DOE Should Scrap Proposal on Energy Efficiency Import Filing, Say CTA, Others
The Department of Energy should withdraw its recently issued proposal to require the filing of “certifications of admissibility” at time of entry for products subject to energy efficiency standards (see 1512310008), or at least suspend the rulemaking process while it does “further analysis and significant outreach,” said several trade groups in comments. The Feb. 29 joint comments from the groups, which included CTA, Association of Home Appliance Manufacturers, Information Technology Industry Council and National Customs Brokers & Forwarders Association of America, were posted Friday.
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Under the proposed rule, filers would be required to submit data elements in Customs and Border Protection's Automated Commercial Environment referring to importers’ annual certifications if on file with the agency, or product-specific data if no certificate is on file. The agency hopes the proposal will improve compliance with energy efficiency standards by prompting customs brokers to ask their importer clients whether products included in a given entry are subject to standards, forcing the importer to consider whether testing and certification are required, said DOE officials at a Feb. 19 public meeting on the proposed rule (see 1602190049).
But the Dec. 29 release of the proposed rule “during the peak holiday season, with little engagement with those potentially impacted by this complex proposal, was disappointing,” said the trade groups. Despite DOE’s extension of the comment period and the public workshop, the agency didn't provide enough time to understand and analyze the proposal, they said. The proposed requirements would necessitate the development of a new reporting plan, internal business practices and procedures, and the dedication of new resources, requiring that companies consult with several areas of their businesses, they said.
Nor did DOE provide adequate justification for the proposed requirements, said the associations. Though it referred to stopping noncompliant imports, the proposal didn't include any data on the level of noncompliance. “DOE has done nothing to justify the burden it proposes to impose on importers who are compliant,” they said. “Without such justification and supporting data and information, any final rule would meet the definition of arbitrary and capricious and would not pass muster under the Administrative Procedure Act.”
The proposed rule demonstrates an “apparent lack of interagency consultation,” resulting in “a proposal that confuses importers at best and, at worst, will bring trade to a halt at the border,” said the comments. “Before proceeding with the rulemaking, DOE should engage in increased coordination with CBP,” they said. “DOE should work with CBP, including the Centers for Excellence and Expertise, to utilize existing tools and infrastructure to achieve DOE’s goals. Adding a substantially greater number of data fields for importers to complete with duplicative information will not bolster DOE’s internal capabilities and resources. It will only result in costly compliance for importers while failing to achieve the underlying goal of compliance with U.S. energy and water conservation standards.”
Before proceeding with the rulemaking, DOE must clearly define why the rules are needed, obtain data to demonstrate the burden is justified, and “coordinate with relevant federal agencies and the regulated community to develop appropriate solutions,” said the associations. “Only after completing that process will DOE be in a position both to formulate a more reasonable and workable proposed rule, and to provide the data to support and focus the need for the rule.”