Federal Register / Vol. 79, No. 211 / Friday, October 31, 2014 / Proposed Rules 64705 

1This part was originally titled Part B. It was 

redesignated Part A in the United States Code for 

editorial reasons. 

2All references to EPCA in this document refer 

to the statute, as amended through the American 

Energy Manufacturing Technical Corrections Act 

(AEMTCA), Public Law 112–210 (Dec. 18, 2012). 

3 DOE must issue simultaneously a notice of 

proposed rulemaking (NOPR) identical to the DFR. 

(42 U.S.C. 6295(p)) 

* * * * * 

[FR Doc. 2014–25935 Filed 10–30–14; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No. EERE–2014–BT–STD–0049] 

RIN 1904–AD38 

Energy Conservation Program: 

Procedures, Interpretations, and 

Policies for Consideration of New or 

Revised Energy Conservation 

Standards for Consumer Products 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, DOE. 

ACTION: Request for information (RFI). 

SUMMARY: Through this RFI, the U.S. 

Department of Energy (DOE) is 

commencing a notice-and-comment 

rulemaking to consider amending its 

‘‘Process Improvement Rule,’’ with 

specific focus to clarify its process 

related to the promulgation of direct 

final rules (DFRs). The issues for 

discussion and public comment in this 

RFI include those raised in recent 

litigation concerning energy 

conservation standards for gas furnaces, 

central air conditioners and heat pumps, 

which has since been settled. 

DATES: DOE will accept comments, data, 

and information responding to this RFI 

submitted no later than December 30, 

2014. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments, identified by docket 

number EERE–2014–BT–STD–0049 or 

regulatory information number (RIN) 

1904–AD38, by any of the following 

methods. 

1. Email: 

ConsumerProducts2014STD0049@

ee.doe.gov. Include the RIN (1904– 

AD38) in the subject line of the message. 

Submit electronic comments in 

WordPerfect, Microsoft Word, PDF, or 

ASCII file format, and avoid the use of 

special characters or any form of 

encryption. 

2. Postal Mail: Ms. Brenda Edwards, 

U.S. Department of Energy, Building 

Technologies Office, Mailstop EE–5B, 

1000 Independence Avenue SW., 

Washington, DC 20585–0121. If 

possible, please submit all items on a 

compact disk (CD), in which case it is 

not necessary to include printed copies. 

3. Hand Delivery/Courier: Ms. Brenda 

Edwards, U.S. Department of Energy, 

Building Technologies Office, 950 

L’Enfant Plaza SW., Suite 600, 

Washington, DC 20024. Phone: (202) 

586–2945. If possible, please submit all 

items on a CD, in which case it is not 

necessary to include printed copies. 

Instructions: All submissions received 

must include the agency name and 

docket number and/or RIN for this 

rulemaking. No facsimiles (faxes) will 

be accepted. 

Docket: A link to the docket Web page 

can be found at: http://

www.regulations.gov/

#!docketDetail;D=EERE-2014-BT-STD0049. This Web page contains a link to 

the docket for this rulemaking on the 

www.regulations.gov site. The 

www.regulations.gov Web page will 

contain instructions on how to access 

all documents, including public 

comments, in the docket. 

FOR FURTHER INFORMATION CONTACT: 

Mr. John Cymbalsky, U.S. Department of 

Energy, Office of Energy Efficiency 

and Renewable Energy, Building 

Technologies Office, EE–5B, 1000 

Independence Ave. SW., Washington, 

DC 20585–0121. Telephone: (202) 

287–1692. Email: John.Cymbalsky@

ee.doe.gov. 

Ms. Johanna Hariharan, U.S. 

Department of Energy, Office of the 

General Counsel, GC–71, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 287–6307. Email: 

Johanna.Hariharan@hq.doe.gov. 

For further information on how to 

submit a comment and review other 

public comments, contact Ms. Brenda 

Edwards at (202) 586–2945 or by email: 

Brenda.Edwards@ee.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Authority and Background 

II. Issues on Which DOE Seeks Comment and 

Information 

A. Interested Persons 

B. Adverse Comments 

C. Recommended Standard 

III. Public Participation 

Appendix A: Material Submitted by Entities 

Participating in Litigation 

A. HARDI Letter (October 9, 2014) 

B. AHRI Letter (October 10, 2014) 

C. ACCA Letter (October 10, 2014) 

I. Authority and Background 

The Department of Energy’s appliance 

standard program is conducted pursuant 

to Title III, Part B1 of the Energy Policy 

and Conservation Act of 1975 (Pub. L. 

94–163, 42 U.S.C. 6291, et seq. 

‘‘EPCA’’). Under EPCA,2 the energy 

conservation program consists 

essentially of four parts: (1) Testing, (2) 

labeling, (3) Federal energy conservation 

standards, and (4) certification and 

enforcement procedures. In 1987, EPCA 

was amended to establish by law 

national efficiency standards for certain 

appliances and a schedule for DOE to 

conduct rulemakings to periodically 

review and update these standards. 

National Appliance Energy 

Conservation Act, Pub. L. 100–12 

(1987). The standards must be designed 

to ‘‘achieve the maximum improvement 

in energy efficiency which the Secretary 

determines is technologically feasible 

and economically justified.’’ (42 U.S.C. 

6295(o)(2)(A)) Furthermore, the new or 

amended standard must ‘‘result in 

significant conservation of energy.’’ (42 

U.S.C. 6295(o)(3)(B)) 

DOE typically prescribes energy 

conservation standards by informal, 

notice-and-comment, rulemaking 

proceedings, consistent with the 

Administrative Procedure Act (APA) 

and EPCA. DOE has codified this 

process in its regulations at 10 CFR part 

430, subpart C, appendix A through a 

final rule promulgated on July 15, 1996, 

titled ‘‘Procedures, Interpretations and 

Policies for Consideration of New or 

Revised Energy Conservation Standards 

for Consumer Products’’ (‘‘Process 

Improvement Rule’’). 61 FR 36974. 

The Energy Independence and 

Security Act of 2007 (Pub. L. 110–140) 

amended EPCA, in relevant part, to 

grant DOE authority to issue a direct 

final rule (DFR) to establish energy 

conservation standards. A DFR is a 

rulemaking proceeding in which an 

agency issues a final rule without an 

opportunity for prior public comment. 

DOE may issue a DFR upon receipt of 

a joint proposal from a group of 

‘‘interested persons that are fairly 

representative of relevant points of 

view,’’ provided DOE determines the 

energy conservation standards 

recommended in the joint proposal 

conform with the requirements of 42 

U.S.C. 6295(o).3 (42 U.S.C. 

6295(p)(4)(A)) Simultaneous with the 

issuance of a DFR, DOE must also issue 

a notice of proposed rulemaking (NOPR) 

containing the same energy 

conservation standards in the DFR. 

Following publication of the DFR, DOE 

must solicit public comment for a 


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4This rule became effective on October 25, 2011, 

following a determination issued by DOE on 

October 24, 2011. 76 FR 67037 (Oct. 31, 2011). 

5Under the terms of the joint motion, DOE must 

initiate this notice-and-comment rulemaking within 

180 days of a D.C. Circuit judgment implementing 

the agreement. 

6Although States were not signatories to the 

Consensus Agreement, they did not express any 

opposition to it. 76 FR 37408, 37422 (June 27, 

2011). 

7 If the DFR is withdrawn, the Secretary will 

proceed with the rulemaking process under the 

NOPR that was issued simultaneously with the 

DFR. (42 U.S.C. 6295(p)(4)(C)(ii)). 

period of at least 110 days; then, not 

later than 120 days after issuance of the 

DFR, the Secretary must determine 

whether any adverse comments ‘‘may 

provide a reasonable basis for 

withdrawing the DFR,’’ based on the 

rulemaking record and specified 

statutory provisions. (42 U.S.C. 

6295(p)(4)(B), (C)(i)) Upon withdrawal, 

the Secretary must proceed with the 

rulemaking process under the NOPR 

that was issued simultaneously with the 

DFR and publish the reasons the DFR 

was withdrawn. (42 U.S.C. 6295(C)(ii)) 

If the Secretary determines not to 

withdraw the DFR, it becomes effective 

as specified in the original issuance of 

the DFR. 

DOE exercised this authority by 

publishing a DFR on June 27, 2011 

(‘‘2011 DFR’’) that established energy 

conservation standards for residential 

furnaces, central air conditioners, and 

heat pumps (collectively referred to as 

heating, ventilating, and air 

conditioning (HVAC) products), 

including regional standards for 

particular types of products in specified 

States. 76 FR 37408.4 In response, 

American Public Gas Association filed a 

petition for review in the D.C. Circuit on 

December 23, 2011, challenging the 

validity of the rule. Various 

environmental and commercial interest 

groups joined each side of the case, 

reflecting various viewpoints. 

On March 11, 2014, all parties filed a 

joint motion presenting final terms of 

settlement in the case (‘‘Joint Motion’’). 

Among other things, the Joint Motion 

tasked DOE with initiating a notice-andcomment rulemaking proceeding to 

clarify its process related to the 

promulgation of DFRs by amending the 

DOE Process Improvement Rule.5 The 

D.C. Circuit granted the Joint Motion on 

April 24, 2014. American Public Gas 

Ass’n v. U.S. Dep’t of Energy, No. 11– 

1485 (D.C. Cir.). 

To fulfill its responsibilities under the 

Joint Motion, DOE is initiating a noticeand-comment rulemaking proceeding to 

clarify its process related to DFRs by 

publishing this RFI. As per the Joint 

Motion, this RFI includes, verbatim, 

material submitted by letter from certain 

entities participating in the litigation, 

including Heating, Air-Conditioning & 

Refrigeration Distributors International 

(HARDI), Air-Conditioning, Heating, 

and Refrigeration Institute (AHRI), and 

Air Conditioning Contractors of 

America (ACCA), which is appended to 

this RFI. DOE will evaluate the 

comments received and undertake a 

further notice-and-comment process to 

consider amending the Process 

Improvement Rule to explicitly address 

DFRs. 

II. Issues on Which DOE Seeks 

Comment and Information 

In this RFI, DOE intends to gather the 

information necessary to undertake a 

further notice-and-comment process to 

consider DFR-related amendments to 

the Process Improvement Rule. DOE 

specifically invites public comment on 

three issues: (1) When a joint statement 

with recommendations related to an 

energy or water conservation standard 

would be deemed to have been 

submitted by ‘‘interested persons that 

are fairly representative of relevant 

points of view,’’ thereby permitting use 

of the DFR mechanism; (2) the nature 

and extent of ‘‘adverse comments’’ that 

may provide the Secretary a reasonable 

basis for withdrawing the DFR, leading 

to further rulemaking under the 

accompanying NOPR; and (3) what 

constitutes the ‘‘recommended standard 

contained in the statement,’’ and the 

scope of any resulting DFR. Each area of 

public comment is explained in more 

detail below. 

A. Interested Persons 

Under EPCA, DOE may use the DFR 

mechanism ‘‘[o]n receipt of a statement 

that is submitted jointly by interested 

persons that are fairly representative of 

relevant points of view (including 

representatives of manufacturers of 

covered products, States, and efficiency 

advocates), as determined by the 

Secretary, and contains 

recommendations with respect to an 

energy or water conservation standard.’’ 

(42 U.S.C. 6295(p)(4)(A)) In the 2011 

DFR, DOE determined that a consensus 

agreement submitted by a broad crosssection of manufacturers who produced 

the subject HVAC products, their trade 

associations, and environmental and 

energy-efficiency advocacy 

organizations (‘‘Consensus Agreement’’) 

constituted the joint statement required 

by EPCA.6 76 FR 37408, 37422 (June 27, 

2011). DOE did not read EPCA as 

requiring absolute agreement by all 

interested parties, since the Secretary 

has discretionary authority to determine 

if a joint agreement meets the 

requirement for representativeness. Id. 

DOE also reasoned that no single party 

should be deemed to have a veto power 

over use of the DFR mechanism. Id. 

Consequently, DOE considers consensus 

agreements on a case-by-case basis to 

determine if they meet the statutory 

requirements. 

In this RFI, DOE specifically requests 

comments on its DFR process, as 

reflected in the 2011 DFR 

determination. DOE also requests 

general comments on factors supporting 

a determination that DOE has received 

a ‘‘joint statement’’ submitted by 

‘‘interested persons that are fairly 

representative of relevant points of 

view.’’ 

B. Adverse Comments 

Under EPCA, the Secretary shall 

withdraw a DFR no later than 120 days 

after publication (110 days for comment 

submittal, 10 days for comment review 

period) if (1) ‘‘the Secretary receives 1 

or more adverse public comments 

relating to the direct final rule;’’ and (2) 

‘‘based on the rulemaking record . . . 

the Secretary determines that such 

adverse public comments or alternative 

joint recommendation may provide a 

reasonable basis for withdrawing the 

direct final rule.’’ (42 U.S.C. 

6295(p)(4)(C)(i)) 7

To meet this requirement in the 2011 

DFR, DOE created a balancing test. DOE 

considered the substance of all adverse 

comments received (rather than 

quantity) and weighed them against the 

anticipated benefits of the Consensus 

Agreement and the likelihood that 

further consideration of the comments 

would change the results of the 

rulemaking. 76 FR 37408, 37422 (June 

27, 2011). DOE did not consider adverse 

comments that had been previously 

raised and addressed at an earlier stage 

in the rulemaking proceeding. Id. 

DOE requests comments on the 

balancing test approach to managing 

adverse comments, as articulated in the 

2011 DFR. DOE also requests comments 

on the nature and extent of such 

‘‘adverse comments’’ that may provide 

the Secretary a reasonable basis for 

withdrawing the DFR. 

C. Recommended Standard 

Under EPCA, the Secretary must 

determine that a ‘‘recommended 

standard contained in the statement’’ 

satisfies the statutory requirements of 42 

U.S.C. 6295(o). (42 U.S.C. 

6295(p)(4)(A)(i)) This determination 

requires the same type of analysis that 

DOE conducts whenever it considers 

energy conservation standards. 


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Accordingly, in the 2011 DFR, DOE 

certified that the energy conservation 

standard adopted achieved the 

‘‘maximum improvement in energy 

efficiency that is technologically 

feasible and economically justified and 

will result in significant conservation of 

energy.’’ 42 U.S.C. 6295(o); 76 FR 

37408, 37422 (June 27, 2011). 

Accordingly, DOE adopted the amended 

energy conservation standards for 

residential central air conditioners, heat 

pumps, and furnaces. 76 FR 37408, 

37422 (June 27, 2011). 

DOE requests comments on what 

constitutes the ‘‘recommended standard 

contained in the statement,’’ as well as 

the scope of any resulting DFR. 

Although comment is particularly 

welcome on the issues discussed above, 

DOE also requests comments on any 

other topics pertaining to the DFR 

process. 

III. Public Participation 

DOE invites all interested parties to 

submit, in writing by December 30, 

2014, comments and information on 

matters addressed in this rulemaking 

and on other matters relevant to the DFR 

process. As per the Joint Motion, this 

RFI includes, verbatim, material 

submitted by letter from certain entities 

participating in the litigation, including 

HARDI, AHRI, and ACCA, which is 

appended to this RFI. After the close of 

the comment period, DOE will begin 

collecting data and reviewing the public 

comments. These actions will be taken 

to aid in the potential development of 

a Process Improvement Rule NOPR. 

DOE considers public participation to 

be a very important part of the process 

for developing rules. DOE actively 

encourages the participation and 

interaction of the public during the 

comment period at each stage of the 

rulemaking process. Interactions with 

and between the members of the public 

provide a balanced discussion of the 

issues and assist DOE in the rulemaking 

process. 

Confidential Business Information 

Pursuant to 10 CFR 1004.11, any 

person submitting information he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit via email, postal mail, or hand 

delivery/courier two well-marked 

copies: One copy of the document 

marked ‘‘confidential’’ including all the 

information believed to be confidential, 

and one copy of the document marked 

‘‘non-confidential’’ with the information 

believed to be confidential deleted. 

Submit these documents via email or on 

a CD, if feasible. DOE will make its own 

determination about the confidential 

status of the information and treat it 

according to its determination. Factors 

of interest to DOE when evaluating 

requests to treat submitted information 

as confidential include: (1) A 

description of the items; (2) whether 

and why such items are customarily 

treated as confidential within the 

industry; (3) whether the information is 

generally known by or available from 

other sources; (4) whether the 

information has previously been made 

available to others without obligation 

concerning its confidentiality; (5) an 

explanation of the competitive injury to 

the submitting person which would 

result from public disclosure; (6) when 

such information might lose its 

confidential character due to the 

passage of time; and (7) why disclosure 

of the information would be contrary to 

the public interest. 

It is DOE’s policy that all comments 

may be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

Issued in Washington, DC, on October 24, 

2014. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

Appendix A: Material Submitted by 

Entities Participating in Litigation 

As per the Joint Motion, this RFI includes, 

verbatim, material submitted by letter from 

certain entities participating in the litigation, 

including HARDI, (AHRI, and ACCA. DOE 

received the materials directly from the 

entities listed above. These materials 

represent the views of those entities. DOE has 

not altered or edited these letters in any way 

other than formatting necessary for 

publication in the Federal Register. 

A. HARDI Letter (October 9, 2014) 

October 9, 2014. 

Mr. Daniel Cohen, U.S. Department of Energy 

Building Technologies Program, 1000 

Independence Avenue SW., Washington, 

DC 20585 

Re: U.S. Department of Energy (DOE) Request 

for Information Regarding Direct Final 

Rule (DFR) Process Pursuant to 42 U.S.C. 

6295 (p)(4) 

Mr. Cohen, Thank you for the opportunity 

to provide the U.S. Department of Energy 

(‘‘DOE’’), all stakeholders, and the general 

public with the views of the Heating, AirConditioning & Refrigeration Distributors 

International (‘‘HARDI’’) regarding DOE’s 

direct final rulemaking (‘‘DFR’’) authority 

under the Energy Policy and Conservation 

Act, 42 U.S.C. 6201–6422, as amended 

(‘‘EPCA’’) and, specifically, EPCA’s DFR 

provision, codified at 42 U.S.C. 6295(p)(4). 

Experience has shown that EPCA’s DFR 

process can be both a boon and a bane to not 

only stakeholders but also DOE. On the one 

hand, there are circumstances where use of 

the DFR process benefits all involved, not 

only allowing DOE to set energy-efficiency 

standards on an expedited basis using a less 

resource-intensive alternative to normal 

notice and comment rulemaking, but also 

allowing affected stakeholders to work 

together to craft a proposal for energyefficiency standards that not only meet 

EPCA’s statutory requirements but 

accommodate the needs of all involved. 

Indeed, used appropriately, the DFR process 

can serve as a vehicle through which 

industry can work with efficiency and 

environmental advocates to craft and propose 

standards that are both technically and 

economically feasible and result in 

tremendous energy savings. By the same 

token, EPCA’s DFR process is susceptible to 

overuse and could be mistakenly employed 

to establish highly controversial and 

impracticable energy-conservation standards 

over substantial stakeholder objection based 

on an agreement among a narrow subset of 

interested parties, which excludes input from 

a broad array of affected stakeholders. DOE’s 

Plan for Clarification of DOE Direct Final 

Rule Process provides an opportunity to 

achieve a constructive balance between 

under- and overuse of the DFR process, 

reflecting EPCA’s DFR provision’s statutory 

text, purpose, and legislative history. 

We look forward to working with DOE to 

clarify the DFR process through commonsense, practical regulations reconciling the 

due process-based procedural safeguards of 

normal notice and comment rulemaking with 

the worthy goal of expediting the process if, 

but only if, there is a genuine consensus 

agreement among all affected stakeholders. 

To this end, HARDI respectfully submits its 

views, and the reasons for those views, on 

the following issues: 

(1) When a joint statement with 

recommendations related to an energy or 

water conservation standard would be 

deemed to have been submitted by 

‘‘interested persons that are fairly 

representative of relevant points of view,’’ 

thereby permitting use of the DFR 

mechanism; 

(2) the nature and extent of ‘‘adverse 

comments’’ that may provide the Secretary a 

reasonable basis for withdrawing the DFR, 

leading to further rulemaking under the 

accompanying notice of proposed rulemaking 

(‘‘NOPR’’); and 

(3) what constitutes the ‘‘recommended 

standard contained in the statement,’’ and 

the scope of any resulting DFR. 

I. Importance of Clarification of DOE’s 

Direct Final Rule Process to General Public, 

Consumers, and Industry Stakeholders 

By way of background, DOE’s Plan for 

Clarification of DOE Direct Final Rule 

Process arose from the settlement of a 

lawsuit, American Public Gas Association 

(APGA) v. DOE, No. 11–1485 (D.C. Cir.). In 

brief, DOE received a joint comment from a 

narrow subset of interested parties and used 

this as the basis for issuing a DFR setting 

highly controversial energy-efficiency 

standards for furnaces, air conditioners, and 

heat pumps in June 2011. HARDI and other 


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8 15 U.S.C. 804(2). 

9See, e.g., Notice of Effective Date and 

Compliance Dates for Direct Final Rule, Energy 

Conservation Program: Energy Conservation 

Standards for Dishwashers, 77 FR 59,712 (Oct. 1, 

2012). 

10Letter from Samuel J. Bodman, Secretary of 

Energy, to The Honorable J. Dennis Hastert, at 1 

(March 23, 2006). 

11 Id. at 1–2 (emphasis added). 

12Achieving—At Long Last—Appliance 

Efficiency Standards, Hearing Before H. Subcomm. 

On Energy and Air Quality, 110th Cong., 8, 16 

(2007) (Alexander Karsner, Asst. Sec., DOE), 

available at http://www.gpo.gov/fdsys/pkg/CHRGl10hhrg39512/html/CHRG-l10hhrg39512.htm (last 

visited July 17, 2014). 

13Energy Efficiency Promotion Act of 2007: 

Hearing on S. 1115 Before S. Comm. On Energy and 

Nat’l Resources, 110th Cong. 4, 6 (2007) (John 

Mizroch, Principal Deputy Ass. Sec., DOE), 

available at http://www.gpo.gov/fdsys/pkg/CHRGl10shrg36640/html/CHRG-l10shrg36640.htm (last 

visited July 17, 2014). 

14Brief for the Respondent, APGA v. DOE, Case 

No. 11–1485, Doc. #1386024, at 13 (D.C. Cir. July 

26, 2012). 

‘‘interested persons’’ were not part of the 

negotiations leading to the joint comment 

and did not agree to the energy-efficiency 

standards it proposed. DOE subsequently 

received over thirty adverse comments, 

including comments from HARDI and other 

stakeholders, pointing out substantial issues 

of concern. Ultimately, this led to protracted 

litigation involving eleven participants 

representing an incredibly diverse crosssection of interests: HVAC distributors, 

contractors, and manufacturers; natural gas 

distributors; consumer, energy-efficiency, 

and environmental advocates; and DOE. In 

early 2014, a settlement agreement was 

reached in which all eleven participants 

agreed to a notice and comment process to 

clarify the circumstances under which DOE 

could use the DFR process to set standards. 

The circumstances surrounding the lawsuit 

and settlement, while expensive and 

potentially avoidable, illustrate the pressing 

need for clarification of DOE’s DFR authority 

under EPCA moving forward in the interest 

of ensuring that the same situation does not 

arise again. 

The pressing need for clarification is 

underscored by the fact that DOE’s DFR 

authority under EPCA affects myriad 

industries: manufacturers of a wide range of 

consumer products, including furnaces, air 

conditioners, boilers, refrigerators, freezers, 

heat pumps, water heaters, pool heaters, 

direct heating equipment, dishwashers, 

clothes washers and dryers, various lamps, 

kitchen ranges and ovens, faucets, 

showerheads, urinals, microwaves, and other 

consumer products falling within the ambit 

of the statute; distributors of the foregoing 

consumer products, as well as contractors 

and installers—tens of thousands of small 

businesses; energy suppliers, such as natural 

gas distributors; and utilities. In addition, 

consumers are affected by energyconservation standards that DOE establishes 

under EPCA, which may, among other things, 

substantially increase the up-front cost of 

products that are necessities of modem life, 

such as furnaces, air conditioners, and 

refrigerators. 

These energy-conservation standards 

impact the day-to-day lives of millions of 

people. For this reason, they are often 

classified as ‘‘major rules,’’ which means that 

they have been deemed ‘‘likely to result in 

. . . an annual effect on the economy of 

$100,000,000 or more’’ or ‘‘a major increase 

in costs’’ or ‘‘significant adverse effects on 

competition, employment, investment, 

productivity, innovation or on the ability of’’ 

American companies ‘‘to compete with 

foreign-based enterprises.’’ 8 In other words, 

the stakes are often high when DOE 

promulgates regulations implementing EPCA, 

whether via the DFR process or through 

normal notice and comment rulemaking. 

Given that EPCA requires DOE to establish 

energy-conservation standards at regular 

intervals, it is expected that DOE frequently 

will use the DFR process to promulgate 

‘‘major rules’’ establishing energyconservation standards for consumer 

products, notwithstanding adverse comments 

on those rules.9

II. History of DOE’s DFR Authority Under 

EPCA 

HARDI believes that DOE’s 

communications to Congress requesting 

legislation authorizing DOE to issue and 

confirm DFRs setting energy-efficiency 

standards under EPCA outline the proper 

framework for regulations clarifying the 

scope of this authority, the circumstances in 

which DOE may issue a DFR, and, perhaps 

more importantly, the circumstances 

requiring withdrawal of a DFR. In this regard, 

in 2006, then-Secretary of Energy Samuel W. 

Bodman wrote to the Speaker of the U.S. 

House of Representatives ‘‘to transmit 

legislation to authorize the Secretary of 

Energy to use expedited procedures to 

promulgate rules establishing energy 

conservation standards,’’ which included 

proposed legislation granting DOE authority 

to set standards through the DFR process: 10

‘‘The proposed legislation would provide 

expedited procedures for rulemaking in a 

defined set of circumstances. It would 

authorize special rulemaking procedures that 

would allow the Secretary to prescribe 

energy conservation standards by direct final 

rule. Use of this authority would be limited 

to circumstances in which, in response to an 

advance notice of proposed rulemaking, 

representatives of all relevant interests 

(including manufacturers of covered 

products, efficiency advocates and State 

officials) negotiate on their own initiative and 

submit a joint comment to the Department of 

Energy (DOE) proposing an energy 

conservation standard for a product. If the 

Secretary determines that the jointly 

proposed standard meets the substantive 

requirements of the law for that product, the 

Secretary would be authorized to publish a 

notice of direct final rulemaking 

incorporating the recommended standard. 

The Secretary simultaneously would publish 

a notice of proposed rulemaking, 

incorporating the regulatory language of the 

direct final rule and providing a public 

comment deadline before the effective date of 

the direct final rule. If there is no objection 

to the jointly proposed standard, the direct 

final rule would become effective 120 days 

after the notice is published. If any person 

files a significant adverse comment on the 

notice of proposed rulemaking, the Secretary 

would be required to withdraw the direct 

final rule and move forward under the 

procedures of existing law to consider the 

comments and publish a standard notice of 

final rulemaking. 

This proposed legislation would permit 

DOE, in the absence of apparent stakeholder 

objection, to expedite a rulemaking by going 

directly from an advance notice of proposed 

rulemaking to a notice of final rulemaking 

with a summary statement of basis and 

purpose, even though there is no emergency 

that would justify waiver of notice and 

comment rulemaking under the 

Administrative Procedure Act (APA), 5 

U.S.C. 553. Since the rational basis test under 

the APA (5 U.S.C. 706) would apply to 

judicial review of a direct final rule in the 

event that an interested person filed a 

petition for review, DOE would have to be 

cautious in determining that the stakeholder 

agreement represents the views of all relevant 

stakeholder interests.’’ 11

DOE’s testimony before Congress on the 

scope of its requested DFR authority provides 

another important touchstone for regulations 

clarifying DOE’s DFR process. For example, 

Assistant Secretary Alexander Karsner told 

Congress that DOE’s DFR ‘‘legislative 

proposal would allow the Department to 

move directly to a final rule for certain 

products when a clear consensus for 

standards exist among the manufacturers, 

efficiency advocates and other 

stakeholders.’’ 12 Principal Deputy Assistant 

Secretary John Mizroch echoed that message 

to Congress: 

‘‘To shorten the time for a completed 

standard by nearly one-third, Secretary 

Bodman recently requested authorization 

from Congress to streamline the rulemaking 

process and allow the Department to go to a 

direct final rule for certain products when a 

clear consensus for a standard exists among 

manufacturers, efficiency advocates, the 

Government and other stakeholders.’’ 13

Congress accepted then-Secretary 

Bodman’s proposal in 2007 through Section 

308 of the Energy Independence and Security 

Act of 2007, codified at 42 U.S.C. 6295(p)(4), 

which reflects DOE’s, and Congress’s, intent 

to limit use of the expedited DFR process to 

circumstances where genuine consensus 

exists among all affected stakeholders. 

HARDI agrees with DOE that ‘‘Congress 

adopted almost exactly the language DOE 

had . . . proposed’’ in draft legislation 

attached to Secretary Bodman’s letter to 

Congress.14 In part for this reason, 

regulations clarifying DOE’s DFR authority 

under EPCA should be consistent with 

Secretary Bodman’s proposal. 

In addition, regulations clarifying DOE’s 

DFR authority should be consistent with 42 

U.S.C. 6295(p)(4)’s plain language. That 

provision authorizes DOE to set standards 

through DRFs only under limited 

circumstances. To do so, DOE must first 

receive ‘‘a statement . . . submitted jointly 


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15 42 U.S.C. 6295(p)(4)(A). 

16 42 U.S.C. 6295(p)(4)(A)(i). 

17 Id. 

18 42 U.S.C. 6295(p)(4)(B). 

19 42 U.S.C. 6295(p)(4)(C)(i) (emphasis added). 

20Compare 42 U.S.C. 6295(p)(4)(B) (requiring 

comment period of ‘‘at least 110 days’’), with 42 

U.S.C. 6295(p)(4)(C)(i) (DOE must determine 

whether to withdraw DFR ‘‘[n]ot later than 120 

days’’ after publication). 

21Notice of Effective Date and Compliance Dates 

for Direct Final Rule, Energy Conservation Program: 

Energy Conservation Standards for Residential 

Furnaces and Residential Central Air Conditioners 

and Heat Pumps, 76 FR 67,037, 67,050 (Oct. 31, 

2011). 

22See id. at 67,037. 

23 42 U.S.C. 6295(p)(4)(C)(i). 

24 42 U.S.C. 6295(p)(4)(A) (emphasis added). 

25 42 U.S.C. 6295(o)(6)(D)(ii). 

26Notice of Effective Date and Compliance Dates 

for Direct Final Rule, Energy Conservation Program: 

Energy Conservation Standards for Residential 

Furnaces and Residential Central Air Conditioners 

and Heat Pumps, 76 FR 67,037, 67,050 (Oct. 31, 

2011). 

27 10 CFR pt. 430, Appendix A, Subpart C, § 8(b). 

by interested persons that are fairly 

representative of relevant points of view 

(including representatives of covered 

products, States, and efficiency advocates) 

. . . [that] contains recommendations with 

respect to an energy . . . conservation 

standard[.]’’ 15 Then DOE must ‘‘determine[] 

that the recommended standard contained in 

the [joint] statement’’ complies with EPCA’s 

other requirements for new or amended 

energy-conservation standards.16 If DOE 

determines that a joint statement 

recommending energy-conservation 

standards satisfies these requirements, then it 

may issue a DFR setting a standard 17 and 

must solicit public comment for at least 110 

days with respect thereto.18 If DOE ‘‘receives 

1 or more adverse public comments . . . that 

the Secretary determines . . . may provide a 

reasonable basis for withdrawing the direct 

final rule under subsection (o) [of EPCA] . . . 

or any other applicable law,’’ DOE must 

withdraw the DFR.19 DOE must make this 

determination within 10 days or less of the 

close of the comment period,20 which, as a 

practical matter, does not provide DOE 

sufficient time to evaluate the merits of 

adverse comments or conduct a complex 

cost-benefit analysis. 

HARDI agrees with DOE that the statute 

requires the agency to consider adverse 

comments cumulatively.21 HARDI also agrees 

with DOE 22 that the statute requires the 

agency to either confirm the DFR or 

withdraw the DFR in its entirety.23 The 

statutory text also makes clear that DOE must 

withdraw a DFR if it receives adverse 

comments that could possibly provide a 

reasonable basis for withdrawal. Congress’s 

deliberate decision to use ‘‘may’’ language, 

coupled with the 10-day-or-less withdrawal 

period, confirms that Congress chose to give 

DOE narrow authority to set uncontroversial 

standards through DFRs based on genuine, 

broad-based consensus agreements among 

stakeholders. 

III. Recommendations for Definitions 

Clarifying DOE’s DFR Authority 

In light of the above, HARDI believes that 

defining key statutory language in EPCA’s 

DFR provision, as outlined below, would 

have various long-term benefits for DOE, all 

stakeholders, and the general public: 

• Reduce the potential for litigation and 

thereby reduce the likelihood of delayed 

implementation of energy-conservation 

standards. 

• Ensure that regulated parties and others 

who will incur compliance- and 

enforcement-related and other monetary 

costs as a result of energy-conservation 

standards will have a seat at the table and a 

meaningful opportunity to participate in the 

process. 

• Prevent a narrow subset of interested 

parties (advocating either unduly stringent or 

unduly lax standards) from forcing those 

standards on the regulated community (and/ 

or other interested parties, including 

efficiency advocates) without their consent. 

• Provide a framework that will allow the 

expedited DFR process to be used as 

intended in circumstances where a clear 

consensus exists among all relevant interests, 

including manufacturers, efficiency 

advocates, and other stakeholders (which 

may include distributors, contractors, energy 

suppliers, utilities, consumers, and other 

market participants, depending on the 

substance of the proposed DFR). 

• Enable DOE to work with stakeholders to 

develop DFR standards that will, on the one 

hand, ensure that relevant stakeholders will 

always have a seat at the table, but, on the 

other hand, prevent a single individual from 

derailing a DFR through submission of a 

frivolous comment on Regulations.gov. 

Accordingly, HARDI respectfully suggests 

the following definitions of key statutory 

language in EPCA’s DFR provision, 42 U.S.C. 

6295(p)(4): 

(1) ‘‘Interested Parties That Are Fairly 

Representative of Relevant Points of View’’ 

In his or her determination, the Secretary 

shall consider whether the petitioners fairly 

represent the spectrum of opinions that have 

been presented to the Department as being 

interested in the products or efficiency 

standard at issue. There is no requirement 

that all possible commenters join in a 

petition, and all such persons will have an 

opportunity to comment on the DFR and 

potentially submit an ‘‘adverse comment’’ 

that will require withdrawal of a DFR. 

However, a petition must represent the views 

of all relevant stakeholder interests (which 

may include distributors, contractors, energy 

suppliers, utilities, consumers, and other 

market participants, depending on the 

substance of the proposed DFR). 

(a) Representatives of manufacturers of 

covered products, States, and efficiency 

advocates are necessary parties to any joint 

statement forming the basis of a direct final 

rule. No presumption shall arise that a joint 

statement submitted solely by representatives 

of manufacturers of covered products, States, 

and efficiency advocates has been submitted 

by interested parties that are fairly 

representative of relevant points of view. 

(b) A joint statement recommending that 

the Secretary exercise his or her optional 

authority under 42 U.S.C. 6295(O)(6) to set 

regional standards for furnaces, central air 

conditioners, or heat pumps cannot form the 

basis of a direct final rule unless 

representatives of the market participants 

listed in 42 U.S.C. 6295(O)(6)(D)(ii) are 

signatories to that joint statement 

(consumers, manufacturers, product 

distributors, contractors, and installers). 

Rationale for Proposed Definition 1: 

Proposed Definition 1 is designed to clarify 

language in 42 U.S.C. 6295(p)(4)(A) 

authorizing DOE to issue a DFR if, and only 

if, it receives ‘‘a statement that is submitted 

jointly by interested persons that are fairly 

representative of relevant points of view 

(including representatives of manufacturers 

of covered products, States, and efficiency 

advocates)[.]’’ 24 Particularly against the 

backdrop of then-Secretary Bodman’s 

proposal, Congress’s use of the word 

‘‘including’’ makes clear that the list of 

necessary parties to the joint statement is 

nonexhaustive, as the stakeholders ‘‘that are 

fairly representative of relevant points of 

view’’ will vary based on the content of the 

DFR. For example, EPCA itself lists 

additional stakeholders who necessarily have 

relevant points of view for DFRs setting 

regional energy conservation standards, as it 

requires DOE to ‘‘consider the impact of the 

additional regional standards on consumers, 

manufacturers, and other market 

participants, including product distributors, 

dealers, contractors, and installers.’’ 25

Elsewhere, DOE has recognized that energy 

suppliers may be relevant parties.26 The 

same holds true with respect to utilities.27

Rationale for Proposed Definition (l)(a): 

Proposed Definition (l)(a) is designed to 

clarify Congress’s intent that while 

manufacturers of covered products, States, 

and energy-efficiency advocates are 

necessary parties to any joint statement 

forming the basis of a DFR, those parties may 

not be sufficient, depending on the substance 

of the proposed standard. 

Rationale for Proposed Definition (l)(b): 

Proposed Definition (l)(b) reflects Congress’s 

intent, as expressed by the plain text of 42 

U.S.C. 6295(o)(6)(d)(ii), that if DOE wishes to 

exercise its option of setting regional energyconversation standards, the agency ‘‘shall 

. . . consider the impact of the additional 

regional standards on consumers, 

manufacturers, and other market 

participants, including product distributors, 

dealers, contractors, and installers.’’ This 

mandatory directive reflects Congress’s 

recognition of the practical reality that 

regional energy-conservation standards are 

not only unprecedented in the industry but 

also impact a far wider array of 

stakeholders—including tens of thousands of 

small businesses (e.g., distributors, 

contractors) and consumers—than a national 

base standard. Regional standards effectively 

make a consumer product that would be legal 

in one part of the country illegal in another 

part of the country and impose substantial 

compliance-and enforcement-related costs on 

entire industries—from large manufacturers 

to independent contractors—which are 

fundamentally different from the costs 

imposed by a single national base standard. 

In light of the unique challenges posed by 

regional standards, this definition would 

ensure that any joint statement 


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28The Air-Conditioning, Heating, and 

Refrigeration Institute (AHRI) is the trade 

association representing manufacturers of air 

conditioning, heating, commercial refrigeration, and 

water heating equipment. An internationally 

recognized advocate for the industry, AHRI 

develops standards for and certifies the 

performance of many of these products. AHRI’s 

300+ member companies manufacture quality, 

efficient, and innovative residential and 

commercial air conditioning, space heating, water 

heating, and commercial refrigeration equipment 

and components for sale in North America and 

around the world. 

29American Public Gas Association (APGA) v. 

DOE, No. 11–1485 (D.C. Cir.) 

30 Given the preemption provisions in EPCA, 

AHRI does not believe that States are required 

parties for all DFR statements, but that ‘‘interested 

persons’’ should be determined by the subject 

matter of the energy conservation standard at issue. 

31 76 FR 37,408 (June 27, 2011) 

32 42 U.S.C. 6295(r) 

33See, e.g., the process rule at 7(d). 

recommending that DOE set EPCA-optional 

regional standards reflects the views of 

relevant stakeholders who bear the brunt of 

the enforcement- and compliance-related 

costs associated with those standards. 

(2) ‘‘Adverse Public Comments’’ That ‘‘May 

Provide a Reasonable Basis for Withdrawing 

the Direct Final Rule’’ 

Any one or more comments, considered as 

a whole, that provide a plausible basis for 

disputing material facts, analyses, or 

conclusions in the petition or DFR, even if 

not accepted by the Department as valid or 

dispositive, but which, if accepted, could 

possibly affect the proposed standard in 

stringency or structure, will require the 

Secretary to withdraw the DFR. In general, 

adverse comments should address technical, 

economic, energy, and legal arguments that 

are contained in the petition and in the DFR. 

In general, overly broad and general 

statements opposing regulations or 

questioning the motivation of petitioners will 

not be considered sufficient. The Secretary 

shall not make conclusive determinations on 

the merits of public comments. Comments 

will be considered cumulatively. 

Rationale for Proposed Definition 2: 

Proposed Definition 2 attempts to strike the 

appropriate balance between establishing a 

standard for withdrawal that is so high that 

issuance of a DFR virtually ensures its 

confirmation, regardless of how controversial 

it may be and irrespective of the merits of 

substantive objections to it, and a standard so 

low that any individual can derail a DFR— 

and ruin productive negotiations—simply by 

submitting a frivolous comment on the 

Internet. We believe that this proposed 

definition reflects Congress’s intent that DOE 

should not make conclusive determinations 

on the merits of public comments, which 

must be considered cumulatively, or engage 

in extrastatutory cost-benefit analysis based 

on those comments. We also believe that this 

proposed definition will prove beneficial by 

placing the emphasis on practical and legal 

arguments, as opposed to ideologically 

driven opposition that is more appropriately 

addressed through the political process. As a 

practical matter, this will ensure that DFRs 

that are the product of broad agreement 

among relevant stakeholders are confirmed, 

while those that prove to be controversial 

among those who will actually bear their 

costs are withdrawn. 

(3) ‘‘The Recommended Standard Contained 

in the Statement’’ 

Any DFR issued pursuant to 42 U.S.C. 

6295(p)(4)(A)(i) shall contain only the 

recommended standard contained in the joint 

statement authorizing the Secretary to issue 

the DFR. The Secretary shall not include in 

any DFR issued pursuant to 42 U.S.C. 

6295(p)(4)(A)(i) any energy-conservation 

standards, including but not limited to 

standby and off-mode energy-conservation 

standards, that are not specifically 

recommended in the joint statement that 

authorizes issuance of that DFR. 

Rationale for Proposed Definition 3: 

Proposed Definition 3 is intended to ensure 

that the broad array of stakeholders that 

negotiate and then submit consensus-based 

energy-conservation standards via a petition 

for a DFR get what they bargained for—no 

more, and no less. In the past, DOE has 

issued and confirmed DFRs containing 

energy-conservation standards (e.g., standby 

and off-mode standards for air conditioners) 

that are outside of the scope of standards 

proposed in a joint comment used as the 

basis for the DFR. Setting standards through 

the DFR process that are not recommended 

in the joint statement will needlessly disturb 

the settled expectations of the parties that 

submit it. This may have a chilling effect on 

the legitimate use of the DFR mechanism to 

set noncontroversial consensus standards. 

Proposed Definition 3 provides certainty to 

stakeholders that when they submit a joint 

statement asking DOE to issue a DFR setting 

particular standards, DOE will either issue a 

DFR establishing those, and only those, 

standards, or publish a notice of a 

determination explaining why a DFR cannot 

be issued based on the statement, as required 

by EPCA. 

HARDI appreciates the opportunity to 

contribute to this process. We hope that our 

comments and proposed DFR definitions are 

viewed as constructive and open the 

conversation about meaningful DFR reform 

on a positive note. We look forward to 

working with DOE to craft regulations that 

promote the public interest, codify and 

clarify Congress’s intent, and provide 

meaningful long-term benefits to all 

stakeholders, as well as DOE. 

Respectfully submitted, 

Jonathan A. Melchi, 

Director of Government Affairs, HARDI 

B. AHRI Letter (October 10, 2014) 

October 10, 2014. 

Mr. Daniel Cohen, Assistant General Counsel 

for Legislation, Regulation and Energy 

Efficiency, Office of General Counsel, U.S. 

Department of Energy, 1000 Independence 

Avenue SW., Room 6A179 Washington, DC 

20585. 

Re: U.S. Department of Energy (DOE) Request 

for Information Regarding Direct Final 

Rule (DFR) Process Pursuant to 42 U.S.C. 

6295 (p)(4) 

Dear Mr. Cohen: These comments are 

submitted by the Air-Conditioning, Heating, 

and Refrigeration Institute (AHRI) 28 in 

accordance with the settlement of the 

American Public Gas Association (APGA) v. 

DOE litigation 29 on April 24, 2014. The 

purpose of this letter is to provide DOE with 

information on the following issues, as set 

forth in the settlement agreement: 

1. When a joint statement with 

recommendations related to an energy or 

water conservation standard would be 

deemed to have been submitted by 

‘‘interested persons that are fairly 

representative of relevant points of view,’’ 

thereby permitting use of the DFR 

mechanism; 

2. The nature and extent of ‘‘adverse 

comments’’ that may provide the Secretary a 

reasonable basis for withdrawing the direct 

final rule, leading to further rulemaking 

under the accompanying notice of proposed 

rulemaking (NOPR); 

3. What constitutes the ‘‘recommended 

standard contained in the statement,’’ and 

the scope of any resulting direct final rule; 

and 

4. Any other issues pertaining to the DFR 

process. 

In general,30 AHRI concurs with the 

definitions of key terms proposed by the 

Heating, Air-Conditioning and Refrigeration 

Distributors International (HARDI). Of 

particular concern to AHRI is issue number 

three (3), regarding the scope of the DFR. The 

DFR establishing energy efficiency standards 

for residential central air conditioning and 

furnaces 31 included non-consensus ‘‘offmode’’ standards for residential air 

conditioners and heat pumps. AHRI has 

repeatedly objected to the inclusion of these 

standards, both because they were not part of 

the negotiated consensus agreement, and 

because they were promulgated without the 

statutorily required test procedure. Although 

the non-negotiated off-mode standards 

included in the DFR (which was first 

published over three years ago) will be 

effective January 1, 2015, DOE has yet to 

publish a final test procedure for those 

standards. 

The non-consensus off-mode standards 

DOE included in the DFR are contrary to the 

statutory requirements and overall 

framework of the Energy Policy and 

Conservation Act (EPCA), which requires 

promulgated test procedures to be included 

in new or amended efficiency standards.32

Under that framework, test procedures are 

included with the applicable standard, which 

is effective five years after the publication 

date.33 This provides manufacturers with the 

necessary time to test products to ensure 

compliance with new or amended efficiency 

levels and make the appropriate certifications 

to DOE. Any lesser time frame for 

implementation results in test procedures 

that are unduly burdensome to conduct, as 

manufacturers will not have sufficient time 

to test products for certification and 

compliance purposes. As AHRI has 

repeatedly noted, it is arbitrary and 

capricious to set standards, or even to 

evaluate standards levels, until a test 

procedure has been established to determine 


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34 Joint Motion of all Parties and Intervenors to 

Vacate in Part and Remand for Further Rulemaking, 

American Public Gas Association (APGA) v. DOE, 

No. 11–1485 (D.C. Cir.) at 12. 

35See, e.g., Energy Conservation Standards for 

Commercial Refrigeration Equipment, 79 FR 17,726 

(Mar. 28, 2014); Energy Conservation Standards for 

Walk-In Coolers and Freezers, 79 FR 32,050 (June 

3, 2014); and Energy Conservation Standards for 

Residential Furnace Fans, 79 FR 38,130 (July 3, 

2014). 

actual performance and what is economically 

and technically feasible. Inclusion of the 

non- consensus off-mode standards in the 

DFR was thus entirely inappropriate. 

The inclusion of the off-mode standards in 

the DFR despite the lack of a final test 

procedure, in violation of EPCA’s statutory 

requirements, illustrates the importance of 

clarifying that any DFR issued pursuant to 42 

U.S.C. 6295(p)(4)(A)(i) should contain only 

the recommended consensus standard 

contained in the joint statement authorizing 

the Secretary to issue the DFR. As HARDI 

notes in its proposed definition, the Secretary 

should be prohibited from including any 

energy conservation standards, including but 

not limited to standby and off-mode energy 

conservation standards that are not 

specifically recommended in the joint 

statement that authorizes the issuance of the 

DFR. 

In the settlement agreement, DOE agreed to 

initiate a notice and comment rulemaking to 

clarify its process related to the promulgation 

of DFRs. The purpose of this rulemaking is 

to consider amending the DOE ‘‘process rule’’ 

promulgated July 15, 1996, titled 

‘‘Procedures, Interpretations and Policies for 

Consideration of New or Revised Energy 

Conservation Standards for Consumer 

Products,’’ and codified at Appendix A to 

Subpart C of Part 430, Title 10, Code of 

Federal Regulations.34 AHRI believes that the 

process by which DOE will issue DFRs 

clearly pertains to, and in fact is inextricably 

linked with, its overall rulemaking process as 

set forth in the process rule, and that DOE 

must consider and solicit comment on other 

amendments to the process rule in 

connection with this notice and comment 

rulemaking. For example, the process rule 

addresses consideration of ‘‘Joint Stakeholder 

Recommendations’’ and states that DOE will 

identify any necessary modifications to 

established test procedures when initiating 

the standards development process, and that 

modifications will be proposed early in the 

standards development process. It also states 

that ‘‘Final, modified test procedures will be 

issued prior to the NOPR on proposed 

standards.’’ As noted above, this did not 

happen regarding the non-negotiated offmode standards DOE included in the DFR for 

central air conditioners and heat pumps. 

There are also several other recent examples 

of DOE’s publication of energy conservation 

standards when the related test procedures 

were final only after issuance of the related 

NOPR or final rule.35

It has been nearly 20 years since the 

process rule was promulgated, and the 

quantity of DOE rulemaking and complexity 

of DOE’s analysis has changed significantly. 

The inclusion of guidance on the DFR 

process will be a substantial change to the 

process rule, one that should be considered 

as part and parcel of DOE’s overall 

rulemaking. Both for that reason, and to 

ensure that the DFR process that DOE sets 

forth through the current proceedings are 

consistent with DOE’s overall guidance on 

new or revised energy conservation standards 

for consumer products, DOE should solicit 

and consider comments on the DFR process 

and amendments and improvements to the 

process rule as a whole. 

AHRI appreciates the opportunity to 

provide these comments. If you have any 

questions regarding this submission, please 

do not hesitate to contact me. 

Sincerely, 

Amy Shepherd, 

General Counsel. 

C. ACCA Letter (October 10, 2014) 

October 10, 2014 

Mr. Daniel Cohen, Assistant General Counsel 

for Legislation, Regulation, & Energy 

Efficiency, U.S. Department of Energy, 

1000 Independence Ave. SW., Washington, 

DC 20585. 

RE: Intervener Letter in response to the Plan 

for Clarification of DOE Direct Final Rule 

Process 

Dear Assistant General Counsel Cohen: 

ACCA submits this letter for inclusion in the 

notice of proposed rulemaking materials 

referenced in the Plan for Clarification of 

DOE Direct Final Rule Process (Plan for 

Clarification) appended to the Joint Motion of 

All Parties and lnterveners to Vacate in Part 

and Remand for Further Rulemaking filed as 

part of the APGA v. US Department of Energy 

litigation. 

The Plan for Clarification indicates that 

DOE will invite public comment on issues 

related to the Direct Final Rule Process 

through a request for information (RFI), 

specifically: 

(1) When a joint statement with 

recommendations related to an energy or 

water conservation standard would be 

deemed to have been submitted by 

‘‘interested persons that are fairly 

representative of relevant points of view,’’ 

thereby permitting use of the DFR 

mechanism; 

(2) The nature and extent of ‘‘adverse 

comments’’ that may provide the Secretary a 

reasonable basis for withdrawing the direct 

final rule, leading to further rulemaking 

under the accompanying notice of proposed 

rulemaking (NOPR); 

(3) What constitutes the ‘‘recommended 

standard contained in the statement,’’ and 

the scope of any resulting direct final rule; 

and 

(4) Any other issues pertaining to the DFR 

process. 

The Plan for Clarification also states that 

DOE will ‘‘undertake a further notice and 

comment process to consider amending the 

final rule promulgated on July 15, 1996, 

entitled ‘Procedures, Interpretations and 

Policies for Consideration of New or Revised 

Energy Conservation Standards for Consumer 

Products,’ codified at Appendix A to Subpart 

C of Part 430, Title 10, Code of Federal 

Regulations.’’ 

‘‘Interested Persons That Are Fairly 

Representative of Relevant Points of View’’ 

ACCA believes the meaning of the phrase 

‘‘interested persons that are fairly 

representative of relevant points of view’’ 

with regard to the constituents or 

stakeholders to a joint statement filed for 

consideration under the DFR process is 

determined by the scope of the standard or 

rule. There are many analyses undertaken by 

DOE during the rulemaking process that look 

to various stakeholders for comment in 

developing the Technical Support Document 

(TSD), including the analysis of energy use, 

markup, life cycle costs, and payback period. 

If the purpose of the use of a DFR is to 

expedite a rulemaking process, stakeholders 

who would typically be interested in the 

results found in the TSO should be assumed 

to be ‘‘interested persons.’’ 

In addition, as part of any guidance, DOE 

should encourage any parties looking to 

develop a joint statement to consider all 

potential stakeholders listed in previous 

rulemakings on the same subject. 

‘‘Adverse Comments’’ 

ACCA believes that more clearly defining 

‘‘adverse comments’’ and the phrase 

‘‘reasonable basis ‘‘are critical in improving 

the DFR development process and reducing 

the chances of a DFR being rejected for 

consideration or withdrawn by the Secretary. 

The factors in determining the nature of the 

adverse comments should be informed by the 

stakeholders filing those comments and the 

substantiation of the comments. ACCA agrees 

with the definition submitted by the Heating, 

Air-Conditioning, & Refrigeration 

Distributors International because it strikes 

the proper balance that ensures legitimate 

concerns will be reviewed and 

acknowledged. 

‘‘Recommended Standard Contained in the 

Statement and the Scope of Any Resulting 

Direct Final Rule’’ 

ACCA believes this issue is relatively 

simple. DOE must consider the joint 

submission as a single proposal that cannot 

be cherry-picked. Should the joint 

submission include provisions that are 

outside the purview or jurisdiction of EPCA, 

or include elements that DOE prefers not to 

accept, then DOE must reject the joint 

submission with a public notice of it reasons. 

Clarification of the DFR process and a 

follow up review of the Process Rule are 

necessary steps to improving the rulemaking 

process going forward. ACCA appreciates the 

opportunity to participate in the initiation of 

these efforts. Should you have further 

questions, please do not hesitate to contact 

me. 

Respectfully, 

Charlie McCrudden 

Senior Vice President, Government Relations. 

[FR Doc. 2014–25922 Filed 10–30–14; 8:45 am] 

BILLING CODE 6450–01–P 


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