[Federal Register Volume 75, Number 179 (Thursday, September 16, 2010)]
[Proposed Rules]
[Pages 56796-56832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22353]
[[Page 56795]]
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Part III
Department of Energy
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10 CFR Parts 429, 430 and 431
Energy Conservation Program: Certification, Compliance, and Enforcement
for Consumer Products and Commercial and Industrial Equipment; Proposed
Rule
Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 /
Proposed Rules
[[Page 56796]]
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DEPARTMENT OF ENERGY
10 CFR Parts 429, 430 and 431
[Docket No. EERE-2010-BT-CE-0014]
RIN 1904-AC23
Energy Conservation Program: Certification, Compliance, and
Enforcement for Consumer Products and Commercial and Industrial
Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking and public meeting.
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SUMMARY: The U.S. Department of Energy (DOE or the ``Department'') is
proposing to revise and expand its existing certification, compliance,
and enforcement regulations for certain consumer products and
commercial and industrial equipment covered under the Energy Policy and
Conservation Act of 1975, as amended (EPCA or the ``Act''). These
regulations provide for sampling plans used in determining compliance
with existing standards, manufacturer submission of compliance
statements and certification reports to DOE, maintenance of compliance
records by manufacturers, and the availability of enforcement actions
for improper certification or noncompliance with an applicable
standard. Ultimately, these proposals will allow DOE to systematically
enforce applicable energy and water conservation standards for covered
products and covered equipment and provide for more accurate,
comprehensive information about the energy and water use
characteristics of products sold in the United States. Additionally,
today's notice announces a public meeting on the proposed amendments.
DATES: DOE will hold a public meeting on Thursday, September 23, 2010,
from 9 a.m. to 4 p.m., in Washington, DC. DOE must receive requests to
speak at the public meeting before 4 p.m., Thursday, September 23,
2010. Additionally, DOE plans to conduct the public meeting via
webinar. To participate via webinar, DOE must be notified by no later
than Thursday, September 16, 2010. Participants seeking to present
statements in person during the meeting must submit to DOE a signed
original and an electronic copy of statements to be given at the public
meeting before 4 p.m., Thursday, September 23, 2010.
DOE will accept comments, data, and information regarding this
notice of proposed rulemaking (NOPR) before and after the public
meeting but no later than October 18, 2010. See section V, ``Public
Participation,'' of this NOPR for details.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at http://www.regulations.gov. Follow
the instructions for submitting comments. Alternatively, interested
persons may submit comments, identified by docket number EERE-2010-BT-
CE-0014, by any of the following methods:
E-mail: [email protected]. Include EERE-2010-
BT-CE-0014 in the subject line of the message.
Mail: Ms. Brenda Edwards, U.S. Department of Energy,
Building Technologies Program, Mailstop EE-2J, Revisions to Energy
Efficiency Enforcement Regulations, EERE-2010-BT-CE-0014, 1000
Independence Avenue, SW., Washington, DC 20585-0121. Phone: (202) 586-
2945. Please submit one signed paper original.
Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department
of Energy, Building Technologies Program, 6th Floor, 950 L'Enfant
Plaza, SW., Washington, DC 20024. Phone: (202) 586-2945. Please submit
one signed paper original.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. Note that all comments
received will be posted without change, including any personal
information provided.
Docket: For access to the docket to read background documents, or
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department
of Energy, Office of Energy Efficiency and Renewable Energy, Building
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington,
DC 20585-0121. Telephone: 202-586-6590. E-mail:
[email protected]; and Ms. Celia Sher, U.S. Department of
Energy, Office of the General Counsel, Forrestal Building, GC-71, 1000
Independence Avenue, SW., Washington, DC 20585. Telephone: 202-287-
6122. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Authority and Background
II. Summary of the Proposal
A. Reorganization of DOE's Existing Certification, Compliance,
and Enforcement Regulations
B. Applying DOE's Existing Certification, Compliance, and
Enforcement Regulations to Other Consumer Products and Commercial
and Industrial Equipment
C. Certification
D. Enforcement Testing and Adjudication
III. Discussion of Specific Revisions to DOE's Certification,
Compliance, and Enforcement Regulations and Comments Received in
Response to the RFI
A. Basic Model Provisions
1. Basic Model Certification
2. Basic Model Numbers
B. Certification
1. Annual Certification Requirements
2. Filings Consolidation With FTC
3. Revisions to the Reporting Requirements, General
4. Product Specific Revisions to the Reporting Requirements
5. Certifying Entities
6. Third Party Representation
7. Submission of Certification Reports
8. Initial Certification and Notice of Discontinuance
9. Certification Testing
a. In-House vs. Independent Testing
b. Sampling Procedures for Certification Testing
c. Provisions Specific to Commercial HVAC and WH Equipment,
Including the Use of AEDMs and VICPs
10. Records
a. Maintenance of Records
b. Public Records
C. Enforcement Testing and Adjudication
1. Enforcement Testing
a. Initiation of Enforcement Action
b. Test Notice
c. Sampling for Enforcement Testing
d. Test Procedure Guidance and Enforcement Testing
e. Test Unit Selection
f. Testing at Manufacturer's Option
g. Cost Allocation for Testing
2. Adjudication
a. Improper Certification
b. Failure To Test
c. Distribution in Commerce After Notice of Noncompliance
Determination
d. Knowing Misrepresentation
e. Penalties
f. Imposition of Additional Certification Testing Requirements
as Remedy for Non-Compliance
g. Compromise and Settlement
D. Verification Testing
E. Waivers
F. Additional Product Specific Discussions and Issues for Which
DOE Continues To Seek Comment
1. Clarification of Entity Responsible for Compliance for Walk-
In Coolers or Freezers
2. Submission of Data Requirements for Fluorescent Lamp Ballast
3. Certification, Compliance, and Enforcement for Electric
Motors
4. Enforcement for Imports and Exports
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
1. Reasons for the Proposed Rule
2. Objectives of and Legal Basis for the Proposed Rule
3. Description and Estimated Number of Small Entities Regulated
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4. Description and Estimate of Compliance Requirements
5. Duplication, Overlap, and Conflict With Other Rules and
Regulations
6. Significant Alternatives to the Rule
C. Review Under the Paperwork Reduction Act
1. Description of the Requirements
2. Method of Collection
3. Data
4. Comments
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
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211
V. Public Participation
A. Attendance at Public Meeting
B. Procedure for Submitting Requests To Speak
C. Conduct of Public Meeting
D. Submission of Comments
E. Issues on Which DOE Seeks Comment
VI. Approval of the Office of the Secretary
I. Authority and Background
Title III of the Energy Policy and Conservation Act of 1975, as
amended (``EPCA'' or, in context, ``the Act'') sets forth a variety of
provisions designed to improve energy efficiency. Part A of Title III
(42 U.S.C. 6291-6309) provides for the Energy Conservation Program for
Consumer Products Other Than Automobiles. The National Energy
Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA to add
Part A-1 of Title III, which established an energy conservation program
for certain industrial equipment. (42 U.S.C. 6311-6317) \1\
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\1\ For editorial reasons, Parts B (consumer products) and C
(commercial equipment) of Title III of EPCA were re-designated as
parts A and A-1, respectively, in the United States Code.
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Under the Act, the regulatory program consists of three parts:
Labeling, testing, and Federal conservation standards, which include
energy conservation, water conservation and design standards. The
Federal Trade Commission (FTC) is primarily responsible for labeling
consumer products, and DOE implements the remainder of the program. The
testing requirements consist of test procedures prescribed under the
authority of EPCA, which are used to aid in the development of
standards for covered products or covered equipment, to make
representations about equipment efficiency, and to determine whether
covered products or covered equipment comply with standards promulgated
under EPCA.
Sections 6299-6305, and 6316 of EPCA authorize DOE to enforce
compliance with the energy and water conservation standards (all non-
product specific references herein referring to energy use and
consumption include water use and consumption; all references to energy
efficiency include water efficiency) established for certain consumer
products and commercial equipment. (42 U.S.C. 6299-6305 (consumer
products), 6316 (commercial equipment)) To ensure that all covered
products and covered equipment distributed in the United States comply
with DOE's conservation standards, DOE has promulgated enforcement
regulations that include specific certification and compliance
requirements. See 10 CFR part 430, subpart F; 10 CFR 430.23-25; 10 CFR
part 431, subparts B, J, K, S, T, U, and V.
On May 7, 2010, the Department published in the Federal Register a
Request for Information (RFI) regarding Revisions to Energy Efficiency
Enforcement Regulations. 75 FR 25121. The RFI requested suggestions,
comments, and information relating to the Department's intent to expand
and revise its existing energy efficiency enforcement regulations for
consumer products and commercial and industrial equipment covered under
EPCA. The comment period for written submissions closed on June 7,
2010.
The record of the RFI reflects that the consideration of many of
the procedural changes to DOE's certification requirements and
enforcement process are relatively straightforward, while other changes
under consideration, such as the creation of a verification testing
requirement, raise more complicated and nuanced issues. Even relatively
simple changes, however, can greatly advance the effective enforcement
of DOE's conservation standards and regulations. Therefore, today's
NOPR focuses on promptly advancing two aspects of the DOE's enforcement
regime: Certification requirements and enforcement procedures. In
addition, this notice proposes consolidating and standardizing, where
possible, all of the certification, compliance, and enforcement
requirements for both consumer products and commercial equipment into a
new 10 CFR Part 429. In all cases, the Department's goals are to
establish a uniform, systematic, and fair approach to certification,
compliance, and enforcement that will allow the Department to
effectively enforce its standards and ensure a level playing field in
the marketplace without unduly burdening regulated entities.
While not addressed here, DOE anticipates addressing the remaining
topics outlined in the RFI and additional issues regarding
certification, compliance, and enforcement, including verification
testing requirements, in a subsequent rulemaking. To that end, today's
NOPR seeks comment on a variety of issues, which will be more fully
addressed in a second certification, compliance, and enforcement
rulemaking, including: Revisions to sampling plans for certification
and enforcement testing, consideration of compliance requirements for
other features affecting the energy and water efficiency of a product,
additional provisions for imports, voluntary industry certification
programs (VICP), verification testing requirements, laboratory
accreditation, and rounding. DOE continues to seek views from all
interested parties on these issues and how they can be best developed
to ensure effective enforcement.
II. Summary of the Proposal
In today's notice, DOE proposes to revise its certification and
enforcement regulations to encourage compliance, achieve energy
savings, and prevent those manufacturers that do not adhere to the
rules from having a competitive advantage over those that do. As
summarized below, the notice proposes revisions to existing
certification, compliance, enforcement, and adjudication procedures
applicable to both consumer products and commercial and industrial
equipment.
A. Reorganization of DOE's Existing Certification, Compliance, and
Enforcement Regulations
With the exception of electric motors, DOE is proposing to move all
of the existing certification, compliance, and enforcement regulations
currently scattered throughout parts 430 and 431 to a new part 429. DOE
has consolidated similar provisions for both consumer products and
commercial and industrial equipment into one section. As an example,
all of the submission of data requirements that are currently found in
10 CFR 430.62, 431.327, and 431.371 will be found in 10 CFR 429.19 for
consumer products and commercial and industrial equipment once DOE's
proposals become final. While DOE is not proposing revisions to the
requirements for electric motors in today's NOPR, DOE does intend to
propose to move and harmonize, where possible, the certification,
compliance, and enforcement provisions for electric motors in part 429,
as well as add an annual certification requirement, in the second
rulemaking.
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B. Applying DOE's Existing Certification, Compliance, and Enforcement
Regulations to Other Consumer Products and Commercial and Industrial
Equipment
DOE intends to apply certification, compliance, and enforcement
regulations to all covered products and covered equipment. Thus, the
Department also proposes to establish certification and enforcement
requirements for the consumer products and commercial and industrial
equipment that have been added to DOE's programs by either DOE's
completion of energy and water conservation standards rulemakings or
the Energy Independence and Security Act of 2007. These products
include fluorescent lamp ballasts, general service incandescent lamps,
candelabra base incandescent lamps, intermediate base incandescent
lamps, certain types of commercial refrigeration equipment, beverage
vending machines, and walk-in coolers and freezers.
C. Certification
Existing certification requirements direct manufacturers of covered
consumer products and commercial and industrial equipment to certify,
by means of a compliance statement and a certification report, that
each basic model meets the applicable energy conservation, water
conservation, and/or design standard before distributing it in commerce
within the United States. See 10 CFR 430.62 (consumer products); 10 CFR
431.36, 430.371 (commercial equipment). For consumer products, much of
the information required to be reported to DOE must also be reported
annually to the FTC. In light of these similarities in reporting, DOE
desires to eventually work towards the creation of a single, annual
reporting mechanism for DOE and FTC, as appropriate. While today's
notice does not yet propose such a shared annual reporting mechanism
for DOE and FTC, DOE is proposing to include an annual reporting
requirement for all covered products and covered equipment. DOE has
aligned its annual reporting schedule with FTC's reporting schedule for
consumer products. Such annualized reporting will provide DOE with more
accurate and comprehensive information regarding the industries subject
to DOE's regulations and a better understanding of the efficiency
characteristics of products distributed in commerce.
In harmonizing the certification requirements for consumer products
and commercial and industrial equipment, DOE believes it is also
appropriate to provide more transparency in the certification report
itself. As currently written, the Department's rules for certification
reports do not always provide DOE with a complete set of information to
verify that a covered product or covered equipment is compliant with
DOE's regulations. Thus, DOE is proposing to expand the information
submitted by manufacturers, including general requirements applicable
to all products and product specific requirements. See section 429.19
of the proposed regulatory text for additional details. DOE is also
proposing to make clear that all non-proprietary certification
information will be considered public information subject to
disclosure. By requiring additional relevant data to be supplied in the
certification report, DOE will be able to more effectively enforce
compliance with the conservation standards. Additionally, the public
would have information to use in evaluating the energy efficiency of a
covered product or covered equipment. Overall, the proposed revisions
have been crafted to balance any incremental reporting burden on
manufacturers against the Department's need for comprehensive, timely,
and accurate information about regulated products being sold in the
United States.
D. Enforcement Testing and Adjudication
In addition, DOE is proposing regulations to make clear the extent
of the Department's enforcement authority under EPCA and the
Department's process for exercising that authority. DOE desires to make
more transparent the process by which it currently exercises its
statutory authority to: (1) Request information, by letter or subpoena,
from manufacturers concerning the compliance of a basic model with an
applicable conservation standard; (2) test or examine units of a given
basic model to determine compliance with an applicable standard; and
(3) take appropriate enforcement action as warranted. To that end, DOE
proposes to establish a standardized process for seeking injunctive
relief, civil penalties, or other remedies for violations of
conservation standards and/or certification requirements. This includes
developing a standard method for responding to complaints of non-
compliance, notifying the allegedly non-compliant manufacturer of the
complaint, and collecting any needed data via enforcement testing.
Revising the current enforcement and adjudication procedures for
consumer products and commercial and industrial equipment will provide
certainty and clarity to the regulated industry and will ensure that
the Department can initiate investigations promptly, respond to
complaints effectively, and enforce its regulations in a fair and
timely way.
III. Discussion of Specific Revisions to DOE's Certification,
Compliance, and Enforcement Regulations and Comments Received in
Response to the RFI
In this section, DOE provides a section by section analysis of its
proposed rule. As discussed above, DOE proposes to add a new Part 429
to its regulations to address, in one place, the certification,
compliance, and enforcement of conservation standards for both consumer
products and commercial and industrial equipment with the exception of
electric motors. This new part would set forth the certification,
compliance, and enforcement procedures to be followed to determine
whether a basic model of a covered product or covered equipment
complies with the applicable conservation standard.
DOE received comments from 30 interested parties, including
manufacturers, trade associations, and advocacy groups. Specifically,
comments were received from: Plumbing Manufacturers Institute, Alsons
Corporation, Air-Conditioning, Heating, and Refrigeration Institute,
National Resource Defense Council, Appliance Standards Awareness
Project, Bosch and Siemens Home Appliances Group, Heat Transfer
Products, United CoolAir Corporation, Bob McGarrah, Plumbing Americas,
Bose Corporation, Intertek, First Company, National Automatic
Merchandising Association, Mestek, Underwriters Laboratories, Trane,
Sony Electronics Inc., Earthjustice, Delta Faucet Company, Hansgrohe,
Consumers Union, Whirlpool Corporation, Association of Home Appliance
Manufacturers, Shane Holt, General Electric, National Electrical
Manufacturer's Association, Rheem Manufacturing, Friedrich Air
Conditioning Co., and American Standard Brands. These comments are
discussed in more detail below. The full set of comments can be found
at http://www.regulations.gov.
A. Basic Model Provisions
1. Basic Model Certification
Under the DOE's existing energy conservation program, DOE has
applied the ``basic model'' concept to streamline certification and
compliance and alleviate burden on manufacturers by reducing the amount
of testing they
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must do to rate the efficiencies of their products. DOE's intent is
that a manufacturer would treat each group of its models that have
essentially identical energy consumption or water consumption
characteristics as a ``basic model,'' such that the manufacturer would
derive the efficiency rating for all models in the group from testing
sample units of these models. All of the models in the group would
comprise the ``basic model,'' and they would all have the same
efficiency rating. For example, a manufacturer can identify as the same
basic model black, white, and stainless steel finished dishwasher
models with the same features and functions. By contrast, a
manufacturer could produce two identical models of air conditioners
with essentially the same internal components but which use a different
control strategy affecting the energy consumption of the unit as
measured by DOE's test procedure. Even though both models have
essentially the same physical characteristics, the models have
different functional characteristics that affect the energy consumption
and efficiency. 10 CFR Part 430.2(11). Thus, these models would be
considered by DOE to be two different basic models.
The Department recognizes, however, that additional clarity as to
what constitutes ``essentially identical'' energy or water consumption
across different model designs or modifications for purposes of a basic
model may be helpful for certain types of products and equipment. To
provide additional certainty and improve implementation of the basic
model concept, the Department seeks comment on how manufacturers
determine that a particular model constitutes a basic model.
Sections 430.62(b) and 431.371(b) presently provide for
recertification reporting to DOE if there is a change to a basic model
that increases energy consumption or decreases energy efficiency. In
the RFI, DOE sought input on implementing a recertification requirement
whenever there is a change made to a basic model that increases or
decreases energy efficiency or energy consumption. Several commenters
in the manufacturing sector were opposed to this proposal. These filers
stated that such a requirement would discourage producers from
introducing product designs that improve energy efficiency and would
increase cost and reporting burdens on manufacturers. Other commenters
supported recertification if DOE established a threshold percentage
that would trigger recertification, or if the recertification
requirement was product specific. DOE has tentatively determined not to
impose a separate model modification requirement at this time. However,
the Department is retaining its requirement that new basic models--
including models that are modified such that they are new basic
models--must be certified before distribution in commerce. Accordingly,
the Department is seeking comment to clarify what modifications to an
existing model make it a new basic model subject to the new model
certification requirement.
DOE is interested in information regarding how a manufacturer
determines that it has made changes to the features or energy use
characteristics of a basic model so as to constitute a new basic model.
Specifically, DOE is interested in the types of potential changes
manufacturers may make to a given model and the difference in the
energy use characteristics a typical change may have on a per product
basis. Additionally, DOE seeks comment on whether it should propose a
specific regulation that requires a new basic model declaration and
filing when a modification to a given basic model impacts the energy
characteristics of the product by a given de minimus percentage. If so,
should these de minimus percentages be product specific, based on the
manufacturing characteristics of the product and the variability
experienced in testing? DOE seeks comment on how these de minimus
percentages might change for each covered product and covered
equipment. In addition, DOE believes characterizing the types of
changes that constitute a new basic model will be particularly useful
in the context of a verification testing program (addressed in III.C of
this NOPR) in order to determine what fraction of basic models will be
tested under the program. See Issue 1 under ``Issues on Which DOE Seeks
Comment'' in section V of this NOPR.
2. Basic Model Numbers
In conjunction with the certification requirement described above
for a basic model, DOE proposes to require that manufacturers change
the basic model number whenever a new basic model is created. DOE
believes this would improve the manner in which basic model numbers are
designated so that the number that is provided to DOE for certification
is clearly associated with the model number used to identify the unit
in the market. This more unified approach to numbering changes would
assist the Department and the public in identifying the market-based
model number that corresponds with what is certified to DOE.
DOE received comments from three trade associations and three
manufacturers in protest of creating a more uniform numbering system.
These groups stated that requiring a uniform numbering system across
products, manufacturers, and models is not desirable because it would
have high implementation costs and create confusion and that DOE should
focus on ensuring that test reports match model numbers, rather than
requiring companies to change their model numbering systems to meet DOE
needs. One advocacy group commented positively on the proposal. To be
clear, DOE's proposal does not mandate any particular system or
configuration of numbering models. Manufacturers and private labelers
remain free to use whatever numbering system they choose. However, DOE
continues to believe that requiring that the model numbering system,
whatever it is, include a change in model number for each new basic
model will allow for more transparency and consumer awareness. Thus,
DOE proposes to establish a requirement that a new basic model number
must be designated when a new basic model is created.
In the RFI, DOE also sought comment on how a basic model should be
identified such that the number provided to DOE for certification is
clearly associated with the model number used to identify the unit in
the market. Accordingly, DOE is proposing to define manufacturer model
number as, essentially, the unique identifier for the product as it is
sold. As described above, a basic model can subsume multiple
manufacturer model numbers. DOE thus suggests that the manufacturer use
one of the manufacturer model numbers as the basic model and identify
all the manufacturer model numbers that are covered by that particular
basic model. DOE believes this will provide further transparency
between the certifications received by DOE and the model numbers a
consumer sees in the market.
B. Certification
DOE proposes the following amendments relating to certification
requirements. If DOE has obtained OMB clearance for the information
collection prior to issuance of the final rule, these amendments would
become effective 30 days following publication of the final rule. The
compliance date for the annual filing requirements would be the first
day of the first month following the effective date.
[[Page 56800]]
1. Annual Certification Requirements
Under existing DOE regulations, manufacturers of certain covered
products and covered equipment must satisfy a one-time certification
requirement for each basic model before the basic model can be
distributed in commerce. DOE is proposing an annual certification
reporting requirement for each basic model of covered product and
covered equipment as discussed in section 429.19 of the proposed
regulatory text. In order to reduce the reporting burdens on
manufacturers, DOE proposes to consolidate the schedule of reporting
requirements with the FTC's schedule for consumer products, where
possible. DOE determined the proposed annual filing schedule based
generally upon the FTC schedule for similar product types subject to
annual reporting under the FTC's Appliance Labeling Rule (see 16 CFR
305.8). For commercial and industrial equipment, DOE is aligning
similar equipment types with the FTC schedule for consumer products.
For example, a manufacturer of both residential and commercial air-
conditioning and heating equipment would be required to submit annually
by July 1st under the proposed modifications. DOE believes aligning the
reporting schedule for products of similar types will also help reduce
the number of times annually a manufacturer has to submit information.
As discussed above, DOE raised the possibility of annual reporting
requirements in the RFI, and commenters were fairly equally divided in
their responses to this proposal, with approximately half of commenters
supporting annual certification and the other half opposed to an annual
requirement because it would create additional cost and reporting
burdens. DOE finds that the costs for annual filing would be minimal
for consumer products, especially since it would be coupled with the
manufacturer's FTC submission for the same product. Although DOE
acknowledges there could be small incremental costs for additional
submissions for certain types of commercial and industrial equipment,
these filings are needed to ensure that the Department and the public
has accurate and comprehensive efficiency information.
A number of commenters objected to DOE imposing annual testing
requirements. For clarification, however, the proposed annual filing
requirement is not an annual testing requirement. The proposed revision
does not require any new or additional testing to be done. The
Department's pre-existing regulations require that basic models be
tested to ensure compliance with the applicable standard before the
unit is first introduced in commerce. The annual filing does not
require retesting, but rather a yearly submission of the results of the
testing already done for all models a manufacturer has in distribution
in that year. In this way, annual submission of certification
information would assure that DOE has the most current and complete
picture of efficiency characteristics of covered products and covered
equipment currently in the marketplace.
2. Filings Consolidation With FTC
In the RFI, DOE had discussed the possibility of consolidating
filings with FTC and other agencies such as EPA. In response to a
discussion of certification reporting requirements in the RFI, four
commenters supported simplifying the reporting requirements and
suggested creating a shared database between DOE and FTC for all
products covered by DOE standards and FTC labels. Three commenters
objected to the proposal, arguing that such a requirement would add
additional burdens to those industries that do not participate in the
FTC program.
The Department continues to believe that a single Federal database
for efficiency information would be of great value. At this time,
however, the Department is consolidating its requirements with FTC's
schedule only. DOE will continue to consider consolidating filings with
the FTC or other government agencies in a future certification,
compliance, and enforcement rulemaking.
3. Revisions to the Reporting Requirements, General
DOE is proposing to expand the information it is collecting for
certain covered products and covered equipment to include additional
details that will help DOE to better enforce its conservation
standards. Specifically, DOE proposes to revise what information must
be submitted as a part of a certification filing to ensure that the
Department obtains the information it needs to effectively carry out
its statutory enforcement obligations without unnecessarily burdening
certifying parties. To begin, as a streamlining measure, DOE proposes
to include the compliance statement as part of the certification
report, rather than a separate filing, to reduce the number of
submissions transmitted to DOE. Further, DOE seeks to standardize to
the extent possible the basic information required for certification of
all covered products and covered equipment, setting out the basic
requirements for every certification filing, followed by product-
specific information requirements. Along these lines, DOE proposes that
the following items be included in certification reports for all basic
models of all covered products and covered equipment: the manufacturer
name, the private labeler(s)' name (as applicable), the brand name, the
basic model number, and the individual model numbers covered by that
basic model; the sample size and the total number of tests performed;
and the certifying party's U.S. Importer of Record identification
numbers assigned by U.S. Customs and Border Protection pursuant to 19
CFR 24.5, if applicable. This information should be readily available
to the certifying party and will allow the Department to more
effectively monitor compliance, investigate complaints, and take
appropriate enforcement action.
Additionally, DOE proposes to require manufacturers to submit
information related to waivers, exemptions, and approved alternative
rating methodologies along with their certification submissions as
appropriate. Manufacturers of covered products and covered equipment
that are not covered under an existing test procedure, or that cannot
meet a DOE conservation standard, have the option to either seek
waivers of the test procedures under existing regulations or seek
exception relief from the conservation standard from DOE's Office of
Hearings and Appeals (OHA). DOE proposes to require that manufacturers
who obtain a waiver of test procedures or a grant of exception-based
standards from OHA specify such information on the certification report
submitted to the Department. This will serve to eliminate the current
lengthy records review process the Department must now undertake to
determine what test procedures or conservation standards apply to a
certain basic model. It will also allow a manufacturer to tailor the
certification to its situation rather than causing a manufacturer to
certify that a product was tested in accordance with the DOE test
procedure when the product was not, in fact, tested in accordance with
the DOE test procedure. Similarly, DOE also proposes to require that
any DOE-allowed alternative method of determining energy consumption or
efficiency, such as an Alternative Rating Method (ARM) for untested
split-system central air conditioners or heat pumps, or other
alternative method of rating, such as
[[Page 56801]]
alternative efficiency determination methods (AEDMs) for commercial
heating, ventilating, air-conditioning and water heating equipment
(HVAC and WH) or distribution transformers, be indicated on the
certification report to provide a clear picture of the test procedures
or exceptions used as a basis for the certification.
4. Product Specific Revisions to the Reporting Requirements
As discussed generally above, DOE is proposing new certification
reporting requirements for fluorescent lamp ballasts, general service
incandescent lamps, candelabra base incandescent lamps, intermediate
base incandescent lamps, certain types of commercial refrigeration
equipment, beverage vending machines, and walk-in coolers and freezers.
These annual reporting requirements were generally based upon the
existing reporting requirements for certain types of consumer products
and commercial and industrial equipment, which require the
certification of a basic model before it is distributed in commerce.
In addition, DOE proposes additional product-specific information
that should be submitted to DOE as a part of the certification filing
for a variety of consumer products and commercial equipment. DOE
believes the addition of this information on the certification report
for these products will provide a more complete set of information on a
covered product or covered equipment and assist the Department in
verifying that a covered product or covered equipment is compliant with
DOE's standards. All of the product specific reporting requirements are
presented in 10 CFR 429.19(b)(13).
Lastly, DOE is proposing to revise the certification reporting
requirements for existing products, where updates have been made to
DOE's conservation standards. For example, DOE is proposing to modify
the certification reporting requirements for residential clothes
washers to add a water factor reporting requirement starting on January
1, 2011.
5. Certifying Entities
Currently, DOE's certification regulations allow either the
manufacturer or private labeler to submit certification reports and
compliance statements for each basic model. However, this approach
lacks certainty as to who should submit data to DOE for privately
labeled products. DOE is interested in removing uncertainty, preventing
duplicative filings, and having a more comprehensive set of market data
concerning each covered product and covered equipment. Accordingly, it
is proposing to require that manufacturers be solely responsible for
submitting the certification reports to DOE, which would include data
regarding the manufacturer's information, as well as the private
labeler's information and/or brand information, where appropriate. By
placing the reporting burden on manufacturers, which, by statutory
definition, includes importers, DOE would have more certainty that the
certification information it receives for a product type is
comprehensive. DOE also notes that, as discussed more fully below, a
manufacturer would still have the option of electing to have its
private labeler act as a third party filer and submit the certification
report on the manufacturer's behalf.
6. Third Party Representation
Currently, sections 430.62(e) and 431.371(d) allow a manufacturer
or private labeler to elect to use a third party to submit
certification reports to DOE. While DOE intends to continue to permit
this practice, DOE proposes to make clear in its regulations that it
may refuse to accept certification reports from a third party with a
poor history of performance (i.e., failure to properly submit reports
on behalf of a manufacturer on at least two occasions).
Most commenters were in agreement that third party submission of
certification reports should continue to be allowed, with appropriate
consequences for poor performance, such as improper certification. In
particular, one trade association and one manufacturer asserted that
third parties with greater than three failures should be put on
probation or completely disallowed to submit reports. Other commenters,
including a consumer advocacy group, suggested that manufacturers, and
not third parties, should be held accountable for any misfiling by the
third party.
The Department agrees there is value in continuing its practice of
allowing third party submission of certification reports. However, the
Department proposes to make explicit in its regulations that the
manufacturer remains ultimately responsible for submission of the
certification reports to DOE. And, as mentioned, DOE's proposal
reserves the discretion to disallow a third party filing from a filer
with a poor history of performance.
7. Submission of Certification Reports
The Department proposes to make electronic submission of
certification reports through the Certification Compliance Management
System (CCMS) found at http://www.regulations.doe.gov/ccms the sole
method of submission. The CCMS currently has sample templates for
certain covered products and covered equipment available for
manufacturers to use when submitting certification data to DOE. DOE
plans to have these sample templates for all covered products and
covered equipment when it issues the final rule for this rulemaking.
DOE believes the availability of electronic filing through the CCMS
system should reduce reporting burdens, streamline the process, and
provide the Department with needed information in a standardized, more
accessible form. This electronic filing system will also ensure that
records are recorded in a permanent, systematic way. DOE notes that it
is proposing to remove the certified mail and e-mail options for filing
certification data that are currently allowed in DOE's regulations.
8. Initial Certification and Notice of Discontinuance
In addition to the annual certification requirement, DOE proposes
to retain the requirement in the existing regulations that any new
basic model be certified before distribution in commerce. This initial
certification requirement applies to newly manufactured and produced
basic models as well as models that have been modified in a way that
changes the model's energy use characteristics and thus constitutes a
new basic model.
In addition, the Department proposes to require that discontinued
models be reported to DOE as part of the next annual certification
report period from when production of the model has ceased. A
discontinued model is a model that is no longer distributed in
commerce. EPCA defines ``distribute in commerce'' as ``to sell in
commerce, to import, to introduce or deliver for introduction into
commerce, or to hold for sale or distribution after introduction into
commerce.'' (42 U.S.C. 6291(16)) Thus, a model has been discontinued
when it is no longer being sold, or held out for sale or distribution,
by the manufacturer or private labeler.
9. Certification Testing
In-House vs. Independent Testing
The regulations currently permit in-house, as well as independent,
certification testing for determining compliance with DOE's
performance-based conservation standards. In the RFI, the Department
requested comments as to whether all covered products and covered
equipment should
[[Page 56802]]
be required to be independently tested for certification purposes. DOE
received comments from ten manufacturers and two trade associations in
protest of this suggestion. These commenters urged that independent
testing would add no additional benefit to consumers, would increase
costs and lower profit margins, cause delays which would stifle
innovation and competition, and put small manufacturers out of
business. DOE received positive comments from one advocacy group in
support of the concept, who noted that such testing would ensure a
higher level of confidence in manufacturer certification. In view of
the above concerns, DOE recognizes that independent testing for
purposes of certification may not be appropriate for all manufacturers
and all industries. Therefore, DOE is maintaining the current
certification testing procedures of allowing both in-house and
independent testing. DOE plans to pursue verification testing in a
future rulemaking and continues to seek comment on the attributes DOE
should consider as part of its verification testing program. See Issue
2 under ``Issues on Which DOE Seeks Comment'' in section V of this
NOPR. The Department believes that a self-certification approach,
coupled with an appropriate verification program and robust
enforcement, can facilitate compliance without unduly burdening
manufacturers.
Sampling Procedures for Certification Testing
Under existing regulations, the sampling procedures for certain
consumer products and certain commercial and industrial equipment to be
used for certification testing are set forth in sections 430.24,
431.65, 431.135, 431.174, 431.175, 431.197, 431.205, 431.225, 431.265,
431.295, and 431.328. In the RFI, the Department sought comment
regarding any needed changes in the current sampling plan for
certification testing and the reasons the changes are warranted for a
given product. The majority of comments DOE received on this issue were
from manufacturers, who were all in agreement that the current sampling
plans for certification is adequate and do not require change. Two
trade associations commented similarly. Additionally, one advocacy
group stated that the sampling plans for certification and enforcement
testing should be similar, but may vary in some details including how
the samples are procured, or sample size.
For this rulemaking, DOE is consolidating existing sampling
provisions in Part 429 and establishing sampling provisions for the
types of consumer products and commercial equipment that do not
currently have them. Section 323(b)(3) of EPCA, 42 U.S.C. 6293(b)(3),
requires a test procedure be reasonably designed to produce results
measuring energy efficiency or energy use and not be unduly burdensome
to conduct. DOE is proposing the use of a statistically meaningful
sampling procedure for selecting test specimens of consumer products
and commercial and industrial equipment to reduce the testing burden on
manufacturers, while giving sufficient assurance that the true mean
energy efficiency of a basic model meets or exceeds the represented
measure of energy efficiency. The represented measure of energy
efficiency is determined by the manufacturer based on the application
of certification testing and DOE's sampling procedures.
DOE reviewed the existing sampling plans for consumer products and
commercial and industrial equipment, which provided guidance on how
many and which units to test to determine compliance. After reviewing
the existing certification and enforcement sampling plans for consumer
products and commercial and industrial equipment, DOE is proposing that
the manufacturer select a sample at random from a production line and,
after each unit or group of units is tested, either accept the sample
or continue sampling and testing additional units until a rating
determination can be made. As in the existing regulations, DOE does not
propose a specific sample size for each product because the sample size
is determined by the validity of the sample and how the mean compares
to the standard, factors which cannot be determined in advance.
Moreover, DOE believes that testing a randomly selected sample until a
determination is reached is a method that arrives at a statistically
valid decision on the basis of fewer tests than fixed-number sampling.
As with the existing regulations, DOE is continuing to propose that
manufacturers randomly select and test a sample of production units of
a representative basic model, and then calculate a simple average of
the values to determine the actual mean value of the sample. The
confidence limits and coefficients are product specific and intended to
reasonably reflect variations in materials, the manufacturing process,
and testing tolerances. The proposed sampling plans for certification
testing can be found in section 10 CFR 429.9 of the regulatory text.
DOE is continuing to consider further changes to the sampling plans
for certification testing of all consumer products, including: (1)
Changes to the product-specific coefficients and the rationale for such
changes; (2) whether DOE should continue using sampling plans for
certification testing, which provide manufacturers with the option of
using the calculated values resulting from applying the criteria set
forth in proposed section 10 CFR 429.9 or another representative value
meeting the criteria in proposed section 10 CFR 429.9; (3) whether DOE
should continue to have different sampling plans for certification
testing and enforcement testing; and (4) whether DOE should expand the
submission of data requirements in the certification section to include
test data and the details of the sampling procedures used for making
representations of and certifying compliance with the energy and water
use or efficiency.
In addition, DOE is considering adding sampling plans and
tolerances for other features of covered products and covered equipment
which impact the water or energy characteristics of a product. For
example, DOE could add a sampling provision for the measured storage
volume of residential water heaters. The representative value of the
measured storage volume could then be used in determining the energy
efficiency of the product. DOE is seeking comment on this approach, and
the methodologies DOE should consider if it decides to extend the
sampling provisions to features other than the regulatory metrics. See
Issue 3 under ``Issues on Which DOE Seeks Comment'' in section V of
this NOPR.
c. Provisions Specific to Commercial HVAC and WH Equipment, Including
the Use of AEDMs and VICPs
Currently, DOE's sampling procedures for certification testing of
commercial HVAC and WH are based on provisions allowing the use of an
AEDM and whether a manufacturer participates in a VICP. See 10 CFR
431.174-176. DOE is continuing to allow the use of AEDMs for commercial
HVAC and WH equipment once the manufacturer has met the criteria in 10
CFR 429.23 of the proposed rule. Currently, DOE has provisions
requiring more stringent criteria for testing and the use of AEDMs for
those manufacturers opting not to participate in a VICP. Specifically,
DOE requires non-VICP manufacturers to conduct independent testing, use
DOE-prescribed sampling plans, and obtain DOE approval of its AEDMs (if
applicable) before those methods may be used for compliance
certification purposes. In addition, DOE requires that non-VICP
manufacturers file a
[[Page 56803]]
compliance statement and certification report directly to DOE.
In this NOPR, DOE is proposing to simplify the procedures governing
sampling plans for certification testing, voluntary programs, and AEDM
verification. Specifically, DOE is proposing one set of procedures for
all types of commercial HVAC and WH equipment regardless of
participation in a VICP. In particular, DOE is proposing that the
sampling procedures currently applicable for non-VICP members be used
for certification testing of all types of commercial HVAC and WH
equipment and verification of the AEDM. DOE is proposing to allow
manufacturers to use both in-house testing facilities and independent
laboratories at the manufacturer's discretion for certification
testing. Lastly, DOE is continuing to allow third-party certification
of compliance statements and certification reports regardless of
participation in a VICP. DOE believes this approach treats all
manufacturers equally and will simplify the provisions applicable to
commercial HVAC and WH equipment.
Even though DOE wants to encourage the use of voluntary industry
certification programs, DOE is not proposing modifications to DOE's
provisions defining VICPs at this time. However, DOE is considering
imposing a verification testing requirement for all product and
equipment types. Such a requirement may entail changes to the current
provisions governing VICPs in the second certification, compliance, and
enforcement rulemaking. DOE thus seeks comment regarding the criteria
defining VICPs and the use of VICPs in DOE's certification, compliance,
and enforcement programs. Specifically, DOE requests comment about the
requirements and details for verification testing programs (e.g., the
use of an independent testing laboratory, a specific number of samples
randomly tested, etc.) and the actions taken by the VICP in conjunction
with DOE when a unit is found to have failed the verification testing
program of the VICP. See Issue 4 under ``Issues on Which DOE Seeks
Comment'' in section V of this NOPR.
10. Records
Maintenance of Records
DOE proposes to establish a record retention requirement for
certification reports that corresponds to the time period established
for retention of test data under sections 430.62(d) and 431.371(d).
This would require certification reports, along with the underlying
certification test data that is already required to be retained under
sections 430.62(d) and 431.371(d), to be retained by the manufacturer
as long as the model is being distributed in commerce and, for
discontinued models, for two years from the date that production of a
basic model has ceased and is no longer being distributed by the
manufacturer.
b. Public Records
In response to the RFI, two advocacy groups provided comments in
support of making certification data publicly available. To that end,
DOE proposes to clarify in its regulations that the following
information submitted pursuant to the certification requirements is
considered public information: the manufacturer's name, brand name,
model number(s), and all of the product-specific information submitted
on the certification report.
C. Enforcement Testing and Adjudication
DOE proposes the following amendments relating to its enforcement
testing and adjudication requirements.
1. Enforcement Testing
a. Initiation of Enforcement Action
Pursuant to EPCA, DOE has authority to initiate enforcement actions
to ensure compliance with its standards. The current regulations
provide for enforcement testing upon DOE's receipt of written
information that a covered product or covered equipment may be
violating a standard. DOE proposes to revise its procedures to make
clear that, pursuant to section 6296 of EPCA, the Department retains
the discretion to request data, test, or examine the standard
compliance of any covered product or covered equipment at any time. DOE
may initiate enforcement testing on its own and is not required to rely
solely on receipt of written information from another entity.
In response to DOE's questions relating to enforcement testing set
forth in the RFI, three commenters asserted that DOE should have
broader authority to initiate an enforcement proceeding, while six
commenters argued that the standard of proof required to initiate a
proceeding should be higher. Four commenters said they would support
greater flexibility in enforcement procedures as long as plumbing
products are excluded from those changes.
After consideration of these comments, DOE continues to believe
that it is essential to align its regulations with its broad statutory
authority under EPCA to initiate enforcement investigations and actions
to determine if a covered product or covered equipment is compliant.
This will ensure that the Department can enforce its regulations in a
timely, effective manner as Congress intended. The enforcement program
simply cannot be as effective if the Department can only initiate
enforcement testing upon the receipt of an external complaint--DOE must
be able to monitor compliance and test products at its own discretion.
Furthermore, the ability of the Department to request records, test
products, or examine design standard compliance, at any time, is
crucial to the deterrent effect of the Department's enforcement
efforts. Making clear the Department's authority as established by
Congress to take these actions--in and of itself--will encourage
compliance. Thus, the Department is proposing regulations for all
covered products and covered equipment that make plain its authority to
monitor compliance by requesting data and testing products, at any
time, and to initiate enforcement investigations and actions based on a
belief that a covered product or covered equipment is not compliant
with an applicable standard.
Test Notice
DOE proposes to change the current requirements relating to the
time period by which a manufacturer must ship test units of a basic
model to the testing laboratory pursuant to a test notice. DOE proposes
to reduce the time period from 5 to 2 days, in order to ensure that the
enforcement testing process is not unnecessarily delayed. Because
select units are already boxed for shipping in most cases, DOE believes
this will not impose additional burden on manufacturers.
Sampling for Enforcement Testing
The sampling procedures to be used for enforcement testing are set
forth in Appendix B to Subpart F of Part 430, Appendix B to Subpart K
of Part 431, Appendix C to Subpart S of Part 431, and Appendix D to
Subpart T of Part 431. Currently, the existing sampling plans for
enforcement testing of consumer products require testing an initial
sample of four products. Then, depending on the standard deviation of
the results of the initial sample, a second sample size of up to 16
additional units may need to be tested to make a determination of
compliance or non-compliance. DOE recognizes a sample size of 20 total
units may not always be available for basic models that are low-volume
and built-to-order. To accommodate these circumstances and reduce
burden on manufacturers, DOE proposes to modify the existing
[[Page 56804]]
sampling procedures for consumer products to account for low-volume and
built-to-order basic models. DOE has modeled these provisions on the
existing enforcement sampling provisions for commercial and industrial
equipment, where low-volume and built-to-order manufacturing is more
common. Further, DOE proposes to retain the discretion to determine
whether the basic model qualifies as low-volume or built-to-order. DOE
proposes to make such determination by evaluating the number of units
of a given basic model available at the manufacturer's site and all
distributors.
Test Procedure Guidance and Enforcement Testing
DOE has launched a new online database offering guidance on the
Department's test procedures for consumer products and commercial
equipment. The new database will provide a publicly accessible forum
for anyone with questions about--or needing clarification of--DOE's
test procedures. This new online resource will also ensure that all
manufacturers and members of the public are equally and immediately
aware of the Department's interpretations of its test procedures. The
database is available here: http://www1.eere.energy.gov/guidance/default.aspx?pid=2&spid=1.
In response to questions submitted, the Department will develop
draft interpretive guidance, post it on the public database, and
solicit public comment for a period of 30 days. At the end of that
comment period, draft guidance documents may be adopted as final,
revised, or withdrawn. Guidance marked as final and posted on the
database represents the definitive interpretation of the Department on
the questions addressed and may be relied upon by industry and members
of the public. DOE wishes to make clear that any test procedure
guidance that is marked final on DOE's database will be used by DOE
when conducting enforcement testing.
e. Test Unit Selection
i. Collection Method
In order to allow for maximum flexibility in obtaining test units
for enforcement testing and to discourage units from being chosen that
may not be representative of the product that the consumer receives,
DOE proposes to revise its test unit selection provisions for
enforcement testing to allow DOE to select the units of a basic model
to be tested and to provide that, at DOE's discretion, those units
could come from the manufacturer, a distributor, or directly from the
retailer.
In response to questions in the RFI regarding test unit selection,
DOE received several comments from various parties. One advocacy group,
one manufacturer, and two trade associations supported test unit
selection directly from retail sources. Another trade association and
two manufacturers commented that manufacturers should be given the
opportunity to determine where the products can be best selected. In
the case of low-volume products, commenters suggested that DOE settle
for built-to-order products or manufacturer written assurances.
Reliable enforcement testing requires the selection and testing of
an unbiased sample that is representative of the units distributed in
commerce. DOE believes that providing Departmental flexibility in the
test unit selection method will allow for the most reliable testing.
Therefore, DOE proposes to provide in its regulations that units of a
basic model to be tested for enforcement purposes may come from the
distributor or retailer, as well as from the manufacturer. With regard
to units that are specifically built-to-order or produced in low
volume, the Department will determine the most reliable method of
selecting units that are representative of those sold to consumers.
ii. Selection Process
In selecting test units for enforcement testing, existing
regulations require a DOE representative to select a batch sample of up
to 20 units, and test units from the batch sample. This requirement was
intended to ensure that sufficient units were available for testing and
to help prevent bias by requiring random sampling and by the quarantine
of units at the outset of enforcement testing. DOE has found that this
selection process is not always feasible due to varying production
volume and distribution mechanisms. The Department proposes to revise
this requirement to allow greater flexibility when selecting a sample
for testing. Specifically, DOE proposes that DOE need not select a
batch sample when it selects units off the retail shelf. In such
circumstances, there is less concern about sample bias and no need to
quarantine additional units. The proposed approach will minimize the
burden on a manufacturer, while still allowing DOE to obtain a valid
sample.
DOE also proposes that, for particular products, the size of the
sample selected may vary depending on the statistical sampling
procedures that apply to the particular product for enforcement
purposes. This variability exists for certain commercial equipment in
the current regulations and reflects known variations in materials, the
manufacturing process, and testing tolerances. To address production
environments, such as build-to-order manufacturing or low volume
production requirements, DOE is also proposing a new provision that
will allow DOE to make a determination of compliance where a
statistically valid sample size cannot be obtained.
DOE proposes to increase the maximum sample size to 21 units in
order to account for the test sample needed for certain types of
consumer lighting products. Additionally, DOE proposes to allow units
tested using the applicable DOE test procedure by DOE or another
Federal agency, pursuant to other provisions or programs, to count
toward units in the test sample, so long as the testing is done in
accordance with the DOE test procedures and certification testing
provisions. In this way, the Department will not have to duplicate
efforts already taken by itself or other agencies to test units for
compliance. For example, if a unit was tested under the ENERGY STAR
verification program, DOE is proposing to allow these test units and
results to count towards the sample for enforcement testing.
iii. Cost Allocation for Unit Selection
In the RFI, the Department solicited comments on whether the cost
allocation for test units should be the same regardless of how the
units are obtained (e.g. off-the-shelf or manufacturer provided). DOE
received two comments on this issue from manufacturers. In particular,
one manufacturer asserted that the cost allocation should be the same
regardless of how the product is obtained. On the contrary, another
manufacturer argued that DOE should pay the cost if units are selected
off-the-shelf. Section 6296(b)(3) of EPCA provides DOE with the
authority to require a manufacturer to supply at its expense covered
products and covered equipment to DOE for testing. Consistent with this
statutory directive, DOE proposes to require manufacturers to continue
to assume the expense of supplying basic models for enforcement
testing, including reimbursing the distributor or retailer for any
units DOE has directly acquired from such distributer or retailer, not
to exceed twenty-one units.
f. Testing at Manufacturer's Option
In the RFI, DOE requested comments on whether to remove the
provision in
[[Page 56805]]
section 430.70(a)(6) relating to testing at the manufacturer's option
if a basic model is determined to be in noncompliance with the
applicable conservation standard at the conclusion of DOE testing. DOE
received five comments from manufacturers arguing that manufacturers
should be given the opportunity to request a repeat of the tests. The
Department wishes to clarify that current regulations do not provide
for manufacturers to test the same units that DOE has already tested.
On the contrary, sections 430.70(a)(6) and 431.383(f) merely allow
manufacturers to increase the testing sample size. Because
manufacturers can perform additional testing on their own at any time,
the Department proposes to remove existing sections 430.70(a)(6) and
431.383(f). There is no statutory requirement that manufacturers be
given additional opportunities to test units found by DOE to be
noncompliant, and the Department believes that such additional testing
will only serve to delay the enforcement process.
g. Cost Allocation for Testing
In the RFI, DOE solicited comments relating to the distribution of
costs for enforcement testing. Currently, enforcement testing is done
at the Department's expense. Most commenting manufacturers argued that
DOE should be responsible for paying the cost of testing appliances,
while one non-profit organization stated that the manufacturers should
bear the cost. Three commenters suggested that DOE should pay if the
manufacturer was found to be in compliance, and the manufacturer should
pay if it was not. Commenters also urged DOE to limit testing where
possible and to conduct targeted challenge testing rather than random
tests. One commenter suggested that DOE should create an online testing
cost calculator.
DOE tentatively concludes that the cost of enforcement testing
should remain with the Department and is not proposing a change at this
time.
2. Adjudication
a. Improper Certification
DOE proposes to explicitly establish in its rules that a
manufacturer's failure to properly certify a covered product or covered
equipment and retain records in accordance with DOE regulations may be
subject to enforcement action, including the assessment of civil
penalties, separate from any determination of whether a covered product
or covered equipment does or does not comply with the applicable
conservation standard. While existing regulations already provide for
enforcement action to be taken for improper certification or upon a
determination of noncompliance, to eliminate any uncertainty, the
Department proposes to make clear that a failure to certify covered
products and covered equipment in accordance with the DOE rules is an
independent violation of EPCA and DOE's implementing regulations that
may be subject to enforcement action.
b. Failure To Test
The Department proposes to clarify in its regulations that a
failure to test any covered product or covered equipment subject to any
of the conservation standards would be a violation of the applicable
conservation standard.
c. Distribution in Commerce After Notice of Noncompliance Determination
DOE proposes to revise its regulations to make clear that a
manufacturer or private labeler's distribution in commerce of a basic
model after a notice of noncompliance determination has been issued
would constitute a prohibited act subject to enforcement action.
d. Knowing Misrepresentation
DOE proposes to establish enforcement steps to be taken to address
those instances where a knowing misrepresentation has occurred. This
may arise where a covered product or a covered equipment meets the
applicable conservation standard, but not at the efficiency level that
has been claimed.
e. Penalties
Existing statutory authority under EPCA allows DOE to assess civil
penalties for knowing violations. Under section 6303 of the statute,
each unit of a covered product or covered equipment found to be in
violation of a prohibited act, such as failure to meet an applicable
conservation standard, constitutes a separate violation. For
certification requirement violations, per statutory authority and DOE
guidance, the Department will calculate penalties based on each day a
manufacturer distributes each basic model in commerce in the United
States without having submitted a certification report. DOE proposes to
revise its regulations to clearly state this penalty procedure.
Additionally, DOE proposes to explicitly state in its regulations that,
consistent with its guidance, it will consider numerous factors in
assessing civil penalties, including: the nature and scope of the
violation; the provision violated; the violator's history of compliance
or noncompliance; whether the violator is a small business; the
violator's ability to pay; the violator's timely self-reporting of the
violation; the violator's self-initiated corrected action, if any; and
such other matters as justice may require.
f. Imposition of Additional Certification Testing Requirements as
Remedy for Non-Compliance
As an additional tool to ensure compliance with the DOE
conservation standards and regulations, the Department proposes to
revise its regulations to provide that the DOE may require independent,
third-party testing for certification of covered products and covered
equipment where DOE has determined a manufacturer or private labeler is
in noncompliance with the certification requirements or applicable
conservation standards.
g. Compromise and Settlement
The Department proposes to outline the steps to be taken by both
parties (DOE and respondent) once a compromise or settlement offer has
been made.
D. Verification Testing
In the RFI, DOE requested comments relating to a possible new
requirement for periodic verification testing by manufacturers that
would be applicable to all basic models certified to DOE. This
requirement would be used to verify that the units distributed into
commerce continue to perform at the certified levels. In particular,
DOE solicited comments on whether manufacturers and/or private labelers
should be required to perform verification testing according to certain
conditions and criteria. DOE received extensive comments and
suggestions on this issue, relating to costs, coverage, unit selection,
information flow, testing labs and methodology. At this time, DOE has
not yet made a determination as to the development of a verification
program and instead has focused its initial efforts on revising its
certification, enforcement testing and adjudication regulations. An
effective verification program must be carefully crafted to balance the
benefits of regularized compliance monitoring against the additional
testing burdens on manufacturers. Moreover, such a program must be
consistent and fair across all regulated product types, while
accounting for legitimate differences in the diverse products covered
by EPCA. DOE continues to seek comments about how to best balance the
competing interests and achieve the Department's overarching objective
of ensuring compliance with the Federal
[[Page 56806]]
conservation standards. Specifically, DOE requests comment about the
requirements and details for verification testing programs (e.g., the
use of an independent testing laboratory and a specific number of
samples that should be randomly tested for each product).
E. Waivers
DOE also addressed the possibility of establishing a mandatory
waiver requirement in the RFI. This would obligate manufacturers to
obtain a waiver where the test procedure does not evaluate the energy
or water consumption characteristics in a representative manner or
where the test procedure yields materially inaccurate comparative data.
The majority of comments the Department received in response to this
information request agreed that DOE has authority to grant waivers, but
were divided on whether the waiver requirement will hold new authority
or whether it is just replicating an existing process. One commenter in
support of the waiver process pointed out that a waiver can act as a
sign that a test procedure is out-of-date. Another commenter urged the
DOE to seek advice from relevant trade associations and standards
committees before issuing a waiver. A third commenter argued that
manufacturers should not be required to obtain a waiver at all if the
test procedure does not address a specific product design.
In view of these comments, the Department will continue to monitor
the market to ensure that a manufacturer does not receive an unfair
advantage due to product characteristics.
F. Additional Product Specific Discussions and Issues for Which DOE
Continues To Seek Comment
1. Clarification of Entity Responsible for Compliance for Walk-In
Coolers or Freezers
In response to the test procedure notice of proposed rulemaking for
walk-in coolers or freezers (WICFs), several interested parties
commented on DOE's interpretation of the compliance testing
responsibility associated with the role of ``manufacturer''. 75 FR 186
(January 4, 2010). Consistent with the Department's consolidation of
certification and enforcement provisions for all products into one
section, we propose to address this issue as a part of today's NOPR.
In the comments on the test procedure notice, Craig cautioned that
not holding contractors, end-users, or wholesalers accountable for WICF
performance would remove the incentive for these entities to ensure
compliance. It suggested that this would put manufacturers, who would
be required to demonstrate compliance, at a competitive disadvantage
due to testing costs to the manufacturers and cost differences to the
end users. (EERE-2008-BT-TP-0014, Craig, No. 1.3.017 at p. 2 and Public
Meeting Transcript, No. 1.2.010 at pp. 140 and 179) Kysor suggested
that the general contractor at the end-use site could certify the WICF,
as general contractors already go through a certification process for
other parts of a building. (EERE-2008-BT-TP-0014, Kysor, Public Meeting
Transcript, No. 1.2.010 at pp. 66 and 75-76) Arctic added that a
manufacturer does not have complete control over WICF efficiency
because the end-user's behavior can also affect WICF performance.
(EERE-2008-BT-TP-0014, Arctic, Public Meeting Transcript, No. 1.2.010
at p. 80)
Others commented on the role of the installer--that is, the entity
who places or constructs the WICF in its end use location--in ensuring
compliance with the regulation. Craig, Schott Gemtron, and Bally stated
that the installer should be considered the manufacturer and thus be
held responsible for ensuring compliance. Bally stated that
infiltration in particular depends on the ability of the installer and
that Bally does not control the installation procedure. (EERE-2008-BT-
TP-0014, Bally, Public Meeting Transcript, No. 1.2.010 at p. 132)
Schott Gemtron stated that incorrect installation affects WICF
performance, which, in its view, should be the responsibility of the
installer because WICF manufacturers cannot ensure proper installation.
(EERE-2008-BT-TP-0014, Schott Gemtron, Public Meeting Transcript, No.
1.2.010 at pp. 67 and 139)
Craig agreed that the manufacturer cannot control installation in
the field, but Craig also mentioned that testing at the point of
installation would be infeasible if every application would need to be
tested. (EERE-2008-BT-TP-0014, Craig, Public Meeting Transcript, No.
1.2.010 at pp. 70-71) Craig recommended that DOE define the installer
as the manufacturer and hold the installer responsible for compliance,
or, alternatively, require that the manufacturer assume responsibility
and control of all aspects of the process--including installation--so
that the manufacturer could verify that the WICF is tested correctly
and meets DOE's requirements. (EERE-2008-BT-TP-0014, Craig, No. 1.3.017
at p. 1 and Public Meeting Transcript, No. 1.2.010 at pp. 23, 25 and
52)
American Panel contended that a requirement for a factory
representative to oversee installation would be cost prohibitive to the
end user. (EERE-2008-BT-TP-0014, American Panel, Public Meeting
Transcript, No. 1.2.010 at pp. 74 and 79) Kason urged DOE not to
consider the installer the manufacturer because installers have no
control over system design and components. (EERE-2008-BT-TP-0014,
Kason, No. 1.3.0XX at p. 1) American Panel agreed that the installer
should not be part of the testing and certification process set forth
by DOE. (EERE-2008-BT-TP-0014, American Panel, No. 1.3.024 at p. 3)
In general, the ``manufacturer'' is the entity responsible for
compliance with any DOE performance standard. EPCA defines the term
``manufacture'' as ``to manufacture, produce, assemble or import.'' 42
U.S.C. 6291(10) The breadth of this definition leaves open numerous
entities that could be held responsible for compliance with a WICF
performance standard. To clarify the application of this term in the
case of WICFs, DOE proposes that the term be applied to the entity
responsible for designing and/or selecting the various components used
in a WICF. The term could apply to different entities in different
situations. If an entity physically manufactures all components that
comprise the WICF, that entity would be considered the manufacturer.
Alternatively, if an entity physically manufactures some of the
components that comprise the WICF and purchases other components from a
supplier, and assembles all components into a complete WICF or supplies
all components as a complete kit for assembly at a customer's site,
that entity would be considered the manufacturer. In this context, a
third party that does not manufacture any components but rather chooses
the components that comprise the WICF, would be considered the
manufacturer of the WICF for purposes of EPCA. DOE believes this
addresses Craig's concern that certain parties involved in the
manufacture of a WICF could be put at a competitive disadvantage to
others.
While DOE recognizes that incorrect installation or use could
affect the performance of the WICF, as stated by Craig, Schott Gemtron,
and Bally, DOE believes that testing and compliance responsibility in
the case of WICFs should not rest with an entity that simply installs
this equipment. This is because an entity who solely installs the
equipment, and does not make design decisions about the components that
are included in the equipment, would not be in a position to certify
compliance with the regulations, as suggested by American Panel and
Kason. Therefore, DOE proposes that entities responsible
[[Page 56807]]
for physical installation of the system would not be required to
certify compliance if they do not otherwise meet criteria for being
considered the manufacturer, assuming that the envelope or
refrigeration system is physically assembled in accordance with the
applicable technical specifications developed by the manufacturer.
The unique nature of WICFs requires DOE to consider carefully the
assignment of compliance-related responsibilities. The high level of
customization that appears in a significant number of WICF requires DOE
to apply its requirements in a manner that recognizes the issues
presented by this market. Accordingly, while DOE could opt to require
every entity in the manufacturing chain to certify compliance, or even
assign that responsibility solely to the installer, the agency believes
that the entity who designs the WICF and/or selects components of a
WICF, is in the best position to ensure that the WICF, when properly
installed, will satisfy the required standard. DOE believes that this
approach best balances the equities involved with the manufacture and
installation of this type of equipment. Accordingly, DOE proposes the
following definition of manufacturer of a WICF:
Manufacturer of a walk-in cooler or walk-in freezer means any
person who manufactures, produces, assembles or imports such a walk-in
cooler or walk-in freezer, including any person who:
(1) Manufactures, produces, assembles, or imports a walk-in cooler
or walk-in freezer in its entirety, including the collection and
shipment of all components that affect the energy consumption of a
walk-in cooler or walk-in freezer;
(2) Manufactures, produces, assembles or imports a walk-in cooler
or walk-in freezer in part, and specifies or approves the walk-in
cooler or walk-in freezer's components that affect energy consumption,
including refrigeration, doors, lights, or other components produced by
others, as for example by specifying such components in a catalogue by
make and model number or parts number;
(3) Is any vendor who sells a walk-in cooler or walk-in freezer
that consists of a combination of components that affect energy
consumption, which are not specified or approved by a person described
in paragraph (1) or (2) of this definition; or
(4) Is an individual or a company who arranges for a walk-in cooler
or walk-in freezer to be assembled at his own or any other specified
premises from components that affect energy consumption, which are
specified and approved by him and not by a person described in
paragraph (1), (2), or (3) of this definition.
DOE believes the burden on manufacturers of certifying compliance
with these prescriptive standards will be minimal because no test is
necessary to determine compliance with most of the requirements. The
chief burden imposed by this rule is a certification report burden of
providing DOE information to show that the product is in compliance
with the design standards in EISA 2007. DOE is proposing that
manufacturers use the online CCMS templates that DOE develops. DOE
notes that the manufacturer, as defined, will be required to certify to
DOE that the equipment meets the prescriptive requirements, rather than
the general contractor as suggested by Kysor, unless the general
contractor meets the criteria for being considered the manufacturer.
Furthermore, although the end user's behavior does affect WICF
performance as stated by Arctic, DOE will not consider the end user
responsible for compliance unless the end user meets the criteria for
being considered the manufacturer.
In addition, DOE's regulations for WICF specify a test for one
requirement: EPCA contains R-value requirements for insulation and
states, ``for the purpose of test procedures for WICF: The R-value
shall be the 1/K factor multiplied by the thickness of the panel. The K
factor shall be based on ASTM test procedure C518-2004.'' 42 U.S.C.
6314(a)(9)(A)(i)-(ii). This means that ASTM C518-2004 must be used to
test foam to determine its R-value. However, for purposes of certifying
compliance with the R-value requirements, the manufacturer may elect to
use the test procedure to test the foam that they use, or the
manufacturer may rely on the results of testing done by a third party
on their behalf, for instance, a test lab or the foam supplier.
Nevertheless, the manufacturer is still responsible for complying with
the standard.
2. Submission of Data Requirements for Fluorescent Lamp Ballast
Under DOE's existing regulations, fluorescent lamp ballast
manufacturers currently are not required to submit compliance
statements and certification reports. In March 2010, DOE published a
test procedure NOPR that proposed submission of data requirements for
fluorescent lamp ballasts that would become effective one year
following the final rule publication of such requirements. 75 FR 14288
(March 24, 2010).
In response to that proposal, Earthjustice, the Northwest Energy
Efficiency Alliance (NEEA), Northwest Power and Conservation Council
(NPCC) and several CA utilities supported the addition of submission of
data requirements. (EERE-2009-BT-TP-0016; NEEA & NPCC, No. 32 at p. 10;
Earthjustice, No. 14 at p. 1; CA Utilities, No. 13 at p. 3)
Earthjustice added that as there have been no changes made to the test
procedure that would require retesting to determine compliance with
existing standards, there is no justification for permitting a full
year before manufactures must submit data. It cited a precedent (74 FR
65105 (December 9, 2009)) in which DOE allowed a timeline of 30 days
for manufactures to submit required certification reports and
compliance statements. Earthjustice also commented that DOE should
publish a separate final rule to require written documentation of
compliance with energy conservation standards on an accelerated
timeframe in advance of the full test procedure final rule. (EERE-2009-
BT-TP-0016; Earthjustice, No. 14 at p. 1)
DOE agrees that fluorescent lamp ballasts should be included in the
provisions for written documentation of compliance with energy
conservation standards on an accelerated timeline. For that reason, DOE
is proposing to include provisions for the certification of fluorescent
lamp ballasts. The proposed revisions will require that ballast
manufacturers follow all existing provisions of subpart F of 10 CFR
part 430 and report ballast efficacy factor, power factor, number of
lamps operated by the ballast, and type of lamp operated by the
ballast.
3. Certification, Compliance, and Enforcement for Electric Motors
As explained throughout the NOPR, DOE has not proposed moving or
changing any of the certification, compliance, and enforcement
provisions related to electric motors. However, DOE will be considering
consolidating the provisions, as applicable, with the proposals from
today's NOPR in the second certification, compliance, and enforcement
rulemaking. Consequently, DOE is seeking comments on the existing
provisions for electric motors, including any previous proposals for
small electric motors and any changes DOE should consider in the next
rulemaking applicable to these products.
In the next certification, compliance, and enforcement rulemaking,
DOE will consider an annual certification requirement for motors
similar to what
[[Page 56808]]
it is proposing for all other types of covered products and covered
equipment in today's proposed rule. In light of the annual requirement
for other products, DOE specifically seeks comment on if and how the
certification compliance numbers for electric motors could be modified
to clearly demonstrate compliance when there is a change in the Federal
energy conservation standards for these products. See Issue 5 under
``Issues on Which DOE Seeks Comment'' in section V of this NOPR.
4. Enforcement for Imports and Exports
As DOE puts an additional emphasis on enforcing its regulatory
program, DOE believes that some of the proposals in today's notice will
aid in enforcing DOE's regulations relating to products imported and
exported from the United States. Specifically, DOE is proposing to
modify the label on exported products to read ``NOT FOR SALE IN THE
UNITED STATES'' to make it clear that this product is not for
distribution in commerce in the United States. In addition, DOE is
interested in seeking comment from interested parties on how DOE could
modify its certification, compliance, and enforcement provisions to
more effectively enforce at the border. See Issue 6 under ``Issues on
Which DOE Seeks Comment'' in section V of this NOPR.
IV. Procedural Issues and Regulatory Review
E. Review Under Executive Order 12866
Today's regulatory action is not a ``significant regulatory
action'' under section 3(f) of Executive Order 12866. Accordingly, this
action was not subject to review under that Executive Order by the
Office of Information and Regulatory Affairs (OIRA) of the Office of
Management and Budget (OMB).
F. 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 (IRFA) 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 E.O. 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. DOE has made its
procedures and policies available on the Office of General Counsel's
Web site, http://www.gc.doe.gov.
DOE reviewed the certification, compliance, and enforcement
requirements being proposed under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. As discussed in more detail below, DOE found that because a
subset of the proposed certification, compliance, and enforcement
regulations have not previously been required of manufacturers, all
manufacturers, including small manufacturers, could potentially
experience a financial burden associated with new certification,
compliance, and enforcement requirements. While examining this issue,
DOE determined that it could not certify that the proposed rule, if
promulgated, would not have a significant effect on a substantial
number of small entities. Therefore, DOE has prepared an IRFA for this
rulemaking. The IRFA describes potential impacts on small businesses
associated with certification, compliance, and enforcement requirements
on covered products and covered equipment.
DOE has transmitted a copy of this IRFA to the Chief Counsel for
Advocacy of the Small Business Administration (SBA) for review.
1. Reasons for the Proposed Rule
The reasons for this proposed rule are discussed elsewhere in the
preamble and not repeated here.
2. Objectives of and Legal Basis for the Proposed Rule
The objectives of and legal basis for the proposed rule are
discussed elsewhere in the preamble and not repeated here.
3. Description and Estimated Number of Small Entities Regulated
DOE used the small business size standards published on January 31,
1996, as amended, by the SBA to determine whether any small entities
would be required to comply with the rule. 61 FR 3286; see also 65 FR
30836, 30850 (May 15, 2000), as amended at 65 FR 53533, 53545
(September 5, 2000). The size standards are codified at 13 CFR Part
121. The standards are listed by North American Industry Classification
System (NAICS) code and industry description and are available at
http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
This proposed rule potentially impacts manufacturers of almost all
types of covered products and covered equipment subject to DOE's energy
conservation, water conservation, and design standards.
Table IV--1 Small Business Classifications for Covered Products and Covered Equipment
----------------------------------------------------------------------------------------------------------------
NAICS definition
of small Total number of
Covered product or covered equipment type NAICS code manufacturer small
(number of manufacturers
employees)
----------------------------------------------------------------------------------------------------------------
Residential refrigerators, residential refrigerator- 335222 <=1000 1
freezers, and residential freezers....................
Room air conditioners.................................. 333415 <=750 0
Residential central air conditioners and heat pumps.... 333415 <=750 13
Small-duct, high velocity.............................. 333415 <=750 2
Through-the-wall air conditioners and heat pumps....... 333415 <=750 1
Residential water heaters.............................. 335228 <=500 6
Residential furnaces and boilers....................... 333415 <=750 25
Dishwashers............................................ 335228 <=500 0
Residential clothes washers............................ 335224 <=1000 1
Clothes dryers......................................... 335224 <=1000 0
Direct heating equipment............................... 333414 <=500 12
Cooking products....................................... 335221 <=750 2
Pool heaters........................................... 333414 <=500 1
Fluorescent lamp ballasts.............................. 335311 <=750 11
[[Page 56809]]
General service fluorescent lamps...................... 335110 <=1000 1
Incandescent reflector lamps........................... 335110 <=1000 0
Ceiling fans........................................... 335211 <=750 91
Ceiling fan light kits................................. 335211 <=750 91
Torchieres............................................. 335121 <=500 404
Medium base compact fluorescent lamps.................. 335110 <=1000 70
Dehumidifiers.......................................... 335211 <=750 0
External power supplies................................ 335999 <=500 250
General service incandescent lamps..................... 335110 <=1000 67
Candelabra base incandescent lamps..................... 335110 <=1000 67
Intermediate base incandescent lamps................... 335110 <=1000 67
Commercial refrigeration equipment..................... 333415 <=750 20
Commercial warm air furnaces........................... 333415 <=750 3
Commercial packaged boilers............................ 333414 or 332410 <=500 13
Commercial package air-conditioning and heating 333415 <=750 1
equipment.............................................
Packaged terminal air conditioners and heat pumps...... 333415 <=750 6
Single package vertical units.......................... 333415 <=750 5
Commercial water heaters............................... 333319 <=500 7
Automatic commercial ice makers........................ 333415 <=750 2
Commercial clothes washers............................. 333312 <=500 0
Distribution transformers.............................. 335311 <=750 45
Illuminated exit signs................................. 335129 <=500 269
Traffic signal modules and pedestrian modules.......... 335129 <=500 269
Refrigerated bottled or canned beverage vending 333311 <=500 6
machines..............................................
Walk-in coolers and freezers........................... 333415 <=750 45
Metal halide fixtures.................................. 335122 <=500 75
Faucets................................................ 332913 <=500 62
Showerheads............................................ 332913 <=500 42
Water closets.......................................... 327111 <=750 9
Urinals................................................ 327111 <=750 2
Commercial prerinse spray valves....................... 332919 <= 500 8
----------------------------------------------------------------------------------------------------------------
4. Description and Estimate of Compliance Requirements
Many of the certification, compliance, and enforcement provisions
subject to today's final rule are already codified in existing
regulations for consumer products and commercial and industrial
equipment. As a result, DOE expects the impact on all manufacturers to
be minimal. Many of the changes being proposed in today's final rule
surround expanding DOE's existing certification requirements and could
slightly increase the recordkeeping burden. DOE does not expect
manufacturers of all types to incur any capital expenditures as a
result of the proposals, since the rulemaking does not impose any
product-specific requirements that would require changes to existing
plants, facilities, product-specifications, or test procedures. Rather,
this rule clarifies sampling requirements and imposes certain data
reporting requirements, which may have a slight impact on labor costs.
With regard to sampling for certification testing, this rule
clarifies that the minimum number of units tested for certification
compliance must be no less than 2 unless a different minimum number is
specified. DOE does not believe this specification increases the
testing burden on manufacturers because DOE has always required a
minimum of 2 samples, if not more, to achieve a realistic sample mean
and to mitigate the risk of a product to be out of compliance. For a
small number of products, DOE is proposing statistical sampling
procedures that are based on previously established procedures for
consumer products and commercial equipment. These procedures are
designed to keep the testing burden on manufacturers as low as
possible, while still providing confidence that the test results can be
applied to all units of the same basic model. In some cases,
manufacturers are permitted to use analytical procedures, such as
computer simulations, to determine the efficiencies of their products,
which will further minimize testing burden.
With regard to certification, the proposal considers requiring
manufacturers of covered products and covered equipment to certify
annually that their products meet the applicable energy conservation
standard, water conservation standard or design standard. It is
expected that manufacturers will re-submit the original certification
testing information each year for basic models with no modifications
affecting energy consumption, water consumption, or design. As DOE
currently requires manufacturers to submit certification information at
the introduction of a new or modified basic model, DOE does not
anticipate that annual certification on products already submitted will
add substantial additional burden to manufacturers.
The cost of certification testing will depend on the number of
basic models a manufacturer produces. The cost of certifying should be
minimal once testing for each basic model has occurred pursuant to the
test procedures prescribed by DOE.
DOE estimates that a typical firm would spend approximately 20
hours complying with the additional certification, compliance, and
enforcement procedures being considered in today's proposed rule. This
estimate does not include any testing burden, which results from DOE's
test procedures. DOE has already considered this burden on all
[[Page 56810]]
manufacturers in the test procedure rulemakings for individual
manufacturers. Instead, this burden represents the time it would take a
certification engineer to gather the appropriate data, apply the
statistical sampling methods required, and submit the required
certification to DOE both for new basic models and on an annual basis.
DOE has tried to mitigate the impacts on all manufacturers by aligning
the annual certification schedule with the Federal Trade Commission's
model submission schedule for consumer products. At most, DOE expects
an average manufacturer to allocate 4 of the 20 hours to meeting the
annual certification reporting requirement.
DOE notes that these values likely overestimate the manufacturer
reporting burden, as the Federal Trade Commission currently requires
annual submission of data regarding all basic models distributed into
commerce for consumer products, and many voluntary programs also
require annual data submission.
In addition, to minimize the impact that annual certification
filings may have on manufacturers, DOE has introduced the online CCMS
system through which manufacturers would be required to submit their
products for certification. In addition, DOE is making available CCMS
templates for each product, which clearly lay out the certification
requirements for each covered product and covered equipment.
5. Duplication, Overlap, and Conflict With Other Rules and Regulations
DOE is not aware of any rules or regulations that duplicate,
overlap, or conflict with the proposed rule being considered today.
6. Significant Alternatives to the Rule
This section considers alternatives to the proposals in today's
certification, compliance, and enforcement rulemaking. DOE could
mitigate the small potential impacts on small manufacturers by reducing
the number of samples used, eliminating the annual certification
filing, or by expanding the groupings of models. However, DOE strongly
believes the proposals in today's rulemaking are essential to a
sustainable and consistent enforcement program for all of the covered
products and covered equipment. While these alternatives may mitigate
the potential economic impacts on small entities compared to the
proposed provisions, the ability for DOE to enforce its energy
conservation regulations far exceeds any potential burdens. Thus, DOE
rejected these alternatives and is proposing the certification,
compliance, and enforcement provisions set forth in this rulemaking for
all manufacturers of covered products and covered equipment. DOE
continues to seek input from businesses that would be affected by this
rulemaking and will consider comments received in the development of
any final rule.
C. Review Under the Paperwork Reduction Act
1. Description of the Requirements
DOE is developing regulations to implement reporting requirements
for energy conservation, water conservation, and design standards, and
to address other matters including compliance certification, prohibited
actions, and enforcement procedures for covered consumer products and
commercial and industrial equipment covered by EPCA.
DOE is proposing to require manufacturers of covered consumer
products and commercial and industrial equipment to maintain records
about how they determined the energy efficiency, energy consumption,
water consumption or design features of their products. DOE is also
proposing to require manufacturers to submit a certification report
indicating that all basic models currently produced comply with the
applicable standards using DOE's testing procedures, as well as include
the necessary product specific certification data. The certification
reports are submitted for each basic model, either when the
requirements go into effect (for models already in distribution) or
when the manufacturer begins distribution of a particular basic model,
and annually thereafter. Reports must be updated when a new model is
introduced or a change affecting energy efficiency or use is made to an
existing model. The collection of information is necessary for
monitoring compliance with the conservation standards and testing
requirements for the consumer products and commercial and industrial
equipment mandated by EPCA.
The information that would be required by these regulations, if
finalized, and that is the subject of this proposed collection of
information, would be submitted by manufacturers to certify compliance
with energy conservation, water conservation, and design standards
established by DOE. DOE would also use the information to determine
whether an enforcement action is warranted and to better inform DOE
during a test procedure and energy conservation standards rulemaking.
The certification and recordkeeping requirements for certain
consumer products in 10 CFR part 430 have previously been approved by
OMB and assigned OMB control number 1910-1400. DOE is renewing the
previously approved certification and recordkeeping requirements, as
well as submitting these new proposed certification and recordkeeping
requirements for all consumer products and commercial and industrial
equipment subject to certification, compliance, and enforcement
regulations to OMB for review and approval under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
2. Method of Collection
Respondents must submit electronic forms using DOE's on-line CCMS
system.
3. Data
The following are DOE estimates of the total annual reporting and
recordkeeping burden imposed on manufacturers of all consumer products
and commercial and industrial equipment subject to certification,
compliance, and enforcement provisions. These estimates take into
account the time necessary to develop testing documentation, complete
the certification, and submit all required documents to DOE
electronically.
OMB Control Number: 1910-1400.
Form Number: None.
Type of Review: Regular submission.
Affected Public: Manufacturers of consumer products and commercial
and industrial equipment covered by the rulemakings discussed above.
Estimated Number of Respondents: 2,916.
Estimated Time per Response: Certification reports, 20 hours.
Estimated Total Annual Burden Hours: 58,320.
Estimated Total Annual Cost to the Manufacturers: $4,374,000 in
recordkeeping/reporting costs.
4. Comments
Comments are invited on: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information shall have practical
utility; (b) the accuracy of the agency's estimate of the burden
(including hours and cost) of the proposed collection of information;
(c) ways to enhance the quality, utility, and clarity of the
information to be collected; and (d) ways to minimize the burden of the
collection of information on respondents, including through the use of
automated collection techniques
[[Page 56811]]
or other forms of information technology. Comments submitted in
response to this notice will be summarized and/or included in the
request for OMB approval of this information collection; they also will
become a matter of public record.
D. Review Under the National Environmental Policy Act
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 DOE's
implementing regulations at 10 CFR part 1021. Specifically, this rule
amends an existing rule without changing its environmental effect and,
therefore, is covered by the Categorical Exclusion in 10 CFR part 1021,
subpart D, paragraph A5. Accordingly, neither an environmental
assessment nor an environmental impact statement is required.
E. Review Under Executive Order 13132
DOE reviewed this rule pursuant to Executive Order 13132,
``Federalism,'' 64 FR 43255 (August 4, 1999), which imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. In accordance with DOE's statement of policy describing
the intergovernmental consultation process it will follow in the
development of regulations that have federalism implications, 65 FR
13735 (March 14, 2000), DOE examined today's proposed rule and
determined that the rule would 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. See 74 FR 61497. Therefore, DOE has taken
no further action in today's proposed rule with respect to 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. DOE has
completed the required review and determined that, to the extent
permitted by law, the proposed regulations meet 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 (UMRA) (Pub.
L. 104-4; 2 U.S.C. 1501 et seq.) 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 UMRA 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)) UMRA 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 such governments. On March 18,
1997, DOE published a statement of policy on its process for
intergovernmental consultation under UMRA. 62 FR 12820. (The policy is
also available at http://www.gc.doe.gov). Today's proposed rule
contains neither an intergovernmental mandate nor a mandate that may
result in an 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.
Today's proposed 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
DOE determined under Executive Order 12630, ``Governmental Actions
and Interference with Constitutionally Protected Property Rights,'' 53
FR 8859 (March 18, 1988), that today's proposed rule would not result
in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution. See 74 FR 61497-98.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of 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. OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed today's proposed rule under 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 OIRA
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgates 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
[[Page 56812]]
adverse effects on energy supply, distribution, or use if the proposal
is implemented, and of reasonable alternatives to the action and their
expected benefits on energy supply, distribution, and use. Today's
proposed regulatory action, which proposes amendments to the
Department's certification, compliance, enforcement procedures, is not
a significant regulatory action under Executive Order 12866 or any
successor order; would not have a significant adverse effect on the
supply, distribution, or use of energy; and has not been designated by
the Administrator of OIRA as a significant energy action. Therefore, it
is not a significant energy action, and, accordingly, DOE has not
prepared a Statement of Energy Effects.
V. Public Participation
A. Attendance at Public Meeting
The time, date, and location of the public meeting are provided in
the DATES and ADDRESSES sections at the beginning of this document.
Anyone who wants to attend the public meeting must notify Ms. Brenda
Edwards at (202) 586-2945. Foreign nationals visiting DOE headquarters
are subject to advance security screening procedures.
B. Procedure for Submitting Requests To Speak
Any person who has an interest in the topics addressed in this
notice, or who is a representative of a group or class of persons that
has an interest in these issues, may request an opportunity to make an
oral presentation at the public meeting. Such persons may hand-deliver
requests to speak to the address shown in the ADDRESSES section at the
beginning of this notice between 9 a.m. and 4 p.m., Monday through
Friday, except Federal holidays. Requests may also be sent by mail or
email to: Ms. Brenda Edwards, U.S. Department of Energy, Building
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW.,
Washington, DC 20585-0121, or [email protected]. Persons who
wish to speak should include in their request a computer diskette or CD
in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format that
briefly describes the nature of their interest in this rulemaking and
the topics they wish to discuss. Such persons should also provide a
daytime telephone number where they can be reached.
DOE requests that those persons who are scheduled to speak submit a
copy of their statements at least one week prior to the public meeting.
DOE may permit any person who cannot supply an advance copy of this
statement to participate, if that person has made alternative
arrangements with the Building Technologies Program in advance. When
necessary, the request to give an oral presentation should ask for such
alternative arrangements.
C. Conduct of Public Meeting
DOE will designate a DOE official to preside at the public meeting
and may also employ a professional facilitator to aid discussion. The
public meeting will be conducted in an informal, conference style. The
meeting will not be a judicial or evidentiary public hearing, but DOE
will conduct it in accordance with section 336 of EPCA (42 U.S.C.
6306). Discussion of proprietary information, costs or prices, market
share, or other commercial matters regulated by U.S. anti-trust laws is
not permitted.
DOE reserves the right to schedule the order of presentations and
to establish the procedures governing the conduct of the public
meeting. A court reporter will record the proceedings and prepare a
transcript.
At the public meeting, DOE will present summaries of comments
received before the public meeting, allow time for presentations by
participants, and encourage all interested parties to share their views
on issues affecting this rulemaking. Each participant may present a
prepared general statement (within time limits determined by DOE)
before the discussion of specific topics. Other participants may
comment briefly on any general statements. At the end of the prepared
statements on each specific topic, participants may clarify their
statements briefly and comment on statements made by others.
Participants should be prepared to answer questions from DOE and other
participants. DOE representatives may also ask questions about other
matters relevant to this rulemaking. The official conducting the public
meeting will accept additional comments or questions from those
attending, as time permits. The presiding official will announce any
further procedural rules or modification of procedures needed for the
proper conduct of the public meeting.
DOE will make the entire record of this proposed rulemaking,
including the transcript from the public meeting, available for
inspection at the U.S. Department of Energy, 6th Floor, 950 L'Enfant
Plaza, SW., Washington, DC 20024, (202) 586-2945, between 9 a.m. and 4
p.m., Monday through Friday, except Federal holidays. Anyone may
purchase a copy of the transcript from the transcribing reporter.
Additionally, the record for this proposed rulemaking will be made
available at http://www.regulations.gov.
D. Submission of Comments
DOE will accept comments, data, and information regarding the
proposed rule no later than the date provided at the beginning of this
notice. Comments, data, and information submitted to DOE's e-mail
address for this rulemaking should be provided in WordPerfect,
Microsoft Word, PDF, or text (ASCII) file format. Interested parties
should avoid the use of special characters or any form of encryption,
and wherever possible, comments should include the electronic signature
of the author. Absent an electronic signature, comments submitted
electronically must be followed and authenticated by submitting a
signed original paper document to the address provided at the beginning
of this notice. Comments, data, and information submitted to DOE via
mail or hand delivery/courier should include one signed original paper
copy. No telefacsimiles (faxes) will be accepted.
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. DOE
will make its own determination as to the confidential status of the
information and treat it according to its determination.
Factors of interest to DOE 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) a date upon which such information might lose
its confidential nature due to the passage of time, and (7) why
disclosure of the information would be contrary to the public interest.
E. Issues on Which DOE Seeks Comment
DOE is particularly interested in receiving comments on the
following issues:
1. DOE seeks comment on how manufacturers determine that a
particular model constitutes a new basic
[[Page 56813]]
model, the types of potential changes manufacturers may make to a given
model, and the difference in the energy use characteristics a typical
change may have on a per product basis. For example, should DOE
contemplate proposing a specific regulation that requires a new basic
model declaration and filing when a modification to a given basic model
impacts the energy characteristics of the product by a given de minimus
percentage? DOE seeks comment on how these de minimus percentages might
change for each covered product and covered equipment.
2. DOE seeks comment on the attributes DOE should consider as part
of its verification testing program.
3. DOE seeks comment regarding the criteria defining VICPs, and the
use of VICPs in DOE's certification, compliance, and enforcement
programs for both consumer products and commercial and industrial
equipment. Specifically, DOE requests comment about the requirements
and details for verification testing programs (e.g., the use of an
independent testing laboratory, a specific number of samples randomly
tested, etc.) and the actions taken by the VICP in conjunction with DOE
when a unit is found to have failed the verification testing program of
the VICP.
4. DOE is considering adding sampling plans and tolerances for
other features of covered products and covered equipment which impact
the water or energy characteristics of a product. DOE is seeking
comment on this approach, and the methodologies DOE should consider if
it decides to extend the sampling provisions to features other than the
regulatory metrics.
5. DOE is seeking comments on the existing provisions for electric
motors, including any previous proposals for small electric motors and
any changes DOE should consider in the next rulemaking applicable to
these products. In light of the annual requirement for other products,
DOE specifically seeks comment on if, and how, the certification
compliance numbers for electric motors could be modified to clearly
demonstrate compliance when there is a change in the Federal energy
conservation standards for these products.
6. DOE is interested in seeking comment from interested parties on
how DOE could modify its certification, compliance, and enforcement
provisions to more effectively enforce at the border.
7. DOE continues to seek comment from businesses that would be
affected by this rulemaking and will consider comments received in the
development of any final rule.
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's NOPR.
List of Subjects
10 CFR Part 429
Confidential business information, Energy conservation, Household
appliances, Imports, Reporting and recordkeeping requirements.
10 CFR Part 430
Confidential business information, Energy conservation, Household
appliances, Imports.
10 CFR Part 431
Confidential business information, Energy conservation, Reporting
and recordkeeping requirements.
Issued in Washington, DC, on August 31, 2010.
Henry Kelly,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy.
Scott Blake Harris,
General Counsel.
For the reasons stated in the preamble, DOE is proposing to amend
chapter II, subchapter D, of title 10 of the Code of Federal
Regulations, as set forth below:
1. Add new part 429 to read as follows:
PART 429--CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT
Subpart A--General Provisions
Sec.
429.1 Purpose and scope.
429.3 Definitions.
Subpart B--Sampling for Certification Testing
429.9 Units to be tested.
Subpart C--Certification
429.17 Purpose and scope.
429.19 Certification.
429.21 Testing Requirements for Certification.
429.23 Alternative Methods for Determining Efficiency or Energy Use.
Subpart D--General Provisions
429.24 Maintenance of records.
429.25 Imported products.
429.26 Exported products.
429.27 Public record.
Subpart E--Enforcement
429.29 Purpose and scope.
429.31 Prohibited acts subjecting persons to enforcement action.
429.33 Investigation of compliance.
420.34 Review of certification data.
429.35 Subpoena.
429.36 Testing.
429.37 Test notice.
429.39 [Reserved].
429.41 Test unit selection.
429.43 Test unit preparation.
429.45 Sampling for enforcement testing.
429.47 [Reserved]
429.49 Notice of noncompliance determination to cease distribution
of a basic model.
429.51 Additional certification testing requirements.
429.53 Injunctions.
429.55 Maximum civil penalty.
429.57 Penalty considerations.
429.59 Notice of proposed civil penalty.
429.61 Election of procedures.
429.63 Administrative law judge hearing and appeal.
429.65 Immediate issuance of order assessing civil penalty.
429.67 Collection of civil penalties.
429.69 Compromise and settlement.
429.71 Confidentiality.
Appendix A to Subpart E of Part 429--Sampling Plan for Enforcement
Testing of Covered Products and Certain High-Volume Covered
Equipment
Appendix B to Subpart E of Part 429--Sampling Plan for Enforcement
Testing of Covered Commercial Equipment and Certain Low-Volume
Covered Products
Appendix C to Subpart E of Part 429--Sampling Plan for Enforcement
Testing of Distribution Transformers
Authority: 42 U.S.C. 6291-6317.
Subpart A--General Provisions
Sec. 429.1 Purpose and scope.
This part sets forth the procedures to be followed for
certification of compliance and for enforcement for consumer products
and commercial and industrial equipment to determine whether covered
products and covered equipment comply with the applicable conservation
standards set forth in parts 430 and 431 of this subchapter. For the
purposes of this subpart, energy conservation standard means any
standards meeting the definitions of that term in 42 U.S.C. 6291(6) and
42 U.S.C. 6311(18) as well as any other water conservation standards
and design requirements. This part does not cover motors or electric
motors as defined in Sec. 431.12, and all references to ``covered
equipment'' in this part exclude such motors.
Sec. 429.3 Definitions.
(a) The definitions found in Sec. Sec. 430.2, 431.2, 431.62,
431.72, 431.82, 431.92, 431.102, 431.132, 431.152, 431.172, 431.192,
431.202, 431.222, 431.242, 431.262, 431.292, 431.302, 431.322, and
431.442 apply for purposes of this part.
[[Page 56814]]
(b) The following definition applies for the purposes of this part.
Any words or terms defined in this section or elsewhere in this part
shall be defined as provided in sections 321 and 340 of the Act:
Manufacturer's model number means the identifier used by a
manufacturer to uniquely identify the group of identical or essentially
identical covered products or covered equipment to which a particular
unit belongs. The manufacturer's model number typically appears on the
product nameplates, in product catalogs and in other product
advertising literature.
Subpart B--Sampling for Certification Testing
Sec. 429.9 Units to be tested.
(a) When testing of covered products or covered equipment is
required to comply with section 323(c) of the Act, or to comply with
rules prescribed under sections 324, 325, or 342 of the Act, a sample
comprised of production units (or units representative of production
units) of the basic model being tested shall be selected at random and
tested, and shall meet the following applicable criteria. Components of
similar design may be substituted without additional testing if the
substitution does not affect energy or water consumption. Any
represented values of measures of energy efficiency, water efficiency,
energy consumption, or water consumption for basic models not tested
shall be the same as for the tested basic model.
(b) For covered products and covered equipment subject to the
provisions in this part 429, the minimum number of units tested shall
be no less than 2 (except where a different minimum limit is specified
in paragraph (c) of this section); and
(c)(1) For each basic model of residential refrigerators,
refrigerator-freezers, and freezers, a sample of sufficient size shall
be tested to insure that--
(i) Any represented value of estimated annual operating cost,
energy consumption, or other measure of energy consumption of a basic
model for which consumers would favor lower values shall be no less
than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the energy factor or other measure of
energy consumption of a basic model for which consumer would favor
higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(2) For each basic model of room air conditioners, a sample of
sufficient size shall be tested to insure that--
(i) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of a basic
model for which consumers would favor lower values shall be no less
than the higher of:
(A) The mean of the sample, or
(B) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05; and
(ii) Any represented value of the energy efficiency ratio or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(3)(i) For central air conditioners and heat pumps, each single-
package system and each condensing unit (outdoor unit) of a split-
system, when combined with a selected evaporator coil (indoor unit) or
a set of selected indoor units, must have a sample of sufficient size
tested in accordance with the applicable provisions of this subpart.
The represented values for any model of single-package system, any
model of a tested split-system combination, any model of a tested mini-
split system combination, or any model of a tested multi-split system
combination must be assigned such that--
(A) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of the
central air conditioner or heat pump for which consumers would favor
lower values shall be no less than the higher of:
(1) The mean of the sample, or
(2) The upper 90-percent confidence limit of the true mean divided
by 1.05;
(B) Any represented value of the energy efficiency or other measure
of energy consumption of the central air conditioner or heat pump for
which consumers would favor higher values shall be no greater than the
lower of:
(1) The mean of the sample, or
(2) The lower 90-percent confidence limit of the true mean divided
by 0.95;
(C) For heat pumps, all units of the sample population must be
tested in both the cooling and heating modes and the results used for
determining the heat pump's certified SEER and HSPF ratings in
accordance with paragraph (c)(3)(i)(B) of this section.
(ii) For split-system air conditioners and heat pumps, the
condenser-evaporator coil combination selected for tests pursuant to
paragraph (c)(3)(i) of this section shall include the evaporator coil
that is likely to have the largest volume of retail sales with the
particular model of condensing unit. For mini-split condensing units
that are designed to always be installed with more than one indoor
unit, a ``tested combination'' as defined in 10 CFR 430.2 shall be used
for tests pursuant to paragraph (c)(3)(i) of this section. For multi-
split systems, each model of condensing unit shall be tested with two
different sets of indoor units. For one set, a ``tested combination''
composed entirely of non-ducted indoor units shall be used. For the
second set, a ``tested combination'' composed entirely of ducted indoor
units shall be used. However, for any split-system air conditioner
having a single-speed compressor, the condenser-evaporator coil
combination selected for tests pursuant to paragraph (c)(3)(i) of this
section shall include the indoor coil-only unit that is likely to have
the largest volume of retail sales with the particular model of outdoor
unit. This coil-only requirement does not apply to split-system air
conditioners that are only sold and installed with blower-coil indoor
units, specifically mini-splits, multi-splits, and through-the-wall
units. This coil-only requirement does not apply to any split-system
heat pumps. For every other split-system combination that includes the
same model of condensing unit but a different model of evaporator coil
and for every other mini-split and multi-split system that includes the
same model of condensing unit but a different set of evaporator coils,
whether the evaporator coil(s) is manufactured by the same manufacturer
or by a component manufacturer, either--
(A) A sample of sufficient size, comprised of production units or
representing production units, must be tested as complete systems with
the resulting ratings for the outdoor unit-indoor unit(s) combination
obtained in accordance with paragraphs (c)(3)(i)(A) and (c)(3)(i)(B) of
this section; or
(B) The representative values of the measures of energy efficiency
must be assigned as follows,
(1) Using an alternative rating method (ARM) that has been approved
by DOE in accordance with the provisions of Sec. 429.23(e)(1) and (2);
or
(2) For multi-split systems composed entirely of non-ducted indoor
units, set equal to the system tested in accordance with paragraph
(c)(3)(i) of this section whose tested combination was entirely non-
ducted indoor units;
(3) For multi-split systems composed entirely of ducted indoor
units, set
[[Page 56815]]
equal to the system tested in accordance with paragraph (c)(3)(i) of
this section when the tested combination was entirely ducted indoor
units; and
(4) For multi-split systems having a mix of non-ducted and ducted
indoor units, set equal to the mean of the values for the two systems
-- one having the tested combination of all non-ducted units and the
second having the tested combination of all ducted indoor units --
tested in accordance with paragraph (c)(3)(i) of this section.
(iii) Whenever the representative values of the measures of energy
consumption, as determined by the provisions of paragraph (c)(3)(ii)(B)
of this section, do not agree within 5 percent of the representative
values of the measures of energy consumption as determined by actual
testing, the representative values determined by actual testing must be
used to comply with section 323(c) of the Act or to comply with rules
under section 324 of the Act.
(4) For each basic model of water heaters, a sample of sufficient
size shall be tested to insure that--
(i) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of a basic
model for which consumers would favor lower values shall be no less
than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10, and
(ii) Any represented value of the energy factor or other measure of
energy consumption of a basic model for which consumers would favor
higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(5)(i) For each basic model of furnaces, other than basic models of
those sectional cast-iron boilers which may be aggregated into groups
having identical intermediate sections and combustion chambers, a
sample of sufficient size shall be tested to insure that--
(A) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of a basic
model for which consumers would favor lower values shall be no less
than the higher of:
(1) The mean of the sample, or
(2) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
(B) Any represented value of the annual fuel utilization efficiency
or other measure of energy consumption of a basic model for which
consumers would favor higher values shall be no greater than the lower
of:
(1) The mean of the sample, or
(2) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(ii) For the lowest capacity basic model of a group of basic models
of those sectional cast-iron boilers having identical intermediate
sections and combustion chambers, a sample of sufficient size shall be
tested to insure that--
(A) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of a basic
model for which consumers would favor lower values shall be no less
than the higher of:
(1) The mean of the sample, or
(2) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
(B) Any represented value of the fuel utilization efficiency or
other measure of energy consumption of a basic model for which
consumers would favor higher values shall be no greater than the lower
of:
(1) The mean of the sample, or
(2) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(iii) For the highest capacity basic model of a group of basic
models of those sectional cast-iron boilers having identical
intermediate sections and combustion chambers, a sample of sufficient
size shall be tested to insure that--
(A) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of a basic
model for which consumers would favor lower values be no less than the
higher of:
(1) The mean of the sample, or
(2) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
(B) Any represented value of the fuel utilization efficiency or
other measure of energy consumption of a basic model for which
consumers would favor higher values shall be no greater than the lower
of:
(1) The mean of the sample, or
(2) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(iv) For each basic model or capacity other than the highest or
lowest of the group of basic models of sectional cast-iron boilers
having identical intermediate sections and combustion chambers,
represented values of measures of energy consumption shall be
determined by either--
(A) A linear interpolation of data obtained for the smallest and
largest capacity units of the family, or
(B) Testing a sample of sufficient size to insure that:
(1) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of a basic
model for which consumers would favor lower values shall be no less
than the higher of
(i) The mean of the sample, or
(ii) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
(2) Any represented value of the energy factor or other measure of
energy consumption of a basic model for which consumers would favor
higher values shall be no greater than the lower of:
(i) The mean of the sample, or
(ii) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(v) Whenever measures of energy consumption determined by linear
interpolation do not agree with measures of energy consumption
determined by actual testing, the values determined by testing must be
used for certification.
(vi) In calculating the measures of energy consumption for each
unit tested, use the design heating requirement corresponding to the
mean of the capacities of the units of the sample.
(6) For each basic model of dishwashers, a sample of sufficient
size shall be tested to insure that--
(i) Any represented value of estimated annual operating cost,
energy or water consumption or other measure of energy or water
consumption of a basic model for which consumers would favor lower
values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
(ii) Any represented value of the energy or water factor or other
measure of energy or water consumption of a basic model for which
consumers would favor higher values shall be no greater than the lower
of:
(A) The mean of the sample, or
(B) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(7) For each basic model of residential clothes washers, a sample
of sufficient size shall be tested to insure that--
(i) Any represented value of the water factor, the estimated annual
operating cost, the energy or water consumption, or other measure of
energy or water consumption of a basic model for which consumers would
favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
[[Page 56816]]
(ii) Any represented value of the modified energy factor or other
measure of energy or water consumption of a basic model for which
consumers would favor higher values shall be no greater than the lower
of:
(A) The mean of the sample, or
(B) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(8) For each basic model of clothes dryers a sample of sufficient
size shall be tested to insure that--
(i) Any represented value of estimated annual operating cost,
energy consumption or other measure of energy consumption of a basic
model for which consumers would favor lower values shall be no less
than the higher of:
(A) The mean of the sample, or
(B) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
(ii) Any represented value of the energy factor or other measure of
energy consumption of a basic model for which consumers would favor
higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(11) For each basic model of pool heater a sample of sufficient
size shall be tested to insure that any represented value of the
thermal efficiency or other measure of energy consumption of a basic
model for which consumers would favor higher values shall be no greater
than the lower of:
(i) The mean of the sample, or
(ii) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(12) For each basic model of fluorescent lamp ballasts, a sample of
sufficient size, not less than four, shall be tested to insure that--
(i) Any represented value of estimated annual energy operating
costs, energy consumption, or other measure of energy consumption of a
basic model for which consumers would favor lower values shall be no
less than the higher of:
(A) The mean of the sample, or
(B) The upper 99 percent confidence limit of the true mean divided
by 1.01, and
(ii) Any represented value of the ballast efficacy factor or other
measure of the energy consumption of a basic model for which consumers
would favor a higher value shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 99 percent confidence limit of the true mean divided
by 0.99.
(13)(i) For each basic model of general service fluorescent lamp,
general service incandescent lamp, and incandescent reflector lamp,
samples of production lamps shall be tested and the results for all
samples shall be averaged for a 12-month period. A minimum sample of 21
lamps shall be tested. The manufacturer shall randomly select a minimum
of three lamps from each month of production for a minimum of 7 out of
the 12-month period. In the instance where production occurs during
fewer than 7 of such 12 months, the manufacturer shall randomly select
3 or more lamps from each month of production, where the number of
lamps selected for each month shall be distributed as evenly as
practicable among the months of production to attain a minimum sample
of 21 lamps. Any represented value of lamp efficacy of a basic model
shall be based on the sample and shall be no greater than the lower of
the mean of the sample or the lower 95-percent confidence limit of the
true mean (XL) divided by 0.97, i.e.,
[GRAPHIC] [TIFF OMITTED] TP16SE10.000
Where:
x = the mean luminous efficacy of the sample
s = the sample standard deviation
t0.95 = the t statistic for a 95-percent confidence limit
for n-1 degrees of freedom (from statistical tables)
n = sample size
(ii) For each basic model of general service fluorescent lamp, the
color rendering index (CRI) shall be measured from the same lamps
selected for the lumen output and watts input measurements in paragraph
(c)(13)(i) of this section, i.e., the manufacturer shall measure all
lamps for lumens, watts input, and CRI. The CRI shall be represented as
the average of a minimum sample of 21 lamps and shall be no greater
than the lower of the mean of the sample or the lower 95-percent
confidence limit of the true mean (XL) divided by 0.97,
i.e.,
[GRAPHIC] [TIFF OMITTED] TP16SE10.001
Where:
x = the mean color rendering index of the sample
s = the sample standard deviation
t0.95 = the t statistic for a 95-percent confidence limit
for n-1 degrees of freedom (from statistical tables)
n = sample size
(14) For each basic model of faucet, a sample of sufficient size
shall be tested to ensure that any represented value of water
consumption of a basic model for which consumers favor lower values
shall be no less than the higher of:
(i) The mean of the sample or
(ii) The upper 95 percent confidence limit of the true mean divided
by 1.05.
(15) For each basic model of showerhead, a sample of sufficient
size shall be tested to ensure that any represented value of water
consumption of a basic model for which consumers favor lower values
shall be no less than the higher of:
(i) The mean of the sample or
(ii) The upper 95 percent confidence limit of the true mean divided
by 1.05.
(16) For each basic model of water closet, a sample of sufficient
size shall be tested to ensure that any represented value of water
consumption of a basic model for which consumers favor lower values
shall be no less than the higher of:
(i) The mean of the sample or
(ii) The upper 90 percent confidence limit of the true mean divided
by 1.1.
(17) For each basic model of urinal, a sample of sufficient size
shall be tested to ensure that any represented value of water
consumption of a basic model for which consumers favor lower values
shall be no less than the higher of:
(1) The mean of the sample or
(2) The upper 90 percent confidence limit of the true mean divided
by 1.1.
(18) For each basic model of ceiling fan light kit with sockets for
medium screw base lamps or pin-based fluorescent lamps selected for
testing, a sample of sufficient size shall be selected at random and
tested to ensure that--
(i) Any represented value of estimated energy consumption or other
measure of energy consumption of a basic model for which consumers
would favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.1; and
(ii) Any represented value of the airflow efficiency or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.9.
(19) For each basic model of bare or covered (no reflector) medium
base compact fluorescent lamp selected for testing, a minimum sample of
no less than 5 units per basic model must be used when testing for the
efficacy, 1000-hour lumen maintenance, and the lumen maintenance, a
minimum sample
[[Page 56817]]
of no less than 6 unique units (i.e., units that have not previously
been tested) per basic model must be used when testing for the rapid
cycle stress, and a minimum sample of no less than 10 units per basic
model must be used when testing for the average rated lamp life. With
the exception of the rapid cycle stress test, the units tested in the
sample should be the same. For the efficacy, the 1000-hour lumen
maintenance, and the lumen maintenance, each unit within the sample
must be tested in the base up position unless the product is labeled
restricted by the manufacturer, in which case the unit should be tested
in the manufacturer specified position. For the rapid cycle stress
test, each unit within the sample can be tested in the base up or down
position as stated by the manufacturer. For the average rated lamp life
test, half of the sample should be tested in the base up position and
half of the sample should be tested in the base down position, unless
specific use or position appears on the packaging of that particular
unit. Any representative value of efficacy, 1000-hour lumen
maintenance, lumen maintenance, and average rated lamp life, shall be
based on the sample selected at random and tested to ensure that the
represented value shall be no greater than the lower of:
(i) The mean of the sample, or
(ii) The lower 97.5 percent confidence limit of the true mean
divided by 0.95.
(20) For each basic model of dehumidifier selected for testing, a
sample of sufficient size shall be selected at random and tested to
ensure that--
(i) Any represented value of estimated energy consumption or other
measure of energy consumption of a basic model for which consumers
would favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the energy factor or other measure of
energy consumption of a basic model for which consumers would favor
higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(21) For each basic model of external power supply selected for
testing, a sample of sufficient size shall be selected at random and
tested to ensure that--
(i) Any represented value of the estimated energy consumption of a
basic model for which consumers would favor lower values shall be no
less than the higher of:
(A) The mean of the sample, or
(B) The upper 97.5 percent confidence limit of the true mean
divided by 1.05; and
(ii) Any represented value of the estimated energy consumption of a
basic model for which consumers would favor higher values shall be no
greater than the lower of:
(A) The mean of the sample, or
(B) The lower 97.5 percent confidence limit of the true mean
divided by 0.95.
(22) For each basic model of candelabra base incandescent lamp and
intermediate base incandescent lamp, a minimum sample of 21 lamps shall
be tested. Any represented value of lamp wattage of a basic model shall
be based on the sample and shall be no greater than the lower of the
mean of the sample or the lower 95-percent confidence limit of the true
mean (XL) divided by 0.97, i.e.,
[GRAPHIC] [TIFF OMITTED] TP16SE10.002
Where:
x = the mean wattage of the sample
s = the sample standard deviation
t0.95 = the t statistic for a 95-percent confidence limit
for n-1 degrees of freedom (from statistical tables)
n = sample size
(23) For each basic model of commercial refrigerator, freezer, or
refrigerator-freezer selected for testing, a sample of sufficient size
shall be selected at random and tested to ensure that--
(i) Any represented value of estimated energy consumption or other
measure of energy consumption of a basic model for which consumers
would favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the energy efficiency or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(24) A manufacturer must determine the efficiency of each basic
model of commercial heating, ventilating, air conditioning, and water
heating (HVAC and WH) equipment either by testing, in accordance with
applicable test procedures in Sec. Sec. 431.76, 431.86, 431.96, or
431.106 and the provisions of this section, or by application of an
alternative efficiency determination method (AEDM) that meets the
requirements of Sec. 429.23 and the provisions of this section. For
each basic model of commercial HVAC and WH equipment, a sample of
sufficient size shall be selected and tested to ensure that--
(i) Any represented value of energy efficiency or other measure of
energy consumption of a basic model for which consumers would favor
higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.95, and
(ii) Any represented value of energy consumption or other measure
of energy usage of a basic model for which consumers would favor lower
values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.05.
(25) For each basic model of automatic commercial ice maker
selected for testing, a sample of sufficient size shall be selected at
random and tested to ensure that--
(i) Any represented value of estimated maximum energy use or other
measure of energy consumption of a basic model for which consumers
would favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the energy efficiency or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(26) For each basic model of commercial clothes washers, a sample
of sufficient size shall be tested to insure that--
(i) Any represented value of estimated energy or water consumption
or other measure of energy or water consumption of a basic model for
which consumers would favor lower values shall be no less than the
higher of:
(A) The mean of the sample, or
(B) The upper 97\1/2\ percent confidence limit of the true mean
divided by 1.05, and
(ii) Any represented value of the modified energy factor, water
factor, or other measure of energy or water
[[Page 56818]]
consumption of a basic model for which consumers would favor higher
values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 97\1/2\ percent confidence limit of the true mean
divided by 0.95.
(27) A manufacturer must determine the efficiency of each basic
model of distribution transformer either by testing, in accordance with
Sec. 431.193 and the provisions of this section, or by application of
an AEDM) that meets the requirements of Sec. 429.23 and the provisions
of this section.
(i) Selection of units for testing within a basic model. For each
basic model a manufacturer selects for testing, it shall select and
test units as follows:
(A) If the manufacturer would produce five or fewer units of a
basic model over a reasonable period of time (approximately 180 days),
then it must test each unit. However, a manufacturer may not use a
basic model with a sample size of fewer than five units to substantiate
an AEDM pursuant to Sec. 429.23.
(B) If the manufacturer produces more than five units over such
period of time, it must either test all such units or select a sample
of at least five units and test them.
(ii) Applying results of testing. In a test of compliance with a
represented efficiency, the average efficiency of the sample, X, which
is defined by
[GRAPHIC] [TIFF OMITTED] TP16SE10.003
where Xi is the measured efficiency of unit i and n is
the number of units tested, must satisfy the condition:
[GRAPHIC] [TIFF OMITTED] TP16SE10.004
where RE is the represented efficiency.
(28) For each basic model of illuminated exit sign selected for
testing, a sample of sufficient size shall be selected at random and
tested to ensure that--
(i) Any represented value of estimated input power demand or other
measure of energy consumption of a basic model for which consumers
would favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the energy efficiency or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(29) For each basic model of traffic signal module or pedestrian
module selected for testing, a sample of sufficient size shall be
selected at random and tested to ensure that--
(i) Any represented value of estimated maximum and nominal wattage
or other measure of energy consumption of a basic model for which
consumers would favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the energy efficiency or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(30) For each basic model of commercial prerinse spray valves
selected for testing, a sample of sufficient size shall be selected at
random and tested to ensure that--
(i) Any represented value of estimated water consumption or other
measure of water consumption of a basic model for which consumers would
favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the water efficiency or other measure
of water consumption of a basic model for which consumers would favor
higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(31) For each basic model of refrigerated bottled or canned
beverage vending machine selected for testing, a sample of sufficient
size shall be selected at random and tested to ensure that--
(i) Any represented value of estimated energy consumption or other
measure of energy consumption of a basic model for which consumers
would favor lower values shall be no less than the higher of:
(A) The mean of the sample, or
(B) The upper 95 percent confidence limit of the true mean divided
by 1.10; and
(ii) Any represented value of the energy efficiency or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 95 percent confidence limit of the true mean divided
by 0.90.
(32) For each basic model of metal halide lamp ballast selected for
testing, a sample of sufficient size, not less than four, shall be
selected at random and tested to ensure that:
(i) Any represented value of estimated energy efficiency calculated
as the measured output power to the lamp divided by the measured input
power to the ballast (Pout/Pin), of a basic model
is no less than the higher of:
(A) The mean of the sample, or
(B) The upper 99-percent confidence limit of the true mean divided
by 1.01.
(ii) Any represented value of the energy efficiency of a basic
model is no greater than the lower of:
(A) The mean of the sample, or
(B) The lower 99-percent confidence limit of the true mean divided
by 0.99.
Subpart C--Certification
Sec. 429.17 Purpose and scope.
This subpart sets forth the procedures for manufacturers to certify
that their covered products and covered equipment comply with the
applicable energy conservation standards.
Sec. 429.19 Certification.
(a) Certification. Each manufacturer, before distributing in
commerce any basic model of a covered product or covered equipment
subject to an applicable energy conservation standard set forth in
parts 430 and 431 of this subchapter, and annually thereafter on or
before the dates provided in paragraph (e) of this section, shall
certify by means of a certification report that each basic model meets
the applicable energy conservation standard(s). The certification
report(s) must be submitted to DOE in accordance with the submission
procedures of paragraph (i) of this section.
(b) Certification report. Manufacturers of covered products or
covered equipment must submit a certification report for all basic
models to DOE. The certification report shall include a compliance
statement (See paragraph (c) of this section.) for each basic model:
(1) The product or equipment type;
(2) Product or equipment class (as denoted in the provisions of
part 430 or 431 containing the applicable energy conservation
standard);
[[Page 56819]]
(3) Manufacturer's name and address;
(4) Private labeler's name(s) and address (if applicable);
(5) Brand name;
(6) For each brand, the basic model number and the individual
manufacturer's model numbers covered by that basic model; in the case
of external power supplies, when the manufacturer is certifying using a
design family, the individual manufacturer's model numbers covered by
the design family; in the case of distribution transformers, the
individual manufacturer's model numbers covered by the kilovolt ampere
(kVA) grouping;
(7) Whether the submission is for a new model, a discontinued
model, a correction to a previously submitted model, data on a
historical model, or a model that has been found in violation of a
voluntary industry certification program;
(8) The sample size and the total number of tests performed;
(9) Certifying party's U.S. Customs and Border Protection (CBP)
importer identification numbers assigned by CBP pursuant to 19 CFR
24.5, if applicable;
(10) Whether certification is based upon any waiver of test
procedure requirements under Sec. 430.27 or Sec. 431.401 and the date
of such waivers;
(11) Whether certification is based upon any exception relief from
an applicable energy conservation standard and the date such relief was
issued by DOE's Office of Hearing and Appeals;
(12) Whether certification is based upon the use of an alternate
way of determining measures of energy conservation (e.g., an ARM or
AEDM), or other method of testing, for determining measures of energy
conservation and the approval date, if applicable, of any such
alternate rating, testing, or efficiency determination method; and
(13) For:
(i) Residential refrigerators, residential refrigerator-freezers,
and residential freezers, the annual energy use in kilowatt hours per
year, total adjusted volume in cubic feet, whether the basic model has
variable defrost control (in which case, manufacturers must also report
the values, if any, of CTL and CTM (For an
example see section 5.2.1.3 in Appendix A to Subpart B of Part 430)
used in the calculation of energy consumption), whether the basic model
has variable anti-sweat heater control (in which case, manufacturers
must also report the values of Heater Watts at the ten humidity levels
5%, 15%, through 95% used to calculate the variable anti-sweat heater
``Correction Factor''), and whether testing has been conducted with
modifications to the standard temperature sensor locations specified by
the figures referenced in section 5.1 of Appendices A1, B1, A, and B to
Subpart B of Part 430.
(ii) Room air conditioners, the energy efficiency ratio and cooling
capacity in Btu/h.
(iii) Residential central air conditioners, the seasonal energy
efficiency ratio, the cooling capacity in Btu/h, and the manufacturer
and individual manufacturer's model numbers of the indoor and outdoor
unit. For central air conditioners whose seasonal energy efficiency
ratio is based on an installation that includes a particular model of
ducted air mover (e.g., furnace, air handler, blower kit, etc.), the
manufacturer's model number of this ducted air mover must be included
among the model numbers listed on the certification report.
(iv) Residential central air conditioning heat pumps, the seasonal
energy efficiency ratio, the cooling capacity in Btu/h, the heating
seasonal performance factor, and the manufacturer and individual model
numbers of the indoor and outdoor unit. For central air conditioning
heat pumps whose seasonal energy efficiency ratio and heating seasonal
performance factor are based on an installation that includes a
particular model of ducted air mover (e.g., furnace, air handler,
blower kit, etc.), the model number of this ducted air mover must be
included among the model numbers listed on the certification report.
(v) Small duct, high velocity air conditioners, the seasonal energy
efficiency ratio and the cooling capacity in Btu/h. Small duct, high
velocity heat pumps, the seasonal energy efficiency ratio, the heating
seasonal performance factor, and the cooling capacity in Btu/h.
(vi) Through-the-wall air conditioners, the seasonal energy
efficiency ratio and the cooling capacity in Btu/h. Through-the-wall
heat pumps, the seasonal energy efficiency ratio, the coefficient of
performance, and the cooling capacity in Btu/h.
(vii) Residential water heaters, the energy factor and rated
storage volume in gallons.
(viii) Residential furnaces and boilers, the annual fuel
utilization efficiency in percent and the input capacity in Btu/h. For
cast-iron sectional boilers, a declaration of whether certification is
based on linear interpolation or testing. In addition, the type of
ignition system for gas-fired steam and hot water boilers and a
declaration that the manufacturer has incorporated the applicable
design requirements for units manufactured on or after September 1,
2012.
(ix) Dishwashers, the annual energy use in kilowatt hours per year,
the water factor in gallons per cycle, and capacity as described in
Sec. 430.32(f).
(x) Residential clothes washers, the modified energy factor in
cubic feet per kilowatt hour per cycle and the capacity in cubic feet.
For top-loading or front-loading standard-size residential clothes
washers, a water factor in gallons per cycle per cubic feet must also
be reported on or after January 1, 2011.
(xi) Residential clothes dryers, the energy factor in pounds per
kilowatt hours, the capacity in cubic feet, and the voltage in volts.
(xii) Direct heating equipment, the annual fuel utilization
efficiency in percent and the mean input capacity in Btu/h. Note,
vented hearth heaters as defined in Sec. 430.2 must report on or after
April 16, 2013.
(xiii) Gas cooking products, the type of pilot light and a
declaration that the manufacturer has incorporated the applicable
design requirements.
(xiv) Pool heaters, the thermal efficiency in percent and the input
capacity in Btu/h.
(xv) Fluorescent Lamp Ballasts, the ballast efficacy factor, the
ballast power factor, the number of lamps operated by the ballast, and
the type of lamps operated by the ballast.
(xvi) General service fluorescent lamps, the testing laboratory's
National Voluntary Laboratory Accreditation Program (NVLAP)
identification number or other NVLAP-approved accreditation
identification, production date codes (and accompanying decoding
scheme), the 12-month average lamp efficacy in lumens per watt, lamp
wattage, correlated color temperature, and the 12-month average Color
Rendering Index.
(xvii) Incandescent reflector lamps, the laboratory's NVLAP
identification number or other NVLAP-approved accreditation
identification, production date codes (and accompanying decoding
scheme), the 12-month average lamp efficacy in lumens per watt, and
lamp wattage.
(xviii) Faucets, the maximum water use in gallons per minute or, in
the case of metering faucets, gallons per cycle for each faucet and the
flow water pressure in pounds per square inch.
(xix) Showerheads, the maximum water use in gallons per minute and
the maximum flow water pressure in pounds per square inch.
(xx) Water closets, the maximum water use in gallons per flush.
(xxi) Urinals, the maximum water use in gallons per flush and for
trough-type
[[Page 56820]]
urinals, the length of the trough-type urinal.
(xxii) Ceiling fans, the number of spends within the ceiling fan
controls and a declaration that the manufacturer has incorporated the
applicable design requirements.
(xxiii) Ceiling fan light kits with sockets for medium screw base
lamps or pin-based fluorescent lamps, the efficacy in lumens per watt.
(xxiv) Ceiling fan light kits with sockets for other than medium
screw base lamps or pin-based fluorescent lamps, the features that have
been incorporated into the ceiling fan light kit to meet the applicable
design requirement (e.g., circuit breaker, fuse, ballast).
(xxv) Torchieres, the features that have been incorporated into the
torchiere to meet the applicable design requirement (e.g., circuit
breaker, fuse, ballast).
(xxvi) Medium base compact fluorescent lamps, the testing
laboratory's NVLAP identification number or other NVLAP-approved
accreditation identification, production date codes (and accompanying
decoding scheme), the minimum initial efficacy in lumens per watt, the
lumen maintenance at 1,000 hours in percentage, the lumen maintenance
at 40 percent of rated life in lumens, the rapid cycle stress test, and
the lamp life in hours.
(xxvii) Dehumidifiers, the energy factor in liters per kilowatt
hour and capacity in pints per day.
(xxviii) External power supplies, the average active mode
efficiency percentage, no-load mode power consumption in watts,
nameplate output power in watts, and, if missing from the nameplate,
the output current in amperes of the highest- and lowest-voltage models
within the external power supply design family.
(xxix) Switch-selectable single-voltage external power supplies,
the average active mode efficiency percentage and no-load mode power
consumption in watts at the lowest and highest selectable output
voltage, nameplate output power in watts, and, if missing from the
nameplate, the output current in amperes.
(xxx) On or after the effective dates specified in Sec. 430.32,
general service incandescent lamps, the testing laboratory's National
Voluntary Laboratory Accreditation Program (NVLAP) identification
number or other NVLAP-approved accreditation identification, production
date codes (and accompanying decoding scheme), the 12-month average
maximum rate wattage, the 12-month average minimum rate lifetime, and
the 12-month average Color Rendering Index.
(xxxi) Candelabra base incandescent lamp, the wattage in watts.
(xxxii) Intermediate base incandescent lamp, the wattage in watts.
(xxxiii) Self-contained commercial refrigerators with solid doors,
refrigerators with transparent doors, freezers with solid doors, and
commercial freezers with transparent doors, the maximum daily energy
consumption in kilowatt hours per day and the volume in cubic feet.
(xxxiv) Self-contained commercial refrigerator/freezers with solids
doors, the maximum daily energy consumption in kilowatt hours per day
and the adjusted volume in cubic feet.
(xxxv) On or after January 1, 2012, remote condensing commercial
refrigerators, freezers, and refrigerator-freezers, self-contained
commercial refrigerators, freezers, and refrigerator-freezers without
doors, commercial ice-cream freezers, and commercial refrigeration
equipment with two or more compartments (i.e., hybrid refrigerators,
hybrid freezers, hybrid refrigerator-freezers, and non-hybrid
refrigerator-freezers), the maximum daily energy consumption in
kilowatt hours per day, the total display area (TDA) in feet squared or
the volume in cubic feet as necessary to demonstrate compliance with
the standards set forth in Sec. 431.66, the rating temperature in
degrees Fahrenheit, the operating temperature range in degrees
Fahrenheit (e.g., >= 32 [deg]F, < 32 [deg]F, and <=-5 [deg]F), the
equipment family designation as described in Sec. 431.66, and the
condensing unit configuration.
(xxxvi) Commercial warm air furnaces, the thermal efficiency in
percent and the maximum rated input capacity in Btu/h.
(xxxvii) Commercial packaged boilers, the combustion efficiency in
percent and the maximum rated input capacity in Btu/h for equipment
manufactured before March 2, 2012. For equipment manufactured on or
after March 2, 2012, either the combustion efficiency or the thermal
efficiency as required in Sec. 431.87 and the maximum rated input
capacity in Btu/h.
(xxxviii) Commercial package air-conditioning and heating equipment
(except small commercial package air conditioning and heating equipment
that is air-cooled with a cooling capacity less than 65,000 Btu/h), the
energy efficiency ratio, the coefficient of performance as necessary to
meet the standards set forth in Sec. 431.97, the cooling capacity in
Btu/h, and the type of heating used by the unit.
(xxxix) Small commercial package air conditioning and heating
equipment that is air-cooled with a cooling capacity less than 65,000
Btu/h, the seasonal energy efficiency ratio, the heating seasonal
performance factor as necessary to meet the standards set forth in
Sec. 431.97, and the cooling capacity in Btu/h.
(xl) Packaged terminal air conditioners, the energy efficiency
ratio, the cooling capacity in Btu/h, and the wall sleeve dimensions in
inches. Packaged terminal heat pumps, the energy efficiency ratio, the
coefficient of performance, the cooling capacity in Btu/h, and the wall
sleeve dimensions in inches.
(xli) Single package vertical air conditioner, the energy
efficiency ratio and the cooling capacity in Btu/h. Single package
vertical heat pumps, the energy efficiency ratio, the coefficient of
performance, and the cooling capacity in Btu/h.
(xlii) Commercial electric storage water heaters, the maximum
standby loss in percent per hour and the measured storage volume in
gallons.
(xliii) Commercial gas-fired and oil-fired storage water heaters,
the minimum thermal efficiency in percent, the maximum standby loss in
Btu/h, the rated storage volume in gallons, and the nameplate input
rate in Btu/h.
(xliv) Commercial gas-fired and oil-fired instantaneous water
heaters greater than or equal to 10 gallons and gas-fired and oil-fired
hot water supply boilers greater than or equal to 10 gallons, the
minimum thermal efficiency in percent, the maximum standby loss in Btu/
h, the rated storage volume in gallons, and the nameplate input rate in
gallons.
(xlv) Commercial gas-fired and oil-fired instantaneous water
heaters less than 10 gallons and gas-fired and oil-fired hot water
supply boilers less than 10 gallons, the minimum thermal efficiency in
percent and the storage volume in gallons.
(xlvi) Commercial unfired hot water storage tanks, the minimum
thermal insulation (i.e., R-value) and the storage volume.
(xlvii) Automatic commercial ice makers, the maximum energy use in
kilowatt hours per 100 pounds of ice, the maximum condenser water use
in gallons per 100 pounds of ice, the harvest rate in pounds of ice per
24 hours, the type of cooling, and the equipment type.
(xlviii) Commercial clothes washers, the modified energy factor in
cubic feet per kilowatt hour per cycle and the water factor in gallons
per cubic feet per cycle for units manufactured on or after January 8,
2013.
[[Page 56821]]
(xlix) For the least efficient basic model of distribution
transformer within each ``kilovolt ampere (kVA) grouping'' for which
part 431 prescribes an efficiency standard, the kVA rating, the
insulation type (i.e., low-voltage dry-type, medium-voltage dry-type or
liquid-immersed), the number of phases (i.e., single-phase or three-
phase), and the basic impulse insulation level (BIL) group rating (for
medium-voltage dry-types). As used in this section, a ``kVA grouping''
is a group of basic models which all have the same kVA rating, have the
same insulation type (i.e., low-voltage dry-type, medium-voltage dry-
type or liquid-immersed), have the same number of phases (i.e., single-
phase or three-phase), and, for medium-voltage dry-types, have the same
BIL group rating (i.e., 20-45 kV BIL, 46-95 kV BIL or greater than 96
kV BIL).
(l) Illuminated exit signs, the input power demand in watts.
(li) Traffic signal modules and pedestrian modules, the maximum
wattage in watts, the nominal wattage in watts, and the signal type.
(lii) Commercial unit heaters, the type of ignition system and a
declaration that the manufacturer has incorporated the applicable
design requirements.
(liii) Commercial prerinse spray valves, the flow rate in gallons
per minute.
(liv) Refrigerated bottled or canned beverage vending machines, the
maximum daily energy consumption in kilowatt hours per day, the
refrigerated volume (V) in cubic feet used to demonstrate compliance
with standards set forth in Sec. 431.296, the ambient temperature in
degrees Fahrenheit, and the ambient relative humidity in percent during
the test for units manufactured on or after August 31, 2012.
(lv) Walk-in coolers and freezers, the door type, the R-value of
the insulation of the wall, ceiling, and doors, the R-value of the
floor (for freezers only), the motor type, and the efficacy of the
lighting including ballast losses. In addition, for those walk-in
coolers and freezers with transparent reach-in doors and windows, the
glass type of the doors and windows (e.g., double-pane with heat
reflective treatment, triple-pane glass with gas fill, etc.), the power
draw of the antisweat heater in watts, and a declaration that the
manufacturer has incorporated the applicable design requirements.
(lvi) Metal halide lamp fixtures, minimum ballast efficiency in
percent, the lamp wattage in watts, and the type of ballast (e.g.,
pulse-start, magnetic probe-start, and non-pulse start electronic).
(c) The compliance statement required by paragraph (b) of this
section shall include the date, the name of the company official
signing the statement, and his or her signature, title, address,
telephone number, and facsimile number and shall certify that:
(1) The basic model(s) complies with the applicable conservation
standard(s);
(2) All required testing has been conducted in conformance with the
applicable test requirements prescribed in parts 429, 430 and 431 of
this subchapter, as appropriate, or in accordance with the terms of an
applicable test procedure waiver;
(3) All information reported in the certification report is true,
accurate, and complete; and
(4) The manufacturer is aware of the penalties associated with
violations of the Energy Policy and Conservation Act (Pub. L. 94-163),
as amended by Public Law 95-619, Public Law 100-12, Public Law 100-357,
and Public Law 102-486 (the Act), the regulations there under, and 18
U.S.C. 1001 which prohibits knowingly making false statements to the
Federal Government.
(d) Copies of reports to the Federal Trade Commission could serve
in lieu of the certification report provided the reports include all
required information specified in paragraph (b) of this section.
(e) Annual filing. All data required by Sec. 429.19(a) through (c)
shall be submitted to DOE annually, on or before the following dates:
------------------------------------------------------------------------
Deadline for data
Product category submission
------------------------------------------------------------------------
(1) Fluorescent lamp ballasts, Medium base Mar. 1.
compact fluorescent lamps, Incandescent
reflector lamps, General service
fluorescent lamps, General service
incandescent lamps, Intermediate base
incandescent lamps, Candelabra base
incandescent lamps, Residential ceiling
fans, Residential ceiling fan light kits,
Residential showerheads, Residential
faucets, Residential water closets, and
Residential urinals.
(2) Residential water heater, Residential May 1.
furnaces, Residential boilers, Residential
pool heaters, Commercial water heaters,
Commercial hot water supply boilers,
Commercial unfired hot water storage
tanks, Commercial packaged boilers,
Commercial warm air furnaces, and
Commercial unit heaters.
(3) Residential dishwashers, Commercial June 1.
prerinse spray valves, Illuminated exit
signs, Traffic signal modules, Pedestrian
modules, and Distribution transformers.
(4) Room air conditioners, Residential July 1.
central air conditioners, Residential
central heat pumps, Small duct high
velocity system, Space constrained
products, Commercial package air-
conditioning and heating equipment,
Packaged terminal air conditioners,
Packaged terminal heat pumps, and Single
package vertical units.
(5) Residential refrigerators, Residential Aug. 1.
refrigerators-freezers, Residential
freezers, Commercial refrigerator,
freezer, and refrigerator-freezer,
Automatic commercial automatic ice makers,
Refrigerated bottled or canned beverage
vending machine, Walk-in coolers, and Walk-
in freezers.
(6) Torchieres, Residential dehumidifiers, Sept. 1.
Metal halide lamp fixtures, and External
power supplies.
(7) Residential clothes washers, Oct. 1.
Residential clothes dryers, Residential
direct heating equipment, Residential
cooking products, and Commercial clothes
washers.
------------------------------------------------------------------------
(f) New model filing. (1) In addition to the annual filing
schedule in paragraph (e) of this section, any new basic models must be
certified pursuant to paragraph (a) of this section before distribution
in commerce. New basic model numbers shall be designated whenever a new
basic model is created pursuant to this paragraph (f).
(2) Prior to or concurrent with the distribution of a new model of
general service fluorescent lamp or incandescent reflector lamp, each
manufacturer shall submit a statement signed by a company official
stating how the manufacturer determined that the lamp meets or exceeds
the energy conservation standards, including a description of any
testing or analysis the manufacturer performed. This statement shall
also list the model number, lamp wattage, and date of commencement of
manufacture. Manufacturers of general service fluorescent lamps and
incandescent reflector lamps shall submit the certification report
required by paragraph (b) of this section within
[[Page 56822]]
one year after the date manufacture of that new model commences.
(3) For distribution transformers, the manufacturer must submit all
information required in paragraphs (b) and (c) of this section for the
new basic model, unless the manufacturer has previously submitted to
the Department a certification report for a basic model of distribution
transformer that is in the same kVA grouping as the new basic model.
(g) Discontinued model filing. When production of a basic model has
ceased and it is no longer being sold or offered for sale by the
manufacturer or private labeler, the manufacturer shall report this
discontinued status to DOE as part of the next annual certification
report following such cessation. For each basic model, the report shall
include: Product or equipment type, product or equipment class, the
manufacturer's name, the private labeler name(s), if applicable, the
brand, and the manufacturer's model number(s) of the basic model that
has been discontinued.
(h) Third party submitters. A manufacturer may elect to use a third
party to submit the certification report to DOE (for example a trade
association, independent test lab, or other authorized representative,
including a private labeler acting as a third party submitter on behalf
of a manufacturer); however, the manufacturer is responsible for
submission of the certification report to DOE. DOE may refuse to accept
certification reports from third party submitters who have failed, on
at least two occasions, to submit reports in accordance with the rules
of this part.
(i) Method of submission. Reports required by this section must be
submitted to DOE electronically at http://www.regulations.doe.gov/ccms. A manufacturer or third party submitter can find product-specific
templates for each covered product or covered equipment with
certification requirements online at https://www.regulations.doe.gov/ccms/templates.html.
Sec. 429.21 Testing Requirements for Certification.
(a) For purposes of a certification of compliance, the
determination that a basic model complies with an applicable energy
conservation standard or water conservation standard shall be
determined from the calculated values derived pursuant to the
applicable requirements set forth in parts 429, 430 and 431 of this
subchapter. For purposes of a certification of compliance, the
determination that a basic model complies with the applicable design
standard shall be based upon the incorporation of specific design
requirements in parts 430 and 431 or as specified in section 325 and
342 of the Act.
(b) Pursuant to Sec. 429.51, where DOE has determined a particular
entity is in noncompliance with an applicable standard or certification
requirement, DOE may impose additional testing requirements for
certification as a remedial measure.
Sec. 429.23 Alternative Methods for Determining Efficiency or Energy
Use.
(a) General. A manufacturer of residential central air conditioners
and heat pumps, distribution transformers, and commercial HVAC and WH
equipment 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 method to the basic model, in accordance with the
requirements of this section. In instances where a manufacturer has
tested that basic model to validate the alternative method, the
efficiency of that basic model must be determined and rated according
to results from actual testing. In addition, a manufacturer may not
knowingly use an AEDM to overrate the efficiency of a basic model. For
each basic model of distribution transformer that has a configuration
of windings which allows for more than one nominal rated voltage, the
manufacturer must determine the basic model's efficiency either at the
voltage at which the highest losses occur or at each voltage at which
the transformer is rated to operate.
(b) Testing. Testing for each covered product or covered equipment
must be done in accordance with the sampling plans established in Sec.
429.9 and the testing procedures in parts 430 and 431 of this
subchapter.
(c) Alternative efficiency determination method (AEDM) for
Commercial HVAC and WH equipment--(1) Criteria an AEDM must satisfy. A
manufacturer may not apply an AEDM to a basic model to determine its
efficiency pursuant to this section unless:
(i) The AEDM is derived from a mathematical model that represents
the energy consumption characteristics of the basic model; and
(ii) The AEDM is based on engineering or statistical analysis,
computer simulation or modeling, or other analytic evaluation of
performance data.
(2) Substantiation of an AEDM. Before using an AEDM, the
manufacturer must substantiate and validate the AEDM as follows:
(i) A manufacturer must first apply the AEDM to three or more basic
models that have been tested in accordance with Sec. Sec. 431.173(b)
and 431.175(a). The predicted efficiency calculated for each such basic
model from application of the AEDM must be within five percent of the
efficiency determined from testing that basic model, and the predicted
efficiencies calculated for the tested basic models must on average be
within one percent of the efficiencies determined from testing such
basic models; and
(ii) 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.
(iii) The manufacturer must test each of these basic models in
accordance with Sec. 431.173(b), and either Sec. Sec. 431.174(b) or
431.175(a), whichever is applicable.
(iv) The predicted efficiency calculated for each such basic model
from application of the AEDM must be within three 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.
(3) Subsequent verification of an AEDM. If a manufacturer has used
an AEDM pursuant to this section,
(i) The manufacturer must have available for inspection by the
Department records showing:
(A) The method or methods used;
(B) The mathematical model, the engineering or statistical
analysis, computer simulation or modeling, and other analytic
evaluation of performance data on which the AEDM is based;
(C) Complete test data, product information, and related
information that the manufacturer generated or acquired under paragraph
(c)(1) through (2) of this section; and
(D) The calculations used to determine the average efficiency and
energy consumption of each basic model to which an AEDM was applied.
(ii) If requested by the Department, the manufacturer must perform
at least one of the following:
(A) Conduct simulations to predict the performance of particular
basic models of the commercial HVAC and WH product;
[[Page 56823]]
(B) Provide analyses of previous simulations conducted by the
manufacturer;
(C) Conduct sample testing of basic models selected by the
Department; or
(D) Conduct a combination of these.
(d) Alternative efficiency determination method for Distribution
Transformers--A manufacturer may use an AEDM to determine the
efficiency of one or more of its untested basic models only if it
determines the efficiency of at least five of its other basic models
(selected in accordance with paragraph (d)(3) of this section) through
actual testing.
(1) Criteria an AEDM must satisfy. (i) The AEDM has been derived
from a mathematical model that represents the electrical
characteristics of that basic model;
(ii) The AEDM is based on engineering and statistical analysis,
computer simulation or modeling, or other analytic evaluation of
performance data; and
(iii) The manufacturer has substantiated the AEDM, in accordance
with paragraph (d)(2) of this section, by applying it to, and testing,
at least five other basic models of the same type, i.e., low-voltage
dry-type distribution transformers, medium-voltage dry-type
distribution transformers, or liquid-immersed distribution
transformers.
(2) Substantiation of an AEDM. Before using an AEDM, the
manufacturer must substantiate the AEDM's accuracy and reliability as
follows:
(i) Apply the AEDM to at least five of the manufacturer's basic
models that have been selected for testing in accordance with paragraph
(d)(3) of this section, and calculate the power loss for each of these
basic models;
(ii) Test at least five units of each of these basic models in
accordance with the applicable test procedure and Sec. 429.9, and
determine the power loss for each of these basic models;
(iii) The predicted total power loss for each of these basic
models, calculated by applying the AEDM pursuant to paragraph (c)(2)(i)
of this section, must be within plus or minus five percent of the mean
total power loss determined from the testing of that basic model
pursuant to paragraph (c)(2)(ii) of this section; and
(iv) Calculate for each of these basic models the percentage that
its power loss calculated pursuant to paragraph (c)(2)(i) of this
section is of its power loss determined from testing pursuant to
paragraph (c)(2)(ii) of this section, compute the average of these
percentages, and that calculated average power loss, expressed as a
percentage of the average power loss determined from testing, must be
no less than 97 percent and no greater than 103 percent.
(3) Additional testing requirements. (i) A manufacturer must select
basic models for testing in accordance with the following criteria:
(A) Two of the basic models must be among the five basic models
with the highest unit volumes of production by the manufacturer in the
prior year, or during the prior 12-calendar-month period beginning in
2003,\1\ whichever is later;
---------------------------------------------------------------------------
\1\ When identifying these five basic models, any basic model
that does not comply with Federal energy conservation standards for
distribution transformers that may be in effect shall be excluded
from consideration.
---------------------------------------------------------------------------
(B) No two basic models should have the same combination of power
and voltage ratings; and
(C) At least one basic model should be single-phase and at least
one should be three-phase.
(ii) In any instance where it is impossible for a manufacturer to
select basic models for testing in accordance with all of these
criteria, the criteria shall be given priority in the order in which
they are listed. Within the limits imposed by the criteria, basic
models shall be selected randomly.
(4) Subsequent verification of an AEDM. (i) Each manufacturer that
has used an AEDM under this section shall have available for inspection
by the Department of Energy records showing:
(A) The method or methods used;
(B) The mathematical model, the engineering or statistical
analysis, computer simulation or modeling, and other analytic
evaluation of performance data on which the AEDM is based;
(C) Complete test data, product information, and related
information that the manufacturer has generated or acquired pursuant to
paragraph (d)(4) of this section; and
(D) The calculations used to determine the efficiency and total
power losses of each basic model to which the AEDM was applied.
(ii) If requested by the Department, the manufacturer must perform
at least one of the following:
(A) Conduct simulations to predict the performance of particular
basic models of distribution transformers specified by the Department;
(B) Provide analyses of previous simulations conducted by the
manufacturer;
(C) Conduct sample testing of basic models selected by the
Department; or
(D) Conduct a combination of these.
(e) Alternate Rating Method (ARM) for residential split-system
central air conditioners and heat pumps--(1) Criteria an ARM must
satisfy. The basis of the ARM referred to in Sec. 429.9(c)(3)(ii) for
residential central air conditioners and heat pumps must be a
representation of the test data and calculations of a mechanical vapor-
compression refrigeration cycle. The major components in the
refrigeration cycle must be modeled as ``fits'' to manufacturer
performance data or by graphical or tabular performance data. Heat
transfer characteristics of coils may be modeled as a function of face
area, number of rows, fins per inch, refrigerant circuitry, air-flow
rate and entering-air enthalpy. Additional performance-related
characteristics to be considered may include type of expansion device,
refrigerant flow rate through the expansion device, power of the indoor
fan and cyclic-degradation coefficient. Ratings for untested
combinations must be derived from the ratings of a combination tested
in accordance with Sec. 429.9(c)(3)(i). The seasonal energy efficiency
ratio (SEER) and/or heating seasonal performance factor (HSPF) ratings
for an untested combination must be set equal to or less than the lower
of the SEER and/or HSPF calculated using the applicable DOE-approved
alternative rating method (ARM). If the method includes an ARM/
simulation adjustment factor(s), determine the value(s) of the
factors(s) that yield the best match between the SEER/HSPF determined
using the ARM versus the SEER/HSPF determined from testing in
accordance with Sec. 429.9(c)(3)(i). Thereafter, apply the ARM using
the derived adjustment factor(s) only when determining the ratings for
untested combinations having the same outdoor unit.
(2) Approval of an ARM. (i) Manufacturers who elect to use an ARM
for determining measures of energy consumption under Sec.
429.9(c)(3)(ii)(B)(1) and paragraph (e)(1) of this section must submit
a request for DOE to review the ARM. Send the request to the U.S.
Department of Energy, Office of Energy Efficiency and Renewable Energy,
Building Technologies Program (EE-2J), Attention: Certification and
Compliance Reports (ARM), Forrestal Building, 1000 Independence Avenue,
SW., Washington, DC 20585-0121. Approval must be received from the
Department to use the ARM before the ARM may be used for rating split-
system central air conditioners and heat pumps. If a manufacturer has a
DOE-approved ARM for products also distributed in commerce by a private
labeler, the ARM may also be used by the private labeler for rating
these products. Once an ARM is approved, DOE may contact a
[[Page 56824]]
manufacturer to learn if their ARM has been modified in any way and to
verify that the ARM is being applied as approved. DOE will give follow-
up priority to individual combinations having questionably high ratings
(e.g., a coil-only system having a rating that exceeds the rating of a
coil-only highest sales volume combination by more than 6 percent).
(ii) Each request to DOE for approval of an ARM must include:
(A) The name, mailing address, telephone number, and e-mail address
of the official representing the manufacturer.
(B) Complete documentation of the alternative rating method to
allow DOE to evaluate its technical adequacy. The documentation must
include a description of the methodology, state any underlying
assumptions, and explain any correlations. The documentation should
address how the method accounts for the cyclic-degradation coefficient,
the type of expansion device, and, if applicable, the indoor fan-off
delay. The requestor must submit any computer programs--including
spreadsheets--having less than 200 executable lines that implement the
ARM. Longer computer programs must be identified and sufficiently
explained, as specified above, but their inclusion in the initial
submittal package is optional. Applicability or limitations of the ARM
(e.g., only covers single-speed units when operating in the cooling
mode, covers units with rated capacities of 3 tons or less, not
applicable to the manufacturer's product line of non-ducted systems,
etc.) must be stated in the documentation.
(C) Complete test data from laboratory tests on four mixed (i.e.,
non-highest-sales-volume combination) systems per each ARM.
(1) The four mixed systems must include four different indoor units
and at least two different outdoor units. A particular model of outdoor
unit may be tested with up to two of the four indoor units. The four
systems must include two low-capacity mixed systems and two high-
capacity mixed systems. The low-capacity mixed systems may have any
capacity. The rated capacity of each high-capacity mixed system must be
at least a factor of two higher than its counterpart low-capacity mixed
system. The four mixed systems must meet the applicable energy
conservation standard in Sec. 430.32(c) in effect at the time of the
rating.
(2) The four indoor units must come from at least two different
coil families, with a maximum of two indoor units coming from the same
coil family. Data for two indoor units from the same coil family, if
submitted, must come from testing with one of the ``low-capacity mixed
systems'' and one of the ``high capacity mixed systems.'' A mixed
system indoor coil may come from the same coil family as the highest-
sales-volume-combination indoor unit (i.e., the ``matched'' indoor
unit) for the particular outdoor unit. Data on mixed systems where the
indoor unit is now obsolete will be accepted towards the ARM-validation
submittal requirement if it is from the same coil family as other
indoor units still in production.
(3) The first two sentences of paragraph (e)(2)(ii)(C)(2) of this
section do not apply if the manufacturer offers indoor units from only
one coil family. In this case only, all four indoor coils must be
selected from this one coil family. If approved, the ARM will be
specifically limited to applications for this one coil family.
(D) All product information on each mixed system indoor unit, each
matched system indoor unit, and each outdoor unit needed to implement
the proposed ARM. The calculated ratings for the four mixed systems, as
determined using the proposed ARM, must be provided along with any
other related information that will aid the verification process.
(E) If request for approval is for an updated ARM, manufacturers
must identify modifications made to the ARM since the last submittal,
including any ARM/simulation adjustment factor(s) added since the ARM
was last approved by DOE.
(3) Changes to DOE's Regulations Requiring Re-Approval of an ARM.
Manufacturers who elect to use an ARM for determining measures of
energy consumption under Sec. 429.9(3)(ii)(B)(1) and (d)(1) of this
section must resubmit a request for DOE to review the ARM when:
(i) DOE amends the energy conservation standards as specified in
Sec. 429.32 for residential central air conditioners and heat pumps.
In this case, any testing and evidence required under paragraph (e)(2)
of this subsection shall be developed with units that meet the amended
energy conservation standards specified in Sec. 429.32.
(ii) DOE amends the test procedure for residential air conditioners
and heat pumps as specified in Appendix M to Subpart B of Part 430.
(4) Manufacturers that elect to use an ARM for determining measures
of energy consumption under Sec. 429.9(c)(3)(ii)(B)(1) and (e)(1) of
this section must regularly either subject a sample of their units to
independent testing, e.g., through a voluntary certification program,
in accordance with the applicable DOE test procedure, or have the
representations reviewed by an independent state-registered
professional engineer who is not an employee of the manufacturer. The
manufacturer may continue to use the ARM only if the testing
establishes, or the registered professional engineer certifies, that
the results of the ARM accurately represent the energy consumption of
the unit(s). The manufacturer is to keep the records of any such
testing, and any such certifications, on file for review by DOE for two
years following the discontinuance of said combination. Any proposed
change to the alternative rating method must be approved by DOE prior
to its use for rating.
(5) Manufacturers who choose to use computer simulation or
engineering analysis for determining measures of energy consumption
under Sec. 429.9(c)(3)(ii)(B)(1) and (e)(1) through (e)(4) of this
section must permit representatives of the Department of Energy to
inspect for verification purposes the simulation method(s) and computer
program(s) used. This inspection may include conducting simulations to
predict the performance of particular outdoor unit ``indoor'' unit
combinations specified by DOE, analysis of previous simulations
conducted by the manufacturer, or both.
Subpart D--General Provisions
Sec. 429.24 Maintenance of records.
The manufacturer of any covered product or covered equipment shall
establish, maintain, and retain the records of certification reports,
of the underlying test data for all certification testing, and of any
other testing conducted to satisfy the requirements of this part 429,
part 430, and part 431 of this subchapter. Such records shall be
organized and indexed in a fashion that makes them readily accessible
for review by DOE upon request. The records shall be retained by the
manufacturer for a period of two years from the date that production of
the applicable model has ceased.
Sec. 429.25 Imported products.
(a) Any person importing any covered product or covered equipment
into the United States shall comply with the provisions of this part,
and is subject to the remedies of this part.
(b) Any covered product or covered equipment offered for
importation in violation of this part shall be refused admission into
the customs territory of the United States under rules issued by the
Department of Homeland Security
[[Page 56825]]
(DHS) and subject to further remedies as provided by law, except that
DHS may, by such rules, authorize the importation of such covered
product or covered equipment upon such terms and conditions (including
the furnishing of a bond) as may appear to DHS appropriate to ensure
that such covered product or covered equipment will not violate this
part, or will be exported or abandoned to the United States.
Sec. 429.26 Exported products.
This part shall not apply to any covered product or covered
equipment if:
(a) Such covered product or covered equipment is manufactured,
sold, or held for sale for export from the United States (or such
product was imported for export), unless such product is, in fact,
distributed in commerce for use in the United States; and
(b) Such covered product or covered equipment, when distributed in
commerce, or any container in which it is enclosed when so distributed,
bears a stamp or label stating ``NOT FOR SALE IN THE UNITED STATES.''
Sec. 429.27 Public record.
Pursuant to the provisions of Sec. 429.71, product-specific
information submitted by manufacturers to DOE pursuant to Sec.
429.19(b)(13), including the manufacturer's name, the brand name, and
applicable model number(s), shall be considered public information not
exempt from public disclosure.
Subpart E--Enforcement
Sec. 429.29 Purpose and scope.
This subpart describes the enforcement authority of the Secretary
and the General Counsel of DOE to ensure compliance with the
conservation standards and regulations.
Sec. 429.31 Prohibited acts subjecting persons to enforcement action.
(a) Each of the following actions are prohibited:
(1) Failure of a manufacturer to provide, maintain, permit access
to, or copying of records required to be supplied under the Act and
this part or failure to make reports or provide other information
required to be supplied under the Act and this part, including but not
limited to failure to properly certify covered products and covered
equipment in accordance with Sec. 429.19 of this part;
(2) Failure to test any covered product or covered equipment,
subject to an applicable energy conservation standard, in conformance
with the applicable test requirements prescribed in 10 CFR parts 430 or
431; or deliberate use of controls or features in a covered product or
covered equipment to circumvent the requirements of a test procedure
and produce test results that are unrepresentative of a product's
energy or water consumption if measured pursuant to DOE's required test
procedure;
(3) Failure of a manufacturer to supply at the manufacturer's
expense a requested number of covered products or covered equipment to
a test laboratory designated by the Secretary;
(4) Failure of a manufacturer to permit a representative designated
by the Secretary to observe any testing required by the Act and this
part and inspect the results of such testing;
(5) Distribution in commerce by a manufacturer or private labeler
of any new covered product or covered equipment that is not in
compliance with an applicable energy conservation standard prescribed
under the Act, except to the extent that the new covered product or
covered equipment is covered by a regional standard that is more
stringent than the base national standard;
(6) Distribution in commerce by a manufacturer or private labeler
of a basic model of covered product or covered equipment after a notice
of noncompliance determination has been issued to the manufacturer or
private labeler;
(7) Knowing misrepresentation by a manufacturer or private labeler
of the applicable conservation standard of any covered product or
covered equipment distributed in commerce; or
(8) For any manufacturer, distributor, retailer, or private labeler
to distribute in commerce an adapter that--
(i) Is designed to allow an incandescent lamp that does not have a
medium screw base to be installed into a fixture or lamp holder with a
medium screw base socket; and
(ii) Is capable of being operated at a voltage range at least
partially within 110 and 130 volts.
(9) For any manufacturer or private labeler to knowingly sell a
product to a distributor, contractor, or dealer with knowledge that the
entity routinely violates any regional standard applicable to the
product.
(b) When the Secretary has reason to believe that a person has
undertaken a prohibited act listed in paragraph (a) of this section,
the Secretary may:
(1) Issue a notice of noncompliance determination;
(2) Impose additional certification testing requirements;
(3) Seek injunctive relief;
(4) Assess a civil penalty for knowing violations; or
(5) Undertake any combination of the above.
Sec. 429.33 Investigation of compliance.
DOE may initiate an investigation of compliance upon belief that a
basic model may not be compliant with an applicable conservation
standard, certification requirement or other regulation.
Sec. 429.34 Review of certification data.
DOE may, at any time, request any information relevant to
determining compliance with any requirement under parts 429, 430 and
431 of this subchapter, including the data underlying certification of
a basic model. Such data may be used by DOE to make a determination of
compliance or noncompliance with an applicable standard.
Sec. 429.35 Subpoena.
For purposes of carrying out parts 429, 430, and 431 of this
subchapter, the Secretary or the General Counsel, may sign and issue
subpoenas for the attendance and testimony of witnesses and the
production of relevant books, records, papers, and other documents, and
administer the oaths. Witnesses summoned under the provisions of this
section shall be paid the same fees and mileage as are paid to
witnesses in the courts of the United States. In case of contumacy by,
or refusal to obey a subpoena served, upon any persons subject to this
part, the Secretary may seek an order from the District Court of the
United States for any District in which such person is found or resides
or transacts business requiring such person to appear and give
testimony, or to appear and produce documents. Failure to obey such
order is punishable by such court as contempt thereof.
Sec. 429.36 Testing.
DOE may, at any time, test a basic model to assess whether the
basic model is in compliance with the applicable energy conservation
standard(s).
Sec. 429.37 Test notice.
To obtain units for enforcement testing to determine compliance
with an applicable standard, DOE may issue a test notice addressed to
the manufacturer in accordance with the following requirements:
(a) The test notice will be signed by the Secretary or his
designee. The test notice will be sent by DOE to the government
relations representative or other responsible official, as designated
by the manufacturer.
(b) The test notice will specify the basic model to be selected for
testing, the method of selecting the test sample,
[[Page 56826]]
the maximum size of the sample and the size of the initial test sample,
the time at which testing shall be initiated, the date by which testing
is scheduled to be completed and the facility at which testing will be
conducted. The test notice may also provide for situations in which the
selected basic model is unavailable for testing, and may include
alternative basic models.
(c) DOE will state in the test notice that it will select the units
of a basic model to be tested from the manufacturer, from one or more
distributors, and/or from one or more retailers. If any unit is
selected from a distributor or retailer, the manufacturer shall
reimburse the distributor or retailer (with a replacement unit or a
voucher) for any such units.
(d) DOE may require in the test notice that the manufacturer of a
basic model ship or cause to be shipped from a retailer or distributor
at its expense a requested number of units of a basic model specified
in such test notice to a testing laboratory designated by the
Secretary. The number of units of a basic model specified in a test
notice shall not exceed twenty one (21).
(e) Within 2 working days of the time units are selected, the
manufacturer shall ship the specified test units of a basic model to
the testing laboratory.
Sec. 429.39 [Reserved].
Sec. 429.41 Test unit selection.
(a) To select units for testing from a:
(1) Manufacturer's warehouse, distributor, or other facility
affiliated with the manufacturer. A DOE representative will select a
batch sample at random of not more than 21 units in accordance with the
provisions in Sec. 429.45 and the conditions specified in the test
notice. DOE will randomly select an initial test sample of units from
the batch sample for testing in accordance with appendices A through C
of this subpart. DOE will make a determination whether an alternative
sample size will be used in accordance with the provisions in Sec.
429.45(a)(5).
(2) Retailer. A DOE representative will select an initial test
sample of units at random, which satisfies the minimum units necessary
for testing in accordance with the provisions in appendices A through C
of the subpart and the conditions specified in the test notice.
Depending on the results of the testing, DOE may select additional
units for testing from a retailer in accordance with appendices A
through C of the subpart. If the full sample is not available from a
retailer, DOE will make a determination based on the provisions in
Sec. 429.45(a)(5).
(b) Units tested in accordance with the applicable test procedure
under this part by DOE or another Federal agency, pursuant to other
provisions or programs, may count toward units in the test sample.
(c) The resulting test data shall constitute official test data for
the basic model. Such test data will be used by DOE to make a
determination of compliance or noncompliance if a sufficient number of
tests have been conducted to satisfy the requirements of Sec. 429.45
and appendix A through appendix C of this subpart.
Sec. 429.43 Test unit preparation.
(a) Prior to and during testing, a test unit selected in accordance
with Sec. 429.41 of this subpart shall not be prepared, modified, or
adjusted in any manner unless such preparation, modification, or
adjustment is allowed by the applicable DOE test procedure. One test
shall be conducted for each test unit in accordance with the applicable
test procedures prescribed in parts 430 and 431 of this subchapter.
(b) No quality control, testing or assembly procedures shall be
performed on a test unit, or any parts and subassemblies thereof, that
is not performed during the production and assembly of all other units
included in the basic model.
(c) A test unit shall be considered defective if such unit 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. Defective units, including those damaged due to shipping
or handling, shall be reported immediately to DOE. DOE shall authorize
testing of an additional unit on a case-by-case basis.
Sec. 429.45 Sampling for enforcement testing.
(a) The Department will base the determination of whether a basic
model complies with the applicable energy conservation or water
conservation standards on testing conducted in accordance with the
applicable test procedures specified in parts 430 and 431 of this
subchapter, and with the following statistical sampling procedures:
(1) For products with applicable energy and water conservation
standards in Sec. 430.32, the Department will use a sample size of not
more than 21 units and follow the sampling plans in Appendix A to
Subpart E of Part 429 (Sampling for Enforcement Testing of Covered
Consumer Products and Certain High-Volume Commercial Equipment).
(2) For commercial prerinse spray valves, illuminated exit signs,
traffic signal modules and pedestrian modules, commercial clothes
washers, and metal halide lamp ballasts, the Department will use a
sample size of not more than 21 units and follow the sampling plans in
Appendix A to Subpart E of Part 429 (Sampling for Enforcement Testing
of Covered Consumer Products and Certain High-Volume Commercial
Equipment).
(3) For automatic commercial ice makers, commercial refrigerators,
freezers, and refrigerator-freezers, refrigerated bottled or canned
vending machines, and commercial HVAC and WH equipment, the Department
will use an initial sample size of not more than four units and follow
the sampling plans in Appendix B to Subpart E of Part 429 (Sampling
Plan for Enforcement Testing of Covered Equipment and Certain Low-
Volume Covered Products) with the following exceptions:
(i) Except as required or provided in paragraphs (a)(3)(ii) of this
section, initially, the Department will test two units.
(ii) If fewer than two units of the basic model are available for
testing when the manufacturer receives the test notice, then:
(A) The Department will test the available unit; or
(B) If one or more other units of the basic model are expected to
become available within 30 days, the Department may instead at its
discretion, test either:
(1) The available unit(s) and one or more of the other units that
subsequently become available (up to a maximum of four); or
(2) Up to four of the other units that subsequently become
available.
(4) For distribution transformers, the Department will use an
initial sample size of not more than five units and follow the sampling
plans in Appendix C to Subpart E of Part 429 (Sampling Plan for
Enforcement Testing of Distribution Transformers). If fewer than five
units of a 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 30 days, the Department 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 21); or
(B) Up to 21 of the other units that subsequently become available.
(5) Notwithstanding paragraphs (a)(1) through (a)(4) of this
section, if testing
[[Page 56827]]
of the available or subsequently available units of a basic model would
be impractical, as for example when a basic model 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 otherwise required number of units.
(6) When the Department makes a determination in accordance with
section (a)(5) to test less than the number of units specified (a)(1)
through (a)(4) of this section, the Department will base the compliance
determination on the results of such testing in accordance with
Appendix B to Subpart E of Part 429 (Sampling Plan for Enforcement
Testing of Covered Equipment and Certain Low-Volume Covered Products)
using a sample size (n1) equal to the number of units
identified in Sec. 429.41 without the option for additional testing at
the manufacturer's option.
(6) For the purposes of paragraphs (a)(1) through (a)(5) of this
section, available units are those that are available for commercial
distribution within the United States.
Sec. 429.47 [Reserved]
Sec. 429.49 Notice of noncompliance determination to cease
distribution of a basic model.
(a) In the event that DOE determines a basic model is noncompliant
with an applicable energy conservation standard, or if a manufacturer
or private labeler determines a basic model to be in noncompliance, DOE
may issue a notice of noncompliance determination to the manufacturer
or private labeler. This notice of noncompliance determination will
notify the manufacturer or private labeler of its obligation to:
(1) Immediately cease distribution in commerce of the basic model.
(2) Give immediate written notification of the determination of
noncompliance to all persons to whom the manufacturer has distributed
units of the basic model manufactured since the date of the last
determination of compliance.
(3) Pursuant to a request made by the Secretary, provide DOE within
30 days of the request, records, reports and other documentation
pertaining to the acquisition, ordering, storage, shipment, or sale of
a basic model determined to be in noncompliance.
(b) In the event that DOE determines a model is noncompliant with
an applicable certification requirement, or if a manufacturer or
private labeler determines a model to be in noncompliance with the
certification requirements, DOE may issue a notice of noncompliance
determination to the manufacturer or private labeler. This notice of
noncompliance determination will notify the manufacturer or private
labeler of its obligation to:
(1) Immediately cease distribution in commerce of the basic model.
(2) Pursuant to a request made by the Secretary, provide DOE within
30 days of the request, records, reports and other documentation
pertaining to the acquisition, ordering, storage, shipment, or sale of
a basic model determined to be in noncompliance.
(c) If a manufacturer or private labeler fails to comply with the
required actions in the notice of noncompliance determination as set
forth in paragraphs (a) or (b) of this section, the Secretary may seek,
among other remedies, injunctive action and civil penalties, where
appropriate.
(d) The manufacturer may modify a basic model determined to be
noncompliant with an applicable energy conservation standard in such
manner as to make it comply with the applicable standard. Such modified
basic model shall then be treated as a new basic model and must be
certified in accordance with the provisions of this part; except that
in addition to satisfying all requirements of this part, the
manufacturer shall also maintain, and provide upon request made by the
Secretary, records that demonstrate that modifications have been made
to all units of the new basic model prior to distribution in commerce.
Sec. 429.51 Additional certification testing requirements.
Pursuant to Sec. 429.31(b)(2), if DOE determines that independent,
third-party testing is necessary to ensure a manufacturer's compliance
with the rules of this part 429, part 430, or part 431 of this
subchapter, a manufacturer must base its certification of a basic model
under subpart C of this part on independent, third-party laboratory
testing.
Sec. 429.53 Injunctions.
If the Secretary has reason to seek an injunction under the Act:
(a) DOE will notify the manufacturer, private labeler or any other
person as required, of the prohibited act at issue and the Secretary's
intent to seek a judicial order enjoining the manufacturer, private
labeler or any other person as required from engaging in the prohibited
act unless the manufacturer, private labeler or any other person as
required, delivers to DOE within 15 calendar days a corrective action
and compliance plan, satisfactory to DOE, of the steps it will take to
ensure that the prohibited conduct ceases. DOE will monitor the
implementation of such plan.
(b) If the manufacturer, private labeler or any other person as
required, fails to cease engaging in the prohibited conduct or fails to
provide a satisfactory corrective action and compliance plan, the
Secretary may seek an injunction.
(c) The Secretary shall determine whether the facts of the case
warrant the assessment of civil penalties for knowing violations.
Sec. 429.55 Maximum civil penalty.
Any person who knowingly violates any provision of Sec. 429.31(a)
of this part may be subject to assessment of a civil penalty of no more
than $200 for each violation. As to Sec. 429.31(a)(1) with respect to
failure to certify, and as to Sec. 429.31(a)(2), (5) through (9), each
unit of a covered product or covered equipment distributed in violation
of such paragraph shall constitute a separate violation. For violations
of Sec. 429.31(a)(1), (3), and (4), each day of noncompliance shall
constitute a separate violation for each basic model at issue.
Sec. 429.57 Penalty considerations.
DOE will assess a civil penalty under this subpart taking the
following into account:
(a) The nature and scope of the violation;
(b) The provision violated;
(c) The violator's history of compliance or non-compliance;
(d) Whether the violator is a small business;
(e) The violator's ability to pay;
(f) The violator's timely self-reporting of the violation, if any;
(g) The violator's self-initiated corrected action, if any; and
(h) Such other matters as justice may require.
Sec. 429.59 Notice of proposed civil penalty.
(a) Before issuing an order assessing a civil penalty against any
person under this section, the Secretary shall provide to such person
notice of the proposed penalty.
(b) The notice of proposed penalty will:
(1) Include the amount of the proposed penalty;
(2) Include a statement of the material facts constituting the
alleged violation; and
(3) Inform the person of the opportunity to elect in writing within
30 calendar days of receipt of the notice to have the procedures of
Sec. 429.65 (in lieu
[[Page 56828]]
of those of Sec. 429.63) apply with respect to the penalty.
Sec. 429.61 Election of procedures.
(a) In responding to a notice of proposed civil penalty, the
respondent may request:
(1) An administrative hearing before an Administrative Law Judge
(ALJ) under Sec. 429.63 of this part; or
(2) Elect to have the procedures of Sec. 429.65 apply.
(b) Any election to have the procedures of Sec. 429.65 apply may
not be revoked except with the consent of the Secretary.
(c) If the respondent fails to respond to a notice issued under
Sec. 429.59 or otherwise fails to indicate its election of procedures,
DOE shall refer the civil penalty action to an ALJ for a hearing under
Sec. 429.63.
Sec. 429.63 Administrative law judge hearing and appeal.
(a) When elected pursuant to Sec. 429.61, DOE shall refer a civil
penalty action brought under Sec. 429.59 of this part to an ALJ, who
shall afford the respondent an opportunity for an agency hearing on the
record.
(b) After consideration of all matters of record in the proceeding,
the ALJ will issue a recommended decision, if appropriate, recommending
a civil penalty. The decision includes a statement of the findings and
conclusions, and the reasons therefore, on all material issues of fact,
law, and discretion.
(c)(1) The Secretary shall adopt, modify, or set aside the
conclusions of law or discretion contained in the ALJ's recommended
decision and shall set forth a final order assessing a civil penalty.
The Secretary shall include in its final order the ALJ's findings of
fact and the reasons for its actions.
(2) Any person against whom a penalty is assessed under this
section may, within 60 calendar days after the date of the final order
of the Secretary assessing such penalty, institute an action in the
United States Court of Appeals for the appropriate judicial circuit for
judicial review of such order in accordance with chapter 7 of title 5,
United States Code. The court shall have jurisdiction to enter a
judgment affirming, modifying, or setting aside in whole or in part,
the order of the Secretary, or the court may remand the proceeding to
the Secretary for such further action as the court may direct.
Sec. 429.65 Immediate issuance of order assessing civil penalty.
(a) If respondent elects to forgo an agency hearing pursuant to
Sec. 429.61, DOE shall issue an order assessing the civil penalty
proposed in the notice of proposed penalty under Sec. 429.59, 30 days
after respondent's receipt of the notice of proposed penalty.
(b) If within 60 days of receiving the assessment order in
paragraph (a) of this section the respondent does not pay the civil
penalty amount, the Secretary shall institute an action in the
appropriate United States District Court for an order affirming the
assessment of the civil penalty. The court shall have authority to
review de novo the law and the facts involved and shall have
jurisdiction to enter a judgment enforcing, modifying, and enforcing as
so modified, or setting aside in whole or in part, such assessment.
Sec. 429.67 Collection of civil penalties.
(a) If any person fails to pay an assessment of a civil penalty
after it has become a final and unappealable order under Sec. 429.63
or after the appropriate District Court has entered final judgment in
favor of the Secretary under Sec. 429.65, the Secretary shall
institute an action to recover the amount of such penalty in any
appropriate District Court of the United States. In such action, the
validity and appropriateness of such final assessment order or judgment
shall not be subject to review.
(b)(1) The Secretary will be represented by the General Counsel of
DOE (or any attorney or attorneys within DOE designated by the General
Counsel) who shall supervise, conduct, and argue any civil litigation
to which Sec. 429.65 applies including any related collection action
under paragraph (a) of this section in a court of the United States or
in any other court, except the Supreme Court of the United States,
consulting with the Attorney General concerning such litigation. The
Attorney General will provide, on request, such assistance in the
conduct of such litigation as may be appropriate.
(2) The Secretary shall be represented by the Attorney General, or
the Solicitor General, as appropriate, in actions under this section,
except to the extent provided in paragraph (b)(1) of this section.
(3) DOE will provide to a Respondent contact information for the
appropriate administrative law judge when a case is referred for
hearing pursuant to Sec. 429.63.
Sec. 429.69 Compromise and settlement.
(a) The Secretary may compromise, modify, or remit, with or without
conditions, any civil penalty (with leave of court if necessary).
(b) In exercising its authority under paragraph (a) of this
section, the Secretary may consider the nature and seriousness of the
violation, the efforts of the respondent to remedy the violation in a
timely manner, and other factors as justice may require.
(c) The Secretary's authority to compromise, modify or remit a
civil penalty may be exercised at any time prior to a final decision by
the United States Court of Appeals if Sec. 429.63 procedures are
utilized, or prior to a final decision by the United States District
Court, if Sec. 429.65 procedures are utilized.
(d) Notwithstanding paragraph (a) of this section, the Secretary or
the respondent may propose to settle the case. If a settlement is
agreed to by the parties, the respondent is notified and the case is
closed.
Sec. 429.71 Confidentiality.
Pursuant to the provisions of 10 CFR 1004.11, any person submitting
information or data which the person believes to be confidential and
exempt by law from public disclosure should submit one complete copy,
and one copy from which the information believed to be confidential has
been deleted. In accordance with the procedures established in 10 CFR
1004.11, DOE shall make its own determination with regard to any claim
that information submitted be exempt from public disclosure; however,
the following records and other material of DOE are not exempt from
public disclosure:
(a) Reports of compliance filed pursuant to the rules in this part
or pursuant to a provision in a DOE order; and
(b) Product-specific information submitted by manufacturers to DOE
pursuant to Sec. 429.19(b)(13), including the manufacturer's name, the
brand name, and applicable model number(s).
Appendix A to Subpart E of Part 429--Sampling Plan for Enforcement
Testing of Covered Consumer Products and Certain High-Volume Commercial
Equipment
(a) The first sample size (n1) must be four or more
units, except as provided by Sec. 429.45.
(b) Compute the mean of the measured energy performance
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.005
where xi is the measured energy or water efficiency or
consumption from test i, and n1 is the total number of
tests.
(c) Compute the standard deviation (s1) of the
measured energy performance from the n1 tests as follows:
[[Page 56829]]
[GRAPHIC] [TIFF OMITTED] TP16SE10.006
(d) Compute the standard error (sx1) of the measured
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.007
(e) Compute the upper control limit (UCL1) and lower
control limit (LCL1) for the mean of the first sample
using the applicable DOE energy or water performance standard (EPS)
as the desired mean and a probability level of 95 percent (two-
tailed test) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.008
and
[GRAPHIC] [TIFF OMITTED] TP16SE10.009
where t is the statistic based on a 95 percent two-tailed
probability level and a sample size of n1.
(f)(1) For an energy efficiency or water efficiency standard,
compare the mean of the first sample (x1) with the upper
and lower control limits (UCL1 and LCL1) to
determine one of the following:
(2) For an energy or water consumption standard, compare the
mean of the first sample (x1) with the upper and lower
control limits (UCL1 and LCL1) to determine
one of the following:
(A) If the mean of the first sample is below the lower control
limit, then the basic model is in noncompliance and testing is at an
end. (Do not go on to any of the steps below.)
(B) If the mean of the first sample is equal to or greater than
the upper control limit, then the basic model is in compliance and
testing is at an end. (Do not go on to any of the steps below.)
(C) If the sample mean is equal to or greater than the lower
control limit but less than the upper control limit, then no
determination of compliance or noncompliance can be made and a
second sample size is determined by Step h(1).
(g)(1) For an energy efficiency or water efficiency standard,
determine the second sample size (n2) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.010
where s1 and t have the values used in Steps 4 and 5,
respectively. The term ``0.05 EPS'' is the difference between the
applicable energy efficiency or water efficiency standard and 95
percent of the standard, where 95 percent of the standard is taken
as the lower control limit. This procedure yields a sufficient
combined sample size (n1+n2) to give an
estimated 97.5 percent probability of obtaining a determination of
compliance when the true mean efficiency is equal to the applicable
standard. Given the solution value of n2, determine one
of the following:
(A) If the value of n2 is less than or equal to zero
and if the mean energy or water efficiency of the first sample
(x1) is either equal to or greater than the lower control
limit (LCL1) or equal to or greater than 95 percent of
the applicable energy efficiency or water efficiency standard (EES),
whichever is greater, i.e., if n2 <= 0 and x1
>= max (LCL1, 0.95 EES), the basic model is in compliance
and testing is at an end.
(B) If the value of n2 is less than or equal to zero
and the mean energy efficiency of the first sample (x1)
is less than the lower control limit (LCL1) or less than
95 percent of the applicable energy efficiency standard (EES),
whichever is greater, i.e., if n2 <= 0 and x1
>= max (LCL1, 0.95 EES), the basic model is in
noncompliance and testing is at an end.
(C) If the value of n2 is greater than zero, then
value of the second sample size is determined to be the smallest
integer equal to or greater than the solution value of n2
for equation (6). If the value of n2so calculated is
greater than 21-n1, set n2 equal to 21-
n1.
(2) For an Energy or Water Consumption Standard, determine the
second sample size (n2) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.011
where s1and t have the values used in (d) and (e),
respectively. The term ``0.05 EPS'' is the difference between the
applicable energy or water consumption standard and 105 percent of
the standard, where 105 percent of the standard is taken as the
upper control limit. This procedure yields a sufficient combined
sample size (n1 + n2) to give an estimated
97.5 percent probability of obtaining a determination of compliance
when the true mean consumption is equal to the applicable standard.
Given the solution value of n2, determine one of the
following:
(A) If the value of n2 is less than or equal to zero
and if the mean energy or water consumption of the first sample
(x1) is either equal to or less than the upper control
limit (UCL1) or equal to or less than 105 percent of the
applicable energy or water performance standard (EPS), whichever is
less, i.e., if n2 <= 0 and x1 <= min
(UCL1, 1.05 EPS), the basic model is in compliance and
testing is at an end.
(B) If the value of n2 is less than or equal to zero
and the mean energy or water consumption of the first sample
(x1) is greater than the upper control limit
(UCL1) or more than 105 percent of the applicable energy
or water performance standard (EPS), whichever is less, i.e., if
n2 <= 0 and x1 > min (UCL1, 1.05
EPS), the basic model is in noncompliance and testing is at an end.
(C) If the value of n2 is greater than zero, then the
value of the second sample size is determined to be the smallest
integer equal to or greater than the solution value of n2
for equation (6a). If the value of n2 so calculated is
greater than 20-n1, set n2 equal to 21-
n1.
(h) Compute the combined mean (x2) of the measured
energy or water performance of the n1 and n2
units of the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.012
(i) Compute the standard error (Sx1) of the measured
energy or water performance of then 1 and n2
units in the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.013
Note: s1 is the value obtained in (c).
(j)(1). For an Energy Efficiency Standard, compute the lower
control limit (LCL2) for the mean of the combined first
and second samples using the DOE energy efficiency standard (EES) as
the desired mean and a one-tailed probability level of 97.5 percent
(equivalent to the two-tailed probability level of 95 percent used
in Step (e)) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.014
where the t-statistic has the value obtained in Step (e).
(j)(2). For an Energy or Water Consumption Standard, compute the
upper control limit (UCL2) for the mean of the combined
first and second samples using the DOE energy or water performance
standard (EPS) as the desired mean and a one-tailed probability
level of 102.5 percent (equivalent to the two-tailed probability
level of 95 percent used in Step (e)) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.015
where the t-statistic has the value obtained in (e).
(k)(1). For an Energy Efficiency Standard, compare the combined
sample mean (x2) to the lower control limit
(LCL2) to find one of the following:
(A) If the mean of the combined sample (x2) is less
than the lower control limit (LCL2) or 95 percent of the
applicable energy efficiency standard (EES), whichever is greater,
i.e., if x2 < max (LCL2, 0.95 EES), the basic
model is in noncompliance and testing is at an end.
(B) If the mean of the combined sample (x2) is equal
to or greater than the lower control limit (LCL2) or 95
percent of the applicable energy efficiency standard (EES),
whichever is greater, i.e., if x2 >= max
(LCL2, 0.95 EES), the basic model is in compliance and
testing is at an end.
(k)(2). For an Energy or Water Consumption Standard, compare the
combined sample mean (x2) to the upper control limit
(UCL2) to find one of the following:
(A) If the mean of the combined sample (x2) is
greater than the upper control limit (UCL2) or 105
percent of the applicable energy or water performance standard
(EPS), whichever is less, i.e., if x2 > min
(UCL2, 1.05 EPS), the basic model is in noncompliance and
testing is at an end.
(B) If the mean of the combined sample (x2) is equal
to or less than the upper control limit (UCL2) or 105
percent of the applicable energy or water performance standard
(EPS),
[[Page 56830]]
whichever is less, i.e., if x2 <= min (UCL2,
1.05 EPS), the basic model is in compliance and testing is at an
end.
Appendix B to Subpart E of Part 429--Sampling Plan for Enforcement
Testing of Covered Equipment and Certain Low-Volume Covered Products
The Department will determine compliance as follows:
(a) The first sample size (n1) must be four or more
units, except as provided by Sec. 429.45.
(b) Compute the mean of the measured energy performance
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.016
Where xi is the measured energy efficiency or consumption
from test i, and n1 is the total number of tests.
(c) Compute the standard deviation (s1) of the
measured energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.017
(d) Compute the standard error (sx1) of the measured
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.018
(e)(1) For an energy efficiency standard, compute the lower
control limit (LCL1) according to:
[GRAPHIC] [TIFF OMITTED] TP16SE10.019
or
[GRAPHIC] [TIFF OMITTED] TP16SE10.020
(whichever is greater).
(2) For an energy use standard, compute the upper control limit
(UCL1) according to:
[GRAPHIC] [TIFF OMITTED] TP16SE10.021
or
[GRAPHIC] [TIFF OMITTED] TP16SE10.022
(whichever is less),
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.
(f)(1) Compare the sample mean to the control limit.
(i) The basic model is in compliance and testing is at an end
if:
(A) For an energy or water efficiency standard, the sample mean
is equal to or greater than the lower control limit, or
(B) For an energy or water consumption standard, the sample mean
is equal to or less than the upper control limit.
(ii) 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 because
compliance has not been demonstrated if:
(A) For an energy efficiency standard, the sample mean is less
than the lower control limit, or
(B) For an energy consumption standard, the sample mean is
greater than the upper control limit.
(2) If the manufacturer does request additional testing, and
provides the necessary additional units, the Department will test
each unit the same number of times it tested previous units. The
Department will then compute a combined sample mean, standard
deviation, and standard error as described above. (The ``combined
sample'' refers to the units the Department initially tested plus
the additional units the Department has tested at the manufacturer's
request.) The Department 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 one of these two conditions, the basic model is in
noncompliance and the testing is at an end.
Appendix C to Subpart E of Part 429--Sampling Plan for Enforcement
Testing of Distribution Transformers
(a) When testing distribution transformers, the number of units
in the sample (m1) shall be in accordance with Sec.
429.45 and DOE shall perform the following number of tests:
(i) If DOE tests four or more units, it will test each unit
once;
(ii) If DOE tests two or three units, it will test each unit
twice; or
(iii) If DOE tests one unit, it will test that unit four times.
(b) DOE shall determine compliance as follows:
(i) Compute the mean (X1) of the measured energy
performance of the n1 tests in the first sample as
follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.023
Where Xi is the measured efficiency of test i.
(ii) Compute the sample standard deviation (S1) of
the measured efficiency of the n1 tests in the first
sample as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.024
(iii) Compute the standard error (SE(X1)) of the mean
efficiency of the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.025
(iv) Computer the sample size discount (SSD(m1)) as
follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.026
Where m1 is the number of units in the sample, and RE is
the applicable DOE efficiency when the test is to determine
compliance with the applicable energy conservation standard, or is
the labeled efficiency when the test is to determine compliance with
the labeled efficiency value.
(v) Compute the lower control limit (LCL1) for the
mean of the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.027
Where t is the 2.5th percentile of a t-distribution for a sample
size of n1, which yields a 97.5 percent confidence level
for a one-tailed t-test.
(vi) Compare the mean of the first sample (X1) with
the lower control limit (LCL1) to determine one of the
following:
[[Page 56831]]
(A) If the mean of the first sample is below the lower control
limit, then the basic model is in non-compliance and testing is at
an end.
(B) If the mean is equal to or greater than the lower control
limit, no final determination of compliance or non-compliance can be
made; proceed to Step (vii).
(vii) Determine the recommended sample size (n) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.028
Where S1 and t have the values used in Steps (ii) and
(v), respectively. The factor
[GRAPHIC] [TIFF OMITTED] TP16SE10.032
is based on an 8-percent tolerance in the total power loss.
Given the value of n, determine one of the following:
(A) If the value of n is less than or equal to n1 and
if the mean energy efficiency of the first sample (X1) is
equal to or greater than the lower control limit (LCL1),
the basic model is in compliance and testing is at an end.
(B) If the value of n is greater than n1, the basic
model is in non-compliance. The size of a second sample
n2 is determined to be the smallest integer equal to or
greater than the difference n-n1. If the value of
n2 so calculated is greater than 21-n1, set
n2 equal to 21-n1.
(viii) Compute the combined (X2) mean of the measured
energy performance of the n1 and n2 units of
the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.029
(ix) Compute the standard error (SE(X2)) of the mean
full-load efficiency of the n1 and n2units in
the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.030
(Note that S1 is the value obtained above in (ii).)
(x) Set the lower control limit (LCL2) to,
[GRAPHIC] [TIFF OMITTED] TP16SE10.031
Where t has the value obtained in (v), and compare the combined
sample mean (X2) to the lower control limit
(LCL2) to find one of the following:
(A) If the mean of the combined sample (X2) is less than
the lower control limit (LCL2), the basic model is in
non-compliance and testing is at an end.
(B) If the mean of the combined sample (X2) is equal to
or greater than the lower control limit (LCL2), the basic
model is in compliance and testing is at an end.
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
2. The authority citation for part 430 continues to read as
follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
3. In Sec. 430.2 revise the definition of ``Act'' and in the
definition of ``basic model'' revise paragraph (24) to read as follows:
Sec. 430.2 Definitions.
* * * * *
Act means the Energy Policy and Conservation Act of 1975, as
amended, 42 U.S.C. 6291-6316.
* * * * *
Basic model * * *
(24) With respect to medium base compact fluorescent lamps, means
lamps that have essentially identical light output and electrical
characteristics and that do not have any differing physical or
functional characteristics that affect energy consumption or efficacy.
* * * * *
Sec. 430.24 [Removed and Reserved]
4. Remove and reserve Sec. 430.24.
Subpart F--[Removed and Reserved]
5. Remove and reserve Subpart F, consisting of Sec. Sec. 430.60
through 430.75, and Appendix A and B to subpart F of part 430.
PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND
INDUSTRIAL EQUIPMENT
6. The authority citation for part 431 continues to read as
follows:
Authority: 42 U.S.C. 6291-6317.
Sec. 431.65 [Removed]
7. Section 431.65 is removed.
Sec. 431.135 [Removed]
8. Section 431.135 is removed.
Sec. Sec. 431.173 through 431.175 [Removed and Reserved]
9. Sections 431.173 through 431.175 are removed and reserved.
Sec. Sec. 431.197 and 431.198 [Removed]
10a. Sections 431.197 and 431.198 are removed.
Appendix B to Subpart K of Part 431--[Removed]
10b. Appendix B to subpart K of part 431 is removed.
Sec. 431.205 [Removed]
11. Section 431.205 is removed.
Sec. 431.225 [Removed]
12. Section 431.225 is removed.
Sec. 431.265 [Removed]
13. Section 431.265 is removed.
Sec. 431.295 [Removed]
14. Section 431.295 is removed.
15. In Sec. 431.302 a new definition of ``manufacturer of walk-in
cooler or walk-in freezer'' is added in alphabetical order to read as
follows:
Sec. 431.302 Definitions concerning walk-in coolers and walk-in
freezers.
Manufacturer of a walk-in cooler or walk-in freezer means any
person who manufactures, produces, assembles or imports such a walk-in
cooler or walk-in freezer, including any person who:
(1) Manufacturers, produces, assembles, or imports a walk-in cooler
or walk-in freezer in its entirety, including the collection and
shipment of all components that affect the energy consumption of a
walk-in cooler or walk-in freezer;
(2) Manufactures, produces, assembles or imports a walk-in cooler
or walk-in freezer in part, and specifies or approves the walk-in
cooler or walk-in freezer's components that affect energy consumption,
including refrigeration, doors, lights, or other components produced by
others, as for example by specifying such components in a catalogue by
make and model number or parts number;
(3) Is any vendor who sells a walk-in cooler or walk-in freezer
that consists of a combination of components that affect energy
consumption, which are not specified or approved by a person described
in paragraphs (1) or (2) of this definition; or
(4) Is an individual or a company who arranges for a walk-in cooler
or walk-in freezer to be assembled at his own or any other specified
premises from components that affect energy consumption, which are
specified and approved by him and not by a person described in
paragraphs (1), (2), or (3) of this definition.
* * * * *
Sec. 431.325 [Removed]
16. Section 431.325 is removed.
Sec. Sec. 431.327 through 431.329 [Removed]
17. Remove Sec. Sec. 431.327 through 431.329.
Appendices A through C to Subpart S of Part 431--[Removed].
18. Remove Appendices A through C to subpart S of part 431.
[[Page 56832]]
Subpart T--[Removed]
19. Remove subpart T to part 431, consisting of Sec. Sec. 431.370
through 431.373 and appendices A through D, is removed.
20a. Revise the heading to Subpart U to read as follows:
Subpart U--Enforcement for Electric Motors
* * * * *
20b. Revise Sec. 431.381 to read as follows
Sec. 431.381 Purpose and scope for electric motors.
This subpart describes violations of EPCA's energy conservation
requirements, specific procedures we will follow in pursuing alleged
non-compliance of an electric motor with an applicable energy
conservation standard or labeling requirement, and general procedures
for enforcement action, largely drawn directly from EPCA, that apply to
electric motors.
Sec. Sec. 431.403 through 431.407 [Removed]
21. Remove Sec. Sec. 431.403 through 431.407.
[FR Doc. 2010-22353 Filed 9-15-10; 8:45 am]
BILLING CODE 6450-01-P