[Federal Register Volume 83, Number 70 (Wednesday, April 11, 2018)]
[Proposed Rules]
[Pages 15514-15517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07487]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 83, No. 70 / Wednesday, April 11, 2018 / 
Proposed Rules  

[[Page 15514]]



DEPARTMENT OF ENERGY

10 CFR Part 431


Appliance Standards and Rulemaking Federal Advisory Committee: 
Notification of Intent To Establish a Working Group for Variable 
Refrigerant Flow Multi-Split Air Conditioners and Heat Pumps To 
Negotiate a Notice of Proposed Rulemaking for Test Procedures and 
Energy Conservation Standards

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

ACTION: Notification of intent and solicitation of nominations for 
membership.

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SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
giving notice that DOE intends to establish a negotiated rulemaking 
working group under the Appliance Standards and Rulemaking Federal 
Advisory Committee (ASRAC) in accordance with the Federal Advisory 
Committee Act (FACA) and the Negotiated Rulemaking Act (NRA) to 
negotiate proposed test procedures and amended energy conservation 
standards for variable refrigerant flow multi-split air conditioners 
and heat pumps (VRF multi-split systems). The purpose of the working 
group will be to discuss and, if possible, reach consensus on a 
proposed rule regarding test procedures and energy conservation 
standards for VRF multi-split systems, as authorized by the Energy 
Policy and Conservation Act (EPCA) of 1975, as amended. The working 
group will consist of representatives of parties having a defined stake 
in the outcome of the proposed standards and/or test procedure, and 
will consult as appropriate with a range of experts on technical 
issues. DOE is hereby soliciting nominations for members of the VRF 
multi-split systems working group. Application packages should be 
submitted to DOE by April 26, 2018.

DATES: Nominations of membership must be received on or before April 
26, 2018. DOE will not consider any nominations received via mail or 
after midnight on April 26, 2018.

ADDRESSES: The nominee's name, resume, biography, and any letters of 
support must be submitted in electronic format via email to 
[email protected]. Any requests for further information should also be 
sent via email to [email protected].

FOR FURTHER INFORMATION CONTACT: John Cymbalsky, U.S. Department of 
Energy, Office of Building Technologies (EE-5B), 950 L'Enfant Plaza, 
SW, Washington, DC 20024. Phone: 202-287-1692. Email: [email protected].

SUPPLEMENTARY INFORMATION:

Preamble

I. Authority
II. Background
III. Proposed Negotiating Procedures
IV. Comments Requested
V. Public Participation

I. Authority

    DOE is announcing its intent to negotiate proposed test procedures 
and amended energy conservation standards for VRF multi-split systems 
under the authority of sections 563 and 564 of the NRA (5 U.S.C. 561-
570, Pub. L. 104-320). The regulation of VRF multi-split systems 
standards that DOE is proposing to develop under a negotiated 
rulemaking will be developed under the authority of EPCA, as amended, 
42 U.S.C. 6311(1) and 42 U.S.C. 6291 et seq.

II. Background

    On January 10, 2018, the ASRAC met and made a recommendation to 
form a VRF multi-split systems subcommittee to meet, discuss, and, if 
possible, reach consensus on a proposed rule for the test procedures 
and energy efficiency standards for VRFs. For purposes of this 
document, the ASRAC subcommittee at issue will be referred to as the 
``working group.'' As required by the NRA, DOE is giving notice that it 
is establishing a working group under ASRAC to discuss proposed amended 
test procedures and energy efficiency requirements for VRF multi-split 
systems. The working group will be established and function as a 
subcommittee of ASRAC in accordance with the provisions of the Federal 
Advisory Committee Act (FACA), as amended, 5 U.S.C., App. 2.

A. Negotiated Rulemaking

    DOE is supporting the use of the negotiated rulemaking process to 
discuss and develop proposed test procedures and amended energy 
conservation standards for VRF multi-split systems. The primary reason 
for using the negotiated rulemaking process for this equipment is that 
stakeholders strongly support a consensual rulemaking effort. DOE 
believes such a regulatory negotiation process will be less adversarial 
and better suited to resolving complex technical issues. An important 
virtue of negotiated rulemaking is that it allows expert dialog that is 
much better than traditional techniques at getting the facts and issues 
right and will result in a proposed rule that will effectively reflect 
Congressional intent.
    A regulatory negotiation will enable DOE to engage in direct and 
sustained dialog with informed, interested, and affected parties when 
drafting the regulation, rather than obtaining input during a public 
comment period after developing and publishing a proposed rule. A rule 
drafted by negotiation with informed and affected parties is expected 
to be potentially more pragmatic and more easily implemented than a 
rule arising from the traditional process. Such rulemaking improvement 
is likely to provide the public with the full benefits of the rule 
while minimizing the potential negative impact of a proposed regulation 
conceived or drafted without the full prior input of outside 
knowledgeable parties. Because a negotiating working group includes 
representatives from the major stakeholder groups, including consumers, 
affected by or interested in the rule, the number of public comments on 
the proposed rule may be decreased. DOE anticipates that there will be 
a need for fewer substantive changes to a proposed rule developed under 
a regulatory negotiation process prior to the publication of a final 
rule.

B. The Concept of Negotiated Rulemaking

    Usually, DOE develops a proposed rulemaking using Department staff 
and consultant resources. Congress noted in the NRA, however, that 
regulatory development may ``discourage the affected parties from 
meeting and

[[Page 15515]]

communicating with each other, and may cause parties with different 
interests to assume conflicting and antagonistic positions.'' (5 U.S.C. 
561(2)(2)) Congress also stated that ``adversarial rulemaking deprives 
the affected parties and the public of the benefits of face-to-face 
negotiations and cooperation in developing and reaching agreement on a 
rule. It also deprives them of the benefits of shared information, 
knowledge, expertise, and technical abilities possessed by the affected 
parties.'' (5 U.S.C. 561(2)(3))
    Using negotiated rulemaking to develop a proposed rule differs 
fundamentally from the Department centered process. In negotiated 
rulemaking, a proposed rule is developed by an advisory committee or a 
working group established by the advisory committee, composed of 
members chosen to represent the various interests that will be 
significantly affected by the rule. The goal of the advisory committee 
or its working group is to reach consensus on the treatment of the 
major issues involved with the rule. The process starts with the 
Department's careful identification of all interests potentially 
affected by the rulemaking under consideration. To help with this 
identification, the Department publishes a notification of intent such 
as this one in the Federal Register, identifying a preliminary list of 
interested parties and requesting public comment on that list. 
Following receipt of comments, the Department establishes an advisory 
committee or advisory committee working group representing the full 
range of stakeholders to negotiate a consensus on the terms of a 
proposed rule. Representation on the advisory committee or its working 
group may be direct; that is, each member may represent a specific 
interest, or may be indirect, such as through trade associations and/or 
similarly-situated parties with common interests. The Department 
especially seeks membership from consumers or consumer groups that will 
be impacted by any potential negotiated energy conservation standard. 
The Department is a member of the advisory committee or working group 
and represents the Federal government's interests. The advisory 
committee or working group chair is assisted by a neutral mediator who 
facilitates the negotiation process. The role of the mediator, also 
called a facilitator, is to apply proven consensus-building techniques 
to the advisory committee or working group process.
    If the advisory committee itself is undertaking the negotiation, 
once the committee reaches consensus on the provisions of a proposed 
rule and recommends such consensus to the Department, the Department, 
consistent with its legal obligations, may use such consensus as the 
basis of its proposed rule, which then is published in the Federal 
Register. If a working group of the advisory committee is undertaking 
the negotiation, once the working group reaches consensus on the 
provisions of a proposed rule, a recommendation is made to the advisory 
committee. The advisory committee may then, consistent with its legal 
obligations, use such consensus as the basis for making a 
recommendation to the Department of a proposed rule. The Department, 
consistent with its legal obligations, may use such consensus as the 
basis of its proposed rule, which then is published in the Federal 
Register. This publication provides the required public notice and 
provides for a public comment period. Other participants and other 
interested parties retain their rights to comment, participate in an 
informal hearing (if requested), and request judicial review. DOE 
anticipates, however, that the pre-proposal consensus recommended by 
the advisory committee will narrow any issues in the subsequent 
rulemaking.

C. Proposed Rulemaking for Test Procedures and Energy Conservation 
Standards Regarding VRF Multi-Split Systems

    The NRA enables DOE to establish an advisory committee or a working 
group under the advisory committee if it is determined that the use of 
the negotiated rulemaking process is in the public interest. DOE 
intends to develop Federal regulations that build on the depth of 
experience accrued in both the public and private sectors in 
implementing standards and programs.
    DOE has determined that the regulatory negotiation process will 
provide for obtaining a diverse array of in-depth input, as well as an 
opportunity for increased collaborative discussion from both private-
sector stakeholders and government officials who are familiar with 
energy efficiency of VRF multi-split systems.

D. Department Commitment

    In initiating this regulatory negotiation process to develop test 
procedures and amended energy conservation standards for VRF multi-
split systems, DOE is making a commitment to provide adequate resources 
to facilitate timely and successful completion of the process. This 
commitment includes making the process a priority activity for all 
representatives, components, officials, and personnel of the Department 
who need to be involved in the rulemaking, from the time of initiation 
until such time as a final rule is issued or the process is expressly 
terminated. DOE will provide administrative support for the process and 
will take steps to ensure that the advisory committee or its working 
group has the dedicated resources it requires to complete its work in a 
timely fashion. Specifically, DOE will make available the following 
support services: Properly equipped space adequate for public meetings 
and caucuses; logistical support; word processing and distribution of 
background information; the service of a facilitator; and such 
additional research and other technical assistance as may be necessary. 
All meetings will provide an opportunity for all members of the working 
group and other interested parties to participate by webinar. While DOE 
strongly encourages members to participate in person, DOE realizes that 
travel costs may prohibit in-person attendance. Prospective members, 
therefore, should not allow travel costs to affect their decision to 
apply for membership.
    To the maximum extent possible consistent with the legal 
obligations of the Department, DOE will use the consensus of the 
advisory committee as the basis for the rule the Department proposes 
for public notice and comment.

E. Negotiating Consensus

    As discussed, the negotiated rulemaking process differs 
fundamentally from the usual process for developing a proposed rule. 
Negotiation enables interested and affected parties to discuss various 
approaches to issues rather than asking them only to respond to a 
proposal developed by the Department. The negotiation process involves 
a mutual education of the various parties on the practical concerns 
about the impact of standards. Each advisory committee or working group 
member participates in resolving the interests and concerns of other 
members, rather than leaving it up to DOE to evaluate and incorporate 
different points of view.
    A key principle of negotiated rulemaking is that agreement is by 
consensus of all the interests. Thus, no one interest or group of 
interests is able to control the process. The NRA defines consensus as 
the unanimous concurrence among interests represented on a negotiated 
rulemaking committee or working group, unless the advisory committee or 
its working group itself unanimously agrees to use a different 
definition. 5 U.S.C. 562. In

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addition, experience has demonstrated that using a trained mediator to 
facilitate this process will assist all parties, including DOE, in 
identifying their real interests in the rule, and thus will enable 
parties to focus on and resolve the important issues.

III. Proposed Negotiating Procedures

A. Key Issues for Negotiation

    The following issues and concerns will underlie the work of the 
Negotiated Rulemaking Committee on Variable Refrigerant Flow Multi-
Split Systems Energy Conservation Standards:
     Test procedures for VRF multi-split systems; and
     Energy Conservation Standards for VRF multi-split systems.
    To examine the underlying issues outlined above, and others not yet 
articulated, all parties in the negotiation will need DOE to provide 
data and an analytic framework complete and accurate enough to support 
their deliberations. DOE`s analyses must be adequate to inform a 
prospective negotiation. Prior to the commencement of the working 
group, DOE expects to publish a notice of data availability (NODA) 
which discusses the results of DOE's analysis of the energy savings 
potential of amended energy conservation standards for VRF multi-split 
systems. DOE also expects to publish a technical support document and 
analytical tools along with the NODA. Working Groups members should 
review the associated materials before each meeting.

B. Formation of Working Group

    A working group will be formed and operated in full compliance with 
the requirements of FACA and in a manner consistent with the 
requirements of the NRA. DOE has determined that the working group 
shall not exceed 25 members. The Department believes that more than 25 
members would make it difficult to conduct effective negotiations. DOE 
is aware that there may be many more potential participants than there 
are membership slots on the working group. The Department does not 
believe, nor does the NRA contemplate, that each potentially affected 
group must participate directly in the negotiations; nevertheless, each 
affected interest can be adequately represented. To have a successful 
negotiation, it is important for interested parties to identify and 
form coalitions that adequately represent significantly affected 
interests. To provide adequate representation, those coalitions must 
agree to support, both financially and technically, a member of the 
working group whom they choose to represent their interests. DOE is 
especially interested in representation by consumers of VRF multi-split 
systems since any potential energy conservation standard may impact 
this stakeholder group. Consumers of VRFs may include, but are not 
limited to, commercial building owners, commercial heating, 
ventilation, and air-conditioning architects, or commercial building 
tenants that pay utility bills.
    DOE recognizes that when it establishes energy efficiency standards 
and test procedures for residential products and commercial equipment, 
various segments of society may be affected in different ways, in some 
cases producing unique ``interests'' in a proposed rule based on 
income, gender, or other factors. The Department will pay attention to 
providing that any unique interests that have been identified, and that 
may be significantly affected by the proposed rule, are represented. 
Per the ASRAC charter, the Assistant Secretary for Energy Efficiency 
and Renewable Energy or his designee, in consultation with the ASRAC 
Chair, appoints ASRAC subcommittee (working group) chairs.
    FACA also requires that members of the public have the opportunity 
to attend meetings of the full committee and speak or otherwise address 
the committee during the public comment period. In addition, any member 
of the public is permitted to file a written statement with the 
advisory committee. DOE plans to adhere to these requirements in the 
conduct of the working group.

C. Interests Involved/Working Group Membership

    DOE anticipates that the working group will comprise no more than 
25 members who represent affected and interested stakeholder groups, at 
least one of whom must be a member of the ASRAC. As required by FACA, 
the Department will select members for the working group with 
particular attention to ensuring full and balanced representation of 
those interests that may be significantly affected by the proposed rule 
amending standards for VRF multi-split systems. Section 562 of the NRA 
defines the term ``interest'' as ``with respect to an issue or matter, 
multiple parties which have a similar point of view or which are likely 
to be affected in a similar manner.'' Listed below are parties the 
Department to date has identified as being ``significantly affected'' 
by a proposed rule regarding the energy efficiency of VRF multi-split 
systems.
 The Department of Energy
 States
 Manufacturers of VRF multi-split systems
 Trade Associations representing manufacturers, installers, and 
distributors of VRF multi-split systems
 Heating and Cooling System Designers and Engineers
 Component manufacturers and related suppliers
 Utilities
 Energy efficiency/environmental advocacy groups
 Commercial Building Owners
 Commercial Building Tenants

    One purpose of this notification of intent is to determine whether 
Federal regulations for VRF multi-split systems will significantly 
affect interests that are not listed above. DOE invites comment and 
suggestions on its initial list of significantly affected interests and 
encourages all interested parties and interests to apply for the 
working group.
    Members may be individuals or organizations. If the effort is to be 
fruitful, participants on the working group should be able to fully and 
adequately represent the viewpoints of their respective interests. This 
document gives notice of DOE's process to other potential participants 
and affords them the opportunity to request representation in the 
negotiations. Those who wish to nominate members to the working group, 
should submit an application package to DOE, in accordance with the 
public participation procedures outlined in the DATES and ADDRESSES 
sections of this notification of intent. Qualified individuals can 
self-nominate or be nominated by any individual or organization. 
Nominators should submit an application package which includes:
     The nominee's current resume or curriculum vitae and 
contact information, including mailing address, email address, and 
telephone number;
     A letter of interest, which includes:
    [cir] A summary of how the nominee's experience and expertise would 
support the working group's objectives;
    [cir] The interest the nominee would represent in the working 
group; and
    [cir] A description of other assets (such as data or modeling 
tools) the nominee could provide to support the working group's 
objectives.
    Membership of the working group is likely to involve:
     Attendance (in person preferable) at approximately ten 
(10), one (1)- to two (2)-day meetings (with the potential for two (2) 
additional one (1)- or two (2)-day meetings);

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     Travel costs to those meetings, if participating in 
person; and
     Preparation time for those meetings.
    Members serving on the working group will not receive compensation 
for their services. Interested parties who are not selected for 
membership on the working group may make valuable contributions to this 
negotiated rulemaking effort in any of the following ways:
     The person may request to be placed on the working group 
mailing list and submit written comments as appropriate.
     The person may attend working group meetings, which are 
open to the public; caucus with his or her interest's member on the 
working group; or even address the working group during the public 
comment portion of the working group meeting.
     The person could assist the efforts of a workgroup that 
the working group might establish.
    A working group may establish informal workgroups, which usually 
are asked to facilitate committee deliberations by assisting with 
various technical matters (e.g., researching or preparing summaries of 
the technical literature or comments on specific matters such as 
economic issues). Workgroups also might assist in estimating costs or 
drafting regulatory text on issues associated with the analysis of the 
costs and benefits addressed, or formulating drafts of the various 
provisions and their justifications as previously developed by the 
working group. Given their support function, workgroups usually consist 
of participants who have expertise or particular interest in the 
technical matter(s) being studied. Because it recognizes the importance 
of this support work for the working group, DOE will provide 
appropriate technical expertise for such workgroups. Such workgroups 
will provide their work product and/or recommendations only to the 
working group.

D. Good Faith Negotiation

    Every working group member must be willing to negotiate in good 
faith and have the authority, granted by his or her constituency, to do 
so. The first step is to ensure that each member has good 
communications with his or her constituencies. An intra-interest 
network of communication should be established to bring information 
from the support organization to the member at the table, and to take 
information from the table back to the support organization. Second, 
each organization or coalition therefore should designate as its 
representative a person having the credibility and authority to ensure 
that needed information is provided and decisions are made in a timely 
fashion. Negotiated rulemaking can require the appointed members to 
give a significant sustained time commitment for as long as the 
duration of the negotiated rulemaking. Other qualities of members that 
can be helpful are negotiating experience and skills, familiarity with 
using VRF multi-split systems as a consumer, and/or sufficient 
technical knowledge to participate in substantive negotiations.
    Certain concepts are central to negotiating in good faith. One is 
the willingness to bring all issues to the bargaining table in an 
attempt to reach a consensus, as opposed to keeping key issues in 
reserve. The second is a willingness to keep the issues at the table 
and not take them to other forums. Finally, good faith includes a 
willingness to move away from some of the positions often taken in a 
more traditional rulemaking process, and instead explore openly with 
other parties all ideas that may emerge from the working group's 
discussions.

E. Facilitator

    The facilitator will act as a neutral in the substantive 
development of the proposed standard. Rather, the facilitator's role 
generally includes:
     Impartially assisting the members of the working group in 
conducting discussions and negotiations; and
     Impartially assisting in performing the duties of the 
Designated Federal Official under FACA.

F. Department Representative

    The DOE representative will be a full and active participant in the 
consensus building negotiations. The Department's representative will 
meet regularly with senior Department officials, briefing them on the 
negotiations and receiving their suggestions and advice so that he or 
she can effectively represent the Department's views regarding the 
issues before the working group. DOE's representative also will ensure 
that the entire spectrum of governmental interests affected by the 
standards rulemaking, including the Office of Management and Budget, 
the Attorney General, and other Departmental offices, are kept informed 
of the negotiations and encouraged to make their concerns known in a 
timely fashion.

G. Working Group and Schedule

    After evaluating the comments submitted in response to this 
notification of intent and the requests for nominations, DOE will 
either inform the members of the working group that they have been 
selected or determine that conducting a negotiated rulemaking is 
inappropriate.
    The working group is expected to make a concerted effort to 
negotiate its first term sheet on test procedures and its second term 
sheet on energy conservation standards within six (6) months of its 
first meeting. The working group's negotiations will take place around 
two discrete tasks. The test procedure term sheet, if completed, is to 
be approved by the working group and transmitted to ASRAC prior to 
commencement of negotiations regarding the energy conservation 
standards. At the completion of the negotiations for each discrete 
tasks, the term sheet, if completed, will be presented to ASRAC at an 
open meeting for their deliberation and decision on whether or not to 
approve it and submit it to DOE as a formal recommendation.
    DOE will advise working group members of administrative matters 
related to the functions of the working group before beginning. While 
the negotiated rulemaking process is underway, DOE is committed to 
performing much of the same analysis as it would during a normal 
standards rulemaking process and to providing information and technical 
support to the working group.

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this 
notification of intent.

    Issued in Washington, DC, on April 5, 2018.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency and Renewable Energy.
[FR Doc. 2018-07487 Filed 4-10-18; 8:45 am]
 BILLING CODE 6450-01-P