[Federal Register Volume 83, Number 156 (Monday, August 13, 2018)]
[Rules and Regulations]
[Pages 39873-39874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17187]



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 Rules and Regulations
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  Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Rules 
and Regulations  

[[Page 39873]]



DEPARTMENT OF ENERGY

10 CFR Part 429

[EERE-2016-BT-TP-0029]
RIN 1904-AD71


Energy Conservation Program: Test Procedures for Central Air 
Conditioners and Heat Pumps

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

ACTION: Lifting of administrative stay.

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SUMMARY: On July 3, 2017, the Department of Energy (DOE) issued an 
administrative stay postponing the effectiveness of certain provisions 
of a final rule, published in the Federal Register on January 5, 2017. 
The January 5, 2017 final rule amended the test procedure and certain 
certification, compliance, and enforcement provisions for central air 
conditioners and heat pumps. Specifically, in issuing the 
administrative stay, DOE stayed the effectiveness of two provisions of 
the January 5, 2017 final rule that require outdoor unit models be 
tested under the outdoor unit with no match procedure if they meet 
either of two enumerated conditions. By this action, DOE lifts the 
administrative stay of the two provisions.

DATES: As of August 3, 2018, the administrative stay issued under 5 
U.S.C. 705, postponing the effectiveness of certain provisions of 10 
CFR 429.16(a)(3)(i), was lifted.

FOR FURTHER INFORMATION CONTACT: Mr. Pete Cochran, U.S. Department of 
Energy, Office of the General Counsel, 1000 Independence Ave. SW, 
Washington, DC 20585-0121. Phone: (202) 586-9496. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On January 5, 2017, DOE published a final rule (January 2017 final 
rule) amending the test procedure and certification, compliance, and 
enforcement provisions for central air conditioners and heat pumps 
(CAC/HP). 82 FR 1426. Among other changes, the January 2017 final rule 
added a paragraph at 10 CFR 429.16(a)(3)(i) requiring, among other 
things, that central air conditioners and heat pumps be tested under 
the outdoor unit with no match provisions if: (1) Any of the 
refrigerants approved for use with an outdoor unit model is HCFC-22 or 
has a 95[emsp14][deg]F midpoint saturation absolute pressure that is +/
- 18 percent of the 95[emsp14][deg]F saturation absolute pressure for 
HCFC-22, or if there are no refrigerants designated as approved for 
use; or (2) a model of outdoor unit is not charged with a specified 
refrigerant from the point of manufacture or if the unit is shipped 
requiring the addition of more than two pounds of refrigerant to meet 
the charge required for testing per section 2.2.5 of appendix M or 
appendix M1 (unless either (a) the factory charge is equal to or 
greater than 70% of the outdoor unit internal volume times the liquid 
density of refrigerant at 95[emsp14][deg]F or (b) an A2L refrigerant is 
approved for use and listed in the certification report).
    The original effective date of the January 2017 final rule was 
February 6, 2017. Subsequently, DOE delayed the effective date of the 
January 2017 final rule until March 21, 2017 (82 FR 8985), and then 
further delayed the effective date until July 5, 2017 (82 FR 14425; 82 
FR 15457).
    On March 3, 2017, Johnson Controls, Inc. (JCI) filed a petition for 
review of the January 2017 final rule in the United States Court of 
Appeals for the Seventh Circuit. This litigation is subject to ongoing 
mediation. JCI manufactures outdoor units with an approved refrigerant 
that has a 95[emsp14][deg]F midpoint saturation absolute pressure that 
is +/- 18 percent of the 95[emsp14][deg]F saturation absolute pressure 
for HCFC-22. These same models are also shipped requiring the addition 
of more than two pounds of refrigerant to meet the charge required for 
testing per section 2.2.5 of appendix M or appendix M1, and the factory 
charge is not equal to or greater than 70% of the outdoor unit internal 
volume times the liquid density of refrigerant at 95[emsp14][deg]F. 
Thus, under either of the two provisions that were added at 10 CFR 
429.16(a)(3)(i) by the January 2017 final rule, these models would need 
to be tested as outdoor units with no match under appendix M or M1.
    Also on March 3, 2017, JCI submitted to DOE a petition for a 180-
day extension of the requirement that JCI make efficiency 
representations for its GAW Series products in accordance with the two 
new provisions of the January 2017 final rule. DOE granted this request 
on June 2, 2017.
    On April 6, 2017, JCI submitted to DOE a petition for waiver and 
application for interim waiver from these two test procedure 
provisions. JCI subsequently submitted an amended petition for waiver 
and application for interim waiver on June 5, 2018.
    On May 31, 2017, JCI requested that DOE grant it an administrative 
stay of the above described two provisions pending judicial review of 
the January 2017 final rule. On June 6, 2017, JCI requested that DOE 
hold its stay request in abeyance, noting that DOE's June 2, 2017 grant 
of a 180-day extension of the date by which JCI must comply with the 
two provisions specified above obviated the need for an immediate grant 
of an administrative stay. Subsequently, on June 29, 2017, Lennox 
International Inc. (Lennox), a manufacturer of central air conditioners 
and heat pumps, filed a complaint in the U.S. District Court for the 
Northern District of Texas challenging DOE's decision to grant the 180-
day extension to JCI.
    On July 3, 2017, DOE issued an administrative stay in accordance 
with the Administrative Procedure Act (5 U.S.C. 705).\1\ DOE's 
determination to issue the stay and postpone the effectiveness of the 
two provisions was based on JCI's submissions that raised concerns 
about significant potential impacts of the test procedure provisions on 
JCI, as well as the desire to ensure that all manufacturers of central 
air conditioners and heat pumps would have the same relief granted to 
JCI. 82

[[Page 39874]]

FR 32228. On July 17, 2017, following the denial of its request for 
stay of the 180-day extension and/or for preliminary injunctive relief, 
Lennox voluntarily dismissed its lawsuit.
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    \1\ The administrative stay was made publicly available on DOE's 
website on July 3, 2017: https://www.energy.gov/sites/prod/files/2017/07/f35/Grant%20of%20Administrative%20Stay%20Concerning%20Test%20Procedure%20For%20Cental%20Air%20Conditioners%20and%20Heat%20Pumps.pdf. The 
administrative stay was subsequently published in the Federal 
Register on July 13, 2017. 82 FR 32227. On September 14, 2017, the 
Natural Resources Defense Council filed a complaint in the U.S. 
District Court for the Southern District of New York challenging 
DOE's decision to issue the administrative stay.
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Grant of JCI's Application for Interim Waiver

    As stated above, JCI submitted initial and amended petitions for 
waiver and interim waiver that raise concerns about the equity of the 
challenged test procedure provisions. JCI contends that the challenged 
test procedure provisions unfairly require central air conditioner 
systems that are approved for use with R-407C refrigerant and are 
offered as new, matched systems to be tested as outdoor units with no 
match. Under the outdoor unit with no match testing provisions, these 
systems are treated as replacement outdoor units, regardless of whether 
they are sold as new, matched systems or replacement outdoor units, and 
are rated using default indoor parameters that approximate the 
performance of an old, previously installed indoor unit. As such, JCI 
argues that the test procedure is not representative of the energy 
consumption of such central air conditioners when installed in the 
field as new, matched systems. JCI proposes to evaluate the 1,178 
system combinations listed in its amended waiver petition and certified 
in DOE's Compliance Certification Management System in a manner that is 
representative of the true energy consumption of these products when 
installed as new, matched systems, similar to how central air 
conditioners that use other refrigerants and are sold both as new, 
matched systems and as replacement outdoor units are treated under 
DOE's test procedure.
    While the administrative stay has been in place, DOE has continued 
to evaluate JCI's initial and amended petitions for waiver and interim 
waiver. Based on a review of these petitions and JCI's public-facing 
materials, it is DOE's current understanding that the basic models 
listed in JCI's amended petition, similar to central air conditioners 
that use other refrigerants, are offered as both matched, new systems 
and as replacement outdoor units for existing systems. As a result, DOE 
determined that JCI's amended petition for waiver would likely be 
granted and issued a decision granting JCI an interim waiver subject to 
certain conditions.

Lifting of the Administrative Stay

    In issuing the administrative stay, DOE determined that it was in 
the interest of justice to do so based on two concerns: (1) The 
potential for significant economic impacts for JCI resulting from a 
possibly unrepresentative test procedure; and (2) the desire to 
maintain a level playing field for all central air conditioner 
manufacturers. The issuance of the interim waiver removes the first 
concern and subjects the final determination on the waiver request to 
the administrative process, including a notice-and-comment period, in 
DOE's waiver regulations at 10 CFR 430.27. Further, even if DOE 
ultimately denies JCI's amended waiver petition, an administrative stay 
would still no longer be needed as DOE would have determined that the 
results of the test procedure issued in the January 2017 final rule 
accurately represent the energy use of JCI's products.\2\ In that case, 
there would be no concern about possible significant economic impacts 
to JCI resulting from an unrepresentative test procedure.
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    \2\ DOE will grant a waiver from the test procedure requirements 
if the prescribed test procedures evaluate the basic model in a 
manner so unrepresentative of its true energy or water consumption 
characteristics as to provide materially inaccurate comparative 
data. 10 CFR 430.27(f)(2). JCI argues that the test procedure 
provisions in question result in materially inaccurate comparative 
data for the basic models listed in its amended petition.
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    The waiver petition process also addresses the second concern as 
any manufacturer of a similar product may also submit a waiver 
petition. In fact, if DOE ultimately grants JCI's amended waiver 
petition, a manufacturer of a similar product would be required to 
submit a petition for waiver under DOE's regulations. 10 CFR 430.27(j). 
Further, DOE has determined that the waiver petition process is a 
better, more tailored approach to ensuring a level playing field as 
manufacturers are required to propose alternative test procedures to 
the test procedure from which the waiver is sought, which are then 
subject to potential modification and approval by DOE. 10 CFR 
430.27(b)(1)(iii). Because DOE explicitly approves alternative test 
procedures, there is no possibility of uncertainty regarding how a 
product subject to a waiver should be tested. This also allows DOE to 
ensure that manufacturers of similar products are making energy 
efficiency representations using the same alternative test procedure, 
which is essential for maintaining integrity in a market.
    Based on the foregoing reasons, DOE lifts the administrative stay 
issued on July 3, 2017.

    Signed in Washington, DC, on August 3, 2018.
Stephen C. Skubel,
Assistant General Counsel for Litigation.
[FR Doc. 2018-17187 Filed 8-10-18; 8:45 am]
 BILLING CODE 6450-01-P