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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules 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
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industrial equipment under Part A1 of the Energy Policy and Conservation Act EPCA, as amended, except covered ASHRAE
equipment in Part A1 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.
6292b and 42 U.S.C. 6295l for consumer products; 42 U.S.C. 6312b 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 documents 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
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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 documents 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 documents 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 documents, 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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