The Department of Energy (“DOE” or the “Department”) published a notice of proposed rulemaking (“NOPR”) rule on April 12, 2021 that proposes to revise parts of the Department’s Process Rule. As you may recall, DOE revised the Process Rule in 2020 with the aim of increasing both rulemaking transparency and certainty. 85 Fed. Reg. 8,626 (Feb. 13, 2020); See also, Keller and Heckman summary. Now, the Department is proposing to revise the Process Rule again as a part of the regulatory review mandated by Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. The newly proposed revisions are also motivated by two lawsuits brought by non-governmental organizations alleging that DOE failed to meet rulemaking deadlines for 25 covered products and equipment.

Specifically, in the recent NOPR DOE proposes to make the following changes, among others:

  • revert the Process Rule back to its original, non-binding status as generally applicable guidance
  • eliminate the mandatory 180-day buffer period between finalization of a DOE test procedure and issuance of a proposal to set a new, or amend a current, standard
  • remove the numerical threshold established under the 2020 Process Rule defining what constitutes “significant savings of energy”
  • eliminate the requirement that DOE conduct a comparative analysis of the relative costs and benefits of all the proposed trial standard levels (“TSLs”) when determining whether a proposed standard is economically justified.

85 Fed. Reg. 18,901 (Apr. 12, 2021); See also DOE Process Rule – Part 1, Notice of Proposed Rulemaking (Apr. 23, 2021) (DOE NOPR overview presentation). Several stakeholders raised concerns with the proposed amendments during a recent Small Business Administration meeting on the NOPR. In particular, stakeholders cited concerns about having adequate time to test their products against new or amended test procedures prior to the proposal of a new standard. Commenters were concerned that, without this lead time, they may not be able to gather enough information to meaningfully contribute to the standards rulemaking process. In addition, stakeholders expressed concerns regarding DOE’s proposal to revert the Rule back to guidance, as this would eliminate the predictability of the rulemaking process.

DOE is soliciting comments, information, and data on all aspects of the Process Rule proposed amendments. Comments on the proposal must be received on or before May 27, 2021.