[Federal Register Volume 72, Number 44 (Wednesday, March 7, 2007)]
[Rules and Regulations]
[Pages 10038-10049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3819]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 431

[Docket Nos. EE-RM/STD-03-100, EE-RM/STD-03-200, and EE-RM/STD-03-300]
RIN Nos. 1904-AB16, 1904-AB17, and 1904-AB44


Energy Efficiency Program for Certain Commercial and Industrial 
Equipment: Efficiency Standards for Commercial Heating, Air-
Conditioning, and Water-Heating Equipment

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Energy Policy and Conservation Act, as amended (EPCA), 
establishes energy conservation standards for various commercial and 
industrial equipment. EPCA further provides with respect to certain 
equipment covered by this rule, that if the American Society of 
Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and the 
Illuminating Engineering Society of North America (IESNA) amend ASHRAE/
IESNA Standard 90.1 as in effect on October 24, 1992, then the 
Department of Energy (DOE) must establish amended national standards at 
the ASHRAE/IESNA Standard 90-1 minimum energy efficiency levels unless 
DOE determines that evidence supports adoption of higher standard 
levels or certain other circumstances exist. ASHRAE/IESNA amended 
ASHRAE/IESNA Standard 90.1 on October 29, 1999 (ASHRAE/IESNA Standard 
90.1-1999), and DOE initiated this rulemaking to consider amendments to 
the national standards. DOE has concluded that it lacks authority to 
pursue higher standards for gas-fired instantaneous water heaters and 
large commercial packaged boilers. For small commercial packaged 
boilers with capacities greater than 300,000 Btu/h and less than or 
equal to 2.5 million British thermal units per hour, DOE is declining 
to adopt revised efficiency standards contained in the ASHRAE/IESNA 
Standard 90.1-1999 because the revised levels are less stringent than 
the current national standard. In addition, DOE has decided to conduct 
a separate rulemaking to consider whether standards at higher levels 
than those in the ASHRAE/IESNA Standard 90.1-1999 are warranted for 
packaged terminal air conditioners and packaged terminal heat pumps. 
Finally, DOE has concluded it does not have the authority to adopt, as 
uniform national standards, efficiency standards contained in Addenda f 
and b, respectively, to ASHRAE/IESNA Standard 90.1-2004 for three-phase 
air conditioners and heat pumps with cooling capacities less than 
65,000 British thermal units per hour, and single-package vertical air 
conditioners and single-package vertical heat pumps with cooling 
capacities less than 65,000 Btu/h.

DATES: Effective Date: April 6, 2007.

FOR FURTHER INFORMATION CONTACT: Maureen Murphy, Project Manager, U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121, (202) 586-0598, or e-mail 
[email protected].
    Francine Pinto, Esq., U.S. Department of Energy, Office of the 
General Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 
20585-0103, (202) 586-9507, or e-mail [email protected].

SUPPLEMENTARY INFORMATION:
I. Introduction
    A. Summary of Today's Actions
    B. Authority
    C. Background
    1. ASHRAE/IESNA Standard 90.1 and the Department of Energy's 
Response
    2. Subsequent Action by the Department of Energy
    3. The Energy Policy Act of 2005
II. Discussion of Comments and DOE Final Rule
    A. Large Commercial Packaged Boilers (Greater Than 2.5 million 
British Thermal Units Per Hour) and Gas-Fired Instantaneous Water 
Heaters
    B. Small Commercial Packaged Boilers (Greater Than 300,000 
British Thermal Units Per Hour and Less Than or Equal to 2.5 million 
British Thermal Units Per Hour)
    C. Packaged Terminal Air Conditioners and Packaged Terminal Heat 
Pumps
    D. Three-Phase Air Conditioners and Heat Pumps less than 65,000 
British Thermal Units Per Hour
    E. Single-Package Vertical Air Conditioners and Single-Package 
Vertical Heat Pumps Less Than 65,000 Btu/h
    F. Single-Package Vertical Air Conditioners and Single-Package 
Vertical Heat Pumps Greater Than or Equal to 65,000 Btu/h and Less 
Than 240,000 Btu/h
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Congressional Notification
IV. Approval of the Office of the Secretary

I. Introduction

A. Summary of Today's Actions

    Today's final rule addresses five categories of commercial 
equipment \1\: (1) Small and large commercial packaged boilers; (2) 
gas-fired instantaneous water heaters; (3) packaged terminal air 
conditioners (PTACs) and packaged terminal heat pumps (PTHPs); (4) 
three-phase air conditioners (ACs) and heat pumps (HPs) with cooling 
capacities less than 65,000 British thermal units per hour (Btu/h); and 
(5) single-package vertical air conditioners (SPVAC) and single-package 
vertical heat pumps (SPVHP), collectively referred to as single package 
vertical units (SPVUs).
---------------------------------------------------------------------------

    \1\ DOE uses the terms ``product'' and ``equipment'' 
interchangeably in this final rule. Where DOE refers to the 
categories of ``residential products'' covered by 10 CFR Part 430, 
DOE uses the phrase ``residential products.''
---------------------------------------------------------------------------

    By today's action, DOE is publishing a final rule that prescribes 
no amended standard. As discussed in section II.A through II.F of this 
notice, DOE has decided:

[[Page 10039]]

    (1) Not to amend the standards for large commercial packaged 
boilers (greater than 2.5 million Btu/h) and gas-fired instantaneous 
water heaters because ASHRAE/IESNA did not amend the levels for these 
products in ASHRAE/IESNA Standard 90.1-1999 and, thus, did not trigger 
the provision requiring DOE to amend the standards established under 
EPCA;
    (2) Not to amend the standards for small commercial packaged 
boilers (greater than 300,000 Btu/h and less than or equal to 2.5 
million Btu/h) because the ASHRAE/IESNA Standard 90.1-1999 levels for 
these products are less stringent than the existing EPCA standards;
    (3) Not to amend the standards for packaged terminal air 
conditioners and packaged terminal heat pumps because DOE will conduct 
a separate rulemaking to determine if clear and convincing evidence 
supports standard levels higher than those in ASHRAE/IESNA Standard 
90.1-1999;
    (4) Not to amend the standards for three-phase air conditioners and 
heat pumps less than 65,000 Btu/h because EPACT 2005 amended EPCA to 
provide that only an amendment to ASHRAE/IESNA Standard 90.1 as in 
effect on January 1, 2010, triggers DOE to amend the standards 
established under EPCA;
    (5) Not to amend the standards for single-package vertical air 
conditioners and single-package vertical heat pumps less than 65,000 
Btu/h because EPACT 2005 amended EPCA to provide that only an amendment 
to ASHRAE/IESNA Standard 90.1 as in effect on January 1, 2010, triggers 
DOE to amend the standards established under EPCA; and
    (6) Not to amend the standards for single-package vertical air 
conditioners and single-package vertical heat pumps greater than or 
equal to 65,000 Btu/h and less than 240,000 Btu/h because DOE has 
determined that these products are covered by standards established by 
EPACT 2005 for large commercial package air conditioning and heating 
equipment with cooling capacities greater than or equal to 65,000 Btu/h 
and less than 760,000 Btu/h.

B. Authority

    Part C of Title III of EPCA addresses the energy efficiency of 
certain types of commercial and industrial equipment. (42 U.S.C. 6311-
6317) It contains, for example, specific mandatory energy conservation 
standards for tankless, gas-fired IWHs; PTACs and PTHPs; small and 
large commercial packaged boilers; and commercial package air-
conditioning and heating equipment. The latter category includes three-
phase ACs and HPs with cooling capacities less than 65,000 Btu/h, as 
well as SPVACs and SPVHPs with cooling capacities less than 65,000 Btu/
h. (42 U.S.C. 6313(a)(1)-(5))
    The energy conservation standards set forth in EPCA for these and 
related types of commercial and industrial equipment generally 
correspond to the levels in ASHRAE/IESNA Standard 90.1, effective 
October 24, 1992 (ASHRAE/IES Standard 90.1-1989). Pursuant to section 
342(a)(6)(A)(i) of EPCA, DOE, except in certain circumstances, must 
amend energy conservation standards for the listed ASHRAE equipment if 
ASHRAE amends ASHRAE/IESNA Standard 90.1. With respect to certain types 
of commercial and industrial equipment, including all of the equipment 
covered by today's rule, prior to the enactment of Energy Policy Act of 
2005 (EPACT 2005), any amendment of ASHRAE/IES Standard 90.1, as in 
effect on October 24, 1992 (the date of enactment of the Energy Policy 
Act of 1992) would trigger DOE action for adopting amended uniform 
national standards for this equipment. EPACT 2005 changed the October 
24, 1992, date for small and large commercial package air conditioning 
and heating equipment, so that only an amendment of ASHRAE/IES Standard 
90.1 as in effect on January 1, 2010, would trigger DOE action to adopt 
amended uniform national standards. Pursuant to EPACT 2005, this 
provision also applies to ``very large'' commercial package air 
conditioning and heating equipment. Id. Any SPVU with a cooling 
capacity below 760,000 Btu/h would be within the definition of small, 
large, or very large commercial package air conditioning and heating 
equipment. (42 U.S.C. 6311(8)(A)-(D))
    Under certain circumstances delineated in EPCA, DOE may adopt 
standards more stringent than the levels in amendments to ASHRAE/IES 
Standard 90.1. (42 U.S.C. 6313(6)(A)(i)-(ii)) In any such rulemaking, 
the rule must contain the amended standard. The Secretary may not 
prescribe any amended standard that increases maximum allowable energy 
use, or decreases the minimum required energy efficiency, of the 
covered equipment. (42 U.S.C. 6313(a)(6)(B)(ii)) Furthermore, the 
Secretary may not prescribe an amended standard if the Secretary 
publishes a finding that interested persons have established by a 
preponderance of evidence that the amended standard is likely to result 
in the unavailability in the United States of products with performance 
characteristics (including reliability), features, sizes, capacities, 
and volumes that are substantially the same as those generally 
available in the United States at the time of the Secretary's finding. 
(42 U.S.C. 6313(a)(6)(B)(ii))

C. Background

1. ASHRAE/IESNA Standard 90.1 and the Department of Energy's Response 
\2\
---------------------------------------------------------------------------

    \2\ A more detailed discussion of the ASHRAE process can be 
found in DOE's Notice of Availability and request for public comment 
on this rulemaking published on March 13, 2006 in the Federal 
Register. 71 FR 12634.
---------------------------------------------------------------------------

    On October 29, 1999, ASHRAE approved and published ASHRAE/IESNA 
Standard 90.1-1999, which addressed efficiency levels for many 
categories of commercial heating, ventilating, air-conditioning (HVAC), 
and water-heating equipment covered by EPCA. ASHRAE/IESNA Standard 
90.1-1999 revised the efficiency levels in ASHRAE/IESNA Standard 90.1-
1989 for certain equipment. For the remaining equipment, ASHRAE left 
the preexisting levels in place after considering revising the levels 
for some equipment and deferring consideration of others.
    Following publication of ASHRAE/IESNA Standard 90.1-1999, DOE 
performed a screening analysis for the categories of equipment for 
which ASHRAE addressed efficiency levels in ASHRAE/IESNA Standard 90.1, 
to determine what action DOE would take with respect to these levels. 
65 FR 10984. Upon completion of the screening analysis, DOE published a 
notice of document availability and public workshop on May 15, 2000. 
The May 15, 2000, notice invited written comments on the screening 
analysis and DOE's planned actions and described the screening analysis 
and announced its availability to the public. 65 FR 30929. For each 
equipment category for which ASHRAE adopted or considered an amended 
efficiency level, the notice stated what action DOE was inclined to 
take. 65 FR 30935. ASHRAE did not amend the standard levels for three-
phase ACs and HPs with cooling capacities less than 65,000 Btu/h at 
that time. However, it was DOE's understanding that the ASHRAE Standard 
90.1 committee intended to amend the levels once the DOE rulemaking for 
residential central air conditioners energy efficiency standards had 
been completed. Based on ASHRAE's action and DOE's understanding of the 
ASHRAE Standard 90.1 committee's intention to adopt the same level as 
DOE adopted for residential central air conditioners, DOE stated that 
it had decided to take no action until ASHRAE had amended ASHRAE/IESNA 
Standard 90.1's

[[Page 10040]]

efficiency levels for three-phase ACs and HPs with cooling capacities 
less than 65,000 Btu/h. 71 FR 12643. In Addendum f to ASHRAE/IESNA 
Standard 90.1-2004, ASHRAE adopted the same minimum energy efficiency 
standards for this equipment as DOE had adopted for residential central 
air conditioners. ASHRAE adopted Addendum f to ASHRAE/IESNA Standard 
90.1-2004 on April 1, 2006.
    Following the public meeting on July 11, 2000, DOE adopted the 
efficiency levels in ASHRAE/IESNA Standard 90.1-1999 as uniform 
national standards to replace existing EPCA levels for 18 categories of 
commercial equipment in the January 2001 final rule. 66 FR 3335, 3336-
37, 3349-52 (January 12, 2001). DOE also rejected the ASHRAE/IESNA 
Standard 90.1-1999 levels for electric water heaters, leaving the EPCA 
level in place for that equipment. 66 FR 3337.
    In this same final rule, for 11 categories of commercial 
equipment,\3\ DOE stated it would evaluate whether to adopt more 
stringent standards than those contained in ASHRAE/IESNA Standard 90.1-
1999. 66 FR 3336-38, 3349-52. For the four categories of three-phase 
air-conditioning equipment that ASHRAE had not addressed in ASHRAE/
IESNA Standard 90.1-1999, DOE understood that ASHRAE intended to amend 
its efficiency levels for this equipment in conjunction with the then-
pending DOE standards rulemaking for similar, single-phase residential 
products.\4\ The standard levels prescribed in EPCA and ASHRAE/IESNA 
Standard 90.1-1999 for these 15 equipment categories \5\ appear in 
Tables I.1 and I.2. EPACT 2005 included energy efficiency standards for 
some of these commercial air conditioners and heat pumps; those new 
standards also appear in Tables I.1 and I.2. EPACT 2005 prescribed more 
stringent standards than those contained in ASHRAE/IESNA Standard 90.1-
1999 for commercial package air-conditioning and heating equipment with 
cooling capacities between 65,000 Btu/h and 240,000 Btu/h as listed in 
Table I.1.\6\
---------------------------------------------------------------------------

    \3\ These eleven products include small commercial package air-
conditioning and heating equipment with capacities greater than or 
equal to 65,000 Btu/h and less than 135,000 Btu/h, large commercial 
package air-conditioning and heating equipment with capacities 
greater than or equal to 135,000 Btu/h and less than 240,000 Btu/h, 
packaged terminal air conditioners and heat pumps, small, gas-fired 
and oil-fired, commercial packaged boilers greater than 300,000 Btu/
h and less than or equal to 2,500,000 Btu/h, large, gas-fired and 
oil-fired, commercial packaged boilers greater than 2,500,000 Btu/h, 
and gas-fired instantaneous water heaters.
    \4\ The four categories of three-phase commercial air 
conditioners and air conditioning hear pumps are: Commercial three-
phase, air-source, split-system air conditioners with cooling 
capacities less than 65,000 Btu/h, commercial three-phase, air-
source, single split-system heat pumps with cooling capacities less 
than 65,000 Btu/h, commercial three-phase, air-source, single 
package air conditioners with cooling capacities less than 65,000 
Btu/h, and commercial three-phase, air-source, single package heat 
pumps with cooling capacities less than 65,000 Btu/h.
    \5\ These fifteen products include the eleven products and four 
categories of commercial three-phase commercial air conditioners and 
air conditioning heat pumps identified above.
    \6\ SPVUs are specific types of small and large commercial 
package air-conditioning and heating equipment. ASHRAE did not 
recognize and evaluate them as separate equipment categories in 
ASHRAE/IESNA Standard 90.1-1999, nor did EPCA recognize them as 
separate equipment categories.

                                Table I.1.--Energy Conservation Standards for Commercial Air Conditioners and Heat Pumps
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Standard efficiency level*
              Product                       Capacity/        -------------------------------------------------------------------------------------------
                                         characteristics                  EPCA             ASHRAE/IESNA  standard 90.1-1999           EPACT 2005
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Commercial Package Air-        <65 kBtu/h Air-Cooled,   SEER: 10.0                   SEER: 10.0                        Not addressed.
 Conditioning and Heating Equipment.  3-Phase, Central Split- HSPF: 6.8                    HSPF: 6.8
                                      System AC, HP
                                    --------------------------------------------------------------------------------------------------------------------
                                     <65 kBtu/h Air-Cooled,   SEER: 9.7                    SEER: 9.7                         Not addressed.
                                      3-Phase, Central        HSPF: 6.6                    HSPF: 6.6
                                      Single-Package AC, HP
                                    --------------------------------------------------------------------------------------------------------------------
                                     >=65 kBtu/h and <135     EER: 8.9 **                  EER: 10.3 **                      EER: 11.2
                                      kBtu/h Air-Cooled,                                                                      **[dagger][dagger]
                                      Central AC
                                    --------------------------------------------------------------------------------------------------------------------
                                     >=65 kBtu/h and <135     EER: 8.9 **                  EER: 10.3 **                      EER: 11.0 **
                                      kBtu/h Air-Cooled,      COP: 3.0[dagger]             COP: 3.2[dagger]                  COP: 3.3[dagger]
                                      Central HP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Large Commercial Package Air-        >=135 kBtu/h and <240    EER: 8.5 **                  EER: 9.7 **                       EER: 11.0
 Conditioning and Heating Equipment.  kBtu/h Air-Cooled,                                                                      **[dagger][dagger]
                                      Central AC
                                    --------------------------------------------------------------------------------------------------------------------
                                     >=135 kBtu/h and <240    EER: 8.5 **                  EER: 9.3 **                       EER: 10.6 **
                                      kBtu/h Air-Cooled,      COP: 2.9[dagger]             COP: 3.1[dagger]                  COP: 3.2[dagger]
                                      Central HP
--------------------------------------------------------------------------------------------------------------------------------------------------------
Packaged Terminal Air Conditioners   Air-Cooled               EER, COP vary by capacity    EER, COP vary by capacity         Not addressed.
 and Heat Pumps.                                               according to formulas for    according to formulas for each
                                                               each                         (different formulas for new
                                                                                            construction and replacement
                                                                                            equipment)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Heating efficiency levels do not apply to cooling-only air conditioners.
**At 95 F dry-bulb temperature.
[dagger] At 47 F dry-bulb temperature.
[dagger][dagger]This EER level applies to equipment that has electric resistance heat or no heating. For all other package air-conditioning equipment
  with heating system types that are integrated into the equipment, deduct 0.2 EER.


[[Page 10041]]


               Table I.2.--Energy Conservation Standards for Commercial Boilers and Water Heaters*
----------------------------------------------------------------------------------------------------------------
                                                                   Standard efficiency level**
        Product                 Capacity/       ----------------------------------------------------------------
                             characteristics              EPCA               ASHRAE/IESNA  standard 90.1-1999
----------------------------------------------------------------------------------------------------------------
Packaged Boilers, Oil-   >300 kBtu/h             Combustion Efficiency   Thermal Efficiency \**\:
 and Gas-Fired           <=2,500 kBtu/h           \**\:                  Gas-Fired--75%
                                                 Gas-Fired--80%          Oil-Fired--78%
                                                 Oil-Fired--83%
                        ----------------------------------------------------------------------------------------
                         >2,500 kBtu/h           Combustion Efficiency   Combustion Efficiency \**\:
                                                  \**\:                  Gas-Fired--80%
                                                 Gas-Fired--80%          Oil-Fired--83%
                                                 Oil-Fired--83%
----------------------------------------------------------------------------------------------------------------
Gas-Fired Instantaneous  <10 gallons             Thermal Efficiency:     Thermal Efficiency: 80%
 Water Heaters                                    80%
----------------------------------------------------------------------------------------------------------------
\*\ EPACT 2005 did not address this equipment.
\**\ At maximum rated capacity.

2. Subsequent Action by the Department of Energy
    DOE reviewed the energy savings potential of increased energy 
efficiency levels for several types of equipment covered by ASHRAE/
IESNA Standard 90.1-1999 and, on March 13, 2006, issued a notice of 
document availability and request for comments (hereafter referred to 
as the March 2006 NOA) in the Federal Register announcing the 
availability of a Technical Support Document (TSD) that set forth this 
review, and requested public comment on the TSD. 71 FR 12634. In the 
March 2006 NOA, DOE also announced the approaches it was inclined to 
take for the equipment as summarized in Table I.3, below. Id at 12637.

Table I.3.--Summary of Potential DOE Actions by Product as Stated in the
                             March 2006 NOA
------------------------------------------------------------------------
           Product                            DOE's action
------------------------------------------------------------------------
PTACs and PTHPs..............  Initiate a rulemaking to consider more
                                stringent standards.
Small Commercial Packaged      Reject ASHRAE/IESNA Standard 90.1-1999
 Boilers (0.3-2.5 MMBtu/h).     efficiency levels.
Gas-Fired IWHs...............  DOE does not have authority to pursue a
                                standard level higher than those
                                specified in ASHRAE/IESNA Standard 90.1-
                                1999.
Large Commercial Packaged      DOE does not have authority to pursue a
 Boilers (>2.5 MMBtu/h).        standard level higher than those
                                specified in ASHRAE/IESNA Standard 90.1-
                                1999.
Three-Phase ACs and HPs        Adopt Addendum f to ASHRAE/IESNA Standard
 (<65,000 Btu/h).               90.1-2004 once ASHRAE formally adopts
                                this addendum.
SPVUs (<65,000 Btu/h)........  DOE invited comments on the potential
                                energy savings estimates and the
                                appropriateness of adopting as federal
                                standards the efficiency levels
                                contained in Addendum b of ASHRAE/IESNA
                                Standard 90.1-2004.
------------------------------------------------------------------------

3. The Energy Policy Act of 2005
    DOE's authority to amend Federal energy conservation standards for 
equipment covered by ASHRAE/IES Standard 90.1 (ASHRAE equipment) is 
found in 42 U.S.C. 6313(a)(6), which, as amended by EPACT 2005, states 
as follows:

(6)(A)(i) If ASHRAE/IES Standard 90.1, as in effect on January 1, 
2010, is amended with respect to any small commercial package air 
conditioning and heating equipment, large commercial package air 
conditioning and heating equipment, and very large commercial 
package air conditioning and heating equipment, or if ASHRAE/IES 
Standard 90.1, as in effect on October 24, 1992, is amended with 
respect to any packaged terminal air conditioners, packaged terminal 
heat pumps, warm-air furnaces, packaged boilers, storage water 
heaters, instantaneous water heaters, or unfired hot water storage 
tanks, the Secretary shall establish an amended uniform national 
standard for that product at the minimum level for each effective 
date specified in the amended ASHRAE/IES Standard 90.1, unless the 
Secretary determines, by rule published in the Federal Register and 
supported by clear and convincing evidence, that adoption of a 
uniform national standard more stringent than such amended ASHRAE/
IES Standard 90.1 for such product would result in significant 
additional conservation of energy and is technologically feasible 
and economically justified.
    (ii) If ASHRAE/IES standard 90.1 is not amended with respect to 
small commercial package air conditioning and heating equipment, 
large commercial package air conditioning and heating equipment, and 
very large commercial package air conditioning and heating equipment 
during the 5-year period beginning on the effective date of a 
standard, the Secretary may initiate a rulemaking to determine 
whether a more stringent standard--
    (I) Would result in significant additional conservation of 
energy; and
    (II) Is technologically feasible and economically justified.

(42 U.S.C. 6313(a)(6)(A)(i)-(ii)) \7\ Pursuant to this section, DOE's 
authority to amend energy conservation standards for the listed ASHRAE 
equipment is triggered by ASHRAE action amending ASHRAE/IES Standard 
90.1. With respect to small and large commercial package air 
conditioning and heating equipment (as well as all other ASHRAE 
equipment listed in this section), prior to the enactment of EPACT 
2005, any amendment of ASHRAE/IES Standard 90.1, as in effect on 
October 24, 1992, (the date of enactment of the Energy Policy Act of 
1992) would trigger DOE action for adopting amended uniform national 
standards. EPACT 2005 changed the October 24, 1992, date for the

[[Page 10042]]

commercial package air conditioning and heating equipment, so that only 
an amendment of ASHRAE/IES 90.1 as in effect on January 1, 2010, would 
trigger DOE action to adopt amended uniform national standards. This 
provision applies to small and large air conditioning and heating 
equipment, as well as to very large equipment, which EPACT 2005 added 
to EPCA.
---------------------------------------------------------------------------

    \7\ DOE does not have the authority to establish energy 
conservation standards for the ASHRAE equipment on its own 
initiative. ASHRAE sets voluntary guidelines for this equipment in 
ASHRAE/IESNA Standard 90.1.
---------------------------------------------------------------------------

    In addition, section 136(b) of EPACT 2005 amended section 342(a) of 
EPCA (42 U.S.C. 6313(a)) by prescribing new energy conservation 
standards for certain small (greater than or equal to 65,000 Btu/h to 
less than 135,000 Btu/h), for large (greater than or equal to 135,000 
Btu/h to less than 240,000 Btu/h), and for very large (greater than or 
equal to 240,000 Btu/h to less than 760,000 Btu/h) commercial package 
air conditioners and heat pumps.\8\ DOE concluded that the EPACT 2005 
standards implicitly cover SPVUs greater than or equal to 65,000 Btu/h 
to less than 760,000 Btu/h as further discussed below, but EPACT 2005 
standards do not address or cover SPVUs less than 65,000 Btu/h. 71 FR 
12634, 12638.
---------------------------------------------------------------------------

    \8\ Single package vertical air conditioners and single package 
vertical heat pumps that are within these capacity ranges are small, 
large and very large commercial package air conditioners and heat 
pumps since they are commercial products (i.e., distributed for 
commercial applications) and meet EPCA's definition for ``commercial 
package air conditioning and heating equipment.'' (42 U.S.C. 
6311(8))
---------------------------------------------------------------------------

II. Discussion of Comments

A. Large Commercial Packaged Boilers (Greater Than 2.5 Million British 
Thermal Units Per Hour) and Gas-Fired Instantaneous Water Heaters

    EPCA specifies minimum energy conservation standards for certain 
categories of commercial equipment, including gas-fired IWHs and large 
commercial packaged boilers. (42 U.S.C. 6313(a)(1)-(5)) ASHRAE/IESNA 
Standard 90.1 also covers these types of equipment, and the efficiency 
requirements in EPCA correspond with the ASHRAE/IESNA Standard 90.1-
1989 levels effective October 24, 1992. (42 U.S.C. 6313(a)(4) and (5))
    ASHRAE, in adopting ASHRAE/IESNA Standard 90.1-1999, left in place 
the pre-existing ASHRAE/IES Standard 90.1-1989 minimum efficiency 
levels for gas-fired IWHs and large commercial packaged boilers. Thus, 
the efficiency levels in ASHRAE/IESNA Standard 90.1-1999 for this 
equipment are the same as the ASHRAE/IES Standard 90.1-1989 and EPCA 
levels.
    In the March 1, 2000, notice of preliminary screening analysis, the 
May 15, 2000, notice of document availability and public workshop, and 
the January 2001 final rule, DOE indicated its belief that it had the 
authority to consider more stringent standard levels for equipment for 
which ASHRAE had considered adopting more stringent levels but declined 
to change the efficiency levels for such equipment when publishing 
ASHRAE/IESNA Standard 90.1-1999. 71 FR 12642. However, in the March 
2006 NOA, DOE reexamined its authority under EPCA to amend standards 
for gas-fired IWHs and large commercial package boilers and concluded 
that its earlier view was in error. 71 FR 12642
    Specifically, DOE has concluded that the statutory trigger that 
requires DOE to adopt uniform national standards based on ASHRAE action 
is for ASHRAE to amend a standard for any of the equipment listed in 
EPCA section 342(a)(6)(A)(i) (42 U.S.C. 6313 (a)(6)(A)(i)) by 
increasing the energy efficiency level for that equipment type. If 
ASHRAE merely considers raising the standards for any of the listed 
equipment in this section, except for small, large, and very large 
commercial package air conditioning and heating equipment, but 
ultimately decides to leave the standard levels unchanged or lowers the 
standard, DOE does not have the authority to conduct a rulemaking for 
higher standards for that equipment. With respect to small, large, and 
very large commercial package air conditioning and heating equipment, 
under 42 U.S.C. 6313 (a)(6(A)(ii), DOE has the authority to initiate a 
rulemaking proceeding to determine whether more stringent standards are 
justified if ASHRAE has not amended standards for this equipment within 
five years following the effective date of a standard. Furthermore, if 
ASHRAE amends its standards with more stringent standards for a 
specific subset of the listed equipment, consistent with the above 
exception, DOE only has the authority to adopt the ASHRAE levels for 
the specific subset of equipment and its effective dates specified in 
the amended ASHRAE standard. DOE may under certain circumstances 
delineated in EPCA adopt a standard more stringent than the amended 
level in ASHRAE/IESNA Standard 90.1.
    Before DOE can adopt an ASHRAE standard for a product pursuant to 
section 342, the plain language in section 342 requires that ASHRAE 
must have amended the standard in ASHRAE/IESNA Standard 90.1 for that 
specific product. Once ASHRAE has amended a standard for ``any'' 
equipment listed in section 342, section 342 requires the Secretary to 
``establish an amended uniform national standard for that product at 
the minimum level for each effective date specified in the amended 
ASHRAE/IESNA Standard 90.1, unless the Secretary determines * * * that 
adoption of a * * * more stringent [standard] for such product'' is 
warranted. (Id. Emphasis added.) The authority provided in section 
342(a)(6)(a)(i) is clearly limited to only those products for which 
ASHRAE has amended the standard; i.e., authority for ``that product.''
    The intent of section 342, generally, is for DOE to maintain 
uniform national standards consistent with those set in ASHRAE/IESNA 
Standard 90.1. Given this intent, if ASHRAE has not amended a standard 
for a product subject to section 342, there is no change which would 
require action by DOE to consider amending the uniform national 
standard to maintain consistency with ASHRAE/IESNA Standard 90.1.
    In the case of large commercial packaged boilers and gas-fired 
IWHs, ASHRAE considered amending the standards but ultimately chose not 
to do so. Therefore, the statutory trigger for DOE to adopt ASHRAE's 
amended standards did not occur with respect to this equipment. 
Contrary to stakeholder argument, DOE does not have the authority to 
amend the standards for large commercial packaged boilers and gas-fired 
IWHs based on ASHRAE's amendments to ASHRAE/IESNA Standard 90.1, which 
did not amend the standards for large commercial packaged boilers and 
gas-fired IWHs. The statutory language specifically links ASHRAE's 
action in amending standards for specific equipment to DOE's action for 
those same equipment. Accordingly, since ASHRAE did not amend standards 
for this equipment, DOE has no rulemaking authority to amend standards 
for this equipment at this time.
    The Alliance to Save Energy (ASE), the American Council for an 
Energy-Efficient Economy (ACEEE), the Appliance Standards Awareness 
Project (ASAP), the Natural Resources Defense Council (NRDC), the 
Northeast Energy Efficiency Partnerships (NEEP), and the Northwest 
Power and Conservation Council (NWPCC) submitted a combined comment 
(collectively referred to as ``Joint Comment'') which stated that DOE 
must review the standards for both large commercial packaged boilers 
and gas-fired IWHs. (Joint Comment, No. 27 at pp. 3-4) \9\ The

[[Page 10043]]

Joint Comment asserted that ASHRAE's ``comprehensive review of all 
EPCA-related standards which culminated in issuance of ASHRAE 90.1-1999 
triggers the required review by DOE of all EPCA standards based on 
ASHRAE 90.1'' Furthermore, the Joint Comment claimed that ASHRAE should 
not be permitted to shelter specific standards from DOE review by 
leaving them unchanged. However, the Joint Comment did not provide a 
rationale for DOE to reject the position taken in the March 2006 NOA 
and discussed above. Therefore, DOE does not believe the Joint Comment 
provided any information that would cause DOE to change its 
interpretation of EPCA as explained the March 2006 NOA and explained 
above. DOE rejects the Joint Comment's position.
---------------------------------------------------------------------------

    \9\ A notation in the form ``Joint Comment, No. 27 at pp. 3-4'' 
identifies a written comment DOE has received and has included in 
the docket of this rulemaking. This particular notation refers to a 
comment (1) by the Joint Comment, (2) in document number 27 in the 
docket of this rulemaking (maintained in the Resource Room of the 
Building Technologies Program), and (3) appearing on page 3 and 4 of 
document number 27.
---------------------------------------------------------------------------

    Additionally, the Joint Comment suggested that if ASHRAE revises a 
standard for a subset of a product class, then DOE is required under 
EPCA to consider revised standards for the larger product class. For 
large commercial packaged boilers, the Joint Comment suggested that DOE 
is obligated to conduct a standards rulemaking instead of leaving the 
ASHRAE/IESNA Standard 90.1-1989 levels in place. The Joint Comment 
noted that when ASHRAE developed ASHRAE/IESNA Standard 90.1-1999, it 
examined efficiency levels for all packaged boilers, it created two 
product classes--``small boilers'' and ``large boilers''--and it set a 
new efficiency level for small boilers while leaving in place the 
existing level for large boilers. The Joint Comment asserted that 
ASHRAE's revision of efficiency levels for the newly created product 
class of ``small boilers'' triggers a review of the entire category of 
packaged boilers as defined by EPCA. The Joint Comment further 
contended that DOE's proposed position that it lacks authority to 
review the standard level for large boilers means that ASHRAE has 
unfettered power to create new classes of equipment and to shelter them 
from DOE review and from higher national standards. This, they 
contended, would conflict with the intent of EPCA that ASHRAE have the 
lead in developing higher standards for certain equipment, but that 
these standards are subject to DOE review. (Joint Comment, No. 27, pp. 
3-4) However, based on the language of EPCA (42 U.S.C. 6313 
(a)(6)(A)(i)), discussed above, DOE finds no basis for accepting the 
Joint Comments' contention that ASHRAE's revision of efficiency levels 
for a product class or subclass triggers a review by DOE of the 
standards for that entire product category.
    In sum, DOE does not believe the Joint Comment provides a basis for 
DOE to conclude that the interpretation presented in the March 2006 NOA 
(71 FR 12634) was incorrect. Accordingly, since ASHRAE did not amend 
the efficiency levels in ASHRAE/IESNA Standard 90.1-1999 for large 
commercial packaged boilers or gas-fired IWHs, DOE concludes it does 
not have the authority to increase the current standard levels for such 
equipment.

B. Small Commercial Packaged Boilers (Greater Than 300,000 British 
Thermal Units Per Hour and Less Than or Equal to 2.5 Million British 
Thermal Units Per Hour)

    EPCA prescribes a minimum combustion efficiency of 80 percent for 
gas-fired commercial packaged boilers and 83 percent for oil-fired 
commercial packaged boilers, regardless of capacity. (42 U.S.C. 
6313(a)(4)(C)-(D)) ASHRAE/IESNA Standard 90.1-1999 prescribes for small 
boilers (greater than 300 thousand Btu/h and less than or equal to 2.5 
million Btu/h) thermal efficiency levels of 75 percent for gas-fired 
equipment and 78 percent for oil-fired equipment. In January 2001, when 
it adopted as Federal standards certain efficiency levels in ASHRAE/
IESNA Standard 90.1-1999, DOE stated that it would evaluate whether 
standard levels higher than those in ASHRAE/IESNA Standard 90.1-1999 
are justified for small commercial packaged boilers. 66 FR at 3336-38, 
3349-52.
    In the March 2006 NOA, DOE tentatively concluded that the ASHRAE/
IESNA Standard 90.1-1999 thermal efficiency levels for small commercial 
packaged boilers would have the effect of lowering minimum combustion 
efficiency levels required by EPCA by allowing increased energy 
consumption. 71 FR 12640. Thermal and combustion efficiency are related 
in that thermal efficiency is a function of both flue losses (i.e., 
combustion efficiency) and jacket losses, although the amounts of these 
two types of losses in a given boiler can be independent of one 
another. DOE observed that the minimum thermal efficiency levels in 
ASHRAE/IESNA Standard 90.1-1999 appear to be lower than the average 
thermal efficiencies of boilers that minimally comply with the EPCA's 
combustion energy efficiency standards. 71 FR 12640. The practical 
consequence of setting thermal efficiency standards at levels lower 
than the thermal efficiencies of existing equipment would allow for the 
possibility of equipment having lower combustion efficiencies than EPCA 
permits, meaning that the current minimum required efficiency would be 
decreased in violation of 42 U.S.C. 6313(a)(6)(B)(ii)). Consequently, 
DOE stated in the March 2006 NOA that it was inclined to reject the 
ASHRAE/IESNA Standard 90.1-1999 levels for small commercial packaged 
boilers and leave the existing EPCA standards in place. 71 FR 12641
    DOE did not receive any comments objecting to its rejection of the 
ASHRAE/IESNA Standard 90.1-1999 levels for small commercial packaged 
boilers, although the Joint Comment argued that DOE must move forward 
with a rulemaking for commercial boilers instead of leaving the ASHRAE/
IESNA Standard 90.1-1989 levels in place as national standards for 
small packaged boilers. The Joint Comment noted that these standards 
are 17 years old, and claimed the March 2006 NOA and TSD demonstrate 
that more stringent levels for small commercial packaged boilers than 
those in ASHRAE/IESNA Standard 90.1-1999 are technologically feasible 
and economically justifiable. The Joint Comment also indicated that the 
magnitude of the potential energy savings for this equipment provides a 
more than ample reason for DOE to reexamine this standard. (Joint 
Comment, No. 27, p. 3)
    While DOE agrees with the Joint Comment that the ASHRAE/IESNA 
Standard 90.1 levels for this equipment have been in place since 1989 
and that more energy efficient equipment can save energy, the mere 
potential for energy savings does not justify a DOE rulemaking. As 
stated above, DOE is rejecting the amended ASHRAE/IESNA Standard 90.1-
1999 efficiency levels for small commercial packaged boilers and 
believes that, consistent with section 342 in EPCA, the proper venue to 
consider more stringent standards for this equipment is the ASHRAE 
process itself. Moreover, as noted by the Joint Comment, ACEEE has 
recommended to ASHRAE that it amend ASHRAE/IESNA Standard 90.1 to adopt 
new, more stringent standards for this equipment. DOE commends ACEEE's 
initiative, and encourages ASHRAE to examine whether more stringent 
standards are warranted for this equipment.
    Furthermore, DOE considered whether ASHRAE's action to reduce the 
standard for a class or type of commercial equipment would be a

[[Page 10044]]

change in the standard that would trigger a DOE standards rulemaking. 
DOE has concluded that such an action by ASHRAE would not trigger a DOE 
rulemaking since EPCA is clear that DOE cannot change a standard to 
reduce its stringency. (42 U.S.C. 6313(a)(6)(B)(ii)) Both Part B for 
consumer products and Part C for commercial and industrial equipment 
direct that ``[t]he Secretary may not prescribe any amended standard * 
* * which increases the maximum allowable energy use, or decreases the 
minimum required energy efficiency * * *'' (42 U.S.C. 6295(o)(1) and 42 
U.S.C. 6313 (a)(6)(B)(ii), respectively) It is a fundamental principle 
in EPCA's statutory scheme that DOE cannot amend standards downward; 
that is, weaken standards, from those that have been published as a 
final rule. Natural Resources Defense Council v. Abraham, 355 F.3d 179 
(2nd Cir. 2004).
    Therefore, DOE believes that in order to consider amended 
efficiency levels for this equipment, DOE must review the amended 
ASHRAE/IESNA Standard 90.1 to determine if it meets this EPCA 
requirement and if it does not meet this EPCA requirement, that is, if 
the efficiency levels in the amended ASHRAE/IESNA Standard 90.1 are 
less stringent than existing standards, DOE cannot further consider the 
amended efficiency levels. Accordingly, as stated in the March 2006 
NOA, today's final rule will leave the existing EPCA standards in place 
for small commercial boilers.

C. Packaged Terminal Air Conditioners and Packaged Terminal Heat Pumps

    Section 342(a)(3) of EPCA (42 U.S.C. 6313(a)(3)) and ASHRAE/IESNA 
Standard 90.1-1999 set forth energy conservation standards for PTACs 
and PTHPs, which are collectively referred to as PTAC/HPs in today's 
notice of final rulemaking. The energy conservation standards in 
ASHRAE/IESNA Standard 90.1-1999 vary based on the cooling capacity of 
the equipment.
    EPCA prescribes a single formula for determining the minimum 
cooling efficiency (EER) for all PTAC/HPs and a single formula for 
computing the minimum heating efficiency (COP) for all PTHPs. In 
contrast, ASHRAE/IESNA Standard 90.1-1999 further delineates the 
product categories and consists of two sets of formulas for calculation 
of the energy conservation standards. One set is for PTAC/HPs with wall 
sleeves less than 16 inches high and 42 inches wide, and a label 
indicating the equipment is for replacement use, which ASHRAE/IESNA 
Standard 90.1-1999 classifies as ``replacement'' units. The other 
formula is for all other PTAC/HPs, which ASHRAE/IESNA Standard 90.1-
1999 classifies as ``new construction'' units. The resulting minimum 
efficiency levels for ``replacement'' units are slightly higher than 
the EPCA levels, and the levels for ``new construction'' units are 
substantially higher than the EPCA levels. In addition, ASHRAE/IESNA 
Standard 90.1-1999 have slightly different requirements for the cooling 
modes of PTACs and PTHPs, whereas EPCA prescribes a single formula for 
air conditioners and heat pumps.
    In the March 2006 NOA, DOE recognized that the market for PTACs and 
PTHPs has substantially changed since publication of the January 2001 
final rule. 71 FR 12639. DOE stated in the March 2006 NOA that the 
market has changed to efficiency levels at or above the levels in 
ASHRAE/IESNA Standard 90.1-1999 in the absence of Federal standards. 
DOE examined the January 2003 Air-Conditioning and Refrigeration 
Institute (ARI) Directory for PTAC/HPs and found that 52 percent of the 
listed PTACs are at, or above, the ASHRAE/IESNA Standard 90.1-1999 
efficiency level for new construction equipment, and 98 percent of the 
listed PTACs are at or above the ASHRAE/IESNA Standard 90.1-1999 
efficiency level for replacement equipment. Id. In addition, DOE found 
that 72 percent of the listed PTHPs are at or above the ASHRAE/IESNA 
Standard 90.1-1999 efficiency level for new construction equipment and 
99 percent of the listed PTHPs are at or above the ASHRAE/IESNA 
Standard 90.1-1999 efficiency level for replacement equipment. Id.
    DOE also indicated in the March 2006 NOA that even though the 
potential energy savings in the revised analysis have been reduced, it 
believed there is a possibility of clear and convincing evidence that 
more stringent standard levels for PTACs and PTHPs would result in 
significant additional energy savings, and would be technologically 
feasible and economically justified. Therefore, DOE stated it was 
inclined to seek a more stringent standard level than in ASHRAE/IESNA 
Standard 90.1-1999 for PTACs and PTHPs through the rulemaking process. 
71 FR 12639.
    DOE received several comments on the proposed decision to seek a 
more stringent standard level than the efficiency levels in ASHRAE/
IESNA Standard 90.1-1999 for PTACs and PTHPs. ARI commented that the 
technical information regarding DOE's analysis does not support moving 
forward with a separate rulemaking. ARI believes that 0.103 quads of 
potential energy savings in the TSD is significantly less than the 
0.561 quads originally estimated by DOE for PTAC/PTHP, and that DOE 
should reject 0.103 quads saved over a 25-year period as being a 
``significant'' amount of energy. Furthermore, ARI stated that 
manufacturers are voluntarily striving to meet ASHRAE/IESNA Standard 
90.1-1999 requirements. However, ARI went on to note that close to 50 
percent of the PTACs listed in the ARI directory are still rated below 
ASHRAE/IESNA Standard 90.1-1999 efficiency levels, which, in ARI's 
opinion, demonstrates the importance of establishing a national 
standard. (ARI, No. 26 at p. 2)
    Even though the potential energy savings in DOE's revised analysis 
has been reduced, DOE believes there is a reasonable likelihood that 
more stringent standard levels for PTACs and PTHPs would result in 
significant energy savings and be technically feasible and economically 
justified. The estimated savings of 0.103 quads would be comparable to 
the savings resulting from some other efficiency standards established 
under EPCA. Furthermore, under section 325(o)(3)(B) of the Act, the 
Department is prohibited from adopting a standard for a product if that 
standard would not result in ``significant'' energy savings. While the 
term ``significant'' has never been defined in the Act, the U.S. Court 
of Appeals, in Natural Resources Defense Council v. Herrington, 768 
F.2d 1355, 1373 (DC Cir. 1985), concluded that Congressional intent in 
using the word ``significant'' was to mean ``non-trivial.'' Therefore, 
based on the above, DOE does not agree with ARI's assertion and 
believes that the energy savings that could result from standards for 
PTACs and PTHPs, while not as large as the savings potential for some 
other standards, are significant and warrant consideration in a 
separate rulemaking. In addition, DOE believes there is a possibility 
that further evaluation of more stringent standard levels for PTACs and 
PTHPs are warranted, in part, because the market has changed, in the 
absence of Federal standards, to efficiency levels at or above the 
levels in ASHRAE/IESNA Standard 90.1-1999 for PTACs and PTHPs.\10\ 71 
FR 12639.
---------------------------------------------------------------------------

    \10\ The price of electricity and forecasts of electricity 
prices, for example, have changed and more stringent standards than 
analyzed may prove to be economically justified.
---------------------------------------------------------------------------

    DOE has therefore decided to explore more stringent efficiency 
levels than in ASHRAE/IESNA Standard 90.1-1999 for PTACs and PTHPs 
through a separate rulemaking, which DOE expects to complete in August 
2008.

[[Page 10045]]

(See Department of Energy Regulatory Agenda, RIN: 1904-AB44, 71 FR 
73183, December 11, 2006)
    The Edison Electric Institute (EEI) commented that DOE should take 
into account the refrigerant phaseout that starts in 2010 when 
considering higher standards for PTACs and PTHPs. EEI maintained that 
when the effects of the new refrigerants combined with the space 
limitations on this product are considered, they will have a 
significant impact on the efficiency levels that are available. (EEI, 
No. 25 at p. 2)
    EEI commented that it is currently unaware of any PTAC or PTHP 
equipment that uses R-410A, the refrigerant being used to replace R-22 
in other air-conditioning equipment. Therefore, EEI stated its belief 
that DOE will not have current data on baseline or high efficiency 
equipment that DOE can use to make a technical or economic judgment for 
a new efficiency standard. (EEI, No. 25 at p. 2)
    ARI stated its concern that DOE's analysis focuses exclusively on 
units operating with R-22, a refrigerant that will be phased out on 
January 1, 2010. According to the EPACT timetable, any amended energy 
conservation standards for this equipment would come into effect no 
sooner than September 2012, well after the phaseout of R-22. 
Consequently, ARI stated that it does not believe that any of the 
efficiency data that DOE has collected for its analyses can be used 
when DOE is evaluating equipment using the new refrigerant, R-410A. 
(ARI, No. 26 at p. 3)
    ARI cited several technical challenges that limit the opportunity 
to improve efficiencies in PTAC/PTHP equipment, including the 
availability of 60-Hz rotary compressors compatible with R-410A 
refrigerant. ARI commented that PTAC/PTHP equipment makes exclusive use 
of rotary compressors and the current production of a 60-Hz rotary 
compressor compatible with R-410A refrigerant is very limited. Further, 
according to ARI, the R-410A rotary compressors currently available are 
significantly less efficient than comparable R-22 rotary compressors. 
In addition, ARI stated its belief that the rotary compressor 
manufacturers have not made significant gains in energy efficiency due 
to design and manufacturing limitations. According to ARI, simulation 
analyses it conducted on the performance of package terminal air 
conditioners and heat pumps with R-410A have shown an overall decrease 
in efficiency (EER and COP) of between 6 to 10 percent (depending on 
the cooling capacity) compared to R-22 systems. This reduction can be 
mostly attributed to a reduction in compressor efficiency. DOE has not 
addressed whether higher standards using R410a are technically 
feasible. (ARI, No. 26 at p. 3)
    The Joint Comment maintained that at least the same levels of 
efficiency could be achieved cost effectively with R-410A and R-134a as 
with R-22. The Joint Comment, citing a paper released by Trane, stated 
that there is no theoretical degradation of efficiency with R-134a 
because the refrigerant has a higher efficiency than R-22 with 
everything else being equal. However, the Joint Comment recognizes that 
R-410A has a modestly lower efficiency than R-22, but notes that R-410A 
allows the compressor and tubes to be smaller than R-22, providing 
space for increased heat transfer surfaces. According to the Joint 
Comment, this results in ``efficiency gains that can offset some or all 
of the inherent inefficiencies of R-410A.'' \11\ (Joint Comment, No. 27 
at p. 2) DOE recognizes this is a significant issue for stakeholders 
and will consider this issue in the PTAC/PTHP rulemaking, which will 
assess the technological feasibility of a more stringent energy 
conservation standard for this equipment.
---------------------------------------------------------------------------

    \11\ Previous refrigerant phaseouts, including the R-12 phaseout 
for domestic refrigerators, affected DOE standards rulemakings. In 
those rulemakings DOE attempted to assess the effects of the 
refrigerant phaseout and, the Joint Comment notes, there were 
theoretical reasons to believe that there would be a small reduction 
in efficiency due to the refrigerant change, but when the 
refrigerant changeover occurred, reductions in efficiency generally 
were not apparent.
---------------------------------------------------------------------------

    As stated above, DOE will address more stringent standards for 
PTACs and PTHPs in a separate rulemaking. To analyze the technical 
feasibility of energy efficiency improvements of PTACs and PTHPs, which 
use R-22, DOE will first evaluate systems that use R-22 as a 
refrigerant because there is insufficient data to gauge the impacts of 
alternative refrigerants on system efficiency. DOE will then attempt to 
collect information on the alternative refrigerants. If DOE is unable 
to collect sufficient data or information to independently estimate the 
impacts of the refrigerant phaseout on equipment efficiency, DOE will 
request that stakeholders provide recommendations as to what 
assumptions DOE should use to represent the approximate incremental 
cost of switching to higher efficiency levels for this equipment as a 
result of using alternative refrigerants, for instance, R-410A.

D. Three-Phase Air Conditioners and Heat Pumps Less Than 65,000 British 
Thermal Units Per Hour

    Energy conservation standards for split-system three-phase ACs and 
HPs with cooling capacities less than 65,000 Btu/h are 10.0 SEER for 
cooling (42 U.S.C. 6313(a)(1)(A)) and 6.8 HSPF for heating. (42 U.S.C. 
6313(a)(1)(A) and (D)) Energy conservation standards for single-package 
three-phase ACs and HPs with cooling capacities less than 65,000 Btu/h 
are set forth in EPCA at a SEER of 9.7 for cooling (42 U.S.C. 
6313(a)(1)(B)) and an HSPF of 6.6 for heating. (42 U.S.C. 6313(a)(1)(B) 
and (E)) The current energy conservation standards for single-package 
and split-system three-phase ACs and HPs with cooling capacities less 
than 65,000 Btu/h are found in Table 1 and Table 2 of section 431.97 of 
10 CFR Part 431. These efficiency levels are the same as those in 
ASHRAE/IESNA Standard 90.1-1989.
    In the March 2006 NOA, DOE recognized that ASHRAE was considering 
an Addendum to ASHRAE/IESNA Standard 90.1 (Addendum f) to provide a 13-
SEER level for this equipment and stated that DOE would not take action 
on three-phase commercial air conditioners and heat pumps with 
capacities less than 65,000 Btu/h until after ASHRAE had completed its 
process. At that time, DOE stated that it intended to adopt as Federal 
standards the 13 SEER and 7.7 HSPF levels in ASHRAE/IESNA Standard 
90.1-2004 Addendum f. 71 FR 12634, 12637-38, 12643.
    Subsequent to the publication of the March 2006 NOA, DOE reexamined 
the amendments in EPACT 2005 to EPCA for commercial package air 
conditioning and heating equipment and determined that EPACT 2005 had 
revised the language in 42 U.S.C. 6313(a)(6)(A)(i) to limit DOE's 
authority to adopt ASHRAE amendments for small, large, and very large 
commercial package air conditioning and heating equipment until after 
January 1, 2010. Three-phase commercial ACs and HPs less than 65,000 
Btu/h, fall under the definition of small commercial package air 
conditioning and heating equipment (42 U.S.C. 6311(8)(B)), and 
therefore are subject to the revised statutory language of EPACT 2005.
    Prior to the enactment of EPACT 2005, for small and large 
commercial package air conditioning and heating equipment, any 
amendment of ASHRAE/IES Standard 90.1, as in effect on October 24, 1992 
(the date of enactment of the Energy Policy Act of 1992), would trigger 
DOE action for

[[Page 10046]]

adopting amended uniform national standards for this equipment. 
However, EPACT 2005 changed the October 24, 1992, date for this 
equipment, so that only an amendment of ASHRAE/IES Standard 90.1 as in 
effect on January 1, 2010, would trigger DOE action to adopt amended 
uniform national standards for these products. (42 U.S.C. 
6313(a)(6)(A)(i)) This revised statutory requirement, on its face, 
precludes DOE from adopting the efficiency levels in Addendum f to 
ASHRAE/IESNA Standard 90.1-2004 for three-phase commercial ACs and HPs 
less than 65,000 Btu/h at this time. The revised provision states:

If ASHRAE/IES Standard 90.1, as in effect on January 1, 2010, is 
amended with respect to any small commercial package air 
conditioning and heating equipment, large commercial package air 
conditioning and heating equipment, and very large commercial 
package air conditioning and heating equipment * * * the Secretary 
shall establish an amended uniform national standard for that 
product at the minimum level for each effective date specified in 
the amended ASHRAE/IES Standard 90.1[.]

(42 U.S.C. 6313(a)(6)(A)(i)) (Emphasis added.) Because of this 
statutory change, it is outside the scope of DOE's authority to adopt 
these ASHRAE/IESNA Standard 90.1 levels at this time. Three-phase ACs 
and HPs less than 65,000 Btu/h are within the small commercial packaged 
air conditioning and heating equipment product categories listed in the 
clause that contains the January 1, 2010 date. (42 U.S.C. 6313 
(a)(6)(A)(i)) Addendum f to ASHRAE/IESNA Standard 90.1-2004 was adopted 
on April 1, 2006, and in effect prior to January 1, 2010, the date 
before which DOE has no authority to consider adoption of an ASHRAE 
amendment affecting this equipment.

    Subsection (a)(1)(A)-(B) establishes statutory standards for 
certain small commercial air conditioning and heating equipment that is 
manufactured after January 1, 1994, but before January 1, 2010. (42 
U.S.C. 6313(a)(1)(A)-(B)) These standards are applicable to three-phase 
air conditioners and heat pumps less than 65,000 Btu/h, as well as 
SPVU's less than 65,000 Btu/h, discussed in Section II.E below.
    While EPACT 2005 set standards for certain small, large, and very 
large commercial package air conditioning and heating equipment 
manufactured on or after January 1, 2010 (42 U.S.C. 6313 (7)-(9)), 
Congress did not provide standards for either three-phase air 
conditioning and heat pumps less than 65,000 Btu/h or SPVUs less than 
65,000 Btu/h manufactured on or after January 1, 2010. Congress, 
however, did give DOE explicit rulemaking authority to consider and 
adopt more stringent standards for three-phase air conditioning and 
heat pumps less than 65,000 Btu/h and SPVUs less than 65,000 Btu/h, 
along with large and very large commercial package air conditioning and 
heating equipment, if ASHRAE/IESNA Standard 90.1 is not amended during 
the five-year period beginning on the effective date of a standard. (42 
U.S.C. 6313(a)(6)(A)(ii)) The criteria for such a rulemaking are 
described in 42 U.S.C. 6313(a)(6)(B)(i)-(ii).
    EPACT 2005 gives DOE authority to initiate a rulemaking ``[i]f 
ASHRAE/IES Standard 90.1 is not amended * * * during the 5-year period 
beginning on the effective date of a standard,'' but Congress does not 
define the term ``effective date of a standard.'' Since the effective 
date of the statutory standards in EPACT 2005 is the date of enactment 
of the legislation, that is, August 8, 2005, DOE interprets the five-
year waiting period to begin on August 8, 2005. Therefore, EPACT 2005 
provides ASHRAE from January 2, 2010, until August 8, 2010, to amend 
ASHRAE/IESNA Standard 90.1 on its own in order to trigger DOE action. 
After August 8, 2010, DOE may initiate its own rulemaking to set more 
stringent standards for this equipment.
    Thus, the text of EPCA clearly prohibits amendments to the 
standards for small commercial package air conditioning and heating 
equipment, large commercial package air conditioning and heating 
equipment, and very large commercial package air conditioning and 
heating equipment until after January 1, 2010.

E. Single-Package Vertical Air Conditioners and Single-Package Vertical 
Heat Pumps Less Than 65,000 Btu/h

    On June 2, 2002, ASHRAE published Addendum d to ASHRAE/IESNA 
Standard 90.1-1999, which incorporated efficiency levels for SPVUs. In 
the March 2006 NOA DOE stated that it was not able to adopt as Federal 
requirements the standards and test procedures in Addendum d for SPVUs 
for the following reasons: (1) Taking into account the ``Exclusions'' 
in the Scope section of ARI Standard 390-2001, the Addendum appeared to 
prescribe requirements for few if any of the equipment covered by EPCA; 
neither Addendum d nor any other provision of ASHRAE/IESNA Standard 
90.1 defines or describes SPVUs; (2) assuming Addendum d did prescribe 
standards and test procedures for SPVUs covered by EPCA, the addendum 
did not clearly delineate SPVUs according to the statutory scheme set 
forth in EPCA, and disregarded EPCA's definitions and classifications 
for commercial air-conditioning equipment; and (3) to the extent it 
addressed equipment covered by EPCA, the addendum appeared to contain 
efficiency levels for some categories of equipment that were lower than 
the minimum efficiency standards currently required under EPCA. 71 FR 
12643. DOE formally rejected Addendum d for reasons summarized above 
and submitted a formal comment to ASHRAE during the public review 
period. (Michael J. McCabe letter to Mr. Karim Amrane, Air-Conditioning 
and Refrigeration Institute, dated July 25, 2003).
    In response to DOE's comment and in rejection of Addendum d, ASHRAE 
adopted Addendum b to ASHRAE/IESNA Standard 90.1-2004 (Addendum b). 
Addendum b redefined both SPVACs and SPVHPs from the definition 
provided in Addendum d to include encased air-cooled small or large 
commercial package air-conditioning and heating equipment. In addition, 
Addendum b created SPVU equipment categories corresponding to the 
existing cooling capacities in EPCA for commercial package air-
conditioning and heating equipment (i.e., less than 65,000 Btu/h, 
greater than or equal to 65,000 but less than 135,000 Btu/h, and 
greater than or equal to 135,000 but less than 240,000 Btu/h). Addendum 
b also adopted a revised set of efficiency levels for three categories 
of SPVUs. These amended energy conservation standards in Addendum b use 
EER and COP descriptors to provide SPVU efficiency levels in a manner 
consistent with other commercial HVAC equipment, thus eliminating the 
use of the common residential central AC and HP descriptors of SEER and 
HSPF.
    In the March 2006 NOA, DOE considered the potential energy savings 
for efficiency levels higher than those in Addendum b for SPVU 
equipment and requested comments on the appropriateness of adopting 
Addendum b efficiency levels for SPVUs less than 65,000 Btu/h. 71 FR 
12634, 12638, 12646. After the publication of the March 2006 NOA, DOE 
reexamined the amendments in EPACT 2005 to EPCA for commercial package 
air conditioning and heating equipment. As noted above, DOE determined 
that EPACT 2005 had revised the language in 42 U.S.C. 6313(a)(6)(A)(I,) 
to limit DOE's authority to adopt ASHRAE amendments for small, large, 
and very large commercial package air conditioning and heating 
equipment until after January 1, 2010.

[[Page 10047]]

SPVUs less than 65,000 Btu/h fall under the definition of small 
commercial package air conditioning and heating equipment. (42 U.S.C. 
6311(8)(A)). Any SPVU with cooling capacities below 760,000 Btu/h would 
fit within the product categories listed in the clause that contains 
the January 1, 2010, date. (42 U.S.C. 6313(a)(6)(A)(i)) Accordingly, 
for the reasons stated above in Section II.D above, DOE has concluded 
that it cannot adopt the efficiency levels in Addendum b to ASHRAE/
IESNA Standard 90.1-2004 for SPVUs less than 65,000 Btu/h, contrary to 
its stated intentions in the March 2006 NOA, because it is outside the 
scope of DOE's authority to adopt the ASHRAE/IESNA Standard 90.1 levels 
at this time for this equipment.

F. Single-Package Vertical Air Conditioners and Single-Package Vertical 
Heat Pumps Greater Than or Equal to 65,000 Btu/h and Less Than 240,000 
Btu/h

    In the March 2006 NOA, DOE stated that EPCA's energy efficiency 
standards for commercial packaged air conditioners and heat pumps 
implicitly cover SPVUs greater than or equal to 65,000 Btu/h and less 
than 240,000 Btu/h, and, specifically, the standards added to EPCA by 
EPACT 2005 apply to these larger units. DOE also stated that the rule 
under consideration in the March 2006 NOA only addressed SPVUs less 
than 65,000 Btu/h. 71 FR 12634, 12638.
    DOE received several comments regarding its conclusion that SPVUs 
with larger capacities are covered under the standards specified by 
EPACT 2005. ARI disagreed with DOE's position, and argued that Addendum 
b to ASHRAE/IESNA Standard 90.1-2004 established a new product class 
for SPVUs in 2002 (three years before enactment of EPACT 2005); that 
DOE started a rulemaking on SPVUs well before EPACT 2005 was enacted 
into law according to the semi-annual regulatory agendas published in 
2003 and 2004; and that the minimum efficiency standards for small, 
large, and very large commercial air conditioners established by EPACT 
2005 were never intended to apply to SPVUs. (ARI, No. 26 at p. 5) 
Contrary to ARI's belief, the Joint Comment agreed with DOE's position 
as summarized in the March 2006 NOA and further argued that the EPACT 
2005 standards for commercial unitary air-conditioning and heating 
equipment cover SPVUs with cooling capacities greater than or equal to 
65,000 Btu/h. (Joint Comment, No. 27 at p. 4)
    DOE is not persuaded by ARI's comment that the conclusion presented 
in the March 2006 NOA is incorrect and that SPVUs with cooling 
capacities greater than or equal to 65,000 Btu/h were not meant to be 
covered by EPACT 2005 levels and, instead, should be required to meet 
the lower standards found in Addendum b. The definition in EPACT 2005 
for large commercial package air conditioning and heating equipment 
covers commercial packaged air-conditioning and heating equipment with 
cooling capacities greater than or equal to 65,000 Btu/h and less than 
760,000 Btu/h, which would include SPVUs. Although the term SPVU itself 
is not used in EPCA, all SPVUs, regardless of cooling capacity, come 
within the definitions of small, large and very large commercial 
packaged air-conditioning and heating equipment. (42 U.S.C. 6311(8)(A)-
(D). There is no language in EPCA to indicate that SPVUs are a separate 
product and should be subject to different energy conservation 
standards than in EPACT 2005. EPACT 2005 set energy efficiency 
standards for small, large and very large commercial package air 
conditioning and heat equipment, effective for equipment manufactured 
on or after January 1, 2010. (42 U.S.C. 6313(a)(7)-(9). Since EPACT 
2005 set such standards, DOE must follow them. DOE cannot ignore the 
statutory standards. Only a legislative change could accomplish the 
result requested by ARI.
    Bard commented that larger SPVUs (greater than 65,000 Btu/h) cannot 
be manufactured to meet the statutory standards in EPACT 2005 due to 
their geometry. (Bard, No. 29 at p. 4) In response, DOE notes that 
absent a legislative change, the only relief from these statutory 
standards is in the form of exception relief. The DOE Organization Act 
(DOEOA) authorizes DOE to grant exception relief. DOEOA section 504(a), 
42 U.S.C. 7194(a). The DOEOA permits adjustments to any rule, 
regulation or order ``as may be necessary to prevent special hardship, 
inequity, or unfair distribution of burdens * * *'' Id. Manufacturers 
may apply for exception relief by following DOE's procedural 
regulations in 10 CFR Part 1003, Subparts B and C.
    Accordingly, in today's final rule, consistent with the March 2006 
NOA, DOE is affirming that the EPACT 2005 efficiency levels, as 
codified in Sec.  431.97(b) of 10 CFR Part 431, apply to SPVUs greater 
than or equal to 65,000 Btu/h and less than 760,000 Btu/h.

III. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this 
action was not subject to review under the Executive Order by the 
Office of Information and Regulatory Affairs.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site: http://www.gc.doe.gov.
    DOE reviewed today's final rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. 68 FR 7990. This final rule does not impose any 
requirement on any entities, including small entities. Therefore, DOE 
certifies that today's action will not have a significant economic 
impact on a substantial number of small entities, and no regulatory 
flexibility analysis has been prepared.

C. Review Under the Paperwork Reduction Act of 1995

    This rule imposes no new information or recordkeeping requirements. 
Accordingly, Office of Management and Budget clearance is not required 
under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)

D. Review Under the National Environmental Policy Act of 1969

    EPCA provides that if ASHRAE/IESNA Standard 90.1 is amended, the 
Secretary must adopt the amended efficiency requirements in ASHRAE/
IESNA Standard 90.1 for covered equipment, unless the Secretary 
determines that certain conditions for requiring more stringent 
standards are met, or the amendment would increase the maximum 
allowable energy use or decrease the minimum required energy efficiency 
of a covered product or would result in the unavailability of a product

[[Page 10048]]

type in the United States. (42 U.S.C. 6313(a)(6)(A) and (B))
    For the reasons discussed in II. above, DOE has concluded that it 
lacks authority to pursue higher standards for gas-fired instantaneous 
water heaters and large commercial packaged boilers. For small 
commercial packaged boilers with capacities greater than 300,000 Btu/h 
and less than or equal to 2.5 million British thermal units per hour, 
DOE is declining to adopt revised efficiency standards contained in the 
ASHRAE/IESNA Standard 90.1-1999 because they are not as stringent as 
those prescribed by EPCA. In addition, DOE has decided to conduct a 
separate rulemaking to consider whether standards at higher levels than 
those in the ASHRAE/IESNA Standard 90.1-1999 are warranted for packaged 
terminal air conditioners and packaged terminal heat pumps. Finally, 
DOE has concluded it does not have the authority to adopt, as uniform 
national standards, efficiency standards contained in Addenda f and 
Addenda b, respectively, to ASHRAE/IESNA Standard 90.1-2004 for three-
phase commercial air conditioners and heat pumps with cooling 
capacities less than 65,000 British thermal units per hour, and single-
package vertical air conditioners and single-package vertical heat 
pumps with cooling capacities less than 65,000 Btu/h.
    Accordingly, to the extent that DOE lacks discretion to adopt the 
amended ASHRAE/IESNA Standard 90.1, NEPA does not apply. Moreover, 
because the final rule prescribing no new energy efficiency standards 
and would not change the environmental effect of compliance with 10 CFR 
Part 431, the Department has determined that this rule is, in any 
event, covered under the Categorical Exclusion found at paragraph A5 of 
Appendix A, 10 CFR Part 1021, which applies to rulemaking interpreting 
an existing rule or regulation with no change in environmental effect. 
Therefore, neither an environmental assessment nor an environmental 
impact statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. The Executive Order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in developing such regulations. 65 
FR 13735. DOE is prescribing no new standards and imposing no other 
requirements in this rulemaking. Therefore, this final rule does not 
have a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (February 7, 1996) imposes on Federal 
agencies the general duty to adhere to the following requirements: (1) 
Eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigation; and (3) provide a clear legal standard for 
affected conduct rather than a general standard and promote 
simplification and burden reduction. Section 3(b) of Executive Order 
12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. As a result 
of its analysis of the evidence and the law, DOE has decided not to 
prescribe amended standards for the equipment covered in this 
rulemaking. Because it is not imposing any requirement on any person or 
entity, Executive Order 12988 does not apply to this rulemaking.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause expenditures by State, local, and Tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a 
Federal agency to develop an effective process to permit timely input 
by elected officers of State, local, and Tribal governments on a 
proposed ``significant intergovernmental mandate,'' and requires an 
agency plan for giving notice and opportunity for timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA (62 FR 12820) 
(also available at http://www.gc.doe.gov). This final rule prescribes 
no standards or other requirements, so these requirements under the 
UMRA do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This final rule would not have any impact on the autonomy or integrity 
of the family as an institution. Accordingly, DOE has concluded that it 
is not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

    DOE has determined under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (March 18, 1988) that this regulation would not 
result in any takings which might require compensation under the Fifth 
Amendment to the United States Constitution.

[[Page 10049]]

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) requires agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by the 
Office of Management and Budget (OMB). OMB's guidelines were published 
at 67 FR 8452 (February 22, 2002); DOE's guidelines were published at 
67 FR 62446 (October 7, 2002). DOE has reviewed today's notice under 
the OMB and DOE guidelines and has concluded that it is consistent with 
applicable policies in those guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgated or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use if the 
proposal were implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
This final rule is not a significant regulatory action under Executive 
Order 12866 or any successor order, and because DOE is imposing no 
requirements in this final rule, it will not have a significant adverse 
effect on supply, distribution, or use of energy, and has not been 
designated by the Administrator of OIRA as a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major 
rule,'' as defined by 5 U.S.C. 804(2).

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's final 
rule.

    Issued in Washington, DC, on February 28, 2007.
Alexander A. Karsner,
Assistant Secretary, Energy Efficiency and Renewable Energy.
 [FR Doc. E7-3819 Filed 3-6-07; 8:45 am]
BILLING CODE 6450-01-P