[Federal Register Volume 69, Number 158 (Tuesday, August 17, 2004)]
[Rules and Regulations]
[Pages 50997-51001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18533]
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DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
10 CFR Part 430
[Docket Number EE-RM-98-440]
RIN 1904-AB46
Energy Conservation Program for Consumer Products; Central Air
Conditioners and Heat Pumps Energy Conservation Standards
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rule; technical amendment.
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SUMMARY: The Department of Energy (DOE) is revising the Code of Federal
Regulations to incorporate certain energy conservation standards that
will apply to residential central air conditioners and central air
conditioning heat pumps beginning on January 23, 2006. More
specifically, this technical amendment replaces standard levels
currently in the Code of Federal Regulations, which were established by
a final rule published by DOE on May 23, 2002, with standard levels
that were set forth in a final rule published by DOE on January 22,
2001. As explained in the Supplementary Information section of this
notice, the U.S. Court of Appeals for the Second Circuit has ruled that
DOE's withdrawal of the rule published on January 22, 2001, was
unlawful, and, therefore, that certain standards promulgated in the May
23, 2002, final rule are invalid. DOE has decided not to seek further
review of that ruling. Consequently, DOE is now revising its
regulations consistent with the court's ruling.
EFFECTIVE DATE: February 21, 2001.
ADDRESSES: For access to the docket to read background documents or
comments received, go to http://www.eere.energy.gov/buildings/appliance_standards/residential/ac_central.html and/or visit the U.S.
Department of Energy, Forrestal Building, Room 1J-018 (Resource Room of
the Building Technologies Program), 1000 Independence Avenue, SW.,
Washington, DC, (202) 586-9127, between 9 a.m. and 4 p.m., Monday
through Friday, except Federal holidays. Please call Ms. Brenda
Edwards-Jones at the above telephone number for additional information
regarding visiting the Resource Room. Please note: The Department's
Freedom of Information Reading Room (formerly Room 1E-190 at the
Forrestal Building) is no longer housing rulemaking materials.
FOR FURTHER INFORMATION CONTACT: Michael Raymond, Project Manager,
Energy Conservation Standards for Central Air Conditioners and Heat
Pumps, Docket No. EERM-440, EE-2J/Forrestal Building, U.S. Department
of Energy, Office of Building Technologies, EE-2J, 1000 Independence
Avenue, SW., Washington, DC 20585-0121, (202) 586-9611. E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The National Appliance Energy Conservation Act of 1987 (NAECA)
(Pub. L. 100-12) established energy efficiency standards for various
consumer products, including residential central air conditioners, and
directed DOE to undertake periodic rulemakings to decide whether to
amend those standards. NAECA also amended the Energy Policy and
Conservation Act (EPCA) to provide, in section 325(o)(1), that when DOE
reviews efficiency standards, it ``may not prescribe any amended
standard which increases the maximum allowable energy use * * * or
decreases the minimum required energy efficiency'' of a covered product
(42 U.S.C. 6295(o)(1)).
On January 22, 2001, DOE published a rule in the Federal Register
amending the efficiency standard for central air conditioners
established by NAECA by increasing the standard from 10 to 13 SEER
(``seasonal energy efficiency ratio''), a 30% increase in energy
efficiency. 66 FR 7170. The rule stated it would become effective on
February 21, 2001, but manufacturers' products would not have to meet
the 13 SEER standard until January 23, 2006. On January 24, 2001, the
President's Chief of Staff issued a memorandum asking Executive Branch
agencies to review ongoing rulemaking proceedings and to postpone the
effective dates of any new regulations already published in the Federal
Register but not yet effective, pending completion of such review. DOE
accordingly issued a rule delaying the effective date of the central
air conditioner rule published on January 22, 2001, in order to conduct
that review. 66 FR 8745. DOE also received a petition from the Air-
Conditioning and Refrigeration Institute (ARI), an association of air
conditioner manufacturers, asking DOE to reconsider the 13 SEER
standard. On May 23, 2002, DOE withdrew the 13 SEER rule and
promulgated a new rule establishing a 12 SEER efficiency standard, a
20% increase in energy efficiency. 67 FR 36368.
The Natural Resources Defense Council (NRDC) and various public
interest groups, joined by several state Attorneys General, filed suit
in federal district court, and alternatively in the U.S. Court of
Appeals for the Second Circuit, challenging DOE's withdrawal of the 13
SEER rule and promulgation of the 12 SEER standard. Among other things,
they alleged that section 325(o)(1) of EPCA precluded DOE from adopting
the 12 SEER rule.
On January 13, 2004, the U.S. Court of Appeals for the Second
Circuit decided that once DOE published the 13 SEER rule for central
air conditioners in the Federal Register, DOE was precluded from
subsequently adopting a lower standard for those products. Thus, DOE's
actions of withdrawing the 13 SEER standard and promulgating the 12
SEER standard violated section 325(o)(1). Natural Resources Defense
[[Page 50998]]
Council, et al. v. Abraham, 355 F.3d 179 (2nd Cir. 2004). The court's
written opinion disclaimed any intent to affect a challenge to the 13
SEER standard that ARI and certain manufacturers had filed in the U.S.
Court of Appeals for the Fourth Circuit. Nonetheless, ARI and the
manufacturers who joined it in the Fourth Circuit lawsuit subsequently
withdrew their challenge to the 13 SEER rule, citing the need for
regulatory certainty.
On April 2, 2004, DOE publicly announced that, in the interest of
giving all affected persons regulatory certainty, DOE would not appeal
or seek further review of the ruling of the U.S. Court of Appeals for
the Second Circuit. As a result, the 13 SEER standard will apply to
covered conventional central air conditioners and central air
conditioning heat pumps manufactured on or after January 23, 2006.
Today's technical amendment places those standards in the Code of
Federal Regulations.
II. Summary of Today's Action
DOE is revising the energy conservation standards for split system
and single package central air conditioners and central air
conditioning heat pumps in 10 CFR 430.32(c)(2). The standards currently
set forth in the Code of Federal Regulations are 12 SEER for split
system and single package air conditioners, and 12 SEER, 7.4 HSPF
(``heating system performance factor'') for split system and single
package heat pumps. DOE is replacing these standards with the following
standards established in the January 22, 2001 final rule: 13 SEER for
split system and single package air conditioners, and 13 SEER, 7.7 HSPF
for split system and single package heat pumps.
The January 22, 2001, final rule also established a separate
product class of ``space constrained products,'' but it did not
establish amended standard levels for those products. DOE explained in
the preamble to the January 22, 2001, final rule that it was concerned
that air conditioners and heat pumps intended to serve applications
with severe space constraints would have difficulty in meeting the 13
SEER standard. 66 FR 7196. Therefore, DOE established a separate
product class for space constrained products and reserved setting
standard levels for that class pending completion of later rulemaking
proceedings. Subsequently, in the rulemaking culminating in the May 23,
2002, final rule, DOE determined that 12 SEER was the appropriate
standard level for all space constrained products except those with
through-the-wall condensers, and the final rule established lower
standards for through-the-wall products. 67 FR 36402-03, 36406. The
standards established for space constrained products in the May 23,
2002, final rule are unaffected by the January 13, 2004, ruling of the
U.S. Court of Appeals for the Second Circuit because the January 22,
2001, final rule set no standards for these products and, thus, section
325(o)(1) of EPCA does not affect the validity of the standards for
these products that were published on May 23, 2002.
The May 23, 2002, final rule set forth a compliance date of January
23, 2006, for all of the efficiency standards promulgated in that rule,
including the standards for space-constrained products. This is the
same compliance date set forth in the January 22, 2001, final rule for
the standards promulgated in that rule. The May 23, 2002, rule's
preamble discussed why DOE was adopting the January 23, 2006,
compliance date. 67 FR 36394. DOE recognized that by adopting that
date, the time between publication of the May 23, 2002 rule and the
compliance date would be less than the five-year interval provided in
the statute (42 U.S.C. 6295(d)(3)(A)). DOE explained that when it
cannot meet a statutory deadline to promulgate a rule (as was the case
with the products covered by the January 22, 2001, and May 23, 2002,
final rules), it generally will adjust the date such rule becomes
enforceable to allow for the same amount of lead time as provided in
the statute, but that in special circumstances DOE will not follow that
practice. DOE stated it would set the effective date for the standards
adopted in the May 23, 2002, final rule at less than five years from
the date of publication because all of the participants in the
rulemaking, including representatives of the manufacturers who would
have to comply with the standards and who had expressed a view about
the matter, had agreed that five years of lead time was not needed for
central air conditioner manufacturers to come into compliance with the
standards adopted in the May 23, 2002, final rule. DOE stated, however,
that if, as a result of unforeseen circumstances, a particular
manufacturer could show hardship, inequity, or unfair distribution of
burdens, the effective date would be subject to case-by-case exception
pursuant to the authority of the DOE Office of Hearings and Appeals
under section 504 of the Department of Energy Organization Act (42
U.S.C. 7194), as implemented at subpart B of 10 CFR part 1003.
DOE is today adding to Sec. 430.2 the definition of ``space
constrained product'' that was contained in the January 22, 2001, final
rule and adding the following standard levels set in the May 23, 2002,
final rule: 12 SEER for space constrained air conditioners, and 12
SEER, 7.4 HSPF for space constrained heat pumps. The standards for
through-the-wall air conditioners and heat pumps, which fall within the
definition of ``space constrained product,'' were set in the May 23,
2002, final rule, and are: 10.9 SEER, 7.1 HSPF for split systems and
10.6 SEER, 7.0 HSPF for single package systems. The definition of
``through-the-wall air conditioner and heat pump'' in Sec. 430.2
provides that this product class exists only for products manufactured
prior to January 23, 2010. After that date, the standards for space
constrained products will apply to these through-the-wall air
conditioners and heat pumps.
The January 22, 2001, final rule did not establish a separate
product class for covered central air conditioners that are small duct,
high velocity systems, and the rule did not establish separate
standards for them; nor are these products ``space constrained
products'' (see discussion at 66 FR 7197). Therefore, small duct, high
velocity systems are covered by the 13 SEER standard. However, in the
May 23, 2002, notice of final rulemaking, DOE explained that
information obtained in the rulemaking proceeding indicated that the
special characteristics of small duct, high velocity systems made it
unlikely such systems could even meet the 12 SEER/7.4 HSPF standard
established for conventional products. 67 FR 36396. As a result, DOE
included the NAECA-prescribed values for small duct, high velocity
systems in the Code of Federal Regulations pending a later rulemaking
to establish appropriate standards for that product class. Because the
Second Circuit's ruling prevents DOE from adopting a standard lower
than 13 SEER for small duct, high velocity systems, despite DOE's later
conclusion that it is unlikely such systems can meet even the lower 12
SEER standard, DOE has advised the two manufacturers of these systems
of the procedure available to affected persons under section 504 of the
Department of Energy Organization Act (42 U.S.C. 7194), which allows
them to request relief from hardship or inequity caused by a regulation
issued under EPCA.
Lastly, DOE is revising Sec. 430.2 to remove several definitions
that were included to implement DOE's interpretation of section
325(o)(1) of EPCA contained in the preamble of the May 23, 2002, final
rule. Because its
[[Page 50999]]
interpretation has been rejected by the U.S. Court of Appeals for the
Second Circuit, DOE is removing the definitions of ``effective date,''
``maximum allowable energy use,'' ``maximum allowable water use,'' and
``minimum required energy efficiency.''
III. Procedural Requirements
A. Public Comment
Section 553 of the Administrative Procedure Act (5 U.S.C. 553)
generally requires agencies to provide notice and an opportunity for
public comment on substantive rules. The requirement does not apply,
however, if the agency determines that notice and opportunity for
public comment is ``impracticable, unnecessary, or contrary to the
public interest.'' DOE finds that good cause exists for dispensing with
notice and opportunity for public comment in issuing today's rule
because those procedures are unnecessary where, as here, the agency has
no discretion in fashioning its rule. Today's final rule simply
conforms the Code of Federal Regulations to the order of the U.S. Court
of Appeals for the Second Circuit, and DOE has no discretion to deviate
from the court's ruling. For this reason, DOE has characterized today's
rule as a ``technical amendment'' in the Action line at the beginning
of this notice of final rulemaking.
B. Review Under Executive Order 12866
The Office of Information and Regulatory Affairs of the Office of
Management and Budget (OMB) has determined that today's regulatory
action is a ``significant regulatory action'' under Executive Order
12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4,
1993). Accordingly, DOE submitted today's notice to OMB for clearance
under the Executive Order. OMB has completed its review.
C. 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 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 Executive Order 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 General Counsel's
Web site: http://www.gc.doe.gov. DOE today is simply revising the Code
of Federal Regulations to comply with the order of the U.S. Court of
Appeals for the Second Circuit. Because the energy conservation
standards in this rule were established in prior final rules that have
taken effect, today's rule does not establish any new requirements for
any entity. On this basis, DOE certifies that this final rule will not
have a significant economic impact on a substantial number of small
entities.
D. Review Under the Paperwork Reduction Act
This rulemaking will impose no new information or recordkeeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
E. Review Under the National Environmental Policy Act
DOE has determined that this rule falls into a class of actions
that are categorically excluded from review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the
Department's implementing regulations at 10 CFR part 1021. This rule is
a technical amendment that reinstates, pursuant to court order, amended
energy conservation standards for central air conditioners and heat
pumps that were published in the Federal Register on January 22, 2001.
DOE has therefore determined that this rule is covered by the
Categorical Exclusion in paragraph A6 to subpart D, 10 CFR part 1021,
which applies to rulemakings that are strictly procedural. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on 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
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 today's
final rule and has determined that it does 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. State
regulations that may have existed on the products that are the subject
of today's final rule were preempted by the Federal standards
established in NAECA. States can petition DOE for exemption from such
preemption to the extent, and based on criteria, set forth in EPCA. No
further action is required by Executive Order 13132.
G. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform'' (61 FR 4729, February 7, 1996), 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; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 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 rule meets the relevant standards of
Executive Order 12988.
[[Page 51000]]
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and tribal governments and the
private sector. With respect to a proposed regulatory action that may
result in the expenditure by State, local and tribal governments, in
the aggregate, or by the private sector of $100 million or more
(adjusted annually for inflation), section 202 of the Act requires a
Federal agency to publish estimates of the resulting costs, benefits,
and other effects on the national economy (2 U.S.C. 1532(a),(b)). The
Act 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 small governments. On March 18, 1997, DOE published a statement
of policy on its process for intergovernmental consultation under the
Act (62 FR 12820) (also available at http://www.gc.doe.gov). The rule
published today does not contain any Federal mandate; it only
incorporates into the Code of Federal Regulations standards set forth
in rules promulgated in 2001 and 2002.
I. 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 rule 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.
J. Review Under Executive Order 12630
DOE has determined pursuant to Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 53 FR 8859 (March 18, 1988), that this regulation
would not result in any takings which might require compensation under
the Fifth Amendment to the United States Constitution.
K. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's final rule under the OMB and DOE guidelines and has concluded
that it is consistent with applicable policies in those guidelines.
L. Review Under Executive Order 13211
Executive Order 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
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgated 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 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 proposed
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.
Today's regulatory action would not have a significant adverse effect
on the supply, distribution, or use of energy and, therefore, is not a
significant energy action. Accordingly, DOE has not prepared a
Statement of Energy Effects.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of today's rule prior to its effective date. The report
will state that it has been determined that the rule is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
N. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's rule.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Energy conservation,
Household appliances.
Issued in Washington, DC, on August 4, 2004.
David K. Garman,
Assistant Secretary, Energy Efficiency and Renewable Energy.
0
For the reasons set forth in the preamble, Part 430 of Chapter II of
Title 10, Code of Federal Regulations, is amended as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
0
1. The authority citation for part 430 continues to read as follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
0
2. Section 430.2 is amended by:
0
a. Removing the definitions for ``effective date,'' ``maximum allowable
energy use,'' ``maximum allowable water use,'' and ``minimum required
energy efficiency''; and
0
b. Adding a definition of ``space constrained product'' in alphabetical
order to read as follows:
Sec. 430.2 Definitions.
* * * * *
Space constrained product means a central air conditioner or heat
pump:
(1) That has rated cooling capacities no greater than 30,000 BTU/
hr;
(2) That has an outdoor or indoor unit having at least two overall
exterior dimensions or an overall displacement that:
(i) Is substantially smaller than those of other units that are:
(A) Currently usually installed in site-built single family homes;
and
(B) Of a similar cooling, and, if a heat pump, heating capacity;
and
(ii) If increased, would certainly result in a considerable
increase in the usual cost of installation or would certainly result in
a significant loss in the utility of the product to the consumer; and
(3) Of a product type that was available for purchase in the United
States as of December 1, 2000.
* * * * *
0
3. Section 430.32 of subpart C is amended by revising paragraph (c)(2)
to read as follows:
Sec. 430.32 Energy and water conservation standards and effective
dates.
* * * * *
(c) * * *
(2) Central air conditioners and central air conditioning heat
pumps manufactured on or after January 23,
[[Page 51001]]
2006, shall have Seasonal Energy Efficiency Ratio and Heating Seasonal
Performance Factor no less than:
------------------------------------------------------------------------
Seasonal Heating
energy seasonal
Product class efficiency performance
ratio (SEER) factor (HSPF)
------------------------------------------------------------------------
(i) Split system air conditioners...... 13 ..............
(ii) Split system heat pumps........... 13 7.7
(iii) Single package air conditioners.. 13 ..............
(iv) Single package heat pumps......... 13 7.7
(v)(A) Through-the-wall air 10.9 7.1
conditioners and heat pumps-split
system \1\............................
(v)(B) Through-the-wall air 10.6 7.0
conditioners and heat pumps-single
package \1\...........................
(vi) Small duct, high velocity systems. 13 7.7
(vii)(A) Space constrained products-air 12 ..............
conditioners..........................
(vii)(B) Space constrained products- 12 7.4
heat pumps............................
------------------------------------------------------------------------
\1\ As defined in Sec. 430.2, this product class applies to products
manufactured prior to January 23, 2010.
* * * * *
[FR Doc. 04-18533 Filed 8-16-04; 8:45 am]
BILLING CODE 6450-01-P