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Amendments to DOE's Certification, Compliance, and Enforcement Rules Proposed
October 15, 2020

The Department of Energy (DOE) has announced the release of a draft rule proposing amendments to its certification, compliance, and enforcement rules — “Enforcement for Consumer Products and Commercial and Industrial Equipment.”

Some of the proposed changes include:

• Providing manufacturers with a “Notice of Intent” letter 30 days prior to issuing a “Notice of Violation” so that manufacturers can provide the Department with relevant information to mitigate the non-compliance before the violation notice is formally issued;
• Discontinuing the requirement that manufacturers inform customers of DOE’s determination of non-compliance; and
• Formalizing the procedure by which manufacturers can seek an allowance to distribute redesigned or modified basic models that had been subject to a violation notice.

The DOE also clarified its statutory authority to execute enforcement over electric motors and products that are subject to design requirements. The proposed rule specifies that “DOE will make a determination of non-compliance for the basic model based on an examination of whether a single unit of the basic model fails to comply with applicable design requirements.” Commercial refrigeration and walk-in cooler-freezer models are subject to statutory design requirements for which they may be subject to enforcement pursuant to these procedures.

Importantly, the proposed rule states that DOE can request any information concerning the certification or compliance of a basic model. It also suggests that DOE can make a finding of non-compliance based on information acquired during an investigation, including third-party test data. The preamble to the proposed rule specifically states that “In response to feedback from various industry associations, DOE proposes within its regulation to have the discretion to consider third party certification program testing as official enforcement data.” This amendment would be a notable departure from how DOE has executed its enforcement actions in the past.

Comments on the proposed rule from industry stakeholders and interested parties are due on October 30, 2020.

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