On December 6, 2017, the U.S. Department of Energy (DOE) announced that it will exercise enforcement discretion toward certain energy performance by air compressor manufacturers. Under a new air compressor test procedure published in the Federal Register on January 4, 2017, manufacturers of air compressors were required, effective July 3, 2017, to base any public representations or claims about the energy consumption of their compressors on test results using the new test procedures. 82 Fed. Reg. 1,052, 1,103 (Jan. 4, 2017). The problem, however, is that DOE has yet to publish a final rule establishing either an energy conservation standard or a labeling requirement for air compressors.

Although the Department had finalized and made available a prepublication version of energy conservation standards for air compressors during the final days of the Obama administration, it was subjected to review under the regulatory freeze put in place at the beginning of the Trump administration. While several other rules subject to the regulatory freeze were published this year, the energy conservation standards for air compressors and five other categories of equipment are still under review. Earlier this year, eleven state attorneys general and several NGOs sued the DOE for its failure to publish the standards.

The no enforcement statement clarifies that DOE will not enforce the representations requirement pending promulgation of the air compressor energy standards and labeling rule.