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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules
relevant industry consensus testing standard for DDXDOAS equipment, as required in 42 U.S.C. 6314 and discussed in section III.B of this NOPR.
Issue15: DOE seeks comment on the degree to which the DOE test procedure should consider and be harmonized further with the most recent relevant industry consensus testing standards for DDXDOASes and whether there could be modifications to the industry test method that would provide additional benefits to the public. DOE also requests comment on the benefits and burdens of adopting any industry/voluntary consensus-based or other appropriate test procedure, without modification.
5. Other Test Procedure Topics In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of the proposed test procedures for DDX
DOASes not already addressed by the specific areas identified in this document. DOE particularly seeks information that would ensure that the test procedure measures energy efficiency during a representative average use cycle, as well as information that would help DOE create a procedure that is not unduly burdensome to conduct.
E. Compliance Date EPCA prescribes that, if DOE amends a test procedure, all representations of energy efficiency and energy use, including those made in the context of certification and on marketing materials and product labels, must be made in accordance with that amended test procedure, beginning 360 days after publication of such a test procedure final rule in the Federal Register. 42
U.S.C. 6314d1

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IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866
The Office of Management and Budget OMB has determined that this test procedure rulemaking does not constitute a significant regulatory actions under section 3f of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 Oct. 4, 1993.
Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs OIRA in OMB.
B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act 5
U.S.C. 601 et seq. requires preparation of an initial regulatory flexibility analysis IRFA for any rule that by law must be proposed for public
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comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
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 Counsels website at: energy.gov/gc/
office-general-counsel. DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003.
The following sections detail DOEs IRFA for this test procedure rulemaking.
1. Description of Reasons Why Action Is Being Considered DOE is undertaking this test procedure rulemaking to establish a DOE test procedure for DDXDOASes in response to updates to the relevant industry consensus standard, American Society of Heating, Refrigerating and Air-Conditioning Engineers ASHRAE
Standard 90.1, Energy Standard for Buildings Except Low-Rise Residential Buildings, which, with its 2016
publication, both added efficiency standards and specified a test procedure for this equipment i.e., AHRI 920
2015. Subsequently, the AirConditioning, Heating, and Refrigeration Institute AHRI updated its test procedure with the publication of AHRI
9202020. The Energy Policy and Conservation Act EPCA 35 requires that each time the test procedure referenced by ASHRAE Standard 90.1 is updated, DOE must update the Federal test procedure consistent with the industry update, unless there is clear and convincing evidence that the update would not be representative of an average use cycle or would be unduly burdensome to conduct.
2. Objectives of, and Legal Basis for, Rule EPCA, as amended, among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C 36
of EPCA, Public Law 94163 42 U.S.C.
63116317, as codified, added by 35 All references to EPCA in this document refer to the statute as amended through the Energy Act of 2020, Public Law 116260 Dec. 27, 2020.
36 For editorial reasons, upon codification in the U.S. Code, Part C was redesignated Part A1.

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Public Law 95619, Title IV, 441a, established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This covered equipment includes small, large, and very large commercial package air conditioning and heating equipment. 42 U.S.C.
63111BD DOE has initially determined that commercial package air conditioning and heating equipment includes DXDOASes. As discussed in section I.B of the NOPR document, DX
DOASes had not previously been addressed in DOE rulemakings and are not currently subject to Federal test procedures or energy conservation standards.
Under EPCA, DOEs energy conservation program consists essentially of four parts: 1 Testing, 2
labeling, 3 Federal energy conservation standards, and 4 certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions 42 U.S.C. 6311, energy conservation standards 42 U.S.C. 6313, test procedures 42 U.S.C. 6314, labeling provisions 42 U.S.C. 6315, and the authority to require information and reports from manufacturers 42
U.S.C. 6316.
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: 1 Certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA 42
U.S.C. 6316b; 42 U.S.C. 6296, and 2
making representations about the efficiency of that equipment 42 U.S.C.
6314d. Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA.
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. 42 U.S.C.
6316a and b; 42 U.S.C. 6297 DOE
may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. 42 U.S.C.
6316b2D
Under 42 U.S.C. 6314, the statute also sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered equipment. Specifically, EPCA requires that any test procedure prescribed or amended shall be reasonably designed to produce test results which measure energy
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