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, 35668-35689 [2021-14273]
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35668
Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules
energy conservation standards. DOE
actively encourages the participation
and interaction of the public during the
comment period in each stage of this
process. Interactions with and between
members of the public provide a
balanced discussion of the issues and
assist DOE in the process. Anyone who
wishes to be added to the DOE mailing
list to receive future notices and
information about this process should
contact Appliance and Equipment
Standards Program staff at (202) 287–
1445 or via email at
ApplianceStandardsQuestions@
ee.doe.gov.
Signing Authority
This document of the Department of
Energy was signed on June 29, 2021, by
Kelly Speakes-Backman, Principal
Deputy Assistant Secretary and Acting
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 June 30,
2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
[FR Doc. 2021–14338 Filed 7–6–21; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE–2021–BT–STD–0003]
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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
Office of Energy Efficiency and
Renewable Energy (EERE), Department
of Energy.
ACTION: Notice of proposed rulemaking
and request for comment.
AGENCY:
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The U.S. Department of
Energy (‘‘DOE’’ or the ‘‘Department’’)
proposed major revisions to the
Department’s ‘‘Procedures,
Interpretations, and Policies for
Consideration of New or Revised Energy
Conservation Standards and Test
Procedures for Consumer Products and
Certain Commercial/Industrial
Equipment’’ (‘‘Process Rule’’) in a notice
of proposed rulemaking that was
published on April 12, 2021. DOE
accepted comments on those proposed
revisions through May 27, 2021. In this
document, DOE proposes additional
revisions to the Process Rule and
requests comment on the proposals and
any potential alternatives. These
additional proposed revisions are
consistent with current DOE practice
and would remove unnecessary
obstacles to DOE’s ability to meet its
statutory obligations under the Energy
Policy and Conservation Act (‘‘EPCA’’).
DATES: Comments: DOE will accept
comments, data, and information
regarding all aspects of this notice of
proposed rulemaking on or before
August 23, 2021. DOE will hold a
webinar on Tuesday, August 10, 2021
from 11:00 a.m. to 4:00 p.m. See section
V, ‘‘Public Participation,’’ for webinar
registration information, participant
instructions, and information about the
capabilities available to webinar
participants.
ADDRESSES: Interested persons are
encouraged to submit comments using
the Federal eRulemaking Portal at
https://www.regulations.gov/docket/
EERE-2021-BT-STD-0003. Follow the
instructions for submitting comments.
Alternatively, interested persons may
submit comments by email to the
following address:
processrule2021STD0003@ee.doe.gov.
Include ‘‘2nd 2021 Process Rule NOPR’’
and docket number EERE–2021–BTD–
STD–0003 and/or RIN number 1904–
AF13 in the subject line of the message.
Submit electronic comments in
WordPerfect, Microsoft Word, PDF, or
ASCII file format, and avoid the use of
special characters or any form of
encryption.
Although DOE has routinely accepted
public comment submissions through a
variety of mechanisms, including postal
mail and hand delivery/courier, the
Department has found it necessary to
make temporary modifications to the
comment submission process in light of
the ongoing coronavirus disease 2019
(‘‘COVID–19’’) pandemic. DOE is
currently accepting only electronic
submissions at this time. If a commenter
finds that this change poses an undue
hardship, please contact Appliance
SUMMARY:
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Standards Program staff at (202) 586–
1445 to discuss the need for alternative
arrangements. Once the Covid–19
pandemic health emergency is resolved,
DOE anticipates resuming all of its
regular options for public comment
submission, including postal mail and
hand delivery/courier.
No telefacsimiles (faxes) will be
accepted. For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see section V (Public Participation) of
this document.
Docket: The docket for this
rulemaking, which includes Federal
Register notices, comments, and other
supporting documents/materials, is
available for review at https://
www.regulations.gov. All documents in
the docket are listed in the https://
www.regulations.gov index. This docket
also contains all comments and
rulemaking documents associated with
the notice of proposed rulemaking that
was published on April 12, 2021.
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:
https://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. John Cymbalsky, 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:
ApplianceStandardsQuestions@
ee.doe.gov.
Mr. Pete Cochran, U.S. Department of
Energy, Office of the General Counsel,
GC–33, 1000 Independence Avenue SW,
Washington, DC 20585–0121.
Telephone: (202) 586–9496. Email:
Peter.Cochran@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of Proposal
II. Authority and Background
A. Authority
B. Background
III. Discussion of Proposed Revisions to the
Process Rule
A. Coverage Determinations
B. Process for Developing Energy
Conservation Standards
C. Process for Developing Test Procedures
D. ASHRAE Equipment
E. Analytical Methodology
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
and 13563
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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
V. Public Participation
A. Participation in the Webinar
B. Procedure for Submitting Prepared
General Statements for Distribution
C. Conduct of the Webinar
D. Submission of Comments
VI. Approval of the Office of the Secretary
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I. Summary of Proposal
On February 14, 2020, the United
States Department of Energy (‘‘DOE’’ or
‘‘the Department’’) published a final
rule (‘‘February 2020 Final Rule’’) in the
Federal Register that made significant
revisions to 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’’ (‘‘Process Rule’’) found in
10 CFR part 430, subpart C, 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 trial
standard levels when determining
whether a particular trial standard level
was economically justified. See 85 FR
50937. These rules collectively modified
the Process Rule that DOE had
originally issued on July 15, 1996
(‘‘1996 Process Rule’’) into its current
form. See 61 FR 36974 and 10 CFR part
430, subpart C, appendix A (2021).
While the 1996 Process Rule
acknowledged that it would not be
applicable to every rulemaking and that
the circumstances of a particular
rulemaking should dictate application
of these generally applicable practices,1
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-fitsall approach, the February 2020 Final
Rule and the August 2020 Final Rule
also added additional steps to the
1 Id.
61 FR 36979.
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rulemaking process that are not required
by any applicable statute.
Subsequent events have caused DOE
to reconsider the merits of a one-sizefits-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.2 On November 9, 2020, a
coalition of States filed a virtually
identical lawsuit.3 In response to these
lawsuits, DOE has had to reconsider
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 1996
Process 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
1996 Process 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 meet its obligations and
deadlines under EPCA. Further, the
sooner new or amended energy
conservation standards eliminate lessefficient covered products and
equipment from the market, the greater
the resulting energy savings and
environmental benefits.
Second, on January 20, 2021, the
White House issued Executive Order
(‘‘E.O.’’) 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 the impacts of climate
change. 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
2 Natural Resources Defense Council v. DOE, Case
No. 20–cv–9127 (S.D.N.Y. 2020).
3 State of New York v. DOE, Case No. 20–cv–9362
(S.D.N.Y. 2020).
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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].’’ 86 FR 7037, 7041.
Agencies are 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. 86 FR 7037,
7041. 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. 86 FR 7037, 7037–
7038. Under this mandate, DOE is
directed to propose any major revisions
to these two rules by March 2021, with
any remaining revisions to be proposed
by June 2021. 86 FR 7037, 7038.
In light of these events, DOE has
identified several aspects of the
February 2020 and the August 2020
Final Rules (together, representing the
current Process Rule) that present
obstacles to DOE’s ability to meet its
obligations under EPCA. In accordance
with E.O. 13990, DOE proposed major
revisions to the current Process Rule in
a notice of proposed rulemaking (NOPR)
that was published on April 12, 2021
(‘‘April 2021 NOPR’’). 86 FR 18901. The
comment period on the April 2021
NOPR ended on May 27, 2021.
In this document, DOE proposes
additional revisions that would: Further
revise the process for coverage
determination rulemakings; provide
additional flexibility for DOE during the
pre-NOPR stages of energy conservation
standard and test procedure
rulemakings, while preserving
opportunities for stakeholders to
provide early input in the rulemaking
process; provide clarification on EPCA’s
rulemaking process for ASHRAE
equipment; and revise the sections on
DOE’s analytical methods to reflect
current rulemaking practices. These
revisions are summarized in the
following table. Note that for ease of use
and clarity, the proposed regulatory text
in this document contains both the
proposed regulatory text in the April
2021 NOPR and the new text being
proposed in this document. DOE is
currently only soliciting comments on
the new, additional regulatory text
proposed in this NOPR.
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LIST OF PROPOSED REVISIONS TO THE PROCESS RULE 4
Section
Proposed revisions from the April 2021 NOPR
1. Objectives .......................................................
Revise language to be consistent with the
newly proposed Section 3.
No revisions proposed .....................................
Replace with new Section 3, ‘‘Application of
the Process Rule’’.
No revisions proposed .....................................
Eliminate the 180-day period in paragraph (c)
between finalization of DOE test procedures
and issuance of a NOPR proposing new or
amended energy conservation standards.
2. Scope .............................................................
3. Mandatory Application of the Process Rule ...
4. Setting Priorities for Rulemaking Activity .......
5. Coverage Determination Rulemakings ..........
6. Process for Developing Energy Conservation
Standards.
Eliminate paragraph (b), ‘‘Significant Savings
of Energy’’.
7. Policies on Selection of Standards ................
Eliminate text in paragraph (e)(2)(i) requiring
DOE to conduct a comparative analysis
when determining whether a proposed
standard level is economically justified.
Clarify in paragraph (c) that DOE may revise
consensus industry test procedure standards for compliance, certification, and enforcement purposes; eliminate the 180-day
period in paragraph (d) between finalization
of DOE test procedures and issuance of a
NOPR proposing new or amended energy
conservation standards.
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8. Test Procedures .............................................
9. ASHRAE Equipment ......................................
No revisions proposed .....................................
10. Direct Final Rules .........................................
Revise section to clarify that DOE will implement its direct final rule authority on a caseby-case basis.
Eliminate section ..............................................
No revisions proposed .....................................
11. Negotiated Rulemaking Process ..................
12. Principles for Distinguishing Between Effective and Compliance Dates.
13. Principles for the Conduct of the Engineering Analysis.
14. Principles for the Analysis of Impacts on
Manufacturers.
15. Principles for the Analysis of Impacts on
Consumers.
16. Consideration of Non-Regulatory Approaches.
17. Cross-Cutting Analytical Assumptions .........
No revisions proposed .....................................
Eliminate incorrect cross reference .................
No revisions proposed .....................................
No revisions proposed .....................................
No revisions proposed .....................................
Proposed additional revisions in this
document
No revisions proposed.
No revisions proposed.
No revisions proposed.
No revisions proposed.
Proposed introductory text and revised paragraph (a) would eliminate the requirement
that a coverage determination rulemaking
begins with a notice of proposed determination and allow DOE to seek early stakeholder input through preliminary rulemaking
documents; revised paragraphs (b) and (c)
would eliminate the requirement that final
coverage determinations be published 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; revised paragraph
(d) would allow DOE to propose, if necessary, an amended coverage determination before proceeding with a test procedure or standards rulemaking.
Revised paragraph (a) would eliminate the requirement for a separate early assessment
request for information (‘‘RFI’’) and clarify
that DOE will issue one or more documents
during the pre-NOPR stage of a rulemaking; revised paragraphs (a) and (b)
would clarify public comment periods for
pre-NOPR and NOPR documents; revised
paragraph (a)(5) would reflect current DOE
rulemaking practice.
No revisions proposed.
Revised paragraph (a) would eliminate the requirement for a separate early assessment
request for information (‘‘RFI’’) and clarify
that DOE will issue one or more documents
during the pre-NOPR stage of a rulemaking; revised paragraphs (a) and (b)
would clarify public comment periods for
pre-NOPR and NOPR documents and
eliminate the requirement that DOE identify
necessary modifications to a test procedure
prior to initiating an associated energy conservation standard rulemaking.
Revise section to follow ASHRAE rulemaking
requirements in EPCA.
No revisions proposed.
No revisions proposed.
No revisions proposed.
Revise to reflect current DOE rulemaking
practice.
Revise to reflect current DOE rulemaking
practice.
Revise to reflect current DOE rulemaking
practice.
Revise to reflect current DOE rulemaking
practice.
Revise to reflect current DOE rulemaking
practice; move discussion of emissions
analysis into new section.
* As part of the proposed revisions, DOE will reorganize and renumber sections and subsections as required.
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II. Authority and Background
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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))
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:
4 These proposed revisions are separate from and
complementary to the revisions contained in DOE’s
proposed regulatory text from its April 2021 NOPR.
See 86 FR 18901, 18915–18921 (April 12, 2021).
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, § 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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(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. This effort involved
reaching out to many different
stakeholders, including manufacturers,
energy-efficiency advocates, trade
associations, State agencies, utilities,
and other interested parties for input.
The result was the publication of the
1996 Process Rule. 61 FR 36974. This
document was codified at 10 CFR part
430, subpart C, appendix A, and it
became known colloquially as the
‘‘Process Rule.’’ The goal of the Process
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 an
RFI on potential revisions to the Process
Rule. 82 FR 59992. DOE subsequently
published a NOPR regarding the Process
Rule in the Federal Register on
February 13, 2019. 84 FR 3910. DOE
held public meetings for both the RFI
and NOPR. After considering the
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comments it received, DOE then
published a final rule in the Federal
Register on February 14, 2020, which
significantly revised the Process Rule.
85 FR 8626.
While DOE issued the 1996 Process
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 as a
legislative rule subject to notice and
comment. For several reasons, as stated
throughout this document and in the
April 2021 NOPR, DOE believes the
Process Rule is best described and
utilized as generally applicable
guidance that may guide, but not bind,
the Department’s rulemaking process. In
accordance with E.O. 13990, DOE is
using a notice and comment process to
propose revisions to the Process Rule.
86 FR 7037.
III. Discussion of Proposed Revisions to
the Process Rule
The following sections discuss the
additional, proposed revisions to the
Process Rule and request comment on
those proposals. DOE is currently only
soliciting comments on the new,
additional revisions proposed in this
NOPR and is not soliciting comments on
the revisions proposed in the April 2021
NOPR. In addition to those specific
requests for comment, DOE requests
comment, data, and information
regarding all aspects of this notice of
proposed rulemaking.
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
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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commercial/industrial equipment and
consumer products.
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 previously, DOE is
reconsidering 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. (DOE is including a chart
to depict its proposed revised process
for energy conservation standards and
test procedure rulemakings, as
discussed in this document, in Docket
No. EERE–2021–BT–STD–0003.
Available at: https://
www.regulations.gov/docket/EERE2021-BT-STD-0003.) First, with respect
to the requirement that DOE initiate a
coverage determination rulemaking with
a notice of proposed determination,
DOE notes 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. For
instance, DOE 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. (42
U.S.C. 6292(b)) As such, 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. Based on the
information received, DOE may choose
not to proceed with a notice of proposed
determination. Accordingly, DOE
proposes that it may issue an RFI or
other pre-rule document prior to a
notice of proposed coverage
determination. DOE requests comments,
information, and data on whether its
proposed approach is appropriate or on
any suggested alternatives.
Second, regarding the requirements to
finalize coverage determinations prior to
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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 notes that coverage determination,
test procedure, and energy conservation
standard rulemakings are
interdependent. 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 standards 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, it is important that DOE be able
to initiate test procedure and energy
conservation standard rulemakings
while the Department conducts a
coverage determination rulemaking.
Accordingly, DOE proposes to eliminate
the requirement that coverage
determination rulemakings must be
finalized prior to initiation of a test
procedure or energy conservation
standard rulemaking. DOE requests
comments, information, and data on
whether its proposed approach is
appropriate or on any suggested
alternatives.
As for the requirement that a coverage
determination be finalized 180 days
prior to publication of a test procedure
NOPR, DOE notes 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. As discussed in the
April 2021 NOPR, 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 18901, 18908.
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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 proposes to eliminate
the requirement that coverage
determination rulemakings must be
finalized 180 days prior to publication
of a test procedure NOPR. DOE requests
comments, information, and data on
whether its proposed approach is
appropriate or on any suggested
alternatives. DOE notes that it will
continue to follow the requirements at
42 U.S.C. 6312(b) for coverage
determinations for commercial/
industrial equipment and at 42 U.S.C.
6292(b) for consumer products.
B. Process for Developing Energy
Conservation Standards
As part of the February 2020 Final
Rule, DOE made a number of changes to
section 6, Process for Developing Energy
Conservation Standards, of the Process
Rule, at least one of which has been
revisited in the April 2021 NOPR. Most
significantly, the February 2020 Final
Rule amended the Process Rule to
include a two-part test for determining
whether EPCA’s significant energy
savings threshold has been met (see
section 6(b) of the 2020 Process Rule
amendments). 85 FR 8626, 8655–8676,
8705. However, for the reasons
explained in the April 2021 NOPR, DOE
has proposed to revise the Process Rule
to eliminate the significant energy
savings threshold test and to return to
assessment of energy savings on a caseby-case basis. 86 FR 18901, 18905.
Although the aforementioned
provision represents the primary change
to the Process Rule regarding the
development of energy conservation
standards, DOE also adopted a number
of other standards-related provisions in
the February 2020 Final Rule, which are
outlined in the paragraphs that follow.
The Department has decided to revisit
these provisions in this document and
proposes further changes, as explained
subsequently.
First, in section 6(a) of the Process
Rule, the February 2020 Final Rule
included an early assessment process
for energy conservation standards. More
specifically, in section 6(a)(1) of the
Process Rule, DOE committed to
publishing a notice in the Federal
Register when it is considering
initiation of a rulemaking to establish or
amend any energy conservation
standard, in which the agency will
request submission of comments, data,
and information on whether DOE
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should proceed with such rulemaking,
including whether any new or amended
rule would be: (1) Cost-effective; (2)
economically justified; (3)
technologically feasible, or (4) would
result in a significant savings of energy.
Based upon available information, if
DOE determines that a new or amended
standard would not satisfy the
applicable statutory criteria, it will
publish a notice of proposed
determination to that effect in the
Federal Register for notice and
comment. Otherwise, section 6(a)(2) of
the Process Rule provides that DOE
would undertake the preliminary stages
of a rulemaking to issue or amend the
energy conservation standard,
proceeding with either a framework
document/preliminary analysis or an
advance notice of proposed rulemaking
(‘‘ANOPR’’). The Process Rule further
provides that RFIs and notices of data
availability (‘‘NODA’’) could be issued,
as appropriate, in addition to these
preliminary-stage documents. Finally,
in section 6(a)(3) of the Process Rule,
DOE clarifies that initiation of a
standards rulemaking does not
guarantee that standards will be issued,
because it could later be discovered that
the applicable statutory criteria
ultimately could not be satisfied. 85 FR
8626, 8704–8705.
Upon further consideration, DOE is
proposing to modify these provisions to
allow for a more expedited rulemaking
process in appropriate cases,
particularly in light of the significant
number of legal deadlines confronting
the Appliance Standards Program and
the anticipated benefits to the Nation of
the associated energy conservation
standards. Because interested parties are
free to raise the matter of the likelihood
of satisfying or not satisfying the
applicable statutory criteria needed for
adoption of a new or amended energy
conservation standard at any stage of the
rulemaking, DOE has tentatively
concluded that a separate rulemaking
document limited to only that topic (i.e.,
the early assessment RFI) may
unnecessarily delay the overall process
without appreciable benefit if used in
all cases. Consequently, DOE proposes
to remove the requirement for a separate
early assessment RFI for energy
conservation standards. Instead, DOE
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. DOE requests
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comments, information, and data on
whether its proposed approach is
appropriate or on any other suggested
alternatives.
Second, in section 6(e)(1) of the
Process Rule, the February 2020 Final
Rule clarified that if DOE determines it
appropriate to move forward with an
energy conservation standards
rulemaking after conducting an early
assessment, then the Department will
publish in the Federal Register either a
framework document with a subsequent
preliminary analysis or an ANOPR. That
same subsection provides that if DOE
finds, based upon the early assessment,
that one or more of the required
statutory criteria for setting an energy
conservation standard cannot be met,
then the Department will publish a
proposed determination to that effect in
the Federal Register for notice and
comment (which may lead to a final
determination, as appropriate). Section
6(e)(2) of the Process Rule provides that
the length of the public comment period
for pre-NOPR rulemaking documents
will vary depending upon the
circumstances of the particular
rulemaking, but will not be less than 75
calendar days, and it further provides
that DOE will determine whether a
public hearing is appropriate for such
documents. 85 FR 8626, 8705.
After further consideration, DOE
proposes to modify and clarify these
provisions as follows. As noted
previously, DOE is proposing to
eliminate the requirement for an energy
conservation standard early assessment
RFI, while maintaining the opportunity
for early public input through other
rulemaking documents as to whether
new or amended energy conservation
standards are warranted under the
applicable statutory criteria. The
Department has tentatively concluded
that one round of pre-NOPR input may
be sufficient in some cases. 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, DOE may
only need to issue an RFI or NODA to
update its 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
proposes to publish one or more
documents in the Federal Register
during the pre-NOPR stage of a
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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.
Additionally, DOE proposes to
remove the 75-day comment period
requirement for pre-NOPR energy
conservation standards documents, as it
is not compelled by EPCA or other
applicable law. Instead, for these preNOPR documents for which there is no
statutorily required comment period,
DOE would provide an appropriate
comment period,9 determined on a caseby-case basis, which is commensurate
with the nature and complexity of the
energy conservation standard at issue,
and will consider requests from the
public for extension of the comment
period to allow additional opportunities
for public input. Particularly given the
many legal deadlines the Department
faces for various appliance rulemakings,
DOE reasons that these proposed
changes would promote efficiency by
eliminating redundant requests for the
same information and otherwise
streamlining the rulemaking process. It
is DOE’s belief that these changes would
improve the efficiency of the Appliance
Standards Program without sacrificing
the quality of DOE’s analyses or the
opportunity for public input. Thus, for
the reasons stated, DOE proposes to
revise section 6(e) of the Process Rule to
reflect these changes. DOE requests
comments, information, and data on
whether its proposed approach is
appropriate or on any other suggested
alternatives. DOE also seeks comment
on whether these changes would affect
the quality of DOE’s analyses or
opportunities for public comment.
In section 6(g)(2) of the Process Rule,
the February 2020 Final Rule stated that
there would be a public comment
period of at least 75 days for an energy
conservation standards NOPR, with at
least one public hearing or workshop.
85 FR 8626, 8706.
After further consideration, DOE
proposes to modify the provision at
section 6(g)(2) as follows. DOE proposes
to remove the 75-day comment period
9 See, for example, Executive Order
12866(6)(a)(1): ‘‘Each agency shall (consistent with
its own rules, regulations, or procedures) provide
the public with meaningful participation in the
regulatory process. In particular, before issuing a
notice of proposed rulemaking, each agency should,
where appropriate, seek the involvement of those
who are intended to benefit from and those
expected to be burdened by any regulation
(including, specifically, State, local, and tribal
officials). In addition, each agency should afford the
public a meaningful opportunity to comment on
any proposed regulation, which in most cases
should include a comment period of not less than
60 days.’’
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requirement for energy conservation
standards NOPRs, replacing it with a 60day comment period as required by
EPCA. (42 U.S.C. 6295(p)(2); 42 U.S.C.
6316(a)) Although the Department
believes that 60 days offers an adequate
amount of time for comment in most
cases, DOE may extend the comment
period, as appropriate and on a case-bycase basis, commensurate with the
nature and complexity of the energy
conservation standard at issue. While
the 2020 Process Rule has not been in
effect for long enough to cause these
missed deadlines, for the reasons
discussed throughout, DOE has
tentatively concluded that this proposed
change would promote the efficiency of
the Appliance Standards Program by
streamlining the rulemaking process.
DOE requests comments, information,
and data on whether its proposed
approach is appropriate or on any other
suggested alternatives.
Finally, section 6(f)(4) of the current
Process Rule discusses factors to be
considered in selecting a proposed
standard. These provisions were not
modified in the February 2020 Final
Rule. DOE proposes to make minor
updates to these provisions (now in
proposed section 6(a)(5)(iv)) to reflect
current Departmental practice, which
has evolved in the decades since
development of the 1996 Process Rule.
The descriptions of the analyses
currently in sections 13–17 present the
procedures, interpretations, and policies
as set forth in the 1996 Process Rule. In
the years following that final rule,
DOE’s analyses have evolved and been
refined. DOE also notes that
stakeholders are afforded the
opportunity to comment on the specific
application of these analyses as part of
the individual product and equipment
rulemakings. The revisions proposed in
the following sections reflect the current
state of DOE’s analytical methodologies.
Specifically, DOE proposes and seeks
public comment on the following
proposed revisions:
• Impacts on manufacturers: Remove
specification of ‘‘private’’ in relation to
manufacturer impacts, change
assessment of impacts on plant closures
to impacts on employment, and clarify
that changes to capital investment may
not be negative.
• Private impacts on consumers:
Clarify that DOE typically uses regional
energy prices rather than national prices
and remove reference of sensitivity
analyses from this section as they
correctly apply to the national impacts
section.
• Impacts on utilities: Revise to
specify that this analysis considers
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utility generation and capacity rather
than costs and revenues.
• Impacts on the environment:
Remove reference to impacts on
pollution control costs, which DOE does
not consider.
Additional detail regarding these
proposed changes is provided in section
III.E of this NOPR.
C. Process for Developing Test
Procedures
As part of the February 2020 Final
Rule, DOE made a number of changes to
section 8, Test Procedures, of the
Process Rule, some of which have been
revisited in the April 2021 NOPR. First,
the February 2020 Final Rule amended
the Process Rule’s title to reflect DOE’s
long practice of including test procedure
rulemakings (as well as certain
commercial/industrial equipment)
within its scope, as the 1996 Process
Rule only explicitly referred to energy
conservation standards rulemakings for
consumer products. 85 FR 8626, 8703.
Although DOE has proposed in its April
2021 NOPR to once again make the
Process Rule nonbinding guidance for
the reasons explained in that document,
DOE has maintained the applicability of
the Process Rule to covered consumer
products and certain commercial/
industrial equipment, as well as to
energy conservation standards and test
procedures. 86 FR 18901, 18904–18905,
18915. The February 2020 Final Rule
also required DOE to finalize a test
procedure 180 days prior to publication
of a NOPR to prescribe new or amended
energy conservation standards, and it
set a presumption that the Department
would adopt applicable industry
consensus test procedures without
modification, unless such industry test
procedures do not meet the
requirements of EPCA. 85 FR 8626,
8676–8682, 8707–8708. However, in the
April 2021 NOPR, DOE proposed to
revise the Process Rule to eliminate the
mandatory 180-day spacing
requirement, and the Department also
proposed to clarify that DOE will only
adopt industry consensus test
procedures if they meet the
requirements of EPCA and that DOE
may also adopt industry test procedure
standards with modifications, or draft
its own procedures as necessary to
ensure compatibility with the relevant
statutory requirements, as well as DOE’s
compliance, certification, and
enforcement requirements. 86 FR 18901,
18906–18908, 18918–18919.
Although the aforementioned
provisions represent the primary
changes to the Process Rule test
procedure provisions, DOE also adopted
a small number of other test procedure-
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related provisions in the February 2020
Final Rule, which are outlined in the
paragraphs that follow. The Department
has decided to revisit these provisions
in this document and proposes further
changes, as explained subsequently.
First, in section 8(a) of the Process
Rule, the February 2020 Final Rule
included an early assessment process
for test procedures similar to that
adopted for energy conservation
standards. Consequently, DOE
committed to publishing a notice in the
Federal Register when it is considering
initiation of a rulemaking to amend a
test procedure, in which the agency will
request submission of comments, data,
and information on whether an
amended test procedure rule would: (1)
More accurately measure energy
efficiency, energy use, water use (as
specified in EPCA), or estimated annual
operating cost of a covered product
during a representative average use
cycle or period of use without being
unduly burdensome to conduct; or (2)
reduce testing burden. Based upon
available information, if DOE
determines that an amended test
procedure is not justified at that time, it
will publish a notice of proposed
determination to that effect in the
Federal Register for notice and
comment. Otherwise, DOE would
undertake the preliminary stages of a
rulemaking to amend the test procedure.
85 FR 8626, 8707–8708.
Upon further consideration, DOE is
proposing to modify this provision to
allow for a more expedited rulemaking
process in appropriate cases,
particularly in light of the significant
number of legal deadlines confronting
the Appliance Standards Program and
the anticipated benefits to the Nation of
the associated energy conservation
standards. 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 has 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 proposes to
remove the requirement for a separate
early assessment RFI for test procedures.
Instead, DOE 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 relevant
questions and gathering information
about other test procedure issues, such
as the applicability of any industry test
procedure, in the event that the
Department decides to proceed with a
test procedure rulemaking.
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Additionally, for these pre-NOPR
documents for which there is no
statutorily required comment period,
DOE proposes to clarify that the
Department would provide an
appropriate comment period for preNOPR documents, determined on a
case-by-case basis, which is
commensurate with the nature and
complexity of the test procedure
rulemaking at issue. DOE also proposes
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. 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 the USMCA is
consistent with EPCA’s public comment
period requirements and normally
requires a minimum comment period of
60 days for technical regulations, DOE
now proposes to provide a minimum
60-day public comment period for test
procedure NOPRs. DOE requests
comments, information, and data on
whether its proposed approach is
appropriate or on any other suggested
alternatives.
Second, in section 8(b) of the Process
Rule, the February 2020 Final Rule
contemplated further opportunities for
early public input if the Department
determines to move forward with the
test procedure rulemaking after
considering comments on the early
assessment RFI. Also, in that subsection,
the February 2020 Final Rule stated that
DOE will identify any necessary
modifications to established test
procedure prior to initiating the
standards development process. 85 FR
8626, 8708. After further consideration,
DOE proposes to modify and clarify
these provisions as follows. As noted
previously, DOE is proposing to
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eliminate the requirement for a test
procedure early assessment RFI, while
maintaining the opportunity for early
public input through other rulemaking
documents (potentially including RFIs)
as to whether test procedure
amendments are warranted under the
applicable statutory criteria. The
Department has tentatively concluded
that one round of pre-NOPR input may
be sufficient in some cases.
Furthermore, DOE would clarify that its
intention in section 8(b) was that
Department will identify all test
procedure modifications prior to issuing
a proposed standard for that appliance,
not to preclude the agency from
preparing other pre-rulemaking
standards documents, such as RFIs,
NODAs, and preliminary analyses. DOE
believes that such preliminary
standards-related work and data
gathering can commence in concert with
the test procedure proceeding, as long as
any anticipated test procedure changes
are identified and evaluated in time for
them to be factored into the energy
conservation standards proposal. It is
DOE’s belief that these changes would
improve the efficiency of the Appliance
Standards Program without sacrificing
the quality of DOE’s analyses or the
opportunity for public input. DOE
requests comments, information, and
data on whether its proposed approach
is appropriate or on any other suggested
alternatives. In addition, DOE seeks
comment on whether these changes
would affect the quality of DOE’s
analyses or opportunities for public
comment.
D. ASHRAE Equipment
In EPCA, Congress established a
separate and unique regulatory scheme
pertaining to DOE rulemaking 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 the Process Rule
specifically addressing ASHRAE
equipment for the first time.10 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 suggests that DOE’s
initial efforts to explain the applicable
10 The 1996 Process Rule final rule did not
address ASHRAE equipment specifically. 61 FR
36974 (July 15, 1996).
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ASHRAE requirements could be
improved, both in terms of better
delineating the process for energy
conservation standards/test procedures
and removing constraints that are
neither compelled by the statute nor
consistent with DOE’s historic practice,
and would impede DOE’s ability to
achieve EPCA’s energy conservation
purposes.
Consequently, DOE proposes to
reorganize and revise the ASHRAE
section of the Process Rule to focus on
the requirements in EPCA, to increase
clarity, and to be consistent with
longstanding DOE practices. As part of
this effort, DOE is proposing to remove
extraneous language relating to DOE’s
interpretations of the statute’s ASHRAE
provisions, because the Department has
found matters pertaining to scope,
triggering, and applicable statutory
criteria to typically involve nuances
most appropriately addressed in
individual ASHRAE rulemaking actions.
One such example would be an update
to the relevant ASHRAE standard that
specifies standard levels for a type of
covered equipment that previously was
not subject to standards, as was the case
with computer room air conditioners.
See 77 FR 28928 (May 16, 2012). In such
an instance, the application of EPCA’s
trigger provision is not the typical
scenario in which existing standard
levels for covered equipment are
updated. Such matters may not lend
themselves to a standardized approach
suitable for inclusion in the Process
Rule, but instead, are better addressed
on a case-by-case basis in the context of
the specific ASHRAE rulemaking in
question. In light of the above, DOE’s
proposed changes are discussed in the
paragraphs that follow.
First, DOE proposes to include
separate sections delineating the EPCA
requirements under two scenarios: (1)
ASHRAE action regarding standards and
test procedures (i.e., ‘‘ASHRAE trigger’’
under 42 U.S.C. 6313(a)(6)(A) and 42
U.S.C. 6314(a)(4)(A)–(B), respectively)
and (2) DOE’s obligation to periodically
review energy conservation standards
and test procedures for ASHRAE
equipment (i.e., 6-year-lookback or 7year-lookback under 42 U.S.C.
6313(a)(6)(C) and 42 U.S.C. 6314(a)(1),
respectively). It is expected that this
refinement would provide additional
clarity to stakeholders by more clearly
articulating the statutory scheme
regarding standards and test procedure
rulemakings for ASHRAE equipment.
Within the ASHRAE trigger section,
DOE proposes to further separate out the
statutory requirements for energy
conservation standards and test
procedures. In the current version of the
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Process Rule, EPCA’s timelines for
energy conservation standards were
erroneously applied to test procedures
as well. DOE wishes to make clear the
applicable statutory timelines
applicable to energy conservation
standard and test procedure
rulemakings in the Process Rule. DOE
also proposes 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
only considers 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 stringency of standard levels
or a new design requirement relative to
the current Federal standards. With
respect to test procedures, DOE only
considers 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. This approach
is consistent with the ASHRAE-specific
provisions in EPCA and generally
consistent with past DOE practice. DOE
notes in the past that it has treated an
update to the industry test procedure
standard referenced by ASHRAE
Standard 90.1 as a trigger. See e.g., 77
FR 2356, 2358 (Jan. 17, 2012). DOE
proposes to only consider an update to
ASHRAE Standard 90.1 that modifies
the referenced industry test procedure
to be a trigger under the statute. This
approach is consistent with EPCA and
provides certainty to the public
regarding when DOE is required to
consider updating test procedures for
ASHRAE equipment. Finally, DOE notes
that ASHRAE reviewing and reaffirming
(i.e., not amending) 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.
Under the ASHRAE trigger for test
procedures (42 U.S.C. 6314(a)(4)), when
ASHRAE Standard 90.1 is amended, the
statute requires DOE to amend the
Federal test procedure to be consistent
with the updated version of Standard
90.1, unless the Department determines,
by rule, published in the Federal
Register and supported by clear and
convincing evidence, that the amended
industry test standard would not be
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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. 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.
Further, DOE notes that the statutory
language ‘‘consistent with’’ itself
provides some flexibility in adopting
the amended industry test procedure.
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.
In addition, DOE proposes 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
selection of models for testing under an
industry certification program,
verification of represented values and
the associated tolerances, and
operational requirements need not be
referenced or aligned with by DOE).
These proposals are consistent with the
Department’s longstanding historic
practice.
DOE proposes 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 morestringent standard than the ASHRAE
standard or a different test procedure
are laid out in the statute. For example,
DOE will issue a more-stringent
standard than the ASHRAE standard if
DOE determines, supported by clear and
convincing evidence, that the morestringent 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
proposes to remove this description of
the circumstances under which DOE
will not adopt the amended ASHRAE
standard or industry test procedure.
In addition, DOE proposes to remove
the discussion of what constitutes clear
and convincing evidence. 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
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8626, 8642 (discussing in detail
application of the ‘‘clear and
convincing’’ evidentiary standard by
courts and legal commentators). DOE
does not believe the elaboration
contained in the current paragraph adds
value to the EPCA language already
referenced in this section or to the
established case law pertaining to the
standard of review for clear and
convincing evidence.
DOE also proposes 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. This
statement does not have any effect on
DOE’s rulemaking obligations under the
ASHRAE provisions in EPCA. As
discussed previously, DOE initiates an
ASHRAE rulemaking because: (1)
Standard 90.1 is amended to include
more-stringent standards or a new
design requirement; or (2) EPCA
requires DOE to evaluate each class of
covered equipment every 6 years.
Neither of these situations would be
affected by a decision by ASHRAE to
reaffirm an existing standard.
Finally, DOE also proposes to make
two clarifications regarding its ASHRAE
review process, which are consistent
with longstanding DOE practice. First,
in an ASHRAE trigger analysis, DOE
will assess 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 morestringent standards as compared to the
ASHRAE Standard 90.1 levels. DOE
notes that the analysis period differs for
these assessments, as EPCA specifies
different compliance dates for adopting
levels in ASHRAE as opposed to
adopting more-stringent levels. And,
second, DOE notes that under an
ASHRAE trigger, it may review all
metrics for the equipment category,
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 may also consider changing
metrics during a 6-year-lookback or 7year-lookback review. DOE believes this
is consistent with EPCA’s requirement
that test procedures (and metrics) be
representative of an average use cycle.
DOE requests comments, information,
and data on whether its proposed
approaches to ASHRAE standards and
test procedure rulemakings are
appropriate or on any other suggested
alternatives.
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E. Analytical Methodology
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
1996 Process Rule. Subsequently, DOE
engaged with the National Academy of
Sciences (‘‘NAS’’) to review DOE’s
analytical methodologies to ascertain
whether modifications are needed to
improve the Department’s analyses.
That review process is still ongoing.
Upon further reconsideration, DOE
believes that it is important to revise the
analytical sections in the Process Rule
to better reflect Departmental practice.
The descriptions of the analyses
currently in sections 13–17 present the
procedures, interpretations, and policies
as set forth in the 1996 Process Rule. In
the years following that final rule,
DOE’s analyses have evolved and been
refined. The revisions proposed in the
following sections reflect the current
state of DOE’s analytical methodologies.
If DOE 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.
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1. New Section 12 Principles for the
Conduct of the Engineering Analysis
DOE proposes to update the
description of the analysis to more
comprehensively describe the various
approaches DOE takes in developing
cost-efficiency relationships.
Specifically, DOE proposes to
reorganize the discussion to clearly
describe the two key aspects of the
engineering analysis: The efficiency
analysis (i.e., identifying the efficiency
levels for analysis) and the cost analysis
(i.e., estimating the costs at each
analyzed efficiency level).
In particular, DOE typically uses one
of two approaches to develop energy
efficiency levels for the engineering
analysis: (1) Relying on observed
efficiency levels in the market (i.e., the
efficiency-level approach), or (2)
determining the incremental efficiency
improvements associated with
incorporating specific design options to
a baseline model (i.e., the design-option
approach).
DOE typically uses one or a
combination of approaches to conduct
the cost analysis, including (1) physical
teardowns (i.e., physically dismantling a
commercially available product/
equipment model, component-by-
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component, to develop a detailed bill of
materials for the model); (2) catalog
teardowns (i.e., identifying each
component using parts diagrams
available from manufacturer websites or
appliance repair websites, in lieu of
physically deconstructing the product/
equipment, to develop the bill of
materials for the product/equipment);
and/or (3) price surveys (i.e., deriving
costs using publicly available pricing
data published on major online retailer
websites and/or by soliciting prices
from distributors and other commercial
channels). The choice of approach
depends on a suite of factors, including
the availability and reliability of public
information, characteristics of the
subject product/equipment, and the
availability and timeliness of
purchasing the product/equipment on
the market.
2. New Section 13 Principles for the
Analysis of Impacts on Manufacturers
In the preamble to the July 1996
Process Rule, the Department of Energy
committed to a detailed review of the
existing manufacturer impact analysis
methodologies. 61 FR 36974, 36979.
During a series of public consultations
in 1997, the Department presented a
draft work plan for the development of
new methods for assessing manufacturer
impacts and invited comments and
suggestions from interested parties. See
62 FR 8189 (Feb. 24, 1997). The
Department implemented its revised
Manufacturer Impact Analysis
methodologies for final rules issued
subsequently. DOE proposes to update
the Process Rule to align with the
manufacturer impact analysis
methodologies that are the result of the
1997 process and subsequent
stakeholder input. DOE proposes to
clarify the process used to evaluate
manufacturers impacts and expands the
guidance on the methodologies used to
solicit stakeholder input. The updates
include:
• Acknowledgement of the
manufacturer interview process. DOE
adds language to reflect a critical tool
used as part of the current process,
wherein manufacturer specific data and
information are used to develop and
validate key inputs for the manufacturer
impact analysis.
• Added detail on use of the
Government Regulatory Impact Model
(GRIM). The 1996 and 2020 Process
Rules make mention of the GRIM
without explanation of the model. DOE
adds language on the structure,
underlying principles, and outputs of
the model.
• Differentiation between types of
cost impacts. To better reflect the
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current process, DOE expands
discussion about the types of
manufacturer cost impacts considered
in the analysis.
• Clarification on the treatment of
manufacturer subgroups. To be
consistent with the current process,
DOE adds criteria on the evaluation of
subgroups of manufacturers that may be
disproportionately impacted by
standards or that may not be accurately
represented by the average cost
assumptions.
• Consideration of competitive
impacts, as required by EPCA. To be
consistent with the current process and
with EPCA, DOE adds criteria to
consider any lessening of competition
that is likely to result from imposition
of standards and clarifies how the
Department will coordinate with the
Department of Justice.
• Inclusion of stakeholder concerns
related to manufacturing capacity and
direct employment impacts. To be
consistent with the current process,
DOE highlights criteria related to
manufacturing capacity and direct
employment impacts that the
Department considers in its assessment
of impacts on manufacturers.
3. New Section 14 Principles for the
Analysis of Impacts on Consumers
DOE proposes minor changes to the
discussion of analytical principles
related to consumer impacts. These
changes reflect the analytical
methodologies that are the result of
several iterations of stakeholder input
and regulatory review, advances in data
availability, and advances in analytical
techniques in the academic literature. In
particular, DOE proposes the following
changes: (1) Clarifications regarding the
use of analytical input distributions in
order to establish representative
consumer samples and evaluate the
range of potential impacts. These
changes help to differentiate variation in
consumer impacts captured in the LifeCycle Cost (LCC) analysis from
additional sensitivity or scenario
analyses used for data or assumptions
subject to a higher degree of uncertainty;
(2) clarifications to differentiate the LCC
analysis from the consumer subgroup
analysis, the latter of which considers
impacts on subgroups of consumers
who may be disproportionately
impacted by a potential standard; (3)
removal of discussion of magnitude of
first cost and length of payback period
triggering additional assessments, as
those assessments are always made
when relevant to a given products; and
(4) the addition of a discussion on
consumer discount rates, found in
section 17 of the current Process Rule.
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The revised discussion reflects DOE’s
established practice of calculating
weighted discount rates based on debt
and equity holdings for both residential
and commercial/industrial consumers,
for the purposes of the LCC analysis.
4. New Section 15 Consideration of
Non-Regulatory Approaches
DOE proposes to simplify the text to
reflect its current practice and to clarify
the data available for use in DOE’s
analyses. Specifically, the proposed
revisions clarify that DOE’s established
practice is to compare non-regulatory
initiatives relative to candidate/trial
standard levels rather than considering
their individual impacts. In addition,
the proposed revisions clarify that DOE
bases its assessment on the actual
impacts of existing non-regulatory
initiatives, and does not typically
speculate on potential future nonregulatory initiatives or initiatives that
have not yet been implemented. Finally,
DOE proposes to eliminate reference to
assessing appropriate compliance dates,
as these are nearly always statutorily
defined.
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5. New Section 16 Cross-Cutting
Analytical Assumptions
DOE proposes minor updates to
reflect DOE’s long-standing analytical
practice. In particular, DOE proposes
the following clarifications: (1) DOE will
continue to utilize a 30-year analysis
period along with a 9-year sensitivity
analysis, but DOE no longer analyzes a
time length specific to each product; (2)
energy-efficiency trends will be based
on the best available historical market
data (which may or may not be based on
NEMS); (3) analyses will generally
adopt the reference energy price
scenario of EIA’s most current Annual
Energy Outlook (while demand is not
typically considered); and (4) the
discount rates used in determining
national costs and benefits (formerly
referred to as social discount rates) are
in accordance with the Office of
Management and Budget (OMB)’s
guidance to Federal agencies on
developing regulatory analyses (OMB
Circular A–4, September 17, 2003, and
section E., ‘‘Identifying and Measuring
Benefits and Costs,’’ therein).
6. New Section 17 Emissions Analysis
DOE also proposes a new section 17
discussing the Department’s emissions
analysis that is based on text that is
currently part of section 17, CrossCutting Analytical Assumptions. The
proposed updates clarify that DOE will
estimate emissions reductions of
greenhouse gases and pollutants likely
to result from candidate/trial standard
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levels following best practices at the
time. These emissions reductions will
potentially include the effect on electric
power sector and site combustion
emissions, as well as on ‘‘upstream
activities’’ in the fuel production chain.
The proposed updates also clarify that
estimation of the monetary value of the
avoided greenhouse gas emissions, as
well as those of other air pollutants, will
be based on best practices at the time,
for example, by using accepted benefitper-ton values from the scientific
literature.
IV. Procedural Issues and Regulatory
Review
A. Review Under Executive Orders
12866 and 13563
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
proposed 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
proposed regulatory action are
procedural changes designed to improve
DOE’s ability to meet its rulemaking
obligations and deadlines under EPCA.
These proposed revisions would not
impose any regulatory costs or burdens
on stakeholders, nor would they limit
public participation in DOE’s
rulemaking process. Instead, these
proposed 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.
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 currently facing two
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lawsuits that allege DOE has failed to
meet rulemaking deadlines for 25
different consumer products and
commercial equipment.
In order to meet these rulemaking
deadlines, DOE cannot afford the
inefficiencies that come with a one-sizefits-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 proposed 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 proposed 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
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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: https://
www.energy.gov/gc/office-generalcounsel.
This proposed rule details generally
applicable guidance that may guide, but
not bind, the Department’s rulemaking
process. The proposed revisions 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 proposed 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 proposed
rule will not have a significant
economic impact on a substantial
number of small entities, and, therefore,
no initial 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
proposed 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
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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 proposed rule,
addressing clarifications to the Process
Rule itself, does not contain any
collection of information requirement
that would trigger the PRA.
D. Review Under the National
Environmental Policy Act of 1969
DOE is analyzing this proposed
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 A5. DOE’s
regulations include a categorical
exclusion for rulemakings that are
strictly procedural. 10 CFR part 1021,
subpart D, appendix A6. DOE
anticipates 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. DOE will
complete its NEPA review before
issuing the final rule.
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
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35679
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 proposed 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)
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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, the proposed
rule meets the relevant standards of
Executive Order 12988.
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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
proposed 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
https://www.energy.gov/gc/officegeneral-counsel under ‘‘Guidance &
Opinions’’ (Rulemaking)) DOE
examined the proposed 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.
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H. Review Under the Treasury and
General Government Appropriations
Act, 1999
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
that may affect family well-being. This
proposed rule would not have any
impact on the autonomy or integrity of
the family as an institution.
Accordingly, DOE has concluded that it
is not necessary to prepare a Family
Policymaking Assessment.
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 proposed
rule would not result in any takings that
might require compensation under the
Fifth Amendment to the U.S.
Constitution.
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 proposed 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
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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 tentatively 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 proposed 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
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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. The results from
that review are expected later in 2021.
V. Public Participation
A. Participation in the Webinar
The time and date of the webinar are
listed in the DATES section at the
beginning of this document. If no
participants register for the webinar, it
will be cancelled. Webinar registration
information, participant instructions,
and information about the capabilities
available to webinar participants will be
published on DOE’s website: https://
www.energy.gov/eere/buildings/processrule. Participants are responsible for
ensuring their systems are compatible
with the webinar software.
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B. Procedure for Submitting Prepared
General Statements for Distribution
Any person who has an interest in the
topics addressed in this proposed
rulemaking, or who is representative of
a group or class of persons that has an
interest in these issues, may request an
opportunity to make an oral
presentation at the webinar. Such
persons may submit requests to speak
by email to the Appliance and
Equipment Standards Program,
ApplianceStandardsQuestions@
ee.doe.gov. Persons who wish to speak
should include with their request a
computer file in WordPerfect, Microsoft
Word, PDF, or text (ASCII) file format
that briefly describes the nature of their
interest in this rulemaking and the
topics they wish to discuss. Such
persons should also provide a daytime
telephone number where they can be
reached.
Persons requesting to speak should
briefly describe the nature of their
interest in this rulemaking and provide
a telephone number for contact. DOE
requests persons selected to make an
oral presentation to submit an advance
copy of their statements at least two
weeks before the webinar. At its
discretion, DOE may permit persons
who cannot supply an advance copy of
their statement to participate, if those
persons have made advance alternative
arrangements with the Building
Technologies Office. As necessary,
requests to give an oral presentation
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should ask for such alternative
arrangements.
C. Conduct of the Webinar
DOE will designate a DOE official to
preside at the webinar and may also use
a professional facilitator to aid
discussion. The meeting will not be a
judicial or evidentiary-type public
hearing, but DOE will conduct it in
accordance with section 336 of EPCA
(42 U.S.C. 6306). A court reporter will
be present to record the proceedings and
prepare a transcript. DOE reserves the
right to schedule the order of
presentations and to establish the
procedures governing the conduct of the
webinar. There shall not be discussion
of proprietary information, costs or
prices, market share, or other
commercial matters regulated by U.S.
anti-trust laws. After the webinar and
until the end of the comment period,
interested parties may submit further
comments on the proceedings and any
aspect of the rulemaking.
The webinar will be conducted in an
informal, conference style. DOE will
present summaries of comments
received before the webinar, allow time
for prepared general statements by
participants, and encourage all
interested parties to share their views on
issues affecting this rulemaking. Each
participant will be allowed to make a
general statement (within time limits
determined by DOE), before the
discussion of specific topics. DOE will
permit, as time permits, other
participants to comment briefly on any
general statements.
At the end of all prepared statements
on a topic, DOE will permit participants
to clarify their statements briefly and
comment on statements made by others.
Participants should be prepared to
answer questions by DOE and by other
participants concerning these issues.
DOE representatives may also ask
questions of participants concerning
other matters relevant to this
rulemaking. The official conducting the
webinar will accept additional
comments or questions from those
attending, as time permits. The
presiding official will announce any
further procedural rules or modification
of the above procedures that may be
needed for the proper conduct of the
webinar.
A transcript of the webinar will be
included in the docket, which can be
viewed as described in the Docket
section at the beginning of this NOPR.
In addition, any person may buy a copy
of the transcript from the transcribing
reporter.
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D. Submission of Comments
DOE will accept comments, data, and
information regarding this proposed
rule no later than the date provided in
the DATES section at the beginning of
this proposed rule. Interested parties
may submit comments using any of the
methods described in the ADDRESSES
section at the beginning of this
document.
Submitting comments via https://
www.regulations.gov. The https://
www.regulations.gov web page will
require you to provide your name and
contact information. Your contact
information will be viewable to DOE
Building Technologies staff only. Your
contact information will not be publicly
viewable except for your first and last
names, organization name (if any), and
submitter representative name (if any).
If your comment is not processed
properly because of technical
difficulties, DOE will use this
information to contact you. If DOE
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, DOE may not be
able to consider your comment.
However, your contact information
will be publicly viewable if you include
it in the comment or in any documents
attached to your comment. Any
information that you do not want to be
publicly viewable should not be
included in your comment, nor in any
document attached to your comment.
Persons viewing comments will see only
first and last names, organization
names, correspondence containing
comments, and any documents
submitted with the comments.
Do not submit to https://
www.regulations.gov information for
which disclosure is restricted by statute,
such as trade secrets and commercial or
financial information (hereinafter
referred to as Confidential Business
Information (CBI)). Comments
submitted through https://
www.regulations.gov cannot be claimed
as CBI. Comments received through the
website will waive any CBI claims for
the information submitted. For
information on submitting CBI, see the
Confidential Business Information
section.
DOE processes submissions made
through https://www.regulations.gov
before posting. Normally, comments
will be posted within a few days of
being submitted. However, if large
volumes of comments are being
processed simultaneously, your
comment may not be viewable for up to
several weeks. Please keep the comment
tracking number that https://
www.regulations.gov provides after you
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have successfully uploaded your
comment.
Submitting comments via email.
Comments and documents submitted
via email also will be posted to https://
www.regulations.gov. If you do not want
your personal contact information to be
publicly viewable, do not include it in
your comment or any accompanying
documents. Instead, provide your
contact information in a cover letter.
Include your first and last names, email
address, telephone number, and
optional mailing address. The cover
letter will not be publicly viewable as
long as it does not include any
comments.
Include contact information each time
you submit comments, data, documents,
and other information to DOE. No
telefacsimiles (faxes) will be accepted.
Comments, data, and other
information submitted to DOE
electronically should be provided in
PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file
format. Provide documents that are not
secured, written in English, and free of
any defects or viruses. Documents
should not contain special characters or
any form of encryption, and, if possible,
they should carry the electronic
signature of the author.
Campaign form letters. Please submit
campaign form letters by the originating
organization in batches of between 50 to
500 form letters per PDF or as one form
letter with a list of supporters’ names
compiled into one or more PDFs. This
reduces comment processing and
posting time.
Confidential Business Information.
Pursuant to 10 CFR 1004.11, any person
submitting information that he or she
believes to be confidential and exempt
by law from public disclosure should
submit via email two well-marked
copies: One copy of the document
marked ‘‘confidential’’ including all the
information believed to be confidential,
and one copy of the document marked
‘‘non-confidential’’ with the information
believed to be confidential deleted. DOE
will make its own determination about
the confidential status of the
information and treat it according to its
determination.
It is DOE’s policy that all comments
may be included in the public docket,
without change and as received,
including any personal information
provided in the comments (except
information deemed to be exempt from
public disclosure).
VI. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of this proposed rule.
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List of Subjects in 10 CFR Part 430
Administrative practice and
procedure, Confidential business
information, Energy conservation,
Household appliances, Imports,
Incorporation by reference,
Intergovernmental relations, Small
businesses, Test procedures.
Signing Authority
This document of the Department of
Energy was signed on June 29, 2021, by
Kelly Speakes-Backman, Principal
Deputy Assistant Secretary and Acting
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 June 30,
2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
For the reasons stated in the
preamble, DOE proposes to amend part
430 of title 10 of the Code of Federal
Regulations as set forth below:
PART 430—ENERGY CONSERVATION
PROGRAM FOR CONSUMER
PRODUCTS
1. The authority citation for part 430
continues to read as follows:
■
Authority: 42 U.S.C. 6291–6309; 28 U.S.C.
2461 note.
2. Appendix A to subpart C of part
430 is revised 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
1. Objectives
2. Scope
3. Application of the Process Rule
4. Setting Priorities for Rulemaking Activity
5. Coverage Determination Rulemakings
6. Process for Developing Energy
Conservation Standards
7. Policies on Selection of Standards
8. Test Procedures
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9. ASHRAE Equipment
10. Direct Final Rules
11. Principles for Distinguishing Between
Effective and Compliance Dates
12. Principles for the Conduct of the
Engineering Analysis
13. Principles for the Analysis of Impacts on
Manufacturers
14. Principles for the Analysis of Impacts on
Consumers
15. Consideration of Non-Regulatory
Approaches
16. Cross-Cutting Analytical Assumptions
17. Emissions Analysis
1. Objectives
This appendix establishes procedures,
interpretations, and policies to guide the
Department of Energy (‘‘DOE’’ or the
‘‘Department’’) in the consideration and
promulgation of new or revised appliance
energy conservation standards and test
procedures under the Energy Policy and
Conservation Act (EPCA). This appendix
applies to both covered consumer products
and covered commercial/industrial
equipment. The Department’s objectives in
establishing these procedures include:
(a) Provide for early input from
stakeholders. The Department seeks to
provide opportunities for public input early
in the rulemaking process so that the
initiation and direction of rulemakings is
informed by comment from interested
parties. DOE will be able to seek early input
from interested parties in determining
whether establishing new or amending
existing energy conservation standards will
result in significant savings of energy and is
economically justified and technologically
feasible. In the context of test procedure
rulemakings, DOE will be able to seek early
input from interested parties in determining
whether—
(1) Establishing a new or amending an
existing test procedure will better measure
the energy efficiency, energy use, water use
(as specified in EPCA), or estimated annual
operating cost of a covered product/
equipment during a representative average
use cycle or period of use (for consumer
products); and
(2) Will not be unduly burdensome to
conduct.
(b) Increase predictability of the
rulemaking timetable. The Department seeks
to make informed, strategic decisions about
how to deploy its resources on the range of
possible standards and test procedure
development activities, and to announce
these prioritization decisions so that all
interested parties have a common
expectation about the timing of different
rulemaking activities. Further, DOE will offer
the opportunity to provide input on the
prioritization of rulemakings through a
request for comment as DOE begins
preparation of its Regulatory Agenda each
spring.
(c) Eliminate problematic design options
early in the process. The Department seeks to
eliminate from consideration, early in the
process, any design options that present
unacceptable problems with respect to
manufacturability, consumer utility, or
safety, so that the detailed analysis can focus
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only on viable design options. DOE will be
able to eliminate from consideration design
options if it concludes that manufacture,
installation or service of the design will be
impractical, or that the design option will
have a material adverse impact on the utility
of the product, or if the design option will
have a material adverse impact on safety or
health. DOE will also be able to eliminate
from consideration proprietary design
options that represent a unique pathway to
achieving a given efficiency level. This
screening will be done at the outset of a
rulemaking.
(d) Fully consider non-regulatory
approaches. The Department seeks to
understand the effects of market forces and
voluntary programs on encouraging the
purchase of energy efficient products so that
the incremental impacts of a new or revised
standard can be accurately assessed and the
Department can make informed decisions
about where standards and voluntary
programs can be used most effectively. DOE
will continue to be able to support voluntary
efforts by manufacturers, retailers, utilities,
and others to increase product/equipment
efficiency.
(e) Conduct thorough analysis of impacts.
In addition to understanding the aggregate
social and private costs and benefits of
standards, the Department seeks to
understand the distribution of those costs
and benefits among consumers,
manufacturers, and others, as well as the
uncertainty associated with these analyses of
costs and benefits, so that any adverse
impacts on subgroups and uncertainty
concerning any adverse impacts can be fully
considered in selecting a standard. DOE will
be able to consider the variability of impacts
on significant groups of manufacturers and
consumers in addition to aggregate social and
private costs and benefits, report the range of
uncertainty associated with these impacts,
and take into account cumulative impacts of
regulation on manufacturers. The Department
will also be able to conduct appropriate
analyses to assess the impact that new or
amended test procedures will have on
manufacturers and consumers.
(f) Use transparent and robust analytical
methods. The Department seeks to use
qualitative and quantitative analytical
methods that are fully documented for the
public and that produce results that can be
explained and reproduced, so that the
analytical underpinnings for policy decisions
on standards are as sound and well-accepted
as possible.
(g) Support efforts to build consensus on
standards. The Department seeks to
encourage development of consensus
proposals for new or revised standards
because standards with such broad-based
support are likely to balance effectively the
various interests affected by such standards.
2. Scope
The procedures, interpretations, and
policies described in this appendix apply to
rulemakings concerning new or revised
Federal energy conservation standards and
test procedures, and related rule documents
(i.e., coverage determinations) for consumer
products in Part A and commercial and
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industrial equipment under Part A–1 of the
Energy Policy and Conservation Act (EPCA),
as amended, except covered ASHRAE
equipment in Part A–1 are governed
separately under section 9 in this appendix.
3. Application of the Process Rule
(a) This appendix contains procedures,
interpretations, and policies that are
generally applicable to the development of
energy conservation standards and test
procedures. The Department may, as
necessary, deviate from this appendix to
account for the specific circumstances of a
particular rulemaking.
(b) This appendix is not intended to, and
does not, create any right or benefit,
substantive or procedural, enforceable at law
or in equity.
4. Setting Priorities for Rulemaking Activity
(a) In establishing its priorities for
undertaking energy conservation standards
and test procedure rulemakings, DOE will
consider the following factors, consistent
with applicable legal obligations:
(1) Potential energy savings;
(2) Potential social and private, including
environmental or energy security, benefits;
(3) Applicable deadlines for rulemakings;
(4) Incremental DOE resources required to
complete the rulemaking process;
(5) Other relevant regulatory actions
affecting the products/equipment;
(6) Stakeholder recommendations;
(7) Evidence of energy efficiency gains in
the market absent new or revised standards;
(8) Status of required changes to test
procedures; and
(9) Other relevant factors.
(b) DOE will offer the opportunity to
provide input on prioritization of
rulemakings through a request for comment
as DOE begins preparation of its Regulatory
Agenda each spring.
5. Coverage Determination Rulemakings
DOE has discretion to conduct proceedings
to determine whether additional consumer
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
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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 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
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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
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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
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
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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.
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(6) Public comment and hearing. The
length of the public comment period for preNOPR 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
https://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.
7. Policies on Selection of Standards
(a) Purpose. (1) Section 6 describes the
process that will be used to consider new or
revised energy efficiency standards and lists
a number of factors and analyses that will be
considered at specified points in the process.
Department policies concerning the selection
of new or revised standards, and decisions
preliminary thereto, are described in this
section. These policies are intended to
elaborate on the statutory criteria provided in
42 U.S.C. 6295.
(2) The procedures described in this
section are intended to assist the Department
in making the determinations required by
EPCA and do not preclude DOE’s
consideration of any other information
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consistent with the relevant statutory criteria.
The Department will consider pertinent
information in determining whether a new or
revised standard is consistent with the
statutory criteria.
(b) Screening design options. These factors
will be considered as follows in determining
whether a design option will receive any
further consideration:
(1) Technological feasibility. Technologies
that are not incorporated in commercial
products or in commercially viable, existing
prototypes will not be considered further.
(2) Practicability to manufacture, install
and service. If it is determined that mass
production of a technology in commercial
products and reliable installation and
servicing of the technology could not be
achieved on the scale necessary to serve the
relevant market at the time of the compliance
date of the standard, then that technology
will not be considered further.
(3) Impacts on product utility. If a
technology is determined to have significant
adverse impact on the utility of the product/
equipment to subgroups of consumers, or
result in the unavailability of any covered
product type with performance
characteristics (including reliability),
features, sizes, capacities, and volumes that
are substantially the same as products
generally available in the U.S. at the time, it
will not be considered further.
(4) Safety of technologies. If it is
determined that a technology will have
significant adverse impacts on health or
safety, it will not be considered further.
(5) Unique-pathway proprietary
technologies. If a technology has proprietary
protection and represents a unique pathway
to achieving a given efficiency level, it will
not be considered further, due to the
potential for monopolistic concerns.
(c) Identification of candidate standard
levels. Based on the results of the engineering
and cost/benefit analyses of design options,
DOE will identify the candidate standard
levels for further analysis. Candidate
standard levels will be selected as follows:
(1) Costs and savings of design options.
Design options that have payback periods
that exceed the median life of the product or
which result in life-cycle cost increases
relative to the base case, using typical fuel
costs, usage, and private discount rates, will
not be used as the basis for candidate
standard levels.
(2) Further information on factors used for
screening design options. If further
information or analysis leads to a
determination that a design option, or a
combination of design options, has
unacceptable impacts under the policies
stated in this Appendix, that design option
or combination of design options will not be
included in a candidate standard level.
(3) Selection of candidate standard levels.
Candidate standard levels, which will be
identified in the pre-NOPR documents and
on which impact analyses will be conducted,
will be based on the remaining design
options.
(i) The range of candidate standard levels
will typically include:
(A) The most energy-efficient combination
of design options;
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(B) The combination of design options with
the lowest life-cycle cost; and
(C) A combination of design options with
a payback period of not more than three
years.
(ii) Candidate standard levels that
incorporate noteworthy technologies or fill in
large gaps between efficiency levels of other
candidate standard levels also may be
selected.
(d) Pre-NOPR Stage. New information
provided in public comments on any preNOPR documents will be considered to
determine whether any changes to the
candidate standard levels are needed before
proceeding to the analysis of impacts.
(e)(1) Selection of proposed standard.
Based on the results of the analysis of
impacts, DOE will select a standard level to
be proposed for public comment in the
NOPR. As required under 42 U.S.C.
6295(o)(2)(A), any new or revised standard
must be designed to achieve the maximum
improvement in energy efficiency that is
determined to be both technologically
feasible and economically justified.
(2) Statutory policies. The fundamental
policies concerning the selection of standards
include:
(i) A trial standard level will not be
proposed or promulgated if the Department
determines that it is not both technologically
feasible and economically justified. (42
U.S.C. 6295(o)(2)(A) and 42 U.S.C.
6295(o)(3)(B)) For a trial standard level to be
economically justified, the Secretary must
determine that the benefits of the standard
exceed its burdens by, to the greatest extent
practicable, considering the factors listed in
42 U.S.C. 6295(o)(2)(B)(i). A standard level is
subject to a rebuttable presumption that it is
economically justified if the payback period
is three years or less. (42 U.S.C.
6295(o)(2)(B)(iii))
(ii) If the Department determines that
interested persons have established by a
preponderance of the evidence that a
standard level is likely to result in the
unavailability in the United States of any
covered product/equipment type (or class)
with performance characteristics (including
reliability), features, sizes, capacities, and
volumes that are substantially the same as
products generally available in the U.S. at the
time of the determination, then that standard
level will not be proposed. (42 U.S.C.
6295(o)(4))
(iii) If the Department determines that a
standard level would not result in significant
conservation of energy, that standard level
will not be proposed. (42 U.S.C.
6295(o)(3)(B))
(f) Selection of a final standard. New
information provided in the public
comments on the NOPR and any analysis by
the Department of Justice concerning impacts
on competition of the proposed standard will
be considered to determine whether issuance
of a new or amended energy conservation
standard produces the maximum
improvement in energy efficiency that is both
technologically feasible and economically
justified and still constitutes significant
energy savings or whether any change to the
proposed standard level is needed before
proceeding to the final rule. The same
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policies used to select the proposed standard
level, as described in this section, will be
used to guide the selection of the final
standard level or a determination that no new
or amended standard is justified.
8. 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 preNOPR 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.
(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
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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 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
modification. 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.
(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 airconditioning 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.
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(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. DOE notes
that the statutory language ‘‘consistent with’’
provides some flexibility in adopting the
amended industry test procedure. As EPCA
does not require DOE to adopt a test
procedure identical to the applicable
industry test standard, DOE may make
modifications that are consistent with the
applicable industry test standard. Further,
DOE 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 selection of models for testing
under an industry certification program,
verification of represented values and the
associated tolerances, and operational
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requirements need not be adopted or aligned
with by DOE).
(c) ASHRAE Lookback Rulemakings. EPCA
also requires that DOE periodically consider
amending energy conservation standards and
test procedures for ASHRAE equipment.
(1) EPCA requirements for ASHRAE
equipment outside of the ASHRAE Standard
90.1 process include:
(i) Energy Conservation Standards. 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).
(A) If DOE issues a notice of proposed
rulemaking, it shall publish a final rule no
more than 2 years later.
(B) 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 in 42 U.S.C. 6313(a)(6)(B) and
supported by clear and convincing evidence).
(ii) Test Procedures. At least once every 7
years, DOE shall conduct an evaluation, and
if DOE determines, supported by clear and
convincing evidence, 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.
DOE notes that EPCA requires test
procedures that are ‘‘consistent with’’
industry test procedures. As noted in
paragraph (b)(2) of this section, this affords
DOE some flexibility in making
modifications to the DOE test procedure that
are consistent with the industry test
procedure. Otherwise, DOE shall publish a
notice of determination not to amend a test
procedure.
(2) DOE’s 6-year-lookback and 7-yearlookback review requirements, as detailed in
this section, are regulatory obligations
specific to DOE and not satisfied by any
ASHRAE action. Specifically, ASHRAE
reviewing and reaffirming (but not amending)
a standard or test procedure does not
eliminate DOE’s separate requirement to
review each class of covered equipment.
10. Direct Final Rules
In accordance with 42 U.S.C. 6295(p)(4),
on receipt of a joint proposal that is
submitted by interested persons that are
fairly representative of relevant points of
view, DOE may issue a direct final rule (DFR)
establishing energy conservation standards
for a covered product or equipment if DOE
determines the recommended standard is in
accordance with 42 U.S.C. 6295(o) or 42
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U.S.C. 6313(a)(6)(B) as applicable. To be
‘‘fairly representative of relevant points of
view’’ the group submitting a joint statement
must, where appropriate, include larger
concerns and small businesses in the
regulated industry/manufacturer community,
energy advocates, energy utilities,
consumers, and States. However, it will be
necessary to evaluate the meaning of ‘‘fairly
representative’’ on a case-by-case basis,
subject to the circumstances of a particular
rulemaking, to determine whether fewer or
additional parties must be part of a joint
statement in order to be ‘‘fairly representative
of relevant points of view.’’
11. Principles for Distinguishing Between
Effective and Compliance Dates
(a) Dates, generally. The effective and
compliance dates for either DOE test
procedures or DOE energy conservation
standards are typically not identical, and
these terms should not be used
interchangeably.
(b) Effective date. The effective date is the
date a rule is legally operative after being
published in the Federal Register.
(c) Compliance date. (1) For test
procedures, the compliance date is the
specific date when manufacturers are
required to use the new or amended test
procedure requirements to make
representations concerning the energy
efficiency or use of a product, including
certification that the covered product/
equipment meets an applicable energy
conservation standard.
(2) For energy conservation standards, the
compliance date is the specific date upon
which manufacturers are required to meet the
new or amended standards for applicable
covered products/equipment that are
distributed in interstate commerce.
12. Principles for the Conduct of the
Engineering Analysis
(a) The purpose of the engineering analysis
is to develop the relationship between
efficiency and cost of the subject product/
equipment. Another important role of the
engineering analysis is to identify the
maximum technologically feasible level. The
maximum technologically feasible level is
one that can be reached through efficiency
improvements and/or design options, both
commercially feasible and in working
prototypes. The Department will consider
two elements in the engineering analysis:
The selection of efficiency levels to analyze,
as discussed in paragraph (b) of this section;
and the determination of product cost at each
efficiency level, as discussed in paragraph (c)
of this section. From the efficiency/cost
relationship developed in the engineering
analysis, measures such as payback, lifecycle cost, and energy savings can be
developed. The Department will identify
issues that will be examined in the
engineering analysis and the types of
specialized expertise that may be required.
DOE will select appropriate contractors,
subcontractors, and expert consultants, as
necessary, to perform the engineering
analysis. DOE will minimize uncertainties by
using measures such as test data or
component or material supplier information
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where available. Also, the Department will
consider data, information, and analyses
received from interested parties for use in the
analysis wherever feasible.
(b) The Department will typically use one
of two approaches to develop energy
efficiency levels for the engineering analysis:
Relying on observed efficiency levels in the
market (i.e., the efficiency-level approach); or
determining the incremental efficiency
improvements associated with incorporating
specific design options to a baseline model
(i.e., the design-option approach). The
Department will consider the availability of
data and analytical tools, the resource needs,
and public comments when determining the
best approach or combination of approaches
for an engineering analysis.
(1) Using the efficiency-level approach, the
efficiency levels established for the analysis
will be determined based on the market
distribution of existing products. This
approach typically entails compiling a
comprehensive list of products available on
the market, such as from DOE’s product
certification database and conducting DOE
energy performance tests to validate the
certified ratings.
(2) Using the design option approach, the
efficiency levels established for the analysis
will be determined through detailed
engineering calculations and/or computer
simulations of the efficiency improvements
from implementing specific design options
that have been identified in the technology
assessment and screening analysis. The
design option approach will typically be
used when a comprehensive database of
certified models is unavailable. In certain
rulemakings, the efficiency-level approach
(based on actual products on the market) will
be extended using the design option
approach to interpolate to define ‘‘gap fill’’
levels (to bridge large gaps between other
identified efficiency levels) and/or to
extrapolate to the ‘‘max-tech’’ level (the level
that DOE determines is the maximum
achievable efficiency level, particularly in
cases where the ‘‘max-tech’’ level exceeds the
maximum efficiency level currently available
on the market). The Department will identify,
modify, or develop any engineering models
necessary to predict the efficiency impact of
any one or combination of design options on
the product/equipment as measured by the
applicable DOE test procedure.
(3) The cost-efficiency curve and a detailed
description of any engineering models will
be available to stakeholders during the preNOPR stage of the rulemaking.
(c) The Department will typically conduct
the cost analysis using one or a combination
of approaches depending on a suite of
factors, including the availability and
reliability of public information,
characteristics of the subject product/
equipment, and the availability and
timeliness of purchasing the product/
equipment on the market. The cost
approaches are summarized as follows:
(1) Physical teardowns: Under this
approach, the Department will physically
dismantle a commercially-available product/
equipment model, component-bycomponent, to develop a detailed bill of
materials for the model. The core function of
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physical teardowns is to support the costing
analysis; however, it serves other purposes as
well. The teardown process provides
information on the range of design options
used to improve energy efficiency and
informs the technology assessment.
Performance testing and teardowns are used
to define the baseline, against which
incremental energy savings and incremental
costs are compared. Teardowns are also used
to identify technology options for
consideration in the screening analysis and
design paths for the Engineering Analysis.
(2) Catalog teardowns: The Department
will often complement physical teardowns
with catalogue (a.k.a., ‘‘virtual’’) teardowns,
thereby allowing the analysis to capture a
broader range of capacities and other features
within a product family. In lieu of physically
deconstructing the product/equipment, the
Department will identify each component
using parts diagrams (available from
manufacturer websites or appliance repair
websites, for example) to develop the bill of
materials for the product/equipment. An
analysis comprised of only virtual teardowns
is also possible for product categories where
features are well-documented.
(3) Price surveys: If neither a physical nor
catalog teardown is feasible, or if they would
be cost-prohibitive or otherwise impractical,
the Department will conduct price surveys
using publicly-available pricing data
published on major online retailer websites
and/or by soliciting prices from distributors
and other commercial channels.
13. Principles for the Analysis of Impacts on
Manufacturers
(a) Purpose. The purpose of the
manufacturer impact analysis (MIA) is to
identify and quantify the impacts of any new
or amended energy conservation standards
on manufacturers. The MIA will have both
quantitative and qualitative aspects, and it
will include the analyses of projected
industry cash flows, the industry net present
value, conversion costs, and direct
employment. Additionally, the MIA will seek
to describe how new or amended energy
conservation standards might affect
manufacturing capacity and competition, as
well as how standards contribute to overall
regulatory burden. Finally, the MIA will seek
to identify any disproportionate impacts on
manufacturer subgroups, including small
business manufacturers. The Department will
analyze the impact of standards on
manufacturers with substantial input from
manufacturers and other interested parties.
This section describes the principles that will
be used in conducting future manufacturing
impact analyses.
(b) Issue identification. Prior to publishing
a NOPR, the Department will identify issues
that will require greater consideration in the
detailed manufacturer impact analysis.
Possible issues may include identification of
specific types or subgroups of manufacturers
and concerns over access to technology.
Specialized contractor expertise and
empirical data requirements, and analytic
tools required to perform the manufacturer
impact analysis also would be identified at
this stage.
(c) Industry characterization. Prior to
publishing a NOPR, the Department will
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prepare an industry profile based on the
market and technology assessment and other
publicly available information. DOE will use
public sources of information (e.g., company
financial reports) to derive preliminary
financial inputs for the industry cash flow
analysis. DOE will describe the present and
past industry structure and market
characteristics.
(d) Interview Process. DOE will seek to
conduct structured, detailed interviews with
manufacturers. During these interviews, DOE
will discuss engineering, manufacturing,
procurement, and financial topics in order to
develop and validate key financial inputs,
including product and capital conversion
costs, and to gather additional information on
the anticipated effects of energy conservation
standards on revenues, direct employment,
capital assets, industry competition, and
subgroup impacts.
(e) Industry Cash Flow Analysis. The
quantitative part of the MIA will rely
primarily on the Government Regulatory
Impact Model (‘‘GRIM’’), an industry cash
flow model with inputs specific to each
rulemaking. The Department will develop
critical GRIM inputs using a number of
sources, including publicly-available data,
results of the other rulemaking analyses, and
information gathered from industry
stakeholders during the course of
manufacturer interviews. To capture the
uncertainty relating to manufacturer cost
impacts and impacts on product/equipment
sales, features, and prices following amended
standards, the Department will use the GRIM
to estimate a range of possible impacts under
different scenarios.
(f) Cost impacts on manufacturers. The
Department will seek input from interested
parties on the treatment of cost issues.
Manufacturers will be encouraged to offer
suggestions and feedback on sources of data
and DOE cost estimates. Costing issues to be
addressed include:
(1) Product/equipment-specific costs
associated with direct material, labor, and
factory overhead (based on cost impacts
estimated for the engineering analysis);
(2) Product conversion costs, which are
investments in research, development,
testing, marketing, and other non-capitalized
costs necessary to make product designs
comply with new or amended energy
conservation standards; and
(3) Capital conversion costs, which are
investments in property, plants, and
equipment necessary to adapt or change
production facilities such that new,
compliant product designs can be fabricated
and assembled.
(g) Disproportional impacts on
manufacturer subgroups. DOE will evaluate
subgroups of manufacturers that may be
disproportionately impacted by standards or
that may not be accurately represented by the
average cost assumptions used to develop the
industry cash flow analysis. Such
manufacturer subgroups may include small
business manufacturers, niche players, and/
or manufacturers exhibiting a cost structure
that largely differs from the industry average.
The subgroup analysis will include
qualitative descriptions and, where sufficient
non-proprietary data are available,
quantitative estimates.
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(h) Impacts on product/equipment sales,
features, and prices. The GRIM estimates
manufacturer revenues based on total unit
shipment projections and the distribution of
those shipments by efficiency level. For this
analysis, the GRIM uses the NIA’s annual
shipment projections derived from the
shipments analysis.
(i) Measures of impact. The Department
will use the GRIM to calculate cash flows
using standard accounting principles and
changes in industry net present value (INPV)
between the no-new-standards case and each
standards case. The difference in INPV
between the no-new-standards case and a
standards case represents the financial
impact of the new or amended energy
conservation standard on manufacturers.
Computations will be performed for the
industry as a whole and, as appropriate, for
manufacturer subgroups. Impacts to be
analyzed include:
(1) Industry net present value and change
in INPV relative to the no-new-standards case
industry value. The Department will perform
sensitivity/scenario analyses for parameters
where significant uncertainty was identified
and/or for which DOE received significant
comment. An uncertainty analysis could
include inputs such as production costs,
conversion costs, manufacturer mark-ups,
and shipment projections.
(2) Industry annual cash flows and percent
change relative to the no-new-standards cash
flow levels. The Department will analyze the
impact of the new or amended standard on
industry annual free cash flow as an
indicator of potential financial constraints in
the industry.
(3) Other measures of impact are described
in paragraphs (j) through (m) of this section
and will also be evaluated in the MIA.
(j) Cumulative Impacts of Other Federal
Regulatory Actions.
(1) The Department will recognize and
consider the overlapping effects on
manufacturers of new or revised DOE
standards and other Federal regulatory
actions affecting the same products or
equipment.
(2) If the Department determines that a
proposed standard would impose a
significant impact on product or equipment
manufacturers within approximately three
years of the compliance date of another DOE
standard that imposes significant impacts on
the same manufacturers (or divisions thereof,
as appropriate), the Department will, to the
extent possible, evaluate the impact on
manufacturers of the proposed standard and
assess the joint impacts of both standards on
manufacturers as described in paragraph
(j)(4) of this section.
(3) If the Department is directed to
establish or revise standards for products/
equipment that are components of other
products/equipment subject to standards, the
Department will consider the interaction
between such standards in assessing
manufacturer impacts of a particular
standard as described in paragraph (j)(4) of
this section.
(4) The Department will seek to assess
regulations that affect the same product and
same revenue streams in an appropriately
coordinated or integrated analysis. Where
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multiple regulations do not affect the same
revenue streams but lead to industry
constraints due to resources shared (such as
capital, engineering time, test lab availability,
or limited capacity of shared vendors) across
covered products, DOE will describe and
consider those industry constraints.
(k) Competitive Impact Assessment. EPCA
directs the Department to consider any
lessening of competition that is likely to
result from imposition of standards. It further
directs the Attorney General to determine in
writing the impacts, if any, of any lessening
of competition. To assist the Attorney
General in making this determination, DOE
will gather information that would help in
assessing asymmetrical cost increases to
some manufacturers, increased proportion of
fixed costs potentially increasing business
risks, and potential barriers to market entry
(e.g., proprietary technologies).
(l) Manufacturing Capacity Impact.
Through public comment and during the
manufacturer interviews, the Department
will seek information to help identify
impacts on manufacturing capacity, such as:
(1) Capacity utilization and plant location
decisions with and without new or amended
standards;
(2) The ability of manufacturers to upgrade
or remodel existing facilities to accommodate
new or amended standards;
(3) The nature and value of stranded assets,
if any, that are a direct result of new or
amended standards; and
(4) Estimates for any one-time restructuring
and other charges, where applicable.
(m) Direct Employment Impacts. To assess
how direct employment patterns might be
affected by new or amended standards, the
Department will solicit industry participant
views on changes in employment patterns
that may result from increased standard
levels. To help bound quantitative estimates
of the potential employment impacts, the
Department will use the GRIM to estimate the
number of direct employees in the no-newstandards case and in each of the standards
cases during the analysis period.
(n) Summary of quantitative and
qualitative assessments. The NOPR will
include a summary of the manufacturer
impacts detailed in the TSD. In the NOPR,
DOE will report the manufacturer impacts for
standard levels that are evaluated and
discuss quantitative and qualitative impacts
by standard level.
14. Principles for the Analysis of Impacts on
Consumers
(a) Early consideration of impacts on
consumer utility. The Department will
consider at the earliest stages of the
development of a standard whether
particular design options will lessen the
utility of the covered products/equipment to
the consumer. See paragraph (c) of section 6.
(b) Impacts on product/equipment
availability. The Department will determine,
based on consideration of information
submitted during the standard development
process, whether a proposed standard is
likely to result in the unavailability of any
covered product/equipment type with
performance characteristics (including
reliability), features, sizes, capacities, and
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volumes that are substantially the same as
products/equipment generally available in
the U.S. at the time. DOE will not promulgate
a standard if it concludes that it would result
in such unavailability.
(c) Measures of consumer impacts. In the
assessment of consumer impacts of
standards, the Department will consider the
Life-Cycle Cost and Payback Period to
evaluate the savings in operating expenses
relative to increases in the installed product
cost.
(1) Consumer discount rates. To determine
present values of costs and benefits in lifecycle cost analysis for residential consumers,
DOE will calculate discount rates as the
weighted average real interest rate across
consumer debt and equity holdings. For
commercial/industrial consumers, DOE will
calculate discount rates as the weighted
average cost of capital. DOE will use discount
rate distributions to capture the diversity of
residential and commercial/industrial
consumers.
(2) Variation in consumer impacts. The
Department will consider impacts on
significant segments of consumers in
determining standards levels, and will use
representative consumer samples where
possible to evaluate the potential distribution
of impacts of candidate/trial standard levels
being evaluated among consumers using the
product under consideration for standards.
Where LCC savings are positive, the
Department will also consider impacts on
any significant subgroups of consumers that
may be disproportionately impacted by a
potential standard level, such as low-income
households or small businesses. DOE will
consider non-regulatory approaches as
discussed in Section 15, taking into account
significant impacts on identifiable subgroups.
(3) Sensitivity and scenario analyses. For
data or assumptions subject to a higher
degree of uncertainty, the Department will
also perform sensitivity and scenario
analyses when appropriate.
15. Consideration of Non-Regulatory
Approaches
The Department recognizes that nonregulatory efforts by manufacturers, utilities,
and other interested parties can result in
substantial efficiency improvements. The
Department intends to consider the likely
effects of non-regulatory initiatives relative to
standard levels being evaluated. DOE will
attempt to base its assessment on the actual
impacts of such initiatives to date, but it also
will consider information presented
regarding the impacts that any existing
initiative might have in the future.
16. Cross-Cutting Analytical Assumptions
In selecting values for certain cross-cutting
analytical assumptions, DOE expects to rely
upon the following sources and general
principles.
(a) Underlying economic assumptions. The
appliance standards analyses will generally
use the same economic growth assumptions
that underlie the most current Annual Energy
Outlook (AEO) published by the Energy
Information Administration (EIA).
(b) Analytic time length. The appliance
standards analyses will generally consider
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impacts over the lifetime of products shipped
over a 30-year period. As a sensitivity case,
the analyses may also use a shorter time
period in analyzing the effects of the
standard.
(c) Energy price trends. Analyses of the
impact of appliance standards on users will
generally adopt the reference energy price
scenario of the EIA’s most current AEO. The
sensitivity of estimated impacts to possible
variations in future energy prices are likely
to be examined using the EIA’s high and low
energy price scenarios. The analyses will
incorporate regional and/or marginal prices
as appropriate and where available.
(d) Product/equipment-specific energyefficiency trends, without updated standards.
Product/equipment-specific energy-efficiency
trends will be based on the best available
historical market data, technology trends,
and other product-specific assessments by
DOE with input from interested parties.
(e) Discount rates for national costs and
benefits. DOE uses both 3-percent and 7percent real discount rates when estimating
national impacts. Those discount rates are in
accordance with the Office of Management
and Budget (OMB)’s guidance to Federal
agencies on developing regulatory analyses
(OMB Circular A–4 (Sept. 17, 2003) and
section E., ‘‘Identifying and Measuring
Benefits and Costs,’’ therein).
17. Emissions Analysis
(a) Emissions reductions. DOE will use best
practices at the time to estimate emission
reductions of certain greenhouse gases and
pollutants likely to result from standard
levels being evaluated. To date best practice
means the emissions analysis typically
includes two components. In the first
component, DOE typically develops the
power sector emissions analysis—to date best
practice includes using a methodology that
utilizes DOE’s latest Annual Energy Outlook.
For site combustion of natural gas or
petroleum fuels, to date best practice means
the combustion emissions are typically
estimated using emission intensity factors
from the Environmental Protection Agency
(EPA). The second component of DOE’s
emissions analysis typically estimates the
effect of standard levels being evaluated on
emissions due to ‘‘upstream activities’’ in the
fuel production chain. These upstream
activities include the emissions related to
extracting, processing, and transporting fuels
to the site of combustion, e.g., as detailed in
DOE’s Full-Fuel-Cycle Statement of Policy
(76 FR 51281 (August 18, 2011)).
(b) Monetization of emissions reductions.
For estimating the economic value of avoided
emissions of carbon dioxide and other
greenhouse gases, as well as those of other air
pollutants, DOE will follow the best practices
at the time, for example, by using accepted
benefit-per-ton values from the scientific
literature at the time.
[FR Doc. 2021–14273 Filed 7–6–21; 8:45 am]
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[Federal Register Volume 86, Number 127 (Wednesday, July 7, 2021)]
[Proposed Rules]
[Pages 35668-35689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14273]
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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: Notice of proposed rulemaking and request for comment.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'')
proposed major revisions to the Department's ``Procedures,
Interpretations, and Policies for Consideration of New or Revised
Energy Conservation Standards and Test Procedures for Consumer Products
and Certain Commercial/Industrial Equipment'' (``Process Rule'') in a
notice of proposed rulemaking that was published on April 12, 2021. DOE
accepted comments on those proposed revisions through May 27, 2021. In
this document, DOE proposes additional revisions to the Process Rule
and requests comment on the proposals and any potential alternatives.
These additional proposed revisions are consistent with current DOE
practice and would remove unnecessary obstacles to DOE's ability to
meet its statutory obligations under the Energy Policy and Conservation
Act (``EPCA'').
DATES: Comments: DOE will accept comments, data, and information
regarding all aspects of this notice of proposed rulemaking on or
before August 23, 2021. DOE will hold a webinar on Tuesday, August 10,
2021 from 11:00 a.m. to 4:00 p.m. See section V, ``Public
Participation,'' for webinar registration information, participant
instructions, and information about the capabilities available to
webinar participants.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at https://www.regulations.gov/docket/EERE-2021-BT-STD-0003. Follow the instructions for submitting comments.
Alternatively, interested persons may submit comments by email to the
following address: [email protected]. Include ``2nd
2021 Process Rule NOPR'' and docket number EERE-2021-BTD-STD-0003 and/
or RIN number 1904-AF13 in the subject line of the message. Submit
electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file
format, and avoid the use of special characters or any form of
encryption.
Although DOE has routinely accepted public comment submissions
through a variety of mechanisms, including postal mail and hand
delivery/courier, the Department has found it necessary to make
temporary modifications to the comment submission process in light of
the ongoing coronavirus disease 2019 (``COVID-19'') pandemic. DOE is
currently accepting only electronic submissions at this time. If a
commenter finds that this change poses an undue hardship, please
contact Appliance Standards Program staff at (202) 586-1445 to discuss
the need for alternative arrangements. Once the Covid-19 pandemic
health emergency is resolved, DOE anticipates resuming all of its
regular options for public comment submission, including postal mail
and hand delivery/courier.
No telefacsimiles (faxes) will be accepted. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see section V (Public Participation) of this
document.
Docket: The docket for this rulemaking, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at https://www.regulations.gov. All documents
in the docket are listed in the https://www.regulations.gov index. This
docket also contains all comments and rulemaking documents associated
with the notice of proposed rulemaking that was published on April 12,
2021. 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: https://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. John Cymbalsky, 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:
[email protected].
Mr. Pete Cochran, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 586-9496. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of Proposal
II. Authority and Background
A. Authority
B. Background
III. Discussion of Proposed Revisions to the Process Rule
A. Coverage Determinations
B. Process for Developing Energy Conservation Standards
C. Process for Developing Test Procedures
D. ASHRAE Equipment
E. Analytical Methodology
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866 and 13563
[[Page 35669]]
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
V. Public Participation
A. Participation in the Webinar
B. Procedure for Submitting Prepared General Statements for
Distribution
C. Conduct of the Webinar
D. Submission of Comments
VI. Approval of the Office of the Secretary
I. Summary of Proposal
On February 14, 2020, the United States Department of Energy
(``DOE'' or ``the Department'') published a final rule (``February 2020
Final Rule'') in the Federal Register that made significant revisions
to 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''
(``Process Rule'') found in 10 CFR part 430, subpart C, 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 trial standard levels when determining
whether a particular trial standard level was economically justified.
See 85 FR 50937. These rules collectively modified the Process Rule
that DOE had originally issued on July 15, 1996 (``1996 Process Rule'')
into its current form. See 61 FR 36974 and 10 CFR part 430, subpart C,
appendix A (2021). While the 1996 Process Rule acknowledged that it
would not be applicable to every rulemaking and that the circumstances
of a particular rulemaking should dictate application of these
generally applicable practices,\1\ 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.
---------------------------------------------------------------------------
\1\ Id. 61 FR 36979.
---------------------------------------------------------------------------
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.\2\ On November 9, 2020, a coalition
of States filed a virtually identical lawsuit.\3\ In response to these
lawsuits, DOE has had to reconsider 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 1996 Process 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 1996 Process 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 meet its obligations and deadlines under EPCA.
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.
---------------------------------------------------------------------------
\2\ Natural Resources Defense Council v. DOE, Case No. 20-cv-
9127 (S.D.N.Y. 2020).
\3\ 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
(``E.O.'') 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 the
impacts of climate change. 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].'' 86 FR 7037, 7041. Agencies
are 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. 86 FR
7037, 7041. 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. 86 FR 7037, 7037-7038. Under this mandate, DOE is directed
to propose any major revisions to these two rules by March 2021, with
any remaining revisions to be proposed by June 2021. 86 FR 7037, 7038.
In light of these events, DOE has identified several aspects of the
February 2020 and the August 2020 Final Rules (together, representing
the current Process Rule) that present obstacles to DOE's ability to
meet its obligations under EPCA. In accordance with E.O. 13990, DOE
proposed major revisions to the current Process Rule in a notice of
proposed rulemaking (NOPR) that was published on April 12, 2021
(``April 2021 NOPR''). 86 FR 18901. The comment period on the April
2021 NOPR ended on May 27, 2021.
In this document, DOE proposes additional revisions that would:
Further revise the process for coverage determination rulemakings;
provide additional flexibility for DOE during the pre-NOPR stages of
energy conservation standard and test procedure rulemakings, while
preserving opportunities for stakeholders to provide early input in the
rulemaking process; provide clarification on EPCA's rulemaking process
for ASHRAE equipment; and revise the sections on DOE's analytical
methods to reflect current rulemaking practices. These revisions are
summarized in the following table. Note that for ease of use and
clarity, the proposed regulatory text in this document contains both
the proposed regulatory text in the April 2021 NOPR and the new text
being proposed in this document. DOE is currently only soliciting
comments on the new, additional regulatory text proposed in this NOPR.
[[Page 35670]]
List of Proposed Revisions to the Process Rule 4
------------------------------------------------------------------------
Proposed revisions Proposed additional
Section from the April 2021 revisions in this
NOPR document
------------------------------------------------------------------------
1. Objectives............... Revise language to No revisions
be consistent with proposed.
the newly proposed
Section 3.
2. Scope.................... No revisions No revisions
proposed. proposed.
3. Mandatory Application of Replace with new No revisions
the Process Rule. Section 3, proposed.
``Application of
the Process Rule''.
4. Setting Priorities for No revisions No revisions
Rulemaking Activity. proposed. proposed.
5. Coverage Determination Eliminate the 180- Proposed
Rulemakings. day period in introductory text
paragraph (c) and revised
between paragraph (a) would
finalization of DOE eliminate the
test procedures and requirement that a
issuance of a NOPR coverage
proposing new or determination
amended energy rulemaking begins
conservation with a notice of
standards. proposed
determination and
allow DOE to seek
early stakeholder
input through
preliminary
rulemaking
documents; revised
paragraphs (b) and
(c) would eliminate
the requirement
that final coverage
determinations be
published 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; revised
paragraph (d) would
allow DOE to
propose, if
necessary, an
amended coverage
determination
before proceeding
with a test
procedure or
standards
rulemaking.
6. Process for Developing Eliminate paragraph Revised paragraph
Energy Conservation (b), ``Significant (a) would eliminate
Standards. Savings of Energy''. the requirement for
a separate early
assessment request
for information
(``RFI'') and
clarify that DOE
will issue one or
more documents
during the pre-NOPR
stage of a
rulemaking; revised
paragraphs (a) and
(b) would clarify
public comment
periods for pre-
NOPR and NOPR
documents; revised
paragraph (a)(5)
would reflect
current DOE
rulemaking
practice.
7. Policies on Selection of Eliminate text in No revisions
Standards. paragraph (e)(2)(i) proposed.
requiring DOE to
conduct a
comparative
analysis when
determining whether
a proposed standard
level is
economically
justified.
8. Test Procedures.......... Clarify in paragraph Revised paragraph
(c) that DOE may (a) would eliminate
revise consensus the requirement for
industry test a separate early
procedure standards assessment request
for compliance, for information
certification, and (``RFI'') and
enforcement clarify that DOE
purposes; eliminate will issue one or
the 180-day period more documents
in paragraph (d) during the pre-NOPR
between stage of a
finalization of DOE rulemaking; revised
test procedures and paragraphs (a) and
issuance of a NOPR (b) would clarify
proposing new or public comment
amended energy periods for pre-
conservation NOPR and NOPR
standards. documents and
eliminate the
requirement that
DOE identify
necessary
modifications to a
test procedure
prior to initiating
an associated
energy conservation
standard
rulemaking.
9. ASHRAE Equipment......... No revisions Revise section to
proposed. follow ASHRAE
rulemaking
requirements in
EPCA.
10. Direct Final Rules...... Revise section to No revisions
clarify that DOE proposed.
will implement its
direct final rule
authority on a case-
by-case basis.
11. Negotiated Rulemaking Eliminate section... No revisions
Process. proposed.
12. Principles for No revisions No revisions
Distinguishing Between proposed. proposed.
Effective and Compliance
Dates.
13. Principles for the No revisions Revise to reflect
Conduct of the Engineering proposed. current DOE
Analysis. rulemaking
practice.
14. Principles for the Eliminate incorrect Revise to reflect
Analysis of Impacts on cross reference. current DOE
Manufacturers. rulemaking
practice.
15. Principles for the No revisions Revise to reflect
Analysis of Impacts on proposed. current DOE
Consumers. rulemaking
practice.
16. Consideration of Non- No revisions Revise to reflect
Regulatory Approaches. proposed. current DOE
rulemaking
practice.
17. Cross-Cutting Analytical No revisions Revise to reflect
Assumptions. proposed. current DOE
rulemaking
practice; move
discussion of
emissions analysis
into new section.
------------------------------------------------------------------------
* As part of the proposed revisions, DOE will reorganize and renumber
sections and subsections as required.
[[Page 35671]]
II. Authority and Background
---------------------------------------------------------------------------
\4\ These proposed revisions are separate from and complementary
to the revisions contained in DOE's proposed regulatory text from
its April 2021 NOPR. See 86 FR 18901, 18915-18921 (April 12, 2021).
---------------------------------------------------------------------------
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))
---------------------------------------------------------------------------
\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, Sec.
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).
---------------------------------------------------------------------------
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. This effort involved reaching out to many different
stakeholders, including manufacturers, energy-efficiency advocates,
trade associations, State agencies, utilities, and other interested
parties for input. The result was the publication of the 1996 Process
Rule. 61 FR 36974. This document was codified at 10 CFR part 430,
subpart C, appendix A, and it became known colloquially as the
``Process Rule.'' The goal of the Process 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 an RFI on potential revisions to
the Process Rule. 82 FR 59992. DOE subsequently published a NOPR
regarding the Process Rule in the Federal Register on February 13,
2019. 84 FR 3910. DOE held public meetings for both the RFI and NOPR.
After considering the comments it received, DOE then published a final
rule in the Federal Register on February 14, 2020, which significantly
revised the Process Rule. 85 FR 8626.
While DOE issued the 1996 Process 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 as a legislative rule subject to notice and comment.
For several reasons, as stated throughout this document and in the
April 2021 NOPR, DOE believes the Process Rule is best described and
utilized as generally applicable guidance that may guide, but not bind,
the Department's rulemaking process. In accordance with E.O. 13990, DOE
is using a notice and comment process to propose revisions to the
Process Rule. 86 FR 7037.
III. Discussion of Proposed Revisions to the Process Rule
The following sections discuss the additional, proposed revisions
to the Process Rule and request comment on those proposals. DOE is
currently only soliciting comments on the new, additional revisions
proposed in this NOPR and is not soliciting comments on the revisions
proposed in the April 2021 NOPR. In addition to those specific requests
for comment, DOE requests comment, data, and information regarding all
aspects of this notice of proposed rulemaking.
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 35672]]
commercial/industrial equipment and consumer products.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 previously, DOE is reconsidering 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. (DOE is including a chart to
depict its proposed revised process for energy conservation standards
and test procedure rulemakings, as discussed in this document, in
Docket No. EERE-2021-BT-STD-0003. Available at: https://www.regulations.gov/docket/EERE-2021-BT-STD-0003.) First, with respect
to the requirement that DOE initiate a coverage determination
rulemaking with a notice of proposed determination, DOE notes 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. For instance, DOE 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. (42 U.S.C. 6292(b)) As such, 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. Based on the
information received, DOE may choose not to proceed with a notice of
proposed determination. Accordingly, DOE proposes that it may issue an
RFI or other pre-rule document prior to a notice of proposed coverage
determination. DOE requests comments, information, and data on whether
its proposed approach is appropriate or on any suggested alternatives.
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 notes that coverage
determination, test procedure, and energy conservation standard
rulemakings are interdependent. 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 standards 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, it is important that DOE be able to
initiate test procedure and energy conservation standard rulemakings
while the Department conducts a coverage determination rulemaking.
Accordingly, DOE proposes to eliminate the requirement that coverage
determination rulemakings must be finalized prior to initiation of a
test procedure or energy conservation standard rulemaking. DOE requests
comments, information, and data on whether its proposed approach is
appropriate or on any suggested alternatives.
As for the requirement that a coverage determination be finalized
180 days prior to publication of a test procedure NOPR, DOE notes 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. As discussed in the April 2021
NOPR, 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 18901, 18908. 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 proposes to eliminate the
requirement that coverage determination rulemakings must be finalized
180 days prior to publication of a test procedure NOPR. DOE requests
comments, information, and data on whether its proposed approach is
appropriate or on any suggested alternatives. DOE notes that it will
continue to follow the requirements at 42 U.S.C. 6312(b) for coverage
determinations for commercial/industrial equipment and at 42 U.S.C.
6292(b) for consumer products.
B. Process for Developing Energy Conservation Standards
As part of the February 2020 Final Rule, DOE made a number of
changes to section 6, Process for Developing Energy Conservation
Standards, of the Process Rule, at least one of which has been
revisited in the April 2021 NOPR. Most significantly, the February 2020
Final Rule amended the Process Rule to include a two-part test for
determining whether EPCA's significant energy savings threshold has
been met (see section 6(b) of the 2020 Process Rule amendments). 85 FR
8626, 8655-8676, 8705. However, for the reasons explained in the April
2021 NOPR, DOE has proposed to revise the Process Rule to eliminate the
significant energy savings threshold test and to return to assessment
of energy savings on a case-by-case basis. 86 FR 18901, 18905.
Although the aforementioned provision represents the primary change
to the Process Rule regarding the development of energy conservation
standards, DOE also adopted a number of other standards-related
provisions in the February 2020 Final Rule, which are outlined in the
paragraphs that follow. The Department has decided to revisit these
provisions in this document and proposes further changes, as explained
subsequently.
First, in section 6(a) of the Process Rule, the February 2020 Final
Rule included an early assessment process for energy conservation
standards. More specifically, in section 6(a)(1) of the Process Rule,
DOE committed to publishing a notice in the Federal Register when it is
considering initiation of a rulemaking to establish or amend any energy
conservation standard, in which the agency will request submission of
comments, data, and information on whether DOE
[[Page 35673]]
should proceed with such rulemaking, including whether any new or
amended rule would be: (1) Cost-effective; (2) economically justified;
(3) technologically feasible, or (4) would result in a significant
savings of energy. Based upon available information, if DOE determines
that a new or amended standard would not satisfy the applicable
statutory criteria, it will publish a notice of proposed determination
to that effect in the Federal Register for notice and comment.
Otherwise, section 6(a)(2) of the Process Rule provides that DOE would
undertake the preliminary stages of a rulemaking to issue or amend the
energy conservation standard, proceeding with either a framework
document/preliminary analysis or an advance notice of proposed
rulemaking (``ANOPR''). The Process Rule further provides that RFIs and
notices of data availability (``NODA'') could be issued, as
appropriate, in addition to these preliminary-stage documents. Finally,
in section 6(a)(3) of the Process Rule, DOE clarifies that initiation
of a standards rulemaking does not guarantee that standards will be
issued, because it could later be discovered that the applicable
statutory criteria ultimately could not be satisfied. 85 FR 8626, 8704-
8705.
Upon further consideration, DOE is proposing to modify these
provisions to allow for a more expedited rulemaking process in
appropriate cases, particularly in light of the significant number of
legal deadlines confronting the Appliance Standards Program and the
anticipated benefits to the Nation of the associated energy
conservation standards. Because interested parties are free to raise
the matter of the likelihood of satisfying or not satisfying the
applicable statutory criteria needed for adoption of a new or amended
energy conservation standard at any stage of the rulemaking, DOE has
tentatively concluded that a separate rulemaking document limited to
only that topic (i.e., the early assessment RFI) may unnecessarily
delay the overall process without appreciable benefit if used in all
cases. Consequently, DOE proposes to remove the requirement for a
separate early assessment RFI for energy conservation standards.
Instead, DOE 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. DOE requests
comments, information, and data on whether its proposed approach is
appropriate or on any other suggested alternatives.
Second, in section 6(e)(1) of the Process Rule, the February 2020
Final Rule clarified that if DOE determines it appropriate to move
forward with an energy conservation standards rulemaking after
conducting an early assessment, then the Department will publish in the
Federal Register either a framework document with a subsequent
preliminary analysis or an ANOPR. That same subsection provides that if
DOE finds, based upon the early assessment, that one or more of the
required statutory criteria for setting an energy conservation standard
cannot be met, then the Department will publish a proposed
determination to that effect in the Federal Register for notice and
comment (which may lead to a final determination, as appropriate).
Section 6(e)(2) of the Process Rule provides that the length of the
public comment period for pre-NOPR rulemaking documents will vary
depending upon the circumstances of the particular rulemaking, but will
not be less than 75 calendar days, and it further provides that DOE
will determine whether a public hearing is appropriate for such
documents. 85 FR 8626, 8705.
After further consideration, DOE proposes to modify and clarify
these provisions as follows. As noted previously, DOE is proposing to
eliminate the requirement for an energy conservation standard early
assessment RFI, while maintaining the opportunity for early public
input through other rulemaking documents as to whether new or amended
energy conservation standards are warranted under the applicable
statutory criteria. The Department has tentatively concluded that one
round of pre-NOPR input may be sufficient in some cases. 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, DOE may only need to issue an
RFI or NODA to update its 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 proposes 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.
Additionally, DOE proposes to remove the 75-day comment period
requirement for pre-NOPR energy conservation standards documents, as it
is not compelled by EPCA or other applicable law. Instead, for these
pre-NOPR documents for which there is no statutorily required comment
period, DOE would provide an appropriate comment period,\9\ determined
on a case-by-case basis, which is commensurate with the nature and
complexity of the energy conservation standard at issue, and will
consider requests from the public for extension of the comment period
to allow additional opportunities for public input. Particularly given
the many legal deadlines the Department faces for various appliance
rulemakings, DOE reasons that these proposed changes would promote
efficiency by eliminating redundant requests for the same information
and otherwise streamlining the rulemaking process. It is DOE's belief
that these changes would improve the efficiency of the Appliance
Standards Program without sacrificing the quality of DOE's analyses or
the opportunity for public input. Thus, for the reasons stated, DOE
proposes to revise section 6(e) of the Process Rule to reflect these
changes. DOE requests comments, information, and data on whether its
proposed approach is appropriate or on any other suggested
alternatives. DOE also seeks comment on whether these changes would
affect the quality of DOE's analyses or opportunities for public
comment.
---------------------------------------------------------------------------
\9\ See, for example, Executive Order 12866(6)(a)(1): ``Each
agency shall (consistent with its own rules, regulations, or
procedures) provide the public with meaningful participation in the
regulatory process. In particular, before issuing a notice of
proposed rulemaking, each agency should, where appropriate, seek the
involvement of those who are intended to benefit from and those
expected to be burdened by any regulation (including, specifically,
State, local, and tribal officials). In addition, each agency should
afford the public a meaningful opportunity to comment on any
proposed regulation, which in most cases should include a comment
period of not less than 60 days.''
---------------------------------------------------------------------------
In section 6(g)(2) of the Process Rule, the February 2020 Final
Rule stated that there would be a public comment period of at least 75
days for an energy conservation standards NOPR, with at least one
public hearing or workshop. 85 FR 8626, 8706.
After further consideration, DOE proposes to modify the provision
at section 6(g)(2) as follows. DOE proposes to remove the 75-day
comment period
[[Page 35674]]
requirement for energy conservation standards NOPRs, replacing it with
a 60-day comment period as required by EPCA. (42 U.S.C. 6295(p)(2); 42
U.S.C. 6316(a)) Although the Department believes that 60 days offers an
adequate amount of time for comment in most cases, DOE may extend the
comment period, as appropriate and on a case-by-case basis,
commensurate with the nature and complexity of the energy conservation
standard at issue. While the 2020 Process Rule has not been in effect
for long enough to cause these missed deadlines, for the reasons
discussed throughout, DOE has tentatively concluded that this proposed
change would promote the efficiency of the Appliance Standards Program
by streamlining the rulemaking process. DOE requests comments,
information, and data on whether its proposed approach is appropriate
or on any other suggested alternatives.
Finally, section 6(f)(4) of the current Process Rule discusses
factors to be considered in selecting a proposed standard. These
provisions were not modified in the February 2020 Final Rule. DOE
proposes to make minor updates to these provisions (now in proposed
section 6(a)(5)(iv)) to reflect current Departmental practice, which
has evolved in the decades since development of the 1996 Process Rule.
The descriptions of the analyses currently in sections 13-17 present
the procedures, interpretations, and policies as set forth in the 1996
Process Rule. In the years following that final rule, DOE's analyses
have evolved and been refined. DOE also notes that stakeholders are
afforded the opportunity to comment on the specific application of
these analyses as part of the individual product and equipment
rulemakings. The revisions proposed in the following sections reflect
the current state of DOE's analytical methodologies. Specifically, DOE
proposes and seeks public comment on the following proposed revisions:
Impacts on manufacturers: Remove specification of
``private'' in relation to manufacturer impacts, change assessment of
impacts on plant closures to impacts on employment, and clarify that
changes to capital investment may not be negative.
Private impacts on consumers: Clarify that DOE typically
uses regional energy prices rather than national prices and remove
reference of sensitivity analyses from this section as they correctly
apply to the national impacts section.
Impacts on utilities: Revise to specify that this analysis
considers utility generation and capacity rather than costs and
revenues.
Impacts on the environment: Remove reference to impacts on
pollution control costs, which DOE does not consider.
Additional detail regarding these proposed changes is provided in
section III.E of this NOPR.
C. Process for Developing Test Procedures
As part of the February 2020 Final Rule, DOE made a number of
changes to section 8, Test Procedures, of the Process Rule, some of
which have been revisited in the April 2021 NOPR. First, the February
2020 Final Rule amended the Process Rule's title to reflect DOE's long
practice of including test procedure rulemakings (as well as certain
commercial/industrial equipment) within its scope, as the 1996 Process
Rule only explicitly referred to energy conservation standards
rulemakings for consumer products. 85 FR 8626, 8703. Although DOE has
proposed in its April 2021 NOPR to once again make the Process Rule
nonbinding guidance for the reasons explained in that document, DOE has
maintained the applicability of the Process Rule to covered consumer
products and certain commercial/industrial equipment, as well as to
energy conservation standards and test procedures. 86 FR 18901, 18904-
18905, 18915. The February 2020 Final Rule also required DOE to
finalize a test procedure 180 days prior to publication of a NOPR to
prescribe new or amended energy conservation standards, and it set a
presumption that the Department would adopt applicable industry
consensus test procedures without modification, unless such industry
test procedures do not meet the requirements of EPCA. 85 FR 8626, 8676-
8682, 8707-8708. However, in the April 2021 NOPR, DOE proposed to
revise the Process Rule to eliminate the mandatory 180-day spacing
requirement, and the Department also proposed to clarify that DOE will
only adopt industry consensus test procedures if they meet the
requirements of EPCA and that DOE may also adopt industry test
procedure standards with modifications, or draft its own procedures as
necessary to ensure compatibility with the relevant statutory
requirements, as well as DOE's compliance, certification, and
enforcement requirements. 86 FR 18901, 18906-18908, 18918-18919.
Although the aforementioned provisions represent the primary
changes to the Process Rule test procedure provisions, DOE also adopted
a small number of other test procedure-related provisions in the
February 2020 Final Rule, which are outlined in the paragraphs that
follow. The Department has decided to revisit these provisions in this
document and proposes further changes, as explained subsequently.
First, in section 8(a) of the Process Rule, the February 2020 Final
Rule included an early assessment process for test procedures similar
to that adopted for energy conservation standards. Consequently, DOE
committed to publishing a notice in the Federal Register when it is
considering initiation of a rulemaking to amend a test procedure, in
which the agency will request submission of comments, data, and
information on whether an amended test procedure rule would: (1) More
accurately measure energy efficiency, energy use, water use (as
specified in EPCA), or estimated annual operating cost of a covered
product during a representative average use cycle or period of use
without being unduly burdensome to conduct; or (2) reduce testing
burden. Based upon available information, if DOE determines that an
amended test procedure is not justified at that time, it will publish a
notice of proposed determination to that effect in the Federal Register
for notice and comment. Otherwise, DOE would undertake the preliminary
stages of a rulemaking to amend the test procedure. 85 FR 8626, 8707-
8708.
Upon further consideration, DOE is proposing to modify this
provision to allow for a more expedited rulemaking process in
appropriate cases, particularly in light of the significant number of
legal deadlines confronting the Appliance Standards Program and the
anticipated benefits to the Nation of the associated energy
conservation standards. 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 has 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 proposes to remove the
requirement for a separate early assessment RFI for test procedures.
Instead, DOE 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 relevant questions and
gathering information about other test procedure issues, such as the
applicability of any industry test procedure, in the event that the
Department decides to proceed with a test procedure rulemaking.
[[Page 35675]]
Additionally, for these pre-NOPR documents for which there is no
statutorily required comment period, DOE proposes to clarify that the
Department would provide an appropriate comment period for pre-NOPR
documents, determined on a case-by-case basis, which is commensurate
with the nature and complexity of the test procedure rulemaking at
issue. DOE also proposes 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. 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
the USMCA is consistent with EPCA's public comment period requirements
and normally requires a minimum comment period of 60 days for technical
regulations, DOE now proposes to provide a minimum 60-day public
comment period for test procedure NOPRs. DOE requests comments,
information, and data on whether its proposed approach is appropriate
or on any other suggested alternatives.
Second, in section 8(b) of the Process Rule, the February 2020
Final Rule contemplated further opportunities for early public input if
the Department determines to move forward with the test procedure
rulemaking after considering comments on the early assessment RFI.
Also, in that subsection, the February 2020 Final Rule stated that DOE
will identify any necessary modifications to established test procedure
prior to initiating the standards development process. 85 FR 8626,
8708. After further consideration, DOE proposes to modify and clarify
these provisions as follows. As noted previously, DOE is proposing to
eliminate the requirement for a test procedure early assessment RFI,
while maintaining the opportunity for early public input through other
rulemaking documents (potentially including RFIs) as to whether test
procedure amendments are warranted under the applicable statutory
criteria. The Department has tentatively concluded that one round of
pre-NOPR input may be sufficient in some cases. Furthermore, DOE would
clarify that its intention in section 8(b) was that Department will
identify all test procedure modifications prior to issuing a proposed
standard for that appliance, not to preclude the agency from preparing
other pre-rulemaking standards documents, such as RFIs, NODAs, and
preliminary analyses. DOE believes that such preliminary standards-
related work and data gathering can commence in concert with the test
procedure proceeding, as long as any anticipated test procedure changes
are identified and evaluated in time for them to be factored into the
energy conservation standards proposal. It is DOE's belief that these
changes would improve the efficiency of the Appliance Standards Program
without sacrificing the quality of DOE's analyses or the opportunity
for public input. DOE requests comments, information, and data on
whether its proposed approach is appropriate or on any other suggested
alternatives. In addition, DOE seeks comment on whether these changes
would affect the quality of DOE's analyses or opportunities for public
comment.
D. ASHRAE Equipment
In EPCA, Congress established a separate and unique regulatory
scheme pertaining to DOE rulemaking 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 the Process Rule specifically
addressing ASHRAE equipment for the first time.\10\ 85 FR 8626, 8708.
---------------------------------------------------------------------------
\10\ The 1996 Process Rule final rule did not address ASHRAE
equipment specifically. 61 FR 36974 (July 15, 1996).
---------------------------------------------------------------------------
While DOE sees value in setting forth the statutory requirements
and the Department's regulatory process for covered ASHRAE equipment, a
subsequent review suggests that DOE's initial efforts to explain the
applicable ASHRAE requirements could be improved, both in terms of
better delineating the process for energy conservation standards/test
procedures and removing constraints that are neither compelled by the
statute nor consistent with DOE's historic practice, and would impede
DOE's ability to achieve EPCA's energy conservation purposes.
Consequently, DOE proposes to reorganize and revise the ASHRAE
section of the Process Rule to focus on the requirements in EPCA, to
increase clarity, and to be consistent with longstanding DOE practices.
As part of this effort, DOE is proposing to remove extraneous language
relating to DOE's interpretations of the statute's ASHRAE provisions,
because the Department has found matters pertaining to scope,
triggering, and applicable statutory criteria to typically involve
nuances most appropriately addressed in individual ASHRAE rulemaking
actions. One such example would be an update to the relevant ASHRAE
standard that specifies standard levels for a type of covered equipment
that previously was not subject to standards, as was the case with
computer room air conditioners. See 77 FR 28928 (May 16, 2012). In such
an instance, the application of EPCA's trigger provision is not the
typical scenario in which existing standard levels for covered
equipment are updated. Such matters may not lend themselves to a
standardized approach suitable for inclusion in the Process Rule, but
instead, are better addressed on a case-by-case basis in the context of
the specific ASHRAE rulemaking in question. In light of the above,
DOE's proposed changes are discussed in the paragraphs that follow.
First, DOE proposes to include separate sections delineating the
EPCA requirements under two scenarios: (1) ASHRAE action regarding
standards and test procedures (i.e., ``ASHRAE trigger'' under 42 U.S.C.
6313(a)(6)(A) and 42 U.S.C. 6314(a)(4)(A)-(B), respectively) and (2)
DOE's obligation to periodically review energy conservation standards
and test procedures for ASHRAE equipment (i.e., 6-year-lookback or 7-
year-lookback under 42 U.S.C. 6313(a)(6)(C) and 42 U.S.C. 6314(a)(1),
respectively). It is expected that this refinement would provide
additional clarity to stakeholders by more clearly articulating the
statutory scheme regarding standards and test procedure rulemakings for
ASHRAE equipment.
Within the ASHRAE trigger section, DOE proposes to further separate
out the statutory requirements for energy conservation standards and
test procedures. In the current version of the
[[Page 35676]]
Process Rule, EPCA's timelines for energy conservation standards were
erroneously applied to test procedures as well. DOE wishes to make
clear the applicable statutory timelines applicable to energy
conservation standard and test procedure rulemakings in the Process
Rule. DOE also proposes 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 only considers 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 stringency of standard levels or a new design
requirement relative to the current Federal standards. With respect to
test procedures, DOE only considers 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. This approach is consistent with the ASHRAE-
specific provisions in EPCA and generally consistent with past DOE
practice. DOE notes in the past that it has treated an update to the
industry test procedure standard referenced by ASHRAE Standard 90.1 as
a trigger. See e.g., 77 FR 2356, 2358 (Jan. 17, 2012). DOE proposes to
only consider an update to ASHRAE Standard 90.1 that modifies the
referenced industry test procedure to be a trigger under the statute.
This approach is consistent with EPCA and provides certainty to the
public regarding when DOE is required to consider updating test
procedures for ASHRAE equipment. Finally, DOE notes that ASHRAE
reviewing and reaffirming (i.e., not amending) 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.
Under the ASHRAE trigger for test procedures (42 U.S.C.
6314(a)(4)), when ASHRAE Standard 90.1 is amended, the statute requires
DOE to amend the Federal test procedure to be consistent with the
updated version of Standard 90.1, unless the Department 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. 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.
Further, DOE notes that the statutory language ``consistent with''
itself provides some flexibility in adopting the amended industry test
procedure. 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.
In addition, DOE proposes 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
selection of models for testing under an industry certification
program, verification of represented values and the associated
tolerances, and operational requirements need not be referenced or
aligned with by DOE). These proposals are consistent with the
Department's longstanding historic practice.
DOE proposes 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. 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)) ``Very limited circumstances'' is an ambiguous
description for a process that is delineated in EPCA. As a result, DOE
proposes to remove this description of the circumstances under which
DOE will not adopt the amended ASHRAE standard or industry test
procedure.
In addition, DOE proposes to remove the discussion of what
constitutes clear and convincing evidence. 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
application of the ``clear and convincing'' evidentiary standard by
courts and legal commentators). DOE does not believe the elaboration
contained in the current paragraph adds value to the EPCA language
already referenced in this section or to the established case law
pertaining to the standard of review for clear and convincing evidence.
DOE also proposes 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. This statement does not
have any effect on DOE's rulemaking obligations under the ASHRAE
provisions in EPCA. As discussed previously, DOE initiates an ASHRAE
rulemaking because: (1) Standard 90.1 is amended to include more-
stringent standards or a new design requirement; or (2) EPCA requires
DOE to evaluate each class of covered equipment every 6 years. Neither
of these situations would be affected by a decision by ASHRAE to
reaffirm an existing standard.
Finally, DOE also proposes to make two clarifications regarding its
ASHRAE review process, which are consistent with longstanding DOE
practice. First, in an ASHRAE trigger analysis, DOE will assess 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. DOE
notes that the analysis period differs for these assessments, as EPCA
specifies different compliance dates for adopting levels in ASHRAE as
opposed to adopting more-stringent levels. And, second, DOE notes that
under an ASHRAE trigger, it may review all metrics for the equipment
category, 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 may also consider
changing metrics during a 6-year-lookback or 7-year-lookback review.
DOE believes this is consistent with EPCA's requirement that test
procedures (and metrics) be representative of an average use cycle.
DOE requests comments, information, and data on whether its
proposed approaches to ASHRAE standards and test procedure rulemakings
are appropriate or on any other suggested alternatives.
[[Page 35677]]
E. Analytical Methodology
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 1996 Process Rule. Subsequently, DOE engaged
with the National Academy of Sciences (``NAS'') to review DOE's
analytical methodologies to ascertain whether modifications are needed
to improve the Department's analyses. That review process is still
ongoing. Upon further reconsideration, DOE believes that it is
important to revise the analytical sections in the Process Rule to
better reflect Departmental practice. The descriptions of the analyses
currently in sections 13-17 present the procedures, interpretations,
and policies as set forth in the 1996 Process Rule. In the years
following that final rule, DOE's analyses have evolved and been
refined. The revisions proposed in the following sections reflect the
current state of DOE's analytical methodologies. If DOE 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.
1. New Section 12 Principles for the Conduct of the Engineering
Analysis
DOE proposes to update the description of the analysis to more
comprehensively describe the various approaches DOE takes in developing
cost-efficiency relationships. Specifically, DOE proposes to reorganize
the discussion to clearly describe the two key aspects of the
engineering analysis: The efficiency analysis (i.e., identifying the
efficiency levels for analysis) and the cost analysis (i.e., estimating
the costs at each analyzed efficiency level).
In particular, DOE typically uses one of two approaches to develop
energy efficiency levels for the engineering analysis: (1) Relying on
observed efficiency levels in the market (i.e., the efficiency-level
approach), or (2) determining the incremental efficiency improvements
associated with incorporating specific design options to a baseline
model (i.e., the design-option approach).
DOE typically uses one or a combination of approaches to conduct
the cost analysis, including (1) physical teardowns (i.e., physically
dismantling a commercially available product/equipment model,
component-by-component, to develop a detailed bill of materials for the
model); (2) catalog teardowns (i.e., identifying each component using
parts diagrams available from manufacturer websites or appliance repair
websites, in lieu of physically deconstructing the product/equipment,
to develop the bill of materials for the product/equipment); and/or (3)
price surveys (i.e., deriving costs using publicly available pricing
data published on major online retailer websites and/or by soliciting
prices from distributors and other commercial channels). The choice of
approach depends on a suite of factors, including the availability and
reliability of public information, characteristics of the subject
product/equipment, and the availability and timeliness of purchasing
the product/equipment on the market.
2. New Section 13 Principles for the Analysis of Impacts on
Manufacturers
In the preamble to the July 1996 Process Rule, the Department of
Energy committed to a detailed review of the existing manufacturer
impact analysis methodologies. 61 FR 36974, 36979. During a series of
public consultations in 1997, the Department presented a draft work
plan for the development of new methods for assessing manufacturer
impacts and invited comments and suggestions from interested parties.
See 62 FR 8189 (Feb. 24, 1997). The Department implemented its revised
Manufacturer Impact Analysis methodologies for final rules issued
subsequently. DOE proposes to update the Process Rule to align with the
manufacturer impact analysis methodologies that are the result of the
1997 process and subsequent stakeholder input. DOE proposes to clarify
the process used to evaluate manufacturers impacts and expands the
guidance on the methodologies used to solicit stakeholder input. The
updates include:
Acknowledgement of the manufacturer interview process. DOE
adds language to reflect a critical tool used as part of the current
process, wherein manufacturer specific data and information are used to
develop and validate key inputs for the manufacturer impact analysis.
Added detail on use of the Government Regulatory Impact
Model (GRIM). The 1996 and 2020 Process Rules make mention of the GRIM
without explanation of the model. DOE adds language on the structure,
underlying principles, and outputs of the model.
Differentiation between types of cost impacts. To better
reflect the current process, DOE expands discussion about the types of
manufacturer cost impacts considered in the analysis.
Clarification on the treatment of manufacturer subgroups.
To be consistent with the current process, DOE adds criteria on the
evaluation of subgroups of manufacturers that may be disproportionately
impacted by standards or that may not be accurately represented by the
average cost assumptions.
Consideration of competitive impacts, as required by EPCA.
To be consistent with the current process and with EPCA, DOE adds
criteria to consider any lessening of competition that is likely to
result from imposition of standards and clarifies how the Department
will coordinate with the Department of Justice.
Inclusion of stakeholder concerns related to manufacturing
capacity and direct employment impacts. To be consistent with the
current process, DOE highlights criteria related to manufacturing
capacity and direct employment impacts that the Department considers in
its assessment of impacts on manufacturers.
3. New Section 14 Principles for the Analysis of Impacts on Consumers
DOE proposes minor changes to the discussion of analytical
principles related to consumer impacts. These changes reflect the
analytical methodologies that are the result of several iterations of
stakeholder input and regulatory review, advances in data availability,
and advances in analytical techniques in the academic literature. In
particular, DOE proposes the following changes: (1) Clarifications
regarding the use of analytical input distributions in order to
establish representative consumer samples and evaluate the range of
potential impacts. These changes help to differentiate variation in
consumer impacts captured in the Life-Cycle Cost (LCC) analysis from
additional sensitivity or scenario analyses used for data or
assumptions subject to a higher degree of uncertainty; (2)
clarifications to differentiate the LCC analysis from the consumer
subgroup analysis, the latter of which considers impacts on subgroups
of consumers who may be disproportionately impacted by a potential
standard; (3) removal of discussion of magnitude of first cost and
length of payback period triggering additional assessments, as those
assessments are always made when relevant to a given products; and (4)
the addition of a discussion on consumer discount rates, found in
section 17 of the current Process Rule.
[[Page 35678]]
The revised discussion reflects DOE's established practice of
calculating weighted discount rates based on debt and equity holdings
for both residential and commercial/industrial consumers, for the
purposes of the LCC analysis.
4. New Section 15 Consideration of Non-Regulatory Approaches
DOE proposes to simplify the text to reflect its current practice
and to clarify the data available for use in DOE's analyses.
Specifically, the proposed revisions clarify that DOE's established
practice is to compare non-regulatory initiatives relative to
candidate/trial standard levels rather than considering their
individual impacts. In addition, the proposed revisions clarify that
DOE bases its assessment on the actual impacts of existing non-
regulatory initiatives, and does not typically speculate on potential
future non-regulatory initiatives or initiatives that have not yet been
implemented. Finally, DOE proposes to eliminate reference to assessing
appropriate compliance dates, as these are nearly always statutorily
defined.
5. New Section 16 Cross-Cutting Analytical Assumptions
DOE proposes minor updates to reflect DOE's long-standing
analytical practice. In particular, DOE proposes the following
clarifications: (1) DOE will continue to utilize a 30-year analysis
period along with a 9-year sensitivity analysis, but DOE no longer
analyzes a time length specific to each product; (2) energy-efficiency
trends will be based on the best available historical market data
(which may or may not be based on NEMS); (3) analyses will generally
adopt the reference energy price scenario of EIA's most current Annual
Energy Outlook (while demand is not typically considered); and (4) the
discount rates used in determining national costs and benefits
(formerly referred to as social discount rates) are in accordance with
the Office of Management and Budget (OMB)'s guidance to Federal
agencies on developing regulatory analyses (OMB Circular A-4, September
17, 2003, and section E., ``Identifying and Measuring Benefits and
Costs,'' therein).
6. New Section 17 Emissions Analysis
DOE also proposes a new section 17 discussing the Department's
emissions analysis that is based on text that is currently part of
section 17, Cross-Cutting Analytical Assumptions. The proposed updates
clarify that DOE will estimate emissions reductions of greenhouse gases
and pollutants likely to result from candidate/trial standard levels
following best practices at the time. These emissions reductions will
potentially include the effect on electric power sector and site
combustion emissions, as well as on ``upstream activities'' in the fuel
production chain. The proposed updates also clarify that estimation of
the monetary value of the avoided greenhouse gas emissions, as well as
those of other air pollutants, will be based on best practices at the
time, for example, by using accepted benefit-per-ton values from the
scientific literature.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866 and 13563
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 proposed
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 proposed regulatory action are
procedural changes designed to improve DOE's ability to meet its
rulemaking obligations and deadlines under EPCA. These proposed
revisions would not impose any regulatory costs or burdens on
stakeholders, nor would they limit public participation in DOE's
rulemaking process. Instead, these proposed 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. 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 currently facing
two lawsuits that allege DOE has failed to meet rulemaking deadlines
for 25 different consumer products and commercial equipment.
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 proposed 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 proposed 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
[[Page 35679]]
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: https://www.energy.gov/gc/office-general-counsel.
This proposed rule details generally applicable guidance that may
guide, but not bind, the Department's rulemaking process. The proposed
revisions 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 proposed 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
proposed rule will not have a significant economic impact on a
substantial number of small entities, and, therefore, no initial
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 proposed 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 proposed rule, addressing clarifications to the
Process Rule itself, does not contain any collection of information
requirement that would trigger the PRA.
D. Review Under the National Environmental Policy Act of 1969
DOE is analyzing this proposed 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 A5.
DOE's regulations include a categorical exclusion for rulemakings that
are strictly procedural. 10 CFR part 1021, subpart D, appendix A6. DOE
anticipates 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. DOE will complete its NEPA review
before issuing the final rule.
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
proposed 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)
[[Page 35680]]
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, the proposed 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 proposed 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 https://www.energy.gov/gc/office-general-counsel under ``Guidance & Opinions''
(Rulemaking)) DOE examined the proposed 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 rule that may affect family well-being.
This proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
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 proposed rule would
not result in any takings that might require compensation under the
Fifth Amendment to the U.S. Constitution.
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 proposed 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 tentatively 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 proposed 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
[[Page 35681]]
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. The results from that review are expected
later in 2021.
V. Public Participation
A. Participation in the Webinar
The time and date of the webinar are listed in the DATES section at
the beginning of this document. If no participants register for the
webinar, it will be cancelled. Webinar registration information,
participant instructions, and information about the capabilities
available to webinar participants will be published on DOE's website:
https://www.energy.gov/eere/buildings/process-rule. Participants are
responsible for ensuring their systems are compatible with the webinar
software.
B. Procedure for Submitting Prepared General Statements for
Distribution
Any person who has an interest in the topics addressed in this
proposed rulemaking, or who is representative of a group or class of
persons that has an interest in these issues, may request an
opportunity to make an oral presentation at the webinar. Such persons
may submit requests to speak by email to the Appliance and Equipment
Standards Program, [email protected]. Persons who
wish to speak should include with their request a computer file in
WordPerfect, Microsoft Word, PDF, or text (ASCII) file format that
briefly describes the nature of their interest in this rulemaking and
the topics they wish to discuss. Such persons should also provide a
daytime telephone number where they can be reached.
Persons requesting to speak should briefly describe the nature of
their interest in this rulemaking and provide a telephone number for
contact. DOE requests persons selected to make an oral presentation to
submit an advance copy of their statements at least two weeks before
the webinar. At its discretion, DOE may permit persons who cannot
supply an advance copy of their statement to participate, if those
persons have made advance alternative arrangements with the Building
Technologies Office. As necessary, requests to give an oral
presentation should ask for such alternative arrangements.
C. Conduct of the Webinar
DOE will designate a DOE official to preside at the webinar and may
also use a professional facilitator to aid discussion. The meeting will
not be a judicial or evidentiary-type public hearing, but DOE will
conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A
court reporter will be present to record the proceedings and prepare a
transcript. DOE reserves the right to schedule the order of
presentations and to establish the procedures governing the conduct of
the webinar. There shall not be discussion of proprietary information,
costs or prices, market share, or other commercial matters regulated by
U.S. anti-trust laws. After the webinar and until the end of the
comment period, interested parties may submit further comments on the
proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE
will present summaries of comments received before the webinar, allow
time for prepared general statements by participants, and encourage all
interested parties to share their views on issues affecting this
rulemaking. Each participant will be allowed to make a general
statement (within time limits determined by DOE), before the discussion
of specific topics. DOE will permit, as time permits, other
participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit
participants to clarify their statements briefly and comment on
statements made by others. Participants should be prepared to answer
questions by DOE and by other participants concerning these issues. DOE
representatives may also ask questions of participants concerning other
matters relevant to this rulemaking. The official conducting the
webinar will accept additional comments or questions from those
attending, as time permits. The presiding official will announce any
further procedural rules or modification of the above procedures that
may be needed for the proper conduct of the webinar.
A transcript of the webinar will be included in the docket, which
can be viewed as described in the Docket section at the beginning of
this NOPR. In addition, any person may buy a copy of the transcript
from the transcribing reporter.
D. Submission of Comments
DOE will accept comments, data, and information regarding this
proposed rule no later than the date provided in the DATES section at
the beginning of this proposed rule. Interested parties may submit
comments using any of the methods described in the ADDRESSES section at
the beginning of this document.
Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page will require you to provide your name and
contact information. Your contact information will be viewable to DOE
Building Technologies staff only. Your contact information will not be
publicly viewable except for your first and last names, organization
name (if any), and submitter representative name (if any). If your
comment is not processed properly because of technical difficulties,
DOE will use this information to contact you. If DOE cannot read your
comment due to technical difficulties and cannot contact you for
clarification, DOE may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment or in any documents attached to your comment.
Any information that you do not want to be publicly viewable should not
be included in your comment, nor in any document attached to your
comment. Persons viewing comments will see only first and last names,
organization names, correspondence containing comments, and any
documents submitted with the comments.
Do not submit to https://www.regulations.gov information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (CBI)). Comments submitted through
https://www.regulations.gov cannot be claimed as CBI. Comments received
through the website will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
DOE processes submissions made through https://www.regulations.gov
before posting. Normally, comments will be posted within a few days of
being submitted. However, if large volumes of comments are being
processed simultaneously, your comment may not be viewable for up to
several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you
[[Page 35682]]
have successfully uploaded your comment.
Submitting comments via email. Comments and documents submitted via
email also will be posted to https://www.regulations.gov. If you do not
want your personal contact information to be publicly viewable, do not
include it in your comment or any accompanying documents. Instead,
provide your contact information in a cover letter. Include your first
and last names, email address, telephone number, and optional mailing
address. The cover letter will not be publicly viewable as long as it
does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. No telefacsimiles (faxes) will
be accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, written in English, and free of any defects or
viruses. Documents should not contain special characters or any form of
encryption, and, if possible, they should carry the electronic
signature of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This reduces comment processing and posting
time.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email two well-marked copies: One copy of the document marked
``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
with the information believed to be confidential deleted. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this proposed
rule.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Imports,
Incorporation by reference, Intergovernmental relations, Small
businesses, Test procedures.
Signing Authority
This document of the Department of Energy was signed on June 29,
2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary
and Acting 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 June 30, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE proposes to amend 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. Appendix A to subpart C of part 430 is revised 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
1. Objectives
2. Scope
3. Application of the Process Rule
4. Setting Priorities for Rulemaking Activity
5. Coverage Determination Rulemakings
6. Process for Developing Energy Conservation Standards
7. Policies on Selection of Standards
8. Test Procedures
9. ASHRAE Equipment
10. Direct Final Rules
11. Principles for Distinguishing Between Effective and Compliance
Dates
12. Principles for the Conduct of the Engineering Analysis
13. Principles for the Analysis of Impacts on Manufacturers
14. Principles for the Analysis of Impacts on Consumers
15. Consideration of Non-Regulatory Approaches
16. Cross-Cutting Analytical Assumptions
17. Emissions Analysis
1. Objectives
This appendix establishes procedures, interpretations, and
policies to guide the Department of Energy (``DOE'' or the
``Department'') in the consideration and promulgation of new or
revised appliance energy conservation standards and test procedures
under the Energy Policy and Conservation Act (EPCA). This appendix
applies to both covered consumer products and covered commercial/
industrial equipment. The Department's objectives in establishing
these procedures include:
(a) Provide for early input from stakeholders. The Department
seeks to provide opportunities for public input early in the
rulemaking process so that the initiation and direction of
rulemakings is informed by comment from interested parties. DOE will
be able to seek early input from interested parties in determining
whether establishing new or amending existing energy conservation
standards will result in significant savings of energy and is
economically justified and technologically feasible. In the context
of test procedure rulemakings, DOE will be able to seek early input
from interested parties in determining whether--
(1) Establishing a new or amending an existing test procedure
will better measure the energy efficiency, energy use, water use (as
specified in EPCA), or estimated annual operating cost of a covered
product/equipment during a representative average use cycle or
period of use (for consumer products); and
(2) Will not be unduly burdensome to conduct.
(b) Increase predictability of the rulemaking timetable. The
Department seeks to make informed, strategic decisions about how to
deploy its resources on the range of possible standards and test
procedure development activities, and to announce these
prioritization decisions so that all interested parties have a
common expectation about the timing of different rulemaking
activities. Further, DOE will offer the opportunity to provide input
on the prioritization of rulemakings through a request for comment
as DOE begins preparation of its Regulatory Agenda each spring.
(c) Eliminate problematic design options early in the process.
The Department seeks to eliminate from consideration, early in the
process, any design options that present unacceptable problems with
respect to manufacturability, consumer utility, or safety, so that
the detailed analysis can focus
[[Page 35683]]
only on viable design options. DOE will be able to eliminate from
consideration design options if it concludes that manufacture,
installation or service of the design will be impractical, or that
the design option will have a material adverse impact on the utility
of the product, or if the design option will have a material adverse
impact on safety or health. DOE will also be able to eliminate from
consideration proprietary design options that represent a unique
pathway to achieving a given efficiency level. This screening will
be done at the outset of a rulemaking.
(d) Fully consider non-regulatory approaches. The Department
seeks to understand the effects of market forces and voluntary
programs on encouraging the purchase of energy efficient products so
that the incremental impacts of a new or revised standard can be
accurately assessed and the Department can make informed decisions
about where standards and voluntary programs can be used most
effectively. DOE will continue to be able to support voluntary
efforts by manufacturers, retailers, utilities, and others to
increase product/equipment efficiency.
(e) Conduct thorough analysis of impacts. In addition to
understanding the aggregate social and private costs and benefits of
standards, the Department seeks to understand the distribution of
those costs and benefits among consumers, manufacturers, and others,
as well as the uncertainty associated with these analyses of costs
and benefits, so that any adverse impacts on subgroups and
uncertainty concerning any adverse impacts can be fully considered
in selecting a standard. DOE will be able to consider the
variability of impacts on significant groups of manufacturers and
consumers in addition to aggregate social and private costs and
benefits, report the range of uncertainty associated with these
impacts, and take into account cumulative impacts of regulation on
manufacturers. The Department will also be able to conduct
appropriate analyses to assess the impact that new or amended test
procedures will have on manufacturers and consumers.
(f) Use transparent and robust analytical methods. The
Department seeks to use qualitative and quantitative analytical
methods that are fully documented for the public and that produce
results that can be explained and reproduced, so that the analytical
underpinnings for policy decisions on standards are as sound and
well-accepted as possible.
(g) Support efforts to build consensus on standards. The
Department seeks to encourage development of consensus proposals for
new or revised standards because standards with such broad-based
support are likely to balance effectively the various interests
affected by such standards.
2. Scope
The procedures, interpretations, and policies described in this
appendix apply to rulemakings concerning new or revised Federal
energy conservation standards and test procedures, and related rule
documents (i.e., coverage determinations) for consumer products in
Part A and commercial and industrial equipment under Part A-1 of the
Energy Policy and Conservation Act (EPCA), as amended, except
covered ASHRAE equipment in Part A-1 are governed separately under
section 9 in this appendix.
3. Application of the Process Rule
(a) This appendix contains procedures, interpretations, and
policies that are generally applicable to the development of energy
conservation standards and test procedures. The Department may, as
necessary, deviate from this appendix to account for the specific
circumstances of a particular rulemaking.
(b) This appendix is not intended to, and does not, create any
right or benefit, substantive or procedural, enforceable at law or
in equity.
4. Setting Priorities for Rulemaking Activity
(a) In establishing its priorities for undertaking energy
conservation standards and test procedure rulemakings, DOE will
consider the following factors, consistent with applicable legal
obligations:
(1) Potential energy savings;
(2) Potential social and private, including environmental or
energy security, benefits;
(3) Applicable deadlines for rulemakings;
(4) Incremental DOE resources required to complete the
rulemaking process;
(5) Other relevant regulatory actions affecting the products/
equipment;
(6) Stakeholder recommendations;
(7) Evidence of energy efficiency gains in the market absent new
or revised standards;
(8) Status of required changes to test procedures; and
(9) Other relevant factors.
(b) DOE will offer the opportunity to provide input on
prioritization of rulemakings through a request for comment as DOE
begins preparation of its Regulatory Agenda each spring.
5. Coverage Determination Rulemakings
DOE has discretion to conduct proceedings to determine whether
additional consumer 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 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
[[Page 35684]]
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 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.
[[Page 35685]]
(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 https://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.
7. Policies on Selection of Standards
(a) Purpose. (1) Section 6 describes the process that will be
used to consider new or revised energy efficiency standards and
lists a number of factors and analyses that will be considered at
specified points in the process. Department policies concerning the
selection of new or revised standards, and decisions preliminary
thereto, are described in this section. These policies are intended
to elaborate on the statutory criteria provided in 42 U.S.C. 6295.
(2) The procedures described in this section are intended to
assist the Department in making the determinations required by EPCA
and do not preclude DOE's consideration of any other information
consistent with the relevant statutory criteria. The Department will
consider pertinent information in determining whether a new or
revised standard is consistent with the statutory criteria.
(b) Screening design options. These factors will be considered
as follows in determining whether a design option will receive any
further consideration:
(1) Technological feasibility. Technologies that are not
incorporated in commercial products or in commercially viable,
existing prototypes will not be considered further.
(2) Practicability to manufacture, install and service. If it is
determined that mass production of a technology in commercial
products and reliable installation and servicing of the technology
could not be achieved on the scale necessary to serve the relevant
market at the time of the compliance date of the standard, then that
technology will not be considered further.
(3) Impacts on product utility. If a technology is determined to
have significant adverse impact on the utility of the product/
equipment to subgroups of consumers, or result in the unavailability
of any covered product type with performance characteristics
(including reliability), features, sizes, capacities, and volumes
that are substantially the same as products generally available in
the U.S. at the time, it will not be considered further.
(4) Safety of technologies. If it is determined that a
technology will have significant adverse impacts on health or
safety, it will not be considered further.
(5) Unique-pathway proprietary technologies. If a technology has
proprietary protection and represents a unique pathway to achieving
a given efficiency level, it will not be considered further, due to
the potential for monopolistic concerns.
(c) Identification of candidate standard levels. Based on the
results of the engineering and cost/benefit analyses of design
options, DOE will identify the candidate standard levels for further
analysis. Candidate standard levels will be selected as follows:
(1) Costs and savings of design options. Design options that
have payback periods that exceed the median life of the product or
which result in life-cycle cost increases relative to the base case,
using typical fuel costs, usage, and private discount rates, will
not be used as the basis for candidate standard levels.
(2) Further information on factors used for screening design
options. If further information or analysis leads to a determination
that a design option, or a combination of design options, has
unacceptable impacts under the policies stated in this Appendix,
that design option or combination of design options will not be
included in a candidate standard level.
(3) Selection of candidate standard levels. Candidate standard
levels, which will be identified in the pre-NOPR documents and on
which impact analyses will be conducted, will be based on the
remaining design options.
(i) The range of candidate standard levels will typically
include:
(A) The most energy-efficient combination of design options;
(B) The combination of design options with the lowest life-cycle
cost; and
(C) A combination of design options with a payback period of not
more than three years.
(ii) Candidate standard levels that incorporate noteworthy
technologies or fill in large gaps between efficiency levels of
other candidate standard levels also may be selected.
(d) Pre-NOPR Stage. New information provided in public comments
on any pre-NOPR documents will be considered to determine whether
any changes to the candidate standard levels are needed before
proceeding to the analysis of impacts.
(e)(1) Selection of proposed standard. Based on the results of
the analysis of impacts, DOE will select a standard level to be
proposed for public comment in the NOPR. As required under 42 U.S.C.
6295(o)(2)(A), any new or revised standard must be designed to
achieve the maximum improvement in energy efficiency that is
determined to be both technologically feasible and economically
justified.
(2) Statutory policies. The fundamental policies concerning the
selection of standards include:
(i) A trial standard level will not be proposed or promulgated
if the Department determines that it is not both technologically
feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and 42
U.S.C. 6295(o)(3)(B)) For a trial standard level to be economically
justified, the Secretary must determine that the benefits of the
standard exceed its burdens by, to the greatest extent practicable,
considering the factors listed in 42 U.S.C. 6295(o)(2)(B)(i). A
standard level is subject to a rebuttable presumption that it is
economically justified if the payback period is three years or less.
(42 U.S.C. 6295(o)(2)(B)(iii))
(ii) If the Department determines that interested persons have
established by a preponderance of the evidence that a standard level
is likely to result in the unavailability in the United States of
any covered product/equipment type (or class) with performance
characteristics (including reliability), features, sizes,
capacities, and volumes that are substantially the same as products
generally available in the U.S. at the time of the determination,
then that standard level will not be proposed. (42 U.S.C.
6295(o)(4))
(iii) If the Department determines that a standard level would
not result in significant conservation of energy, that standard
level will not be proposed. (42 U.S.C. 6295(o)(3)(B))
(f) Selection of a final standard. New information provided in
the public comments on the NOPR and any analysis by the Department
of Justice concerning impacts on competition of the proposed
standard will be considered to determine whether issuance of a new
or amended energy conservation standard produces the maximum
improvement in energy efficiency that is both technologically
feasible and economically justified and still constitutes
significant energy savings or whether any change to the proposed
standard level is needed before proceeding to the final rule. The
same
[[Page 35686]]
policies used to select the proposed standard level, as described in
this section, will be used to guide the selection of the final
standard level or a determination that no new or amended standard is
justified.
8. 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.
(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. 6295(p)(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 modification. 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.
(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. DOE notes that the statutory language
``consistent with'' provides some flexibility in adopting the
amended industry test procedure. As EPCA does not require DOE to
adopt a test procedure identical to the applicable industry test
standard, DOE may make modifications that are consistent with the
applicable industry test standard. Further, DOE 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 selection of models for testing under an industry
certification program, verification of represented values and the
associated tolerances, and operational
[[Page 35687]]
requirements need not be adopted or aligned with by DOE).
(c) ASHRAE Lookback Rulemakings. EPCA also requires that DOE
periodically consider amending energy conservation standards and
test procedures for ASHRAE equipment.
(1) EPCA requirements for ASHRAE equipment outside of the ASHRAE
Standard 90.1 process include:
(i) Energy Conservation Standards. 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).
(A) If DOE issues a notice of proposed rulemaking, it shall
publish a final rule no more than 2 years later.
(B) 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 in 42 U.S.C. 6313(a)(6)(B) and
supported by clear and convincing evidence).
(ii) Test Procedures. At least once every 7 years, DOE shall
conduct an evaluation, and if DOE determines, supported by clear and
convincing evidence, 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. DOE notes that EPCA requires test procedures
that are ``consistent with'' industry test procedures. As noted in
paragraph (b)(2) of this section, this affords DOE some flexibility
in making modifications to the DOE test procedure that are
consistent with the industry test procedure. Otherwise, DOE shall
publish a notice of determination not to amend a test procedure.
(2) DOE's 6-year-lookback and 7-year-lookback review
requirements, as detailed in this section, are regulatory
obligations specific to DOE and not satisfied by any ASHRAE action.
Specifically, ASHRAE reviewing and reaffirming (but not amending) a
standard or test procedure does not eliminate DOE's separate
requirement to review each class of covered equipment.
10. Direct Final Rules
In accordance with 42 U.S.C. 6295(p)(4), on receipt of a joint
proposal that is submitted by interested persons that are fairly
representative of relevant points of view, DOE may issue a direct
final rule (DFR) establishing energy conservation standards for a
covered product or equipment if DOE determines the recommended
standard is in accordance with 42 U.S.C. 6295(o) or 42 U.S.C.
6313(a)(6)(B) as applicable. To be ``fairly representative of
relevant points of view'' the group submitting a joint statement
must, where appropriate, include larger concerns and small
businesses in the regulated industry/manufacturer community, energy
advocates, energy utilities, consumers, and States. However, it will
be necessary to evaluate the meaning of ``fairly representative'' on
a case-by-case basis, subject to the circumstances of a particular
rulemaking, to determine whether fewer or additional parties must be
part of a joint statement in order to be ``fairly representative of
relevant points of view.''
11. Principles for Distinguishing Between Effective and Compliance
Dates
(a) Dates, generally. The effective and compliance dates for
either DOE test procedures or DOE energy conservation standards are
typically not identical, and these terms should not be used
interchangeably.
(b) Effective date. The effective date is the date a rule is
legally operative after being published in the Federal Register.
(c) Compliance date. (1) For test procedures, the compliance
date is the specific date when manufacturers are required to use the
new or amended test procedure requirements to make representations
concerning the energy efficiency or use of a product, including
certification that the covered product/equipment meets an applicable
energy conservation standard.
(2) For energy conservation standards, the compliance date is
the specific date upon which manufacturers are required to meet the
new or amended standards for applicable covered products/equipment
that are distributed in interstate commerce.
12. Principles for the Conduct of the Engineering Analysis
(a) The purpose of the engineering analysis is to develop the
relationship between efficiency and cost of the subject product/
equipment. Another important role of the engineering analysis is to
identify the maximum technologically feasible level. The maximum
technologically feasible level is one that can be reached through
efficiency improvements and/or design options, both commercially
feasible and in working prototypes. The Department will consider two
elements in the engineering analysis: The selection of efficiency
levels to analyze, as discussed in paragraph (b) of this section;
and the determination of product cost at each efficiency level, as
discussed in paragraph (c) of this section. From the efficiency/cost
relationship developed in the engineering analysis, measures such as
payback, life-cycle cost, and energy savings can be developed. The
Department will identify issues that will be examined in the
engineering analysis and the types of specialized expertise that may
be required. DOE will select appropriate contractors,
subcontractors, and expert consultants, as necessary, to perform the
engineering analysis. DOE will minimize uncertainties by using
measures such as test data or component or material supplier
information where available. Also, the Department will consider
data, information, and analyses received from interested parties for
use in the analysis wherever feasible.
(b) The Department will typically use one of two approaches to
develop energy efficiency levels for the engineering analysis:
Relying on observed efficiency levels in the market (i.e., the
efficiency-level approach); or determining the incremental
efficiency improvements associated with incorporating specific
design options to a baseline model (i.e., the design-option
approach). The Department will consider the availability of data and
analytical tools, the resource needs, and public comments when
determining the best approach or combination of approaches for an
engineering analysis.
(1) Using the efficiency-level approach, the efficiency levels
established for the analysis will be determined based on the market
distribution of existing products. This approach typically entails
compiling a comprehensive list of products available on the market,
such as from DOE's product certification database and conducting DOE
energy performance tests to validate the certified ratings.
(2) Using the design option approach, the efficiency levels
established for the analysis will be determined through detailed
engineering calculations and/or computer simulations of the
efficiency improvements from implementing specific design options
that have been identified in the technology assessment and screening
analysis. The design option approach will typically be used when a
comprehensive database of certified models is unavailable. In
certain rulemakings, the efficiency-level approach (based on actual
products on the market) will be extended using the design option
approach to interpolate to define ``gap fill'' levels (to bridge
large gaps between other identified efficiency levels) and/or to
extrapolate to the ``max-tech'' level (the level that DOE determines
is the maximum achievable efficiency level, particularly in cases
where the ``max-tech'' level exceeds the maximum efficiency level
currently available on the market). The Department will identify,
modify, or develop any engineering models necessary to predict the
efficiency impact of any one or combination of design options on the
product/equipment as measured by the applicable DOE test procedure.
(3) The cost-efficiency curve and a detailed description of any
engineering models will be available to stakeholders during the pre-
NOPR stage of the rulemaking.
(c) The Department will typically conduct the cost analysis
using one or a combination of approaches depending on a suite of
factors, including the availability and reliability of public
information, characteristics of the subject product/equipment, and
the availability and timeliness of purchasing the product/equipment
on the market. The cost approaches are summarized as follows:
(1) Physical teardowns: Under this approach, the Department will
physically dismantle a commercially-available product/equipment
model, component-by-component, to develop a detailed bill of
materials for the model. The core function of
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physical teardowns is to support the costing analysis; however, it
serves other purposes as well. The teardown process provides
information on the range of design options used to improve energy
efficiency and informs the technology assessment. Performance
testing and teardowns are used to define the baseline, against which
incremental energy savings and incremental costs are compared.
Teardowns are also used to identify technology options for
consideration in the screening analysis and design paths for the
Engineering Analysis.
(2) Catalog teardowns: The Department will often complement
physical teardowns with catalogue (a.k.a., ``virtual'') teardowns,
thereby allowing the analysis to capture a broader range of
capacities and other features within a product family. In lieu of
physically deconstructing the product/equipment, the Department will
identify each component using parts diagrams (available from
manufacturer websites or appliance repair websites, for example) to
develop the bill of materials for the product/equipment. An analysis
comprised of only virtual teardowns is also possible for product
categories where features are well-documented.
(3) Price surveys: If neither a physical nor catalog teardown is
feasible, or if they would be cost-prohibitive or otherwise
impractical, the Department will conduct price surveys using
publicly-available pricing data published on major online retailer
websites and/or by soliciting prices from distributors and other
commercial channels.
13. Principles for the Analysis of Impacts on Manufacturers
(a) Purpose. The purpose of the manufacturer impact analysis
(MIA) is to identify and quantify the impacts of any new or amended
energy conservation standards on manufacturers. The MIA will have
both quantitative and qualitative aspects, and it will include the
analyses of projected industry cash flows, the industry net present
value, conversion costs, and direct employment. Additionally, the
MIA will seek to describe how new or amended energy conservation
standards might affect manufacturing capacity and competition, as
well as how standards contribute to overall regulatory burden.
Finally, the MIA will seek to identify any disproportionate impacts
on manufacturer subgroups, including small business manufacturers.
The Department will analyze the impact of standards on manufacturers
with substantial input from manufacturers and other interested
parties. This section describes the principles that will be used in
conducting future manufacturing impact analyses.
(b) Issue identification. Prior to publishing a NOPR, the
Department will identify issues that will require greater
consideration in the detailed manufacturer impact analysis. Possible
issues may include identification of specific types or subgroups of
manufacturers and concerns over access to technology. Specialized
contractor expertise and empirical data requirements, and analytic
tools required to perform the manufacturer impact analysis also
would be identified at this stage.
(c) Industry characterization. Prior to publishing a NOPR, the
Department will prepare an industry profile based on the market and
technology assessment and other publicly available information. DOE
will use public sources of information (e.g., company financial
reports) to derive preliminary financial inputs for the industry
cash flow analysis. DOE will describe the present and past industry
structure and market characteristics.
(d) Interview Process. DOE will seek to conduct structured,
detailed interviews with manufacturers. During these interviews, DOE
will discuss engineering, manufacturing, procurement, and financial
topics in order to develop and validate key financial inputs,
including product and capital conversion costs, and to gather
additional information on the anticipated effects of energy
conservation standards on revenues, direct employment, capital
assets, industry competition, and subgroup impacts.
(e) Industry Cash Flow Analysis. The quantitative part of the
MIA will rely primarily on the Government Regulatory Impact Model
(``GRIM''), an industry cash flow model with inputs specific to each
rulemaking. The Department will develop critical GRIM inputs using a
number of sources, including publicly-available data, results of the
other rulemaking analyses, and information gathered from industry
stakeholders during the course of manufacturer interviews. To
capture the uncertainty relating to manufacturer cost impacts and
impacts on product/equipment sales, features, and prices following
amended standards, the Department will use the GRIM to estimate a
range of possible impacts under different scenarios.
(f) Cost impacts on manufacturers. The Department will seek
input from interested parties on the treatment of cost issues.
Manufacturers will be encouraged to offer suggestions and feedback
on sources of data and DOE cost estimates. Costing issues to be
addressed include:
(1) Product/equipment-specific costs associated with direct
material, labor, and factory overhead (based on cost impacts
estimated for the engineering analysis);
(2) Product conversion costs, which are investments in research,
development, testing, marketing, and other non-capitalized costs
necessary to make product designs comply with new or amended energy
conservation standards; and
(3) Capital conversion costs, which are investments in property,
plants, and equipment necessary to adapt or change production
facilities such that new, compliant product designs can be
fabricated and assembled.
(g) Disproportional impacts on manufacturer subgroups. DOE will
evaluate subgroups of manufacturers that may be disproportionately
impacted by standards or that may not be accurately represented by
the average cost assumptions used to develop the industry cash flow
analysis. Such manufacturer subgroups may include small business
manufacturers, niche players, and/or manufacturers exhibiting a cost
structure that largely differs from the industry average. The
subgroup analysis will include qualitative descriptions and, where
sufficient non-proprietary data are available, quantitative
estimates.
(h) Impacts on product/equipment sales, features, and prices.
The GRIM estimates manufacturer revenues based on total unit
shipment projections and the distribution of those shipments by
efficiency level. For this analysis, the GRIM uses the NIA's annual
shipment projections derived from the shipments analysis.
(i) Measures of impact. The Department will use the GRIM to
calculate cash flows using standard accounting principles and
changes in industry net present value (INPV) between the no-new-
standards case and each standards case. The difference in INPV
between the no-new-standards case and a standards case represents
the financial impact of the new or amended energy conservation
standard on manufacturers. Computations will be performed for the
industry as a whole and, as appropriate, for manufacturer subgroups.
Impacts to be analyzed include:
(1) Industry net present value and change in INPV relative to
the no-new-standards case industry value. The Department will
perform sensitivity/scenario analyses for parameters where
significant uncertainty was identified and/or for which DOE received
significant comment. An uncertainty analysis could include inputs
such as production costs, conversion costs, manufacturer mark-ups,
and shipment projections.
(2) Industry annual cash flows and percent change relative to
the no-new-standards cash flow levels. The Department will analyze
the impact of the new or amended standard on industry annual free
cash flow as an indicator of potential financial constraints in the
industry.
(3) Other measures of impact are described in paragraphs (j)
through (m) of this section and will also be evaluated in the MIA.
(j) Cumulative Impacts of Other Federal Regulatory Actions.
(1) The Department will recognize and consider the overlapping
effects on manufacturers of new or revised DOE standards and other
Federal regulatory actions affecting the same products or equipment.
(2) If the Department determines that a proposed standard would
impose a significant impact on product or equipment manufacturers
within approximately three years of the compliance date of another
DOE standard that imposes significant impacts on the same
manufacturers (or divisions thereof, as appropriate), the Department
will, to the extent possible, evaluate the impact on manufacturers
of the proposed standard and assess the joint impacts of both
standards on manufacturers as described in paragraph (j)(4) of this
section.
(3) If the Department is directed to establish or revise
standards for products/equipment that are components of other
products/equipment subject to standards, the Department will
consider the interaction between such standards in assessing
manufacturer impacts of a particular standard as described in
paragraph (j)(4) of this section.
(4) The Department will seek to assess regulations that affect
the same product and same revenue streams in an appropriately
coordinated or integrated analysis. Where
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multiple regulations do not affect the same revenue streams but lead
to industry constraints due to resources shared (such as capital,
engineering time, test lab availability, or limited capacity of
shared vendors) across covered products, DOE will describe and
consider those industry constraints.
(k) Competitive Impact Assessment. EPCA directs the Department
to consider any lessening of competition that is likely to result
from imposition of standards. It further directs the Attorney
General to determine in writing the impacts, if any, of any
lessening of competition. To assist the Attorney General in making
this determination, DOE will gather information that would help in
assessing asymmetrical cost increases to some manufacturers,
increased proportion of fixed costs potentially increasing business
risks, and potential barriers to market entry (e.g., proprietary
technologies).
(l) Manufacturing Capacity Impact. Through public comment and
during the manufacturer interviews, the Department will seek
information to help identify impacts on manufacturing capacity, such
as:
(1) Capacity utilization and plant location decisions with and
without new or amended standards;
(2) The ability of manufacturers to upgrade or remodel existing
facilities to accommodate new or amended standards;
(3) The nature and value of stranded assets, if any, that are a
direct result of new or amended standards; and
(4) Estimates for any one-time restructuring and other charges,
where applicable.
(m) Direct Employment Impacts. To assess how direct employment
patterns might be affected by new or amended standards, the
Department will solicit industry participant views on changes in
employment patterns that may result from increased standard levels.
To help bound quantitative estimates of the potential employment
impacts, the Department will use the GRIM to estimate the number of
direct employees in the no-new-standards case and in each of the
standards cases during the analysis period.
(n) Summary of quantitative and qualitative assessments. The
NOPR will include a summary of the manufacturer impacts detailed in
the TSD. In the NOPR, DOE will report the manufacturer impacts for
standard levels that are evaluated and discuss quantitative and
qualitative impacts by standard level.
14. Principles for the Analysis of Impacts on Consumers
(a) Early consideration of impacts on consumer utility. The
Department will consider at the earliest stages of the development
of a standard whether particular design options will lessen the
utility of the covered products/equipment to the consumer. See
paragraph (c) of section 6.
(b) Impacts on product/equipment availability. The Department
will determine, based on consideration of information submitted
during the standard development process, whether a proposed standard
is likely to result in the unavailability of any covered product/
equipment type with performance characteristics (including
reliability), features, sizes, capacities, and volumes that are
substantially the same as products/equipment generally available in
the U.S. at the time. DOE will not promulgate a standard if it
concludes that it would result in such unavailability.
(c) Measures of consumer impacts. In the assessment of consumer
impacts of standards, the Department will consider the Life-Cycle
Cost and Payback Period to evaluate the savings in operating
expenses relative to increases in the installed product cost.
(1) Consumer discount rates. To determine present values of
costs and benefits in life-cycle cost analysis for residential
consumers, DOE will calculate discount rates as the weighted average
real interest rate across consumer debt and equity holdings. For
commercial/industrial consumers, DOE will calculate discount rates
as the weighted average cost of capital. DOE will use discount rate
distributions to capture the diversity of residential and
commercial/industrial consumers.
(2) Variation in consumer impacts. The Department will consider
impacts on significant segments of consumers in determining
standards levels, and will use representative consumer samples where
possible to evaluate the potential distribution of impacts of
candidate/trial standard levels being evaluated among consumers
using the product under consideration for standards. Where LCC
savings are positive, the Department will also consider impacts on
any significant subgroups of consumers that may be
disproportionately impacted by a potential standard level, such as
low-income households or small businesses. DOE will consider non-
regulatory approaches as discussed in Section 15, taking into
account significant impacts on identifiable subgroups.
(3) Sensitivity and scenario analyses. For data or assumptions
subject to a higher degree of uncertainty, the Department will also
perform sensitivity and scenario analyses when appropriate.
15. Consideration of Non-Regulatory Approaches
The Department recognizes that non-regulatory efforts by
manufacturers, utilities, and other interested parties can result in
substantial efficiency improvements. The Department intends to
consider the likely effects of non-regulatory initiatives relative
to standard levels being evaluated. DOE will attempt to base its
assessment on the actual impacts of such initiatives to date, but it
also will consider information presented regarding the impacts that
any existing initiative might have in the future.
16. Cross-Cutting Analytical Assumptions
In selecting values for certain cross-cutting analytical
assumptions, DOE expects to rely upon the following sources and
general principles.
(a) Underlying economic assumptions. The appliance standards
analyses will generally use the same economic growth assumptions
that underlie the most current Annual Energy Outlook (AEO) published
by the Energy Information Administration (EIA).
(b) Analytic time length. The appliance standards analyses will
generally consider impacts over the lifetime of products shipped
over a 30-year period. As a sensitivity case, the analyses may also
use a shorter time period in analyzing the effects of the standard.
(c) Energy price trends. Analyses of the impact of appliance
standards on users will generally adopt the reference energy price
scenario of the EIA's most current AEO. The sensitivity of estimated
impacts to possible variations in future energy prices are likely to
be examined using the EIA's high and low energy price scenarios. The
analyses will incorporate regional and/or marginal prices as
appropriate and where available.
(d) Product/equipment-specific energy-efficiency trends, without
updated standards. Product/equipment-specific energy-efficiency
trends will be based on the best available historical market data,
technology trends, and other product-specific assessments by DOE
with input from interested parties.
(e) Discount rates for national costs and benefits. DOE uses
both 3-percent and 7-percent real discount rates when estimating
national impacts. Those discount rates are in accordance with the
Office of Management and Budget (OMB)'s guidance to Federal agencies
on developing regulatory analyses (OMB Circular A-4 (Sept. 17, 2003)
and section E., ``Identifying and Measuring Benefits and Costs,''
therein).
17. Emissions Analysis
(a) Emissions reductions. DOE will use best practices at the
time to estimate emission reductions of certain greenhouse gases and
pollutants likely to result from standard levels being evaluated. To
date best practice means the emissions analysis typically includes
two components. In the first component, DOE typically develops the
power sector emissions analysis--to date best practice includes
using a methodology that utilizes DOE's latest Annual Energy
Outlook. For site combustion of natural gas or petroleum fuels, to
date best practice means the combustion emissions are typically
estimated using emission intensity factors from the Environmental
Protection Agency (EPA). The second component of DOE's emissions
analysis typically estimates the effect of standard levels being
evaluated on emissions due to ``upstream activities'' in the fuel
production chain. These upstream activities include the emissions
related to extracting, processing, and transporting fuels to the
site of combustion, e.g., as detailed in DOE's Full-Fuel-Cycle
Statement of Policy (76 FR 51281 (August 18, 2011)).
(b) Monetization of emissions reductions. For estimating the
economic value of avoided emissions of carbon dioxide and other
greenhouse gases, as well as those of other air pollutants, DOE will
follow the best practices at the time, for example, by using
accepted benefit-per-ton values from the scientific literature at
the time.
[FR Doc. 2021-14273 Filed 7-6-21; 8:45 am]
BILLING CODE 6450-01-P