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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules
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 DOEs 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. EERE2021BTSTD0003.
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. 6292b As such, it may be beneficial to first issue an RFI or other document to solicit comment on whether a consumer product is likely to meet these requirements. Based on the information received, DOE may choose not to proceed with a notice of proposed determination. Accordingly, DOE
proposes that it may issue an RFI or other pre-rule document prior to a notice of proposed coverage determination. DOE requests comments, information, and data on whether its proposed approach is appropriate or on any suggested alternatives.
Second, regarding the requirements to finalize coverage determinations prior to
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the initiation of any test procedure or energy conservation standard rulemaking and at least 180 days prior to publication of a test procedure NOPR, DOE notes that coverage determination, test procedure, and energy conservation standard rulemakings are interdependent. A coverage determination defines the product/
equipment scope for which DOE can establish test procedures and energy conservation standards. It also signals that inclusion of the consumer product or commercial/industrial equipment is necessary to carry out the purposes of EPCA, i.e., to conserve energy and/or water. In order to make this determination, DOE needs to consider whether a test procedure and energy conservation standards can be established for the consumer product or commercial/industrial equipment. If DOE cannot develop a test procedure that measures energy use during a representative average use cycle and is not unduly burdensome to conduct 42
U.S.C. 6293b3; 42 U.S.C. 6314a2
or prescribe energy conservation standards that result in significant energy savings 42 U.S.C. 6295o; 42
U.S.C. 6316a, then making a coverage determination is not necessary as it will not result in the conservation of energy.
Thus, it is important that DOE be able to initiate test procedure and energy conservation standard rulemakings while the Department conducts a coverage determination rulemaking.
Accordingly, DOE proposes to eliminate the requirement that coverage determination rulemakings must be finalized prior to initiation of a test procedure or energy conservation standard rulemaking. DOE requests comments, information, and data on whether its proposed approach is appropriate or on any suggested alternatives.
As for the requirement that a coverage determination be finalized 180 days prior to publication of a test procedure NOPR, DOE notes that there are significant differences between the benefits of finalizing a coverage determination prior to publishing a test procedure NOPR and the benefits of finalizing a test procedure prior to publishing an energy conservation standards NOPR. As discussed in the April 2021 NOPR, a delay between publication of a test procedure final rule and an energy conservation standards NOPR may be beneficial in some cases as it could allow stakeholders to gain greater familiarity with complex test procedure amendments before providing comment on a proposal to amend standards. 86 FR 18901, 18908.

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But DOE does not see a corresponding potential benefit for delaying publication of a test procedure NOPR
after a coverage determination, which establishes the scope of coverage, i.e., a definition, for the newly covered product or equipment, is finalized.
Accordingly, DOE proposes to eliminate the requirement that coverage determination rulemakings must be finalized 180 days prior to publication of a test procedure NOPR. DOE requests comments, information, and data on whether its proposed approach is appropriate or on any suggested alternatives. DOE notes that it will continue to follow the requirements at 42 U.S.C. 6312b for coverage determinations for commercial/
industrial equipment and at 42 U.S.C.
6292b 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 EPCAs significant energy savings threshold has been met see section 6b of the 2020 Process Rule amendments. 85 FR 8626, 86558676, 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 6a of the Process Rule, the February 2020 Final Rule included an early assessment process for energy conservation standards. More specifically, in section 6a1 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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