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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules
Process Rule, EPCAs 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 DOEs 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. 6314a4, 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
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representative of the equipments 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 Departments 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.
6313a6AiiII 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

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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 DOEs 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 DOEs regulated metrics, 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 7year-lookback review. DOE believes this is consistent with EPCAs 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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