From: Kennedy, Kit [mailto:kkennedy@nrdc.org] 

Sent: Tuesday, May 04, 2010 3:22 PM 

To: Cohen, Daniel; Miller, Bryan 

Cc: Houren, Kate 

Subject: RE: Documents discussed during call today 

Dan and Bryan, also, here’s the April 27th letter from AHRI which also addresses some of the legal issues that we 

discussed. 

Thanks again for your time. 

Best, Kit 

Katherine Kennedy 

Counsel, Air and Energy Program 

NRDC 

40 W. 20th St. 

New York, NY 10011 

ph: 212-727-4637 

fax: 212-727-1773 

email: kkennedy@nrdc.org

assistant: Lisa Copland, 212-727-4531, lcopland@nrdc.org

www.nrdc.org

PRIVILEGE AND CONFIDENTIALITY NOTICE 

This message is intended only for the use of the individual or entity to which it is addressed and may contain 

information that is privileged, confidential, and exempt from disclosure under applicable law. If you are not the 

intended recipient of this message, you are hereby notified that disseminating, distributing, or copying it or any 

attachment to it is strictly prohibited. If you have received this message in error, please notify me immediately by 

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EERE-2008-BT-STD-0006 COMMENT 77
From: Houren, Kate 

Sent: Tuesday, May 04, 2010 3:18 PM 

To: daniel.cohen@hq.doe.gov; Miller, Bryan 

Cc: Kennedy, Kit 

Subject: Documents discussed during call today 

Dan and Bryan: 

Thank you for taking the time to speak with us, today. We welcome and appreciate your questions, and we look 

forward to talking further about any issues that may come up during the rulemaking processes underway. 

Best Regards, 

Kate 

Kate Houren 

Natural Resources Defense Council 

1200 New York Ave., NW Ste. 400 

Washington, D.C. 20005 

(202) 513-6267 

khouren@nrdc.org 

Attachments: 

Letter from consensus agreement signatories affirming DOE’s ability to adopt the consensus agreement.

NRDC Comments of March 19, 2010 on DOE’s ability to adopt SEER and EER standards for central air conditioners

NRDC Comments of April 27, 2010 on the NOPM for Energy Conservation Standards for Residential Furnaces 

NRDC Comments of April 27, 2010 on the SNOPR for Test Procedures for Residential Furnaces and Boilers 

EERE-2008-BT-STD-0006 COMMENT 77
 

May 7, 2010 

By e-mail: expartecommunications@hq.doe.gov

Daniel Cohen 

Assistant General Counsel for Legislation and Regulatory Law 

Office of the General Counsel 

Department of Energy 

1000 Independence Avenue, SW 

Washington, DC 20585–0121 

Re: Ex Parte Memorandum

Dear Mr. Cohen: 

On Tuesday, May 4, 2010, Kit Kennedy and Kate Houren of the Natural Resources Defense 

Council (NRDC) initiated a telephone call with Daniel Cohen and Bryan Miller of the Department 

of Energy’s Office of the General Council. 

During the call, NRDC advocated for the adoption of the consensus agreement,1 and the parties 

discussed legal questions relating to the Department of Energy’s ability to adopt the consensus 

agreement’s recommended standards for central air conditioners. 

Kit Kennedy and Kate Houren also referenced five documents during the call that were 

previously submitted to dockets concerning central air conditioners. Shortly after the call, Kit 

Kennedy and Kate Houren provided all five documents to Daniel Cohen and Bryan Miller via email. The documents include (i) a letter from the consensus agreement signatories that was 

submitted to docket EERE–2009–BT–STD–0022 on April 27, 2010; (ii) comments of 

Earthjustice and NRDC that were submitted to dockets EERE-2008-BT-STD-0006 and EE–

2009–BT–STD–0022 on March 19, 2010; (iii) comments of NRDC that were submitted to docket 

EERE–2008–BT–TP–0020 on April 27, 2010; (iv) comments of NRDC that were submitted to 

docket EE–2009–BT–STD–0022 on April 27, 2010; and (v) comments of the Air-Conditioning, 

Heating, and Refrigeration Institute that were submitted to docket EE-2009-BT-STD-0022 on 

April 27, 2010. 

 

1

 Agreement on Legislative and Regulatory Strategy for Amending Federal Energy Efficiency Standards, 

Test Procedures, Metrics and Building Code Provisions for Residential Air Conditioners, Heat Pumps, 

Weatherized and Non-Weatherized Furnaces and Related Matters, Oct. 13, 2009, at 

http://aceee.org/buildings/Furnace-ACAgreement.pdf. 

EERE-2008-BT-STD-0006 COMMENT 77
Respectfully submitted, 

Kate Houren 

Legal Fellow* 

Natural Resources Defense Council 

1200 New York Ave., NW, Suite 400 

Washington, DC 20005 

(202) 513-6267

khouren@nrdc.org 

*Admitted to practice in New York, not yet admitted to practice in Washington, DC 

cc: Kit Kennedy 

 Daniel Cohen 

 Bryan Miller 

EERE-2008-BT-STD-0006 COMMENT 77
Joint Comment on the Rulemaking Analysis Plan for Residential Furnaces, 75 Fed. 

Reg. 12,144 (issued Mar. 15, 2010) 

submitted by: 

American Council for an Energy-Efficient Economy 

Air-Conditioning, Heating and Refrigeration Institute 

Alliance to Save Energy 

Appliance Standards Awareness Project 

California Energy Commission 

National Consumer Law Center 

Natural Resources Defense Council 

Northeast Energy Efficiency Partnerships 

Northwest Power and Conservation Council 

April 27, 2010 

Docket Number: EERE–2009–BT–STD–0022 

RIN: 1904–AC06 

We are writing to reiterate our strong support for the furnace and central air conditioner 

standards recommended to DOE by manufacturers and various efficiency advocates, state 

agencies and other entities. In particular, we would like to address three specific issues 

related to the next standards for these products: 1) the particular benefits of the joint 

agreement recommendations; 2) timing of a final rule; and 3) treatment of related 

standards not addressed by the joint agreement. 

Benefits of the joint proposal: The Joint Stakeholder agreement (“the agreement”)1

includes several aspects which we believe will lead to the best possible overall outcome. 

As described in the complete agreement (attached), most elements can be adopted by 

DOE and are within the scope of DOE’s authority under EPCA, but some features will 

require Congressional action. Key elements include the following: 

• Accelerated effective dates: The new furnace standards would take effect just two 

years after the date on which a final rule is due (May 2011) and the new central 

air conditioner standard would take effect three and one-half years after that final 

rule is due (June 2011). These effective dates are significantly accelerated 

 

1

 The following organizations and companies submitted the joint recommendation: Air-Conditioning, 

Heating and Refrigeration Institute; American Council for an Energy-Efficient Economy; Alliance to Save 

Energy; Natural Resources Defense Council; Northwest Power and Conservation Council; Appliance 

Standards Awareness Project; California Energy Commission; Northeast Energy Efficiency Partnerships; 

Bard Manufacturing, Inc; Carrier Residential and Light Commercial Systems; Goodman Global, Inc; 

Lennox Residential; Mitsubishi Electric and Electronics USA; National Comfort Products; Rheem 

Manufacturing Company; Trane Residential, and; Desert Aire. 

EERE-2008-BT-STD-0006 COMMENT 77
relative to the historic lead times for these products and will result in savings 

happening sooner than might otherwise be the case.2

• Acceleration of the next review: Under the terms of the agreement, industry, state 

agencies and advocates support an expeditious DOE review of the agreed-upon 

standards, with the next furnace standard to be completed by 2014 (effective 

2019) and the next central AC standards by 2017 (effective 2022). The initial and 

next-round effective dates represent a significant facet of the larger agreement, 

and we expect that manufacturers would strongly resist DOE's imposition of this 

timetable absent adoption of the standard levels set out in the agreement. 

Moreover, because the subsequent reviews will build on the market progress 

initiated by the agreed-upon standards, they offer the potential for significant 

additional savings. We expect that the initial standards will set in motion market 

pressures for innovation that will make even higher levels attainable in the nextround standards. 

• Peak demand standards for the hot-dry climate: Representatives from California 

and other states dominated by hot-dry climate zones feel very strongly that air 

conditioner standards must include an EER requirement to better capture actual 

performance in their region. Manufacturers had previously strenuously opposed 

inclusion of EER, arguing that their design options would be more limited and 

their testing burden increased by having two efficiency requirements. Their 

support for EER and SEER requirements for the hot-dry region was a significant 

concession and will pave the way for equipment that better meets the climate 

needs of that region.3

• Encouraging better building codes: Existing federal law severely limits the 

options for incorporating appliances into state building codes. In general, state 

codes cannot require levels of appliance and equipment efficiency that exceed the 

efficiency levels in federal appliance standards, although existing law provides a 

limited opportunity for exemptions. These limits prevent states from reaping 

efficiency improvements in space conditioning equipment, which may be 

especially cost-effective in new construction, and hamper efforts to customize 

building codes to suit varying climatic zones within a single state. As part of the 

agreement, manufacturers and efficiency advocates agreed to support legislative 

changes that will enable states to provide packages of options for builders that 

maximize both energy efficiency and consumer choice. 

We support the agreement as a balanced package that will achieve very large energy, 

economic and environmental benefits and provide regulatory certainty. We strongly urge 

DOE to adopt the regulatory aspects of the agreement in their entirety; partial adoption 

would jeopardize the overall agreement. 

 

2

 Earthjustice addresses DOE’s legal authority for the proposed effective dates in separate comments. 

3

 Earthjustice and NRDC addressed DOE’s legal authority for EER and SEER standards in a legal memo 

submitted dated March 19, 2010. 

- 2 -

EERE-2008-BT-STD-0006 COMMENT 77
Timing of the final rule. Out of fairness to all stakeholders, we urge DOE to expedite 

completion of a final rule, either through a Direct Final Rule or through the normal 

rulemaking process. As noted above, manufacturers have agreed to accelerated effective 

dates. The certainty of a final rule will let them proceed with design and production 

capacity changes with confidence. In addition, because these are the first ever regional 

standards, distributors and installers may have new responsibilities for compliance. The 

law requires that DOE complete a separate rulemaking on regional standards enforcement 

within fifteen months of publishing final standards. With the furnace implementation 

date just three years away, DOE needs to complete the standards so it can address the 

enforcement rule in a timely way. 

Related standards outside the scope of the agreement. In DOE’s March 15th 

Rulemaking Analysis Plan for furnaces, two issues surfaced that are not covered by the 

agreement: electrical standby requirements for furnaces and standards for furnace fans. 

We believe that both of these issues can be addressed by DOE without impeding 

accelerated adoption of final rules implementing the agreement. 

With respect to furnace standby electricity use, our strong preference is that DOE develop 

a separate metric that will discourage energy waste in standby mode. Standby electricity 

usage for furnaces is significant, but subsuming it into an overall efficiency metric for 

furnaces will subvert the goal of energy savings since this electricity usage is very small 

relative to the appliance’s total energy use.4

 DOE should adopt the AFUE levels for 

furnaces as recommended in the joint agreement and concurrently develop separate 

standards for standby electricity usage. 

With respect to furnace fan standards, we very much appreciate DOE’s commitment to 

address this important energy use. However, the furnace fan rulemaking and analyses 

will be more complicated than typical DOE proceedings.5 We are skeptical that it can be 

completed within a year, as DOE proposes. We encourage DOE to combine analysis for 

the furnace, central air conditioner and furnace fan rulemakings to the extent possible to 

conserve agency resources, but believe that the final rules for furnaces and air 

conditioners can be completed much earlier than a final rule for furnace fans – especially 

if the furnace and air conditioner rules are based on the joint agreement. 

Finally, we would like to emphasize the historic role of joint agreements such as this one 

in advancing national appliance standards. DOE has explicitly encouraged these sorts of 

joint agreements over the course of three administrations. Previous joint agreements 

formed the basis for the 1997 refrigerator, the 2000 ballast, and the 2001 clothes washer 

rules. DOE advanced a final rule for commercial air conditioners based on a 2004 joint 

agreement, but Congress enacted the standard before DOE could complete its process. 

By bringing all or nearly all of the most active stakeholders together, they smooth 

adoption through the administrative process, thereby conserving agency resources for 

 

4

 ACEEE and PG&E address this issue in their respective comments to the furnace docket. 5

 Several factors contribute to this complexity: this is the first time DOE will address this end-use; a 

federal test method has not yet been completed; interactions with central a/c and furnace standards must be 

accounted for; field variations in duct system performance complicate savings modeling. 

- 3 -

EERE-2008-BT-STD-0006 COMMENT 77
other, potentially more contentious, proceedings. DOE’s receptiveness to this sort of 

agreement also serves to build stakeholder confidence in and support for the DOE 

program. 

In summary, we again urge adoption of the recommended furnace and central air 

conditioner standards on as accelerated a schedule as possible. The joint agreement 

includes a combination of efficiency metrics and levels, effective dates, subsequent 

rulemakings and legislative reforms that, we strongly believe, will lead to larger energy 

savings than would otherwise be likely to result from DOE rulemaking absent an 

agreement. We urge you to issue final rules based on our recommendation as soon as 

possible. 

Thank you very much for your consideration. 

Sincerely, 

Steven Nadel 

Executive Director 

American Council for an Energy-Efficient Economy 

David B. Calabrese 

Senior Vice President, Public Policy 

Air-Conditioning, Heating and Refrigeration Institute 

Jeffrey Harris 

Vice President for Programs 

Alliance to Save Energy 

Andrew L. deLaski 

Executive Director 

Appliance Standards Awareness Project 

- 4 -

EERE-2008-BT-STD-0006 COMMENT 77
Karen Douglas 

Chairman 

California Energy Commission 

David Goldstein 

Energy Program Co-Director 

Natural Resources Defense Council 

Susan Coakley 

Executive Director 

Northeast Energy Efficiency Partnerships 

Stephen L. Crow 

Executive Director 

Northwest Power and Conservation Council 

Attachments (Jan. 15th Joint Stakeholder letter to DOE) 

- 5 -

EERE-2008-BT-STD-0006 COMMENT 77
 Natural Resources Defense Council

March 19, 2010 

Ms. Brenda Edwards 

U.S. Department of Energy 

Building Technologies Program 

Mailstop EE-2J 

NOPM for Energy Conservation Standards for Residential Furnaces 

Docket EE–2009–BT–STD–0022 

1000 Independence Avenue, SW 

Washington, DC 20585-0121 

Dear Ms. Edwards, 

 The Natural Resources Defense Council and Earthjustice respectfully submit the attached 

memorandum regarding the Department of Energy‘s authority to establish multiple efficiency 

standards for central air conditioners to Docket EE–2009–BT–STD–0022. Thank you for your 

assistance. Should you have any questions or concerns, please do not hesitate to contact me. 

 Sincerely, 

 

 Katherine E. Houren 

 Pro Bono Fellowship Attorney 

 New York Bar # 4765079 

 Not Yet Admitted to Practice in Washington, D.C. 

EERE-2008-BT-STD-0006 COMMENT 77
1 

Table 1: Efficiency Levels Jointly Recommended for Central Air Conditioners by Efficiency Advocates and 

Manufacturers

Date: March 19, 2010 

To: Cathy Zoi, Assistant Secretary for Energy Efficiency and Renewable Energy and Scott 

Blake Harris, General Counsel 

CC: Roland Risser, Michael McCabe, Wes Anderson, Mohammed Khan, Bryan Miller, 

Michael Kido, Docket EERE-2008-BT-STD-0006, and Docket EE–2009–BT–STD–0022 

From: Timothy Ballo, Earthjustice and Kate Houren, Natural Resources Defense Council 

Re: DOE‘s Authority to Establish Multiple Efficiency Standards for Central Air Conditioners 

I. Introduction 

 This memorandum explains why the Department of Energy (DOE) has the authority to 

adopt the energy efficiency standards jointly recommended by manufacturers and efficiency 

advocates for residential central air conditioners installed in the southwestern U.S.1

 The jointly 

recommended standards would impose multiple performance requirements on central air 

conditioners in the states of California, Arizona, New Mexico, and Nevada (the Southwest), by 

requiring central air conditioners installed in this region to meet separate Seasonal Energy 

Efficiency Ratio (SEER) and Energy Efficiency Ratio (EER) standards, as depicted in Table 1. 

System 

Type Capacity

Base 

National 

Standard

Standard 

for 

Southeast

Standard for 

Southwest

SEER EER

Split < 45,000 Btu/h 13.0

SEER

14.0 

SEER

14.0 12.2

Split ≥ 45,000 Btu/h; < 65,000 

Btu/h

13.0 

SEER

14.0 

SEER

14.0 11.7

Package < 65,000 Btu/h 14.0 

SEER

14.0 

SEER

14.0 11.0

 The Department should adopt both SEER and EER standards for central air conditioners 

in the Southwest for several reasons. First, DOE‘s own scientific analysis supports the 

conclusion that the use of both a SEER and an EER standard for this region meets the 

Department‘s mandate to achieve the maximum energy savings that is technologically feasible 

and economically justified. Second, the Department has the authority to set separate regional 

energy efficiency standards. Third, prior rulemakings conducted under both the Clinton and 

Bush administrations clearly affirm the DOE‘s authority under the Energy Policy and 

 

1

 These standards for central air conditioners in the Southwest are a key part of a larger agreement between 

manufacturers and efficiency advocates, the full text of which is available at http://aceee.org/buildings/FurnaceACAgreement.pdf. 

EERE-2008-BT-STD-0006 COMMENT 77
2 

Conservation Act (EPCA), 42 U.S.C. §§ 6201-6422 to require that central air conditioners 

comply with both SEER and EER standards.2 Finally, basic principles of statutory construction 

support DOE‘s 2001 and 2002 interpretations of the EPCA, which allowed for the promulgation 

of multiple performance requirements when such standards would achieve the DOE‘s statutory 

mandate. 

Under prior presidential administrations, DOE‘s position on this issue has shifted. In 

2001 and 2002 air conditioner standard rules issued by DOE under the Clinton and Bush 

administrations, respectively, DOE took the position that it had the authority under the EPCA to 

adopt both EER and SEER standards (although it chose not to adopt EER standards at that time). 

However, during a later period of the Bush administration, in the context of furnace standard 

rules issued in 2004 and 2007, DOE changed its position and concluded that the EPCA limited 

the Department to issuing only a single metric standard. 

DOE under the current Secretary and administration has not yet taken a position on this 

significant statutory question. For the reasons described in this memo, NRDC and Earthjustice 

urge the Department to apply sound principles of statutory interpretation and conclude that the 

EPCA gives DOE the authority to adopt both EER and SEER standards in air conditioning 

rulemakings specifically, and overall, gives DOE authority to adopt multi-metric efficiency 

standards in all efficiency standard rules. 

 

II. The Need for Multiple Performance Standards for Central Air Conditioners in the 

Southwest 

 To achieve the greatest energy savings that are technically feasible and economically 

justified, DOE must apply both the SEER and EER standard to central air conditioners installed 

in the Southwest. The SEER standard, on its own, does not come close to addressing the 

standard climactic conditions in which central air conditioners operate in the Southwest. The 

disparity in conditions between the Southwest and other regions of the United States necessitates 

the use of both the SEER and EER standard. 

To briefly explain the distinction between the two metrics, EER reflects the efficiency of 

an air conditioner at steady-state operation, while SEER reflects the unit‘s overall cooling season 

performance.3 EER measures the cooling efficiency of an air conditioner when operating at a 

constant outdoor temperature. However, under typical summertime ambient conditions, most 

central air conditioners cycle on and off repeatedly to maintain a desired indoor temperature. 

This constant cycling degrades the cooling efficiency delivered to the end-user. Pacific Gas & 

Electric, RESIDENTIAL AIR CONDITIONING RULEMAKING: CRITICAL ISSUES FOR REGIONAL 

 

2

 See 67 Fed. Reg. 36368, 36393 (May 23, 2002) (stating that ―DOE believes that EPCA permits adoption of 

an EER standard‖ in addition to the SEER standard); 66 Fed. Reg. 7170, 7183 (Jan. 22, 2001) (stating ―[t]he 

Department believes that EPCA permits the adoption of an EER standard‖ in addition to the SEER standard).

3

 This section is intended to provide only a brief overview of the issue. A comprehensive discussion of the 

need for an additional performance metric for air conditioners in the Southwest can be found in the comments of 

Energy Solutions et al., submitted to the central air conditioner rulemaking docket on behalf Pacific Gas and 

Electric. Pacific Gas & Electric, RESIDENTIAL AIR CONDITIONING RULEMAKING: CRITICAL ISSUES FOR REGIONAL 

STANDARDS DEVELOPMENT (July 31, 2008). 

EERE-2008-BT-STD-0006 COMMENT 77
3 

STANDARDS DEVELOPMENT (July 31, 2008) at 4. The benefit of SEER is that it more accurately 

depicts the energy efficiency realized by users of air conditioners in regions of the country that 

experience ―normal‖ summer conditions. Instead of a snapshot of the unit‘s performance, SEER 

represents the average efficiency over a typical cooling season, reflecting the impact of varying 

ambient temperatures on air conditioner efficiency. See 65 Fed. Reg. 59,607 (Oct. 5, 2000) 

(comparing SEER and EER). 

 However, because summers in the Southwest feature ambient temperatures that far 

exceed those experienced in other parts of the country, SEER is particularly ill-suited to 

depicting—as a stand-alone metric—the efficiency of air conditioners installed in that region.4 

To provide sufficient cooling at these extreme outdoor temperatures, air conditioners installed in 

the Southwest must often operate uninterrupted for long stretches. This steady-state operation 

more closely resembles the EER performance measurement. Therefore, because central air 

conditioners with identical SEER ratings can have significantly different EER values,5

 it is 

essential to supplement the SEER rating with an EER rating to ensure that central air 

conditioners supplied to the Southwest are suited to the unique weather conditions of that 

region.6

To comply with its statutory mandate to achieve the greatest energy savings that are 

technically feasible and economically justified, it is essential that DOE use its authority to adopt 

regional standards for central air conditioners that take into account the steady-state operating 

mode in which these products most commonly operate in the Southwest. 

III. The EPCA Authorizes DOE to Adopt Regional Energy Efficiency Standards 

 Congress unambiguously provided DOE with the authority to promulgate separate, 

regional energy efficiency standards for central air conditioners in 2007 though section 306(a) of 

the Energy Independence and Security Act, Pub. L. 11-140, 121 Stat. 1492, 1556 (2007). The 

statute provides that for ―furnaces, central air conditioners, and heat pumps‖: 

In any rulemaking to establish a new or amended standard, the Secretary may 

consider the establishment of separate standards by geographic region for 

furnaces (except boilers), central air conditioners, and heat pumps. 

 

4

 Although the Air-Conditioning, Heating, and Refrigeration Institute certifies EER testing results taken at an 

outdoor temperature of 95°F, DOE‘s calculation for SEER is based on a measurement of EER taken at an outdoor 

temperature of 82°F. See 10 C.F.R. § 430 subpt. B, app. M. This relatively moderate 82°F outdoor temperature is 

an unrealistic depiction of summertime ambient conditions in the Southwest, where much of the space cooling 

demand occurs at temperatures at or above 95°F. See Noah Horowitz, RESIDENTIAL HVAC FOR HOT, DRY 

CLIMATES (2004) (estimating that 30% of the energy used for space cooling in some California cities is expended at 

outdoor temperatures above 95°F). 

5

 See, e.g., 66 Fed. Reg. 7183 (Jan. 22, 2001) (noting discrepancies between SEER and EER ratings for some 

central air conditioners, such as those equipped with variable speed compressors). 

6

 Moreover, the higher ambient temperatures in the Southwest impact the accuracy of DOE‘s SEER 

measurement in other ways. For example, refrigerant performance can degrade significantly at high outdoor 

temperatures, further reducing the accuracy of the existing SEER metric. Pacific Gas & Electric, RESIDENTIAL AIR 

CONDITIONING RULEMAKING: CRITICAL ISSUES FOR REGIONAL STANDARDS DEVELOPMENT (July 31, 2008) at 7-8.

EERE-2008-BT-STD-0006 COMMENT 77
4 

42 U.S.C. § 6295(o)(6). 

 The statute even goes on to expressly contemplate multiple efficiency standards in 

particular regions. The applicable language states that, in addition to the base national standard, 

DOE ―may establish 1 or 2 additional standards that are applicable in 1 or 2 geographic regions 

as may be defined by [DOE].‖ 42 U.S.C. § 6295(o)(6)(B)(ii)(II). The jointly recommended 

SEER and EER standards described above fit squarely within this command. For the smallest 

capacity split system central air conditioners, the joint recommendation calls for a base national 

standard of 13.0 SEER, supplemented with one additional regional standard of 14.0 SEER 

applicable in both the Southeast and Southwest and a second additional regional standard of 12.2 

EER applicable in the Southwest. In sum, ―2 additional standards‖ will apply to these products 

in ―2 geographic regions.‖ The result for the larger capacity split system units is the same, but 

with a slightly lower EER requirement (11.7) in the Southwest. Meanwhile, for single package 

central air conditioners, the joint recommendation calls for a base national standard of 14.0 

SEER, supplemented with only a single additional regional standard—11.0 EER in the 

Southwest. Thus, there is no conflict between the recommended levels and DOE‘s authority to 

adopt regional standards. 

 Because the EPCA expressly allows DOE to adopt multiple standards for air conditioners 

in a particular region, adopting the recommended SEER and EER standards is not only sound 

policy but supported by the EPCA. 

IV. Prior DOE Rulemakings Under Both the Clinton and Bush Administrations Clearly 

State that the Department Has the Authority to Adopt Both EER and SEER Standards. 

DOE‘s general authority to impose multiple requirements on an individual product is 

found in the definition of the term ―energy conservation standard‖ in the EPCA. 

(6) The term ―energy conservation standard‖ means—

(A) a performance standard which prescribes a minimum level of energy 

efficiency or a maximum quantity of energy use, or, in the case of 

showerheads, faucets, water closets, and urinals, water use, for a covered 

product, determined in accordance with test procedures prescribed under 

section 6293 of this title; or 

(B) a design requirement for [dishwashers, clothes washers, clothes dryers, 

kitchen ranges, ovens, certain showerheads, faucets, water closets, and metal 

halide lamp fixtures]; and 

includes any other requirements which the Secretary may prescribe under section 

6295(r) of this title. 

EERE-2008-BT-STD-0006 COMMENT 77
5 

42 U.S.C. § 6291(6).7, 8 The final part of the definition sweeps in requirements prescribed under 

42 U.S.C. § 6295(r), which provides as follows: 

(r) INCLUSION IN STANDARDS OF TEST PROCEDURES AND OTHER 

REQUIREMENTS.—Any new or amended energy conservation standard prescribed 

under this section shall include, where applicable, test procedures prescribed in 

accordance with section 6293 of this title and may include any requirement which 

the Secretary determines is necessary to assure that each covered product to which 

such standard applies meets the required minimum level of energy efficiency or 

maximum quantity of energy use specified in such standard. 

42 U.S.C. § 6295(r). 

In a 2001 final rule issued under the Clinton administration, DOE, affirmed its authority 

to adopt both SEER and EER standards for central air conditioners. 66 Fed. Reg. 7170 (Jan. 22, 

2001). DOE explained that ―[t]he Department believes that EPCA permits the adoption of an 

EER standard‖ in addition to the SEER standard but ultimately declined to impose the EER 

standard for technical reasons. Because this rulemaking set a national, not regional, standard, 

DOE concluded that ―[m]ost benefits accruing from an EER standard will likely accrue from the 

SEER standards alone, without the associated burdens on manufacturers and the disincentives to 

apply energy-saving modulating technologies.‖ Id. at 7183.9

 

Later, in a 2002 final rule issued under the Bush administration, DOE again affirmed its 

authority to adopt both SEER and EER standards for central air conditioners. 67 Fed. Reg. 

36368 (May 23, 2002). This final rule concluded an ultimately unsuccessful attempt by the 

Bush DOE to roll back the 13 SEER standard articulated in the 2001 Clinton final rule to a SEER 

12 standard. See NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004) (declaring DOE‘s 2002 final 

 

7

 The reference to metal halide lamp fixtures in subparagraph (B) may be the result of a drafting error. Prior 

to the enactment of the Energy Independence and Security Act (EISA), Pub. L. 110-140, 121 Stat. 1492 (2007), the 

text in subparagraph (B) cross-referenced 42 U.S.C. § 6292(a)(19), which at that time referred to any type of 

consumer product not among the 18 categories specifically listed in section 322 which DOE designated as a covered 

product. 42 U.S.C. § 6292(a)(19) (2006). Though EISA added metal halide lamp fixtures as the 19th covered 

product, the internal cross reference in 42 U.S.C. § 6291(6)(B) was not updated. 

8

 The quoted definition applies to household appliances covered under Part A of EPCA. Part A-1 of EPCA 

provides a similar definition applicable to commercial equipment: 

(18) The term ―energy conservation standard‖ means—

(A) a performance standard that prescribes a minimum level of energy efficiency or a 

maximum quantity of energy use for a product; or 

(B) a design requirement for a product. 

See 42 U.S.C. § 6311(18). Though focused on Part A, much of the analysis presented below is also directly 

applicable to Part A-1.

9

 The concerns that the Department cited in electing not to adopt a nationwide EER standard do not argue 

against the adoption of a regional EER standard for the Southwest. See 66 Fed. Reg. at 7183 (noting that a 

nationwide EER standard could discourage the adoption of energy saving variable speed and modulating 

technologies). Because of the higher ambient summer temperatures in the Southwest, variable speed and capacity 

modulating equipment have much less of an impact on the energy consumption of air conditioners installed in the 

Southwest. 

EERE-2008-BT-STD-0006 COMMENT 77
6 

rule invalid because the EPCA‘s anti-backsliding provision prevented DOE from reducing the 

SEER standard from 13 to 12). Even though DOE disagreed with the SEER 13 standard, it 

nevertheless affirmed in its 2002 final rule that ―DOE believes that EPCA permits adoption of an 

EER standard‖ in addition to the SEER standard. Id. at 36393. For technical reasons identical to 

those it cited in the 2001 final rule, DOE concluded that the EER standard was permitted but not 

desirable at a national scale. Id.

Because both the 2001 and 2002 rules were issued prior to Congress‘s 2007 amendments 

to the EPCA, which provided DOE with the specific authority to issue regional standards, the 

conclusions reached by the 2001 and 2002 rules speak directly to whether DOE, as a general 

matter, may apply multiple performance standards to individual covered products. As shown 

below, not only may DOE apply the EER and SEER standards to central air conditioners 

installed in the Southwest, but it may also apply multiple performance standards at a national 

level. 

V. Basic Principles of Statutory Construction Support DOE’s 2001 and 2002 

Interpretations of the EPCA, Which Affirmed DOE’s Authority to Apply Multiple 

Performance Standards to a Single Covered Product 

Some controversy over whether the EPCA permits DOE to adopt multiple performance 

standards for single covered products came about after DOE, in the later years of the Bush 

administration, reinterpreted the EPCA in 2004 and 2007 to preclude multiple standards.10 The 

2004 DOE interpretation is based upon a simple mistake—a failure to employ the basic 

principles of statutory construction set forth in the Dictionary Act and affirmed in subsequent 

case law. NRDC and Earthjustice urge the Department to realign its interpretation of the EPCA 

with correct interpretations set forth by prior administrations and sound principles of statutory 

interpretation. 

A. 2004 DOE Rulemaking Reinterprets the EPCA

In a 2004 rulemaking to amend the efficiency standards for residential furnaces and 

boilers, the Bush administration DOE reversed its view that the EPCA permits the Department to 

adopt multiple performance standards for single covered products. Although the framework 

document for that rulemaking suggested that DOE might adopt separate standards to limit the 

maximum electricity consumption of oil and natural gas-fired heating equipment, in addition to 

the standards governing the equipment‘s fossil fuel energy efficiency,11 the Department 

ultimately reversed course in its advance notice of proposed rulemaking, stating that it now 

viewed such an approach as contrary to the statutory definition of ―energy conservation 

standard.‖ 69 Fed. Reg. 45,420, 45,427 (July 29, 2004). The Department asserted that ―a single 

 ̳energy conservation standard‘ cannot have measures or descriptions for both energy efficiency 

and energy use.‖ 69 Fed. Reg. 45,420, 45,427 (July 29, 2004). DOE also pointed to the 

statutory definition of energy conservation standard in rejecting regionally differentiated 

 

10 69 Fed. Reg. 45,420, 45,427 (July 29, 2004); 72 Fed. Reg. 65,136, 65,151 (Nov. 19, 2007). 

11 DOE, FRAMEWORK DOCUMENT FOR RESIDENTIAL FURNACES AND BOILERS ENERGY CONSERVATION 

STANDARDS RULEMAKING at 19 (July 17, 2001). 

EERE-2008-BT-STD-0006 COMMENT 77
7 

standards and separate standards for heating equipment destined for use in newly constructed 

housing. 69 Fed. Reg. at 45,425. In the final rule, DOE reiterated its conclusion that the use of 

the singular tense in the definition of energy conservation standard prohibits multiple standards 

for furnaces. 

In defining an energy conservation standard, EPCA employs ―a performance 

standard‖ or ―a design requirement‖ in the singular. (42 U.S.C. 6291(6)) This 

use of the singular indicates that the Secretary generally may only set one energy 

conservation standard for a product. 

72 Fed. Reg. 65,136, 65,151 (Nov. 19, 2007). 

B. 2004 and 2007 DOE Statements Misinterpreted the EPCA 

The Department‘s 2004 and 2007 statements are based on mistaken interpretations of the 

EPCA. First, rather than constraining DOE‘s authority by implication, the use of the singular 

tense merely reflects that statutory definitions are by their own nature illustrative. The 

Dictionary Act, 1 U.S.C. § 1, supports this view and states 

In determining the meaning of any Act of Congress, unless the context indicates 

otherwise—

words importing the singular include and apply to several persons, parties or 

things. 

1 U.S.C. § 1. Here, the definition of ―energy conservation standard‖ indicates that each time the 

EPCA refers to the term ―energy conservation standard‖ it is referring to some regulatory 

imposition that will either take the form of a performance standard or a design requirement. In a 

similar vein, the EPCA‘s definition of the term ―central air conditioner‖ indicates that each time 

the EPCA refers to the term ―central air conditioner‖ it is referring to the universe of products 

that possess the attributes listed in the definition. See 42 U.S.C. § 6291(21).12

 

 

Additionally, the operative provisions of the EPCA similarly apply in plural form the 

definition of energy conservation standard. Section 325 repeatedly refers to ―standards‖ that 

DOE must prescribe for covered products. See, e.g., 42 U.S.C. § 6295(d) (―Standards for central 

air conditioners and heat pumps‖). Although the EPCA does in some instances refer specifically 

to the prescription of ―an energy conservation standard‖ for a given product, see 42 U.S.C. § 

6295(l)(1), this exception only proves the rule. When Congress provides language limiting 

agency discretion in one provision, a more expansive grant of discretion in adjacent provisions 

may not be ignored. See Vonage Holdings Corp. v. FCC, 489 F.3d 1232 (D.C. Cir. 2007) (―we 

have repeatedly held that  ̳[w]here different terms are used in a single piece of legislation, the 

court must presume that Congress intended the terms to have different meanings.‘‖ (quoting 

Transbrasil S.A. Linhas Aereas v. DOT, 791 F.2d 202, 205 (D.C. Cir. 1986)) (alteration in 

original). Thus, absent language elsewhere in the EPCA that indicates that a particular covered 

 

12 Supreme Court precedent also supports the illustrative role of definitions in a statutory scheme. See U.S. v. 

Fior D‘Italia, Inc., 536 U.S. 238 (2002) (holding that the use of the singular tense in a definitional section could not 

override the statute‘s operational sections, which would have been frustrated by the singular tense).

EERE-2008-BT-STD-0006 COMMENT 77
8 

product may be subject only to a single energy conservation standard, there is no rational basis 

for DOE‘s conclusion that the use of the singular in the definition must be given controlling 

weight.13 

Likewise, the single standard conclusion articulated by the Bush administration DOE in 

2004 and 2007 would undermine the goals of the EPCA. While not disputing the applicability of 

the Dictionary Act, in the furnaces rulemaking discussed above, DOE erroneously concluded that 

the context of the EPCA indicates that Congress did not intend the use of the singular in the 

definition of energy conservation standard to include the plural form. The Department asserted 

that construing that definition as permitting the Department to adopt multiple performance 

standards for a single product would render meaningless the authority granted by 42 U.S.C. § 

6295(o)(5) to set multiple standards for products that have more than one major function. 72 

Fed. Reg. at 65,151. 

To the contrary, this conclusion not only misreads the statutory context, it undermines the 

very purposes behind the EPCA. Congress enacted the EPCA to accomplish several purposes, 

including the following: 

(4) to conserve energy supplies through energy conservation programs, and, 

where necessary, the regulation of certain energy uses; 

(5) to provide for improved energy efficiency of motor vehicles, major 

appliances, and certain other consumer products; 

. . . and 

(8) to conserve water by improving the water efficiency of certain plumbing 

products and appliances. 

42 U.S.C. § 6201. DOE‘s narrow interpretation of its authority serves none of these purposes. 

 The criteria set out in the EPCA to guide DOE‘s selection of standard levels also compels 

the conclusion that multiple requirements may be imposed. Section 325(o)(2)(A) provides that 

DOE must set standards at the maximum technologically feasible level that is economically 

justified. 42 U.S.C. § 6295(o)(2)(A). It would be perverse for Congress to tie DOE‘s hands by 

limiting the Department‘s discretion to adopt regulations that achieve this goal. It is no objection 

that Congress may have intended to ensure that DOE did not burden manufacturers with multiple 

requirements, because the interests of manufacturers are well protected under the statute. DOE 

may only adopt standards that are economically justified, and in determining economic 

justification DOE must consider the impacts on manufacturers, as well as the impacts on 

competition. Standards that prescribe multiple requirements undoubtedly face greater scrutiny in 

weighing these impacts, but DOE‘s ability to take such factors into account argues against the 

likelihood that Congress would think it necessary to bar DOE from even considering whether to 

adopt a standard that imposes multiple requirements. 

 

13 Moreover, even in instances where EPCA calls for the promulgation of ―an energy conservation standard,‖ 

the Dictionary Act, 1 U.S.C. § 1, and the overall statutory scheme indicate that multiple metric standards are 

authorized. 

EERE-2008-BT-STD-0006 COMMENT 77
9 

 Specific language in other provisions of the EPCA also refutes the contention that 

Congress intended to bar multiple requirements. For example, the provision establishing the 

purposes of section 325 is not the only EPCA provision that refers to a single product being 

subject to multiple standards. In fact, the EPCA frequently refers to single, specific products as 

being potentially subject to multiple standards. For example, the EPCA does this with lamps: 

(E) The terms ―fluorescent lamp‖ and ―incandescent lamp‖ do not include any 

lamp excluded by the Secretary, by rule, as a result of a determination that 

standards for such lamp would not result in significant energy savings because 

such lamp is designed for special applications or has special characteristics not 

available in reasonably substitutable lamp types. 

42 U.S.C. § 6291(30)(D) (emphasis added). The EPCA repeats this approach with respect to 

distribution transformers: 

(B) The term ―distribution transformer‖ does not include--

. . . 

(iii) any transformer . . . that is excluded by the Secretary by rule because--

(I) the transformer is designed for a special application; 

(II) the transformer is unlikely to be used in general purpose applications; 

and 

(III) the application of standards to the transformer would not result in 

significant energy savings. 

42 U.S.C. § 6291(35)(B) (emphasis added). 

 As noted above, DOE asserted in the furnaces rulemaking that reading the EPCA to allow 

the imposition of multiple standards for a single product would render meaningless the authority 

granted by 42 U.S.C. § 6295(o)(5) to set multiple standards for a product if that product has more 

than one major function. 72 Fed. Reg. at 65,151. However, this assertion ignores that there is 

still a unique role for section 325(o)(5) even if DOE views multiple standards as generally 

permissible. That section clarifies the Department‘s authority to cover all aspects of the 

operation of appliances designed to perform more than one major function. Absent this 

provision, even given the authority to set multiple standards for a single function, it could be 

subject to debate whether DOE had the authority to issue standards covering each function of a 

product that combines multiple functions.14

 

14 Though section 325(o)(5) was ultimately enacted as part of the Energy Policy Act of 2005, Pub. L. 109-58 

§ 135(c)(3), 2005 U.S.C.C.A.N. (119 Stat.) 594, 629, Congress had previously felt it necessary to clarify in report 

language DOE‘s authority to regulate each function of combination appliances. 

The energy conservation standards specified in the Act apply to the principal function of an 

appliance . . . . The reason for this is that DOE test procedures are based on the average use cycle 

for the principal function of the appliance and do not specify a use cycle that would occur if that 

appliance were also performing another function. 

If DOE establishes test procedures for both functions of combination appliances, energy 

conservation standards for both functions of such appliances may be established. 

EERE-2008-BT-STD-0006 COMMENT 77
10 

 The fact that section 325(o)(5) indicates that DOE may deal with combination appliances 

―by setting 1 energy conservation standard for each major function,‖ does not mean that DOE 

may set only one standard for each major function. As noted above, 1 U.S.C. § 1 provides that, 

unless context indicates otherwise, the use of the singular tense includes consideration of the 

plural tense. Here there is no context to indicate that Congress intended to block DOE from 

setting multiple performance standards for individual combination products. Had Congress 

sought to accomplish this goal, it could easily have provided that DOE may regulate combination 

products ―by setting no more than 1 energy conservation standard for each major function.‖ 

C. The Definition of the Term “Efficiency Descriptor” Does Not Restrict Standards for 

Central Air Conditioners to SEER

DOE‘s authority to adopt an EER standard for central air conditioners installed in the 

Southwest is not impacted by the EPCA‘s definition of ―efficiency descriptor‖ as being 

expressed for central air conditioners in terms of SEER. See 42 U.S.C. § 6291(22)(C) (definition 

of ―efficiency descriptor‖).15 Though the EPCA lists such ―efficiency descriptors‖ for several 

products in section 321(22), ―efficiency descriptor‖ is a term that appears nowhere else in the 

statute‘s appliance and commercial equipment provisions,16 and nothing in the language of 

section 321 indicates that this definition was intended to impose an obligation on the 

Department. Nor does the same definition‘s reference to EER as the efficiency descriptor for 

room air conditioners alter this conclusion. See id. § 6291(22)(B). For example, there are no 

words of limitation to indicate that SEER is the only efficiency descriptor that may be applied to 

central air conditioners, or that EER is the efficiency descriptor for room air conditioners 

exclusively. 

 To the extent that the EPCA‘s definition of ―efficiency descriptor‖ has any relevance at 

all, the only reasonable way to read this provision is as a reinforcement of the command in 

section 323(a) that the test procedures in effect on the date of enactment of the National 

Appliance Energy Conservation Act of 1987 (NAECA), Pub. L. 100-12, 101 Stat. 103 (1987), 

 

 

House Report No. 100-11 at 20 (1987). 

15 Section 321(22) provides as follows: 

(22) The term ―efficiency descriptor‖ means the ratio of the useful output to the total energy input, 

determined using the test procedures prescribed under section 6293 of this title and expressed for 

the following products in the following terms: 

(A) For furnaces and direct heating equipment, annual fuel utilization efficiency. 

(B) For room air conditioners, energy efficiency ratio. 

(C) For central air conditioning and central air conditioning heat pumps, seasonal energy 

efficiency ratio. 

(D) For water heaters, energy factor. 

(E) For pool heaters, thermal efficiency. 

42 U.S.C. § 6291(22). 

16

 The only other reference to ―efficiency descriptor‖ outside of the definition of the term is in the definition 

of ―annual fuel utilization efficiency‖ (AFUE), which provides that AFUE is ―the efficiency descriptor for furnaces 

and boilers.‖ 42 U.S.C. § 6291(20).

EERE-2008-BT-STD-0006 COMMENT 77
11 

remain in effect until amended by DOE. 42 U.S.C. § 6293(a). At the time Congress enacted 

NAECA, which added the ―efficiency descriptor‖ definition, see NAECA § 2, 101 Stat. at 104, 

SEER was the method used for determining the efficiency of central air conditioners. See, e.g., 

NAECA § 5, 101 Stat. at 109-110 (codified at 42 U.S.C. § 6295(d)(1)) (establishing minimum 

SEER ratings for central air conditioners). Therefore, by indicating that SEER, ―as determined 

using the test procedures prescribed under [42 U.S.C. § 6293],‖ expressed the efficiency 

descriptor for central air conditioners, Congress emphasized its intent to adopt minimum SEER 

standards that were tied to the existing DOE test procedure for SEER. It is no response to argue 

that such a reading renders the reference to SEER in section 321(22) superfluous, as the courts 

have observed that Congress does sometimes build redundancy into statutory schemes. See

Sabre, Inc. v. DOT, 429 F.3d 1113, 1122 (D.C. Cir. 2005) ("Legislative drafters often use 

apparently redundant language‖ to avoid evasions that ―frustrate a statute‘s purpose‖). 

 A contrary reading that views the definition of efficiency descriptor as mandating that 

SEER is the only performance metric DOE may apply to central air conditioners would lead to 

absurd results. For instance, while DOE has always had the authority to amend the test 

procedures that define SEER, see NAECA § 4, 101 Stat. at 106, subsequent amendments to the 

EPCA now require the Department to review and, if necessary, amend the existing test 

procedures for central air conditioners and all other covered products on a set schedule. 42 

U.S.C. § 6293(b)(1)(A). The determination of whether to amend is based on DOE‘s conclusion 

that amended test procedures ―would more accurately or fully comply‖ with the EPCA‘s 

fundamental requirement that test procedures ―produce test results which measure [performance] 

. . . during a representative average use cycle or period of use.‖ Id. § 6293(b)(1)(A)(i), (b)(3). 

Reading section 321(22) as mandating that DOE gauge central air conditioner performance 

through the application of SEER ignores that more accurate test procedures may be developed. 

Such a reading would either force the Department to maintain a less accurate test method, or 

undertake the nonsensical exercise of renaming the output of any such more accurate test method 

as ―SEER.‖ 

VI. Conclusion 

 For the reasons stated above, the Department has clear authority to adopt efficiency 

standards consisting of both SEER and EER performance requirements for central air 

conditioners installed in the Southwest. The EPCA permits the imposition of multiple 

requirements in energy conservation standards for covered products, and none of the provisions 

in the EPCA that are specific to central air conditioners contradict this conclusion. We urge 

DOE to recognize this authority and to adopt the EER and SEER standards for residential central 

air conditioners jointly recommended by manufacturers and efficiency advocates. More broadly, 

we urge DOE to reaffirm its authority under the EPCA to issue multiple efficiency standards, 

where appropriate, for all products covered under the EPCA. 

EERE-2008-BT-STD-0006 COMMENT 77
April 27, 2010 

Ms. Brenda Edwards 

U.S. Department of Energy 

Building Technologies Program 

Mailstop EE-2J

SNOPR on Test Procedures for Residential Furnaces and Boilers 

Docket Number EERE–2008–BT–TP–0020 

RIN 1904–AB89 

1000 Independence Avenue, SW 

Washington, DC 20585-0121 

Dear Ms. Edwards: 

 The Natural Resources Defense Council respectfully submits the 

attached comments on the SNOPR on Test Procedures for Residential 

Furnaces and Boilers to Docket Number EERE–2008–BT–TP–0020, RIN 

1904–AB89. Thank you for your assistance. Should you have any questions 

or concerns, please do not hesitate to contact me. 

 Sincerely, 

 

 Katherine E. Houren 

 Pro Bono Fellowship Attorney 

 New York Bar # 4765079 

 Not Yet Admitted to Practice in Washington, D.C. 

 

 

EERE-2008-BT-STD-0006 COMMENT 77
1 

Comments of the Natural Resources Defense Council on the Supplemental 

Notice of Proposed Rulemaking ―SNOPR‖ on Test Procedures for Residential 

Furnaces and Boilers, 75 Fed. Reg. 17,075 (Apr. 5, 2010) 

April 27, 2010 

Docket Number: EERE–2008–BT–STD–0020

RIN: 1904–AB89

 

 

I. Introduction 

 

The Natural Resources Defense Council (NRDC) is a national environmental 

advocacy organization with over 1.3 million members and online activists. 

NRDC has spent decades working to build and improve DOE’s federal 

appliance standards programs because of the important energy, 

environmental, and consumer benefits of appliance efficiency standards. 

NRDC participated in the enactment of the first federal legislation 

establishing efficiency standards and has been active in all significant 

rulemakings since then. 

NRDC submits these comments as a signatory of the consensus agreement 

negotiated and agreed to by NRDC; other efficiency and environmental 

groups; and the trade association for the manufacturers of residential 

furnaces, central air conditioners, and heat pumps.1 NRDC fully supports 

 

1 Agreement on Legislative and Regulatory Strategy for Amending Federal 

Energy Efficiency Standards, Test Procedures, Metrics and Building Code 

Provisions for Residential Air Conditioners, Heat Pumps, Weatherized and 

Non-Weatherized Furnaces and Related Matters, Oct. 13, 2009 (hereinafter 

―consensus agreement‖), at http://aceee.org/buildings/FurnaceACAgreement.pdf. The following organizations and companies are 

signatories to the consensus agreement: Air-Conditioning, Heating and 

Refrigeration Institute; American Council for an Energy-Efficient Economy; 

Alliance to Save Energy; Natural Resources Defense Council; Northwest 

Power and Conservation Council; Appliance Standards Awareness Project; 

California Energy Commission; Northeast Energy Efficiency Partnerships; 

Bard Manufacturing, Inc; Carrier Residential and Light Commercial 

Systems; Goodman Global, Inc; Lennox Residential; Mitsubishi Electric and 

EERE-2008-BT-STD-0006 COMMENT 77
2 

the consensus agreement and requests that the Department of Energy (DOE 

or Department) move expeditiously to adopt the levels and dates presented 

by the agreement.2

NRDC provides additional comments on the infeasibility of the Department’s 

proposal for an integrated efficiency descriptor, AFUEI, that incorporates 

standby and off mode energy consumption into the statutorily identified 

efficiency descriptor, Annual Fuel Utilization Efficiency (AFUE). Because 

AFUEI is infeasible, NRDC urges the Department to adopt separate metrics 

to measure the standby and off mode energy consumption of residential 

furnaces and boilers. 

II. The Consensus Agreement 

As explained above, NRDC is a signatory to the consensus agreement on 

residential furnaces, central air conditioners, and heat pumps submitted to 

DOE on January 15, 2010. The consensus agreement recommends regional 

standards and multiple metrics for furnaces. We strongly urge the 

Department to move forward expeditiously to implement the standards 

contained in the agreement. 

 

 

III. The AFUEI Test Procedure Does Not Comply With the 2007 

Amendments to the Energy Policy and Conservation Act 

Section 310 of the Energy Independence and Security Act of 2007 (EISA), 

Public Law 110–140, amended the Energy Policy and Conservation Act 

(EPCA), 42 U.S.C. §§ 6201-6422, to require that the 

[t]est procedures for all covered products shall be amended 

pursuant to section 323 to include standby mode and off mode 

energy consumption . . . with such energy consumption 

integrated into the overall energy efficiency, energy 

consumption, or other energy descriptor for each covered 

product, unless the Secretary determines that— 

 

Electronics USA; National Comfort Products; Rheem Manufacturing 

Company; Trane Residential; and Desert Aire. 

2 The Department has the authority to adopt all provisions of the consensus 

agreement except the building codes provisions, which the signatories are 

pursuing through legislation. 

EERE-2008-BT-STD-0006 COMMENT 77
3 

(i) the current test procedures for a covered product 

already fully account for and incorporate the standby 

mode and off mode energy consumption of the covered 

product; or 

(ii) such an integrated test procedure is technically 

infeasible for a particular covered product, in which case 

the Secretary shall prescribe a separate standby mode 

and off mode energy use test procedure for the covered 

product, if technically feasible. 

42 U.S.C. § 6295(gg)(2)(A) (emphasis added). Elsewhere in the same section, 

however, the EISA provides slightly different guidance about when DOE 

must incorporate standby and off mode energy use into a single standard: 

 (A) IN GENERAL.—Subject to subparagraph (B), based on the 

test procedures required under paragraph (2), any final rule 

establishing or revising a standard for a covered product, 

adopted after July 1, 2010, shall incorporate standby mode and 

off mode energy use into a single amended or new standard, 

pursuant to subsection (o), if feasible. 

(B) SEPARATE STANDARDS.—If not feasible, the Secretary 

shall prescribe within the final rule a separate standard for 

standby mode and off mode energy consumption, if justified 

under subsection (o). 

42 U.S.C. § 6295(gg)(3)(A)–(B) (emphasis added). Regardless of whether 

DOE determines that ―technically feasible‖ or simply ―feasible‖ is the 

relevant test to apply when promulgated amended standards, the 

Department cannot to meet the requirements of the EPCA with the proposed 

AFUEI test procedure. 

Technical research by respected labs proves that the proposed AFUEI test 

procedure does not meet the statutory requirements of the EPCA. The 

Energy Center of Wisconsin and Proctor Engineering have shown that the 

average combined standby and off mode electrical energy use for a residential 

natural gas furnace is between 7 watts and 13 watts. The 2005 California 

Residential Energy Consumption Survey (RECS) data suggests that for a 

household using a natural gas furnace, average annual space heating gas use 

is 50.3 million Btu. If a furnace has a standby and off mode electrical energy 

use of 13 watts and spends 80 percent of the heating season in standby or off 

mode, total electrical energy use in these modes is still less than 0.62 percent 

of total annual energy use. 

EERE-2008-BT-STD-0006 COMMENT 77
4 

It is not feasible to regulate standby and off mode electrical energy when it 

may be less than the rounding error of the regulated metric. For example, 

consider two natural gas furnaces with an 80 percent AFUE and an average 

annual gas energy use of 50.3 million Btu. If one furnace uses 6 watts in 

standby mode and the other furnace uses 13 watts in standby mode, then the 

AFUEI measurement for these furnaces would be 79.5 percent and 79.7 

percent, respectively. Current DOE requirements for reporting AFUE allow 

rounding to two significant figures. If DOE continues to allow this level of 

rounding for AFUEI, then these two furnaces would both receive an AFUEI of 

80 percent, and standby and off mode energy consumption would be relegated 

to a rounding error. In other words, the proposed AFUEI metric would not be 

able to distinguish between these two pieces of equipment, even though one 

has more than double the standby electrical energy use. DOE cannot meet 

its statutory requirement to measure standby and off mode energy use if the 

test procedure that the Department uses cannot distinguish between 

products with vastly different levels of standby and off mode energy use. 

To meet its statutory requirement with the AFUEI test procedure, DOE 

would need to recognize differences in measurements to a hundredth of a 

percent in order to capture accurately the difference in standby and off mode 

energy use between most products. DOE has not proposed any such change 

in policy in any of its materials for this docket. Even if DOE had proposed 

requiring measurements to a hundredth of a percent under the AFUEI test 

procedure, it is questionable whether the test procedure would then pass the 

benefits and burdens analysis required under section 6295(o) of the EPCA. 

From a testing and enforcement perspective, the AFUEI test procedure 

simply will not measure standby and off mode energy use in furnaces. As a 

result, reliance on the proposed AFUE I metric will not meet the DOE’s 

statutory duty ―to include standby mode and off mode energy consumption.‖ 

42 U.S.C. § 6295(gg)(2)(A). We strongly urge the DOE to use the existing 

AFUE metric to regulate the gas use and active mode electrical energy use of 

residential furnaces, and to establish a separate metric to regulate standby 

and off mode energy use. 

 

 

IV. Conclusion 

NRDC opposes the Department’s proposal to integrate standby power into 

the AFUE metric. The proposed AFUEI test procedure will not meet the 

DOE’s statutory requirement to measure standby and off mode energy use 

because the test procedure would relegate differences among furnaces to a 

rounding error. NRDC urges the Department to adopt separate test 

EERE-2008-BT-STD-0006 COMMENT 77
5 

procedures for standby and off mode energy use consistent with the terms of 

the consensus agreement. 

NRDC appreciates the opportunity to comment on this rule-making. 

Sincerely, 

Lane Burt 

Manager, Building Energy Policy 

Katherine E. Houren 

Pro Bono Fellowship Attorney 

New York State Bar # 788246 

Not Yet Admitted to Practice in Washington, D.C. 

EERE-2008-BT-STD-0006 COMMENT 77
0 

 

April 27, 2010 

Ms. Brenda Edwards 

U.S. Department of Energy 

Building Technologies Program 

Mailstop EE-2J

NOPM for Energy Conservation Standards for Residential Furnaces 

Docket Number EE–2009–BT–STD–0022 

RIN 1904–AC06 

1000 Independence Avenue, SW 

Washington, DC 20585-0121 

Dear Ms. Edwards: 

 The Natural Resources Defense Council respectfully submits the 

attached comments on the NOPM for Energy Conservation Standards for 

Residential Furnaces to Docket Number EE–2009–BT–STD–0022. Thank 

you for your assistance. Should you have any questions or concerns, please 

do not hesitate to contact me. 

 Sincerely, 

 

 Katherine E. Houren 

 Pro Bono Fellowship Attorney 

 New York Bar # 4765079 

 Not Yet Admitted to Practice in Washington, D.C. 

EERE-2008-BT-STD-0006 COMMENT 77
1 

Comments of the Natural Resources Defense Council on the NOPM for 

Energy Conservation Standards for Residential Furnaces, 75 Fed. Reg. 

12,144 

(Mar. 15, 2010) 

April 27, 2010 

Docket Number: EE–2009–BT–STD–0022

RIN: 1904–AC06

I. Introduction 

The Natural Resources Defense Council is a national environmental advocacy 

organization with over 1.3 million members and online activists. NRDC has 

spent decades working to build and improve the Department of Energy’s 

(DOE or Department) federal appliance standards programs because of the 

important energy, environmental, and consumer benefits of appliance 

efficiency standards. NRDC participated in the enactment of the first federal 

legislation establishing efficiency standards, and has been active in all 

significant rulemakings since then. 

NRDC submits these comments as a signatory of the consensus agreement 

negotiated and agreed to by NRDC, other efficiency and environmental 

groups and the trade association for the manufacturers of residential 

furnaces, central air conditioners, and heat pumps.1 NRDC fully supports 

 

1

 Agreement on Legislative and Regulatory Strategy for Amending Federal Energy 

Efficiency Standards, Test Procedures, Metrics and Building Code Provisions for 

Residential Air Conditioners, Heat Pumps, Weatherized and Non-Weatherized Furnaces 

and Related Matters, Oct. 13, 2009 (hereinafter “consensus agreement”), at 

http://aceee.org/buildings/Furnace-ACAgreement.pdf. The following organizations and 

companies are signatories to the consensus agreement: Air-Conditioning, Heating and 

Refrigeration Institute; American Council for an Energy-Efficient Economy; Alliance to 

Save Energy; Natural Resources Defense Council; Northwest Power and Conservation 

Council; Appliance Standards Awareness Project; California Energy Commission; 

Northeast Energy Efficiency Partnerships; Bard Manufacturing, Inc; Carrier Residential 

and Light Commercial Systems; Goodman Global, Inc; Lennox Residential; Mitsubishi 

Electric and Electronics USA; National Comfort Products; Rheem Manufacturing 

Company; Trane Residential; and Desert Aire. 

EERE-2008-BT-STD-0006 COMMENT 77
2 

the consensus agreement and requests that DOE move expeditiously to adopt 

the levels and dates presented by the agreement. 

NRDC provides additional comments on the following issues: 

 The Department should Adopt the Consensus Agreement. 

 The Department has the Authority to Adopt Expedited Effective Dates. 

 The Department has the Authority to Utilize both SEER and EER for 

the Southwest, as Proposed by the Consensus Agreement. 

 Regulating Standby Consumption in Furnaces With a Single Metric is 

Not Feasible. 

 NRDC Supports the Department’s Consideration of Regional 

Enforcement Schemes. 

 The Department should Regulate Electric Furnaces. 

 The Department should not use Impacts on Subclasses to Determine 

Standard Levels. 

 The Department should Combine the Furnace, Central Air 

Conditioner, and Furnace Fan Rulemakings. 

 Market Penetration will Resemble the ―Shift‖ Scenario.

 

II. The Department should Adopt the Consensus Agreement. 

NRDC is a signatory to the consensus agreement on residential furnaces and 

central air conditioners and heat pumps submitted to DOE on January 15, 

2010. We strongly urge the Department to move forward expeditiously to 

implement the standards contained in the agreement.2 

III. The Department has the Authority to Adopt Expedited Effective 

Dates. 

In the November 2007 final rule for residential furnaces, DOE set an eightyear implementation period. 72 Fed Reg. 65136, 65152 (Nov. 19, 2007). 

NRDC respectfully submits that an eight-year lead time is not required for 

residential furnaces. The Department has already affirmed its ability to 

adopt expedited effective dates under consensus agreements,3 and nothing in 

 

2

Id. Note that the Department has the authority to adopt all provisions of the consensus 

agreement except the building codes provisions, which the signatories are pursuing 

through legislation. 

3

 Energy Conservation Program for Consumer Products; Central Air Conditioners and 

Heat Pumps Energy Conservation Standards, 69 Fed. Reg. 50,997, 50,998 (Aug. 17, 

EERE-2008-BT-STD-0006 COMMENT 77
3 

the Energy Policy and Conservation Act (EPCA), 42 U.S.C. §§ 6201-6422, 

requires an eight-year lead time. The Department, therefore, should adopt 

the effective compliance dates set forth in the consensus agreement of May 1, 

2013 for non-weatherized furnaces and January 1, 2015 for weatherized 

furnaces to achieve the mandates and objectives of the EPCA and preserve 

the value of consensus decision-making. 

In 2004, DOE clearly affirmed its authority under the EPCA to adopt a 

shortened implementation period when all the stakeholders, including 

manufacturers, agree. See 69 Fed. Reg. 50,997 (Aug. 17, 2004) (setting a 

seventeen month implementation period for central air conditioners under a 

consensus agreement).4 The final rule for central air conditioners explained 

that when DOE fails to issue a rule by the deadline provided in the EPCA, it 

will generally ―adjust the date such rule becomes enforceable to allow for the 

same amount of lead time as [originally] provided in the statute.‖ Id. at 

50998. However, DOE stated that in ―special circumstances‖ it will abandon 

that practice and adopt an expedited implementation period. Id. The special 

circumstance present in the central air conditioner rulemaking was a 

consensus agreement between ―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,‖ which 

stated that a five year lead time was not needed. Id. Later, in the November 

2007 final rule for residential furnaces, DOE insisted on an eight-year lead 

time because ―no similar consensus among furnace and boiler manufacturers‖ 

existed. 72 Fed. Reg. 65,152. 

In the instant rulemaking, DOE may no longer rely on the absence of ―special 

circumstances‖ to justify an eight-year lead time. The parties to this 

rulemaking, including the manufacturers who would have to comply with the 

standards, have agreed to effective dates of May 1, 2013 for non-weatherized 

furnaces and January 1, 2015 for weatherized furnaces. DOE recognized the 

importance of consensus agreements in the central air conditioner 

rulemaking and the 2007 final rule for furnaces. It should do the same here. 

Additionally, the EPCA does not require or support an eight-year lead time. 

Under Congress’ mandated schedule, DOE had a legal responsibility to 

complete this rulemaking by 1994 and implement the rule by 2002. 42 U.S.C. 

§ 6295(f)(4)(B). This provision does not require or provide for an automatic 

 

2004) (providing in the publication of a final rule for an effective date of January 23, 

2006). 

4 DOE has adopted recommendations from consensus agreements in other contexts. See

66 Fed. Reg. 3,314, 3,315 (Jan. 12, 2001) (adopting a two-phase standard with a 

significant increase in required efficiency as a result of a consensus agreement reached 

between stakeholders). 

EERE-2008-BT-STD-0006 COMMENT 77
4 

eight-year gap between the issuance of the final rule and the compliance date 

if DOE in fact issues the final rule sixteen years late. As explained above, 

DOE itself has acknowledged in the central air conditioner rulemaking that 

when a rule is issued later than the statutory deadline, it is not legally 

required to establish a compliance date that reflects the lead time provided in 

the statute between the original deadline for issuing the rule and the 

statutory compliance date. See 69 Fed. Reg. 50,997, 50,9978 (Aug. 17, 2004); 

67 Fed. Reg. 36,368, 36,394 (May 23, 2002). 

Moreover, an eight-year lead time cannot be implied for furnaces. In contrast 

with other covered products, the EPCA does not require or even provide a 

lead time for furnaces. The EPCA mandates lead times for several covered 

products. See, e.g., 42 U.S.C. § 6295(i)(3)–(5) (making amended standards for 

lamps effective 36 months after rule publication); id. § 6295(v)(3) (making 

standards for vending machines effective 3 years after final rule publication); 

id. § 6295(c)(2)(C)(i) (applying amended standards for room air conditioners 

five years after the effective date of the previous amendment); id. § 

6295(m)(4) (tying subsequent amended standards for all products to rule 

publication date). For furnaces, the EPCA, instead, directs DOE to 

implement amended furnace standards by a specific date—January 1, 2002. 

42 U.S.C. § 6295(f)(4)(B).

DOE has far-exceeded the 1994 deadline to determine whether to amend the 

statutory standards for furnaces and the January 1, 2002 implementation 

date. Further delay, in the absence of a statutory directive or stakeholder 

requests to provide lead time would place the internal policies of the 

Department over clear statutory deadlines. The Department must recognize 

Congress’ decision to emphasize a specific compliance date and endeavor to 

meet that deadline or comply thereafter at the earliest possible time. 

Finally, DOE’s representations to the court in New York v. DOE indicated 

that the Department understood the urgency with which it should complete 

and implement new furnace standards. The instant proceedings on remand 

to revise the standards issued in 2007 are governed by the January 1, 2002 

compliance date. 42 U.S.C. § 6295(f)(4)(B). In New York v. DOE, DOE 

moved on April 15, 2009 for a voluntary ―order remanding this proceeding for 

the Department of Energy to undertake further notice and comment 

rulemaking proceedings, leading to a revised final rule.‖ Mem. in Supp. of 

Mot. for Voluntary Remand at 1, New York v. DOE, No. 08-0311-ag (2d Cir. 

Apr. 15, 2009). DOE stated that ―[a] voluntary remand allowing DOE to 

reopen its proceedings for additional comments and the development of a 

revised final rule would provide an opportunity for the agency to analyze the 

effect of standards on natural gas pricing, and to consider that analysis in the 

formulation of a revised final rule.‖ Id. at 4 (emphasis added). DOE 

EERE-2008-BT-STD-0006 COMMENT 77
5 

explained that it ―has recently decided to revisit the substance of the final 

rule under review in these cases. In order to undertake the notice and 

comment rulemaking that will be required for the agency’s reconsideration of 

the rule, we are requesting that this Court grant the motion for voluntary 

remand.‖ Id. at 5–6 (emphasis added). Further, DOE’s remand motion 

specifically indicated that the Department would re-evaluate its view, 

expressed in the November 2007 final rule, that the EPCA mandates an 

eight-year lead time: 

In the course of the notice-and-comment proceedings on remand, DOE 

will interpret and apply its EPCA authority (as amended by EISA) to the 

record as a whole. The agency will not be bound by the earlier final rule, 

and may re-evaluate and seek comment on other issues, including the 

proper application of the governing statutory provisions and the 

appropriate compliance date for any revised final rule. 

Id. at 6. The Department’s representations to the court and to petitioners in 

New York v. DOE, confirm that this rulemaking is a continuation of the 

rulemaking required under section 6295(f)(4)(B), which provided an 

implementation date of January 1, 2002. That date has well passed. 

Because the consensus agreement presents ―special circumstances‖, and 

because the EPCA does not provide an implementation period for residential 

furnaces, DOE may not rely on section 6295(f)(4)(B) to support an eight-year 

implementation period. Doing so, here, would not only undermine the 

effectiveness of consensus decision-making, but it would also inappropriately 

favor DOE policy over the statutory mandates contained in the EPCA. 

 

IV. The Department has the Authority to Utilize both SEER and EER 

for the Southwest, as Proposed by the Consensus Agreement. 

NRDC incorporates by reference our March 19, 2010 comments to Docket No. 

EE-2009-BT-STD-0022. 

The definition of ―efficiency descriptor‖ does not limit or preclude the 

adoption of an EER performance standard, in addition to a SEER 

performance standard, for central air conditioners installed in the 

southwestern United States. 

The Energy Policy and Conservation Act defines ―efficiency descriptor‖ as 

the ratio of the useful output to the total energy input, 

determined using the test procedures prescribed under section 

323 and expressed for the following products in the following 

EERE-2008-BT-STD-0006 COMMENT 77
6 

terms: . . . For central air conditioning and central air 

conditioning heat pumps, seasonal energy efficiency ratio. 

42 U.S.C. 6291(22)(C).5 As NRDC explained in our March 19, 2010 

comments, the term ―efficiency descriptor‖ is not employed in an operative 

capacity to central air conditioners anywhere in the EPCA, and as a result, it 

appears to be nothing more than an empty definition. But additional factors 

point to the conclusion that the term does not limit or preclude DOE’s ability 

to adopt SEER and EER performance standards for central air conditioners 

in the Southwest. 

As an initial matter, section 6291(22)(C) was added to the EPCA by Public 

Law 95-91 in 1987, almost two decades before the Department of Energy took 

the position in 2001 and 2002 that it had the authority under the EPCA to 

adopt both SEER and EER standards for central air conditioners. 66 Fed. 

Reg. 7,170 (Jan. 22, 2001); 67 Fed. Reg. 36,368 (May 23, 2002). Additionally, 

an efficiency descriptor is, by definition, merely descriptive. Section 

6291(22)(C) simply states that if an efficiency descriptor is required under 

test procedures outlined in section 6295 that it should be ―expressed‖ for 

central air conditioners as a ―seasonal energy efficiency ratio.‖ This is not a 

limiting provision, and under the consensus agreement, standards for central 

air conditioners installed in the Southwest would still be expressed in terms 

of SEER. An EER standard would simply be added to the test procedure to 

capture the peculiar conditions in that region which necessitate an additional 

standard. 

Finally, other operative sections of the EPCA provide an expansive view of 

DOE’s power to promulgate new procedures. Under section 6293(b), the 

Secretary must promulgate test procedures that are 

reasonably designed to produce test results which measure 

energy efficiency, energy use . . . , or estimated annual operating 

cost of a covered product during a representative average use 

cycle or period of use, as determined by the Secretary . . . . 

42 U.S.C. § 6293(b)(3). As explained in our March 19, 2010 comments, an 

EER efficiency standard is necessary because the SEER standard, on its own, 

does not come close to addressing the standard climactic conditions in which central air 

conditioners operate in the Southwest. It would be torturous and contrary to the 

EPCA’s statutory directive to employ an inoperative definitional section to 

 

5

The only other reference to “efficiency descriptor” outside of the definition of the term 

is in the definition of “annual fuel utilization efficiency” (AFUE), which only applies to 

“the efficiency descriptor for furnaces and boilers.” 42 U.S.C. § 6291(20). 

EERE-2008-BT-STD-0006 COMMENT 77
7 

limit the agency’s ability to design test procedures that accurately measure 

the energy efficiency and energy use of covered products. 

 

 

V. Regulating Standby Consumption in Furnaces with a Single Metric is 

Not Feasible. 

Section 310 of the Energy Independence and Security Act of 2007 (EISA), 

Public Law 110–140, amended the EPCA to require the Department to begin 

considering standby mode and off mode energy use as part of a single metric, 

if feasible, or if infeasible through a separate metric. See 42 U.S.C. 

§6295(gg)(2)(A); 42 U.S.C. § 6295(gg)(3).

6 

NRDC has initially determined that regulating standby power and active 

mode power with a single metric would be infeasible. The technically feasible 

and economically justified reduction in energy consumption from standby 

power would be lost in the measurement of active mode power and would be 

unlikely to be attained, while uncertainty for the manufacturers would be 

introduced as to the compliance of current products. We will be submitting 

further comments in the SNOPR proceeding, docket number EERE-2008-BTSTD-0020, but urge DOE here to adopt separate metrics for standby and offmode. 

 

VI. NRDC Supports the Department’s Consideration of Regional 

Enforcement Schemes. 

We support the Department’s decision to begin consideration of enforcement 

schemes at this point in the rulemaking process. We also concur with AHRI, 

ACCA, and HARDI that proper consideration of the enforcement scheme and 

effectiveness are of the utmost importance. We will be submitting further 

comments on the enforcement question upon further consideration. 

We agree with the eight components of an enforcement plan initially 

proposed by the Department in the RAP. DOE, Energy Conservation 

Standards for Residential Furnaces Rulemaking Analysis Plan, Mar. 11, 

2010, at 13–14. All factors deserve consideration, and in particular labels 

should be proposed that will simply and effectively communicate to 

interested, non-technical stakeholders where the equipment should be 

 

6 NRDC perceives some confusion over whether DOE is required to incorporate standby 

mode and off mode energy use into a single metric “if technically feasible” or simply “if 

feasible,” based on conflicting language in section 310 of the EISA. NRDC addresses 

this issue in comments submitted to the SNOPR proceeding, Docket EERE–2008–BT–

STD–0020. 

EERE-2008-BT-STD-0006 COMMENT 77
8 

installed. Specifically, we think including strong language such as ―Illegal to 

install in‖ followed by the states on the border of the regional zones will 

communicate the most important point to consumers. These labels could be 

applied only to those units shipped to border regions or border distributers so 

as to not confuse consumers unaffected by the regional differences. 

Regardless, further discussion is warranted in the follow-on rulemaking and 

at the Federal Trade Commission, but we encourage the Department to 

continue to further the discussion on appropriate enforcement mechanisms. 

We would also note that consumer call back programs that could be applied 

at time of sale or resale would allow potential homebuyers who find a furnace 

that was installed illegally to have some recourse, as long as the contractor’s 

information is maintained. Home inspectors could also be made aware of the 

standards so that they can inform the consumer if the improper unit is 

installed. 

 

VII. The Department should Regulate Electric Furnaces. 

At the public hearing, the Department requested comment on its stance that 

electric resistance furnaces are not within the scope of this rulemaking. We 

are concerned that continuing to ignore these units due to assumed 

insignificant energy saving potential is problematic and will result in an 

increase in market share of these units. These units represent a low cost 

option that could grow in market penetration as the efficiency of competing 

units that provide the exact same consumer amenity (heat pumps, which in 

most cases have electric furnaces as back up and would use the same duct 

system) may potentially increase with upcoming standards. 

We would also note that the Department has the authority to adopt 

standards whenever energy savings would be non-trivial. NRDC v. 

Herrington, 768 F.2d 1355, 1373 (D.C. Cir. 1985) (explaining that Congress 

expects DOE to prescribe mandatory efficiency standards unless such 

standards would yield ―such negligible benefits that they were not worth the 

trouble of further examination‖). Indeed, DOE has previously set standards 

when significant energy savings on the order of 0.032 quads have been found, 

as in the final rule for packaged terminal air conditioning equipment. 73 

Fed. Reg. 58,772, 58,819 (Oct. 7, 2008) (―DOE projects that TSLA for 

standard size PTACs and PTHPs would save 0.032 quads of energy through 

2042, an amount DOE considers significant.‖). Should electric furnaces 

present larger energy savings potential than 0.032 quads, they should be 

added to the scope of the rule.

EERE-2008-BT-STD-0006 COMMENT 77
9 

We initially recommend that electric furnaces be added to the heat pump 

class and be required to attain the same performance. The Department 

should explore rating electric resistance heaters using HSPF if technically 

feasible or specify the procedure for utilizing HSPF for electric furnaces if not 

currently possible. Alternatively, a heat pump AFUE could be explored for 

comparative purposes, to set an electric furnace standard at a similar level of 

efficiency as attained by the heat pump products that provide the same 

consumer amenity. 

 

VII. The Department should not use Impacts on Subclasses to 

Determine Standard Levels. 

During the public hearing, a stakeholder suggested that the Department give 

strong consideration to disadvantaged subclasses before adopting the 

efficiency levels for furnaces specified in the consensus agreement. We object 

to the use of subclasses to drive decisions about minimum standards with 

large corresponding national benefits as a matter of policy. In practical 

reality, many subgroups of consumers, especially consumers who rent their 

homes, are disadvantaged by less stringent standards. They are not able to 

decide how efficient their furnace will be, yet they will pay for the continued 

operation and the additional expense caused by the inefficiency. 

Low and fixed income consumers should not be considered to be negatively 

impacted by more efficient standards as a result of first cost increase only. 

The commitment to the additional energy expenditures required by a less 

stringent standard would be more detrimental than the increase in first cost, 

as energy payments claim a larger share of disposable income than for buyers 

from other income levels. These consumers often purchase used appliances 

or rent them with their housing, making it unlikely that they had the option 

of anything except minimum standard level equipment. As such, these 

consumers could be considered to be adversely affected by less stringent 

standards. 

Many furnace purchasers may be similarly limited in choice of replacement 

units, when replacement occurs upon failure in the winter months, and speed 

of replacement is the primary consideration. The units that are on hand and 

can be quickly installed represent the real range of choices. As such, there 

are a large number of consumers that could be analyzed as a subgroup who 

would be disadvantaged by lower standards. 

VIII. The Department should Combine the Furnace, Central Air 

Conditioner, and Furnace Fan Rulemakings. 

EERE-2008-BT-STD-0006 COMMENT 77
10 

We support the Department’s proposal to accelerate the furnace fan 

rulemaking to coincide with the rulemakings for furnaces and central air 

conditioners. This provides analysis simplification potential and is consistent 

with the President’s request to DOE to meet all statutory deadlines and 

accelerate those with large potential energy savings. In his Memorandum for 

the Secretary of Energy released on February 5, 2009, the President 

requested, 

. . . with respect to standards subject to judicial and statutory 

deadlines later than August 8, 2009, the DOE work to complete 

prior to the applicable deadline those standards that will result 

in the greatest energy savings. To undertake this task, the DOE 

should quantify, to the extent feasible and consistent with 

statutory requirements, the expected annual energy savings 

from the relevant standards. The DOE must, however, ensure 

that it meets applicable deadlines for all standards. 

Id. Accelerating furnace fans is consistent with this request and DOE 

should be commended for taking this step. 

 

IX. Market Penetration will Resemble the ―Shift‖ Scenario. 

For furnaces in particular, we think the existence of successful federal 

tax incentives for furnaces that reach 95 AFUE indicates that it is 

likely for sales of these units to continue to increase, resulting in a 

market penetration of efficient technologies that resembles the ―shift‖ 

scenario more than the ―roll-up‖ scenario.

 

X. Conclusion 

We appreciate the Department’s thorough consideration of the consensus 

agreement and urge the Department to adopt those standards as expediently 

as possible. In addition, we conclude that, 

 The Department can adopt the accelerated effective dates found in the 

consensus agreement. 

 The Department can utilize both SEER and EER for the Southwest 

region, in accordance with the consensus agreement. 

 Regulating standby consumption in furnaces with a single metric is 

not feasible. 

 Regional enforcement can be done effectively and the Department’s 

approach is sound. 

EERE-2008-BT-STD-0006 COMMENT 77
11 

 Electric furnaces should be included within the scope of the 

rulemaking with an eye on future market share. 

 The use of impacts on subclasses to determine standard levels is not 

sound. 

 The furnace fan rulemaking should be accelerated and combined with 

the furnace and central air conditioner rulemaking. 

 The market penetration scenarios will more closely resemble the 

―shift‖ than the ―roll-up‖.

Thank you for the opportunity to comment, 

Lane Burt 

Manager, Building Energy Policy 

Kate Houren 

Pro Bono Fellowship Attorney 

New York State Bar # 788246 

Not Yet Admitted to Practice in Washington, D.C. 

EERE-2008-BT-STD-0006 COMMENT 77
27 April 2010

Ms. Brenda Edwards-Jones

U.S. Department of Energy

Building Technologies Program

Mailstop EE-2J

1000 Independence Avenue, SW

Washington, DC 20585

Re: Energy Conservation Program for Consumer Products: Energy Conservation 

Standards for Residential Furnaces (Docket No. EE-2009-BT-STD-0022/RIN 1904-

AC06) 

Dear Ms. Edwards-Jones: 

These comments are submitted by the Air-Conditioning, Heating and Refrigeration 

Institute (AHRI) in response to the U.S. Department of Energy’s (DOE) notice appearing 

in the Federal Register on 15 March 2010 announcing the availability of a rulemaking 

analysis plan for residential furnaces.

AHRI is the trade association representing manufacturers of heating, cooling, and 

commercial refrigeration equipment. More than 350 members strong, AHRI is an 

internationally recognized advocate for the industry, and develops standards for and 

certifies the performance of many of the products manufactured by our members. In 

North America, the HVACR industry produces more than $20 billion worth of product, 

and in the United States alone, our members employ approximately 130,000 people, 

and support some 800,000 dealers and contractors. 

AHRI has reviewed the rulemaking analysis plan and would to make the following 

comments: 

Consensus Agreement

As a signatory to the consensus agreement on minimum federal energy efficiency 

standards for residential furnaces, air conditioners and heat pumps, reached between 

AHRI and leading energy efficiency advocacy organizations last October, we strongly 

support the agreement and urge the Department of Energy to adopt it in a direct final 

rule and without delay. We believe that the agreement has several benefits including:

EERE-2008-BT-STD-0006 COMMENT 77
AHRI Comments – RAP Gas Furnaces

27 April 2010

Page | 2 

• Accelerated effective date. The proposed standards would take effect in 2013 for 

non-weatherized furnaces, two and a half years ahead of the 80% AFUE 

standard published by DOE in 2007 and several years ahead of any new 

standard that DOE would promulgate under the current rulemaking. Accelerating 

the effective date will help the nation save energy several years ahead of any 

standards established under the current schedule.

• Acceleration of the next rulemaking iteration. According to the consensus 

agreement, the effective date for the next DOE rulemaking iteration is scheduled 

for January 1, 2019 for non-weatherized furnaces and January 1, 2022 for air 

conditioners/heat pumps and weatherized furnaces. This schedule is a 

substantial acceleration of the next effective date relative to the dates by which 

DOE would be statutorily required to complete and implement the next final rules. 

These accelerated effective dates will save a considerable amount of energy.

• Significant amount of energy savings. The agreement, if adopted, would save 

3.0 quads of primary energy by 2030. This is a significant amount of energy. 

These energy savings will result in annual greenhouse gas emission reductions 

of approximately 18 million metric tons of CO2 in year 2030.

• Economic savings to consumers. According to our analysis, the agreement will 

result in net economic savings to consumers of $13 billion with a 4.5% real 

discount rate. The average affected household will save about $260 on a 

discounted life cycle cost basis.

• Free-up resources at DOE. The agreement is the result of two years of intense 

negotiations. Adopting the agreement in a direct final rule will free-up resources 

at DOE, allowing the Department to speed up other rulemakings and focus on 

other products.

The Department of Energy has encouraged stakeholders in the past to consider 

informal discussions which could result in a consensus agreement. Furthermore, in 

2007, Congress amended the Energy Policy and Conservation Act (EPCA) to expedite 

the rulemaking process by authorizing DOE to issue direct final rules establishing new

energy conservation standards upon receipt of joint stakeholders’ proposals. The 

consensus agreement satisfies the criteria of the law and the Process Improvement 

Rule. Consequently, we urge the Department to issue a direct final rule adopting the 

agreement as soon as possible. In the event that DOE cannot conduct a direct final 

rule, we would recommend that DOE adopt the agreement in an expedited rulemaking 

process. 

EERE-2008-BT-STD-0006 COMMENT 77
AHRI Comments – RAP Gas Furnaces

27 April 2010

Page | 3 

Combined Rulemaking Approach

DOE indicates that it is considering combining the central air conditioners and heat 

pumps, gas furnaces and furnace fans rulemakings if the analyses show that a 

combined approach results in additional energy savings. AHRI does not support such 

approach. We would agree to a combined central air conditioners/ heat pumps and gas 

furnaces rulemaking only in the context of the consensus agreement and its adoption by 

DOE in a direct final rule or through an expedited normal rulemaking. In the event that 

DOE decides not to adopt the agreement, we would then recommend separate 

rulemakings. However, we feel that under no circumstances should DOE try to combine 

the furnace fans rulemaking with any of the two other rulemakings. As DOE noted, 

combining the furnace fans rulemaking with the gas furnaces and central air 

conditioners rulemakings will require DOE to publish a final rule no later than May 2011, 

two years ahead of the schedule laid out by the Energy Independence and Security Act 

(EISA) of 20071

. Shortening the time necessary to conduct the rulemaking analysis by 

two years is, in our opinion, not reasonable in particular since DOE has no prior

experience in this area. We strongly believe that more time is needed to fully analyze 

the electrical energy consumed by furnace fans and establish appropriate energy 

conservation standards. As such the rulemaking on furnace fans should be part of a 

separate process and not combined with the other rulemakings.

Standards Effective Dates

AHRI believes that, except for the building code provisions, DOE has express statutory 

authority to publish a direct final rule adopting the standards descriptors, standard levels 

and standards effective dates contained in the consensus agreement. DOE has 

queried whether the agency has the legal authority to accelerate standards effective 

dates as proposed by the consensus agreement. AHRI believes DOE does have such 

authority in the context of adopting consensus standards. Section 325(p)(4) was added 

to EPCA in 2007 to encourage DOE to embrace and expedite adoption of consensus 

standards that have the support of manufacturers, States and efficiency advocates, 

which is the case with the consensus agreement. Section 325(p)(4)(A) of EPCA, 42 

U.S.C. § 6295(p)(4)(A), trumps section 325(m), 42 U.S.C. § 6295(m), and other 

sections of EPCA having to do with standards effective dates and compliance lead 

times. Under section 325(p)(4)(A), DOE is authorized to accept and adopt consensus 

standards, the only caveat being that the proposed standards must be in accordance 

with subsection 325(o), 42 U.S.C. § 6295(o), i.e. the standards must be technically 

feasible and economically justified. That is the only limitation on DOE’s discretion to 

adopt consensus standards. There is nothing in subsection 325(o) that prescribes 

minimum lead times for standards compliance or binds DOE to any schedule. 

 

1

The Energy Independence and Security Act (EISA) of 2007 requires DOE to publish a final rule establishing energy conservation

standards for furnace fans by January 1, 2013

EERE-2008-BT-STD-0006 COMMENT 77
AHRI Comments – RAP Gas Furnaces

27 April 2010

Page | 4 

AHRI believes that, in the spirit of section 325(p)(4)(A), DOE has authority to adopt the 

accelerated standards effective dates in the consensus agreement even if DOE elects 

to proceed via a conventional rulemaking process instead of via direct final rule. DOE 

has itself previously recognized that in special circumstances where the manufacturers 

who must comply with the standard support acceleration of the effective date of the 

standard DOE has flexibility to adopt the earlier effective date. See 67 Fed. Reg. 36394 

and 69 Fed. Reg. 50998.

Enforcement

We recognize that the implementation of regional standards presents enforcement 

challenges. However, these challenges can be overcome and shouldn’t stop DOE from 

adopting the consensus agreement. We agree with DOE that effective energy saving 

through the implementation of regional standards is reliant upon the development and 

implementation of a strong enforcement policy. AHRI is committed to work with DOE, 

contractors, distributors and other stakeholders is developing an enforcement 

framework that is practical and has minimal financial impact on the industry, the federal 

and state agencies as well as consumers. 

Condensing Furnaces in Replacement Applications

Although not specifically identified as an issue by DOE, there were comments during 

the 31 March 2010 meeting raising concerns about the consensus agreement. In 

particular questions were raised about replacement installations that might require 

modification of the existing vent system to accommodate the “orphaned” gas water 

heater. We want to remind DOE that this circumstance was considered during the 

rulemaking process for the final rule that has since been remanded. In the Technical 

Support Documents for that analysis DOE noted that 50% of existing furnace 

installations were common vented with a gas water heater. DOE further determined 

that in about 30 % of those cases there would be an added cost in the range of $355 to 

$375 to correct the vent for the orphaned water heater. It should be recognized that the 

consensus agreement only requires condensing gas furnaces in the Northern half of the 

U.S. while the TSD analysis looked at this on a national basis. So, the consensus 

agreement actually reduces the number of installations that may incur added water 

heating venting costs since it will be only common vented installations in the north that 

may have this situation. Recognizing that North half has the colder winter, the payback 

of a 90% AFUE furnace will more easily cover the additional $375 or so associated with 

this installation. 

In summary, AHRI and the signatories to the consensus agreement worked very hard 

during the past two years in developing a comprehensive proposal. The consensus 

agreement has several notable benefits and features including stringent regional 

efficiency standards and accelerated effective dates that will result in significant energy 

savings. We urge the Department to adopt the agreement as soon as practically 

possible. 

EERE-2008-BT-STD-0006 COMMENT 77
AHRI Comments – RAP Gas Furnaces

27 April 2010

Page | 5 

AHRI appreciates the opportunity to provide these comments. If you have any 

questions regarding this submission, please do not hesitate to contact me.

Sincerely, 

Karim Amrane

Vice President, Regulatory & Research

Tel: 703/524-8800 ext.307

Email: kamrane@ahrinet.org 

 

EERE-2008-BT-STD-0006 COMMENT 77