35668 Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules 

energy conservation standards. DOE 

actively encourages the participation 

and interaction of the public during the 

comment period in each stage of this 

process. Interactions with and between 

members of the public provide a 

balanced discussion of the issues and 

assist DOE in the process. Anyone who 

wishes to be added to the DOE mailing 

list to receive future notices and 

information about this process should 

contact Appliance and Equipment 

Standards Program staff at (202) 287– 

1445 or via email at 

ApplianceStandardsQuestions@

ee.doe.gov. 

Signing Authority 

This document of the Department of 

Energy was signed on June 29, 2021, by 

Kelly Speakes-Backman, Principal 

Deputy Assistant Secretary and Acting 

Assistant Secretary for Energy Efficiency 

and Renewable Energy, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on June 30, 

2021. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

[FR Doc. 2021–14338 Filed 7–6–21; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[EERE–2021–BT–STD–0003] 

RIN 1904–AF13 

Energy Conservation Program for 

Appliance Standards: Procedures, 

Interpretations, and Policies for 

Consideration in New or Revised 

Energy Conservation Standards and 

Test Procedures for Consumer 

Products and Commercial/Industrial 

Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy (EERE), Department 

of Energy. 

ACTION: Notice of proposed rulemaking 

and request for comment. 

SUMMARY: The U.S. Department of 

Energy (‘‘DOE’’ or the ‘‘Department’’) 

proposed major revisions to the 

Department’s ‘‘Procedures, 

Interpretations, and Policies for 

Consideration of New or Revised Energy 

Conservation Standards and Test 

Procedures for Consumer Products and 

Certain Commercial/Industrial 

Equipment’’ (‘‘Process Rule’’) in a notice 

of proposed rulemaking that was 

published on April 12, 2021. DOE 

accepted comments on those proposed 

revisions through May 27, 2021. In this 

document, DOE proposes additional 

revisions to the Process Rule and 

requests comment on the proposals and 

any potential alternatives. These 

additional proposed revisions are 

consistent with current DOE practice 

and would remove unnecessary 

obstacles to DOE’s ability to meet its 

statutory obligations under the Energy 

Policy and Conservation Act (‘‘EPCA’’). 

DATES: Comments: DOE will accept 

comments, data, and information 

regarding all aspects of this notice of 

proposed rulemaking on or before 

August 23, 2021. DOE will hold a 

webinar on Tuesday, August 10, 2021 

from 11:00 a.m. to 4:00 p.m. See section 

V, ‘‘Public Participation,’’ for webinar 

registration information, participant 

instructions, and information about the 

capabilities available to webinar 

participants. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

https://www.regulations.gov/docket/ 

EERE-2021-BT-STD-0003. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments by email to the 

following address: 

processrule2021STD0003@ee.doe.gov. 

Include ‘‘2nd 2021 Process Rule NOPR’’ 

and docket number EERE–2021–BTD– 

STD–0003 and/or RIN number 1904– 

AF13 in the subject line of the message. 

Submit electronic comments in 

WordPerfect, Microsoft Word, PDF, or 

ASCII file format, and avoid the use of 

special characters or any form of 

encryption. 

Although DOE has routinely accepted 

public comment submissions through a 

variety of mechanisms, including postal 

mail and hand delivery/courier, the 

Department has found it necessary to 

make temporary modifications to the 

comment submission process in light of 

the ongoing coronavirus disease 2019 

(‘‘COVID–19’’) pandemic. DOE is 

currently accepting only electronic 

submissions at this time. If a commenter 

finds that this change poses an undue 

hardship, please contact Appliance 

Standards Program staff at (202) 586– 

1445 to discuss the need for alternative 

arrangements. Once the Covid–19 

pandemic health emergency is resolved, 

DOE anticipates resuming all of its 

regular options for public comment 

submission, including postal mail and 

hand delivery/courier. 

No telefacsimiles (faxes) will be 

accepted. For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see section V (Public Participation) of 

this document. 

Docket: The docket for this 

rulemaking, which includes Federal 

Register notices, comments, and other 

supporting documents/materials, is 

available for review at https://

www.regulations.gov. All documents in 

the docket are listed in the https://

www.regulations.gov index. This docket 

also contains all comments and 

rulemaking documents associated with 

the notice of proposed rulemaking that 

was published on April 12, 2021. 

However, not all documents listed in 

the index may be publicly available, 

such as information that is exempt from 

public disclosure. 

The docket web page can be found at: 

https://www.regulations.gov/docket/ 

EERE-2021-BT-STD-0003. The docket 

web page contains instructions on how 

to access all documents, including 

public comments, in the docket. 

FOR FURTHER INFORMATION CONTACT: 

Mr. John Cymbalsky, U.S. Department 

of Energy, Office of Energy Efficiency 

and Renewable Energy, Building 

Technologies Office, EE–5B, 1000 

Independence Avenue SW, Washington, 

DC 20585–0121. Email: 

ApplianceStandardsQuestions@

ee.doe.gov. 

Mr. Pete Cochran, U.S. Department of 

Energy, Office of the General Counsel, 

GC–33, 1000 Independence Avenue SW, 

Washington, DC 20585–0121. 

Telephone: (202) 586–9496. Email: 

Peter.Cochran@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Summary of Proposal 

II. Authority and Background 

A. Authority 

B. Background 

III. Discussion of Proposed Revisions to the 

Process Rule 

A. Coverage Determinations 

B. Process for Developing Energy 

Conservation Standards 

C. Process for Developing Test Procedures 

D. ASHRAE Equipment 

E. Analytical Methodology 

IV. Procedural Issues and Regulatory Review 

A. Review Under Executive Orders 12866 

and 13563 


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1 Id. 61 FR 36979. 

2Natural Resources Defense Council v. DOE, Case 

No. 20–cv–9127 (S.D.N.Y. 2020). 

3State of New York v. DOE, Case No. 20–cv–9362 

(S.D.N.Y. 2020). 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act of 1995 

D. Review Under the National 

Environmental Policy Act of 1969 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 12630 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Review Consistent With OMB’s 

Information Quality Bulletin for Peer 

Review 

V. Public Participation 

A. Participation in the Webinar 

B. Procedure for Submitting Prepared 

General Statements for Distribution 

C. Conduct of the Webinar 

D. Submission of Comments 

VI. Approval of the Office of the Secretary 

I. Summary of Proposal 

On February 14, 2020, the United 

States Department of Energy (‘‘DOE’’ or 

‘‘the Department’’) published a final 

rule (‘‘February 2020 Final Rule’’) in the 

Federal Register that made significant 

revisions to its ‘‘Procedures, 

Interpretations, and Policies for 

Consideration of New or Revised Energy 

Conservation Standards and Test 

Procedures for Consumer Products and 

Certain Commercial/Industrial 

Equipment’’ (‘‘Process Rule’’) found in 

10 CFR part 430, subpart C, appendix A. 

85 FR 8626. DOE also published a 

companion final rule on August 19, 

2020 (‘‘August 2020 Final Rule’’), that 

clarified how DOE would conduct a 

comparative analysis across all trial 

standard levels when determining 

whether a particular trial standard level 

was economically justified. See 85 FR 

50937. These rules collectively modified 

the Process Rule that DOE had 

originally issued on July 15, 1996 

(‘‘1996 Process Rule’’) into its current 

form. See 61 FR 36974 and 10 CFR part 

430, subpart C, appendix A (2021). 

While the 1996 Process Rule 

acknowledged that it would not be 

applicable to every rulemaking and that 

the circumstances of a particular 

rulemaking should dictate application 

of these generally applicable practices,1

the revisions made in the February 2020 

Final Rule sought to create a 

standardized rulemaking process that 

was binding on the Department. 85 FR 

8626, 8634. In creating this one-size-fitsall 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-sizefits-all rulemaking approach to 

establishing and amending energy 

conservations standards and test 

procedures. Two of these events are 

particularly salient. First, on October 30, 

2020, a coalition of non-governmental 

organizations filed suit under EPCA 

alleging that DOE has failed to meet 

rulemaking deadlines for 25 different 

consumer products and commercial 

equipment.2 On November 9, 2020, a 

coalition of States filed a virtually 

identical lawsuit.3 In response to these 

lawsuits, DOE has had to reconsider 

whether the benefits of a one-size-fits-all 

rulemaking approach outweigh the 

increased difficulty such an approach 

poses in meeting DOE’s statutory 

deadlines and obligations under EPCA. 

As mentioned previously, the 1996 

Process Rule allowed for ‘‘case-specific 

deviations and modifications of the 

generally applicable rule.’’ 61 FR 36974, 

36979. This allowed DOE to tailor 

rulemaking procedures to fit the specific 

circumstances of a particular 

rulemaking. For example, under the 

1996 Process Rule, minor modifications 

to a test procedure would not 

automatically result in a 180-day delay 

before DOE could issue a notice of 

proposed energy conservation 

standards. Eliminating these 

unnecessary delays would better enable 

DOE to meet its obligations and 

deadlines under EPCA. Further, the 

sooner new or amended energy 

conservation standards eliminate lessefficient covered products and 

equipment from the market, the greater 

the resulting energy savings and 

environmental benefits. 

Second, on January 20, 2021, the 

White House issued Executive Order 

(‘‘E.O.’’) 13990, ‘‘Protecting Public 

Health and the Environment and 

Restoring Science to Tackle the Climate 

Crisis.’’ 86 FR 7037 (Jan. 25, 2021). 

Section 1 of that Order lists a number 

of policies related to the protection of 

public health and the environment, 

including reducing greenhouse gas 

emissions and bolstering the Nation’s 

resilience to the impacts of climate 

change. 86 FR 7037, 7041. Section 2 of 

the Order instructs all agencies to 

review ‘‘existing regulations, orders, 

guidance documents, policies, and any 

other similar agency actions (agency 

actions) promulgated, issued, or 

adopted between January 20, 2017, and 

January 20, 2021, that are or may be 

inconsistent with, or present obstacles 

to, [these policies].’’ 86 FR 7037, 7041. 

Agencies are directed, as appropriate 

and consistent with applicable law, to 

consider suspending, revising, or 

rescinding these agency actions and to 

immediately commence work to 

confront the climate crisis. 86 FR 7037, 

7041. For certain explicitly enumerated 

agency actions, including the February 

2020 and the August 2020 Final Rules, 

the Order directs agencies to consider 

publishing for notice and comment a 

proposed rule suspending, revising, or 

rescinding the agency action within a 

specific time frame. 86 FR 7037, 7037– 

7038. Under this mandate, DOE is 

directed to propose any major revisions 

to these two rules by March 2021, with 

any remaining revisions to be proposed 

by June 2021. 86 FR 7037, 7038. 

In light of these events, DOE has 

identified several aspects of the 

February 2020 and the August 2020 

Final Rules (together, representing the 

current Process Rule) that present 

obstacles to DOE’s ability to meet its 

obligations under EPCA. In accordance 

with E.O. 13990, DOE proposed major 

revisions to the current Process Rule in 

a notice of proposed rulemaking (NOPR) 

that was published on April 12, 2021 

(‘‘April 2021 NOPR’’). 86 FR 18901. The 

comment period on the April 2021 

NOPR ended on May 27, 2021. 

In this document, DOE proposes 

additional revisions that would: Further 

revise the process for coverage 

determination rulemakings; provide 

additional flexibility for DOE during the 

pre-NOPR stages of energy conservation 

standard and test procedure 

rulemakings, while preserving 

opportunities for stakeholders to 

provide early input in the rulemaking 

process; provide clarification on EPCA’s 

rulemaking process for ASHRAE 

equipment; and revise the sections on 

DOE’s analytical methods to reflect 

current rulemaking practices. These 

revisions are summarized in the 

following table. Note that for ease of use 

and clarity, the proposed regulatory text 

in this document contains both the 

proposed regulatory text in the April 

2021 NOPR and the new text being 

proposed in this document. DOE is 

currently only soliciting comments on 

the new, additional regulatory text 

proposed in this NOPR. 


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LIST OF PROPOSED REVISIONS TO THE PROCESS RULE 4

Section Proposed revisions from the April 2021 NOPR Proposed additional revisions in this 

document 

1. Objectives ....................................................... Revise language to be consistent with the 

newly proposed Section 3.

No revisions proposed. 

2. Scope ............................................................. No revisions proposed ..................................... No revisions proposed. 

3. Mandatory Application of the Process Rule ... Replace with new Section 3, ‘‘Application of 

the Process Rule’’.

No revisions proposed. 

4. Setting Priorities for Rulemaking Activity ....... No revisions proposed ..................................... No revisions proposed. 

5. Coverage Determination Rulemakings .......... Eliminate the 180-day period in paragraph (c) 

between finalization of DOE test procedures 

and issuance of a NOPR proposing new or 

amended energy conservation standards.

Proposed introductory text and revised paragraph (a) would eliminate the requirement 

that a coverage determination rulemaking 

begins with a notice of proposed determination and allow DOE to seek early stakeholder input through preliminary rulemaking 

documents; revised paragraphs (b) and (c) 

would eliminate the requirement that final 

coverage determinations be published prior 

to the initiation of any test procedure or energy conservation standard rulemaking and 

at least 180 days prior to publication of a 

test procedure NOPR; revised paragraph 

(d) would allow DOE to propose, if necessary, an amended coverage determination before proceeding with a test procedure or standards rulemaking. 

6. Process for Developing Energy Conservation 

Standards.

Eliminate paragraph (b), ‘‘Significant Savings 

of Energy’’.

Revised paragraph (a) would eliminate the requirement for a separate early assessment 

request for information (‘‘RFI’’) and clarify 

that DOE will issue one or more documents 

during the pre-NOPR stage of a rulemaking; revised paragraphs (a) and (b) 

would clarify public comment periods for 

pre-NOPR and NOPR documents; revised 

paragraph (a)(5) would reflect current DOE 

rulemaking practice. 

7. Policies on Selection of Standards ................ Eliminate text in paragraph (e)(2)(i) requiring 

DOE to conduct a comparative analysis 

when determining whether a proposed 

standard level is economically justified.

No revisions proposed. 

8. Test Procedures ............................................. Clarify in paragraph (c) that DOE may revise 

consensus industry test procedure standards for compliance, certification, and enforcement purposes; eliminate the 180-day 

period in paragraph (d) between finalization 

of DOE test procedures and issuance of a 

NOPR proposing new or amended energy 

conservation standards.

Revised paragraph (a) would eliminate the requirement for a separate early assessment 

request for information (‘‘RFI’’) and clarify 

that DOE will issue one or more documents 

during the pre-NOPR stage of a rulemaking; revised paragraphs (a) and (b) 

would clarify public comment periods for 

pre-NOPR and NOPR documents and 

eliminate the requirement that DOE identify 

necessary modifications to a test procedure 

prior to initiating an associated energy conservation standard rulemaking. 

9. ASHRAE Equipment ...................................... No revisions proposed ..................................... Revise section to follow ASHRAE rulemaking 

requirements in EPCA. 

10. Direct Final Rules ......................................... Revise section to clarify that DOE will implement its direct final rule authority on a caseby-case basis.No revisions proposed. 

11. Negotiated Rulemaking Process .................. Eliminate section .............................................. No revisions proposed. 

12. Principles for Distinguishing Between Effective and Compliance Dates.No revisions proposed ..................................... No revisions proposed. 

13. Principles for the Conduct of the Engineering Analysis.No revisions proposed ..................................... Revise to reflect current DOE rulemaking 

practice. 

14. Principles for the Analysis of Impacts on 

Manufacturers.

Eliminate incorrect cross reference ................. Revise to reflect current DOE rulemaking 

practice. 

15. Principles for the Analysis of Impacts on 

Consumers.

No revisions proposed ..................................... Revise to reflect current DOE rulemaking 

practice. 

16. Consideration of Non-Regulatory Approaches.No revisions proposed ..................................... Revise to reflect current DOE rulemaking 

practice. 

17. Cross-Cutting Analytical Assumptions ......... No revisions proposed ..................................... Revise to reflect current DOE rulemaking 

practice; move discussion of emissions 

analysis into new section. 

* As part of the proposed revisions, DOE will reorganize and renumber sections and subsections as required. 


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4These proposed revisions are separate from and 

complementary to the revisions contained in DOE’s 

proposed regulatory text from its April 2021 NOPR. 

See 86 FR 18901, 18915–18921 (April 12, 2021). 

5For editorial reasons, upon codification in the 

U.S. Code, Part B was redesignated Part A. 

6Part C was added by Public Law 95–619, Title 

IV, § 441(a). For editorial reasons, upon codification 

in the U.S. Code, Part C was redesignated Part A– 

1. 

7All references to EPCA in this document refer 

to the statute as amended through Energy Act of 

2020, Public Law 116–260 (Dec. 27, 2020). 

8Under 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. 

II. Authority and Background 

A. Authority 

Title III, Parts B5 and C6 of the Energy 

Policy and Conservation Act, as 

amended, (‘‘EPCA’’ or ‘‘the Act’’), Public 

Law 94–163 (42 U.S.C. 6291–6317, as 

codified), established the Energy 

Conservation Program for Consumer 

Products and Certain Industrial 

Equipment.7 Under EPCA, DOE’s energy 

conservation program for covered 

products consists essentially of four 

parts: (1) Testing; (2) certification and 

enforcement procedures; (3) 

establishment of Federal energy 

conservation standards; and (4) labeling. 

Subject to certain criteria and 

conditions, DOE is required to develop 

test procedures to measure the energy 

efficiency, energy use, water use (as 

applicable), or estimated annual 

operating cost of each covered product 

and covered equipment during a 

representative average use cycle or 

period of use. (42 U.S.C. 6293; 42 U.S.C. 

6314) Manufacturers of covered 

products and covered equipment must 

use the prescribed DOE test procedure 

when certifying to DOE that their 

products and equipment comply with 

the applicable energy conservation 

standards adopted under EPCA and 

when making any other representations 

to the public regarding the energy use or 

efficiency of those products. (42 U.S.C. 

6293(c); 42 U.S.C. 6295(s); 42 U.S.C. 

6314(a); and 42 U.S.C. 6316(a)) 

Similarly, DOE must use these test 

procedures to determine whether the 

products comply with energy 

conservation standards adopted 

pursuant to EPCA. (42 U.S.C. 6295(s); 42 

U.S.C. 6316(a)) 

In addition, pursuant to EPCA, any 

new or amended energy conservation 

standard for covered products (and at 

least certain types of equipment) must 

be designed to achieve the maximum 

improvement in energy efficiency that is 

technologically feasible and 

economically justified. (42 U.S.C. 

6295(o)(2)(A); 42 U.S.C. 6316(a)) In 

determining whether a standard is 

economically justified, EPCA requires 

DOE, to the greatest extent practicable, 

to consider the following seven factors: 

(1) The economic impact of the standard 

on the manufacturers and consumers; 

(2) the savings in operating costs, 

throughout the estimated average life of 

the products (i.e., life-cycle costs), 

compared with any increase in the price 

of, or in the initial charges for, or 

operating and maintaining expenses of, 

the products which are likely to result 

from the imposition of the standard; (3) 

the total projected amount of energy, or 

as applicable, water, savings likely to 

result directly from the imposition of 

the standard; (4) any lessening of the 

utility or the performance of the 

products likely to result from the 

imposition of the standard; (5) the 

impact of any lessening of competition, 

as determined in writing by the 

Attorney General, that is likely to result 

from the imposition of the standard; (6) 

the need for national energy and water 

conservation; and (7) other factors DOE 

finds relevant. (42 U.S.C. 

6295(o)(2)(B)(i)) Furthermore, the new 

or amended standard must result in a 

significant conservation of energy (42 

U.S.C. 6295(o)(3)(B); 42 U.S.C. 

6313(a)(6); and 42 U.S.C. 6316(a)) and 

comply with any other applicable 

statutory provisions. 

B. Background 

DOE conducted an effort between 

1995 and 1996 to improve the process 

it follows to develop energy 

conservation standards for covered 

appliance products. This effort involved 

reaching out to many different 

stakeholders, including manufacturers, 

energy-efficiency advocates, trade 

associations, State agencies, utilities, 

and other interested parties for input. 

The result was the publication of the 

1996 Process Rule. 61 FR 36974. This 

document was codified at 10 CFR part 

430, subpart C, appendix A, and it 

became known colloquially as the 

‘‘Process Rule.’’ The goal of the Process 

Rule was to elaborate on the procedures, 

interpretations, and policies that would 

guide the Department in establishing 

new or revised energy conservation 

standards for consumer products. The 

rule was issued without notice and 

comment under the Administrative 

Procedure Act’s (‘‘APA’’) exception for 

‘‘interpretative rules, general statements 

of policy, or rules of agency 

organization, procedure, or practice.’’ 

(5 U.S.C. 553(b)(A)) 

On December 18, 2017, DOE issued an 

RFI on potential revisions to the Process 

Rule. 82 FR 59992. DOE subsequently 

published a NOPR regarding the Process 

Rule in the Federal Register on 

February 13, 2019. 84 FR 3910. DOE 

held public meetings for both the RFI 

and NOPR. After considering the 

comments it received, DOE then 

published a final rule in the Federal 

Register on February 14, 2020, which 

significantly revised the Process Rule. 

85 FR 8626. 

While DOE issued the 1996 Process 

Rule without notice and comment as an 

interpretative rule, general statement of 

policy, or rule of agency organization, 

procedure, or practice, the February 

2020 Final Rule was issued as a 

legislative rule subject to notice and 

comment. For several reasons, as stated 

throughout this document and in the 

April 2021 NOPR, DOE believes the 

Process Rule is best described and 

utilized as generally applicable 

guidance that may guide, but not bind, 

the Department’s rulemaking process. In 

accordance with E.O. 13990, DOE is 

using a notice and comment process to 

propose revisions to the Process Rule. 

86 FR 7037. 

III. Discussion of Proposed Revisions to 

the Process Rule 

The following sections discuss the 

additional, proposed revisions to the 

Process Rule and request comment on 

those proposals. DOE is currently only 

soliciting comments on the new, 

additional revisions proposed in this 

NOPR and is not soliciting comments on 

the revisions proposed in the April 2021 

NOPR. In addition to those specific 

requests for comment, DOE requests 

comment, data, and information 

regarding all aspects of this notice of 

proposed rulemaking. 

A. Coverage Determinations 

In addition to specifying a list of 

covered products and equipment, EPCA 

contains provisions that enable the 

Secretary of Energy to classify 

additional types of consumer products 

and commercial/industrial equipment 

as ‘‘covered’’ within the meaning of 

EPCA. (42 U.S.C. 6292(b); 42 U.S.C. 

6312(b)) This authority allows DOE to 

consider regulating additional products 

and equipment to further the goals of 

EPCA, i.e., to conserve energy, as long 

as certain statutory requirements are 

met. Under 42 U.S.C. 6312(b), DOE is 

required to include commercial/ 

industrial equipment as covered 

equipment ‘‘by rule.’’ While there is no 

corresponding requirement to include 

consumer products as covered products 

by rule,8 DOE conducts coverage 

determination rulemakings for both 


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commercial/industrial equipment and 

consumer products. 

In the February 2020 Final Rule, DOE 

added a section on coverage 

determination rulemakings. Among 

other things, the new section provided 

that DOE will: (1) Initiate a coverage 

determination rulemaking with a notice 

of proposed determination; (2) publish 

final coverage determinations as 

separate notices prior to the initiation of 

any test procedure or energy 

conservation standard rulemaking and 

at least 180 days prior to publication of 

a test procedure NOPR; and (3) finalize 

any changes to an existing scope of 

coverage before proceeding with a test 

procedure or energy conservation 

standard rulemaking. 85 FR 8626, 8648– 

8653. 

As discussed previously, DOE is 

reconsidering whether the benefits of a 

one-size-fits-all rulemaking approach 

that lacks flexibility and includes extra 

procedural steps not required by EPCA 

outweigh the increased difficulty such 

an approach poses in meeting DOE’s 

statutory deadlines and obligations 

under EPCA. (DOE is including a chart 

to depict its proposed revised process 

for energy conservation standards and 

test procedure rulemakings, as 

discussed in this document, in Docket 

No. EERE–2021–BT–STD–0003. 

Available at: https://

www.regulations.gov/docket/EERE2021-BT-STD-0003.) First, with respect 

to the requirement that DOE initiate a 

coverage determination rulemaking with 

a notice of proposed determination, 

DOE notes that in some cases it may be 

necessary to gather information about a 

consumer product or commercial/ 

industrial equipment before issuing a 

proposed determination of coverage. For 

instance, DOE may only classify a 

consumer product as a covered product 

if it is necessary or appropriate to carry 

out the purposes of EPCA and the 

average annual per-household energy 

use of the consumer product is likely to 

exceed 100 kilowatt-hours per year. (42 

U.S.C. 6292(b)) As such, it may be 

beneficial to first issue an RFI or other 

document to solicit comment on 

whether a consumer product is likely to 

meet these requirements. Based on the 

information received, DOE may choose 

not to proceed with a notice of proposed 

determination. Accordingly, DOE 

proposes that it may issue an RFI or 

other pre-rule document prior to a 

notice of proposed coverage 

determination. DOE requests comments, 

information, and data on whether its 

proposed approach is appropriate or on 

any suggested alternatives. 

Second, regarding the requirements to 

finalize coverage determinations prior to 

the initiation of any test procedure or 

energy conservation standard 

rulemaking and at least 180 days prior 

to publication of a test procedure NOPR, 

DOE notes that coverage determination, 

test procedure, and energy conservation 

standard rulemakings are 

interdependent. A coverage 

determination defines the product/ 

equipment scope for which DOE can 

establish test procedures and energy 

conservation standards. It also signals 

that inclusion of the consumer product 

or commercial/industrial equipment is 

necessary to carry out the purposes of 

EPCA, i.e., to conserve energy and/or 

water. In order to make this 

determination, DOE needs to consider 

whether a test procedure and energy 

conservation standards can be 

established for the consumer product or 

commercial/industrial equipment. If 

DOE cannot develop a test procedure 

that measures energy use during a 

representative average use cycle and is 

not unduly burdensome to conduct (42 

U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2)) 

or prescribe energy conservation 

standards that result in significant 

energy savings (42 U.S.C. 6295(o); 42 

U.S.C. 6316(a)), then making a coverage 

determination is not necessary as it will 

not result in the conservation of energy. 

Thus, it is important that DOE be able 

to initiate test procedure and energy 

conservation standard rulemakings 

while the Department conducts a 

coverage determination rulemaking. 

Accordingly, DOE proposes to eliminate 

the requirement that coverage 

determination rulemakings must be 

finalized prior to initiation of a test 

procedure or energy conservation 

standard rulemaking. DOE requests 

comments, information, and data on 

whether its proposed approach is 

appropriate or on any suggested 

alternatives. 

As for the requirement that a coverage 

determination be finalized 180 days 

prior to publication of a test procedure 

NOPR, DOE notes that there are 

significant differences between the 

benefits of finalizing a coverage 

determination prior to publishing a test 

procedure NOPR and the benefits of 

finalizing a test procedure prior to 

publishing an energy conservation 

standards NOPR. As discussed in the 

April 2021 NOPR, a delay between 

publication of a test procedure final rule 

and an energy conservation standards 

NOPR may be beneficial in some cases 

as it could allow stakeholders to gain 

greater familiarity with complex test 

procedure amendments before 

providing comment on a proposal to 

amend standards. 86 FR 18901, 18908. 

But DOE does not see a corresponding 

potential benefit for delaying 

publication of a test procedure NOPR 

after a coverage determination, which 

establishes the scope of coverage, i.e., a 

definition, for the newly covered 

product or equipment, is finalized. 

Accordingly, DOE proposes to eliminate 

the requirement that coverage 

determination rulemakings must be 

finalized 180 days prior to publication 

of a test procedure NOPR. DOE requests 

comments, information, and data on 

whether its proposed approach is 

appropriate or on any suggested 

alternatives. DOE notes that it will 

continue to follow the requirements at 

42 U.S.C. 6312(b) for coverage 

determinations for commercial/ 

industrial equipment and at 42 U.S.C. 

6292(b) for consumer products. 

B. Process for Developing Energy 

Conservation Standards 

As part of the February 2020 Final 

Rule, DOE made a number of changes to 

section 6, Process for Developing Energy 

Conservation Standards, of the Process 

Rule, at least one of which has been 

revisited in the April 2021 NOPR. Most 

significantly, the February 2020 Final 

Rule amended the Process Rule to 

include a two-part test for determining 

whether EPCA’s significant energy 

savings threshold has been met (see 

section 6(b) of the 2020 Process Rule 

amendments). 85 FR 8626, 8655–8676, 

8705. However, for the reasons 

explained in the April 2021 NOPR, DOE 

has proposed to revise the Process Rule 

to eliminate the significant energy 

savings threshold test and to return to 

assessment of energy savings on a caseby-case basis. 86 FR 18901, 18905. 

Although the aforementioned 

provision represents the primary change 

to the Process Rule regarding the 

development of energy conservation 

standards, DOE also adopted a number 

of other standards-related provisions in 

the February 2020 Final Rule, which are 

outlined in the paragraphs that follow. 

The Department has decided to revisit 

these provisions in this document and 

proposes further changes, as explained 

subsequently. 

First, in section 6(a) of the Process 

Rule, the February 2020 Final Rule 

included an early assessment process 

for energy conservation standards. More 

specifically, in section 6(a)(1) of the 

Process Rule, DOE committed to 

publishing a notice in the Federal 

Register when it is considering 

initiation of a rulemaking to establish or 

amend any energy conservation 

standard, in which the agency will 

request submission of comments, data, 

and information on whether DOE 


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9See, for example, Executive Order 

12866(6)(a)(1): ‘‘Each agency shall (consistent with 

its own rules, regulations, or procedures) provide 

the public with meaningful participation in the 

regulatory process. In particular, before issuing a 

notice of proposed rulemaking, each agency should, 

where appropriate, seek the involvement of those 

who are intended to benefit from and those 

expected to be burdened by any regulation 

(including, specifically, State, local, and tribal 

officials). In addition, each agency should afford the 

public a meaningful opportunity to comment on 

any proposed regulation, which in most cases 

should include a comment period of not less than 

60 days.’’ 

should proceed with such rulemaking, 

including whether any new or amended 

rule would be: (1) Cost-effective; (2) 

economically justified; (3) 

technologically feasible, or (4) would 

result in a significant savings of energy. 

Based upon available information, if 

DOE determines that a new or amended 

standard would not satisfy the 

applicable statutory criteria, it will 

publish a notice of proposed 

determination to that effect in the 

Federal Register for notice and 

comment. Otherwise, section 6(a)(2) of 

the Process Rule provides that DOE 

would undertake the preliminary stages 

of a rulemaking to issue or amend the 

energy conservation standard, 

proceeding with either a framework 

document/preliminary analysis or an 

advance notice of proposed rulemaking 

(‘‘ANOPR’’). The Process Rule further 

provides that RFIs and notices of data 

availability (‘‘NODA’’) could be issued, 

as appropriate, in addition to these 

preliminary-stage documents. Finally, 

in section 6(a)(3) of the Process Rule, 

DOE clarifies that initiation of a 

standards rulemaking does not 

guarantee that standards will be issued, 

because it could later be discovered that 

the applicable statutory criteria 

ultimately could not be satisfied. 85 FR 

8626, 8704–8705. 

Upon further consideration, DOE is 

proposing to modify these provisions to 

allow for a more expedited rulemaking 

process in appropriate cases, 

particularly in light of the significant 

number of legal deadlines confronting 

the Appliance Standards Program and 

the anticipated benefits to the Nation of 

the associated energy conservation 

standards. Because interested parties are 

free to raise the matter of the likelihood 

of satisfying or not satisfying the 

applicable statutory criteria needed for 

adoption of a new or amended energy 

conservation standard at any stage of the 

rulemaking, DOE has tentatively 

concluded that a separate rulemaking 

document limited to only that topic (i.e., 

the early assessment RFI) may 

unnecessarily delay the overall process 

without appreciable benefit if used in 

all cases. Consequently, DOE proposes 

to remove the requirement for a separate 

early assessment RFI for energy 

conservation standards. Instead, DOE 

would welcome the same type of 

information in the context of an RFI, 

preliminary analysis, ANOPR, or some 

other pre-NOPR document, while at the 

same time asking other relevant 

questions and gathering information in 

the event that the Department decides to 

proceed with an energy conservation 

standards rulemaking. DOE requests 

comments, information, and data on 

whether its proposed approach is 

appropriate or on any other suggested 

alternatives. 

Second, in section 6(e)(1) of the 

Process Rule, the February 2020 Final 

Rule clarified that if DOE determines it 

appropriate to move forward with an 

energy conservation standards 

rulemaking after conducting an early 

assessment, then the Department will 

publish in the Federal Register either a 

framework document with a subsequent 

preliminary analysis or an ANOPR. That 

same subsection provides that if DOE 

finds, based upon the early assessment, 

that one or more of the required 

statutory criteria for setting an energy 

conservation standard cannot be met, 

then the Department will publish a 

proposed determination to that effect in 

the Federal Register for notice and 

comment (which may lead to a final 

determination, as appropriate). Section 

6(e)(2) of the Process Rule provides that 

the length of the public comment period 

for pre-NOPR rulemaking documents 

will vary depending upon the 

circumstances of the particular 

rulemaking, but will not be less than 75 

calendar days, and it further provides 

that DOE will determine whether a 

public hearing is appropriate for such 

documents. 85 FR 8626, 8705. 

After further consideration, DOE 

proposes to modify and clarify these 

provisions as follows. As noted 

previously, DOE is proposing to 

eliminate the requirement for an energy 

conservation standard early assessment 

RFI, while maintaining the opportunity 

for early public input through other 

rulemaking documents as to whether 

new or amended energy conservation 

standards are warranted under the 

applicable statutory criteria. The 

Department has tentatively concluded 

that one round of pre-NOPR input may 

be sufficient in some cases. For 

instance, DOE is required to revisit final 

determinations that energy conservation 

standards do not need to be amended 

within three years. (42 U.S.C. 

6295(m)(3)(B)) In such cases, DOE may 

only need to issue an RFI or NODA to 

update its rulemaking analysis in 

preparation for proposing amended 

standards or a determination that 

standards do not need to be amended. 

Another example for which a single 

round of pre-NOPR input may be 

sufficient would be if a product has 

been subject to multiple rounds of 

rulemaking, relies on mature 

technologies, and for which the market 

is well understood. As such, DOE 

proposes to publish one or more 

documents in the Federal Register 

during the pre-NOPR stage of a 

rulemaking to gather information on key 

issues. Such document(s) could take 

several forms depending upon the 

specific proceeding, including a 

framework document, RFI, NODA, 

preliminary analysis, or ANOPR. 

Additionally, DOE proposes to 

remove the 75-day comment period 

requirement for pre-NOPR energy 

conservation standards documents, as it 

is not compelled by EPCA or other 

applicable law. Instead, for these preNOPR documents for which there is no 

statutorily required comment period, 

DOE would provide an appropriate 

comment period,9 determined on a caseby-case basis, which is commensurate 

with the nature and complexity of the 

energy conservation standard at issue, 

and will consider requests from the 

public for extension of the comment 

period to allow additional opportunities 

for public input. Particularly given the 

many legal deadlines the Department 

faces for various appliance rulemakings, 

DOE reasons that these proposed 

changes would promote efficiency by 

eliminating redundant requests for the 

same information and otherwise 

streamlining the rulemaking process. It 

is DOE’s belief that these changes would 

improve the efficiency of the Appliance 

Standards Program without sacrificing 

the quality of DOE’s analyses or the 

opportunity for public input. Thus, for 

the reasons stated, DOE proposes to 

revise section 6(e) of the Process Rule to 

reflect these changes. DOE requests 

comments, information, and data on 

whether its proposed approach is 

appropriate or on any other suggested 

alternatives. DOE also seeks comment 

on whether these changes would affect 

the quality of DOE’s analyses or 

opportunities for public comment. 

In section 6(g)(2) of the Process Rule, 

the February 2020 Final Rule stated that 

there would be a public comment 

period of at least 75 days for an energy 

conservation standards NOPR, with at 

least one public hearing or workshop. 

85 FR 8626, 8706. 

After further consideration, DOE 

proposes to modify the provision at 

section 6(g)(2) as follows. DOE proposes 

to remove the 75-day comment period 


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requirement for energy conservation 

standards NOPRs, replacing it with a 60- 

day comment period as required by 

EPCA. (42 U.S.C. 6295(p)(2); 42 U.S.C. 

6316(a)) Although the Department 

believes that 60 days offers an adequate 

amount of time for comment in most 

cases, DOE may extend the comment 

period, as appropriate and on a case-bycase basis, commensurate with the 

nature and complexity of the energy 

conservation standard at issue. While 

the 2020 Process Rule has not been in 

effect for long enough to cause these 

missed deadlines, for the reasons 

discussed throughout, DOE has 

tentatively concluded that this proposed 

change would promote the efficiency of 

the Appliance Standards Program by 

streamlining the rulemaking process. 

DOE requests comments, information, 

and data on whether its proposed 

approach is appropriate or on any other 

suggested alternatives. 

Finally, section 6(f)(4) of the current 

Process Rule discusses factors to be 

considered in selecting a proposed 

standard. These provisions were not 

modified in the February 2020 Final 

Rule. DOE proposes to make minor 

updates to these provisions (now in 

proposed section 6(a)(5)(iv)) to reflect 

current Departmental practice, which 

has evolved in the decades since 

development of the 1996 Process Rule. 

The descriptions of the analyses 

currently in sections 13–17 present the 

procedures, interpretations, and policies 

as set forth in the 1996 Process Rule. In 

the years following that final rule, 

DOE’s analyses have evolved and been 

refined. DOE also notes that 

stakeholders are afforded the 

opportunity to comment on the specific 

application of these analyses as part of 

the individual product and equipment 

rulemakings. The revisions proposed in 

the following sections reflect the current 

state of DOE’s analytical methodologies. 

Specifically, DOE proposes and seeks 

public comment on the following 

proposed revisions: 

• Impacts on manufacturers: Remove 

specification of ‘‘private’’ in relation to 

manufacturer impacts, change 

assessment of impacts on plant closures 

to impacts on employment, and clarify 

that changes to capital investment may 

not be negative. 

• Private impacts on consumers: 

Clarify that DOE typically uses regional 

energy prices rather than national prices 

and remove reference of sensitivity 

analyses from this section as they 

correctly apply to the national impacts 

section. 

• Impacts on utilities: Revise to 

specify that this analysis considers 

utility generation and capacity rather 

than costs and revenues. 

• Impacts on the environment: 

Remove reference to impacts on 

pollution control costs, which DOE does 

not consider. 

Additional detail regarding these 

proposed changes is provided in section 

III.E of this NOPR. 

C. Process for Developing Test 

Procedures 

As part of the February 2020 Final 

Rule, DOE made a number of changes to 

section 8, Test Procedures, of the 

Process Rule, some of which have been 

revisited in the April 2021 NOPR. First, 

the February 2020 Final Rule amended 

the Process Rule’s title to reflect DOE’s 

long practice of including test procedure 

rulemakings (as well as certain 

commercial/industrial equipment) 

within its scope, as the 1996 Process 

Rule only explicitly referred to energy 

conservation standards rulemakings for 

consumer products. 85 FR 8626, 8703. 

Although DOE has proposed in its April 

2021 NOPR to once again make the 

Process Rule nonbinding guidance for 

the reasons explained in that document, 

DOE has maintained the applicability of 

the Process Rule to covered consumer 

products and certain commercial/ 

industrial equipment, as well as to 

energy conservation standards and test 

procedures. 86 FR 18901, 18904–18905, 

18915. The February 2020 Final Rule 

also required DOE to finalize a test 

procedure 180 days prior to publication 

of a NOPR to prescribe new or amended 

energy conservation standards, and it 

set a presumption that the Department 

would adopt applicable industry 

consensus test procedures without 

modification, unless such industry test 

procedures do not meet the 

requirements of EPCA. 85 FR 8626, 

8676–8682, 8707–8708. However, in the 

April 2021 NOPR, DOE proposed to 

revise the Process Rule to eliminate the 

mandatory 180-day spacing 

requirement, and the Department also 

proposed to clarify that DOE will only 

adopt industry consensus test 

procedures if they meet the 

requirements of EPCA and that DOE 

may also adopt industry test procedure 

standards with modifications, or draft 

its own procedures as necessary to 

ensure compatibility with the relevant 

statutory requirements, as well as DOE’s 

compliance, certification, and 

enforcement requirements. 86 FR 18901, 

18906–18908, 18918–18919. 

Although the aforementioned 

provisions represent the primary 

changes to the Process Rule test 

procedure provisions, DOE also adopted 

a small number of other test procedurerelated provisions in the February 2020 

Final Rule, which are outlined in the 

paragraphs that follow. The Department 

has decided to revisit these provisions 

in this document and proposes further 

changes, as explained subsequently. 

First, in section 8(a) of the Process 

Rule, the February 2020 Final Rule 

included an early assessment process 

for test procedures similar to that 

adopted for energy conservation 

standards. Consequently, DOE 

committed to publishing a notice in the 

Federal Register when it is considering 

initiation of a rulemaking to amend a 

test procedure, in which the agency will 

request submission of comments, data, 

and information on whether an 

amended test procedure rule would: (1) 

More accurately measure energy 

efficiency, energy use, water use (as 

specified in EPCA), or estimated annual 

operating cost of a covered product 

during a representative average use 

cycle or period of use without being 

unduly burdensome to conduct; or (2) 

reduce testing burden. Based upon 

available information, if DOE 

determines that an amended test 

procedure is not justified at that time, it 

will publish a notice of proposed 

determination to that effect in the 

Federal Register for notice and 

comment. Otherwise, DOE would 

undertake the preliminary stages of a 

rulemaking to amend the test procedure. 

85 FR 8626, 8707–8708. 

Upon further consideration, DOE is 

proposing to modify this provision to 

allow for a more expedited rulemaking 

process in appropriate cases, 

particularly in light of the significant 

number of legal deadlines confronting 

the Appliance Standards Program and 

the anticipated benefits to the Nation of 

the associated energy conservation 

standards. Because interested parties are 

free to raise the matter of the need for 

an amended test procedure at any 

preliminary stage of the rulemaking, 

DOE has tentatively concluded that a 

separate rulemaking document limited 

to only that topic (i.e., the early 

assessment RFI) unnecessarily delays 

the overall process without appreciable 

benefit. Consequently, DOE proposes to 

remove the requirement for a separate 

early assessment RFI for test procedures. 

Instead, DOE would welcome the same 

type of information in the context of an 

RFI, preliminary analysis, ANOPR, or 

some other pre-NOPR document, while 

at the same time asking relevant 

questions and gathering information 

about other test procedure issues, such 

as the applicability of any industry test 

procedure, in the event that the 

Department decides to proceed with a 

test procedure rulemaking. 


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10The 1996 Process Rule final rule did not 

address ASHRAE equipment specifically. 61 FR 

36974 (July 15, 1996). 

Additionally, for these pre-NOPR 

documents for which there is no 

statutorily required comment period, 

DOE proposes to clarify that the 

Department would provide an 

appropriate comment period for preNOPR documents, determined on a 

case-by-case basis, which is 

commensurate with the nature and 

complexity of the test procedure 

rulemaking at issue. DOE also proposes 

to clarify that it will provide a minimum 

60-day public comment period with at 

least one public hearing or workshop for 

test procedure NOPR documents. DOE 

has historically provided a 75-day 

comment period for test procedure 

NOPRs, consistent with the comment 

period requirement for technical 

regulations in the North American Free 

Trade Agreement, U.S.-Canada-Mexico 

(‘‘NAFTA’’), Dec. 17, 1992, 32 I.L.M. 

289 (1993); the North American Free 

Trade Agreement Implementation Act, 

Public Law 103–182, 107 Stat. 2057 

(1993) (codified as amended at 10 

U.S.C.A. 2576) (1993) (‘‘NAFTA 

Implementation Act’’); and Executive 

Order 12889, ‘‘Implementation of the 

North American Free Trade 

Agreement,’’ 58 FR 69681 (Dec. 30, 

1993). However, Congress repealed the 

NAFTA Implementation Act and has 

replaced NAFTA with the Agreement 

between the United States of America, 

the United Mexican States, and the 

United Canadian States (‘‘USMCA’’), 

Nov. 30, 2018, 134 Stat. 11, thereby 

rendering E.O. 12889 inoperable. 

Consequently, since the USMCA is 

consistent with EPCA’s public comment 

period requirements and normally 

requires a minimum comment period of 

60 days for technical regulations, DOE 

now proposes to provide a minimum 

60-day public comment period for test 

procedure NOPRs. DOE requests 

comments, information, and data on 

whether its proposed approach is 

appropriate or on any other suggested 

alternatives. 

Second, in section 8(b) of the Process 

Rule, the February 2020 Final Rule 

contemplated further opportunities for 

early public input if the Department 

determines to move forward with the 

test procedure rulemaking after 

considering comments on the early 

assessment RFI. Also, in that subsection, 

the February 2020 Final Rule stated that 

DOE will identify any necessary 

modifications to established test 

procedure prior to initiating the 

standards development process. 85 FR 

8626, 8708. After further consideration, 

DOE proposes to modify and clarify 

these provisions as follows. As noted 

previously, DOE is proposing to 

eliminate the requirement for a test 

procedure early assessment RFI, while 

maintaining the opportunity for early 

public input through other rulemaking 

documents (potentially including RFIs) 

as to whether test procedure 

amendments are warranted under the 

applicable statutory criteria. The 

Department has tentatively concluded 

that one round of pre-NOPR input may 

be sufficient in some cases. 

Furthermore, DOE would clarify that its 

intention in section 8(b) was that 

Department will identify all test 

procedure modifications prior to issuing 

a proposed standard for that appliance, 

not to preclude the agency from 

preparing other pre-rulemaking 

standards documents, such as RFIs, 

NODAs, and preliminary analyses. DOE 

believes that such preliminary 

standards-related work and data 

gathering can commence in concert with 

the test procedure proceeding, as long as 

any anticipated test procedure changes 

are identified and evaluated in time for 

them to be factored into the energy 

conservation standards proposal. It is 

DOE’s belief that these changes would 

improve the efficiency of the Appliance 

Standards Program without sacrificing 

the quality of DOE’s analyses or the 

opportunity for public input. DOE 

requests comments, information, and 

data on whether its proposed approach 

is appropriate or on any other suggested 

alternatives. In addition, DOE seeks 

comment on whether these changes 

would affect the quality of DOE’s 

analyses or opportunities for public 

comment. 

D. ASHRAE Equipment 

In EPCA, Congress established a 

separate and unique regulatory scheme 

pertaining to DOE rulemaking of certain 

covered equipment addressed by 

ASHRAE Standard 90.1, Energy 

Standard for Buildings Except Low-Rise 

Residential Buildings, including specific 

requirements for both energy 

conservation standards and test 

procedures. See 42 U.S.C. 6313(a)(6) 

and 42 U.S.C. 6314(a)(4), respectively. 

In the February 2020 Final Rule, DOE 

added a section to the Process Rule 

specifically addressing ASHRAE 

equipment for the first time.10 85 FR 

8626, 8708. 

While DOE sees value in setting forth 

the statutory requirements and the 

Department’s regulatory process for 

covered ASHRAE equipment, a 

subsequent review suggests that DOE’s 

initial efforts to explain the applicable 

ASHRAE requirements could be 

improved, both in terms of better 

delineating the process for energy 

conservation standards/test procedures 

and removing constraints that are 

neither compelled by the statute nor 

consistent with DOE’s historic practice, 

and would impede DOE’s ability to 

achieve EPCA’s energy conservation 

purposes. 

Consequently, DOE proposes to 

reorganize and revise the ASHRAE 

section of the Process Rule to focus on 

the requirements in EPCA, to increase 

clarity, and to be consistent with 

longstanding DOE practices. As part of 

this effort, DOE is proposing to remove 

extraneous language relating to DOE’s 

interpretations of the statute’s ASHRAE 

provisions, because the Department has 

found matters pertaining to scope, 

triggering, and applicable statutory 

criteria to typically involve nuances 

most appropriately addressed in 

individual ASHRAE rulemaking actions. 

One such example would be an update 

to the relevant ASHRAE standard that 

specifies standard levels for a type of 

covered equipment that previously was 

not subject to standards, as was the case 

with computer room air conditioners. 

See 77 FR 28928 (May 16, 2012). In such 

an instance, the application of EPCA’s 

trigger provision is not the typical 

scenario in which existing standard 

levels for covered equipment are 

updated. Such matters may not lend 

themselves to a standardized approach 

suitable for inclusion in the Process 

Rule, but instead, are better addressed 

on a case-by-case basis in the context of 

the specific ASHRAE rulemaking in 

question. In light of the above, DOE’s 

proposed changes are discussed in the 

paragraphs that follow. 

First, DOE proposes to include 

separate sections delineating the EPCA 

requirements under two scenarios: (1) 

ASHRAE action regarding standards and 

test procedures (i.e., ‘‘ASHRAE trigger’’ 

under 42 U.S.C. 6313(a)(6)(A) and 42 

U.S.C. 6314(a)(4)(A)–(B), respectively) 

and (2) DOE’s obligation to periodically 

review energy conservation standards 

and test procedures for ASHRAE 

equipment (i.e., 6-year-lookback or 7- 

year-lookback under 42 U.S.C. 

6313(a)(6)(C) and 42 U.S.C. 6314(a)(1), 

respectively). It is expected that this 

refinement would provide additional 

clarity to stakeholders by more clearly 

articulating the statutory scheme 

regarding standards and test procedure 

rulemakings for ASHRAE equipment. 

Within the ASHRAE trigger section, 

DOE proposes to further separate out the 

statutory requirements for energy 

conservation standards and test 

procedures. In the current version of the 


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Process Rule, EPCA’s timelines for 

energy conservation standards were 

erroneously applied to test procedures 

as well. DOE wishes to make clear the 

applicable statutory timelines 

applicable to energy conservation 

standard and test procedure 

rulemakings in the Process Rule. DOE 

also proposes to clarify what type of 

action on the part of ASHRAE would 

trigger a DOE review for amended 

energy conservation standards and test 

procedures. With respect to amended 

energy conservation standards, DOE 

only considers ASHRAE to have acted 

in a manner triggering DOE review 

when an updated version of ASHRAE 

Standard 90.1 publishes (i.e., not at the 

time that an addendum to ASHRAE 

Standard 90.1 is released or approved), 

and the updated version includes an 

increase in stringency of standard levels 

or a new design requirement relative to 

the current Federal standards. With 

respect to test procedures, DOE only 

considers ASHRAE to have acted in a 

manner triggering DOE review when an 

updated version of ASHRAE Standard 

90.1 publishes (i.e., not at the time that 

an addendum to ASHRAE Standard 90.1 

is released or approved), and that 

updated version adopts a new or 

amended test procedure. This approach 

is consistent with the ASHRAE-specific 

provisions in EPCA and generally 

consistent with past DOE practice. DOE 

notes in the past that it has treated an 

update to the industry test procedure 

standard referenced by ASHRAE 

Standard 90.1 as a trigger. See e.g., 77 

FR 2356, 2358 (Jan. 17, 2012). DOE 

proposes to only consider an update to 

ASHRAE Standard 90.1 that modifies 

the referenced industry test procedure 

to be a trigger under the statute. This 

approach is consistent with EPCA and 

provides certainty to the public 

regarding when DOE is required to 

consider updating test procedures for 

ASHRAE equipment. Finally, DOE notes 

that ASHRAE reviewing and reaffirming 

(i.e., not amending) a standard or test 

procedure does not trigger a DOE review 

or affect the timing of DOE’s separate 

obligation under EPCA to periodically 

review standards and test procedures for 

each class of covered equipment. 

Under the ASHRAE trigger for test 

procedures (42 U.S.C. 6314(a)(4)), when 

ASHRAE Standard 90.1 is amended, the 

statute requires DOE to amend the 

Federal test procedure to be consistent 

with the updated version of Standard 

90.1, unless the Department determines, 

by rule, published in the Federal 

Register and supported by clear and 

convincing evidence, that the amended 

industry test standard would not be 

representative of the equipment’s energy 

efficiency, energy use, or estimated 

operating cost during a representative 

average use cycle and not be unduly 

burdensome to conduct. In such cases, 

DOE may then develop its own test 

procedure which does meet these 

statutory requirements related to 

representativeness and burden, even if 

the test procedure is not consistent with 

the amended industry test standard. 

Further, DOE notes that the statutory 

language ‘‘consistent with’’ itself 

provides some flexibility in adopting 

the amended industry test procedure. 

As EPCA does not require DOE to adopt 

a test procedure identical to applicable 

industry test standard, DOE may make 

modifications that are consistent with 

the applicable industry test standard. 

In addition, DOE proposes to clarify 

that it is not required to adopt or align 

with sections of the industry test 

standard that are not necessary for the 

method of test for metrics included in 

the DOE test procedure (e.g., sections of 

the industry test procedure regarding 

selection of models for testing under an 

industry certification program, 

verification of represented values and 

the associated tolerances, and 

operational requirements need not be 

referenced or aligned with by DOE). 

These proposals are consistent with the 

Department’s longstanding historic 

practice. 

DOE proposes to remove the 

statement that DOE will adopt the 

revised ASHRAE levels or the industry 

test procedure, except in very limited 

circumstances. The circumstances 

under which DOE will adopt a morestringent standard than the ASHRAE 

standard or a different test procedure 

are laid out in the statute. For example, 

DOE will issue a more-stringent 

standard than the ASHRAE standard if 

DOE determines, supported by clear and 

convincing evidence, that the morestringent standard would result in 

significant additional conservation of 

energy and is technologically feasible 

and economically justified. (42 U.S.C. 

6313(a)(6)(A)(ii)(II)) ‘‘Very limited 

circumstances’’ is an ambiguous 

description for a process that is 

delineated in EPCA. As a result, DOE 

proposes to remove this description of 

the circumstances under which DOE 

will not adopt the amended ASHRAE 

standard or industry test procedure. 

In addition, DOE proposes to remove 

the discussion of what constitutes clear 

and convincing evidence. As DOE 

previously noted in the February 2020 

Final Rule, the clear and convincing 

evidence standard has a specific 

meaning that the courts have routinely 

addressed through case law. See 85 FR 

8626, 8642 (discussing in detail 

application of the ‘‘clear and 

convincing’’ evidentiary standard by 

courts and legal commentators). DOE 

does not believe the elaboration 

contained in the current paragraph adds 

value to the EPCA language already 

referenced in this section or to the 

established case law pertaining to the 

standard of review for clear and 

convincing evidence. 

DOE also proposes to remove the 

statement that DOE believes that 

ASHRAE not acting to amend Standard 

90.1 is tantamount to a decision that the 

existing standard remain in place. This 

statement does not have any effect on 

DOE’s rulemaking obligations under the 

ASHRAE provisions in EPCA. As 

discussed previously, DOE initiates an 

ASHRAE rulemaking because: (1) 

Standard 90.1 is amended to include 

more-stringent standards or a new 

design requirement; or (2) EPCA 

requires DOE to evaluate each class of 

covered equipment every 6 years. 

Neither of these situations would be 

affected by a decision by ASHRAE to 

reaffirm an existing standard. 

Finally, DOE also proposes to make 

two clarifications regarding its ASHRAE 

review process, which are consistent 

with longstanding DOE practice. First, 

in an ASHRAE trigger analysis, DOE 

will assess energy savings from 

amended ASHRAE Standard 90.1 levels 

as compared to the current Federal 

standard (or the market baseline in cases 

where ASHRAE adds new equipment 

classes or categories not previously 

subject to Federal standards), and will 

also assess energy savings from morestringent standards as compared to the 

ASHRAE Standard 90.1 levels. DOE 

notes that the analysis period differs for 

these assessments, as EPCA specifies 

different compliance dates for adopting 

levels in ASHRAE as opposed to 

adopting more-stringent levels. And, 

second, DOE notes that under an 

ASHRAE trigger, it may review all 

metrics for the equipment category, 

even though ASHRAE only amended 

DOE’s regulated metric(s), and the 

Department may also consider changing 

regulated metrics (while assessing 

equivalent stringency between metrics). 

DOE may also consider changing 

metrics during a 6-year-lookback or 7- 

year-lookback review. DOE believes this 

is consistent with EPCA’s requirement 

that test procedures (and metrics) be 

representative of an average use cycle. 

DOE requests comments, information, 

and data on whether its proposed 

approaches to ASHRAE standards and 

test procedure rulemakings are 

appropriate or on any other suggested 

alternatives. 


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E. Analytical Methodology 

In the February 2020 Process Rule, 

DOE stated that it would consider 

changes to sections of the Process Rule 

involving its analytical methodologies 

in a subsequent proceeding after 

completion of a peer review. 85 FR 

8686–8687. As such, these sections 

remained largely unchanged from the 

1996 Process Rule. Subsequently, DOE 

engaged with the National Academy of 

Sciences (‘‘NAS’’) to review DOE’s 

analytical methodologies to ascertain 

whether modifications are needed to 

improve the Department’s analyses. 

That review process is still ongoing. 

Upon further reconsideration, DOE 

believes that it is important to revise the 

analytical sections in the Process Rule 

to better reflect Departmental practice. 

The descriptions of the analyses 

currently in sections 13–17 present the 

procedures, interpretations, and policies 

as set forth in the 1996 Process Rule. In 

the years following that final rule, 

DOE’s analyses have evolved and been 

refined. The revisions proposed in the 

following sections reflect the current 

state of DOE’s analytical methodologies. 

If DOE makes any revisions to its 

analytical methods based on the NAS 

peer review, the Department will 

propose any necessary corresponding 

revisions to the Process Rule in a 

subsequent proceeding. 

1. New Section 12 Principles for the 

Conduct of the Engineering Analysis 

DOE proposes to update the 

description of the analysis to more 

comprehensively describe the various 

approaches DOE takes in developing 

cost-efficiency relationships. 

Specifically, DOE proposes to 

reorganize the discussion to clearly 

describe the two key aspects of the 

engineering analysis: The efficiency 

analysis (i.e., identifying the efficiency 

levels for analysis) and the cost analysis 

(i.e., estimating the costs at each 

analyzed efficiency level). 

In particular, DOE typically uses one 

of two approaches to develop energy 

efficiency levels for the engineering 

analysis: (1) Relying on observed 

efficiency levels in the market (i.e., the 

efficiency-level approach), or (2) 

determining the incremental efficiency 

improvements associated with 

incorporating specific design options to 

a baseline model (i.e., the design-option 

approach). 

DOE typically uses one or a 

combination of approaches to conduct 

the cost analysis, including (1) physical 

teardowns (i.e., physically dismantling a 

commercially available product/ 

equipment model, component-bycomponent, to develop a detailed bill of 

materials for the model); (2) catalog 

teardowns (i.e., identifying each 

component using parts diagrams 

available from manufacturer websites or 

appliance repair websites, in lieu of 

physically deconstructing the product/ 

equipment, to develop the bill of 

materials for the product/equipment); 

and/or (3) price surveys (i.e., deriving 

costs using publicly available pricing 

data published on major online retailer 

websites and/or by soliciting prices 

from distributors and other commercial 

channels). The choice of approach 

depends on a suite of factors, including 

the availability and reliability of public 

information, characteristics of the 

subject product/equipment, and the 

availability and timeliness of 

purchasing the product/equipment on 

the market. 

2. New Section 13 Principles for the 

Analysis of Impacts on Manufacturers 

In the preamble to the July 1996 

Process Rule, the Department of Energy 

committed to a detailed review of the 

existing manufacturer impact analysis 

methodologies. 61 FR 36974, 36979. 

During a series of public consultations 

in 1997, the Department presented a 

draft work plan for the development of 

new methods for assessing manufacturer 

impacts and invited comments and 

suggestions from interested parties. See 

62 FR 8189 (Feb. 24, 1997). The 

Department implemented its revised 

Manufacturer Impact Analysis 

methodologies for final rules issued 

subsequently. DOE proposes to update 

the Process Rule to align with the 

manufacturer impact analysis 

methodologies that are the result of the 

1997 process and subsequent 

stakeholder input. DOE proposes to 

clarify the process used to evaluate 

manufacturers impacts and expands the 

guidance on the methodologies used to 

solicit stakeholder input. The updates 

include: 

• Acknowledgement of the 

manufacturer interview process. DOE 

adds language to reflect a critical tool 

used as part of the current process, 

wherein manufacturer specific data and 

information are used to develop and 

validate key inputs for the manufacturer 

impact analysis. 

• Added detail on use of the 

Government Regulatory Impact Model 

(GRIM). The 1996 and 2020 Process 

Rules make mention of the GRIM 

without explanation of the model. DOE 

adds language on the structure, 

underlying principles, and outputs of 

the model. 

• Differentiation between types of 

cost impacts. To better reflect the 

current process, DOE expands 

discussion about the types of 

manufacturer cost impacts considered 

in the analysis. 

• Clarification on the treatment of 

manufacturer subgroups. To be 

consistent with the current process, 

DOE adds criteria on the evaluation of 

subgroups of manufacturers that may be 

disproportionately impacted by 

standards or that may not be accurately 

represented by the average cost 

assumptions. 

• Consideration of competitive 

impacts, as required by EPCA. To be 

consistent with the current process and 

with EPCA, DOE adds criteria to 

consider any lessening of competition 

that is likely to result from imposition 

of standards and clarifies how the 

Department will coordinate with the 

Department of Justice. 

• Inclusion of stakeholder concerns 

related to manufacturing capacity and 

direct employment impacts. To be 

consistent with the current process, 

DOE highlights criteria related to 

manufacturing capacity and direct 

employment impacts that the 

Department considers in its assessment 

of impacts on manufacturers. 

3. New Section 14 Principles for the 

Analysis of Impacts on Consumers 

DOE proposes minor changes to the 

discussion of analytical principles 

related to consumer impacts. These 

changes reflect the analytical 

methodologies that are the result of 

several iterations of stakeholder input 

and regulatory review, advances in data 

availability, and advances in analytical 

techniques in the academic literature. In 

particular, DOE proposes the following 

changes: (1) Clarifications regarding the 

use of analytical input distributions in 

order to establish representative 

consumer samples and evaluate the 

range of potential impacts. These 

changes help to differentiate variation in 

consumer impacts captured in the LifeCycle Cost (LCC) analysis from 

additional sensitivity or scenario 

analyses used for data or assumptions 

subject to a higher degree of uncertainty; 

(2) clarifications to differentiate the LCC 

analysis from the consumer subgroup 

analysis, the latter of which considers 

impacts on subgroups of consumers 

who may be disproportionately 

impacted by a potential standard; (3) 

removal of discussion of magnitude of 

first cost and length of payback period 

triggering additional assessments, as 

those assessments are always made 

when relevant to a given products; and 

(4) the addition of a discussion on 

consumer discount rates, found in 

section 17 of the current Process Rule. 


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The revised discussion reflects DOE’s 

established practice of calculating 

weighted discount rates based on debt 

and equity holdings for both residential 

and commercial/industrial consumers, 

for the purposes of the LCC analysis. 

4. New Section 15 Consideration of 

Non-Regulatory Approaches 

DOE proposes to simplify the text to 

reflect its current practice and to clarify 

the data available for use in DOE’s 

analyses. Specifically, the proposed 

revisions clarify that DOE’s established 

practice is to compare non-regulatory 

initiatives relative to candidate/trial 

standard levels rather than considering 

their individual impacts. In addition, 

the proposed revisions clarify that DOE 

bases its assessment on the actual 

impacts of existing non-regulatory 

initiatives, and does not typically 

speculate on potential future nonregulatory initiatives or initiatives that 

have not yet been implemented. Finally, 

DOE proposes to eliminate reference to 

assessing appropriate compliance dates, 

as these are nearly always statutorily 

defined. 

5. New Section 16 Cross-Cutting 

Analytical Assumptions 

DOE proposes minor updates to 

reflect DOE’s long-standing analytical 

practice. In particular, DOE proposes 

the following clarifications: (1) DOE will 

continue to utilize a 30-year analysis 

period along with a 9-year sensitivity 

analysis, but DOE no longer analyzes a 

time length specific to each product; (2) 

energy-efficiency trends will be based 

on the best available historical market 

data (which may or may not be based on 

NEMS); (3) analyses will generally 

adopt the reference energy price 

scenario of EIA’s most current Annual 

Energy Outlook (while demand is not 

typically considered); and (4) the 

discount rates used in determining 

national costs and benefits (formerly 

referred to as social discount rates) are 

in accordance with the Office of 

Management and Budget (OMB)’s 

guidance to Federal agencies on 

developing regulatory analyses (OMB 

Circular A–4, September 17, 2003, and 

section E., ‘‘Identifying and Measuring 

Benefits and Costs,’’ therein). 

6. New Section 17 Emissions Analysis 

DOE also proposes a new section 17 

discussing the Department’s emissions 

analysis that is based on text that is 

currently part of section 17, CrossCutting Analytical Assumptions. The 

proposed updates clarify that DOE will 

estimate emissions reductions of 

greenhouse gases and pollutants likely 

to result from candidate/trial standard 

levels following best practices at the 

time. These emissions reductions will 

potentially include the effect on electric 

power sector and site combustion 

emissions, as well as on ‘‘upstream 

activities’’ in the fuel production chain. 

The proposed updates also clarify that 

estimation of the monetary value of the 

avoided greenhouse gas emissions, as 

well as those of other air pollutants, will 

be based on best practices at the time, 

for example, by using accepted benefitper-ton values from the scientific 

literature. 

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Orders 

12866 and 13563 

This regulatory action is a significant 

regulatory action under section 3(f)(4) of 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ 58 FR 51735 

(Oct. 4, 1993). Accordingly, this 

proposed regulatory action was subject 

to review under the Executive Order by 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget (OMB). 

The revisions contained in this 

proposed regulatory action are 

procedural changes designed to improve 

DOE’s ability to meet its rulemaking 

obligations and deadlines under EPCA. 

These proposed revisions would not 

impose any regulatory costs or burdens 

on stakeholders, nor would they limit 

public participation in DOE’s 

rulemaking process. Instead, these 

proposed revisions would allow DOE to 

tailor its rulemaking processes to fit the 

facts and circumstances of a particular 

rulemaking for a covered product or 

equipment. 

DOE currently has energy 

conservation standards and test 

procedures in place for more than 60 

categories of covered products and 

equipment and is typically working on 

anywhere from 50 to 100 rulemakings 

(for both energy conservation standards 

and test procedures) at any one time. 

Further, these rulemakings are all 

subject to statutory or other deadlines. 

Typically, review cycles for energy 

conservation standards and test 

procedures for covered products are 6 

and 7 years, respectively. (42 U.S.C. 

6295(m)(1); 42 U.S.C 6293(b)(1)) 

Additionally, if DOE decides not to 

amend an energy conservation standard 

for a covered product, the subsequent 

review cycle is shortened to 3 years. (42 

U.S.C. 6295(m)(3)(B)) It is challenging to 

meet these cyclical deadlines for more 

than 60 categories of covered products 

and equipment. In fact, as previously 

discussed, DOE is currently facing two 

lawsuits that allege DOE has failed to 

meet rulemaking deadlines for 25 

different consumer products and 

commercial equipment. 

In order to meet these rulemaking 

deadlines, DOE cannot afford the 

inefficiencies that come with a one-sizefits-all rulemaking approach. For 

example, having to issue an early 

assessment RFI followed by an ANOPR 

to collect early stakeholder input when 

a NODA or other pre-rule document 

would accomplish the same purpose 

unnecessarily lengthens the rulemaking 

process and wastes limited DOE 

resources. Similarly, having to identify 

any necessary modifications to a test 

procedure prior to initiating an energy 

conservation standard rulemaking 

makes it more difficult for DOE to meet 

rulemaking deadlines, while offering 

little to no benefit to stakeholders. The 

revisions proposed in this document 

would allow DOE to eliminate these 

types of inefficiencies that lengthen the 

rulemaking process and waste DOE 

resources, while not affecting the ability 

of the public to participate in the 

rulemaking process. Eliminating 

inefficiencies that lengthen the 

rulemaking process allows DOE to more 

quickly develop energy conservation 

standards that deliver the 

environmental benefits, including 

reductions in greenhouse gas emissions, 

that DOE is directed to pursue under 

E.O. 13990. Further, the sooner new or 

amended energy conservation standards 

eliminate less-efficient covered products 

and equipment from the market, the 

greater the resulting energy savings and 

environmental benefits. 

Finally, the revisions proposed in this 

document would not dictate any 

particular rulemaking outcome in an 

energy conservation standard or test 

procedure rulemaking. DOE will 

continue to calculate the regulatory 

costs and benefits of new and amended 

energy conservation standards and test 

procedures issued under EPCA in 

future, individual rulemakings. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996) requires 

preparation of an initial regulatory 

flexibility analysis (IRFA) for any rule 

that by law must be proposed for public 

comment and a final regulatory 

flexibility analysis (FRFA) for any such 

rule that an agency adopts as a final 

rule, unless the agency certifies that the 

rule, if promulgated, will not have a 

significant economic impact on a 

substantial number of small entities. A 


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regulatory flexibility analysis examines 

the impact of the rule on small entities 

and considers alternative ways of 

reducing negative effects. Also, as 

required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the DOE 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s website at: https://

www.energy.gov/gc/office-generalcounsel. 

This proposed rule details generally 

applicable guidance that may guide, but 

not bind, the Department’s rulemaking 

process. The proposed revisions are 

intended to improve DOE’s ability to 

meet the obligations and deadlines 

outlined in EPCA by allowing DOE to 

tailor its rulemaking procedures to fit 

the specific facts and circumstances of 

a particular covered product or 

equipment, while not affecting the 

ability of any interested person, 

including small entities, to participate 

in DOE’s rulemaking process. Because 

this proposed rule imposes no 

regulatory obligations on the public, 

including small entities, and does not 

affect the ability of any interested 

person, including small entities, to 

participate in DOE’s rulemaking 

process, DOE certifies that this proposed 

rule will not have a significant 

economic impact on a substantial 

number of small entities, and, therefore, 

no initial regulatory flexibility analysis 

is required. Mid-Tex Elec. Cooperative, 

Inc. v. F.E.R.C., 773 F.2d 327 (D.C. Cir. 

1985). 

C. Review Under the Paperwork 

Reduction Act of 1995 

DOE is not amending its existing 

information collections through this 

proposed rule. Under existing 

provisions, manufacturers of covered 

products/equipment must certify to 

DOE that their products comply with 

any applicable energy conservation 

standards. In certifying compliance, 

manufacturers must test their products 

according to the DOE test procedures for 

such products/equipment, including 

any amendments adopted for those test 

procedures, on the date that compliance 

is required. DOE has established 

regulations for the certification and 

recordkeeping requirements for all 

covered consumer products and 

commercial equipment. 76 FR 12422 

(March 7, 2011); 80 FR 5099 (Jan. 30, 

2015). The collection-of-information 

requirement for certification and 

recordkeeping is subject to review and 

approval by OMB under the Paperwork 

Reduction Act (PRA). This requirement 

has been approved by OMB under OMB 

control number 1910–1400. Public 

reporting burden for the certification is 

estimated to average 30 hours per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

Specifically, this proposed rule, 

addressing clarifications to the Process 

Rule itself, does not contain any 

collection of information requirement 

that would trigger the PRA. 

D. Review Under the National 

Environmental Policy Act of 1969 

DOE is analyzing this proposed 

regulation in accordance with the 

National Environmental Policy Act 

(NEPA) and DOE’s NEPA implementing 

regulations (10 CFR part 1021). DOE’s 

regulations include a categorical 

exclusion for rulemakings interpreting 

or amending an existing rule or 

regulation that does not change the 

environmental effect of the rule or 

regulation being amended. 10 CFR part 

1021, subpart D, appendix A5. DOE’s 

regulations include a categorical 

exclusion for rulemakings that are 

strictly procedural. 10 CFR part 1021, 

subpart D, appendix A6. DOE 

anticipates that this rulemaking 

qualifies for categorical exclusion A5 

and A6 because it is amending a rule 

and because it is a procedural 

rulemaking, it does not change the 

environmental effect of the rule and 

otherwise meets the requirements for 

application of a categorical exclusion. 

See 10 CFR 1021.410. DOE will 

complete its NEPA review before 

issuing the final rule. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 10, 1999), imposes 

certain requirements on Federal 

agencies formulating and implementing 

policies or regulations that preempt 

State law or that have Federalism 

implications. The Executive Order 

requires agencies to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have Federalism implications. On 

March 14, 2000, DOE published a 

statement of policy describing the 

intergovernmental consultation process 

it will follow in the development of 

such regulations. 65 FR 13735. DOE has 

examined this proposed rule and has 

determined that it will not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. It will primarily 

affect the procedure by which DOE 

develops proposed rules to revise 

energy conservation standards and test 

procedures. EPCA governs and 

prescribes Federal preemption of State 

regulations that are the subject of DOE’s 

regulations adopted pursuant to the 

statute. In such cases, States can 

petition DOE for exemption from such 

preemption to the extent, and based on 

criteria, set forth in EPCA. (42 U.S.C. 

6297(d)) Therefore, Executive Order 

13132 requires no further action. 

F. Review Under Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) promote simplification 

and burden reduction. Regarding the 

review required by section 3(a), section 

3(b) of Executive Order 12988 

specifically requires that each Executive 

agency make every reasonable effort to 

ensure that when it issues a regulation, 

the regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) clearly specifies 

the retroactive effect, if any; (5) specifies 

whether administrative proceedings are 

to be required before parties may file 

suit in court and, if so, describes those 

proceedings and requires the exhaustion 

of administrative remedies; (6) 


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adequately defines key terms; and (7) 

addresses other important issues 

affecting clarity and general 

draftsmanship under any guidelines 

issued by the Attorney General. Section 

3(c) of Executive Order 12988 requires 

Executive agencies to review regulations 

in light of applicable standards in 

sections 3(a) and 3(b) to determine 

whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and has determined that, to the 

extent permitted by law, the proposed 

rule meets the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. (Pub. L. 104–4, sec. 201 

(codified at 2 U.S.C. 1531)) For a 

proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a), (b)) 

The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect them. On March 18, 1997, DOE 

published a statement of policy on its 

process for intergovernmental 

consultation under UMRA. (62 FR 

12820) (This policy is also available at 

https://www.energy.gov/gc/officegeneral-counsel under ‘‘Guidance & 

Opinions’’ (Rulemaking)) DOE 

examined the proposed rule according 

to UMRA and its statement of policy 

and has determined that the rule 

contains neither an intergovernmental 

mandate, nor a mandate that may result 

in the expenditure by State, local, and 

Tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any year. Accordingly, no 

further assessment or analysis is 

required under UMRA. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

proposed rule would not have any 

impact on the autonomy or integrity of 

the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

I. Review Under Executive Order 12630 

Pursuant to Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 18, 1988), 

DOE has determined that this proposed 

rule would not result in any takings that 

might require compensation under the 

Fifth Amendment to the U.S. 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516 note) provides 

for Federal agencies to review most 

disseminations of information to the 

public under information quality 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (Feb. 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (Oct. 7, 2002). DOE has 

reviewed this proposed rule under the 

OMB and DOE guidelines and has 

concluded that it is consistent with the 

applicable policies in those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OIRA at OMB, a 

Statement of Energy Effects for any 

proposed significant energy action. A 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgates or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy; or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

DOE has tentatively concluded that 

the regulatory action in this document, 

which makes clarifications to the 

Process Rule that guides the Department 

in proposing energy conservation 

standards is not a significant energy 

action because it would not have a 

significant adverse effect on the supply, 

distribution, or use of energy, nor has it 

been designated as a significant energy 

action by the Administrator of OIRA. 

Therefore, it is not a significant energy 

action, and, accordingly, DOE has not 

prepared a Statement of Energy Effects 

for this proposed rule. 

L. Review Consistent With OMB’s 

Information Quality Bulletin for Peer 

Review 

On December 16, 2004, OMB, in 

consultation with the Office of Science 

and Technology Policy (OSTP), issued 

its Final Information Quality Bulletin 

for Peer Review (the Bulletin). 70 FR 

2664 (Jan. 14, 2005). The Bulletin 

establishes that certain scientific 

information shall be peer reviewed by 

qualified specialists before it is 

disseminated by the Federal 

Government, including influential 

scientific information related to agency 

regulatory actions. The purpose of the 

bulletin is to enhance the quality and 

credibility of the Government’s 

scientific information. Under the 

Bulletin, the energy conservation 

standards rulemaking analyses are 

‘‘influential scientific information,’’ 

which the Bulletin defines as ‘‘scientific 

information the agency reasonably can 

determine will have or does have a clear 

and substantial impact on important 

public policies or private sector 

decisions.’’ Id. at 70 FR 2667. 

In response to OMB’s Bulletin, DOE 

conducted formal in-progress peer 

reviews of the energy conservation 

standards development process and 

analyses and has prepared a Peer 

Review Report pertaining to the energy 

conservation standards rulemaking 

analyses. Generation of this report 

involved a rigorous, formal, and 

documented evaluation using objective 

criteria and qualified and independent 

reviewers to make a judgment as to the 

technical/scientific/business merit, the 

actual or anticipated results, and the 

productivity and management 

effectiveness of programs and/or 

projects. The ‘‘Energy Conservation 

Standards Rulemaking Peer Review 

Report,’’ dated February 2007, has been 


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disseminated and is available at the 

following website: www.energy.gov/ 

eere/buildings/peer-review. Because 

available data, models, and 

technological understanding have 

changed since 2007, DOE has engaged 

with the National Academy of Sciences 

to review DOE’s analytical 

methodologies to ascertain whether 

modifications are needed to improve the 

Department’s analyses. The results from 

that review are expected later in 2021. 

V. Public Participation 

A. Participation in the Webinar 

The time and date of the webinar are 

listed in the DATES section at the 

beginning of this document. If no 

participants register for the webinar, it 

will be cancelled. Webinar registration 

information, participant instructions, 

and information about the capabilities 

available to webinar participants will be 

published on DOE’s website: https://

www.energy.gov/eere/buildings/processrule. Participants are responsible for 

ensuring their systems are compatible 

with the webinar software. 

B. Procedure for Submitting Prepared 

General Statements for Distribution 

Any person who has an interest in the 

topics addressed in this proposed 

rulemaking, or who is representative of 

a group or class of persons that has an 

interest in these issues, may request an 

opportunity to make an oral 

presentation at the webinar. Such 

persons may submit requests to speak 

by email to the Appliance and 

Equipment Standards Program, 

ApplianceStandardsQuestions@

ee.doe.gov. Persons who wish to speak 

should include with their request a 

computer file in WordPerfect, Microsoft 

Word, PDF, or text (ASCII) file format 

that briefly describes the nature of their 

interest in this rulemaking and the 

topics they wish to discuss. Such 

persons should also provide a daytime 

telephone number where they can be 

reached. 

Persons requesting to speak should 

briefly describe the nature of their 

interest in this rulemaking and provide 

a telephone number for contact. DOE 

requests persons selected to make an 

oral presentation to submit an advance 

copy of their statements at least two 

weeks before the webinar. At its 

discretion, DOE may permit persons 

who cannot supply an advance copy of 

their statement to participate, if those 

persons have made advance alternative 

arrangements with the Building 

Technologies Office. As necessary, 

requests to give an oral presentation 

should ask for such alternative 

arrangements. 

C. Conduct of the Webinar 

DOE will designate a DOE official to 

preside at the webinar and may also use 

a professional facilitator to aid 

discussion. The meeting will not be a 

judicial or evidentiary-type public 

hearing, but DOE will conduct it in 

accordance with section 336 of EPCA 

(42 U.S.C. 6306). A court reporter will 

be present to record the proceedings and 

prepare a transcript. DOE reserves the 

right to schedule the order of 

presentations and to establish the 

procedures governing the conduct of the 

webinar. There shall not be discussion 

of proprietary information, costs or 

prices, market share, or other 

commercial matters regulated by U.S. 

anti-trust laws. After the webinar and 

until the end of the comment period, 

interested parties may submit further 

comments on the proceedings and any 

aspect of the rulemaking. 

The webinar will be conducted in an 

informal, conference style. DOE will 

present summaries of comments 

received before the webinar, allow time 

for prepared general statements by 

participants, and encourage all 

interested parties to share their views on 

issues affecting this rulemaking. Each 

participant will be allowed to make a 

general statement (within time limits 

determined by DOE), before the 

discussion of specific topics. DOE will 

permit, as time permits, other 

participants to comment briefly on any 

general statements. 

At the end of all prepared statements 

on a topic, DOE will permit participants 

to clarify their statements briefly and 

comment on statements made by others. 

Participants should be prepared to 

answer questions by DOE and by other 

participants concerning these issues. 

DOE representatives may also ask 

questions of participants concerning 

other matters relevant to this 

rulemaking. The official conducting the 

webinar will accept additional 

comments or questions from those 

attending, as time permits. The 

presiding official will announce any 

further procedural rules or modification 

of the above procedures that may be 

needed for the proper conduct of the 

webinar. 

A transcript of the webinar will be 

included in the docket, which can be 

viewed as described in the Docket 

section at the beginning of this NOPR. 

In addition, any person may buy a copy 

of the transcript from the transcribing 

reporter. 

D. Submission of Comments 

DOE will accept comments, data, and 

information regarding this proposed 

rule no later than the date provided in 

the DATES section at the beginning of 

this proposed rule. Interested parties 

may submit comments using any of the 

methods described in the ADDRESSES

section at the beginning of this 

document. 

Submitting comments via https://

www.regulations.gov. The https://

www.regulations.gov web page will 

require you to provide your name and 

contact information. Your contact 

information will be viewable to DOE 

Building Technologies staff only. Your 

contact information will not be publicly 

viewable except for your first and last 

names, organization name (if any), and 

submitter representative name (if any). 

If your comment is not processed 

properly because of technical 

difficulties, DOE will use this 

information to contact you. If DOE 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, DOE may not be 

able to consider your comment. 

However, your contact information 

will be publicly viewable if you include 

it in the comment or in any documents 

attached to your comment. Any 

information that you do not want to be 

publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Persons viewing comments will see only 

first and last names, organization 

names, correspondence containing 

comments, and any documents 

submitted with the comments. 

Do not submit to https://

www.regulations.gov information for 

which disclosure is restricted by statute, 

such as trade secrets and commercial or 

financial information (hereinafter 

referred to as Confidential Business 

Information (CBI)). Comments 

submitted through https://

www.regulations.gov cannot be claimed 

as CBI. Comments received through the 

website will waive any CBI claims for 

the information submitted. For 

information on submitting CBI, see the 

Confidential Business Information 

section. 

DOE processes submissions made 

through https://www.regulations.gov 

before posting. Normally, comments 

will be posted within a few days of 

being submitted. However, if large 

volumes of comments are being 

processed simultaneously, your 

comment may not be viewable for up to 

several weeks. Please keep the comment 

tracking number that https://

www.regulations.gov provides after you 


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have successfully uploaded your 

comment. 

Submitting comments via email. 

Comments and documents submitted 

via email also will be posted to https:// 

www.regulations.gov. If you do not want 

your personal contact information to be 

publicly viewable, do not include it in 

your comment or any accompanying 

documents. Instead, provide your 

contact information in a cover letter. 

Include your first and last names, email 

address, telephone number, and 

optional mailing address. The cover 

letter will not be publicly viewable as 

long as it does not include any 

comments. 

Include contact information each time 

you submit comments, data, documents, 

and other information to DOE. No 

telefacsimiles (faxes) will be accepted. 

Comments, data, and other 

information submitted to DOE 

electronically should be provided in 

PDF (preferred), Microsoft Word or 

Excel, WordPerfect, or text (ASCII) file 

format. Provide documents that are not 

secured, written in English, and free of 

any defects or viruses. Documents 

should not contain special characters or 

any form of encryption, and, if possible, 

they should carry the electronic 

signature of the author. 

Campaign form letters. Please submit 

campaign form letters by the originating 

organization in batches of between 50 to 

500 form letters per PDF or as one form 

letter with a list of supporters’ names 

compiled into one or more PDFs. This 

reduces comment processing and 

posting time. 

Confidential Business Information. 

Pursuant to 10 CFR 1004.11, any person 

submitting information that he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit via email two well-marked 

copies: One copy of the document 

marked ‘‘confidential’’ including all the 

information believed to be confidential, 

and one copy of the document marked 

‘‘non-confidential’’ with the information 

believed to be confidential deleted. DOE 

will make its own determination about 

the confidential status of the 

information and treat it according to its 

determination. 

It is DOE’s policy that all comments 

may be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this proposed rule. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Incorporation by reference, 

Intergovernmental relations, Small 

businesses, Test procedures. 

Signing Authority 

This document of the Department of 

Energy was signed on June 29, 2021, by 

Kelly Speakes-Backman, Principal 

Deputy Assistant Secretary and Acting 

Assistant Secretary for Energy Efficiency 

and Renewable Energy, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on June 30, 

2021. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons stated in the 

preamble, DOE proposes to amend part 

430 of title 10 of the Code of Federal 

Regulations as set forth below: 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 1. The authority citation for part 430 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6309; 28 U.S.C. 

2461 note. 

■ 2. Appendix A to subpart C of part 

430 is revised to read as follows: 

Appendix A to Subpart C of Part 430— 

Procedures, Interpretations, and 

Policies for Consideration of New or 

Revised Energy Conservation Standards 

and Test Procedures for Consumer 

Products and Certain Commercial/ 

Industrial Equipment 

1. Objectives 

2. Scope 

3. Application of the Process Rule 

4. Setting Priorities for Rulemaking Activity 

5. Coverage Determination Rulemakings 

6. Process for Developing Energy 

Conservation Standards 

7. Policies on Selection of Standards 

8. Test Procedures 

9. ASHRAE Equipment 

10. Direct Final Rules 

11. Principles for Distinguishing Between 

Effective and Compliance Dates 

12. Principles for the Conduct of the 

Engineering Analysis 

13. Principles for the Analysis of Impacts on 

Manufacturers 

14. Principles for the Analysis of Impacts on 

Consumers 

15. Consideration of Non-Regulatory 

Approaches 

16. Cross-Cutting Analytical Assumptions 

17. Emissions Analysis 

1. Objectives 

This appendix establishes procedures, 

interpretations, and policies to guide the 

Department of Energy (‘‘DOE’’ or the 

‘‘Department’’) in the consideration and 

promulgation of new or revised appliance 

energy conservation standards and test 

procedures under the Energy Policy and 

Conservation Act (EPCA). This appendix 

applies to both covered consumer products 

and covered commercial/industrial 

equipment. The Department’s objectives in 

establishing these procedures include: 

(a) Provide for early input from 

stakeholders. The Department seeks to 

provide opportunities for public input early 

in the rulemaking process so that the 

initiation and direction of rulemakings is 

informed by comment from interested 

parties. DOE will be able to seek early input 

from interested parties in determining 

whether establishing new or amending 

existing energy conservation standards will 

result in significant savings of energy and is 

economically justified and technologically 

feasible. In the context of test procedure 

rulemakings, DOE will be able to seek early 

input from interested parties in determining 

whether— 

(1) Establishing a new or amending an 

existing test procedure will better measure 

the energy efficiency, energy use, water use 

(as specified in EPCA), or estimated annual 

operating cost of a covered product/ 

equipment during a representative average 

use cycle or period of use (for consumer 

products); and 

(2) Will not be unduly burdensome to 

conduct. 

(b) Increase predictability of the 

rulemaking timetable. The Department seeks 

to make informed, strategic decisions about 

how to deploy its resources on the range of 

possible standards and test procedure 

development activities, and to announce 

these prioritization decisions so that all 

interested parties have a common 

expectation about the timing of different 

rulemaking activities. Further, DOE will offer 

the opportunity to provide input on the 

prioritization of rulemakings through a 

request for comment as DOE begins 

preparation of its Regulatory Agenda each 

spring. 

(c) Eliminate problematic design options 

early in the process. The Department seeks to 

eliminate from consideration, early in the 

process, any design options that present 

unacceptable problems with respect to 

manufacturability, consumer utility, or 

safety, so that the detailed analysis can focus 


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only on viable design options. DOE will be 

able to eliminate from consideration design 

options if it concludes that manufacture, 

installation or service of the design will be 

impractical, or that the design option will 

have a material adverse impact on the utility 

of the product, or if the design option will 

have a material adverse impact on safety or 

health. DOE will also be able to eliminate 

from consideration proprietary design 

options that represent a unique pathway to 

achieving a given efficiency level. This 

screening will be done at the outset of a 

rulemaking. 

(d) Fully consider non-regulatory 

approaches. The Department seeks to 

understand the effects of market forces and 

voluntary programs on encouraging the 

purchase of energy efficient products so that 

the incremental impacts of a new or revised 

standard can be accurately assessed and the 

Department can make informed decisions 

about where standards and voluntary 

programs can be used most effectively. DOE 

will continue to be able to support voluntary 

efforts by manufacturers, retailers, utilities, 

and others to increase product/equipment 

efficiency. 

(e) Conduct thorough analysis of impacts. 

In addition to understanding the aggregate 

social and private costs and benefits of 

standards, the Department seeks to 

understand the distribution of those costs 

and benefits among consumers, 

manufacturers, and others, as well as the 

uncertainty associated with these analyses of 

costs and benefits, so that any adverse 

impacts on subgroups and uncertainty 

concerning any adverse impacts can be fully 

considered in selecting a standard. DOE will 

be able to consider the variability of impacts 

on significant groups of manufacturers and 

consumers in addition to aggregate social and 

private costs and benefits, report the range of 

uncertainty associated with these impacts, 

and take into account cumulative impacts of 

regulation on manufacturers. The Department 

will also be able to conduct appropriate 

analyses to assess the impact that new or 

amended test procedures will have on 

manufacturers and consumers. 

(f) Use transparent and robust analytical 

methods. The Department seeks to use 

qualitative and quantitative analytical 

methods that are fully documented for the 

public and that produce results that can be 

explained and reproduced, so that the 

analytical underpinnings for policy decisions 

on standards are as sound and well-accepted 

as possible. 

(g) Support efforts to build consensus on 

standards. The Department seeks to 

encourage development of consensus 

proposals for new or revised standards 

because standards with such broad-based 

support are likely to balance effectively the 

various interests affected by such standards. 

2. Scope 

The procedures, interpretations, and 

policies described in this appendix apply to 

rulemakings concerning new or revised 

Federal energy conservation standards and 

test procedures, and related rule documents 

(i.e., coverage determinations) for consumer 

products in Part A and commercial and 

industrial equipment under Part A–1 of the 

Energy Policy and Conservation Act (EPCA), 

as amended, except covered ASHRAE 

equipment in Part A–1 are governed 

separately under section 9 in this appendix. 

3. Application of the Process Rule 

(a) This appendix contains procedures, 

interpretations, and policies that are 

generally applicable to the development of 

energy conservation standards and test 

procedures. The Department may, as 

necessary, deviate from this appendix to 

account for the specific circumstances of a 

particular rulemaking. 

(b) This appendix is not intended to, and 

does not, create any right or benefit, 

substantive or procedural, enforceable at law 

or in equity. 

4. Setting Priorities for Rulemaking Activity 

(a) In establishing its priorities for 

undertaking energy conservation standards 

and test procedure rulemakings, DOE will 

consider the following factors, consistent 

with applicable legal obligations: 

(1) Potential energy savings; 

(2) Potential social and private, including 

environmental or energy security, benefits; 

(3) Applicable deadlines for rulemakings; 

(4) Incremental DOE resources required to 

complete the rulemaking process; 

(5) Other relevant regulatory actions 

affecting the products/equipment; 

(6) Stakeholder recommendations; 

(7) Evidence of energy efficiency gains in 

the market absent new or revised standards; 

(8) Status of required changes to test 

procedures; and 

(9) Other relevant factors. 

(b) DOE will offer the opportunity to 

provide input on prioritization of 

rulemakings through a request for comment 

as DOE begins preparation of its Regulatory 

Agenda each spring. 

5. Coverage Determination Rulemakings 

DOE has discretion to conduct proceedings 

to determine whether additional consumer 

products and commercial/industrial 

equipment should be covered under EPCA if 

certain statutory criteria are met. (42 U.S.C. 

6292(b) and 42 U.S.C. 6295(l) for consumer 

products; 42 U.S.C. 6312(b) for commercial/ 

industrial equipment) This section describes 

the process to be used in establishing 

coverage for consumer products and 

commercial/industrial equipment. 

(a) Pre-Notice of Proposed Rulemaking 

(‘‘NOPR’’) Stage. In determining whether to 

consider establishing coverage for a 

consumer product or commercial/industrial 

equipment, DOE may publish one or more 

preliminary documents in the Federal 

Register intended to gather information on 

key issues. Such document(s) will be 

published in the Federal Register, with 

accompanying documents referenced and 

posted in the appropriate docket. 

(b) NOPR Stage. If DOE determines to 

proceed with a coverage determination 

process, the Department will publish a notice 

of proposed determination, providing an 

opportunity for public comment of not less 

than 60 days, in which DOE will explain how 

such products/equipment that it seeks to 

designate as ‘‘covered’’ meet the statutory 

criteria for coverage and why such coverage 

is ‘‘necessary or appropriate’’ to carry out the 

purposes of EPCA. In the case of commercial 

equipment, DOE will follow the same 

process, except that the Department must 

demonstrate that coverage of the equipment 

type is ‘‘necessary’’ to carry out the purposes 

of EPCA. 

(c) Final Rule. DOE will publish a Final 

Rule in the Federal Register that establishes 

the scope of coverage for the product/ 

equipment, responds to public comments 

received on the NOPR, and explains how 

inclusion of the newly covered product/ 

equipment meets the statutory criteria for 

coverage and why such coverage is necessary 

or appropriate to carry out the purposes of 

EPCA. DOE will finalize coverage for a 

product/equipment prior to publication of a 

proposed rule to establish a test procedure. 

(d) Scope of Coverage Revisions. If, during 

the substantive rulemaking proceedings to 

establish test procedures or energy 

conservation standards after completing a 

coverage determination, DOE finds it 

necessary and appropriate to amend the 

scope of coverage, DOE will propose an 

amended coverage determination and finalize 

coverage prior to moving forward with the 

test procedure or standards rulemaking. 

6. Process for Developing Energy 

Conservation Standards 

This section describes the process to be 

used in developing energy conservation 

standards for covered products and 

equipment other than those covered 

equipment subject to ASHRAE/IES Standard 

90.1. 

(a) Pre-NOPR Stage. (1) General. In 

determining whether to consider establishing 

or amending any energy conservation 

standard, DOE will publish one or more 

preliminary documents in the Federal 

Register intended to gather information on 

key issues. Such document(s) could take 

several forms depending upon the specific 

proceeding, including a framework 

document, request for information (RFI), 

notice of data availability (NODA), 

preliminary analysis, or advance notice of 

proposed rulemaking (ANOPR). Such 

document(s) will be published in the Federal 

Register, with any accompanying documents 

referenced and posted in the appropriate 

docket. 

(2) Satisfaction of Statutory Criteria. As 

part of such pre-NOPR-stage document(s), 

DOE will solicit submission of comments, 

data, and information on whether DOE 

should proceed with the rulemaking, 

including whether any new or amended rule 

would satisfy the relevant statutory criteria to 

be cost-effective, economically justified, 

technologically feasible, and result in a 

significant savings of energy. Based on the 

information received in response to such 

request and its own analysis, DOE will 

determine whether to proceed with a 

rulemaking for a new or amended energy 

conservation standard. If DOE determines at 

any point in the pre-NOPR stage that no 

candidate standard level for a new or 

amended standard is likely to satisfy all of 

the applicable statutory criteria (i.e., to be 

technologically feasible and economically 


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justified and result in significant energy 

savings), DOE will announce that conclusion 

in the Federal Register and proceed with 

notice-and-comment rulemaking that 

proposes a determination not to adopt new 

or amended standards. DOE notes that it will, 

consistent with its statutory obligations, 

consider both cost effectiveness and 

economic justification when issuing a 

determination not to amend a standard. If 

DOE receives sufficient information 

suggesting it could justify a new or amended 

standard or the information received is 

inconclusive with regard to the statutory 

criteria, DOE will move forward with the 

rulemaking to issue or amend an energy 

conservation standard. In those instances 

where the available information either 

suggested that a new or amended energy 

conservation standard might be justified or in 

which the information was inconclusive on 

this point, and DOE undertakes a rulemaking 

to establish or amend an energy conservation 

standard, DOE may still ultimately determine 

that such a standard is not economically 

justified, technologically feasible or would 

not result in a significant savings of energy 

at a later stage of the rulemaking. 

(3) Design options. (i) General. Once the 

Department has initiated a rulemaking for a 

specific product/equipment but before 

publishing a proposed rule to establish or 

amend standards, DOE will typically identify 

the product/equipment categories and design 

options to be analyzed in detail, as well as 

those design options to be eliminated from 

further consideration. During the pre-NOPR 

stage of the rulemaking, interested parties 

may be consulted to provide information on 

key issues, including potential design 

options, through a variety of rulemaking 

documents. 

(ii) Identification and screening of design 

options. During the pre-NOPR phase of the 

rulemaking process, the Department will 

typically develop a list of design options for 

consideration. Initially, the candidate design 

options will encompass all those 

technologies considered to be technologically 

feasible. Following the development of this 

initial list of design options, DOE will review 

each design option based on the factors 

described in paragraph (a)(3)(iii) of this 

section and the policies stated in section 7 

of this Appendix (i.e., Policies on Selection 

of Standards). The reasons for eliminating or 

retaining any design option at this stage of 

the process will be fully documented and 

published as part of the NOPR and as 

appropriate for a given rule, in the pre-NOPR 

document(s). The technologically feasible 

design options that are not eliminated in this 

screening analysis will be considered further 

in the Engineering Analysis described in 

paragraph (a)(4) of this section. 

(iii) Factors for screening of design options. 

The factors for screening design options 

include: 

(A) Technological feasibility. Technologies 

incorporated in commercial products (or 

equipment) or in working prototypes will be 

considered technologically feasible. 

(B) Practicability to manufacture, install 

and service. If mass production of a 

technology under consideration for use in 

commercially-available products (or 

equipment) and reliable installation and 

servicing of the technology could be achieved 

on the scale necessary to serve the relevant 

market at the time of the effective date of the 

standard, then that technology will be 

considered practicable to manufacture, 

install, and service. 

(C) Adverse Impacts on Product Utility or 

Product Availability. 

(D) Adverse Impacts on Health or Safety. 

(E) Unique-Pathway Proprietary 

Technologies. If a design option utilizes 

proprietary technology that represents a 

unique pathway to achieving a given 

efficiency level, that technology will not be 

considered further. 

(4) Engineering analysis of design options 

and selection of candidate standard levels. 

After design options are identified and 

screened, DOE will perform the engineering 

analysis and the benefit/cost analysis and 

select the candidate standard levels based on 

these analyses. The results of the analyses 

will be published in a Technical Support 

Document (TSD) to accompany the 

appropriate rulemaking documents. 

(i) Identification of engineering analytical 

methods and tools. DOE will select the 

specific engineering analysis tools (or 

multiple tools, if necessary, to address 

uncertainty) to be used in the analysis of the 

design options identified as a result of the 

screening analysis. 

(ii) Engineering and life-cycle cost analysis 

of design options. DOE and its contractors 

will perform engineering and life-cycle cost 

analyses of the design options. 

(iii) Review by stakeholders. Interested 

parties will have the opportunity to review 

the results of the engineering and life-cycle 

cost analyses. If appropriate, a public 

workshop will be conducted to review these 

results. The analyses will be revised as 

appropriate on the basis of this input. 

(iv) New information relating to the factors 

used for screening design options. If further 

information or analysis leads to a 

determination that a design option, or a 

combination of design options, has 

unacceptable impacts, that design option or 

combination of design options will not be 

included in a candidate standard level. 

(v) Selection of candidate standard levels. 

Based on the results of the engineering and 

life-cycle cost analysis of design options and 

the policies stated in paragraph (a)(3)(iii) of 

this section, DOE will select the candidate 

standard levels for further analysis. 

(5) Analysis of impacts and selection of 

proposed standard level. If DOE has 

determined preliminarily that a candidate 

standard level is likely to produce the 

maximum improvement in energy efficiency 

that is both technologically feasible and 

economically justified and constitutes 

significant energy savings, economic analyses 

of the impacts of the candidate standard 

levels will be conducted. The Department 

will propose new or amended standards in a 

subsequent NOPR based on the results of the 

impact analysis. 

(i) Identification of issues for analysis. The 

Department, in consideration of comments 

received, will identify issues that will be 

examined in the impacts analysis. 

(ii) Identification of analytical methods 

and tools. DOE will select the specific 

economic analysis tools (or multiple tools, if 

necessary, to address uncertainty) to be used 

in the analysis of the candidate standard 

levels. 

(iii) Analysis of impacts. DOE will conduct 

the analysis of the impacts of candidate 

standard levels. 

(iv) Factors to be considered in selecting a 

proposed standard. The factors to be 

considered in selection of a proposed 

standard include: 

(A) Impacts on manufacturers. The analysis 

of manufacturer impacts will include: 

Estimated impacts on cash flow; assessment 

of impacts on manufacturers of specific 

categories of products/equipment and small 

manufacturers; assessment of impacts on 

manufacturers of multiple product-specific 

Federal regulatory requirements, including 

efficiency standards for other products and 

regulations of other agencies; and impacts on 

manufacturing capacity, employment, and 

capital investment. 

(B) Private impacts on consumers. The 

analysis of consumer impacts will include: 

Estimated private energy savings impacts on 

consumers based on regional average energy 

prices and energy usage; assessments of the 

variability of impacts on subgroups of 

consumers based on major regional 

differences in usage or energy prices and 

significant variations in installation costs or 

performance; consideration of changes to 

product utility, changes to purchase rate and/ 

or costs of products, and other impacts of 

likely concern to all or some consumers, 

based to the extent practicable on direct 

input from consumers; estimated life-cycle 

cost with sensitivity analysis; and 

consideration of the increased first cost to 

consumers and the time required for energy 

cost savings to pay back these first costs. 

(C) Impacts on competition, including 

industry concentration analysis. 

(D) Impacts on utilities. The analysis of 

utility impacts will include estimated 

marginal impacts on electric and gas utility 

generation and capacity. 

(E) National energy, economic, and 

employment impacts. The analysis of 

national energy, economic, and employment 

impacts will include: Estimated energy 

savings by fuel type; estimated net present 

value of benefits to all consumers; sensitivity 

analyses using high and low discount rates 

reflecting both private transactions and social 

discount rates and high and low energy price 

forecasts; and estimates of the direct and 

indirect impacts on employment by 

appliance manufacturers, relevant service 

industries, energy suppliers, suppliers of 

complementary and substitution products, 

and the economy in general. 

(F) Impacts on the environment. The 

analysis of environmental impacts will 

include estimated impacts on emissions of 

carbon and relevant criteria pollutants. 

(G) Impacts of non-regulatory approaches. 

The analysis of energy savings and consumer 

impacts will incorporate an assessment of the 

impacts of market forces and existing 

voluntary programs in promoting product/ 

equipment efficiency, usage, and related 

characteristics in the absence of updated 

efficiency standards. 

(H) New information relating to the factors 

used for screening design options. 


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(6) Public comment and hearing. The 

length of the public comment period for preNOPR rulemaking documents will be 

determined on a case-by-case basis and may 

vary depending upon the circumstances of 

the particular rulemaking. For pre-NOPR 

documents, DOE will determine whether a 

public hearing is appropriate. 

(7) Revisions based on comments. Based on 

consideration of the comments received, any 

necessary changes to the engineering 

analysis, life-cycle cost analysis, or the 

candidate standard levels will be made. 

(b) NOPR Stage. (1) Documentation of 

decisions on proposed standard selection. 

The Department will publish a NOPR in the 

Federal Register that proposes standard 

levels and explains the basis for the selection 

of those proposed levels, and DOE will post 

on its website a draft TSD documenting the 

analysis of impacts. The draft TSD will also 

be posted in the appropriate docket at 

https://www.regulations.gov. As required by 

42 U.S.C. 6295(p)(1) of EPCA, the NOPR also 

will describe the maximum improvement in 

energy efficiency or maximum reduction in 

energy use that is technologically feasible 

and, if the proposed standards would not 

achieve these levels, the reasons for 

proposing different standards. 

(2) Public comment and hearing. There 

will be not less than 60 days for public 

comment on the NOPR, with at least one 

public hearing or workshop. (42 U.S.C. 

6295(p)(2) and 42 U.S.C. 6306) 

(3) Revisions to impact analyses and 

selection of final standard. Based on the 

public comments received, DOE will review 

the proposed standard and impact analyses, 

and make modifications as necessary. If 

major changes to the analyses are required at 

this stage, DOE will publish a Supplemental 

Notice of Proposed Rulemaking (SNOPR), 

when required. DOE may also publish a 

NODA or RFI, where appropriate. 

(c) Final Rule Stage. The Department will 

publish a Final Rule in the Federal Register 

that promulgates standard levels, responds to 

public comments received on the NOPR (and 

SNOPR if applicable), and explains how the 

selection of those standards meets the 

statutory requirement that any new or 

amended energy conservation standard 

produces the maximum improvement in 

energy efficiency that is both technologically 

feasible and economically justified and 

constitutes significant energy savings, 

accompanied by a final TSD. 

7. Policies on Selection of Standards 

(a) Purpose. (1) Section 6 describes the 

process that will be used to consider new or 

revised energy efficiency standards and lists 

a number of factors and analyses that will be 

considered at specified points in the process. 

Department policies concerning the selection 

of new or revised standards, and decisions 

preliminary thereto, are described in this 

section. These policies are intended to 

elaborate on the statutory criteria provided in 

42 U.S.C. 6295. 

(2) The procedures described in this 

section are intended to assist the Department 

in making the determinations required by 

EPCA and do not preclude DOE’s 

consideration of any other information 

consistent with the relevant statutory criteria. 

The Department will consider pertinent 

information in determining whether a new or 

revised standard is consistent with the 

statutory criteria. 

(b) Screening design options. These factors 

will be considered as follows in determining 

whether a design option will receive any 

further consideration: 

(1) Technological feasibility. Technologies 

that are not incorporated in commercial 

products or in commercially viable, existing 

prototypes will not be considered further. 

(2) Practicability to manufacture, install 

and service. If it is determined that mass 

production of a technology in commercial 

products and reliable installation and 

servicing of the technology could not be 

achieved on the scale necessary to serve the 

relevant market at the time of the compliance 

date of the standard, then that technology 

will not be considered further. 

(3) Impacts on product utility. If a 

technology is determined to have significant 

adverse impact on the utility of the product/ 

equipment to subgroups of consumers, or 

result in the unavailability of any covered 

product type with performance 

characteristics (including reliability), 

features, sizes, capacities, and volumes that 

are substantially the same as products 

generally available in the U.S. at the time, it 

will not be considered further. 

(4) Safety of technologies. If it is 

determined that a technology will have 

significant adverse impacts on health or 

safety, it will not be considered further. 

(5) Unique-pathway proprietary 

technologies. If a technology has proprietary 

protection and represents a unique pathway 

to achieving a given efficiency level, it will 

not be considered further, due to the 

potential for monopolistic concerns. 

(c) Identification of candidate standard 

levels. Based on the results of the engineering 

and cost/benefit analyses of design options, 

DOE will identify the candidate standard 

levels for further analysis. Candidate 

standard levels will be selected as follows: 

(1) Costs and savings of design options. 

Design options that have payback periods 

that exceed the median life of the product or 

which result in life-cycle cost increases 

relative to the base case, using typical fuel 

costs, usage, and private discount rates, will 

not be used as the basis for candidate 

standard levels. 

(2) Further information on factors used for 

screening design options. If further 

information or analysis leads to a 

determination that a design option, or a 

combination of design options, has 

unacceptable impacts under the policies 

stated in this Appendix, that design option 

or combination of design options will not be 

included in a candidate standard level. 

(3) Selection of candidate standard levels. 

Candidate standard levels, which will be 

identified in the pre-NOPR documents and 

on which impact analyses will be conducted, 

will be based on the remaining design 

options. 

(i) The range of candidate standard levels 

will typically include: 

(A) The most energy-efficient combination 

of design options; 

(B) The combination of design options with 

the lowest life-cycle cost; and 

(C) A combination of design options with 

a payback period of not more than three 

years. 

(ii) Candidate standard levels that 

incorporate noteworthy technologies or fill in 

large gaps between efficiency levels of other 

candidate standard levels also may be 

selected. 

(d) Pre-NOPR Stage. New information 

provided in public comments on any preNOPR documents will be considered to 

determine whether any changes to the 

candidate standard levels are needed before 

proceeding to the analysis of impacts. 

(e)(1) Selection of proposed standard. 

Based on the results of the analysis of 

impacts, DOE will select a standard level to 

be proposed for public comment in the 

NOPR. As required under 42 U.S.C. 

6295(o)(2)(A), any new or revised standard 

must be designed to achieve the maximum 

improvement in energy efficiency that is 

determined to be both technologically 

feasible and economically justified. 

(2) Statutory policies. The fundamental 

policies concerning the selection of standards 

include: 

(i) A trial standard level will not be 

proposed or promulgated if the Department 

determines that it is not both technologically 

feasible and economically justified. (42 

U.S.C. 6295(o)(2)(A) and 42 U.S.C. 

6295(o)(3)(B)) For a trial standard level to be 

economically justified, the Secretary must 

determine that the benefits of the standard 

exceed its burdens by, to the greatest extent 

practicable, considering the factors listed in 

42 U.S.C. 6295(o)(2)(B)(i). A standard level is 

subject to a rebuttable presumption that it is 

economically justified if the payback period 

is three years or less. (42 U.S.C. 

6295(o)(2)(B)(iii)) 

(ii) If the Department determines that 

interested persons have established by a 

preponderance of the evidence that a 

standard level is likely to result in the 

unavailability in the United States of any 

covered product/equipment type (or class) 

with performance characteristics (including 

reliability), features, sizes, capacities, and 

volumes that are substantially the same as 

products generally available in the U.S. at the 

time of the determination, then that standard 

level will not be proposed. (42 U.S.C. 

6295(o)(4)) 

(iii) If the Department determines that a 

standard level would not result in significant 

conservation of energy, that standard level 

will not be proposed. (42 U.S.C. 

6295(o)(3)(B)) 

(f) Selection of a final standard. New 

information provided in the public 

comments on the NOPR and any analysis by 

the Department of Justice concerning impacts 

on competition of the proposed standard will 

be considered to determine whether issuance 

of a new or amended energy conservation 

standard produces the maximum 

improvement in energy efficiency that is both 

technologically feasible and economically 

justified and still constitutes significant 

energy savings or whether any change to the 

proposed standard level is needed before 

proceeding to the final rule. The same 


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policies used to select the proposed standard 

level, as described in this section, will be 

used to guide the selection of the final 

standard level or a determination that no new 

or amended standard is justified. 

8. Test Procedures 

(a) Pre-NOPR Stage. (1) General. In 

determining whether to consider establishing 

or amending any test procedure, DOE will 

publish one or more preliminary documents 

in the Federal Register (e.g., an RFI or 

NODA) intended to gather information on 

key issues. 

(2) Satisfaction of Statutory Criteria. As 

part of such document(s), DOE will solicit 

submission of comments, data, and 

information on whether DOE should proceed 

with the rulemaking, including whether: A 

new test procedure would satisfy the relevant 

statutory criteria that test procedures be 

reasonably designed to produce test results 

which measure energy efficiency, energy use, 

water use (in the case of showerheads, 

faucets, water closets and urinals), or 

estimated annual operating cost of a covered 

product during a representative average use 

cycle or period of use, as determined by the 

Secretary, and shall not be unduly 

burdensome to conduct; or an amended test 

procedure would more fully or accurately 

comply with the aforementioned statutory 

criteria. Based on the information received in 

response to such request and its own 

analysis, DOE will determine whether to 

proceed with a rulemaking for a new or 

amended test procedure. 

(3) If DOE determines that a new or 

amended test procedure would not satisfy the 

applicable statutory criteria, DOE will engage 

in notice-and-comment rulemaking to issue a 

determination that a new or amended test 

procedure is not warranted. 

(4) If DOE receives sufficient information 

suggesting a new or amended test procedure 

may satisfy the applicable statutory criteria 

or the information received is inconclusive 

with regard to the statutory criteria, DOE will 

move forward with the rulemaking to issue 

or amend a test procedure. 

(5) In those instances where the available 

information either suggested that a new or 

amended test procedure might be warranted 

or in which the information was inconclusive 

on this point, and DOE undertakes a 

rulemaking to establish or amend a test 

procedure, DOE may still ultimately 

determine that such a test procedure does not 

satisfy the applicable statutory criteria at a 

later stage of the rulemaking. 

(6) Public comment and hearing. The 

length of the public comment period for preNOPR rulemaking documents will be 

determined on a case-by-case basis and may 

vary depending upon the circumstances of 

the particular rulemaking. For pre-NOPR 

documents, DOE will determine whether a 

public hearing is appropriate. 

(b) NOPR Stage. (1) Documentation of 

decisions on proposed test procedure. The 

Department will publish a NOPR in the 

Federal Register that proposes a new or 

amended test procedure and explains how 

the test procedure satisfies the applicable 

statutory criteria. 

(2) Public comment and hearing. There 

will be not less than 60 days for public 

comment on the NOPR, with at least one 

public hearing or workshop. (42 U.S.C. 

6295(p)(2) and 42 U.S.C. 6306) 

(3) Revisions to the analyses and 

establishment of a final test procedure. Based 

on the public comments received, DOE will 

review the proposed test procedure, and 

make modifications as necessary. As part of 

this process, DOE may issue an RFI, NODA, 

SNOPR, or other rulemaking document, as 

appropriate. 

(c) Final Rule Stage. The Department will 

publish a Final Rule in the Federal Register 

that establishes or amends a test procedure, 

responds to public comments received on the 

NOPR (and any subsequent rulemaking 

documents), and explains how the new or 

amended test procedure meets the applicable 

statutory requirements. 

(d) Adoption of Industry Test Methods. 

DOE will adopt industry test procedure 

standards as DOE test procedures for covered 

products and equipment, but only if DOE 

determines that such procedures would not 

be unduly burdensome to conduct and would 

produce test results that reflect the energy 

efficiency, energy use, water use (as specified 

in EPCA) or estimated operating costs of that 

equipment during a representative average 

use cycle. DOE may also adopt industry test 

procedure standards with modifications or 

craft its own procedures as necessary to 

ensure compatibility with the relevant 

statutory requirements, as well as DOE’s 

compliance, certification, and enforcement 

requirements. 

(e) Issuing final test procedure 

modification. Test procedure rulemakings 

establishing methodologies used to evaluate 

proposed energy conservation standards will 

be finalized prior to publication of a NOPR 

proposing new or amended energy 

conservation standards. 

(f) Effective Date of Test Procedures. If 

required only for the evaluation and issuance 

of updated efficiency standards, use of the 

modified test procedures typically will not be 

required until the implementation date of 

updated standards. 

9. ASHRAE Equipment 

EPCA provides unique statutory 

requirements and a specific set of timelines 

for certain enumerated types of commercial 

and industrial equipment (generally, 

commercial water heaters, commercial 

packaged boilers, commercial airconditioning and heating equipment, and 

packaged terminal air conditioners and heat 

pumps (i.e., ‘‘ASHRAE equipment’’)). 

(a) ASHRAE Trigger Rulemakings for 

Energy Conservation Standards. Pursuant to 

EPCA’s statutory scheme for covered 

ASHRAE equipment, DOE is required to 

consider amending the existing Federal 

energy conservation standards for ASHRAE 

equipment when ASHRAE Standard 90.1 is 

amended with respect to standards or design 

requirements applicable to such equipment. 

(1) Not later than 180 days after the 

amendment of ASHRAE Standard 90.1, DOE 

will publish in the Federal Register for 

public comment an analysis of the energy 

savings potential of amended energy 

efficiency standards for the affected 

equipment. 

(2) Not later than 18 months after the 

amendment of ASHRAE Standard 90.1, DOE 

must adopt amended energy conservation 

standards at the new efficiency level in 

ASHRAE Standard 90.1 as the uniform 

national standard for the affected equipment, 

unless DOE determines by rule, and 

supported by clear and convincing evidence, 

that a more-stringent standard would result 

in significant additional conservation of 

energy and is technologically feasible and 

economically justified. In such case, DOE 

must adopt the more-stringent standard for 

the affected equipment not later than 30 

months after amendment of ASHRAE 

Standard 90.1. 

(3) Regarding amendments to ASHRAE 

Standard 90.1 involving energy conservation 

standards, DOE considers an amendment of 

a standard level to occur when an updated 

version of ASHRAE Standard 90.1 publishes 

(i.e., not at the time that an addendum to 

ASHRAE Standard 90.1 is released or 

approved). In addition, DOE considers an 

amendment of standard levels in ASHRAE 

Standard 90.1 to be only those changes 

resulting in an increase in stringency of 

standard levels relative to the current Federal 

standards or the adoption of a design 

requirement. 

(b) ASHRAE Trigger Rulemakings for Test 

Procedures. Pursuant to EPCA’s statutory 

scheme for covered ASHRAE equipment, 

DOE is required to consider amending the 

existing Federal test procedures for such 

equipment when ASHRAE Standard 90.1 is 

amended with respect to test procedures 

applicable to such equipment. 

(1) DOE shall amend the test procedure for 

ASHRAE equipment, as necessary, to be 

consistent with the amended ASHRAE 

Standard 90.1, unless DOE determines by 

rule, and supported by clear and convincing 

evidence, that to do so would not meet the 

requirements in 42 U.S.C. 6314(a)(2)–(3), 

which generally provide that the test 

procedure must produce results which reflect 

energy efficiency, energy use, and estimated 

operating costs during a representative 

average use cycle and not be unduly 

burdensome to conduct. If DOE makes such 

a determination, DOE may establish an 

amended test procedure for such equipment 

that meets the requirements in 42 U.S.C. 

6314(a)(2)–(3). 

(2) With regard to test procedures for 

ASHRAE equipment, EPCA requires DOE to 

adopt test procedures consistent with 

applicable industry test standards. DOE notes 

that the statutory language ‘‘consistent with’’ 

provides some flexibility in adopting the 

amended industry test procedure. As EPCA 

does not require DOE to adopt a test 

procedure identical to the applicable 

industry test standard, DOE may make 

modifications that are consistent with the 

applicable industry test standard. Further, 

DOE is not required to adopt or align with 

sections of the industry test standard that are 

not necessary for the method of test for 

metrics included in the DOE test procedure 

(e.g., sections of the industry test procedure 

regarding selection of models for testing 

under an industry certification program, 

verification of represented values and the 

associated tolerances, and operational 


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requirements need not be adopted or aligned 

with by DOE). 

(c) ASHRAE Lookback Rulemakings. EPCA 

also requires that DOE periodically consider 

amending energy conservation standards and 

test procedures for ASHRAE equipment. 

(1) EPCA requirements for ASHRAE 

equipment outside of the ASHRAE Standard 

90.1 process include: 

(i) Energy Conservation Standards. Every 6 

years, DOE shall conduct an evaluation of 

each class of covered equipment. DOE shall 

publish either a notice of determination that 

standards do not need to be amended 

(because they would not result in significant 

additional conservation of energy and/or 

would not be technologically feasible and/or 

economically justified) or a notice of 

proposed rulemaking including new 

proposed standards (based on the criteria and 

procedures in 42 U.S.C. 6313(a)(6)(B) and 

supported by clear and convincing evidence). 

(A) If DOE issues a notice of proposed 

rulemaking, it shall publish a final rule no 

more than 2 years later. 

(B) If DOE determines that a standard does 

not need to be amended, not later than 3 

years after such a determination, DOE must 

publish either a notice of determination that 

standards do not need to be amended 

(because they would not result in significant 

additional conservation of energy and/or 

would not be technologically feasible and/or 

economically justified) or a notice of 

proposed rulemaking including new 

proposed standards (based on the criteria and 

procedures in in 42 U.S.C. 6313(a)(6)(B) and 

supported by clear and convincing evidence). 

(ii) Test Procedures. At least once every 7 

years, DOE shall conduct an evaluation, and 

if DOE determines, supported by clear and 

convincing evidence, that amended test 

procedures would more accurately or fully 

comply with the requirements in 42 U.S.C. 

6314(a)(2)–(3), it shall prescribe test 

procedures for the applicable equipment. 

DOE notes that EPCA requires test 

procedures that are ‘‘consistent with’’ 

industry test procedures. As noted in 

paragraph (b)(2) of this section, this affords 

DOE some flexibility in making 

modifications to the DOE test procedure that 

are consistent with the industry test 

procedure. Otherwise, DOE shall publish a 

notice of determination not to amend a test 

procedure. 

(2) DOE’s 6-year-lookback and 7-yearlookback review requirements, as detailed in 

this section, are regulatory obligations 

specific to DOE and not satisfied by any 

ASHRAE action. Specifically, ASHRAE 

reviewing and reaffirming (but not amending) 

a standard or test procedure does not 

eliminate DOE’s separate requirement to 

review each class of covered equipment. 

10. Direct Final Rules 

In accordance with 42 U.S.C. 6295(p)(4), 

on receipt of a joint proposal that is 

submitted by interested persons that are 

fairly representative of relevant points of 

view, DOE may issue a direct final rule (DFR) 

establishing energy conservation standards 

for a covered product or equipment if DOE 

determines the recommended standard is in 

accordance with 42 U.S.C. 6295(o) or 42 

U.S.C. 6313(a)(6)(B) as applicable. To be 

‘‘fairly representative of relevant points of 

view’’ the group submitting a joint statement 

must, where appropriate, include larger 

concerns and small businesses in the 

regulated industry/manufacturer community, 

energy advocates, energy utilities, 

consumers, and States. However, it will be 

necessary to evaluate the meaning of ‘‘fairly 

representative’’ on a case-by-case basis, 

subject to the circumstances of a particular 

rulemaking, to determine whether fewer or 

additional parties must be part of a joint 

statement in order to be ‘‘fairly representative 

of relevant points of view.’’ 

11. Principles for Distinguishing Between 

Effective and Compliance Dates 

(a) Dates, generally. The effective and 

compliance dates for either DOE test 

procedures or DOE energy conservation 

standards are typically not identical, and 

these terms should not be used 

interchangeably. 

(b) Effective date. The effective date is the 

date a rule is legally operative after being 

published in the Federal Register. 

(c) Compliance date. (1) For test 

procedures, the compliance date is the 

specific date when manufacturers are 

required to use the new or amended test 

procedure requirements to make 

representations concerning the energy 

efficiency or use of a product, including 

certification that the covered product/ 

equipment meets an applicable energy 

conservation standard. 

(2) For energy conservation standards, the 

compliance date is the specific date upon 

which manufacturers are required to meet the 

new or amended standards for applicable 

covered products/equipment that are 

distributed in interstate commerce. 

12. Principles for the Conduct of the 

Engineering Analysis 

(a) The purpose of the engineering analysis 

is to develop the relationship between 

efficiency and cost of the subject product/ 

equipment. Another important role of the 

engineering analysis is to identify the 

maximum technologically feasible level. The 

maximum technologically feasible level is 

one that can be reached through efficiency 

improvements and/or design options, both 

commercially feasible and in working 

prototypes. The Department will consider 

two elements in the engineering analysis: 

The selection of efficiency levels to analyze, 

as discussed in paragraph (b) of this section; 

and the determination of product cost at each 

efficiency level, as discussed in paragraph (c) 

of this section. From the efficiency/cost 

relationship developed in the engineering 

analysis, measures such as payback, lifecycle cost, and energy savings can be 

developed. The Department will identify 

issues that will be examined in the 

engineering analysis and the types of 

specialized expertise that may be required. 

DOE will select appropriate contractors, 

subcontractors, and expert consultants, as 

necessary, to perform the engineering 

analysis. DOE will minimize uncertainties by 

using measures such as test data or 

component or material supplier information 

where available. Also, the Department will 

consider data, information, and analyses 

received from interested parties for use in the 

analysis wherever feasible. 

(b) The Department will typically use one 

of two approaches to develop energy 

efficiency levels for the engineering analysis: 

Relying on observed efficiency levels in the 

market (i.e., the efficiency-level approach); or 

determining the incremental efficiency 

improvements associated with incorporating 

specific design options to a baseline model 

(i.e., the design-option approach). The 

Department will consider the availability of 

data and analytical tools, the resource needs, 

and public comments when determining the 

best approach or combination of approaches 

for an engineering analysis. 

(1) Using the efficiency-level approach, the 

efficiency levels established for the analysis 

will be determined based on the market 

distribution of existing products. This 

approach typically entails compiling a 

comprehensive list of products available on 

the market, such as from DOE’s product 

certification database and conducting DOE 

energy performance tests to validate the 

certified ratings. 

(2) Using the design option approach, the 

efficiency levels established for the analysis 

will be determined through detailed 

engineering calculations and/or computer 

simulations of the efficiency improvements 

from implementing specific design options 

that have been identified in the technology 

assessment and screening analysis. The 

design option approach will typically be 

used when a comprehensive database of 

certified models is unavailable. In certain 

rulemakings, the efficiency-level approach 

(based on actual products on the market) will 

be extended using the design option 

approach to interpolate to define ‘‘gap fill’’ 

levels (to bridge large gaps between other 

identified efficiency levels) and/or to 

extrapolate to the ‘‘max-tech’’ level (the level 

that DOE determines is the maximum 

achievable efficiency level, particularly in 

cases where the ‘‘max-tech’’ level exceeds the 

maximum efficiency level currently available 

on the market). The Department will identify, 

modify, or develop any engineering models 

necessary to predict the efficiency impact of 

any one or combination of design options on 

the product/equipment as measured by the 

applicable DOE test procedure. 

(3) The cost-efficiency curve and a detailed 

description of any engineering models will 

be available to stakeholders during the preNOPR stage of the rulemaking. 

(c) The Department will typically conduct 

the cost analysis using one or a combination 

of approaches depending on a suite of 

factors, including the availability and 

reliability of public information, 

characteristics of the subject product/ 

equipment, and the availability and 

timeliness of purchasing the product/ 

equipment on the market. The cost 

approaches are summarized as follows: 

(1) Physical teardowns: Under this 

approach, the Department will physically 

dismantle a commercially-available product/ 

equipment model, component-bycomponent, to develop a detailed bill of 

materials for the model. The core function of 


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physical teardowns is to support the costing 

analysis; however, it serves other purposes as 

well. The teardown process provides 

information on the range of design options 

used to improve energy efficiency and 

informs the technology assessment. 

Performance testing and teardowns are used 

to define the baseline, against which 

incremental energy savings and incremental 

costs are compared. Teardowns are also used 

to identify technology options for 

consideration in the screening analysis and 

design paths for the Engineering Analysis. 

(2) Catalog teardowns: The Department 

will often complement physical teardowns 

with catalogue (a.k.a., ‘‘virtual’’) teardowns, 

thereby allowing the analysis to capture a 

broader range of capacities and other features 

within a product family. In lieu of physically 

deconstructing the product/equipment, the 

Department will identify each component 

using parts diagrams (available from 

manufacturer websites or appliance repair 

websites, for example) to develop the bill of 

materials for the product/equipment. An 

analysis comprised of only virtual teardowns 

is also possible for product categories where 

features are well-documented. 

(3) Price surveys: If neither a physical nor 

catalog teardown is feasible, or if they would 

be cost-prohibitive or otherwise impractical, 

the Department will conduct price surveys 

using publicly-available pricing data 

published on major online retailer websites 

and/or by soliciting prices from distributors 

and other commercial channels. 

13. Principles for the Analysis of Impacts on 

Manufacturers 

(a) Purpose. The purpose of the 

manufacturer impact analysis (MIA) is to 

identify and quantify the impacts of any new 

or amended energy conservation standards 

on manufacturers. The MIA will have both 

quantitative and qualitative aspects, and it 

will include the analyses of projected 

industry cash flows, the industry net present 

value, conversion costs, and direct 

employment. Additionally, the MIA will seek 

to describe how new or amended energy 

conservation standards might affect 

manufacturing capacity and competition, as 

well as how standards contribute to overall 

regulatory burden. Finally, the MIA will seek 

to identify any disproportionate impacts on 

manufacturer subgroups, including small 

business manufacturers. The Department will 

analyze the impact of standards on 

manufacturers with substantial input from 

manufacturers and other interested parties. 

This section describes the principles that will 

be used in conducting future manufacturing 

impact analyses. 

(b) Issue identification. Prior to publishing 

a NOPR, the Department will identify issues 

that will require greater consideration in the 

detailed manufacturer impact analysis. 

Possible issues may include identification of 

specific types or subgroups of manufacturers 

and concerns over access to technology. 

Specialized contractor expertise and 

empirical data requirements, and analytic 

tools required to perform the manufacturer 

impact analysis also would be identified at 

this stage. 

(c) Industry characterization. Prior to 

publishing a NOPR, the Department will 

prepare an industry profile based on the 

market and technology assessment and other 

publicly available information. DOE will use 

public sources of information (e.g., company 

financial reports) to derive preliminary 

financial inputs for the industry cash flow 

analysis. DOE will describe the present and 

past industry structure and market 

characteristics. 

(d) Interview Process. DOE will seek to 

conduct structured, detailed interviews with 

manufacturers. During these interviews, DOE 

will discuss engineering, manufacturing, 

procurement, and financial topics in order to 

develop and validate key financial inputs, 

including product and capital conversion 

costs, and to gather additional information on 

the anticipated effects of energy conservation 

standards on revenues, direct employment, 

capital assets, industry competition, and 

subgroup impacts. 

(e) Industry Cash Flow Analysis. The 

quantitative part of the MIA will rely 

primarily on the Government Regulatory 

Impact Model (‘‘GRIM’’), an industry cash 

flow model with inputs specific to each 

rulemaking. The Department will develop 

critical GRIM inputs using a number of 

sources, including publicly-available data, 

results of the other rulemaking analyses, and 

information gathered from industry 

stakeholders during the course of 

manufacturer interviews. To capture the 

uncertainty relating to manufacturer cost 

impacts and impacts on product/equipment 

sales, features, and prices following amended 

standards, the Department will use the GRIM 

to estimate a range of possible impacts under 

different scenarios. 

(f) Cost impacts on manufacturers. The 

Department will seek input from interested 

parties on the treatment of cost issues. 

Manufacturers will be encouraged to offer 

suggestions and feedback on sources of data 

and DOE cost estimates. Costing issues to be 

addressed include: 

(1) Product/equipment-specific costs 

associated with direct material, labor, and 

factory overhead (based on cost impacts 

estimated for the engineering analysis); 

(2) Product conversion costs, which are 

investments in research, development, 

testing, marketing, and other non-capitalized 

costs necessary to make product designs 

comply with new or amended energy 

conservation standards; and 

(3) Capital conversion costs, which are 

investments in property, plants, and 

equipment necessary to adapt or change 

production facilities such that new, 

compliant product designs can be fabricated 

and assembled. 

(g) Disproportional impacts on 

manufacturer subgroups. DOE will evaluate 

subgroups of manufacturers that may be 

disproportionately impacted by standards or 

that may not be accurately represented by the 

average cost assumptions used to develop the 

industry cash flow analysis. Such 

manufacturer subgroups may include small 

business manufacturers, niche players, and/ 

or manufacturers exhibiting a cost structure 

that largely differs from the industry average. 

The subgroup analysis will include 

qualitative descriptions and, where sufficient 

non-proprietary data are available, 

quantitative estimates. 

(h) Impacts on product/equipment sales, 

features, and prices. The GRIM estimates 

manufacturer revenues based on total unit 

shipment projections and the distribution of 

those shipments by efficiency level. For this 

analysis, the GRIM uses the NIA’s annual 

shipment projections derived from the 

shipments analysis. 

(i) Measures of impact. The Department 

will use the GRIM to calculate cash flows 

using standard accounting principles and 

changes in industry net present value (INPV) 

between the no-new-standards case and each 

standards case. The difference in INPV 

between the no-new-standards case and a 

standards case represents the financial 

impact of the new or amended energy 

conservation standard on manufacturers. 

Computations will be performed for the 

industry as a whole and, as appropriate, for 

manufacturer subgroups. Impacts to be 

analyzed include: 

(1) Industry net present value and change 

in INPV relative to the no-new-standards case 

industry value. The Department will perform 

sensitivity/scenario analyses for parameters 

where significant uncertainty was identified 

and/or for which DOE received significant 

comment. An uncertainty analysis could 

include inputs such as production costs, 

conversion costs, manufacturer mark-ups, 

and shipment projections. 

(2) Industry annual cash flows and percent 

change relative to the no-new-standards cash 

flow levels. The Department will analyze the 

impact of the new or amended standard on 

industry annual free cash flow as an 

indicator of potential financial constraints in 

the industry. 

(3) Other measures of impact are described 

in paragraphs (j) through (m) of this section 

and will also be evaluated in the MIA. 

(j) Cumulative Impacts of Other Federal 

Regulatory Actions. 

(1) The Department will recognize and 

consider the overlapping effects on 

manufacturers of new or revised DOE 

standards and other Federal regulatory 

actions affecting the same products or 

equipment. 

(2) If the Department determines that a 

proposed standard would impose a 

significant impact on product or equipment 

manufacturers within approximately three 

years of the compliance date of another DOE 

standard that imposes significant impacts on 

the same manufacturers (or divisions thereof, 

as appropriate), the Department will, to the 

extent possible, evaluate the impact on 

manufacturers of the proposed standard and 

assess the joint impacts of both standards on 

manufacturers as described in paragraph 

(j)(4) of this section. 

(3) If the Department is directed to 

establish or revise standards for products/ 

equipment that are components of other 

products/equipment subject to standards, the 

Department will consider the interaction 

between such standards in assessing 

manufacturer impacts of a particular 

standard as described in paragraph (j)(4) of 

this section. 

(4) The Department will seek to assess 

regulations that affect the same product and 

same revenue streams in an appropriately 

coordinated or integrated analysis. Where 


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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules 35689 

multiple regulations do not affect the same 

revenue streams but lead to industry 

constraints due to resources shared (such as 

capital, engineering time, test lab availability, 

or limited capacity of shared vendors) across 

covered products, DOE will describe and 

consider those industry constraints. 

(k) Competitive Impact Assessment. EPCA 

directs the Department to consider any 

lessening of competition that is likely to 

result from imposition of standards. It further 

directs the Attorney General to determine in 

writing the impacts, if any, of any lessening 

of competition. To assist the Attorney 

General in making this determination, DOE 

will gather information that would help in 

assessing asymmetrical cost increases to 

some manufacturers, increased proportion of 

fixed costs potentially increasing business 

risks, and potential barriers to market entry 

(e.g., proprietary technologies). 

(l) Manufacturing Capacity Impact. 

Through public comment and during the 

manufacturer interviews, the Department 

will seek information to help identify 

impacts on manufacturing capacity, such as: 

(1) Capacity utilization and plant location 

decisions with and without new or amended 

standards; 

(2) The ability of manufacturers to upgrade 

or remodel existing facilities to accommodate 

new or amended standards; 

(3) The nature and value of stranded assets, 

if any, that are a direct result of new or 

amended standards; and 

(4) Estimates for any one-time restructuring 

and other charges, where applicable. 

(m) Direct Employment Impacts. To assess 

how direct employment patterns might be 

affected by new or amended standards, the 

Department will solicit industry participant 

views on changes in employment patterns 

that may result from increased standard 

levels. To help bound quantitative estimates 

of the potential employment impacts, the 

Department will use the GRIM to estimate the 

number of direct employees in the no-newstandards case and in each of the standards 

cases during the analysis period. 

(n) Summary of quantitative and 

qualitative assessments. The NOPR will 

include a summary of the manufacturer 

impacts detailed in the TSD. In the NOPR, 

DOE will report the manufacturer impacts for 

standard levels that are evaluated and 

discuss quantitative and qualitative impacts 

by standard level. 

14. Principles for the Analysis of Impacts on 

Consumers 

(a) Early consideration of impacts on 

consumer utility. The Department will 

consider at the earliest stages of the 

development of a standard whether 

particular design options will lessen the 

utility of the covered products/equipment to 

the consumer. See paragraph (c) of section 6. 

(b) Impacts on product/equipment 

availability. The Department will determine, 

based on consideration of information 

submitted during the standard development 

process, whether a proposed standard is 

likely to result in the unavailability of any 

covered product/equipment type with 

performance characteristics (including 

reliability), features, sizes, capacities, and 

volumes that are substantially the same as 

products/equipment generally available in 

the U.S. at the time. DOE will not promulgate 

a standard if it concludes that it would result 

in such unavailability. 

(c) Measures of consumer impacts. In the 

assessment of consumer impacts of 

standards, the Department will consider the 

Life-Cycle Cost and Payback Period to 

evaluate the savings in operating expenses 

relative to increases in the installed product 

cost. 

(1) Consumer discount rates. To determine 

present values of costs and benefits in lifecycle cost analysis for residential consumers, 

DOE will calculate discount rates as the 

weighted average real interest rate across 

consumer debt and equity holdings. For 

commercial/industrial consumers, DOE will 

calculate discount rates as the weighted 

average cost of capital. DOE will use discount 

rate distributions to capture the diversity of 

residential and commercial/industrial 

consumers. 

(2) Variation in consumer impacts. The 

Department will consider impacts on 

significant segments of consumers in 

determining standards levels, and will use 

representative consumer samples where 

possible to evaluate the potential distribution 

of impacts of candidate/trial standard levels 

being evaluated among consumers using the 

product under consideration for standards. 

Where LCC savings are positive, the 

Department will also consider impacts on 

any significant subgroups of consumers that 

may be disproportionately impacted by a 

potential standard level, such as low-income 

households or small businesses. DOE will 

consider non-regulatory approaches as 

discussed in Section 15, taking into account 

significant impacts on identifiable subgroups. 

(3) Sensitivity and scenario analyses. For 

data or assumptions subject to a higher 

degree of uncertainty, the Department will 

also perform sensitivity and scenario 

analyses when appropriate. 

15. Consideration of Non-Regulatory 

Approaches 

The Department recognizes that nonregulatory efforts by manufacturers, utilities, 

and other interested parties can result in 

substantial efficiency improvements. The 

Department intends to consider the likely 

effects of non-regulatory initiatives relative to 

standard levels being evaluated. DOE will 

attempt to base its assessment on the actual 

impacts of such initiatives to date, but it also 

will consider information presented 

regarding the impacts that any existing 

initiative might have in the future. 

16. Cross-Cutting Analytical Assumptions 

In selecting values for certain cross-cutting 

analytical assumptions, DOE expects to rely 

upon the following sources and general 

principles. 

(a) Underlying economic assumptions. The 

appliance standards analyses will generally 

use the same economic growth assumptions 

that underlie the most current Annual Energy 

Outlook (AEO) published by the Energy 

Information Administration (EIA). 

(b) Analytic time length. The appliance 

standards analyses will generally consider 

impacts over the lifetime of products shipped 

over a 30-year period. As a sensitivity case, 

the analyses may also use a shorter time 

period in analyzing the effects of the 

standard. 

(c) Energy price trends. Analyses of the 

impact of appliance standards on users will 

generally adopt the reference energy price 

scenario of the EIA’s most current AEO. The 

sensitivity of estimated impacts to possible 

variations in future energy prices are likely 

to be examined using the EIA’s high and low 

energy price scenarios. The analyses will 

incorporate regional and/or marginal prices 

as appropriate and where available. 

(d) Product/equipment-specific energyefficiency trends, without updated standards. 

Product/equipment-specific energy-efficiency 

trends will be based on the best available 

historical market data, technology trends, 

and other product-specific assessments by 

DOE with input from interested parties. 

(e) Discount rates for national costs and 

benefits. DOE uses both 3-percent and 7- 

percent real discount rates when estimating 

national impacts. Those discount rates are in 

accordance with the Office of Management 

and Budget (OMB)’s guidance to Federal 

agencies on developing regulatory analyses 

(OMB Circular A–4 (Sept. 17, 2003) and 

section E., ‘‘Identifying and Measuring 

Benefits and Costs,’’ therein). 

17. Emissions Analysis 

(a) Emissions reductions. DOE will use best 

practices at the time to estimate emission 

reductions of certain greenhouse gases and 

pollutants likely to result from standard 

levels being evaluated. To date best practice 

means the emissions analysis typically 

includes two components. In the first 

component, DOE typically develops the 

power sector emissions analysis—to date best 

practice includes using a methodology that 

utilizes DOE’s latest Annual Energy Outlook. 

For site combustion of natural gas or 

petroleum fuels, to date best practice means 

the combustion emissions are typically 

estimated using emission intensity factors 

from the Environmental Protection Agency 

(EPA). The second component of DOE’s 

emissions analysis typically estimates the 

effect of standard levels being evaluated on 

emissions due to ‘‘upstream activities’’ in the 

fuel production chain. These upstream 

activities include the emissions related to 

extracting, processing, and transporting fuels 

to the site of combustion, e.g., as detailed in 

DOE’s Full-Fuel-Cycle Statement of Policy 

(76 FR 51281 (August 18, 2011)). 

(b) Monetization of emissions reductions. 

For estimating the economic value of avoided 

emissions of carbon dioxide and other 

greenhouse gases, as well as those of other air 

pollutants, DOE will follow the best practices 

at the time, for example, by using accepted 

benefit-per-ton values from the scientific 

literature at the time. 

[FR Doc. 2021–14273 Filed 7–6–21; 8:45 am] 

BILLING CODE 6450–01–P 


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