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Proposed Rule2022-16291

Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Intent To Establish a Working Group for Commercial Unitary Air Conditioners and Heat Pumps To Negotiate a Notice of Proposed Rulemaking for Test Procedures and Energy Conservation Standards

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Published

July 29, 2022

Issuing agencies

Energy Department

Abstract

The U.S. Department of Energy ("DOE" or "the Department") is giving notice that DOE intends to establish a negotiated rulemaking working group under the Appliance Standards and Rulemaking Federal Advisory Committee ("ASRAC") in accordance with the Federal Advisory Committee Act ("FACA") and the Negotiated Rulemaking Act ("NRA") to negotiate proposed test procedures and amended energy conservation standards commercial unitary air conditioners and heat pumps ("CUACs and CUHPs"). The purpose of the working group will be to discuss and, if possible, reach consensus on a proposed rule regarding test procedures and energy conservation standards for CUACs and CUHPs, as authorized by the Energy Policy and Conservation Act, as amended ("EPCA"). The working group will consist of representatives of parties having a defined stake in the outcome of the proposed standards and/or test procedure, and will consult as appropriate with a range of experts on technical issues. DOE is hereby soliciting nominations for members of the CUAC and CUHP working group. Application packages should be submitted to DOE by August 12, 2022.

Full Text

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[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Proposed Rules]
[Pages 45703-45707]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16291]

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Proposed Rules
Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 87, No. 145 / Friday, July 29, 2022 /
Proposed Rules

[[Page 45703]]

DEPARTMENT OF ENERGY

10 CFR Part 431

Appliance Standards and Rulemaking Federal Advisory Committee:
Notice of Intent To Establish a Working Group for Commercial Unitary
Air Conditioners and Heat Pumps To Negotiate a Notice of Proposed
Rulemaking for Test Procedures and Energy Conservation Standards

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

ACTION: Notice of intent and solicitation of nominations for
membership.

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SUMMARY: The U.S. Department of Energy (``DOE'' or ``the Department'')
is giving notice that DOE intends to establish a negotiated rulemaking
working group under the Appliance Standards and Rulemaking Federal
Advisory Committee (``ASRAC'') in accordance with the Federal Advisory
Committee Act (``FACA'') and the Negotiated Rulemaking Act (``NRA'') to
negotiate proposed test procedures and amended energy conservation
standards commercial unitary air conditioners and heat pumps (``CUACs
and CUHPs''). The purpose of the working group will be to discuss and,
if possible, reach consensus on a proposed rule regarding test
procedures and energy conservation standards for CUACs and CUHPs, as
authorized by the Energy Policy and Conservation Act, as amended
(``EPCA''). The working group will consist of representatives of
parties having a defined stake in the outcome of the proposed standards
and/or test procedure, and will consult as appropriate with a range of
experts on technical issues. DOE is hereby soliciting nominations for
members of the CUAC and CUHP working group. Application packages should
be submitted to DOE by August 12, 2022.

DATES: Nominations of membership must be received on or before August
12, 2022. DOE will not consider any nominations received via mail or
after midnight on August 12, 2022.

ADDRESSES: The nominee's name, resume, biography, and any letters of
support must be submitted in electronic format via email to
<a href="/cdn-cgi/l/email-protection#3d5c4e4f5c5e7d585813595258135a524b">[email&#160;protected]</a>. Any requests for further information should also be
sent via email to <a href="/cdn-cgi/l/email-protection#5f3e2c2d3e3c1f3a3a713b303a71383029">[email&#160;protected]</a>

FOR FURTHER INFORMATION CONTACT: John Cymbalsky, 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: (202) 586-7335. Email:
<a href="/cdn-cgi/l/email-protection#773607071b1e1619141224031619131605130426021204031e1819043712125913181259101801">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Authority
II. Background
III. Proposed Negotiating Procedures
IV. Comments Requested
V. Public Participation

I. Authority

DOE is announcing its intent to negotiate proposed test procedures
and amended energy conservation standards for CUACs and CUHPs under the
authority of sections 563 and 564 of the NRA (5 U.S.C. 561-570, Pub. L.
104-320). DOE is seeking to develop proposals to amend the current test
procedures and standards through a negotiated rulemaking process under
the authority of EPCA, 42 U.S.C. 6311(1) and 42 U.S.C. 6291 et seq.

II. Background

On July 21, 2022, the ASRAC met and made a recommendation to form a
CUAC and CUHP subcommittee to meet, discuss, and, if possible, reach
consensus on a proposed rule for the test procedures and energy
efficiency standards for CUACs and CUHPs. For purposes of this
document, the ASRAC subcommittee at issue will be referred to as the
``working group.'' As required by the NRA, DOE is giving notice that it
is establishing a working group under ASRAC to discuss proposed amended
test procedures and energy efficiency requirements for CUACs and CUHPs.
The working group will be established and function as a subcommittee of
ASRAC in accordance with the provisions of the Federal Advisory
Committee Act (FACA), as amended, 5 U.S.C., App. 2.

A. Negotiated Rulemaking

DOE is supporting the use of the negotiated rulemaking process to
discuss and develop proposed test procedures and amended energy
conservation standards for CUACs and CUHPs. The primary reason for
using the negotiated rulemaking process for this equipment is that
stakeholders strongly support a consensual rulemaking effort. DOE
believes such a regulatory negotiation process will be less adversarial
and better suited to resolving complex technical issues. An important
virtue of negotiated rulemaking is that it allows expert dialog that is
much better than traditional techniques at getting the facts and issues
right and will result in a proposed rule that will effectively reflect
Congressional intent.
A regulatory negotiation will enable DOE to engage in direct and
sustained dialog with informed, interested, and affected parties when
drafting the regulation, rather than obtaining input during a public
comment period after developing and publishing a proposed rule. A rule
drafted by negotiation with informed and affected parties is expected
to be potentially more pragmatic and more easily implemented than a
rule arising from the traditional process. Such rulemaking improvement
is likely to provide the public with the full benefits of the rule
while minimizing the potential negative impact of a proposed regulation
conceived or drafted without the full prior input of outside
knowledgeable parties. Because a negotiating working group includes
representatives from the major stakeholder groups, including consumers,
affected by or interested in the rule, the number of public comments on
the proposed rule may be decreased. DOE anticipates that there will be
a need for fewer substantive changes to a proposed rule developed under
a regulatory negotiation process prior to the publication of a final
rule.

B. The Concept of Negotiated Rulemaking

Usually, DOE develops a proposed rulemaking using Department staff
and consultant resources. Congress noted in the NRA, however, that
regulatory development may ``discourage the affected parties from
meeting and

[[Page 45704]]

communicating with each other, and may cause parties with different
interests to assume conflicting and antagonistic positions * * *.'' 5
U.S.C. 561(2)(2). Congress also stated that ``adversarial rulemaking
deprives the affected parties and the public of the benefits of face-
to-face negotiations and cooperation in developing and reaching
agreement on a rule. It also deprives them of the benefits of shared
information, knowledge, expertise, and technical abilities possessed by
the affected parties.'' 5 U.S.C. 561(2)(3).
Using negotiated rulemaking to develop a proposed rule differs
fundamentally from the Department centered process. In negotiated
rulemaking, a proposed rule is developed by an advisory committee or a
working group established by the advisory committee, in accordance with
the provisions of FACA, 5 U.S.C. App. 2, composed of members chosen to
represent the various interests that will be significantly affected by
the rule. The goal of the advisory committee or its working group is to
reach consensus on the treatment of the major issues involved with the
rule. The process starts with the Department's careful identification
of all interests potentially affected by the rulemaking under
consideration. To help with this identification, the Department
publishes a notice of intent such as this one in the Federal Register,
identifying a preliminary list of interested parties and requesting
public comment on that list. Following receipt of comments, the
Department establishes an advisory committee or advisory committee
working group representing the full range of stakeholders to negotiate
a consensus on the terms of a proposed rule. Representation on the
advisory committee or its working group may be direct; that is, each
member may represent a specific interest, or may be indirect, such as
through trade associations and/or similarly situated parties with
common interests. The Department is a member of the advisory committee
or working group and represents the Federal government's interests. The
advisory committee or working group chair is assisted by a neutral
mediator who facilitates the negotiation process. The role of the
mediator, also called a facilitator, is to apply proven consensus-
building techniques to the advisory committee or working group process.
If the advisory committee itself is undertaking the negotiation,
once the committee reaches consensus on the provisions of a proposed
rule and recommends such consensus to the Department, the Department,
consistent with its legal obligations, may use such consensus as the
basis of its proposed rule, which then is published in the Federal
Register. If a working group of the advisory committee is undertaking
the negotiation, once the working group reaches consensus on the
provisions of a proposed rule, a recommendation is made to the advisory
committee. The advisory committee may then, consistent with its legal
obligations, use such consensus as the basis for making a
recommendation to the Department of a proposed rule. The Department,
consistent with its legal obligations, may use such consensus as the
basis of its proposed rule, which then is published in the Federal
Register. This publication provides the required public notice and
provides for a public comment period. Other participants and other
interested parties retain their rights to comment, participate in an
informal hearing (if requested), and request judicial review. DOE
anticipates, however, that the preproposal consensus agreed upon by the
advisory committee will narrow any issues in the subsequent rulemaking.

C. Proposed Rulemaking for Test Procedures and Energy Conservation
Standards and Energy Conservation Standards Regarding CUACs and CUHPs

The NRA enables DOE to establish an advisory committee or working
group under the advisory committee if it is determined that the use of
the negotiated rulemaking process is in the public interest. DOE
intends to develop Federal regulations that build on the depth of
experience accrued in both the public and private sectors in
implementing standards and programs.
DOE is supporting the use of the regulatory negotiation process in
order to provide for obtaining a diverse array of in-depth input, as
well as an opportunity for increased collaborative discussion from both
private-sector stakeholders and government officials who are familiar
with the energy efficiency of CUACs and CUHPs.

D. Department Commitment

In initiating this regulatory negotiation process to develop test
procedures and amended energy conservation standards for CUACs and
CUHPs, DOE is making a commitment to provide adequate resources to
facilitate timely and successful completion of the process. This
commitment includes making the process a priority activity for all
representatives, components, officials, and personnel of the Department
who need to be involved in the rulemaking, from the time of initiation
until such time as a final rule is issued or the process is expressly
terminated. DOE will provide administrative support for the process and
will take steps to ensure that the advisory committee or its working
group has the dedicated resources it requires to complete its work in a
timely fashion. Specifically, DOE will make available the following
support services: properly equipped space adequate for public meetings
and caucuses; logistical support; word processing and distribution of
background information; the service of a facilitator; and such
additional research and other technical assistance as may be necessary.
All meetings will provide an opportunity for all members of the working
group and other interested parties to participate by webinar. While DOE
strongly encourages members to participate in person, DOE realizes that
travel costs may prohibit in-person attendance. Prospective members,
therefore, should not allow travel costs to affect their decision to
apply for membership.
To the maximum extent possible consistent with the legal
obligations of the Department, DOE will use the consensus of the
advisory committee as the basis for the rule the Department proposes
for public notice and comment.

E. Negotiating Consensus

As discussed, the negotiated rulemaking process differs
fundamentally from the usual process for developing a proposed rule.
Negotiation enables interested and affected parties to discuss various
approaches to issues rather than asking them only to respond to a
proposal developed by the Department. The negotiation process involves
a mutual education of the various parties on the practical concerns
about the impact of standards. Each advisory committee or working group
member participates in resolving the interests and concerns of other
members, rather than leaving it up to DOE to evaluate and incorporate
different points of view.
A key principle of negotiated rulemaking is that agreement is by
consensus of all the interests. Thus, no one interest, or group of
interests is able to control the process. The NRA defines consensus as
the unanimous concurrence among interests represented on a negotiated
rulemaking committee or working group, unless the committee or its
working group itself unanimously agrees to use a different definition.
5 U.S.C. 562. In addition, experience has demonstrated that using a
trained mediator to facilitate this

[[Page 45705]]

process will assist all parties, including DOE, in identifying their
real interests in the rule, and thus will enable parties to focus on
and resolve the important issues.

III. Proposed Negotiating Procedures

A. Key Issues for Negotiation

The following issues and concerns will underlie the work of the
Negotiated Rulemaking Committee on CUACs and CUHPs:
<bullet> Test procedures for CUACs and CUHPs; and
<bullet> Energy Conservation Standards for CUACs and CUHPs.
To examine the underlying issues outlined above, and others not yet
articulated, all parties in the negotiation will need DOE to provide
data and an analytic framework complete and accurate enough to support
their deliberations. DOE's analyses must be adequate to inform a
prospective negotiation.

B. Formation of Working Group

A working group will be formed and operated in full compliance with
the requirements of FACA and in a manner consistent with the
requirements of the NRA. DOE has determined that the working group
shall not exceed 25 members. The Department believes that more than 25
members would make it difficult to conduct effective negotiations. DOE
is aware that there may be many more potential participants than there
are membership slots on the working group. The Department does not
believe, nor does the NRA contemplate, that each potentially affected
group must participate directly in the negotiations; nevertheless, each
affected interest can be adequately represented. To have a successful
negotiation, it is important for interested parties to identify and
form coalitions that adequately represent significantly affected
interests. To provide adequate representation, those coalitions must
agree to support, both financially and technically, a member of the
working group whom they choose to represent their interests.
DOE recognizes that when it establishes or amends energy efficiency
standards and test procedures for residential products and commercial
equipment, various segments of society may be affected in different
ways, in some cases producing unique ``interests'' in a proposed rule
based on income, gender, or other factors. The Department will pay
attention to providing that any unique interests that have been
identified, and that may be significantly affected by the proposed
rule, are represented.
FACA also requires that members of the public have the opportunity
to attend meetings of the full committee and speak or otherwise address
the committee during the public comment period. In addition, any member
of the public is permitted to file a written statement with the
advisory committee. DOE plans to follow these same procedures in
conducting meetings of the working group.

C. Interests Involved/Working Group Membership

DOE anticipates that the working group will comprise no more than
25 members who represent affected and interested stakeholder groups, at
least one of whom must be a member of the ASRAC. As required by FACA,
the Department will conduct the negotiated rulemaking with particular
attention to ensuring full and balanced representation of those
interests that may be significantly affected by the proposed rule
amending standards for CUACs and CUHPs. Section 562 of the NRA defines
the term ``interest'' as ``with respect to an issue or matter, multiple
parties which have a similar point of view or which are likely to be
affected in a similar manner.'' Listed are parties the Department to
date has identified as being ``significantly affected'' by a proposed
rule regarding the energy efficiency of CUACs and CUHPs.
<bullet> The Department of Energy;
<bullet> States;
<bullet> Trade associations representing installers and
distributors of CUACs and CUHPs;
<bullet> Heating and cooling system designers and engineers;
<bullet> Component manufacturers and related suppliers;
<bullet> Utilities;
<bullet> Energy efficiency/environmental advocacy groups;
<bullet> Commercial building owners; and
<bullet> Commercial building tenants.
One purpose of this notice of intent is to determine whether
Federal regulations for CUACs and CUHPs will significantly affect
interests that are not listed previously. DOE invites comment and
suggestions on its initial list of significantly affected interests and
encourages all interested parties and interests to apply for the
Working Group.
Members may be individuals or organizations. If the effort is to be
fruitful, participants on the working group should be able to fully and
adequately represent the viewpoints of their respective interests. This
document gives notice of DOE's process to other potential participants
and affords them the opportunity to request representation in the
negotiations. Those who wish to nominate members to the working group,
should submit an application package to DOE, in accordance with the
public participation procedures outlined in the DATES and ADDRESSES
sections of this notice of intent. Qualified individuals can self-
nominate or be nominated by any individual or organization. Nominators
should submit an application package which includes:
<bullet> The nominee's current resume or curriculum vitae and
contact information, including mailing address, email address, and
telephone number;
<bullet> A letter of interest, which includes:
[cir] A summary of how the nominee's experience and expertise would
support the working group's objectives;
[cir] The interest the nominee would represent in the working
group; and
[cir] A description of other assets (such as data or modeling
tools) the nominee could provide to support the working group's
objectives.
Membership of the working group is likely to involve:
<bullet> Attendance (in person preferable) at approximately ten
(10), one (1)- to two (2)- day meetings (with the potential for two (2)
additional one (1)- or two (2)-day meetings);
<bullet> Travel costs to those meetings, if participating in
person; and
<bullet> Preparation time for those meetings.
Members serving on the working group will not receive compensation
for their services. Interested parties who are not selected for
membership on the working group may make valuable contributions to this
negotiated rulemaking effort in any of the following ways:
<bullet> The person may request to be placed on the working group
mailing list and submit written comments as appropriate.
<bullet> The person may attend working group meetings, which are
open to the public; caucus with his or her interest's member on the
working group; or even address the working group during the public
comment portion of the working group meeting.
<bullet> The person could assist the efforts of a workgroup that
the working group might establish.
A working group may establish informal workgroups, which usually
are asked to facilitate committee deliberations by assisting with
various technical matters (e.g., researching or preparing summaries of
the technical literature or comments on specific matters such as
economic issues). Workgroups also might assist in estimating costs or
drafting regulatory

[[Page 45706]]

text on issues associated with the analysis of the costs and benefits
addressed, or formulating drafts of the various provisions and their
justifications as previously developed by the working group. Given
their support function, workgroups usually consist of participants who
have expertise or particular interest in the technical matter(s) being
studied. Because it recognizes the importance of this support work for
the working group, DOE will provide appropriate technical expertise for
such workgroups.

D. Good Faith Negotiation

Every working group member must be willing to negotiate in good
faith and have the authority, granted by his or her constituency, to do
so. The first step is to ensure that each member has good
communications with his or her constituencies. An intra-interest
network of communication should be established to bring information
from the support organization to the member at the table, and to take
information from the table back to the support organization. Second,
each organization or coalition therefore should designate as its
representative a person having the credibility and authority to ensure
that needed information is provided and decisions are made in a timely
fashion. Negotiated rulemaking can require the appointed members to
give a significant sustained time commitment for as long as the
duration of the negotiated rulemaking. Other qualities of members that
can be helpful are negotiating experience and skills, familiarity with
using CUACs and CUHPs systems as a consumer, and/or sufficient
technical knowledge to participate in substantive negotiations.
Certain concepts are central to negotiating in good faith. One is
the willingness to bring all issues to the bargaining table in an
attempt to reach a consensus, as opposed to keeping key issues in
reserve. The second is a willingness to keep the issues at the table
and not take them to other forums. Finally, good faith includes a
willingness to move away from some of the positions often taken in a
more traditional rulemaking process, and instead explore openly with
other parties all ideas that may emerge from the working group's
discussions.

E. Facilitator

The facilitator will act as a neutral in the substantive
development of the proposed standard. The facilitator's role generally
includes:
<bullet> Impartially assisting the members of the working group in
conducting discussions and negotiations; and
<bullet> Impartially assisting in performing the duties of the
Designated Federal Official under FACA.

F. Department Representative

The DOE representative will be a full and active participant in the
consensus building negotiations. The Department's representative will
meet regularly with senior Department officials, briefing them on the
negotiations and receiving their suggestions and advice so that he or
she can effectively represent the Department's views regarding the
issues before the working group. DOE's representative also will ensure
that the entire spectrum of governmental interests affected by the
standards rulemaking, including the Office of Management and Budget,
the Attorney General, and other Departmental offices, are kept informed
of the negotiations and encouraged to make their concerns known in a
timely fashion.

G. Working Group and Schedule

After evaluating the comments submitted in response to this notice
of intent and the requests for nominations, DOE will either inform the
members of the working group that they have been selected or determine
that conducting a negotiated rulemaking is inappropriate.
The working group is expected to make a concerted effort to
negotiate a first term sheet on the test procedure and a second term
sheet on energy conservation standards within six (6) months of its
first meeting. The working group's negotiations will take place around
two discrete tasks. The test procedure term sheet, if completed, is to
be approved by the working group and transmitted to ASRAC prior to
commencement of negotiations regarding the energy conservation
standards. At the completion of the negotiations for each discrete
task, the term sheet, if completed, will be presented to ASRAC at an
open meeting for its deliberation and decision on whether to approve it
and submit it to DOE as a formal recommendation.
DOE will advise working group members of administrative matters
related to the functions of the working group before beginning. While
the negotiated rulemaking process is underway, DOE is committed to
performing much of the same analysis as it would during a normal
standards rulemaking process and to providing information and technical
support to the working group.

IV. Comments Requested

DOE requests comments on which parties should be included in a
negotiated rulemaking to develop draft language pertaining to the
energy efficiency of CUACs and CUHPs and suggestions of additional
interests and/or stakeholders that should be represented on the working
group. All who wish to participate as members of the working group
should submit a request for nomination to DOE.

V. Public Participation

Members of the public are welcome to observe the business of the
meeting and, if time allows, may make oral statements during the
specified period for public comment. To attend the meeting and/or to
make oral statements regarding any of the items on the agenda, email
<a href="/cdn-cgi/l/email-protection#f8998b8a999bb89d9dd69c979dd69f978e">[email&#160;protected]</a>. In the email, please indicate your name, organization
(if appropriate), citizenship, and contact information. Please note
that foreign nationals participating in the public meeting are subject
to advance security screening procedures which require advance notice
prior to attendance at the public meeting. If a foreign national wishes
to participate in the public meeting, please inform DOE as soon as
possible by contacting Ms. Regina Washington at (202) 586-1214 or by
email: <a href="/cdn-cgi/l/email-protection#b4e6d1d3dddad59ae3d5c7dcdddad3c0dbdaf4d1d19ad0dbd19ad3dbc2">[email&#160;protected]</a> so that the necessary procedures
can be completed. Anyone attending the meeting will be required to
present a government photo identification, such as a passport, driver's
license, or government identification. Due to the required security
screening upon entry, individuals attending should arrive early to
allow for the extra time needed.

IV. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this notice of
intent and solicitation of nominations for membership.

Signing Authority

This document of the Department of Energy was signed on July 25,
2022, by Kelly J. Speakes-Backman, 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

[[Page 45707]]

the legal effect of this document upon publication in the Federal
Register.

Signed in Washington, DC, on July 26, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2022-16291 Filed 7-28-22; 8:45 am]
BILLING CODE 6450-01-P

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