[Federal Register Volume 71, Number 82 (Friday, April 28, 2006)]
[Proposed Rules]
[Pages 25103-25117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3319]
[[Page 25103]]
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DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
10 CFR Part 431
[Docket No. EE-RM/TP-99-450]
RIN No. 1904-AB64
Energy Efficiency Program for Commercial and Industrial
Equipment: Efficiency Certification, Compliance, and Enforcement
Requirements for Commercial Heating, Air Conditioning and Water Heating
Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: In a notice of proposed rulemaking published December 13,
1999, (NOPR) the Department of Energy (DOE or the Department) proposed
to adopt (1) energy conservation requirements that the Energy Policy
and Conservation Act, as amended, (EPCA or the Act) specifically
mandated for commercial warm air furnaces, and (2) provisions applying
generally to covered commercial heating, air conditioning and water
heating equipment, including furnaces, (collectively referred to as
``commercial HVAC & WH equipment'') to assure their compliance with
EPCA requirements. On October 21, 2004, DOE adopted a final rule
incorporating the requirements for furnaces but only certain of the
general provisions proposed for commercial HVAC & WH equipment. As to
the latter, the Department did not adopt the NOPR's proposals for
manufacturers to use to determine and certify compliance, and or most
of its enforcement proposals, which remain under consideration. These
include proposals about manufacturers' use of testing and calculation
methods to rate the efficiency of their equipment, the role of
voluntary independent certification programs in assuring the accuracy
of the ratings, and the testing regimen and criteria that DOE would use
in enforcement proceedings, which are the subjects of today's notice.
The Department is now soliciting comments on several additional
proposed options that DOE is now considering for the rule.
In addition, the Energy Policy Act of 2005, Public Law 109-58,
(EPACT 2005) created a new category of covered equipment and set forth
definitions, test procedures, and energy conservation standards for
very large commercial package air conditioning and heating equipment.
The Department has codified the definitions and energy conservation
standards in Title 10, Code of Federal Regulations, Part 431. 70 FR
60407 (October 18, 2005). The Department is applying to that equipment
the proposed compliance and enforcement requirements that are the
subject of this supplemental notice. (The Department notes that the
recent amendments to EPCA set forth in EPACT 2005 do not otherwise
affect the issues raised in today's notice.)
DATES: The Department will accept comments regarding today's proposals
until June 12, 2006.
ADDRESSES: You may submit comments, identified by docket number EE-RM/
TP-99-450 and/or RIN number 1904-AB64, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]. Include
EE-RM/TP-99-450 and/or RIN number 1904-AB64 in the subject line of the
message.
Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy,
Building Technologies Program, Mailstop EE-2J, Reopening Notice for
Efficiency Certification and Enforcement of Air Conditioning and Water
Heating Products, EE-RM/TP-99-450 and/or RIN 1904-AB64, 1000
Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202)
586-2945. Please submit one signed paper original.
Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S.
Department of Energy, Building Technologies Program, Room 1J-018, 1000
Independence Avenue, SW., Washington, DC 20585.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. For detailed instructions on submitting comments and
additional information on the rulemaking process, see section IV of
this document (Submission of Comments).
Docket: For access to the docket to read background documents or
comments received, go to the U.S. Department of Energy, Forrestal
Building, Room 1J-018 (Resource Room of the Building Technologies
Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-
9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal
holidays. Please call Ms. Brenda Edwards-Jones at the above telephone
number for additional information regarding visiting the Resource Room.
Please note: The Department's Freedom of Information Reading Room
(formerly Room 1E-190 at the Forrestal Building) is no longer housing
rulemaking materials. The docket will also be posted to the Federal
Docket Management System through the Federal eRulemaking Portal (http://www.regulations.gov) after the comment period closes. You can also
electronically obtain a copy of this notice and related background
documents from DOE's Building Technologies Program's Web site at the
following URL address: http://www.eere.energy.gov/buildings/appliance_standards/notices_rules.html.
FOR FURTHER INFORMATION CONTACT: James Raba, U.S. Department of Energy,
Office of Energy Efficiency and Renewable Energy, Mail Station, EE-2J,
1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-
8654. E-mail: [email protected]. Thomas DePriest, U.S. Department of
Energy, Office of the General Counsel, GC-72, 1000 Independence Avenue,
SW., Washington, DC 20585, (202) 586-9507, E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
A. Methods for Manufacturers To Follow To Determine Energy
Efficiency Ratings of Their Equipment
1. Background
2. General Standards for Testing by Manufacturers
3. Test Sampling by a VICP Participant
4. Criteria for AEDM Validation and Use of AEDMs
B. Voluntary Industry Certification Programs (VICPs)
1. Background
2. General Standards for Testing by a VICP
3. Determining the Validity of Manufacturers' Efficiency Ratings
4. Manufacturer Challenges of Equipment Ratings
5. VICP Reporting to the Department
C. Enforcement by the Department
1. Enforcement Testing--General
2. Enforcement Testing--Defective Units and Retention of Sample
Units
3. Enforcement of Design Standards
D. Conclusion
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995.
H. Review Under the Treasury and General Government
Appropriations Act, 1999
[[Page 25104]]
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Review Under Section 32 of the Federal Energy Administration
Act of 1974
IV. Submission of Comments
V. Approval of the Office of the Secretary
I. Background
The Energy Policy and Conservation Act (EPCA or the Act) (42 U.S.C.
6311-6316) establishes energy conservation requirements for certain
commercial and industrial equipment. For commercial heating,
ventilating, air conditioning and water heating (HVAC & WH) equipment,
EPCA provides energy conservation standards and authorizes the
Department of Energy (DOE or Department) to amend these standards. (42
U.S.C. 6313(a)) The Act also provides test procedures for this
equipment, and authorizes the Department to amend these test
procedures. (42 U.S.C. 6314(a)) Finally, EPCA authorizes the Secretary
to implement these energy conservation requirements by issuing the
necessary rules requiring manufacturers of covered commercial and
industrial equipment to submit information and reports, and taking
enforcement action. (42 U.S.C. 6316(b))
As indicated in the SUMMARY above, the notice of proposed
rulemaking (NOPR) included proposed rules covering manufacturers'
compliance with energy conservation requirements for all commercial
HVAC and WH equipment and DOE enforcement of these requirements. 64 FR
69598 (December 13, 1999). Specifically, the Department proposed
methods for manufacturers to use to implement the DOE test procedures
to determine the efficiency or energy use ratings of this equipment, 64
FR at 69602-06 and 69612-14, procedures for certifying such ratings to
the Department, 64 FR at 69604, 69614-16, and criteria and procedures
for enforcement actions by the Department for alleged violations of
energy conservation standards, 64 FR at 69605, 69616-18.
On January 27, 2000, DOE convened a public hearing to receive oral
comments on the proposed rule. The Department also received written
statements in advance of the hearing and written comments after the
hearing. These oral comments and written submissions, as well as the
Department's further review of the proposed rule, raised the issues
addressed in today's supplemental notice of proposed rulemaking
(SNOPR). While still considering adoption of the proposals contained in
the NOPR, the Department seeks comment on the alternative language and
options that it is proposing in this SNOPR. The DOE wishes to emphasize
that it will continue to consider for adoption all of the proposals set
forth in the NOPR and the SNOPR.
The Department also notes that the proposed rule language in
today's SNOPR, which would be incorporated into Title 10 Code of
Federal Regulations (10 CFR Part 431), uses subpart designations and
section numbers that correspond to those used in the NOPR. However,
since the issuance of the NOPR, the Department has reorganized and
renumbered the rules in part 431. It did so, first in the final rule
for furnaces and commercial HVAC and WH equipment, referred to above,
69 FR 61916 (October 21, 2004), and more recently in a final rule to
incorporate certain requirements contained in EPACT 2005. 70 FR 60407
(October 18, 2005).
The Department has retained the subpart designation and numbering
approach it used in the NOPR to facilitate stakeholder comparison of
the NOPR proposals with today's proposals. When the Department adopts a
final rule that addresses the issues raised by the NOPR and this SNOPR,
it will base the structure and numbering of the provisions in that rule
on part 431 as it exists at that time. Given the current structure of
part 431, DOE anticipates that it would include provisions as to
compliance determination for commercial HVAC and WH equipment in
subpart J, and for enforcement in subpart U. See 10 CFR Part 431
subparts J and K (2005) and 70 FR at 60416. Today's proposals would not
affect the recent amendments to part 431 that incorporated requirements
contained in EPACT 2005. 70 FR 60407. Rather these proposals would add
to, but not replace or alter, provisions currently in part 431.
Finally, sections 136(a)(3), 136(b)(5), and 136(f)(1) of EPACT 2005
amend sections 340(8), 342(a), and 343(a)(4) respectively, of EPCA, 42
U.S.C. 6311(8), 6313(a), and 6314(a)(4) to add definitions, energy
conservation standards, and test procedures, respectively, for very
large commercial package air-conditioning and heating equipment rated
at or above 240,000 and below 760,000 British thermal units per hour
(Btu/h) cooling capacity. The Department has incorporated the new EPCA
energy conservation standards and definitions under subpart F of 10 CFR
part 431. 70 FR 60415. In particular, the Department inserted a
definition of ``very large commercial package air-conditioning and
heating equipment'' into Sec. 431.92 of 10 CFR part 431. Thus, that
equipment is now included in the equipment covered by this rulemaking.
II. Discussion
A. Methods for Manufacturers To Follow To Determine Energy Efficiency
Ratings of Their Equipment
1. Background
In the NOPR, the Department proposed to require manufacturers to
determine initially the efficiency of each of their types of commercial
HVAC and WH equipment either by testing the equipment \1\ using the
applicable DOE test procedure, or by calculating the efficiency of the
equipment through use of an alternative efficiency determination method
(AEDM). To use an AEDM, a manufacturer would have to establish the
AEDM's validity through the following process: (1) Apply the AEDM to a
limited number of basic models to calculate their efficiency, (2)
measure the efficiency of these same basic models by testing them, and
(3) compare the test results with the calculations. The proposed rule
would allow manufacturers to participate in Voluntary Industry
Certification Programs (VICPs) to help establish the accuracy of
manufacturer efficiency ratings and their compliance with Federal
efficiency standards. Firms participating in VICPs would be subject to
less stringent requirements for test sampling of equipment and for
determining the validity of AEDMs than firms that did not participate
in VICPs.
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\1\ The Department commonly refers to such testing as
``certification testing.'' Under DOE's regulations for consumer
appliances in 10 CFR Part 430, each manufacturer must certify to DOE
the efficiency rating of each of its basic models, and manufacturer
generally derives that rating from testing it performs to determine
initially the model's rating. The Department contemplates adoption
of this same scheme for commercial HVAC and WH equipment.
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2. General Standards for Testing by Manufacturers
Section 431.481(b) of the proposed rule contains general
requirements for certification testing and for testing to validate
AEDMs for commercial HVAC and WH equipment. Paragraph (3) of that
section states that such testing must ``[m]eet industry standards for
the accuracy of testing and of rating results for the equipment being
tested * * *.'' 64 FR at 69612. In its comments, the Gas Appliance
Manufacturers Association (GAMA) asserts that the meaning of the term
``industry standards'' is unclear. (GAMA, No. 3 at 4) \2\
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\2\ A notation in the form ``GAMA, No. 3 at 4'' identifies a
written comment DOE received in this rulemaking after issuance of
the NOPR. This notation refers to a comment (1) by GAMA, (2) in
document number 3 in the docket in this matter, and (3) appearing at
page 4 of document number 3.
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[[Page 25105]]
This provision is designed to require that measurements performed
during testing meet the industry standards for accuracy that exist at
the time a test is performed. Although the term ``industry standards''
may appear vague, DOE believes specific numerical criteria would be
inappropriate in the rule because industry measurement standards can
vary for different test procedures and types of equipment, and over
time. The Department's intent is that ``industry standards'' as it uses
that term in the proposed regulation would be evidenced by sources such
as accuracy requirements in applicable test procedures and in ratings
of measurement equipment, and would require, for example, that
measurements conducted under DOE test procedures be performed using the
laboratory-grade equipment, calibration standards and methods that
represent the ``best practices'' used in the industry. In sum, the
Department would require each manufacturer to perform the testing so as
to minimize measurement uncertainty, in accordance with currently
accepted industry measurement practices.
The Department is proposing a revision to proposed Sec.
431.481(b)(3) that would incorporate these concepts, and that would
make clear that the rule is referring to measurement accuracy. The
revised language DOE is considering would eliminate the reference to
``rating results'' and add the term ``measurement accuracy.'' The DOE
solicits public comment on the alternative proposal that if a
manufacturer tests a basic model to determine its efficiency or to
validate an AEDM, it must meet industry standards for the measurement
accuracy of testing for the equipment being tested including accuracy
requirements in applicable test procedures, accuracy achieved by
laboratory-grade equipment, and the accuracy of calibration standards.
3. Test Sampling by a VICP Participant
In the NOPR the Department proposed in Sec. 431.483 that when a
manufacturer not participating in a VICP tests equipment under the
regulations, it would have to use a test sampling procedure similar to
what DOE requires in 10 CFR Part 430 for consumer appliances. 64 FR at
69613. By contrast, DOE proposed no specific sampling procedure for
testing by VICP participants, and instead proposed that when a
participant tests a basic model it ``must use statistically valid and
accurate methods to arrive at the efficiency rating of such basic
model.'' 64 FR at 69613 (proposed Sec. 431.482(b)). The Department
proposed less stringent requirements for initially establishing the
efficiency of equipment from VICP participants because, unlike the
equipment of non-participants, the efficiency ratings of their
equipment would be subject to verification and other oversight by the
VICP.
The Department continues to believe that VICP participants should
be subject to less stringent test sampling requirements than non-
participants and that they should have substantial discretion to choose
a sampling plan. Nevertheless, upon further consideration DOE believes
the ``statistically valid and accurate methods'' standard for testing
by VICP participants may be too vague. Furthermore, the goal of any
testing to determine a basic model's rating is to give reasonable
assurance that the rating accurately reflects on average the efficiency
of all units sold, and the regulations should require that
manufacturers' testing programs meet this standard. Therefore, the
Department is proposing to revise proposed Sec. 431.482(b) as follows:
A VICP participant that tests a basic model pursuant to this
subpart must use statistically valid and accurate methods to arrive
at the efficiency rating of the tested basic model. Such methods
must give reasonable assurance that the manufacturer's efficiency
rating for a basic model does not exceed the mean energy efficiency
of the population for that basic model.
4. Criteria for AEDM Validation and Use of AEDMs
An AEDM is a method for determining the efficiency of equipment by
means of a calculation, rather than by testing the equipment. In the
NOPR, the Department proposed in Sec. 431.481(a) to allow each
manufacturer to determine the efficiency of each of its commercial HVAC
and WH basic models either by testing the model or by using an
appropriate AEDM. 64 FR at 69612. A manufacturer could use an AEDM that
met certain general criteria and had been validated (i.e., the
manufacturer had established its accuracy). 64 FR at 69612-13.
Validation of an AEDM by a manufacturer not participating in a VICP
would be based on comparing the efficiency ratings derived from testing
three or more basic models with the efficiency ratings derived from
applying the AEDM to those same basic models. A VICP participant would
have to make such a comparison for one or more basic models. When a
manufacturer made the comparison for two or more basic models, the
proposed rule would permit use of the AEDM only if the average
efficiency rating, derived from applying the AEDM to these basic
models, is within one percent of the average rating derived from
testing them, and if the AEDM and testing results are within five
percent of each other for each of the basic models. (See proposed
Sec. Sec. 431.482(c) and 431.483(b), 64 FR at 69613.) For VICP
participants who made the comparison for only one basic model, the
Department proposed that the difference between the AEDM and test
results must be within one percent for the AEDM to be valid. (See
proposed Sec. 431.482(c), 64 FR at 69613.)
In its comments, the California Energy Commission (CEC) objects to
the five-percent provision. It appears to assert that DOE should not
permit use of an AEDM unless the AEDM produces the same results as
testing. The CEC also claims that the proposed AEDM provisions would
allow use of an AEDM to rate each basic model at a level up to five
percent higher than test results for that model would warrant, and that
this would unfairly penalize manufacturers who base their ratings on
physical testing, which CEC asserts is the preferred method. (CEC, No.
7 at 8)
The Department believes that some of CEC's concerns may have merit,
and, upon further consideration, also has other concerns about the
proposed provisions for validating AEDMs. First, as stated above, the
proposed rule would permit VICP participants to validate an AEDM by
comparing AEDM and test results for only one basic model. The
Department now questions whether such a limited comparison provides a
sufficient basis for concluding that an AEDM is accurate.
Second, the Department is concerned about the possibility that use
of AEDMs under the proposed rule could result in overrating equipment.
The five-percent criterion provides that when a manufacturer validates
an AEDM by applying it to more than one basic model, it must predict an
efficiency for each that is within plus or minus 5 percent of the test
results for that model. This means that the proposal would allow an
AEDM to have a range of uncertainty of 10 percent, and a built-in
potential for overrating and under-rating of five percent each. This
may allow too great a potential for overrating, and may also raise
questions about the accuracy of ratings. The proposed tolerances for
validating AEDMs, coupled with the lack of limitations on the basic
models that manufacturers can use for such validation, also may create
potential for abuses in using AEDMs. A manufacturer
[[Page 25106]]
could, for example, validate an AEDM based on comparison of AEDM
results and test results for a group of basic models that consists of a
high-selling model for which the AEDM produces a rating five percent
above results from testing, and low-selling basic models,
unrepresentative of those generally sold by the manufacturer, that the
AEDM under-rates by off-setting amounts. As the CEC indicates, in such
a situation the proposed rule would not preclude the manufacturer from
using the AEDM result to rate the high-selling basic model at a level
five percent above the level of the test results for that basic model.
In addition, the manufacturer's use of the AEDM to calculate the
efficiency of other relatively high-selling basic models could result
in their being overrated as well. Such overrating could cause
substantial sales in violation of Federal energy conservation
standards, and result in substantially more energy use than the
standards contemplate.
No evidence presented thus far in this proceeding contradicts the
Department's reason for proposing to allow AEDMs, namely that the
potentially large number of basic models for commercial equipment
warrants use of AEDMs to mitigate the test burden on manufacturers. 64
FR at 69604. Thus, the Department is not inclined to require, as CEC
suggested, that AEDMs always produce the same results as testing. This
would virtually eliminate their use, since it is extremely difficult to
develop an analytical model which has that degree of accuracy.
The DOE is considering, however, adoption of alternatives to some
of the proposed provisions concerning AEDMs in order to address the
other issues that CEC raised and the concerns discussed above that the
Department now has about these provisions. Several of these
alternatives concern the requirements for validating AEDMs and are
designed to address concerns about accuracy in the initial ratings of
covered equipment. The use of an AEDM to determine the energy
efficiency of a basic model of covered equipment is already one step
removed from an actual measurement of that equipment, and it is
essential that the AEDM produce a reliable result.
First, the Department is considering a requirement that VICP
participants validate their AEDMs by comparing test results and AEDM
results for three or more basic models, as the NOPR proposed for non-
participants. This is an alternative to the proposal that VICP
participants validate their AEDMs by comparing results for one or more
basic models. Mathematical or computer-based simulations, such as
AEDMs, are most reliable when validated over a range of conditions,
rather than for one condition. When a manufacturer validates an AEDM
for only one basic model, applying the AEDM to other models is an
extrapolation of that single basic model, with an uncertain
reliability. By contrast, validation of an AEDM by reference to three
basic models would encompass a range of conditions, and establish its
accuracy over a wider range of variables. This would help ensure that
each AEDM accurately reflects variations among the basic models it
covers. Three validation points is also the minimum number needed to
establish or verify a simulation that reflects a non-linear correlation
among variables. This is the most common correlation among variables,
including those that affect the efficiency of equipment. In sum,
requiring VICP participants to validate AEDMs using three basic models
rather than one should permit more accurate verification of their
AEDMs, should improve the accuracy of their AEDM results, and would
still limit the testing burden because DOE would not be requiring
testing for many basic models. Although verification testing would
provide an incentive to VICP participants to use accurate AEDMs, this
incentive might not offset the risk that use of AEDMs validated by
reference to a single point would result in inaccurate initial
equipment ratings. Finally, given the greater risk of inaccurate
ratings from use of a single validation point, the Department believes
it may be unreasonable to allow VICP participants to use only one
validation point while requiring non-participants to use at least
three.
Second, the Department is considering a requirement that, for any
basic model used to validate an AEDM, the predicted efficiency
calculated from applying the AEDM must be within two percent of the
test results for that basic model, instead of five percent as proposed
in the NOPR. Adoption of today's proposal would mean that an AEDM could
have a range of error of no more than four percent, and a potential for
overrating of two percent. For ratings derived from testing, the
Department is proposing that the rating must either have approximately
a 95-percent degree of confidence (for non-VICP participants) \3\ or be
generated by methods that give reasonable assurance that it does not
exceed the mean for the population of the equipment (for VICP
participants). Given these requirements, the NOPR proposal to allow an
AEDM to have an error of five percent for the validation points could
provide too much potential for an AEDM to produce erroneous results. To
reduce this possibility, the AEDM should be as accurate as practicable
for the validation points. A tolerance band of 2 percent
appears sufficient to allow for a reasonable amount of measurement
uncertainty and modeling error.
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\3\ This confidence limit requirement would not permit a
manufacturer to rate any equipment at a higher efficiency or lower
energy use than the mean of test measurements for that equipment.
The requirement would not, for example, provide a five-percent
``tolerance'' that would allow a model to be rated five percent
above test results. Rather the requirement that a rating be at or
above the 95-percent confidence limit is a statistical test as to
the accuracy of a rating, and would sometimes require a manufacturer
to rate equipment below the level of the mean of the test sample.
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Third, DOE is considering a requirement that the basic models a
manufacturer uses to validate an AEDM must be the manufacturer's
highest-selling basic models to which the AEDM could apply. Such a
requirement would reduce the likelihood that a manufacturer could
validate an AEDM using low-sales-volume equipment and then apply it to
high-sales-volume equipment, and would prevent a manufacturer from
meeting the validation requirements for average accuracy by overrating
a high-selling basic model and under-rating of one or more low-selling
models. It would also give greater assurance that each manufacturer's
AEDM(s) would represent the characteristics of equipment it commonly
sells.[FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][PRORULES][PRORULE][PREAMB][AGENCY]*[/AGENCY][SUBJECT]*[/
SUBJECT][/PREAMB][SUPLINF][HED]*[/HED]
Fourth, DOE is considering the option of requiring that a
manufacturer, for any basic model it tests in order to validate an
AEDM, rate the efficiency of that basic model using the test results
(not AEDM results). This would preclude a manufacturer from using an
AEDM to rate equipment at a higher level than the validation test
results permit. The proposed rule was not intended to give a
manufacturer a choice between using existing AEDM and test results.
Rather, the purpose of allowing use of an AEDM to calculate efficiency
is to relieve the undue burdens DOE understood would result from a
requirement that manufacturers do efficiency testing on every basic
model of commercial HVAC and WH equipment. Thus, there is no
justification for permitting a manufacturer to use an AEDM to rate a
basic model for which it has already determined the efficiency rating
through testing.
This requirement, in combination with the requirements the
Department is considering that all manufacturers use at least three
basic models to validate each of their AEDMs, and use the highest-
selling basic models to which
[[Page 25107]]
the AEDM could apply, would have the effect of requiring that a
manufacturer rate its three highest-selling basic models based on
testing rather than use of AEDMs. This would help ensure more accurate
ratings for the high-selling models. Requiring a manufacturer to rate
only the highest-selling basic models based on testing would still
allow the intended benefit from the use of AEDMs because lower-selling
basic models are relatively numerous, and therefore represent a
substantial testing burden.
Fifth, because the Department is also concerned about the general
potential for manipulating AEDMs to overrate equipment, DOE is
considering the addition of general language to its regulations to
prohibit a manufacturer from knowingly using an AEDM to overrate the
efficiency of a basic model. For example, this provision would preclude
a manufacturer from using an AEDM, after a basic model has been tested,
to create a higher rating than is warranted by the test results.
The Department is proposing several changes to the regulation
language in the NOPR, to implement the foregoing five proposals. As
presented in this SNOPR, DOE proposes to include a new Sec. 431.481(c)
and deletion of proposed Sec. Sec. 431.482(c) and 431.483(b)(1). The
new paragraph would require a manufacturer that uses an AEDM under this
subpart to validate it as follows: (i) Using the AEDM, the manufacturer
must calculate the efficiency of three or more of its basic models,
which must be the manufacturer's highest-selling basic models to which
the AEDM apply; (ii) the manufacturer must test each of these basic
models in accordance with Sec. 431.481(b) of this subpart, and either
Sec. 431.482(b) or 431.483(a), whichever is applicable; and (iii) the
predicted efficiency calculated for each such basic model from
application of the AEDM must be within two percent of the efficiency
determined from testing that basic model, and the average of the
predicted efficiencies calculated for the tested basic models must be
within one percent of the average of the efficiencies determined from
testing these basic models.
The DOE also proposes to add language to proposed Sec. 431.481(a)
to provide that a manufacturer must determine and rate the efficiency
of a basic model from test results if it has tested that basic model to
validate an AEDM. In addition, DOE would add a new paragraph (4) to
Sec. 431.481(c) that would prohibit a manufacturer from knowingly
using an AEDM to overrate the efficiency of a basic model.
The Department is also considering, and requests comment on, a
number of other alternatives to the NOPR's proposals on AEDMs. With
regard to validation of an AEDM, the Department is concerned about
whether the permissible deviations it is considering between test
results and AEDM results are at the proper levels. In addition to
considering the allowance of a two-percent deviation for any single
basic model used to validate an AEDM, as set forth above, and five
percent as proposed in the NOPR, the Department is also considering
whether some level between those figures is more appropriate. The DOE
also is concerned that these levels and the one-percent average
deviation for all basic models used to validate an AEDM, may be too
generous and may underestimate the levels of accuracy an AEDM can
achieve. Therefore, DOE is also considering adoption of an average
permissible deviation between test and AEDM results of 0.5 percent,
instead of the one percent proposed in the NOPR, with a maximum
permissible deviation of one percent for any given basic model.
With regard to the proposal to prohibit a manufacturer from
knowingly using an AEDM to overrate equipment, the Department is
concerned that other ways may exist in which a manufacturer seeking to
evade energy conservation requirements under EPCA could misuse an AEDM.
For example, a manufacturer might use an AEDM that provides accurate
ratings for the models used for validation, but overrates other models.
Thus, as an alternative to the proposed general language to prohibit
use of an AEDM to overrate equipment, the Department is considering
broader language that would prohibit ``using an AEDM to circumvent
applicable requirements.''
As previously stated, the effect of certain alternative options
described in this notice would be to require each manufacturer to
determine from testing the efficiency ratings of at least its three
highest-selling basic models. The Department is concerned that such a
requirement might be viewed as arbitrary, since it would apply to each
manufacturer regardless of its size and the number of basic models it
produces. The Department's reason for proposing to allow use of AEDMs--
to reduce the testing burden on manufacturers that produce numerous
basic models of commercial HVAC and WH equipment--cuts two ways in this
respect. First, it could support requiring each manufacturer to perform
a uniform, minimum amount of testing, and as a result allowing
manufacturers of large numbers of basic models to use AEDMs to rate a
larger proportion and number of their models. But second, it could also
support requiring each manufacturer to test the same proportion of its
basic models, with manufacturers of large numbers of basic models
testing more models than manufacturers of fewer basic models. This
would still reduce the test burden of manufacturers of larger numbers
of models far below what it would be if DOE prohibited use of AEDMs.
Moreover, it might be unreasonable for the Department to require in
effect that the three highest-selling basic models be tested, for
example, by both a firm for which those basic models constitute forty
percent of production and a firm for which they are ten percent of
production. For these reasons, DOE is also considering adoption of one
or more of the following approaches for a manufacturer to follow in
testing its highest selling basic models: (1) A manufacturer would
determine from testing the ratings for some minimum proportion of its
total number of basic models, (2) a manufacturer would determine from
testing the ratings of basic models that account for some minimum
proportion of its sales, or (3) a manufacturer would determine from
testing the rating of each basic model that exceeds a certain
percentage of its overall sales. For any of these approaches it adopts,
the Department would specify the applicable proportion or percentage in
the final rule. The Department is undecided as to what these figures
would be, but is considering a proportion in the range of one-third to
two-thirds and 15 to 40 percent for the first and second approaches,
respectively, and three to ten percent for the third. The Department
specifically requests comment on this issue.
B. Voluntary Industry Certification Programs (VICPs)
1. Background
As discussed in more detail in the NOPR, the VICP is a voluntary
program (usually run by a trade association) that collects,
disseminates and verifies information as to the performance of one or
more types of equipment. 64 FR at 69603. The Department proposed that
manufacturers could participate in DOE-approved VICPs to help assure
that the manufacturers' efficiency ratings are accurate and comply with
applicable requirements. The DOE also proposed the features that a VICP
would need to have in order to receive DOE approval. The program would
have to include, for example, collection and dissemination
[[Page 25108]]
of efficiency ratings for each basic model of equipment, periodic
testing of each basic model to determine the accuracy of the
manufacturer's efficiency rating for the model, action when a
manufacturer's rating was inconsistent with the test results, and
reporting of certain information to DOE. The NOPR also addressed how
the organization operating a VICP could obtain DOE approval of the VICP
and the duration of that approval.
Sections B.2. through B.5., which follow, concern elements that the
organization operating the VICP would have to include in the VICP in
order to receive approval for the VICP from DOE. Section B.5. also
addresses the proposed requirement that the organization operating an
approved VICP must report changes in its program to the Department.
2. General Standards for Testing by a VICP
The NOPR proposed that verification testing under the VICP meet
``industry standards for the accuracy * * * of rating results.'' 64 FR
at 69613. A similar provision applicable to manufacturer testing, is
discussed in section II.A.2. above. The GAMA indicated that DOE should
explain what is meant by ``industry standards'' in this context. (GAMA,
No. 3 at 6) For the reasons discussed in section II.A.2, the Department
is proposing adoption in the final rule of language on VICP observance
of industry standards in verification testing that is virtually
identical to the revised language it is considering for manufacturer
testing. That language, which would replace proposed section
431.484(a)(8), is as follows:
The program's verification testing meets industry standards for the
measurement accuracy of testing for the equipment being tested. This
includes accuracy requirements in applicable test procedures, accuracy
achieved by laboratory-grade equipment, and the accuracy of calibration
standards.
3. Determining the Validity of Manufacturers' Efficiency Ratings
Section 431.484 of the proposed rule would require a VICP to have
``an appropriate standard'' for determining whether a manufacturer's
claimed efficiency rating for a product is valid. 64 FR at 69613. This
provision concerns two facets of verification of manufacturers' ratings
under a VICP. First, it applies to the method (such as a sampling plan)
by which the organization operating the VICP determines a basic model's
efficiency from the verification testing it has conducted. Second, it
applies to the criteria (such as tolerances) that the organization
operating the VICP uses when it compares the manufacturer's rating for
a basic model to the efficiency that the organization has determined
under the VICP, to decide whether the manufacturer's rating is valid.
The provision requires the use of methods and criteria that are
sufficiently rigorous so as to give reasonable assurance that any
rating the organization finds valid under the VICP would, on average,
apply to all units of the model. The Department is concerned that an
``appropriate standard'' test for determining the validity of
manufacturers' ratings may be overly vague, and that organizations
seeking approval from DOE of VICPs under the regulations might not
understand that these concepts are implicit in the rule and might
submit inadequate programs to DOE.
The Department also expressed concern in the NOPR that
manufacturers, knowing the criteria used under the VICP to verify the
accuracy of their efficiency ratings, might systematically overrate
their equipment. 64 FR at 69605-06. Typically, the organizations
operating the VICPs currently test one or at most two units when doing
verification testing of a basic model under a VICP. If the efficiency
measured from the single unit, or from the average of the two units, is
within a set percent (such as five percent) of the manufacturer's
rating for the basic model, the organization operating the VICP accepts
the manufacturer's rating as valid. To address the possibility that
manufacturers participating in a VICP might systematically overrate
equipment by five percent or slightly less, so as to be able to pass
verification testing while claiming a higher rating than is warranted,
the Department proposed to require the organizations operating the
VICPs to submit to the Department annually summary data on verification
test results under the VICP and the ratings of tested models. The
Department could then take action with respect to a particular VICP if
it appeared that systematic overrating of equipment covered by that
VICP had occurred. The Department is concerned that this approach might
address any overrating only prospectively and might be insufficient to
deter VICP participants from overrating their equipment.
To address these concerns, the Department is considering two
additions to the proposed rule. First, it is considering additional
language to clarify what would constitute an ``appropriate standard''
under a VICP for determining the validity of manufacturers' efficiency
ratings. Second, DOE is considering the option of adding criteria for
DOE approval of any VICP that would find a manufacturer's rating for a
basic model valid when the verification test results are within a given
percentage of the rating. These criteria would require that the VICP
include the specific percentage(s) used, that the size of each
percentage relate to the equipment to which it applies, and that the
organization operating the VICP revise its program if, during any
calendar year, it finds valid manufacturer ratings that average more
than one percent above the verification test results under the VICP.
Therefore, the Department is proposing substitute language for
proposed Sec. 431.484(a)(9) of the NOPR. The DOE solicits public
comment on this alternative proposed language.
The Department is also considering, and seeks comment on, other
options to assure that VICPs operate under appropriate standards for
determining whether manufacturers' efficiency ratings are valid. For
the efficiency figure from verification testing of a basic model under
the VICP, DOE is considering a requirement that such figure must be
valid at the 95-percent confidence limit, or at some other fixed
confidence limit based on the inherent manufacturing variability or
measurement uncertainty for the equipment in question. If the
manufacturer's rating were higher than that, the organization operating
the VICP would have to find the rating invalid. (This is the same
approach that would apply to testing by non-VICP participants.) For
comparison under the VICP of the performance from verification testing
with the manufacturer's rating of a basic model, the Department is also
considering a requirement that, where the measurement under the VICP is
below the manufacturer's rating (or above for an energy use rating),
the organization operating the VICP must require the manufacturer to
justify its rating. Absent a satisfactory justification, the
manufacturer's rating would be invalid under the VICP. A satisfactory
justification would have to be based on other measurements of the
model's efficiency, to show either or both of the following: (1) The
manufacturer's rating is valid at the 95-percent confidence limit, or
at some other fixed confidence limit based on the inherent
manufacturing variability or measurement uncertainty for the equipment
in question (this would be
[[Page 25109]]
the same approach applicable to testing by non-VICP participants); (2)
the verification test results fall within the lesser of two standard
deviations or 95 percent of the manufacturer's rating.
The Department is considering the types of verification
requirements described in the previous paragraph for several reasons.
First, they might provide greater assurance than is provided by the
proposals in the NOPR, or above in this notice, that organizations
operating VICPs would use rigorous standards to verify manufacturer
ratings. Second, although certification testing requirements for VICP
participants would still be less stringent than for non-participants,
such requirements might ensure that participants and non-participants
would be subjected to the same type of standard. And finally, these
proposals would provide clearer criteria for DOE to use in its
determination of whether to approve a VICP.
4. Manufacturer Challenges of Equipment Ratings
The CEC suggested that the Department add as a condition of its
approval that each VICP include a provision allowing a manufacturer to
challenge ratings by other manufacturers. (CEC, No. 7 at 6). It is
DOE's understanding that, as stated by CEC, the existing program of the
Air-Conditioning & Refrigeration Institute (ARI) has long allowed for
such challenges. The possibility of such challenges may deter
overstatement of efficiency ratings, and therefore the Department is
proposing to add to the final rule the following conditions set forth
in proposed Sec. 431.484(a) for DOE approval of a VICP:
The program contains provisions under which each participating
manufacturer can challenge ratings submitted by other manufacturers,
which it believes to be in error.
5. VICP Reporting to the Department
As indicated above, in the NOPR the Department proposed that each
organization operating a VICP would have to report to DOE annually on
verification testing results under the VICP. Another proposed condition
of DOE approval of a VICP is that each basic model covered by a VICP be
tested under the program at least once every five years. To enable the
DOE to monitor compliance with this latter requirement, the Department
is considering, and seeks comment on, a requirement that each
organization operating a VICP report to DOE annually the model numbers,
organized by type of equipment and manufacturer, covered by the basic
models it has tested during the previous twelve months.
Addressing the duration of DOE's approval of VICPs, proposed Sec.
431.484(b) provides as follows:
Approval will remain in force for five years, unless material
changes occur in the program. In the event of changes, the VICP must
promptly notify the Department, which may then rescind or continue
the approval.
The Department designed the second of these sentences to require
the organization operating any DOE-approved VICP to ``notify the
Department'' immediately whenever the organization made any changes in
its program, so as to allow the Department to evaluate the changes and
to rescind approval of the program if such changes were material.
Because the word ``promptly'' might be considered vague, and given the
obvious importance to DOE of immediate receipt of information as to any
changes in an approved VICP, the Department is proposing inclusion of
the following sentence in the final rule, in place of the second
sentence just quoted:
If the organization operating an approved VICP makes any changes
in its program, the organization must notify the Department of such
changes within 30 days of their occurrence, and the Department may
then rescind or continue its approval.
C. Enforcement by the Department
1. Enforcement Testing--General
Although most of the NOPR's proposed enforcement provisions are
very similar to those currently in 10 CFR parts 430 and 431 (for
consumer appliances and electric motors, respectively), the proposals
for enforcement testing of commercial HVAC and WH equipment deviate in
a few significant respects from the enforcement testing provisions now
in those parts. The Department proposed in the NOPR to test initially
two units of a basic model to determine its compliance with the
applicable energy conservation standard, except that under certain
circumstances DOE would test one unit. 64 FR at 69616. The proposed
rule also provides that DOE would find the model to be in compliance if
the average result for the two tested units (or the result from testing
a single unit) is 95 percent or more of the applicable efficiency
standard, or 105 percent or less of an energy use standard. 64 FR at
69617. If the test results are outside the five-percent tolerance, and
would thereby result in a determination of non-compliance, a
manufacturer could elect to have DOE test one or two more units. The
Department would then determine whether the model was in compliance by
averaging the results from both rounds of testing, and then applying
the five-percent criterion. By contrast, parts 430 and 431 contemplate
an initial round of enforcement testing of a minimum of four or five
units, and a maximum of 20, as well as application of sophisticated
statistical tests to determine whether the test results establish that
the basic model is out of compliance.
In their comments, CEC and the Oregon Office of Energy (OOE) assert
that the proposed five-percent criterion provides insufficient
assurance of compliance, stating that it would allow a model to be
found in compliance even if each sample unit tested at a level below
the minimum standard. (CEC, No. 7 at 6-7 and 8-9, Tr.\4\ 139, 140-41;
OOE, Tr. 138, 141, 144) Upon further review of the proposed provisions
for enforcementp testing, DOE believes this concern has substantial
merit. In addition, by allowing a basic model to pass so long as the
test results were no more than five percent below the standard, this
provision appears to be considerably more lenient than part 430,
particularly in instances where the spread in test results is small.
The proposed methodology and much smaller sample sizes might also
provide much less accurate results and a greater possibility of errors
than the methodology in part 430.
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\4\ ``Tr.'' followed by a number or numbers, refers to a page or
pages in the transcript of the January 2000 hearing.
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The CEC and OOE seem to be advocating that the Department revise
the enforcement testing proposal to provide that a basic model would be
found in compliance only if the mean of the model's enforcement testing
results meets or exceeds the applicable standard. The Department is not
inclined to adopt this approach because it could create too great a
risk of erroneously finding a manufacturer out of compliance. As long
as the mean of all units of a basic model (the ``population'') met or
exceeded the minimum standard, the basic model would be in compliance
with the regulations. From a statistical standpoint, for any given
basic model with a normal distribution of performance, half of the
units produced will perform better than the mean for the population of
all units and half will perform worse. Thus, if the mean performance of
the population were at the standard level, the basic model would be in
compliance but half of its units would be expected to perform above the
standard and half below, and
[[Page 25110]]
there would be a 50-percent chance that the mean of a test sample would
be below the standard. If the DOE's enforcement rules were to provide
that a basic model would be found in compliance only if the mean
performance of the test sample was at or above the applicable standard,
the Department would have a 50-percent chance of finding equipment out
of compliance even if the mean of its entire population meets the
standard. The Department is reluctant to adopt rules that would entail
such a large risk of an incorrect decision of noncompliance, since such
a decision would require a manufacturer to discontinue distribution of
the equipment and subject the manufacturer to other remedial actions
and penalties.
The Department did not incorporate part 430's enforcement testing
provisions into the proposed rule because of the significant
differences between consumer products and commercial equipment. Each
manufacturer of a consumer appliance tends to produce a relatively
small number of basic models, each in a relatively large quantity. The
size of the product, as well as the cost of each unit, tend to be lower
than commercial equipment. At any time, a sufficient number of units of
any residential equipment model will likely be available to allow
sample sizes to be large. Thus, part 430 uses a statistical method that
is more rigorous than would be possible with smaller sample sizes.
Specifically, the method of part 430 is based on a double sample, with
a maximum sample size of 20 units. The size of the combined sample
provides a 95-percent confidence level in the accuracy of the sample
mean. Under this method, the Department computes an efficiency level
that constitutes a lower control limit. This level is based on the
applicable standard, the test sample measurements, and the variance
among these measurements, but can be no lower than five percent below
the standard. As long as the sample mean is at least equal to the lower
control limit, DOE considers the basic model to be in compliance.
This approach helps to avoid false negative determinations (i.e.
erroneously finding a basic model out of compliance). By allowing a
finding of compliance in some instances where the sample mean of a
basic model is slightly lower than the standard, it takes into account
situations where the sample mean may be below the standard even though
the population of the product is not. On the other hand, the rigorous
statistical basis for the enforcement determination promotes accurate
ratings by manufacturers, and provides some control of overrating. This
is because the enforcement methodology creates a substantial risk for a
manufacturer of a finding of non-compliance where it produces a basic
model that clearly fails to meet the applicable standard.
On the other hand, it is the Department's understanding that each
manufacturer of commercial HVAC and WH equipment tends to produce a
large range of models, many of which it produces in small quantities.
Purchasers often select a model from a catalog to suit a specific
application, and some models are manufactured only on order. Commercial
equipment is more costly in general, and may also be quite large in
size. Although not all of these factors apply to every model of
commercial HVAC and WH equipment, the enforcement regulations need to
take these market characteristics into account. Thus, sample sizes of
up to 20 units, as provided in part 430, would generally be prohibitive
for commercial HVAC and WH equipment, and enforcement testing
provisions for this equipment must accommodate a sample size as small
as one. The NOPR proposals to test initially two units and to find a
basic model of equipment in compliance if test results were within five
percent of the applicable standard, were a response to these concerns.
But for the reasons stated above, the Department is now reconsidering
whether these proposals are the best approach for addressing the
characteristics of commercial equipment.
As an alternative to these proposals, the Department is now
considering for commercial HVAC and WH equipment an enforcement testing
approach resembling that in part 430. This approach would approximate
the statistical method used there, using smaller sample sizes. Compared
to the NOPR proposal, the sample sizes would generally be larger, DOE
would do more tests, and the pass/fail criterion would be more
stringent. The Department believes this approach would provide more
accurate results than the proposed method, and reduce the possibility
that DOE might erroneously find a basic model to be in or out of
compliance. It would serve the goals of providing a fair and accurate
determination of the energy efficiency (or use) of the model being
tested, and of fairly balancing the manufacturer's risk of being
falsely found to be non-compliant with the risk to the consumer of a
false finding of compliance. As with the NOPR's proposal, the sample
sizes would be consistent with the constraints imposed by the volume
and nature of commercial HVAC and WH equipment. Thus, the Department's
new approach would serve the goals of being neither unduly burdensome
nor excessively time-consuming or expensive to conduct.
The specifics of the approach the Department is now proposing are
as follows. First, DOE would generally test four units of a basic
model, but would test fewer if only a lesser number were available or
if testing of such lesser number were otherwise warranted. (The
circumstances under which DOE would test fewer than four units are
discussed below.) If DOE were to test three or four units, it would
test each unit once; if it tested two units it would test each twice;
and if it tested one unit it would test that unit four times. Second,
DOE would compute the mean of the test results, as provided in the
NOPR, but would also calculate a lower control limit. The lower control
limit would be the greater of either: (1) 97.5 percent of the
applicable energy efficiency standard, or (2) the applicable energy
efficiency standard minus the product of the sample standard error and
the t-value for a 97.5-percent, one-sided confidence limit. The sample
standard error would be the same as in part 430 (Appendix A to subpart
F, steps 3 and 4). (For an energy use standard, DOE would calculate an
upper control limit, which would be the lesser of either 102.5 percent
of the applicable standard, or the standard plus the product of the
sample standard error and the t-value for a 102.5-percent, one-sided
confidence limit.) Third, a basic model would be in compliance only if
the mean measurement for the sample meets or exceeds the lower control
limit in the case of an efficiency standard or is less than or equal to
the upper control limit in the case of an energy use standard.
From the standpoint of statistical accuracy, testing more units of
a basic model and conducting multiple tests on each model would provide
greater accuracy and less chance of making an error in a compliance
determination. Concerns over the testing burden and availability of
test units, however, limit the number of tests that DOE can reasonably
require for commercial equipment. Thus, some compromise must be
reached. A test sample size of four units would at least allow the
statistical calculations to provide the basis for evaluating confidence
limits, and would equal the minimum sample size in part 430. In cases
where four units are not available, testing three would still allow
confidence limits to be determined, as would making multiple
measurements of one or two units. Multiple measurements of a single
unit
[[Page 25111]]
would not incorporate the effects of equipment variability, but would
help account for the effects of measurement uncertainty. The
determination of a control limit based on confidence limits would allow
for some tolerance to avoid falsely finding a basic model to be out of
compliance, but still encourage manufacturers to accurately rate their
equipment.
The Department believes that using 97.5- and 102.5-percent, one-
sided confidence limits, and allowing the mean of the enforcement test
sample to be a maximum of 2.5 percent below the applicable standard,
would provide sufficient tolerances to reflect the normal manufacturing
and measurement variability that might affect sample units for the
equipment involved here. The ARI and GAMA operate VICPs to verify
manufacturer efficiency ratings of residential and commercial air
conditioning equipment and water heaters, respectively. The ARI finds a
rating valid if it is no more than five percent above the results of a
single verification test ARI performs, or above the average of two
tests if the first test result is more than five percent below the
rating. The GAMA uses the same approach, but with an allowed deviation
of two percent for commercial equipment and 3.5 percent for residential
products. In addition, under today's proposal, the initial round of DOE
enforcement testing would typically involve four units, or three or
four tests, and, as discussed below, several more tests could result
from manufacturer option testing. Because this approach involves more
than the one or two tests performed by ARI and GAMA, it would involve
much less risk that the sample test results will be below the mean of
the population. For these reasons, DOE believes that although the five-
percent figure proposed in the NOPR for enforcement tolerances is
appropriate in the context of part 430's methodology for consumer
products, for the equipment here and for the methodology DOE is now
considering a 2.5-percent tolerance seems reasonable. Moreover, use of
the 2.5-percent figure rather than five percent would create less of an
incentive for manufacturers to produce equipment with high variability
in order to obtain a greater tolerance during enforcement testing.
Nevertheless, DOE encourages interested parties to provide to the
Department, in response to this notice, any data they have that
indicates a tolerance other than 2.5 percent might be warranted for any
or all of the equipment involved in this proceeding.
As indicated, the above-described approach for enforcement testing
would allow the number of units tested to vary depending on the
circumstances. The same is true to some extent of the proposal in the
NOPR, which provides that DOE would initially test two units of a basic
model to determine its compliance, except in two situations. First, the
Department proposed to test only one unit, and base the compliance
determination on that test, if that is the only unit available for
testing. Second, if a basic model is very large or has unusual testing
requirements, DOE proposed to allow itself the discretion to test only
one unit upon a manufacturer's request supported by sufficient
justification. 64 FR at 69616. The GAMA advocated expansion of the
second exception to include situations where a manufacturer
demonstrates limited availability of a basic model because it has a low
sales volume or is produced only for special orders. (GAMA, No. 3 at 8,
Tr. 120)
The GAMA's concern would seem to be covered by the first exception,
which would address any situation, including low sales volume or
limited production of a basic model, that results in only one or a few
units being available for testing. But it appears to the Department at
this point that in the context of both the NOPR proposal to generally
test two units and the option described above to generally test four,
the testing of fewer units probably should not be limited to the
circumstances described in the NOPR (limited availability of units, or
the large size or unusual testing requirements for a basic model).
Other circumstances could make it impractical to test the specified
number of units. The Department is inclined to the view that, whenever
such circumstances occur, the rule should permit a manufacturer of
commercial HVAC and WH equipment to request and justify, and permit DOE
the discretion to allow, testing of fewer than the specified number of
units during enforcement testing. The Department is incorporating this
approach into the option for enforcement testing on which it seeks
comment today, and would also incorporate it into the final rule even
if it were to adopt the NOPR proposal to generally require the testing
of two units.
In addition, the NOPR would require the Department to test one unit
where only one is available at the time of the test notice. As
indicated above, DOE is considering a provision that would increase its
discretion to test fewer than the number of units specified in the rule
when warranted by the limited availability of units or other reasons.
Similarly, the Department is now also considering a provision that
would give DOE the discretion, when fewer than the specified number are
initially available, to conduct enforcement testing over a period of
time as more units become available. Specifically, where fewer than the
specified number are available at the time of the test notice, but one
or more additional units are expected to become available within the
next six months, this provision would allow DOE to test either: (1)
Only the initially available unit(s), (2) those unit(s) and
subsequently available unit(s), or (3) only units that subsequently
become available. Once again, the Department is incorporating this
approach into the enforcement testing option on which it seeks comment
today, but would also incorporate it into the final rule even if it
adopts the NOPR proposal to generally require the testing of two units.
Finally, as stated above, the NOPR provides that where enforcement
testing results in a determination of non-compliance, DOE would test
one or two more units if the manufacturer so requests. The Department
would then determine compliance by averaging the results from both
rounds of testing, applying the 2.5-percent criterion. In conjunction
with DOE's consideration of an increase in the initial-test-sample
size, generally to four units, the Department is also considering
allowing a manufacturer to request testing of up to six additional
units following a determination of non-compliance from the initial
round of testing. The reason for permitting such additional testing
follows the same logic given above, namely that it would provide for
greater accuracy in estimating the population mean, and less chance of
making an incorrect determination of compliance or non-compliance. The
limit of ten total test units ensures a conclusion to the enforcement
process, while still allowing a manufacturer to have DOE do additional
testing to prove compliance. During the additional testing, each unit
would be tested the same number of times as units were tested during
the round of testing that resulted in the non-compliance determination.
This would enable the results from the two rounds of testing to be
treated on an equal basis. The two sets of results would be combined to
determine an overall (combined) sample mean, standard deviation, and
control limit. The control limit would be compared to the overall
sample mean, in the same manner as with the initial test sample, to
determine compliance.
This approach is similar to the approach in part 430 for additional
testing at the election of a manufacturer.
[[Page 25112]]
In conjunction with consideration both of this approach and of the NOPR
proposals for such testing, the Department also is considering adoption
of the following: (1) Language, comparable to that in Appendix A to
subpart F of part 430, which makes clear that a manufacturer can make
one request (not one or more sequential requests) to have DOE test up
to six additional units; (2) the part 430 provisions (Sec.
430.70(a)(6)(iv)-(v)) as to distribution of a basic model that
undergoes manufacturer-option testing; and (3) provisions that would
apply to manufacturer-option testing the relevant portions of proposed
Sec. 431.506(a)(3)-(5) and (b) for initial enforcement testing
(concerning such matters as notification of testing, shipment of test
units, and use of test data).
The Department proposes to implement the foregoing proposals by
adopting new language for Sec. Sec. 431.506(c), 431.506(f) and
431.507. The DOE solicits public comment on the proposed alternative
language.
The Department is also considering, and seeks comment on, a number
of other alternatives to the proposals in the NOPR concerning
enforcement testing. First, as a slight variation on the alternative
approach just described, the Department is considering adoption of a
requirement that, where only one unit is tested, three tests be
performed rather than four as set forth above. This would slightly
reduce the enforcement testing burden, while still accounting for
measurement uncertainty to the same extent as testing three units,
which the above approach permits. However, four test results would
provide more confidence in the sample mean.
Second, the Department is considering adoption of the enforcement
testing approach in the NOPR--an initial test of one or two units,
testing of up to two more if the manufacturer requests, and a finding
of compliance if the mean is not more than a specified percent below
the standard--but with the specified percent being three rather than
five percent. This would reduce the likelihood of a false finding of
compliance while at the same time keeping to a minimum the burden of
enforcement testing and simplifying the process. For reasons similar to
those discussed above with respect to the control limits DOE is
proposing, the three-percent figure appears to be reasonable in light
of the tolerances used by ARI and GAMA to verify ratings in their VICPs
and the fact that these VICPs conduct fewer tests of a basic model than
the enforcement approach in the NOPR contemplates. It would, however,
have most of the disadvantages, described above, of the enforcement
testing proposals in the NOPR.
Third, the Department is considering adoption of the NOPR
proposals, but with the added provisions that (1) for any basic model
for which annual production exceeds some figure such as 500 or 1000
units, the approach in Part 430 would be used, and (2) the maximum
number of units to be tested would be a number such as 10 or 20, or a
percentage of production (for example, one or two percent) up to a
maximum such as 10 or 20 units. This approach would mitigate the
disadvantages of the proposals in the NOPR by using a more accurate and
sophisticated enforcement methodology for models sold in large volumes.
And the methodology would have the advantage of being an existing
approach that has long been in the Department's regulations.
2. Enforcement Testing--Defective Units and Retention of Sample Units
The Department proposed in the NOPR that a unit selected for
enforcement testing would be ``defective,'' and the Department could
authorize its replacement during the testing, if it ``is inoperative or
is found to be in noncompliance due to failure of the unit to operate
according to the manufacturer's design and operating instructions.''
Proposed Sec. 431.506(e)(3), 64 FR at 69616. The GAMA requested
expansion of this description of a defective unit to include
specifically a water heater found to be in noncompliance due to an
insulation void of \1/3\ of one percent or more of its tank surface
area. According to GAMA, such a unit would have a significant
insulation void, and ``should not be included in the test sample
because it is not representative of the manufacturer's production.''
The GAMA also indicated the regulation could place the burden of proof
on a manufacturer to establish that a test unit is not representative
of its production. (GAMA, No. 3 at 8, No. 6 at 2, Tr. 123-25, 126-27,
130) The ARI stated that it takes such an approach in its voluntary
program. (ARI, Tr. 125-26) The OOE stated that its extensive
examination of water heaters has shown that many have ``thin spots'' in
their insulation, and it suggested the possibility of a statistical
test to determine whether a unit with such a defect is an ``outlier,''
i.e., the unit has one or more characteristics that make it
unrepresentative of the manufacturer's production of units of the same
design. (OOE, Tr. at 128-29, 131, 132) The CEC asserted, however, that
the rule should allow replacement during enforcement testing only of
inoperable units, because a consumer could well buy and operate a unit
which operates improperly or is defective. (CEC, No. 7 at 11, Tr. 127-
28)
The Department's purpose in proposing to exclude a defective unit
from consideration in enforcement testing is to assure that a unit that
is unrepresentative of the manufacturer's production does not skew the
test result. The Department is reluctant to presume, as GAMA seems to
suggest, that every water heater with an insulation void above a
certain size is unrepresentative of units produced by every water
heater manufacturer. Nevertheless, when such a water heater is shown to
be unrepresentative of a manufacturer's production it should be
excluded from enforcement testing, as should other equipment with
unrepresentative manufacturing defects. Given the dramatic effect that
such equipment can have on test results, and consequently on a
manufacturer, the possibility of an isolated sale of such a piece of
equipment would not seem to warrant its inclusion in enforcement
testing, as suggested by CEC. On the other hand, CEC's comments also
suggest that if a consumer is reasonably likely to purchase a unit with
a given defect, distribution of such units could adversely affect
consumers and energy consumption. The Department is inclined to the
view that such a unit could not fairly be considered to be
unrepresentative of a manufacturer's production, and that it should be
included in testing.
In balancing the interests of the consumer and of achieving EPCA's
conservation goals, against the interests of a manufacturer in an
enforcement action, the Department also sees merit in CEC's suggestion
that inoperative units be treated differently from those that operate
but not according to the manufacturer's design and instructions.
Clearly, the former will neither be used by consumers nor cause
unexpected energy use, and should always be discarded from testing. And
although the Department disagrees with CEC that units which operate
improperly should never be excluded from enforcement testing, it
believes such units should be excluded only if they are
unrepresentative of the manufacturer's production, as with units that
have manufacturing defects.
For these reasons, the Department is considering adoption of a
provision that a unit found in noncompliance due either to a
manufacturing defect, or to a failure to operate according to the
manufacturer's design and instructions, could be classified as
defective only if the manufacturer demonstrates by statistically valid
means that the unit is
[[Page 25113]]
unrepresentative of the population of production units from which it
was obtained. (The DOE would adopt these provisions in conjunction with
the NOPR proposal to treat any inoperative unit as defective and allow
its replacement during enforcement testing.)
The Department also proposed in the NOPR that, as part of
enforcement testing, DOE would collect a ``batch'' of production units
of a basic model, and select from this ``batch'' the units to be
tested. The manufacturer would have to retain all units that are in the
batch but are not selected for testing until DOE determines whether the
basic model is in compliance. Proposed Sec. 431.506(d), 64 FR at
69616. The GAMA questioned the retention requirement, indicating that
it could unnecessarily burden manufacturers who could otherwise sell
these units. (GAMA, No. 3 at 8, Tr. 122) This proposed requirement is
from the enforcement testing provisions of 10 CFR Part 430. Section
430.70(a)(4) (ii) provides that test results for the sample of units
initially selected from a batch may necessitate selection and testing
of a second sample of units, and hence the requirement to retain the
batch. Also, in 10 CFR Part 431, Sec. 431.192(d)(2), which pertains to
electric motors, contains a similar provision. The NOPR, however,
contains no requirement to select a second sample. For enforcement
testing of HVAC and WH equipment, requiring a manufacturer to retain
units remaining in a batch after selection of the test units would be
justified only by the provision for testing an additional unit in place
of a defective unit.
As previously discussed, the Department is proposing that a unit
would be classified as defective, and could be replaced during
enforcement testing, only if (1) it is inoperative or (2) the
manufacturer demonstrates, in accordance with certain criteria, that
the unit has a manufacturing defect or does not operate properly. If
DOE adopts these proposals, once DOE determines during an enforcement
proceeding that the units selected from a batch for testing are
operative and the manufacturer no longer seeks to claim that any
unit(s) is defective, no reason would exist to require retention of the
units remaining in the batch. Accordingly, the Department is
considering adoption of a provision under which the manufacturer would
be required to retain all units in the batch until DOE has determined
the test units to be operative, and once a manufacturer discards from
the batch any unit that the Department has not selected for testing, it
may no longer claim a tested unit to be defective.
The Department proposes to implement the foregoing approach by
adopting substitute language for proposed Sec. 431.506(e)(3) and
431.506(d)(2).
3. Enforcement of Design Standards
When DOE issued the NOPR, the energy conservation standards in
place for commercial HVAC and WH equipment did not provide any design
standards, i.e., did not require a particular design for any equipment.
Consequently, the NOPR proposed no enforcement procedure for addressing
an allegation of non-compliance with a design standard. The Department
has since adopted a design standard for unfired hot water storage
tanks, effective October 29, 2003. 66 FR 3336, 3356 (January 12, 2001).
Therefore, the Department is proposing the adoption in its final
regulation concerning enforcement for commercial HVAC and WH equipment
of the following language, largely copied from 10 CFR Sec. 430.70(d),
which provides a procedure for the Department to use to evaluate
compliance with an applicable design standard:
In the case of a design standard, the Department can determine that
a model is noncompliant after the Department has examined the
underlying design information from the manufacturer and after the
manufacturer has had the opportunity to verify compliance with the
applicable design standard.
D. Conclusion
The Department seeks comments on the issues arising from the
proposals discussed above, which the Department is considering as
alternatives or additions to the proposals in the NOPR.
III. Procedural Requirements
A. Review Under Executive Order 12866
The Office of Information and Regulatory Affairs of the Office of
Management and Budget (OMB) has determined that today's regulatory
action is not a ``significant regulatory action'' under Executive Order
12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4,
1993). Accordingly, this action was not subject to review under the
Executive Order.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). The DOE has made
its procedures and policies available on the Office of General
Counsel's Web site: http://www.gc.doe.gov.
The DOE reviewed today's proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. On the basis of information presented in the NOPR
concerning manufacturers of the commercial equipment that would be
affected by this rulemaking (64 FR 69606-07), DOE concluded that the
rule, if promulgated, would not have a significant economic impact on a
substantial number of small entities. The DOE has concluded that the
rule as modified by today's SNOPR would not have a significant economic
impact on a substantial number of small entities. Accordingly, DOE has
not prepared a regulatory flexibility analysis for this rulemaking. The
DOE will transmit the certification and supporting statement of factual
basis to the Chief Counsel for Advocacy of the Small Business
Administration for review pursuant to 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act
The preamble to the NOPR described the recordkeeping and reporting
requirements that would be imposed on manufacturers of commercial
heating, air conditioning, and water heating equipment by the proposed
rule, and DOE invited public comment on the proposed information
collection and recordkeeping requirements (64 FR 69608-09). The only
additional reporting requirement that today's SNOPR proposes is that
each DOE-approved VICP report annually a list of the models it has
tested, and DOE invites comment on that proposal.
D. Review Under the National Environmental Policy Act
The DOE has determined that this rule falls into a class of actions
that are categorically excluded from review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the
Department's implementing regulations at 10 CFR part 1021. As discussed
in the NOPR (64 FR 69606), this rule is covered by the
[[Page 25114]]
Categorical Exclusion in paragraph A6 to subpart D, 10 CFR part 1021.
Accordingly, neither an environmental assessment nor an environmental
impact statement is required.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. The Executive Order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and carefully assess
the necessity for such actions. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications. On March 14, 2000, DOE
published a statement of policy describing the intergovernmental
consultation process it will follow in the development of such
regulations (65 FR 13735). The DOE has examined today's supplemental
proposed rule and has determined that it does not preempt State law and
does not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. No further action is required by Executive Order 13132.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. The DOE has
completed the required review and determined that, to the extent
permitted by law, this proposed rule meets the relevant standards of
Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and tribal governments and the
private sector. For a proposed regulatory action likely to result in a
rule that may cause the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of the Act requires a Federal agency to publish estimates of the
resulting costs, benefits, and other effects on the national economy (2
U.S.C. 1532(a),(b)). The Act also requires a Federal agency to develop
an effective process to permit timely input by elected officers of
State, local, and tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. On March 18, 1997,
DOE published a statement of policy on its process for
intergovernmental consultation under the Act (62 FR 12820) (also
available at http://www.gc.doe.gov). The proposed rule published today
contains neither an intergovernmental mandate nor a mandate that may
result in expenditure of $100 million or more in any year, so these
requirements do not apply.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This rule would not have any impact on the autonomy or integrity of the
family as an institution. Accordingly, DOE has concluded that it is not
necessary to prepare a Family Policymaking Assessment.
I. Review Under Executive Order 12630
The DOE has determined pursuant to Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 53 FR 8859 (March 18, 1988) that this regulation
would not result in any takings which might require compensation under
the Fifth Amendment to the United States Constitution.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. The OMB guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). The DOE has reviewed
today's notice under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
K. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001) requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgated or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
Today's regulatory action would not have a significant adverse effect
on the supply, distribution, or use of energy and, therefore, is not a
significant
[[Page 25115]]
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
L. Review Under Section 32 of the Federal Energy Administration Act of
1974
The DOE is required by section 32 of the Federal Energy
Administration Act of 1974 to inform the public of the use and
background of any commercial standard in a proposed rule (15 U.S.C.
788). As explained in the NOPR (64 FR 69608), DOE will consult with the
Attorney General and the Chairman of the Federal Trade Commission
concerning the impact on competition of any commercial standard not
required to be used by EPCA before incorporating it in a final rule.
IV. Submission of Comments
The Department will accept comments, data, and information
regarding this supplemental proposed rule no later than the date
provided at the beginning of this notice. Please submit comments, data,
and information electronically. Send them to the following e-mail
address: [email protected]. Submit electronic
comments in WordPerfect, Microsoft Word, PDF, or text (ASCII) file
format and avoid the use of special characters or any form of
encryption. Identify comments in electronic format with the docket
number EE-RM/TP-99-450, and wherever possible include the electronic
signature of the author. Absent an electronic signature, comments
submitted electronically must be followed and authenticated by
submitting the signed original paper document. The DOE does not accept
telefacsimiles (faxes).
According to 10 CFR 1004.11, any person submitting information that
he or she believes to be confidential and exempt by law from public
disclosure should submit two copies: One copy of the document including
all the information believed to be confidential, and one copy of the
document with the information believed to be confidential deleted. The
Department of Energy will make its own determination about the
confidential status of the information and treat it according to its
determination.
Factors of interest to the Department when evaluating requests to
treat submitted information as confidential include: (1) A description
of the items, (2) whether and why such items are customarily treated as
confidential within the industry, (3) whether the information is
generally known by or available from other sources, (4) whether the
information has previously been made available to others without
obligation concerning its confidentiality, (5) an explanation of the
competitive injury to the submitting person which would result from
public disclosure, (6) when such information might lose its
confidential character due to the passage of time, and (7) why
disclosure of the information would be contrary to the public interest.
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's
Proposed Rulemaking.
List of Subjects in 10 CFR Part 431
Administrative practice and procedure, Energy conservation,
Reporting and recordkeeping requirements, Commercial and industrial
equipment.
Issued in Washington, DC, on March 28, 2006.
Douglas L. Faulkner,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, the proposed rule that
proposed to amend 10 CFR part 431 which was published at 64 FR 69597 on
December 13, 1999, is proposed to be amended as set forth below:
PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND
INDUSTRIAL EQUIPMENT
1. The authority citation for part 431 continues to read as
follows:
Authority: 42 U.S.C. 6311-6316.
2. In Sec. 431.481, the first sentence of paragraph (a); the
introductory sentence of paragraph (b) and paragraph (b)(3) are
revised, and new paragraphs (c)(3) and (c)(4) are added, to read as
follows:
Subpart M--Methods of Determining Efficiency of Commercial HVAC &
WH Products.
Sec. 431.481 Requirements applicable to all manufacturers.
(a) General. A manufacturer of a commercial HVAC & WH product may
not distribute any basic model of such equipment in commerce unless the
manufacturer has determined the efficiency of the basic model either
from testing of the basic model or from application of an alternative
efficiency determination method (AEDM) to the basic model, in
accordance with the requirements of this section, provided, however,
that a manufacturer must determine and rate the efficiency of a basic
model from test results if it has tested that basic model to validate
an AEDM. * * *
* * * * *
(b) Testing. If a manufacturer tests a basic model pursuant to this
section to determine its efficiency, the manufacturer must:
* * * * *
(3) Meet industry standards for the measurement accuracy of testing
for the equipment being tested. This includes accuracy requirements in
applicable test procedures, accuracy achieved by laboratory-grade
equipment, and the accuracy of calibration standards,
* * * * *
(c) * * *
(3) Validation of an AEDM. To use an AEDM under this subpart, the
manufacturer must validate it as follows:
(i) Using the AEDM, the manufacturer must calculate the efficiency
of three or more of its basic models. They must be the manufacturer's
highest-selling basic models to which the AEDM could apply.
(ii) The manufacturer must test each of these basic models in
accordance with Sec. 431.481(b) of this subpart, and either Sec. Sec.
431.482(b) or 431.483(a), whichever is applicable.
(iii) The predicted efficiency calculated for each such basic model
from application of the AEDM must be within two percent of the
efficiency determined from testing that basic model, and the average of
the predicted efficiencies calculated for the tested basic models must
be within one percent of the average of the efficiencies determined
from testing these basic models.
(4) Limitation on use of an AEDM. A manufacturer may not knowingly
use an AEDM to overrate the efficiency of a basic model.
* * * * *
3. In Sec. 431.482, paragraph (b) is revised and paragraph (c) is
removed.
Sec. 431.482 Additional requirements applicable to VICP participants.
* * * * *
(b) Testing. A VICP participant that tests a basic model pursuant
to this subpart must use statistically valid and accurate methods to
arrive at the efficiency rating of the tested basic model. Such methods
must give reasonable assurance that the manufacturer's efficiency
rating for a basic model does not exceed the mean energy efficiency of
the population for that basic model.
[[Page 25116]]
Sec. 431.483 Additional requirements applicable to non-VICP
participants.
4. In Sec. 431.483, paragraph (b)(1) is removed.
5. In Sec. 431.484, revise paragraphs (a)(8), (a)(9), (b) and add
new paragraph (a)(14) to read as follows:
Sec. 431.484 Voluntary independent certification programs (VICP).
(a) * * *
(8) The program's verification testing meets industry standards for
the measurement accuracy of testing for the equipment being tested.
This includes accuracy requirements in applicable test procedures,
accuracy achieved by laboratory-grade equipment, and the accuracy of
calibration standards.
(9)(i) The program includes appropriate standards for the accuracy
of its verification testing results and for determining whether the
efficiency rating a manufacturer claims for equipment is valid. Such
standards must include criteria which give reasonable assurance that a
manufacturer's efficiency rating for a basic model represents the mean
performance for all units it manufactures of that model, and could
include, for example, statistically valid methods, such as a sampling
plan, for determining the efficiency of a basic model.
(ii) If the program provides that a manufacturer's rating for
equipment will be valid so long as the verification test results under
the VICP are within a given percentage of the rating, then the program
must meet the following requirements:
(A) It must specify the percentage(s) it uses and the equipment
categories to which each such percentage applies;
(B) Each such percentage must correspond to the normal
manufacturing variability and measurement uncertainty for the equipment
to which the percentage applies; and
(C) The program must provide that if, during a calendar year, the
average of the manufacturers' efficiency ratings found valid under the
VICP is more than one percent above (or more than one percent below for
energy use ratings) the average of the efficiencies from the
verification tests under the VICP of the models covered by these
ratings, then the organization operating the VICP will revise its
program to provide reasonable assurance that in the future the ratings
it finds valid will average no more than one percent above verification
test results.
* * * * *
(14) The program contains provisions under which each participating
manufacturer can challenge ratings submitted by other manufacturers,
which it believes to be in error.
(b) If the organization operating an approved VICP makes any
changes in its program, the organization must notify the Department of
such changes within 30 days of their occurrence, and the Department may
then rescind or continue its approval.
Subpart O--Certification and Enforcement Provisions Applicable to
Commercial HVAC & WH Products
6. In Sec. 431.506, revise paragraphs (c), (d)(2), (e)(3), and (f)
to read as follows:
Sec. 431.506 Enforcement for performance standard.
* * * * *
(c) Sampling. To determine whether a manufacturer's basic model
complies with the applicable energy performance standard, the
Department will conduct testing in accordance with the procedures set
forth in this section, the provisions of Sec. 431.507(a), the
applicable test procedures specified in this part, and the following
provisions:
(1) Except as required or provided in paragraphs (c)(2) or (c)(3)
of this section, initially the Department will test four units.
(2) Except as provided in paragraph (c)(3) of this section, if
fewer than four units of basic model are available for testing when the
manufacturer receives the test notice, then
(i) DOE will test the available unit(s); or
(ii) If one or more other units of the basic model are expected to
become available within six months, DOE may instead, at its discretion,
test either
(A) The available unit(s) and one or more of the other units that
subsequently become available (up to a maximum of four); or
(B) Up to four of the other units that subsequently become
available.
(3) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,
if testing of the available or subsequently available units of a basic
model would be impractical, as for example where a basic model is very
large, has unusual testing requirements, or has limited production, the
Department may in its discretion decide to base the determination of
compliance on the testing of fewer than the available number of units,
if the manufacturer so requests and demonstrates that the criteria of
this paragraph are met.
(4) When testing units under paragraphs (c)(1), (c)(2), or (c)(3)
of this section, DOE shall perform the following number of tests:
(i) If DOE tests three or four units, it will test each unit once;
(ii) If DOE tests two units, it will test each unit twice; or
(iii) If DOE tests one unit, it will test each unit four times.
(5) When it tests three or fewer units, the Department will base
the compliance determination on the results of such testing in a manner
otherwise in accordance with this section.
(6) For the purposes of paragraphs (c)(1) through (c)(3) of this
section, available units are those which are available for commercial
distribution within the United States.
(d) * * *
(2) The Department will randomly select from the batch individual
units to comprise the test sample. The DOE will achieve random
selection by sequentially numbering all of the units in a batch and
then using a table of random numbers to select the units to be tested.
The manufacturer must keep on hand all units in the batch until such
time as the inspector determines that the unit(s) selected for testing
is(are) operative. Thereafter, once a manufacturer distributes or
otherwise disposes of any unit in the batch, it may no longer claim
under paragraph (e)(3) of this section that a unit selected for testing
is defective due to a manufacturing defect or failure to operate in
accordance with its design and operating instructions.
(e) * * *
(3) A test unit is defective if such unit is inoperative. A test
unit is also defective if it is found to be in noncompliance due to a
manufacturing defect or due to failure of the unit to operate according
to the manufacturer's design and operating instructions, and the
manufacturer demonstrates by statistically valid means that, with
respect to such defect or failure, the unit is not representative of
the population of production units from which it is obtained. Defective
units, including those damaged due to shipping or handling, must be
reported immediately to DOE. The Department will authorize testing of
an additional unit on a case-by-case basis.
(f) Testing at manufacturer's option.
(1) If the Department determines a basic model to be in
noncompliance with the applicable energy performance standard at the
conclusion of DOE's initial enforcement testing under this section and
Sec. 431.507(a), the manufacturer may make a request that DOE test an
additional number of units of the basic model (not to exceed six) at
the manufacturer's expense. Testing under this paragraph must be
conducted in accordance with the applicable test procedure specified in
this part,
[[Page 25117]]
paragraphs (a)(5), (b), (d) and (e) of this section, and Sec.
431.507(a)(6)(ii).
(2) The Department will advise the manufacturer of the method for
selecting the additional units for testing, the date and time at which
testing is to begin, the date by which testing is scheduled to be
completed, and the facility at which the testing will occur.
(3) The manufacturer must cease distribution of the basic model
being tested under the provisions of this paragraph from the time the
manufacturer elects to exercise the option provided in this paragraph
until the Department determines that the basic model is in compliance.
The DOE may seek civil penalties for all units distributed during such
period.
(4) If the additional testing results in a determination of
compliance, the Department will issue a notice of allowance to resume
distribution.
7. Section 431.507 is revised to read as follows:
Sec. 431.507 Enforcement for performance standard and design
standard; compliance determination procedure.
(a) The Department will determine compliance with performance
standards for commercial HVAC and WH products as follows:
(1) After it has determined the sample size, the Department will
measure the energy performance for each unit in accordance with the
following table:
------------------------------------------------------------------------
Number of
Sample size tests for
each unit
------------------------------------------------------------------------
4.......................................................... 1
3.......................................................... 1
2.......................................................... 2
1.......................................................... 4
------------------------------------------------------------------------
(2) Compute the mean of the measured energy performance
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TP28AP06.001
where xi is the measured energy efficiency or consumption
from test i, and n1 is the total number of tests.
(3) Compute the standard deviation (s1) of the measured
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TP28AP06.002
(4) Compute the standard error (sx1) of the measured
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TP28AP06.003
(5)(i) For an energy efficiency standard, compute the lower control
limit (LCL1) according to:
[GRAPHIC] [TIFF OMITTED] TP28AP06.004
(ii) For an energy use standard, compute the upper control limit
(UCL1) according to:
[GRAPHIC] [TIFF OMITTED] TP28AP06.005
where EPS is the energy performance standard and t is a statistic based
on a 97.5-percent, one-sided confidence limit and a sample size of
n1.
(6)(i) Compare the sample mean to the control limit. The basic
model is in compliance, and testing is at an end, if, for an energy
efficiency standard, the sample mean is equal to or greater than the
lower control limit or, for an energy consumption standard, the sample
mean is equal to or less than the upper control limit. If, for an
energy efficiency standard, the sample mean is less than the lower
control limit or, for an energy consumption standard, the sample mean
is greater than the upper control limit, compliance has not been
demonstrated. Unless the manufacturer requests manufacturer-option
testing, and provides the additional units for such testing, the basic
model is in noncompliance and the testing is at an end.
(ii) If the manufacturer does request additional testing, and
provides the necessary additional units, DOE will test each of these
additional units the same number of times as it tested each unit when
it determined compliance had not been demonstrated. The DOE will then
compute a combined sample mean, standard deviation and standard error
as described above in this section. (The ``combined sample'' refers to
the units DOE initially tested plus the additional units DOE has tested
at the manufacturer's request.) The DOE will determine compliance or
noncompliance from the mean and the new lower or upper control limit of
the combined sample. If, for an energy efficiency standard, the
combined sample mean is equal to or greater than the new lower control
limit or, for an energy consumption standard, the sample mean is equal
to or less than the upper control limit, the basic model is in
compliance, and testing is at an end. If the combined sample mean does
not satisfy whichever of these two conditions is applicable, the basic
model is in noncompliance and the testing is at an end.
(b) In the case of a design standard for a commercial HVAC&WH
product, the Department can determine that a model is noncompliant
after the Department has examined the underlying design information
from the manufacturer and after the manufacturer has had the
opportunity to verify compliance with the applicable design standard.
[FR Doc. 06-3319 Filed 4-27-06; 8:45 am]
BILLING CODE 6450-01-U