[Federal Register Volume 78, Number 48 (Tuesday, March 12, 2013)]
[Proposed Rules]
[Pages 15653-15655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05615]



10 CFR Part 429

Notice of Intent To Form the Commercial HVAC, WH, and 
Refrigeration Certification Working Group and Solicit Nominations To 
Negotiate Commercial Certification Requirements for Commercial HVAC, 
WH, and Refrigeration Equipment

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

ACTION: Notice of intent.


SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
giving notice that the Appliance Standards and Rulemaking Federal 
Advisory Committee (ASRAC) intends to establish a working group in 
accordance with the Federal Advisory Committee Act (FACA) and the 
Negotiated Rulemaking Act (NRA) to negotiate certification requirements 
of commercial heating, ventilation, and air-conditioning (HVAC), water 
heating (WH), and refrigeration equipment. The purpose of the working 
group will be to discuss and, if possible, reach consensus on proposed 
certification requirements for commercial HVAC, WH, and refrigeration 
equipment, as authorized by the Energy Policy and Conservation Act of 
1975, as amended. The working group members will be representatives of 
parties having a defined stake in the outcome of the proposed 
certification requirements, and will consult with a range of experts on 
technical issues.

DATES: Nominations of membership must be received on or before March 
26, 2013. DOE will not consider any nominations received via mail or 
after midnight on March 26, 2013 to be valid.

ADDRESSES: The nominee's name, resume, biography, and any letters of 
support must be submitted in electronic format via email to 
[email protected]. Any requests for further information should also be 
sent via email to [email protected].

Federal Officer, U.S. Department of Energy (DOE), Office of Energy 
Efficiency and Renewable Energy, 950 L'Enfant Plaza, SW., Washington, 
DC 20024. Email: [email protected].


I. Authority
II. Background
III. Proposed Negotiating Procedures
IV. Nominations Requested
V. Approval of the Office of the Secretary

I. Authority

    Title III of the Energy Policy and Conservation Act of 1975, as 
amended (``EPCA'' or ``the Act'') sets forth a variety of provisions 
designed to improve energy efficiency. Part A of Title III (42 U.S.C. 
6291-6309) provides for the Energy Conservation Program for Consumer 
Products Other Than Automobiles. The National Energy Conservation 
Policy Act (NECPA), Public Law 95-619, amended EPCA to add Part A-1 of 
Title III, which established an energy conservation program for certain 
industrial equipment. (42 U.S.C. 6311-6317) Sections 6299-6305, and 
6316 of EPCA authorize DOE to enforce compliance with the energy and 
water conservation standards (all non-product specific references 
herein referring to energy use and consumption include water use and 
consumption; all references to energy efficiency include water 
efficiency) established for certain consumer products and commercial 
equipment. (42 U.S.C. 6299-6305 (consumer products), 6316 (commercial 
equipment)) DOE has promulgated enforcement regulations that include 
specific certification and compliance requirements. See 10 CFR part 
429; 10 CFR part 431, subparts B, U, and V.
    This notice announces DOE's and the ASRAC's intent to negotiate 
certification requirements of commercial heating, ventilation, and air-
conditioning (HVAC), water heating (WH), and refrigeration equipment 
under the authority of sections 563 and 564 of the NRA (5 U.S.C. 561-
570, Pub. L. 104-320).

II. Background

    On March 7, 2011, DOE published a final rule in the Federal 
Register that, among other things, modified the requirements regarding 
manufacturer submission of compliance statements and certification 
reports to DOE (March 2011 Final Rule). 76 FR 12421. This rule, among 
other things, imposed new or revised reporting requirements for some 
types of covered products and equipment, including a requirement that 
manufacturers submit annual reports to the Department certifying 
compliance of their basic models with applicable standards. In issuing 
the rule, the Department emphasized that manufacturers could use their 
discretion in grouping individual models as a ``basic model'' such that 
the certified rating for the basic model matched the represented rating 
for all included models. See 76 FR 12428-12429 for more information.
    In response to the initial deadline for certifying compliance 
imposed on commercial HVAC, WH, and refrigeration equipment 
manufacturers by the March 2011 Final Rule, certain manufacturers of 
particular types of commercial and industrial equipment stated that, 
for a variety of reasons, they would be unable to meet that deadline. 
DOE initially extended the deadline for certifications for commercial 
HVAC, WH, and refrigeration equipment in a final rule published June 
30, 2011 (June 30 Final Rule). 76 FR 38287 (June 30, 2011). DOE 
subsequently extended the compliance date for certification an 
additional 12 months to December 31, 2013, for these types of equipment 
(December 2012 final rule) to allow, among other things, the Department 
to explore the negotiated rulemaking process for this equipment. 77 FR 
    In the summer of 2012, DOE had an independent convenor evaluate the 
likelihood of success, analyzing the feasibility of developing 
certification requirements for commercial HVAC, WH, and refrigeration 
equipment (not including walk-in coolers and freezers) through 
consensus-based negotiations among affected parties. October 2012, the 
convenor issued his report based on a confidential interview process 
involving forty (40) parties. from a wide range of commercial HVAC, WH, 
and CRE interests. Ultimately, the convener recommended that with the 
proper scope of issues on the table surrounding

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commercial HVAC, WH, and CRE certification, a negotiated rulemaking 
appears to have a good likelihood of achieving consensus based on the 
factors set forth in the Negotiated Rulemaking Act because the 
interviewed parties believe the negotiated rulemaking is superior to 
notice and comment rulemaking for the certification-related issues. 
Additional details of the report can be found at https://www1.eere.energy.gov/buildings/appliance_standards/pdfs/convening_report_hvac_cre_1.pdf.

III. Proposed Negotiating Procedures

A. Key Issues for Negotiation

    DOE has identified the following substantive issues that will 
underlie the work of the Commercial HVAC, WH, and Refrigeration 
Certification Working Group:
     Strategies for grouping models for purposes of 
     Identification of non-efficiency attributes, which do not 
impact the measured consumption of the equipment as tested by DOE's 
test procedure;
     The information that is certified to the Department;
     The timing of when the certification should be made 
relative to distribution in commerce; and
     Alterations to a basic model that would impact the 
    The formed working group will examine the underlying issues 
outlined above, and possibly others not yet articulated as determined 
through the negotiated rulemaking process. As voted on by ASRAC, the 
working group will be required to provide a progress report to ASRAC on 
its efforts by Wednesday, June 26, 2013, and report back to the 
Committee with final recommendations by Friday, August 30, 2013.

B. Formation of Working Group

    A working group will be formed and operated in full compliance with 
the requirements of FACA and in a manner consistent with the 
requirements of the NRA. In accordance with NRA, DOE has determined 
that the working group not exceed 25 members. DOE is aware that there 
are many more potential participants than there are membership slots on 
the working group. The Department does not believe, nor does the NRA 
contemplate, that each potentially affected group must participate 
directly in the negotiations; nevertheless, each affected interest can 
be adequately represented. To have a successful negotiation, it is 
important for interested parties to identify and form coalitions that 
adequately represent significantly affected interests. To provide 
adequate representation, those coalitions must agree to support, both 
financially and technically, a member of the working group whom they 
choose to represent their interests. FACA also requires that members of 
the public have the opportunity to attend meetings of the full 
committee and speak or otherwise address the committee during the 
public comment period. In addition, any member of the public is 
permitted to file a written statement with the advisory committee. DOE 
plans to follow these same procedures in conducting meetings of the 
working group.

C. Interests Involved/Working Group Membership

    DOE anticipates that the working group will comprise no more than 
25 members who represent affected and interested stakeholder groups, 
two of whom will be members of ASRAC--John Mandyck and Kent Peterson. 
Additionally, in accordance with NRA, one seat on the working group 
will be reserved for a DOE representative to represent the views of the 
Department. As required by FACA, the Department will conduct the 
negotiated rulemaking with particular attention to ensuring full and 
balanced representation of those interests that may be significantly 
affected by certification requirements of commercial HVAC, WH, and 
refrigeration equipment.
    Members may be individuals or organizations. If the effort is to be 
fruitful, participants on the working group should be able to fully and 
adequately represent the viewpoints of their respective interests. This 
document gives notice of DOE's process to other potential participants 
and affords them the opportunity to request representation in the 
negotiations. Those who wish to be appointed as members of the working 
group, including those that have been tentatively identified by DOE in 
this notice of intent, should submit a request to DOE, in accordance 
with the public participation procedures outlined in the DATES and 
ADDRESSES sections of this notice of intent. Membership of the working 
group is likely to involve:
     Attendance of multiple, one (1) to two (2) day meetings;
     Travel costs to those meetings; and
     Preparation time for those meetings.
    Members serving on the working group will not receive compensation 
for their services. Interested parties who are not selected for 
membership on the working group may make valuable contributions to this 
negotiated rulemaking effort in any of several ways:
     The person may request to be placed on the working group 
mailing list and submit written comments as appropriate.
     The person may attend working group meetings, which are 
open to the public; caucus with his or her interest's member on the 
working group; or even address the working group during the public 
comment portion of the working group meeting.
     The person could assist the efforts of a task force that 
the working group might establish.
    A working group may establish informal task forces, which usually 
are asked to facilitate committee deliberations by assisting with 
various technical matters (e.g., researching or preparing summaries of 
the technical literature or comments on specific matters such as 
economic issues). Task forces also might assist in estimating costs or 
drafting regulatory text on issues associated with the analysis of the 
costs and benefits addressed, or formulating drafts of the various 
provisions and their justifications as previously developed by the 
working group. Given their support function, task forces usually 
consist of participants who have expertise or particular interest in 
the technical matter(s) being studied. Because it recognizes the 
importance of this support work for the working group, DOE will provide 
appropriate technical expertise for such task forces.

D. Good Faith Negotiation

    Every working group member must be willing to negotiate in good 
faith and have the authority, granted by his or her constituency, to do 
so. The first step is to ensure that each member has good 
communications with his or her constituencies. An intra-interest 
network of communication should be established to bring information 
from the support organization to the member at the table, and to take 
information from the table back to the support organization. Second, 
each organization or coalition therefore should designate as its 
representative a person having the credibility and authority to ensure 
that needed information is provided and decisions are made in a timely 
fashion. Negotiated rulemaking can require the appointed members to 
give a significant amount of time, which must be sustained for as long 
as the duration of the negotiated rulemaking. Other qualities of 
members that can be helpful are negotiating experience and skills, and 
sufficient technical knowledge to participate in substantive 
    Certain concepts are central to negotiating in good faith. One is 

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willingness to bring all issues to the bargaining table in an attempt 
to reach a consensus, as opposed to keeping key issues in reserve. The 
second is a willingness to keep the issues at the table and not take 
them to other forums. Finally, good faith includes a willingness to 
move away from some of the positions often taken in a more traditional 
rulemaking process, and instead explore openly with other parties all 
ideas that may emerge from the working group's discussions.

E. Facilitator

    The facilitator will act as a neutral in the substantive 
development of the proposed standard. The facilitator's role generally 
     Impartially assisting the members of the working group in 
conducting discussions and negotiations; and
     Impartially assisting in performing the duties of the 
Designated Federal Official under FACA.

F. Department Representative

    The DOE representative will be a full and active participant in the 
consensus-building negotiations. The Department's representative will 
meet regularly with senior Department officials, briefing them on the 
negotiations and receiving their suggestions and advice so that he or 
she can effectively represent the Department's views regarding the 
issues before the working group. DOE's representative also will ensure 
that the entire spectrum of governmental interests affected by the 
rulemaking, including the Office of Management and Budget, the Attorney 
General, and other Departmental offices, are kept informed of the 
negotiations and encouraged to make their concerns known in a timely 

G. Working Group and Schedule

    After evaluating the comments submitted in response to this notice 
of intent and the requests for nominations, DOE will inform the members 
of the working group that they have been selected. DOE and ASRAC plan 
for the working group to have its first meeting in April 2013 and have 
determined a need for an update from the working group on negotiation 
efforts by Wednesday, June 26, 2013, and final recommendations to ASRAC 
by Friday, August 30, 2013.
    At the initial working group meeting, DOE and ASRAC representatives 
on the working group will advise working group members of 
administrative matters related to the functions of the working group, 
lay out the working group's scope, and confirm deadlines. Given the 
outlined scope and established deadlines, the working group will 
develop a work plan to accomplish the proposed objectives. While the 
negotiated rulemaking process is underway, DOE is committed to 
performing much of the same analysis as it would during a normal 
process and to providing information and technical support to the 
working group.

IV. Nominations Requested

    DOE requests nominations of which parties should be included in a 
negotiation efforts of certification requirements of commercial HVAC, 
WH, and refrigeration equipment and suggestions of additional interests 
and/or stakeholders that should be represented on the working group. 
Please include the nominee's name, contact information, resume, 
biography, and any letters of support. Nominations must be submitted in 
electronic format via email to [email protected].

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's notice 
of proposed rulemaking.

    Issued in Washington, DC, on March 5, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency and Renewable Energy.
[FR Doc. 2013-05615 Filed 3-11-13; 8:45 am]