[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Rules and Regulations]
[Pages 78821-78829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27878]


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DEPARTMENT OF ENERGY

10 CFR Part 431

[EERE-2019-BT-STD-0042]
RIN 1905-AE59


Energy Conservation Program: Energy Conservation Standards for 
Commercial Warm Air Furnaces

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

ACTION: Final determination.

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SUMMARY: The Energy Policy and Conservation Act, as amended (``EPCA''), 
prescribes energy conservation standards for various consumer products 
and certain commercial and industrial equipment, including commercial 
warm air furnaces (``CWAFs''). EPCA also requires the U.S. Department 
of Energy (``DOE'' or ``the Department'') to periodically review 
standards to determine whether more-stringent, amended standards would 
be technologically feasible and economically justified, and would 
result in significant additional energy savings. In the case of CWAFs, 
DOE has determined that it lacks clear and convincing evidence that 
amended energy conservation standards would be economically justified. 
As such, in this final determination, DOE has determined not to amend 
the energy conservation standards for CWAFs.

DATES: The final determination is effective January 23, 2023.

ADDRESSES: The docket for this activity, which includes Federal 
Register notices, public meeting attendee lists and transcripts, 
comments, and other supporting documents/materials, is available for 
review at www.regulations.gov. All documents in the docket are listed 
in the www.regulations.gov index. However, some documents listed in the 
index, such as information that is exempt from public disclosure, may 
not be publicly available.
    The docket web page can be found at www.regulations.gov/docket/EERE-2019-BT-STD-0042. The docket web page contains instructions on how 
to access all documents, including public comments, in the docket.

FOR FURTHER INFORMATION CONTACT: 
    Ms. Julia Hegarty, 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: 
(240) 597-6737. Email: [email protected].
    Mr. Eric Stas, U.S. Department of Energy, Office of the General 
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. 
Telephone: (202) 586-5827. Email: [email protected].
    For further information on how to review the docket, contact the 
Appliance and Equipment Standards Program staff at (202) 287-1445 or by 
email: [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Synopsis of the Final Determination
II. Introduction
    A. Authority
    B. Background
III. General Discussion and Rationale
    A. Test Procedures
    B. General Comments
    C. Equipment Classes and Scope of Coverage
    D. Final Determination
    1. Significant Conservation of Energy
    2. Technological Feasibility
    3. Economic Justification
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866 and 13563
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under the Information Quality Bulletin for Peer Review
    M. Congressional Notification
V. Approval of the Office of the Secretary

I. Synopsis of the Final Determination

    The Energy Policy and Conservation Act, Public Law 94-163 (42 
U.S.C. 6291-6317, as codified), as amended (``EPCA''),\1\ authorizes 
DOE to regulate the energy efficiency of a number of consumer products 
and certain industrial equipment. Title III, Part C \2\ of EPCA, 
established the Energy Conservation Program for Certain Industrial 
Equipment. (42 U.S.C. 6311-6317) Such equipment includes CWAFs, which 
are the subject of this final determination.\3\ (42 U.S.C. 6311(J))
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    \1\ All references to EPCA in this document refer to the statute 
as amended through the Energy Act of 2020, Public Law 116-260 (Dec. 
27, 2020), which reflect the last statutory amendments that impact 
Parts A and A-1 of EPCA.
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part C was re-designated Part A-1.
    \3\ Air-cooled commercial package air conditioning and heating 
equipment (referred to as ``air-cooled unitary air conditioners and 
air-cooled unitary heat pumps'' or ``ACUACs and ACUHPs'') were also 
included in the scope of the request for information (``RFI'') 
published by DOE in the Federal Register on May 12, 2020 (``May 2020 
RFI'') that preceded the NOPD for this rulemaking. 85 FR 27941. 
However, DOE only addresses CWAFs in this final determination. DOE 
will address ACUACs and ACUHPs in a separate proceeding.
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    Pursuant to EPCA, DOE is triggered to consider amending the energy 
efficiency standards for certain types of commercial and industrial 
equipment, including the equipment at issue in this document, whenever 
the American Society of Heating, Refrigerating, and Air Conditioning 
Engineers (``ASHRAE'') amends the standard levels or design 
requirements prescribed in ASHRAE Standard 90.1, ``Energy Standard for 
Buildings Except Low-Rise Residential Buildings'' (``ASHRAE Standard 
90.1''). Under a separate provision of EPCA, DOE is required to review 
the existing energy conservation standards for those types of covered 
equipment subject to ASHRAE Standard 90.1, at a minimum, every six 
years after issuance of any final rule establishing or amending a 
standard (42 U.S.C. 6313(a)(6)(A)-(C)). DOE is conducting this review 
of the energy conservation standards for CWAFs under EPCA's six-year-
lookback authority. (42 U.S.C. 6313(a)(6)(C))
    For this final determination, DOE considered CWAFs subject to the 
current Federal energy conservation standards specified in the Code of 
Federal Regulations (``CFR'') at 10 CFR 431.77. The current standards 
were adopted in a direct final rule published in the Federal Register 
on January 15, 2016 (``January 2016 final rule''), through which DOE, 
in relevant part, adopted amended CWAF standards for which compliance 
is required beginning on January 1, 2023. 81 FR 2420, 2529. DOE has 
determined that there is significant uncertainty regarding whether 
more-stringent CWAF standards would be economically justified at this 
time, a matter which the Department discusses in more detail in section 
III.D of this document. Therefore, DOE has determined that the energy 
conservation standards for CWAFs do not need to be amended because 
there is not clear and convincing evidence that amended standards would 
be economically justified, as required by EPCA to

[[Page 78822]]

establish a more-stringent standard. (42 U.S.C. 6313(a)(6)(A)(ii)(II))

II. Introduction

    The following section briefly discusses the statutory authority 
underlying this final determination, as well as the historical 
background relevant to the establishment of energy conservation 
standards for CWAFs.

A. Authority

    EPCA, Public Law 94-163 (42 U.S.C. 6291-6317, as codified), among 
other things, authorizes DOE to regulate the energy efficiency of a 
number of consumer products and certain industrial equipment. Title 
III, Part C of EPCA, added by Public Law 95-619, Title IV, section 
441(a) (42 U.S.C. 6311-6317, as codified), established the Energy 
Conservation Program for Certain Industrial Equipment, which sets forth 
a variety of provisions designed to improve energy efficiency. This 
equipment includes CWAFs, the subject of this document. (42 U.S.C. 
6311(J))
    The energy conservation program under EPCA consists essentially of 
four parts: (1) testing, (2) labeling, (3) the establishment of Federal 
energy conservation standards, and (4) certification and enforcement 
procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 
6311), energy conservation standards (42 U.S.C. 6313), test procedures 
(42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the 
authority to require information and reports from manufacturers (42 
U.S.C. 6316).
    Federal energy conservation requirements for covered equipment 
established under EPCA generally supersede State laws and regulations 
concerning energy conservation testing, labeling, and standards. (42 
U.S.C. 6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 6297) DOE may, however, 
grant waivers of Federal preemption in limited circumstances for 
particular State laws or regulations, in accordance with the procedures 
and other provisions set forth under EPCA. (42 U.S.C. 6316(b)(2)(D), 
which incorporates the preemption waiver provisions of 42 U.S.C. 
6297(d))
    EPCA prescribed initial mandatory energy conservation standards for 
CWAFs. (42 U.S.C. 6313(a)(4)) In doing so, EPCA established Federal 
energy conservation standards that generally corresponded to the levels 
in the ASHRAE Standards 90.1 in effect on October 24, 1992 (i.e., 
ASHRAE Standard 90.1-1989).
    In overview, if ASHRAE Standard 90.1 is amended with respect to the 
standard levels or design requirements applicable under that standard 
for certain commercial equipment, including CWAFs, not later than 180 
days after the amendment of the standard, DOE must publish in the 
Federal Register for public comment an analysis of the energy savings 
potential of amended energy efficiency standards. (42 U.S.C. 
6313(a)(6)(A)(i)) DOE must adopt amended energy conservation standards 
at the new efficiency level in ASHRAE Standard 90.1, unless DOE 
determines that there is clear and convincing evidence to support a 
determination that the adoption of a more-stringent efficiency level as 
a uniform national standard would produce significant additional energy 
savings and be technologically feasible and economically justified.\4\ 
(42 U.S.C. 6313(a)(6)(A)(ii))
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    \4\ In determining whether a more-stringent standard is 
economically justified, EPCA directs DOE to determine, after 
receiving views and comments from the public, whether the benefits 
of the proposed standard exceed the burdens of the proposed standard 
by, to the maximum extent practicable, considering the following 
seven factors: (1) The economic impact of the standard on the 
manufacturers and consumers of the products subject to the standard; 
(2) The savings in operating costs throughout the estimated average 
life of the product compared to any increases in the initial price 
of, initial charges for, or maintenance expense of the products that 
are likely to result from the standard; (3) The total projected 
amount of energy savings likely to result directly from the 
standard; (4) Any lessening of the utility or the performance of the 
products likely to result from the standard; (5) The impact of any 
lessening of competition, as determined in writing by the Attorney 
General, that is likely to result from the standard; (6) The need 
for national energy conservation; and (7) Other factors the 
Secretary of Energy (``Secretary'') considers relevant. (42 U.S.C. 
6313(a)(6)(B)(ii))
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    If DOE decides to adopt, as a uniform national standard, the 
efficiency levels specified in the amended ASHRAE Standard 90.1, DOE 
must establish such standard not later than 18 months after publication 
of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) 
However, if DOE determines, supported by clear and convincing evidence, 
that a more-stringent uniform national standard would result in 
significant additional conservation of energy and is technologically 
feasible and economically justified, then DOE must establish the more-
stringent standard not later than 30 months after publication of the 
amended ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(A)(ii)(II) and 
(B)(i))
    EPCA also requires that every six years DOE shall evaluate the 
energy conservation standards for each class of certain covered 
commercial equipment, including CWAFs, and publish either a notice of 
determination that the standards do not need to be amended, or a notice 
of proposed rulemaking (``NOPR'') that includes new proposed energy 
conservation standards (proceeding to a final rule, as appropriate). 
(42 U.S.C. 6313(a)(6)(C)(i)) EPCA further provides that, not later than 
three years after the issuance of a final determination not to amend 
standards, DOE must publish either a notification of determination that 
standards for the equipment do not need to be amended, or a NOPR 
including new proposed energy conservation standards (proceeding to a 
final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(iii)(II))
    A determination of whether amended energy conservation standards 
are needed must be based on the same considerations as if it were 
adopting a standard that is more stringent than an amendment to ASHRAE 
Standard 90.1. (42 U.S.C. 6313(a)(6)(C)(i)(II); 42 U.S.C. 
6313(a)(6)(A)-(B)) DOE must make the analysis on which a determination 
is based publicly available and provide an opportunity for written 
comment. (42 U.S.C. 6313(a)(6)(C)(ii)) Further, there must be clear and 
convincing evidence that a determination that more-stringent standards 
would: (1) result in significant additional conservation of energy, (2) 
be technologically feasible, and (3) be economically justified. (42 
U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A))
    DOE is publishing this final determination in satisfaction of the 
six-year-lookback review requirement in EPCA, having determined that 
DOE lacks clear and convincing evidence that amended standards for 
CWAFs would be economically justified.

B. Background

    In a final rule published in the Federal Register on October 21, 
2004 (``October 2004 final rule''), DOE codified energy conservation 
standards for CWAFs equal to those established in EPCA (i.e., a thermal 
efficiency (``TE'') of 80 percent for gas-fired CWAFs, and a TE of 81 
percent for oil-fired CWAFs). 69 FR 61916, 61941. The standards 
established in the October 2004 final rule are the same as DOE's 
current CWAF standards for CWAFs manufactured before January 1, 2023. 
10 CFR 431.77.
    As noted previously, DOE most recently amended the energy 
conservation standards for CWAFs in the January 2016 final rule, which 
requires compliance beginning on January 1, 2023. 81 FR 2420 (Jan. 15, 
2016).
    Since publication of the January 2016 final rule, ASHRAE published 
two updated versions of ASHRAE Standard 90.1, one in 2016 (``ASHRAE 
Standard

[[Page 78823]]

90.1-2016'') and another in 2019 (``ASHRAE Standard 90.1-2019''). The 
CWAF standards adopted in the January 2016 final rule (i.e., the 
standards which take effect on and after the January 1, 2023 compliance 
date) are more stringent than the minimum efficiency levels for CWAFs 
in ASHRAE Standard 90.1-2016. ASHRAE Standard 90.1-2019 updated the 
minimum efficiency levels for CWAFs to align with those adopted by DOE 
in the January 2016 final rule.\5\ Because ASHRAE Standard 90.1-2016 
and ASHRAE Standard 90.1-2019 did not contain minimum efficiency levels 
more stringent than the current Federal standards for CWAFs, DOE was 
not triggered to examine amended standards for this equipment under 42 
U.S.C. 6313(a)(6)(A).\6\ As a result, despite these intervening ASHRAE 
actions, the Federal standards for CWAFs are those set forth in the 
January 2016 final rule and codified in DOE's regulations at 10 CFR 
431.77.
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    \5\ It is DOE's understanding that the relevant provisions of 
ASHRAE Standard 90.1-2019 pertaining to CWAF standards contained a 
typographical error. Table 6.8.1-5 of ASHRAE Standard 90.1-2019 
specifies a thermal efficiency (TE) requirement of 82 percent for 
oil-fired CWAFs applicable after January 1, 2023, which aligns with 
the standard adopted by the January 2016 final rule. However, Table 
6.8.1-5 of ASHRAE 90.1-2019 also specifies a TE requirement of only 
80 percent for oil-fired CWAFs applicable before January 1, 2023, 
whereas ASHRAE 90.1-2016 specifies a TE requirement of 81 percent 
for this class. As such, DOE understands the 80-percent level in 
ASHRAE Standard 90.1-2019 to be a typographical error.
    \6\ DOE assessed whether it was triggered based upon 
consideration of the current Federal standards codified at 10 CFR 
431.77, which were promulgated through the final rule published in 
the Federal Register at 81 FR 2420 (Jan. 15, 2016). In doing so, DOE 
considered the totality of these CWAF standard levels, even though 
compliance with certain of those standards is not yet required 
(i.e., a compliance date of January 1, 2023).
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    More specifically, for gas-fired CWAFs manufactured starting on 
January 1, 1994, until January 1, 2023, TE at the maximum rated 
capacity (i.e., rated maximum input) must be not less than 80 percent. 
For gas-fired CWAFs manufactured starting on January 1, 2023, the TE at 
the maximum rated capacity must be not less than 81 percent. For oil-
fired CWAFs manufactured starting on January 1, 1994, until January 1, 
2023, the TE at the maximum rated capacity must be not less than 81 
percent. For oil-fired CWAFs manufactured starting on January 1, 2023, 
the TE at the maximum rated capacity must be not less than 82 percent. 
10 CFR 431.77.
    In the January 2016 final rule, DOE rejected more-stringent 
standards on the basis that benefits of energy savings, emission 
reductions, and the estimated monetary value of the emissions 
reductions would be outweighed by the economic burden on many 
consumers, negative net present value (``NPV'') of consumer benefits, 
and the impacts on manufacturers, including the conversion costs and 
profit margin impacts that could result in a large reduction in 
industry net present value (``INPV''). 81 FR 2420, 2522 (Jan. 15, 
2016).
    In support of its present review of the CWAF energy conservation 
standards, DOE initially published in the Federal Register a request 
for information (RFI) on May 12, 2020 (May 2020 RFI), which identified 
various issues on which DOE sought comment, data, and information to 
inform its determination of whether the current Federal standards need 
to be amended. 85 FR 27941. After considering comments received in 
response to the RFI, DOE published in the Federal Register a notice of 
proposed determination on April 26, 2022 (``April 2022 NOPD''), which 
proposed not to amend the standards for CWAFs. 87 FR 24455. In the 
April 2022 NOPD, DOE tentatively determined that the current CWAF 
market conditions are not significantly different now than projected in 
the January 2016 final rule, and that any analysis of increased 
standards for CWAFs would not result in a significantly different 
economic outcome from the January 2016 final rule. As such, DOE 
determined that it lacks clear and convincing evidence that amended 
energy conservation standards for CWAFs would be economically 
justified. Id at 87 FR 24465.
    DOE received numerous comments in response to the April 2022 NOPD 
from the interested parties listed in Table II.1.

         Table II.1--Interested Parties That Provided Written Comment in Response to the April 2022 NOPD
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              Commenter(s)                 Acronym used in this  final determination        Commenter type
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Air-Conditioning, Heating, and            AHRI......................................  Manufacturer Trade
 Refrigeration Institute.                                                              Association.
American Gas Association and American     AGA and APGA..............................  Utility Trade
 Public Gas Association.                                                               Associations.
Appliance Standards Awareness Project,    Joint Advocates...........................  Efficiency Advocacy
 American Council for an Energy-                                                       Organizations and State
 Efficient Economy, New York State                                                     Government.
 Energy Research and Development
 Authority, Natural Resources Defense
 Council.
California Investor-Owned Utilities.....  CA IOUs...................................  Utilities.
Lennox International, Inc...............  Lennox....................................  Manufacturer.
Northwest Energy Efficiency Alliance....  NEEA......................................  Efficiency Advocacy
                                                                                       Organization.
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    A parenthetical reference at the end of a comment quotation or 
paraphrase provides the location of the item in the public record.\7\
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    \7\ The parenthetical reference provides a reference for 
information located in the docket (Docket No. EERE-2019-BT-STD-0042, 
which is maintained at www.regulations.gov/docket?D=EERE-2019-BT-STD-0042). The references are arranged as follows: (commenter name, 
comment docket ID number, page of that document).
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III. General Discussion and Rationale

    DOE developed this final determination after a review of the CWAF 
market, including product literature and product listings in the DOE 
Compliance Certification Management System (CCMS) database. DOE also 
considered comments, data, and information from interested parties that 
represent a variety of interests. This document addresses issues raised 
by these commenters.

A. Test Procedures

    EPCA sets forth generally applicable criteria and procedures for 
DOE's adoption and amendment of test procedures. (42 U.S.C. 6314(a)) As 
a general matter, manufacturers of covered ASHRAE equipment must use 
these test procedures to certify to DOE that their equipment complies 
with energy conservation standards and to quantify the efficiency of 
their equipment. (42 U.S.C. 6316(b); 42 U.S.C. 6296) DOE's current 
energy conservation standards for CWAFs are expressed in terms TE in 
percent. (See 10 CFR 431.77) The applicable test procedure for CWAFs is 
found at 10 CFR 431.76, ``Uniform Test Method for Measurement of Energy 
Efficiency of Commercial Warm Air Furnaces.''

[[Page 78824]]

    On February 25, 2022, DOE published a NOPR in the Federal Register 
that proposed to update the CWAF test procedure (``February 2022 TP 
NOPR''). 87 FR 10726. In the February 2022 TP NOPR, DOE proposed to 
adopt the latest versions of the industry test standards that are 
currently incorporated by reference, to make minor revisions to the 
CWAF test procedure to clarify how to test certain equipment,\8\ and to 
establish a new metric--Thermal Efficiency Two (``TE2''). The proposed 
TE2 metric would, unlike the current TE metric, account for heat loss 
through the CWAF cabinet (i.e., jacket losses) and performance at a 
minimum fire rate (i.e., part-load). Id. at 87 FR 10729-10730. However, 
DOE proposed to make use of the TE2 metric and test procedure optional 
until such time as compliance with amended energy conservation 
standards based on TE2 is required, should DOE adopt such standards. 
Id. at 87 FR 10735.
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    \8\ These revisions included additional specifications for CWAFs 
with multiple vent hoods or small-diameter vent hoods.
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    In response to the April 2022 NOPD, NEEA and the Joint Advocates 
recommended that DOE should consider the potential energy savings that 
would result from analyzing new CWAF standards based on an updated test 
procedure and metric. (NEEA, No. 34 at pp. 1-2; Joint Advocates, No. 31 
at pp. 1-2) NEEA also recommended that DOE evaluate the energy savings 
that would result from amending the CWAF test procedure to incorporate 
aspects of CSA Standard P.8-2022, ``Thermal efficiencies of industrial 
and commercial gas-fired package furnaces'' (``CSA P.8-2022''), which 
includes a test procedure that assesses CWAF performance based on the 
not only the CWAF, but also accounts for features within a commercial 
unitary air conditioner (``CUAC'') that the commenter stated would 
affect CWAF performance (e.g., total enclosure insulation, low-leak 
dampers, and energy recovery).\9\ (NEEA, No. 34 at pp. 2-5) 
Additionally, NEEA and the Joint Advocates asserted that accounting for 
the technology options in CSA P.8-2022 could result in significant 
energy savings, and that obtaining this energy savings would be 
technologically feasible and economically justified. (NEEA, No. 34 at 
p. 3; Joint Advocates, No. 31 at p. 2) Specifically, NEEA argued that 
although the effects of these technologies are not accounted for in the 
TE metric, DOE should look into the energy savings associated with them 
before adopting a final test procedure, because assessing the energy 
savings of these technology options help to justify adding them to the 
test procedure. (NEEA, No. 34 at p. 3) NEEA also presented data showing 
the potential energy savings based improvements in enclosure 
insulation, damper leakage, and energy recovery. Id. NEEA stated that 
the technologies that achieve this level of energy savings are readily 
available on the market today, and, therefore, are technologically 
feasible. (NEEA, No. 34 at p. 4) NEEA also asserted that these 
technologies may have lower incremental costs and, therefore, may be 
economically justified. (NEEA, No. 34 at pp. 4-5) To support its 
conclusion, NEEA presented preliminary results from a benefit-cost 
analysis being conducted in partnership with the Northwest Power and 
Conservation Council that shows the benefit-cost ratios for low-leak 
dampers and increased insulation. Id.
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    \9\ NEEA also recommended DOE consider amending the CWAF test 
procedure and metric to incorporate aspects based on CSA P.8-2022 in 
the February 2022 NOPR. (See EERE-2019-BT-TP-0041-0024).
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    DOE acknowledges there could be potential for additional energy 
savings, if DOE were to consider technologies that would improve 
efficiency as measured by TE2 or by an amended test procedure that 
incorporates aspects of CSA P.8-2022 that are not included in the 
current TE metric. However, DOE notes that as currently proposed, the 
TE2 test procedure for CWAFs does not address the technologies that 
NEEA has identified, and that rulemaking is still ongoing. DOE received 
similar comments in response to the February 2022 TP NOPR and will 
address those comments as part of that rulemaking. Therefore, DOE is 
declining to analyze energy conservation standards (denominated in 
terms of TE) in light of such technologies at this time, because an 
amended TE standard level would not be impacted by whether such 
technologies would be used in CWAFs. Should DOE ultimately decide to 
amend the CWAF test procedure to include the technologies NEEA has 
identified or to finalize the TE2 metric and should sufficient TE2 
performance data become available, DOE could consider energy savings 
based on such technologies in a subsequent review of CWAF energy 
conservation standards.

B. General Comments

    In the April 2022 NOPD, DOE requested comment on its proposed 
determination that the existing energy conservation standards for CWAFs 
do not need to be amended. 87 FR 24455, 24465 (April 26, 2022).
    DOE received comments from AHRI, the CA IOUs, and Lennox supporting 
DOE's proposed determination. (AHRI, No. 29 at p. 1, CA IOUs, No. 32 at 
p. 1, Lennox, No. 30 at pp. 1-2) Specifically, AHRI stated that there 
have not been significant changes in the CWAF market that would warrant 
an amended energy conservation standard that would be both technically 
feasible and economically justified. (AHRI, No. 29 at p. 1) 
Additionally, Lennox commented that since the time of the January 2016 
final rule market conditions, including manufacturer costs and costs to 
improve CWAF efficiency have worsened since the 2016 final rule. Lennox 
also argued that implementing more-stringent standards at this time 
would be premature because DOE's 2023 CWAF standards have not yet taken 
effect, and under the statute, any new CWAF standards could not take 
effect until 2029. (Lennox, No. 30 at p. 2) AHRI and Lennox also agreed 
with DOE's tentative conclusion in the April 2022 NOPD that raising the 
TE standards would likely result in a condensing standard, and these 
commenters asserted that there are technological problems associated 
with implementing condensing operation for CWAFs that would add 
significant burden to manufacturers if such a standard were to be 
adopted. (AHRI, No. 29 at p. 1; Lennox, No. 30 at p. 1)
    NEEA disagreed with DOE's proposed determination. (NEEA, No. 34 at 
p. 1) As discussed in section III.A of this document, NEEA asserted 
that DOE should consider the energy savings of technology options that 
are not captured by the current CWAF test procedure and metric. (NEEA, 
No. 34 at p. 2) Additionally, NEEA recommended that DOE should update 
its energy use analysis to account for changes in the CWAF market since 
2016. (NEEA, No. 34 at pp. 7-8) NEEA stated that DOE's 2016 analysis 
was based on the Commercial Building Stock Energy Consumption Survey 
(CBECS 2003); however, since the publication of that survey, a new 
CBECS 2018 has been published. NEEA also recommended that DOE should 
seek new shipment data to account for changing trends in the market. 
Id.
    In response to NEEA, DOE reiterates that its analysis for this 
final determination was based on the existing TE metric, as updates to 
the required test method as would be needed to account for additional 
technologies that NEEA identified are not yet adopted. The CWAFs test 
procedure rulemaking is currently ongoing. Further, it would be 
premature to evaluate energy conservation standards in terms of a new 
metric without sufficient data on equipment performance according to

[[Page 78825]]

any potential new metric. As a result, DOE has concluded that further 
consideration of TE2 is not appropriate at this time and is better 
suited for consideration in a future review of CWAF standards, if TE2 
were to be finalized and sufficient performance data becomes available.
    In response to NEEA's suggestion that DOE seek new shipment data to 
account for the changing market, DOE notes that it sought feedback on 
its approach to estimating shipments and/or shipments data in the May 
2020 RFI. 85 FR 27941, 27953 (May 12, 2020). Subsequently, in the April 
2022 NOPD, DOE considered several comments related to shipments, and 
the Department ultimately concluded that given the mature market, the 
expectation that most shipments will be at the baseline level in 2023, 
and lack of any anticipated increase in equipment lifetime, DOE did not 
expect the shipments estimates and no-new-standards distributions from 
the January 2016 final rule to have changed significantly for CWAFs. 87 
FR 24455, 24464 (April 26, 2022). After a careful review, DOE has not 
obtained any new or additional information regarding shipments, and, 
therefore, maintains the conclusion regarding CWAF shipments set forth 
in the April 2022 NOPD for this final determination. Regarding NEEA's 
recommendation to conduct an updated analysis that relies on CBECS 
2018, as stated in the April 2022 NOPD, while the previous analysis 
relied on CBECS 2003, CWAF energy consumption was adjusted for 
projected decreases in heating degree days between CBECS 2003 and the 
compliance year.\10\ 87 FR 24455, 24463 (April 26, 2022). DOE also 
noted that the main driver of CWAF energy consumption in the January 
2016 final rule was the building heating load, which is based on the 
reported space heating energy consumption of buildings with a furnace 
in CBECS 2003, and that the previous analysis was not based on full-
load hours or perimeter conditions. Id. As such, and given the fact 
that DOE has determined that the characteristics of the CWAF market are 
largely the same as when analyzed for the January 2016 final rule, DOE 
does not anticipate the energy use to have changed sufficiently so as 
to drive a different outcome, as compared to that in the January 2016 
final rule.
---------------------------------------------------------------------------

    \10\ See Chapter 7 of the January 2016 Final Rule Technical 
Support Document (available at: www.regulations.gov/document/EERE-2013-BT-STD-0021-0050).
---------------------------------------------------------------------------

    As discussed further in section III.D of this document, DOE has 
determined that it lacks clear and convincing evidence to show that the 
potential amended standard levels considered would be economically 
justified. To satisfy the statutory requirements to consider more-
stringent standards, DOE must support by clear and convincing evidence 
that such standards are economically justified, in addition to being 
technologically feasible and to likely result in significant additional 
energy savings. Therefore, although DOE could update its analysis to 
further investigate aspects of energy savings and shipments, the 
Department finds that doing so would not change DOE's rationale 
supporting its decision to not amend the existing CWAF standards at 
this time.

C. Equipment Classes and Scope of Coverage

    EPCA and DOE define a ``warm air furnace'' as a self-contained oil- 
or gas-fired furnace designed to supply heated air through ducts to 
spaces that require it and includes combination warm air furnace/
electric air conditioning units but does not include unit heaters and 
duct furnaces. (42 U.S.C. 6311(11)(A); 10 CFR 431.72) A ``commercial 
warm air furnace'' is further defined in DOE's regulations as a warm 
air furnace that is industrial equipment, and that has a capacity 
(rated maximum input) of 225,000 British thermal units (``Btu'') per 
hour or more. 10 CFR 431.72.
    In the April 2022 NOPD, DOE responded to a comment from NEEA \11\ 
that requested that DOE consider updating the definition for CWAF to 
account for different operating characteristics, different functions, 
or use cases in order to reduce uncertainty as to the applicable energy 
conservation standard and test procedure and to provide more 
comprehensive coverage. 87 FR 24455, 24459 (April 26, 2022). In 
response NEEA's comment, DOE stated that the codified definition of 
``warm air furnace'' at 10 CFR 431.72 matches EPCA's definition of a 
``warm air furnace'' at 42 U.S.C. 6311(11)(A), and that, therefore, the 
current CWAF definition is appropriately aligned with the definition in 
EPCA and adequately covers CWAFs. As such, DOE determined that no 
amendments to the regulatory definitions for ``commercial warm air 
furnace'' or ``warm air furnace'' are needed. Id.
---------------------------------------------------------------------------

    \11\ NEEA sent a comment in response to a DOE request for 
information published in the Federal Register on May 12, 2020, for 
air-cooled commercial package air conditioning and heating equipment 
and commercial warm air furnaces, in which the Department sought 
comment regarding whether DOE should consider revising the 
definition for CWAFs. See EERE-2019-BT-STD-0042-0024 at p. 5.
---------------------------------------------------------------------------

    In response to the April 2022 NOPD, NEEA again recommended that DOE 
update the definition of a CWAF to allow DOE to develop a metric that 
would include the effects of both the CWAF and the CUAC with which it 
is packaged. (NEEA, No. 34 at pp. 6-7) NEEA further stated that it does 
not see a limitation in EPCA's or DOE's definition of a CWAF that 
prevents DOE from expanding the definition to cover the entire CUAC and 
suggested that this was the intent of the EPCA definition. 
Specifically, NEEA noted that the EPCA defines a warm air furnace as 
``self-contained,'' ``designed to supply heated air through ducts,'' 
and ``includes combination warm air furnace/electric air conditioning 
units,'' which NEEA argued suggests that the intent was to cover CUACs. 
Id.
    DOE disagrees with NEEA that the intent of the ``warm air furnace'' 
definition found in EPCA is to include CUACs under the coverage of the 
CWAF definitions. As previously noted, EPCA's definition of a ``warm 
air furnace'' definition clearly states that a warm air furnace ``is a 
self-contained oil or gas-fired furnace,'' which DOE views as a product 
that is distinct from a CUAC. DOE notes that EPCA lists warm air 
furnaces and various types of commercial air conditioners as separate 
types of covered equipment at 42 U.S.C. 6311(1) and that EPCA defines 
``commercial package air conditioning and heating equipment'' (i.e., 
CUAC) separately from ``warm air furnace.'' (See 42 U.S.C. 6311(8)(A) 
and (11)(A)) While EPCA states that a warm air furnace ``includes 
combination warm air furnace/electric air conditioning units,'' DOE has 
determined that this is referring to the fact that a CWAF may be 
installed within an CUAC, which is an attempt to clarify that CWAFs can 
be standalone units or installed as part of packaged systems. This 
interpretation is consistent with how DOE has historically treated and 
regulated CWAFs and packaged systems.
    NEEA also stated that DOE should consider expanding the coverage of 
CWAFs to include three-phase furnaces with capacities less than 225,000 
Btu/h. (NEEA, No. 34 at p. 6) As discussed in the April 2022 NOPD, DOE 
tentatively determined not to take such action because: (1) such units 
make up a very small portion of the market (roughly 2 percent), and (2) 
all of such units meet or exceed the current CWAF standards and the 
majority meet or exceed the 2023 standards. 87 FR 24455, 24460 (April 
26, 2022). NEEA argued that because these types of CWAFs make up about 
2 percent of the total CWAF market, there is still a significant 
opportunity for energy savings, because the CWAF market is large. 
(NEEA, No.

[[Page 78826]]

34 at p. 6) Additionally, NEEA stated that because the majority of the 
market already meets or exceeds the 2023 standards, the additional 
burden to manufacturers to redesign such units to meet the 2023 
standards is likely to be small. Finally, NEEA argued that DOE has 
energy conservation standards for three-phase VRFs with a capacity less 
than 65,000 btu/h even though there are currently no shipments of such 
units, so the commenter asserted that following this precedent, DOE 
should establish energy conservation standards for three-phase CWAFs 
with an input capacity less than 225,000 Btu/h, because such products 
have thousands of shipments. Id.
    DOE has decided not to consider energy conservation standards for 
three-phase CWAFs with a capacity less than 225,000 Btu/h in this 
rulemaking. DOE disagrees with NEEA that there is a significant 
opportunity for energy savings. While 2 percent of the overall CWAF 
market can account for a significant amount of energy use, as 
previously stated, all three-phase furnaces with capacities less than 
225,000 btu/h meet or exceed the current CWAF standards, and the 
majority already meet the 2023 standards. Therefore, significant energy 
savings for such units (assuming DOE expanded the CWAF definition to 
include them) would only be achieved if DOE were to increase CWAF 
standards, which for the reasons explained in section III.D of this 
document, DOE is declining to do in this rulemaking.

D. Final Determination

    After carefully considering the comments on the April 2022 NOPD and 
the available data and information, DOE has determined that the energy 
conservation standards for CWAFs do not need to be amended, for the 
reasons explained in the paragraphs immediately following.
    As previously discussed, EPCA specifies that for any commercial and 
industrial equipment addressed under 42 U.S.C. 6313(a)(6)(A)(i), 
including CWAFs, DOE may prescribe an energy conservation standard more 
stringent than the level for such equipment in ASHRAE Standard 90.1 
only if ``clear and convincing evidence'' shows that a more-stringent 
standard would result in significant additional conservation of energy 
and is technologically feasible and economically justified. (42 U.S.C. 
6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II)) The ``clear and 
convincing'' evidentiary threshold applies both when DOE is triggered 
by ASHRAE action and when DOE conducts a six-year-lookback rulemaking, 
with the latter being the basis for the current proceeding. DOE 
addresses each of these statutory criteria in turn.
1. Significant Conservation of Energy
    EPCA mandates that DOE consider whether amended energy conservation 
standards for CWAFs would result in result in significant additional 
conservation of energy. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 
6313(a)(6)(A)(ii)(II))
    As discussed in the April 2022 NOPD, DOE acknowledges that more-
stringent standards for CWAFs have the potential to result in 
significant additional conservation of energy. 87 FR 24455, 24464 
(April 26, 2022). In the January 2016 final rule, DOE estimated that 
establishing a condensing standard (i.e., 92-percent thermal 
efficiency) for gas-fired and oil-fired CWAFs would result in 2.1 quads 
of primary energy savings compared to a no-new-standards case over the 
lifetime of the CWAF (2019 through 2048). 81 FR 2420, 2508 (Jan. 15. 
2016). However, as discussed in section III.D.3 of this document, DOE 
has determined that it lacks clear and convincing evidence to show that 
the potential amended standard levels considered would be economically 
justified.
2. Technological Feasibility
    EPCA mandates that DOE consider whether amended energy conservation 
standards for CWAFs would be technologically feasible. (42 U.S.C. 
6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II)) As initially 
explained in the April 2022 NOPD, there have previously been CWAF 
models on the market at efficiencies above the current minimum standard 
levels and above the levels adopted in the January 2016 final rule, and 
DOE has previously analyzed several of those levels as potential 
national standard levels. 87 FR 24455, 24465 (April 26, 2022). This 
indicates that more-stringent energy conservation standards could be 
technologically feasible. However, DOE also noted in the April 2022 
NOPD that it was not aware of any CWAF models on the market that 
exceeded the minimum standards that were adopted in the January 2016 
final rule. Id. Currently, DOE is not aware of any gas-fired CWAF 
models, and is only aware of one oil-fired CWAF model line on the 
market that exceeds the minimum standards that were adopted in the 
January 2016 final rule.\12\
---------------------------------------------------------------------------

    \12\ See DOE's Compliance Certification Database for CWAFs 
(available at: www.regulations.doe.gov/ccms) (last accessed Sept. 
14, 2022).
---------------------------------------------------------------------------

3. Economic Justification
    In the January 2016 final rule, DOE concluded that energy 
conservation standards at levels requiring condensing operation (trial 
standard level (``TSL'') 5) would not be economically justified, due to 
the economic burden on most consumers, the negative NPV of consumer 
benefits using a 7-percent discount rate, and the impacts on 
manufacturers, including the conversion costs and profit margin impacts 
that could result in a large reduction in INPV. 81 FR 2420, 2522 (Jan. 
15, 2016). In examining the current market, DOE has found that market 
conditions are largely the same as at the time of the January 2016 
final rule.
    Given the similar market size and in consideration of stakeholder 
comments, DOE has determined that the manufacturing costs and 
manufacturer impacts would not be significantly different now than 
projected in the January 2016 final rule. In addition, DOE has 
determined that installation costs would be similar to those estimated 
in the previous analysis, and that energy cost savings would not 
increase as compared to the previous analysis, as updated Annual Energy 
Outlook (AEO) projections of energy prices show declining prices in 
comparison to the projections in AEO 2015, which were used for the 
January 2016 final rule. For these reasons, DOE has determined that any 
analysis of more-stringent thermal efficiency standard levels for CWAFs 
would not result in a significantly different economic outcome from the 
January 2016 final rule, and that as such, it lacks clear and 
convincing evidence that more-stringent standard levels for CWAFs would 
be economically justified.
    DOE notes that the determination that it lacks clear and convincing 
evidence is specific to this rulemaking. DOE will evaluate its ability 
to reach clear and convincing evidence on a case-by-case basis.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866 and 13563

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by 
E.O. 13563, ``Improving Regulation and

[[Page 78827]]

Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011), requires agencies, to 
the extent permitted by law, to: (1) propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs 
(recognizing that some benefits and costs are difficult to quantify); 
(2) tailor regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations; (3) select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity); (4) to the 
extent feasible, specify performance objectives, rather than specifying 
the behavior or manner of compliance that regulated entities must 
adopt; and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public. DOE 
emphasizes as well that E.O. 13563 requires agencies to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible. In its guidance, the 
Office of Information and Regulatory Affairs (``OIRA'') in the Office 
of Management and Budget (``OMB'') has emphasized that such techniques 
may include identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral changes. 
For the reasons stated in the preamble, this regulatory action is 
consistent with these principles.
    OMB has determined that this final determination does not 
constitute a ``significant regulatory action'' under section 3(f) of 
E.O. 12866. Accordingly, this action was not subject to review under 
E.O. 12866 by OIRA at OMB.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis (``IRFA'') 
for any rule that by law must be proposed for public comment, unless 
the agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
As required by E.O. 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's website (www.energy.gov/gc/office-general-counsel).
    The Small Business Administration (SBA) considers a business entity 
to be a small business, if, together with its affiliates, it employs 
less than a threshold number of workers specified in 13 CFR part 121. 
The equipment covered by this final determination are classified under 
North American Industry Classification System (``NAICS'') code 
333415,\13\ ``Air-Conditioning and Warm Air Heating Equipment and 
Commercial and Industrial Refrigeration Equipment Manufacturing.'' In 
13 CFR 121.201, the SBA sets a threshold of 1,250 employees or fewer 
for an entity to be considered as a small business for this category.
---------------------------------------------------------------------------

    \13\ The size standards are listed by NAICS code and industry 
description and are available at: www.sba.gov/document/support--table-size-standards (last accessed March 4, 2022).
---------------------------------------------------------------------------

    DOE has conducted a focused inquiry into small business 
manufacturers of the equipment covered by this rulemaking. The 
Department used available public information to identify potential 
small manufacturers. DOE accessed its Compliance Certification Database 
(``CCD'') \14\ to identify a list of companies that manufacture the 
CWAFs covered by this final determination. Using these sources, DOE 
identified a total of eight distinct manufacturers of CWAFs. DOE 
screened out companies that do not meet the definition of a ``small 
business'' or are foreign-owned and operated. Of these manufacturers, 
DOE identified one small, domestic manufacturer as a potential small 
business.
---------------------------------------------------------------------------

    \14\ U.S. Department of Energy Compliance Certification 
Management System (available at: www.regulations.doe.gov/ccms).
---------------------------------------------------------------------------

    DOE reviewed this final determination under the provisions of the 
Regulatory Flexibility Act and the policies and procedures published on 
February 19, 2003. Because DOE is not amending standards for CWAFs in 
this final determination, DOE certifies that this final determination 
will not have a significant economic impact on a substantial number of 
small entities. Accordingly, DOE has not prepared an IRFA or FRFA for 
this final determination. DOE has transmitted this certification and 
supporting statement of factual basis to the Chief Counsel for Advocacy 
of the Small Business Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    This final determination, which determines that amended energy 
conservation standards for CWAFs are unneeded under the applicable 
statutory criteria, imposes no new informational or recordkeeping 
requirements. Accordingly, OMB clearance is not required under the 
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)

D. Review Under the National Environmental Policy Act of 1969

    DOE is analyzing this action in accordance with the National 
Environmental Policy Act of 1969 (``NEPA'') and DOE's NEPA implementing 
regulations (10 CFR part 1021). DOE's regulations include a categorical 
exclusion for actions which are interpretations or rulings with respect 
to existing regulations. 10 CFR part 1021, subpart D, appendix A4. DOE 
has determined that this final determination qualifies for categorical 
exclusion A4 because it is an interpretation or ruling in regard to an 
existing regulation and otherwise meets the requirements for 
application of a categorical exclusion. See 10 CFR 1021.410. Therefore, 
DOE has determined that promulgation of this final determination is not 
a major Federal action significantly affecting the quality of the human 
environment within the meaning of NEPA, and does not require an 
environmental assessment or an environmental impact statement.

E. Review Under Executive Order 13132

    E.O. 13132, ``Federalism,'' 64 FR 43255 (August 10, 1999), imposes 
certain requirements on Federal agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. The Executive order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this final

[[Page 78828]]

determination and has determined that it would not have a substantial 
direct effect on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. EPCA governs 
and prescribes Federal preemption of State regulations as to energy 
conservation for the equipment that is the subject of this final 
determination. States can petition DOE for exemption from such 
preemption to the extent, and based on criteria, set forth in EPCA. (42 
U.S.C. 6316(a) and (b); 42 U.S.C. 6297) As this final determination 
would not amend the standards for CWAFs, there is no impact on the 
policymaking discretion of the States. Therefore, no further action is 
required by E.O. 13132.

F. Review Under Executive Order 12988

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

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'') 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a regulatory action likely to result in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. 62 FR 12820. DOE's policy statement is also available at 
www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    DOE examined this final determination according to UMRA and its 
statement of policy and determined that this final determination does 
not contain a Federal intergovernmental mandate, nor is it expected to 
require expenditures of $100 million or more in any one year by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector. As a result, the analytical requirements of UMRA do not apply.

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

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This final determination would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 12630

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

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

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review 
most disseminations of information to the public under information 
quality guidelines established by each agency pursuant to general 
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 
(Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, ``Improving 
Implementation of the Information Quality Act'' (April 24, 2019), DOE 
published updated guidelines which are available at: www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IAQ%20Guidelines%20Dec%202019.pdf. DOE has 
reviewed this final determination under the OMB and DOE guidelines and 
has concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    E.O. 13211, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 
2001), requires Federal agencies to prepare and submit to the OIRA at 
OMB, a Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgates or is expected to lead to promulgation of a final 
rule, and that: (1) is a significant regulatory action under Executive 
Order 12866, or any successor Executive Order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    This final determination, which does not amend energy conservation 
standards for CWAFs, is not a significant regulatory action under 
Executive Order 12866. Moreover, it would not have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as such by the Administrator at OIRA.

[[Page 78829]]

Therefore, it is not a significant energy action, and accordingly, DOE 
has not prepared a Statement of Energy Effects.

L. Review Under the Information Quality Bulletin for Peer Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (``OSTP''), issued its Final Information 
Quality Bulletin for Peer Review (``the Bulletin''). 70 FR 2664 (Jan. 
14, 2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the bulletin is to enhance the quality and credibility of 
the Government's scientific information. Under the Bulletin, the energy 
conservation standards rulemaking analyses are ``influential scientific 
information,'' which the Bulletin defines as ``scientific information 
the agency reasonably can determine will have, or does have, a clear 
and substantial impact on important public policies or private sector 
decisions.'' Id. at 70 FR 2667.
    In response to OMB's Bulletin, DOE conducted formal peer reviews of 
the energy conservation standards development process and the analyses 
that are typically used and has prepared a Peer Review report 
pertaining to the energy conservation standards rulemaking 
analyses.\15\ Generation of this report involved a rigorous, formal, 
and documented evaluation using objective criteria and qualified and 
independent reviewers to make a judgment as to the technical/
scientific/business merit, the actual or anticipated results, and the 
productivity and management effectiveness of programs and/or projects. 
Because available data, models, and technological understanding have 
changed since 2007, DOE has engaged with the National Academy of 
Sciences (NAS) to review DOE's analytical methodologies to ascertain 
whether modifications are needed to improve the Department's analyses. 
DOE is in the process of evaluating the resulting December 2021 NAS 
report.\16\
---------------------------------------------------------------------------

    \15\ ``Energy Conservation Standards Rulemaking Peer Review 
Report.'' 2007 (available at: energy.gov/eere/buildings/downloads/energy-conservation-standards-rulemaking-peer-review-report-0).
    \16\ The December 2021 NAS report is available at 
www.nationalacademies.org/our-work/review-of-methods-for-setting-building-and-equipment-performance-standards.
---------------------------------------------------------------------------

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this final determination prior to its effective date. 
This report will state that it has been determined that the final 
determination is not a ``major rule'' as defined by 5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

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

Signing Authority

    This document of the Department of Energy was signed on December 
16, 2022, by Francisco Alejandro Moreno, Acting 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 the legal effect of this document upon 
publication in the Federal Register.

    Signed in Washington, DC, on December 19, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2022-27878 Filed 12-22-22; 8:45 am]
BILLING CODE 6450-01-P