[Federal Register Volume 84, Number 96 (Friday, May 17, 2019)]
[Proposed Rules]
[Pages 22395-22403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10304]


 ========================================================================
 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. 84, No. 96 / Friday, May 17, 2019 / Proposed 
Rules  

[[Page 22395]]



DEPARTMENT OF ENERGY

10 CFR Parts 429 and 431


Energy Conservation Program: Test Procedures for Compressors, 
Notice of Petition for Rulemaking

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

ACTION: Notice of petition for rulemaking; request for comment.

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SUMMARY: On April 17, 2019, the Department of Energy (DOE) received a 
petition from Atlas Copco North America, Inc. (Atlas Copco) asking DOE 
to allow compressor manufacturers to determine the applicable full-load 
package isentropic efficiency, part-load package isentropic efficiency, 
package specific power, maximum full-flow operating pressure, full-load 
operating pressure, full-load actual volume flow rate, and pressure 
ratio at full-load operating pressure using either the DOE test 
procedure or the consensus industry test method, International 
Organization for Standardization 1217:2009 (ISO 1217). Through this 
notice, DOE seeks comment on the petition, as well as any data or 
information that could be used in DOE's determination on whether to 
proceed with the petition.

DATES: Written comments and information are requested on or before 
August 15, 2019.

ADDRESSES: Interested persons are encouraged to submit comments, 
identified by ``Test Procedure for Compressors,'' by any of the 
following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. E-mail: [email protected]. Include Docket 
No. EERE-2019-BT-PET-0017 in the subject line of the message.
    3. Postal Mail: Appliance and Equipment Standards Program, U.S. 
Department of Energy, Building Technologies Office, Mailstop EE-5B, 
1000 Independence Avenue SW, Washington, DC, 20585-0121. If possible, 
please submit all items on a compact disc (CD), in which case it is not 
necessary to include printed copies.
    4. Hand Delivery/Courier: Appliance and Equipment Standards 
Program, U.S. Department of Energy, Building Technologies Office, 950 
L'Enfant Plaza SW, Suite 600, Washington, D.C., 20024. Telephone: (202) 
287-1445. If possible, please submit all items on a CD, in which case 
it is not necessary to include printed copies.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at: http://www.regulations.gov/docket?D=EERE-2019-BT-PET-0017.

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

SUPPLEMENTARY INFORMATION: The Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq., provides among other things, that ``[e]ach agency 
shall give an interested person the right to petition for the issuance, 
amendment, or repeal of a rule.'' (5 U.S.C. 553(e)) DOE received a 
petition from Atlas Copco, as described in this notice and set forth 
verbatim below, requesting that DOE allow compressor manufacturers to 
determine the applicable full-load package isentropic efficiency, part-
load package isentropic efficiency, package specific power, maximum 
full-flow operating pressure, full-load operating pressure, full-load 
actual volume flow rate, and pressure ratio at full-load operating 
pressure using either the DOE test procedure or the consensus industry 
test method, ISO 1217. In support of its petition, Atlas Copco also 
provided declarations, including supporting exhibits, from two 
individuals. These documents are available in the docket at http://www.regulations.gov/docket?D=EERE-2019-BT-PET-0017. In promulgating 
this petition for public comment, DOE is seeking views on whether it 
should grant the petition and undertake a rulemaking to amend the test 
procedure for compressors. By seeking comment on whether to grant this 
petition, DOE takes no position at this time regarding the merits of 
the suggested rulemaking or the assertions made by Atlas Copco.
    Atlas Copco argues that the compressor test procedure should be 
amended for two main reasons. First, Atlas Copco states that existing 
data generated using ISO 1217 is sufficient to determine energy 
efficiency compliance for the numerous state efficiency standards now 
being adopted or considered. As a result, requiring manufacturers to 
retest compressors using the DOE test procedure would result in 
millions of dollars of needless and duplicative testing. Second, Atlas 
Copco argues that DOE issued the compressor test procedure in violation 
of Section 12(d) of the National Technology Transfer Advancement Act of 
1995, 110 Stat. 783, March 7, 1996, Public Law 104-113, 15 U.S.C. 272 
note, which requires use of industry consensus test standards, such as 
ISO 1217, unless the Secretary of Energy informs the Director of the 
Office of Management and Budget of the specific reasons the Department 
is compelled to depart from that consensus standard. Atlas Copco 
contends no such notification was made, nor was there any appropriate 
basis to depart from the ISO 1217 standard.
    DOE welcomes comments and views of interested parties on any aspect 
of the petition for rulemaking.

Submission of CommentsA17MY2.

    DOE invites all interested parties to submit in writing by August 
15, 2019 comments and information regarding this petition.
    Submitting comments via http://www.regulations.gov. The http://www.regulations.gov webpage will require you to provide your name and 
contact information prior to submitting comments. Your contact 
information will be viewable to DOE Building Technologies staff only. 
Your contact information will not be publicly viewable except for your 
first and last names, organization name (if any), and submitter 
representative name (if any). If your comment is not processed properly 
because of technical difficulties, DOE will use this information to 
contact you. If DOE cannot read your comment due to technical 
difficulties and cannot contact you for clarification, DOE may not be 
able to consider your comment.
    However, your contact information will be publicly viewable if you 
include

[[Page 22396]]

it in the comment or in any documents attached to your comment. Any 
information that you do not want to be publicly viewable should not be 
included in your comment, nor in any document attached to your comment. 
Persons viewing comments will see only first and last names, 
organization names, correspondence containing comments, and any 
documents submitted with the comments.
    Do not submit to http://www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (CBI)). Comments submitted through 
http://www.regulations.gov cannot be claimed as CBI. Comments received 
through the website will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section.
    DOE processes submissions made through http://www.regulations.gov 
before posting. Normally, comments will be posted within a few days of 
being submitted. However, if large volumes of comments are being 
processed simultaneously, your comment may not be viewable for up to 
several weeks. Please keep the comment tracking number that http://www.regulations.gov provides after you have successfully uploaded your 
comment.
    Submitting comments via email, hand delivery, or postal mail. 
Comments and documents via email, hand delivery, or postal mail will 
also be posted to http://www.regulations.gov. If you do not want your 
personal contact information to be publicly viewable, do not include it 
in your comment or any accompanying documents. Instead, provide your 
contact information on a cover letter. Include your first and last 
names, email address, telephone number, and optional mailing address. 
The cover letter will not be publicly viewable as long as it does not 
include any comments.
    Include contact information in your cover letter each time you 
submit comments, data, documents, and other information to DOE. If you 
submit via postal mail or hand delivery, please provide all items on a 
CD, if feasible, in which case it is not necessary to submit printed 
copies. No telefacsimiles (faxes) will be accepted.
    Comments, data, and other information submitted electronically 
should be provided in PDF (preferred), Microsoft Word or Excel, 
WordPerfect, or text (ASCII) file format. Provide documents that are 
not secured, written in English, and free of any defects or viruses. 
Documents should not include any special characters or any form of 
encryption, and, if possible, they should carry the electronic 
signature of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email, postal mail, or hand delivery two well-marked copies: One copy 
of the document marked ``Confidential'' including all the information 
believed to be confidential, and one copy of the document marked ``Non-
confidential'' with the information believed to be confidential 
deleted. Submit these documents via email or on a CD, if feasible. DOE 
will make its own determination about the confidential status of the 
information and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include: (1) A description of the 
items; (2) whether and why such items are customarily treated as 
confidential within the industry; (3) whether the information is 
generally known by or available from other sources; (4) whether the 
information has previously been made available to others without 
obligation concerning its confidentiality; (5) an explanation of the 
competitive injury to the submitting person which would result from 
public disclosure; (6) when such information might lose its 
confidential character due to the passage of time, and (7) why 
disclosure of the information would be contrary to the public interest.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).
    DOE considers public participation to be a very important part of 
its process for considering rulemaking petitions. DOE actively 
encourages the participation and interaction of the public during the 
comment period. Interactions with and between members of the public 
provide a balanced discussion of the issues and assist DOE in 
determining how to proceed with a petition. Anyone who wishes to be 
added to DOE mailing list to receive future notices and information 
about this petition should contact Appliance and Equipment Standards 
Program staff at (202) 287-1445 or via email at 
[email protected].

Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
petition for rulemaking.

    Signed in Washington, D.C. on May 13, 2019.
Daniel R Simmons,
Assistant Secretary, Energy Efficiency and Renewable Energy.

BEFORE THE UNITED STATES DEPARTMENT OF ENERGY OFFICE OF ENERGY 
EFFICIENCY & RENEWABLE ENERGY

PETITION OF ATLAS COPCO NORTH AMERICA FOR RULEMAKING TO STREAMLINE AND 
HARMONIZE ROTARY AIR COMPRESSOR ENERGY EFFICIENCY TEST STANDARDS AND TO 
AUTHORIZE USE OF EXISTING RELIABLE EFFICIENCY DATA AND TEST METHODS FOR 
COMPLIANCE WITH 10 C.F.R. PARTS 429 AND 431

    Atlas Copco North America respectfully petitions the U.S. 
Department of Energy (DOE) to amend the language of its rotary air 
compressor efficiency test rule (``Test Rule'') \1\ in order to make 
clear to state regulators and to the wider public that manufacturers 
can also satisfy Test Rule obligations by using the consensus industry 
test method for rotary air compressor energy efficiency, ISO 1217:2009, 
which is published by the International Organization for 
Standardization (``ISO 1217''), including ISO 1217 results obtained 
before 2017.
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    \1\ The Test Rule added the following provisions to Title 10, 
Code of Federal Regulations Sec. Sec.  429.63, 429.70(h), 
429.134(p), 431.342, 431.343, 431.344, Appendix A to Subpart T - 
Uniform Test Method for Certain Air Compressors, as added by 82 Fed. 
Reg. 1052 (Jan. 4, 2017).
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    For reasons described below, DOE should do so because:

    (a) In adopting the Test Rule, DOE ignored and violated section 
12(d) of the National Technology Transfer and Advancement Act of 
1995,\2\ which

[[Page 22397]]

mandates use of ISO 1217, as a consensus industry standard, absent 
compelling reasons to depart from it explained in writing by the 
Secretary of Energy to the Director of the Office of Management and 
Budget (OMB), something DOE plainly failed to do; and
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    \2\ 110 Stat. 783, March 7, 1996, Public Law 104-113, Section 
12(d); 15 U.S.C. Sec.  272 note. The statutory language provides:
    (d) UTILIZATION OF CONSENSUS TECHNICAL STANDARDS BY FEDERAL 
AGENCIES; REPORTS.--
    (1) IN GENERAL.--Except as provided in paragraph (3) of this 
subsection, all Federal agencies and departments shall use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies, using such technical standards as a means to carry 
out policy objectives or activities determined by the agencies and 
departments. . . .
    (3) EXCEPTION.--If compliance with paragraph (1) of this 
subsection is inconsistent with applicable law or otherwise 
impractical, a Federal agency or department may elect to use 
technical standards that are not developed or adopted by voluntary 
consensus standards bodies if the head of each such agency or 
department transmits to the Office of Management and Budget an 
explanation of the reasons for using such standards. Each year, 
beginning with fiscal year 1997, the Office of Management and Budget 
shall transmit to Congress and its committees a report summarizing 
all explanations received in the preceding year under this 
paragraph.
    (4) DEFINITION OF TECHNICAL STANDARDS.--As used in this 
subsection, the term ``technical standards'' means performance-based 
or design-specific technical specifications and related management 
systems practices.
    (Emphasis supplied).
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    (b) In failing to correct the Test Rule and expressly allow the use 
of ISO 1217 data to certify energy efficiency performance, DOE in 
effect is mandating that air compressor manufacturers incur millions of 
dollars of useless and duplicative testing to satisfy state energy 
efficiency mandates, even though ISO 1217 data already provide accurate 
data characterizing rotary air compressor energy efficiency. This 
situation makes the uncorrected Test Rule ``unreasonably burdensome'' 
within the meaning of section 343(a)(2) of the Energy Policy and 
Conservation Act (EPCA), 42 U.S.C. Sec.  6314(a)(2).

SUMMARY

    In its final rulemaking notice promulgating the Test Rule, DOE 
adopted regulatory language based in large part on ISO 1217. 82 Fed. 
Reg. 1052 (Jan. 4, 2017). Indeed, DOE stated in the preamble that for 
most rotary air compressor models, manufacturers would and could rely 
on existing ISO 1217 data, 82 Fed. Reg. 1052, 1090, 1094-95. DOE, 
however, did not write express authorization to use ISO 1217 data into 
the Test Rule's regulatory language.
    State regulators are separately imposing rotary air compressor 
energy efficiency standards by statute or regulation because DOE has 
declined to finalize its energy efficiency standard, even though DOE 
posted such a ``Final Rule Package'' on its website in December 2016. 
Such state statutes and regulations also expressly reference the Test 
Rule as adopted in order to measure energy efficiency, but do so 
without any reference to ISO 1217. The state language does not 
authorize any use of prior or current ISO 1217 data to satisfy testing 
and certification requirements.
    Consequently, these state requirements will likely trigger very 
costly and needlessly duplicative testing obligations unless 
manufacturers go to each state to argue for clarification to allow use 
of ISO 1217 and persuade the state authorities to do so. For one state 
(Vermont), these requirements will have to be met before July 1, 2020, 
for another (California), before January 1, 2022. As many as thirteen 
other state legislatures are actively considering requirements worded 
almost identically to California's testing mandate. That duplicative 
testing threatens to waste tens of millions of dollars better spent to 
improve rotary air compressor efficiency than in re-testing models 
which have already been shown to be efficient enough to pass the state 
standards.
    As a customer acceptance test, ISO 1217 data reports energy 
efficiency results from tests of a single unit of a rotary air 
compressor model, the one to be supplied to the customer. Atlas Copco 
and other manufacturers have compiled a large number of ISO 1217 test 
results on many different basic rotary air compressor models since 
2009, even though only a small number of units of any specific basic 
model are ordinarily sold in a year. Sometimes only one unit - or no 
units -- of a particular basic model are sold in a year.
    By contrast, the Test Rule, by cross-referencing 10 C.F.R. Sec.  
429.11, ordinarily requires test results from two UNITS of each rotary 
air compressor MODEL. Sec.  429.11(b):

    The minimum number of units tested shall be no less than two, 
except where . . . (2) [o]nly one unit of the basic model is produced, 
in which case, that unit must be tested and the test results must 
demonstrate that the basic model performs at or better than applicable 
standard(s). . . . .
10 C.F.R. Sec.  429.11(b)(Emphasis supplied.)

    Testing of two units using the DOE Test Rule will reportedly cost 
around $4,000 per basic model at the trade association's laboratory, 
and will likely cost more at other testing laboratories for 
manufacturers who are not part of the trade association. As there are 
estimated to be around 6,000 basic models offered for sale in the 
United States, and as such testing appeared to be required of all basic 
models offered for sale in Vermont by July 1, 2020 and other states by 
January 1, 2022, the costs may easily exceed $20 million if Vermont and 
other states read the literal terms of the DOE Test Rule to preclude 
use of ISO 1217 data. Regrettably, it is believed that most of this 
testing under the Test Rule would duplicate existing ISO 1217 energy 
efficiency test data without changing the compliance determination.
    The inability to use existing ISO 1217 testing, particularly for 
basic models which are ordered infrequently, creates an unreasonable 
hardship for manufacturers. These manufacturers, in order to offer 
their rotary compressors for sale in a state, are required by state law 
(and section 343(d)(1) of the Energy Policy and Conservation Act 
(EPCA), 42 U.S.C. Sec.  6314(d)(1)) to make public representations 
about energy efficiency based on DOE test data. These representations 
include written representations to state agencies such as the Vermont 
Public Service Commission, agencies that are imposing energy efficiency 
requirements on rotary air compressors.
    Because there are about 6,000 different rotary air compressor 
MODELS subject to the Test Rule offered for sale in the United States, 
and only about 23,700 UNITS sold from these models for 2013, the most 
recent year for which such data are available. As a result, the burden 
of requiring testing of two UNITS for each MODEL will be 
disproportionately high unless reliable ISO 1217 test results 
(including existing data) can also be used as a basis to satisfy the 
Test Rule obligations.
    DOE had anticipated publishing its air compressor efficiency 
standard in late January 2017 (DOE Efficiency Rule), but that 
publication did not occur and still has not occurred. This combination 
of circumstances, i.e., the failure to expressly allow the use of ISO 
1217 and the failure to publish the efficiency standard, has created 
confusion about applicable testing requirements among manufacturers of 
rotary air compressors and among state regulators anxious to adopt 
similar efficiency standards.
    Two states - Vermont and California -- have already adopted air 
compressor energy efficiency standards based on the DOE Efficiency 
Rule, with language expressly requiring use of the Test Rule to certify 
compliance, without any provision allowing use of ISO 1217 data to 
certify compliance. The compliance date in Vermont is next year, on 
July 1, 2020. The compliance date for California - almost one seventh 
of the U.S. market - and other states adopting model legislation based 
on California's, is January 1, 2022.

[[Page 22398]]

    Energy efficiency advocates recently testified before the U. S. 
House Energy and Commerce Committee that thirteen additional state 
legislatures are considering similar legislation, set forth in a model 
act. While the model legislation uses the DOE Efficiency Rule and 
expressly incorporates DOE's Test Rule, it does not reference or 
expressly authorize the use of ISO 2017 data to demonstrate compliance 
with the state efficiency standards. The compliance date in the model 
legislation is January 1, 2022.
    These state actions, and proposed additional state actions, reliant 
upon a flawed Test Rule, threaten major problems in the rotary air 
compressor market and will impose undue testing burdens on 
manufacturers such as Atlas Copco while doing nothing to improve air 
compressor efficiency in the field. As a consequence Atlas Copco 
believes that a large number of rotary air compressor models will be 
withdrawn from the market to avoid these significant testing costs, 
including a large number of models that comply with the substantive 
efficiency standards the states are adopting.
    At best, Atlas Copco anticipates that it and other manufacturers 
will have to repeatedly participate in repetitive state rulemaking 
proceedings as occurred in California in order to make explicit that 
ISO 1217 data can be used to certify compliance with efficiency 
standards On April 10, 2019, The California Energy Commission (CEC) 
finally addressed the issue, adopting an order that expressly 
authorizes use of ISO 1217 data to certify compliance. The CEC did so 
in response to an Atlas Copco petition, but did not amend the actual 
rule language that the Model Legislation copied. Consequently, the 
costly and time-consuming exercise of explaining the Test Rule problems 
to each set of state regulators and obtaining specific clarifications 
from each state may have to be repeated in every state that adopts the 
Model Legislation.
    Atlas Copco respectfully petitions DOE to amend the Test Rule to 
correct these serious problems and to conform to the requirements of 
section 343(a)(2) of EPCA, 42 U.S.C. Sec.  6314(a)(2), and section 
12(d) of the National Technology Transfer and Advancement Act (NTTAA).
    Part I of this Petition summarizes information from the DOE 
Technical Support Document (TSD) and from air compressor experts in 
order to explain the size and nature of the United States market for 
rotary air compressors.
    Part II of this Petition summarizes the complicated procedural 
history of the Test Rule, the enforcement of which has been suspended 
by DOE.
    Part III examines the minor but very costly differences between 
testing under ISO 1217 and testing under the Test Rule. The Petition 
does so using expert witness declarations attached to the petition.
    Part IV explains how section 343(d)(1) of EPCA, 42 U.S.C. Sec.  
6314(d)(1), applies to the written representations about compressor 
efficiency made under state laws and regulations. Those state 
requirements use the federal Test Rule and do not expressly allow for 
the use of ISO 1217 test methods or past ISO 1217 test rules to satisfy 
those requirements. Because of the state compliance deadlines, 
manufacturers need DOE to make early and authoritative changes in the 
Test Rule to permit use of ISO 1217 testing and results to meet Test 
Rule requirements or the manufacturers will face large, costly and 
duplicative testing requirements.
    Part V reviews recent regulatory and legislative actions by Vermont 
and California, and explains the very costly - and apparently 
unintended - results of DOE's failure to make explicit provision in the 
Test Rule for the use of ISO 1217 test data to satisfy Test Rule 
obligations under EPCA.
    Part VI discusses the inflexible testing language of the model 
legislation which is being advocated in thirteen additional states, 
language which makes no provision for the use of ISO 1217. These 
results threaten costly disruptions of the rotary air compressor market 
in these states and elsewhere in the United States, problems that are 
not offset by any actual improvement in rotary air compressor 
efficiency in the field.
    Part VII explains how DOE has violated section 12(d) of the 
National Technology Transfer and Advancement Act (NTTAA) of 1995 by 
departing from an applicable and workable voluntary industry consensus 
test standard without providing the specific written justifications by 
the Secretary of Energy for such departures to the Office of Management 
and Budget (OMB).
    Part VIII proposes specific language to amend the regulations, 
language that expressly allows the use of reliable ISO 1217 data as an 
alternative means to satisfy test rule, certification and public 
representation requirements under EPCA.

I. United States Rotary Air Compressor Market Subject to Test Rules.

    Atlas Copco is a worldwide manufacturer of rotary air compressors 
and other industrial equipment. The company sells rotary air 
compressors throughout the United States under the Atlas Copco, Quincy 
Compressor, Chicago Pneumatic, and Fiac brand names. Declaration of 
David P. Prator ] 37 (``Prator Dec.'') Atlas Copco currently offers 
over 800 distinct rotary air compressor models subject to the proposed 
Test Rule. Id. ] 38.
    In its 2016 rulemaking, DOE estimated the size of the United States 
rotary air compressor market for the models of air compressors which 
would be subject to DOE's efficiency rule \3\ and Test Rule.\4\ DOE 
December 2016 Technical Support Document (TSD), Section 9.3, pp. 9-2 to 
9-7..\5\ The DOE TSD estimated that there were about 23,700 compressors 
sold in the United States in 2013 of sizes which would have been 
regulated by the proposed rule. TSD, Sections 9.3.3, 9.3.4, pp. 9-6 to 
9-7. Seventy (70) percent (about 18,100 units) were fixed speed air 
cooled units. Id. Table 9.3.4. DOE forecast that 27,900 rotary air 
compressors covered by the standards would be shipped nationally in 
calendar 2022. Id.
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    \3\ DOE's efficiency rule for air compressors was issued as a 
pre-publication notice of Final Rule on December 5, 2016 
(``Efficiency Rule'') but never published in the Federal Register
    \4\ The Test Rule actually covers several additional compressor 
categories which would not be subject to the Efficiency Rule; the 
difference in numbers is not material for the purposes of this 
petition, because the state actions focus on the same models as the 
posted DOE Efficiency Rule for compressors.
    \5\ https://www.regulations.gov/document?D=EERE-2013-BT-STD-0040-0082?
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    In order to estimate compressor shipments, DOE used data on 
compressor shipments from manufacturers and subject matter experts. 
Final Rule Package, pp. 214-215. DOE then used the projections of 
annual equipment shipment data to project national energy savings and 
net present value for the potential standards levels. Id. p. 216.
    Atlas Copco's expert, Mr. David Prator, has reviewed market data 
(including data gathered by the trade association, the Compressed Air & 
Gas Institute (CAGI)) as part of his duties for Atlas Copco and he 
assesses that the DOE market estimates and forecasts for the United 
States are reasonably accurate.\6\ Prator Dec. ] 46. DOE's

[[Page 22399]]

estimates are derived using a macroeconomic approach very similar to 
what Mr. Prator and his colleagues have used for Atlas Copco to 
estimate market demand for rotary air compressors. Id.
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    \6\ Evidentiary support for this petition is provided by the 
Declaration of David P. Prator, an industry expert with forty-eight 
years of experience in the rotary air compressor industry. Mr. 
Prator has worked for almost five decades in efforts to improve 
energy efficiency and testing accuracy for such machines, efforts by 
Atlas Copco and by the air compressor manufacturers' trade 
association, the Compressed Air & Gas Institute (CAGI). His 
declaration includes (a) pricing data on 2019 air compressor 
efficiency testing, and (b) air compressor efficiency test data 
comparing two methods used to test the efficiency of the same model 
of air compressor. Mr. Prator's declaration sets forth his expert 
qualifications. Prator Dec. ] 3, 8-34.

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    One reasonably accurate way to forecast future demand for 
industrial and commercial rotary air compressors is to utilize known 
compressor sales data and to use estimated changes in Gross Domestic 
Product (GDP) to determine how that rotary air compressor market will 
grow or shrink. Prator Dec. ]43. Atlas Copco has found that this method 
works not only for projections of United States demand, but also for 
U.S. regions or for large states such as California. Id.
    Atlas Copco estimates that there are nearly 6,000 distinct basic 
rotary air compressor MODELS offered for sale in the United States that 
are subject to the Test Rule. Id. ] 40. These rotary air compressors 
are expensive, customized machines tailored to industrial or commercial 
needs for a wide range of specific air flows, pressures, and 
performance characteristics.
    As noted above, for the size of machines covered by the December 
2016 version of the Efficiency Rule, DOE has estimated that the total 
U.S. rotary air compressor market for all manufacturers in 2013 was 
only about 23,700 machines of the sizes to be covered by the Efficiency 
Rule. These machines came from around 6,000 distinct basic rotary air 
compressor models, virtually all of which are believed to be offered 
for sale throughout the U.S. On average, only about four UNITS of each 
different MODEL of rotary air compressor are sold in the United States 
in a year.
    In commercial terms, these numbers mean that the U.S. rotary air 
compressor market is a highly customized market. Unless tempered by the 
use of existing ISO 1217 test data, the Test Rule would impose highly 
burdensome certification and testing requirements and costs based on 
the erroneous assumption that such costs can be spread across a large 
number of units sold.

II. Test Rule Background.

    The Test Rule was proposed on May 5, 2016, 81 Fed. Reg. 27720, and 
proved highly controversial. Many parties commented, a number of them 
noting the high cost of testing relative to the small number of units 
sold from any particular model. These comments were made both at the 
June 20, 2016 public hearing and in writing by the July 5, 2016 
deadline.
    Atlas Copco estimates, based on its knowledge of the industry and 
work with CAGI, that for most basic rotary air compressor models, the 
manufacturers possess air compressor efficiency data from testing using 
the ISO 1217 acceptance test. Prator Dec. ] 53. Atlas Copco has tested 
compressor models using ISO 1217 and with the more recent DOE test 
method and obtained comparable efficiency results. Prator Dec. ] 55-57 
(setting forth results).
    The DOE Test Rule expresses energy efficiency standards in terms of 
isentropic efficiency. The ISO 1217 test data can be used to derive the 
isentropic efficiency of a basic rotary air compressor model. Prator 
Dec. ] 53. Annex H of ISO 1217 makes the required link between the 
parameters measured in the test and provides for the calculation of 
isentropic efficiency, the basis to determining compliance with 
efficiency standards.
    Consequently, these ISO 1217 data can provide a valid factual basis 
on which a manufacturer could determine and, if appropriate, certify 
compliance with the applicable efficiency standard for a basic rotary 
air compressor model. Id. As noted below, DOE's rulemaking record 
suggests that ISO 1217 data would have been usable to certify 
compliance with the Efficiency Rule.
    The DOE Test Rule adopted in January 2017 is based on ISO 1217, 
with changes intended to improve the reliability and repeatability of 
test results. Prator Dec. ] 58. At the June 20, 2016 federal rulemaking 
hearing (Transcript, pp. 130, 133, 155, https://www.regulations.gov/document?D=EERE-2013-BT-STD-0040-0044) and in subsequent comments 
submitted to DOE, major concerns were expressed about invalidating the 
results of reliable prior efficiency tests, tests which were conducted 
at considerable cost.
    In response, DOE stated in the January 4, 2017 notice promulgating 
the final Test Rule that it did not intend to invalidate or prevent the 
use of ISO 1217:2009 test data to comply with DOE rules

    If historical test data is based on the same [ISO 1217] methodology 
being adopted in this final [Test] rule, then manufacturers may use 
this data for the purposes of representing any metrics subject to the 
representations requirements.

82 Fed. Reg. 1052, 1090, 1094 (citing similar language). Indeed, DOE 
concluded that for ninety percent of current compressor models, no 
additional testing would be needed since prior data could be used. Id. 
1094-95.
    Indeed, in the Final Rule Package for the DOE Efficiency Rule, DOE 
made similar statements: ``if historical test data is consistent with 
values that will be generated when testing with the test methods 
established in this final rule, then manufacturers may use this data 
for the purposes of representing any metrics subject to representations 
requirements.'' DOE December 2016 Final Rule Package, P. 234 (citing 
DOE, Public Meeting Transcript, No. 0016 at p. 136).
    In the January 4, 2017 Test Rule notice, however, DOE postponed 
acting on key aspects of an enforcement sampling plan in large part 
because of issues about sample size in a customized market. 82 Fed. 
Reg. 1052, 1096. Instead, DOE planned to take further comments, but no 
such request for comments has been published in the time elapsed since 
then.
    This deferral by DOE of the enforcement sampling plan and its 
subsequent failure to publish a final efficiency standard have created 
great confusion among compressor manufacturers about how DOE will 
address testing results, permissible tolerances with the ISO 1217 test 
method, and related matters. Prator Dec. ] 63.
    DOE repeatedly postponed the Test Rule's effective date. 82 Fed. 
Reg. 31890, 31891 (July 11, 2017) (noting postponements of effective 
date from February 3, 2017 to July 3, 2017). In that same notice, DOE 
stated that while it was gathering further information about problems 
with the Test Rule, ``DOE will not seek to enforce compliance of the 
test procedure final rule for a period of 180 days from the July 3, 
2017.'' Id.
    On December 6, 2017, DOE issued an ``Enforcement Statement'' 
concerning Air Compressor Test Procedures, and revised it on June 8, 
2018. DOE stated that:

    At this time, DOE has not published a final rule establishing 
either energy conservation standards or a freestanding labeling 
requirement for compressors. Given these circumstances, there will be 
no enforcement of EPCA's requirement as to representations with respect 
to the compressor test procedure final rule unless or until compliance 
with a standard is required or an obligation to label air compressors 
is established.

(Emphasis supplied). https://www.energy.gov/gc/downloads/enforcement-statement-air-compressor-test-procedures

[[Page 22400]]

III. Minor but Costly Differences between ISO 1217 and Test Rule Terms.

    The DOE Test Method is explicitly based on major portions of the 
consensus air compressor industry test standard for customer 
acceptance, i.e., ISO 1217. 82 Fed. Reg. 1052. According to DOE, the 
changes DOE made in the DOE Test Method are intended to improve the 
reliability and repeatability of test results. Id.
    Testing with the DOE Test Method measures the exact same parameters 
that the ISO 1217 test method measures.\7\ Knuffman Dec. ] 14. In both 
the DOE Test Method and in ISO 1217, as amended in 2016, after 
gathering the data, the same mathematical calculation is then conducted 
to determine the isentropic efficiency of the tested model of rotary 
air compressor. Id.
---------------------------------------------------------------------------

    \7\ Statements in this section are based on the expert 
declaration of Mr. Chris Knuffman, who has spent twenty-six years in 
the air compressor industry, working for Quincy Compressor, an Atlas 
Copco subsidiary.
---------------------------------------------------------------------------

    There are, however, several costly differences between the methods, 
differences which have little effect on accurate compliance 
certification. The DOE Test Method requires more data points at 
specific time intervals, which in turn requires automated sampling and 
special software. Id. ] 16. Moreover, the test equipment must yield 
more precise measurements than ISO 1217 requires and the source of 
electricity for the testing must be more rigorously controlled to 
prevent voltage fluctuations. Id.
    Atlas Copco's comparative testing of its rotary compressor models 
with both test methods suggests that the differences in accuracy 
between ISO 1217 testing and the DOE Test Method are minimal. Prator 
Dec. ]] 55-57. The differences between machines tested suggest that 
these differences are as likely to be small idiosyncratic differences 
with the machines or in the application of the test methods as they are 
actual differences in accuracy. Id.
    Quincy Compressor's experience with the DOE Test Method, however, 
shows that the differences with ISO 1217 are expensive. Quincy had to 
spend over $50,000 in order to acquire the equipment and software 
needed for its laboratory to carry out the DOE test method, even though 
Quincy conducts production line testing using ISO 1217. Knuffman Dec. ] 
22. To conduct the testing required by the DOE Test Rule method, Quincy 
had to incur substantial additional costs to train laboratory 
personnel, calibrate equipment, and develop internal Quality Assurance/
Quality Control protocols. Id. ] 23.
    Unlike ISO 1217, which is an acceptance test that may be run on a 
single unit of a model, when the DOE Test Method is used to certify 
compliance and make public representations, DOE rules provide that at 
least two units of the same model be tested, 10 C.F.R. Sec.  
429.63(a)(1), (cross-referencing 10 C.F.R. Sec.  429.11(b) which sets 
two machine minimum) unless only one unit of a model is made, after 
which subsequent units must be based on a test of two units. Sec.  
429.11(b)(2).
    The 2019 cost of one DOE compliant test at CAGI's independent 
laboratory averages around $4,000 per model, which is a discounted rate 
for CAGI members. Prator Dec. ]] 48-50. Non-CAGI members, who must rely 
on other laboratories, most likely will expend more than $4,000 to test 
each model offered. Without the ability to use prior data, there will 
be very substantial testing cost with little or no gain in accuracy.
    The requirement to test two units per model also creates 
difficulties if a rotary air compressor is only made in response to a 
customer order, as is true with a number of rotary air compressor 
models. Those models are often tailored to precise customer needs for 
volume of air flow, energy, and other factors, making it less likely 
that there will be multiple units of the same model available to test 
particularly if testing is required just to offer the model for sale.
    The net result of the DOE Test Rule in its present form and its 
adoption by the states, as discussed below, will be to add 
significantly to the compliance burden and expense of manufacturers 
without any corresponding increase in actual energy efficiency.
    In addition, because these tests are currently only required by two 
states, but the costs are nearly the same as would be incurred to 
comply with a national standard, some manufacturers will simply abandon 
markets such as Vermont, where the total number of units sold is very 
small, and until recent clarification of California's rule to allow use 
of existing ISO 1217 test results, were preparing to withdraw many 
models previously offered in California, where infrequent sales would 
not warrant the high costs of certification testing. The models 
withdrawn will include a large proportion which would comply with the 
efficiency standard, but for which the compliance testing is a 
prohibitive cost for such small sales.

IV. Written Representations about Energy Consumption to Other Parties 
Must Be Based on the Test Procedure Adopted by DOE under Section 
343(d)(1) of the Energy Policy and Conservation Act (EPCA).

    Under section 343(d)(1) of the Energy Policy and Conservation Act 
(EPCA),

    effective 180 days . . . after a test procedure rule applicable to 
any covered equipment is prescribed under this section, no 
manufacturer, distributor, . . . may make any representation-(A) in 
writing . . . respecting the energy consumption of such equipment or 
cost of energy consumed by such equipment, unless such equipment has 
been tested in accordance with such test procedure and such 
representation fairly discloses the results of such testing.

42 U.S.C. Sec.  6314(d)(1) (emphasis supplied).

    The adoption of California's and Vermont's energy efficiency rules 
will require manufacturers to provide written certification about the 
energy consumption of each of the rotary air compressor models offered 
for sale in those states.
    Under the terms of the federal statute, those certifications must 
be based on testing in accordance with the Test Rule. DOE's suspension 
of enforcement of its Test Rule does not prevent the states from 
enforcing the Test Rule with respect to these manufacturer 
representations to these states for the purpose of certifying 
compliance with state efficiency rules. Indeed, not only can the states 
enforce such Test Rule requirements under state law, they may also try 
to proceed in federal court under the citizen suit provision to enforce 
the DOE test rule.
    Thus, while manufacturers may argue that testing according to ISO 
1217 is ``in accordance with such test procedure,'' the language of the 
Test Rule at present does not expressly provide that such is the case. 
Consequently, manufacturers will face a difficult choice if the 
statutory language is read literally by the courts or by the states, 
contrary to language in DOE's final rulemaking notice suggesting that 
ISO 1217 data can be used. Manufacturers will either have to test every 
compressor model they offer for sale in these states using DOE's 
elaborate Test Procedure or withdraw models not so tested from these 
markets, even if existing ISO 1217 data show these models will in fact 
comply with the state's energy efficiency standards.
    Neither duplicative testing nor withdrawal of energy efficiency 
rotary compressors from important markets

[[Page 22401]]

advances energy efficiency, the environment, or the public interest.

V. Recently Adopted State Energy Efficiency Standards Appear to Require 
Literal Compliance with DOE's Test Procedure, Not the Use of ISO 1217 
Test Data.

A. Vermont Statutory Language Regulating Rotary Air Compressor 
Efficiency.

    Vermont has the second smallest population of any state in the 
United States \8\ and a rotary air compressor market estimated at less 
than fifty units per year in sizes which would have been regulated by 
the DOE Energy Conservation Rule.\9\ Nonetheless, in May 2018, the 
Vermont Legislature mandated that by July 1, 2020, all rotary air 
compressors sold in that state must comply with the unpublished DOE 
efficiency standard as shown by testing using the DOE Test Procedure. 9 
V.S.A. Sec. Sec. 2795(a)(8), 2796(d)(2).
---------------------------------------------------------------------------

    \8\ The 2018 population of Vermont is estimated at 623,960 
people. http://worldpopulationreview.com/ states/vermont-population. 
California's is estimated at 39,776,830. http://worldpopulationreview.com/states/california-population/.
    \9\ As noted above, a reasonably accurate way to estimate the 
size of a state's rotary air compressor market is to use the state's 
percentage share of US GDP and apply that percentage to total US 
rotary air compressor sales for that year. Vermont's GDP in 2013 was 
$29,099M. https://fred.stlouisfed.org/series/VTNGSP) and the US GDP 
in 2013 was $16,784,900M. https://countryeconomy.com/gdp/usa?year=2013. Based on Vermont's percentage share of US GDP, or 
0.1733%, the sale of about 42 compressor units is predicted in 
Vermont. There are an estimated 6,000 different models of rotary air 
compressor to choose from.
---------------------------------------------------------------------------

    No proposed implementing regulations have yet explained how to 
certify compliance and upon what basis such certification can be made, 
https://publicservice.vermont.gov/content/vt-appliance-efficiency 
(visited April 9, 2019). As such, the likely manufacturer response will 
be to withdraw ALL rotary air compressor products from the Vermont 
market, given the disproportionate testing and certification costs in 
relation to the tiny volume of sales likely to be made. Such 
withdrawals are likely to hurt Vermont businesses by making important 
equipment unavailable but do nothing to improve energy efficiency in 
Vermont or anywhere else.

B. California Compressor Efficiency Rule.

    The California Energy Commission (``CEC'' or ``Commission'') voted 
at its January 9, 2019 business meeting to adopt a rotary air 
compressor efficiency standard (``California Efficiency Rule'') where 
the regulatory language requires that compliance be certified using the 
DOE Test Method. Existing CEC rules set detailed requirements for such 
testing and certification on the State's Modern Appliance Efficiency 
Database (MAEDBS),\10\ requirements which require advance state 
approval of the testing laboratory.
---------------------------------------------------------------------------

    \10\ https://cacertappliances.energy.ca.gov/Login.aspx.
---------------------------------------------------------------------------

    The California Efficiency Rule, as proposed on November 16, 
2018,\11\ and as adopted without change on January 9, 2019, requires 
that all rotary air compressor models subject to the rule and offered 
for sale in the California market must be tested using the DOE Test 
Procedure (without reference to ISO 1217) and certified as compliant. 
The compliance date is January 1, 2022. (The use of Alternate 
Efficiency Demonstration Methods (AEDMs) is allowed, based on DOE Test 
Method Testing to validate the method's accuracy.) The terms of the 
rules appeared to preclude testing results obtained prior to 
California's approval of the testing laboratory for that procedure.
---------------------------------------------------------------------------

    \11\ California Energy Commission Docket 18-AAER-05, TN 
225912-1 at https://efiling.energy. ca.gov/ Lists/DocketLog.aspx? 
docketnumber= 18-AAER-05.
---------------------------------------------------------------------------

    Fortunately, on April 10, the Commission clarified in an order that 
use of ISO 1217 testing from the past was a permissible basis for 
certification.\12\ This order finally came after a February 1, 2019 
request for regulatory clarification and a March 6, 2019 petition to 
reopen the rulemaking to clarify these issues.
---------------------------------------------------------------------------

    \12\ https://efiling.energy. ca.gov/Lists/ DocketLog.aspx? 
docketnumber=18-AAER-05, TN 227640.
    The order was adopted on April 10; it was posted on the docket 
on April 12. Paragraphs 5-7 of the order on page 2-3 address the 
concerns about testing.
---------------------------------------------------------------------------

    Neither Atlas Copco nor any other manufacturer should have to go to 
the substantial effort and expense to seek such clarification from 
additional states to make the federal test rule workable.

VI. Proposed Model Legislation Pending before Multiple State 
Legislatures Will Regulate Rotary Air Compressor Efficiency Starting 
January 1, 2022 and Mandate Use of DOE's Needlessly Costly Test 
Procedure rather Than ISO 1217, the Industry Consensus Standard.

    The Appliance Standards Awareness Project (ASAP) and American 
Council for an Energy-Efficient Economy (ACEE), organizations which 
have been very active in promoting the adoption of energy efficiency 
standards, have presented a ``Model Act for Establishing State 
Appliance and Equipment Energy and Water Standards (``Model Act'') to 
the states to regulate, among other kinds of equipment, the same rotary 
air compressors as DOE's Efficiency Rule would have regulated, and the 
same classes as California's new rule will regulate. A link to the 
proposed Model Act can be found at: https://appliance-standards.org/sites/default/files/2019_Model_Bill_ASAP_Jan_24_2018.pdf.
    Section 4(a)(i)\13\ of the Model Act would apply the law's 
provisions to air compressors. Section 5 establishes prescriptive 
efficiency and testing standards for air compressors, by reference to 
the federal test procedure:
---------------------------------------------------------------------------

    \13\ Section references contained in Section VI of this Petition 
are to the Model Act, unless otherwise stated.
---------------------------------------------------------------------------

    5) Section 5. Standards.
    a) Not later than one year after the date of enactment of this Act, 
the Commissioner, in consultation with [heads of other appropriate 
agencies], shall adopt regulations, in accordance with the provisions 
of Chapter [number of section in state law dealing with setting 
regulations], establishing minimum efficiency standards for the types 
of new products set forth in Section 4.
    b) The regulations shall provide for the following minimum 
efficiency standards: i) Air compressors that meet the twelve criteria 
listed on page 350 to 351 of the ``Energy Conservation Standards for 
Air Compressors'' final rule issued by the U.S. Department of Energy on 
December 5, 2016 shall meet the requirements in Table 1 on page 352 
following the instructions on page 353 and as measured in accordance 
with Appendix A to Subpart T of Part 431 of Title 10 of the Code of 
Federal Regulations--``Uniform Test Method for Certain Air 
Compressors''--as in effect on July 3, 2017.

(Emphasis supplied). In March 7, 2019 written testimony before the 
House Energy and Commerce Committee, the Executive Director of ASAP 
reported that ``at least a half a dozen state legislatures are 
considering state standards in 2019.'' Testimony of Mr. Andrew deLaski, 
p. 13 at https://appliance-standards.org/sites/default/files/deLaskiHouseEC testimony030719.pdf. See also, Hearing on ``Wasted 
Energy: DOE's Inaction on Efficiency Standards and Its Impact on 
Consumers and the Climate`` at https://energycommerce.house.gov/committee-activity/hearings/rescheduled-hearing-on-wasted-energy-doe-s-inaction-on-efficiency.
    Indeed, in response to questions from the Committee during the 
hearing, Mr.

[[Page 22402]]

deLaski reported that thirteen states are now considering such 
legislation:

    Mr. Welch of Vermont: . . . Can you explain the relative role of 
the states in [this efficiency standard process]?
    Mr. deLaski: . . . [In the absence of federal action, leaders such 
as Vermont are acting to fill the gap.] There are another thirteen 
states considering similar legislation [to Vermont's].''

https://energycommerce.house.gov/committee-activity/hearings/rescheduled-hearing-on-wasted-energy-doe-s-inaction-on-efficiency (at 
3:49 to 3:50 in this four hour hearing)(Emphasis supplied).
    The proposed Model Act concerning compressor testing does not by 
its terms allow the use of ISO 1217 data as opposed to the DOE Test 
Procedure. While a different DOE test rule allowing use of ISO 1217 
data would preempt contrary state law, it is far less certain that DOE 
comments in a final rulemaking notice would have any such effect.

VII. DOE's Test Rule Departures from ISO 1217 Violate the Requirements 
of Section 12(d) of the National Technology Transfer and Advancement 
Act.

    Atlas Copco urges that DOE amend the Test Rule in order to allow 
use of reliable ISO 1217 data and thereby comply fully with the mandate 
of Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, Section 12(d) (15 U.S.C. 
Sec.  272 note).
    The NTTAA applies to DOE. That law directs agencies like DOE to use 
technical standards that are developed or adopted by voluntary 
consensus standards bodies, unless their use would be inconsistent with 
applicable law or otherwise impractical.
    In the case of the compressor test standards, despite boilerplate 
language in the notice of proposed rulemaking about reliance on 
consensus standards, DOE ultimately failed to incorporate the 
applicable consensus industry test standards (ISO 1217), in the Test 
Rule and thus failed to comply with the procedural requirements of the 
NTTAA. The Test Rule's failure to explicitly allow the use of the 
consensus standards in the air compressor context have already 
inflicted and will continue to inflict significant costs and 
duplicative testing burdens on the regulated community with scant 
improvements in accuracy.
    The NTAA provides in pertinent part that:
    (d) UTILIZATION OF CONSENSUS TECHNICAL STANDARDS BY FEDERAL 
AGENCIES

    (1) IN GENERAL.-- Except as provided in paragraph (3) of this 
subsection, all Federal agencies and departments shall use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies, using such technical standards as a means to carry 
out policy objectives or activities determined by the agencies and 
departments. . . .
    (3) EXCEPTION.--If compliance with paragraph (1) of this subsection 
is inconsistent with applicable law or otherwise impractical, a Federal 
agency or department may elect to use technical standards that are not 
developed or adopted by voluntary consensus standards bodies if the 
head of each such agency or department transmits to the Office of 
Management and Budget an explanation of the reasons for using such 
standards. . . .
    (4) DEFINITION OF TECHNICAL STANDARDS.-- As used in this 
subsection, the term ``technical standards'' means performance based or 
design-specific technical specifications and related management systems 
practices.

Section 12(d), Pub. L. No. 104-113, 110 Stat. 783 (Emphasis supplied).
    In its notices concerning the DOE Test Rule, there was no reference 
to the NTTAA and no effort to implement its statutory requirements, 
particularly those requiring detailed written justification by the 
Secretary of Energy to the Office of Management and Budget for DOE's 
costly departures from ISO 1217 standards. Instead, DOE completely 
omits any language expressly authorizing the use of ISO 1217 data and 
test methods, while failing to demonstrate that the provisions of ISO 
1217 DOE has changed or omitted were either ``impractical or 
inconsistent with'' the EPCA provisions DOE is implementing here.
    Moreover, there was no indication that any such changes were 
warranted before the implementation date of the energy conservation 
standards in another five years. Data generated using the ISO 1217 
standard would have provided a solid evidentiary basis on which to make 
accurate representations about energy efficiency of existing equipment 
in order to satisfy the mandate of 42 U.S.C. Sec.  6314(d), which 
requires that public representations of energy efficiency and cost 
savings be based on test data. Nothing in the proposed or final rule 
notices suggest that eliminating the express use of, and/or deviating 
from, the ISO 1217 consensus test method was warranted in order to 
protect regulatory agencies or sophisticated industrial customers from 
being misled or confused about the energy performance of the air 
compressors they would consider for purchase.
    Despite the absence of any demonstrated need to depart from the 
industry consensus test standard, especially for the period before the 
compliance date for the proposed but not finalized energy conservation 
rule, more than five years from now, DOE ignored the NTTAA mandate in 
order to make changes that DOE preferred. DOE's changes have created 
potentially costly and serious practical problems without better 
protecting purchasers, the environment, or saving more energy. These 
problems include the potential invalidation of years of costly test 
data and the resulting need to develop new testing protocols and new 
data in a rush and at great expense - the very consequences that NTTAA 
was intended to avoid, i.e. the elimination of ``unnecessary 
duplication and complexity in the development and promulgation of 
conforming assessments and measures.'' NTTAA, Section 12(b)(3); 15 
U.S.C. Sec. 272 note.

VIII. Proposed Amendment to 10 C.F.R. Section 431.344

    Atlas Copco respectfully requests that DOE amend 10 C.F.R. Section 
431.344, Test Procedure for measuring and determining energy efficiency 
of compressors, by adding the italicized language to the subsection (b) 
as shown below:

    (b) Testing and calculations. Determine the applicable full-load 
package isentropic efficiency (n isen, FL), part-load package 
isentropic efficiency (n isen, PL), package specific power, maximum 
full-flow operating pressure, full-load operating pressure, full-load 
actual volume flow rate, and pressure ratio at full-load operating 
pressure using either the test procedure set forth in appendix A of 
this subpart or according to ISO 1217 including the 2016 amendment.
    The purpose of this proposed change is to make clear that reliable 
data generated using ISO 1217:2009 is usable under the rules, both to 
certify compliance with federal and state energy efficiency standards 
and in order to make public representations about the energy efficiency 
of rotary air compressor models covered by the test standard and any 
federal or state energy efficiency standards. DOE's final rulemaking 
notice stated that such data

[[Page 22403]]

were usable for these purposes, and DOE's cost analysis for its 
Efficiency Rule assumed that such data were so usable.
    Adoption of this rule will allow manufacturers to comply with state 
efficiency standards without having to conduct duplicative, more 
complicated and costly testing to establish what ISO 1217 data already 
show - that their rotary air compressor models comply with the 
efficiency standard. The savings in cost and equally or more important, 
in engineering staff time, will allow manufacturers to concentrate on 
upgrading rotary air compressor energy efficiency for those models 
which do not meet efficiency requirements.

Respectfully submitted,
Russell V. Randle
Marian C. Hwang
Counsel for Atlas Copco North America

[FR Doc. 2019-10304 Filed 5-16-19; 8:45 am]
 BILLING CODE 6450-01-P