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EISA Drama: The Final Scene is Lit

image credit: Copyright Franklin Energy
Matt Bowgren's picture
Manager of Retail Products Strategy Franklin Energy

Having spent time working across residential lighting and appliance, commercial and industrial gas, and industrial electric programs, I find myself drawn universally to improving the customer...

  • Member since 2019
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  • Mar 14, 2022
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The DOE just filed a Final Rule regarding the Backstop Requirement for General Service Lamps. For the last three months, since 12/15/2021, the Office of Information and Regulatory Affairs (OIRA, pronounced “oh-eye-ruh”) has had a DOE filing for a Final Rule to change the definition of General Service Lamps. Changing that definition means the backstop requirement will apply to more types of lamps, including reflector lamps. My theory at the time was that the DOE planned to publish the definition change by the end of 2021, but when that didn’t happen, it seemed clear they were intentionally waiting to set the stage with both final rulings before publishing.

While OIRA is limited by law to complete their regulatory review within 90 days, the submitting agency, in this case the DOE, is allowed to postpone that date indefinitely. In other words, it’s only taken this long for review at the DOE’s request, which was so OIRA could consider both rulings together. At this point, OIRA could approve the filings and they could be published by the end of March; or they could return the rulings to DOE, but that’s unlikely. DOE’s estimated national economic benefit of this ruling is $3.3 billion to $4.9 billion per year and a win for President Biden’s environmental agenda.

For those not familiar with the regulatory process, OIRA reviews the rulings to ensure that they are consistent with existing regulatory rules, benefits and costs were appropriately considered, public comment was considered, and new regulations do not create “redundant, inconsistent, or overlapping requirements” that would cause confusion or undue burden. OIRA is also responsible for ensuring that the President’s policies and priorities are reflected in agency rules. That is why OIRA could approve as “consistent” both the 2019 filing under President Trump, which prevented the backstop, and the 2022 filing under President Biden to enact the backstop.

While appearing under OIRA review does not tell us the content of the final rulings until they are published in the Federal Register, we are likely to see that the backstop will go into effect with the timing varying anywhere from 60 days to a year. While all manufacturers and their representatives which commented suggested no less than a year, the DOE suggested they were looking at 60 days, noting that they would instead use their enforcement discretion to work with retailers and manufacturers on an as needed basis to ensure they were progressing towards the end goal as quickly as possible while allowing slight delays in the timeline.

The stage is set. The lights are on. Be sure to stay tuned for the final scene of this EISA drama.

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Matt Chester's picture
Matt Chester on Mar 14, 2022

While all manufacturers and their representatives which commented suggested no less than a year, the DOE suggested they were looking at 60 days, noting that they would instead use their enforcement discretion to work with retailers and manufacturers on an as needed basis to ensure they were progressing towards the end goal as quickly as possible while allowing slight delays in the timeline.

What's the incentive for DOE to use this approach rather than actually codify the timeline that's realistic. Is it just affording them more discretion and flexibility? Will that potentially be used universally or could it risk favoritism being shown to particular manufacturers? 

Matt Bowgren's picture
Matt Bowgren on Mar 16, 2022

I think that DOE believes it will lead to a faster transition rather than setting a hard deadline that's acceptable to industry. It's also possible that they hope it will prevent lawsuits over how DOE handled these regulations. Normally, EISA-related rules have a minimum enforcement timeline of 3 years, but they can legally implement a phased approach as well:

If the Secretary determines that the standards in effect for general service incandescent lamps should be amended, the Secretary shall publish a final rule not later than January 1, 2022, with an effective date that is not earlier than 3 years after the date on which the final rule is published. (iv) Phased-in effective dates.--The Secretary shall consider phased-in effective dates under this subparagraph after considering-- (I) the impact of any amendment on manufacturers, retiring and repurposing existing equipment, stranded investments, labor contracts, workers, and raw materials; and (II) the time needed to work with retailers and lighting designers to revise sales and marketing strategies.

While it's possible that they could show favoritism to organizations with larger regulatory involvement, I'd also be concerned by the lack of transparency created by "enforcement discretion" actions, as they wouldn't have to publish these conversations anywhere nor publish how long they've given different manufacturers or retailers to comply. If it was clearly written in the ruling, then we'd all know and it would give the clarity and visibility needed for the industry to operate efficiently. 

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