[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