[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 5560-5566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01082]
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DEPARTMENT OF ENERGY
10 CFR Part 431
[EERE-2024-BT-DET-0012]
RIN 1904-AE57
Energy Conservation Program: Commercial Warm Air Furnaces; Final
Determination
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final determination.
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SUMMARY: On June 2, 2023, the U.S. Department of Energy (``DOE'' or the
``Department'') published a test procedure final rule which established
test procedures for commercial warm air furnaces (``CWAFs''). On August
1, 2023, the Air-Conditioning, Heating, and Refrigeration Institute
(``AHRI'') filed a petition for review of the final rule in the United
States Court of Appeals for the Fourth Circuit. In a February 6, 2024,
order, the Fourth Circuit granted a voluntary remand of the final rule
to the Department of Energy (``DOE'') to determine whether
establishment of the test procedure for the thermal efficiency two
(``TE2'') metric is supported by the specific provisions applicable to
CWAFs under the Energy Policy and Conservation Act (``EPCA''). More
specifically, DOE agreed in this voluntary remand to not enforce the
TE2 test procedure unless and until the Department determines that the
TE2 test procedure is consistent with the amended industry test
procedure, or determines, supported by clear and convincing evidence,
that the amended industry test procedure fails to satisfy the statutory
requirements. This document provides DOE's determination that the
amended industry test procedure fails to satisfy EPCA's statutory
requirements.
DATES: The effective date of July 3, 2023, for the TE2 test procedure
is confirmed.
ADDRESSES: The docket for this activity, which includes Federal
Register notices, 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, not all
documents listed in the index may be publicly available, such as
information that is exempt from public disclosure.
The docket web page can be found at www.regulations.gov/docket/EERE-2024-BT-DET-0012. The docket web page contains instructions on how
to access all documents, including public comments, in the docket.
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].
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. Pete Cochran, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 586-4798. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Authority
B. Energy Conservation Standards Rulemaking Process Under EPCA
C. Background
II. Discussion
A. Appendix B Test Procedure for TE2
B. Comment Period Length
C. Application of the ASHRAE Trigger Provision in 42 U.S.C.
6314(a)(4)(B)
III. Conclusion
IV. Procedural Issues and Regulatory Review
V. Approval of the Office of the Secretary
I. Introduction
A. Authority
The Energy Policy and Conservation Act, Public Law 94-163, as
amended (``EPCA''),\1\ authorizes DOE to regulate the energy efficiency
of a number of consumer products and certain industrial equipment. (42
U.S.C. 6291-6317, as codified) Title III, Part C of EPCA, added by
Public Law 95-619, title IV, sec. 441(a), 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(1)(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.
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The energy conservation program under EPCA consists essentially of
four parts: (1) testing, (2) labeling, (3) Federal energy conservation
standards, and (4) certification and enforcement procedures. Relevant
provisions of EPCA include definitions (42 U.S.C. 6311), test
procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315),
energy conservation standards (42 U.S.C. 6313), and the authority to
require information and reports from manufacturers (42 U.S.C. 6316; 42
U.S.C. 6296).
The Federal testing requirements consist of test procedures that
manufacturers of covered equipment must use as the basis for: (1)
certifying to DOE that their equipment complies with the applicable
energy conservation standards adopted pursuant to EPCA (42 U.S.C.
6316(b); 42 U.S.C. 6296), and (2) making other representations about
the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE
uses these test procedures to determine whether the equipment complies
with relevant standards promulgated under EPCA. DOE's test procedures
for CWAFs are currently prescribed at subpart D of part 431 of title 10
of the Code of Federal Regulations (``CFR'').
Federal energy efficiency 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.
[[Page 5561]]
6297) DOE may, however, grant waivers of Federal preemption for
particular state laws or regulations, in accordance with the procedures
and other provisions of EPCA. (42 U.S.C. 6316(b)(2)(D)).
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures
DOE must follow when prescribing or amending test procedures for
covered equipment. EPCA requires that any test procedures prescribed or
amended under this section must be reasonably designed to produce test
results that reflect energy efficiency, energy use, or estimated annual
operating cost of a given type of covered equipment during a
representative average use cycle (as determined by DOE) and requires
that test procedures not be unduly burdensome to conduct. (42 U.S.C.
6314(a)(2)).
EPCA generally requires that, at least once every seven years, DOE
evaluate test procedures for each type of covered equipment, including
CWAFs, to determine whether amended test procedures would more
accurately or fully comply with the requirements for the test
procedures to not be unduly burdensome to conduct and be reasonably
designed to produce test results that reflect energy efficiency, energy
use, and estimated operating costs during a representative average use
cycle. (42 U.S.C. 6314(a)(1)-(3)) DOE refers to these provisions as the
``lookback'' provisions and rulemakings conducted under these
provisions as ``lookback'' rulemakings.
Specific to certain commercial equipment, including CWAFs, EPCA
required that the initial test procedures for this equipment be those
generally accepted industry testing procedures or rating procedures
developed or recognized by AHRI or ASHRAE, as referenced in ASHRAE
Standard 90.1, ``Energy Standard for Buildings Except Low-Rise
Residential Buildings'' (``ASHRAE Standard 90.1''), that were in effect
on June 30, 1992. (42 U.S.C. 6314(a)(4)(A)) Further, if such an
industry test procedure is amended, DOE must update its test procedure
to be consistent with the amended industry test procedure unless DOE
determines, by rule published in the Federal Register and supported by
clear and convincing evidence, that the amended test procedure would
not meet the requirements in 42 U.S.C. 6314(a)(2) and (3), in which
case DOE may establish an amended test procedure that does satisfy
those statutory provisions. (42 U.S.C. 6314(a)(4)(B) and (C)) DOE
refers to these provisions as the ``ASHRAE trigger'' provisions and
rulemakings conducted under these provisions as ``ASHRAE trigger''
rulemakings.
Whether pursuant to the lookback provision or the ASHRAE trigger
provision, if DOE determines that a test procedure amendment is
warranted, EPCA requires that the Department publish proposed test
procedures in the Federal Register and afford interested persons an
opportunity (of not less than 45 days duration) to present oral and
written data, views, and arguments on the proposed test procedures. (42
U.S.C. 6314(b)).
B. Energy Conservation Standards Rulemaking Process Under EPCA
The purpose of energy conservation standards issued under EPCA is
to reduce energy use by improving the energy efficiency of covered
products and equipment. (See 42 U.S.C. 6312(a)). The first step in
establishing new or amended energy conservation standards for any
covered product or equipment is to determine what energy use by a
covered product or equipment will be within the scope of the energy
conservation standard, i.e., what is the representative average use
cycle for the covered product or equipment. For example, prior to the
Energy Independence and Security Act of 2007 (``EISA 2007''), the
representative average use cycle for many covered products only
included active mode energy use, i.e., energy used while the product
was performing its main function. As such, the representative use cycle
did not include any energy used while the product was in a standby or
off mode. Thus, manufacturers had little incentive to reduce standby or
off mode energy use as it had no effect on whether a covered product
complied with the applicable energy conservation standards. But in EISA
2007, Congress required DOE to include standby and off mode energy use
as part of the representative average use cycle for any energy
conservation standard adopted after July 1, 2010. (42 U.S.C.
6295(gg)(3)).
Representative average use cycles for covered products and
equipment can also change over time as DOE's understanding of how the
product or equipment is used in the field improves, consumer habits
change, or technologies improve. Of particular importance here is the
introduction of variable-speed compressors in the heating, ventilation,
and air conditioning (HVAC) market. Variable-speed technology allows
compressors used in HVAC equipment to run at part-load values in
response to different operating conditions in the field. For example,
if a room temperature is only 2 or 3 degrees warmer than the set
temperature, an HVAC unit with variable-speed technology could run at
partial capacity, e.g., 40% capacity, to cool the room to the setpoint.
This saves energy as the HVAC unit uses less energy running at a lower
speed. And variable-speed HVAC units still maintain the capability of
operating at 100% capacity when needed, e.g., cooling down a home after
a homeowner returns from vacation. As HVAC units with variable-speed
technology have become more prevalent in the market, the representative
average use cycle for this equipment has changed. HVAC units with
variable-speed technology run for longer periods of time at slower
speeds that single-speed HVAC units. As a result, DOE amends the test
procedures for specific HVAC equipment to ensure the representative
average use cycle reflects manufacturer innovation and how models with
this technology will operate in the field. For example, DOE recently
issued an amended test procedure for air-cooled commercial package air
conditioners and heat pumps that, among other things, has provisions
for measuring part-load energy use because of the presence of variable-
speed technology in the market. 89 FR 43986 (May 20, 2024). DOE adopted
this new test procedure for air-cooled commercial air conditioners and
heat pumps with the support of a cross-section of stakeholders,
including the heating and cooling industry, who recommended the details
of the new test procedure to DOE as part of a negotiated consensus
recommendation. Id. at 89 FR 43991. In fact, every type of HVAC
consumer product or covered equipment regulated by DOE that has an
energy conservation standard that accounts for part-load operation,
e.g., residential central air conditioners and heat pumps and variable
refrigerant flow air conditioners and heat pumps has an associated test
procedure that has provisions for measuring energy use during part-load
operation.
Having determined a representative average use cycle for a covered
product or equipment, the next step in EPCA's energy conservation
standards rulemaking process is to prescribe a test procedure that is
reasonably designed to produce test results that measure energy use of
the covered product or equipment for that representative average use
cycle and that is not unduly burdensome to conduct. (42 U.S.C.
6293(b)(3); 42 U.S.C. 6314(a)(2)). For example, when Congress required
DOE to include standby and off mode energy use in standards for covered
products, it first directed DOE to amend test procedures
[[Page 5562]]
for all covered products to include provisions for measuring standby
and off mode energy use. (42 U.S.C. 6295(gg)(2)(A)). Congress then
directed DOE to use these amended test procedures when prescribing new
or amended standards that incorporate standby and off mode energy use.
(42 U.S.C. 6295(gg)(3)(A)). As the new standards would be based on a
different representative use cycle, i.e., one that includes active
mode, standby mode, and off mode, Congress clarified that the amended
test procedures ``shall not be used to determine compliance with
product standards established prior to the adoption of the amended test
procedures.'' (42 U.S.C. 6295(gg)(2)(C)). It would have made little
sense for Congress to require manufacturers to use test procedures that
measure active, standby, and off mode energy when determining
compliance with an energy conservation standard that is only based on
active mode energy use. DOE takes the same approach when prescribing an
amended test procedure for use in evaluating new or amended energy
conservation standards that are based on an updated representative
average use cycle. Use of the amended test procedure is only required
upon the compliance date of the new or amended energy conservation
standards. See section 8(f) of appendix A to subpart C of 10 CFR part
430.
C. Background
Under EPCA's lookback provision, DOE initiated a test procedure
rulemaking for CWAFs by publishing a request for information (``RFI'')
in the Federal Register on May 5, 2020 (``May 2020 RFI''). 85 FR 26626.
The current energy conservation standards for CWAFs are based on a
representative average use cycle that assumes CWAFs always operate at
100 percent capacity in the field and that the only energy losses are
from flue exhaust gases. The May 2020 RFI solicited public comments,
data, and information on aspects of the existing DOE test procedure for
CWAFs at 10 CFR part 431, subpart D, appendix A (``appendix A''), which
measures Thermal Efficiency (``TE'') and is used for determining
compliance with the current energy conservation standards for CWAFs,
including whether there were any issues with the existing test
procedure at that time and whether it was in need of updates or
revisions. Id.
DOE subsequently published a notice of proposed rulemaking
(``NOPR'') for the CWAFs test procedure in the Federal Register on
February 25, 2022, which proposed amendments to the existing test
procedure for TE as well as a new test procedure based on DOE's
tentative determination that the representative average use cycle for
CWAFs should include jacket losses and part-load operation. 87 FR 10726
(``February 2022 NOPR''). DOE noted that CWAFs are typically installed
outdoors and, as a result, jacket losses can be a significant source of
energy loss. 87 FR 10726, 10735. DOE also noted that many CWAFs now
have multiple heating stages and performance for these CWAFs can vary
at different heating loads. Id. As a result, DOE proposed that any new
or amended energy conservation standards for CWAFs should be based on a
representative average use cycle that includes jacket losses and part-
load operation, and proposed a new metric, TE2, that captured those
aspects of CWAF energy use. DOE proposed a new test procedure in 10 CFR
part 431, subpart D, appendix B (``appendix B''), to measure energy
efficiency under the TE2 metric. DOE tentatively determined that the
appendix B test procedure met the statutory criteria in 42 U.S.C.
6314(a)(2) and (3). 87 FR 10726, 10737-10738. The February 2022 NOPR
had a 60-day comment period and DOE held a webinar public meeting on
March 29, 2022.
Following publication of the February 2022 NOPR, the latest update
to ASHRAE Standard 90.1 was released in January 2023 (``ASHRAE Standard
90.1-2022''). ASHRAE Standard 90.1-2022 references CSA/ANSI Z21.47-
2021, Gas-fired central furnaces (``ANSI Z21.47-2021''), as the test
method for gas-fired CWAFs and Underwriters Laboratories (``UL'')
standard UL 727-2018, ``Standard for Safety Oil-Fired Central
Furnaces'' (``UL 727-2018''), as the test method for oil-fired CWAFs.
On June 2, 2023, DOE published a test procedure final rule for
CWAFs. 88 FR 36217 (``June 2023 Final Rule''). In the June 2023 Final
Rule, DOE amended the current test procedure for TE in appendix A and
incorporated by reference the latest industry test procedures
referenced in ASHRAE Standard 90.1-2022. The amendments to the industry
test procedure were relatively minor and not based on any updates to
the representative average use cycle for CWAFs. Rather, they were
clarifications to the existing test procedure intended to improve
clarity and help with the execution of the current test procedure. DOE
also finalized the proposed appendix B test procedure that is based on
an updated representative average use cycle that includes jacket losses
and part-load operation. Similar to other rulemakings where DOE has
determined that the representative average use cycle should be updated,
e.g., air-cooled commercial air conditioners and heat pumps, the June
2023 Final Rule states that use of the appendix B test procedure would
not be required until such time as compliance is required with amended
energy conservation standards based on the new metric, should DOE adopt
such standards.
On August 1, 2023, following publication of the June 2023 Final
Rule, the Air-Conditioning, Heating, and Refrigeration Institute
(``AHRI'') filed a petition for review of the final rule in the United
States Court of Appeals for the Fourth Circuit. In its opening brief,
AHRI argued that DOE failed to provide notice and an opportunity for
comment after being triggered by the ASHRAE Standard 90.1-2022
publication prior to publishing the June 2023 Final Rule; that DOE did
not undertake the required analysis under 42 U.S.C. 6314(a)(4)(B); and
that if DOE had conducted the correct analysis under that provision, it
would necessarily have concluded that it lacked clear and convincing
evidence that the industry test procedure did not meet the statutory
requirements. See Air-Conditioning, Heating, and Refrigeration
Institute v. United States Department of Energy, No. 23-1793 (4th Cir.
Oct. 23, 2023), 15-1.
On February 6, 2024, the Fourth Circuit granted the Department's
motion for voluntary remand. In its order, the Court granted DOE's
motion for voluntary remand to clarify that, in this particular
circumstance, where ASHRAE published an amended industry test procedure
during the pendency of a rulemaking under the 7-year lookback
provision, the Department will solicit public comment prior to making:
(1) a final determination that the test procedure in appendix B for the
TE2 metric is consistent with the amended industry test procedure; or
(2) a final determination, supported by clear and convincing evidence,
that the industry test procedure fails to satisfy the statutory
requirements. See Air-Conditioning, Heating, and Refrigeration
Institute v. United States Department of Energy, No. 23-1793 (4th Cir.
Feb. 6, 2024), 22-1 (hereafter ``Remand Order''). The Remand Order did
not vacate the June 2023 Final Rule; the challenged failure to solicit
public comment (and other related claims brought in the petition for
review) applied only to the determination that the industry test
procedure did not meet the applicable statutory requirements and not
DOE's determination that the appendix B test procedure satisfied the
applicable statutory criteria. But, per the Remand Order, DOE will not
enforce the
[[Page 5563]]
appendix B test procedure until the Department determines that the
appendix B test procedure is consistent with the amended industry test
procedure or DOE determines, supported by clear and convincing
evidence, that the amended industry test procedure fails to satisfy the
statutory requirements in 42 U.S.C. 6314(a)(2) and (3). See Remand
Order at 2.
In accordance with the Remand Order from the Fourth Circuit, on
December 26, 2024, DOE published a notification of tentative
determination and request for comment (``December 2024 NOTD''), which
tentatively determined, supported by clear and convincing evidence,
that the industry test procedure is not reasonably designed to produce
test results that reflect energy efficiency during a representative
average use cycle that, as determined by DOE, includes jacket losses
and part-load operation. 89 FR 104859. The December 2024 NOTD sought
comment on DOE's proposed determination that the amended industry test
procedure, which does not have provisions for measuring energy loss to
the ambient environment (jacket losses) and energy use during part-load
operation, is not reasonably designed to produce test results that
reflect energy efficiency during a representative average use cycle
that, as determined by DOE, includes jacket losses and part-load
operation.
DOE received comments in response to the December 2024 NOTD from
the interested parties listed in table I.1.
Table I.1--List of Commenters With Written Submissions in Response to the December 2024 NOTD
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Comment No. in
Commenter(s) Abbreviation the docket Commenter type
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Michael Ravnitzky............. Ravnitzky.................. 2 Individual.
Air-Conditioning, Heating, and AHRI....................... 6 Trade Association.
Refrigeration Institute.
Appliance Standards Awareness ASAP and NEEA.............. 7 Efficiency Organization.
Project and Northwest Energy
Efficiency Alliance (Joint
Commenters).
Trane Technologies............ Trane...................... 8 Manufacturer.
Johnson Controls.............. JCI........................ 9 Manufacturer.
Daikin Applied Americas Inc... Daikin..................... 10 Manufacturer.
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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.\2\
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\2\ The parenthetical reference provides a reference for
information located in the docket. (Docket No. EERE-2024-BT-DET-
0012-0001, which is maintained at www.regulations.gov.) The
references are arranged as follows: (commenter name, comment docket
ID number, page of that document).
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II. Discussion
As discussed in the December 2024 NOTD, EPCA requires that if the
industry test procedure for CWAFs is amended, DOE must update its test
procedure to be consistent with the amended industry test procedure
unless DOE determines, by rule published in the Federal Register and
supported by clear and convincing evidence, that the amended test
procedure would not meet the requirements in 42 U.S.C. 6314(a)(2) and
(3), in which case DOE may establish an amended test procedure that
does satisfy those statutory provisions. (42 U.S.C. 6314(a)(4)(B) and
(C)) The publication of ASHRAE Standard 90.1-2022 represented an ASHRAE
trigger for CWAFs.
However, due to the timing of the ASHRAE trigger, which occurred
after DOE had published the February 2022 NOPR, but prior to the June
2023 Final Rule, DOE had not sought comment in the February 2022 NOPR
on whether the amended industry test procedure met the applicable
statutory requirements for measuring energy use for the TE2 metric,
which is based on a representative average use cycle that includes
jacket losses and part-load operation in the field. DOE also did not
initiate a separate process to determine whether the amended industry
test procedure satisfied the applicable statutory criteria. DOE did, on
the other hand, follow all of the procedural requirements in 42 U.S.C.
6314(b) for prescribing the appendix B test procedure. DOE published
the proposed appendix B test procedure in the Federal Register,
provided a comment period of not less than 45 days (i.e., 60 days), and
held a public webinar meeting on March 29, 2022. See 42 U.S.C.
6314(b)(1)-(2). As a result, in accordance with the Remand Order, DOE
is addressing only the challenged failure to determine, after notice
and comment, whether the amended industry test procedure is consistent
with the appendix B test procedure, or whether, as supported by clear
and convincing evidence, the amended industry test procedure fails to
satisfy the statutory requirements. Remand Order p. 2.
In the December 2024 NOTD, DOE tentatively determined, supported by
clear and convincing evidence,\3\ that the amended industry test
procedure is not reasonably designed to produce test results that
reflect energy efficiency during a representative average use cycle
that, as determined by DOE, includes jacket losses and part-load
operation. In making that tentative determination, DOE noted that a
CWAF with a TE of 81 percent as measured by the amended industry test
procedure could, depending on jacket losses and part-load operation,
have an actual range of efficiencies from 77.5 to 82 percent using the
appendix B test procedure for TE2. 89 FR 104859, 104864. DOE found that
to be a significant difference that would impact both consumers and
manufacturers. The following sections discuss comments received in
response to the December 2024 NOTD and DOE's decision to finalize its
determination that the amended industry test procedure is not
reasonably designed to produce test results that reflect energy
efficiency during a representative average use cycle that, as
determined by DOE, includes jacket losses and part-load operation.
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\3\ ``[C]lear and convincing evidence requires a factfinder . .
. to have an `abiding conviction' that her findings . . . are
`highly probable' to be true.'' Am. Pub. Gas Ass'n v. United States
Dep't of Energy, 22 F.4th 1018, 1025 (D.C. Cir. 2022) (quoting
Colorado v. New Mexico, 467 U.S. 310, 316 (1984)).
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A. Appendix B Test Procedure for TE2
DOE received several comments that focused on the appendix B test
procedure. For example, both Trane and JCI stated that DOE had not
shown that the appendix B test procedure met the statutory requirement
of not being unduly burdensome to conduct. (Trane, No. 8, p. 3; JCI,
No. 9, pp. 1-2) Similarly, AHRI commented on the representativeness,
burden, and costs of the appendix B test procedure and attached
comments that were previously
[[Page 5564]]
submitted in response to the February 2022 NOPR. (AHRI, No. 6, pp. 6-
9).
In response to these and similar comments, DOE reiterates that the
scope of this rulemaking process, as laid out in the Remand Order, is
to determine whether the amended industry test procedure is consistent
with the appendix B test procedure for TE2, or whether the amended
industry test procedure fails to satisfy the applicable requirements in
42 U.S.C. 6314(a)(2) and (3). In accordance with the Remand Order, DOE
issued the December 2024 NOTD, which tentatively determined, supported
by clear and convincing evidence, that the amended industry test
procedure was not reasonably designed to produce test results that
reflect energy efficiency during a representative average use cycle
that, as determined by DOE, includes jacket losses and part-load
operation. DOE sought comment on this tentative determination. In the
December 2024 NOTD, DOE specifically noted that the remand order did
not vacate the June 2023 Final Rule, nor did it require DOE to revisit
its determination that the appendix B test procedure meets the
statutory requirements at 42 U.S.C. 6314(a)(2) and (3). 89 FR 104859,
104862. As such, DOE will not address comments on whether the appendix
B test procedure meets the statutory requirements in 42 U.S.C.
6314(a)(2) and (3). Instead, DOE invites stakeholders to review the
June 2023 Final Rule where these same comments regarding
representativeness, burden, and cost of the appendix B test procedure
were fully addressed.
B. Comment Period Length
Several commenters expressed concerns about the length of the
comment period provided in the December 2024 NOTD. (Daiken, No. 10, p.
2; JCI, No. 9, p. 1; AHRI, No. 6, pp. 2-4) More specifically, JCI
commented that there was not sufficient time to complete a notable
research effort including the necessary internal reviews and approvals.
(JCI, No. 9, p. 1) JCI also expressed concern that the shortened
comment period could set a dangerous precedent for future rulemakings.
Id. AHRI stated that the comment period fell short of the minimum 45-
day comment period required for proposed test procedures under 42
U.S.C. 6314(b).
In response to these comments, DOE first notes, as AHRI correctly
pointed out, that prior to prescribing a final test procedure DOE is
required to publish the proposed test procedure in the Federal Register
and provide at least a 45-day comment period. (42 U.S.C. 6314(b)) But,
as clearly stated in the Remand Order, the December 2024 NOTD, and
throughout this document, the court did not vacate the June 2023 Final
Rule, nor did it require DOE to revisit its determination that the
appendix B test procedure meets the statutory requirements at 42 U.S.C.
6314(a)(2) and (3), which remains in effect. Hence, this is not a
rulemaking to prescribe a final test procedure to which the 45-day
comment period would apply. Instead, DOE is determining, ``by rule,
published in the Federal Register and supported by clear and convincing
evidence,'' that the amended industry test procedure does not meet the
applicable statutory criteria in EPCA. (42 U.S.C. 6314(a)(4)(B)) There
is no minimum comment period specified in EPCA for this type of
determination. In some cases, DOE may choose to conduct one rulemaking
to make this determination and propose an amended test procedure (see
42 U.S.C. 6314(a)(4)(C)), which would require a 45-day comment period.
But in other cases, DOE may issue a rule that only makes a
determination, supported by clear and convincing evidence, that the
amended industry test procedure does not satisfy the requirements in 42
U.S.C. 6314(a)(2) and (3). For example, if the current DOE test
procedure satisfies the requirements in 42 U.S.C. 6314(a)(2) and (3)
and DOE determines that the amended industry test procedure does not
satisfy the requirements in 42 U.S.C. 6314(a)(2) and (3), there would
be no need for DOE to propose an amended test procedure. As another
example, if the ASHRAE trigger occurs after DOE has already proposed an
amended test procedure under the 7-year lookback provision (as was the
case here), DOE would conduct a separate rulemaking to make the
required ASHRAE determination under 42 U.S.C. 6314(a)(4)(B).
Under the Administrative Procedure Act (APA), an agency engaged in
rulemaking must: (1) publish a general notice of proposed rulemaking in
the Federal Register that includes the terms or substance of the
proposed rule or a description of the subjects and issues involved; (2)
give interested persons an opportunity to participate in the rule
making through submission of written data, views, or arguments; and (3)
after consideration of the relevant matter presented incorporate in the
rules adopted a concise general statement of their basis and purpose.
See 5 U.S.C. 553(b) and (c). Taken together, Courts have typically
understood these provisions to require Federal agencies to provide the
public with a ``meaningful opportunity'' to comment. See N. Carolina
Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755, 763 (4th
Cir. 2012). Daiken, JCI, and AHRI take issue with the length of time
provided to stakeholders to review the December 2024 NOTD and develop
comments.
In response, DOE first notes that the Administrative Procedure Act
does not provide for a minimum comment period (see 5 U.S.C. 553) and
rules proposed by Federal agencies run the gamut from the incredibly
complex to the relatively simple. In other words, the length of time
required to give the public a meaningful opportunity to comment will
vary based on the content of the proposed rule. For example, the
National Highway Traffic Safety Administration typically used a 60-day
comment period when it proposed new fuel economy standards for
passenger cars and light trucks. 88 FR 56128 (Aug. 17, 2023). This
proposed rule was over 260 pages and used complex analytical methods to
propose new fuel economy standards.
In contrast, the 7-page December 2024 NOTD simply sought comment on
DOE's tentative determination that an amended industry test procedure
that does not have provisions for measuring two sources of energy
consumption, jacket losses and part-load operation, which can account
for an over 4 percent difference in overall measured efficiency, is not
reasonably designed to measure energy efficiency during a
representative average use cycle that, as determined by DOE for the TE2
metric, includes jacket losses and part-load operation. It should be
emphasized that DOE was not seeking comment on methodologies for
calculating jacket losses and energy use in part-load operation for a
CWAF, which would have warranted a longer comment period to give
stakeholders time to evaluate those testing provisions. Instead, DOE
sought comment on whether--as opposed to every other type of HVAC
equipment where DOE determined that part-load operation was part of the
representative average use cycle--an amended industry test procedure
for CWAFs that does not have provisions for measuring jacket losses and
energy use during part-load operation of a CWAF is reasonably designed
to measure energy efficiency during a representative average use cycle
that, as determined by DOE, includes jacket losses and part-load
operation.
DOE posted the signed, pre-publication copy of the December 2024
NOTD on the DOE website on December 13, 2024. That same day DOE sent an
email to stakeholders, including AHRI, Daiken, and JCI, announcing the
public
[[Page 5565]]
availability of the document and providing stakeholders with a website
link to the document. The document was then published in the Federal
Register on December 26, 2024, with a 14-day comment period that ended
on January 8, 2025. In total, stakeholders like AHRI, Daiken, and JCI
had 4 weeks to review the document and provide comments. As such, this
proceeding provided stakeholders with sufficient time to review the
December 2024 NOTD and develop any comments on why an amended industry
test procedure that does not have provisions for measuring jacket
losses and energy use during part-load operation still gives reasonable
results when used to measure CWAF energy use in the field that includes
jacket losses and part-load operation.
C. Application of the ASHRAE Trigger Provision in 42 U.S.C.
6314(a)(4)(B)
In the December 2024 NOTD, DOE evaluated the amended industry test
procedure in the context of the ASHRAE trigger provision and presented
DOE's tentative determination, supported by clear and convincing
evidence, that the amended industry test procedure is not reasonably
designed to produce test results which reflect energy efficiency during
a representative average use cycle that, as determined by DOE, includes
jacket losses and part-load operation. As support for this tentative
determination, DOE estimated that the amended industry test procedure
could not account for as much as a 4.5 percent difference in efficiency
between a CWAF model with high jacket losses and poor part-load
performance and a model with negligible jacket losses and good part-
load performance. DOE noted that this variation in efficiency was
significant. For example, when DOE last amended the standards for gas-
fired CWAFs, the minimum required efficiency went from 80 to 81
percent, which DOE determined would result in significant additional
conservation of energy. 81 FR 2420, 2430. Further, the average life-
cycle cost savings to a consumer from that 1 percent increase in
efficiency was $284. Id. at 81 FR 2423. Those already significant
impacts are only magnified when larger differences in measured
efficiency are considered. Therefore, DOE tentatively determined,
supported by clear and convincing evidence, that the amended industry
test procedures referenced in ASHRAE Standard 90.1-2022 are not
reasonably designed to produce test results which reflect energy
efficiency during a representative average use cycle that, as
determined by DOE for the TE2 metric, includes jacket losses and part-
load operation.
In response to the December 2024 NOTD, the Joint Commenters stated
that the potential 4.5 percent difference in energy efficiency
corresponds to a significant difference in energy consumption and that
the amended industry test procedure would likely result in an
inaccurate ranking of equipment in the market in terms of energy use
and operating cost. (Joint Commenters, No. 7, p. 1) As such, the Joint
Commenters agreed with DOE's tentative determination that the amended
industry test procedure is not reasonably designed to measure energy
efficiency during a representative average use cycle. Id.
Daiken, on the other hand, stated that DOE did not provide any data
to support its assertion that the industry test procedure is not
representative but has stated that clear and convincing evidence is
present. (Daiken, No. 9, p. 3) DOE strongly disagrees with this
statement. As discussed previously, DOE provided estimates that jacket
losses and part-load operation could account for as much as a 4.5
percent difference in efficiency. And DOE noted that even a 1 percent
increase in efficiency corresponded to average life-cycle cost savings
of $284.
AHRI asserted that DOE cannot satisfy the clear-and-convincing
evidence requirements because AHRI believes the record did not
demonstrate the test procedures referenced in Standard 90.1 would fail
to meet the requirements of sections 6314(a)(2) and (a)(3). More
specifically, AHRI commented that the range of efficiencies that would
result from the inclusion of part-load operation is narrower than for
other air-conditioning products. AHRI pointed to an example of a
furnace in a large commercial unit in a milder climate primarily
operating at night or during morning warm up to demonstrate its belief
that CWAFs are basically on-off, i.e., do not spend a significant
amount of time operating at part-load. (AHRI, No. 6 at p. 7)
In the June 2023 Final Rule, after considering comments and input
from stakeholders, DOE determined that the representative average use
cycle for the TE2 metric should include part-load operation and adopted
the 50 percent weighting at full load and part load. 88 FR 36217,
36226. In making that determination, DOE reviewed modeling submitted by
NEEA that showed a range of times for CWAF operation at full and part
loads, from operating as much as 70 percent of the time at full load
(and 30 percent of the time at part load) to operating as little as 25
percent of the time at full load (and 75 percent at part load). DOE
also observed that in the modeling certain building types (warehouses)
were modeled to operate at full load over 50 percent of the time, while
other buildings (retail) were modeled to operate at full load less than
50 percent of the time. DOE acknowledges that the time a CWAF operates
at full load and part load could vary based on the climate region,
building type and load, and CWAF sizing. But based on the available
data, it is clear that CWAFs in the field spend a significant amount of
time operating at part-load.
Even if AHRI were correct and part-load operation is less of a
contributor to the overall energy efficiency of a CWAF, DOE notes that
none of the commenters argued that jacket losses are not important to
the overall efficiency of a CWAF. In fact, AHRI points out its
importance by citing to the relevant provisions in ASHRAE 90.1 showing
that CWAFs installed in buildings where ASHRAE 90.1-2022 building code
requirements apply (e.g., newly constructed commercial equipment where
a jurisdiction has adopted the ASHRAE Standard 90.1-2022 building
energy codes) must meet certain jacket loss provisions. This position
highlights the importance of including jacket losses in the
representative average use cycle for any future standards, which as DOE
noted in the December 2024 NOTD could account for as much as a 2.5
percent difference in efficiency. 89 FR 104859, 104863.
III. Conclusion
The potential difference in CWAF efficiency measured under the
industry test procedure and the appendix B test procedure is an
excellent example of why Congress updated representative use cycles for
covered products to include standby and off mode energy use in new or
amended energy conservation standards and why stakeholders, including
manufacturers, asked DOE to update the representative average use cycle
for air-cooled commercial air conditioners and heat pumps--consumers
and manufacturers are both better off when DOE test procedures and
energy conservation standards capture more energy use in the field. For
example, as discussed previously, a CWAF with a TE of 81 percent as
measured by the industry test procedure could, depending on jacket
losses and part-load operation, have an actual range of efficiencies
from 77.5 to 82 percent using the appendix B test procedure for TE2.
That is a significant difference in efficiency and corresponds to a
significant difference in fuel costs
[[Page 5566]]
over the lifetime of the CWAF, which is important information for
consumers. The industry test procedure also does not allow
manufacturers to fully differentiate their products in the market. For
example, under the industry test procedure, a manufacturer with a line
of CWAF models with well-insulated jackets has no way to advertise
their improved efficiency in the market. Under the industry test
procedure, these models will have the same advertised efficiency as
similar models that lack insulation and have higher jacket losses.
Having determined that any future, amended standards for CWAFs
should be based on a representative average use cycle that includes
jacket losses and part-load operation, DOE adopted the appendix B test
procedure in the June 2023 Final Rule. The appendix B test procedure
contains specific provisions for measuring jacket losses and energy use
during part-load operation and will be used by DOE to evaluate
potential amended standards for CWAFs. Use of the appendix B test
procedure by manufacturers would not be required until such time as
compliance is required with amended energy conservation standards based
on the new representative average use cycle, should DOE adopt such
standards.
For this final determination, as was done initially in the December
2024 NOTD, DOE evaluated whether the industry test procedure is
reasonably designed to produce test results which reflect energy use
during a representative average use cycle that, as determined by DOE,
includes jacket losses and part-load operation. Unlike the appendix B
test procedure, the industry test procedure does not have provisions
for calculating jacket losses and changes in energy efficiency due to
part-load operation. As discussed previously, this results in the
industry test procedure producing test results that do not account for
significant variations in energy use across different CWAF models. As a
result, DOE has determined, supported by clear and convincing evidence,
that the industry test procedure is not reasonably designed to produce
test results which reflect energy efficiency during a representative
average use cycle that, as determined by DOE, includes jacket losses
and part-load operation for the TE2 metric.
IV. Procedural Issues and Regulatory Review
DOE has concluded that the determinations made pursuant to the
various procedural requirements applicable to the June 2023 Final Rule
remain unchanged for this notification of final determination. These
determinations are set forth in the June 2023 Final Rule. 88 FR 36217,
36230-36233. DOE is publishing this document to present its final
determination, supported by clear and convincing evidence, that the
industry test procedure would not provide test results that are
representative of an average use cycle for the TE2 metric.
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 January 13,
2025, by Jeffrey Marootian, Principal Deputy Assistant Secretary for
Energy Efficiency and Renewable Energy, pursuant to delegated authority
from the Secretary of Energy. That document with the original signature
and date is maintained by DOE. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of the Department of Energy. This administrative
process in no way alters the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on January 13, 2025.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2025-01082 Filed 1-16-25; 8:45 am]
BILLING CODE 6450-01-P