DOE Considers Revision to Process Rule For Energy Conservation Appliance Standards
Jan. 16, 2018
By Chuck White, Vice President of Regulatory Affairs
PHCC was among stakeholders who participated in a U.S. Department of Labor meeting Tuesday, Jan. 9, to provide feedback on changes to the process of developing energy conservation standards for appliances or consumer products under the Energy Policy and Conservation Act (EPCA). As follow-up to the meeting, PHCC will provide comments on how a DOE “Process Rule” can be improved to involve stakeholders, including p-h-c contractors; provide more transparency; and streamline the process.
The Process Rule is intended to essentially provide more opportunities for input from stakeholders, establish predictable timetables, increase transparency; build consensus; enhance analysis; and improve efficiencies. Unfortunately, since the rule was enacted in 1996, recent DOE rulemakings have not taken steps to reach those objectives. There has been a lack of early stakeholder input, timetables have been erratic, non-regulatory approaches are rarely considered, transparency has been poor, development time and costs have not gone down…the list goes on.
The application of the Process Rule is not that simple because of nuances related to non-compliance issues with DOE standard procedures. The DOE typically has two methods of issuing rules:
- a notice and comment method called Notice of Proposed Rulemaking, NOPR for short; or
- a Direct and Final Rule, also referred to as DFR.
Additionally, DOE sometimes utilizes a Negotiated Rulemaking process in which all interested parties agree to work towards a new or revised standard; the result of a Negotiated Rulemaking typically, but not necessarily, issues the rule as a DFR.
It appears the DOE does not consider a DFR to be a “rulemaking,” which has resulted in non-compliance to the Process Rule. This has brought about a contentious relationship among involved parties—in some cases even litigation.
The Process Rule contains language that requires Advance Notice of Rulemakings (ANOPR) and retrospective analysis of past rulemakings to increase transparency in the process. These processes have been followed sporadically with the analysis review being the most poorly followed.
A key problem involves DOE evaluation of test procedures for products. The process rule intends changes to test procedures to be established before a new product efficiency standard is established. In many instances, DOE has processed these changes concurrently. The result is a confusing situation for the manufacturers and a best guess scenario for the DOE consultants making recommendations. Without knowing the exact test procedure, it is very difficult to predict the product changes necessary to achieve the outcome levels that meet the proposed standard. In some cases, test procedures have changed months after the standard was established leaving “new” standard compliant product suddenly non-compliant.
DOE now has been directed to comply more closely with the original intent of the rule. PHCC has the opportunity to submit comments on numerous topics related to the Process Rule, some of which are:
- Should DOE amend the Process Rule to specifically include provisions related to the use of DFR’s?
- What factors should DOE consider when evaluating whether DFR should proceed or be withdrawn and proceed through the NOPR process?
- What constitutes an “interested party” and “relevant point of view” to determine the status of filers of adverse comments pertaining to a DFR?
- How should DOE consider “adverse comments” as to relevancy or seriousness to prevent frivolous impact on the process?
- What are the strengths and weaknesses of using the DFR process?
- Should DOE include language in the Process Rule to specifically include Negotiated Rulemakings?
- DOE seeks comments as to how the Negotiated Rulemaking Act and its use could be improved.
- Should DOE eliminate mandatory language for Advance Notices (ANOPR) but include other forms of advance notification to the public?
- Should DOE conduct the retrospective reviews of the existing standards and their applications as part of any pre-rule process?
- Should DOE expand the Process Rule from Consumer Products to include commercial and industrial products with the caveat that existing regulation by ASHRAE 90.1 would have to be maintained and accounted for?
- Should DOE accept test methods established in industry standards and adopt such standards?
- Are there circumstances which would require DOE to modify tests required by industry standards?
- Should DOE amend the Process Rule to ensure that test procedures are developed before new standard levels are established?
- DOE seeks comment on amending the Process Rule to improve analyses models, to achieve burden reduction to consumers, and to increase transparency for regulated entities and the public.
- DOE seeks comment of how to make the analyses and models more accessible by including improved instructions, user manuals, plain language descriptions, online tutorials or other means.
- DOE seeks comment on increasing the accuracy of the projections made within the analyses.
- Should DOE add criteria to the Process Rule to support “no amended standards” determinations when anticipated energy savings would be small or upfront costs would be high?
- Should DOE consider adding voluntary, non-regulatory, and market-based alternatives as compared to establishing standards?
- Should DOE add a baseline energy savings for products below which would be “not significant” and render amending standards “not economically justified”?
- Should DOE make compliance with the Process Rule mandatory
This request by DOE is transformational. The new administration intends to reduce complicated procedures that inhibit business development. Many of the issues related to rulemakings have their roots in the lack of adherence to the Process Rule.
PHCC is evaluating this information and will be filling comments before Feb. 16, 2018 deadline to help chart a new course in DOE rulemakings.