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[Federal Register Volume 78, Number 143 (Thursday, July 25, 2013)]
[Proposed Rules]
[Pages 44895-44897]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17894]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 78, No. 143 / Thursday, July 25, 2013 / 
Proposed Rules

[[Page 44895]]

DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket Number EERE-BT-PET-0038]
RIN 1904-AD05

Energy Conservation Program for Consumer Products: First Co. 
Petition for Reconsideration

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Petition for rulemaking; request for comments.

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SUMMARY: The Department of Energy (DOE) received a petition from Howe, 
Anderson & Steyer, P.C., on behalf of First Co., requesting that DOE 
conduct a rulemaking to amend certification regulations applicable to 
residential central air conditioners and heat pumps (together ``CAC'') 
to: collect Energy Efficiency Rating (EER) information from 
manufacturers through the Compliance, Certification Management System 
(``CCMS'') as part of annual certification reporting requirements; and 
publish the information in DOE's Compliance Certification Database 
(``CCD''). As an interim measure prior to the completion of the 
rulemaking, they request that DOE collect EER information from 
manufacturers on an expedited and voluntary basis and publish EER 
information in the CCD. They contend that voluntary collection and 
publication of EER information on an interim basis is necessary to 
prevent harm to manufacturers and consumers. To the extent that the 
collection of EER information is subject to OMB approval under the 
Paperwork Reduction Act, they further request that DOE seek OMB 
authorization for ``emergency'' or expedited processing of DOE's 
request to collect EER information on a voluntary basis. DOE seeks 
comment on whether to grant the petition and proceed with a rulemaking 
on this matter.

DATES: Any comments must be received by DOE not later than August 26, 
2013.

ADDRESSES: Comments must be submitted, identified by docket number 
EERE-BT-PET-0038, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: FirstCoPetition2013PET0038@ee.doe.gov. Include either the 
docket number EERE-BT-PET-0038, and/or ``First Co. Petition'' in the 
subject line of the message.
    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building 
Technologies Program, Mailstop EE-2J, Room 1J-018, 1000 Independence 
Avenue SW., Washington, DC 20585-0121. Please submit one signed 
original paper copy.
    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Program, Room 1J-018, 1000 Independence 
Avenue SW., Washington, DC 20585- 0121.
    5. Instructions: All submissions received must include the agency 
name and docket number for this proceeding.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at 
www.regulations.gov. In addition, electronic copies of the Petition are 
available online at DOE's Web site at the following URL address: http://www1.eere.energy.gov/buildings/appliance_standards/current_rulemakings-notices.html.

FOR FURTHER INFORMATION CONTACT:
Ashley Armstrong, 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-
6590, or email: Ashley.Armstrong@ee.doe.gov.
James Silvestro, U.S. Department of Energy, Office of General Counsel, 
GC-71, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-
4224, email: James.Silvestro@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). DOE received a 
petition from Howe, Anderson & Steyer, P.C., on behalf of First Co., 
requesting that DOE conduct a rulemaking to amend certification 
regulations applicable to residential central air conditioners and heat 
pumps (together ``CAC'') under 10 CFR part 429, subpart B, to: (i) 
collect Energy Efficiency Rating (EER) information from manufacturers 
through the Compliance, Certification Management System (``CCMS'') as 
part of annual certification reporting requirements; and (ii) publish 
the information in DOE's Compliance Certification Database (``CCD'').
    Manufacturers must certify, by means of an annual compliance 
statement and certification report, that each basic model CAC meets the 
applicable energy conservation standard. Under existing regulations, 
the annual reporting requirements include submission of various 
information by manufacturers, but not EER information. Under the direct 
final rule establishing regional energy conservation standards for 
CACs, the standard for CACs installed in the Southwestern Region 
includes a requirement for minimum EER. 76 FR 37408 (June 27, 2011). 
However, the direct final rule did not amend existing certification 
regulations to require manufacturers to supply EER information through 
CCMS. The petition states that collecting EER information enhances the 
existing certification reporting system and its ability to enforce 
applicable energy efficiency standards, including regional standards. 
The petition further states that collecting and publishing EER 
information also benefits consumers, contractors, engineers, 
architects, utilities, manufacturers and state agencies that use CCMS/
CCD as the government source of manufacturer certified efficiency 
information. Finally, the petition states that because of regional 
standards, CCMS/CCD must include EER information to continue to be a 
valuable resource for users in the Southwestern Region.
    As an interim measure prior to the completion of its requested 
rulemaking, the petition requests that DOE collect EER information from 
manufacturers on an expedited and voluntary basis and publish the EER 
information that is voluntarily submitted in the CCD. It contends that 
the voluntary collection and publication of EER information on an 
interim basis is necessary to prevent harm to manufacturers and 
consumers. The petition states that manufacturers

[[Page 44896]]

that rely on CCMS/CCD are likely to lose substantial business in the 
Southwestern Region until CCMS/CCD includes EER information, and that 
consumers will also suffer harm if they are unable to compare the EER 
of various models and potentially decide to purchase certain high-
efficiency equipment that would better meet their needs. The petition 
notes that the potential harm to manufacturers and consumers can be 
averted by collecting information through CCMS on a voluntary basis and 
publishing it in CCD by January 2014.
    To the extent that the collection of EER information is subject to 
OMB approval under the Paperwork Reduction Act, the petition further 
requests that DOE, pursuant to 5 CFR 1320.13, seek OMB authorization 
for ``emergency'' or expedited processing of DOE's request to collect 
EER information on a voluntary basis. It states that the voluntary 
collection of EER information under the emergency procedure would place 
no additional burden on manufacturers because they already have and 
maintain the EER information that is derived from the test required 
under existing certification and compliance regulations.
    In promulgating this petition for public comment, DOE seeks public 
comment on whether to grant the petition and undertake a rulemaking to 
consider the proposals contained in the petition. By seeking such 
comment, DOE takes no position at this time on the merits of the 
suggested rulemaking.

    Issued in Washington, DC on July 19, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary of Energy Efficiency, Energy Efficiency and 
Renewable Energy.
    Set forth below is the full text of the First Co. petition.

May 13, 2013
Via email

John Cymbalsky, U.S. Department of Energy, Office of Building 
Technologies (EE-2J), 1000 Independence Ave. SW., Washington, DC 
20585-0121

Re: Petition for Rulemaking and Expedited Processing of OMB 
Clearance

    Dear Mr. Cymbalsky: On behalf of our client First Co., we 
request that the Department of Energy (``DOE'') conduct a rulemaking 
to amend certification regulations applicable to residential central 
air conditioners and heat pumps (together ``CAC'') under 10 CFR Part 
429, Subpart B, to: (i) collect Energy Efficiency Rating (EER) 
information from manufacturers through the Compliance, Certification 
Management System (``CCMS'') as part of annual certification 
reporting requirements; and (ii) publish the EER information in 
DOE's Compliance Certification Database (``CCD'').
    As an interim measure prior to the completion of the rulemaking, 
we request that DOE collect EER information from manufacturers on an 
expedited and voluntary basis and publish the EER information in 
CCD. Voluntary collection and publication of EER information on an 
interim basis is necessary to prevent harm to manufacturers and 
consumers as described below. To the extent that the collection of 
EER information is subject to OMB approval under the Paperwork 
Reduction Act, we further request that DOE, pursuant to 5 CFR Sec.  
1320.13, seek OMB authorization for ``emergency'' or expedited 
processing of DOE's request to collect EER information on a 
voluntary basis.
    We respectfully request that these actions be undertaken as soon 
as possible in 2013.

Certification Reporting and Regional Standards

    As you know, manufacturers must certify, by means of a 
compliance statement and certification report, that each basic model 
CAC meets the applicable energy conservation standard. Under 
existing regulations, the annual reporting requirements include 
submission of various information by manufacturers, but not EER 
information.
    DOE published a direct final rule on June 27, 2011 establishing 
regional standards for various consumer products including CACs. 
Under the rule, while national standards for CACs remained 13 SEER, 
effective January 1, 2015, the standard for CACs installed in the 
Southeastern Region becomes 14 SEER and the standard for CACs 
installed in the Southwestern Region \1\ becomes 14 SEER and 12.2 
EER (for units installed with a rated cooling capacity less than 
45,000 Btu/h)/11.7 EER (for units with a rated cooling capacity 
equal to or greater than 45,000 Btu/h.) The direct final rule did 
not amend existing certification regulations to require 
manufacturers to supply EER information through CCMS.
---------------------------------------------------------------------------

    \1\ The Southwestern Region contains the States of Arizona, 
California, Nevada and New Mexico.
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    CCMS/CCD needs to include EER information. Collecting EER 
information enhances DOE's existing certification reporting system 
and its ability to enforce applicable energy efficiency standards, 
including regional standards. As DOE stated when it proposed 
enhanced certification reporting in a prior rulemaking, ``By 
requiring additional relevant data to be supplied in the 
certification report, DOE will be able to more effectively enforce 
compliance with the conservation standards. Additionally, the public 
would have information to use in evaluating the energy efficiency of 
a covered product or covered equipment.'' 75 FR 56798 (Sept. 16, 
2010).
    Collecting and publishing EER information also benefits 
consumers, contractors, engineers, architects, utilities, 
manufacturers and state agencies that use CCMS/CCD as the government 
source of manufacturer certified efficiency information. For 
example, CCMS/CCD may be used by (i) architects and engineers to 
verify energy efficiency ratings of equipment for installation in 
their projects; (ii) utilities to qualify equipment for rebates; and 
(iii) state agencies to verify compliance with state laws. 
Manufacturers, especially those that do not list their products in a 
voluntary industry directory, rely on CCMS/CCD as the official 
government source for energy efficiency information of their 
products. Because of regional standards, CCMS/CCD must include EER 
information to continue to be a valuable resource for users in the 
Southwestern Region.

Interim Collection of EER Information

    The rulemaking requested by this petition is likely to extend 
well into 2014, even if commenced reasonably soon. DOE has made 
clear that regional standards are based on installation dates, so 
that CACs installed on or after January 1, 2015 in the Southeastern 
and Southwestern Regions must meet the new standards, including the 
EER standard in the Southwestern Region.
    Residential projects, especially multi-family projects, require 
substantial lead times. Architects, engineers and builders often 
select HVAC systems for such projects up to 9-12 months in advance 
of the install date. In practical terms, this means that an 
architect or an engineer selecting CACs for a multi-family project 
in the Southwestern Region must be able to verify the SEER and EER 
of the unit during the first quarter of 2014 for an install date in 
January, 2015. CCMS/CCD, therefore, needs to include EER information 
by January 2014 in order to be an available resource for projects 
being ``spec'd'' for installation in January 2015.
    In addition, the State of California has adopted new mandatory 
requirements for appliances including CACs. It is our understanding 
that under regulations promulgated by the California Energy 
Commission, effective January 1, 2014, energy efficiency ratings of 
CACs that exceed minimum federal standards (13 SEER) must be 
verified using data from an approved database or directory. 
Verification of both SEER and EER is required. CCMS/CCD is an 
approved directory under these regulations, but it cannot be used to 
verify ratings for higher efficiency CACs in California in 2014 
unless it includes EER information.
    Manufacturers that rely on CCMS/CCD are likely to lose 
substantial business in the Southwestern Region until CCMS/CCD 
includes EER information. The harm will be particularly great in 
California because of the new verification requirements for higher 
SEER/EER equipment. Consumers will also suffer harm if they are 
unable to purchase certain high efficiency equipment that would 
better meet their needs.
    The potential harm to manufacturers and consumers can be averted 
by collecting EER information through CCMS on a voluntary basis and 
publishing it in CCD by January 2014. If adopted as an interim 
measure until the rulemaking is completed, the voluntary collection 
and publication of EER information could be accomplished quickly 
since manufacturers already have and maintain the EER information, 
which is derived from the ``A'' test required under existing 
certification and compliance regulations.

Request for Emergency OMB Approval Under PRA

    The Paperwork Reduction Act imposes certain requirements on 
federal agencies

[[Page 44897]]

before collecting data from the public. It is our understanding that 
before a federal agency can require or request information from the 
public, the agency must (1) seek public comment on the proposed 
collections, and (2) submit the proposed collections for review and 
approval by OMB. Based on published guidance from the Executive 
Branch, it appears that the regular review and approval process can 
take anywhere from 6-9 months from the date the process is initiated 
by the agency.
    The rulemaking requested in this petition appears to involve the 
collection of information subject to PRA requirements. For the 
reasons stated above, however, a delay of up to 9 months after the 
initiation of the rulemaking will cause harm to manufacturers and 
consumers that can and must be avoided.
    Under certain circumstances, an agency may obtain expedited or 
``emergency'' OMB review of an information collection request. The 
regulations applicable to a request for emergency processing are set 
forth in 5 CFR Sec.  1320.13 and state, in relevant part:
    (a) Any such request shall be accompanied by a written 
determination that:
    (1) The collection of information:
    (i) Is needed prior to the expiration of time periods 
established under this Part; and
    (ii) Is essential to the mission of the agency; and
    (2) The agency cannot reasonably comply with the normal 
clearance procedures under this Part because:
    (i) Public harm is reasonably likely to result if normal 
clearance procedures are followed; (or)
    (ii) An unanticipated event has occurred; . . .
    The circumstances described in this petition meet the 
requirements for expedited emergency review. Collecting EER 
information is based on regional standards that include minimum EER 
standards for CACs installed in the Southwestern Region. Collection 
of EER information, therefore, is essential to DOE's ability to 
effectively enforce compliance with regional EER standards, and to 
provide complete information for the public to use in evaluating the 
energy efficiency of a covered product or covered equipment. 
[subsection (a)(1)(ii).]
    EER information must be collected and published in CCMS/CCD 
before completion of normal clearance procedures or significant 
public harm to manufacturers and consumers is likely to result. 
[subsection (a) (1) (ii), and (2)(i).] In addition, the adoption of 
regulations by the California Energy Commission applicable to higher 
efficiency CACs installed on or after January 1, 2014 may be 
regarded as an unanticipated event in light of the January 1, 2015 
effective date for regional standards under federal law. [subsection 
(a)(2)(ii)]. The voluntary collection of EER information under the 
emergency procedure would place no additional burden on 
manufacturers, because they already have and maintain the EER 
information which is derived from the ``A'' test required under 
existing certification and compliance regulations.

 Very truly yours,

HOWE, ANDERSON & STEYER, P.C.
Richard A. Steyer

Attorney for First Co.

cc: Ashley Armstrong, DOE, Laura Barhydt, DOE, First Co.

[FR Doc. 2013-17894 Filed 7-24-13; 8:45 am]
BILLING CODE 6450-01-P
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