[Federal Register Volume 81, Number 74 (Monday, April 18, 2016)]
[Rules and Regulations]
[Pages 22514-22520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08891]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket No. EERE-2013-BT-STD-0033]
RIN 1904-AD02


Energy Conservation Program for Consumer Products and Certain 
Commercial and Industrial Equipment: Determination of Portable Air 
Conditioners as a Covered Consumer Product

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

ACTION: Final determination.

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SUMMARY: The U.S. Department of Energy (DOE) is classifying portable 
air conditioners (ACs) as a covered product under the Energy Policy and 
Conservation Act (EPCA), as amended. This classification is based on 
DOE's determination that portable ACs are a type of consumer product 
that meets the requisite criteria specified in EPCA. Specifically, DOE 
has determined that classifying portable ACs as a covered product is 
necessary or appropriate to carry out the purposes of EPCA, and that 
average U.S. household energy use by portable ACs is likely to exceed 
100 kilowatt-hours (kWh) per year.

DATES: This rule is effective May 18, 2016.

ADDRESSES: This rulemaking can be identified by docket number EERE-
2013-BT-STD-0033 and/or Regulatory Information Number (RIN) 1904-AD02.
    Docket: The docket, which includes Federal Register notices, public 
meeting attendee lists and transcripts, comments, and other supporting 
documents/materials, is available for review at www.regulations.gov. 
All documents in the docket are listed in the www.regulations.gov 
index. However, some documents listed in the index may not be publicly 
available, such as those containing information that is exempt from 
public disclosure.
    A link to the docket Web page can be found at: https://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/76. This Web page will contain a link to the docket for this 
notice on the www.regulations.gov site. The www.regulations.gov Web 
page contains simple instructions on how to access all documents, 
including public comments, in the docket.
    For further information on how to review the docket, contact Ms. 
Brenda Edwards at (202) 586-2945 or by email: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Bryan Berringer, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, 
DC 20585-0121. Telephone: (202) 586-0371. Email: 
[email protected].
    Ms. Sarah Butler, U.S. Department of Energy, Office of the General 
Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Telephone: (202) 586-1777. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Statutory Authority
II. Current Rulemaking Process
III. Proposed Definition
IV. Evaluation of Portable ACs as a Covered Product Subject to 
Energy Conservation Standards
    A. Coverage Necessary or Appropriate To Carry Out Purposes of 
EPCA
    B. Average Household Energy Use
V. Procedural Issues and Regulatory Review
    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 of 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act of 2001
    K. Review Under Executive Order 13211
    L. Review Under the Information Quality Bulletin for Peer Review

I. Statutory Authority

    Title III of the Energy Policy and Conservation Act (EPCA), as 
amended (42 U.S.C. 6291 et seq.), sets forth various provisions 
designed to improve energy efficiency. Part A of Title III of EPCA (42 
U.S.C. 6291-6309) established the ``Energy Conservation Program for 
Consumer Products Other Than Automobiles.'' \1\ EPCA authorizes the 
Secretary of Energy to classify additional types of consumer products 
not otherwise specified in Part A as covered products. For a type of 
consumer product to be classified as a covered product, the Secretary 
must determine that:
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    \1\ For editorial reasons, upon codification in the U.S. Code, 
Part B was re-designated Part A.
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    (1) Classifying the product as a covered product is necessary for 
the purposes of EPCA; and
    (2) The average annual per-household energy use by products of such 
type is likely to exceed 100 kilowatt-hours (kWh) per year. (42 U.S.C. 
6292(b)(1))
    For the Secretary to prescribe an energy conservation standard 
pursuant to 42 U.S.C. 6295(o) and (p) for covered products added 
pursuant to 42 U.S.C. 6292(b)(1), he must also determine that:
    (1) The average household energy use of the products has exceeded 
150 kWh per household for a 12-month period;
    (2) The aggregate 12-month energy use of the products has exceeded 
4.2 terawatt-hours (TWh);
    (3) Substantial improvement in energy efficiency is technologically 
feasible; and
    (4) Application of a labeling rule under 42 U.S.C. 6294 is unlikely 
to be sufficient to induce manufacturers to produce, and consumers and 
other persons to purchase, covered products of such type (or class) 
that achieve the maximum energy efficiency that is technologically 
feasible and economically justified. (42 U.S.C. 6295(l)(1))
    Portable ACs are movable units typically designed to provide 8,000-
14,000 British thermal units (Btu) per hour (hr) of cooling capacity 
\2\ for a single room. In contrast to room ACs, a covered product that 
provides

[[Page 22515]]

consumers with a similar function, portable ACs are not permanently 
installed on the wall or in a window. DOE has determined that portable 
ACs meet the statutory requirements under 42 U.S.C. 6292(b)(1), and 
therefore classifies portable ACs as a covered product. Separately, DOE 
is conducting rulemakings to consider test procedures and energy 
conservation standards for portable ACs. DOE will determine if portable 
ACs satisfy the provisions of 42 U.S.C. 6295(l)(1) during the course of 
the energy conservation standards rulemaking.
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    \2\ As rated according to current industry test methods.
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II. Current Rulemaking Process

    DOE has not previously conducted an energy conservation standards 
rulemaking for portable ACs. On July 5, 2013, DOE published in the 
Federal Register a notice of proposed determination of coverage (NOPD) 
in which it tentatively determined that portable ACs satisfy the 
provisions of 42 U.S.C. 6292(b)(1). 78 FR 40403. After considering 
public comments on the NOPD (see sections III and IV of this notice), 
DOE is issuing this final determination of coverage for portable ACs 
and is evaluating in separate rulemakings both test procedures and 
energy conservation standards for portable ACs.
    With respect to the test procedure rulemaking, DOE initially 
published a notice of data availability (NODA) on May 9, 2014, in which 
it discussed various industry test procedures and presented results 
from its investigative testing. 79 FR 26639. In the NODA, DOE evaluated 
existing methodologies and alternate approaches adapted from these 
methodologies that could be incorporated in a future DOE test procedure 
for portable ACs.
    After reviewing comments and information received on the NODA, DOE 
published a test procedure notice of proposed rulemaking (NOPR) on 
February 25, 2015, in which it proposed to establish test procedures 
for portable ACs that would measure the energy efficiency, energy use, 
and estimated annual operating cost of portable ACs during a 
representative average use period and that would not be unduly 
burdensome to conduct, as required under 42 U.S.C. 6293(b)(3)). 80 FR 
10211. The proposed test procedures were based upon industry methods to 
determine energy consumption in active modes, standby modes, and off 
mode, with certain modifications to ensure the test procedures would be 
repeatable and representative. Based on comments from interested 
parties on the NOPR, DOE subsequently published a supplemental notice 
of proposed rulemaking (SNOPR) on November 27, 2015, in which it 
proposed revisions to the test procedure proposed in the NOPR to 
improve repeatability, reduce test burden, and ensure that the test 
procedure is representative of typical consumer usage. 80 FR 74020.
    With respect to the energy conservation standards rulemaking, DOE 
published a notice of public meeting and notice of availability of a 
preliminary technical support document (TSD) for portable ACs on 
February 27, 2015. 80 FR 10628. The TSD describes the details of DOE's 
preliminary analysis. DOE held a public meeting to discuss and receive 
comments on the preliminary analysis it conducted. The meeting covered 
the analytical framework, models, and tools that DOE used to evaluate 
potential standards; the results of preliminary analyses performed by 
DOE for this product; the potential energy conservation standard levels 
derived from these analyses that DOE could consider for this product; 
and other issues relevant to the development of energy conservation 
standards for portable ACs.
    After considering comments and information submitted on the 
preliminary analysis, DOE expects to complete a full analysis of both 
the burdens and benefits of potential energy conservation standards in 
a NOPR, pursuant to 42 U.S.C. 6295(o). Because DOE is classifying 
portable ACs as a covered product under 42 U.S.C. 6292(b)(1), DOE will 
also consider as part of any energy conservation standard NOPR whether 
portable ACs satisfy the requirements of 42 U.S.C. 6295(l)(1). After 
the publication of the standards NOPR, DOE will afford interested 
parties an opportunity during a period of not less than 60 days to 
provide oral and written comment. After receiving and considering the 
comments on the NOPR and not less than 90 days after the publication of 
the NOPR, DOE will issue the final rule prescribing any new energy 
conservation standards for portable ACs.

III. Product Definition

    In the NOPD, DOE proposed the following definition of ``portable 
air conditioner'' to determine the potential scope of which products 
would potentially be regulated as a covered product. The proposed 
definition also provided clarity for interested parties with respect to 
the test procedure and energy conservation standards rulemakings as DOE 
continued its analyses. DOE initially proposed that a portable AC was:

    A consumer product, other than a ``packaged terminal air 
conditioner,'' which is powered by a single phase electric current 
and which is an encased assembly designed as a portable unit that 
may rest on the floor or other elevated surface for the purpose of 
providing delivery of conditioned air to an enclosed space. It 
includes a prime source of refrigeration and may include a means for 
ventilating and heating.

78 FR 40403, 40404 (July 5, 2013).

    DOE noted that this proposed definition would be mutually exclusive 
to the current definition for a room AC, which is ``designed as a unit 
for mounting in a window or through the wall.'' (10 CFR 430.2) Id.
    In response to the NOPD, DOE received several comments from 
interested parties regarding the kinds of products that would be 
included under the proposed definition of a portable AC. DOE addressed 
these comments in the test procedure NOPR and proposed a revised 
definition to further refine the definition and exclude other similar 
products. Specifically, DOE proposed the definition:

    An encased assembly, other than a ``packaged terminal air 
conditioner,'' ``room air conditioner,'' or ``dehumidifier,'' 
designed as a portable unit for delivering cooled, conditioned air 
to an enclosed space, that is powered by single-phase electric 
current, which may rest on the floor or other elevated surface. It 
includes a source of refrigeration and may include additional means 
for air circulation and heating.

80 FR 10212, 10214-15 (Feb. 25, 2015).

    DOE received multiple comments from interested parties in response 
to the proposed definition in the test procedure NOPR, focusing on the 
distinction between portable ACs intended for consumer versus 
commercial applications.
    DENSO Products and Services Americas, Inc. (DENSO) noted that 
portable ACs are used in both residential and commercial settings, and 
that the typical distinction between the two settings is the use of 
single-phase versus three-phase power. However, DENSO expressed concern 
about the proposed definition because some portable ACs with single-
phase power may be used in commercial or industrial applications. 
(DENSO, TP Public Meeting Transcript, No. 13 at pp. 21-22) \3\
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    \3\ A notation in the form ``DENSO, TP Public Meeting 
Transcript, No. 13 at pp. 21-22'' identifies an oral comment that 
DOE received on March 18, 2015 during the Test Procedure NOPR public 
meeting, was recorded in the public meeting transcript in the docket 
for the test procedure rulemaking (Docket No. EERE-2014-BT-TP-0014). 
This particular notation refers to a comment (1) made by DENSO 
Products and Services Americas, Inc. (DENSO) during the public 
meeting; (2) recorded in document number 13, which is the public 
meeting transcript that is filed in the docket of the test procedure 
rulemaking; and (3) which appears on pages 21 through 22.

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[[Page 22516]]

    Oceanaire and the National Association of Manufacturers (NAM) 
supported the exclusion of commercial portable ACs from coverage, given 
the limited size of the industry and small number of units produced. 
These commenters stated that requiring additional testing would have a 
significant negative impact on this niche market. According to 
Oceanaire and DENSO, annual shipments of commercial portable ACs are 
only 15,000, as compared to the 973,700 annual shipments of consumer 
portable ACs in the United States that DOE estimated in its preliminary 
analysis for portable AC energy conservation standards. (Oceanaire, No. 
10 at p. 3; NAM, No. 17 at pp. 1, 3; DENSO, TP NOPR No. 14 at p. 4) \4\
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    \4\ A notation in the form ``DENSO, TP NOPR No. 14 at p. 4'' 
identifies a written comment: (1) Made by DENSO Products and 
Services Americas, Inc. (DENSO); (2) recorded in document number 14 
that is filed in the docket of the test procedure notice of proposed 
rulemaking as a covered consumer product (Docket No. EERE-2014- BT-
TP-0014) and available for review at www.regulations.gov; and (3) 
which appears on page 4 of document number 14.
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    To identify products that are commonly referred to as portable ACs 
but that it contends should be excluded from coverage as consumer 
products, Oceanaire referred to NAM's definition of a commercial 
portable AC and the following characteristics it believes are common to 
commercial portable ACs: (1) A minimum evaporator inlet air flow of 265 
cubic feet per minute (CFM) and minimum condenser air flow of 500 CFM 
at standard temperature, pressure, and rated voltage; (2) a minimum 
refrigerant charge of 14 ounces per unit; (3) an internal condensate 
tank of a minimum 2-gallon capacity or a condensate pump capable of a 
minimum 15-foot head pressure; and (4) a minimum weight of 110 pounds. 
Oceanaire also stated that cooling capacities of commercial portable 
ACs typically range up to 65,000 Btu/hr. (Oceanaire, TP NOPR No. 10 at 
p. 1-2; NAM, TP NOPR No. 17 at p. 3)
    A number of commenters asserted that the installation locations, 
operating conditions, use cases, and necessary product construction for 
commercial portable ACs are substantially different than those for 
consumer portable ACs. Oceanaire, NAM, and DENSO cited examples of 
permanent installations for commercial portable ACs, including steel 
mills, auto repair shops, cosmetics and food product processing 
facilities, and other environments that are subject to extreme 
temperature, humidity, and corrosive conditions. Oceanaire further 
noted that commercial portable ACs are also used to address temporary 
or emergency short-term conditions, and are purchased by rental 
companies that provide temporary service to a variety of businesses. 
Oceanaire described the construction of commercial portable ACs as 
having 18 gauge and thicker steel cabinetry and support structures to 
meet the needs of commercial and industrial customers, and according to 
Oceanaire, such portable ACs have an average lifetime of 10 years. 
(Oceanaire, TP NOPR No. 10 at p. 2; NAM, TP NOPR No. 17 at pp. 2-3; 
DENSO, TP NOPR No. 14 at p. 1)
    For the aforementioned reasons, Oceanaire and NAM stated that they 
believe that commercial portable ACs do not qualify under the 
provisions of EPCA as a covered product. (Oceanaire, TP NOPR No. 10 at 
p. 2; NAM, TP NOPR No. 17 at p. 3)
    In the test procedure NOPR, DOE stated that portable ACs are not 
currently a covered product, and did not propose to classify commercial 
portable ACs as a covered product. Rather, consistent with the 
authority under EPCA to classify additional types of ``consumer 
product'' not otherwise specified in Part A as covered products, DOE 
proposed to classify ``portable ACs'' as a covered product.
    EPCA defines ``consumer product'' as any article of a type that 
consumes, or is designed to consume, energy and which, to any 
significant extent, is distributed in commerce for personal use or 
consumption by individuals. (42 U.S.C. 6291(1)) EPCA further specifies 
that the definition of a consumer product applies ``without regard to 
whether the product is in fact distributed in commerce for personal use 
or consumption by an individual.'' (42 U.S.C. 6291(1)(B)) Under the 
definition of ``portable air conditioner'' proposed by DOE, portable 
ACs clearly meet EPCA's definition of ``consumer product.''
    Although the definition of consumer product does not depend on 
whether the product is, in fact, distributed in commerce for personal 
use or consumption by an individual, DOE has proposed a definition of 
``portable air conditioner'' that excludes units that could normally 
not be used in a residential setting by limiting the definition to 
include only portable ACs powered by single-phase electric current. As 
such, a product that requires three-phase power, a characteristic that 
is not appropriate for consumer products, would not be covered under 
DOE's definition. Conversely, any product with single-phase power that 
otherwise meets the definition of a portable AC would be considered by 
DOE to be a portable AC regardless of the manufacturer-intended 
application or installation location.
    Moreover, air flow rates, refrigerant charge, condensate handling 
system, and product weight are not attributes that inherently determine 
suitability for consumer use. For example, DOE identified multiple 
portable ACs marketed as consumer products with evaporator air flow 
rates greater than 265 CFM, the threshold suggested by Oceanaire and 
NAM, and rugged construction with correspondingly higher weight that 
may be desirable in some residential applications such as garages or 
temporary attic cooling. Further, a portable AC that meets the single-
phase power requirement in the portable AC definition would not meet 
certain minimum thresholds for some of the product attributes in NAM's 
definition of a commercial portable AC, such that the power requirement 
would have the same effect as if the definition were to specifically 
include those thresholds.
    For these reasons, DOE is establishing in 10 CFR 430.2 the 
definition of ``portable air conditioner'' proposed in the test 
procedure NOPR with minor editorial revisions that do not modify the 
intent or scope of the definition:

    A portable encased assembly, other than a ``packaged terminal 
air conditioner,'' ``room air conditioner,'' or ``dehumidifier,'' 
that delivers cooled, conditioned air to an enclosed space, and is 
powered by single-phase electric current. It includes a source of 
refrigeration and may include additional means for air circulation 
and heating.

IV. Evaluation of Portable ACs as a Covered Product Subject to Energy 
Conservation Standards

    The following sections describe DOE's determination that portable 
ACs fulfill the criteria for being added as a covered product pursuant 
to 42 U.S.C. 6292(b)(1). As stated previously, DOE may classify a type 
of consumer product as a covered product if (1) classifying products of 
such type as covered products is necessary and appropriate to carry out 
the purposes of EPCA; and (2) the average annual per-household energy 
use by products of such type is likely to exceed 100 kWh (or its Btu 
equivalent) per year.

A. Coverage Necessary or Appropriate To Carry Out Purposes of EPCA

    DOE tentatively concluded in the NOPD that coverage of portable ACs 
is necessary or appropriate to carry out the purposes of EPCA, which 
include: (1) To conserve energy supplies through energy conservation 
programs, and,

[[Page 22517]]

where necessary, the regulation of certain energy uses; and (2) to 
provide for improved energy efficiency of motor vehicles, major 
appliances, and certain other consumer products. (42 U.S.C. 6201) In 
the NOPD, DOE presented the results of its initial analysis, which 
suggested that the aggregate energy use of portable ACs has been 
increasing as these units have become popular in recent years. DOE 
estimated, based on market studies, that 973.7 thousand units shipped 
in North America in 2012, with a projected growth to 1743.7 thousand 
units by 2018, representing nearly 80-percent growth over 6 years.\5\ 
DOE notes that the number of entries in the California Energy 
Commission's product database for ``spot air conditioners'' \6\ 
increased from 295 in August 2013 to 442 in October 2015, suggesting 
that DOE's initial estimate of significant growth in this product 
category is reasonable. DOE stated in the NOPD that coverage of 
portable ACs would enable the conservation of energy supplies through 
both labeling programs and the regulation of portable AC efficiency. 
DOE also asserted that there is significant variation in the annual 
energy consumption of different models currently available, such that 
technologies exist to reduce the energy consumption of portable ACs. 78 
FR 40403, 40404 (Jul. 5, 2013).
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    \5\ Transparency Media Research. Air Conditioning Systems 
Market--Global Scenario, Trends, Industry Analysis, Size, Share and 
Forecast, 2012-2018. January 2013.
    \6\ California regulations define ``spot air conditioner'' as 
``an air conditioner that discharges cool air into a space and 
discharges rejected heat back into that space, where there is no 
physical boundary separating the discharges.'' This definition is 
distinct from the regulations' definition of ``room air 
conditioner'' as ``a factory-encased air conditioner that is 
designed: (1) As a unit for mounting in a window, through a wall, or 
as a console, and (2) for delivery without ducts of conditioned air 
to an enclosed space.'' (California Code of Regulations, Title 20: 
Division 2; Chapter 4, Article 4, Section 1602(c) and (d)) Entries 
in the CEC database listed as spot ACs include varying 
configurations of portable ACs, including those that reject heat 
outside the conditioned space, as well as products that would not 
meet DOE's definition of portable AC because they operate on three-
phase power.
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    The Appliance Standards Awareness Project (ASAP), Alliance to Save 
Energy (ASE), American Council for an Energy-Efficient Economy (ACEEE), 
Consumers Union (CU), and Northwest Energy Efficiency Alliance (NEEA) 
(hereinafter the ``Joint Commenters'') and AHAM supported DOE's 
proposed determination that classifying portable ACs as a covered 
product is necessary or appropriate to carry out the purposes of EPCA. 
(AHAM, No. 6 at pp. 1-2; Joint Commenters, No. 4 at p. 2) The Joint 
Commenters further recommended that DOE classify portable ACs as a 
covered product to enable subsequent development of test procedures and 
consideration of energy conservations standards for portable ACs 
because: (1) Shipments are growing; (2) portable ACs have high per-unit 
energy use; and (3) competing products (such as room ACs) are currently 
covered. (Joint Commenters, No. 4 at p. 2)
    DOE, therefore, reaffirms its tentative conclusion in the NOPD and 
determines that classifying portable ACs as a covered product is 
necessary and appropriate to carry out the purposes of EPCA. In 
consideration of the potential for improved energy efficiency of 
portable ACs and associated national energy savings, DOE has developed 
a proposed test procedure in a recent rulemaking that would establish 
appendix CC, and is currently addressing potential energy conservation 
standards for portable ACs in a standards rulemaking.

B. Average Household Energy Use

    In the NOPD, DOE estimated the average household portable AC energy 
use of portable ACs. DOE based its calculations on a review of the 
current market and a comparison to room AC energy use, and determined 
that the typical rated energy efficiency ratio (EER) of portable ACs is 
approximately 9.5, with a large available range (approximately 8.2-
14.3), and that typical cooling capacities range from 8,000-14,000 Btu/
hr. DOE further estimated average per-household annual electricity 
consumption of a portable AC, based on a typical unit with EER 9.5, to 
be approximately 650 kWh/yr (750 kWh/yr for EER 8.2, and 400 kWh/yr for 
EER 14.3). DOE also noted that one set of laboratory tests \7\ measured 
the cooling capacity of units to be half of manufacturers' reported 
values, suggesting that in-field energy use is much larger than the 
rated value would imply. Therefore, DOE tentatively determined in the 
NOPD that the average annual per-household energy use for portable ACs 
is very likely to exceed 100 kWh/yr, satisfying the criterion of 42 
U.S.C. 6292(b)(1)(B) required for classification of portable ACs as a 
covered product under Part A of Title III of the EPCA, as amended. 78 
FR 40403, 40404-40405.
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    \7\ Consumer Reports. Buying Advice: Portable Air Conditioners. 
http://news.consumerreports.org/home/2008/06/air-condition-1.html.
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    AHAM agreed with the result of DOE's estimate of portable AC annual 
energy use, although it did not agree with DOE's methodology. 
Specifically, AHAM suggested that the usage profiles of portable ACs 
differ from those for room ACs, which were the basis for DOE's 
analysis. AHAM stated its belief that portable ACs are used for a 
shorter period of time because some consumers may use them to 
supplement conditioned air in a particular space or area of a room 
instead of as the primary means of cooling. Nevertheless, AHAM stated 
that it does not believe that these differences would change the 
determination that per-household energy use for portable ACs is likely 
to exceed 100 kWh/yr. (AHAM, No. 6 at pp. 2-3) The California IOUs 
stated that DOE's estimate of annual energy use for a typical portable 
AC unit is significant and comparable to the per-unit energy use of 
many major household appliances. (California IOUs, No. 5 at p. 3) DOE 
solicited, but did not receive, portable AC usage data in both the test 
procedure and energy conservation standards rulemakings. DOE agrees, 
however, that the potential differences between portable AC and room AC 
usage would not change DOE's initial determination that portable ACs 
meet the threshold per-household energy use, particularly because DOE's 
estimates were at least a factor of four greater than the 100 kWh/yr 
requirement. Therefore, DOE determines here that average annual per-
household energy use by portable ACs is likely to exceed 100 kWh (or 
its Btu equivalent) per year.
    Accordingly, DOE has determined that portable ACs meet the 
statutory requirements under 42 U.S.C 6292(b)(1), and therefore 
classifies portable ACs as a covered product. DOE amends the definition 
of covered product in 10 CFR 430.2 to reflect this determination.

V. Procedural Issues and Regulatory Review

    DOE has reviewed this final determination of coverage for portable 
ACs under the following executive orders and acts.

A. Review Under Executive Order 12866

    The Office of Management and Budget (OMB) has determined that 
coverage determination rulemakings do not constitute ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). 
Accordingly, this final action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs 
(OIRA) in the OMB.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement

[[Page 22518]]

Fairness Act of 1996) requires preparation of a 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. A regulatory flexibility analysis examines the impact 
of the rule on small entities and considers alternative ways of 
reducing negative effects. Also, as required by E.O. 13272, ``Proper 
Consideration of Small Entities in Agency Rulemaking'' 67 FR 53461 
(Aug. 16, 2002), DOE published procedures and policies on February 19, 
2003 to ensure that the potential impact of its rules on small entities 
are properly considered during the DOE rulemaking process. 68 FR 7990 
(Feb. 19, 2003). DOE makes its procedures and policies available on the 
Office of the General Counsel's Web site at http://energy.gov/gc/office-general-counsel.
    DOE reviewed this final determination under the provisions of the 
Regulatory Flexibility Act and the policies and procedures published on 
February 19, 2003. This final determination sets no standards; it only 
positively determines that future standards may be warranted and should 
be explored in an energy conservation standards and test procedure 
rulemaking. Economic impacts on small entities would be considered in 
the context of such rulemakings. On the basis of the foregoing, DOE 
certifies that the determination has no significant economic impact on 
a substantial number of small entities. Accordingly, DOE has not 
prepared a regulatory flexibility analysis for this final 
determination. DOE will transmit this certification and supporting 
statement of factual basis to the Chief Counsel for Advocacy of the 
Small Business Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    This final determination, which concludes that portable ACs meet 
the criteria for a covered product for which the Secretary may 
prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) 
and (p), imposes no new information or record-keeping requirements. 
Accordingly, the OMB 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

    In this notice, DOE positively determines that portable ACs meet 
the criteria for classification as covered products and that future 
standards may be warranted to regulate their energy use. Should DOE 
pursue that option, the relevant environmental impacts would be 
explored as part of that rulemaking. As a result, DOE has determined 
that this action falls into a class of actions that are categorically 
excluded from review under the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 
CFR part 1021. Specifically, this action establishes a class of 
products (portable ACs) for which energy conservation standards would 
be appropriate. However, this action does not establish energy 
conservation standards, and, therefore, does not result in any 
environmental impacts. Thus, this action is covered by Categorical 
Exclusion A6 ``Procedural rulemakings'' under 10 CFR part 1021, subpart 
D. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

E. Review Under Executive Order 13132

    Executive Order (E.O.) 13132, ``Federalism'' 64 FR 43255 (Aug. 10, 
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 assess carefully 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 developing 
regulatory policies that have Federalism implications. On March 14, 
2000, DOE published a statement of policy describing the 
intergovernmental consultation process that it will follow in 
developing such regulations. 65 FR 13735 (Mar. 14, 2000). DOE has 
examined this final determination and concludes that it does not 
preempt State law or have substantial direct effects on the States, on 
the relationship between the Federal government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. EPCA governs and prescribes Federal preemption of State 
regulations as to energy conservation for the product that is the 
subject of this final determination. States can petition DOE for 
exemption from such preemption to the extent permitted, and based on 
criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is 
required by E.O. 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies 
the duty to: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. Section 3(b) of E.O. 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation specifies the following: (1) The 
preemptive effect, if any; (2) any effect on existing Federal law or 
regulation; (3) a clear legal standard for affected conduct while 
promoting simplification and burden reduction; (4) the retroactive 
effect, if any; (5) definitions of key terms; and (6) other important 
issues affecting clarity and general draftsmanship under any guidelines 
issued by the Attorney General. Section 3(c) of E.O. 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in sections 3(a) and 3(b) to determine whether these 
standards are met, or whether it is unreasonable to meet one or more of 
them. DOE completed the required review and determined that, to the 
extent permitted by law, this final determination meets the relevant 
standards of E.O. 12988.

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, codified at 2 U.S.C. 1501 et seq.) requires each Federal 
agency to assess the effects of Federal regulatory actions on State, 
local, and tribal governments and the private sector. For regulatory 
actions 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 1 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) 
and (b)) UMRA 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.'' 
UMRA also requires an agency plan for giving notice and opportunity for 
timely input

[[Page 22519]]

to small governments that may be potentially affected before 
establishing any requirement that might significantly or uniquely 
affect them. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA. 62 FR 12820 
(Mar. 18, 1997). (This policy also is available at http://energy.gov/gc/office-general-counsel). DOE reviewed this final determination 
pursuant to these existing authorities and its policy statement and 
determined that the rule contains neither an intergovernmental mandate 
nor a mandate that may result in the expenditure of $100 million or 
more in any year, so the UMRA requirements do not apply.

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

    Section 654 of the Treasury and General Government Appropriations 
Act of 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 determination does 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

    Pursuant to E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights'' 53 FR 8859 (Mar. 15, 
1988), DOE determined that this final determination does not result in 
any takings that might require compensation under the Fifth Amendment 
to the U.S. Constitution.

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

    The Treasury and General Government Appropriation Act of 2001 (44 
U.S.C. 3516, note) requires agencies to review most disseminations of 
information they make to the public under guidelines established by 
each agency pursuant to general guidelines issued by the OMB. The OMB's 
guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's 
guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed this final determination 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

    E.O. 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 OMB a 
Statement of Energy Effects for any proposed significant energy action. 
A ``significant energy action'' is defined as any action by an agency 
that promulgates a final rule or is expected to lead to promulgation of 
a final rule, and that: (1) Is a significant regulatory action under 
E.O. 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 the Office of 
Information and Regulatory Affairs (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 is implemented, and of reasonable 
alternatives to the proposed action and their expected benefits on 
energy supply, distribution, and use.
    DOE has concluded that this regulatory action establishing certain 
definitions and determining that portable ACs meet the criteria for a 
covered product for which the Secretary may prescribe an energy 
conservation standard pursuant to 42 U.S.C. 6295(o) and (p) does not 
have a significant adverse effect on the supply, distribution, or use 
of energy. This action is also not a significant regulatory action for 
purposes of E.O. 12866, and the OIRA Administrator has not designated 
this final determination as a significant energy action under E.O. 
12866 or any successor order. Therefore, this final determination is 
not a significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

L. Review Under the Information Quality Bulletin for Peer Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (OSTP), issued its Final Information 
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 
2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the Bulletin is to enhance the quality and credibility of 
the Government's scientific information. DOE has determined that the 
analyses conducted for the regulatory action discussed in this document 
do not constitute ``influential scientific information,'' which the 
Bulletin defines as ``scientific information the agency reasonably can 
determine will have or does have a clear and substantial impact on 
important public policies or private sector decisions.'' 70 FR 2667 
(Jan. 14, 2005). The analyses were subject to pre-dissemination review 
prior to issuance of this rulemaking.
    DOE will determine the appropriate level of review that would apply 
to any future rulemaking to establish energy conservation standards for 
portable ACs.

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
determination.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on April 11, 2016.
David Friedman,
Principal Deputy Assistant Secretary, Energy Efficiency and Renewable 
Energy.

    For the reasons stated in the preamble, DOE amends part 430 of 
chapter II of title 10, Code of Federal Regulations as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

0
2. Section 430.2 is amended by revising the definition of ``covered 
product'' and adding the definition of ``portable air conditioner'' in 
alphabetical order to read as follows:


Sec.  430.2  Definitions.

* * * * *
    Covered product means a consumer product--
    (1) Of a type specified in section 322 of the Act, or
    (2) That is a ceiling fan, ceiling fan light kit, medium base 
compact fluorescent lamp, dehumidifier, battery charger, external power 
supply, torchiere, or portable air conditioner.
* * * * *
    Portable air conditioner means a portable encased assembly, other 
than a ``packaged terminal air conditioner,'' ``room air conditioner,'' 
or

[[Page 22520]]

``dehumidifier,'' that delivers cooled, conditioned air to an enclosed 
space, and is powered by single-phase electric current. It includes a 
source of refrigeration and may include additional means for air 
circulation and heating.
* * * * *
[FR Doc. 2016-08891 Filed 4-15-16; 8:45 am]
 BILLING CODE 6450-01-P