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###### Department of Energy

          - 10 CFR Part 430
          - [EERE-2008-BT-TP-0010]

# AGENCY:

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

# ACTION:

Petition for rulemaking; request for comment.

# 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:
      -  Federal eRulemaking Portal: http://www.regulations.gov.                          Follow the instructions for submitting comments.                    
      -  E-mail: AHAM2-2008-TP-0010@ee.doe.gov.                          Include “Petition for Rulemaking” in the subject line of the message.                    
      -  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.                    
      -  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:                         *subid.wagley@ee.doe.gov.*                         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:                         *elizabeth.kohl@hq.doe.gov.*

# 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                           ( print 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                           ( print 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]

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