[Federal Register Volume 83, Number 156 (Monday, August 13, 2018)]
[Rules and Regulations]
[Pages 39873-39874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17187]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 83, No. 156 / Monday, August 13, 2018 / Rules
and Regulations
[[Page 39873]]
DEPARTMENT OF ENERGY
10 CFR Part 429
[EERE-2016-BT-TP-0029]
RIN 1904-AD71
Energy Conservation Program: Test Procedures for Central Air
Conditioners and Heat Pumps
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Lifting of administrative stay.
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SUMMARY: On July 3, 2017, the Department of Energy (DOE) issued an
administrative stay postponing the effectiveness of certain provisions
of a final rule, published in the Federal Register on January 5, 2017.
The January 5, 2017 final rule amended the test procedure and certain
certification, compliance, and enforcement provisions for central air
conditioners and heat pumps. Specifically, in issuing the
administrative stay, DOE stayed the effectiveness of two provisions of
the January 5, 2017 final rule that require outdoor unit models be
tested under the outdoor unit with no match procedure if they meet
either of two enumerated conditions. By this action, DOE lifts the
administrative stay of the two provisions.
DATES: As of August 3, 2018, the administrative stay issued under 5
U.S.C. 705, postponing the effectiveness of certain provisions of 10
CFR 429.16(a)(3)(i), was lifted.
FOR FURTHER INFORMATION CONTACT: Mr. Pete Cochran, U.S. Department of
Energy, Office of the General Counsel, 1000 Independence Ave. SW,
Washington, DC 20585-0121. Phone: (202) 586-9496. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On January 5, 2017, DOE published a final rule (January 2017 final
rule) amending the test procedure and certification, compliance, and
enforcement provisions for central air conditioners and heat pumps
(CAC/HP). 82 FR 1426. Among other changes, the January 2017 final rule
added a paragraph at 10 CFR 429.16(a)(3)(i) requiring, among other
things, that central air conditioners and heat pumps be tested under
the outdoor unit with no match provisions if: (1) Any of the
refrigerants approved for use with an outdoor unit model is HCFC-22 or
has a 95[emsp14][deg]F midpoint saturation absolute pressure that is +/
- 18 percent of the 95[emsp14][deg]F saturation absolute pressure for
HCFC-22, or if there are no refrigerants designated as approved for
use; or (2) a model of outdoor unit is not charged with a specified
refrigerant from the point of manufacture or if the unit is shipped
requiring the addition of more than two pounds of refrigerant to meet
the charge required for testing per section 2.2.5 of appendix M or
appendix M1 (unless either (a) the factory charge is equal to or
greater than 70% of the outdoor unit internal volume times the liquid
density of refrigerant at 95[emsp14][deg]F or (b) an A2L refrigerant is
approved for use and listed in the certification report).
The original effective date of the January 2017 final rule was
February 6, 2017. Subsequently, DOE delayed the effective date of the
January 2017 final rule until March 21, 2017 (82 FR 8985), and then
further delayed the effective date until July 5, 2017 (82 FR 14425; 82
FR 15457).
On March 3, 2017, Johnson Controls, Inc. (JCI) filed a petition for
review of the January 2017 final rule in the United States Court of
Appeals for the Seventh Circuit. This litigation is subject to ongoing
mediation. JCI manufactures outdoor units with an approved refrigerant
that has a 95[emsp14][deg]F midpoint saturation absolute pressure that
is +/- 18 percent of the 95[emsp14][deg]F saturation absolute pressure
for HCFC-22. These same models are also shipped requiring the addition
of more than two pounds of refrigerant to meet the charge required for
testing per section 2.2.5 of appendix M or appendix M1, and the factory
charge is not equal to or greater than 70% of the outdoor unit internal
volume times the liquid density of refrigerant at 95[emsp14][deg]F.
Thus, under either of the two provisions that were added at 10 CFR
429.16(a)(3)(i) by the January 2017 final rule, these models would need
to be tested as outdoor units with no match under appendix M or M1.
Also on March 3, 2017, JCI submitted to DOE a petition for a 180-
day extension of the requirement that JCI make efficiency
representations for its GAW Series products in accordance with the two
new provisions of the January 2017 final rule. DOE granted this request
on June 2, 2017.
On April 6, 2017, JCI submitted to DOE a petition for waiver and
application for interim waiver from these two test procedure
provisions. JCI subsequently submitted an amended petition for waiver
and application for interim waiver on June 5, 2018.
On May 31, 2017, JCI requested that DOE grant it an administrative
stay of the above described two provisions pending judicial review of
the January 2017 final rule. On June 6, 2017, JCI requested that DOE
hold its stay request in abeyance, noting that DOE's June 2, 2017 grant
of a 180-day extension of the date by which JCI must comply with the
two provisions specified above obviated the need for an immediate grant
of an administrative stay. Subsequently, on June 29, 2017, Lennox
International Inc. (Lennox), a manufacturer of central air conditioners
and heat pumps, filed a complaint in the U.S. District Court for the
Northern District of Texas challenging DOE's decision to grant the 180-
day extension to JCI.
On July 3, 2017, DOE issued an administrative stay in accordance
with the Administrative Procedure Act (5 U.S.C. 705).\1\ DOE's
determination to issue the stay and postpone the effectiveness of the
two provisions was based on JCI's submissions that raised concerns
about significant potential impacts of the test procedure provisions on
JCI, as well as the desire to ensure that all manufacturers of central
air conditioners and heat pumps would have the same relief granted to
JCI. 82
[[Page 39874]]
FR 32228. On July 17, 2017, following the denial of its request for
stay of the 180-day extension and/or for preliminary injunctive relief,
Lennox voluntarily dismissed its lawsuit.
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\1\ The administrative stay was made publicly available on DOE's
website on July 3, 2017: https://www.energy.gov/sites/prod/files/2017/07/f35/Grant%20of%20Administrative%20Stay%20Concerning%20Test%20Procedure%20For%20Cental%20Air%20Conditioners%20and%20Heat%20Pumps.pdf. The
administrative stay was subsequently published in the Federal
Register on July 13, 2017. 82 FR 32227. On September 14, 2017, the
Natural Resources Defense Council filed a complaint in the U.S.
District Court for the Southern District of New York challenging
DOE's decision to issue the administrative stay.
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Grant of JCI's Application for Interim Waiver
As stated above, JCI submitted initial and amended petitions for
waiver and interim waiver that raise concerns about the equity of the
challenged test procedure provisions. JCI contends that the challenged
test procedure provisions unfairly require central air conditioner
systems that are approved for use with R-407C refrigerant and are
offered as new, matched systems to be tested as outdoor units with no
match. Under the outdoor unit with no match testing provisions, these
systems are treated as replacement outdoor units, regardless of whether
they are sold as new, matched systems or replacement outdoor units, and
are rated using default indoor parameters that approximate the
performance of an old, previously installed indoor unit. As such, JCI
argues that the test procedure is not representative of the energy
consumption of such central air conditioners when installed in the
field as new, matched systems. JCI proposes to evaluate the 1,178
system combinations listed in its amended waiver petition and certified
in DOE's Compliance Certification Management System in a manner that is
representative of the true energy consumption of these products when
installed as new, matched systems, similar to how central air
conditioners that use other refrigerants and are sold both as new,
matched systems and as replacement outdoor units are treated under
DOE's test procedure.
While the administrative stay has been in place, DOE has continued
to evaluate JCI's initial and amended petitions for waiver and interim
waiver. Based on a review of these petitions and JCI's public-facing
materials, it is DOE's current understanding that the basic models
listed in JCI's amended petition, similar to central air conditioners
that use other refrigerants, are offered as both matched, new systems
and as replacement outdoor units for existing systems. As a result, DOE
determined that JCI's amended petition for waiver would likely be
granted and issued a decision granting JCI an interim waiver subject to
certain conditions.
Lifting of the Administrative Stay
In issuing the administrative stay, DOE determined that it was in
the interest of justice to do so based on two concerns: (1) The
potential for significant economic impacts for JCI resulting from a
possibly unrepresentative test procedure; and (2) the desire to
maintain a level playing field for all central air conditioner
manufacturers. The issuance of the interim waiver removes the first
concern and subjects the final determination on the waiver request to
the administrative process, including a notice-and-comment period, in
DOE's waiver regulations at 10 CFR 430.27. Further, even if DOE
ultimately denies JCI's amended waiver petition, an administrative stay
would still no longer be needed as DOE would have determined that the
results of the test procedure issued in the January 2017 final rule
accurately represent the energy use of JCI's products.\2\ In that case,
there would be no concern about possible significant economic impacts
to JCI resulting from an unrepresentative test procedure.
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\2\ DOE will grant a waiver from the test procedure requirements
if the prescribed test procedures evaluate the basic model in a
manner so unrepresentative of its true energy or water consumption
characteristics as to provide materially inaccurate comparative
data. 10 CFR 430.27(f)(2). JCI argues that the test procedure
provisions in question result in materially inaccurate comparative
data for the basic models listed in its amended petition.
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The waiver petition process also addresses the second concern as
any manufacturer of a similar product may also submit a waiver
petition. In fact, if DOE ultimately grants JCI's amended waiver
petition, a manufacturer of a similar product would be required to
submit a petition for waiver under DOE's regulations. 10 CFR 430.27(j).
Further, DOE has determined that the waiver petition process is a
better, more tailored approach to ensuring a level playing field as
manufacturers are required to propose alternative test procedures to
the test procedure from which the waiver is sought, which are then
subject to potential modification and approval by DOE. 10 CFR
430.27(b)(1)(iii). Because DOE explicitly approves alternative test
procedures, there is no possibility of uncertainty regarding how a
product subject to a waiver should be tested. This also allows DOE to
ensure that manufacturers of similar products are making energy
efficiency representations using the same alternative test procedure,
which is essential for maintaining integrity in a market.
Based on the foregoing reasons, DOE lifts the administrative stay
issued on July 3, 2017.
Signed in Washington, DC, on August 3, 2018.
Stephen C. Skubel,
Assistant General Counsel for Litigation.
[FR Doc. 2018-17187 Filed 8-10-18; 8:45 am]
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