The U.S. Department of Energy (“DOE” or the “Department”) has been conducting energy efficiency rulemakings at a prolific rate since the beginning of the Biden administration. This uptick in regulatory action can be attributed not only to the initiatives of the Biden administration, but also to two 2020 lawsuits alleging that the Department failed to meet rulemaking deadlines for 25 consumer product and industrial equipment categories covered by the Energy Policy and Conservation Act (“EPCA”) (42 U.S.C. § 6291, et seq.). We have been closely tracking DOE’s actions, and, by our count, the Department has issued over 40 regulatory actions governing the consumer product categories in the past seven months. Just this past week, the Department proposed test procedures for two classes of products that will be regulated under the EPCA for the first time (portable electric spas and air cleaners) and finalized an amended test procedure for automatic commercial ice makers. As test procedures are a statutory predicate to energy efficiency standards, manufacturers of spas and air cleaners should expect energy efficiency standards to be proposed in the near future.
Portable Electric Spas. On October 18, 2022, DOE issued a proposed test procedure for measuring the energy consumption of portable electric spas. 87 Fed. Reg. 63,356 (Oct. 18, 2022); see also 87 Fed. Reg. 42,297, 42,299 (July 15, 2022). The procedure would apply to “factory-built electric spas or hot tubs” that are “supplied with equipment for heating and circulating water at the time of sale or sold separately for subsequent attachment.” 87 Fed. Reg. 54,123 (Sept. 2, 2022) (to be codified at 10 C.F.R. § 430.2). Portable electric spas are not currently subject to either DOE energy conservation standards or test procedures; however, several states have adopted standards for these products based on an industry-developed test procedure – i.e., the American National Standard for Portable Electric Spa Energy Efficiency (ANSI/APSP/ICC-14 2019). DOE is proposing to adopt ANSI/APSP/ICC-14 2019 as the basis for the portable electric spas test procedure, with certain exceptions and additions (e.g., DOE is proposing to exclude sections of the standard addressing laboratory certification body qualifications and sections identifying maximum allowance energy consumption standards). Specifically, DOE is proposing to use the normalized standby power measurement defined by ANSI/APSP/ICC-14 2019 as the performance-based metric for representing the energy use of portable electric spas (referred to as “standby loss”). Indeed, the Department has tentatively determined that “standby loss” mode is the most representative average use cycle, as portable electric spas spend most of their hours of “use” per year with the spa cover on (i.e., with no consumers in the spa) and with the spa continually or periodically filtering and maintaining the water temperature so that the spa is ready for use. DOE will accept comments, data, and information on this proposal until December 19, 2022. In addition, the Department is also hosting a public webinar on Thursday, November 17, 2022, from 1 – 4 pm. Interested parties can view more information here.
Air Cleaners. DOE also proposed a test procedure for air cleaners, a category of consumer products that, according to the final coverage determination, is being eyed by a few states for regulation. 87 Fed. Reg. 63,324 (Oct. 18, 2022); see also 87 Fed. Reg. 42,297, 42,299 (July 15, 2022). The test procedure will cover a category of indoor air-improving products that have an “electrically-powered, self-contained, mechanically encased assembly that contains means to remove, destroy, or deactivate particulates, VOC, and/or microorganisms from the air” and excludes central, room, and portable air conditioners, dehumidifiers, furnaces, and products that operate solely by means of ultraviolet light without a fan for air circulation 10 C.F.R. § 430.2. Currently, no DOE energy conservation standards or test procedures exist for air cleaners. According to the proposal, DOE is planning to incorporate two industry standards developed by the Association of Home Appliance Manufacturers (“AHAM”) in the test procedure – i.e., AHAM AC-1-2020 and AHAM AC-7-2022 Draft – as well as ASTM E741-11(2017) and IEC 62301. Drawing on these standards, DOE is proposing to require measurements of smoke clean air delivery rate (“CADR”) and dust CADR, in addition to active mode and standby mode power consumption under the test procedure. Measurements of pollen CADR and a calculation of effective room size are also proposed for purposes of representation. DOE will accept comments, data, and information on this proposal until December 19, 2022. In addition, the Department is also hosting a public webinar on Thursday, November 9, 2022, from 12 – 3 pm. Interested parties can view more information here.
Automatic Commercial Ice Makers. On October 18, 2022, DOE published a pre-publication final rule amending the test procedure for automatic commercial ice makers (“ACIMs”). The amendments will:
expand the scope of the ACIM test procedure to include low-capacity ACIMs, or all ACIMs with capacities up to 4,000 lb./24 hr.;
adopt the latest updates to industry standards;
make changes designed to improve the representativeness and accuracy of the test procedure, such as specifying ambient temperature measurement requirements and establishing a relative humidity test condition;
provide clarification on certain test conditions, settings, setups, and calculations, such as the ice hardness test conditions and clearance requirements; and
add an ACIM-specific enforcement provision to 10 C.F.R. § 429.134 that identifies which metrics will be used for enforcement purposes and establish a 5% tolerance against the certified rating.
The amended test procedure will come into effect 30 days after the publication of this document in the Federal Register.
Although DOE has yet to promulgate energy conservation standards for portable electric spas or air cleaners that would require certification testing in accordance with the proposed test procedures, manufacturers will still be required to use the test procedure to support any representations about the energy use or efficiency of these products beginning 180 days after the procedures are finalized. To that end, it is also important to note that federal energy efficiency requirements supersede any state laws and regulations governing energy conservation testing, labeling, and standards. Accordingly, once the portable electric spa and air cleaner test procedures are finalized, they will become the national standard, superseding any existing state testing requirements.
 For reference, the standards incorporated by reference address the following measurements: Method for Measuring Performance of Portable Household Electric Room Air Cleaners (AHAM AC-1-2020), Energy Test Method for Consumer Room Air Cleaners (AHAM AC-7-2022 Draft), Standard Test Method for Determining Air Change in a Single Zone Means of a Tracer Gas Dilution (ASTM E741-11(2017)), and Household electrical appliances—Measurement of standby power (IEC 62301).