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, 24340-24363 [2024-07114]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Rules and Regulations]
[Pages 24340-24363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07114]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2021-BT-STD-0003]
RIN 1904-AF13


Energy Conservation Program for Appliance Standards: Procedures, 
Interpretations, and Policies for Consideration in New or Revised 
Energy Conservation Standards and Test Procedures for Consumer Products 
and Commercial/Industrial Equipment

AGENCY: Office of Energy Efficiency and Renewable Energy (EERE), 
Department of Energy.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'') 
is revising its ``Procedures, Interpretations, and Policies for 
Consideration of New or Revised Energy Conservation Standards and Test 
Procedures for Consumer Products and Certain Commercial/Industrial 
Equipment.'' The revisions are consistent with current DOE practice and 
will allow DOE to better meet its statutory obligations under the 
Energy Policy and Conservation Act (``EPCA'').

DATES: This rule is effective June 24, 2024.

ADDRESSES: The docket for this rulemaking, which includes Federal 
Register notices, comments, and other supporting documents/materials, 
is available for review at www.regulations.gov. All documents in the 
docket are listed in the www.regulations.gov index. However, not all 
documents listed in the index may be publicly available, such as 
information that is exempt from public disclosure. The docket web page 
can be found at: www.regulations.gov/docket/EERE-2021-BT-STD-0003. The 
docket web page contains instructions on how to access all documents, 
including public comments, in the docket.

FOR FURTHER INFORMATION CONTACT: 
    Mr. Lucas Adin, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Email:

[[Page 24341]]

[email protected].
    Ms. Ani Esenyan, U.S. Department of Energy, Office of the General 
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585. 
Telephone: (240) 961-8713. Email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary of the Final Rule
II. Authority and Background
    A. Authority
    B. Background
III. Discussion of Specific Revisions to Appendix A
    A. Coverage Determinations
    B. Process for Developing Energy Conservation Standards
    C. Process for Developing Test Procedures
    D. ASHRAE Equipment
    E. Analytical Methodology
    F. Other Topics
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Review Consistent With OMB's Information Quality Bulletin for 
Peer Review
    M. Congressional Notification
V. Approval of the Office of the Secretary

I. Summary of the Final Rule

    In July of 1996, the United States Department of Energy (``DOE'' or 
``the Department'') issued a final rule that codified DOE's 
``Procedures, Interpretations and Policies for Consideration of New or 
Revised Energy Conservation Standards for Consumer Products'' at 10 CFR 
part 430, subpart C, appendix A (``appendix A''). 61 FR 36974 (July 15, 
1996) (``July 1996 Final Rule''). The July 1996 Final Rule acknowledged 
that the guidance contained in appendix A would not apply to every 
rulemaking and that the circumstances of a particular rulemaking should 
dictate application of these generally applicable practices. 61 FR 
36979.
    On February 14, 2020, DOE published a final rule (``February 2020 
Final Rule'') in the Federal Register that made significant revisions 
to appendix A. 85 FR 8626. DOE also published a companion final rule on 
August 19, 2020 (``August 2020 Final Rule''), that clarified how DOE 
would conduct a comparative analysis across all energy conservation 
standard ``trial standard levels'' (``TSLs'') when determining whether 
a particular TSL was economically justified. See 85 FR 50937. Contrary 
to the July 1996 Final Rule, the revisions made in the February 2020 
Final Rule sought to create a standardized rulemaking process that was 
binding on the Department. 85 FR 8626, 8634. In creating this ``one-
size-fits-all'' approach, the February 2020 Final Rule and the August 
2020 Final Rule also added additional steps to the rulemaking process 
that are not required by any applicable statute.
    Subsequent events have caused DOE to reconsider the merits of a 
one-size-fits-all rulemaking approach to establishing and amending 
energy conservations standards and test procedures. Two of these events 
are particularly salient. First, on October 30, 2020, a coalition of 
non-governmental organizations filed suit under EPCA alleging that DOE 
has failed to meet rulemaking deadlines for 25 different consumer 
products and commercial equipment.\1\ On November 9, 2020, a coalition 
of States filed a virtually identical lawsuit.\2\ In response to these 
lawsuits, DOE has reconsidered whether the benefits of a one-size-fits-
all rulemaking approach outweigh the increased difficulty such an 
approach poses in meeting DOE's statutory deadlines and obligations 
under EPCA. As mentioned previously, the July 1996 Final Rule allowed 
for ``case-specific deviations and modifications of the generally 
applicable rule.'' 61 FR 36974, 36979. This allowed DOE to tailor 
rulemaking procedures to fit the specific circumstances of a particular 
rulemaking. For example, under the July 1996 Final Rule, minor 
modifications to a test procedure would not automatically result in a 
180-day delay before DOE could issue a notice of proposed energy 
conservation standards. Eliminating these unnecessary delays would 
better enable DOE to clear this backlog of missed rulemaking deadlines 
in a timely manner and meet future obligations and deadlines under EPCA 
while not affecting the ability of any interested person, including 
small entities, to participate in DOE's rulemaking process. Further, 
the sooner new or amended energy conservation standards eliminate less-
efficient covered products and equipment from the market, the greater 
the resulting energy savings and environmental benefits.
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    \1\ Natural Resources Defense Council v. DOE, Case No. 20-cv-
9127 (S.D.N.Y. 2020).
    \2\ State of New York v. DOE, Case No. 20-cv-9362 (S.D.N.Y. 
2020).
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    Second, on January 20, 2021, the White House issued Executive Order 
13990, ``Protecting Public Health and the Environment and Restoring 
Science to Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25, 2021). 
Section 1 of that order lists a number of policies related to the 
protection of public health and the environment, including reducing 
greenhouse gas emissions and bolstering the Nation's resilience to 
climate change. Id. at 86 FR 7037, 7041. Section 2 of the order 
instructs all agencies to review ``existing regulations, orders, 
guidance documents, policies, and any other similar agency actions 
(agency actions) promulgated, issued, or adopted between January 20, 
2017, and January 20, 2021, that are or may be inconsistent with, or 
present obstacles to, [these policies].'' Id. Agencies are then 
directed, as appropriate and consistent with applicable law, to 
consider suspending, revising, or rescinding these agency actions and 
to immediately commence work to confront the climate crisis. Id. Under 
that same section, for certain explicitly enumerated agency actions, 
including the February 2020 and the August 2020 Final Rules, the order 
directs agencies to consider publishing for notice and comment a 
proposed rule suspending, revising, or rescinding the agency action 
within a specific time frame. Under this mandate, DOE was directed to 
propose any major revisions to these two rules by March 2021, with any 
remaining revisions to be proposed by June 2021. Id. at 86 FR 7038.
    In light of these events, DOE has identified several aspects of the 
February 2020 and the August 2020 Final Rules that present obstacles to 
DOE's ability to expeditiously clear the backlog of missed rulemaking 
deadlines while meeting future obligations under EPCA. In accordance 
with E.O. 13990, DOE proposed major revisions to appendix A in a notice 
of proposed rulemaking (``NOPR'') that was published on April 12, 2021 
(``April 2021 NOPR''). 86 FR 18901. DOE proposed additional revisions 
to appendix A in a second NOPR that was published on July 7, 2021 
(``July 2021 NOPR''). 86 FR 35668. DOE finalized the major revisions 
from the April 2021 NOPR in a final rule published on December 13, 2021 
(``December 2021 Final Rule''). 86 FR 70892.
    In this document, DOE is finalizing the revisions listed in table 
I.1. As noted in the table, DOE is not finalizing any

[[Page 24342]]

of the proposed revisions that would have updated the methodology 
sections in appendix A to reflect the Department's current rulemaking 
practice. Prior to issuing the July 2021 NOPR, DOE had entered into a 
contract with the National Academies of Sciences, Engineering, and 
Medicine (``NAS'') to conduct a peer review of the analytical methods 
used in the Department's energy conservation standards rulemakings. The 
peer review was originally scheduled to be completed in May of 2020. 
However, when DOE began to consider revisions to appendix A in early 
2021, the NAS peer review process was still ongoing without a 
definitive completion date. At that point, DOE decided that the 
benefits of updating the analytical methodology in the July 1996 Final 
Rule to reflect the Department's current practice outweighed the 
potential inefficiency of having to amend these methods again in a 
subsequent proceeding. As a result, the July 2021 NOPR contained 
proposed revisions to the methodology sections in appendix A. DOE 
stated that if it made any revisions to its analytical methods based on 
the NAS peer review, the Department would propose any necessary 
corresponding revisions to appendix A in a subsequent proceeding. Id. 
at 86 FR 35677.
    In response to the July 2021 NOPR, DOE received numerous comments 
from stakeholders that the Department should wait to revise its 
analytical methodologies until NAS had completed its peer review. (See, 
e.g., Carrier, No. 54 at p. 4; Lutron, No. 64 at p. 4; GEA, No. 72 at 
p. 4; Joint Industry Commenters, No. 62 at pp. 10-11) \3\ While DOE was 
in the process of considering those comments, NAS completed the peer 
review and transmitted to DOE its report, ``Review of Methods Used by 
the U.S. Department of Energy in Setting Appliance and Equipment 
Standards'' (``NAS Report''), on January 7, 2022.\4\ In light of the 
publication of the NAS report and stakeholder comments in response to 
the July 2021 NOPR, DOE has decided not to finalize the proposed 
revisions to the methodology sections in appendix A in this rule. 
Instead, DOE will consider changes to its methodologies in a separate 
notice-and-comment process that is informed by the results of the NAS 
Report.
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    \3\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking to revise 
appendix A. (Docket No. EERE-2021-BT-STD-0003, which is maintained 
at www.regulations.gov) The references are arranged as follows: 
(commenter name, comment docket ID number, page of that document).
    \4\ The NAS Report is available at www.nap.edu/catalog/25992/review-of-methods-used-by-the-us-department-of-energy-in-setting-appliance-and-equipment-standards.

                                  Table I.1--List of Revisions in This Document
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                                          Proposed revisions from the July
                Section                              2021 NOPR                         Final revisions
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1. Objectives.........................  No revisions proposed..............  No revisions.
2. Scope..............................  No revisions proposed..............  No revisions.
3. Mandatory Application of the         No revisions proposed..............  No revisions.
 Process Rule.
4. Setting Priorities for Rulemaking    No revisions proposed..............  No revisions.
 Activity.
5. Coverage Determination Rulemakings.  Revise introductory text and         Revised, as proposed, introductory
                                         paragraph (a) to eliminate the       text and paragraph (a) to
                                         requirement that a coverage          eliminate the requirement that a
                                         determination rulemaking begins      coverage determination rulemaking
                                         with a notice of proposed            begins with a notice of proposed
                                         determination and allow DOE to       determination and allow DOE to
                                         seek early stakeholder input         seek early stakeholder input
                                         through preliminary rulemaking       through preliminary rulemaking
                                         documents; revise paragraphs (b)     documents; revise paragraphs (b)
                                         and (c) to eliminate the             and (c) to eliminate the
                                         requirement that final coverage      requirement that final coverage
                                         determinations be published prior    determinations be published prior
                                         to the initiation of any test        to the initiation of any test
                                         procedure or energy conservation     procedure or energy conservation
                                         standard rulemaking and at least     standard rulemaking and at least
                                         180 days prior to publication of a   180 days prior to publication of a
                                         test procedure NOPR; revise          test procedure NOPR; revise
                                         paragraph (d) to allow DOE to        paragraph (d) to allow DOE to
                                         propose, if necessary, an amended    propose, if necessary, an amended
                                         coverage determination before        coverage determination before
                                         proceeding with a test procedure     proceeding with a test procedure
                                         or standards rulemaking.             or standards rulemaking.
6. Process for Developing Energy        Revise to modify these provisions    Revised, as proposed, to allow for
 Conservation Standards.                 to allow for a more expedited        a more expedited rulemaking
                                         rulemaking process in appropriate    process in appropriate cases,
                                         cases, including but not limited     including but not limited to
                                         to eliminating the requirement for   eliminating the requirement for a
                                         a separate early assessment          separate early assessment request
                                         request for information (``RFI'')    for information (``RFI'') and
                                         and clarify that DOE will issue      clarify that DOE will issue one or
                                         one or more documents during the     more documents during the pre-NOPR
                                         pre-NOPR stage of a rulemaking and   stage of a rulemaking and
                                         revisions to clarify public          revisions to clarify public
                                         comment periods for pre-NOPR and     comment periods for pre-NOPR and
                                         NOPR documents.                      NOPR documents.
7. Policies on Selection of Standards.  No revisions proposed..............  No revisions.
8. Test Procedures....................  Revise paragraph (a) to eliminate    Revised, as proposed, paragraph (a)
                                         the requirement for a separate       to eliminate the requirement for a
                                         early assessment RFI and clarify     separate early assessment RFI and
                                         that DOE will issue one or more      clarify that DOE will issue one or
                                         documents during the pre-NOPR        more documents during the pre-NOPR
                                         stage of a rulemaking; revise        stage of a rulemaking; paragraphs
                                         paragraphs (a) and (b) to clarify    (a) and (b) to clarify public
                                         public comment periods for pre-      comment periods for pre-NOPR and
                                         NOPR and NOPR documents and          NOPR documents and eliminate the
                                         eliminate the requirement that DOE   requirement that DOE identify
                                         identify necessary modifications     necessary modifications to a test
                                         to a test procedure prior to         procedure prior to initiating an
                                         initiating an associated energy      associated energy conservation
                                         conservation standard rulemaking.    standard rulemaking.
9. ASHRAE Equipment...................  Revise section to follow ASHRAE      Revised section to follow ASHRAE
                                         rulemaking requirements in EPCA.     rulemaking requirements in EPCA.
10. Direct Final Rules................  No revisions proposed..............  No revisions.
11. Principles for Distinguishing       No revisions proposed..............  No revisions.
 Between Effective and Compliance
 Dates.
12. Principles for the Conduct of the   Revise to reflect current DOE        No revisions.
 Engineering Analysis.                   rulemaking practice.
13. Principles for the Analysis of      Revise to reflect current DOE        No revisions.
 Impacts on Manufacturers.               rulemaking practice.

[[Page 24343]]

 
14. Principles for the Analysis of      Revise to reflect current DOE        No revisions.
 Impacts on Consumers.                   rulemaking practice.
15. Consideration of Non-Regulatory     Revise to reflect current DOE        No revisions.
 Approaches.                             rulemaking practice.
16. Cross-Cutting Analytical            Revise to reflect current DOE        No revisions.
 Assumptions.                            rulemaking practice; move
                                         discussion of emissions analysis
                                         into new section 17.
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* As part of the proposed revisions, DOE will reorganize and redesignate sections and paragraphs as required.

II. Authority and Background

A. Authority

    Title III, Parts B \5\ and C \6\ of the Energy Policy and 
Conservation Act, as amended, (``EPCA'' or ``the Act''), Public Law 94-
163 (42 U.S.C. 6291-6317, as codified), established the Energy 
Conservation Program for Consumer Products and Certain Industrial 
Equipment.\7\ Under EPCA, DOE's energy conservation program for covered 
products consists essentially of four parts: (1) testing; (2) 
certification and enforcement procedures; (3) establishment of Federal 
energy conservation standards; and (4) labeling. Subject to certain 
criteria and conditions, DOE is required to develop test procedures to 
measure the energy efficiency, energy use, water use (as applicable), 
or estimated annual operating cost of each covered product and covered 
equipment during a representative average use cycle or period of use. 
(42 U.S.C. 6293; 42 U.S.C. 6314) Manufacturers of covered products and 
covered equipment must use the prescribed DOE test procedure when 
certifying to DOE that their products and equipment comply with the 
applicable energy conservation standards adopted under EPCA and when 
making any other representations to the public regarding the energy use 
or efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s); 
42 U.S.C. 6314(a); and 42 U.S.C. 6316(a)) Similarly, DOE must use these 
test procedures to determine whether the products comply with energy 
conservation standards adopted pursuant to EPCA. (42 U.S.C. 6295(s); 42 
U.S.C. 6316(a))
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    \5\ For editorial reasons, upon codification in the U.S. Code, 
part B was redesignated part A.
    \6\ Part C was added by Public Law 95-619, title IV, section 
441(a). For editorial reasons, upon codification in the U.S. Code, 
part C was redesignated part A-1.
    \7\ All references to EPCA in this document refer to the statute 
as amended through Energy Act of 2020, Public Law 116-260 (Dec. 27, 
2020).
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    In addition, pursuant to EPCA, any new or amended energy 
conservation standard for covered products (and at least certain types 
of equipment) must be designed to achieve the maximum improvement in 
energy efficiency that is technologically feasible and economically 
justified. (42 U.S.C. 6295(o)(2)(A); 42 U.S.C. 6316(a)) In determining 
whether a standard is economically justified, EPCA requires DOE, to the 
greatest extent practicable, to consider the following seven factors: 
(1) the economic impact of the standard on the manufacturers and 
consumers; (2) the savings in operating costs, throughout the estimated 
average life of the products (i.e., life-cycle costs), compared with 
any increase in the price of, or in the initial charges for, or 
operating and maintaining expenses of, the products which are likely to 
result from the imposition of the standard; (3) the total projected 
amount of energy, or as applicable, water, savings likely to result 
directly from the imposition of the standard; (4) any lessening of the 
utility or the performance of the products likely to result from the 
imposition of the standard; (5) the impact of any lessening of 
competition, as determined in writing by the Attorney General, that is 
likely to result from the imposition of the standard; (6) the need for 
national energy and water conservation; and (7) other factors DOE finds 
relevant. (42 U.S.C. 6295(o)(2)(B)(i)) Furthermore, the new or amended 
standard must result in a significant conservation of energy (42 U.S.C. 
6295(o)(3)(B); 42 U.S.C. 6313(a)(6); and 42 U.S.C. 6316(a)) and comply 
with any other applicable statutory provisions.

B. Background

    DOE conducted an effort between 1995 and 1996 to improve the 
process it follows to develop energy conservation standards for covered 
appliance products. As part of this effort, DOE reached out to many 
different stakeholders, including manufacturers, energy-efficiency 
advocates, trade associations, State agencies, utilities, and other 
interested parties for input on the procedures, interpretations, and 
policies used by DOE in considering whether to issue new or amended 
energy conservation standards. This process resulted in publication of 
the July 1996 Final Rule which codified these procedures, 
interpretations, and policies in appendix A. The goal of the July 1996 
Final Rule was to elaborate on the procedures, interpretations, and 
policies that would guide the Department in establishing new or revised 
energy conservation standards for consumer products. The rule was 
issued without notice and comment under the Administrative Procedure 
Act's (``APA'') exception for ``interpretative rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice.'' (5 U.S.C. 553(b)(A))
    On December 18, 2017, DOE issued a request for information 
(``RFI'') on potential revisions to appendix A. 82 FR 59992. DOE 
subsequently published a NOPR regarding appendix A in the Federal 
Register on February 13, 2019. 84 FR 3910. On July 26, 2019, DOE 
subsequently issued a notice of data availability (``NODA'') in the 
Federal Register. 84 FR 36037 (``July 2019 NODA''). After considering 
the comments it received DOE then published a final rule in the Federal 
Register on February 14, 2020, which significantly revised appendix A. 
85 FR 8626.
    While DOE issued the July 1996 Final Rule without notice and 
comment as an interpretative rule, general statement of policy, or rule 
of agency organization, procedure, or practice, the February 2020 Final 
Rule was issued with notice and comment. As discussed in the December 
2021 Final Rule, DOE believes appendix A is best described and utilized 
not as a legislative rule but instead as generally applicable guidance 
that may guide, but not bind, the Department's rulemaking process. In 
accordance with Executive Order 13990, DOE used a notice and comment 
process to revise appendix A. 86 FR 7037. DOE held a public webinar for 
the July 2021 NOPR on August 10, 2021.

[[Page 24344]]

    In response to the July 2021 NOPR and public webinar, DOE received 
comments from the following parties:

                                         Table II.1--List of Commenters
----------------------------------------------------------------------------------------------------------------
              Commenter(s)                            Affiliation                     Acronym, identifier
----------------------------------------------------------------------------------------------------------------
Air-Conditioning, Heating, and            Manufacturer Trade Group..........  AHRI.
 Refrigeration Institute.
Air-Conditioning, Heating, and            Manufacturer Trade Groups.........  Joint Industry Commenters.
 Refrigeration Institute (AHRI), AMCA
 International (AMCA), American Lighting
 Association (ALA), Association of Home
 Appliance Manufacturers (AHAM),
 Consumer Technology Association (CTA),
 Hearth, Patio & Barbecue Association
 (HPBA), Heating, Air-conditioning &
 Refrigeration Distributors
 International (HARDI), Information
 Technology Industry Council (ITI),
 International Sign Association (ISA),
 Manufactured Housing Institute (MHI),
 National Association of Manufacturers
 (NAM), National Electrical
 Manufacturers Association (NEMA), North
 American Association of Food Equipment
 Manufacturers (NAFEM), Power Tool
 institute, Inc. (PTI), and Plumbing
 Manufacturers International (PMI).
American Boiler Manufacturers             Manufacturer Trade Group..........  ABMA.
 Association.
American Gas Association, American        Utility Trade Group...............  AGA.
 Public Gas Association, Spire, Inc.,
 and Spire Missouri, Inc.
Appliance Standards Awareness Project     Advocacy Group....................  Joint Advocacy Commenters.
 (Joint Comments filed with the American
 Council for an Energy-Efficient
 Economy, Consumer Federation of
 America, and National Consumer Law
 Center).
Attorneys General of California,          State, Local Governments..........  State Commenters.
 Colorado, Connecticut, Illinois, Maine,
 Maryland, Michigan, Minnesota, Nevada,
 New Jersey, New York, Oregon,
 Pennsylvania, Vermont, Washington, the
 Commonwealth of Massachusetts, the
 District of Columbia, and the City of
 New York.
Bradford White Corporation..............  Manufacturer......................  BWC.
California Energy Commission............  State.............................  CEC.
California Investor-Owned Utilities.....  Utilities.........................  Cal-IOUs.
Carrier Corporation.....................  Manufacturer......................  Carrier.
Crown Boiler Company....................  Manufacturer......................  Crown Boiler.
Edison Electric Institute...............  Utility Trade Group...............  EEI.
GE Appliances...........................  Manufacturer......................  GEA.
Goodman Manufacturing Company, L.P......  Manufacturer......................  Goodman.
Grundfos Americas Corporation...........  Manufacturer......................  Grundfos.
Ahmed Ahmed Hamdi.......................  Individual........................
Hoshizaki America, Inc..................  Manufacturer......................  Hoshizaki.
Hussmann Corporation....................  Manufacturer......................  Hussmann.
Hydraulic Institute.....................  Manufacturer Trade Group..........  HI.
Hydronic Industry Alliance--Commercial..  Manufacturer Trade Group..........  HIA.
Institute for Policy Integrity--New York  Academic Institution..............  IPR.
 University School of Law.
Lennox International....................  Manufacturer......................  Lennox.
Lutron..................................  Manufacturer......................  Lutron.
Manufactured Housing Institute..........  Manufacturer Trade Group..........  MHI.
New Yorker Boiler Company, Inc..........  Manufacturer......................  New Yorker Boiler.
North American Association of Food        Manufacturer Trade Group..........  NAFEM.
 Equipment Manufacturers.
National Propane Gas Association........  Utility Trade Group...............  NPGA.
Natural Resources Defense Council,        Advocacy Groups...................  Joint Environmentalist Commenters.
 Earthjustice & Sierra Club.
Nortek Global HVAC, LLC.................  Manufacturer......................  Nortek.
Northwest Power and Conservation Council  Advocacy Group....................  NPCC.
Northwest Energy Efficiency Alliance....  Advocacy Group....................  NEEA.
Signify.................................  Manufacturer......................  Signify.
Small Business Administration (SBA)       Federal Government Agency.........  SBA Office of Advocacy.
 Office of Advocacy.
Southern Company........................  Utility...........................  Southern.
Sullivan-Palatek, Inc...................  Manufacturer......................  Sullivan-Palatek.
Sara Taylor.............................  Individual........................
Trane Technologies......................  Manufacturer......................  Trane.
Unico, Inc..............................  Manufacturer......................  Unico.
U.S. Boiler Company.....................  Manufacturer......................  U.S. Boiler.
Weil-McLain Company.....................  Manufacturer......................  Weil-McLain.
Westinghouse Lighting Corporation.......  Manufacturer......................  Westinghouse.
Whirlpool Corporation...................  Manufacturer......................  Whirlpool.
Zero Zone, Inc..........................  Manufacturer......................  Zero Zone.
----------------------------------------------------------------------------------------------------------------

III. Discussion of Specific Revisions to Appendix A

A. Coverage Determinations

    In addition to specifying a list of covered products and equipment, 
EPCA contains provisions that enable the Secretary of Energy to 
classify additional types of consumer products and commercial/
industrial equipment as ``covered'' within the meaning of EPCA. (42 
U.S.C. 6292(b); 42 U.S.C. 6312(b)) This authority allows DOE to 
consider regulating additional products and equipment to further the 
goals of EPCA, i.e., to conserve energy, as long as certain statutory 
requirements are met. Under 42 U.S.C. 6312(b), DOE is required to 
include commercial/industrial equipment as covered equipment ``by 
rule.'' While there is no corresponding requirement to include consumer 
products as covered products by rule,\8\ DOE conducts coverage 
determination rulemakings for both

[[Page 24345]]

commercial/industrial equipment and consumer products.
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    \8\ Under 42 U.S.C. 6292(b), DOE is authorized to ``classify'' a 
consumer product as a covered product if certain conditions are met. 
But there is no mention of DOE having to make such classifications 
by rule.
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    In the February 2020 Final Rule, DOE added a section on coverage 
determination rulemakings. Among other things, the new section provided 
that DOE will: (1) initiate a coverage determination rulemaking with a 
notice of proposed determination; (2) publish final coverage 
determinations as separate notices prior to the initiation of any test 
procedure or energy conservation standard rulemaking and at least 180 
days prior to publication of a test procedure NOPR; and (3) finalize 
any changes to an existing scope of coverage before proceeding with a 
test procedure or energy conservation standard rulemaking. 85 FR 8626, 
8648-8653.
    As discussed in the July 2021 NOPR, DOE has reconsidered whether 
the benefits of a one-size-fits-all rulemaking approach that lacks 
flexibility and includes extra procedural steps not required by EPCA 
outweigh the increased difficulty such an approach poses in achieving 
EPCA's goal of increased energy conservation. First, with respect to 
the requirement that DOE initiate a coverage determination rulemaking 
with a notice of proposed determination, DOE noted in the July 2021 
NOPR that in some cases it may be necessary to gather information about 
a consumer product or commercial/industrial equipment before issuing a 
proposed determination of coverage. DOE went on to state that it may 
only classify a consumer product as a covered product if it is 
necessary or appropriate to carry out the purposes of EPCA and the 
average annual per-household energy use of the consumer product is 
likely to exceed 100 kilowatt-hours per year. As such, DOE explained 
that it may be beneficial to first issue an RFI or other document to 
solicit comment on whether a consumer product is likely to meet these 
requirements. Accordingly, DOE proposed to clarify that it may issue an 
RFI or other pre-rule document prior to a notice of proposed coverage 
determination. 86 FR 35668, 35672.
    Second, regarding the requirements to finalize coverage 
determinations prior to the initiation of any test procedure or energy 
conservation standard rulemaking and at least 180 days prior to 
publication of a test procedure NOPR, DOE noted in the July 2021 NOPR 
that coverage determination, test procedure, and energy conservation 
standard rulemakings are interdependent. Id. A coverage determination 
defines the product/equipment scope for which DOE can establish test 
procedures and energy conservation standards. It also signals that 
inclusion of the consumer product or commercial/industrial equipment is 
necessary to carry out the purposes of EPCA, i.e., to conserve energy 
and/or water. In order to make this determination, DOE needs to 
consider whether a test procedure and energy conservation standard can 
be established for the consumer product or commercial/industrial 
equipment. If DOE cannot develop a test procedure that measures energy 
use during a representative average use cycle and is not unduly 
burdensome to conduct (42 U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2)) or 
prescribe energy conservation standards that result in significant 
energy savings (42 U.S.C. 6295(o); 42 U.S.C. 6316(a)), then making a 
coverage determination is not necessary as it will not result in the 
conservation of energy. Thus, DOE explained in the July 2021 NOPR that 
it was important that the Department be able to initiate test procedure 
and energy conservation standard rulemakings while considering whether 
to establish coverage for a new consumer product or commercial 
equipment. Accordingly, DOE proposed to eliminate the requirement that 
coverage determination rulemakings must be finalized prior to 
initiation of a test procedure or energy conservation standard 
rulemaking. 86 FR 35668, 35672.
    As for the requirement that a coverage determination be finalized 
180 days prior to publication of a test procedure NOPR, DOE explained 
in the July 2021 NOPR that there are significant differences between 
the benefits of finalizing a coverage determination prior to publishing 
a test procedure NOPR and the benefits of finalizing a test procedure 
prior to publishing an energy conservation standards NOPR. Id. As 
discussed in the December 2021 Final Rule, a delay between publication 
of a test procedure final rule and an energy conservation standards 
NOPR may be beneficial in some cases as it could allow stakeholders to 
gain greater familiarity with complex test procedure amendments before 
providing comment on a proposal to amend standards. 86 FR 70892, 70911. 
But DOE does not see a corresponding potential benefit for delaying 
publication of a test procedure NOPR after a coverage determination, 
which establishes the scope of coverage, i.e., a definition, for the 
newly covered product or equipment, is finalized. Accordingly, DOE 
proposed to eliminate the 180-day period and require that coverage 
determination rulemakings be finalized prior to publication of a test 
procedure NOPR. 86 FR 35668, 35672.
    Finally, the February 2020 Final Rule also stated that, if DOE 
finds it necessary and appropriate to expand or reduce the scope of a 
finalized coverage determination during a test procedure or standards 
rulemaking, the Department will initiate a new coverage determination 
process prior to moving forward with the test procedure or standards 
rulemaking. As DOE would be expanding or reducing the scope of an 
existing coverage determination, DOE proposed in the July 2021 NOPR to 
clarify that in instances where DOE needed to modify the scope of a 
coverage determination, DOE would simply amend that determination, as 
opposed to initiating an entirely new coverage determination. 86 FR 
35668, 35670.
Comments Supporting DOE's Proposal on Coverage Determination 
Rulemakings
    A number of commenters supported DOE's proposal to allow for early 
stakeholder input prior to issuing a notice of proposed coverage 
determination. (See, e.g., ASAP, No. 53 at p. 14; Carrier, No. 54 at p. 
2; Lutron, No. 64 at p. 2; NEEA, No. 71 at p. 2; Advocacy Groups, No. 
70 at p. 2; State Commenters, No. 67 at p. 6) For example, State 
Commenters noted that DOE's proposal would allow the Department to 
collect necessary information prior to issuing a proposed coverage 
determination. (State Commenters, No. 67 at p. 6) Similarly, Lutron 
also favored allowing DOE to obtain public input before issuing a 
proposed coverage determination. (Lutron, No. 64 at p. 2)
    Several commenters also supported DOE's proposal to remove the 
requirement that coverage determinations be finalized before initiating 
test procedure and standards rulemakings. (See, e.g., ASAP, No. 53 at 
p. 14; Carrier, No. 54 at p. 2; Lutron, No. 64 at p. 2; CA IOUs, No. 69 
at p. 2; NEEA, No. 71 at p. 2; CEC, No. 55 at p. 2; State Commenters, 
No. 67 at p. 6; Advocacy Groups, No. 70 at p. 2) Appliance Standards 
Awareness Project (ASAP), in expressing its support, noted that 
information learned during test procedure and standards rulemakings can 
help inform the coverage determination and avoid potential delays 
resulting from DOE having to amend a coverage determination after it 
was initially finalized. (ASAP, No. 53 at p. 14) The California 
Investor-Owned Utilities (CA IOUs) also cited several successful 
negotiated rulemakings where standards, test procedures, and scope were 
considered simultaneously as evidence of the potential benefits of 
DOE's proposal. (CA IOUs, No. 69 at p. 2) While recognizing that 
information

[[Page 24346]]

obtained during a test procedure rulemaking may help inform a coverage 
determination, Carrier and Lutron emphasized that test procedure and 
NOPRs should not be issued before a coverage determination is 
finalized. (Carrier, No. 54 at p. 2; Lutron, No. 64 at p. 2)
    DOE also received support for its proposal to eliminate the 180-day 
required period between finalization of a coverage determination and 
publication of a test procedure NOPR. (See, e.g., NEEA, No. 71 at p. 2; 
CEC, No. 55 at p. 2; State Commenters, No. 67 at p. 5) In particular, 
Northwest Energy Efficiency Alliance (NEEA) supported removal of the 
180-day requirement between a finalized coverage determination and a 
test procedure NOPR as there are times when completing these 
rulemakings in parallel would be the most efficient use of DOE's and 
stakeholders' time. NEEA stated that DOE should consider the 
appropriate timeline between a coverage determination and a test 
procedure NOPR on a case-by-case basis, as there are many circumstances 
when a 6-month delay may be unnecessary. (NEEA, No. 71 at p. 2) State 
Commenters also agreed with DOE that a mandatory delay between 
finalization of a coverage determination and issuance of a test 
procedure NOPR did not offer the same benefits as a delay between 
finalization of a test procedure and issuance of a standards NOPR. 
(State Commenters, No. 67 at p. 5)
Comments Opposing DOE's Proposal on Coverage Determination Rulemakings
    While many commenters expressed support for most, if not all, of 
DOE's proposals, some commenters expressed concerns with and/or 
alternatives to DOE's proposed revisions to its coverage determination 
rulemaking process. These concerns and alternative proposals were 
centered around DOE's proposed elimination of the 180-day period 
between finalization of a coverage determination and publication of a 
test procedure NOPR. (See, e.g., ASAP, No. 53 at p. 14; Grundfos, No. 
53 at p. 16; Carrier, No. 54 at p. 2; ABMA, No. 61 at p. 2; Lutron, No. 
64 at p. 2)
    Several of these commenters stated that some period of time between 
finalization of a coverage determination and publication of a test 
procedure NOPR is necessary. For example, the American Boiler 
Manufacturers Association (ABMA) stated that although it supported the 
180-day delay between finalization of a coverage determination and 
publication of a test procedure NOPR, it is also sensitive to DOE's 
concerns about delays to the rulemaking process that jeopardize its 
ability to meet statutory deadlines. Consequently, ABMA suggested a 
compromise approach of shortening the required spacing from 180 days to 
90 days. (ABMA, No. 61 at p. 2) Lutron and the Joint Industry 
Commenters stated that there could be a number of reasons why adequate 
time is needed between those two events, so DOE should consider whether 
such time is necessary in each case and seek stakeholder feedback on 
that matter during the coverage determination process. (Lutron, No. 64 
at p. 2; Joint Industry Commenters, No. 62 at p. 4) The Joint Industry 
Commenters specifically mentioned a scenario where a standards 
development organization is developing a test procedure as a reason for 
having some period of time between finalization of a coverage 
determination and publication of a test procedure NOPR. Similarly, 
Carrier recommended that DOE should make it a standard practice to seek 
early public input through an RFI (or other appropriate mechanism) to 
obtain input on the appropriate time needed between a coverage final 
rule and a test procedure NOPR. (Carrier, No. 54 at p. 2)
    In contrast to these comments requesting some period of time 
between finalization of a coverage determination and publication of a 
test procedure NOPR, DOE also received comments to eliminate the 
requirement altogether that DOE finalize coverage determinations prior 
to publishing test procedure NOPRs. ASAP suggested that DOE should be 
able to finalize a coverage determination concurrent with finalization 
of any energy conservations standards. ASAP contended that allowing the 
Department to incorporate information learned during the rulemaking 
process into the coverage determination would avoid any potential 
delays associated with having to amend the coverage determination after 
it was initially finalized. (ASAP, No. 53 at p. 14) Similarly, the 
Advocacy Groups encouraged DOE to adopt an approach allowing for 
concurrent coverage and standards finalizations. They noted that the 
proposed regulatory text would still require DOE to finalize a coverage 
determination prior to publishing a proposed test procedure and, in 
their view, this requirement would limit DOE's ability to incorporate 
information learned during the related test procedure and standards 
rulemakings into the coverage determination, which could result in 
unnecessary delays if DOE is required to pause the rulemaking process 
to amend the coverage determination. (Advocacy Groups, No. 70 at p. 2)
DOE's Response to Comments
    In response to comments, DOE first notes a large majority of 
commenters, representing a wide variety of stakeholders, supported both 
the elimination of the requirement to begin a coverage determination 
rulemaking with a notice of proposed determination and the requirement 
that a coverage determination be finalized prior to initiation of a 
test procedure or standards rulemaking. In both cases, commenters 
recognized that allowing for more early stakeholder input, including 
information on prospective test procedures and standards, will help 
make for a better, more-informed coverage determination rulemaking 
process. Accordingly, for the reasons discussed in the July 2021 NOPR 
and this document, DOE is removing the requirements from section 5 of 
appendix A that a coverage determination begin with a notice of 
proposed determination and be finalized prior to initiation of a test 
procedure or standards rulemaking.
    Additionally, DOE did not receive any comments regarding its 
proposed clarification that, if DOE finds it necessary and appropriate 
to expand or reduce the scope of a finalized coverage determination 
during a test procedure or standards rulemaking, the Department will 
amend the existing coverage determination prior to moving forward with 
the test procedure or standards rulemaking. Accordingly, for the 
reasons discussed in the July 2021 NOPR and this document, DOE is 
revising section 5(d) of appendix A to clarify that, if necessary and 
appropriate, the Department will amend the existing coverage 
determination prior to moving forward with a test procedure or 
standards rulemaking.
    As for the comments regarding the 180-day period and sequencing of 
the coverage determination, test procedure, and standards rulemakings, 
DOE first notes that several commenters stated there could be potential 
benefits of having a period of time between finalization of a coverage 
determination and publication of a test procedure NOPR. Specifically, 
the Joint Industry Commenters gave an example of where a delay between 
finalization of a coverage determination and publication of a test 
procedure may allow a standards development organization more time to 
develop an industry test procedure. DOE does not disagree with these 
commenters in that a delay between finalization of a coverage 
determination and publication of a test procedure NOPR may offer some

[[Page 24347]]

benefits in certain cases. But, as stated throughout this rulemaking 
process, DOE has reconsidered whether the benefits of a one-size-fits-
all rulemaking approach that lacks flexibility and includes extra 
procedural steps not required by EPCA outweigh the increased difficulty 
such an approach poses in accomplishing the purposes of EPCA, i.e., to 
conserve energy. So, while a 180-day period in between finalization of 
a coverage determination and publication may offer benefits in certain 
situations, in other cases it will simply result in a 180-day delay in 
implementing energy conservation standards without benefiting the 
rulemaking process. Thus, DOE is declining to adopt a specific time 
frame associated with the sequencing of a coverage determination and 
test procedure rulemaking.
    As for those comments suggesting DOE allow concurrent finalization 
of coverage determinations and energy conservation standards, the 
Department believes any benefits from concurrent finalization of 
coverage determinations and energy conservation standards are more than 
outweighed by the uncertainty this would add to the rulemaking process. 
The commenters argued that concurrent determinations could avoid 
potential delays by incorporating information learned during the 
standards rulemaking process into the final coverage determination. But 
DOE's proposal already allows for coverage determination rulemakings to 
be informed by the preliminary stages of test procedure and standards 
rulemakings. Further, DOE notes that the negotiated rulemaking process 
allows stakeholders to simultaneously consider scope of coverage, test 
procedures, and energy conservation standards.\9\
---------------------------------------------------------------------------

    \9\ DOE, through its Appliance Standards Rulemaking Federal 
Advisory Committee (``ASRAC''), established a working group to 
negotiate energy conservation standards for commercial and 
industrial fans and blowers. 80 FR 17359 (Apr. 1, 2015). The working 
group submitted a term sheet containing recommendations on scope of 
coverage, test procedures, and energy conservation standards 
analysis methodology. The term sheet is available at https://www.regulations.gov/document/EERE-2013-BT-STD-0006-0179.
---------------------------------------------------------------------------

    Accordingly, for the reasons discussed in the July 2021 NOPR and 
this document, DOE is revising section 5 of appendix A to eliminate the 
180-day required period between finalization of a coverage 
determination and publication of a test procedure and, instead, provide 
that coverage determinations be finalized prior to publication of a 
test procedure NOPR.

B. Process for Developing Energy Conservation Standards

    As part of the February 2020 Final Rule, DOE made a number of 
changes to its process for developing energy conservation standards. 
The February 2020 Final Rule, among other changes: (1) required that 
DOE initiate a standards rulemaking with an early assessment RFI; (2) 
required that the preliminary stages of a standards rulemaking include 
either a framework document/preliminary analysis or an advance notice 
of proposed rulemaking (``ANOPR''); and (3) set minimum comment periods 
for NOPR and pre-NOPR documents. 85 FR 8626, 8704-8706.
    As discussed throughout this rulemaking process, DOE has 
reconsidered whether the benefits of a one-size-fits-all rulemaking 
approach that lacks flexibility and includes extra procedural steps not 
required by EPCA outweigh the increased difficulty such an approach 
poses in meeting DOE's statutory deadlines and obligations under EPCA. 
As such, DOE proposed additional revisions to the process for 
developing energy conservation standards in the July 2021 NOPR. First, 
DOE proposed to eliminate the requirement for an early assessment RFI. 
DOE reasoned that because stakeholders can comment on whether a new or 
amended standard would meet the relevant statutory criteria at any 
stage of the rulemaking process, a separate rulemaking document limited 
to only that topic (i.e., the early assessment RFI) may delay the 
overall process without adding an appreciable benefit. Instead, DOE 
noted that it would welcome the same type of information in the context 
of an RFI, preliminary analysis, ANOPR, or some other pre-NOPR 
document, while at the same time asking other relevant questions and 
gathering information in the event that the Department decides to 
proceed with an energy conservation standards rulemaking. 86 FR 35668, 
35673.
    Second, in conjunction with the proposal to eliminate the early 
assessment RFI, DOE also proposed to eliminate the requirement that the 
pre-NOPR stage of a standards rulemaking include either a framework 
document/preliminary analysis or an ANOPR. DOE tentatively concluded 
that one round of pre-NOPR input may be sufficient for some 
rulemakings. For instance, DOE is required to revisit final 
determinations that energy conservation standards do not need to be 
amended within three years. (42 U.S.C. 6295(m)(3)(B)) In such cases, it 
may not be necessary to issue a framework document/preliminary analysis 
or an ANOPR, as an RFI or NODA may be sufficient to update DOE's 
rulemaking analysis in preparation for proposing amended standards or a 
determination that standards do not need to be amended. Another example 
for which a single round of pre-NOPR input may be sufficient would be 
if a product has been subject to multiple rounds of rulemaking, relies 
on mature technologies, and for which the market is well-understood. As 
such, DOE proposed to publish one or more documents in the Federal 
Register during the pre-NOPR stage of a rulemaking to gather 
information on key issues. Such document(s) could take several forms 
depending upon the specific proceeding, including a framework document, 
RFI, NODA, preliminary analysis, or ANOPR. 86 FR 35668, 35673.
    Finally, DOE proposed revisions to the comment periods for pre-NOPR 
and NOPR rulemaking documents. For pre-NOPR documents, which do not 
have a statutorily required minimum comment period, DOE proposed to 
eliminate the 75-day minimum public comment period and, instead, 
determine the appropriate comment period for these documents on a case-
by-case basis. This would allow DOE to establish comment periods that 
are commensurate with the nature and complexity of the issues presented 
in a pre-NOPR document, while also allowing DOE to proceed more 
expeditiously with its rulemaking process. Id. DOE also proposed to 
eliminate the 75-day minimum public comment period for standards NOPRs 
and revert to the Department's prior practice, consistent with EPCA, of 
requiring a 60-day minimum public comment period. DOE stated that 60 
days offers an adequate amount of time for comment in most standards 
rulemakings, while helping to streamline the rulemaking process. And, 
for those rulemakings involving more complex issues, DOE noted that 60 
days is the minimum comment period, and the Department may extend 
comment periods as appropriate. 86 FR 35668, 35673-35674.
Comments Supporting DOE's Proposal on Energy Conservation Standards 
Rulemakings
    Several commenters supported DOE's proposal to eliminate the 
requirement for an early assessment RFI and instead clarify that DOE 
will issue one or more pre-NOPR documents intended to gather 
information on key issues, including whether new or amended standards 
would satisfy the relevant statutory criteria. (See, e.g., ABMA, No. 61 
at p.

[[Page 24348]]

3; Grundfos, No. 53 at pp. 24-25; ASAP, No. 53 at p. 24; CA IOUs, No. 
69 at pp. 1-2; NEEA, No. 71 at p. 2) In expressing their support, the 
CA IOUs stated that the decision of whether a rulemaking should move 
forward can be made through a normal RFI, rather than through a formal, 
mandatory early assessment stage. (CA IOUs, No. 69 at pp. 1-2) 
Similarly, ASAP supported DOE's proposal to eliminate the requirement 
for an early assessment RFI because the Department can elicit the same 
type of information through other types of pre-NOPR documents, and DOE 
should be allowed the flexibility to determine the specific rulemaking 
documents that are appropriate in each case. (ASAP, No. 53 at p. 24) 
Grundfos and ABMA supported eliminating the early assessment RFI as 
long as DOE continued to provide opportunities for early stakeholder 
input. The Advocacy Groups supported DOE's proposal because it would 
provide DOE with the flexibility to determine the specific rulemaking 
steps that are appropriate in individual cases, thereby avoiding 
unnecessary delays while continuing to provide an opportunity for early 
stakeholder input. (Advocacy Groups, No. 70 at p. 4)
    Several commenters also expressed their support for DOE's proposal 
to determine comment periods for pre-NOPR documents on a case-by-case 
basis and revise the minimum comment period for standard NOPRs to be 
consistent with EPCA. (See ASAP, No. 53 at p. 24; NEEA, No. 71 at pp. 
2-3; Advocacy Groups, No. 70 at p. 3; NPCC, No. 52 at p. 2) The 
Advocacy Groups noted that the proposal would avoid unnecessary delays 
by allowing DOE to select appropriate comment periods for pre-NOPR 
documents, while continuing to provide an opportunity for early 
stakeholder input. (Advocacy Groups, No. 70 at p. 4) In expressing 
their support for the proposal, ASAP also noted that the requirements 
are for minimum comment periods and DOE is free to set longer comment 
periods where merited. (ASAP, No. 53 at p. 24)
Comments Opposing DOE's Proposal on Energy Conservation Standards 
Rulemakings
    Several commenters opposed DOE's proposal to eliminate the 
requirement for an early assessment RFI and instead clarify that DOE 
will issue one or more pre-NOPR documents intended to gather 
information on key issues, including whether new or amended standards 
would satisfy the relevant statutory criteria. (See, e.g., AHAM, No. 53 
at p. 27; Lutron, No. 64 at p. 3; Mercatus, No. 48 (Attachment) at pp. 
3-4; Lennox, No. 60 at p. 6; Joint Industry Commenters, No. 62 at p. 5; 
GEA, No. 72 at p. 3) In expressing their support for the early 
assessment process laid out in the February 2020 Final Rule, AHAM 
stated that the early assessment procedure could help DOE streamline 
its process by prioritizing rules that satisfy EPCA's requirements, 
thereby conserving DOE and stakeholder resources and allowing DOE to 
meet its deadlines more often. (AHAM, No. 53 at p. 27) Similarly, 
Lutron stated that the early assessment process will help prevent time 
and resources being invested in standards rulemakings that cannot meet 
the applicable statutory criteria. (Lutron, No. 64 at p. 3) Mercatus 
argued in favor of retaining the early assessment process as it would 
ensure that a wide variety of viewpoints are considered by DOE prior to 
a regulation being formally proposed. In its view, once a regulation 
has been proposed, an agency has already made up its mind about what it 
wants to do, and public input comes too late to matter. (Mercatus, No. 
48 (Attachment) at pp. 3-4)
    In addition to opposing the elimination of the early assessment 
RFI, the Joint Industry Commenters offered their own proposal on what 
an early assessment process should entail. They first suggested that 
DOE issue a pre-rulemaking document of its choice aimed at obtaining 
comment on whether a standard should be amended using the criteria in 
42 U.S.C. 6295(n)(2). They added that the pre-rulemaking document used 
by DOE should also: (1) present data and information DOE has gathered 
during informal, pre-rulemaking stakeholder engagement; (2) identify 
and seek comment on design options; (3) identify and seek comment on 
the existence of or opportunity for voluntary, nonregulatory action; 
(4) seek comment on cumulative regulatory burden; (5) identify 
significant subgroups of consumers and manufacturers that merit 
analysis; and (6) seek comment on whether, if DOE moves forward with 
rulemaking, DOE should pursue negotiated rulemaking. The Joint Industry 
Commenters remarked that their suggested approach did not differ 
dramatically from DOE's proposal but would include a NODA/Preliminary 
Analysis step after the initial pre-NOPR document. In their view, the 
inclusion of a pre-Technical Support Document (``TSD'') as part of this 
process is important in initiating a vital exchange of information 
early in the rulemaking process. (Joint Industry Commenters, No. 62 at 
p. 6)
    Several commenters also opposed DOE's proposal to determine comment 
periods for pre-NOPR documents on a case-by-case basis and revise the 
minimum comment period for standards NOPRs to be consistent with EPCA. 
(See, e.g., Grundfos, No. 53 at pp. 25-26; Carrier, No. 54 at pp. 3, 4; 
BWC, No. 63 at p. 2; Joint Industry Commenters, No. 62 at pp. 7-8; 
Lennox, No. 60 at p. 3) For example, Lennox stated that at least 60 
days should be provided for comment for pre-NOPR documents as DOE 
regulations are typically complex, often may involve significant market 
and manufacturing changes, and pre-NOPR documents by definition are 
early in the regulatory process, so the timing of their release is 
generally unpredictable and stakeholder personnel are not necessarily 
immediately available to assess them. (Lennox, No. 60 at p. 3) BWC 
opposed shortening the standards NOPR comment period from 75 days to 60 
days, noting that manufacturers and all other stakeholders are expected 
to read, analyze, and investigate substantial documentation between a 
NOPR itself and an associated TSD. BWC argued that these documents take 
DOE and its consultants' months to prepare, and to expect a complete 
and thorough analysis by stakeholders in 60 calendar days is 
unreasonable, especially when considering the necessary effort in 
managing other regulatory activities that currently impact it. (BWC, 
No. 63 at p. 2)
DOE's Response to Comments
    In response to these comments, DOE first notes that commenters 
raised several valid points about the benefits of the early assessment 
process and longer comment periods. For instance, DOE agrees that early 
stakeholder input is essential in the rulemaking process. It would also 
be beneficial, from an allocation of resources standpoint, to determine 
as early as possible whether a new or amended standard would satisfy 
the applicable statutory criteria. And that is why DOE did not propose 
to eliminate the early assessment process in the July 2021 NOPR. 
Instead, DOE proposed to eliminate the requirement that the Department 
solicit information on whether a new or amended standard would meet the 
applicable statutory criteria in a rulemaking document limited to only 
that topic, i.e., the early assessment RFI. 86 FR 35668, 35673. DOE 
stated it would issue one or more pre-NOPR rulemaking documents and 
made it clear that the Department would welcome the same type of early 
assessment information in these documents, while at the same time 
asking other relevant questions. Id. With respect to the early 
assessment proposal

[[Page 24349]]

from the Joint Industry Commenters, DOE notes that the commenters 
remarked on the similarities with DOE's own proposal, with the only 
notable difference being the requirement to issue a NODA or preliminary 
analysis after the initial pre-NOPR document. While DOE acknowledges 
that many rulemakings may involve an RFI followed by a NODA or 
preliminary analysis, that certainly is not the case for all 
rulemakings. For example, if DOE is revisiting a decision not to amend 
standards within the 3-year period specified under 42 U.S.C. 
6295(m)(3), a pre-NOPR RFI requesting any information relevant to the 
previous analysis may be sufficient to proceed with a proposed 
determination that standards do not need to be amended. As such, a 
requirement to issue a NODA or preliminary analysis would consume time 
and resources without providing an appreciable benefit to DOE or the 
public.
    Finally, regarding the benefits of early stakeholder input, DOE 
strongly disagrees with the assertion from Mercatus that DOE does not 
properly consider stakeholder input received in response to NOPRs. DOE 
values stakeholder input at every stage of the rulemaking process and 
has made changes to proposed test procedures and standards in response 
to stakeholder comments. For example, in an energy conservation 
standards rulemaking for dishwashers in which DOE initially proposed 
more stringent standards, DOE determined, in part, based on comments 
received raising concerns with potential impacts on consumer utility 
that more stringent standards were not justified. 81 FR 90072, 90114 
(Dec. 13, 2016). In the January 10, 2020, final rule establishing 
energy conservation standards for portable air conditioners DOE updated 
its equation for calculating the combined energy efficiency ratio from 
that presented in the proposed rule based on information and data 
submitted by stakeholders. 85 FR 1378, 1398.
    DOE also recognizes that the standards rulemaking process is 
necessarily complex. And stakeholders need sufficient time to comment 
on rulemaking documents. But there are also instances where DOE issues 
rulemaking documents of limited scope and a 30-day comment period, or 
even less, is more than sufficient. For example, as discussed 
previously, DOE is required to revisit a determination not to amend 
standards within three years. In such cases, DOE may issue an RFI on 
whether there have been any material changes to the market that would 
affect the analysis conducted in the previous determination not to 
amend standards. As the scope of the RFI is limited, a 30-day comment 
period may be more than sufficient to allow stakeholders a meaningful 
opportunity to comment. With respect to NOPRs, EPCA requires at least a 
60-day comment period. (42 U.S.C. 6295(p)(2)) Similarly, Executive 
Order (``E.O.'') 12866, ``Regulatory Planning and Review,'' 58 FR 51735 
(Oct. 4, 1993), states that in most cases a comment period should not 
be less than 60 days. As stated previously, DOE's main purpose in 
revising appendix A is to minimize the inefficiencies and unnecessary 
delays that come with a one-size-fits-all rulemaking approach. DOE sees 
no reason to establish a longer minimum comment period than required by 
EPCA or recommended under E.O. 12866, which applies to other Federal 
agencies that conduct rulemaking analyses of comparable complexity.
    Accordingly, for the reasons discussed in the July 2021 NOPR and 
this document, DOE is revising section 6 of appendix A to specify that 
the Department will issue one or more pre-NOPR rulemaking documents and 
comment periods for standards rulemaking documents will be determined 
on a case-by-case basis with a minimum 60-day comment period for NOPRs.

C. Process for Developing Test Procedures

    As part of the February 2020 Final Rule, DOE made a number of 
changes to its process for developing test procedures. The February 
2020 Final Rule, among other changes: (1) required that DOE initiate a 
test procedure rulemaking with an early assessment RFI; and (2) 
required that DOE identify any necessary modifications to established 
test procedures prior to initiating the standards development process. 
85 FR 8626, 8653-8654, 8676-8682, 8707-8708.
    As discussed throughout this rulemaking process, DOE has 
reconsidered whether the benefits of a one-size-fits-all rulemaking 
approach that lacks flexibility and includes extra procedural steps not 
required by EPCA outweigh the increased difficulty such an approach 
poses in meeting DOE's statutory deadlines and obligations under EPCA. 
As such, DOE proposed additional revisions to the process for 
developing test procedures in the July 2021 NOPR. First, DOE proposed 
to eliminate the requirement for an early assessment RFI. Because 
interested parties are free to raise the matter of the need for an 
amended test procedure at any preliminary stage of the rulemaking, DOE 
tentatively concluded that a separate rulemaking document limited to 
only that topic (i.e., the early assessment RFI) unnecessarily delays 
the overall process without appreciable benefit. Consequently, DOE 
proposed to issue one or more pre-NOPR documents that would welcome the 
same type of early assessment information, while at the same time 
asking relevant questions and gathering information about other test 
procedure issues, such as the applicability of any industry test 
procedure. 86 FR 35668, 35674.
    Second, for pre-NOPR documents for which there is no statutorily 
required comment period, DOE proposed to clarify that the Department 
would determine an appropriate comment period for pre-NOPR documents on 
a case-by-case basis. This would allow DOE to account for the nature 
and complexity of the test procedure rulemaking at issue. Id. at 86 FR 
35675. DOE also proposed to clarify that it will provide a minimum 60-
day public comment period with at least one public hearing or workshop 
for test procedure NOPR documents. Id. DOE has historically provided a 
75-day comment period for test procedure NOPRs, consistent with the 
comment period requirement for technical regulations in the North 
American Free Trade Agreement, U.S.-Canada-Mexico (``NAFTA''), Dec. 17, 
1992, 32 I.L.M. 289 (1993); the North American Free Trade Agreement 
Implementation Act, Public Law 103-182, 107 Stat. 2057 (1993) (codified 
as amended at 10 U.S.C.A. 2576) (1993) (``NAFTA Implementation Act''); 
and Executive Order 12889, ``Implementation of the North American Free 
Trade Agreement,'' 58 FR 69681 (Dec. 30, 1993). However, Congress 
repealed the NAFTA Implementation Act and has replaced NAFTA with the 
Agreement between the United States of America, the United Mexican 
States, and the United Canadian States (``USMCA''), Nov. 30, 2018, 134 
Stat. 11, thereby rendering E.O. 12889 inoperable. Consequently, since 
USMCA is consistent with EPCA's public comment period requirements and 
normally requires a minimum comment period of 60 days for technical 
regulations, DOE proposed to provide a minimum 60-day public comment 
period for test procedure NOPRs. 86 FR 35668, 35675.
    Finally, DOE proposed to eliminate the requirement that the 
Department identify any necessary test procedure modifications prior to 
initiating the standards development process. Id. As DOE recognized in 
the December 2021 Final Rule, it is important that test procedures be 
finalized prior to

[[Page 24350]]

proposing standards so stakeholders can properly evaluate and provide 
comment on the proposed standards. 86 FR 70892, 70911. But this 
reasoning does not extend to requiring DOE to identify test procedure 
modifications prior to initiating a standards rulemaking. Conducting 
preliminary standards-related work and information gathering in concert 
with the test procedure proceeding can lead to a more-efficient 
rulemaking process without sacrificing the quality of DOE's analyses or 
the opportunity for public input.
Comments Supporting DOE's Proposal on Test Procedure Rulemakings
    Several commenters expressed their support for DOE's proposal to 
eliminate the requirement for an early assessment RFI and instead 
clarify that DOE will issue one or more pre-NOPR documents intended to 
gather information on key issues, including whether a new or amended 
test procedure would satisfy the relevant statutory criteria. (See, 
e.g., NEEA, No. 71 at p. 2; Advocacy Groups, No. 70 at p. 4; State 
Commenters, No. 67 at p. 6; Grundfos, No. 53 at p. 33; CA IOUs, No. 69 
at pp. 1-2) In expressing their support, the CA IOUs stated that the 
decision of whether a rulemaking should move forward can be made 
through a normal RFI, rather than through a formal, mandatory early 
assessment stage. (CA IOUs, No. 69 at pp. 1-2) The Advocacy Groups 
supported DOE's proposal because it would provide DOE with the 
flexibility to determine the specific rulemaking steps that are 
appropriate in individual cases, thereby avoiding unnecessary delays 
while continuing to provide an opportunity for early stakeholder input. 
(Advocacy Groups, No. 70 at p. 4) Similarly, the State Commenters noted 
that requiring DOE to commence test procedure rulemakings with an early 
assessment request for information unnecessarily imposes a one-size-
fits-all approach on DOE's rulemaking course and constrains the 
agency's discretion to pursue rulemaking in the most expeditious manner 
possible. (State Commenters, No. 67 at p. 6)
    Several commenters also supported DOE's proposal to determine 
comment periods for pre-NOPR documents on a case-by-case basis and 
revise the minimum commenter period for test procedure NOPRs to be 
consistent with EPCA and USMCA. (See, e.g., NEEA, No. 71 at p. 3; CEC, 
No. 55 at p. 3; CA IOUs, No. 53 at p. 32) The Advocacy Groups noted 
that the proposal would avoid unnecessary delays by allowing DOE to 
select appropriate comment periods for pre-NOPR documents on a case-by-
case basis, while continuing to provide an opportunity for early 
stakeholder input. (Advocacy Groups, No. 70 at p. 4)
    Finally, DOE also received comments supporting its proposal to 
remove the requirement that the Department identify any necessary test 
procedure modifications prior to initiating the standards development 
process. For example, the Advocacy Groups supported DOE's proposal to 
clarify that it would not be precluded from issuing pre-rulemaking 
documents for standards prior to a test procedure final rule, asserting 
that this clarification would help avoid unnecessary delays to DOE's 
rulemaking process. In their view, test procedure and standards 
rulemakings inform each other and providing DOE with the ability to 
conduct the initial stages of a standards rulemaking prior to 
finalizing a test procedure will allow issues identified in the early 
phases of the standards rulemaking related to the test procedure to be 
addressed in the test procedure rulemaking. (Advocacy Groups, No. 70 at 
p. 4) Similarly, the CA IOUs supported DOE's proposed clarification 
that preliminary work may begin on energy conservation standards prior 
to completion of a test procedure rulemaking. The CA IOUs reasoned that 
this refinement would help DOE to expedite its rulemaking process and 
reduce its backlog of rulemakings. (CA IOUs, No. 69 at pp. 2-3)
Comments Opposing DOE's Proposal on Test Procedure Rulemakings
    Several commenters opposed DOE's proposal to eliminate the 
requirement for an early assessment RFI. For example, Lutron argued 
that eliminating the early assessment RFI would negatively impact DOE's 
analysis and reduce commenters' ability to provide meaningful input. 
(Lutron, No. 64 at p. 3) The Gas Industry Joint Commenters urged that 
DOE retain appendix A's current early opportunities for providing 
public comment and input on potential standards and test procedure 
rulemakings. In their view, it would be better for DOE to take 
additional time needed to produce a good regulation rather than to take 
less time to produce a poorer regulation. (Gas Industry Joint 
Commenters, No. 57 at pp. 4-5) Similarly, the Joint Industry Commenters 
stated that the early assessment process offers DOE streamlining 
opportunities by helping it to identify potential test procedure issues 
prior to the initiation of a standards rulemaking proposal. (Joint 
Industry Commenters, No. 62 at p. 9)
    Several commenters also opposed DOE's proposal to determine comment 
periods for pre-NOPR documents on a case-by-case basis and revise the 
minimum comment period for test procedure NOPRs to be consistent with 
EPCA and USMCA. (See, e.g., Carrier, No. 54 at pp. 3, 4; AHAM, No. 53 
at p. 5; Joint Industry Commenters, No. 62 at pp. 7-8; Lennox, No. 60 
at p. 3) For example, Lennox stated that commenting on test procedures 
often involves testing personnel and lab time that typically do not 
have immediate availability and rulemaking activities compete with lab 
time and personnel for product development, regulatory and other 
demands for product testing and assessment. As such, Lennox opposed 
shortening the 75-day comment period for test procedure NOPRs and 
suggested a minimum 60-day comment period for pre-NOPR comment periods. 
(Lennox, No. 60 at p. 3) The Joint Industry Commenters made similar 
arguments regarding the complexity of issues involved in evaluating 
proposed test procedures. They stated that the evaluation process can--
and often does--include conducting the proposed test procedure along 
with the collection and analysis of testing data to assist DOE in 
analyzing the proposed procedure's accuracy, repeatability, and 
reproducibility, all of which take time to complete. If DOE decides to 
shorten the comment period for test procedure proposals, the Joint 
Industry Commenters asked that DOE continue to freely grant reasonable 
requests for comment period extensions, which they expected to be more 
frequent with the shortening of the comment period. (Joint Industry 
Commenters, No. 62 at pp. 7-8) GEA stated that mandatory comment 
periods with sufficient time for in-depth analysis and commentary are 
necessary to provide predictability and fairness to stakeholders. (GEA, 
No. 72 at p. 3)
    Finally, DOE also received comments opposing its proposal to remove 
the requirement that the Department identify any necessary test 
procedure modifications prior to initiating the standards development 
process. For example, the Joint Industry Commenters asserted that the 
test procedure process should be finalized before the standards 
rulemaking process begins. They stressed the relevance of the test 
procedure to the standards analysis, noting that responses on pre-NOPR 
energy conservation standards documents will often be highly dependent 
on the test procedure, particularly since knowing what the test 
procedure will measure will affect how the stringency of potential 
standards will be assessed. (Joint Industry Commenters, No. 62 at p. 9) 
Similarly, Lutron stated that eliminating the

[[Page 24351]]

required sequencing of test procedure and standards rulemakings would 
negatively impact DOE's analysis on both test procedures and standards 
and would reduce commenters' ability to provide meaningful input, 
especially during the early rulemaking phases for new or amended 
standards. (Lutron, No. 64 at p. 3)
DOE's Response to Comments
    In response to these comments, DOE first notes that commenters 
raised several of the same issues about the benefits of an early 
assessment process and longer comment periods that were discussed in 
the preceding section on the process for developing energy conservation 
standards. And, as stated previously, DOE agrees that early stakeholder 
input is essential and that some rulemaking documents require a longer 
comment period in order to give stakeholders sufficient time to develop 
their comments. DOE again notes that it did not propose to eliminate 
the early assessment process in the July 2021 NOPR. Instead, DOE 
proposed to eliminate the requirement that the Department solicit 
information on whether an amended test procedure would meet the 
applicable statutory criteria in a rulemaking document limited to only 
that topic, i.e., the early assessment RFI. 86 FR 35668, 35674. DOE 
proposed to issue one or more pre-NOPR rulemaking documents and made 
clear that the Department would welcome the same type of early 
assessment information in these documents, while at the same time 
asking other relevant questions. Id.
    DOE also recognizes that test procedures are complex, and 
stakeholders need sufficient time to formulate comments. But, as noted 
previously, there are also instances where DOE issues rulemaking 
documents of limited scope and a 30-day comment period, or even less, 
is more than sufficient. For example, in evaluating the potential 
establishment of test procedures for portable air conditioners, DOE 
issued an RFI to provide information on investigative testing of 
existing industry test procedures that could be used to measure cooling 
capacity and energy use for portable air conditioners. 79 FR 26639 (May 
9, 2014). Given that DOE was requesting information regarding existing 
industry test procedures, DOE provided a 30-day comment period. Id. 
With respect to test procedure NOPRs, EPCA requires at least a 60-day 
comment period for covered products (42 U.S.C. 6293(b)(2)) and at least 
a 45-day comment period for covered equipment (42 U.S.C. 6314(b)), 
while USMCA normally requires a minimum comment period of 60 days for 
technical regulations.\10\ As stated previously, DOE's main purpose in 
revising appendix A is to minimize the inefficiencies and unnecessary 
delays that come with a one-size-fits-all rulemaking approach. DOE sees 
no reason to establish a longer minimum comment period than required by 
EPCA or USMCA, which applies to other Federal agencies that issue 
technical regulations of comparable complexity.
---------------------------------------------------------------------------

    \10\ See USMCA, Chapter 11, Technical Barriers to Trade, 
available at https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/11_Technical_Barriers_to_Trade.pdf.
---------------------------------------------------------------------------

    With respect to eliminating the requirement that DOE identify any 
necessary modifications to the test procedure prior to initiating a 
standards rulemaking, DOE agrees with the Advocacy Groups that test 
procedure and standards rulemakings inform each other and providing DOE 
with the ability to conduct the initial stages of a standards 
rulemaking prior to finalizing a test procedure will allow issues 
identified in the early phases of the standards rulemaking related to 
the test procedure to be addressed in the test procedure rulemaking. 
DOE also agrees with the CA IOUs that eliminating this requirement 
would lead to a more efficient rulemaking process.
    Accordingly, for the reasons discussed in the July 2021 NOPR and 
this document, DOE is revising section 8 of appendix A to specify that 
the Department will issue one or more pre-NOPR rulemaking documents and 
comment periods for test procedure rulemaking documents will be 
determined on a case-by-case basis with a minimum 60-day comment period 
for NOPRs. DOE is also eliminating the requirement in section 8 that 
the Department identify any necessary modifications to a test procedure 
prior to initiating a standards rulemaking.

D. ASHRAE Equipment

    In EPCA, Congress established a separate and unique regulatory 
scheme pertaining to DOE rulemakings of certain covered equipment 
addressed by ASHRAE Standard 90.1, Energy Standard for Buildings Except 
Low-Rise Residential Buildings, including specific requirements for 
both energy conservation standards and test procedures. See 42 U.S.C. 
6313(a)(6) and 42 U.S.C. 6314(a)(4), respectively. In the February 2020 
Final Rule, DOE added a section to appendix A specifically addressing 
ASHRAE equipment for the first time. 85 FR 8626, 8708. While DOE sees 
value in setting forth the statutory requirements and the Department's 
regulatory process for covered ASHRAE equipment, a subsequent review 
suggested that DOE's initial efforts to explain the applicable ASHRAE 
requirements could be improved, both in terms of better delineating the 
rulemaking process for covered ASHRAE equipment and removing 
constraints that are neither compelled by the statute nor consistent 
with DOE's past practice.
    First, with respect to the rulemaking process for ASHRAE equipment 
laid out in EPCA, DOE proposed to separate out the statutory 
requirements for energy conservation standards and test procedures, as 
the February 2020 Final Rule erroneously applied EPCA's timelines for 
energy conservation standards to test procedures as well. Id. at 86 FR 
35675-35676. DOE also proposed to clarify what type of action on the 
part of ASHRAE would trigger a DOE review for amended energy 
conservation standards and test procedures. With respect to amended 
energy conservation standards, DOE proposed to only consider ASHRAE to 
have acted in a manner triggering DOE review when an updated version of 
ASHRAE Standard 90.1 publishes (i.e., not at the time that an addendum 
to ASHRAE Standard 90.1 is released or approved), and the updated 
version includes an increase in the stringency of standard levels or a 
new design requirement relative to the current Federal standards. With 
respect to test procedures, DOE proposed to only consider ASHRAE to 
have acted in a manner triggering DOE review when an updated version of 
ASHRAE Standard 90.1 publishes (i.e., not at the time that an addendum 
to ASHRAE Standard 90.1 is released or approved), and that updated 
version adopts a new or amended test procedure that updates the 
technical methodology. This approach is consistent with the ASHRAE-
specific provisions in EPCA and generally consistent with past DOE 
practice. Id. at 86 FR 35676. Finally, DOE also proposed to clarify 
that ASHRAE's review and reaffirmance (i.e., not amending) of either a 
standard or test procedure does not trigger a DOE review or affect the 
timing of DOE's separate obligation under EPCA to periodically review 
standards and test procedures for each class of covered equipment. Id.
    Additionally, DOE proposed to clarify that it has some flexibility 
in adopting an amended test procedure under ASHRAE Standard 90.1 as 
EPCA does not require DOE to adopt a test procedure identical to the 
industry test standard. Id. Instead, EPCA directs DOE

[[Page 24352]]

to amend its test procedure ``to be consistent with the amended 
industry test procedure . . . unless the Secretary determines, by rule, 
published in the Federal Register and supported by clear and convincing 
evidence'' that the amended industry test standard would not be 
representative of the equipment's energy efficiency, energy use, or 
estimated operating cost during a representative average use cycle and 
not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(4)(B)) Id. DOE 
further clarified that in such cases, DOE may then develop its own test 
procedure which does meet these statutory requirements related to 
representativeness and burden, even if the test procedure is not 
consistent with the amended industry test standard. Id. DOE also noted 
that the statutory language ``consistent with'' itself provides some 
flexibility in adopting the amended industry test procedure, and that 
as EPCA does not require DOE to adopt a test procedure identical to 
applicable industry test standard, DOE may make modifications that are 
consistent with the applicable industry test standard. Id.
    In addition, DOE proposed to clarify that it is not required to 
adopt or align with sections of the industry test standard that are not 
necessary for the method of test for metrics included in the DOE test 
procedure (e.g., sections of the industry test procedure regarding the 
selection of models for testing under an industry certification 
program, verification of represented values and the associated 
tolerances, and operational requirements). These proposals were 
consistent with the Department's longstanding historic practice. 86 FR 
35668, 35676.
    In the July 2021 NOPR, DOE also proposed to remove the statement 
that DOE will adopt the revised ASHRAE levels or the industry test 
procedure, except in very limited circumstances. The circumstances 
under which DOE will adopt a more-stringent standard than the ASHRAE 
standard or a different test procedure are laid out in the statute. DOE 
will issue a more-stringent standard than the ASHRAE standard if DOE 
determines, supported by clear and convincing evidence, that the more-
stringent standard would result in significant additional conservation 
of energy and is technologically feasible and economically justified. 
(42 U.S.C. 6313(a)(6)(A)(ii)(II)) ``Very limited circumstances'' is an 
ambiguous description for a process that is delineated in EPCA. As a 
result, DOE proposed to remove this description of the circumstances 
under which DOE will not adopt the amended ASHRAE standard or industry 
test procedure. 86 FR 35668, 35676. Similarly, DOE proposed to remove 
the discussion of what constitutes clear and convincing evidence. Id. 
As DOE previously noted in the February 2020 Final Rule, the clear and 
convincing evidence standard has a specific meaning that the courts 
have routinely addressed through case law. See 85 FR 8626, 8642 
(discussing in detail the application of the ``clear and convincing'' 
evidentiary standard by courts and legal commentators); see also Am. 
Pub. Gas Ass'n v. United States Dep't of Energy, 22 F.4th 1018, 1025 
(D.C. Cir. 2022) (``[C]lear and convincing evidence requires a 
factfinder (in this case the Secretary) to have an `abiding conviction' 
that her findings (in this case that a more stringent standard would 
result in significant additional conservation of energy, would be 
technologically feasible, and is economically justified) are `highly 
probable' to be true.''). DOE does not believe the discussion of clear 
and convincing evidence in appendix A adds anything to the already 
extensive case law pertaining to the clear and convincing evidence 
threshold.
    DOE also proposed to remove the statement that DOE believes that 
ASHRAE not acting to amend Standard 90.1 is tantamount to a decision 
that the existing standard remain in place and clarify that ASHRAE 
reviewing and reaffirming a standard or test procedure does not have 
any effect on DOE's rulemaking obligations under EPCA. 86 FR 35668, 
35676. As discussed previously, DOE initiates an ASHRAE rulemaking 
because: (1) Standard 90.1 is amended; or (2) it is required under the 
6-year lookback review for standards or the 7-year lookback review for 
test procedures. Neither of these situations would be affected by a 
decision by ASHRAE to reaffirm an existing standard or test procedure.
    Finally, DOE also proposed to make two clarifications regarding its 
ASHRAE review process consistent with longstanding DOE practice. First, 
DOE proposed to clarify that it assesses energy savings from amended 
ASHRAE Standard 90.1 levels as compared to the current Federal standard 
(or the market baseline in cases where ASHRAE adds new equipment 
classes or categories not previously subject to Federal standards) and 
will also assess energy savings from more-stringent standards as 
compared to the ASHRAE Standard 90.1 levels. Id. And, second, DOE 
proposed to clarify that it may review all metrics for the equipment 
category at issue, even though ASHRAE only amended DOE's regulated 
metric(s), and the Department may also consider changing regulated 
metrics (while assessing equivalent stringency between metrics). DOE 
also proposed to clarify that it may also consider changing metrics 
during a 6-year-lookback or 7-year-lookback review. Id. DOE believes 
this is consistent with EPCA's requirement that test procedures (and 
metrics) be representative of an average use cycle.
Comments Supporting DOE's Proposals on ASHRAE Rulemakings
    Several commenters expressed general support for all of DOE's 
proposed revisions to the ASHRAE provisions in appendix A. (See, e.g., 
NPCC, No. 52 at p. 2; NEEA, No.71 at pp. 3-4) With respect to DOE's 
proposal to create separate provisions for energy conservation 
standards and test procedures rulemakings because of different 
statutory requirements, the Joint Industry Commenters agreed that 
energy conservation standards and test procedure rulemakings are 
subject to different timelines under the statute. (Joint Industry 
Commenters, No. 62 at p. 19).
    Several commenters supported DOE's proposal to provide clarity 
tying the triggering event to when ASHRAE publishes an updated version 
of ASHRAE Standard 90.1. (See, e.g., BWC, No. 63 at pp. 2-3; NEEA, No. 
71 at pp. 3-4; ASHRAE, No. 59 at p. 3) ASHRAE stated that the proposal 
provides for a regular three-year cadence of reviews and provides 
clarity. (ASHRAE, No. 59 at p. 3) NEEA recommend that DOE clarify in 
the regulatory text that addendums to ASHRAE 90.1 or updates to an 
industry test procedure (TP) that ASHRAE 90.1 references do not trigger 
a DOE review of energy conservation standard (ECS) and TP. (NEEA, No. 
71 at pp. 3-4) BWC also agrees with DOE not triggering a review simply 
when ASHRAE reviews or affirms a standard. (BWC, No. 63 at pp. 2-3)
    Several commenters supported DOE's proposal to remove the language 
stating that DOE would adopt ASHRAE levels or the industry test 
procedure, except in very limited circumstances. (See, e.g., ASAP, No. 
53 at pp. 41-42; Advocacy Groups, No. 70 at p. 5; State Commenters, No. 
67 at pp. 7-8; NEEA, No. 71 at pp. 3-4) In supporting DOE's proposal, 
ASAP stated that the ``except in very limited circumstances'' language 
was an additional constraint that was inconsistent with the statute and 
would impede DOE's ability to achieve EPCA's energy conservation 
purposes. (ASAP, No. 53 at pp. 41-42)
    Similarly, several commenters also supported DOE's proposal to 
remove the discussion of what constitutes clear and

[[Page 24353]]

convincing evidence from appendix A. (See, e.g., ASAP, No. 53 at pp. 
41-42; CEC, No. 55 at p. 3; Advocacy Groups, No. 70 at p. 5; State 
Commenters, No. 67 at pp. 7-8) State Commenters noted that further 
elaboration of the clear and convincing evidence standard either does 
not change the standard, in which case it is superfluous, or does 
change the standard, in which case it violates EPCA. (State Commenters, 
No. 67 at pp. 7-8) The California Energy Commission (CEC) stated that 
DOE's removal of the clear and convincing evidence discussion in light 
of the extensive case law covering this topic would ensure that an 
overly stringent interpretation of the evidentiary threshold does not 
inhibit the Department from adopting standards that would result in 
significant additional conservation of energy and are technologically 
feasible and economically justified. (CEC, No. 55 at p. 3)
Comments Opposing DOE's Proposals on ASHRAE Rulemakings
    One commenter requested that DOE reconsider its proposal tying the 
triggering event to when ASHRAE publishes an updated version of ASHRAE 
Standard 90.1. Specifically, CA IOUs requested that DOE consider 
publication of an addendum to ASHRAE Standard 90.1 to trigger a review, 
noting that some valuable addenda miss the triannual update deadline 
but are published shortly afterward, and that DOE's proposed 
interpretation would result in a delay in compliance state for 
standards. (CA IOUs, No. 69 at p. 3) CA IOUs also requested that DOE 
clarify what is meant by updates to ASHRAE 90.1 that modify the 
referenced industry test procedure; specifically what degree of change 
is required to trigger DOE. Id. CA IOUs noted that historically ASHRAE 
has adopted the latest published version of industry test procedures, 
even if they include only minor changes and clarifications from the 
previous version, and that DOE typically does not update its test 
procedure to match ASHRAE in those cases. Id.
    With respect to DOE's proposal to clarify that ASHRAE's review and 
reaffirmance (i.e., not amending) of either a standard or test 
procedure does not trigger a DOE review or affect the timing of DOE's 
separate obligation under EPCA, the Joint Industry Commenters stated 
that if ASHRAE 90.1 is amended just with respect to the energy 
conservation standard for an ASHRAE equipment, they would still expect 
DOE to conduct a ``short test procedure rulemaking to simply 
acknowledge the continued applicability of the test procedure.'' (Joint 
Industry Commenters, No. 62 at p. 20)
    Several commenters opposed DOE's proposal to remove the language 
stating that DOE would adopt ASHRAE levels or the industry test 
procedure, except in very limited circumstances. (See, e.g., Carrier, 
No. 54 at pp. 3, 4; Lutron, No. 64 at pp. 4-5; Joint Industry 
Commenters, No. 62 at pp. 23-24; BWC, No. 63 at p. 3; ASHRAE, No. 59 at 
pp. 3-4) In urging DOE to retain this language, the Joint Industry 
Commenters stated that ASHRAE's open and collaborative process, which 
involves manufacturers, energy advocates, regulators, academia, and 
utilities, develops standards that are fair and representative of what 
are both economically and technologically feasible at the time of the 
revision. (Joint Industry Commenters, No. 62 at pp. 23-24) Similarly, 
Lutron stated that industry test procedures are developed by balanced 
committees and DOE should routinely adopt industry test procedures as a 
matter of best practice. (Lutron, No. 64 at pp. 4-5) GE Appliances 
stated that adopting consensus standards speeds up the test procedure 
rulemaking process, prepares all stakeholders to address standards 
rulemakings sooner, and reduces the likelihood of litigation or other 
action regarding test procedures. (GE Appliances, No. 72 at p. 3) 
Lennox stated that DOE should rarely deviate from industry test 
procedures metrics given the ``clear and convincing evidence'' 
threshold set for deviating from industry test procedures. Id. Lennox 
stated that the test procedure lookback section indicates that DOE may 
amend a test procedure ``in accordance with this section'' (42 U.S.C. 
6314(a)(1)(i)), which thereby references the entire section 42 U.S.C. 
6314, which includes the ASHRAE ``clear and convincing evidence'' 
standard for amending a test procedure in 6314(a)(4)(B). Id.
    DOE received several comments opposing the Department's proposal to 
remove the discussion of what constitutes clear and convincing 
evidence. (See, e.g., Spire, No. 53 at p. 43; Carrier, No. 54 at pp. 3, 
4; Joint Industry Commenters, No. 62 at p. 24; ASHRAE, No. 59 at pp. 3-
4) The Joint Industry Commenters urged DOE to retain the current text 
regarding what constitutes ``clear and convincing'' evidence with 
respect to adopting energy conservation standards more stringent than 
those adopted in ASHRAE 90.1. In their view, the explanatory text 
adopted as part of the February 2020 Final Rule clarified the meaning 
of this phrase in this context, which is to discourage the adoption of 
higher energy efficiency standards above those set by ASHRAE. (Joint 
Industry Commenters, No. 62 at p. 24) Spire stated that eliminating the 
discussion of what constitutes clear and convincing evidence would 
forgo an opportunity to potentially resolve issues without the need for 
litigation. (Spire, No. 53 at p. 43)
DOE's Response to Comments
    First, DOE did not receive any comments opposing separate 
provisions for energy conservation standards and test procedure 
rulemakings. As noted by the Joint Industry Commenters, energy 
conservation standards and test procedure rulemakings are subject to 
different statutory requirements under the ASHRAE provisions in EPCA. 
Accordingly, for the reasons discussed in the July 2021 NOPR and this 
document, DOE is revising section 9 of appendix A to create separate 
provisions for energy conservation standards and test procedure 
rulemaking requirements.
    With respect to DOE's proposal that the ASHRAE provisions are 
triggered when an updated version of ASHRAE Standard 90.1 is published, 
the CA IOUs commented that DOE should instead consider the publication 
of an addendum to ASHRAE Standard 90.1 as the triggering event. In 
response to the CA IOUs, DOE has determined that the benefit of a clear 
review cycle provides certainty to the public and does not impact DOE's 
separate obligation under EPCA to periodically review standards and 
test procedures, which should alleviate some of the CA IOUs concern 
over the possibility of extended compliance dates.
    With respect to NEEA's request that DOE clarify in the regulatory 
text that addendums to ASHRAE 90.1 or updates to an industry TP that 
ASHRAE 90.1 references do not trigger a DOE review of ECS and TP, DOE 
notes that it was already articulated in the regulatory text with 
respect to standards, but DOE has included similar language in the 
regulatory text with respect to test procedures, consistent with the 
proposal in the NOPR preamble. With respect to the CA IOUs request that 
DOE clarify what degree of change to an industry test procedure would 
trigger DOE to act, DOE would only be triggered by ASHRAE updating its 
reference to an updated industry test procedure that contains 
modifications to sections of relevance to DOE metrics. Where the 
referenced industry test procedure makes minor modifications to

[[Page 24354]]

a section of relevance to DOE metrics, DOE would only consider itself 
triggered if such modifications make a substantive change to the DOE 
test procedure.
    With respect to DOE's proposal to clarify that ASHRAE's review and 
reaffirmance (i.e., not amending) of either a standard or test 
procedure does not trigger a DOE review or affect the timing of DOE's 
separate obligation under EPCA, the Joint Industry Commenters stated 
that if ASHRAE 90.1 is amended just with respect to the energy 
conservation standard for an ASHRAE equipment, they would still expect 
DOE to conduct a ``short test procedure rulemaking to simply 
acknowledge the continued applicability of the test procedure.'' DOE 
disagrees with the Joint Industry Commenters. DOE's rulemaking 
obligations under the ASHRAE provisions in EPCA are very clear. 
Further, as clarified in this final rule, the requirements for test 
procedure and standards rulemakings are separate. Being required to 
initiate an energy conservation standards rulemaking for ASHRAE 
equipment under either an ASHRAE trigger or a 6-year lookback review, 
does not, on its own, require DOE to also conduct a test procedure 
rulemaking. As such, for the reasons discussed in the July 2021 NOPR 
and this document, DOE is revising section 9 of appendix A to remove 
language that suggests that ASHRAE not acting to amend a standard is a 
decision affirming the current standard. However, DOE is not finalizing 
the language from the July 2021 NOPR that stated that DOE's obligations 
under the lookback provisions for standards and test procedures are not 
satisfied by any ASHRAE action, including reviewing, but not amending, 
a standard or test procedure. DOE believes the statute is already 
sufficiently clear on this point and the added text is unnecessary.
    With respect to DOE's proposed elimination of the language 
characterizing the circumstances under which the Department would not 
adopt the ASHRAE levels or test procedure as being very limited, 
commenters, both in favor of and opposed to retaining this language, 
seem to think this language implies something more than what is written 
in the statute. EPCA specifies the circumstances under which DOE will 
adopt a more-stringent standard than the ASHRAE standard or a different 
test procedure. For example, DOE will issue a more-stringent standard 
than the ASHRAE standard if DOE determines, supported by clear and 
convincing evidence, that the more-stringent standard would result in 
significant additional conservation of energy and is technologically 
feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)(II)) 
DOE agrees with commenters that adding a vague description to these 
circumstances only raises concerns that DOE may not be properly 
following a process that is clearly laid out in the statute.
    Similarly, the discussion of what constitutes clear and convincing 
evidence that was added in the February 2020 Final Rule has led to some 
confusion over whether DOE is applying the clear and convincing 
evidence threshold required by EPCA or a modified version. Accordingly, 
for the reasons discussed in the July 2021 NOPR and this document, DOE 
is revising section 9 of appendix A to remove this language as 
proposed. DOE disagrees with Lennox's assertion that DOE should rarely 
deviate from industry test procedure metrics due to their view that the 
7-year lookback requires ``clear and convincing evidence'' to deviate 
from industry test procedure. Lennox asserts that a reference in 42 
U.S.C. 6314(a)(1)--the 7-year lookback provision--to ``in accordance 
with this section'' references the entirety of section 42 U.S.C. 6314, 
including the clear and convincing provision in 42 U.S.C. 6314(4)--the 
ASHRAE trigger provision. However, a plain language reading does not 
include this requirement; paragraph (a)(4) of section 6314 is very 
specific to the ASHRAE trigger; had it been intended for this paragraph 
to apply to the 7 year lookback as well, it would have been cited 
specifically, just as the 6 year lookback provision for energy 
conservation standards in 42 U.S.C. 6313(6)(C) refer back specifically 
to the ASHRAE trigger provisions in 42 U.S.C. 6313(6)(A) and (B).
    During its 7-year lookback review, DOE is directed by EPCA to 
evaluate whether an amended test procedure would more accurately or 
fully comply with the representativeness and burden requirements in 42 
U.S.C. 6314(a)(2), and if DOE determines an amended test procedure 
would do so, then DOE is required to prescribe such test procedures for 
the equipment class. (42 U.S.C. 6314(a)(1)(A)) There is no requirement 
that DOE's decision to amend a test procedure be supported by clear and 
convincing evidence. (Id.) DOE's 7-year-lookback review under EPCA 
ensures that DOE is not bound to an industry test procedure that has 
not been updated when more representative and/or less burdensome test 
methods are available.
    DOE notes that in proposing modifications to the regulatory text 
for the ASHRAE Equipment section, DOE inadvertently introduced the 
``clear and convincing'' language to the test procedure lookback 
rulemaking provision. Nowhere in the preamble did DOE state that it 
intended for this to be the requirement or that it was DOE's 
interpretation of EPCA. For the reasons discussed above, DOE has 
removed that clause in this final rule.
    Finally, as noted in the July 2021 NOPR, application of the ASHRAE 
provisions in EPCA typically involve nuances that are not best 
addressed in appendix A, which contains generally applicable 
procedures, interpretations, and policies for energy conservation 
standard and test procedure rulemakings. 86 FR 35668, 35675. DOE 
received several comments in response to the July 2021 NOPR that 
further reinforce the need for additional, more-specific guidance on 
DOE's implementation of the ASHRAE provisions. DOE believes this is 
best accomplished outside the confines of appendix A in a separate 
process. As such, DOE is not finalizing proposed revisions from the 
July 2021 NOPR dealing with regulated metrics, the baseline for energy 
conservation standards analysis, adoption of industry test procedure 
sections not relevant to the DOE test procedure, and consistency with 
the industry TP in this final rule. DOE will further consider these 
proposals and other ASHRAE-related issues in a separate process.

E. Analytical Methodology

    In late 2019, DOE contracted with the National Academy of Sciences 
(``NAS'') to conduct a peer review of the Department's methods for 
setting building and equipment performance standards.\11\ As such, in 
the February 2020 Process Rule, DOE stated that it would consider 
changes to sections of the Process Rule involving its analytical 
methodologies in a subsequent proceeding after completion of a peer 
review. 85 FR 8686-8687. As such, these sections remained largely 
unchanged from the July 1996 Final Rule. However, when DOE began to 
consider revisions to appendix A in early 2021, the NAS peer review 
process was still ongoing without a definitive completion date. At that 
point, DOE decided that the benefits of updating the analytical 
methodology in the July 1996 Final Rule to reflect the Department's 
current practice, which incorporates lessons learned from an additional 
25

[[Page 24355]]

years of rulemakings, outweighed the potential inefficiency of having 
to amend these methods again in a subsequent proceeding. As a result, 
in the July 2021 NOPR, DOE proposed to revise appendix A to reflect the 
current state of DOE's analytical methodologies. DOE also stated that 
if it makes any revisions to its analytical methods based on the NAS 
peer review, the Department will propose any necessary corresponding 
revisions to the Process Rule in a subsequent proceeding. 86 FR 35668, 
35677.
---------------------------------------------------------------------------

    \11\ More information on the NAS peer review, including the 
final report, is available at https://www.nationalacademies.org/our-work/review-of-methods-for-setting-building-and-equipment-performance-standards.
---------------------------------------------------------------------------

    DOE has since had cause to reconsider this position. First, in 
response to the July 2021 NOPR, DOE received numerous comments from 
stakeholders that the Department should wait to revise its analytical 
methodologies until the NAS has completed its peer review. (See, e.g., 
Carrier, No. 54 at p. 4; Lutron, No. 64 at p. 4; GEA, No. 72 at p. 4; 
Joint Industry Commenters, No. 62 at pp. 10-11) Second, the NAS 
completed the peer review and published their report on January 7, 
2022.\12\ In light of these two factors, DOE has decided not to 
finalize any revisions to its analytical methodologies in this 
document. Instead, DOE will consider changes to its methodologies in a 
separate notice-and-comment process that is informed by the results of 
the NAS Report.
---------------------------------------------------------------------------

    \12\ Review of Methods Used by the U.S. Department of Energy in 
Setting Appliance and Equipment Standards. The National Academies 
Press (2021). Available at www.nap.edu/catalog/25992/review-of-methods-used-by-the-us-department-of-energy-in-setting-appliance-and-equipment-standards.
---------------------------------------------------------------------------

F. Other Topics

    In addition to the topics covered in this document, DOE also 
received a number of other comments on topics not covered in the July 
2021 NOPR. For instance, DOE received a number of comments on issues 
discussed in the April 2021 NOPR, e.g., whether appendix A should be 
binding. DOE is not addressing these comments in this document as those 
proposals were finalized in the December 2021 Final Rule.
    DOE also received comment on its adherence to EPCA's directive that 
any new or amended energy conservation standard prescribed by the DOE 
must be designed to achieve the maximum improvement in energy 
efficiency, which the Secretary determines is technologically feasible 
and economically justified, and DOE's application of the associated 
statutory factors. (See 42 U.S.C. 6295(o)(2)(A) and (B)(i)(I)-(IV); 42 
U.S.C. 6316(a))
    The Joint Commenters urged DOE to retain its current practices of 
analyzing all relevant statutory factors when selecting a final 
standard rather than focusing sequentially on any one or any specific 
set of factors. They also suggested that when analyzing whether a 
potential standard level is economically justified, DOE should continue 
to use only the economic results to end consumers since, in their view, 
this is the clear intent of the relevant statutes and end consumer 
economics should be the sole criterion in determining economic 
justification. The commenters noted that DOE's national economic and 
related impact analyses are not measures of end consumer economics and 
should never be used as a substitute (or supersede) the end customer 
analysis. (Joint Industry Commenters, No. 62 at p. 13)
    The Joint Industry Commenters stated that they would object to 
DOE's use of the Social Cost of Carbon and other calculations of the 
monetary value of avoided greenhouse gas emissions being included in 
DOE's analysis of the factors under EPCA. The commenters asserted that 
such an approach would be inappropriate under EPCA since the scientific 
and economic knowledge continues to evolve rapidly as to the 
contribution of carbon dioxide and other greenhouse gases to changes in 
the future global climate. They argued that while it may be acceptable 
for DOE to examine these values as informational (so long as the 
underlying interagency analysis is transparent and vigorous), the 
emissions reductions analysis should not impact the trial standard 
level that DOE selects as a new or amended standard. (Joint Industry 
Commenters, No. 62 at pp. 13-14)
    AHRI asserted that EPCA was intended to focus on energy efficiency, 
energy costs, and energy savings in the United States. It argued that 
none of the seven factors \13\ that DOE must consider when evaluating 
whether a potential standard is economically justified focuses on the 
monetary value of the avoided emissions of greenhouse gases or other 
air pollutants. It added that Congress' inclusion of the first six 
factors individually was evidence of its view that these first six 
factors were significantly important and drive the energy standards 
analysis. AHRI further asserted that in spite of numerous amendments to 
EPCA, Congress never included greenhouse gas emissions as a pertinent 
factor for DOE to consider. AHRI stated that the monetary impacts of 
avoided greenhouse gas emissions should only be used for informational 
purposes rather than given any weight as part of DOE's cost-benefit 
analysis--and DOE should not use its limited resources to conduct an 
analysis of avoiding these emissions (or the social cost of carbon) 
when setting efficiency levels. (AHRI, No. 56 at 2-3)
---------------------------------------------------------------------------

    \13\ EPCA states that in determining whether a standard is 
economically justified, the Secretary shall, after receiving views 
and comments furnished with respect to the proposed standard, 
determine whether the benefits of the standard exceed its burdens 
by, to the greatest extent practicable, considering--(I) the 
economic impact of the standard on the manufacturers and on the 
consumers of the products subject to such standard; (II) the savings 
in operating costs throughout the estimated average life of the 
covered product in the type (or class) compared to any increase in 
the price of, or in the initial charges for, or maintenance expenses 
of, the covered products which are likely to result from the 
imposition of the standard; (III) the total projected amount of 
energy, or as applicable, water, savings likely to result directly 
from the imposition of the standard; (IV) any lessening of the 
utility or the performance of the covered products likely to result 
from the imposition of the standard; (V) the impact of any lessening 
of competition, as determined in writing by the Attorney General, 
that is likely to result from the imposition of the standard; (VI) 
the need for national energy and water conservation; and (VII) other 
factors the Secretary considers relevant. (42 U.S.C. 
6295(o)(2(B)(i)(I)-(VII); 42 U.S.C. 6316(a))
---------------------------------------------------------------------------

    Specifically with respect to ASHRAE equipment, ASHRAE cautioned DOE 
from going beyond the efficiency standards in Standard 90.1 by overly 
depending upon factors not explicitly named in the so-called ``7 Factor 
Test'', stating that ASHRAE supports greenhouse gas reductions but 
noting that almost any higher standard could be ``economically 
justified'' by using factors such as monetizing avoided emissions. 
ASHRAE stated that such monetization should be produced but not overly 
relied upon in its determination of whether a standard is economically 
justified. (ASHRAE, No. 59 at p. 5)
    AHRI also argued that to the extent DOE calculates greenhouse gas 
emissions associated with potential standards for informational 
purposes, the emission increases from other social equity factors must 
also be considered. AHRI asserted that these other factors have 
significant impacts on greenhouse gas emissions because new standards 
that increase the cost of covered equipment result in underserved rural 
and urban households and small businesses to continue using old, 
inefficient, and leaky equipment--thereby allowing high global warming 
potential refrigerants to be released into the atmosphere. (AHRI, No. 
56 at p. 3)
    IPI commented that DOE should revise its rulemaking approach to 
ensure the consistent and meaningful consideration of all important 
effects to the environment, public health, consumers, and energy 
security,

[[Page 24356]]

including indoor air quality and toxic air and water pollution. Such 
significant impacts, including both upstream and downstream emissions, 
should be considered during--not after--the evaluation of whether 
standards are economically justified. (IPI, No. 68 (Attachment at pp. 1 
and 7-8))
    As noted, under EPCA, any new or amended standard must be designed 
to achieve the maximum improvement in energy efficiency that is 
technologically feasible and economically justified. (42 U.S.C. 
6295(o)(2)(A); 42 U.S.C. 6316(a)) To ensure that DOE meets this 
statutory mandate, DOE employs a walk-down process to select energy 
conservation standard levels. As a first step in the process, DOE 
screens out technologies for improving energy efficiency that are not 
feasible. DOE then uses the remaining technologies to create a range of 
TSLs. Beginning with the max-tech TSL, DOE then determines whether a 
specific TSL is economically justified. In making that determination, 
DOE determines, after reviewing public comments and data, whether the 
benefits of the standard exceed its burdens by, to the greatest extent 
practicable, considering the seven factors described in 42 U.S.C. 
6295(o)(2)(B)(i). (See also 42 U.S.C. 6313(a)(6)(B)(ii) (applying the 
seven factors to ASHRAE equipment); 42 U.S.C. 6316(a) (applying the 
seven factors to non-ASHRAE equipment))
    If DOE determines that the max-tech TSL is economically justified, 
the analysis ends, and DOE adopts the max-tech TSL as the new or 
amended standard. However, if DOE determines that the max-tech TSL is 
not economically justified, DOE walks down to consider the next-most-
stringent TSL. This walkdown process continues until DOE determines 
that a TSL is economically justified or that none of the TSLs are 
economically justified.
    DOE maintains that climate and health benefits associated with the 
more efficient use of energy are important to take into account when 
considering the need for national energy and water conservation, which 
is one of the factors to consider under EPCA. (42 U.S.C. 
6295(o)(2)(B)(i)(VI); Zero Zone, Inc. v. United States DOE, 832 F.3d 
654, 677 (7th Cir. 2016) (holding that, under 42 U.S.C. 
(o)(2)(B)(i)(VI), DOE has ``the authority under EPCA to consider the 
reduction in'' the social cost of greenhouse gasses)).
    The Advocacy Groups provided comment on certain apparent 
inconsistencies and inaccuracies in sections 6 and 7. The Advocacy 
Groups noted that the text of section 6(a)(4)(ii) indicates that DOE 
and its contractors will perform engineering and life-cycle cost 
analyses of the design options and section 6(a)(4)(v) similarly refers 
to life-cycle cost analysis of design options. The Advocacy Groups 
commented that DOE does not perform life-cycle cost analyses of design 
option but of efficiency levels. Similarly, they also noted that 
section 7(c)(1) refers to the analysis of design options, which they 
emphasized DOE does not perform--rather, DOE's analysis is performed on 
efficiency levels. The Advocacy Group suggested that DOE make changes 
to reflect this practice. The Advocacy Groups also stated that the 
current text of section 7(b)(1), which notes that technologies not 
incorporated into commercial products or in commercially viable, 
existing prototypes will not be considered further, is inconsistent 
with DOE's practice of screening out design options which are not 
incorporated in commercial products or in working prototypes. They 
commented that DOE evaluates a ``max-tech'' level (maximum 
technologically feasible level) regardless of cost and that DOE cannot 
screen out a design option on the basis of cost, which are separately 
considered as part of the selection of standard levels. The Advocacy 
Groups further added that while section 7(c)(3) says that efficiency 
levels will be identified in pre-NOPR documents, DOE does not always 
identify efficiency levels in its pre-NOPR documents. (Advocacy Groups, 
No. 70 at pp. 5-6)
    Regarding the Advocacy Groups' comments, DOE will address them as 
part of the separate notice-and-comment process addressing DOE's 
rulemaking methodology.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866,13563, and 14094

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by 
E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 
(Jan. 21, 2011) and E.O. 14094, ``Modernizing Regulatory Review,'' 88 
FR 21879 (April 11, 2023), requires agencies, to the extent permitted 
by law, to: (1) propose or adopt a regulation only upon a reasoned 
determination that its benefits justify its costs (recognizing that 
some benefits and costs are difficult to quantify); (2) tailor 
regulations to impose the least burden on society, consistent with 
obtaining regulatory objectives, taking into account, among other 
things, and to the extent practicable, the costs of cumulative 
regulations; (3) select, in choosing among alternative regulatory 
approaches, those approaches that maximize net benefits (including 
potential economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity); (4) to the extent 
feasible, specify performance objectives, rather than specifying the 
behavior or manner of compliance that regulated entities must adopt; 
and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public. DOE 
emphasizes as well that E.O. 13563 requires agencies to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible. In its guidance, the 
Office of Information and Regulatory Affairs (``OIRA'') in the Office 
of Management and Budget (``OMB'') has emphasized that such techniques 
may include identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral changes. 
For the reasons stated in this preamble, this final regulatory action 
is consistent with these principles.
    This regulatory action is a significant regulatory action under 
section 3(f)(4) of Executive Order 12866, ``Regulatory Planning and 
Review,'' 58 FR 51735 (Oct. 4, 1993). Accordingly, this regulatory 
action was subject to review under the Executive order by the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget (OMB).
    The revisions contained in this regulatory action are procedural 
changes designed to improve DOE's ability to meet its rulemaking 
obligations and deadlines under EPCA. These revisions would not impose 
any regulatory costs or burdens on stakeholders, nor would they limit 
public participation in DOE's rulemaking process. Instead, these 
revisions would allow DOE to tailor its rulemaking processes to fit the 
facts and circumstances of a particular rulemaking for a covered 
product or equipment.
    DOE currently has energy conservation standards and test procedures 
in place for more than 60 categories of covered products and equipment 
and is typically working on anywhere from 50 to 100 rulemakings (for 
both energy conservation standards and test procedures) at any one 
time.

[[Page 24357]]

Further, these rulemakings are all subject to statutory or other 
deadlines. Typically, review cycles for energy conservation standards 
and test procedures for covered products are 6 and 7 years, 
respectively. (42 U.S.C. 6295(m)(1); 42 U.S.C 6293(b)(1)) Additionally, 
if DOE decides not to amend an energy conservation standard for a 
covered product, the subsequent review cycle is shortened to 3 years. 
(42 U.S.C. 6295(m)(3)(B)) It is challenging to meet these cyclical 
deadlines for more than 60 categories of covered products and 
equipment. In fact, as previously discussed, DOE is faced two lawsuits 
that allege DOE has failed to meet rulemaking deadlines for 25 
different consumer products and commercial equipment.\14\
---------------------------------------------------------------------------

    \14\ Consent Decree, NRDC v. DOE, No.: 20-cv-9127 (S.D.N.Y. 
Sept. 20, 2022).
---------------------------------------------------------------------------

    In order to meet these rulemaking deadlines, DOE cannot afford the 
inefficiencies that come with a one-size-fits-all rulemaking approach. 
For example, having to issue an early assessment RFI followed by an 
ANOPR to collect early stakeholder input when a NODA or other pre-rule 
document would accomplish the same purpose unnecessarily lengthens the 
rulemaking process and wastes limited DOE resources. Similarly, having 
to identify any necessary modifications to a test procedure prior to 
initiating an energy conservation standard rulemaking makes it more 
difficult for DOE to meet rulemaking deadlines, while offering little 
to no benefit to stakeholders.
    The revisions in this document would allow DOE to eliminate these 
types of inefficiencies that lengthen the rulemaking process and waste 
DOE resources, while not affecting the ability of the public to 
participate in the rulemaking process. Eliminating inefficiencies that 
lengthen the rulemaking process allows DOE to more quickly develop 
energy conservation standards that deliver the environmental benefits, 
including reductions in greenhouse gas emissions, that DOE is directed 
to pursue under E.O. 13990. Further, the sooner new or amended energy 
conservation standards eliminate less-efficient covered products and 
equipment from the market, the greater the resulting energy savings and 
environmental benefits.
    Finally, the revisions in this document would not dictate any 
particular rulemaking outcome in an energy conservation standard or 
test procedure rulemaking. DOE will continue to calculate the 
regulatory costs and benefits of new and amended energy conservation 
standards and test procedures issued under EPCA in future, individual 
rulemakings.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996) 
requires preparation of an initial regulatory flexibility analysis 
(IRFA) for any rule that by law must be proposed for public comment and 
a final regulatory flexibility analysis (FRFA) for any such rule that 
an agency adopts as a final rule, unless the agency certifies that the 
rule, if promulgated, will not have a significant economic impact on a 
substantial number of small entities. A regulatory flexibility analysis 
examines the impact of the rule on small entities and considers 
alternative ways of reducing negative effects. Also, as required by 
Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the DOE rulemaking process. 68 FR 7990. DOE has made 
its procedures and policies available on the Office of the General 
Counsel's website at: www.energy.gov/gc/office-general-counsel.
    This final rule details generally applicable guidance that may 
guide, but not bind, the Department's rulemaking process. The revisions 
in this rule are intended to improve DOE's ability to meet the 
obligations and deadlines outlined in EPCA by allowing DOE to tailor 
its rulemaking procedures to fit the specific facts and circumstances 
of a particular covered product or equipment, while not affecting the 
ability of any interested person, including small entities, to 
participate in DOE's rulemaking process. Because this rule imposes no 
regulatory obligations on the public, including small entities, and 
does not affect the ability of any interested person, including small 
entities, to participate in DOE's rulemaking process, DOE certifies 
that this final rule will not have a significant economic impact on a 
substantial number of small entities, and, therefore, no final 
regulatory flexibility analysis is required. Mid-Tex Elec. Cooperative, 
Inc. v. F.E.R.C., 773 F.2d 327 (D.C. Cir. 1985).

C. Review Under the Paperwork Reduction Act of 1995

    DOE is not amending its existing information collections through 
this rule. Under existing provisions, manufacturers of covered 
products/equipment must certify to DOE that their products comply with 
any applicable energy conservation standards. In certifying compliance, 
manufacturers must test their products according to the DOE test 
procedures for such products/equipment, including any amendments 
adopted for those test procedures, on the date that compliance is 
required. DOE has established regulations for the certification and 
recordkeeping requirements for all covered consumer products and 
commercial equipment. 76 FR 12422 (March 7, 2011); 80 FR 5099 (Jan. 30, 
2015). The collection-of-information requirement for certification and 
recordkeeping is subject to review and approval by OMB under the 
Paperwork Reduction Act (PRA). This requirement has been approved by 
OMB under OMB control number 1910-1400. Public reporting burden for the 
certification is estimated to average 30 hours per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    Specifically, this rule, in addressing clarifications to DOE's 
guidance regarding its process for amending and establishing energy 
conservation standards and related test procedures set out in 10 CFR 
part 430, subpart C, appendix A, does not contain any collection of 
information requirement that would trigger the PRA.

D. Review Under the National Environmental Policy Act of 1969

    DOE has analyzed this regulation in accordance with the National 
Environmental Policy Act (NEPA) and DOE's NEPA implementing regulations 
(10 CFR part 1021). DOE's regulations include a categorical exclusion 
for rulemakings interpreting or amending an existing rule or regulation 
that does not change the environmental effect of the rule or regulation 
being amended. 10 CFR part 1021, subpart D, appendix A, categorical 
exclusion A5. DOE's regulations include a categorical exclusion for 
rulemakings that are strictly procedural. 10 CFR part 1021, subpart D, 
appendix A, categorical exclusion A6. DOE has completed the necessary 
review under NEPA and has

[[Page 24358]]

determined that this rulemaking qualifies for categorical exclusion A5 
and A6 because it is amending a rule and because it is a procedural 
rulemaking, it does not change the environmental effect of the rule and 
otherwise meets the requirements for application of a categorical 
exclusion. See 10 CFR 1021.410.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10, 
1999), imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. The Executive order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. 65 FR 13735. DOE has examined this 
rule and has determined that it will not have a substantial direct 
effect on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. It will 
primarily affect the procedure by which DOE develops proposed rules to 
revise energy conservation standards and test procedures. EPCA governs 
and prescribes Federal preemption of State regulations that are the 
subject of DOE's regulations adopted pursuant to the statute. In such 
cases, States can petition DOE for exemption from such preemption to 
the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 
6297(d)) Therefore, Executive Order 13132 requires no further action.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal 
agencies the general duty to adhere to the following requirements: (1) 
eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigation; (3) provide a clear legal standard for affected 
conduct rather than a general standard; and (4) promote simplification 
and burden reduction. Regarding the review required by section 3(a), 
section 3(b) of Executive Order 12988 specifically requires that each 
Executive agency make every reasonable effort to ensure that when it 
issues a regulation, the regulation: (1) clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) specifies 
whether administrative proceedings are to be required before parties 
may file suit in court and, if so, describes those proceedings and 
requires the exhaustion of administrative remedies; (6) adequately 
defines key terms; and (7) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in sections 3(a) and 3(b) to determine whether they are met 
or it is unreasonable to meet one or more of them. DOE has completed 
the required review and has determined that, to the extent permitted by 
law, this rule meets the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)) 
For a regulatory action likely to result in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. (62 FR 12820) (This policy is also available at 
www.energy.gov/gc/office-general-counsel under ``Guidance & Opinions'' 
(Rulemaking)) DOE examined the rule according to UMRA and its statement 
of policy and has determined that the rule contains neither an 
intergovernmental mandate, nor a mandate that may result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any year. 
Accordingly, no further assessment or analysis is required under UMRA.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule or policy that may affect 
family well-being. When developing a Family Policymaking Assessment, 
agencies must assess whether: (1) the action strengthens or erodes the 
stability or safety of the family and, particularly, the marital 
commitment; (2) the action strengthens or erodes the authority and 
rights of parents in the education, nurture, and supervision of their 
children; (3) the action helps the family perform its functions, or 
substitutes governmental activity for the function; (4) the action 
increases or decreases disposable income or poverty of families and 
children; (5) the proposed benefits of the action justify the financial 
impact on the family; (6) the action may be carried out by State or 
local government or by the family; and whether (7) the action 
establishes an implicit or explicit policy concerning the relationship 
between the behavior and personal responsibility of youth, and the 
norms of society. In evaluating the above factors, DOE has concluded 
that it is not necessary to prepare a Family Policymaking Assessment as 
none of the above factors are implicated. Further, this rule would not 
have any impact on the autonomy or integrity of the family as an 
institution.

I. Review Under Executive Order 12630

    Pursuant to Executive Order 12630, ``Governmental Actions and 
Interference with Constitutionally Protected Property Rights,'' 53 FR 
8859 (March 18, 1988), DOE has determined that this rule would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

[[Page 24359]]

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review 
most disseminations of information to the public under information 
quality guidelines established by each agency pursuant to general 
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 
(Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE 
guidelines and has concluded that it is consistent with the applicable 
policies in those guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB, a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgates or is expected to lead to promulgation of 
a final rule, and that: (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    DOE has concluded that the regulatory action in this document, 
which makes clarifications to the Process Rule that guides the 
Department in proposing energy conservation standards is not a 
significant energy action because it would not have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as a significant energy action by the Administrator 
of OIRA. Therefore, it is not a significant energy action, and, 
accordingly, DOE has not prepared a Statement of Energy Effects for 
this final rule.

L. Review Consistent With OMB's Information Quality Bulletin for Peer 
Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (OSTP), issued its Final Information 
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 
2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the bulletin is to enhance the quality and credibility of 
the Government's scientific information. Under the Bulletin, the energy 
conservation standards rulemaking analyses are ``influential scientific 
information,'' which the Bulletin defines as ``scientific information 
the agency reasonably can determine will have or does have a clear and 
substantial impact on important public policies or private sector 
decisions.'' Id. at 70 FR 2667.
    In response to OMB's Bulletin, DOE conducted formal in-progress 
peer reviews of the energy conservation standards development process 
and analyses and has prepared a Peer Review Report pertaining to the 
energy conservation standards rulemaking analyses. Generation of this 
report involved a rigorous, formal, and documented evaluation using 
objective criteria and qualified and independent reviewers to make a 
judgment as to the technical/scientific/business merit, the actual or 
anticipated results, and the productivity and management effectiveness 
of programs and/or projects. The ``Energy Conservation Standards 
Rulemaking Peer Review Report,'' dated February 2007, has been 
disseminated and is available at the following website: www.energy.gov/eere/buildings/peer-review. Because available data, models, and 
technological understanding have changed since 2007, DOE has engaged 
with the National Academy of Sciences to review DOE's analytical 
methodologies to ascertain whether modifications are needed to improve 
the Department's analyses. As discussed, DOE is in the process of 
evaluating the resulting report.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Intergovernmental relations, Small businesses, Test procedures.

Signing Authority

    This document of the Department of Energy was signed on March 29, 
2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for 
Energy Efficiency and Renewable Energy, pursuant to delegated authority 
from the Secretary of Energy. That document with the original signature 
and date is maintained by DOE. For administrative purposes only, and in 
compliance with requirements of the Office of the Federal Register, the 
undersigned DOE Federal Register Liaison Officer has been authorized to 
sign and submit the document in electronic format for publication, as 
an official document of the Department of Energy. This administrative 
process in no way alters the legal effect of this document upon 
publication in the Federal Register.

    Signed in Washington, DC, on March 29, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends part 430 of 
title 10 of the Code of Federal Regulations as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.


0
2. Amend appendix A to subpart C of part 430 by revising sections 5, 6, 
8, and 9 to read as follows:

Appendix A to Subpart C of Part 430--Procedures, Interpretations, and 
Policies for Consideration of New or Revised Energy Conservation 
Standards and Test Procedures for Consumer Products and Certain 
Commercial/Industrial Equipment

* * * * *

Coverage Determination Rulemakings

    DOE has discretion to conduct proceedings to determine whether 
additional consumer

[[Page 24360]]

products and commercial/industrial equipment should be covered under 
EPCA if certain statutory criteria are met. (42 U.S.C. 6292(b) and 
42 U.S.C. 6295(l) for consumer products; 42 U.S.C. 6312(b) for 
commercial/industrial equipment). This section describes the process 
to be used in establishing coverage for consumer products and 
commercial/industrial equipment.
    (a) Pre-notice of proposed rulemaking (``NOPR'') stage. In 
determining whether to consider establishing coverage for a consumer 
product or commercial/industrial equipment, DOE may publish one or 
more preliminary documents in the Federal Register intended to 
gather information on key issues. Such document(s) will be published 
in the Federal Register, with accompanying documents referenced and 
posted in the appropriate docket.
    (b) NOPR stage. If DOE determines to proceed with a coverage 
determination process, the Department will publish a notice of 
proposed determination, providing an opportunity for public comment 
of not less than 60 days, in which DOE will explain how such 
products/equipment that it seeks to designate as ``covered'' meet 
the statutory criteria for coverage and why such coverage is 
``necessary or appropriate'' to carry out the purposes of EPCA. In 
the case of commercial equipment, DOE will follow the same process, 
except that the Department must demonstrate that coverage of the 
equipment type is ``necessary'' to carry out the purposes of EPCA.
    (c) Final rule. DOE will publish a final rule in the Federal 
Register that establishes the scope of coverage for the product/
equipment, responds to public comments received on the NOPR, and 
explains how inclusion of the newly covered product/equipment meets 
the statutory criteria for coverage and why such coverage is 
necessary or appropriate to carry out the purposes of EPCA. DOE will 
finalize coverage for a product/equipment prior to publication of a 
proposed rule to establish a test procedure.
    (d) Scope of coverage revisions. If, during the substantive 
rulemaking proceedings to establish test procedures or energy 
conservation standards after completing a coverage determination, 
DOE finds it necessary and appropriate to amend the scope of 
coverage, DOE will propose an amended coverage determination and 
finalize coverage prior to moving forward with the test procedure or 
standards rulemaking.

6. Process for Developing Energy Conservation Standards

    This section describes the process to be used in developing 
energy conservation standards for covered products and equipment 
other than those covered equipment subject to ASHRAE/IES Standard 
90.1.
    (a) Pre-NOPR stage--(1) General. In determining whether to 
consider establishing or amending any energy conservation standard, 
DOE will publish one or more preliminary, pre-NOPR documents in the 
Federal Register intended to gather information on key issues. Such 
document(s) could take several forms depending upon the specific 
proceeding, including a framework document, request for information 
(RFI), notice of data availability (NODA), preliminary analysis, or 
advance notice of proposed rulemaking (ANOPR). Such document(s) will 
be published in the Federal Register, with any accompanying 
documents referenced and posted in the appropriate docket.
    (2) Satisfaction of statutory criteria. As part of such pre-
NOPR-stage document(s), DOE will solicit submission of comments, 
data, and information on whether DOE should proceed with the 
rulemaking, including whether any new or amended rule would satisfy 
the relevant statutory criteria to be cost-effective, economically 
justified, technologically feasible, and result in a significant 
savings of energy. Based on the information received in response to 
such request and its own analysis, DOE will determine whether to 
proceed with a rulemaking for a new or amended energy conservation 
standard. If DOE determines at any point in the pre-NOPR stage that 
no candidate standard level for a new or amended standard is likely 
to satisfy all of the applicable statutory criteria (i.e., to be 
technologically feasible and economically justified and result in 
significant energy savings), DOE will announce that conclusion in 
the Federal Register and proceed with notice-and-comment rulemaking 
that proposes a determination not to adopt new or amended standards. 
DOE notes that it will, consistent with its statutory obligations, 
consider both cost effectiveness and economic justification when 
issuing a determination not to amend a standard. If DOE receives 
sufficient information suggesting it could justify a new or amended 
standard or the information received is inconclusive with regard to 
the statutory criteria, DOE will move forward with the rulemaking to 
issue or amend an energy conservation standard. In those instances 
where the available information either suggested that a new or 
amended energy conservation standard might be justified or in which 
the information was inconclusive on this point, and DOE undertakes a 
rulemaking to establish or amend an energy conservation standard, 
DOE may still ultimately determine that such a standard is not 
economically justified, technologically feasible or would not result 
in a significant savings of energy at a later stage of the 
rulemaking.
    (3) Design options--(i) General. Once the Department has 
initiated a rulemaking for a specific product/equipment but before 
publishing a proposed rule to establish or amend standards, DOE will 
typically identify the product/equipment categories and design 
options to be analyzed in detail, as well as those design options to 
be eliminated from further consideration. During the pre-NOPR stage 
of the rulemaking, interested parties may be consulted to provide 
information on key issues, including potential design options, 
through a variety of rulemaking documents.
    (ii) Identification and screening of design options. During the 
pre-NOPR phase of the rulemaking process, the Department will 
typically develop a list of design options for consideration. 
Initially, the candidate design options will encompass all those 
technologies considered to be technologically feasible. Following 
the development of this initial list of design options, DOE will 
review each design option based on the factors described in 
paragraph (a)(3)(iii) of this section and the policies stated in 
section 7 of this appendix (i.e., Policies on Selection of 
Standards). The reasons for eliminating or retaining any design 
option at this stage of the process will be fully documented and 
published as part of the NOPR and as appropriate for a given rule, 
in the pre-NOPR document(s). The technologically feasible design 
options that are not eliminated in this screening analysis will be 
considered further in the Engineering Analysis described in 
paragraph (a)(4) of this section.
    (iii) Factors for screening of design options. The factors for 
screening design options include:
    (A) Technological feasibility. Technologies incorporated in 
commercial products (or equipment) or in working prototypes will be 
considered technologically feasible.
    (B) Practicability to manufacture, install and service. If mass 
production of a technology under consideration for use in 
commercially-available products (or equipment) and reliable 
installation and servicing of the technology could be achieved on 
the scale necessary to serve the relevant market at the time of the 
effective date of the standard, then that technology will be 
considered practicable to manufacture, install, and service.
    (C) Adverse impacts on product utility or product availability.
    (D) Adverse impacts on health or safety.
    (E) Unique-pathway proprietary technologies. If a design option 
utilizes proprietary technology that represents a unique pathway to 
achieving a given efficiency level, that technology will not be 
considered further.
    (4) Engineering analysis of design options and selection of 
candidate standard levels. After design options are identified and 
screened, DOE will perform the engineering analysis and the benefit/
cost analysis and select the candidate standard levels based on 
these analyses. The results of the analyses will be published in a 
Technical Support Document (TSD) to accompany the appropriate 
rulemaking documents.
    (i) Identification of engineering analytical methods and tools. 
DOE will select the specific engineering analysis tools (or multiple 
tools, if necessary, to address uncertainty) to be used in the 
analysis of the design options identified as a result of the 
screening analysis.
    (ii) Engineering and life-cycle cost analysis of design options. 
DOE and its contractors will perform engineering and life-cycle cost 
analyses of the design options.
    (iii) Review by stakeholders. Interested parties will have the 
opportunity to review the results of the engineering and life-cycle 
cost analyses. If appropriate, a public workshop will be conducted 
to review these results. The analyses will be revised as appropriate 
on the basis of this input.
    (iv) New information relating to the factors used for screening 
design options. If further information or analysis leads to a 
determination that a design option, or a

[[Page 24361]]

combination of design options, has unacceptable impacts, that design 
option or combination of design options will not be included in a 
candidate standard level.
    (v) Selection of candidate standard levels. Based on the results 
of the engineering and life-cycle cost analysis of design options 
and the policies stated in paragraph (a)(3)(iii) of this section, 
DOE will select the candidate standard levels for further analysis.
    (5) Analysis of impacts and selection of proposed standard 
level. If DOE has determined preliminarily that a candidate standard 
level is likely to produce the maximum improvement in energy 
efficiency that is both technologically feasible and economically 
justified and constitutes significant energy savings, economic 
analyses of the impacts of the candidate standard levels will be 
conducted. The Department will propose new or amended standards in a 
subsequent NOPR based on the results of the impact analysis.
    (i) Identification of issues for analysis. The Department, in 
consideration of comments received, will identify issues that will 
be examined in the impacts analysis.
    (ii) Identification of analytical methods and tools. DOE will 
select the specific economic analysis tools (or multiple tools, if 
necessary, to address uncertainty) to be used in the analysis of the 
candidate standard levels.
    (iii) Analysis of impacts. DOE will conduct the analysis of the 
impacts of candidate standard levels.
    (iv) Factors to be considered in selecting a proposed standard. 
The factors to be considered in selection of a proposed standard 
include:
    (A) Impacts on manufacturers. The analysis of manufacturer 
impacts will include: Estimated impacts on cash flow; assessment of 
impacts on manufacturers of specific categories of products/
equipment and small manufacturers; assessment of impacts on 
manufacturers of multiple product-specific Federal regulatory 
requirements, including efficiency standards for other products and 
regulations of other agencies; and impacts on manufacturing 
capacity, employment, and capital investment.
    (B) Private impacts on consumers. The analysis of consumer 
impacts will include: Estimated private energy savings impacts on 
consumers based on regional average energy prices and energy usage; 
assessments of the variability of impacts on subgroups of consumers 
based on major regional differences in usage or energy prices and 
significant variations in installation costs or performance; 
consideration of changes to product utility, changes to purchase 
rate and/or costs of products, and other impacts of likely concern 
to all or some consumers, based to the extent practicable on direct 
input from consumers; estimated life-cycle cost with sensitivity 
analysis; and consideration of the increased first cost to consumers 
and the time required for energy cost savings to pay back these 
first costs.
    (C) Impacts on competition, including industry concentration 
analysis.
    (D) Impacts on utilities. The analysis of utility impacts will 
include estimated marginal impacts on electric and gas utility 
generation and capacity.
    (E) National energy, economic, and employment impacts. The 
analysis of national energy, economic, and employment impacts will 
include: estimated energy savings by fuel type; estimated net 
present value of benefits to all consumers; sensitivity analyses 
using high and low discount rates reflecting both private 
transactions and social discount rates and high and low energy price 
forecasts; and estimates of the direct and indirect impacts on 
employment by appliance manufacturers, relevant service industries, 
energy suppliers, suppliers of complementary and substitution 
products, and the economy in general.
    (F) Impacts on the environment. The analysis of environmental 
impacts will include estimated impacts on emissions of carbon and 
relevant criteria pollutants.
    (G) Impacts of non-regulatory approaches. The analysis of energy 
savings and consumer impacts will incorporate an assessment of the 
impacts of market forces and existing voluntary programs in 
promoting product/equipment efficiency, usage, and related 
characteristics in the absence of updated efficiency standards.
    (H) New information relating to the factors used for screening 
design options.
    (6) Public comment and hearing. The length of the public comment 
period for pre-NOPR rulemaking documents will be determined on a 
case-by-case basis and may vary depending upon the circumstances of 
the particular rulemaking. For pre-NOPR documents, DOE will 
determine whether a public hearing is appropriate.
    (7) Revisions based on comments. Based on consideration of the 
comments received, any necessary changes to the engineering 
analysis, life-cycle cost analysis, or the candidate standard levels 
will be made.
    (b) NOPR stage--(1) Documentation of decisions on proposed 
standard selection. The Department will publish a NOPR in the 
Federal Register that proposes standard levels and explains the 
basis for the selection of those proposed levels, and DOE will post 
on its website a draft TSD documenting the analysis of impacts. The 
draft TSD will also be posted in the appropriate docket at 
www.regulations.gov. As required by 42 U.S.C. 6295(p)(1) of EPCA, 
the NOPR also will describe the maximum improvement in energy 
efficiency or maximum reduction in energy use that is 
technologically feasible and, if the proposed standards would not 
achieve these levels, the reasons for proposing different standards.
    (2) Public comment and hearing. There will be not less than 60 
days for public comment on the NOPR, with at least one public 
hearing or workshop. (42 U.S.C. 6295(p)(2) and 42 U.S.C. 6306)
    (3) Revisions to impact analyses and selection of final 
standard. Based on the public comments received, DOE will review the 
proposed standard and impact analyses, and make modifications as 
necessary. If major changes to the analyses are required at this 
stage, DOE will publish a supplemental notice of proposed rulemaking 
(SNOPR), when required. DOE may also publish a NODA or RFI, where 
appropriate.
    (c) Final rule stage. The Department will publish a final rule 
in the Federal Register that promulgates standard levels, responds 
to public comments received on the NOPR (and SNOPR if applicable), 
and explains how the selection of those standards meets the 
statutory requirement that any new or amended energy conservation 
standard produces the maximum improvement in energy efficiency that 
is both technologically feasible and economically justified and 
constitutes significant energy savings, accompanied by a final TSD.
* * * * *

Test Procedures

    (a) Pre-NOPR stage--(1) General. In determining whether to 
consider establishing or amending any test procedure, DOE will 
publish one or more preliminary documents in the Federal Register 
(e.g., an RFI or NODA) intended to gather information on key issues.
    (2) Satisfaction of statutory criteria. As part of such 
document(s), DOE will solicit submission of comments, data, and 
information on whether DOE should proceed with the rulemaking, 
including whether: a new test procedure would satisfy the relevant 
statutory criteria that test procedures be reasonably designed to 
produce test results which measure energy efficiency, energy use, 
water use (in the case of showerheads, faucets, water closets and 
urinals), or estimated annual operating cost of a covered product 
during a representative average use cycle or period of use, as 
determined by the Secretary, and shall not be unduly burdensome to 
conduct; or an amended test procedure would more fully or accurately 
comply with the aforementioned statutory criteria. Based on the 
information received in response to such request and its own 
analysis, DOE will determine whether to proceed with a rulemaking 
for a new or amended test procedure.
    (3) If DOE determines that a new or amended test procedure would 
not satisfy the applicable statutory criteria, DOE will engage in 
notice-and-comment rulemaking to issue a determination that a new or 
amended test procedure is not warranted.
    (4) If DOE receives sufficient information suggesting a new or 
amended test procedure may satisfy the applicable statutory criteria 
or the information received is inconclusive with regard to the 
statutory criteria, DOE will move forward with the rulemaking to 
issue or amend a test procedure.
    (5) In those instances where the available information either 
suggested that a new or amended test procedure might be warranted or 
in which the information was inconclusive on this point, and DOE 
undertakes a rulemaking to establish or amend a test procedure, DOE 
may still ultimately determine that such a test procedure does not 
satisfy the applicable statutory criteria at a later stage of the 
rulemaking.
    (6) Public comment and hearing. The length of the public comment 
period for pre-NOPR rulemaking documents will be determined on a 
case-by-case basis and may vary depending upon the circumstances of 
the particular rulemaking. For pre-NOPR documents, DOE will 
determine whether a public hearing is appropriate.

[[Page 24362]]

    (b) NOPR stage--(1) Documentation of decisions on proposed test 
procedure. The Department will publish a NOPR in the Federal 
Register that proposes a new or amended test procedure and explains 
how the test procedure satisfies the applicable statutory criteria.
    (2) Public comment and hearing. There will be not less than 60 
days for public comment on the NOPR, with at least one public 
hearing or workshop. (42 U.S.C. 6293(b)(2) and 42 U.S.C. 6306)
    (3) Revisions to the analyses and establishment of a final test 
procedure. Based on the public comments received, DOE will review 
the proposed test procedure, and make modifications as necessary. As 
part of this process, DOE may issue an RFI, NODA, SNOPR, or other 
rulemaking document, as appropriate.
    (c) Final rule stage. The Department will publish a final rule 
in the Federal Register that establishes or amends a test procedure, 
responds to public comments received on the NOPR (and any subsequent 
rulemaking documents), and explains how the new or amended test 
procedure meets the applicable statutory requirements.
    (d) Adoption of industry test methods. DOE will adopt industry 
test procedure standards as DOE test procedures for covered products 
and equipment, but only if DOE determines that such procedures would 
not be unduly burdensome to conduct and would produce test results 
that reflect the energy efficiency, energy use, water use (as 
specified in EPCA) or estimated operating costs of that equipment 
during a representative average use cycle. DOE may also adopt 
industry test procedure standards with modifications or craft its 
own procedures as necessary to ensure compatibility with the 
relevant statutory requirements, as well as DOE's compliance, 
certification, and enforcement requirements.
    (e) Issuing final test procedure--(1) Process. Test procedure 
rulemakings establishing methodologies used to evaluate proposed 
energy conservation standards will be finalized prior to publication 
of a NOPR proposing new or amended energy conservation standards. 
Except as provided in paragraph (e)(2) of this section, new test 
procedures and amended test procedures that impact measured energy 
use or efficiency will be finalized at least 180 days prior to the 
close of the comment period for:
    (i) A NOPR proposing new or amended energy conservation 
standards; or
    (ii) A notice of proposed determination that standards do not 
need to be amended. With regards to amended test procedures, DOE 
will state in the test procedure final rule whether the amendments 
impact measured energy use or efficiency.
    (2) Exceptions. The 180-day period for new test procedures and 
amended test procedures that impact measured energy use or 
efficiency specified in paragraph (e)(1) of this section is not 
applicable to:
    (i) Test procedures developed in accordance with the Negotiated 
Rulemaking Act or by interested persons that are fairly 
representative of relevant points of view (including representatives 
of manufacturers of covered products, States, and efficiency 
advocates), as determined by the Secretary; or
    (ii) Test procedure amendments limited to calculation changes 
(e.g., use factor or adder). Parties submitting a consensus 
recommendation in accordance with paragraph (e)(2)(i) of this 
section may specify a time period between finalization of the test 
procedure and the close of the comment for a NOPR proposing new or 
amended energy conservation standards or a notice of proposed 
determination that standards do not need to be amended.
    (f) Effective date of test procedures. If required only for the 
evaluation and issuance of updated efficiency standards, use of the 
modified test procedures typically will not be required until the 
implementation date of updated standards.

9. ASHRAE Equipment

    EPCA provides unique statutory requirements and a specific set 
of timelines for certain enumerated types of commercial and 
industrial equipment (generally, commercial water heaters, 
commercial packaged boilers, commercial air-conditioning and heating 
equipment, and packaged terminal air conditioners and heat pumps 
(i.e., ``ASHRAE equipment'')).
    (a) ASHRAE trigger rulemakings for energy conservation 
standards. Pursuant to EPCA's statutory scheme for covered ASHRAE 
equipment, DOE is required to consider amending the existing Federal 
energy conservation standards for ASHRAE equipment when ASHRAE 
Standard 90.1 is amended with respect to standards or design 
requirements applicable to such equipment.
    (1) Not later than 180 days after the amendment of ASHRAE 
Standard 90.1, DOE will publish in the Federal Register for public 
comment an analysis of the energy savings potential of amended 
energy efficiency standards for the affected equipment.
    (2) Not later than 18 months after the amendment of ASHRAE 
Standard 90.1, DOE must adopt amended energy conservation standards 
at the new efficiency level in ASHRAE Standard 90.1 as the uniform 
national standard for the affected equipment, unless DOE determines 
by rule, and supported by clear and convincing evidence, that a 
more-stringent standard would result in significant additional 
conservation of energy and is technologically feasible and 
economically justified. In such case, DOE must adopt the more-
stringent standard for the affected equipment not later than 30 
months after amendment of ASHRAE Standard 90.1.
    (3) Regarding amendments to ASHRAE Standard 90.1 involving 
energy conservation standards, DOE considers an amendment of a 
standard level to occur when an updated version of ASHRAE Standard 
90.1 publishes (i.e., not at the time that an addendum to ASHRAE 
Standard 90.1 is released or approved). In addition, DOE considers 
an amendment of standard levels in ASHRAE Standard 90.1 to be only 
those changes resulting in an increase in stringency of standard 
levels relative to the current Federal standards or the adoption of 
a design requirement.
    (b) ASHRAE trigger rulemakings for test procedures. Pursuant to 
EPCA's statutory scheme for covered ASHRAE equipment, DOE is 
required to consider amending the existing Federal test procedures 
for such equipment when ASHRAE Standard 90.1 is amended with respect 
to test procedures applicable to such equipment.
    (1) DOE shall amend the test procedure for ASHRAE equipment, as 
necessary, to be consistent with the amended ASHRAE Standard 90.1, 
unless DOE determines by rule, and supported by clear and convincing 
evidence, that to do so would not meet the requirements in 42 U.S.C. 
6314(a)(2)-(3), which generally provide that the test procedure must 
produce results which reflect energy efficiency, energy use, and 
estimated operating costs during a representative average use cycle 
and not be unduly burdensome to conduct. If DOE makes such a 
determination, DOE may establish an amended test procedure for such 
equipment that meets the requirements in 42 U.S.C. 6314(a)(2)-(3).
    (2) With regard to test procedures for ASHRAE equipment, EPCA 
requires DOE to adopt test procedures consistent with applicable 
industry test standards.
    (c) ASHRAE lookback rulemakings for standards. EPCA also 
requires that DOE periodically consider amending energy conservation 
standards for ASHRAE equipment.
    (1) Every 6 years, DOE shall conduct an evaluation of each class 
of covered equipment. DOE shall publish either a notice of 
determination that standards do not need to be amended (because they 
would not result in significant additional conservation of energy 
and/or would not be technologically feasible and/or economically 
justified) or a notice of proposed rulemaking including new proposed 
standards (based on the criteria and procedures in 42 U.S.C. 
6313(a)(6)(B) and supported by clear and convincing evidence).
    (2) If DOE issues a notice of proposed rulemaking, it shall 
publish a final rule no more than 2 years later.
    (3) If DOE determines that a standard does not need to be 
amended, not later than 3 years after such a determination, DOE must 
publish either a notice of determination that standards do not need 
to be amended (because they would not result in significant 
additional conservation of energy and/or would not be 
technologically feasible and/or economically justified) or a notice 
of proposed rulemaking including new proposed standards (based on 
the criteria and procedures in 42 U.S.C. 6313(a)(6)(B) and supported 
by clear and convincing evidence).
    (d) ASHRAE lookback rulemakings for test procedures. EPCA also 
requires that DOE periodically consider amending test procedures for 
ASHRAE equipment. At least once every 7 years, DOE shall conduct an 
evaluation, and if DOE determines, that amended test procedures 
would more accurately or fully comply with the requirements in 42 
U.S.C. 6314(a)(2)-(3), it shall prescribe test procedures for the 
applicable equipment. Otherwise, DOE shall

[[Page 24363]]

publish a notice of determination not to amend a test procedure.
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[FR Doc. 2024-07114 Filed 4-5-24; 8:45 am]
BILLING CODE 6450-01-P