for standards prior to a test procedure final rule, asserting
that this clarification would help avoid unnecessary delays to DOE's
rulemaking process. In their view, test procedure and standards
rulemakings inform each other and providing DOE with the ability to
conduct the initial stages of a standards rulemaking prior to
finalizing a test procedure will allow issues identified in the early
phases of the standards rulemaking related to the test procedure to be
addressed in the test procedure rulemaking. (Advocacy Groups, No. 70 at
p. 4) Similarly, the CA IOUs supported DOE's proposed clarification
that preliminary work may begin on energy conservation standards prior
to completion of a test procedure rulemaking. The CA IOUs reasoned that
this refinement would help DOE to expedite its rulemaking process and
reduce its backlog of rulemakings. (CA IOUs, No. 69 at pp. 2-3)
Comments Opposing DOE's Proposal on Test Procedure Rulemakings
Several commenters opposed DOE's proposal to eliminate the
requirement for an early assessment RFI. For example, Lutron argued
that eliminating the early assessment RFI would negatively impact DOE's
analysis and reduce commenters' ability to provide meaningful input.
(Lutron, No. 64 at p. 3) The Gas Industry Joint Commenters urged that
DOE retain appendix A's current early opportunities for providing
public comment and input on potential standards and test procedure
rulemakings. In their view, it would be better for DOE to take
additional time needed to produce a good regulation rather than to take
less time to produce a poorer regulation. (Gas Industry Joint
Commenters, No. 57 at pp. 4-5) Similarly, the Joint Industry Commenters
stated that the early assessment process offers DOE streamlining
opportunities by helping it to identify potential test procedure issues
prior to the initiation of a standards rulemaking proposal. (Joint
Industry Commenters, No. 62 at p. 9)
Several commenters also opposed DOE's proposal to determine comment
periods for pre-NOPR documents on a case-by-case basis and revise the
minimum comment period for test procedure NOPRs to be consistent with
EPCA and USMCA. (See, e.g., Carrier, No. 54 at pp. 3, 4; AHAM, No. 53
at p. 5; Joint Industry Commenters, No. 62 at pp. 7-8; Lennox, No. 60
at p. 3) For example, Lennox stated that commenting on test procedures
often involves testing personnel and lab time that typically do not
have immediate availability and rulemaking activities compete with lab
time and personnel for product development, regulatory and other
demands for product testing and assessment. As such, Lennox opposed
shortening the 75-day comment period for test procedure NOPRs and
suggested a minimum 60-day comment period for pre-NOPR comment periods.
(Lennox, No. 60 at p. 3) The Joint Industry Commenters made similar
arguments regarding the complexity of issues involved in evaluating
proposed test procedures. They stated that the evaluation process can--
and often does--include conducting the proposed test procedure along
with the collection and analysis of testing data to assist DOE in
analyzing the proposed procedure's accuracy, repeatability, and
reproducibility, all of which take time to complete. If DOE decides to
shorten the comment period for test procedure proposals, the Joint
Industry Commenters asked that DOE continue to freely grant reasonable
requests for comment period extensions, which they expected to be more
frequent with the shortening of the comment period. (Joint Industry
Commenters, No. 62 at pp. 7-8) GEA stated that mandatory comment
periods with sufficient time for in-depth analysis and commentary are
necessary to provide predictability and fairness to stakeholders. (GEA,
No. 72 at p. 3)
Finally, DOE also received comments opposing its proposal to remove
the requirement that the Department identify any necessary test
procedure modifications prior to initiating the standards development
process. For example, the Joint Industry Commenters asserted that the
test procedure process should be finalized before the standards
rulemaking process begins. They stressed the relevance of the test
procedure to the standards analysis, noting that responses on pre-NOPR
energy conservation standards documents will often be highly dependent
on the test procedure, particularly since knowing what the test
procedure will measure will affect how the stringency of potential
standards will be assessed. (Joint Industry Commenters, No. 62 at p. 9)
Similarly, Lutron stated that eliminating the
[[Page 24351]]
required sequencing of test procedure and standards rulemakings would
negatively impact DOE's analysis on both test procedures and standards
and would reduce commenters' ability to provide meaningful input,
especially during the early rulemaking phases for new or amended
standards. (Lutron, No. 64 at p. 3)
DOE's Response to Comments
In response to these comments, DOE first notes that commenters
raised several of the same issues about the benefits of an early
assessment process and longer comment periods that were discussed in
the preceding section on the process for developing energy conservation
standards. And, as stated previously, DOE agrees that early stakeholder
input is essential and that some rulemaking documents require a longer
comment period in order to give stakeholders sufficient time to develop
their comments. DOE again notes that it did not propose to eliminate
the early assessment process in the July 2021 NOPR. Instead, DOE
proposed to eliminate the requirement that the Department solicit
information on whether an amended test procedure would meet the
applicable statutory criteria in a rulemaking document limited to only
that topic, i.e., the early assessment RFI. 86 FR 35668, 35674. DOE
proposed to issue one or more pre-NOPR rulemaking documents and made
clear that the Department would welcome the same type of early
assessment information in these documents, while at the same time
asking other relevant questions. Id.
DOE also recognizes that test procedures are complex, and
stakeholders need sufficient time to formulate comments. But, as noted
previously, there are also instances where DOE issues rulemaking
documents of limited scope and a 30-day comment period, or even less,
is more than sufficient. For example, in evaluating the potential
establishment of test procedures for portable air conditioners, DOE
issued an RFI to provide information on investigative testing of
existing industry test procedures that could be used to measure cooling
capacity and energy use for portable air conditioners. 79 FR 26639 (May
9, 2014). Given that DOE was requesting information regarding existing
industry test procedures, DOE provided a 30-day comment period. Id.
With respect to test procedure NOPRs, EPCA requires at least a 60-day
comment period for covered products (42 U.S.C. 6293(b)(2)) and at least
a 45-day comment period for covered equipment (42 U.S.C. 6314(b)),
while USMCA normally requires a minimum comment period of 60 days for
technical regulations.\10\ As stated previously, DOE's main purpose in
revising appendix A is to minimize the inefficiencies and unnecessary
delays that come with a one-size-fits-all rulemaking approach. DOE sees
no reason to establish a longer minimum comment period than required by
EPCA or USMCA, which applies to other Federal agencies that issue
technical regulations of comparable complexity.
---------------------------------------------------------------------------
\10\ See USMCA, Chapter 11, Technical Barriers to Trade,
available at https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/11_Technical_Barriers_to_Trade.pdf.
---------------------------------------------------------------------------
With respect to eliminating the requirement that DOE identify any
necessary modifications to the test procedure prior to initiating a
standards rulemaking, DOE agrees with the Advocacy Groups that test
procedure and standards rulemakings inform each other and providing DOE
with the ability to conduct the initial stages of a standards
rulemaking prior to finalizing a test procedure will allow issues
identified in the early phases of the standards rulemaking related to
the test procedure to be addressed in the test procedure rulemaking.
DOE also agrees with the CA IOUs that eliminating this requirement
would lead to a more efficient rulemaking process.
Accordingly, for the reasons discussed in the July 2021 NOPR and
this document, DOE is revising section 8 of appendix A to specify that
the Department will issue one or more pre-NOPR rulemaking documents and
comment periods for test procedure rulemaking documents will be
determined on a case-by-case basis with a minimum 60-day comment period
for NOPRs. DOE is also eliminating the requirement in section 8 that
the Department identify any necessary modifications to a test procedure
prior to initiating a standards rulemaking.
D. ASHRAE Equipment
In EPCA, Congress established a separate and unique regulatory
scheme pertaining to DOE rulemakings of certain covered equipment
addressed by ASHRAE Standard 90.1, Energy Standard for Buildings Except
Low-Rise Residential Buildings, including specific requirements for
both energy conservation standards and test procedures. See 42 U.S.C.
6313(a)(6) and 42 U.S.C. 6314(a)(4), respectively. In the February 2020
Final Rule, DOE added a section to appendix A specifically addressing
ASHRAE equipment for the first time. 85 FR 8626, 8708. While DOE sees
value in setting forth the statutory requirements and the Department's
regulatory process for covered ASHRAE equipment, a subsequent review
suggested that DOE's initial efforts to explain the applicable ASHRAE
requirements could be improved, both in terms of better delineating the
rulemaking process for covered ASHRAE equipment and removing
constraints that are neither compelled by the statute nor consistent
with DOE's past practice.
First, with respect to the rulemaking process for ASHRAE equipment
laid out in EPCA, DOE proposed to separate out the statutory
requirements for energy conservation standards and test procedures, as
the February 2020 Final Rule erroneously applied EPCA's timelines for
energy conservation standards to test procedures as well. Id. at 86 FR
35675-35676. DOE also proposed to clarify what type of action on the
part of ASHRAE would trigger a DOE review for amended energy
conservation standards and test procedures. With respect to amended
energy conservation standards, DOE proposed to only consider ASHRAE to
have acted in a manner triggering DOE review when an updated version of
ASHRAE Standard 90.1 publishes (i.e., not at the time that an addendum
to ASHRAE Standard 90.1 is released or approved), and the updated
version includes an increase in the stringency of standard levels or a
new design requirement relative to the current Federal standards. With
respect to test procedures, DOE proposed to only consider ASHRAE to
have acted in a manner triggering DOE review when an updated version of
ASHRAE Standard 90.1 publishes (i.e., not at the time that an addendum
to ASHRAE Standard 90.1 is released or approved), and that updated
version adopts a new or amended test procedure that updates the
technical methodology. This approach is consistent with the ASHRAE-
specific provisions in EPCA and generally consistent with past DOE
practice. Id. at 86 FR 35676. Finally, DOE also proposed to clarify
that ASHRAE's review and reaffirmance (i.e., not amending) of either a
standard or test procedure does not trigger a DOE review or affect the
timing of DOE's separate obligation under EPCA to periodically review
standards and test procedures for each class of covered equipment. Id.
Additionally, DOE proposed to clarify that it has some flexibility
in adopting an amended test procedure under ASHRAE Standard 90.1 as
EPCA does not require DOE to adopt a test procedure identical to the
industry test standard. Id. Instead, EPCA directs DOE
[[Page 24352]]
to amend its test procedure ``to be consistent with the amended
industry test procedure . . . unless the Secretary determines, by rule,
published in the Federal Register and supported by clear and convincing
evidence'' that the amended industry test standard would not be
representative of the equipment's energy efficiency, energy use, or
estimated operating cost during a representative average use cycle and
not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(4)(B)) Id. DOE
further clarified that in such cases, DOE may then develop its own test
procedure which does meet these statutory requirements related to
representativeness and burden, even if the test procedure is not
consistent with the amended industry test standard. Id. DOE also noted
that the statutory language ``consistent with'' itself provides some
flexibility in adopting the amended industry test procedure, and that
as EPCA does not require DOE to adopt a test procedure identical to
applicable industry test standard, DOE may make modifications that are
consistent with the applicable industry test standard. Id.
In addition, DOE proposed to clarify that it is not required to
adopt or align with sections of the industry test standard that are not
necessary for the method of test for metrics included in the DOE test
procedure (e.g., sections of the industry test procedure regarding the
selection of models for testing under an industry certification
program, verification of represented values and the associated
tolerances, and operational requirements). These proposals were
consistent with the Department's longstanding historic practice. 86 FR
35668, 35676.
In the July 2021 NOPR, DOE also proposed to remove the statement
that DOE will adopt the revised ASHRAE levels or the industry test
procedure, except in very limited circumstances. The circumstances
under which DOE will adopt a more-stringent standard than the ASHRAE
standard or a different test procedure are laid out in the statute. DOE
will issue a more-stringent standard than the ASHRAE standard if DOE
determines, supported by clear and convincing evidence, that the more-
stringent standard would result in significant additional conservation
of energy and is technologically feasible and economically justified.
(42 U.S.C. 6313(a)(6)(A)(ii)(II)) ``Very limited circumstances'' is an
ambiguous description for a process that is delineated in EPCA. As a
result, DOE proposed to remove this description of the circumstances
under which DOE will not adopt the amended ASHRAE standard or industry
test procedure. 86 FR 35668, 35676. Similarly, DOE proposed to remove
the discussion of what constitutes clear and convincing evidence. Id.
As DOE previously noted in the February 2020 Final Rule, the clear and
convincing evidence standard has a specific meaning that the courts
have routinely addressed through case law. See 85 FR 8626, 8642
(discussing in detail the application of the ``clear and convincing''
evidentiary standard by courts and legal commentators); see also Am.
Pub. Gas Ass'n v. United States Dep't of Energy, 22 F.4th 1018, 1025
(D.C. Cir. 2022) (``[C]lear and convincing evidence requires a
factfinder (in this case the Secretary) to have an `abiding conviction'
that her findings (in this case that a more stringent standard would
result in significant additional conservation of energy, would be
technologically feasible, and is economically justified) are `highly
probable' to be true.''). DOE does not believe the discussion of clear
and convincing evidence in appendix A adds anything to the already
extensive case law pertaining to the clear and convincing evidence
threshold.
DOE also proposed to remove the statement that DOE believes that
ASHRAE not acting to amend Standard 90.1 is tantamount to a decision
that the existing standard remain in place and clarify that ASHRAE
reviewing and reaffirming a standard or test procedure does not have
any effect on DOE's rulemaking obligations under EPCA. 86 FR 35668,
35676. As discussed previously, DOE initiates an ASHRAE rulemaking
because: (1) Standard 90.1 is amended; or (2) it is required under the
6-year lookback review for standards or the 7-year lookback review for
test procedures. Neither of these situations would be affected by a
decision by ASHRAE to reaffirm an existing standard or test procedure.
Finally, DOE also proposed to make two clarifications regarding its
ASHRAE review process consistent with longstanding DOE practice. First,
DOE proposed to clarify that it assesses energy savings from amended
ASHRAE Standard 90.1 levels as compared to the current Federal standard
(or the market baseline in cases where ASHRAE adds new equipment
classes or categories not previously subject to Federal standards) and
will also assess energy savings from more-stringent standards as
compared to the ASHRAE Standard 90.1 levels. Id. And, second, DOE
proposed to clarify that it may review all metrics for the equipment
category at issue, even though ASHRAE only amended DOE's regulated
metric(s), and the Department may also consider changing regulated
metrics (while assessing equivalent stringency between metrics). DOE
also proposed to clarify that it may also consider changing metrics
during a 6-year-lookback or 7-year-lookback review. Id. DOE believes
this is consistent with EPCA's requirement that test procedures (and
metrics) be representative of an average use cycle.
Comments Supporting DOE's Proposals on ASHRAE Rulemakings
Several commenters expressed general support for all of DOE's
proposed revisions to the ASHRAE provisions in appendix A. (See, e.g.,
NPCC, No. 52 at p. 2; NEEA, No.71 at pp. 3-4) With respect to DOE's
proposal to create separate provisions for energy conservation
standards and test procedures rulemakings because of different
statutory requirements, the Joint Industry Commenters agreed that
energy conservation standards and test procedure rulemakings are
subject to different timelines under the statute. (Joint Industry
Commenters, No. 62 at p. 19).
Several commenters supported DOE's proposal to provide clarity
tying the triggering event to when ASHRAE publishes an updated version
of ASHRAE Standard 90.1. (See, e.g., BWC, No. 63 at pp. 2-3; NEEA, No.
71 at pp. 3-4; ASHRAE, No. 59 at p. 3) ASHRAE stated that the proposal
provides for a regular three-year cadence of reviews and provides
clarity. (ASHRAE, No. 59 at p. 3) NEEA recommend that DOE clarify in
the regulatory text that addendums to ASHRAE 90.1 or updates to an
industry test procedure (TP) that ASHRAE 90.1 references do not trigger
a DOE review of energy conservation standard (ECS) and TP. (NEEA, No.
71 at pp. 3-4) BWC also agrees with DOE not triggering a review simply
when ASHRAE reviews or affirms a standard. (BWC, No. 63 at pp. 2-3)
Several commenters supported DOE's proposal to remove the language
stating that DOE would adopt ASHRAE levels or the industry test
procedure, except in very limited circumstances. (See, e.g., ASAP, No.
53 at pp. 41-42; Advocacy Groups, No. 70 at p. 5; State Commenters, No.
67 at pp. 7-8; NEEA, No. 71 at pp. 3-4) In supporting DOE's proposal,
ASAP stated that the ``except in very limited circumstances'' language
was an additional constraint that was inconsistent with the statute and
would impede DOE's ability to achieve EPCA's energy conservation
purposes. (ASAP, No. 53 at pp. 41-42)
Similarly, several commenters also supported DOE's proposal to
remove the discussion of what constitutes clear and
[[Page 24353]]
convincing evidence from appendix A. (See, e.g., ASAP, No. 53 at pp.
41-42; CEC, No. 55 at p. 3; Advocacy Groups, No. 70 at p. 5; State
Commenters, No. 67 at pp. 7-8) State Commenters noted that further
elaboration of the clear and convincing evidence standard either does
not change the standard, in which case it is superfluous, or does
change the standard, in which case it violates EPCA. (State Commenters,
No. 67 at pp. 7-8) The California Energy Commission (CEC) stated that
DOE's removal of the clear and convincing evidence discussion in light
of the extensive case law covering this topic would ensure that an
overly stringent interpretation of the evidentiary threshold does not
inhibit the Department from adopting standards that would result in
significant additional conservation of energy and are technologically
feasible and economically justified. (CEC, No. 55 at p. 3)
Comments Opposing DOE's Proposals on ASHRAE Rulemakings
One commenter requested that DOE reconsider its proposal tying the
triggering event to when ASHRAE publishes an updated version of ASHRAE
Standard 90.1. Specifically, CA IOUs requested that DOE consider
publication of an addendum to ASHRAE Standard 90.1 to trigger a review,
noting that some valuable addenda miss the triannual update deadline
but are published shortly afterward, and that DOE's proposed
interpretation would result in a delay in compliance state for
standards. (CA IOUs, No. 69 at p. 3) CA IOUs also requested that DOE
clarify what is meant by updates to ASHRAE 90.1 that modify the
referenced industry test procedure; specifically what degree of change
is required to trigger DOE. Id. CA IOUs noted that historically ASHRAE
has adopted the latest published version of industry test procedures,
even if they include only minor changes and clarifications from the
previous version, and that DOE typically does not update its test
procedure to match ASHRAE in those cases. Id.
With respect to DOE's proposal to clarify that ASHRAE's review and
reaffirmance (i.e., not amending) of either a standard or test
procedure does not trigger a DOE review or affect the timing of DOE's
separate obligation under EPCA, the Joint Industry Commenters stated
that if ASHRAE 90.1 is amended just with respect to the energy
conservation standard for an ASHRAE equipment, they would still expect
DOE to conduct a ``short test procedure rulemaking to simply
acknowledge the continued applicability of the test procedure.'' (Joint
Industry Commenters, No. 62 at p. 20)
Several commenters opposed DOE's proposal to remove the language
stating that DOE would adopt ASHRAE levels or the industry test
procedure, except in very limited circumstances. (See, e.g., Carrier,
No. 54 at pp. 3, 4; Lutron, No. 64 at pp. 4-5; Joint Industry
Commenters, No. 62 at pp. 23-24; BWC, No. 63 at p. 3; ASHRAE, No. 59 at
pp. 3-4) In urging DOE to retain this language, the Joint Industry
Commenters stated that ASHRAE's open and collaborative process, which
involves manufacturers, energy advocates, regulators, academia, and
utilities, develops standards that are fair and representative of what
are both economically and technologically feasible at the time of the
revision. (Joint Industry Commenters, No. 62 at pp. 23-24) Similarly,
Lutron stated that industry test procedures are developed by balanced
committees and DOE should routinely adopt industry test procedures as a
matter of best practice. (Lutron, No. 64 at pp. 4-5) GE Appliances
stated that adopting consensus standards speeds up the test procedure
rulemaking process, prepares all stakeholders to address standards
rulemakings sooner, and reduces the likelihood of litigation or other
action regarding test procedures. (GE Appliances, No. 72 at p. 3)
Lennox stated that DOE should rarely deviate from industry test
procedures metrics given the ``clear and convincing evidence''
threshold set for deviating from industry test procedures. Id. Lennox
stated that the test procedure lookback section indicates that DOE may
amend a test procedure ``in accordance with this section'' (42 U.S.C.
6314(a)(1)(i)), which thereby references the entire section 42 U.S.C.
6314, which includes the ASHRAE ``clear and convincing evidence''
standard for amending a test procedure in 6314(a)(4)(B). Id.
DOE received several comments opposing the Department's proposal to
remove the discussion of what constitutes clear and convincing
evidence. (See, e.g., Spire, No. 53 at p. 43; Carrier, No. 54 at pp. 3,
4; Joint Industry Commenters, No. 62 at p. 24; ASHRAE, No. 59 at pp. 3-
4) The Joint Industry Commenters urged DOE to retain the current text
regarding what constitutes ``clear and convincing'' evidence with
respect to adopting energy conservation standards more stringent than
those adopted in ASHRAE 90.1. In their view, the explanatory text
adopted as part of the February 2020 Final Rule clarified the meaning
of this phrase in this context, which is to discourage the adoption of
higher energy efficiency standards above those set by ASHRAE. (Joint
Industry Commenters, No. 62 at p. 24) Spire stated that eliminating the
discussion of what constitutes clear and convincing evidence would
forgo an opportunity to potentially resolve issues without the need for
litigation. (Spire, No. 53 at p. 43)
DOE's Response to Comments
First, DOE did not receive any comments opposing separate
provisions for energy conservation standards and test procedure
rulemakings. As noted by the Joint Industry Commenters, energy
conservation standards and test procedure rulemakings are subject to
different statutory requirements under the ASHRAE provisions in EPCA.
Accordingly, for the reasons discussed in the July 2021 NOPR and this
document, DOE is revising section 9 of appendix A to create separate
provisions for energy conservation standards and test procedure
rulemaking requirements.
With respect to DOE's proposal that the ASHRAE provisions are
triggered when an updated version of ASHRAE Standard 90.1 is published,
the CA IOUs commented that DOE should instead consider the publication
of an addendum to ASHRAE Standard 90.1 as the triggering event. In
response to the CA IOUs, DOE has determined that the benefit of a clear
review cycle provides certainty to the public and does not impact DOE's
separate obligation under EPCA to periodically review standards and
test procedures, which should alleviate some of the CA IOUs concern
over the possibility of extended compliance dates.
With respect to NEEA's request that DOE clarify in the regulatory
text that addendums to ASHRAE 90.1 or updates to an industry TP that
ASHRAE 90.1 references do not trigger a DOE review of ECS and TP, DOE
notes that it was already articulated in the regulatory text with
respect to standards, but DOE has included similar language in the
regulatory text with respect to test procedures, consistent with the
proposal in the NOPR preamble. With respect to the CA IOUs request that
DOE clarify what degree of change to an industry test procedure would
trigger DOE to act, DOE would only be triggered by ASHRAE updating its
reference to an updated industry test procedure that contains
modifications to sections of relevance to DOE metrics. Where the
referenced industry test procedure makes minor modifications to
[[Page 24354]]
a section of relevance to DOE metrics, DOE would only consider itself
triggered if such modifications make a substantive change to the DOE
test procedure.
With respect to DOE's proposal to clarify that ASHRAE's review and
reaffirmance (i.e., not amending) of either a standard or test
procedure does not trigger a DOE review or affect the timing of DOE's
separate obligation under EPCA, the Joint Industry Commenters stated
that if ASHRAE 90.1 is amended just with respect to the energy
conservation standard for an ASHRAE equipment, they would still expect
DOE to conduct a ``short test procedure rulemaking to simply
acknowledge the continued applicability of the test procedure.'' DOE
disagrees with the Joint Industry Commenters. DOE's rulemaking
obligations under the ASHRAE provisions in EPCA are very clear.
Further, as clarified in this final rule, the requirements for test
procedure and standards rulemakings are separate. Being required to
initiate an energy conservation standards rulemaking for ASHRAE
equipment under either an ASHRAE trigger or a 6-year lookback review,
does not, on its own, require DOE to also conduct a test procedure
rulemaking. As such, for the reasons discussed in the July 2021 NOPR
and this document, DOE is revising section 9 of appendix A to remove
language that suggests that ASHRAE not acting to amend a standard is a
decision affirming the current standard. However, DOE is not finalizing
the language from the July 2021 NOPR that stated that DOE's obligations
under the lookback provisions for standards and test procedures are not
satisfied by any ASHRAE action, including reviewing, but not amending,
a standard or test procedure. DOE believes the statute is already
sufficiently clear on this point and the added text is unnecessary.
With respect to DOE's proposed elimination of the language
characterizing the circumstances under which the Department would not
adopt the ASHRAE levels or test procedure as being very limited,
commenters, both in favor of and opposed to retaining this language,
seem to think this language implies something more than what is written
in the statute. EPCA specifies the circumstances under which DOE will
adopt a more-stringent standard than the ASHRAE standard or a different
test procedure. For example, DOE will issue a more-stringent standard
than the ASHRAE standard if DOE determines, supported by clear and
convincing evidence, that the more-stringent standard would result in
significant additional conservation of energy and is technologically
feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II))
DOE agrees with commenters that adding a vague description to these
circumstances only raises concerns that DOE may not be properly
following a process that is clearly laid out in the statute.
Similarly, the discussion of what constitutes clear and convincing
evidence that was added in the February 2020 Final Rule has led to some
confusion over whether DOE is applying the clear and convincing
evidence threshold required by EPCA or a modified version. Accordingly,
for the reasons discussed in the July 2021 NOPR and this document, DOE
is revising section 9 of appendix A to remove this language as
proposed. DOE disagrees with Lennox's assertion that DOE should rarely
deviate from industry test procedure metrics due to their view that the
7-year lookback requires ``clear and convincing evidence'' to deviate
from industry test procedure. Lennox asserts that a reference in 42
U.S.C. 6314(a)(1)--the 7-year lookback provision--to ``in accordance
with this section'' references the entirety of section 42 U.S.C. 6314,
including the clear and convincing provision in 42 U.S.C. 6314(4)--the
ASHRAE trigger provision. However, a plain language reading does not
include this requirement; paragraph (a)(4) of section 6314 is very
specific to the ASHRAE trigger; had it been intended for this paragraph
to apply to the 7 year lookback as well, it would have been cited
specifically, just as the 6 year lookback provision for energy
conservation standards in 42 U.S.C. 6313(6)(C) refer back specifically
to the ASHRAE trigger provisions in 42 U.S.C. 6313(6)(A) and (B).
During its 7-year lookback review, DOE is directed by EPCA to
evaluate whether an amended test procedure would more accurately or
fully comply with the representativeness and burden requirements in 42
U.S.C. 6314(a)(2), and if DOE determines an amended test procedure
would do so, then DOE is required to prescribe such test procedures for
the equipment class. (42 U.S.C. 6314(a)(1)(A)) There is no requirement
that DOE's decision to amend a test procedure be supported by clear and
convincing evidence. (Id.) DOE's 7-year-lookback review under EPCA
ensures that DOE is not bound to an industry test procedure that has
not been updated when more representative and/or less burdensome test
methods are available.
DOE notes that in proposing modifications to the regulatory text
for the ASHRAE Equipment section, DOE inadvertently introduced the
``clear and convincing'' language to the test procedure lookback
rulemaking provision. Nowhere in the preamble did DOE state that it
intended for this to be the requirement or that it was DOE's
interpretation of EPCA. For the reasons discussed above, DOE has
removed that clause in this final rule.
Finally, as noted in the July 2021 NOPR, application of the ASHRAE
provisions in EPCA typically involve nuances that are not best
addressed in appendix A, which contains generally applicable
procedures, interpretations, and policies for energy conservation
standard and test procedure rulemakings. 86 FR 35668, 35675. DOE
received several comments in response to the July 2021 NOPR that
further reinforce the need for additional, more-specific guidance on
DOE's implementation of the ASHRAE provisions. DOE believes this is
best accomplished outside the confines of appendix A in a separate
process. As such, DOE is not finalizing proposed revisions from the
July 2021 NOPR dealing with regulated metrics, the baseline for energy
conservation standards analysis, adoption of industry test procedure
sections not relevant to the DOE test procedure, and consistency with
the industry TP in this final rule. DOE will further consider these
proposals and other ASHRAE-related issues in a separate process.
E. Analytical Methodology
In late 2019, DOE contracted with the National Academy of Sciences
(``NAS'') to conduct a peer review of the Department's methods for
setting building and equipment performance standards.\11\ As such, in
the February 2020 Process Rule, DOE stated that it would consider
changes to sections of the Process Rule involving its analytical
methodologies in a subsequent proceeding after completion of a peer
review. 85 FR 8686-8687. As such, these sections remained largely
unchanged from the July 1996 Final Rule. However, when DOE began to
consider revisions to appendix A in early 2021, the NAS peer review
process was still ongoing without a definitive completion date. At that
point, DOE decided that the benefits of updating the analytical
methodology in the July 1996 Final Rule to reflect the Department's
current practice, which incorporates lessons learned from an additional
25
[[Page 24355]]
years of rulemakings, outweighed the potential inefficiency of having
to amend these methods again in a subsequent proceeding. As a result,
in the July 2021 NOPR, DOE proposed to revise appendix A to reflect the
current state of DOE's analytical methodologies. DOE also stated that
if it makes any revisions to its analytical methods based on the NAS
peer review, the Department will propose any necessary corresponding
revisions to the Process Rule in a subsequent proceeding. 86 FR 35668,
35677.
---------------------------------------------------------------------------
\11\ More information on the NAS peer review, including the
final report, is available at https://www.nationalacademies.org/our-work/review-of-methods-for-setting-building-and-equipment-performance-standards.
---------------------------------------------------------------------------
DOE has since had cause to reconsider this position. First, in
response to the July 2021 NOPR, DOE received numerous comments from
stakeholders that the Department should wait to revise its analytical
methodologies until the NAS has completed its peer review. (See, e.g.,
Carrier, No. 54 at p. 4; Lutron, No. 64 at p. 4; GEA, No. 72 at p. 4;
Joint Industry Commenters, No. 62 at pp. 10-11) Second, the NAS
completed the peer review and published their report on January 7,
2022.\12\ In light of these two factors, DOE has decided not to
finalize any revisions to its analytical methodologies in this
document. Instead, DOE will consider changes to its methodologies in a
separate notice-and-comment process that is informed by the results of
the NAS Report.
---------------------------------------------------------------------------
\12\ Review of Methods Used by the U.S. Department of Energy in
Setting Appliance and Equipment Standards. The National Academies
Press (2021). Available at www.nap.edu/catalog/25992/review-of-methods-used-by-the-us-department-of-energy-in-setting-appliance-and-equipment-standards.
---------------------------------------------------------------------------
F. Other Topics
In addition to the topics covered in this document, DOE also
received a number of other comments on topics not covered in the July
2021 NOPR. For instance, DOE received a number of comments on issues
discussed in the April 2021 NOPR, e.g., whether appendix A should be
binding. DOE is not addressing these comments in this document as those
proposals were finalized in the December 2021 Final Rule.
DOE also received comment on its adherence to EPCA's directive that
any new or amended energy conservation standard prescribed by the DOE
must be designed to achieve the maximum improvement in energy
efficiency, which the Secretary determines is technologically feasible
and economically justified, and DOE's application of the associated
statutory factors. (See 42 U.S.C. 6295(o)(2)(A) and (B)(i)(I)-(IV); 42
U.S.C. 6316(a))
The Joint Commenters urged DOE to retain its current practices of
analyzing all relevant statutory factors when selecting a final
standard rather than focusing sequentially on any one or any specific
set of factors. They also suggested that when analyzing whether a
potential standard level is economically justified, DOE should continue
to use only the economic results to end consumers since, in their view,
this is the clear intent of the relevant statutes and end consumer
economics should be the sole criterion in determining economic
justification. The commenters noted that DOE's national economic and
related impact analyses are not measures of end consumer economics and
should never be used as a substitute (or supersede) the end customer
analysis. (Joint Industry Commenters, No. 62 at p. 13)
The Joint Industry Commenters stated that they would object to
DOE's use of the Social Cost of Carbon and other calculations of the
monetary value of avoided greenhouse gas emissions being included in
DOE's analysis of the factors under EPCA. The commenters asserted that
such an approach would be inappropriate under EPCA since the scientific
and economic knowledge continues to evolve rapidly as to the
contribution of carbon dioxide and other greenhouse gases to changes in
the future global climate. They argued that while it may be acceptable
for DOE to examine these values as informational (so long as the
underlying interagency analysis is transparent and vigorous), the
emissions reductions analysis should not impact the trial standard
level that DOE selects as a new or amended standard. (Joint Industry
Commenters, No. 62 at pp. 13-14)
AHRI asserted that EPCA was intended to focus on energy efficiency,
energy costs, and energy savings in the United States. It argued that
none of the seven factors \13\ that DOE must consider when evaluating
whether a potential standard is economically justified focuses on the
monetary value of the avoided emissions of greenhouse gases or other
air pollutants. It added that Congress' inclusion of the first six
factors individually was evidence of its view that these first six
factors were significantly important and drive the energy standards
analysis. AHRI further asserted that in spite of numerous amendments to
EPCA, Congress never included greenhouse gas emissions as a pertinent
factor for DOE to consider. AHRI stated that the monetary impacts of
avoided greenhouse gas emissions should only be used for informational
purposes rather than given any weight as part of DOE's cost-benefit
analysis--and DOE should not use its limited resources to conduct an
analysis of avoiding these emissions (or the social cost of carbon)
when setting efficiency levels. (AHRI, No. 56 at 2-3)
---------------------------------------------------------------------------
\13\ EPCA states that in determining whether a standard is
economically justified, the Secretary shall, after receiving views
and comments furnished with respect to the proposed standard,
determine whether the benefits of the standard exceed its burdens
by, to the greatest extent practicable, considering--(I) the
economic impact of the standard on the manufacturers and on the
consumers of the products subject to such standard; (II) the savings
in operating costs throughout the estimated average life of the
covered product in the type (or class) compared to any increase in
the price of, or in the initial charges for, or maintenance expenses
of, the covered products which are likely to result from the
imposition of the standard; (III) the total projected amount of
energy, or as applicable, water, savings likely to result directly
from the imposition of the standard; (IV) any lessening of the
utility or the performance of the covered products likely to result
from the imposition of the standard; (V) the impact of any lessening
of competition, as determined in writing by the Attorney General,
that is likely to result from the imposition of the standard; (VI)
the need for national energy and water conservation; and (VII) other
factors the Secretary considers relevant. (42 U.S.C.
6295(o)(2(B)(i)(I)-(VII); 42 U.S.C. 6316(a))
---------------------------------------------------------------------------
Specifically with respect to ASHRAE equipment, ASHRAE cautioned DOE
from going beyond the efficiency standards in Standard 90.1 by overly
depending upon factors not explicitly named in the so-called ``7 Factor
Test'', stating that ASHRAE supports greenhouse gas reductions but
noting that almost any higher standard could be ``economically
justified'' by using factors such as monetizing avoided emissions.
ASHRAE stated that such monetization should be produced but not overly
relied upon in its determination of whether a standard is economically
justified. (ASHRAE, No. 59 at p. 5)
AHRI also argued that to the extent DOE calculates greenhouse gas
emissions associated with potential standards for informational
purposes, the emission increases from other social equity factors must
also be considered. AHRI asserted that these other factors have
significant impacts on greenhouse gas emissions because new standards
that increase the cost of covered equipment result in underserved rural
and urban households and small businesses to continue using old,
inefficient, and leaky equipment--thereby allowing high global warming
potential refrigerants to be released into the atmosphere. (AHRI, No.
56 at p. 3)
IPI commented that DOE should revise its rulemaking approach to
ensure the consistent and meaningful consideration of all important
effects to the environment, public health, consumers, and energy
security,
[[Page 24356]]
including indoor air quality and toxic air and water pollution. Such
significant impacts, including both upstream and downstream emissions,
should be considered during--not after--the evaluation of whether
standards are economically justified. (IPI, No. 68 (Attachment at pp. 1
and 7-8))
As noted, under EPCA, any new or amended standard must be designed
to achieve the maximum improvement in energy efficiency that is
technologically feasible and economically justified. (42 U.S.C.
6295(o)(2)(A); 42 U.S.C. 6316(a)) To ensure that DOE meets this
statutory mandate, DOE employs a walk-down process to select energy
conservation standard levels. As a first step in the process, DOE
screens out technologies for improving energy efficiency that are not
feasible. DOE then uses the remaining technologies to create a range of
TSLs. Beginning with the max-tech TSL, DOE then determines whether a
specific TSL is economically justified. In making that determination,
DOE determines, after reviewing public comments and data, whether the
benefits of the standard exceed its burdens by, to the greatest extent
practicable, considering the seven factors described in 42 U.S.C.
6295(o)(2)(B)(i). (See also 42 U.S.C. 6313(a)(6)(B)(ii) (applying the
seven factors to ASHRAE equipment); 42 U.S.C. 6316(a) (applying the
seven factors to non-ASHRAE equipment))
If DOE determines that the max-tech TSL is economically justified,
the analysis ends, and DOE adopts the max-tech TSL as the new or
amended standard. However, if DOE determines that the max-tech TSL is
not economically justified, DOE walks down to consider the next-most-
stringent TSL. This walkdown process continues until DOE determines
that a TSL is economically justified or that none of the TSLs are
economically justified.
DOE maintains that climate and health benefits associated with the
more efficient use of energy are important to take into account when
considering the need for national energy and water conservation, which
is one of the factors to consider under EPCA. (42 U.S.C.
6295(o)(2)(B)(i)(VI); Zero Zone, Inc. v. United States DOE, 832 F.3d
654, 677 (7th Cir. 2016) (holding that, under 42 U.S.C.
(o)(2)(B)(i)(VI), DOE has ``the authority under EPCA to consider the
reduction in'' the social cost of greenhouse gasses)).
The Advocacy Groups provided comment on certain apparent
inconsistencies and inaccuracies in sections 6 and 7. The Advocacy
Groups noted that the text of section 6(a)(4)(ii) indicates that DOE
and its contractors will perform engineering and life-cycle cost
analyses of the design options and section 6(a)(4)(v) similarly refers
to life-cycle cost analysis of design options. The Advocacy Groups
commented that DOE does not perform life-cycle cost analyses of design
option but of efficiency levels. Similarly, they also noted that
section 7(c)(1) refers to the analysis of design options, which they
emphasized DOE does not perform--rather, DOE's analysis is performed on
efficiency levels. The Advocacy Group suggested that DOE make changes
to reflect this practice. The Advocacy Groups also stated that the
current text of section 7(b)(1), which notes that technologies not
incorporated into commercial products or in commercially viable,
existing prototypes will not be considered further, is inconsistent
with DOE's practice of screening out design options which are not
incorporated in commercial products or in working prototypes. They
commented that DOE evaluates a ``max-tech'' level (maximum
technologically feasible level) regardless of cost and that DOE cannot
screen out a design option on the basis of cost, which are separately
considered as part of the selection of standard levels. The Advocacy
Groups further added that while section 7(c)(3) says that efficiency
levels will be identified in pre-NOPR documents, DOE does not always
identify efficiency levels in its pre-NOPR documents. (Advocacy Groups,
No. 70 at pp. 5-6)
Regarding the Advocacy Groups' comments, DOE will address them as
part of the separate notice-and-comment process addressing DOE's
rulemaking methodology.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866,13563, and 14094
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by
E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821
(Jan. 21, 2011) and E.O. 14094, ``Modernizing Regulatory Review,'' 88
FR 21879 (April 11, 2023), requires agencies, to the extent permitted
by law, to: (1) propose or adopt a regulation only upon a reasoned
determination that its benefits justify its costs (recognizing that
some benefits and costs are difficult to quantify); (2) tailor
regulations to impose the least burden on society, consistent with
obtaining regulatory objectives, taking into account, among other
things, and to the extent practicable, the costs of cumulative
regulations; (3) select, in choosing among alternative regulatory
approaches, those approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity); (4) to the extent
feasible, specify performance objectives, rather than specifying the
behavior or manner of compliance that regulated entities must adopt;
and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public. DOE
emphasizes as well that E.O. 13563 requires agencies to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible. In its guidance, the
Office of Information and Regulatory Affairs (``OIRA'') in the Office
of Management and Budget (``OMB'') has emphasized that such techniques
may include identifying changing future compliance costs that might
result from technological innovation or anticipated behavioral changes.
For the reasons stated in this preamble, this final regulatory action
is consistent with these principles.
This regulatory action is a significant regulatory action under
section 3(f)(4) of Executive Order 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (Oct. 4, 1993). Accordingly, this regulatory
action was subject to review under the Executive order by the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget (OMB).
The revisions contained in this regulatory action are procedural
changes designed to improve DOE's ability to meet its rulemaking
obligations and deadlines under EPCA. These revisions would not impose
any regulatory costs or burdens on stakeholders, nor would they limit
public participation in DOE's rulemaking process. Instead, these
revisions would allow DOE to tailor its rulemaking processes to fit the
facts and circumstances of a particular rulemaking for a covered
product or equipment.
DOE currently has energy conservation standards and test procedures
in place for more than 60 categories of covered products and equipment
and is typically working on anywhere from 50 to 100 rulemakings (for
both energy conservation standards and test procedures) at any one
time.
[[Page 24357]]
Further, these rulemakings are all subject to statutory or other
deadlines. Typically, review cycles for energy conservation standards
and test procedures for covered products are 6 and 7 years,
respectively. (42 U.S.C. 6295(m)(1); 42 U.S.C 6293(b)(1)) Additionally,
if DOE decides not to amend an energy conservation standard for a
covered product, the subsequent review cycle is shortened to 3 years.
(42 U.S.C. 6295(m)(3)(B)) It is challenging to meet these cyclical
deadlines for more than 60 categories of covered products and
equipment. In fact, as previously discussed, DOE is faced two lawsuits
that allege DOE has failed to meet rulemaking deadlines for 25
different consumer products and commercial equipment.\14\
---------------------------------------------------------------------------
\14\ Consent Decree, NRDC v. DOE, No.: 20-cv-9127 (S.D.N.Y.
Sept. 20, 2022).
---------------------------------------------------------------------------
In order to meet these rulemaking deadlines, DOE cannot afford the
inefficiencies that come with a one-size-fits-all rulemaking approach.
For example, having to issue an early assessment RFI followed by an
ANOPR to collect early stakeholder input when a NODA or other pre-rule
document would accomplish the same purpose unnecessarily lengthens the
rulemaking process and wastes limited DOE resources. Similarly, having
to identify any necessary modifications to a test procedure prior to
initiating an energy conservation standard rulemaking makes it more
difficult for DOE to meet rulemaking deadlines, while offering little
to no benefit to stakeholders.
The revisions in this document would allow DOE to eliminate these
types of inefficiencies that lengthen the rulemaking process and waste
DOE resources, while not affecting the ability of the public to
participate in the rulemaking process. Eliminating inefficiencies that
lengthen the rulemaking process allows DOE to more quickly develop
energy conservation standards that deliver the environmental benefits,
including reductions in greenhouse gas emissions, that DOE is directed
to pursue under E.O. 13990. Further, the sooner new or amended energy
conservation standards eliminate less-efficient covered products and
equipment from the market, the greater the resulting energy savings and
environmental benefits.
Finally, the revisions in this document would not dictate any
particular rulemaking outcome in an energy conservation standard or
test procedure rulemaking. DOE will continue to calculate the
regulatory costs and benefits of new and amended energy conservation
standards and test procedures issued under EPCA in future, individual
rulemakings.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996)
requires preparation of an initial regulatory flexibility analysis
(IRFA) for any rule that by law must be proposed for public comment and
a final regulatory flexibility analysis (FRFA) for any such rule that
an agency adopts as a final rule, unless the agency certifies that the
rule, if promulgated, will not have a significant economic impact on a
substantial number of small entities. A regulatory flexibility analysis
examines the impact of the rule on small entities and considers
alternative ways of reducing negative effects. Also, as required by
Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the DOE rulemaking process. 68 FR 7990. DOE has made
its procedures and policies available on the Office of the General
Counsel's website at: www.energy.gov/gc/office-general-counsel.
This final rule details generally applicable guidance that may
guide, but not bind, the Department's rulemaking process. The revisions
in this rule are intended to improve DOE's ability to meet the
obligations and deadlines outlined in EPCA by allowing DOE to tailor
its rulemaking procedures to fit the specific facts and circumstances
of a particular covered product or equipment, while not affecting the
ability of any interested person, including small entities, to
participate in DOE's rulemaking process. Because this rule imposes no
regulatory obligations on the public, including small entities, and
does not affect the ability of any interested person, including small
entities, to participate in DOE's rulemaking process, DOE certifies
that this final rule will not have a significant economic impact on a
substantial number of small entities, and, therefore, no final
regulatory flexibility analysis is required. Mid-Tex Elec. Cooperative,
Inc. v. F.E.R.C., 773 F.2d 327 (D.C. Cir. 1985).
C. Review Under the Paperwork Reduction Act of 1995
DOE is not amending its existing information collections through
this rule. Under existing provisions, manufacturers of covered
products/equipment must certify to DOE that their products comply with
any applicable energy conservation standards. In certifying compliance,
manufacturers must test their products according to the DOE test
procedures for such products/equipment, including any amendments
adopted for those test procedures, on the date that compliance is
required. DOE has established regulations for the certification and
recordkeeping requirements for all covered consumer products and
commercial equipment. 76 FR 12422 (March 7, 2011); 80 FR 5099 (Jan. 30,
2015). The collection-of-information requirement for certification and
recordkeeping is subject to review and approval by OMB under the
Paperwork Reduction Act (PRA). This requirement has been approved by
OMB under OMB control number 1910-1400. Public reporting burden for the
certification is estimated to average 30 hours per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
Specifically, this rule, in addressing clarifications to DOE's
guidance regarding its process for amending and establishing energy
conservation standards and related test procedures set out in 10 CFR
part 430, subpart C, appendix A, does not contain any collection of
information requirement that would trigger the PRA.
D. Review Under the National Environmental Policy Act of 1969
DOE has analyzed this regulation in accordance with the National
Environmental Policy Act (NEPA) and DOE's NEPA implementing regulations
(10 CFR part 1021). DOE's regulations include a categorical exclusion
for rulemakings interpreting or amending an existing rule or regulation
that does not change the environmental effect of the rule or regulation
being amended. 10 CFR part 1021, subpart D, appendix A, categorical
exclusion A5. DOE's regulations include a categorical exclusion for
rulemakings that are strictly procedural. 10 CFR part 1021, subpart D,
appendix A, categorical exclusion A6. DOE has completed the necessary
review under NEPA and has
[[Page 24358]]
determined that this rulemaking qualifies for categorical exclusion A5
and A6 because it is amending a rule and because it is a procedural
rulemaking, it does not change the environmental effect of the rule and
otherwise meets the requirements for application of a categorical
exclusion. See 10 CFR 1021.410.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10,
1999), imposes certain requirements on Federal agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. The Executive order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. 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. DOE has examined this
rule and has determined that it will 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. It will
primarily affect the procedure by which DOE develops proposed rules to
revise energy conservation standards and test procedures. EPCA governs
and prescribes Federal preemption of State regulations that are the
subject of DOE's regulations adopted pursuant to the statute. In such
cases, States can petition DOE for exemption from such preemption to
the extent, and based on criteria, set forth in EPCA. (42 U.S.C.
6297(d)) Therefore, Executive Order 13132 requires no further action.
F. Review Under Executive Order 12988
Regarding the review of existing regulations and the promulgation
of new regulations, section 3(a) of Executive Order 12988, ``Civil
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal
agencies the general duty to adhere to the following requirements: (1)
eliminate drafting errors and ambiguity; (2) write regulations to
minimize litigation; (3) provide a clear legal standard for affected
conduct rather than a general standard; and (4) promote simplification
and burden reduction. Regarding the review required by section 3(a),
section 3(b) of Executive Order 12988 specifically requires that each
Executive agency make every reasonable effort to ensure that when it
issues a regulation, 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) clearly specifies the retroactive effect, if any; (5) specifies
whether administrative proceedings are to be required before parties
may file suit in court and, if so, describes those proceedings and
requires the exhaustion of administrative remedies; (6) adequately
defines key terms; and (7) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in sections 3(a) and 3(b) to determine whether they are met
or it is unreasonable to meet one or more of them. DOE has completed
the required review and has determined that, to the extent permitted by
law, this rule meets the relevant standards of Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531))
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' 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 them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA. (62 FR 12820) (This policy is also available at
www.energy.gov/gc/office-general-counsel under ``Guidance & Opinions''
(Rulemaking)) DOE examined the rule according to UMRA and its statement
of policy and has determined that the rule contains neither an
intergovernmental mandate, nor a mandate 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 in any year.
Accordingly, no further assessment or analysis is required under 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 proposed rule or policy that may affect
family well-being. When developing a Family Policymaking Assessment,
agencies must assess whether: (1) the action strengthens or erodes the
stability or safety of the family and, particularly, the marital
commitment; (2) the action strengthens or erodes the authority and
rights of parents in the education, nurture, and supervision of their
children; (3) the action helps the family perform its functions, or
substitutes governmental activity for the function; (4) the action
increases or decreases disposable income or poverty of families and
children; (5) the proposed benefits of the action justify the financial
impact on the family; (6) the action may be carried out by State or
local government or by the family; and whether (7) the action
establishes an implicit or explicit policy concerning the relationship
between the behavior and personal responsibility of youth, and the
norms of society. In evaluating the above factors, DOE has concluded
that it is not necessary to prepare a Family Policymaking Assessment as
none of the above factors are implicated. Further, this rule would not
have any impact on the autonomy or integrity of the family as an
institution.
I. Review Under Executive Order 12630
Pursuant to Executive Order 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' 53 FR
8859 (March 18, 1988), DOE has determined that this rule would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
[[Page 24359]]
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review
most disseminations of information to the public under information
quality guidelines established by each agency pursuant to general
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446
(Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE
guidelines and has concluded that it is consistent with the 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 OIRA
at OMB, a Statement of Energy Effects for any proposed significant
energy action. A ``significant energy action'' is defined as any action
by an agency that promulgates or is expected to lead to promulgation of
a final rule, and that: (1) is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use.
DOE has concluded that the regulatory action in this document,
which makes clarifications to the Process Rule that guides the
Department in proposing energy conservation standards is not a
significant energy action because it would not have a significant
adverse effect on the supply, distribution, or use of energy, nor has
it been designated as a significant energy action by the Administrator
of OIRA. Therefore, it is not a significant energy action, and,
accordingly, DOE has not prepared a Statement of Energy Effects for
this final rule.
L. Review Consistent With OMB's Information Quality Bulletin for Peer
Review
On December 16, 2004, OMB, in consultation with the Office of
Science and Technology Policy (OSTP), issued its Final Information
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14,
2005). The Bulletin establishes that certain scientific information
shall be peer reviewed by qualified specialists before it is
disseminated by the Federal Government, including influential
scientific information related to agency regulatory actions. The
purpose of the bulletin is to enhance the quality and credibility of
the Government's scientific information. Under the Bulletin, the energy
conservation standards rulemaking analyses are ``influential scientific
information,'' which the Bulletin defines as ``scientific information
the agency reasonably can determine will have or does have a clear and
substantial impact on important public policies or private sector
decisions.'' Id. at 70 FR 2667.
In response to OMB's Bulletin, DOE conducted formal in-progress
peer reviews of the energy conservation standards development process
and analyses and has prepared a Peer Review Report pertaining to the
energy conservation standards rulemaking analyses. Generation of this
report involved a rigorous, formal, and documented evaluation using
objective criteria and qualified and independent reviewers to make a
judgment as to the technical/scientific/business merit, the actual or
anticipated results, and the productivity and management effectiveness
of programs and/or projects. The ``Energy Conservation Standards
Rulemaking Peer Review Report,'' dated February 2007, has been
disseminated and is available at the following website: www.energy.gov/eere/buildings/peer-review. Because available data, models, and
technological understanding have changed since 2007, DOE has engaged
with the National Academy of Sciences to review DOE's analytical
methodologies to ascertain whether modifications are needed to improve
the Department's analyses. As discussed, DOE is in the process of
evaluating the resulting report.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule before 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 this final
rule.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Imports,
Intergovernmental relations, Small businesses, Test procedures.
Signing Authority
This document of the Department of Energy was signed on March 29,
2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for
Energy Efficiency and Renewable Energy, pursuant to delegated authority
from the Secretary of Energy. That document with the original signature
and date is maintained by DOE. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of the Department of Energy. This administrative
process in no way alters the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on March 29, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends part 430 of
title 10 of the Code of Federal Regulations as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
0
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.
0
2. Amend appendix A to subpart C of part 430 by revising sections 5, 6,
8, and 9 to read as follows:
Appendix A to Subpart C of Part 430--Procedures, Interpretations, and
Policies for Consideration of New or Revised Energy Conservation
Standards and Test Procedures for Consumer Products and Certain
Commercial/Industrial Equipment
* * * * *
Coverage Determination Rulemakings
DOE has discretion to conduct proceedings to determine whether
additional consumer
[[Page 24360]]
products and commercial/industrial equipment should be covered under
EPCA if certain statutory criteria are met. (42 U.S.C. 6292(b) and
42 U.S.C. 6295(l) for consumer products; 42 U.S.C. 6312(b) for
commercial/industrial equipment). This section describes the process
to be used in establishing coverage for consumer products and
commercial/industrial equipment.
(a) Pre-notice of proposed rulemaking (``NOPR'') stage. In
determining whether to consider establishing coverage for a consumer
product or commercial/industrial equipment, DOE may publish one or
more preliminary documents in the Federal Register intended to
gather information on key issues. Such document(s) will be published
in the Federal Register, with accompanying documents referenced and
posted in the appropriate docket.
(b) NOPR stage. If DOE determines to proceed with a coverage
determination process, the Department will publish a notice of
proposed determination, providing an opportunity for public comment
of not less than 60 days, in which DOE will explain how such
products/equipment that it seeks to designate as ``covered'' meet
the statutory criteria for coverage and why such coverage is
``necessary or appropriate'' to carry out the purposes of EPCA. In
the case of commercial equipment, DOE will follow the same process,
except that the Department must demonstrate that coverage of the
equipment type is ``necessary'' to carry out the purposes of EPCA.
(c) Final rule. DOE will publish a final rule in the Federal
Register that establishes the scope of coverage for the product/
equipment, responds to public comments received on the NOPR, and
explains how inclusion of the newly covered product/equipment meets
the statutory criteria for coverage and why such coverage is
necessary or appropriate to carry out the purposes of EPCA. DOE will
finalize coverage for a product/equipment prior to publication of a
proposed rule to establish a test procedure.
(d) Scope of coverage revisions. If, during the substantive
rulemaking proceedings to establish test procedures or energy
conservation standards after completing a coverage determination,
DOE finds it necessary and appropriate to amend the scope of
coverage, DOE will propose an amended coverage determination and
finalize coverage prior to moving forward with the test procedure or
standards rulemaking.
6. Process for Developing Energy Conservation Standards
This section describes the process to be used in developing
energy conservation standards for covered products and equipment
other than those covered equipment subject to ASHRAE/IES Standard
90.1.
(a) Pre-NOPR stage--(1) General. In determining whether to
consider establishing or amending any energy conservation standard,
DOE will publish one or more preliminary, pre-NOPR documents in the
Federal Register intended to gather information on key issues. Such
document(s) could take several forms depending upon the specific
proceeding, including a framework document, request for information
(RFI), notice of data availability (NODA), preliminary analysis, or
advance notice of proposed rulemaking (ANOPR). Such document(s) will
be published in the Federal Register, with any accompanying
documents referenced and posted in the appropriate docket.
(2) Satisfaction of statutory criteria. As part of such pre-
NOPR-stage document(s), DOE will solicit submission of comments,
data, and information on whether DOE should proceed with the
rulemaking, including whether any new or amended rule would satisfy
the relevant statutory criteria to be cost-effective, economically
justified, technologically feasible, and result in a significant
savings of energy. Based on the information received in response to
such request and its own analysis, DOE will determine whether to
proceed with a rulemaking for a new or amended energy conservation
standard. If DOE determines at any point in the pre-NOPR stage that
no candidate standard level for a new or amended standard is likely
to satisfy all of the applicable statutory criteria (i.e., to be
technologically feasible and economically justified and result in
significant energy savings), DOE will announce that conclusion in
the Federal Register and proceed with notice-and-comment rulemaking
that proposes a determination not to adopt new or amended standards.
DOE notes that it will, consistent with its statutory obligations,
consider both cost effectiveness and economic justification when
issuing a determination not to amend a standard. If DOE receives
sufficient information suggesting it could justify a new or amended
standard or the information received is inconclusive with regard to
the statutory criteria, DOE will move forward with the rulemaking to
issue or amend an energy conservation standard. In those instances
where the available information either suggested that a new or
amended energy conservation standard might be justified or in which
the information was inconclusive on this point, and DOE undertakes a
rulemaking to establish or amend an energy conservation standard,
DOE may still ultimately determine that such a standard is not
economically justified, technologically feasible or would not result
in a significant savings of energy at a later stage of the
rulemaking.
(3) Design options--(i) General. Once the Department has
initiated a rulemaking for a specific product/equipment but before
publishing a proposed rule to establish or amend standards, DOE will
typically identify the product/equipment categories and design
options to be analyzed in detail, as well as those design options to
be eliminated from further consideration. During the pre-NOPR stage
of the rulemaking, interested parties may be consulted to provide
information on key issues, including potential design options,
through a variety of rulemaking documents.
(ii) Identification and screening of design options. During the
pre-NOPR phase of the rulemaking process, the Department will
typically develop a list of design options for consideration.
Initially, the candidate design options will encompass all those
technologies considered to be technologically feasible. Following
the development of this initial list of design options, DOE will
review each design option based on the factors described in
paragraph (a)(3)(iii) of this section and the policies stated in
section 7 of this appendix (i.e., Policies on Selection of
Standards). The reasons for eliminating or retaining any design
option at this stage of the process will be fully documented and
published as part of the NOPR and as appropriate for a given rule,
in the pre-NOPR document(s). The technologically feasible design
options that are not eliminated in this screening analysis will be
considered further in the Engineering Analysis described in
paragraph (a)(4) of this section.
(iii) Factors for screening of design options. The factors for
screening design options include:
(A) Technological feasibility. Technologies incorporated in
commercial products (or equipment) or in working prototypes will be
considered technologically feasible.
(B) Practicability to manufacture, install and service. If mass
production of a technology under consideration for use in
commercially-available products (or equipment) and reliable
installation and servicing of the technology could be achieved on
the scale necessary to serve the relevant market at the time of the
effective date of the standard, then that technology will be
considered practicable to manufacture, install, and service.
(C) Adverse impacts on product utility or product availability.
(D) Adverse impacts on health or safety.
(E) Unique-pathway proprietary technologies. If a design option
utilizes proprietary technology that represents a unique pathway to
achieving a given efficiency level, that technology will not be
considered further.
(4) Engineering analysis of design options and selection of
candidate standard levels. After design options are identified and
screened, DOE will perform the engineering analysis and the benefit/
cost analysis and select the candidate standard levels based on
these analyses. The results of the analyses will be published in a
Technical Support Document (TSD) to accompany the appropriate
rulemaking documents.
(i) Identification of engineering analytical methods and tools.
DOE will select the specific engineering analysis tools (or multiple
tools, if necessary, to address uncertainty) to be used in the
analysis of the design options identified as a result of the
screening analysis.
(ii) Engineering and life-cycle cost analysis of design options.
DOE and its contractors will perform engineering and life-cycle cost
analyses of the design options.
(iii) Review by stakeholders. Interested parties will have the
opportunity to review the results of the engineering and life-cycle
cost analyses. If appropriate, a public workshop will be conducted
to review these results. The analyses will be revised as appropriate
on the basis of this input.
(iv) New information relating to the factors used for screening
design options. If further information or analysis leads to a
determination that a design option, or a
[[Page 24361]]
combination of design options, has unacceptable impacts, that design
option or combination of design options will not be included in a
candidate standard level.
(v) Selection of candidate standard levels. Based on the results
of the engineering and life-cycle cost analysis of design options
and the policies stated in paragraph (a)(3)(iii) of this section,
DOE will select the candidate standard levels for further analysis.
(5) Analysis of impacts and selection of proposed standard
level. If DOE has determined preliminarily that a candidate standard
level is likely to produce the maximum improvement in energy
efficiency that is both technologically feasible and economically
justified and constitutes significant energy savings, economic
analyses of the impacts of the candidate standard levels will be
conducted. The Department will propose new or amended standards in a
subsequent NOPR based on the results of the impact analysis.
(i) Identification of issues for analysis. The Department, in
consideration of comments received, will identify issues that will
be examined in the impacts analysis.
(ii) Identification of analytical methods and tools. DOE will
select the specific economic analysis tools (or multiple tools, if
necessary, to address uncertainty) to be used in the analysis of the
candidate standard levels.
(iii) Analysis of impacts. DOE will conduct the analysis of the
impacts of candidate standard levels.
(iv) Factors to be considered in selecting a proposed standard.
The factors to be considered in selection of a proposed standard
include:
(A) Impacts on manufacturers. The analysis of manufacturer
impacts will include: Estimated impacts on cash flow; assessment of
impacts on manufacturers of specific categories of products/
equipment and small manufacturers; assessment of impacts on
manufacturers of multiple product-specific Federal regulatory
requirements, including efficiency standards for other products and
regulations of other agencies; and impacts on manufacturing
capacity, employment, and capital investment.
(B) Private impacts on consumers. The analysis of consumer
impacts will include: Estimated private energy savings impacts on
consumers based on regional average energy prices and energy usage;
assessments of the variability of impacts on subgroups of consumers
based on major regional differences in usage or energy prices and
significant variations in installation costs or performance;
consideration of changes to product utility, changes to purchase
rate and/or costs of products, and other impacts of likely concern
to all or some consumers, based to the extent practicable on direct
input from consumers; estimated life-cycle cost with sensitivity
analysis; and consideration of the increased first cost to consumers
and the time required for energy cost savings to pay back these
first costs.
(C) Impacts on competition, including industry concentration
analysis.
(D) Impacts on utilities. The analysis of utility impacts will
include estimated marginal impacts on electric and gas utility
generation and capacity.
(E) National energy, economic, and employment impacts. The
analysis of national energy, economic, and employment impacts will
include: estimated energy savings by fuel type; estimated net
present value of benefits to all consumers; sensitivity analyses
using high and low discount rates reflecting both private
transactions and social discount rates and high and low energy price
forecasts; and estimates of the direct and indirect impacts on
employment by appliance manufacturers, relevant service industries,
energy suppliers, suppliers of complementary and substitution
products, and the economy in general.
(F) Impacts on the environment. The analysis of environmental
impacts will include estimated impacts on emissions of carbon and
relevant criteria pollutants.
(G) Impacts of non-regulatory approaches. The analysis of energy
savings and consumer impacts will incorporate an assessment of the
impacts of market forces and existing voluntary programs in
promoting product/equipment efficiency, usage, and related
characteristics in the absence of updated efficiency standards.
(H) New information relating to the factors used for screening
design options.
(6) Public comment and hearing. The length of the public comment
period for pre-NOPR rulemaking documents will be determined on a
case-by-case basis and may vary depending upon the circumstances of
the particular rulemaking. For pre-NOPR documents, DOE will
determine whether a public hearing is appropriate.
(7) Revisions based on comments. Based on consideration of the
comments received, any necessary changes to the engineering
analysis, life-cycle cost analysis, or the candidate standard levels
will be made.
(b) NOPR stage--(1) Documentation of decisions on proposed
standard selection. The Department will publish a NOPR in the
Federal Register that proposes standard levels and explains the
basis for the selection of those proposed levels, and DOE will post
on its website a draft TSD documenting the analysis of impacts. The
draft TSD will also be posted in the appropriate docket at
www.regulations.gov. As required by 42 U.S.C. 6295(p)(1) of EPCA,
the NOPR also will describe the maximum improvement in energy
efficiency or maximum reduction in energy use that is
technologically feasible and, if the proposed standards would not
achieve these levels, the reasons for proposing different standards.
(2) Public comment and hearing. There will be not less than 60
days for public comment on the NOPR, with at least one public
hearing or workshop. (42 U.S.C. 6295(p)(2) and 42 U.S.C. 6306)
(3) Revisions to impact analyses and selection of final
standard. Based on the public comments received, DOE will review the
proposed standard and impact analyses, and make modifications as
necessary. If major changes to the analyses are required at this
stage, DOE will publish a supplemental notice of proposed rulemaking
(SNOPR), when required. DOE may also publish a NODA or RFI, where
appropriate.
(c) Final rule stage. The Department will publish a final rule
in the Federal Register that promulgates standard levels, responds
to public comments received on the NOPR (and SNOPR if applicable),
and explains how the selection of those standards meets the
statutory requirement that any new or amended energy conservation
standard produces the maximum improvement in energy efficiency that
is both technologically feasible and economically justified and
constitutes significant energy savings, accompanied by a final TSD.
* * * * *
Test Procedures
(a) Pre-NOPR stage--(1) General. In determining whether to
consider establishing or amending any test procedure, DOE will
publish one or more preliminary documents in the Federal Register
(e.g., an RFI or NODA) intended to gather information on key issues.
(2) Satisfaction of statutory criteria. As part of such
document(s), DOE will solicit submission of comments, data, and
information on whether DOE should proceed with the rulemaking,
including whether: a new test procedure would satisfy the relevant
statutory criteria that test procedures be reasonably designed to
produce test results which measure energy efficiency, energy use,
water use (in the case of showerheads, faucets, water closets and
urinals), or estimated annual operating cost of a covered product
during a representative average use cycle or period of use, as
determined by the Secretary, and shall not be unduly burdensome to
conduct; or an amended test procedure would more fully or accurately
comply with the aforementioned statutory criteria. Based on the
information received in response to such request and its own
analysis, DOE will determine whether to proceed with a rulemaking
for a new or amended test procedure.
(3) If DOE determines that a new or amended test procedure would
not satisfy the applicable statutory criteria, DOE will engage in
notice-and-comment rulemaking to issue a determination that a new or
amended test procedure is not warranted.
(4) If DOE receives sufficient information suggesting a new or
amended test procedure may satisfy the applicable statutory criteria
or the information received is inconclusive with regard to the
statutory criteria, DOE will move forward with the rulemaking to
issue or amend a test procedure.
(5) In those instances where the available information either
suggested that a new or amended test procedure might be warranted or
in which the information was inconclusive on this point, and DOE
undertakes a rulemaking to establish or amend a test procedure, DOE
may still ultimately determine that such a test procedure does not
satisfy the applicable statutory criteria at a later stage of the
rulemaking.
(6) Public comment and hearing. The length of the public comment
period for pre-NOPR rulemaking documents will be determined on a
case-by-case basis and may vary depending upon the circumstances of
the particular rulemaking. For pre-NOPR documents, DOE will
determine whether a public hearing is appropriate.
[[Page 24362]]
(b) NOPR stage--(1) Documentation of decisions on proposed test
procedure. The Department will publish a NOPR in the Federal
Register that proposes a new or amended test procedure and explains
how the test procedure satisfies the applicable statutory criteria.
(2) Public comment and hearing. There will be not less than 60
days for public comment on the NOPR, with at least one public
hearing or workshop. (42 U.S.C. 6293(b)(2) and 42 U.S.C. 6306)
(3) Revisions to the analyses and establishment of a final test
procedure. Based on the public comments received, DOE will review
the proposed test procedure, and make modifications as necessary. As
part of this process, DOE may issue an RFI, NODA, SNOPR, or other
rulemaking document, as appropriate.
(c) Final rule stage. The Department will publish a final rule
in the Federal Register that establishes or amends a test procedure,
responds to public comments received on the NOPR (and any subsequent
rulemaking documents), and explains how the new or amended test
procedure meets the applicable statutory requirements.
(d) Adoption of industry test methods. DOE will adopt industry
test procedure standards as DOE test procedures for covered products
and equipment, but only if DOE determines that such procedures would
not be unduly burdensome to conduct and would produce test results
that reflect the energy efficiency, energy use, water use (as
specified in EPCA) or estimated operating costs of that equipment
during a representative average use cycle. DOE may also adopt
industry test procedure standards with modifications or craft its
own procedures as necessary to ensure compatibility with the
relevant statutory requirements, as well as DOE's compliance,
certification, and enforcement requirements.
(e) Issuing final test procedure--(1) Process. Test procedure
rulemakings establishing methodologies used to evaluate proposed
energy conservation standards will be finalized prior to publication
of a NOPR proposing new or amended energy conservation standards.
Except as provided in paragraph (e)(2) of this section, new test
procedures and amended test procedures that impact measured energy
use or efficiency will be finalized at least 180 days prior to the
close of the comment period for:
(i) A NOPR proposing new or amended energy conservation
standards; or
(ii) A notice of proposed determination that standards do not
need to be amended. With regards to amended test procedures, DOE
will state in the test procedure final rule whether the amendments
impact measured energy use or efficiency.
(2) Exceptions. The 180-day period for new test procedures and
amended test procedures that impact measured energy use or
efficiency specified in paragraph (e)(1) of this section is not
applicable to:
(i) Test procedures developed in accordance with the Negotiated
Rulemaking Act or by interested persons that are fairly
representative of relevant points of view (including representatives
of manufacturers of covered products, States, and efficiency
advocates), as determined by the Secretary; or
(ii) Test procedure amendments limited to calculation changes
(e.g., use factor or adder). Parties submitting a consensus
recommendation in accordance with paragraph (e)(2)(i) of this
section may specify a time period between finalization of the test
procedure and the close of the comment for a NOPR proposing new or
amended energy conservation standards or a notice of proposed
determination that standards do not need to be amended.
(f) Effective date of test procedures. If required only for the
evaluation and issuance of updated efficiency standards, use of the
modified test procedures typically will not be required until the
implementation date of updated standards.
9. ASHRAE Equipment
EPCA provides unique statutory requirements and a specific set
of timelines for certain enumerated types of commercial and
industrial equipment (generally, commercial water heaters,
commercial packaged boilers, commercial air-conditioning and heating
equipment, and packaged terminal air conditioners and heat pumps
(i.e., ``ASHRAE equipment'')).
(a) ASHRAE trigger rulemakings for energy conservation
standards. Pursuant to EPCA's statutory scheme for covered ASHRAE
equipment, DOE is required to consider amending the existing Federal
energy conservation standards for ASHRAE equipment when ASHRAE
Standard 90.1 is amended with respect to standards or design
requirements applicable to such equipment.
(1) Not later than 180 days after the amendment of ASHRAE
Standard 90.1, DOE will publish in the Federal Register for public
comment an analysis of the energy savings potential of amended
energy efficiency standards for the affected equipment.
(2) Not later than 18 months after the amendment of ASHRAE
Standard 90.1, DOE must adopt amended energy conservation standards
at the new efficiency level in ASHRAE Standard 90.1 as the uniform
national standard for the affected equipment, unless DOE determines
by rule, and supported by clear and convincing evidence, that a
more-stringent standard would result in significant additional
conservation of energy and is technologically feasible and
economically justified. In such case, DOE must adopt the more-
stringent standard for the affected equipment not later than 30
months after amendment of ASHRAE Standard 90.1.
(3) Regarding amendments to ASHRAE Standard 90.1 involving
energy conservation standards, DOE considers an amendment of a
standard level to occur when an updated version of ASHRAE Standard
90.1 publishes (i.e., not at the time that an addendum to ASHRAE
Standard 90.1 is released or approved). In addition, DOE considers
an amendment of standard levels in ASHRAE Standard 90.1 to be only
those changes resulting in an increase in stringency of standard
levels relative to the current Federal standards or the adoption of
a design requirement.
(b) ASHRAE trigger rulemakings for test procedures. Pursuant to
EPCA's statutory scheme for covered ASHRAE equipment, DOE is
required to consider amending the existing Federal test procedures
for such equipment when ASHRAE Standard 90.1 is amended with respect
to test procedures applicable to such equipment.
(1) DOE shall amend the test procedure for ASHRAE equipment, as
necessary, to be consistent with the amended ASHRAE Standard 90.1,
unless DOE determines by rule, and supported by clear and convincing
evidence, that to do so would not meet the requirements in 42 U.S.C.
6314(a)(2)-(3), which generally provide that the test procedure must
produce results which reflect energy efficiency, energy use, and
estimated operating costs during a representative average use cycle
and not be unduly burdensome to conduct. If DOE makes such a
determination, DOE may establish an amended test procedure for such
equipment that meets the requirements in 42 U.S.C. 6314(a)(2)-(3).
(2) With regard to test procedures for ASHRAE equipment, EPCA
requires DOE to adopt test procedures consistent with applicable
industry test standards.
(c) ASHRAE lookback rulemakings for standards. EPCA also
requires that DOE periodically consider amending energy conservation
standards for ASHRAE equipment.
(1) Every 6 years, DOE shall conduct an evaluation of each class
of covered equipment. DOE shall publish either a notice of
determination that standards do not need to be amended (because they
would not result in significant additional conservation of energy
and/or would not be technologically feasible and/or economically
justified) or a notice of proposed rulemaking including new proposed
standards (based on the criteria and procedures in 42 U.S.C.
6313(a)(6)(B) and supported by clear and convincing evidence).
(2) If DOE issues a notice of proposed rulemaking, it shall
publish a final rule no more than 2 years later.
(3) If DOE determines that a standard does not need to be
amended, not later than 3 years after such a determination, DOE must
publish either a notice of determination that standards do not need
to be amended (because they would not result in significant
additional conservation of energy and/or would not be
technologically feasible and/or economically justified) or a notice
of proposed rulemaking including new proposed standards (based on
the criteria and procedures in 42 U.S.C. 6313(a)(6)(B) and supported
by clear and convincing evidence).
(d) ASHRAE lookback rulemakings for test procedures. EPCA also
requires that DOE periodically consider amending test procedures for
ASHRAE equipment. At least once every 7 years, DOE shall conduct an
evaluation, and if DOE determines, that amended test procedures
would more accurately or fully comply with the requirements in 42
U.S.C. 6314(a)(2)-(3), it shall prescribe test procedures for the
applicable equipment. Otherwise, DOE shall
[[Page 24363]]
publish a notice of determination not to amend a test procedure.
* * * * *
[FR Doc. 2024-07114 Filed 4-5-24; 8:45 am]
BILLING CODE 6450-01-P