[Federal Register Volume 75, Number 227 (Friday, November 26, 2010)]
[Proposed Rules]
[Pages 72739-72741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29773]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2008-BT-TP-0010]


Compliance Testing Procedures: Correction Factor for Room Air 
Conditioners

AGENCY: Office of the General Counsel, Department of Energy (DOE).

ACTION: Petition for rulemaking; request for comment.

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SUMMARY: On November 15, 2010, the Department of Energy received a 
petition for rulemaking from the Association of Home Appliance 
Manufacturers (AHAM). The petition, requests the initiation of a 
rulemaking regarding compliance testing procedures for room air 
conditioners. The petition seeks temporary enforcement forbearance, or 
in the alternative, a temporary industry-wide waiver or guidance, to 
allow use of a data correction factor in compliance testing procedures 
for room air conditioners. Public comment is requested on whether DOE 
should grant the petition and proceed with a rulemaking procedure on 
this matter.

DATES: Comments must be postmarked no later than December 27, 2010.

ADDRESSES: Any comments submitted must reference ``Petition for 
Rulemaking: Correction Factor for Room Air Conditioners.'' Comments may 
be submitted using any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#b1f0f9f0fc839c838181899ce5e19c81818081f1d4d49fd5ded49fd6dec7"><span class="__cf_email__" data-cfemail="bdfcf5fcf08f908f8d8d8590e9ed908d8d8c8dfdd8d893d9d2d893dad2cb">[email protected]</span></a>. Include ``Petition 
for Rulemaking'' in the subject line of the message.
    <bullet> Postal Mail: Subid Wagley, U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Building Technologies 
Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-
0121. Please submit one signed original paper copy.
    <bullet> Hand Delivery/Courier: Subid Wagley, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121. Please submit one signed original paper copy.

FOR FURTHER INFORMATION CONTACT: Subid Wagley, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121, (202) 287-1414, e-mail: <a href="/cdn-cgi/l/email-protection#c4b7b1a6ada0eab3a5a3a8a1bd84a1a1eaa0aba1eaa3abb2"><span class="__cf_email__" data-cfemail="c7b4b2a5aea3e9b0a6a0aba2be87a2a2e9a3a8a2e9a0a8b1">[email protected]</span></a>. Betsy 
Kohl, U.S. Department of Energy, Office of General Counsel, Mail Stop 
GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 
586-7796, e-mail: <a href="/cdn-cgi/l/email-protection#583d343122393a3d2c307633373034183029763c373d763f372e"><span class="__cf_email__" data-cfemail="53363f3a29323136273b7d383c3b3f133b227d373c367d343c25">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq., provides among other things, that ``[e]ach agency 
shall give an interested person the right to petition for the issuance, 
amendment, or repeal of a rule.'' (5 U.S.C. 553(e)). Pursuant to this 
provision of the APA, AHAM petitioned the Department of Energy for the 
issuance of a new rule, as set forth below. In publishing this petition 
for public comment, the Department of Energy is seeking views on 
whether it should grant the petition and undertake a rulemaking to 
consider the proposal contained in the petition. By seeking comment on 
whether to grant this petition, the Department of Energy takes no 
position at this time regarding the merits of the suggested rulemaking.
    The proposed rulemaking sought by AHAM would allow manufacturers of 
room air conditioners to use a correction factor that is not currently 
included in the regulations governing DOE's compliance testing 
procedures. The petition seeks temporary enforcement forbearance, or a 
temporary industry-wide waiver or guidance, to allow use of this 
methodology. The Department of Energy seeks public comment on whether 
DOE should grant the petition and proceed with a rulemaking procedure 
on this issue.

    Issued in Washington, DC, on November 18, 2010.
Scott Blake Harris,
General Counsel.

    Set forth below is the full text of the Association of Home 
Appliance Manufacturers' petition:

Before the U.S. Department of Energy

November 15, 2010

Petition for Rulemaking

Petition of the Association of the Home Appliance Manufacturers for 
Temporary Enforcement Forbearance, a Temporary Industry-Wide Waiver Or 
Guidance To Allow Use of DOE--Proposed Correction Factor for Room Air 
Conditioner Testing

    Pursuant to 5 U.S.C. 553(e), the Association of Home Appliance 
Manufacturers (AHAM) files this petition.
    AHAM represents manufacturers of major, portable and floor care 
home appliances, and suppliers to the industry. AHAM's more than 150 
members employ tens of thousands of people in the U.S. and produce more 
than 95% of the household appliances shipped for sale within the U.S. 
The factory shipment value of these products is more than $30 billion 
annually. The home appliance industry, through its products and 
innovation, is essential to U.S. consumer lifestyle, health, safety and 
convenience. Through its technology, employees and productivity, the 
industry contributes significantly to U.S. jobs and economic security. 
Home appliances also are a success story in terms of energy efficiency 
and environmental protection. New appliances often represent the most 
effective choice a consumer can make to reduce home energy use and 
costs. AHAM, relevant to this petition, represents the manufacturers of 
the vast majority of room air conditioners.
    This petition requests temporary enforcement forbearance, or in the 
alternative, a temporary industry-wide waiver or guidance, to allow use 
of a data correction factor for room air conditioners that DOE 
currently

[[Page 72740]]

acknowledges produces more accurate results and which has been proposed 
(by DOE) for adoption. This relief would be automatically superseded by 
the effective date of the new DOE test procedure.
    We do not believe that our request requires formal notice and 
comment but we are prepared to supply additional information for any 
public record or procedure. Similar to the vocation of the microwave 
oven test procedure, there is longstanding, sufficient public record 
evidence justifying this requested action. See, 75 FR 42579, 42581 
(July 22, 2010).
    Initially, we note that this issue stems from an endemic problem 
within the DOE test procedures which DOE and other stakeholders are 
beginning to address: The DOE test procedures are outmoded and often 
rely on older versions of industry practices or consensus body testing 
standards which have been superseded by standards which are more 
accurate, uniform, repeatable and reflective of actual use. Indeed, DOE 
has endorsed and proposed using the new ANSI/ASHRAE test procedure 
discussed below.
    In this case, DOE currently is applying in its compliance testing 
program an outmoded test methodology, which is less accurate and for 
that reason alone may produce test results inappropriately indicating 
that a room air conditioner has technically incorrect ratings, does not 
qualify for Energy Star, or fails to meet the minimum performance 
standards. As discussed below, the issue relates to the current DOE 
recommended test procedure's failure to correct for deviation from 
standard barometric pressure. It is unreasonable and unfair to penalize 
companies during this evolving transitional period between an archaic 
procedure and a new, modern methodology that is more accurate. With 
these facts in mind, DOE compliance enforcement forbearance, or an 
industry-wide waiver or guidance, allowing the correction factor for 
room air conditioners is entirely warranted.
    The issue relates to 10 CFR Part 430, Subpart B, Appendix F, 
promulgated in 1977. For purposes of the DOE minimum efficiency 
program, industry has since 1983 recognized the benefits of adjusting 
capacity ratings to reflect a correction factor in Section 6.1.3 of 
ASHRAE Standard 16-1983 (RA 99). Since 1983, AHAM's room air 
conditioner certification program has used this correction factor. The 
correction factor is based on the test room condition deviation from 
the standard barometric pressure of 29.92 inches of mercury. The 
correction factor normalizes test capacity results to standard test 
room conditions and thereby produces more accurate and comparable test 
results, as acknowledged by DOE. More specifically, the use of the 
correction factor when barometric pressure is >1 in. Hg below standard 
rating point allows capacity performance modification.
    We understand that DOE or a test laboratory under contract with DOE 
has recently rejected use of the correction factor at the present time 
for purposes of certifying compliance to the DOE efficiency standard, 
on the ground that the correction factor is not contained in the DOE 
test procedure as it currently is written.
    DOE has already acknowledged that its current test procedure is 
inaccurate due to lack of the correction factor and that the correction 
factor ought to be adopted. It has so indicated in its recent 
Supplemental Notice of Proposed Rulemaking (SNOPR) to amend the test 
procedure. See 75 FR 37594, 37635 (June 29, 2010). DOE states:

    ``Section 6.1.3 of ANSI/ASHRAE Standard 16-1983 (RA 99) also 
introduces a correction factor based on the test room condition's 
deviation from the standard barometric pressure of 29.92 inches 
(in.) in mercury (Hg) (101 kilopascal (kPa)). Section 6.1.3 of ANSI/
ASHRAE Standard 16-1983 (RA 99) states that the cooling capacity may 
be increased 0.8 percent for each in. Hg below 29.92 in. Hg (0.24 
percent for each kPa below 101 kPa). This change would not impact 
the measured efficiency of units tested at standard testing 
conditions. The capacity correction factor provides manufacturers 
with more flexibility in the test room conditions while normalizing 
results to standard conditions.
* * * * *
    In sum, DOE has reviewed the most recent revisions of the 
referenced test standards. ANSI/AHAM RAC-1-R2008 and ANSI/ASHRAE 
Standard 16-1983 (RA 99), and has determined that incorporation by 
reference of these versions provide more accurate and repeatable 
measurements of capacity while providing greater flexibility to 
manufacturers in selecting equipment and facilities, and does not 
add any significant testing burden. Furthermore, these revisions 
would not impact the measurement of EER for this equipment. DOE also 
believes that manufacturers may already be using these updated 
standards in their testing. Therefore, DOE is proposing in today's 
SNOPR to amend the DOE test procedure to reference the relevant 
sections of ANSI/AHAM RAC-1-R2008 and ANSI/ASHRAE Standard 16-1983 
(RA 99).''

    Under these circumstances, and for the interim before final test 
procedure rulemaking, it is unfair and unreasonable to penalize firms 
by judging their product against an inaccurate methodology rather than 
using the correction factor, which DOE correctly asserts is more 
accurate and which DOE endorses and plans to adopt.
    Such action by DOE is entirely warranted. In the case of microwave 
ovens, DOE unilaterally revoked an outmoded test procedure through a 
direct final rule and without prior notice. 75 FR 42579 (July 22, 2010) 
Here, test procedure revocation is not, requested, practical nor 
prudent because test standards, labels, Energy Star and incentive 
programs are in place. This petition does not request that DOE 
circumvent or repeal the test procedure, but rather that it immediately 
act to improve testing before administrative processes are completed.
    If the current test procedure is applied to comparable room air 
conditioners in test rooms under different barometric pressures, it 
will produce materially inaccurate capacity results. DOE acknowledges 
the inaccuracy of the existing test procedure--by stressing that the 
correction factor in ASHRAE 16-1983 (RA 99) produces more accurate and 
repeatable test results by normalizing results to standard conditions. 
75 FR at 37635. DOE states that Section 6.1.3 of ASHRAE 16-1983 (RA 99) 
has ``a correction factor based on the test room condition's deviation 
from the standard barometric pressure of 29.92 inches (in.) of mercury 
(Hg) (101 kilopascal (kPa)) * * * The capacity correction factor 
provides manufacturers with more flexibility in the test room 
conditions while normalizing results to standard conditions.'' Id. 
(emphasis added).
    DOE concluded that the correction factor ``provide[s] more accurate 
and repeatable measurements of capacity while providing greater 
flexibility to manufacturers in selecting equipment and facilities, and 
does not add any significant testing burden.'' Id. (emphasis added). 
DOE goes on to state that it ``also believes that manufacturers may 
already be using these updated standards in their testing.'' Id. 
(emphasis added).
    Recognizing the commercial reality and the demands of fairness, DOE 
and industry should be working on this issue collaboratively. DOE has 
proposed that its test procedure be amended to incorporate the 
correction factor. Unfortunately, unless DOE provides relief in the 
interim by procedure revision or waiver, industry will suffer from a 
test procedure that DOE acknowledges is inaccurate and that is harmful 
with no benefit to the public.
    Accordingly, with this petition, AHAM requests temporary 
enforcement forbearance, or in the alternative, a

[[Page 72741]]

temporary industry-wide waiver or guidance, to allow use of the data 
correction factor for room air conditioners. This relief would be 
automatically superseded by the effective date of the new DOE test 
procedure.
    AHAM looks forward to meeting with DOE at the earliest opportunity 
to discuss this important matter.

[FR Doc. 2010-29773 Filed 11-24-10; 8:45 am]
BILLING CODE 6450-01-P


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