Manufacturers of household and commercial appliances and equipment will be able to write their own tests to determine the energy efficiency of products they make, and to do so with less government oversight, under a new Energy Department rule that joins a stampede of deregulatory moves the Trump administration is making before leaving office.

DOE sets efficiency standards and other requirements, such as water use, for about 60 categories of appliances and machinery sold in the U.S., including light bulbs, dehumidifiers, microwaves ovens, furnaces and transformers. Overall, the process covers hundreds of millions of products sold and used in the U.S.

But sometimes companies make models or products that can’t be tested under standard DOE assessments. Perhaps they have a new feature or design beyond what’s common industry-wide. So a company can apply for a waiver from the test procedure, in which they include a modified test, and DOE officials then deny or approve the alternative proposal before the product can be used.

Manufacturers typically talk with DOE about their waiver and proposed test before submitting it, said Joe Vukovich, a Natural Resources Defense Council attorney, adding that DOE usually grants waivers.

Companies can appeal a denial, and even sue over it, but Vukovich said he was unaware of such an instance.

[EPA move creates hurdles for future air, climate rules]

Under the new rule from DOE, slated to enter into force Jan. 11, companies could more easily skirt the standards by writing their own tests for their products. A manufacturer that wants to use its newly drafted test would have to ask DOE for its approval, but if the agency does not respond in 45 business days, an interim waiver would be automatically granted without department input.

The department did not respond to a request for comment. In finalizing its rule, DOE said the move was to address delays in processing waivers. The test rule, published Dec. 11, is mixed in a blitz of rules the Energy Department has finalized in recent weeks, including two President Donald Trump belabored on the campaign trail.

Under the rule change, if DOE ultimately denies the waiver, the company can still use its “flawed test procedure for 180 days,” Vukovich said.

On Tuesday, DOE finalized a different rule that raises the volume of water shower heads can deliver, a move the department said would provide “more water and comfort,” but which consumer groups say will cost the public water and money.

Low water flow is a bugbear of Trump’s.

“So shower heads — you take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So what do you do? You just stand there longer or you take a shower longer?” Trump said in August. “Because my hair — I don’t know about you, but it has to be perfect. Perfect.”

Speedy dishwashers

The department finished a separate rule on clothes washers and dryers Tuesday and finished a rule in October to create a new class of dishwashers that run faster. 

Trump touted his work to speed dishwashers on the campaign trail.

“The dishwashers, they had a little problem. They didn’t give enough water, so people would run them 10 times, so they end up using more water. And the thing’s no damn good. We freed it up,” Trump told a Nevada crowd in October. “Now you can buy a dishwasher and it comes out beautiful. Go buy a dishwasher. Go buy it.”

As DOE has rushed to finalize these rules, it has missed at least 28 deadlines for energy standards that Congress requests the department update.

Energy’s appliance testing policies will have saved an estimated $2 trillion in operating costs by 2030, from a 1987 baseline, according to the department. It says energy conservation standards saved the American public $63 billion on utility bills in 2015.

Outside experts said the change in test waivers could lead to fraud, likening the shift to automakers, most prominently Volkswagen, deceiving federal regulators’ emissions tests. 

“What the DOE has done opens a pathway for cheating,” Andrew deLaski, an appliance expert with the American Council for an Energy-Efficient Economy, a nonprofit advocacy group, said in an interview. “The new rule opens a pathway for scofflaws to get away with selling noncompliant products without fear of penalty by allowing them to game the test procedure they use for rating products.”

As businesses develop new products, it’s natural that old tests won’t always fit the latest items on the market, deLaski said.

“You have to go to the government and say, ‘Hey I’ve got this new whiz-bang thing, and I need a different way to test it.’ And then the government’s supposed to review that, and promptly say yay or nay,” deLaski said. “What the new rule says is that they only get 45 days to review it,” he said of DOE. “If they can’t get it done in 45 days, the answer is ‘Yay, go ahead.’”

There is precedent for companies gaming the tests, which lend credibility to the Energy Star label, a sought-after mark of approval among appliance manufacturers.

In 2009, DOE banned LG Electronics, the South Korean corporate giant, from using the Energy Star label on 20 of its refrigerators after independent labs found models did not meet federal test requirements. It was the French door models that failed DOE tests, in particular.

Energy has this calendar year alone reached 11 settlements with companies that violated its energy standards, according to a department tally. 

Getting an edge

Companies could get an edge up on the competition by using their own, less stringent test rather than the industry standard. Refrigerators, for example, have to be tested in environments with temperatures greater than 90 degrees to account for users opening the door. It’s meant to simulate real-world conditions. 

But a company that shirks the test rules could come up with its own scenario and run it at a lower temperature — something that has happened, said deLaski.

“Obviously that’s going to give you a much better rating,” he said. 

Vukovich, the NRDC attorney, said the department has done a good job overseeing the waiver process. 

“Even if you assume that most of the waiver applications have historically been legitimate, DOE has actively overseen that process,” he said.

However, he cautioned against complacency. “Assuming that the quality of the waiver applications won’t change when you change the waiver process is like assuming you can safely throw away your umbrella in a rainstorm because you aren’t currently getting wet,” Vukovich said.