10038 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

1 DOE uses the terms ‘‘product’’ and ‘‘equipment’’

interchangeably in this final rule. Where DOE refers 

to the categories of ‘‘residential products’’ covered 

by 10 CFR Part 430, DOE uses the phrase 

‘‘residential products.’’

■ 7. In § 52.51, paragraph (c)(1), the 

figure ‘‘$39.00’’ is revised to read 

‘‘$49.00’’, in paragraph (c)(2), the figure 

‘‘$52.00’’ is revised to read ‘‘$65.00’’, 

and in paragraph (d)(1), the figure 

‘‘$52.00’’ is revised to read ‘‘$65.00’’

and new paragraphs (c)(6) and (d)(6) are 

added to read as follows: 

§ 52.51 Charges for inspection services on 

a contract basis. 

* * * * * 

(c) * * * 

(6) Sunday differential. A 25 percent 

Sunday differential will be charged for 

all work performed on Sunday. 

* * * * * 

(d) * * * 

(6) Sunday differential. A 25 percent 

Sunday differential will be charged for 

all work performed on Sunday. 

* * * * * 

Dated: March 1, 2007. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E7–3937 Filed 3–6–07; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 431 

[Docket Nos. EE–RM/STD–03–100, EE–RM/ 

STD–03–200, and EE–RM/STD–03–300] 

RIN Nos. 1904–AB16, 1904–AB17, and 

1904–AB44 

Energy Efficiency Program for Certain 

Commercial and Industrial Equipment: 

Efficiency Standards for Commercial 

Heating, Air-Conditioning, and WaterHeating Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The Energy Policy and 

Conservation Act, as amended (EPCA), 

establishes energy conservation 

standards for various commercial and 

industrial equipment. EPCA further 

provides with respect to certain 

equipment covered by this rule, that if 

the American Society of Heating, 

Refrigerating and Air-Conditioning 

Engineers (ASHRAE) and the 

Illuminating Engineering Society of 

North America (IESNA) amend 

ASHRAE/IESNA Standard 90.1 as in 

effect on October 24, 1992, then the 

Department of Energy (DOE) must 

establish amended national standards at 

the ASHRAE/IESNA Standard 90–1 

minimum energy efficiency levels 

unless DOE determines that evidence 

supports adoption of higher standard 

levels or certain other circumstances 

exist. ASHRAE/IESNA amended 

ASHRAE/IESNA Standard 90.1 on 

October 29, 1999 (ASHRAE/IESNA 

Standard 90.1–1999), and DOE initiated 

this rulemaking to consider 

amendments to the national standards. 

DOE has concluded that it lacks 

authority to pursue higher standards for 

gas-fired instantaneous water heaters 

and large commercial packaged boilers. 

For small commercial packaged boilers 

with capacities greater than 300,000 

Btu/h and less than or equal to 2.5 

million British thermal units per hour, 

DOE is declining to adopt revised 

efficiency standards contained in the 

ASHRAE/IESNA Standard 90.1–1999 

because the revised levels are less 

stringent than the current national 

standard. In addition, DOE has decided 

to conduct a separate rulemaking to 

consider whether standards at higher 

levels than those in the ASHRAE/IESNA 

Standard 90.1–1999 are warranted for 

packaged terminal air conditioners and 

packaged terminal heat pumps. Finally, 

DOE has concluded it does not have the 

authority to adopt, as uniform national 

standards, efficiency standards 

contained in Addenda f and b, 

respectively, to ASHRAE/IESNA 

Standard 90.1–2004 for three-phase air 

conditioners and heat pumps with 

cooling capacities less than 65,000 

British thermal units per hour, and 

single-package vertical air conditioners 

and single-package vertical heat pumps 

with cooling capacities less than 65,000 

Btu/h. 

DATES: Effective Date: April 6, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Maureen Murphy, Project Manager, 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) 586–

0598, or e-mail 

Maureen.Murphy@ee.doe.gov. 

Francine Pinto, Esq., U.S. Department 

of Energy, Office of the General Counsel, 

GC–72, 1000 Independence Avenue, 

SW., Washington, DC 20585–0103, (202) 

586–9507, or e-mail 

Francine.Pinto@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. Summary of Today’s Actions 

B. Authority 

C. Background 

1. ASHRAE/IESNA Standard 90.1 and the 

Department of Energy’s Response 

2. Subsequent Action by the Department of 

Energy 

3. The Energy Policy Act of 2005 

II. Discussion of Comments and DOE Final 

Rule 

A. Large Commercial Packaged Boilers 

(Greater Than 2.5 million British 

Thermal Units Per Hour) and Gas-Fired 

Instantaneous Water Heaters 

B. Small Commercial Packaged Boilers 

(Greater Than 300,000 British Thermal 

Units Per Hour and Less Than or Equal 

to 2.5 million British Thermal Units Per 

Hour) 

C. Packaged Terminal Air Conditioners and 

Packaged Terminal Heat Pumps 

D. Three-Phase Air Conditioners and Heat 

Pumps less than 65,000 British Thermal 

Units Per Hour 

E. Single-Package Vertical Air Conditioners 

and Single-Package Vertical Heat Pumps 

Less Than 65,000 Btu/h 

F. Single-Package Vertical Air Conditioners 

and Single-Package Vertical Heat Pumps 

Greater Than or Equal to 65,000 Btu/h 

and Less Than 240,000 Btu/h 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act of 1995 

D. Review Under the National 

Environmental Policy Act of 1969 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 12630 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Congressional Notification 

IV. Approval of the Office of the Secretary 

I. Introduction 

A. Summary of Today’s Actions 

Today’s final rule addresses five 

categories of commercial equipment 1: 

(1) Small and large commercial 

packaged boilers; (2) gas-fired 

instantaneous water heaters; (3) 

packaged terminal air conditioners 

(PTACs) and packaged terminal heat 

pumps (PTHPs); (4) three-phase air 

conditioners (ACs) and heat pumps 

(HPs) with cooling capacities less than 

65,000 British thermal units per hour 

(Btu/h); and (5) single-package vertical 

air conditioners (SPVAC) and singlepackage vertical heat pumps (SPVHP), 

collectively referred to as single package 

vertical units (SPVUs). 

By today’s action, DOE is publishing 

a final rule that prescribes no amended 

standard. As discussed in section II.A 

through II.F of this notice, DOE has 

decided: 


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2A more detailed discussion of the ASHRAE 

process can be found in DOE’s Notice of 

Availability and request for public comment on this 

rulemaking published on March 13, 2006 in the 

Federal Register. 71 FR 12634. 

(1) Not to amend the standards for 

large commercial packaged boilers 

(greater than 2.5 million Btu/h) and gasfired instantaneous water heaters 

because ASHRAE/IESNA did not amend 

the levels for these products in 

ASHRAE/IESNA Standard 90.1–1999 

and, thus, did not trigger the provision 

requiring DOE to amend the standards 

established under EPCA; 

(2) Not to amend the standards for 

small commercial packaged boilers 

(greater than 300,000 Btu/h and less 

than or equal to 2.5 million Btu/h) 

because the ASHRAE/IESNA Standard 

90.1–1999 levels for these products are 

less stringent than the existing EPCA 

standards; 

(3) Not to amend the standards for 

packaged terminal air conditioners and 

packaged terminal heat pumps because 

DOE will conduct a separate rulemaking 

to determine if clear and convincing 

evidence supports standard levels 

higher than those in ASHRAE/IESNA 

Standard 90.1–1999; 

(4) Not to amend the standards for 

three-phase air conditioners and heat 

pumps less than 65,000 Btu/h because 

EPACT 2005 amended EPCA to provide 

that only an amendment to ASHRAE/ 

IESNA Standard 90.1 as in effect on 

January 1, 2010, triggers DOE to amend 

the standards established under EPCA; 

(5) Not to amend the standards for 

single-package vertical air conditioners 

and single-package vertical heat pumps 

less than 65,000 Btu/h because EPACT 

2005 amended EPCA to provide that 

only an amendment to ASHRAE/IESNA 

Standard 90.1 as in effect on January 1, 

2010, triggers DOE to amend the 

standards established under EPCA; and 

(6) Not to amend the standards for 

single-package vertical air conditioners 

and single-package vertical heat pumps 

greater than or equal to 65,000 Btu/h 

and less than 240,000 Btu/h because 

DOE has determined that these products 

are covered by standards established by 

EPACT 2005 for large commercial 

package air conditioning and heating 

equipment with cooling capacities 

greater than or equal to 65,000 Btu/h 

and less than 760,000 Btu/h. 

B. Authority 

Part C of Title III of EPCA addresses 

the energy efficiency of certain types of 

commercial and industrial equipment. 

(42 U.S.C. 6311–6317) It contains, for 

example, specific mandatory energy 

conservation standards for tankless, gasfired IWHs; PTACs and PTHPs; small 

and large commercial packaged boilers; 

and commercial package airconditioning and heating equipment. 

The latter category includes three-phase 

ACs and HPs with cooling capacities 

less than 65,000 Btu/h, as well as 

SPVACs and SPVHPs with cooling 

capacities less than 65,000 Btu/h. (42 

U.S.C. 6313(a)(1)–(5)) 

The energy conservation standards set 

forth in EPCA for these and related 

types of commercial and industrial 

equipment generally correspond to the 

levels in ASHRAE/IESNA Standard 

90.1, effective October 24, 1992 

(ASHRAE/IES Standard 90.1–1989). 

Pursuant to section 342(a)(6)(A)(i) of 

EPCA, DOE, except in certain 

circumstances, must amend energy 

conservation standards for the listed 

ASHRAE equipment if ASHRAE 

amends ASHRAE/IESNA Standard 90.1. 

With respect to certain types of 

commercial and industrial equipment, 

including all of the equipment covered 

by today’s rule, prior to the enactment 

of Energy Policy Act of 2005 (EPACT 

2005), any amendment of ASHRAE/IES 

Standard 90.1, as in effect on October 

24, 1992 (the date of enactment of the 

Energy Policy Act of 1992) would trigger 

DOE action for adopting amended 

uniform national standards for this 

equipment. EPACT 2005 changed the 

October 24, 1992, date for small and 

large commercial package air 

conditioning and heating equipment, so 

that only an amendment of ASHRAE/ 

IES Standard 90.1 as in effect on January 

1, 2010, would trigger DOE action to 

adopt amended uniform national 

standards. Pursuant to EPACT 2005, this 

provision also applies to ‘‘very large’’

commercial package air conditioning 

and heating equipment. Id. Any SPVU 

with a cooling capacity below 760,000 

Btu/h would be within the definition of 

small, large, or very large commercial 

package air conditioning and heating 

equipment. (42 U.S.C. 6311(8)(A)–(D)) 

Under certain circumstances 

delineated in EPCA, DOE may adopt 

standards more stringent than the levels 

in amendments to ASHRAE/IES 

Standard 90.1. (42 U.S.C. 6313(6)(A)(i)–

(ii)) In any such rulemaking, the rule 

must contain the amended standard. 

The Secretary may not prescribe any 

amended standard that increases 

maximum allowable energy use, or 

decreases the minimum required energy 

efficiency, of the covered equipment. 

(42 U.S.C. 6313(a)(6)(B)(ii)) 

Furthermore, the Secretary may not 

prescribe an amended standard if the 

Secretary publishes a finding that 

interested persons have established by a 

preponderance of evidence that the 

amended standard is likely to result in 

the unavailability in the United States of 

products with performance 

characteristics (including reliability), 

features, sizes, capacities, and volumes 

that are substantially the same as those 

generally available in the United States 

at the time of the Secretary’s finding. (42 

U.S.C. 6313(a)(6)(B)(ii)) 

C. Background 

1. ASHRAE/IESNA Standard 90.1 and 

the Department of Energy’s Response 2

On October 29, 1999, ASHRAE 

approved and published ASHRAE/ 

IESNA Standard 90.1–1999, which 

addressed efficiency levels for many 

categories of commercial heating, 

ventilating, air-conditioning (HVAC), 

and water-heating equipment covered 

by EPCA. ASHRAE/IESNA Standard 

90.1–1999 revised the efficiency levels 

in ASHRAE/IESNA Standard 90.1–1989 

for certain equipment. For the 

remaining equipment, ASHRAE left the 

preexisting levels in place after 

considering revising the levels for some 

equipment and deferring consideration 

of others. 

Following publication of ASHRAE/ 

IESNA Standard 90.1–1999, DOE 

performed a screening analysis for the 

categories of equipment for which 

ASHRAE addressed efficiency levels in 

ASHRAE/IESNA Standard 90.1, to 

determine what action DOE would take 

with respect to these levels. 65 FR 

10984. Upon completion of the 

screening analysis, DOE published a 

notice of document availability and 

public workshop on May 15, 2000. The 

May 15, 2000, notice invited written 

comments on the screening analysis and 

DOE’s planned actions and described 

the screening analysis and announced 

its availability to the public. 65 FR 

30929. For each equipment category for 

which ASHRAE adopted or considered 

an amended efficiency level, the notice 

stated what action DOE was inclined to 

take. 65 FR 30935. ASHRAE did not 

amend the standard levels for threephase ACs and HPs with cooling 

capacities less than 65,000 Btu/h at that 

time. However, it was DOE’s 

understanding that the ASHRAE 

Standard 90.1 committee intended to 

amend the levels once the DOE 

rulemaking for residential central air 

conditioners energy efficiency standards 

had been completed. Based on 

ASHRAE’s action and DOE’s 

understanding of the ASHRAE Standard 

90.1 committee’s intention to adopt the 

same level as DOE adopted for 

residential central air conditioners, DOE 

stated that it had decided to take no 

action until ASHRAE had amended 

ASHRAE/IESNA Standard 90.1’s 


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3These eleven products include small 

commercial package air-conditioning and heating 

equipment with capacities greater than or equal to 

65,000 Btu/h and less than 135,000 Btu/h, large 

commercial package air-conditioning and heating 

equipment with capacities greater than or equal to 

135,000 Btu/h and less than 240,000 Btu/h, 

packaged terminal air conditioners and heat pumps, 

small, gas-fired and oil-fired, commercial packaged 

boilers greater than 300,000 Btu/h and less than or 

equal to 2,500,000 Btu/h, large, gas-fired and oilfired, commercial packaged boilers greater than 

2,500,000 Btu/h, and gas-fired instantaneous water 

heaters. 

4The four categories of three-phase commercial 

air conditioners and air conditioning hear pumps 

are: Commercial three-phase, air-source, splitsystem air conditioners with cooling capacities less 

than 65,000 Btu/h, commercial three-phase, airsource, single split-system heat pumps with cooling 

capacities less than 65,000 Btu/h, commercial threephase, air-source, single package air conditioners 

with cooling capacities less than 65,000 Btu/h, and 

commercial three-phase, air-source, single package 

heat pumps with cooling capacities less than 65,000 

Btu/h. 

5These fifteen products include the eleven 

products and four categories of commercial threephase commercial air conditioners and air 

conditioning heat pumps identified above. 

6SPVUs are specific types of small and large 

commercial package air-conditioning and heating 

equipment. ASHRAE did not recognize and 

evaluate them as separate equipment categories in 

ASHRAE/IESNA Standard 90.1–1999, nor did 

EPCA recognize them as separate equipment 

categories. 

efficiency levels for three-phase ACs 

and HPs with cooling capacities less 

than 65,000 Btu/h. 71 FR 12643. In 

Addendum f to ASHRAE/IESNA 

Standard 90.1–2004, ASHRAE adopted 

the same minimum energy efficiency 

standards for this equipment as DOE 

had adopted for residential central air 

conditioners. ASHRAE adopted 

Addendum f to ASHRAE/IESNA 

Standard 90.1–2004 on April 1, 2006. 

Following the public meeting on July 

11, 2000, DOE adopted the efficiency 

levels in ASHRAE/IESNA Standard 

90.1–1999 as uniform national 

standards to replace existing EPCA 

levels for 18 categories of commercial 

equipment in the January 2001 final 

rule. 66 FR 3335, 3336–37, 3349–52 

(January 12, 2001). DOE also rejected 

the ASHRAE/IESNA Standard 90.1–

1999 levels for electric water heaters, 

leaving the EPCA level in place for that 

equipment. 66 FR 3337. 

In this same final rule, for 11 

categories of commercial equipment,3

DOE stated it would evaluate whether to 

adopt more stringent standards than 

those contained in ASHRAE/IESNA 

Standard 90.1–1999. 66 FR 3336–38, 

3349–52. For the four categories of 

three-phase air-conditioning equipment 

that ASHRAE had not addressed in 

ASHRAE/IESNA Standard 90.1–1999, 

DOE understood that ASHRAE intended 

to amend its efficiency levels for this 

equipment in conjunction with the 

then-pending DOE standards 

rulemaking for similar, single-phase 

residential products.4 The standard 

levels prescribed in EPCA and 

ASHRAE/IESNA Standard 90.1–1999 

for these 15 equipment categories 5

appear in Tables I.1 and I.2. EPACT 

2005 included energy efficiency 

standards for some of these commercial 

air conditioners and heat pumps; those 

new standards also appear in Tables I.1 

and I.2. EPACT 2005 prescribed more 

stringent standards than those contained 

in ASHRAE/IESNA Standard 90.1–1999 

for commercial package air-conditioning 

and heating equipment with cooling 

capacities between 65,000 Btu/h and 

240,000 Btu/h as listed in Table I.1.6

TABLE I.1.—ENERGY CONSERVATION STANDARDS FOR COMMERCIAL AIR CONDITIONERS AND HEAT PUMPS

Product Capacity/characteristics 

Standard efficiency level* 

EPCA ASHRAE/IESNA 

standard 90.1–1999 EPACT 2005 

Small Commercial Package Air-Conditioning and Heating Equipment.<65 kBtu/h Air-Cooled, 3-Phase, Central 

Split-System AC, HP 

SEER: 10.0 

HSPF: 6.8 

SEER: 10.0 

HSPF: 6.8 

Not addressed. 

<65 kBtu/h Air-Cooled, 3-Phase, Central 

Single-Package AC, HP 

SEER: 9.7 

HSPF: 6.6 

SEER: 9.7 

HSPF: 6.6 

Not addressed. 

≥65 kBtu/h and <135 kBtu/h Air-Cooled, 

Central AC 

EER: 8.9 ** EER: 10.3 ** EER: 11.2 **††

≥65 kBtu/h and <135 kBtu/h Air-Cooled, 

Central HP 

EER: 8.9 ** 

COP: 3.0†

EER: 10.3 ** 

COP: 3.2†

EER: 11.0 ** 

COP: 3.3†

Large Commercial Package Air-Conditioning and Heating Equipment.≥135 kBtu/h and <240 kBtu/h AirCooled, Central AC EER: 8.5 ** EER: 9.7 ** EER: 11.0 **††

≥135 kBtu/h and <240 kBtu/h AirCooled, Central HP EER: 8.5 ** 

COP: 2.9†

EER: 9.3 ** 

COP: 3.1†

EER: 10.6 ** 

COP: 3.2†

Packaged Terminal Air Conditioners and 

Heat Pumps.

Air-Cooled EER, COP vary 

by capacity 

according to 

formulas for 

each 

EER, COP vary by 

capacity according 

to formulas for 

each (different formulas for new 

construction and 

replacement 

equipment) 

Not addressed. 

*Heating efficiency levels do not apply to cooling-only air conditioners. 

**At 95 F dry-bulb temperature. 

† At 47 F dry-bulb temperature. 

††This EER level applies to equipment that has electric resistance heat or no heating. For all other package air-conditioning equipment with 

heating system types that are integrated into the equipment, deduct 0.2 EER. 


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7 DOE does not have the authority to establish 

energy conservation standards for the ASHRAE 

equipment on its own initiative. ASHRAE sets 

voluntary guidelines for this equipment in 

ASHRAE/IESNA Standard 90.1. 

TABLE I.2.—ENERGY CONSERVATION STANDARDS FOR COMMERCIAL BOILERS AND WATER HEATERS* 

Product Capacity/characteristics 

Standard efficiency level** 

EPCA ASHRAE/IESNA 

standard 90.1–1999 

Packaged Boilers, Oil- and GasFired >300 kBtu/h 

≤2,500 kBtu/h 

Combustion Efficiency **: 

Gas-Fired—80% 

Oil-Fired—83% 

Thermal Efficiency **: 

Gas-Fired—75% 

Oil-Fired—78% 

>2,500 kBtu/h Combustion Efficiency **: 

Gas-Fired—80% 

Oil-Fired—83% 

Combustion Efficiency **: 

Gas-Fired—80% 

Oil-Fired—83% 

Gas-Fired Instantaneous Water 

Heaters 

<10 gallons Thermal Efficiency: 80% Thermal Efficiency: 80% 

*EPACT 2005 did not address this equipment. 

**At maximum rated capacity. 

2. Subsequent Action by the Department 

of Energy 

DOE reviewed the energy savings 

potential of increased energy efficiency 

levels for several types of equipment 

covered by ASHRAE/IESNA Standard 

90.1–1999 and, on March 13, 2006, 

issued a notice of document availability 

and request for comments (hereafter 

referred to as the March 2006 NOA) in 

the Federal Register announcing the 

availability of a Technical Support 

Document (TSD) that set forth this 

review, and requested public comment 

on the TSD. 71 FR 12634. In the March 

2006 NOA, DOE also announced the 

approaches it was inclined to take for 

the equipment as summarized in Table 

I.3, below. Id at 12637. 

TABLE I.3.—SUMMARY OF POTENTIAL DOE ACTIONS BY PRODUCT AS STATED IN THE MARCH 2006 NOA 

Product DOE’s action 

PTACs and PTHPs ............................................. Initiate a rulemaking to consider more stringent standards. 

Small Commercial Packaged Boilers (0.3–2.5 

MMBtu/h).

Reject ASHRAE/IESNA Standard 90.1–1999 efficiency levels. 

Gas-Fired IWHs .................................................. DOE does not have authority to pursue a standard level higher than those specified in 

ASHRAE/IESNA Standard 90.1–1999. 

Large Commercial Packaged Boilers (>2.5 

MMBtu/h).

DOE does not have authority to pursue a standard level higher than those specified in 

ASHRAE/IESNA Standard 90.1–1999. 

Three-Phase ACs and HPs (<65,000 Btu/h) ...... Adopt Addendum f to ASHRAE/IESNA Standard 90.1–2004 once ASHRAE formally adopts 

this addendum. 

SPVUs (<65,000 Btu/h) ...................................... DOE invited comments on the potential energy savings estimates and the appropriateness of 

adopting as federal standards the efficiency levels contained in Addendum b of ASHRAE/ 

IESNA Standard 90.1–2004. 

3. The Energy Policy Act of 2005 

DOE’s authority to amend Federal 

energy conservation standards for 

equipment covered by ASHRAE/IES 

Standard 90.1 (ASHRAE equipment) is 

found in 42 U.S.C. 6313(a)(6), which, as 

amended by EPACT 2005, states as 

follows: 

(6)(A)(i) If ASHRAE/IES Standard 90.1, as in 

effect on January 1, 2010, is amended with 

respect to any small commercial package air 

conditioning and heating equipment, large 

commercial package air conditioning and 

heating equipment, and very large 

commercial package air conditioning and 

heating equipment, or if ASHRAE/IES 

Standard 90.1, as in effect on October 24, 

1992, is amended with respect to any 

packaged terminal air conditioners, packaged 

terminal heat pumps, warm-air furnaces, 

packaged boilers, storage water heaters, 

instantaneous water heaters, or unfired hot 

water storage tanks, the Secretary shall 

establish an amended uniform national 

standard for that product at the minimum 

level for each effective date specified in the 

amended ASHRAE/IES Standard 90.1, unless 

the Secretary determines, by rule published 

in the Federal Register and supported by 

clear and convincing evidence, that adoption 

of a uniform national standard more stringent 

than such amended ASHRAE/IES Standard 

90.1 for such product would result in 

significant additional conservation of energy 

and is technologically feasible and 

economically justified. 

(ii) If ASHRAE/IES standard 90.1 is not 

amended with respect to small commercial 

package air conditioning and heating 

equipment, large commercial package air 

conditioning and heating equipment, and 

very large commercial package air 

conditioning and heating equipment during 

the 5-year period beginning on the effective 

date of a standard, the Secretary may initiate 

a rulemaking to determine whether a more 

stringent standard—

(I) Would result in significant additional 

conservation of energy; and 

(II) Is technologically feasible and 

economically justified. 

(42 U.S.C. 6313(a)(6)(A)(i)–(ii)) 7

Pursuant to this section, DOE’s 

authority to amend energy conservation 

standards for the listed ASHRAE 

equipment is triggered by ASHRAE 

action amending ASHRAE/IES Standard 

90.1. With respect to small and large 

commercial package air conditioning 

and heating equipment (as well as all 

other ASHRAE equipment listed in this 

section), prior to the enactment of 

EPACT 2005, any amendment of 

ASHRAE/IES Standard 90.1, as in effect 

on October 24, 1992, (the date of 

enactment of the Energy Policy Act of 

1992) would trigger DOE action for 

adopting amended uniform national 

standards. EPACT 2005 changed the 

October 24, 1992, date for the 


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8Single package vertical air conditioners and 

single package vertical heat pumps that are within 

these capacity ranges are small, large and very large 

commercial package air conditioners and heat 

pumps since they are commercial products (i.e., 

distributed for commercial applications) and meet 

EPCA’s definition for ‘‘commercial package air 

conditioning and heating equipment.’’ (42 U.S.C. 

6311(8)) 

9A notation in the form ‘‘Joint Comment, No. 27 

at pp. 3–4’’ identifies a written comment DOE has 

received and has included in the docket of this 

rulemaking. This particular notation refers to a 

commercial package air conditioning 

and heating equipment, so that only an 

amendment of ASHRAE/IES 90.1 as in 

effect on January 1, 2010, would trigger 

DOE action to adopt amended uniform 

national standards. This provision 

applies to small and large air 

conditioning and heating equipment, as 

well as to very large equipment, which 

EPACT 2005 added to EPCA. 

In addition, section 136(b) of EPACT 

2005 amended section 342(a) of EPCA 

(42 U.S.C. 6313(a)) by prescribing new 

energy conservation standards for 

certain small (greater than or equal to 

65,000 Btu/h to less than 135,000 Btu/ 

h), for large (greater than or equal to 

135,000 Btu/h to less than 240,000 Btu/ 

h), and for very large (greater than or 

equal to 240,000 Btu/h to less than 

760,000 Btu/h) commercial package air 

conditioners and heat pumps.8 DOE 

concluded that the EPACT 2005 

standards implicitly cover SPVUs 

greater than or equal to 65,000 Btu/h to 

less than 760,000 Btu/h as further 

discussed below, but EPACT 2005 

standards do not address or cover 

SPVUs less than 65,000 Btu/h. 71 FR 

12634, 12638. 

II. Discussion of Comments 

A. Large Commercial Packaged Boilers 

(Greater Than 2.5 Million British 

Thermal Units Per Hour) and Gas-Fired 

Instantaneous Water Heaters 

EPCA specifies minimum energy 

conservation standards for certain 

categories of commercial equipment, 

including gas-fired IWHs and large 

commercial packaged boilers. (42 U.S.C. 

6313(a)(1)–(5)) ASHRAE/IESNA 

Standard 90.1 also covers these types of 

equipment, and the efficiency 

requirements in EPCA correspond with 

the ASHRAE/IESNA Standard 90.1–

1989 levels effective October 24, 1992. 

(42 U.S.C. 6313(a)(4) and (5)) 

ASHRAE, in adopting ASHRAE/ 

IESNA Standard 90.1–1999, left in place 

the pre-existing ASHRAE/IES Standard 

90.1–1989 minimum efficiency levels 

for gas-fired IWHs and large commercial 

packaged boilers. Thus, the efficiency 

levels in ASHRAE/IESNA Standard 

90.1–1999 for this equipment are the 

same as the ASHRAE/IES Standard 

90.1–1989 and EPCA levels. 

In the March 1, 2000, notice of 

preliminary screening analysis, the May 

15, 2000, notice of document 

availability and public workshop, and 

the January 2001 final rule, DOE 

indicated its belief that it had the 

authority to consider more stringent 

standard levels for equipment for which 

ASHRAE had considered adopting more 

stringent levels but declined to change 

the efficiency levels for such equipment 

when publishing ASHRAE/IESNA 

Standard 90.1–1999. 71 FR 12642. 

However, in the March 2006 NOA, DOE 

reexamined its authority under EPCA to 

amend standards for gas-fired IWHs and 

large commercial package boilers and 

concluded that its earlier view was in 

error. 71 FR 12642 

Specifically, DOE has concluded that 

the statutory trigger that requires DOE to 

adopt uniform national standards based 

on ASHRAE action is for ASHRAE to 

amend a standard for any of the 

equipment listed in EPCA section 

342(a)(6)(A)(i) (42 U.S.C. 6313 

(a)(6)(A)(i)) by increasing the energy 

efficiency level for that equipment type. 

If ASHRAE merely considers raising the 

standards for any of the listed 

equipment in this section, except for 

small, large, and very large commercial 

package air conditioning and heating 

equipment, but ultimately decides to 

leave the standard levels unchanged or 

lowers the standard, DOE does not have 

the authority to conduct a rulemaking 

for higher standards for that equipment. 

With respect to small, large, and very 

large commercial package air 

conditioning and heating equipment, 

under 42 U.S.C. 6313 (a)(6(A)(ii), DOE 

has the authority to initiate a 

rulemaking proceeding to determine 

whether more stringent standards are 

justified if ASHRAE has not amended 

standards for this equipment within five 

years following the effective date of a 

standard. Furthermore, if ASHRAE 

amends its standards with more 

stringent standards for a specific subset 

of the listed equipment, consistent with 

the above exception, DOE only has the 

authority to adopt the ASHRAE levels 

for the specific subset of equipment and 

its effective dates specified in the 

amended ASHRAE standard. DOE may 

under certain circumstances delineated 

in EPCA adopt a standard more 

stringent than the amended level in 

ASHRAE/IESNA Standard 90.1. 

Before DOE can adopt an ASHRAE 

standard for a product pursuant to 

section 342, the plain language in 

section 342 requires that ASHRAE must 

have amended the standard in 

ASHRAE/IESNA Standard 90.1 for that 

specific product. Once ASHRAE has 

amended a standard for ‘‘any’’

equipment listed in section 342, section 

342 requires the Secretary to ‘‘establish 

an amended uniform national standard 

for that product at the minimum level 

for each effective date specified in the 

amended ASHRAE/IESNA Standard 

90.1, unless the Secretary determines 

* * * that adoption of a * * * more 

stringent [standard] for such product’’ is 

warranted. (Id. Emphasis added.) The 

authority provided in section 

342(a)(6)(a)(i) is clearly limited to only 

those products for which ASHRAE has 

amended the standard; i.e., authority for 

‘‘that product.’’

The intent of section 342, generally, is 

for DOE to maintain uniform national 

standards consistent with those set in 

ASHRAE/IESNA Standard 90.1. Given 

this intent, if ASHRAE has not amended 

a standard for a product subject to 

section 342, there is no change which 

would require action by DOE to 

consider amending the uniform national 

standard to maintain consistency with 

ASHRAE/IESNA Standard 90.1. 

In the case of large commercial 

packaged boilers and gas-fired IWHs, 

ASHRAE considered amending the 

standards but ultimately chose not to do 

so. Therefore, the statutory trigger for 

DOE to adopt ASHRAE’s amended 

standards did not occur with respect to 

this equipment. Contrary to stakeholder 

argument, DOE does not have the 

authority to amend the standards for 

large commercial packaged boilers and 

gas-fired IWHs based on ASHRAE’s 

amendments to ASHRAE/IESNA 

Standard 90.1, which did not amend the 

standards for large commercial 

packaged boilers and gas-fired IWHs. 

The statutory language specifically links 

ASHRAE’s action in amending 

standards for specific equipment to 

DOE’s action for those same equipment. 

Accordingly, since ASHRAE did not 

amend standards for this equipment, 

DOE has no rulemaking authority to 

amend standards for this equipment at 

this time. 

The Alliance to Save Energy (ASE), 

the American Council for an EnergyEfficient Economy (ACEEE), the 

Appliance Standards Awareness Project 

(ASAP), the Natural Resources Defense 

Council (NRDC), the Northeast Energy 

Efficiency Partnerships (NEEP), and the 

Northwest Power and Conservation 

Council (NWPCC) submitted a 

combined comment (collectively 

referred to as ‘‘Joint Comment’’) which 

stated that DOE must review the 

standards for both large commercial 

packaged boilers and gas-fired IWHs. 

(Joint Comment, No. 27 at pp. 3–4) 9 The 


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comment (1) by the Joint Comment, (2) in document 

number 27 in the docket of this rulemaking 

(maintained in the Resource Room of the Building 

Technologies Program), and (3) appearing on page 

3 and 4 of document number 27. 

Joint Comment asserted that ASHRAE’s 

‘‘comprehensive review of all EPCArelated standards which culminated in 

issuance of ASHRAE 90.1–1999 triggers 

the required review by DOE of all EPCA 

standards based on ASHRAE 90.1’’

Furthermore, the Joint Comment 

claimed that ASHRAE should not be 

permitted to shelter specific standards 

from DOE review by leaving them 

unchanged. However, the Joint 

Comment did not provide a rationale for 

DOE to reject the position taken in the 

March 2006 NOA and discussed above. 

Therefore, DOE does not believe the 

Joint Comment provided any 

information that would cause DOE to 

change its interpretation of EPCA as 

explained the March 2006 NOA and 

explained above. DOE rejects the Joint 

Comment’s position. 

Additionally, the Joint Comment 

suggested that if ASHRAE revises a 

standard for a subset of a product class, 

then DOE is required under EPCA to 

consider revised standards for the larger 

product class. For large commercial 

packaged boilers, the Joint Comment 

suggested that DOE is obligated to 

conduct a standards rulemaking instead 

of leaving the ASHRAE/IESNA Standard 

90.1–1989 levels in place. The Joint 

Comment noted that when ASHRAE 

developed ASHRAE/IESNA Standard 

90.1–1999, it examined efficiency levels 

for all packaged boilers, it created two 

product classes—‘‘small boilers’’ and 

‘‘large boilers’’—and it set a new 

efficiency level for small boilers while 

leaving in place the existing level for 

large boilers. The Joint Comment 

asserted that ASHRAE’s revision of 

efficiency levels for the newly created 

product class of ‘‘small boilers’’ triggers 

a review of the entire category of 

packaged boilers as defined by EPCA. 

The Joint Comment further contended 

that DOE’s proposed position that it 

lacks authority to review the standard 

level for large boilers means that 

ASHRAE has unfettered power to create 

new classes of equipment and to shelter 

them from DOE review and from higher 

national standards. This, they 

contended, would conflict with the 

intent of EPCA that ASHRAE have the 

lead in developing higher standards for 

certain equipment, but that these 

standards are subject to DOE review. 

(Joint Comment, No. 27, pp. 3–4) 

However, based on the language of 

EPCA (42 U.S.C. 6313 (a)(6)(A)(i)), 

discussed above, DOE finds no basis for 

accepting the Joint Comments’

contention that ASHRAE’s revision of 

efficiency levels for a product class or 

subclass triggers a review by DOE of the 

standards for that entire product 

category. 

In sum, DOE does not believe the 

Joint Comment provides a basis for DOE 

to conclude that the interpretation 

presented in the March 2006 NOA (71 

FR 12634) was incorrect. Accordingly, 

since ASHRAE did not amend the 

efficiency levels in ASHRAE/IESNA 

Standard 90.1–1999 for large 

commercial packaged boilers or gasfired IWHs, DOE concludes it does not 

have the authority to increase the 

current standard levels for such 

equipment. 

B. Small Commercial Packaged Boilers 

(Greater Than 300,000 British Thermal 

Units Per Hour and Less Than or Equal 

to 2.5 Million British Thermal Units Per 

Hour) 

EPCA prescribes a minimum 

combustion efficiency of 80 percent for 

gas-fired commercial packaged boilers 

and 83 percent for oil-fired commercial 

packaged boilers, regardless of capacity. 

(42 U.S.C. 6313(a)(4)(C)–(D)) ASHRAE/ 

IESNA Standard 90.1–1999 prescribes 

for small boilers (greater than 300 

thousand Btu/h and less than or equal 

to 2.5 million Btu/h) thermal efficiency 

levels of 75 percent for gas-fired 

equipment and 78 percent for oil-fired 

equipment. In January 2001, when it 

adopted as Federal standards certain 

efficiency levels in ASHRAE/IESNA 

Standard 90.1–1999, DOE stated that it 

would evaluate whether standard levels 

higher than those in ASHRAE/IESNA 

Standard 90.1–1999 are justified for 

small commercial packaged boilers. 66 

FR at 3336–38, 3349–52. 

In the March 2006 NOA, DOE 

tentatively concluded that the ASHRAE/ 

IESNA Standard 90.1–1999 thermal 

efficiency levels for small commercial 

packaged boilers would have the effect 

of lowering minimum combustion 

efficiency levels required by EPCA by 

allowing increased energy consumption. 

71 FR 12640. Thermal and combustion 

efficiency are related in that thermal 

efficiency is a function of both flue 

losses (i.e., combustion efficiency) and 

jacket losses, although the amounts of 

these two types of losses in a given 

boiler can be independent of one 

another. DOE observed that the 

minimum thermal efficiency levels in 

ASHRAE/IESNA Standard 90.1–1999 

appear to be lower than the average 

thermal efficiencies of boilers that 

minimally comply with the EPCA’s 

combustion energy efficiency standards. 

71 FR 12640. The practical consequence 

of setting thermal efficiency standards at 

levels lower than the thermal 

efficiencies of existing equipment 

would allow for the possibility of 

equipment having lower combustion 

efficiencies than EPCA permits, 

meaning that the current minimum 

required efficiency would be decreased 

in violation of 42 U.S.C. 

6313(a)(6)(B)(ii)). Consequently, DOE 

stated in the March 2006 NOA that it 

was inclined to reject the ASHRAE/ 

IESNA Standard 90.1–1999 levels for 

small commercial packaged boilers and 

leave the existing EPCA standards in 

place. 71 FR 12641 

DOE did not receive any comments 

objecting to its rejection of the 

ASHRAE/IESNA Standard 90.1–1999 

levels for small commercial packaged 

boilers, although the Joint Comment 

argued that DOE must move forward 

with a rulemaking for commercial 

boilers instead of leaving the ASHRAE/ 

IESNA Standard 90.1–1989 levels in 

place as national standards for small 

packaged boilers. The Joint Comment 

noted that these standards are 17 years 

old, and claimed the March 2006 NOA 

and TSD demonstrate that more 

stringent levels for small commercial 

packaged boilers than those in 

ASHRAE/IESNA Standard 90.1–1999 

are technologically feasible and 

economically justifiable. The Joint 

Comment also indicated that the 

magnitude of the potential energy 

savings for this equipment provides a 

more than ample reason for DOE to 

reexamine this standard. (Joint 

Comment, No. 27, p. 3) 

While DOE agrees with the Joint 

Comment that the ASHRAE/IESNA 

Standard 90.1 levels for this equipment 

have been in place since 1989 and that 

more energy efficient equipment can 

save energy, the mere potential for 

energy savings does not justify a DOE 

rulemaking. As stated above, DOE is 

rejecting the amended ASHRAE/IESNA 

Standard 90.1–1999 efficiency levels for 

small commercial packaged boilers and 

believes that, consistent with section 

342 in EPCA, the proper venue to 

consider more stringent standards for 

this equipment is the ASHRAE process 

itself. Moreover, as noted by the Joint 

Comment, ACEEE has recommended to 

ASHRAE that it amend ASHRAE/IESNA 

Standard 90.1 to adopt new, more 

stringent standards for this equipment. 

DOE commends ACEEE’s initiative, and 

encourages ASHRAE to examine 

whether more stringent standards are 

warranted for this equipment. 

Furthermore, DOE considered 

whether ASHRAE’s action to reduce the 

standard for a class or type of 

commercial equipment would be a 


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10044 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

10The price of electricity and forecasts of 

electricity prices, for example, have changed and 

more stringent standards than analyzed may prove 

to be economically justified. 

change in the standard that would 

trigger a DOE standards rulemaking. 

DOE has concluded that such an action 

by ASHRAE would not trigger a DOE 

rulemaking since EPCA is clear that 

DOE cannot change a standard to reduce 

its stringency. (42 U.S.C. 

6313(a)(6)(B)(ii)) Both Part B for 

consumer products and Part C for 

commercial and industrial equipment 

direct that ‘‘[t]he Secretary may not 

prescribe any amended standard * * * 

which increases the maximum 

allowable energy use, or decreases the 

minimum required energy efficiency 

***’’ (42 U.S.C. 6295(o)(1) and 42 

U.S.C. 6313 (a)(6)(B)(ii), respectively) It 

is a fundamental principle in EPCA’s 

statutory scheme that DOE cannot 

amend standards downward; that is, 

weaken standards, from those that have 

been published as a final rule. Natural 

Resources Defense Council v. Abraham, 

355 F.3d 179 (2nd Cir. 2004). 

Therefore, DOE believes that in order 

to consider amended efficiency levels 

for this equipment, DOE must review 

the amended ASHRAE/IESNA Standard 

90.1 to determine if it meets this EPCA 

requirement and if it does not meet this 

EPCA requirement, that is, if the 

efficiency levels in the amended 

ASHRAE/IESNA Standard 90.1 are less 

stringent than existing standards, DOE 

cannot further consider the amended 

efficiency levels. Accordingly, as stated 

in the March 2006 NOA, today’s final 

rule will leave the existing EPCA 

standards in place for small commercial 

boilers. 

C. Packaged Terminal Air Conditioners 

and Packaged Terminal Heat Pumps 

Section 342(a)(3) of EPCA (42 U.S.C. 

6313(a)(3)) and ASHRAE/IESNA 

Standard 90.1–1999 set forth energy 

conservation standards for PTACs and 

PTHPs, which are collectively referred 

to as PTAC/HPs in today’s notice of 

final rulemaking. The energy 

conservation standards in ASHRAE/ 

IESNA Standard 90.1–1999 vary based 

on the cooling capacity of the 

equipment. 

EPCA prescribes a single formula for 

determining the minimum cooling 

efficiency (EER) for all PTAC/HPs and a 

single formula for computing the 

minimum heating efficiency (COP) for 

all PTHPs. In contrast, ASHRAE/IESNA 

Standard 90.1–1999 further delineates 

the product categories and consists of 

two sets of formulas for calculation of 

the energy conservation standards. One 

set is for PTAC/HPs with wall sleeves 

less than 16 inches high and 42 inches 

wide, and a label indicating the 

equipment is for replacement use, 

which ASHRAE/IESNA Standard 90.1–

1999 classifies as ‘‘replacement’’ units. 

The other formula is for all other PTAC/ 

HPs, which ASHRAE/IESNA Standard 

90.1–1999 classifies as ‘‘new 

construction’’ units. The resulting 

minimum efficiency levels for 

‘‘replacement’’ units are slightly higher 

than the EPCA levels, and the levels for 

‘‘new construction’’ units are 

substantially higher than the EPCA 

levels. In addition, ASHRAE/IESNA 

Standard 90.1–1999 have slightly 

different requirements for the cooling 

modes of PTACs and PTHPs, whereas 

EPCA prescribes a single formula for air 

conditioners and heat pumps. 

In the March 2006 NOA, DOE 

recognized that the market for PTACs 

and PTHPs has substantially changed 

since publication of the January 2001 

final rule. 71 FR 12639. DOE stated in 

the March 2006 NOA that the market 

has changed to efficiency levels at or 

above the levels in ASHRAE/IESNA 

Standard 90.1–1999 in the absence of 

Federal standards. DOE examined the 

January 2003 Air-Conditioning and 

Refrigeration Institute (ARI) Directory 

for PTAC/HPs and found that 52 percent 

of the listed PTACs are at, or above, the 

ASHRAE/IESNA Standard 90.1–1999 

efficiency level for new construction 

equipment, and 98 percent of the listed 

PTACs are at or above the ASHRAE/ 

IESNA Standard 90.1–1999 efficiency 

level for replacement equipment. Id. In 

addition, DOE found that 72 percent of 

the listed PTHPs are at or above the 

ASHRAE/IESNA Standard 90.1–1999 

efficiency level for new construction 

equipment and 99 percent of the listed 

PTHPs are at or above the ASHRAE/ 

IESNA Standard 90.1–1999 efficiency 

level for replacement equipment. Id. 

DOE also indicated in the March 2006 

NOA that even though the potential 

energy savings in the revised analysis 

have been reduced, it believed there is 

a possibility of clear and convincing 

evidence that more stringent standard 

levels for PTACs and PTHPs would 

result in significant additional energy 

savings, and would be technologically 

feasible and economically justified. 

Therefore, DOE stated it was inclined to 

seek a more stringent standard level 

than in ASHRAE/IESNA Standard 90.1–

1999 for PTACs and PTHPs through the 

rulemaking process. 71 FR 12639. 

DOE received several comments on 

the proposed decision to seek a more 

stringent standard level than the 

efficiency levels in ASHRAE/IESNA 

Standard 90.1–1999 for PTACs and 

PTHPs. ARI commented that the 

technical information regarding DOE’s 

analysis does not support moving 

forward with a separate rulemaking. ARI 

believes that 0.103 quads of potential 

energy savings in the TSD is 

significantly less than the 0.561 quads 

originally estimated by DOE for PTAC/ 

PTHP, and that DOE should reject 0.103 

quads saved over a 25-year period as 

being a ‘‘significant’’ amount of energy. 

Furthermore, ARI stated that 

manufacturers are voluntarily striving to 

meet ASHRAE/IESNA Standard 90.1–

1999 requirements. However, ARI went 

on to note that close to 50 percent of the 

PTACs listed in the ARI directory are 

still rated below ASHRAE/IESNA 

Standard 90.1–1999 efficiency levels, 

which, in ARI’s opinion, demonstrates 

the importance of establishing a 

national standard. (ARI, No. 26 at p. 2) 

Even though the potential energy 

savings in DOE’s revised analysis has 

been reduced, DOE believes there is a 

reasonable likelihood that more 

stringent standard levels for PTACs and 

PTHPs would result in significant 

energy savings and be technically 

feasible and economically justified. The 

estimated savings of 0.103 quads would 

be comparable to the savings resulting 

from some other efficiency standards 

established under EPCA. Furthermore, 

under section 325(o)(3)(B) of the Act, 

the Department is prohibited from 

adopting a standard for a product if that 

standard would not result in 

‘‘significant’’ energy savings. While the 

term ‘‘significant’’ has never been 

defined in the Act, the U.S. Court of 

Appeals, in Natural Resources Defense 

Council v. Herrington, 768 F.2d 1355, 

1373 (DC Cir. 1985), concluded that 

Congressional intent in using the word 

‘‘significant’’ was to mean ‘‘non-trivial.’’

Therefore, based on the above, DOE 

does not agree with ARI’s assertion and 

believes that the energy savings that 

could result from standards for PTACs 

and PTHPs, while not as large as the 

savings potential for some other 

standards, are significant and warrant 

consideration in a separate rulemaking. 

In addition, DOE believes there is a 

possibility that further evaluation of 

more stringent standard levels for 

PTACs and PTHPs are warranted, in 

part, because the market has changed, in 

the absence of Federal standards, to 

efficiency levels at or above the levels 

in ASHRAE/IESNA Standard 90.1–1999 

for PTACs and PTHPs.10 71 FR 12639. 

DOE has therefore decided to explore 

more stringent efficiency levels than in 

ASHRAE/IESNA Standard 90.1–1999 

for PTACs and PTHPs through a 

separate rulemaking, which DOE 

expects to complete in August 2008. 


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11Previous refrigerant phaseouts, including the 

R–12 phaseout for domestic refrigerators, affected 

DOE standards rulemakings. In those rulemakings 

DOE attempted to assess the effects of the 

refrigerant phaseout and, the Joint Comment notes, 

there were theoretical reasons to believe that there 

would be a small reduction in efficiency due to the 

refrigerant change, but when the refrigerant 

changeover occurred, reductions in efficiency 

generally were not apparent. 

(See Department of Energy Regulatory 

Agenda, RIN: 1904-AB44, 71 FR 73183, 

December 11, 2006) 

The Edison Electric Institute (EEI) 

commented that DOE should take into 

account the refrigerant phaseout that 

starts in 2010 when considering higher 

standards for PTACs and PTHPs. EEI 

maintained that when the effects of the 

new refrigerants combined with the 

space limitations on this product are 

considered, they will have a significant 

impact on the efficiency levels that are 

available. (EEI, No. 25 at p. 2) 

EEI commented that it is currently 

unaware of any PTAC or PTHP 

equipment that uses R–410A, the 

refrigerant being used to replace R–22 in 

other air-conditioning equipment. 

Therefore, EEI stated its belief that DOE 

will not have current data on baseline 

or high efficiency equipment that DOE 

can use to make a technical or economic 

judgment for a new efficiency standard. 

(EEI, No. 25 at p. 2) 

ARI stated its concern that DOE’s 

analysis focuses exclusively on units 

operating with R–22, a refrigerant that 

will be phased out on January 1, 2010. 

According to the EPACT timetable, any 

amended energy conservation standards 

for this equipment would come into 

effect no sooner than September 2012, 

well after the phaseout of R–22. 

Consequently, ARI stated that it does 

not believe that any of the efficiency 

data that DOE has collected for its 

analyses can be used when DOE is 

evaluating equipment using the new 

refrigerant, R–410A. (ARI, No. 26 at p. 

3) 

ARI cited several technical challenges 

that limit the opportunity to improve 

efficiencies in PTAC/PTHP equipment, 

including the availability of 60–Hz 

rotary compressors compatible with R–

410A refrigerant. ARI commented that 

PTAC/PTHP equipment makes 

exclusive use of rotary compressors and 

the current production of a 60–Hz rotary 

compressor compatible with R–410A 

refrigerant is very limited. Further, 

according to ARI, the R–410A rotary 

compressors currently available are 

significantly less efficient than 

comparable R–22 rotary compressors. In 

addition, ARI stated its belief that the 

rotary compressor manufacturers have 

not made significant gains in energy 

efficiency due to design and 

manufacturing limitations. According to 

ARI, simulation analyses it conducted 

on the performance of package terminal 

air conditioners and heat pumps with 

R–410A have shown an overall decrease 

in efficiency (EER and COP) of between 

6 to 10 percent (depending on the 

cooling capacity) compared to R–22 

systems. This reduction can be mostly 

attributed to a reduction in compressor 

efficiency. DOE has not addressed 

whether higher standards using R410a 

are technically feasible. (ARI, No. 26 at 

p. 3) 

The Joint Comment maintained that at 

least the same levels of efficiency could 

be achieved cost effectively with R–

410A and R–134a as with R–22. The 

Joint Comment, citing a paper released 

by Trane, stated that there is no 

theoretical degradation of efficiency 

with R–134a because the refrigerant has 

a higher efficiency than R–22 with 

everything else being equal. However, 

the Joint Comment recognizes that R–

410A has a modestly lower efficiency 

than R–22, but notes that R–410A 

allows the compressor and tubes to be 

smaller than R–22, providing space for 

increased heat transfer surfaces. 

According to the Joint Comment, this 

results in ‘‘efficiency gains that can 

offset some or all of the inherent 

inefficiencies of R–410A.’’ 11 (Joint 

Comment, No. 27 at p. 2) DOE 

recognizes this is a significant issue for 

stakeholders and will consider this 

issue in the PTAC/PTHP rulemaking, 

which will assess the technological 

feasibility of a more stringent energy 

conservation standard for this 

equipment. 

As stated above, DOE will address 

more stringent standards for PTACs and 

PTHPs in a separate rulemaking. To 

analyze the technical feasibility of 

energy efficiency improvements of 

PTACs and PTHPs, which use R–22, 

DOE will first evaluate systems that use 

R–22 as a refrigerant because there is 

insufficient data to gauge the impacts of 

alternative refrigerants on system 

efficiency. DOE will then attempt to 

collect information on the alternative 

refrigerants. If DOE is unable to collect 

sufficient data or information to 

independently estimate the impacts of 

the refrigerant phaseout on equipment 

efficiency, DOE will request that 

stakeholders provide recommendations 

as to what assumptions DOE should use 

to represent the approximate 

incremental cost of switching to higher 

efficiency levels for this equipment as a 

result of using alternative refrigerants, 

for instance, R–410A. 

D. Three-Phase Air Conditioners and 

Heat Pumps Less Than 65,000 British 

Thermal Units Per Hour 

Energy conservation standards for 

split-system three-phase ACs and HPs 

with cooling capacities less than 65,000 

Btu/h are 10.0 SEER for cooling (42 

U.S.C. 6313(a)(1)(A)) and 6.8 HSPF for 

heating. (42 U.S.C. 6313(a)(1)(A) and 

(D)) Energy conservation standards for 

single-package three-phase ACs and HPs 

with cooling capacities less than 65,000 

Btu/h are set forth in EPCA at a SEER 

of 9.7 for cooling (42 U.S.C. 

6313(a)(1)(B)) and an HSPF of 6.6 for 

heating. (42 U.S.C. 6313(a)(1)(B) and (E)) 

The current energy conservation 

standards for single-package and splitsystem three-phase ACs and HPs with 

cooling capacities less than 65,000 Btu/ 

h are found in Table 1 and Table 2 of 

section 431.97 of 10 CFR Part 431. 

These efficiency levels are the same as 

those in ASHRAE/IESNA Standard 

90.1–1989. 

In the March 2006 NOA, DOE 

recognized that ASHRAE was 

considering an Addendum to ASHRAE/ 

IESNA Standard 90.1 (Addendum f) to 

provide a 13–SEER level for this 

equipment and stated that DOE would 

not take action on three-phase 

commercial air conditioners and heat 

pumps with capacities less than 65,000 

Btu/h until after ASHRAE had 

completed its process. At that time, DOE 

stated that it intended to adopt as 

Federal standards the 13 SEER and 7.7 

HSPF levels in ASHRAE/IESNA 

Standard 90.1–2004 Addendum f. 71 FR 

12634, 12637–38, 12643. 

Subsequent to the publication of the 

March 2006 NOA, DOE reexamined the 

amendments in EPACT 2005 to EPCA 

for commercial package air conditioning 

and heating equipment and determined 

that EPACT 2005 had revised the 

language in 42 U.S.C. 6313(a)(6)(A)(i) to 

limit DOE’s authority to adopt ASHRAE 

amendments for small, large, and very 

large commercial package air 

conditioning and heating equipment 

until after January 1, 2010. Three-phase 

commercial ACs and HPs less than 

65,000 Btu/h, fall under the definition 

of small commercial package air 

conditioning and heating equipment (42 

U.S.C. 6311(8)(B)), and therefore are 

subject to the revised statutory language 

of EPACT 2005. 

Prior to the enactment of EPACT 

2005, for small and large commercial 

package air conditioning and heating 

equipment, any amendment of 

ASHRAE/IES Standard 90.1, as in effect 

on October 24, 1992 (the date of 

enactment of the Energy Policy Act of 

1992), would trigger DOE action for 


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10046 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

adopting amended uniform national 

standards for this equipment. However, 

EPACT 2005 changed the October 24, 

1992, date for this equipment, so that 

only an amendment of ASHRAE/IES 

Standard 90.1 as in effect on January 1, 

2010, would trigger DOE action to adopt 

amended uniform national standards for 

these products. (42 U.S.C. 

6313(a)(6)(A)(i)) This revised statutory 

requirement, on its face, precludes DOE 

from adopting the efficiency levels in 

Addendum f to ASHRAE/IESNA 

Standard 90.1–2004 for three-phase 

commercial ACs and HPs less than 

65,000 Btu/h at this time. The revised 

provision states: 

If ASHRAE/IES Standard 90.1, as in effect on 

January 1, 2010, is amended with respect to 

any small commercial package air 

conditioning and heating equipment, large 

commercial package air conditioning and 

heating equipment, and very large 

commercial package air conditioning and 

heating equipment * * * the Secretary shall 

establish an amended uniform national 

standard for that product at the minimum 

level for each effective date specified in the 

amended ASHRAE/IES Standard 90.1[.] 

(42 U.S.C. 6313(a)(6)(A)(i)) (Emphasis 

added.) Because of this statutory 

change, it is outside the scope of DOE’s 

authority to adopt these ASHRAE/ 

IESNA Standard 90.1 levels at this time. 

Three-phase ACs and HPs less than 

65,000 Btu/h are within the small 

commercial packaged air conditioning 

and heating equipment product 

categories listed in the clause that 

contains the January 1, 2010 date. (42 

U.S.C. 6313 (a)(6)(A)(i)) Addendum f to 

ASHRAE/IESNA Standard 90.1–2004 

was adopted on April 1, 2006, and in 

effect prior to January 1, 2010, the date 

before which DOE has no authority to 

consider adoption of an ASHRAE 

amendment affecting this equipment. 

Subsection (a)(1)(A)–(B) establishes 

statutory standards for certain small 

commercial air conditioning and 

heating equipment that is manufactured 

after January 1, 1994, but before January 

1, 2010. (42 U.S.C. 6313(a)(1)(A)–(B)) 

These standards are applicable to threephase air conditioners and heat pumps 

less than 65,000 Btu/h, as well as 

SPVU’s less than 65,000 Btu/h, 

discussed in Section II.E below. 

While EPACT 2005 set standards for 

certain small, large, and very large 

commercial package air conditioning 

and heating equipment manufactured 

on or after January 1, 2010 (42 U.S.C. 

6313 (7)–(9)), Congress did not provide 

standards for either three-phase air 

conditioning and heat pumps less than 

65,000 Btu/h or SPVUs less than 65,000 

Btu/h manufactured on or after January 

1, 2010. Congress, however, did give 

DOE explicit rulemaking authority to 

consider and adopt more stringent 

standards for three-phase air 

conditioning and heat pumps less than 

65,000 Btu/h and SPVUs less than 

65,000 Btu/h, along with large and very 

large commercial package air 

conditioning and heating equipment, if 

ASHRAE/IESNA Standard 90.1 is not 

amended during the five-year period 

beginning on the effective date of a 

standard. (42 U.S.C. 6313(a)(6)(A)(ii)) 

The criteria for such a rulemaking are 

described in 42 U.S.C. 6313(a)(6)(B)(i)–

(ii). 

EPACT 2005 gives DOE authority to 

initiate a rulemaking ‘‘[i]f ASHRAE/IES 

Standard 90.1 is not amended * * * 

during the 5-year period beginning on 

the effective date of a standard,’’ but 

Congress does not define the term 

‘‘effective date of a standard.’’ Since the 

effective date of the statutory standards 

in EPACT 2005 is the date of enactment 

of the legislation, that is, August 8, 

2005, DOE interprets the five-year 

waiting period to begin on August 8, 

2005. Therefore, EPACT 2005 provides 

ASHRAE from January 2, 2010, until 

August 8, 2010, to amend ASHRAE/ 

IESNA Standard 90.1 on its own in 

order to trigger DOE action. After 

August 8, 2010, DOE may initiate its 

own rulemaking to set more stringent 

standards for this equipment. 

Thus, the text of EPCA clearly 

prohibits amendments to the standards 

for small commercial package air 

conditioning and heating equipment, 

large commercial package air 

conditioning and heating equipment, 

and very large commercial package air 

conditioning and heating equipment 

until after January 1, 2010. 

E. Single-Package Vertical Air 

Conditioners and Single-Package 

Vertical Heat Pumps Less Than 65,000 

Btu/h 

On June 2, 2002, ASHRAE published 

Addendum d to ASHRAE/IESNA 

Standard 90.1–1999, which 

incorporated efficiency levels for 

SPVUs. In the March 2006 NOA DOE 

stated that it was not able to adopt as 

Federal requirements the standards and 

test procedures in Addendum d for 

SPVUs for the following reasons: (1) 

Taking into account the ‘‘Exclusions’’ in 

the Scope section of ARI Standard 390–

2001, the Addendum appeared to 

prescribe requirements for few if any of 

the equipment covered by EPCA; 

neither Addendum d nor any other 

provision of ASHRAE/IESNA Standard 

90.1 defines or describes SPVUs; (2) 

assuming Addendum d did prescribe 

standards and test procedures for 

SPVUs covered by EPCA, the addendum 

did not clearly delineate SPVUs 

according to the statutory scheme set 

forth in EPCA, and disregarded EPCA’s 

definitions and classifications for 

commercial air-conditioning equipment; 

and (3) to the extent it addressed 

equipment covered by EPCA, the 

addendum appeared to contain 

efficiency levels for some categories of 

equipment that were lower than the 

minimum efficiency standards currently 

required under EPCA. 71 FR 12643. 

DOE formally rejected Addendum d for 

reasons summarized above and 

submitted a formal comment to 

ASHRAE during the public review 

period. (Michael J. McCabe letter to Mr. 

Karim Amrane, Air-Conditioning and 

Refrigeration Institute, dated July 25, 

2003). 

In response to DOE’s comment and in 

rejection of Addendum d, ASHRAE 

adopted Addendum b to ASHRAE/ 

IESNA Standard 90.1–2004 (Addendum 

b). Addendum b redefined both SPVACs 

and SPVHPs from the definition 

provided in Addendum d to include 

encased air-cooled small or large 

commercial package air-conditioning 

and heating equipment. In addition, 

Addendum b created SPVU equipment 

categories corresponding to the existing 

cooling capacities in EPCA for 

commercial package air-conditioning 

and heating equipment (i.e., less than 

65,000 Btu/h, greater than or equal to 

65,000 but less than 135,000 Btu/h, and 

greater than or equal to 135,000 but less 

than 240,000 Btu/h). Addendum b also 

adopted a revised set of efficiency levels 

for three categories of SPVUs. These 

amended energy conservation standards 

in Addendum b use EER and COP 

descriptors to provide SPVU efficiency 

levels in a manner consistent with other 

commercial HVAC equipment, thus 

eliminating the use of the common 

residential central AC and HP 

descriptors of SEER and HSPF. 

In the March 2006 NOA, DOE 

considered the potential energy savings 

for efficiency levels higher than those in 

Addendum b for SPVU equipment and 

requested comments on the 

appropriateness of adopting Addendum 

b efficiency levels for SPVUs less than 

65,000 Btu/h. 71 FR 12634, 12638, 

12646. After the publication of the 

March 2006 NOA, DOE reexamined the 

amendments in EPACT 2005 to EPCA 

for commercial package air conditioning 

and heating equipment. As noted above, 

DOE determined that EPACT 2005 had 

revised the language in 42 U.S.C. 

6313(a)(6)(A)(I,) to limit DOE’s authority 

to adopt ASHRAE amendments for 

small, large, and very large commercial 

package air conditioning and heating 

equipment until after January 1, 2010. 


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SPVUs less than 65,000 Btu/h fall under 

the definition of small commercial 

package air conditioning and heating 

equipment. (42 U.S.C. 6311(8)(A)). Any 

SPVU with cooling capacities below 

760,000 Btu/h would fit within the 

product categories listed in the clause 

that contains the January 1, 2010, date. 

(42 U.S.C. 6313(a)(6)(A)(i)) Accordingly, 

for the reasons stated above in Section 

II.D above, DOE has concluded that it 

cannot adopt the efficiency levels in 

Addendum b to ASHRAE/IESNA 

Standard 90.1–2004 for SPVUs less than 

65,000 Btu/h, contrary to its stated 

intentions in the March 2006 NOA, 

because it is outside the scope of DOE’s 

authority to adopt the ASHRAE/IESNA 

Standard 90.1 levels at this time for this 

equipment. 

F. Single-Package Vertical Air 

Conditioners and Single-Package 

Vertical Heat Pumps Greater Than or 

Equal to 65,000 Btu/h and Less Than 

240,000 Btu/h 

In the March 2006 NOA, DOE stated 

that EPCA’s energy efficiency standards 

for commercial packaged air 

conditioners and heat pumps implicitly 

cover SPVUs greater than or equal to 

65,000 Btu/h and less than 240,000 Btu/ 

h, and, specifically, the standards added 

to EPCA by EPACT 2005 apply to these 

larger units. DOE also stated that the 

rule under consideration in the March 

2006 NOA only addressed SPVUs less 

than 65,000 Btu/h. 71 FR 12634, 12638. 

DOE received several comments 

regarding its conclusion that SPVUs 

with larger capacities are covered under 

the standards specified by EPACT 2005. 

ARI disagreed with DOE’s position, and 

argued that Addendum b to ASHRAE/ 

IESNA Standard 90.1–2004 established 

a new product class for SPVUs in 2002 

(three years before enactment of EPACT 

2005); that DOE started a rulemaking on 

SPVUs well before EPACT 2005 was 

enacted into law according to the semiannual regulatory agendas published in 

2003 and 2004; and that the minimum 

efficiency standards for small, large, and 

very large commercial air conditioners 

established by EPACT 2005 were never 

intended to apply to SPVUs. (ARI, No. 

26 at p. 5) Contrary to ARI’s belief, the 

Joint Comment agreed with DOE’s 

position as summarized in the March 

2006 NOA and further argued that the 

EPACT 2005 standards for commercial 

unitary air-conditioning and heating 

equipment cover SPVUs with cooling 

capacities greater than or equal to 

65,000 Btu/h. (Joint Comment, No. 27 at 

p. 4) 

DOE is not persuaded by ARI’s 

comment that the conclusion presented 

in the March 2006 NOA is incorrect and 

that SPVUs with cooling capacities 

greater than or equal to 65,000 Btu/h 

were not meant to be covered by EPACT 

2005 levels and, instead, should be 

required to meet the lower standards 

found in Addendum b. The definition in 

EPACT 2005 for large commercial 

package air conditioning and heating 

equipment covers commercial packaged 

air-conditioning and heating equipment 

with cooling capacities greater than or 

equal to 65,000 Btu/h and less than 

760,000 Btu/h, which would include 

SPVUs. Although the term SPVU itself 

is not used in EPCA, all SPVUs, 

regardless of cooling capacity, come 

within the definitions of small, large 

and very large commercial packaged airconditioning and heating equipment. 

(42 U.S.C. 6311(8)(A)–(D). There is no 

language in EPCA to indicate that 

SPVUs are a separate product and 

should be subject to different energy 

conservation standards than in EPACT 

2005. EPACT 2005 set energy efficiency 

standards for small, large and very large 

commercial package air conditioning 

and heat equipment, effective for 

equipment manufactured on or after 

January 1, 2010. (42 U.S.C. 6313(a)(7)–

(9). Since EPACT 2005 set such 

standards, DOE must follow them. DOE 

cannot ignore the statutory standards. 

Only a legislative change could 

accomplish the result requested by ARI. 

Bard commented that larger SPVUs 

(greater than 65,000 Btu/h) cannot be 

manufactured to meet the statutory 

standards in EPACT 2005 due to their 

geometry. (Bard, No. 29 at p. 4) In 

response, DOE notes that absent a 

legislative change, the only relief from 

these statutory standards is in the form 

of exception relief. The DOE 

Organization Act (DOEOA) authorizes 

DOE to grant exception relief. DOEOA 

section 504(a), 42 U.S.C. 7194(a). The 

DOEOA permits adjustments to any 

rule, regulation or order ‘‘as may be 

necessary to prevent special hardship, 

inequity, or unfair distribution of 

burdens * * *’’ Id. Manufacturers may 

apply for exception relief by following 

DOE’s procedural regulations in 10 CFR 

Part 1003, Subparts B and C. 

Accordingly, in today’s final rule, 

consistent with the March 2006 NOA, 

DOE is affirming that the EPACT 2005 

efficiency levels, as codified in 

§ 431.97(b) of 10 CFR Part 431, apply to 

SPVUs greater than or equal to 65,000 

Btu/h and less than 760,000 Btu/h. 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

Today’s regulatory action is not a 

‘‘significant regulatory action’’ under 

section 3(f) of Executive Order 12866, 

‘‘Regulatory Planning and Review,’’ 58 

FR 51735 (October 4, 1993). 

Accordingly, this action was not subject 

to review under the Executive Order by 

the Office of Information and Regulatory 

Affairs. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of an initial regulatory flexibility 

analysis for any rule that by law must 

be proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. As required by 

Executive Order 13272, Proper 

Consideration of Small Entities in 

Agency Rulemaking, 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of General 

Counsel’s Web site: http:// 

www.gc.doe.gov. 

DOE reviewed today’s final rule under 

the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. 68 FR 7990. This final rule does 

not impose any requirement on any 

entities, including small entities. 

Therefore, DOE certifies that today’s 

action will not have a significant 

economic impact on a substantial 

number of small entities, and no 

regulatory flexibility analysis has been 

prepared. 

C. Review Under the Paperwork 

Reduction Act of 1995 

This rule imposes no new information 

or recordkeeping requirements. 

Accordingly, Office of Management and 

Budget clearance is not required under 

the Paperwork Reduction Act. (44 

U.S.C. 3501 et seq.) 

D. Review Under the National 

Environmental Policy Act of 1969 

EPCA provides that if ASHRAE/ 

IESNA Standard 90.1 is amended, the 

Secretary must adopt the amended 

efficiency requirements in ASHRAE/ 

IESNA Standard 90.1 for covered 

equipment, unless the Secretary 

determines that certain conditions for 

requiring more stringent standards are 

met, or the amendment would increase 

the maximum allowable energy use or 

decrease the minimum required energy 

efficiency of a covered product or would 

result in the unavailability of a product 


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10048 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

type in the United States. (42 U.S.C. 

6313(a)(6)(A) and (B)) 

For the reasons discussed in II. above, 

DOE has concluded that it lacks 

authority to pursue higher standards for 

gas-fired instantaneous water heaters 

and large commercial packaged boilers. 

For small commercial packaged boilers 

with capacities greater than 300,000 

Btu/h and less than or equal to 2.5 

million British thermal units per hour, 

DOE is declining to adopt revised 

efficiency standards contained in the 

ASHRAE/IESNA Standard 90.1–1999 

because they are not as stringent as 

those prescribed by EPCA. In addition, 

DOE has decided to conduct a separate 

rulemaking to consider whether 

standards at higher levels than those in 

the ASHRAE/IESNA Standard 90.1–

1999 are warranted for packaged 

terminal air conditioners and packaged 

terminal heat pumps. Finally, DOE has 

concluded it does not have the authority 

to adopt, as uniform national standards, 

efficiency standards contained in 

Addenda f and Addenda b, respectively, 

to ASHRAE/IESNA Standard 90.1–2004 

for three-phase commercial air 

conditioners and heat pumps with 

cooling capacities less than 65,000 

British thermal units per hour, and 

single-package vertical air conditioners 

and single-package vertical heat pumps 

with cooling capacities less than 65,000 

Btu/h. 

Accordingly, to the extent that DOE 

lacks discretion to adopt the amended 

ASHRAE/IESNA Standard 90.1, NEPA 

does not apply. Moreover, because the 

final rule prescribing no new energy 

efficiency standards and would not 

change the environmental effect of 

compliance with 10 CFR Part 431, the 

Department has determined that this 

rule is, in any event, covered under the 

Categorical Exclusion found at 

paragraph A5 of Appendix A, 10 CFR 

Part 1021, which applies to rulemaking 

interpreting an existing rule or 

regulation with no change in 

environmental effect. Therefore, neither 

an environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’

64 FR 43255 (August 4, 1999) imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications. On March 

14, 2000, DOE published a statement of 

policy describing the intergovernmental 

consultation process it will follow in 

developing such regulations. 65 FR 

13735. DOE is prescribing no new 

standards and imposing no other 

requirements in this rulemaking. 

Therefore, this final rule does not have 

a substantial direct effect on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Review Under Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (February 7, 1996) 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. As a result of its analysis 

of the evidence and the law, DOE has 

decided not to prescribe amended 

standards for the equipment covered in 

this rulemaking. Because it is not 

imposing any requirement on any 

person or entity, Executive Order 12988 

does not apply to this rulemaking. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4) requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and Tribal 

governments and the private sector. For 

a proposed regulatory action likely to 

result in a rule that may cause 

expenditures by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a), (b)) 

The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA (62 FR 12820) (also available at 

http://www.gc.doe.gov). This final rule 

prescribes no standards or other 

requirements, so these requirements 

under the UMRA do not apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

final rule would not have any impact on 

the autonomy or integrity of the family 

as an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

I. Review Under Executive Order 12630 

DOE has determined under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights,’’ 53 FR 8859 

(March 18, 1988) that this regulation 

would not result in any takings which 

might require compensation under the 

Fifth Amendment to the United States 

Constitution. 


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J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516 note) requires 

agencies to review most disseminations 

of information to the public under 

guidelines established by each agency 

pursuant to general guidelines issued by 

the Office of Management and Budget 

(OMB). OMB’s guidelines were 

published at 67 FR 8452 (February 22, 

2002); DOE’s guidelines were published 

at 67 FR 62446 (October 7, 2002). DOE 

has reviewed today’s notice under the 

OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001) requires Federal agencies to 

prepare and submit to the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, a Statement of Energy Effects for 

any proposed significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgated or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy; or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use if the 

proposal were implemented, and of 

reasonable alternatives to the action and 

their expected benefits on energy 

supply, distribution, and use. This final 

rule is not a significant regulatory action 

under Executive Order 12866 or any 

successor order, and because DOE is 

imposing no requirements in this final 

rule, it will not have a significant 

adverse effect on supply, distribution, or 

use of energy, and has not been 

designated by the Administrator of 

OIRA as a significant energy action. 

Accordingly, DOE has not prepared a 

Statement of Energy Effects. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule prior to its effective date. 

The report will state that it has been 

determined that the rule is not a ‘‘major 

rule,’’ as defined by 5 U.S.C. 804(2). 

IV. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s final rule. 

Issued in Washington, DC, on February 28, 

2007. 

Alexander A. Karsner, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

[FR Doc. E7–3819 Filed 3–6–07; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2006–25261; Directorate 

Identifier 2006–CE–38–AD; Amendment 39–

14971; AD 2007–05–10] 

RIN 2120–AA64 

Airworthiness Directives; Cessna 

Aircraft Company Models 172R, 172S, 

182S, 182T, T182T, 206H, and T206H 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: The FAA adopts a new 

airworthiness directive (AD) for certain 

Cessna Aircraft Company (Cessna) 

Models 172R, 172S, 182S, 182T, T182T, 

206H, and T206H airplanes. This AD 

requires you to install Modification Kit 

MK172–25–10C or a steel lock rod/bar 

on both crew seat back cylinder lock 

assemblies. If a steel lock rod/bar has 

already been installed on the crew seat 

back cylinder lock assembly, no further 

action is required. If you have already 

installed Modification Kit MK172–25–

10A or MK172–25–10B, this AD 

requires you to do an installation 

inspection and correct any 

discrepancies found. This AD results 

from reports of the crew seat back 

cylinder lock assembly failing at the aft 

end and other cylinder lock assemblies 

found cracked. We are issuing this AD 

to prevent the crew seat back cylinder 

lock assembly from bending, cracking, 

or failing. This failure could cause 

uncontrolled movement of the seat back, 

resulting in possible backward collapse 

during flight. Backward collapse of 

either crew seat back could result in an 

abrupt pitch-up if the affected crew 

member continues to hold on to the 

control yoke during this failure and 

could cause difficulty in exiting the 

airplane from an aft passenger seat after 

landing. 

DATES: This AD becomes effective on 

April 11, 2007. 

As of April 11, 2007, the Director of 

the Federal Register approved the 

incorporation by reference of certain 

publications listed in the regulation. 

ADDRESSES: To get the service 

information identified in this AD, 

contact Cessna Aircraft Company, 

Product Support, P.O. Box 7706, 

Wichita, KS 67277; telephone: (316) 

517–5800; fax: (316) 942–9006. 

To view the AD docket, go to the 

Docket Management Facility, U.S. 

Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

001 or on the Internet at http:// 

dms.dot.gov. The docket number is 

FAA–2006–25261; Directorate Identifier 

2006–CE–38–AD. 

FOR FURTHER INFORMATION CONTACT: Gary 

Park, Aerospace Engineer, FAA, Wichita 

Aircraft Certification Office, 1801 

Airport Road, Mid-Continent Airport, 

Wichita, Kansas 67209; telephone: (316) 

946–4123; facsimile: (316) 946–4107. 

SUPPLEMENTARY INFORMATION: 

Discussion 

On August 3, 2006, we issued a 

proposal to amend part 39 of the Federal 

Aviation Regulations (14 CFR part 39) to 

include an AD that would apply to 

certain Cessna Models 172R, 172S, 

182S, 182T, T182T, 206H, and T206H 

airplanes. This proposal was published 

in the Federal Register as a notice of 

proposed rulemaking (NPRM) on 

August 9, 2006 (71 FR 45454). The 

NPRM proposed to require you to install 

a modification kit on both crew seat 

back cylinder lock assemblies, which 

replaces the cylinder lock with a new 

model cylinder lock, or install a steel 

lock rod/bar on both crew seat back 

cylinder lock assemblies. The NPRM 

also proposed to require you to do an 

installation inspection on previously 

installed modification kits and correct 

any discrepancies found. 

Comments 

We provided the public the 

opportunity to participate in developing 

this AD. The following presents the 

comments received on the proposal and 

FAA’s response to each comment: 

Comment Issue No. 1: Need AD To 

Resolve Crew Seat Problem 

Michael A. Zaite states that having 

flown a number of Cessna airplanes, he 

has experienced this problem first hand 

and supports the AD. 

The Cessna Pilots Association (CPA) 

also supports the AD. The CPA states 


sroberts on PROD1PC70 with RULES