This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

104859 

Vol. 89, No. 247 

Thursday, December 26, 2024 

OFFICE OF THE FEDERAL REGISTER 

5 CFR Chapter XL 

Interstate Commerce Commission 

Regulations; Removal of Chapter 

Editorial Note: Under section 101 of Public 

Law 104–88, the Interstate Commerce 

Commission was abolished on Dec. 29, 1995, 

effective January 1, 1996. 

The Director of the Office of the 

Federal Register, pursuant to his 

authority to maintain an orderly system 

of codification under 44 U.S.C. 1510 

and 1 CFR 8.2, hereby removes from the 

Code of Federal Regulations, Chapter XL 

of Title 5, consisting of Parts 5000 to 

5099, containing supplemental 

standards of ethical conduct for the 

employees of the Interstate Commerce 

Commission. 

■ Accordingly, Chapter XL of Title 5 of 

the Code of Federal Regulations is 

hereby removed as of December 26, 

2024. 

[FR Doc. 2024–31079 Filed 12–23–24; 8:45 am] 

BILLING CODE 0099–10–P 

DEPARTMENT OF ENERGY 

10 CFR Part 431 

[EERE–2024–BT–DET–0012] 

RIN 1904–AE57 

Energy Conservation Program: 

Commercial Warm Air Furnaces; 

Notification of Tentative Determination 

and Request for Comment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notification of tentative 

determination and request for comment. 

SUMMARY: On June 2, 2023, the U.S. 

Department of Energy (‘‘DOE’’ or the 

‘‘Department’’) published a test 

procedure final rule which established 

test procedures for commercial warm air 

furnaces (‘‘CWAFs’’). The AirConditioning, Heating, and Refrigeration 

Institute (‘‘AHRI’’) filed a petition for 

review of the final rule in the United 

States Court of Appeals for the Fourth 

Circuit on August 1, 2023. In a February 

6, 2024, order, the Fourth Circuit 

granted a voluntary remand of the final 

rule to the Department of Energy 

(‘‘DOE’’) to determine whether 

establishment of the test procedure for 

the thermal efficiency two (‘‘TE2’’) 

metric is supported by the specific 

provisions applicable to CWAFs under 

the Energy Policy and Conservation Act 

(‘‘EPCA’’). More specifically, DOE 

agreed in this voluntary remand to only 

establish the TE2 test procedure if the 

Department makes a determination that 

the TE2 test procedure is consistent 

with the amended industry test 

procedure, or a determination, 

supported by clear and convincing 

evidence, that the amended industry 

test procedure fails to satisfy the 

statutory requirements. This document 

provides DOE’s tentative determination 

that the amended industry test 

procedure fails to satisfy EPCA’s 

statutory requirements and requests 

comment on this topic. 

DATES: DOE will accept comments, data, 

and information regarding this 

document no later than January 8, 2025. 

See section V, ‘‘Public Participation,’’ 

for details. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

www.regulations.gov under docket 

number EERE–2024–BT–DET–0012. 

Follow the instructions for submitting 

comments. Alternatively, interested 

persons may submit comments, 

identified by docket numberEERE– 

2024–BT–DET–0012, by any of the 

following methods: 

(1) Email: 

FurnacesDet2024DET0012@ee.doe.gov. 

Include the docket number EERE–2024– 

BT–DET–0012in the subject line of the 

message. 

(2) Postal Mail and Hand Delivery/ 

Courier: Appliance and Equipment 

Standards Program, U.S. Department of 

Energy, Building Technologies Office, 

Mailstop EE–5B, 1000 Independence 

Avenue SW, Washington, DC 20585– 

0121. Telephone: (202) 287–1445. If 

possible, please submit all items on a 

compact disc (‘‘CD’’), in which case it is 

not necessary to include printed copies. 

No telefacsimiles (‘‘faxes’’) will be 

accepted. For detailed instructions on 

submitting comments and additional 

information on this process, see section 

V of this document. 

Docket: The docket for this activity, 

which includes Federal Register 

notices, public meeting attendee lists 

and transcripts (if a public meeting is 

held), comments, and other supporting 

documents/materials, is available for 

review at www.regulations.gov. All 

documents in the docket are listed in 

the www.regulations.gov index. 

However, not all documents listed in 

the index may be publicly available, 

such as information that is exempt from 

public disclosure. 

The docket web page can be found at 

www.regulations.gov/docket/EERE2024-BT-DET-0012. The docket web 

page contains instructions on how to 

access all documents, including public 

comments, in the docket. See section V 

for information on how to submit 

comments through 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Julia Hegarty, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Office, EE–5B, 1000 

Independence Avenue SW, Washington, 

DC 20585–0121. Telephone: (240) 597– 

6737. Email: 

ApplianceStandardsQuestions@

ee.doe.gov. 

Mr. Pete Cochran, U.S. Department of 

Energy, Office of the General Counsel, 

GC–33, 1000 Independence Avenue SW, 

Washington, DC 20585–0121. 

Telephone: (240) 961–1189. Email: 

Peter.Cochran@hq.doe.gov. 

For further information on how to 

submit a comment or review other 

public comments and the docket, 

contact the Appliance and Equipment 

Standards Program staff at (202) 287– 

1445 or by email: 

ApplianceStandardsQuestions@

ee.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

A. Authority 

B. Energy Conservation Standards 

Rulemaking Process Under EPCA 

C. Background 

II. Discussion 

A. ASHRAE Trigger 

B. Appendix B Test Procedure for TE2 


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1All references to EPCA in this document refer 

to the statute as amended through the Energy Act 

of 2020, Public Law 116–260 (Dec. 27, 2020), which 

reflect the last statutory amendments that impact 

Parts A and A–1 of EPCA. 

C. Industry Test Procedure (Appendix A 

Test Procedure for TE) 

1. Jacket Loss 

III. Procedural Issues and Regulatory Review 

IV. Public Participation 

V. Approval of the Office of the Secretary 

I. Introduction 

A. Authority 

The Energy Policy and Conservation 

Act, Public Law 94–163, as amended 

(‘‘EPCA’’),1 authorizes DOE to regulate 

the energy efficiency of a number of 

consumer products and certain 

industrial equipment. (42 U.S.C. 6291– 

6317, as codified) Title III, Part C of 

EPCA, added by Public Law 95–619, 

title IV, sec. 441(a), established the 

Energy Conservation Program for 

Certain Industrial Equipment, which 

sets forth a variety of provisions 

designed to improve energy efficiency. 

This equipment includes CWAFs, the 

subject of this document. (42 U.S.C. 

6311(1)(J)) 

The energy conservation program 

under EPCA consists essentially of four 

parts: (1) testing, (2) labeling, (3) Federal 

energy conservation standards, and (4) 

certification and enforcement 

procedures. Relevant provisions of 

EPCA include definitions (42 U.S.C. 

6311), test procedures (42 U.S.C. 6314), 

labeling provisions (42 U.S.C. 6315), 

energy conservation standards (42 

U.S.C. 6313), and the authority to 

require information and reports from 

manufacturers (42 U.S.C. 6316; 42 

U.S.C. 6296). 

The Federal testing requirements 

consist of test procedures that 

manufacturers of covered equipment 

must use as the basis for: (1) certifying 

to DOE that their equipment complies 

with the applicable energy conservation 

standards adopted pursuant to EPCA (42 

U.S.C. 6316(b); 42 U.S.C. 6296), and (2) 

making other representations about the 

efficiency of that equipment (42 U.S.C. 

6314(d)). Similarly, DOE uses these test 

procedures to determine whether the 

equipment complies with relevant 

standards promulgated under EPCA. 

DOE’s test procedures for CWAFs are 

currently prescribed at subpart D of part 

431 of title 10 of the Code of Federal 

Regulations (‘‘CFR’’). 

Federal energy efficiency 

requirements for covered equipment 

established under EPCA generally 

supersede state laws and regulations 

concerning energy conservation testing, 

labeling, and standards. (42 U.S.C. 

6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 

6297) DOE may, however, grant waivers 

of Federal preemption for particular 

state laws or regulations, in accordance 

with the procedures and other 

provisions of EPCA. (42 U.S.C. 

6316(b)(2)(D)) 

Under 42 U.S.C. 6314, EPCA sets forth 

the criteria and procedures DOE must 

follow when prescribing or amending 

test procedures for covered equipment. 

EPCA requires that any test procedures 

prescribed or amended under this 

section must be reasonably designed to 

produce test results that reflect energy 

efficiency, energy use, or estimated 

annual operating cost of a given type of 

covered equipment during a 

representative average use cycle (as 

determined by DOE) and requires that 

test procedures not be unduly 

burdensome to conduct. (42 U.S.C. 

6314(a)(2)) 

EPCA generally requires that, at least 

once every seven years, DOE evaluate 

test procedures for each type of covered 

equipment, including CWAFs, to 

determine whether amended test 

procedures would more accurately or 

fully comply with the requirements for 

the test procedures to not be unduly 

burdensome to conduct and be 

reasonably designed to produce test 

results that reflect energy efficiency, 

energy use, and estimated operating 

costs during a representative average 

use cycle. (42 U.S.C. 6314(a)(1)–(3)) 

DOE refers to these provisions as the 

‘‘lookback’’ provisions and rulemakings 

conducted under these provisions as 

‘‘lookback’’ rulemakings. 

Specific to certain commercial 

equipment, including CWAFs, EPCA 

required that the initial test procedures 

for this equipment be those generally 

accepted industry testing procedures or 

rating procedures developed or 

recognized by AHRI or ASHRAE, as 

referenced in ASHRAE Standard 90.1, 

‘‘Energy Standard for Buildings Except 

Low-Rise Residential Buildings’’ 

(‘‘ASHRAE Standard 90.1’’), that were 

in effect on June 30, 1992. (42 U.S.C. 

6314(a)(4)(A)) Further, if such an 

industry test procedure is amended, 

DOE must update its test procedure to 

be consistent with the amended 

industry test procedure unless DOE 

determines, by rule published in the 

Federal Register and supported by clear 

and convincing evidence, that the 

amended test procedure would not meet 

the requirements in 42 U.S.C. 6314(a)(2) 

and (3), in which case DOE may 

establish an amended test procedure 

that does satisfy those statutory 

provisions. (42 U.S.C. 6314(a)(4)(B) and 

(C)) DOE refers to these provisions as 

the ‘‘ASHRAE trigger’’ provisions and 

rulemakings conducted under these 

provisions as ‘‘ASHRAE trigger’’ 

rulemakings. 

Whether pursuant to the lookback 

provision or the trigger provision, if 

DOE determines that a test procedure 

amendment is warranted, EPCA requires 

that the Department publish proposed 

test procedures in the Federal Register 

and afford interested persons an 

opportunity (of not less than 45 days 

duration) to present oral and written 

data, views, and arguments on the 

proposed test procedures. (42 U.S.C. 

6314(b)) 

B. Energy Conservation Standards 

Rulemaking Process Under EPCA 

The purpose of energy conservation 

standards issued under EPCA is to 

reduce energy use by improving the 

energy efficiency of covered products 

and equipment. (See 42 U.S.C. 6312(a)) 

The first step in establishing new or 

amended energy conservation standards 

for any covered product or equipment is 

to determine what energy use by a 

covered product or equipment will be 

within the scope of the energy 

conservation standard, i.e., what is the 

representative average use cycle for the 

covered product or equipment. For 

example, prior to the Energy 

Independence and Security Act of 2007 

(‘‘EISA 2007’’), the representative 

average use cycle for many covered 

products only included active mode 

energy use, i.e., energy used while the 

product was performing its main 

function. As such, the representative 

use cycle did not include any energy 

used while the product was in a standby 

or off mode. Thus, manufacturers had 

little incentive to reduce standby or off 

mode energy use as it had no effect on 

whether a covered product complied 

with the applicable energy conservation 

standards. But in EISA 2007, Congress 

required DOE to include standby and off 

mode energy use as part of the 

representative average use cycle for any 

energy conservation standard adopted 

after July 1, 2010. (42 U.S.C. 

6295(gg)(3)). 

Representative average use cycles for 

covered products and equipment can 

also change over time as DOE’s 

understanding of how the product or 

equipment is used in the field improves, 

consumer habits change, or technologies 

improve. For example, DOE recently 

issued an amended test procedure for 

air-cooled commercial package air 

conditioners and heat pumps that 

reflects how the representative average 

use cycle for this equipment has 

changed over time. 89 FR 43986 (May 

20, 2024). DOE adopted this new test 

procedure for air-cooled commercial air 

conditioners and heat pumps with the 


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support of a cross-section of 

stakeholders, including the heating and 

cooling industry, who recommended the 

details of the new test procedure to DOE 

as part of a negotiated consensus 

recommendation. Id. at 89 FR 43991. 

The consensus recommendation 

recognized that the introduction of 

innovative technologies in the market, 

such as the ability for compressors to 

run at part-load values in response to 

different operating conditions in the 

field, has contributed to changes in the 

representative average use cycle for aircooled commercial air conditioners and 

heat pumps. The consensus 

recommendation also recognized that 

air-cooled commercial air conditioners 

and heat pumps operate in additional 

heating and cooling modes not 

encompassed by the current 

representative average use cycle. As a 

result, the representative use cycle for 

air-cooled commercial air conditioners 

and heat pumps was updated to 

include, among other things, part-load 

operation at a variety of outdoor 

temperature points and additional 

modes of operation, e.g., integrated 

mechanical and economizer cooling, 

economizer-only cooling, cooling season 

ventilation, and unoccupied no-load 

hours. Id. at 89 FR 43997–43998. 

Having determined a representative 

average use cycle for a covered product 

or equipment, the next step in EPCA’s 

energy conservation standards 

rulemaking process is to prescribe a test 

procedure that is reasonably designed to 

produce test results that measure energy 

use of the covered product or equipment 

for that representative average use cycle 

and that is not unduly burdensome to 

conduct. (42 U.S.C. 6293(b)(3); 42 U.S.C. 

6314(a)(2)) For example, when Congress 

required DOE to include standby and off 

mode energy use in standards for 

covered products, it first directed DOE 

to amend test procedures for all covered 

products to include provisions for 

measuring standby and off mode energy 

use. (42 U.S.C. 6295(gg)(2)(A)) Congress 

then directed DOE to use these amended 

test procedures when prescribing new 

or amended standards that incorporate 

standby and off mode energy use. (42 

U.S.C. 6295(gg)(3)(A)) As the new 

standards would be based on a different 

representative use cycle, i.e., one that 

includes active mode, standby mode, 

and off mode, Congress clarified that the 

amended test procedures ‘‘shall not be 

used to determine compliance with 

product standards established prior to 

the adoption of the amended test 

procedures.’’ (42 U.S.C. 6295(gg)(2)(C)) 

It would have made little sense for 

Congress to require manufacturers to 

use test procedures that measure active, 

standby, and off mode energy when 

determining compliance with an energy 

conservation standard that is only based 

on active mode energy use. DOE takes 

the same approach when prescribing an 

amended test procedure for use in 

evaluating new or amended energy 

conservation standards that are based on 

an updated representative average use 

cycle. Use of the amended test 

procedure is only required upon the 

compliance date of the new or amended 

energy conservation standards. See sec. 

8(f) of appendix A to subpart C of 10 

CFR part 430. 

C. Background 

Under EPCA’s lookback provision, 

DOE initiated a test procedure 

rulemaking for CWAFs by publishing a 

request for information (‘‘RFI’’) in the 

Federal Register on May 5, 2020 (‘‘May 

2020 RFI’’). 85 FR 26626. The current 

energy conservation standards for 

CWAFs are based on a representative 

average use cycle that assumes CWAFs 

always operate at 100% capacity in the 

field and that the only energy losses are 

from flue exhaust gases. The May 2020 

RFI solicited public comments, data, 

and information on aspects of the 

existing DOE test procedure for CWAFs 

at 10 CFR part 431, subpart D, appendix 

A (‘‘appendix A’’), which measures 

Thermal Efficiency (‘‘TE’’) and is used 

for determining compliance with the 

current energy conservation standards 

for CWAFs, including whether there 

were any issues with the existing test 

procedure at that time and whether it 

was in need of updates or revisions. Id. 

DOE subsequently published a notice 

of proposed rulemaking (‘‘NOPR’’) for 

the CWAFs test procedure in the 

Federal Register on February 25, 2022, 

which proposed amendments to the 

existing test procedure for TE as well as 

a new test procedure based on DOE’s 

tentative determination that the 

representative average use cycle for 

CWAFs should include jacket losses and 

part-load operation. 87 FR 10726 

(‘‘February 2022 NOPR’’). DOE noted 

that CWAFs are typically installed 

outdoors and, as a result, jacket losses 

can be a significant source of energy 

loss. 87 FR 10726, 10735. DOE also 

noted that many CWAFs now have 

multiple heating stages and performance 

for these CWAFs can vary at different 

heating loads. id. As a result, DOE 

proposed that any new or amended 

energy conservation standards for 

CWAFs should be based on a 

representative average use cycle that 

includes jacket losses and part-load 

operation, i.e., the TE2 metric. DOE 

proposed a new test procedure in 10 

CFR part 431, subpart D, appendix B 

(‘‘appendix B’’), to measure energy 

efficiency under the TE2 metric. DOE 

tentatively determined that the 

appendix B test procedure met the 

statutory criteria in 42 U.S.C. 6314(a)(2) 

and (3). 87 FR 10726, 10737–10738. 

The February 2022 NOPR had a 60- 

day comment period and DOE held a 

webinar public meeting on March 29, 

2022. As directed by the remand order 

from the Fourth Circuit, this document 

considers whether the amended 

industry test procedure fails to satisfy 

the applicable statutory requirements. In 

this document, DOE focuses on two 

discrete issues related to whether the 

amended industry test procedure is 

reasonably designed to product test 

results that reflect energy use during a 

representative average use cyle: the lack 

of jacket loss and part-load testing 

provisions in the amended industry test 

procedure. DOE believes the comment 

period provided for in the DATES section 

is more than sufficient for interested 

parties to provide comments on these 

two issues and notes that DOE already 

satisfied the comment period required 

in 42 U.S.C. 6314(b) for prescribing the 

appendix A and appendix B test 

procedures with the 60-day comment 

period provided for in the February 

2022 NOPR. 

Following publication of the February 

2022 NOPR, the latest update to 

ASHRAE Standard 90.1 was released in 

January 2023 (‘‘ASHRAE Standard 90.1– 

2022’’). ASHRAE Standard 90.1–2022 

references CSA/ANSI Z21.47–2021, 

Gas-fired central furnaces (‘‘ANSI 

Z21.47–2021’’), as the test method for 

gas-fired CWAFs and Underwriters 

Laboratories (‘‘UL’’) standard UL 727– 

2018, ‘‘Standard for Safety Oil-Fired 

Central Furnaces’’ (‘‘UL 727–2018’’), as 

the test method for oil-fired CWAFs. 

On June 2, 2023, DOE published a test 

procedure final rule for CWAFs. 88 FR 

36217 (‘‘June 2023 Final Rule’’). In the 

June 2023 Final Rule, DOE amended the 

current test procedure for TE in 

appendix A and incorporated by 

reference the latest industry test 

procedures referenced in ASHRAE 

Standard 90.1–2022. The amendments 

to the industry test procedure were 

relatively minor and not based on any 

updates to the representative average 

use cycle for CWAFs. Rather, they were 

clarifications to the existing test 

procedure intended to improve clarity 

and help with the execution of the 

current test procedure. DOE also 

finalized the proposed appendix B test 

procedure that is based on an updated 

representative average use cycle that 

includes jacket losses and part-load 

operation. Similar to other rulemakings 


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2 ‘‘[C]lear and convincing evidence requires a 

factfinder . . . to have an ‘abiding conviction’ that 

her findings . . . are ‘highly probable’ to be true.’’ 

Am. Pub. Gas Ass’n v. United States Dep’t of 

Energy, 22 F.4th 1018, 1025 (D.C. Cir. 2022) 

(quoting Colorado v. New Mexico, 467 U.S. 310, 316 

(1984)). 

where DOE has determined that the 

representative average use cycle should 

be updated, e.g., air-cooled commercial 

air conditioners and heat pumps, the 

June 2023 Final Rule states that use of 

the appendix B test procedure would 

not be required until such time as 

compliance is required with amended 

energy conservation standards based on 

the new metric, should DOE adopt such 

standards. 

Following publication of the June 

2023 Final Rule, the Air-Conditioning, 

Heating, and Refrigeration Institute 

(‘‘AHRI’’) filed a petition for review of 

the final rule in the United States Court 

of Appeals for the Fourth Circuit on 

August 1, 2023. In its opening brief, 

AHRI argued that DOE failed to provide 

notice and an opportunity for comment 

after being triggered by the ASHRAE 

Standard 90.1–2022 publication prior to 

publishing the June 2023 Final Rule; 

DOE did not undertake the required 

analysis under 42 U.S.C. 6314(a)(4)(B); 

and that if DOE had conducted the 

correct analysis under 42 U.S.C. 

6314(a)(4)(B), it would necessarily have 

concluded that it lacked clear and 

convincing evidence that the industry 

test procedure did not meet the 

statutory requirements. See AirConditioning, Heating, and 

Refrigeration Institute v. United States 

Department of Energy, No. 23–1793 (4th 

Cir. Oct. 23, 2023), 15–1. 

On February 6, 2024, the Fourth 

Circuit granted the Department’s motion 

for voluntary remand. In its order, the 

Court granted DOE’s motion for 

voluntary remand to clarify that, in this 

particular circumstance, where 

ASHRAE published an amended 

industry test procedure during the 

pendency of a rulemaking under the 7- 

year lookback provision, the Department 

will solicit public comment prior to 

making: (1) a final determination that 

the test procedure in appendix B for the 

TE2 metric is consistent with the 

amended industry test procedure; or (2) 

a final determination, supported by 

clear and convincing evidence, that the 

industry test procedure fails to satisfy 

the statutory requirements. See AirConditioning, Heating, and 

Refrigeration Institute v. United States 

Department of Energy, No. 23–1793 (4th 

Cir. Feb. 6, 2024), 22–1. The remand 

order did not vacate the June 2023 Final 

Rule, nor did it require DOE to revisit 

its determination that the appendix B 

test procedure meets the statutory 

requirements at 42 U.S.C. 6314(a)(2) and 

(3). 

DOE is publishing this document in 

accordance with the order from the 

Fourth Circuit. Specifically, DOE is 

presenting its tentative determination, 

supported by clear and convincing 

evidence, that the industry test 

procedure is not reasonably designed to 

produce test results that reflect energy 

efficiency during a representative 

average use cycle that, as determined by 

DOE, includes jacket losses and partload operation. DOE requests public 

comment on this tentative 

determination. 

II. Discussion 

A. ASHRAE Trigger 

As discussed, EPCA requires that if 

the industry test procedure for CWAFs 

is amended, DOE must update its test 

procedure to be consistent with the 

amended industry test procedure unless 

DOE determines, by rule published in 

the Federal Register and supported by 

clear and convincing evidence, that the 

amended test procedure would not meet 

the requirements in 42 U.S.C. 6314(a)(2) 

and (3), in which case DOE may 

establish an amended test procedure 

that does satisfy those statutory 

provisions. (42 U.S.C. 6314(a)(4)(B) and 

(C)) The publication of ASHRAE 

Standard 90.1–2022 represented an 

ASHRAE trigger for CWAFs. The test 

procedure established in appendix A for 

the TE metric references the industry 

test standards from the most recent 

version of ASHRAE Standard 90.1 

(2022), which satisfies DOE’s 

obligations under the ASHRAE trigger 

provision with respect to the appendix 

A test procedure for the TE metric. See 

42 U.S.C. 6314(a)(4)(B). In this 

document, DOE is applying the 

ASHRAE trigger provision to the 

appendix B test procedure for the TE2 

metric. In the following section, DOE 

discusses its tentative determination, 

supported by clear and convincing 

evidence,2 that the industry test 

procedure is not reasonably designed to 

produce test results that reflect energy 

efficiency during a representative 

average use cycle that, as determined by 

DOE, includes jacket losses and partload operation. 

B. Appendix B Test Procedure for TE2 

In the June 2023 Final Rule, DOE 

considered that the existing test 

procedure and standards were based on 

a representative average use cycle that 

did not include consideration of jacket 

losses or part-load performance. 88 FR 

36217, 36223–36227. CWAFs lose 

energy to the environment through 

jacket losses and are capable of and do 

operate differently under part-load 

conditions. As a result, DOE determined 

in the June 2023 Final Rule that jacket 

losses and part-load performance can 

contribute significantly to overall 

equipment energy use and should be 

part of the representative average use 

cycle for CWAFs. Id. As such, DOE 

established a new test procedure 

(appendix B) based on a representative 

average use cycle that includes jacket 

losses and part-load operation. The June 

2023 Final Rule includes an extensive 

discussion supporting DOE’s 

determination that the appendix B test 

procedure is reasonably designed to 

produce test results that reflect energy 

efficiency during a representative 

average use cycle that, as determined by 

DOE, includes jacket losses and partload operation, and is not unduly 

burdensome to conduct. Id. In that 

discussion, DOE acknowledged that 

accounting for jacket losses and partload operation would increase test 

burden. Id. at 88 FR 36224. But after a 

thorough analysis of the increased test 

costs, DOE concluded that the 

additional costs are not unduly 

burdensome and the inclusion of jacket 

losses and part-load operation provides 

for a more representative average use 

cycle. Id. at 88 FR 36230. 

C. Industry Test Procedure (Appendix A 

Test Procedure for TE) 

As discussed previously, the industry 

test procedure, which is referenced in 

appendix A and is used for determining 

compliance with the current energy 

conservation standards, is based on a 

representative average use cycle that 

assumes CWAFs only operate at 100 

percent capacity and that energy is only 

lost through flue exhaust gases. As 

discussed previously, these assumptions 

are an over-simplification of how 

CWAFs operate in the field. In this 

document, DOE evaluates the industry 

test procedure in the context of the 

ASHRAE trigger provisions and presents 

DOE’s tentative determination, 

supported by clear and convincing 

evidence, that the industry test 

procedure does not satisfy all of the 

criteria in 42 U.S.C. 6314(a)(2) and (3). 

Specifically, DOE has tentatively 

determined that the industry test 

procedure is not reasonably designed to 

produce test results which reflect energy 

efficiency during a representative 

average use cycle that, as determined by 

DOE, includes jacket losses and partload operation. As such, DOE’s adoption 

of the appendix B test procedure, which 

DOE determined met the applicable 

statutory criteria in the June 2023 Final 

Rule, is consistent with the ASHRAE 


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Federal Register / Vol. 89, No. 247 / Thursday, December 26, 2024 / Rules and Regulations 104863 

3On January 15, 2016, DOE published a direct 

final rule amending energy conservation standards 

for various types of commercial air conditioning 

equipment and CWAFs. 81 FR 2420. As discussed 

in appendix 8D of the Direct Final Rule Technical 

Support Document, DOE found that 95% of gasfired CWAFs are installed outdoors and packaged 

with a CUAC. 

4 In 2019, DOE conducted testing of consumer 

furnaces, which included 2-stage, non-condensing 

furnaces. The consumer furnace test method 

requires testing at both the maximum and minimum 

input rates for 2-stage models, so DOE was able to 

compare the steady-state efficiency at each input 

rate to determine the difference in performance 

when operating at a reduced input rate. 

trigger provisions in 42 U.S.C. 

6314(a)(4)(B) and (C). 

As explained in more detail in the 

following sections, DOE estimates that 

the test procedure for TE2 could 

produce a result that is between 3.5 

percent lower (in a model with high 

jacket loss and poor part-load 

performance) to 1 percent higher (in a 

model with negligible jacket loss and 

good part-load performance) than the 

industry test procedure because the TE2 

metric includes jacket loss and part-load 

performance. This variation in 

efficiency is significant. For example, 

when DOE last amended the standards 

for gas-fired CWAFs, the minimum 

required efficiency went from 80 to 81 

percent, which DOE determined would 

result in significant additional 

conservation of energy. 81 FR 2420, 

2430. Further, the average life-cycle cost 

savings to a consumer from that 1 

percent increase in efficiency was $284. 

Id. at 81 FR 2423. Those already 

significant impacts are only magnified 

when larger differences in measured 

efficiency are considered. Therefore, 

DOE has tentatively determined, 

supported by clear and convincing 

evidence, that the industry test 

procedures referenced in ASHRAE 

Standard 90.1–2022 are not reasonably 

designed to produce test results which 

reflect energy efficiency during a 

representative average use cycle that, as 

determined by DOE, includes jacket 

losses and part-load operation. The 

following sections discuss the 

significance of jacket loss and part-load 

performance to overall energy use and 

efficiency during a representative 

average use cycle in more detail. 

1. Jacket Loss 

As discussed, the current energy 

efficiency metric for CWAFs is TE. 10 

CFR 431.77. TE for a CWAF is defined 

in 10 CFR 431.72 as 100 percent minus 

the percent flue loss and is determined 

using the test procedure in appendix A. 

Appendix A and the industry test 

procedure produce results that are 

essentially a measure of combustion 

efficiency. However, the energy 

efficiency of CWAFs in the field is 

influenced by factors in addition to 

combustion efficiency (e.g., jacket loss). 

Jacket losses are losses from the 

commercial warm air furnace to the 

ambient environment that occur because 

heat is lost through the jacket, i.e., the 

cabinet surrounding the heating section, 

of the CWAF during operation. Jacket 

loss contributes to the overall energy 

use of a CWAF and is, therefore, one of 

the parameters that determines a 

CWAF’s overall efficiency. In fact, table 

6.8.1–5 of ASHRAE Standard 90.1–2022 

includes performance requirements for 

CWAFs and specifies that units must 

have jacket losses not exceeding 0.75 

percent of the input rating, indicating 

that jacket loss is an important aspect of 

CWAF operation. Additionally, the test 

methods for similar products, such as 

consumer furnaces, account for jacket 

loss further demonstrating that jacket 

losses are an important factor in 

determining a furnace’s efficiency. Heat 

loss through the cabinet (i.e., jacket loss) 

is generally proportional to the 

thickness of the insulation and/or 

insulative material used in the cabinet. 

CWAFs with the same TE, as 

determined under the current appendix 

A test procedure, could have different 

performance in the field if, for example, 

one unit has different insulation than 

the other (resulting in different levels of 

jacket loss). DOE also notes that the vast 

majority of CWAFs are installed within 

commercial unitary air conditioners 

(‘‘CUACs’’) located on rooftops,3 and 

that these outdoor installations will 

result in greater jacket loss than CWAFs 

installed indoors because of the colder 

ambient air. As such, DOE has 

tentatively determined that energy use 

of a CWAF will vary depending on 

installation location because of different 

levels of jacket loss. Differences in 

energy use based on differences in 

jacket loss are not captured by the 

industry test procedure. Incorporating 

jacket loss into the representative 

average use cycle and corresponding 

new metric, TE2, allows consumers to 

get a more accurate picture of CWAF 

energy use in the field by capturing 

differences in CWAF performance due 

to different levels of jacket loss (which 

as previously described could be caused 

by different levels of insulation, for 

example). 

While manufacturers currently 

complying with the ASHRAE Standard 

90.1 requirements would have to limit 

jacket losses so as not to exceed 0.75 

percent of the input rating, DOE notes 

that because the jacket loss percentage 

would be multiplied by the jacket loss 

factor for weatherized CWAFs designed 

to be installed outdoors (which 

represent the majority of CWAFs on the 

market and which have a jacket loss 

factor of 3.3), a jacket loss of 0.75 

percent could result in a difference of 

nearly 2.5 percent as compared to a unit 

with negligible jacket losses. As 

discussed previously, even a 1 percent 

difference in efficiency is significant 

both in terms of the national benefits of 

energy conservation standards and 

benefits to individual consumers. 

2. Part-Load Performance 

DOE has reviewed the current CWAF 

market and found that the vast majority 

of CWAFs have two or more stages of 

heating. DOE notes that CWAFs with 

two or more stages can operate at 

reduced firing rates to meet the building 

load. Part-load performance refers to the 

efficiency of the CWAF when operating 

at a reduced firing rate (as opposed to 

full-load performance which reflects the 

efficiency when operating at the 

maximum firing rate). 

Under the appendix A test procedure, 

TE reflects the efficiency of the CWAF 

when firing at the maximum input rate 

(i.e., at full load). When a CWAF burner 

operates at a reduced input rate (i.e., 

part load), the ratio of heat exchanger 

surface area to burner input rate is 

increased (in comparison to operation at 

the maximum input rate), which could 

increase the efficiency of the CWAF 

compared to operating at full load, if 

other aspects of operation are 

consistent. However, depending on the 

air-fuel ratio or other factors impacting 

combustion efficiency, the combustion 

efficiency could instead decrease when 

operating at a reduced firing rate, 

especially if the air-fuel ratio is not 

maintained at an optimal level. The 

change in performance, including 

whether efficiency is improved or 

reduced at part-load, would vary from 

model to model depending on the 

design and control strategies employed 

when operating at input rates below the 

maximum input rate. Therefore, CWAF 

part-load performance has the potential 

to be substantively different from fullload performance and including partload performance in the measurement of 

CWAF efficiency would allow the 

efficiency metric to account for this 

potential. 

In previous testing of similar 

products, DOE has observed that the 

efficiency when operating at the 

reduced input rate can be as much as 2 

percent higher or lower than the 

efficiency when operating at the 

maximum input rate.4 In a CWAF that 

exhibits similar performance 

differences, the resulting difference in 


ddrumheller on DSK120RN23PROD with RULES1
104864 Federal Register / Vol. 89, No. 247 / Thursday, December 26, 2024 / Rules and Regulations 

TE2 would be 1 percent higher or lower 

than the TE of that unit (depending on 

whether part load operation is more or 

less efficient than at full load) when 

accounting for the weighting of 50 

percent of time operating at the reduced 

input rate. As discussed previously, 

such a difference in efficiency is 

significant both in terms of the national 

benefits of energy conservation 

standards and benefits to individual 

consumers. 

III. Conclusion 

The potential difference in CWAF 

efficiency measured under the industry 

test procedure and the appendix B test 

procedure is an excellent example of 

why Congress updated representative 

use cycles for covered products to 

include standby and off mode energy 

use in new or amended energy 

conservation standards and why 

stakeholders, including manufacturers, 

asked DOE to update the representative 

average use cycle for air-cooled 

commercial air conditioners and heat 

pumps—consumers and manufacturers 

are both better off when DOE test 

procedures and energy conservation 

standards capture more energy use in 

the field. For example, as discussed 

previously, a CWAF with a TE of 81 

percent as measured by the industry test 

procedure could, depending on jacket 

losses and part-load operation, have an 

actual range of efficiencies from 77.5 to 

82 percent using the appendix B test 

procedure for TE2. That is a significant 

difference in efficiency and corresponds 

to a significant difference in fuel costs 

over the lifetime of the CWAF, which is 

important information for consumers. 

The industry test procedure also does 

not allow manufacturers to fully 

differentiate their products in the 

market. For example, under the industry 

test procedure, a manufacturer with a 

line of CWAF models with wellinsulated jackets has no way to 

advertise their improved efficiency in 

the market. Under the industry test 

procedure, these models will have the 

same advertised efficiency as similar 

models that lack insulation and have 

higher jacket losses. 

Having determined that any future, 

amended standards for CWAFs should 

be based on a representative average use 

cycle that includes jacket losses and 

part-load operation, DOE adopted the 

appendix B test procedure in the June 

2023 Final Rule. The appendix B test 

procedure contains specific provisions 

for measuring jacket losses and energy 

use during part-load operation and will 

be used by DOE to evaluate potential 

amended standards for CWAFs. Use of 

the appendix B test procedure by 

manufacturers would not be required 

until such time as compliance is 

required with amended energy 

conservation standards based on the 

new representative average use cycle, 

should DOE adopt such standards. 

In this document, DOE evaluated 

whether the industry test procedure is 

reasonably designed to produce test 

results which reflect energy use during 

a representative average use cycle that, 

as determined by DOE, includes jacket 

losses and part-load operation. Unlike 

the appendix B test procedure, the 

industry test procedure does not have 

provisions for calculating jacket losses 

and changes in energy efficiency due to 

part-load operation. As discussed 

previously, this results in the industry 

test procedure producing test results 

that do not account for significant 

variations in energy use across different 

CWAF models. As a result, DOE has 

tentatively determined, supported by 

clear and convincing evidence, that the 

industry test procedure is not 

reasonably designed to produce test 

results which reflect energy efficiency 

during a representative average use 

cycle. DOE requests comment on this 

tentative determination. 

III. Procedural Issues and Regulatory 

Review 

DOE has concluded that the 

determinations made pursuant to the 

various procedural requirements 

applicable to the June 2023 Final Rule 

remain unchanged for this notification 

of tentative determination. These 

determinations are set forth in the June 

2023 Final Rule. 88 FR 36217, 36230– 

36233. DOE is publishing this document 

to present its tentative determination, 

supported by clear and convincing 

evidence, that the industry test 

procedure would not provide test 

results that are representative of an 

average use cycle for the TE2 metric, 

and to seek comment from interested 

parties. 

IV. Public Participation 

DOE will accept comments, data, and 

information regarding this document no 

later than the date provided in the DATES

section at the beginning of this 

document. Interested parties may 

submit comments, data, and other 

information using any of the methods 

described in the ADDRESSES section at 

the beginning of this document. 

Submitting comments via 

www.regulations.gov. The 

www.regulations.gov web page will 

require you to provide your name and 

contact information. Your contact 

information will be viewable to DOE 

Building Technologies staff only. Your 

contact information will not be publicly 

viewable except for your first and last 

names, organization name (if any), and 

submitter representative name (if any). 

If your comment is not processed 

properly because of technical 

difficulties, DOE will use this 

information to contact you. If DOE 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, DOE may not be 

able to consider your comment. 

However, your contact information 

will be publicly viewable if you include 

it in the comment itself or in any 

documents attached to your comment. 

Any information that you do not want 

to be publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Otherwise, persons viewing comments 

will see only first and last names, 

organization names, correspondence 

containing comments, and any 

documents submitted with the 

comments. 

Do not submit to www.regulations.gov 

information for which disclosure is 

restricted by statute, such as trade 

secrets and commercial or financial 

information (hereinafter referred to as 

Confidential Business Information 

(‘‘CBI’’)). Comments submitted through 

www.regulations.gov cannot be claimed 

as CBI. Comments received through the 

website will waive any CBI claims for 

the information submitted. For 

information on submitting CBI, see the 

Confidential Business Information 

section. 

DOE processes submissions made 

through www.regulations.gov before 

posting. Normally, comments will be 

posted within a few days of being 

submitted. However, if large volumes of 

comments are being processed 

simultaneously, your comment may not 

be viewable for up to several weeks. 

Please keep the comment tracking 

number that www.regulations.gov 

provides after you have successfully 

uploaded your comment. 

Submitting comments via email, hand 

delivery/courier, or postal mail. 

Comments and documents submitted 

via email, hand delivery/courier, or 

postal mail also will be posted to 

www.regulations.gov. If you do not want 

your personal contact information to be 

publicly viewable, do not include it in 

your comment or any accompanying 

documents. Instead, provide your 

contact information in a cover letter. 

Include your first and last names, email 

address, telephone number, and 

optional mailing address. The cover 

letter will not be publicly viewable as 

long as it does not include any 

comments. 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 89, No. 247 / Thursday, December 26, 2024 / Rules and Regulations 104865 

1 89 FR 60329 (July 25, 2024). 

2 87 FR 6078 (Feb. 3, 2022). 

Include contact information each time 

you submit comments, data, documents, 

and other information to DOE. If you 

submit via postal mail or hand delivery/ 

courier, please provide all items on a 

CD, if feasible, in which case it is not 

necessary to submit printed copies. No 

telefacsimiles (‘‘faxes’’) will be 

accepted. 

Comments, data, and other 

information submitted to DOE 

electronically should be provided in 

PDF (preferred), Microsoft Word or 

Excel, WordPerfect, or text (ASCII) file 

format. Provide documents that are not 

secured, written in English, and that are 

free of any defects or viruses. 

Documents should not contain special 

characters or any form of encryption 

and, if possible, they should carry the 

electronic signature of the author. 

Campaign form letters. Please submit 

campaign form letters by the originating 

organization in batches of between 50 to 

500 form letters per PDF or as one form 

letter with a list of supporters’ names 

compiled into one or more PDFs. This 

reduces comment processing and 

posting time. 

Confidential Business Information. 

Pursuant to 10 CFR 1004.11, any person 

submitting information that he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit via email two well-marked 

copies: one copy of the document 

marked ‘‘confidential’’ including all the 

information believed to be confidential, 

and one copy of the document marked 

‘‘non-confidential’’ with the information 

believed to be confidential deleted. DOE 

will make its own determination about 

the confidential status of the 

information and treat it according to its 

determination. 

It is DOE’s policy that all comments 

may be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this notification of 

tentative determination and request for 

comment. 

Signing Authority 

This document of the Department of 

Energy was signed on December 13, 

2024, by Jeffrey Marootian, Principal 

Deputy Assistant Secretary for Energy 

Efficiency and Renewable Energy, 

pursuant to delegated authority from the 

Secretary of Energy. That document 

with the original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on December 

16, 2024. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

[FR Doc. 2024–30274 Filed 12–23–24; 8:45 am] 

BILLING CODE 6450–01–P 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Parts 701 and 741 

RIN 3133–AF42 

Succession Planning 

AGENCY: National Credit Union 

Administration (NCUA). 

ACTION: Final rule. 

SUMMARY: The NCUA Board (Board) is 

issuing this final rule to further 

strengthen succession planning efforts 

for all consumer federally insured credit 

unions (FICUs). This final rule requires 

that a FICU board of directors establish 

a written succession plan that addresses 

specified positions and contains certain 

information. In addition, the board of 

directors is required to regularly review 

the succession plan. The final rule also 

requires that newly appointed members 

of the board of directors have a working 

familiarity with the succession plan no 

later than six months after appointment. 

The final rule follows publication of a 

July 25, 2024, proposed rule and takes 

into consideration the public comments 

received on the proposed rule. In 

response to comments, the Board has 

amended the proposal to provide that a 

credit union board must review its 

succession plan no less than every 24 

months, as opposed to the annual 

review that would have been required 

under the proposed rule. The Board has 

also revised the proposed rule by 

removing loan officers, credit committee 

members, and supervisory committee 

members from the list of FICU officials 

that must be covered by the succession 

plans. In addition, non-substantive 

changes have been made to the wording 

used in the list of covered officials for 

purposes of clarity. The final rule also 

streamlines the required contents of the 

succession plans and no longer requires 

that deviations from approved 

succession plans be documented in the 

FICU board’s meeting minutes. Further, 

to help ensure that FICUs have the 

necessary time to develop their 

succession plans, the Board is delaying 

the effective date of the final rule until 

January 1, 2026. 

DATES: This final rule is effective on 

January 1, 2026. 

FOR FURTHER INFORMATION CONTACT: 

Office of Examination and Insurance: 

John Berry, Policy Officer, at (703) 664– 

3909 or at 1775 Duke Street, Alexandria, 

VA 22314. Office of General Counsel: 

Ariel Pereira, Senior Attorney, Office of 

General Counsel, at (703) 548–2778 or at 

the above address. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Discussion of Public Comments 

A. The Comments, Generally 

B. Comments Regarding Alternatives to 

Rulemaking 

C. Comments Regarding Data and the 

Justification for Rulemaking 

D. Comments Regarding Regulatory Burden 

E. Comments Raising General Objections to 

Rule 

F. Comments Regarding the Inclusion of 

FISCUs 

G. Comments Raising Potential Privacy and 

Discrimination Concerns 

H. Comments Regarding Specific Rule 

Provisions 

I. Other Comments 

III. Regulatory Procedures 

A. Regulatory Flexibility Act 

B. Small Business Regulatory Enforcement 

Fairness Act/Congressional Review Act 

C. Paperwork Reduction Act 

D. Executive Order 13132 on Federalism 

E. Assessment of Federal Regulations and 

Policies on Families 

I. Background 

At its July 18, 2024, meeting, the 

Board approved a proposed rule to 

address succession planning at FICUs. 

The proposed rule was published in the 

Federal Register on July 25, 2024, and 

provided for a 60-day public comment 

period.1 The proposal followed 

publication of the Board’s earlier 2022 

proposed rule on the same topic.2 The 

July 25, 2024, proposed rule was based 

on that earlier proposed rule but 

included several changes that the Board 

believed would further strengthen 

succession planning efforts for both 

consumer federal credit unions (FCUs) 

and consumer federally insured, stateVerDate Sep<11>2014 16:29 Dec 23, 2024 Jkt 265001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\26DER1.SGM 26DER1

ddrumheller on DSK120RN23PROD with RULES1