[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Proposed Rules]
[Pages 45703-45707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16291]


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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. 87, No. 145 / Friday, July 29, 2022 / 
Proposed Rules  

[[Page 45703]]



DEPARTMENT OF ENERGY

10 CFR Part 431


Appliance Standards and Rulemaking Federal Advisory Committee: 
Notice of Intent To Establish a Working Group for Commercial Unitary 
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, Department of 
Energy.

ACTION: Notice 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 commercial unitary air conditioners and heat pumps (``CUACs 
and CUHPs''). 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 CUACs and CUHPs, as 
authorized by the Energy Policy and Conservation Act, as amended 
(``EPCA''). 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 CUAC and CUHP working group. Application packages should 
be submitted to DOE by August 12, 2022.

DATES: Nominations of membership must be received on or before August 
12, 2022. DOE will not consider any nominations received via mail or 
after midnight on August 12, 2022.

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 Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 
20585-0121. Telephone: (202) 586-7335. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

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 CUACs and CUHPs under the 
authority of sections 563 and 564 of the NRA (5 U.S.C. 561-570, Pub. L. 
104-320). DOE is seeking to develop proposals to amend the current test 
procedures and standards through a negotiated rulemaking process under 
the authority of EPCA, 42 U.S.C. 6311(1) and 42 U.S.C. 6291 et seq.

II. Background

    On July 21, 2022, the ASRAC met and made a recommendation to form a 
CUAC and CUHP subcommittee to meet, discuss, and, if possible, reach 
consensus on a proposed rule for the test procedures and energy 
efficiency standards for CUACs and CUHPs. 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 CUACs and CUHPs. 
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 CUACs and CUHPs. 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 45704]]

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, in accordance with 
the provisions of FACA, 5 U.S.C. App. 2, 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 notice 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 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 preproposal consensus agreed upon by the 
advisory committee will narrow any issues in the subsequent rulemaking.

C. Proposed Rulemaking for Test Procedures and Energy Conservation 
Standards and Energy Conservation Standards Regarding CUACs and CUHPs

    The NRA enables DOE to establish an advisory committee or 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 is supporting the use of the regulatory negotiation process in 
order to 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 the energy efficiency of CUACs and CUHPs.

D. Department Commitment

    In initiating this regulatory negotiation process to develop test 
procedures and amended energy conservation standards for CUACs and 
CUHPs, 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 committee or its 
working group itself unanimously agrees to use a different definition. 
5 U.S.C. 562. In addition, experience has demonstrated that using a 
trained mediator to facilitate this

[[Page 45705]]

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 CUACs and CUHPs:
     Test procedures for CUACs and CUHPs; and
     Energy Conservation Standards for CUACs and CUHPs.
    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.

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 recognizes that when it establishes or amends 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.
    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 follow these same procedures in 
conducting meetings 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 conduct the negotiated rulemaking with particular 
attention to ensuring full and balanced representation of those 
interests that may be significantly affected by the proposed rule 
amending standards for CUACs and CUHPs. 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 are parties the Department to 
date has identified as being ``significantly affected'' by a proposed 
rule regarding the energy efficiency of CUACs and CUHPs.
     The Department of Energy;
     States;
     Trade associations representing installers and 
distributors of CUACs and CUHPs;
     Heating and cooling system designers and engineers;
     Component manufacturers and related suppliers;
     Utilities;
     Energy efficiency/environmental advocacy groups;
     Commercial building owners; and
     Commercial building tenants.
    One purpose of this notice of intent is to determine whether 
Federal regulations for CUACs and CUHPs will significantly affect 
interests that are not listed previously. 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 notice 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);
     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

[[Page 45706]]

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.

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 CUACs and CUHPs 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. 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 notice 
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 a first term sheet on the test procedure and a 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 
task, the term sheet, if completed, will be presented to ASRAC at an 
open meeting for its deliberation and decision on whether 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. Comments Requested

    DOE requests comments on which parties should be included in a 
negotiated rulemaking to develop draft language pertaining to the 
energy efficiency of CUACs and CUHPs and suggestions of additional 
interests and/or stakeholders that should be represented on the working 
group. All who wish to participate as members of the working group 
should submit a request for nomination to DOE.

V. Public Participation

    Members of the public are welcome to observe the business of the 
meeting and, if time allows, may make oral statements during the 
specified period for public comment. To attend the meeting and/or to 
make oral statements regarding any of the items on the agenda, email 
[email protected]. In the email, please indicate your name, organization 
(if appropriate), citizenship, and contact information. Please note 
that foreign nationals participating in the public meeting are subject 
to advance security screening procedures which require advance notice 
prior to attendance at the public meeting. If a foreign national wishes 
to participate in the public meeting, please inform DOE as soon as 
possible by contacting Ms. Regina Washington at (202) 586-1214 or by 
email: [email protected] so that the necessary procedures 
can be completed. Anyone attending the meeting will be required to 
present a government photo identification, such as a passport, driver's 
license, or government identification. Due to the required security 
screening upon entry, individuals attending should arrive early to 
allow for the extra time needed.

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
intent and solicitation of nominations for membership.

Signing Authority

    This document of the Department of Energy was signed on July 25, 
2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary 
for Energy Efficiency and Renewable Energy, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters

[[Page 45707]]

the legal effect of this document upon publication in the Federal 
Register.

    Signed in Washington, DC, on July 26, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2022-16291 Filed 7-28-22; 8:45 am]
BILLING CODE 6450-01-P