E7-24438. Energy Conservation Program for Consumer Products: Decision and Order Granting a Waiver to Fujitsu General From the Department of Energy Residential Central Air Conditioner and Heat Pump Test Procedure [Case No. CAC-010]

AGENCY:

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

ACTION:

Decision and Order.

SUMMARY:

This notice publishes the Department of Energy's Decision and Order in Case No. CAC-010, which grants a Waiver to Fujitsu General Limited (Fujitsu) from the existing Department of Energy (DOE) residential central air conditioner and heat pump test procedure for specified Airstage Variable Refrigerant Flow (VRF) multi-split products. As a condition of this waiver, Fujitsu must test and rate its Airstage multi-split products according to the alternate test procedure set forth in this notice.

DATES:

This Decision and Order is effective December 17, 2007.

FOR FURTHER INFORMATION CONTACT:

Dr. Michael G. Raymond, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: [phone]. E-mail: [e-mail].

Francine Pinto or Eric Stas, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103. Telephone: [phone]. E-mail: [e-mail] or [e-mail].

SUPPLEMENTARY INFORMATION:

In accordance with 10 CFR 430.27(l), notice is hereby given of the issuance of the Decision and Order set forth below. In this Decision and Order, DOE grants Fujitsu a Waiver from the applicable DOE residential central air conditioner and heat pump test procedure under 10 CFR part 430, subpart B, Appendix M, for its Airstage VRF multi-split products, subject to a condition requiring Fujitsu to test and rate its Airstage products pursuant to the alternate test procedure provided in this notice. Today's decision requires that Fujitsu may not make any representations concerning the energy efficiency of these products unless such product has been tested in accordance with the DOE test procedure, consistent with the provisions and restrictions in the alternate test procedure set forth in the Decision and Order below, and such representation fairly discloses the results of such testing.^[1] (42 U.S.C. 6293(c))

Issued in Washington, DC, on November 4, 2007.

Alexander A. Karsner,

Assistant Secretary, Energy Efficiency and Renewable Energy.

Decision and Order

In the Matter of: Fujitsu General Limited (Fujitsu) (Case No. CAC-010).

Background

Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency, including Part B of Title III which establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” (42 U.S.C. 6291-6309) Similar to the program in Part B, Part C of Title III provides for an energy efficiency program titled, “Certain Industrial Equipment,” which includes commercial air conditioning equipment, package boilers, water heaters, and other types of commercial equipment. (42 U.S.C. 6311-6317)

Today's notice involves residential products under Part B, as well as commercial equipment under Part C. Under both parts, the statute specifically includes definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. With respect to test procedures, both parts generally authorize the Secretary of Energy (the Secretary) to prescribe test procedures that are reasonably designed to produce results which reflect energy efficiency, energy use, and estimated operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3), 6314(a)(2))

Relevant to the current Petition for Waiver, the test procedure for residential central air conditioning and heat pump products is set forth in 10 CFR part 430, subpart B, Appendix M. For commercial package air conditioning and heating equipment, EPCA provides that “the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning and Refrigeration Institute [ARI] or by the American Society of Heating, Refrigerating and Air Conditioning Engineers [ASHRAE], as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992.” (42 U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. 6314(a)(4)(B), the statute further directs the Secretary to amend the test procedure for a covered commercial product if the industry test procedure is amended, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria set forth in 42 U.S.C. 6314(a)(2) and (3).

On December 8, 2006, DOE published a final rule adopting test procedures for commercial package air conditioning and heating equipment, effective January 8, 2007. 71 FR 71340. The test procedures in that final rule apply to three-phase equipment. However, there is no prescribed test procedure for single-phase, small commercial package air conditioning and heating equipment.

In addition, DOE's regulations contain provisions allowing a person to seek a waiver from the test procedure requirements for covered consumer products, when the petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). Petitioners must include in their petition any alternate test procedures known to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 430.27(b)(1)(iii).

The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l). In general, a waiver terminates on the effective date of a final rule which prescribes amended test procedures appropriate to the model series manufactured by the petitioner, thereby eliminating any need for the continuation of the waiver. 10 CFR 430.27(m).

The waiver process also allows any interested person who has submitted a Petition for Waiver to file an Application for Interim Waiver of the applicable test procedure requirements. 10 CFR 430.27(a)(2). The Assistant Secretary will grant an Interim Waiver request if it is determined that the applicant will experience economic hardship if the Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the Petition for Waiver. 10 CFR 430.27(g). An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever occurs first, and may be extended by DOE for 180 days, if necessary. 10 CFR 430.27(h).

On June 14, 2004, Fujitsu filed a Petition for Waiver from the test procedures applicable to its Airstage line of residential and commercial VRF multi-split air conditioning and heating equipment.^[2] Fujitsu's petition requested a waiver from both the residential and commercial test procedures. The applicable residential test procedures are contained in 10 CFR part 430, subpart B, Appendix M, and, as explained above, there is no applicable commercial test procedure for such products under 10 CFR part 430 or 431. Fujitsu seeks a waiver from the test procedures for this product class because the design characteristics of its Airstage VRF multi-split equipment prevent testing according to the currently prescribed residential test procedures.

On February 4, 2005, DOE published Fujitsu's Petition for Waiver in the Federal Register. 70 FR 5980. On August 8, 2005, Fujitsu separately filed an Application for Interim Waiver for the same products for which it petitioned for a waiver on June 14, 2004. DOE granted the Application for Interim Waiver on January 5, 2006.

In a similar and relevant case, DOE published a Petition for Waiver from Mitsubishi Electric and Electronics USA, Inc. (MEUS) for products of the same type as Fujitsu's Airstage VRF multi-split products. 71 FR 14858 (March 24, 2006). In the March 24, 2006 Federal Register notice, DOE also published and requested comment on an alternate test procedure for the MEUS products at issue. DOE stated that if it specified an alternate test procedure for MEUS in the subsequent Decision and Order, DOE would consider applying the same procedure to similar waivers for residential and commercial central air conditioners and heat pumps, including such products for which waivers had previously been granted. Most of the comments favored DOE's proposed alternate test procedure. Also, there was general agreement that an alternate test procedure is necessary while a final test procedure for these types of products is being developed. The MEUS Decision and Order, including the alternate test procedure, was published in the Federal Register on April 9, 2007. 72 FR 17528.

DOE received comments on the Fujitsu petition from Carrier Corporation (Carrier), Trane Division of American Standard Inc. (Trane), Lennox International Inc. (Lennox), and MEUS. These comments are discussed in further detail below.

Assertions and Determinations

Fujitsu's Petition for Waiver

On June 14, 2004, Fujitsu submitted a Petition for Waiver from the test procedures applicable to residential and commercial package air-conditioning and heating equipment for its Airstage VRF multi-split products. Fujitsu's petition asserts that the energy use of its Airstage systems cannot be accurately measured using the current test procedure for the following reasons:

1. The test procedure provides for testing of a pair of indoor and outdoor assemblies making up a typical split system, but it provides no direction about how Airstage units, with more than ten thousand combinations of indoor units, could be evaluated with just one outdoor unit test.

2. The test procedure calls for testing “matched assemblies,” but Airstage systems are designed to be used in zoned systems where the capacity of the indoor units does not match the capacity of the outdoor unit.

In summary, the bases for Fujitsu's Petition for Waiver involve: (1) The problem of being physically unable to test most of the complete systems in a laboratory; (2) the regulatory requirement to test the highest-sales-volume combination; and (3) the lack of a method for predicting the performance of untested combinations. These were the same bases underlying the MEUS waiver discussed above.

Therefore, the Fujitsu petition requested that DOE grant a waiver from existing test procedures until such time as a representative test procedure is developed and adopted for this class of products. Fujitsu did not include an alternate test procedure in its Petition for Waiver. However, DOE understands that Fujitsu is actively working with ARI to develop test procedures that accurately reflect the operation and energy consumption of these particular product designs.

Of the four comments on the Fujitsu Petition for Waiver, only MEUS supported the petition. Carrier claimed Fujitsu's Airstage VRF systems could be tested using the calorimeter air enthalpy test method set forth in ASHRAE Standard 37, “Methods of Testing for Rating Unitary Air-Conditioning and Heat Pump Equipment.” Although DOE believes that use of this test, as Carrier recommends, is theoretically possible and would likely provide more accurate results in the cooling mode, it is not a practical solution because existing calorimeter test rooms are too small to test Fujitsu's VRF Airstage systems with more than three or four indoor units. Lennox and Trane asserted that without a testing and rating requirement, Fujitsu could make energy efficiency claims without the burden of providing standardized ratings. DOE believes that its alternate test procedure (discussed below) effectively addresses these objections.

As previously noted, DOE recently addressed a situation regarding multi-split products that is relevant to the Fujitsu products at issue here. Specifically, on March 24, 2006, DOE published in the Federal Register a Petition for Waiver from MEUS concerning its R410A CITY MULTI VRFZ products, which are very similar to Fujitsu's VRF Airstage multi-split products. 71 FR 14858. In that publication, DOE stated:

To provide a test procedure from which manufacturers can make valid representations, the Department is considering setting an alternate test procedure for MEUS in the subsequent Decision and Order. Furthermore, if DOE specifies an alternate test procedure for MEUS, DOE is considering applying the alternate test procedure to similar waivers for residential and commercial central air conditioners and heat pumps. Such cases include Samsung's petition for its DVM products (70 FR 9629, February 28, 2005), Fujitsu's petition for its Airstage variable refrigerant flow (VRF) products (70 FR 5980, February 4, 2005), and MEUS's petition for its R22 CITY MULTI VRFZ products. (69 FR 52660 August 27, 2004).

71 FR 14858, 14861 (March 24, 2006).

Since that time, DOE has developed such an alternate test procedure. Therefore, to enable Fujitsu to make energy efficiency representations for its specified Airstage VRF multi-split products, DOE has decided to require use of the alternate test procedure described below, as a condition of Fujitsu's waiver. This alternate test procedure is substantially the same as the one that DOE applied to the MEUS waiver.

DOE's Alternate Test Procedure

The alternate test procedure has two basic components. First, it permits Fujitsu to designate a “tested combination” for each model of outdoor unit. The indoor units designated as part of the tested combination must meet specific requirements. For example, the tested combination must have from two to five indoor units so that it can be tested in available test facilities. The tested combination must be tested according to the applicable DOE test procedure, as modified by the provisions of the alternate test procedure as set forth below. Second, having a DOE test procedure that can be applied to its products allows Fujitsu to represent the energy efficiency of that product, because any such representation must fairly disclose the results of such testing. The DOE test procedure, as modified by the alternate test procedure set forth in this Decision and Order, provides for testing of a non-tested combination in two ways: (1) At an energy efficiency level determined under a DOE-approved alternative rating method; or (2) if the first method is not available, then at the efficiency level of the tested combination utilizing the same outdoor unit. Until an alternative rating method is developed, all combinations with a particular outdoor unit may use the rating of the combination tested with that outdoor unit.

DOE believes that adopting this alternative test procedure as described above (thereby allowing Fujitsu to make energy efficiency representations for non-tested combinations) is reasonable because the outdoor unit is the principal efficiency driver. The current DOE test procedure ^[3] tends to rate these products conservatively, because they are tested under conditions where they operate less efficiently than found in typical use. The multi-zoning feature of these products, which enables them to cool only those portions of the building that require cooling, uses less energy than if the unit is operated to cool the entire home or a comparatively larger area of a commercial building in response to a single thermostat. Therefore, the alternate test procedure will provide a conservative basis for assessing the energy efficiency for such products.

The alternate test procedure applies to both residential and commercial multi-split products. However, some provisions are specific to residential or commercial products. For example, section (A) of the alternate test procedure has different provisions for residential and commercial products. In contrast, section (B), which defines the combinations of indoor and outdoor units to test, and section (C), which sets forth the requirements for making representations, are the same for both residential and commercial products.

Section (A) of the alternate test procedure distinguishes between residential and commercial products for two reasons. First, 10 CFR 430.24, used for residential products, already has requirements for selecting split-system combinations based on the highest sales volume. However, part 431 of 10 CFR, which applies to commercial products, has no comparable requirements. Therefore, section (A) of the alternate test procedure modifies the existing residential and commercial requirements so that both residential and commercial products can use the same definition of a “tested combination,” which is set forth in section (B). Second, section (A) requires several test procedure revisions to determine the seasonal energy efficiency ratio and heating seasonal performance factor for the tested combination of residential products. No test procedure revisions are introduced for commercial products because EPCA directs DOE to adopt generally accepted industry test standards (unless amendments to those industry test procedures are determined by clear and convincing evidence not to meet the requirements of the statute). (42 U.S.C. 6314(a)(4)) The changes for residential products relate to: (1) The requirement that all indoor units operate during all tests; (2) the restriction on using only one indoor test room; (3) the selection of the modulation levels (maximum, minimum, and a specified intermediate speed) used when testing; and (4) the algorithm for estimating performance over the intermediate speed operating range. DOE proposed these changes in its July 20, 2006 notice of proposed rulemaking. 71 FR 41320.

For today's Decision and Order, the changes made by the final rule published in the Federal Register on October 22, 2007 (72 FR 59906) to test procedure sections 2.1, 2.2.3, 2.4.1, 3.2.4 (including Table 6), 3.6.4 (including Table 12), 4.1.4.2, and 4.2.4.2 constitute mandatory elements of the alternate test procedure. These changes allow indoor units to cycle off, allow the manufacturer to specify the compressor speed used during certain tests, and introduce a new algorithm for estimating power consumption.

With regard to the laboratory testing of both residential and commercial products, some of the difficulties associated with the existing test procedure are avoided by the alternate test procedure's requirements for choosing the indoor units to be used in the manufacturer-specified tested combination. For example, in addition to limiting the number of indoor units, another requirement is that all of the indoor units must be subject to meeting the same minimum external static pressure. This requirement allows the test lab to manifold the outlets from each indoor unit into a common plenum that supplies air to a single airflow measuring apparatus. This requirement eliminates situations in which some of the indoor units are ducted and some are non-ducted. Without this requirement, the laboratory must evaluate the capacity of a subgroup of indoor coils separately, and then sum the separate capacities to obtain the overall system capacity. This would require that the test laboratory be equipped with multiple airflow measuring apparatuses (which is unlikely), or that the test laboratory connect its one airflow measuring apparatus to one or more common indoor units until the contribution of each indoor unit has been measured.

Furthermore, DOE stated in the notice publishing the MEUS Petition for Waiver that if the Department decides to specify an alternate test procedure for MEUS, it would consider applying the procedure to waivers for similar residential and commercial central air conditioners and heat pumps produced by other manufacturers. 71 FR 14858, 14861 (March 24, 2006). Most of the comments received by DOE in response to the March 2006 notice favored the proposed alternate test procedure. Commenters generally agreed that an alternate test procedure is appropriate for an interim period while a final test procedure for these products is being developed.

In light of the discussion above, DOE believes that the problems described above would prevent testing of Fujitsu's Airstage VRF multi-split products according to the test procedures currently prescribed in 10 CFR part 430, subpart B, Appendix M. After reviewing and considering all of the comments submitted regarding the proposed alternate test procedure, DOE has decided to adopt the proposed alternate test procedure, with the clarifications discussed above. DOE will also consider applying the same alternate test procedure to waivers for similar central air conditioners and heat pumps.

Consultations With Other Agencies

DOE consulted with the Federal Trade Commission (FTC) concerning the Fujitsu Petition for Waiver. The FTC did not have any objections to the issuance of a waiver to Fujitsu.

Conclusion

After careful consideration of all the materials submitted by Fujitsu, the comments received, and consultation with the FTC, it is ordered that:

(1) The “Petition for Waiver” filed by Fujitsu General Limited (Fujitsu) (Case No. CAC-010) is hereby granted as set forth in the paragraphs below.

(2) Fujitsu shall not be required to test or rate its Airstage variable refrigerant flow multi-split air conditioner and heat pump models listed below on the basis of the current test procedures contained in 10 CFR part 430, subpart B, Appendix M, but shall be required to test and rate such products according to the alternate test procedure as set forth in paragraph (3).

Outdoor unit, Heat pump type: AOU54U****

51.9 kBtu/hr cooling/54.4 kBtu/hr heating, single phase, 208-230Vac, 60Hz.

Outdoor unit, Cooling-only type: AOU54F****

51.9 kBtu/hr cooling, single phase, 208-230Vac, 60Hz.

Indoor units:

AR Series, Compact duct type (ceiling/floor standing), ARU 7/9/12/14/18/20/22****

AR Series, Duct type, ARU25/30/36/45****

AS Series, Wall mounted type, ASU7/9/12/14/18/24/30****

AU Series, Compact ceiling cassette type, AUU7/9/12/14/18****

AU Series, Ceiling cassette type, AUU20/25/30/36/45/54****

The “****” denotes engineering differences in the basic models.

(3) Alternate test procedure.

(A) Fujitsu shall be required to test the products listed in paragraph (2) above according to the test procedures for central air conditioners and heat pumps prescribed by DOE at 10 CFR part 430, except that:

(i) Fujitsu shall not be required to comply with: (1) The first sentence in 10 CFR 430.24(m)(2), which refers to “that combination manufactured by the condensing unit manufacturer likely to have the largest volume of retail sales;” and (2) the third sentence in 10 CFR 430(m)(2), including the provisions of 10 CFR 430(m)(2)(i) and (ii). Instead of testing the combinations likely to have the highest volume of retail sales, Fujitsu may test a “tested combination” selected in accordance with the provisions of subparagraph (B) of this paragraph. Additionally, instead of following the provisions of 10 CFR 430(m)(2)(i) and (ii) for every other system combination using the same outdoor unit as the tested combination, Fujitsu shall make representations concerning the Airstage variable refrigerant flow multi-split products covered in this waiver according to the provisions of subparagraph (C) below.

(ii) Fujitsu shall be required to comply with 10 CFR part 430, subpart B, Appendix M as amended by the final rule published in the Federal Register on October 22, 2007. 72 FR 59906. The test procedure changes applicable to multi-split products are in sections: 2.1, 2.2.3, 2.4.1, 3.2.4 (including Table 6), 3.6.4 (including Table 12), 4.1.4.2, and 4.2.4.2.

(B) Tested combination. The term “tested combination” means a sample basic model comprised of units that are production units, or are representative of production units, of the basic model being tested. For the purposes of this waiver, the tested combination shall have the following features:

(i) The basic model of a variable refrigerant flow system used as a tested combination shall consist of an outdoor unit that is matched with between two and five indoor units.

(ii) The indoor units shall:

(a) Represent the highest sales volume type models;

(b) Together, have a capacity between 95 percent and 105 percent of the capacity of the outdoor unit;

(c) Not, individually, have a capacity greater than 50 percent of the capacity of the outdoor unit;

(d) Have a fan speed that is consistent with the manufacturer's specifications; and

(e) All have the same external static pressure.

(C) Representations. In making representations about the energy efficiency of its Airstage variable refrigerant flow multi-split air conditioner and heat pump products, for compliance, marketing, or other purposes, Fujitsu must fairly disclose the results of testing under the DOE test procedure, doing so in a manner consistent with the provisions outlined below:

(i) For Airstage multi-split combinations tested in accordance with this alternate test procedure, Fujitsu must disclose these test results.

(ii) For Airstage multi-split combinations that are not tested, Fujitsu must make a disclosure based on the testing results for the tested combination and which are consistent with either of the two following methods, except that only method (a) may be used, if available:

(a) Representation of non-tested combinations according to an alternative rating method approved by DOE; or

(b) Representation of non-tested combinations at the same energy efficiency level as the tested combination with the same outdoor unit.

(4) This waiver shall remain in effect from the date of issuance of this Order until April 21, 2008, which is the effective date of a DOE final rule prescribing an amended test procedure appropriate to the model series manufactured by Fujitsu listed above. This final rule was published on October 22, 2007 (72 FR 59906).

(5) This waiver is conditioned upon the presumed validity of statements, representations, and documentary materials provided by the petitioner. This waiver may be revoked or modified at any time upon a determination that the factual basis underlying the Petition for Waiver is incorrect, or DOE determines that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics.

Issued in Washington, DC, on November 4, 2007.

Alexander A. Karsner,

Assistant Secretary, Energy Efficiency and Renewable Energy.

Footnotes

1.  Consistent with the statute, distributors, retailers, and private labelers are held to the same standard when making representations regarding the energy efficiency of these products. (42 U.S.C. 6293(c))

2.  The Fujitsu Airstage VRF multi-split product line at issue here involves single-phase equipment for both residential and commercial use. Because there is no DOE test procedure for single-phase, small commercial package air-conditioning and heating equipment, no waiver is required for Fujitsu's single-phase commercial Airstage equipment. Nonetheless, Fujitsu's Airstage VRF multi-split products are properly classified as “consumer products,” because, to a significant extent, they are for personal use or consumption by individuals (given their frequent residential applications). (42 U.S.C. 6291(1)(B)) Thus, the Fujitsu Airstage VRF multi-split products require a waiver from DOE's test procedure for residential central air conditioners and heat pumps, under 10 CFR part 430, subpart B, Appendix M.

3.  10 CFR part 430, subpart B, Appendix M.