5560 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

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. 

4.3.4. Of the discharge pressures 

recorded under stabilized conditions in 

sections 4.3.1 through 4.3.3 of this 

appendix, identify the largest. This is 

the maximum full-flow operating 

pressure. Determine the full-load 

operating pressure as a self-declared 

value greater than or equal to the lesser 

of (A) 90 percent of the maximum fullflow operating pressure, or (B) 10 psig 

less than the maximum full-flow 

operating pressure. 

4.3.5 The full-load actual volume 

flow rate is the actual volume flow rate 

measured at the full-load operating 

pressure. If the self-declared full-load 

operating pressure falls on a previously 

tested value of discharge pressure, then 

use the previously measured actual 

volume flow rate as the full-load actual 

volume flow rate. If the self-declared 

full-load operating pressure does not fall 

on a previously tested value of 

discharge pressure, then adjust the 

backpressure of the system to the selfdeclared full-load operating pressure 

and allow the unit to remain at this 

setting for a minimum of 2 minutes. The 

measured actual volume flow rate at this 

setting is the full-load actual volume 

flow rate. 

[FR Doc. 2025–01002 Filed 1–16–25; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 431 

[EERE–2024–BT–DET–0012] 

RIN 1904–AE57 

Energy Conservation Program: 

Commercial Warm Air Furnaces; Final 

Determination 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final determination. 

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’’). On August 1, 

2023, 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. 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 not 

enforce the TE2 test procedure unless 

and until the Department determines 

that the TE2 test procedure is consistent 

with the amended industry test 

procedure, or determines, supported by 

clear and convincing evidence, that the 

amended industry test procedure fails to 

satisfy the statutory requirements. This 

document provides DOE’s 

determination that the amended 

industry test procedure fails to satisfy 

EPCA’s statutory requirements. 

DATES: The effective date of July 3, 2023, 

for the TE2 test procedure is confirmed. 

ADDRESSES: The docket for this activity, 

which includes Federal Register 

notices, 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. 

For further information on how to 

review the docket, contact the 

Appliance and Equipment Standards 

Program staff at (202) 287–1445 or by 

email: ApplianceStandardsQuestions@

ee.doe.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: (202) 586–4798. Email: 

Peter.Cochran@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

A. Authority 

B. Energy Conservation Standards 

Rulemaking Process Under EPCA 

C. Background 

II. Discussion 

A. Appendix B Test Procedure for TE2 

B. Comment Period Length 

C. Application of the ASHRAE Trigger 

Provision in 42 U.S.C. 6314(a)(4)(B) 

III. Conclusion 

IV. Procedural Issues and Regulatory Review 

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. 


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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 ASHRAE 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. Of particular importance here 

is the introduction of variable-speed 

compressors in the heating, ventilation, 

and air conditioning (HVAC) market. 

Variable-speed technology allows 

compressors used in HVAC equipment 

to run at part-load values in response to 

different operating conditions in the 

field. For example, if a room 

temperature is only 2 or 3 degrees 

warmer than the set temperature, an 

HVAC unit with variable-speed 

technology could run at partial capacity, 

e.g., 40% capacity, to cool the room to 

the setpoint. This saves energy as the 

HVAC unit uses less energy running at 

a lower speed. And variable-speed 

HVAC units still maintain the capability 

of operating at 100% capacity when 

needed, e.g., cooling down a home after 

a homeowner returns from vacation. As 

HVAC units with variable-speed 

technology have become more prevalent 

in the market, the representative average 

use cycle for this equipment has 

changed. HVAC units with variablespeed technology run for longer periods 

of time at slower speeds that singlespeed HVAC units. As a result, DOE 

amends the test procedures for specific 

HVAC equipment to ensure the 

representative average use cycle reflects 

manufacturer innovation and how 

models with this technology will 

operate in the field. For example, DOE 

recently issued an amended test 

procedure for air-cooled commercial 

package air conditioners and heat 

pumps that, among other things, has 

provisions for measuring part-load 

energy use because of the presence of 

variable-speed technology in the market. 

89 FR 43986 (May 20, 2024). DOE 

adopted this new test procedure for aircooled commercial air conditioners and 

heat pumps with the support of a crosssection 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. In fact, every type of HVAC 

consumer product or covered 

equipment regulated by DOE that has an 

energy conservation standard that 

accounts for part-load operation, e.g., 

residential central air conditioners and 

heat pumps and variable refrigerant 

flow air conditioners and heat pumps 

has an associated test procedure that has 

provisions for measuring energy use 

during part-load operation. 

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 


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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 

section 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 percent 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, and proposed a new metric, 

TE2, that captured those aspects of 

CWAF energy use. 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. 

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 

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. 

On August 1, 2023, 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. 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; 

that 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 that provision, it 

would necessarily have concluded that 

it lacked clear and convincing evidence 

that the industry test procedure did not 

meet the statutory requirements. See 

Air-Conditioning, 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 (hereafter 

‘‘Remand Order’’). The Remand Order 

did not vacate the June 2023 Final Rule; 

the challenged failure to solicit public 

comment (and other related claims 

brought in the petition for review) 

applied only to the determination that 

the industry test procedure did not meet 

the applicable statutory requirements 

and not DOE’s determination that the 

appendix B test procedure satisfied the 

applicable statutory criteria. But, per the 

Remand Order, DOE will not enforce the 


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Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 5563 

2The parenthetical reference provides a reference 

for information located in the docket. (Docket No. 

EERE–2024–BT–DET–0012–0001, which is 

maintained at www.regulations.gov.) The references 

are arranged as follows: (commenter name, 

comment docket ID number, page of that 

document). 

3 ‘‘[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)). 

appendix B test procedure until the 

Department determines that the 

appendix B test procedure is consistent 

with the amended industry test 

procedure or DOE determines, 

supported by clear and convincing 

evidence, that the amended industry 

test procedure fails to satisfy the 

statutory requirements in 42 U.S.C. 

6314(a)(2) and (3). See Remand Order at 

2. 

In accordance with the Remand Order 

from the Fourth Circuit, on December 

26, 2024, DOE published a notification 

of tentative determination and request 

for comment (‘‘December 2024 NOTD’’), 

which tentatively determined, 

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. 89 FR 104859. The 

December 2024 NOTD sought comment 

on DOE’s proposed determination that 

the amended industry test procedure, 

which does not have provisions for 

measuring energy loss to the ambient 

environment (jacket losses) and energy 

use during part-load operation, 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 part-load 

operation. 

DOE received comments in response 

to the December 2024 NOTD from the 

interested parties listed in table I.1. 

TABLE I.1—LIST OF COMMENTERS WITH WRITTEN SUBMISSIONS IN RESPONSE TO THE DECEMBER 2024 NOTD 

Commenter(s) Abbreviation Comment No. 

in the docket Commenter type 

Michael Ravnitzky ................................................................................... Ravnitzky ................... 2 Individual. 

Air-Conditioning, Heating, and Refrigeration Institute ............................. AHRI .......................... 6 Trade Association. 

Appliance Standards Awareness Project and Northwest Energy Efficiency Alliance (Joint Commenters).ASAP and NEEA ....... 7 Efficiency Organization. 

Trane Technologies ................................................................................. Trane ......................... 8 Manufacturer. 

Johnson Controls .................................................................................... JCI ............................. 9 Manufacturer. 

Daikin Applied Americas Inc ................................................................... Daikin ........................ 10 Manufacturer. 

A parenthetical reference at the end of 

a comment quotation or paraphrase 

provides the location of the item in the 

public record.2

II. Discussion 

As discussed in the December 2024 

NOTD, 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. 

However, due to the timing of the 

ASHRAE trigger, which occurred after 

DOE had published the February 2022 

NOPR, but prior to the June 2023 Final 

Rule, DOE had not sought comment in 

the February 2022 NOPR on whether the 

amended industry test procedure met 

the applicable statutory requirements 

for measuring energy use for the TE2 

metric, which is based on a 

representative average use cycle that 

includes jacket losses and part-load 

operation in the field. DOE also did not 

initiate a separate process to determine 

whether the amended industry test 

procedure satisfied the applicable 

statutory criteria. DOE did, on the other 

hand, follow all of the procedural 

requirements in 42 U.S.C. 6314(b) for 

prescribing the appendix B test 

procedure. DOE published the proposed 

appendix B test procedure in the 

Federal Register, provided a comment 

period of not less than 45 days (i.e., 60 

days), and held a public webinar 

meeting on March 29, 2022. See 42 

U.S.C. 6314(b)(1)–(2). As a result, in 

accordance with the Remand Order, 

DOE is addressing only the challenged 

failure to determine, after notice and 

comment, whether the amended 

industry test procedure is consistent 

with the appendix B test procedure, or 

whether, as supported by clear and 

convincing evidence, the amended 

industry test procedure fails to satisfy 

the statutory requirements. Remand 

Order p. 2. 

In the December 2024 NOTD, DOE 

tentatively determined, supported by 

clear and convincing evidence,3 that the 

amended 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 part-load 

operation. In making that tentative 

determination, DOE noted that a CWAF 

with a TE of 81 percent as measured by 

the amended 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. 89 FR 104859, 

104864. DOE found that to be a 

significant difference that would impact 

both consumers and manufacturers. The 

following sections discuss comments 

received in response to the December 

2024 NOTD and DOE’s decision to 

finalize its determination that the 

amended 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 part-load 

operation. 

A. Appendix B Test Procedure for TE2 

DOE received several comments that 

focused on the appendix B test 

procedure. For example, both Trane and 

JCI stated that DOE had not shown that 

the appendix B test procedure met the 

statutory requirement of not being 

unduly burdensome to conduct. (Trane, 

No. 8, p. 3; JCI, No. 9, pp. 1–2) 

Similarly, AHRI commented on the 

representativeness, burden, and costs of 

the appendix B test procedure and 

attached comments that were previously 


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5564 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

submitted in response to the February 

2022 NOPR. (AHRI, No. 6, pp. 6–9). 

In response to these and similar 

comments, DOE reiterates that the scope 

of this rulemaking process, as laid out 

in the Remand Order, is to determine 

whether the amended industry test 

procedure is consistent with the 

appendix B test procedure for TE2, or 

whether the amended industry test 

procedure fails to satisfy the applicable 

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

and (3). In accordance with the Remand 

Order, DOE issued the December 2024 

NOTD, which tentatively determined, 

supported by clear and convincing 

evidence, that the amended industry 

test procedure was 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 part-load operation. DOE 

sought comment on this tentative 

determination. In the December 2024 

NOTD, DOE specifically noted that 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). 89 FR 104859, 

104862. As such, DOE will not address 

comments on whether the appendix B 

test procedure meets the statutory 

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

and (3). Instead, DOE invites 

stakeholders to review the June 2023 

Final Rule where these same comments 

regarding representativeness, burden, 

and cost of the appendix B test 

procedure were fully addressed. 

B. Comment Period Length 

Several commenters expressed 

concerns about the length of the 

comment period provided in the 

December 2024 NOTD. (Daiken, No. 10, 

p. 2; JCI, No. 9, p. 1; AHRI, No. 6, pp. 

2–4) More specifically, JCI commented 

that there was not sufficient time to 

complete a notable research effort 

including the necessary internal reviews 

and approvals. (JCI, No. 9, p. 1) JCI also 

expressed concern that the shortened 

comment period could set a dangerous 

precedent for future rulemakings. Id. 

AHRI stated that the comment period 

fell short of the minimum 45-day 

comment period required for proposed 

test procedures under 42 U.S.C. 6314(b). 

In response to these comments, DOE 

first notes, as AHRI correctly pointed 

out, that prior to prescribing a final test 

procedure DOE is required to publish 

the proposed test procedure in the 

Federal Register and provide at least a 

45-day comment period. (42 U.S.C. 

6314(b)) But, as clearly stated in the 

Remand Order, the December 2024 

NOTD, and throughout this document, 

the court 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), which remains in 

effect. Hence, this is not a rulemaking to 

prescribe a final test procedure to which 

the 45-day comment period would 

apply. Instead, DOE is determining, ‘‘by 

rule, published in the Federal Register 

and supported by clear and convincing 

evidence,’’ that the amended industry 

test procedure does not meet the 

applicable statutory criteria in EPCA. 

(42 U.S.C. 6314(a)(4)(B)) There is no 

minimum comment period specified in 

EPCA for this type of determination. In 

some cases, DOE may choose to conduct 

one rulemaking to make this 

determination and propose an amended 

test procedure (see 42 U.S.C. 

6314(a)(4)(C)), which would require a 

45-day comment period. But in other 

cases, DOE may issue a rule that only 

makes a determination, supported by 

clear and convincing evidence, that the 

amended industry test procedure does 

not satisfy the requirements in 42 U.S.C. 

6314(a)(2) and (3). For example, if the 

current DOE test procedure satisfies the 

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

and (3) and DOE determines that the 

amended industry test procedure does 

not satisfy the requirements in 42 U.S.C. 

6314(a)(2) and (3), there would be no 

need for DOE to propose an amended 

test procedure. As another example, if 

the ASHRAE trigger occurs after DOE 

has already proposed an amended test 

procedure under the 7-year lookback 

provision (as was the case here), DOE 

would conduct a separate rulemaking to 

make the required ASHRAE 

determination under 42 U.S.C. 

6314(a)(4)(B). 

Under the Administrative Procedure 

Act (APA), an agency engaged in 

rulemaking must: (1) publish a general 

notice of proposed rulemaking in the 

Federal Register that includes the terms 

or substance of the proposed rule or a 

description of the subjects and issues 

involved; (2) give interested persons an 

opportunity to participate in the rule 

making through submission of written 

data, views, or arguments; and (3) after 

consideration of the relevant matter 

presented incorporate in the rules 

adopted a concise general statement of 

their basis and purpose. See 5 U.S.C. 

553(b) and (c). Taken together, Courts 

have typically understood these 

provisions to require Federal agencies to 

provide the public with a ‘‘meaningful 

opportunity’’ to comment. See N. 

Carolina Growers’ Ass’n, Inc. v. United 

Farm Workers, 702 F.3d 755, 763 (4th 

Cir. 2012). Daiken, JCI, and AHRI take 

issue with the length of time provided 

to stakeholders to review the December 

2024 NOTD and develop comments. 

In response, DOE first notes that the 

Administrative Procedure Act does not 

provide for a minimum comment period 

(see 5 U.S.C. 553) and rules proposed by 

Federal agencies run the gamut from the 

incredibly complex to the relatively 

simple. In other words, the length of 

time required to give the public a 

meaningful opportunity to comment 

will vary based on the content of the 

proposed rule. For example, the 

National Highway Traffic Safety 

Administration typically used a 60-day 

comment period when it proposed new 

fuel economy standards for passenger 

cars and light trucks. 88 FR 56128 (Aug. 

17, 2023). This proposed rule was over 

260 pages and used complex analytical 

methods to propose new fuel economy 

standards. 

In contrast, the 7-page December 2024 

NOTD simply sought comment on 

DOE’s tentative determination that an 

amended industry test procedure that 

does not have provisions for measuring 

two sources of energy consumption, 

jacket losses and part-load operation, 

which can account for an over 4 percent 

difference in overall measured 

efficiency, is not reasonably designed to 

measure energy efficiency during a 

representative average use cycle that, as 

determined by DOE for the TE2 metric, 

includes jacket losses and part-load 

operation. It should be emphasized that 

DOE was not seeking comment on 

methodologies for calculating jacket 

losses and energy use in part-load 

operation for a CWAF, which would 

have warranted a longer comment 

period to give stakeholders time to 

evaluate those testing provisions. 

Instead, DOE sought comment on 

whether—as opposed to every other 

type of HVAC equipment where DOE 

determined that part-load operation was 

part of the representative average use 

cycle—an amended industry test 

procedure for CWAFs that does not have 

provisions for measuring jacket losses 

and energy use during part-load 

operation of a CWAF is reasonably 

designed to measure energy efficiency 

during a representative average use 

cycle that, as determined by DOE, 

includes jacket losses and part-load 

operation. 

DOE posted the signed, prepublication copy of the December 2024 

NOTD on the DOE website on December 

13, 2024. That same day DOE sent an 

email to stakeholders, including AHRI, 

Daiken, and JCI, announcing the public 


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Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 5565 

availability of the document and 

providing stakeholders with a website 

link to the document. The document 

was then published in the Federal 

Register on December 26, 2024, with a 

14-day comment period that ended on 

January 8, 2025. In total, stakeholders 

like AHRI, Daiken, and JCI had 4 weeks 

to review the document and provide 

comments. As such, this proceeding 

provided stakeholders with sufficient 

time to review the December 2024 

NOTD and develop any comments on 

why an amended industry test 

procedure that does not have provisions 

for measuring jacket losses and energy 

use during part-load operation still gives 

reasonable results when used to 

measure CWAF energy use in the field 

that includes jacket losses and part-load 

operation. 

C. Application of the ASHRAE Trigger 

Provision in 42 U.S.C. 6314(a)(4)(B) 

In the December 2024 NOTD, DOE 

evaluated the amended industry test 

procedure in the context of the ASHRAE 

trigger provision and presented DOE’s 

tentative determination, supported by 

clear and convincing evidence, that the 

amended 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 part-load 

operation. As support for this tentative 

determination, DOE estimated that the 

amended industry test procedure could 

not account for as much as a 4.5 percent 

difference in efficiency between a 

CWAF model with high jacket losses 

and poor part-load performance and a 

model with negligible jacket losses and 

good part-load performance. DOE noted 

that this variation in efficiency was 

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 tentatively 

determined, supported by clear and 

convincing evidence, that the amended 

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 for the 

TE2 metric, includes jacket losses and 

part-load operation. 

In response to the December 2024 

NOTD, the Joint Commenters stated that 

the potential 4.5 percent difference in 

energy efficiency corresponds to a 

significant difference in energy 

consumption and that the amended 

industry test procedure would likely 

result in an inaccurate ranking of 

equipment in the market in terms of 

energy use and operating cost. (Joint 

Commenters, No. 7, p. 1) As such, the 

Joint Commenters agreed with DOE’s 

tentative determination that the 

amended industry test procedure is not 

reasonably designed to measure energy 

efficiency during a representative 

average use cycle. Id. 

Daiken, on the other hand, stated that 

DOE did not provide any data to 

support its assertion that the industry 

test procedure is not representative but 

has stated that clear and convincing 

evidence is present. (Daiken, No. 9, p. 

3) DOE strongly disagrees with this 

statement. As discussed previously, 

DOE provided estimates that jacket 

losses and part-load operation could 

account for as much as a 4.5 percent 

difference in efficiency. And DOE noted 

that even a 1 percent increase in 

efficiency corresponded to average lifecycle cost savings of $284. 

AHRI asserted that DOE cannot satisfy 

the clear-and-convincing evidence 

requirements because AHRI believes the 

record did not demonstrate the test 

procedures referenced in Standard 90.1 

would fail to meet the requirements of 

sections 6314(a)(2) and (a)(3). More 

specifically, AHRI commented that the 

range of efficiencies that would result 

from the inclusion of part-load 

operation is narrower than for other airconditioning products. AHRI pointed to 

an example of a furnace in a large 

commercial unit in a milder climate 

primarily operating at night or during 

morning warm up to demonstrate its 

belief that CWAFs are basically on-off, 

i.e., do not spend a significant amount 

of time operating at part-load. (AHRI, 

No. 6 at p. 7) 

In the June 2023 Final Rule, after 

considering comments and input from 

stakeholders, DOE determined that the 

representative average use cycle for the 

TE2 metric should include part-load 

operation and adopted the 50 percent 

weighting at full load and part load. 88 

FR 36217, 36226. In making that 

determination, DOE reviewed modeling 

submitted by NEEA that showed a range 

of times for CWAF operation at full and 

part loads, from operating as much as 70 

percent of the time at full load (and 30 

percent of the time at part load) to 

operating as little as 25 percent of the 

time at full load (and 75 percent at part 

load). DOE also observed that in the 

modeling certain building types 

(warehouses) were modeled to operate 

at full load over 50 percent of the time, 

while other buildings (retail) were 

modeled to operate at full load less than 

50 percent of the time. DOE 

acknowledges that the time a CWAF 

operates at full load and part load could 

vary based on the climate region, 

building type and load, and CWAF 

sizing. But based on the available data, 

it is clear that CWAFs in the field spend 

a significant amount of time operating at 

part-load. 

Even if AHRI were correct and partload operation is less of a contributor to 

the overall energy efficiency of a CWAF, 

DOE notes that none of the commenters 

argued that jacket losses are not 

important to the overall efficiency of a 

CWAF. In fact, AHRI points out its 

importance by citing to the relevant 

provisions in ASHRAE 90.1 showing 

that CWAFs installed in buildings 

where ASHRAE 90.1–2022 building 

code requirements apply (e.g., newly 

constructed commercial equipment 

where a jurisdiction has adopted the 

ASHRAE Standard 90.1–2022 building 

energy codes) must meet certain jacket 

loss provisions. This position highlights 

the importance of including jacket 

losses in the representative average use 

cycle for any future standards, which as 

DOE noted in the December 2024 NOTD 

could account for as much as a 2.5 

percent difference in efficiency. 89 FR 

104859, 104863. 

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 


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5566 Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 / Rules and Regulations 

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. 

For this final determination, as was 

done initially in the December 2024 

NOTD, 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 

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 that, as 

determined by DOE, includes jacket 

losses and part-load operation for the 

TE2 metric. 

IV. 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 final 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 final 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. 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final determination. 

Signing Authority 

This document of the Department of 

Energy was signed on January 13, 2025, 

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 January 13, 

2025. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

[FR Doc. 2025–01082 Filed 1–16–25; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL ELECTION COMMISSION 

11 CFR Part 111 

[Notice 2024–30] 

Statement of Policy Regarding the 

Notification of Respondents in Matters 

Under Review Remanded From a 

Challenge Pursuant to 52 U.S.C. 

30109(a)(8) 

AGENCY: Federal Election Commission. 

ACTION: Statement of Policy. 

SUMMARY: The Federal Election 

Commission (‘‘Commission’’ or ‘‘FEC’’) 

is issuing a Policy Statement to explain 

that, if the Commission receives a 

remand in litigation instituted pursuant 

to 52 U.S.C. 30109(a)(8), it will notify 

the respondents in the Matter Under 

Review (‘‘MUR’’) of the relevant court 

decision(s) and provide an opportunity 

to file supplemental responses. 

DATES: The effective date of this 

Statement of Policy is February 18, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

Claudio J. Pavia, Assistant General 

Counsel, Enforcement Division, 1050 

First Street NE, Washington, DC 20463, 

(202) 694–1650. 

SUPPLEMENTARY INFORMATION: The 

Federal Election Campaign Act of 1971, 

as amended, (‘‘Act’’) 52 U.S.C. 30101– 

30145, provides for enforcement based 

upon complaints filed by the public. 

Such complaints are filed with the FEC, 

which notifies each individual or 

organization accused of wrongdoing 

(‘‘Respondents’’) and provides an 

opportunity to respond to the 

allegations of the complaint. 

‘‘Any party aggrieved by an order of 

the Commission dismissing a complaint 

filed by such party . . . or by a failure 

of the Commission to act on such 

complaint during the 120-day period 

beginning on the date the complaint is 

filed, may file a petition with the United 

States District Court for the District of 

Columbia.’’ 52 U.S.C. 30109(a)(8)(A). 

‘‘[I]n any proceeding’’ brought under 52 

U.S.C. 30109(a)(8) ‘‘the court may 

declare that the dismissal of the 

complaint or the failure to act is 

contrary to law and may direct the 

Commission to conform with such 

declaration within 30 days, failing 

which the complainant may bring, in 

the name of such complainant, a civil 

action to remedy the violation involved 

in the original complaint.’’ 52 U.S.C. 

30108(a)(8)(C). 

Because lawsuits filed under 52 

U.S.C. 30108(a)(8) are brought by 

Complainants against the Commission, 

Respondents may not be aware of 

actions taken in these cases. 

Respondents’ interests are implicated, 

however, where a MUR is remanded to 

the Commission for further action. In 

particular, because the Commission will 

generally be ordered to conform to a 

particular judicial opinion, and because 

the facts and circumstances of a MUR 

may have changed with the passage of 

time, any response previously provided 

by a Respondent may be stale. See 52 

U.S.C. 30109(a)(1) (‘‘Before the 

Commission conducts any vote on the 

complaint, other than a vote to dismiss, 

any person so notified shall have the 

opportunity to demonstrate, in writing, 

to the Commission within 15 days after 

notification that no action should be 

taken against such person on the basis 

of the complaint’’). 


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