[Federal Register Volume 76, Number 44 (Monday, March 7, 2011)]
[Rules and Regulations]
[Pages 12422-12505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3146]
[[Page 12421]]
Vol. 76
Monday,
No. 44
March 7, 2011
Part II
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; Final
Rule
Federal Register / Vol. 76 , No. 44 / Monday, March 7, 2011 / Rules
and Regulations
[[Page 12422]]
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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: Final rule.
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SUMMARY: The U.S. Department of Energy (DOE or the ``Department'') is
adopting revisions to 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, the provisions being adopted in this final rule
will allow DOE to enforce systematically the 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.
DATES: Effective Dates: The amendments to Parts 429 (except Sec. Sec.
429.12 through 429.54), 430 (except Appendix A to Subpart B of Part 430
and Appendix B to Subpart B of Part 430), and 431 are effective April
6, 2011.
The amendments to Sec. Sec. 429.12 through 429.54 are effective
July 5, 2011.
The amendments to Appendix A to Subpart B of Part 430 and Appendix
B to Subpart B of Part 430 are effective November 28, 2011.
The incorporation by reference of the standards listed in this rule
is approved by the Director of the Federal Register as of April 6,
2011.
ADDRESSES: This rulemaking can be identified by docket number EERE-
2010-BT-CE-0014 and/or Regulatory Identification Number (RIN) 1904-
AC23.
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. Laura Barhydt, U.S. Department of
Energy, Office of the General Counsel, Forrestal Building, GC-32, 1000
Independence Avenue, SW., Washington, DC 20585. Telephone: 202-287-
6122. E-mail: [email protected].
SUPPLEMENTARY INFORMATION: This final rule incorporates by reference
into Part 429 the following industry standards:
ANSI/AHAM DW-1-1992, American National Standard, Household
Electric Dishwashers, approved February 6, 1992, IBR approved for Sec.
429.19.
Copies of ANSI/AHAM DW-1-1992 is available from the Association of
Home Appliance Manufacturers, 1111 19th Street, NW., Suite 402,
Washington, DC 20036, 202-872-5955, or go to http://www.aham.org.
International Organization for Standardization (ISO)/
International Electrotechnical Commission, (``ISO/IEC 17025:2005(E)''),
``General requirements for the competence of testing and calibration
laboratories'', Second edition, May 15, 2005, IBR approved for Sec.
429.104.
Copies of ISO/IEC 17025:2005(E) are available from the
International Standards Organziation1, ch. de la Voie-Creuse CP 56 CH-
1211 Geneva 20 Switzerland, telephone +41 22 749 01 11, or go to http://www.iso.org/iso.
Table of Contents
I. Authority and Background
II. Summary of the Final Rule
A. Certification
B. Enforcement Testing
C. Reorganization
III. Discussion of Comments
A. Annual Certification Requirement
B. Revisions to Reporting Requirements
1. Reporting Sample Size and Total Number of Tests Performed
2. Reporting of Testing Data
3. Reporting Use of an ARM/AEDM or Other Alternative Method of
Rating
4. Defining ``distribute in commerce''
5. Product-Specific Revisions to Reporting Requirements
C. Certifying Entities and Third-Party Representation
D. Submission of Certification Reports
E. New Basic Model Filing, Basic Model Concept, and Notice of
Discontinuance
1. New Model Filing and Basic Model Concept
2. Basic Model Numbering
3. Notice of Discontinuance
F. Certification Testing, Generally
G. Certification Testing Specific to Commercial HVAC and WH
Equipment, Including the Use of AEDMs and VICPs
H. Records Retention and Confidentiality
1. Records Retention by Manufacturers
2. Confidentiality of Information
I. Enforcement Testing
1. Initiation of an Enforcement Action
2. Process Provided to Manufacturers During Enforcement Testing
3. Test Notice
4. Sampling for Enforcement Testing
5. Testing Done for Other Agencies
6. Test Unit Selection
7. Testing at Manufacturer's Option
8. Cost Allocation for Testing
9. Third-Party Laboratory Requirements for Enforcement Testing
10. Enforcement for Imports and Exports
J. Adjudication
1. Prohibited Acts
2. Penalties
3. Imposition of Additional Certification Testing Requirements
as Remedy for Non-Compliance
4. Compromise and Settlement
K. Waivers
L. Additional Product Specific Issues
1. Entity Responsible for Certification and Compliance for Walk-
In Coolers or Freezers (WICFs)
2. Basic Model Definition for Walk-In Coolers or Freezers
(WICFs)
3. Basic Model and Manufacturer Model Number Reporting for
Distribution Transformers, WICFs, and External Power Supplies.
M. Additional Issues for Which DOE Sought Comment in September
2010 NOPR
1. Verification Testing
2. Voluntary Industry Certification Programs
3. Certification, Compliance and Enforcement for Electric Motors
4. Revisions to Sampling Plans for Certification Testing
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
1. Reasons for the Final Rule
2. Objectives of and Legal Basis for the Final Rule
3. Description and Estimated Number of Small Entities Regulated
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
D. Review Under the National Environmental Policy Act
E. Review Under Executive Order 13132
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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. 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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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)) 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 September 16, 2010, the Department published in the Federal
Register a Notice of Proposed Rulemaking regarding Certification,
Compliance, and Enforcement for Consumer Products and Commercial and
Industrial Equipment (September 2010 NOPR). 75 FR 56796. DOE
subsequently published two correction notices, which addressed the
public meeting date and an omission in the regulatory text. 75 FR 57410
(September 21, 2010) and 75 FR 61361 (October 5, 2010), respectively. A
public meeting was held in Washington, DC, on September 30, 2010. The
comment period for written submissions was scheduled to close on
October 18. In response to multiple requests, DOE extended the comment
period to close on October 29, 2010.
The September 2010 NOPR proposed to revise, consolidate and
streamline the Department's existing certification, compliance, and
enforcement regulations for certain consumer products and commercial
and industrial equipment covered under EPCA.
II. Summary of the Final Rule
A. Certification
Today's rule revises the Department's current certification
regulations to ensure that the Department has the information it needs
to ensure that regulated products sold in the United States comply with
the law. Currently, manufacturers of covered consumer products and
commercial and industrial equipment must 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); 431.327 (metal halide
lamp ballast) and 430.371 (certain commercial equipment). As proposed
in the September 2010 NOPR, DOE is adopting an annual certification
reporting requirement for all covered products and covered equipment.
Additional details are discussed below. Such annual filings will
provide DOE with comprehensive, up-to-date efficiency information about
the regulated products sold in the United States at any given time--a
necessary predicate to an effective enforcement program.
DOE believes it is also appropriate to provide more transparency in
the certification report itself. In the September 2010 NOPR, DOE
proposed to expand the information submitted by manufacturers,
including general requirements applicable to all products and product-
specific requirements. DOE also proposed to make clear that all non-
proprietary certification information will be considered public
information. As a result of stakeholder comments, DOE made some
modifications to the product-specific information it is collecting and
the public disclosure of such information in the final rule. These
changes are discussed in more detail below. By requiring additional
relevant data that affects the energy or water efficiency of a product
to be supplied in the certification report, DOE will be able to more
effectively enforce compliance with the conservation standards.
To provide manufacturers with sufficient time to transition to
these new certification provisions, the effective date of the
certification requirements is 120 days from the publication of the
final rule in the Federal Register. Each basic model of covered product
or covered equipment that has not previously been certified with the
Department must be certified on or before July 5, 2011 using DOE's on-
line certification tool (i.e., the Compliance Certification Management
System or CCMS) and the pre-formatted EXCEL templates. See https://www.regulations.doe.gov/ccms/ for additional information. For those
basic models of covered products or covered equipment that have
previously been certified with the Department, manufacturers are
required to submit revised certification data pursuant to regulations
being adopted as part of today's final rule in accordance with the
annual report table in 10 CFR 429.12.
B. Enforcement Testing
The Department is modifying its regulations for enforcement testing
to allow the Department to enforce the Federal efficiency standards
proactively and fairly based on the circumstances of each case. In
particular, today's rule makes three revisions to DOE's approach to
enforcement testing that, although relatively minor, will significantly
improve the effectiveness of DOE's enforcement program. First, the
Department is removing the current regulatory provision that requires
DOE to receive a written complaint alleging a violation of the standard
before it can perform enforcement testing to determine a model's
compliance. EPCA affords DOE with broad enforcement discretion, and DOE
must be able to exercise that discretion proactively to ensure
compliance and deter violations effectively. Second, today's rule
allows the Department to select units for enforcement testing from
retail, distribution, or manufacturer sources, depending on the
circumstances, to ensure enforcement test results that are as unbiased,
accurate, and representative as possible. Finally, the Department
recognizes that the current regulatory approach to enforcement
testing--involving DOE selected units and third party testing--may be
impracticable for low-volume, custom-built products or where adequate
laboratory facilities are unavailable. Thus, today's rule adopts an
alternative approach to enforcement testing in such exceptional cases--
allowing DOE-witnessed testing at the manufacturer's lab and/or reduced
sample sizes--to permit effective enforcement testing without imposing
unreasonable burdens on manufacturers.
[[Page 12424]]
C. Reorganization
With the exception of electric motors, in the September 2010 NOPR,
DOE proposed to move all of the existing certification, compliance, and
enforcement regulations currently scattered throughout parts 430 and
431 to a new Part 429. DOE additionally proposed to consolidate similar
provisions for both consumer products and commercial and industrial
equipment.
In response to DOE's proposed new structure, DOE received several
comments from interested parties on its September 2010 NOPR, some of
which were organizational in nature. For example, a comment submitted
by the National Electrical Manufacturers Association (NEMA) suggested
grouping all the regulations that were relevant to a single product in
a discrete portion of Part 429. (NEMA, No. 85.1 at p. 2) In response to
these comments, and to provide additional clarity to Part 429
requirements, DOE has made the following changes to Part 429 in today's
final rule:
Consolidated general requirements into Subpart A.
Consolidated all certification requirements into Subpart
B, with the creation of product-specific sections for sampling plans
and certification requirements. This is intended to simplify the
presentation for manufacturers and others who need information on a
single product. Also, each of the product-specific sections now
specifies the relevant sampling equations to ensure certification
requirements are clear;
Added Appendix D to Subpart B which includes Student's t-
distribution values for one-tailed confidence level calculations for
product certification;
Reorganized Subpart C to distinguish between enforcement
measures and verification measures; and
Incorporated a variety of editorial changes addressing
certification, sampling plans, and enforcement.
DOE is adopting Part 429 in its entirety today and expects to
integrate electric motors into this Part in a subsequent rulemaking.
III. Discussion of Comments
A. Annual Certification Requirement
Existing certification requirements direct most 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). In the September 2010 NOPR, DOE
proposed moving to an annual certification reporting requirement for
each basic model of covered product and covered equipment.
Additionally, DOE proposed an annual filing schedule based generally
upon the Federal Trade Commission (FTC) schedule for similar product
types subject to annual reporting under the FTC's Appliance Labeling
Rule. For commercial and industrial equipment, DOE proposed to align
similar equipment types with the FTC schedule for consumer products.
Today's rule adopts a mandatory annual certification filing
requirement (as opposed to an annual testing requirement) and sets out
a reporting schedule aligned as closely as possible with the current
FTC schedule for consumer products. Under DOE's self-certification
enforcement framework, only products that have been certified to DOE by
manufacturers as compliant with the applicable standards can be
distributed in commerce in the United States. Annual filings will
provide the Department with up-to-date and comprehensive efficiency
information about regulated products sold in the United States--a
necessary predicate to an effective enforcement program. Recognizing
this, many commenters, including the Alliance for Water Efficiency
(AWE), Underwriters Laboratories, Inc. (UL), Alliance Laundry Systems
LLC (ALS), Northwest Energy Efficiency Alliance (NEEA), Earthjustice,
and the Association of Home Appliance Manufacturers (AHAM), supported
an annual filing requirement. (AWE, No. 38.1 at p. 3; UL, No. 60.1 at
p. 1; ALS, No. 66.1 at p. 1; NEEA, No. 67.1 at p. 2; Earthjustice,
Public Meeting Transcript, No. 103 at pp. 42-43; AHAM, No. 98.1 at p.
4) As one commenter put it: ``Knowledge of what products are being
distributed in commerce at any given time is the foundation of an
effective certification and enforcement program. A one-time initial
certification of compliance does not provide the needed level of
knowledge.'' (NEEA, No. 67.1 at p. 2)
A few commenters objected to the proposal, arguing that annual
filing was not needed and would increase reporting burdens. The
International Association of Plumbing and Mechanical Officials (IAPMO)
and IAPMO R&T, for example, commented that the Department's existing
certification requirements already provide sufficient assurance of
compliance. (IAPMO, No. 36.1 at p. 1) Similarly, AO Smith opposed an
annual certification requirement, commenting that such a requirement
would unduly increase the level of reporting required by manufacturers.
(AO Smith, No. 81.1 at p. 2) Although DOE recognizes that annual filing
will increase the frequency with which manufactures must file reports,
the record reflects that the increase in cost burden will be minimal.
As NAMA explained, ``annual certification does not cause an extreme
economic burden and harm.'' (NAMA, No. 72.1 at p. 2; See also Traulsen,
No. 52.1, at p. 4 (``Annual certification should not be a major
burden'')) DOE also believes that electronic reporting will reduce the
burden of preparing certification reports. Accordingly, the Department
believes that this minimal increase in cost burden is outweighed by the
need to ensure that the Department and the public have accurate and
comprehensive efficiency information. In addition, an annual filing
establishes a set date for manufacturers to fulfill this reporting
obligation, which should allow manufacturers to regularize their annual
reporting practices, thereby lowering costs and enhancing compliance.
Several commenters suggested that DOE should impose annual testing
requirements in addition to the proposed annual filing requirement. In
particular, UL, ALS, the Natural Resources Defense Council (NRDC) and
Earthjustice commented that while they are in support of establishing
an annual certification requirement, such a requirement should include
mandatory re-testing to validate the annual certification submissions,
rather than merely re-submission of the original test data. (UL, No.
60.1 at p. 1; ALS, No. 66.1 at p. 2; NRDC, Public Meeting Transcript,
No. 103 at p. 39; Earthjustice, Public Meeting Transcript, No. 103 at
pp. 43-44) NRDC proposed regular recertification of basic models that
would require new laboratory testing of currently produced models and
not simply resubmission of old test data from the initial
certification. NRDC stated that the frequency of such recertification
should depend on product-specific factors as well as a production
cycle, and whether there is any change in energy usage above a de
minimus threshold. (NRDC, No. 39.1 at p. 2) Earthjustice further
contended that since determining when a model has been modified can be
very difficult, a re-testing, as opposed to a re-submission,
requirement would help to alleviate this problem. (Earthjustice, Public
Meeting Transcript, No. 103 at pp. 43-44)
While DOE recognizes these commenters' call for additional testing
[[Page 12425]]
after the initial certification to ensure continued compliance, the
Department declines to adopt an annual testing requirement whereby
manufacturers must annually re-test all certified products and
equipment. As several commenters point out, such a requirement would
impose considerable burdens on manufacturers. (See, e.g., AHAM, No.
98.1 at p. 4; ALS, No. 66.1 at p. 2; Traulsen, No. 52.1 at p. 4) As
AHAM further explains, requiring ``costly and time consuming'' annual
re-certification testing ``would likely be detrimental to innovation,''
and ``might threaten the viability to small manufacturers.'' (AHAM, No.
98.1 at p. 4.) AHAM also pointed out that in light of DOE's additional
testing and industry verification programs, the benefit to consumers
from manufacturers' retesting certified products would be minimal. DOE
agrees that the burdens of such a requirement would likely outweigh the
benefits and is not requiring any new or additional testing to be
performed as part of the annual filing requirement. It is instead a
yearly submission of the ratings for all models a manufacturer has in
distribution in that year. As discussed below, DOE continues to
consider approaches to verification testing that would require
subsequent testing of previously certified products, without an across
the board annual re-testing requirement.
With regard to DOE's proposal in the September 2010 NOPR to align
the annual certification reporting deadlines with the FTC's schedule,
ALS, NEEA, IAMPO, the American Lighting Association (ALA), and AHAM
submitted comments supporting harmonization with the FTC's reporting
requirements. (ALS, No. 66.1 at p. 1; NEEA, No. 67.1 at p. 2; IAMPO,
Public Meeting Transcript, No. 103 at p. 42; ALA, No. 97.1 at p. 1;
AHAM, No. 98.1 at p. 4) Specifically, ALA commented that such
consolidation of reporting requirements would improve the efficiency
and reduce the cost of compliance. (ALA, No. 97.1 at p. 1) Delta Faucet
submitted comments requesting that efforts be made to reduce the
reporting burden and cost on manufacturers by combining the DOE and FTC
reports into one template. (Delta Faucet, No. 94.1 at p. 2) Today's
final rule consolidates the Department's certification reporting
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.
B. Revisions to Reporting Requirements
In the September 2010 NOPR, DOE proposed to revise what information
must be submitted as a part of a certification filing for DOE to better
enforce its conservation standards. Specifically, DOE proposed 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. DOE also proposed to require
manufacturers to submit information related to waivers, exemptions, and
approved alternative rating methodologies along with their
certification submissions as appropriate. Lastly, DOE proposed to
expand the product-specific information it was collecting with respect
to each of the covered products and covered equipment to help DOE
better understand the underlying attributes of the basic model's
efficiency that impact the testing and certification data.
DOE generally received comments on the following issues related to
its proposed revisions to the certification reporting requirements: (1)
Reporting sample size and total number of tests performed; (2)
reporting of testing data; (3) reporting use of an Alternate Rating
Method (ARM)/Alternative Efficiency Determination Method (AEDM) or
other alternative method of rating; (4) defining ``distribute in
commerce''; (5) product-specific revisions to reporting requirements.
With the exception of the requirement for reporting the total number of
tests performed, DOE is adopting all of the revisions to its reporting
requirements proposed in the September 2010 NOPR. A discussion of
specific stakeholder comments on these issues is presented below.
1. Reporting Sample Size and Total Number of Tests Performed
Under the rule adopted today, manufacturers must report the size of
the sample tested, but need not report the number of tests performed.
With regard to DOE's proposal to require annual reporting of sample
size, DOE received comments in opposition from AHAM and NEEA. (AHAM,
No. 98.1 at p. 4; NEEA, No. 67.1 at p. 6) NEEA argued that there are no
compelling reasons to require submission of sampling plan information
or data as part of certification. (NEEA, No. 67.1 at p. 6) The
Department disagrees.
For purposes of certification testing, the determination that a
basic model complies with the applicable conservation standard must be
based on the sampling procedures, which are now found, by product, in
10 CFR Part 429. The sampling procedures provide that ``a sample of
sufficient size shall be tested to insure [compliance].'' Unless the
product-specific regulations specify otherwise, a minimum of two units
must be tested to certify a basic model as compliant. This minimum is
implicit in the requirement to calculate a mean--an average--which
requires at least two values. Under no circumstances is a sample size
of one (1) authorized. Manufacturers may need to test more than two
samples depending on the variability of their sample. Therefore, the
sample size can be an important element when evaluating the compliance
of a basic model.
Consequently, the Department believes it is still important to
request information regarding the sample size used in calculating the
certification values submitted to DOE. As DOE has previously found, see
http://www.gc.energy.gov/documents/certification_samplingplan.pdf,
there is a significant amount of confusion in this area and DOE has
attempted to clarify the sampling provisions, while maintaining the
same level of tolerances, in the final rule. Sample size information
that is submitted with the certification report will allow the
Department to better understand how manufacturers are calculating their
certified values. In the event the Department requests the test data
underlying certification, manufacturers must provide the test data for
each sample. DOE strongly encourages manufacturers to maintain records
that clearly distinguished between each sample using unique identifiers
like serial numbers and that provide a clear summary of how the
appropriate statistics were applied to generate the certified ratings.
The September 2010 NOPR also proposed to require that manufacturers
report the total number of tests per sample. AHAM, the Air-
Conditioning, Heating and Refrigeration Institute (AHRI) and ALS
objected to reporting the total number of tests performed in the annual
certification report. (AHAM, No. 98.1 at p. 4; AHRI, No. 91.1 at pp. 9-
10; ALS, No. 66.1 at p. 2) Specifically, AHAM commented that it failed
to see how this information is necessary or useful to DOE. As the
commenters suggest, this information may not be as helpful to
understanding the certified values since the number of tests performed
by unit can vary widely based upon a number of factors, including
manufacturing practices and production lots. Therefore, DOE will not
require the manufacturer to report the
[[Page 12426]]
total number of tests performed per sample. Manufacturers may not use
multiple tests of a single unit as separate samples when applying the
sampling procedures.
2. Reporting of Testing Data
A number of commenters urged DOE to require that manufacturers
report all test data for all covered products and equipment in support
of the certified value reported to DOE. (See, e.g., NRDC, No. 80.1 at
4) NEEA stated that it supports the submission of non-regulatory
metrics data from which the metric is derived. (NEEA, No. 67.1 at p. 2)
Several manufacturers, however, strongly opposed reporting test results
as part of the annual certification requirement. (Traulsen, No. 52.1 at
p. 4; ALS, No. 66.1 at p. 2; BSH, No. 89.1 at p. 4) Specifically,
Traulsen noted that providing such detailed data would compromise its
product designs and competitive advantage. (Traulsen, No. 52.1 at p. 4)
ALS stated that such a requirement would necessitate a huge undertaking
by DOE to manage the submission and recordkeeping of all data for all
the covered products under DOE's charge. (ALS, No. 66.1 at p. 2)
The Department did not propose in the September 2010 NOPR to
require submission of test data in the certification report, and such a
requirement is not part of this final rule. While the Department
believes that test data is a key factor in helping the Department
understand the certified rating, DOE does not believe it is necessary
to collect test data from all manufacturers at this time. Instead, DOE
is hoping that by expanding the certification data that the Department
is collecting and providing additional clarity in the regulations as to
the processes manufacturers must follow to determine the certified
ratings DOE will be in a better position to understand the data
underlying compliance. Although DOE is not mandating that manufacturers
submit test data along with each certification report at this time, the
Department's regulations continue to require manufacturers to retain
test data records in an easily accessible format and provide them to
the Department upon request.
3. Reporting Use of an ARM/AEDM or Other Alternative Method of Rating
From the comments, it appears there is general support for
requiring manufacturers to submit information related to waivers,
exemptions, and approved alternative rating methodologies along with
their certification submissions. (See, e.g., NEEA No. 67.1 at 3) NEEA,
for example, strongly supported the requirement that manufacturers
report this information as part of the certification process. GE Prolec
Distribution Transformers (GE Prolec) commented that, due to high
volume designs and volume variations, manufacturers that use an AEDM
for certification should have to update the AEDM substantiation each
year and include this in the annual recertification process. (GE
Prolec, No. 95.1 at p. 4) ABB Inc (ABB) noted that there is no approval
process for an AEDM and, as such, the requirement to include the
approval date should be removed from the certification report. (ABB,
No. 53.1 at pp. 11-12) Currently, the regulations provide for use of an
alternative rating method only for residential central air conditioners
and heat pumps, commercial heating, ventilation, air-conditioning, and
water heating equipment (HVAC and WH), electric motors, and
distribution transformers. While ABB is correct that certain products,
such as commercial HVAC and WH equipment do not require approval of the
AEDM before it is used, other products, like residential central air
conditioners and heat pumps, do. Thus, these approvals are product-
specific. DOE has clarified this in the final rule, which states that
the information should be submitted, if applicable. The product-
specific templates, which will be available for use with the new online
submission system, will also be product-specific and consistent with
DOE's regulations.
DOE also believes that manufacturers need the ability to specify
that they have not performed actual testing but have modeled or
simulated testing through the use of an ARM or AEDM or have used an
alternative testing method authorized through a test procedure waiver,
as the certification report itself requires the manufacturer to certify
that it has tested the model. Providing alternative rating or
alternative testing information in the certification report allows the
manufacturer to make a more accurate certification statement to the
Department. Similarly, in order to make an accurate certification
statement to the Department, a manufacturer needs to identify any basic
model that is being certified in accordance with an exception to the
applicable standard. Accordingly, DOE adopts this requirement in
today's final rule to provide an accurate reflection of the test
procedures or exceptions used as a basis for the certification.
4. Defining ``distribute in commerce''
EPCA's standards and DOE's certification and compliance
requirements apply to covered products and equipment that are
``distribute[d] in commerce.'' A number of commenters requested that
the Department adopt a definition of ``distribution in commerce'' in
its regulations. Mitsubishi Electric & Electronics USA, Inc. (MEUS)
stated its concern that the definition of ``introduction into
commerce'' is so broad it requires manufacturers to certify before
providing information to the distribution base. As a solution, MEUS
recommended that DOE de-link certification with ``introduce into
commerce.'' (MEUS, No. 86.1 at p. 5) Additionally, NEEA expressed its
concern that the definition of ``distribute in commerce'' would require
certification prior to a decision to actually market the product.
(NEEA, Public Meeting Transcript No. 67.1 at p. 336) Traulsen commented
that DOE should define ``distribution in commerce'' as a published
price. (Traulsen, No. 52.1 at p. 4)
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.''
(See 42 U.S.C. 6291 (16).) The Department recognizes that products may
be imported for prototyping, research, field testing, or trade shows
while the product is still being developed or before it may be
available to the general public for a price. But the Department's
interpretation of this term and the application of the statute's
definition will necessarily depend on a particular manufacturer's
production practices, business decisions, and the facts and
circumstances of a particular case. Therefore, DOE is reluctant to
dictate a single point in time for all manufacturers when the product
development process stops and when distribution in commerce begins. As
such, the Department declines to add a precise definition of
``distribution in commerce'' into its regulations. Instead, in each
case, DOE will look to a number of factors to determine whether a model
of a regulated product has been ``distributed in commerce.'' Such
factors will include the following:
Whether units of the model have been sold or offered for
sale in exchange for monetary compensation;
Whether units have been included in marketing material
made available to the public (e.g., on Web sites or in catalogs);
Whether the manufacturer has distributed marketing
material that includes a claim or statements regarding the product's
efficiency;
Whether a unit has been shown at trade show; and
[[Page 12427]]
The number of units produced, distributed, imported, and/
or sold.
A model must be certified to DOE as compliant with the applicable
standard prior to distribution in commerce, but the exact point at
which any particular model has, in fact, been distributed in commerce
may vary considerably across product types and manufacturers.
5. Product-Specific Revisions to Reporting Requirements
In the September 2010 NOPR, the Department proposed including
reporting requirements for products that did not previously have to
submit information, including those added to DOE's programs by the
Energy Independence and Security Act of 2007. In addition, the
Department sought comment on expanding its sampling plans for
certification to ``features'' other than the regulatory metrics. As an
example, DOE suggested that the actual storage volume of a residential
water heater may be a metric that should be subject to sampling
requirements.
Today's rule extends the reporting requirements to all products
regulated under EPCA, but does not impose sampling plans for features
other than the regulatory metric. The Department's certification
requirements are the foundation of DOE's compliance and enforcement
framework and will be mandatory for all products regulated by EPCA.
Commenters generally disagreed, however, with the approach of
extending the sampling plans beyond the regulatory metrics. For
example, AO Smith commented that DOE should only test products for
values that are covered in the current regulations, such as energy
efficiency. (AO Smith, No. 81.1 at p. 3) Similarly, Bradford White
Corporation commented that adding sampling plans and tolerances for
other features of products is redundant and burdensome. (BWC, No. 45.1
at p. 2) While DOE is not adopting sampling plans for features other
than the regulatory metrics at this time, DOE is expanding its product-
specific certification requirements to require this type of information
in the certification report.
DOE believes information about features that affect the energy-
efficiency of the product is essential for DOE to audit compliance and
for consumers to make informed decisions about product purchases. In
addition, DOE notes that manufacturers have this information on hand
and typically provide it in their marketing materials, on their Web
site, or to product retailers. DOE's current regulations already
request this type of information for certain products and equipment and
requiring this information in the certification report is consistent
with DOE's adoption of a more uniform approach to certification. In
some instances, product or equipment feature information is necessary
to determine how to apply DOE's test procedures. Thus, DOE believes
this type of information is essential to any verification testing and
enforcement testing that may be conducted by the Department. To help
interested parties identify the new product-specific information to be
submitted in certification reports, DOE has included this on a product-
by-product basis throughout Part 429.
C. Certifying Entities and Third-Party Representation
Current certification regulations allow either the manufacturer or
private labeler to submit certification reports and compliance
statements for each basic model. DOE proposed, in the September 2010
NOPR, to require that manufacturers be solely responsible for
submitting the certification reports to DOE. Under this proposal, the
certification burden would be placed on the manufacturer, and not the
private labeler, although the 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. With
regard to third-party filers, DOE proposed in the September 2010 NOPR
to make clear in its regulations that it may refuse to accept
certification reports from a third party with a history of poor
performance. A discussion of comments on this issue is below.
In today's rule, DOE is adopting its proposed requirement that
manufacturers be solely responsible for submitting certification
reports, which would include manufacturer information, as well as
private labeler information and/or brand information, where
appropriate. AWE and BWC submitted comments supporting DOE's proposal
to hold the manufacturer solely responsible for submitting
certification reports to DOE. (AWE, No. 38.1 at p. 2; BWC, No. 45.1 at
p. 2) The Department considered NEEA's suggestion that the party
responsible for introducing the product into commerce in the U.S.
should be responsible for certification, whether that is a
manufacturer, third-party private labeler, or an importer. (NEEA, No.
67.1 at p. 3) The Department notes that, pursuant to EPCA, an importer
is a manufacturer and is included in DOE's proposal. While NEEA's
suggestion has some conceptual appeal, the Department believes that
such an approach would create confusion and be difficult to administer
as it may be unclear who is the party responsible for introducing the
product into commerce in a particular case. (See, e.g., above
discussion regarding the definition of distribution in commerce.)
Another commenter, the NEMA Motor & Generator Section, argued that DOE
should continue to permit the private labeler to submit certification
reports on electric motors as the information required is well known by
the private labelers. (NEMA, No. 85.1 at p. 23) DOE believes that, in
most cases, the manufacturer, rather than the private labeler, is one
that tests a model and therefore is in the best position to provide
certification information to the Department and to retain the
underlying test data as required by the rules. DOE reiterates, however,
that under today's rule, a manufacturer may elect to have its private
labeler act as a third-party filer and submit the certification report
on the manufacturer's behalf.
Commenters generally supported DOE's proposal to continue to allow
third parties to submit certification reports to DOE on behalf of the
manufacturer, as long as the third party does not have a history of
poor performance. (See, e.g., AHAM, No. 98.1 at p. 6; BWC, No. 45.1 at
p. 3) The Department notes that although a manufacturer is ultimately
responsible for submission of the certification reports to DOE, it is a
criminal violation for third parties to make knowingly false statements
to the government. AHAM and BSH suggest that DOE notify the
manufacturer or private labeler when the third-party it has selected
has not met DOE's requirements given that the manufacturer or private
labeler is the party that bears the ultimate liability for the report.
(AHAM, No. 98.1 at p. 6; BSH, No. 89.1 at p. 4) DOE agrees that
manufacturers should be notified in such cases by the third-party
certified barred from submitting on behalf of manufacturers. DOE may
also publish on its Web site a list of third-party certifiers barred
from submitting certification reports. Intertek, UL and Earthjustice
requested that DOE provide more specificity regarding when DOE will
deem a third-party submitter to have a history of poor performance.
(Intertek, No. 88.1 at p. 2; UL, No. 60.1 at p. 2; Earthjustice, No.
83.1 at p. 3) DOE clarifies that there is not a set of specific
circumstances that must be met for a third-party certifier to have a
history of poor performance. However, in each case, DOE will look at
circumstances, such as the number of certification violations involving
the
[[Page 12428]]
third party, including number of reoccurrences, the scope and type of
the violations (e.g., was certain data missing or was there a failure
to file altogether), the willingness of a third-party certifier to
cooperate with DOE, and any corrective actions taken to prevent
recurring problems.
D. Submission of Certification Reports
In the September 2010 NOPR, DOE proposed to remove the certified
mail and e-mail options for filing certification data that are
currently allowed in DOE's regulations and make electronic submission
of certification reports through the Compliance and Certification
Management System (CCMS) found at http://www.regulations.doe.gov/ccms
the sole method of submission. CCMS will have sample templates for all
covered products and covered equipment available for manufacturers to
use when submitting certification data to DOE.
The Department received few comments on this issue, with the
majority of commenters supporting the move to exclusive use of the CCMS
for certification. Specifically, NEEA commented that the proposed move
to electronic filing for certification will reduce manufacturer
compliance burdens and should allow for consistency of filed data from
one Federal agency to another (NEEA, No. 67.1 at p. 3). Similarly, GE
Prolec supported the CCMS approach, but also noted that there is
currently no CCMS template for distribution transformers. (GE Prolec,
No. 95.1 at p. 11; Public Meeting Transcript, No. 103 at p. 143) GE
Prolec requested that it be able to review and comment on a proposed
template for distribution transformers before it is finalized. DOE
received one comment from First Co. opposing the use of CCMS as the
sole method of certification because it would take time and a
significant amount of work for manufacturers. First Co. suggested that
the new CCMS only filing requirement should not become effective prior
to July 1, 2011, to allow a reasonable period of time before converting
to an electronic-only filing system. (First Co., No. 76.1 at p. 2)
DOE believes the availability of electronic filing through the CCMS
system should reduce compliance 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 and enable the
Department to move towards a public, searchable database. Thus, in this
final rule DOE removes the certified mail and e-mail options for filing
certification data that are currently allowed in DOE's regulations. DOE
notes that the CCMS requires users to apply to use the system by
filling out a registration form, signing a compliance statement, and
receiving a personal password. Due to the number of user requests the
Department expects to receive by the compliance date of the
certification requirements being adopted in today's final rule, DOE
strongly encourages users to set-up their accounts well in advance of
the deadline. In addition, the CCMS templates with the new requirements
for all covered products and covered equipment should be online shortly
after the publication of today's final rule. The Department also
encourages manufacturers, to the extent possible, to fill out these
templates in advance of the compliance date in case questions arise.
E. New Basic Model Filing, Basic Model Concept, and Notice of
Discontinuance
1. New Model Filing and Basic Model Concept
In addition to the new annual certification requirement discussed
above, DOE's September 2010 NOPR retained the existing regulatory
requirement that any new basic model be certified before distribution
in commerce. The Department explained that this requirement would apply
to newly manufactured and produced basic models, as well as models that
have been modified in a way that decreases a model's efficiency or
increases its consumption and thus constitutes a new basic model. In
connection with this requirement, the Department solicited comments on
whether, and if so how, the Department should clarify the basic model
concept to better identify whether and how energy or water use
characteristics of a product may vary across different models in a
basic model group. The Department's current regulations provide
product-specific basic model definitions, which typically state that
models within the same basic model group have ``essentially identical''
energy or water use characteristics. 10 CFR 430.2; 431.62, 431.172,
431.192, 431.202, 431.222, and 431.292. In the September 2010 NOPR, DOE
asked how manufacturers determine that a particular model constitutes a
new basic model, the difference in the energy use characteristics a
typical change may have on a per product basis, and whether DOE should
adopt a regulation requiring that a model be recertified as a new basic
model if modifications impact the energy or water characteristics by a
given de minimus percentage.
In response to DOE's questions, several manufacturers provided
detailed product and manufacturer-specific information as to how they
determine and make changes to basic model groupings. (See, e.g., Rheem,
No. 79.1 at pp. 1-3; First Co., No. 76.1 at p. 1) Others, like NRDC,
urged DOE to adopt specific and stringent product-specific thresholds
for increases in energy consumption or decreases in energy efficiency
that must be deemed a new basic model. (See, e.g., NRDC, No. 80.1 at p.
2)
More generally, commenters recognized the importance of the basic
model concept and sought additional clarification on the matter. (See,
e.g., AHAM, No. 98.1 at pp. 2-3 (seeking ``clear and uniform rules''
for ``determining that a particular model constitutes a new basic
model''); NRDC, No. 80.1 at pp. 2-3) Some commenters offered ideas for
adopting a general definition of the basic model concept. Consumers
Union, for example, urged DOE to establish that any differences in
electrical and mechanical parts and any significant changes in
functional volumes, capacity or water usage should be categorized as
different basic models. (Consumers Union, No. 74.1 at p. 2) Along
similar lines, NRDC suggested that DOE look to California's definition
of `basic model'' as a model along with an additional requirement that
products within a basic model have similar efficiency and energy
performance. (NRDC No. 80.1 at p. 2) NEEA cited California's approach,
but also recommended that DOE allow for conservative ratings and simply
require that all models in a basic model grouping have the same
certified efficiency rating, on the ground that manufacturers certify
compliance with a minimum standard rather than a performance level.
(NEEA, No. 67.1 at pp. 4-5)
A number of manufacturers and trade associations urged DOE to allow
manufacturers to rate their products conservatively, so long as the
ratings are supported by the test results and comply with the
applicable standard. As Rheem explained, conservative ratings ensure
performance for consumers that is the same or better than the rating,
while giving manufacturers ``the flexibility to address fluctuations in
component pricing or availability without the added burden of re-rating
an appliance for every change.'' (Rheem, No. 79.1 at p. 3) Whirlpool
similarly noted that manufacturers may rate products conservatively
``to allow for natural fluctuation in component
[[Page 12429]]
tolerances and similar unit-to-unit variances.'' (Whirlpool, No. 78.1
at p. 1) Reflecting manufacturers' desire for flexibility, AHAM
proposed that, rather than establishing de minimus percentages, DOE
should require manufacturers to certify changes to a basic model as a
new basic model ``when the test results no longer support the rated
value,'' explaining that results support a rated value when they
demonstrate higher energy efficiency or lower energy consumption than
the rating. (AHAM, No. 98.1 at p. 3) AO Smith advocated for a
requirement that basic models have the same critical components and
control logic along with a de minimus percentage that reasonably
compares to enforcement sampling provisions. (AO Smith, No. 81.1 at pp.
1-2)
Although all of these commenters expressed varying approaches to
the basic model concept, there was general agreement that a
modification to a model that would increase energy or water
consumption--such that testing would no longer support the rated
value--should constitute a new basic model that must be certified to
DOE. (See, e.g., AHAM, No. 98.1 at pp. 2-3; NRDC, No. 80.1 at pp. 2-3)
The existing regulations already require certification of a new basic
model if a modification results in an increase in energy or water
consumption beyond the rated amount, and DOE is retaining that
requirement.
DOE agrees with the comments that the `basic model' concept is
fundamental to the conservation standards regulatory framework. It
allows manufacturers to group like models for purposes of fulfilling
the Department's certification requirements, thereby reducing the
burden placed on manufacturers by streamlining the amount of testing
they must do to rate the efficiencies of their products. At the same
time, the basic model provides the relevant basis for Departmental
enforcement actions, including determinations of non-compliance.
Accordingly, to clarify the basic model concept, today's rule
centralizes and aligns the existing product-specific basic model
definitions in a general definition, which provides (with some
exceptions noted in the regulatory text) that a basic model means ``all
units of a given type of product (or class thereof) manufactured by one
manufacturer, having the same primary energy source, and which have
essentially identical electrical, physical, and functional (or
hydraulic) characteristics that affect energy consumption, energy
efficiency, water consumption, or water efficiency.'' Although in some
cases, the language of this general definition differs slightly from
the precise language of the product-specific definitions, DOE
emphasizes that this clarification reflects DOE's intent to maintain
the status quo until a future rulemaking. This change is intended to
provide a single, uniform definition of the basic model using language
that permits what the Department understands to be the current
practice--the grouping together of individual models with essentially
(but not necessarily exactly) identical energy or water efficiency
characteristics.
The Department is not, at this time, adopting threshold de minimus
changes that would trigger the creation of a new basic model or
otherwise establishing set criteria for what is meant by ``essentially
identical'' characteristics. The record suggests that identifying
specific percentages is a complicated matter, particularly given that
there may be significant variations among manufacturers and products
with respect to basic model groupings. Thus, the Department continues
to review the bases for more precise, product-specific limitations on
which models can be grouped together as a basic model. DOE hopes to
address this in the next phase of the certification, compliance, and
enforcement rulemaking and will take all of the comments in the record
into account at that time. DOE understands that, in the meantime,
today's rule will permit flexibility in determining how manufacturers
choose to group individual models with essentially, but not exactly,
identical energy or water efficiency characteristics. DOE encourages
manufacturers to adopt a reasonable approach to basic model groupings
and to certify as a single basic model individual models with only
superficial differences, such as product finishes. Furthermore, the
Department provides the following guidance on DOE's basic model
certification and compliance obligations.
First, all models identified in a certification report as being the
same basic model must have the same certified efficiency rating. With
this rulemaking, manufacturers may elect to group individual models
into basic models at their discretion to the extent the models have
essentially identical electrical, physical, and functional (or
hydraulic) characteristics that affect energy efficiency, energy
consumption, water consumption, or water efficiency. However, the rated
efficiency certification and representations of all of the individual
models represented by a given basic model must be the same.
Additionally, if a manufacturer wishes to change the certified rating
of a particular model, this change constitutes the creation of a new
basic model that must be certified to the Department.
Second, any individual model that is modified resulting in
performance that is less efficient than the rated level when tested in
accordance with the DOE test procedures in Parts 430 and 431 and the
applicable sampling plans in Part 429 must be re-rated as a new basic
model and certified to DOE. Certified ratings must be supported by
tested values that are at least as efficient as the rating when the
applicable sampling plans in Part 429 are applied.
Third, manufacturers may rate models conservatively, meaning the
tested performance of the model(s) must be at least as good as the
certified rating, after applying the appropriate sampling plan. The
sampling plans are designed to create conservative ratings, which
ensures that consumers get--at a minimum--the efficiency indicated by
the certified rating. In this final rule, DOE allows manufacturers to
use conservative ratings beyond those provided by the sampling plans.
If DOE determines that any individual model within a basic model does
not meet an applicable conservation standard, however, all models
within the basic model group will be deemed non-compliant. Thus, as
NEEA explained ``the larger the basic model group, the larger the risk
associated with a compliance failure.'' (NEEA, No. 67.1 at p. 5)
Finally, under the certification requirements adopted today, unless
otherwise specified, manufacturers must identify in their certification
reports the individual models that are included in each basic model.
The Department's approach to certification, compliance, and enforcement
depends on DOE having information about which individual models are
covered by a given basic model.
2. Basic Model Numbering
In the September 2010 NOPR, DOE proposed that manufacturers must
designate a new basic model number when an existing model is modified
such that a new basic model is created to permit transparency and
improve consumer awareness. Several commenters, including AHAM, NEEA,
Whirlpool, and ALS, expressed support for DOE's proposal to require a
new number for a new basic model so long as a new basic model is
created only when test results no longer support the rated value. (See,
e.g., ALS, No. 66.1 at p. 1; Whirlpool, No. 78.1 at pp. 1-2; AHAM, No.
98.1 at p. 3; NEEA, No. 67.1 at p. 5) A number of manufacturers,
however, objected to the new basic
[[Page 12430]]
model number requirement as costly, administratively burdensome, and
disruptive to the marketplace. (See, e.g., Traulsen, No. 52.1 at p. 1
(estimating a 25% increase in marketing costs); Delta, No. 94.1 at p. 1
(describing increased burden from updating literature, advertising
materials, and installation instructions); and AO Smith, No. 81.1 at p.
1 (emphasizing the stress to their customers from model number
changes))
In light of these comments, the Department will not require a new
basic model number when a manufacturer creates a new basic model unless
DOE has determined that the basic model is non-compliant with the
standard. If manufacturers--on their own--seek to certify a new basic
model, DOE will not require that they designate new model numbers to
avoid unnecessary advertising, marketing, and consumer related costs.
But, should DOE determine that a basic model does not comply with the
applicable standard, manufacturers cannot certify any of the model
numbers included in that basic model using the same model numbers
certified in the basic model determined noncompliant. If, for example,
a manufacturer wishes to make changes to a noncompliant basic model to
bring it into compliance, that modified model(s) must be recertified as
a new basic model, with a new model number(s). See 10 CFR 429.114(d).
We reiterate that, in such cases, the Department is not requiring any
particular numbering system or convention, only that it has a new basic
model number to distinguish it from the noncompliant basic model. The
Department believes that new model numbers are warranted in such cases
to prevent consumer confusion and permit the Department to monitor
compliance effectively.
We note that designating new model numbers for a new basic model
may be prudent in some circumstances even when it is not required by
today's rule. DOE enforcement efforts will be based on the basic model
number. A manufacturer that increases the efficiency of a model may
elect not to recertify it using a new basic model number. If, however,
DOE tests an earlier-manufactured unit and determines the basic model
to be non-compliant with the standard, the manufacturer will be
required to cease distribution of all units of all models listed under
that basic model number, even if modifications to the model may have
made it compliant over time. Furthermore, we note, as Whirlpool's
comment points out, that the FTC has issued a staff opinion stating
that the failure to change model numbers when changing the efficiency
rating of a product may be considered an unfair and deceptive practice
in violation of Federal law. (Whirlpool, No. 78.1, at p. 2 (attaching
FTC staff opinion letter))
3. Notice of Discontinuance
In the September 2010 NOPR, the Department proposed to require that
manufacturers report a model as discontinued as a part of their annual
filing following the date on which production of a model has ceased and
it is no longer being sold or offered for sale by the manufacturer or
private labeler. Several commenters sought additional clarity with
respect to when a model has been discontinued. AHRI members, such as
Daikin AC, urged DOE to adopt AHRI's approach, whereby models are
discontinued when production has stopped, yet stock remains, and such
models remain listed in AHRI's directory for 6 months. (See, e.g.,
Daikin AC, No. 73.1 at p. 1) Other commenters argued that
discontinuance should be defined with respect to when production has
ceased and should not refer to commerce. (See, e.g., BSH Home
Appliance, No. 89.1 at p. 2; AHAM, No. 98.1 at p. 7) And one commenter
suggested that DOE should simply remove all requirements for reporting
discontinued models to DOE. (See ABB, No 53.1 at p. 8)
Today's rule retains the requirement that manufacturers or
certifying parties (i.e., third-party filers acting on behalf of a
manufacturer) notify DOE in their annual certification filing when a
model is no longer being produced and the manufacturer or private
labeler is no longer offering it for sale. EPCA obligates DOE to ensure
that all covered products distributed by manufacturers and private
labelers in U.S. commerce comply with applicable Federal conservation
standards. The reporting requirements for discontinued models--like the
certification reporting requirements themselves--provide the Department
with necessary information about the products that are being
distributed in U.S. commerce and thus, which products are subject to
DOE's regulatory regime. As one commenter put it, ``knowledge of what
covered products are being distributed in commerce at any given time is
the foundation of an effective certification and enforcement program.''
(NEEA, No. 67.1 at p. 2)
The Department's view of when a model is discontinued stems from
EPCA's statutory framework. Although DOE understands that it may be
easier for manufacturers to track production dates, the relevant
information for DOE's compliance and enforcement efforts, and
manufacturer or private labeler liability, does not stem from
production, but from the distribution of a model in commerce by the
regulated entity. Thus, the Department will consider a model to be
discontinued when production has ceased and when the manufacturer
(including importer) or private labeler is no longer offering the
product for sale. To reduce the burden on manufacturers, today's rule
no longer requires notification at the time of discontinuance, but
rather requires that a model's discontinuance be reported to DOE as a
part of the annual filing.
The Department emphasizes, moreover, that whether a model is
discontinued depends on whether the manufacturer, importer, or private
labeler has ceased production and stopped offering the model for sale.
It does not depend upon distributor or retail sales and offerings.
EPCA's standards and the Department's reporting obligations regulate
manufacturers, importers, and private labelers. The certifying entity
will know when it stops offering a model for sale, but would have no
way of knowing when distributor or retail stock has been depleted.
Thus, in the annual filing, the manufacturer or certifying entity
should report basic models which are no longer being produced and that
the manufacturer or private labeler is no longer offering for sale.
F. Certification Testing, Generally
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 September 2010 NOPR, DOE proposed to
consolidate existing sampling provisions in Part 429 and establish
sampling provisions for the types of consumer products and commercial
equipment that do not currently have them. Further, DOE proposed the
use of a statistically meaningful sampling procedure for selecting test
specimens of consumer products and commercial and industrial equipment,
which would require the manufacturer to 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. DOE did not propose a
specific sample size for each product because the sample size is
determined by the validity of the sample
[[Page 12431]]
and how the mean compares to the standard, factors which cannot be
determined in advance.
While DOE has moved the sampling plans for all covered products and
covered equipment, except electric motors, to Part 429, DOE is not
adopting any changes to the existing tolerances at this time. In this
final rule, DOE restructured the presentation of the sampling plan and
statistical information and included the Student's t-distribution
values to help manufacturers in understanding the process behind
calculating the certification values for each product. DOE hopes these
changes, which are editorial in nature, provide the additional clarity
that interested parties have been seeking regarding DOE's sampling
procedures. Table III.1 demonstrates a mapping between the existing
location in parts 430 and 431 and the future location in part 429 of
the sampling plans that manufacturers apply to the test data in order
to generate their certified ratings.
Table III.1--Current and Future Locations of the Provisions for Statistical Sampling Plans for Certification
Testing
----------------------------------------------------------------------------------------------------------------
Product type New regulation citation in final rule Existing regulation citation
----------------------------------------------------------------------------------------------------------------
Residential refrigerators, refrigerator- 10 CFR 429.14.......................... 10 CFR 430.24(a)-(b).
freezers and freezers.
Room air conditioners.................... 10 CFR 429.15.......................... 10 CFR 430.24(f).
Central air conditioners and heat pumps.. 10 CFR 429.16.......................... 10 CFR 430.24(m).
Residential water heaters................ 10 CFR 429.17.......................... 10 CFR 430.24(e).
Residential furnaces..................... 10 CFR 429.18.......................... 10 CFR 430.24(n).
Dishwashers.............................. 10 CFR 429.19.......................... 10 CFR 430.24(c).
Residential clothes washers.............. 10 CFR 429.20.......................... 10 CFR 430.24(j).
Residential clothes dryers............... 10 CFR 429.21.......................... 10 CFR 430.24(d).
Direct heating equipment................. 10 CFR 429.22.......................... 10 CFR 430.24(g) and 10 CFR
430.24(o).
Conventional cooking tops, conventional 10 CFR 429.23.......................... 10 CFR 430.24(i).
ovens, microwave ovens.
Pool heaters............................. 10 CFR 429.24.......................... 10 CFR 430.24(p).
Fluorescent lamp ballasts................ 10 CFR 429.26.......................... 10 CFR 430.24(q).
General service fluorescent lamps, 10 CFR 429.27.......................... 10 CFR 430.24(r).
general service incandescent lamps, and
incandescent reflector lamps.
Faucets.................................. 10 CFR 429.28.......................... 10 CFR 430.24(s).
Showerheads.............................. 10 CFR 429.29.......................... 10 CFR 430.24(t).
Water closets............................ 10 CFR 429.30.......................... 10 CFR 430.24(u).
Urinals.................................. 10 CFR 429.31.......................... 10 CFR 430.24(v).
----------------------------------------------------------------------
Ceiling fans............................. Design standard. Not applicable.
----------------------------------------------------------------------
Ceiling fan light kits................... 10 CFR 429.33.......................... 10 CFR 430.24(w) and 10 CFR
430.24(x).
----------------------------------------------------------------------
Torchieres............................... Design standard. Not applicable.
----------------------------------------------------------------------
Bare or covered medium base compact 10 CFR 429.35.......................... 10 CFR 430.24(y).
fluorescent lamps.
----------------------------------------------------------------------
Dehumidifiers............................ 10 CFR 429.36.......................... 10 CFR 430.24(z).
Class A external power supplies.......... 10 CFR 429.37.......................... 10 CFR 430.24(bb).
Battery Chargers......................... 10 CFR 429.39.......................... 10 CFR 430.24(aa).
Candelabra base incandescent lamps and 10 CFR 429.40.......................... New per EISA 2007.
intermediate base incandescent lamps.
----------------------------------------------------------------------
Electric motors.......................... No change. (10 CFR 431.17)
----------------------------------------------------------------------
Commercial refrigerators, freezers, and 10 CFR 429.42.......................... 10 CFR 431.65.
refrigerator-freezers.
----------------------------------------------------------------------
Commercial heating, ventilating, air- 10 CFR 429.43.......................... 10 CFR 431.173 through 10
conditioning (HVAC) equipment. CFR 431.175.
Commercial water heating (WH) equipment.. 10 CFR 429.44.......................... 10 CFR 431.173 through 10
CFR 431.175.
Automatic commercial ice makers.......... 10 CFR 429.45.......................... 10 CFR Sec. 431.135.
Commercial clothes washers............... 10 CFR 429.46.......................... New per EISA 2007.
Distribution transformers................ 10 CFR 429.47.......................... 10 CFR 431.197.
Illuminated exit signs................... 10 CFR 429.48.......................... 10 CFR 431.205.
Traffic signal modules and pedestrian 10 CFR 429.49.......................... 10 CFR 431.225.
modules.
----------------------------------------------------------------------
Commercial unit heaters.................. Design standard. Not applicable.
----------------------------------------------------------------------
Commercial pre-rinse spray valves........ 10 CFR 429.51.......................... 10 CFR 431.265.
----------------------------------------------------------------------
Refrigerated bottled or canned beverage 10 CFR 429.52.......................... 10 CFR 431.295.
vending machines.
----------------------------------------------------------------------
Walk-in coolers and walk-in freezers..... Design standard. Not applicable.
----------------------------------------------------------------------
Metal halide lamp ballasts and fixtures.. 10 CFR 429.54.......................... 10 CFR 431.328
----------------------------------------------------------------------------------------------------------------
[[Page 12432]]
DOE sought comment on a variety of issues relating to sampling
plans in the September 2010 NOPR. 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 to
have different sampling plans for certification testing and enforcement
testing; and (3) 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.
DOE will consider all of the comments submitted as part of this record
as it continues any potential revisions in the next certification,
compliance, and enforcement rulemaking.
G. Certification Testing Specific to Commercial HVAC and WH Equipment,
Including the Use of AEDMs and VICPs
In the September 2010 NOPR, DOE proposed that one set of sampling
procedures be used for certification testing of all types of commercial
air-conditioning and water heating equipment (HVAC and WH) and for
verification of the AEDM, regardless of participation in a voluntary
industry certification program (VICP). DOE further proposed to allow
all manufacturers of commercial HVAC and WH equipment, irrespective of
participation in a VICP, to use both in-house testing facilities and
independent laboratories at the manufacturer's discretion for
certification testing.
In response to DOE's proposals, AHRI objected to the application of
the more stringent non-VICP regulations to VICP participants.
Specifically, AHRI stated that the certification testing requirements
for VICPs should remain unchanged because changing them would actually
be an advantage to those manufacturers that do not participate in a
VICP. (AHRI, No. 91.1 at p. 8)
DOE does not agree with AHRI and is adopting its approach as
proposed in the September 2010 NOPR. DOE believes that fair and equal
treatment of all manufacturers of commercial HVAC and WH equipment is
important regardless of participation in certification programs. While
DOE recognizes that participation in industry programs can provide
invaluable benefits to manufacturers, DOE does not believe the
regulations for certification testing should be differentiated based on
this factor. Certification sampling plans, which are applied to the
certification testing results, have been established to capture the
variances in manufacturing processes, testing methods, and materials.
DOE does not believe these factors are influenced by participation in a
VICP. As such, DOE is adopting identical provisions, which use certain
provisions from the existing regulations, for both non-VICP and VICP
participants.
H. Records Retention and Confidentiality
1. Records Retention by Manufacturers
In the September 2010 NOPR, DOE proposed to establish a record
retention requirement for certification reports that would require the
reports 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. This requirement would
be in addition to the records retention requirement for underlying
certification test data, which existing regulations require
manufacturers to maintain for two years. Records must be maintained
such that they are readily accessible for review by DOE upon request.
In response to this proposal, BSH recommended that DOE strike the
language proposed in the September 2010 NOPR requiring manufacturers to
retain certification records for as long as the model is being
distributed in commerce. Instead, BSH suggested that DOE simply state
that records should be retained for two years from the date production
ceased. (BSH, No. 89.1 at p. 4)
Although we recognize the date on which production ceases may be
readily available to manufacturers, the Department's regulatory regime
centers on the distribution of covered products in commerce, rather
than manufacturers' production schedules. Thus, the Department is
adopting in this final rule the requirement that certification records
be retained for two years from the date that the manufacturer or
certifying entity notified DOE that the basic model is no longer being
distributed in commerce. As discussed above, the Department views a
model as discontinued when the entity that certified the basic model
(or the party represented by a third-party certifier) is no longer
offering the model for sale. Accordingly, under today's rule, records
must be retained for two years from the date of that submission. This
approach creates a specific date known to both manufacturers and the
Department and requires manufacturers to retain records for models in
the distribution chain for a reasonable period of time after they are
discontinued.
DOE also clarifies that, under its maintenance of records
requirement, a manufacturer must retain the certification records,
including test reports, which underlie the each certification of a
model. As an example, if a basic model is certified to DOE on April 1,
2011, the test report underlying that certification report must be
retained such that it can be provided to the Department upon request. A
test report generated at a later date will not be sufficient. If the
basic model is recertified to DOE on April 1, 2012, based on a
different test report, the new test report underlying that
certification report must be retained, in addition to the certification
report underlying the 2011 certification.
2. Confidentiality of Information
In the September 2010 NOPR, DOE proposed to clarify in its
regulations that the following information submitted pursuant to the
certification requirements is considered public record: The
manufacturer's name, brand name, model number(s), and all of the
product-specific information submitted on the certification report. In
addition, the Department retained the current approach whereby
certifying entities seeking to withhold other information submitted to
the Department from public disclosure must provide redacted copies at
the time of submission.
In response, a number of commenters expressed strong support for
public access to certification data. (See, e.g., AWE, No. 38.1 at p. 2;
NRDC, No. 80.1 at p. 6, NEEA, No. 67.1 at p. 3; Earthjustice, No. 83.1
at p. 2) As one commenter explained: ``Providing the public with a
ready means to access efficiency testing results strengthens the
incentive for manufacturers to follow the law and helps ensure that
they will be held accountable if they failed to meet efficiency
standards.'' (See Lish, No. 58.1 at p. 2) Several commenters encouraged
DOE to establish a public online database as the repository for all
product and equipment information to increase transparency and public
access. (See, e.g., NRDC, No. 80.1 at p. 6; NEEA, No. 67.1 at p. 3,
First Co., No. 76.1 at p. 3) First Company, for example, offered
``strong support for the development of a single DOE/FTC list of
certified equipment that is published and publicly available on the DOE
Web site,'' that would include certification reports and notices of
discontinuance. (First Co., No. 76.1 at p. 3)
[[Page 12433]]
As for the specific information to be considered as a matter of
public record, several parties objected to making public the business
relationship between a manufacturer and private labeler of a covered
product. Delta Faucet, for example, commented that certification
information related to private labelers should be segregated and kept
confidential due to concerns for contracting with potential customers
and release of such information to competitors. (Delta, No. 94.1 at p.
1) Similarly, AHAM recognized that who manufactures a privately labeled
product ``may be valid and valuable information to DOE as a
regulator,'' but that this information ``is not publicly known and, in
many cases, would harm companies' competitive postures if * * * such
arrangements were disclosed.'' (AHAM, No. 98.1 at p. 6) First Company
suggested that, to avoid consumer confusion, only the following
information should be made public for central air conditioners and heat
pumps: ``manufacturer name, private labeler name, brand name, basic
model number, individual model numbers covered by that basic model,
capacity, SEER and HSPF (if applicable) of the model.'' (First Co., No.
76.1 at p. 3)
AHAM further opposed making CT(l), CT(m) and standard temperature
sensor location information for refrigerators, refrigerator-freezers,
and freezers available to the public because they would reveal
confidential information. (AHAM, No. 98.1 at p. 6) AHAM also asserted
that certification information should only be made public once the
product is released into commerce. AHAM believes that releasing such
information prior to the product's release will deflate product
launches and release information to competitors before it is otherwise
known. (AHAM, No. 98.1 at pp. 6-7)
The Department believes that making data accessible to the public
provides increased transparency and accountability to the Department's
regulatory regime. At the same time, the Department recognizes that
certain information may be confidential in nature and exempt by law
from public disclosure. To balance these interests, the final rule
adopts the following framework for addressing the public disclosure of
information submitted to DOE under Part 429, while protecting valid
claims of confidential business information.
First, certain categories of certification information will be
considered a matter of public record that DOE intends to make available
to the public on its Web site. The Department is developing a public,
searchable database that will allow the public ready access to certain
certification information for covered products. This certification
database is still being developed, and the Department hopes to make it
available to interested parties in the coming year. While this will be
a DOE database, we are continuing to work with FTC and EPA on
establishing a consolidated Federal database of energy and water
efficiency information.
Using this database, the Department intends to publicize the
following certification information for covered products: The brand
name, model number(s), and product-specific certification information
for which no confidentiality concerns have been raised. With respect to
manufacturer and private labeler information, we understand from the
comments that there may be heightened competitive sensitivity attached
to the identity of manufacturers and private labelers of certain
products. We also note that the FTC has chosen not to publicize this
information on its Web site. In recognition of this, the Department
will follow the FTC's approach and publicize brand information in lieu
of information that reveals business relationships between
manufacturers and private labelers. Although DOE has decided not to
include the manufacturer and brand relationship on the public database,
the Department still requires this information be submitted as part of
the certification report to the Department and it will be subject to
the confidentiality provisions outlined below.
DOE also intends to publish in the public database product-specific
information that is already available or is readily available, such as
the energy or water ratings and volume measurements. Though some of
this information is technical, no party has deemed it proprietary and
it will increase the accountability of manufacturers' self-
certification and DOE's compliance and enforcement activities. DOE will
not publicize the CT(l), CT(m) and standard temperature sensor location
for refrigerators and freezers in light of the concerns that this
information would reveal design details of the control mechanisms of a
product that manufacturers treat as confidential. All other product-
specific certification information will be made publicly available.
Once the database is available, these public categories of
certification information will be posted promptly upon receipt and
remain available until DOE receives a notice of discontinuance. With
respect to AHAM's concerns about the posting of information prior to
product launch, we note that manufacturers can wait to file a
certification report until a model is about to be distributed in
commerce. Furthermore, DOE believes that instances in which the
entirety of a certification filing must be kept confidential will be
exceedingly rare. Should such instances occur, manufacturers should
contact DOE, in advance, and provide a full explanation of the
extenuating circumstances justifying such confidential treatment.
Second, for all other information submitted pursuant to Part 429,
today's rule provides a mechanism for submitting parties to claim
confidentiality on a case-by-case basis at the time of submission. Any
person submitting information or data pursuant to Part 429 that the
person believes to be confidential and exempt by law from public
disclosure should submit via an attachment to CCMS: (1) A request for
confidential treatment; (2) one complete copy, and (3) one copy from
which the information believed to be confidential has been deleted or
redacted. The request for confidential treatment must contain a
comprehensive statement of the reasons for withholding the information
from disclosure, including: (1) A description of the specific items for
which confidential treatment is sought, (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 that
would result from public disclosure, (6) a date upon which such
information might lose its confidential nature due to the passage of
time, (7) why disclosure of the information would be contrary to the
public interest; and (8) any other information that the party seeking
confidential treatment believes may be useful in assessing whether its
request for confidentiality should be granted.
DOE may defer acting on any requests for confidentiality until DOE
receives a request for the disclosure of the information covered by the
request. The information will be treated as confidential until DOE acts
on the request and all subsequent appeal proceedings have been
exhausted. In response to a request for the disclosure of information,
DOE will review the submitter's views, but will make its own
determination with regard to any claim that information submitted be
exempt from public disclosure. If the
[[Page 12434]]
Department denies a request for confidentiality in whole or in part,
seven days' notice of that determination will be given to the submitter
pursuant to 10 CFR 1004.11(e) before the information is disclosed.
This approach provides submitters with an opportunity to express
claims of confidentiality with particularity at the time the
information is submitted, including a request for information to remain
confidential for a set period of time, such as prior to a public
product launch. Furthermore, it will allow the Department to determine
whether a particular piece of information is exempt from public
disclosure by law on a case-by-case, fact specific basis. In this way
DOE can both consider confidentiality claims effectively and respond to
disclosure requests promptly, while protecting against unlawful
disclosure of information.
I. Enforcement Testing
1. Initiation of an Enforcement Action
The current regulations provide for enforcement testing only upon
DOE's receipt of written information that a covered product or covered
equipment may be violating a standard. 10 CFR 430.70(a); 10 CFR
431.373(a). In the September 2010 NOPR, DOE proposed 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, 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. 75 FR 56803; 56825.
Today's rule removes the requirement that DOE must receive a
written complaint alleging a violation of the standard before it can
perform enforcement testing to determine a model's compliance. The
Department's need to exercise its discretion under the statute and
enforce regulations proactively was recognized by a number of comments
in the record. Consumer's Union and the Appliance Standards Awareness
Project, for example, submitted comments in support of the Department's
revision to its regulations to make clear that DOE, on its own, can
initiate enforcement actions. (Consumer's Union, No. 74.1 at p. 3;
Appliance Standards Awareness Project, Public Meeting Transcript, No.
103 at p. 21) Additionally, IAPMO R&T encouraged DOE to continue to
seek companies that are not complying with the testing and reporting
requirements so as to ensure a level, competitive playing field. (IAPMO
R&T, No. 36.1 and 66.1 at p. 1)
Some commenters urged DOE to retain the existing limit on its
discretion and require that it receive written information of a
standards violation before testing to determine whether a product is
compliant. Specifically, ABB requested that DOE retain the original
requirement that a formal complaint must exist prior to the initiation
of formal testing. (ABB, No. 53.1 at p. 11) AHRI also commented that
the proposed change was unwarranted because DOE should have some reason
for initiating an investigation of compliance or at least give
preference to written information. (AHRI, No. 91.1 at p. 10)
The Department 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.
Today's final rule reflects the Department's 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 may not be compliant with an
applicable standard. This authority comes directly from the statute,
see 42 U.S.C. 6296, which obligates the Department to ensure that all
covered products and equipment comply with applicable Federal
conservation standards. In addition, the Department's ability to
request records, test products, and examine design standard compliance,
at any time, is crucial to the deterrent effect of the Department's
enforcement efforts. The Department believes its authority to take
these actions will serve to encourage compliance.
Other commenters requested clarification regarding the criteria
under which DOE will initiate an enforcement action. (See AWE, No. 38.1
at pp. 2-3; American Panel Corporation, No. 59.1 at p. 3; Royal Vendors
Inc., No. 64.1 at p. 2; Hill Phoenix, No. 70.1 at p. 1) For example,
American Panel Corporation suggested there should be written criteria
setting conditions under which DOE may initiate enforcement testing
without information from a third party. (American Panel Corporation,
No. 59.1 at p. 3) Further, Ingersoll Rand expressed concerns because
the September 2010 NOPR did not define the process that will be used to
initiate enforcement testing. (Ingersoll Rand, No. 6.1 at p. 3)
Similarly, NAMA noted its objection to DOE's ability to initiate
enforcement testing at any time without notification, urging DOE to
define the causes that would trigger an enforcement investigation.
(NAMA, No. 11.1 at p. 6) NEMA commented that DOE should revise its
regulations to require that DOE may initiate an investigation of
compliance upon verified belief that a basic model may not be
compliant. (NEMA, No. 26.1 at p. 11)
In practice, the Department's enforcement actions and how it
chooses to exercise its enforcement authority will be dictated by the
facts on a case-by-case basis. However, the Department understands
commenters' desire for a greater understanding of the factors that DOE
will use to guide the exercise of its enforcement discretion. We also
recognize the importance of providing notice to regulated entities and
making the Department's practices as transparent as possible. To
provide further clarity, notice, and accountability, the Department
plans to issue a policy statement on enforcement, which will address
the types of factors and circumstances it will consider in deciding
whether to initiate an enforcement action. The Department will make
this policy statement available on its Web site in the near future.
2. Process Provided to Manufacturers During Enforcement Testing
Under the current regulations, DOE initially reviews the underlying
test data supporting the certification and provides the manufacturer
with an opportunity to come in and meet with the Department upon
receipt of information regarding a potential standards violation. 10
CFR 430.70(a); 10 CFR 431.373(a). In the September 2010 NOPR, DOE
proposed to allow DOE, at any time, to request any information relevant
to determining compliance, including the certification and test data.
75 FR 56825. In addition, DOE removed the provision requiring DOE to
offer to meet with the manufacturer prior to initiating testing. Id.
Several commenters expressed concerns that removing these
provisions would deprive manufacturers of the ability to respond in a
timely and informed way to allegations of noncompliance. AHRI, for
example,
[[Page 12435]]
commented that DOE should retain the requirement in its current
regulations that DOE review underlying data provided by the
manufacturer and offer the manufacturer the opportunity to meet with
DOE to verify the compliance of the model(s) in question before
initiating enforcement testing. (AHRI, No. 91.1 at p. 10) Similarly,
AHAM argued that before a finding of noncompliance, DOE should
communicate with the manufacturer or private labeler during the testing
process and invite them to witness testing. (AHAM, No. 98.1 at p. 11)
Additionally, AHAM stated that DOE should provide manufacturers with
copies of test reports, regardless of whether the product is found to
be compliant. Id. Traulsen also commented that DOE should provide the
manufacturer with an opportunity to witness testing or, at a minimum,
review the data and equipment prior to any final rulings. (Traulsen,
No. 52.1 at p. 7)
The Department will continue to afford manufacturers due process
and an opportunity to respond to allegations in the course of an
enforcement investigation. The Department's forthcoming enforcement
policy statement will provide additional guidance and detail on the
enforcement process. However, in light of the comments, we address a
few issues here as well. With respect to the manufacturer's
certification test data, the Department agrees with interested parties
that reviewing the data underlying the certifications prior to
initiating enforcement testing is in an important step in the
investigative process because it can reveal additional details that are
not apparent in the certification data. Thus, the Department typically
reviews the underlying certification data and test reports supporting
the certification report prior to proceeding to enforcement testing.
However, because there may be rare circumstances where expedited
testing is necessary, DOE believes it is important to maintain
flexibility by providing DOE with authority to request records and
initiate testing at any time. DOE also agrees that manufacturers should
have access to enforcement test data. DOE expects to provide the
manufacturer with the test data reports after the enforcement testing
has been completed. The Department will also return any test units
provided by the manufacturer (or at the manufacturer's expense) once
the case is officially closed.
3. Test Notice
DOE's current regulations require manufacturers to ship units for
enforcement testing within five working days once they have been
identified by DOE. 10 CFR 430.70(a)(v); 10 CFR 431.373(a)(v). In the
September 2010 NOPR, DOE proposed to reduce the time period by which a
manufacturer must ship test units of a basic model to the testing
laboratory pursuant to a test notice from 5 to 2 days. 75 FR 56826.
In today's rule, the Department (1) retains the current
regulation's five working day shipping rule for high volume, off-the-
shelf products and (2) adopts a flexible window for low volume, custom
built products. As discussed below, many of the commenters suggested
that DOE separate built-to-order from pre-manufactured, off-the-shelf
products, giving built-to-order products a longer time period to ship
the basic model. The Department agrees and adopts this approach. To
ensure that manufacturers have an adequate amount of time to ship test
units for such low volume, built-to-order products, the Department is
establishing separate shipping time periods by which a manufacturer
must ship test units of a basic model for different groups of products.
For off-the-shelf products, which can be acquired at the retail
level, DOE is retaining the current five-day window to ship a basic
model to a test laboratory in the event a manufacturer receives a
notice for enforcement testing from DOE. The record reflects that
reducing the time frame from five to two days would impose a
significant burden. In particular, JVC, Royal Vendors Inc., ALS, NEEA,
Hill Phoenix, Ingersoll Rand, Delta Faucet, AHAM, AHRI, Manitowoc Ice,
Craig Industries, Traulsen, GE Prolec, Kysor Panel Systems, and the
Appliance Standards Awareness Project generally commented that two days
is too short and would work an undue hardship on the manufacturer,
distributor or dealer from whom the test samples are being acquired.
(JVC, No. 56.1 at p. 1; Royal Vendors Inc., No. 64.1 at p. 2; ALS, No.
66.1 at p. 3, NEEA, No. 67.1 at p. 7; Hill Phoenix, No. 70.1 at p. 2,
Ingersoll Rand, No. 6.1 at p. 4; Delta Faucet, No. 94.1at p. 2; AHAM,
No. 98.1 at p. 9, AHRI, No. 92.1 at p. 10; Manitowoc Ice, Public
Meeting Transcript, No. 103 at pp. 174-175; Craig Industries, Public
Meeting Transcript, No. 103 at pp. 179-180; Traulsen, No. 52.1 at p. 6;
GE Prolec, No. 95.1 at p. 6; Kysor Panel Systems, Public Meeting
Transcript, No. 103 at p. 182; ASAP, Public Meeting Transcript, No. 103
at pp. 183-184)
For products like low-volume or built-to-order models that are
unavailable upon receipt of the test notice at the manufacturer's
facility, warehouse, distribution chain, or retailer, DOE will work
with the manufacturer to obtain units as quickly as possible for a
pending enforcement case. The comments in the record support a longer
timeframe and a more flexible approach for these types of products. In
particular, BWC, American Panel, AO Smith, NEMA, MEUS, NAMA, and ABB
generally noted that the existing 5 days is too short, especially for
custom, built-to-order products, which require a longer lead time to
manufacture. (BWC, No. 45.1 at p. 3; American Panel, No. 59.1 at p. 3;
AO Smith, No. 81.1 at p. 4; NEMA, No. 85.1 at p. 5, MEUS, Public
Meeting Transcript, No. 103 at p. 183; NAMA, No. 25.2 at p. 5; ABB, No.
53.1 at p. 10) Some of these commenters also suggested a one-size-fits-
all approach is impractical for a number of products. For example,
American Panel asserted that 3 to 15 days are required to manufacture
custom Walk-In Coolers or Freezers (WICFs). (American Panel, No. 59.1
at p. 3) Further, BWC asserted that 30 days is a more appropriate time
period for shipping water heater test units, especially niche products,
which are almost entirely built-to-order. (BWC, No. 45.1 at p. 3)
Today's rule adopts a flexible approach in response to commenters'
concern that it may not be feasible for low volume or built-to-order
products to comply with a few days lead time for shipping test units
for enforcement testing purposes.
4. Sampling for Enforcement Testing
The existing sampling procedures to be used for enforcement testing
are set forth in Appendix B to Subpart F of Part 430 (consumer
products), Appendix B to Subpart K of Part 431 (distribution
transformers), Appendix C to Subpart S of Part 431 (metal halide lamp
ballast), and Appendix D to Subpart T of Part 431 (certain commercial
equipment).The sampling plan for enforcement testing of consumer
products requires testing an initial sample of four products. Then,
depending on the variation in the testing 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 per
the current regulations. (Appendix B to Subpart F of Part 430)
For commercial products, DOE's existing regulations are similar to
those of consumer products except there are provisions for testing a
sample of less
[[Page 12436]]
than four products for commercial heating, ventilation, air-
conditioning, and water heating equipment when the full sample cannot
be obtained. In addition, the tolerances for certain commercial
products are different due to the equipment-specific attributes such as
manufacturing practices and testing procedures.
In the September 2010 NOPR, DOE proposed to increase the maximum
sample size for enforcement testing of all products to 21 units. 75 FR
56826. DOE proposed this increase in the maximum number of units to
account for the test sample needed for certain types of consumer
lighting products. 75 FR 56804.
In addition, DOE recognized that a sample size of 20 total units
under the existing regulations may not always be available for basic
models that are low-volume or built-to-order. To accommodate these
circumstances and reduce burden on manufacturers, DOE proposed to
modify the existing sampling procedures to account for low-volume and
built-to-order basic models. 75 FR 56803-804; 56826. Further, DOE
proposed to retain the discretion to determine whether the basic model
qualifies as low-volume or built-to-order. DOE proposed to make such
determination by evaluating the number of units of a given basic model
available at the manufacturer's site and all distributors. Id.
Today's rule makes two general changes to the current enforcement
sampling regulations. First, it increases the maximum number of units
that may be tested to 21. Second, it adopts new, flexible sampling
provisions for low volume or custom-built products. Together, these
provisions permit the Department to identify units for enforcement
testing effectively, depending on the circumstances of a particular
case.
First, for high-volume, consumer products and commercial equipment,
DOE retains its sampling plan proposal, under which DOE tests an
initial sample size of four units per basic model and, depending on the
variability of the test results, may test up to 17 additional units, as
required, for enforcement testing. DOE believes this is the best
approach to provide robust test results and ensure that products are
not incorrectly found out of compliance. DOE notes that with the
exception of increasing the maximum sample size for off-the-shelf
products from 20 to 21--which reflects the test sample needed for
certain types of consumer lighting products--the sampling provisions
for enforcement testing are nearly identical to the current provisions
found in DOE's regulations and those currently being used for
enforcement testing.
Second, DOE agrees with many of the comments on the importance of
flexibility where units are not available for testing, especially in
the case of low-volume or built-to-order basic models. American Panel
Corporation stated its belief that DOE should allow for additional
sampling based on analysis of the first sample(s) since the initial
testing of products could be impacted by testing queues of as much as
six months. (American Panel Corporation, No. 59.1 at p. 3) Ingersoll
Rand recommended that DOE consider the nature and the cost of the
product under test. (Ingersoll Rand, Public Meeting Transcript, No. 103
at p. 319 and No. 6.1 at p. 3) General Electric Lighting encouraged DOE
to do computer simulation of enforcement testing to ensure that DOE has
a high degree of confidence that DOE will not produce a false signal of
non-compliance. (General Electric Lighting, Public Meeting Transcript,
No. 103 at p. 229) IAPMO R&T stated its support for DOE's current
proposal for enforcement testing. (IAPMO R&T, No. 36.1 at p. 2) Royal
Vendors misunderstood DOE's proposal and commented that an initial
sample size of four units and an additional sample size of up to 21
units is troublesome because of the unit cost, which could be
burdensome and the availability of those units could be difficult to
obtain. (Royal Vendors, No. 64.1 at p. 2) NAMA opposed the enforcement
sampling size procedures as they related to beverage vending machines
because the manufacturers do not have the economic capacity to
warehouse up to 20 beverage vending machines of each basic model. NAMA
urged DOE to use its discretion when fewer than two beverage vending
machines of a given model are available for testing within 30 days of
the test notice. (NAMA, No. 25.1 at pp. 4-5) Hoshizaki America, Inc.
stated its belief that test samples should be minimized for commercial
equipment, generally, because these units can be costly to make and
house if limited machines are sold each year. (Hoshizaki America, Inc.
No. 75.1 at p. 1)
Recognizing these concerns, DOE has decided to adopt several
enforcement sampling provisions that take account of low-volume or
built-to-order consumer products and commercial equipment. First, DOE
specifies provisions for certain covered products and equipment where
there is a lower volume market and manufacturing tends to be more
customized. These include automatic commercial ice makers, commercial
refrigeration equipment, refrigerated bottled or canned vending
machines, commercial HVAC and WH equipment, and distribution
transformers. The initial sample size of these units matches that of
high-volume consumer and commercial equipment, which is four units.
Second, DOE is including a provision that provides for testing of
fewer than four units if they are unavailable at the time the test
notice is received. While these provisions were proposed in the
September 2010 NOPR, DOE has attempted to clarify them to aid
manufacturers in determining the exact sample size required for
enforcement testing depending on product or equipment type.
Finally, DOE has also included a general provision applicable to
all covered products and covered equipment, which allows DOE to use its
discretion in determining the sample size when covered products and
covered equipment are generally unavailable. DOE will use many of the
considerations that interested parties noted above in their comments,
including the availability of units and the availability of third-party
testing facilities to run the DOE test procedure.
5. Testing Done for Other Agencies
DOE proposed 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 for
enforcement testing, so long as the testing is done in accordance with
the DOE test procedures and certification testing provisions. 75 FR
56804. The record does not reflect any specific comments on this issue
and DOE continues to believe the Department should not have to
duplicate efforts taken by itself or by other agencies to re-test units
that have already been tested by the Federal government using DOE's
test procedure. Thus, DOE is adopting this provision, as proposed, in
the final rule.
6. Test Unit Selection
Currently, DOE must obtain units for testing directly from the
manufacturer's facility or another location specified by the
manufacturer. In the September 2010 NOPR, DOE proposed to revise its
test unit selection provisions for enforcement testing to allow DOE to
select the units of a basic model to be tested from the manufacturer, a
distributor, or directly from a retailer. 75 FR 56826. For low-volume
or built-to-order products, DOE proposed that it would determine the
most reliable method of selecting units that are
[[Page 12437]]
representative of those sold to consumers. Id.
In today's rule DOE is adopting in its regulations that DOE may
select units of a basic model to be tested for enforcement purposes
from a distributor, a retailer, or the manufacturer. Reliable
enforcement testing requires the selection and testing of an unbiased
sample that is representative of the units distributed in commerce.
Based on DOE's experience, it is necessary to obtain units from diverse
sources to allow for an unbiased, representative, and sufficient sample
to produce the most reliable testing. A number of commenters supported
DOE's proposal to obtain test units from retailers and distributors, as
well as directly from the manufacturer. (AWE, No. 38.1 at p. 3; NEEA,
No. 67.1 at p. 7; NRDC, No. 80.1 at p. 6)
Some commenters objected to this change, arguing that test units
should come directly from the manufacturer. BWC stated this was
necessary since not every manufacturer distributes their product
through the retail channel. (NAMA, No. 25.1 at pp. 5-6; BWC, No. 10049
at p. 3; AHRI, No. 92.1 at p. 10) Commenters also noted that DOE's
approach of obtaining test units from retailers would be too burdensome
for products with limited or no stock. For example, Craig Industries
stated that a WICF test unit is not stocked and would therefore have to
be built by the manufacturer and then shipped to DOE at a cost of
approximately $6,000 per unit under DOE's test unit selection process.
(Craig Industries, Public Meeting Transcript, No. 103 at p. 192) As
described above, however, DOE did not propose and is not adopting a
process to select exclusively from retail sources. Today's rule
broadens the potential sources of units for testing. DOE is not
changing from a manufacturer-supplied process to an exclusively retail-
supplied process.
NAMA and AHRI further argued against selecting units from
distributors or retailers because the manufacturer cannot be held
responsible for equipment once it is out of their control. (NAMA, No.
25.1 at pp. 5-6; AHRI, No. 92.1 at p. 10) DOE agrees that manufacturers
should not be held responsible for most post-production modifications;
however, unaltered equipment should function as intended whether it is
obtained directly from the manufacturer or through the manufacturer's
normal distribution channels. NAMA also questioned whether DOE is
considering testing used or rebuilt equipment that has been modified by
the purchasers, which would not provide a valid test of compliance.
(NAMA, No. 25.1 at pp. 5-6) DOE has previously stated that its
authority does not extend to rebuilt and refurbished equipment, and DOE
does not plan to test equipment not covered by regulation. See, e.g.,
74 FR 44920. Similarly, DOE is not adopting any change to the existing
regulatory requirement that no quality control, testing or assembly be
performed on units selected for testing. Therefore, irrespective of the
source (retail, distributor or manufacturer), DOE intends to obtain and
test units to which no alterations have been made. More generally, DOE
believes that selecting units from the retailer or distributor may
often provide DOE with the best representation of a typical unit that
is distributed in commerce.
DOE recognizes that for low-volume and built-to-order basic models
that are not available from retailers or distributors, the only method
of obtaining these units, in many cases, is from the manufacturer.
Manufacturers of low-volume and built-to-order basic models also
explained that they will most likely not have inventory available for
enforcement testing. (See e.g., GE Prolec No. 95.1 at pp. 5-6) In such
cases, DOE does not intend to require manufacturers to produce units
simply for the purpose of enforcement testing. Doing so exclusively
could be burdensome and wasteful and could risk introducing bias in the
enforcement test sample. Rather, DOE will work with the manufacturer to
identify units for enforcement testing, which may include similar
alternative models. Moreover, DOE is also adopting a provision in
today's final rule, which allows DOE to use its discretion to perform
enforcement testing at a manufacturer's laboratory when there are
extenuating circumstances, which make testing at a third-party
laboratory impracticable or inadvisable. In these rare instances, the
manufacturer's lab must also be accredited to the International
Organization for Standardization (ISO)/International Electrotechnical
Commission (IEC) 17025, ``General requirements for the competence of
testing and calibration laboratories'', Second edition, May 15, 2005,
(ISO/IEC 17025:2005(E)) and DOE will witness the testing. DOE believes
this will also facilitate the enforcement process of low-volume and
built-to-order products.
Other commenters expressed concern about the mechanism by which
manufacturers would be notified of unit selection when units are
obtained from retailers or distributors. AO Smith noted that if DOE
adopts the approach of selecting test units from retailers, then a
clear definition of cost would need to be established as well as a
method of notifying a manufacturer that a unit was selected and
obtained from a certain supplier. (AO Smith, No. 81.1 at p. 3) AHRI
requested that DOE clarify that a manufacturer's reimbursement to the
retailer is limited to providing a replacement product without any
additional monetary compensation. (AHRI, No. 92.1 at p. 10; AHRI,
Public Meeting Transcript, No. 103 at pp. 191-192) AO Smith also
commented that although obtaining samples from a distributor or
retailer may be a reasonable idea to prevent pre-selection of units by
the manufacturer, it will be difficult (if not impossible) to
administer. (AO Smith, No. 81.1 at p. 3)
DOE believes that obtaining units from a distributor or retailer
will be relatively straightforward, as manufacturers have specified
distributors as sources under the current regulations and have arranged
some form of compensation to facilitate the transfer of the units to
DOE's specified test lab directly from the distributors. Furthermore,
DOE is adopting a process that includes the issuance of a test notice,
which will specify the source of units for testing. Therefore, the
manufacturer will be aware of the selection of units and can make
arrangements to compensate the retailer for the units selected for
testing. As stated earlier, DOE will communicate with manufacturers
during the enforcement process and keep them informed about the
investigation. Today's rule does not specify the form of reimbursement
the manufacturer provides to the retailer. Such reimbursement may take
the form of a replacement unit, monetary compensation, a voucher, or
any other mechanism upon which the manufacturer and retailer agree.
Some of the commenters supporting the rule urged DOE to go farther,
recommending that DOE adopt a preference for retail selection and
obtain samples for testing from the manufacturer only if no retail
product is available. NEEA and NRDC, for example, requested that DOE
develop a protocol for enforcement testing that would establish off-
the-shelf testing as the preferred method for acquiring products.
(NEEA, No. 67.1 at pp. 7-8; NRDC, No. 80.1 at p. 6) NEEA further
suggested that DOE's prioritization process for sourcing products for
testing should be aligned to the Energy Star program's prioritization
process. (NEEA, No. 67.1 at pp. 7-8)
The Department declines to adopt a systematic preference for
sourcing products for enforcement testing from either retail or
manufacturer sources. As
[[Page 12438]]
the comments reflect, retail sources may be preferred in some
instances, while manufacturer sources will be more effective in others.
Thus, the Department retains the discretion to select units in the
manner most appropriate in a particular case to achieve our goals of
unbiased, representative, and sufficient samples. Testing an unbiased
sample and obtaining that sample quickly when DOE has identified a
potentially noncompliant product is necessary to ensure the American
public is receiving the energy efficiency promised by the Federal
efficiency standards. The Department will consider many factors when
determining where to obtain units, including unit availability and
shipping times. DOE realizes that basic models may not always be
available from the retailer or distributer, such as if the unit is a
seasonal product like a room air conditioner. Consequently, DOE is
retaining its discretion to obtain basic models from the manufacturer,
a retailer, a distributor, or some combination thereof.
7. Testing at Manufacturer's Option
After the Department has tested a model and determined through
statistical analysis that it does not meet the applicable standard, the
existing regulations allow a manufacturer to do additional testing at
DOE's selected lab at the manufacturer's expense. In the September 2010
NOPR, the Department proposed to remove these sections because
manufacturers can perform additional testing on their own at any time.
The Department is removing the regulatory provision governing
manufacturer testing because it is both unnecessary--given that
manufacturers are free to perform additional testing on their own at
any time--and otherwise delays the finality of a compliance
determination. In written comments, AHRI, ABB, and NEMA opposed removal
of the provisions allowing additional testing at the manufacturer's
option. (AHRI, No. 92.1 at p. 11; ABB, No. 53.1 at p. 9, NEMA, No. 85.1
at p. 11) In particular, AHRI commented that this provision provides a
safeguard against a ``false negative'' conclusion and provides
manufacturers with fair, due-process in enforcement testing. (AHRI, No.
92.1 at p. 5) AHAM further commented that while it recognizes the
Department is interested in minimizing delay in the enforcement
process, this should not be at the expense of the Department being fair
and obtaining accurate results. (AHAM, Public Meeting Transcript, No.
103 at p. 244)
The Department disagrees that removing the manufacturer optional
testing provision will result in unfairness or inaccurate test results.
Manufacturers can perform additional testing on their own and provide
test results to DOE at any time. There is no need for a regulatory
provision to give them this option. Moreover, DOE's enforcement testing
is based on a statistically valid sample size. Once the Department has
completed its enforcement testing, allowing for any additional testing
serves no purpose other than to increase the testing sample size. As
NEEA's comment explained, if the enforcement testing is done in a
statistically rigorous way (according to procedure, within specified
tolerances), then the only impact of further testing, regardless of who
does it, is delay in the enforcement process. (NEEA, No. 67.1 at p. 8)
Furthermore, under the existing (and proposed) regulation,
manufacturers are prohibited from distributing the model in commerce
during any additional manufacturer-elected testing, so delay in moving
the adjudication process forward works to the disadvantage of the
manufacturer.
Raising concerns about the possibility of defects in the tested
units, MEUS, Johnson Controls, and Manitowoc Food Service generally
commented that it is necessary for manufacturers to have the ability to
test the same units that DOE has tested for there to be a determination
that a component was defective. (MEUS, Public Meeting Transcript, No.
103 at pp. 233-234; Johnson Controls, Public Meeting Transcript, No.
103 at pp. 233-234; and Manitowoc Food Service, Public Meeting
Transcript, No. 103 at pp. 242-243) Similarly, Owens Corning stated at
the public meeting that it is imperative for manufacturers to retest a
product that has been determined to be out of spec by an outside
laboratory to determine whether it was the product or the outside
laboratory's test that was at fault. (Owens Corning, Public Meeting
Transcript, No. 103 at pp. 226-227) Such comments, however, reflect a
misunderstanding of DOE's current regulations, which do not allow the
manufacturer (1) to test the same units tested by DOE, (2) to observe
the additional testing permitted by the regulation, or (3) to select
the test lab for manufacturer-elected testing. Furthermore, today's
final rule retains the current regulatory provision addressing
defective units, allowing DOE to test a replacement unit if a selected
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.
Other commenters expressed concerns about variability or
uncertainty surrounding how an outside laboratory would conduct
enforcement testing, and whether the laboratory would conduct the test
in a manner similar to that of the manufacturer. NEMA, for example,
asserted that manufacturers of distribution transformers should have
some ability to challenge the results of an independent test lab that
does not have proven, established experience with the particular
product tested. (NEMA, No. 85.1 at p. 11) Similarly, GE Appliances and
Lighting asserted that because variability questions exist among
laboratories, where labs can test the same or similar products and get
very different results, it is difficult for manufacturers to feel
comfortable and validate those results. (GE Appliances and Lighting,
Public Meeting Transcript, No. 103 at pp. 241-242)
As discussed below, DOE's enforcement testing will be done by
appropriately qualified, ISO/IEC 17025:2005 accredited laboratories.
However, in recognition of the concerns of the rare instances when
laboratories may be unavailable to test certain products or equipment,
DOE is adopting a provision in today's final rule that allows DOE to
use its discretion to perform DOE-witnessed enforcement testing at a
manufacturer's laboratory when there are extenuating circumstances that
make testing at an independent laboratory inadequate or unrealistic.
8. Cost Allocation for Testing
In the September 2010 NOPR, DOE tentatively concluded that the cost
of enforcement testing should remain with the Department, as existing
regulations require. The Department received comments on this issue
from the ALA, AWE and Hoshizaki America, Inc. Specifically, ALA
commented that it supports DOE's tentative decision that the cost of
enforcement testing should remain with DOE. (ALA, No. 97.1 at p. 1) In
addition, AWE noted that DOE should consider alternate vehicles to pay
for enforcement testing, including certification fees, VICP from
manufacturers, and revolving funds paid from successful enforcement
fines. (AWE, No. 38.1 at p. 3) Lastly, Hoshizaki America, Inc.
suggested that the cost of enforcement testing be on a case-by-case
basis, similar to AHRI's current process, which requires that the loser
in the challenge process pay for enforcement testing. (Hoshizaki, No.
75.1 at p. 2) Hoshizaki America stated
[[Page 12439]]
that the manufacturer should only have to pay for testing with
enforcement if they are found to be in non-compliance. (Hoshizaki, No.
75.1 at p. 2)
DOE appreciates the suggestions by the commenters on the variety of
potential methods to pay for enforcement testing. Unlike voluntary
programs, which could incorporate a potential fee for registration,
DOE's regulatory program requires manufacturers to certify with the
Department and we currently have no authority to collect filing fees
that could be used for administering the enforcement program. DOE
agrees with ALA that the cost of enforcement testing should reside with
the Department, as this allows the Department with the greatest
flexibility in executing the enforcement testing at the third-party
laboratory of its choice. Consequently, DOE concludes that the cost of
enforcement testing should remain with the Department and is not
adopting a change in today's final rule.
9. Third-Party Laboratory Requirements for Enforcement Testing
DOE did not propose specific third-party laboratory requirements
for enforcement testing in the September 2010 NOPR. However, DOE sought
comment, generally, about the attributes of a laboratory accreditation
program as it relates to enforcement testing.
In response, DOE generally received comments supporting some type
of broad accreditation for laboratories DOE uses to enforcement test
covered products and covered equipment. For example, Earthjustice
commented that accreditation should be required for all labs testing
covered products and equipment. (Earthjustice, No. 83.1 at p. 1) UL
stated its support for laboratory accreditation through the ISO/IEC
17025:2005 process. UL further commented that adoption of an ISO/IEC
17025:2005 requirement will improve initial product quality. (UL, No.
60.1 at p. 2) Similarly, IAPMO R&T commented that the laboratory used
for determining compliance in enforcement actions should meet the ISO/
IEC 17025:2005 requirements. (IAPMO R&T, No. 36.1 at p. 2)
Additionally, the Natural Resources Defense Council, the Appliance
Standards Awareness Project, the National Consumer Law Center, and the
Northeast Energy Efficiency Partnership submitted a joint comment
supporting laboratory accreditation for enforcement testing. (NRDC,
ASAP, NCLC, and NEEP, No. 39.1 at p. 4)
As a result of the support to establish some type of laboratory
accreditation program for enforcement testing, DOE has taken the
initial steps towards this goal by requiring that any laboratory used
for enforcement testing by DOE be lab accredited to ISO/IEC 17025:2005.
DOE believes this requirement, while limiting the laboratories DOE
could use for potential enforcement testing, will provide interested
parties with additional reassurance in the robustness and accuracy of
the test results. DOE will continue to consider additional
accreditation requirements, including test procedure-specific
requirements, in the next certification, compliance, and enforcement
rulemaking.
10. Enforcement for Imports and Exports
In the September 2010 NOPR, DOE proposed to modify the label on
exported products that do not comply with the applicable energy
conservation standard to read ``NOT FOR SALE IN THE UNITED STATES'' to
make it clear that those products are not for distribution in commerce
in the United States. Additionally, DOE sought comments on how to
modify its certification, compliance, and enforcement provisions to
more effectively enforce at the border.
In today's final rule, the Department is modifying its proposed
label requirement for exported products to read ``NOT FOR SALE FOR USE
IN THE UNITED STATES.'' The Department believes this new language makes
clear that the labeled item cannot be sold or distributed in the United
States for ultimate use in the United States--which is what the statute
requires--while incorporating commenters' suggestions that the label
explicitly state ``NOT FOR USE IN THE UNITED STATES.'' (See AWE, No.
38.1 at p. 3; NEMA, No. 85.1 at p. 4; Baldor Electric, Public Meeting
Transcript, No. 103 at p. 317; Rheem, No. 79.1 at p. 6; GE Prolec, No.
95.1 at p. 9) As NEMA explained in its comment, this change to the
language will account for the fact that ``the commercial process often
involves sale to a U.S. based company for subsequent export.'' (NEMA,
No. 85.1 at p. 4). The Department declines to adopt the suggestions
from ALS that the label should state ``EXPORT,'' and from Schneider
Electric that we should use the term ``Installation'' instead of
``Sale.'' (ALS, No. 66.1 at p. 5; Schneider Electric, No. 63.1 at p. 3)
To enforce compliance with the energy efficiency regulations at the
border, the Department believes it is essential to include language on
the label clearly indicating the product must not be sold for use in
the U.S.
With regard to DOE's question in the September 2010 NOPR on how to
modify its regulations to more effectively enforce at the border, the
Department received several comments recommending that DOE develop
documentation and labeling requirements for determining compliance. For
example, GE Prolec recommended that DOE provide additional
documentation guidelines for import reviews by U.S. Customs and Border
Protection (CBP), since it would be extremely difficult for CBP to
determine if a distribution transformer was compliant from only a
visual perspective. (GE Prolec, No. 95.1 at p. 9) Additionally, GE
Prolec suggested DOE adopt some sort of a labeling requirement, such as
a symbol, for commercial products that would explicitly state that it
was compliant with the energy efficiency regulations. (GE Prolec,
Public Meeting Transcript, No. 103 at pp. 312-314) Similarly, the NEMA
Transformer Section recommended that DOE adopt a program, akin to the
CC number system used for motor manufacturers, that would indicate to
CBP that the product comes from a source that has complied with the
certification and compliance requirements of the DOE. (NEMA Transformer
Section, No. 84.1 at p. 16) For Medium-Voltage Dry-Type and Liquid-Fill
Distribution Transformers, the NEMA Transformers Section proposed
requiring a ``Circle E'' to be placed on all products tested and
certified to indicate compliance with the energy conservation
standards. (NEMA Transformer Section, No. 84.1 at p. 16)
The Department agrees that it may be beneficial to adopt some type
of documentation to verify compliance and will consider these comments
in its ongoing discussions with CBP. The Department declines to adopt
commenters' suggestions regarding labeling for distribution
transformers at this time. DOE questions the value of CC numbers
assigned to motor manufacturers and does not wish to extend this
practice to distribution transformers. We do not adopt any type of
labeling requirement, including placement of a ``Circle E'' on a
product, at this time. While DOE continues to work with CBP for
effective enforcement of the energy conservation standards at the
border, any labeling requirement DOE would adopt would need to be
established in coordination with CBP, as CBP is be the agency that has
the authority to deny entrance of any products that are not in
compliance with the energy conservation standards.
Other commenters generally suggested that DOE develop some type of
enforcement program with CBP to conduct inspections at the port. (See
NEMA Motor & Generator Section, No.
[[Page 12440]]
84.1 at p. 22) For example, the NEMA Lamp Section suggested that DOE
work with CBP to determine when regulated products are being imported,
particularly to identify companies without a significant brand presence
in the U.S. and who may not be familiar with U.S. energy regulations.
(NEMA, No. 84.1 at p. 31) The NEMA Lamp Section also recommended that
CBP set up a system to assure that products imported comply with DOE
regulations. Specifically, NEMA suggested an audit system to follow up
with the importer of record to review test reports from a NVLAP
accredited lab. (NEMA, No. 84.1 at p. 31) Further, the Office of Energy
Efficiency, Natural Sources Canada (NRCAN) recommended that, similar to
the requirements of the Canadian Border Services Agency, DOE may want
to work with CBP to require that a manufacturer provide to CBP certain
data elements as it imports a product, including the purpose of import
for the product. (NRCAN, Public Meeting Transcript, No. 103 at pp. 315-
317)
As previously stated, the Department is currently working with CBP
on ways to ensure effective enforcement of the Federal energy
efficiency regulations at the border and will take commenters'
suggestions into consideration in developing any new practices with
CBP.
Lastly, regarding specific changes to the regulatory text proposed
in the September 2010 NOPR, NEMA recommended that DOE revise its
proposed language in the imported and exported products rule in the
proposed sections 429.25-26. (NEMA, No. 84.1 at pp. 4-5) NEMA asserted
that DOE should make clear that the reference to ``this part'' in
proposed sections 429.25 and 429.26 refers not only to Part 429, but
also Parts 430 and 431. (NEMA, No. 84.1 at p. 4) NEMA additionally
commented that DOE make explicit in proposed section 429.25(b) that
there is an exception for a product imported for export. (NEMA, No.
84.1 at p. 5) The Department agrees with NEMA regarding the reference
to ``this part'' in proposed sections 429.25-26 and revises these
sections in today's final rule sections 429.5 and 429.6 to include not
only Part 429, but also Parts 430 and 431. With respect to NEMA's
comment on proposed section 429.25(b), however, DOE believes that no
change is needed. The existing text already reflects that there is an
exception for a product imported for export, and, of course, section
429.6 specifically addresses exported products.
J. Adjudication
1. Prohibited Acts
In the September 2010 NOPR, DOE proposed 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. In addition, the Department
proposed to revise its regulations to make clear that the following
violations would also constitute a prohibited act subject to
enforcement action: (1) A failure to test any covered product or
covered equipment subject to any of the conservation standards,
including deliberate use of controls or features in such product or
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; (2) a manufacturer or private labeler's distribution in
commerce of a basic model after a notice of noncompliance determination
has been issued; and (3) the occurrence of a knowing misrepresentation.
DOE received comments from various member sections of NEMA on its
proposed enforcement steps. In particular, the NEMA Motor and Generator
Section requested clarification that not testing a basic model is not a
violation when the efficiency of the basic model has been certified
under an AEDM or certification program. (NEMA, No. 85.1 at p. 26) On
this point, the Department clarifies that a basic model must be tested
in accordance with a DOE test procedure and regulations, which includes
sampling plans and alternative methods of testing, to be properly
certified. Thus, if a manufacturer is using an AEDM to certify a basic
model, then, so long as the manufacturer has substantiated and applied
the AEDM properly in accordance with DOE regulations, there is no
violation.
The NEMA Motor and Generator Section also commented that DOE should
permit a grace period between the time of issuance of a notice of
noncompliance determination and the time at which distribution must be
fully stopped, since distribution of a noncompliant electric motor may
need to be stopped at several locations. Id. DOE declines to adopt such
a grace period, because EPCA, on its face, clearly prohibits a
manufacturer from distributing a noncompliant product. As a matter of
law, once a manufacturer receives a notice of noncompliance, the
manufacturer must immediately discontinue its sales of the noncompliant
product.
Additionally, the NEMA Lamp Section and NEMA Lamp Ballast Section
stated that while they accept the need for enforcement steps in cases
of knowing misrepresentation, a high level of confidence should be
required to establish this and the enforcement standard would have to
acknowledge industry and regulatory tolerances. (NEMA, No. 85.1 at pp.
38, 52) These Sections also noted that the sampling provisions can
result in an under-representation of the true performance
characteristic and expressed concern that this would be considered a
knowing misrepresentation. Id. The NEMA Lamp Section and NEMA Lamp
Ballast Section further questioned DOE's authority to pursue this type
of relief against false and misleading statements under EPCA,
recommending instead that the FTC has some authority for this type of
enforcement under the FTC Act. Id.
Today's rule clarifies that a knowing misrepresentation of the
efficiency of a product in a required certification report to the
Department is a violation under EPCA. Pursuant to EPCA, DOE has the
authority to require that manufacturer submissions are both accurate
and provided in accordance with its regulations. (See 42 U.S.C.
6302(a)(3).) A failure to do so is a prohibited act under EPCA and DOE
rules and is subject to enforcement action. A contrary reading would
substantially undermine the purpose of the certification and compliance
requirements in the first place--to ensure that all covered products
distributed in commerce comply with the applicable energy conservation
standards and have been tested as prescribed by the rules. The
Department also wishes to clarify that a conservative rating is not a
misrepresentation. As long as the tested performance of the product is
at least as good as its certified rating, a knowing misrepresentation
will not have occurred. Rather, a misrepresentation occurs when a
manufacturer certifies a product it knows to be noncompliant or when a
manufacturer certifies a value it knows cannot be supported by test
data. Of course, separate from an EPCA violation, such conduct is also
prohibited by 18 U.S.C. 1001, which prohibits knowingly making false
statements to the Federal Government.
[[Page 12441]]
2. Penalties
In the September 2010 NOPR, the Department proposed to revise its
regulations to state clearly that for certification requirement
violations, per statutory authority and DOE guidance, the Department
would calculate penalties based on each day a manufacturer distributes
each basic model in commerce in the United States without having
submitted a certification report. Additionally, DOE proposed to
explicitly state in its regulations that, consistent with its guidance,
it would 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. In today's final rule, the Department
clarifies its penalty procedure. Further, the Department determines not
to add to its regulation the specific factors DOE takes into
consideration when assessing civil penalties, as proposed in the
September 2010 NOPR.
The Department has determined that it will not adopt its proposal
to list explicitly in its regulations the factors that DOE takes into
consideration in assessing civil penalties. The Department's previously
issued Guidance on the Imposition of Civil Penalties for Violations of
EPCA Standards and Certification Obligations (Penalty Guidance),
available at http://www.gc.energy.gov/documents/Penalty_Guidance_5_7_2010_final_(1).pdf, sets forth the Department's approach to the
imposition of penalties for violations of DOE's standards and
certification requirements. This guidance provides ample notice to
regulated entities and makes more transparent the process by which DOE
calculates penalties. Since this guidance already lists the factors
that DOE will consider in calculating a penalty, repeating these
factors in the Department's regulations would be duplicative.
Although we are not adopting this provision, the Department has
considered comments on DOE's proposal in light of the existing Penalty
Guidance. For example, Earthjustice suggested that, to make the
assessment of penalties fairer, DOE should use the manufacturer's
markup across the industry for a product to calculate how much a
manufacturer has benefitted from selling a noncompliant product and
then take that into consideration in developing a penalty amount.
(Earthjustice, Public Meeting Transcript, No. 103 at pp. 268-269) The
Department agrees with Earthjustice and will amend its Penalty Guidance
to include a manufacturer's markup data as one of the factors the
Department may consider in developing a penalty amount.
A few parties objected to some of the factors listed in DOE's
Penalty Guidance. Specifically, American Panel stated that certain
factors DOE considers in assessing civil penalties, namely the size of
violator's business and violator's ability to pay, have merit but could
lead to unequal enforcement. (American Panel, No. 59.1 at p. 3) The
NEMA Motor & Generator Section similarly commented that penalties
should be the same for any violator, regardless of size or ability to
pay (NEMA, No. 85.1 at p. 26) The Department is mindful of such
concerns and wishes to reassure parties that it will balance concerns
of fairness and equity in the assessment of penalties to achieve
deterrence and encourage timely resolution of any instances of non-
compliance. While DOE will look at a company's size and their ability
to pay, this will just be one factor among others from which the
Department determines the appropriate penalty in any given case.
Interested parties also suggested including additional penalties
for frivolous claims. Specifically, the NEMA Motor & Generator Section
recommended that a penalty be assessed on anyone who submits a
frivolous claim about a violation which is found to be untrue. Id.
American Panel also suggested there should be some sort of penalty for
frivolous turn-in, so that regulated entities are deterred from turning
in their competitors without merit. (American Panel, Public Meeting
Transcript, No. 103 at pp. 277-278) The Department recognizes
commenters' concerns and shares the desire to prevent the filing of
frivolous complaints. However, DOE does not have the authority under
EPCA to assess penalties for frivolous claims. Under the statute, the
Department may only assess penalties for specified prohibited acts, and
frivolous claims do not fit into any of these prohibitions. The
Department will, however, exercise its discretion in initiating
enforcement actions and will consider the source of the complaint and
the Department's prior experience with involved parties in making such
decisions.
Lastly, with regard to distribution transformers, Schneider
Electric commented that the language in section 429.55 relating to the
assessment of civil penalties should be modified from ``each day of
noncompliance'' to ``each day energized'' since the distribution
transformer can sit un-energized for months. (Schneider Electric, No.
63.1 at pp. 4-5) The Department understands that products may be used
or not used in a variety of ways once distributed in commerce and that
a distribution transformer may be distributed in commerce but not
energized for some periods of time. But EPCA prohibits the distribution
in commerce of noncompliant products, and this cannot turn on whether
and how the product is used or energized once sold. Therefore, DOE
declines to adopt Schneider Electric's proposal.
3. 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 proposed in the
September 2010 NOPR 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. DOE
received no comments in opposition to this proposal and is including
this requirement that allows for third-party certification testing for
noncompliance in today's final rule.
4. Compromise and Settlement
In the September 2010 NOPR, the Department proposed to outline the
steps to be taken by both parties (DOE and respondent) once a
compromise or settlement offer has been made. No interested parties
opposed this proposal, and the Department is including language
outlining the process for compromising or settling a penalty amount
assessed under its regulations in today's final rule.
K. Waivers
DOE also addressed the possibility of establishing a mandatory
waiver requirement in the September 2010 NOPR. 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 Department received comments in support of a mandatory waiver
requirement from NRDC, the Appliance Standards Awareness Project,
[[Page 12442]]
Consumers Union, NEEA and AWE (NRDC, No. 39.1 at p. 6; Appliance
Standards Awareness Project, Public Meeting Transcript, No. 103 at pp.
34-35; Consumers Union, No. 74.1 at p. 5; NEEA, No. 67.1 at p. 3; AWE,
No. 38.1 at p. 2) For example, NRDC recommended that DOE require
manufacturers to report to DOE any instance where the manufacturer
knows or has reason to know that a product uses significantly more
energy in normal, real-world performance than as reported in its
certification for such product using the approved test procedure.
(NRDC, No. 39.1 at p. 6) In such cases, NRDC recommended that DOE
establish a protocol for consulting with the manufacturer to determine
if a waiver is appropriate. Id. Additionally, the Appliance Standards
Awareness Project and Consumers Union generally commented that the
number of manufacturers requesting waivers is a good indicator that the
test procedures being used are out-of-date, and that such a practice
would alert DOE to the need to reexamine the relevant rule. (Appliance
Standards Awareness Project, Public Meeting Transcript, No. 103 at pp.
34-35; Consumers Union, No. 74.1 at p. 5)
Although various commenters supported a mandatory waiver
requirement, DOE is not adding such a requirement to its final rule.
While DOE appreciates that such a requirement may serve to prevent
manufacturers from deliberately circumventing the test procedures, DOE
believes that its existing regulations already provide adequate
protections against such circumvention. DOE notes that coverage of a
product is not dependent upon whether there is a test procedure that
can test a product. Thus, regardless of whether a waiver is obtained
for a product that is not covered by a test procedure, a manufacturer
must still meet the required energy conservation standard for the
product if it is a covered product under DOE's regulatory authority.
Consequently, DOE has multiple processes to address the testing
concerns that are not explicitly addressed by DOE's test procedure.
First, manufacturers can submit test procedure related questions
through DOE's Test Procedure Guidance process. See http://www1.eere.energy.gov/guidance/default.aspx?pid=2&spid=1 for additional
information. Alternatively, DOE's regulations allow manufacturers to
apply for a waiver when a manufacturer determines that a given basic
model contains one or more design features that prevent testing in
accordance with DOE's test procedure. Because new models that cannot be
tested using the existing test procedure must obtain a waiver before
they are sold, DOE must do better in processing waivers quickly and
appropriately. The Department renews its commitment to act swiftly on
waiver requests and to update our test procedures promptly to address
issues raised by waivers. The Department is also adding an electronic
method of submission ([email protected]) and revising the
mailing address in today's final rule. Second, DOE recognizes that
product innovations will always outpace DOE's rulemaking efforts. Thus,
to encourage waivers and prevent the Department's administrative waiver
process from delaying or deterring the introduction of novel,
innovative products into the marketplace, DOE, as a matter of policy,
will refrain from enforcement actions related to a waiver request that
is pending with the Department.
L. Additional Product Specific Issues
1. Entity Responsible for Certification and Compliance for Walk-In
Coolers or Freezers (WICFs)
In the January WICF Test Procedure NOPR, DOE proposed to have a
separate test procedure for the WICF envelope and WICF refrigeration
system. 75 FR 186. Due to the separate test procedures for each of the
components being considered by the Department, DOE explored the idea
that the ``manufacturer'' of an entire walk-in system (i.e., envelope
and refrigeration system combined) could be a third party assembler
(i.e., essentially a contractor who assembles the walk-in from the
separate components in the field). The third party assembler may even
be the end-user or owner of the equipment.
DOE received a number of comments about this proposed definition in
the January WICF Test Procedure NOPR. DOE addressed these comments in
the September 2010 NOPR, where DOE proposed that the ``manufacturer''
is the entity responsible for compliance with any DOE energy
conservation standard. 75 FR 56806. EPCA defines the term
``manufacture'' as ``to manufacture, produce, assemble, or import.''
(42 U.S.C. 6291(10)) DOE proposed in the September 2010 NOPR that the
term ``manufacturer'' be applied to the entity responsible for
designing and/or selecting the various components used in a WICF. 75 FR
56806.
Some stakeholders agreed with DOE's proposed definition of
manufacturer. Arctic Industries believes that the person who chooses
the specifications for a WIFC should be responsible for its efficiency.
(Arctic Industries, Public Meeting Transcript, No. 103 at p. 293) Kysor
stated that the installation of the components to create a complete
walk-in is accomplished by several different parties: a panel
installer, a refrigeration installer, and an electrical contractor, for
example. Due to the number of parties involved, Kysor agreed with DOE's
clarification of the entity responsible as the person who has control
of the completed walk-in and all of its components. (Kysor, No. 68.1 at
p. 3) American Panel agreed with the proposed definition but suggested
an addition. American Panel stated that the definition of
``manufacture'' should be modified to state the manufacturer of a WICF
means any person who specifies, manufactures, produces, assembles or
imports a WICF. American Panel also recommended that the definition of
manufacturer should include a food service consultant who prepares a
written specification of equipment to be provided on a project.
(American Panel, No. 59.1 at p. 4)
Other stakeholders stated that the installer should be involved in
WICF compliance. CrownTonka stated that they would be in favor of a
definition that held the assembler responsible for compliance, if the
definition encompassed the installer. CrownTonka explained that even if
components comply, a poor installation will not cause efficiency gains
to be realized. (EERE-2008-BT-STD-0015, CrownTonka, Public Meeting
Transcript, No. 44 at p. 323) Craig stated that only the installers,
who assemble the product in the field, can verify the energy usage for
WICFs. (Craig, Public Meeting Transcript, No. 103 at p. 27) Craig
expressed concern that unless installers ensure the integrity of the
material that goes into a WICF, installers are excluded from the
definition of manufacturer even though they can have more impact on the
energy use of a WICF than the manufacturers because energy usage
depends on proper installation, which the manufacturer cannot control.
(Craig, Public Meeting Transcript, No. 103 at p. 25) CrownTonka,
Thermalrite, and ICS, also known as the Joint Comment, stated that
since the ``matched'' ratings are applied to remote condensing units
the certification should be done by the installer instead of the
manufacturer, which would increase the number of responsible parties.
(EERE-2008-BT-TP-0014, Joint Comment, No. 2.3.006 at p. 3) Hill Phoenix
stated that the responsibility for infiltration testing and compliance
should be placed on the installer. (EERE-2008-BT-TP-0014,
[[Page 12443]]
Hill Phoenix, No.2.3.007 at p. 2) Kysor recommended that certification
should be done by someone at the final site who approves the assembly
because energy use depends on the final assembly. (EERE-2008-BT-STD-
0015, Public Meeting Transcript, Kysor, No. 44 at p. 43)
Many stakeholders were concerned about the consequences of making
the assembler responsible for certifying the entire walk-in. NEEA
implied that the proposed definition of a WICF manufacturer was too
broad. (NEEA, Public Meeting Transcript, No. 103 at p. 295) NEEA also
stated that the current framework would be difficult to enforce (EERE-
2008-BT-TP-0014, NEEA, No. 2.3.005 at p. 1) CA State IOU recommended
that DOE carefully consider how this rule would be enforced before
proceeding under the proposed regulatory framework, which shifts
compliance documentation from tens of manufacturers to thousands of
contractors and designers, converts this appliance standard to a
building standard, and also shifts enforcement from DOE to over 3,000
building departments. (EERE-2008-BT-STD-0015, CA State IOU, No. 60 at
p. 4)
Specifically, some stakeholders expressed concern about the cost
burden that would be imposed upon the defined ``manufacturer.''
Heatcraft stated that it would be very burdensome for component
manufacturers to be responsible for testing different components that
they did not manufacture. (EERE-2008-BT-STD-0015, Public Meeting
Transcript, Heatcraft, No. 44 at p. 318) Craig stated that the
proposals in the September 2010 NOPR were overly burdensome, and costs
associated with the proposed regulations would likely put three
quarters of the manufacturers out of business. (Craig, Public Meeting
Transcript, No. 103 at p. 24) Manitowoc stated that if the assembler is
a local contractor, the contractor may not be in a position to handle
the responsibility of demonstrating compliance with an overall
performance standard. Manitowoc worried that assemblers may get out of
the business for fear of noncompliance consequences. (EERE-2008-BT-STD-
0015, Public Meeting Transcript, Manitowoc, No. 44 at p. 30) Hill
Phoenix stated that requiring manufacturer certification of installers
would place undue burden and cost on both manufacturers and consumers.
(EERE-2008-BT-TP-0014, Hill Phoenix, No. 1.2.023 at p. 1)
Various stakeholders suggested other compliance, certification, and
enforcement paths the DOE could follow. NWEEA and NPCC stated that one
way DOE could ensure compliance with these standards is by conventional
means at the manufacturer level for WICF system components. (EERE-2008-
BT-STD-0015, NWEEA and NPCC, No. 58 at p. 3) Kysor emphasized that
certification and compliance to a panel standard should be incumbent
upon the panel manufacturer. (Kysor, No. 68.1 at p. 1) Similarly,
Master-Bilt stated that door manufacturers should rate their own doors.
(EERE-2008-BT-TP-0014, Master-Bilt, No. 2.3.014 at p. 2) Both Kysor's
and Master-Bilt's comments are examples of a component level
certification approach. Hill Phoenix argued that the definition of
walk-in manufacturer should be clarified because in the current
definition, the compliance responsibility could be applied to several
entities, including the end user, consulting engineer/architect,
dealer, wholesaler, and component manufacturer. Hill Phoenix
recommended responsibility fall on three possible areas: The component
manufacturers, the installer, and the entity that specifies all of the
components of a walk-in envelope. Hill Phoenix also recommended that
DOE adopt a regulatory framework similar to NEEA's, in which the
component manufacturers are responsible for certifying their own
components, the installer is responsible for infiltration, and the
entity responsible for specifying the components would be responsible
for the efficiency of the whole envelope. (Hill Phoenix, No. 70.1 at p.
3; EERE-2008-BT-TP-0014, Hill Phoenix, No. 2.3.007 at p. 1) Kysor
stated that the manufacturer of each component should be responsible
for testing that component, but should have nothing to do with the
finished product in terms of compliance. (Kysor, No. 44 at p. 317,
Standards Preliminary Analysis Public Meeting) Kysor explained that the
overall installation is typically controlled or at least monitored by
the permitting agency, general contractor, building certification
official, or owner. These are the only parties in contact with all
involved component manufacturers and installers and are the only
parties in a position to have complete information from each component
manufacturer for compilation; therefore, they are the only parties that
could demonstrate compliance of the completed walk-in. (EERE-2008-BT-
STD-0015, Kysor, No. 53 at p. 2; EERE-2008-BT-STD-0015, Public Meeting
Transcript, Kysor, No. 44 at p. 326). Kysor also stated that DOE could
request test data and certification at any time from the supplier for
verification. Also, Kysor requested that the manufacturers be allowed
to witness any verification testing of their products because testing
labs do not always use the same equipment and often disagree on method
or interpretation. (Kysor, 68.1 at p. 3) AHRI suggested that DOE should
have two compliance paths: a prescriptive path and a performance path,
similar to the International Energy Conservation Code. (EERE-2008-BT-
STD-0015, Public Meeting Transcript, AHRI, No. 44 at p. 333)
Stakeholders suggested options like labeling and check sheets to
make certification, compliance and enforcement easier. Ingersoll Rand
stated that a program with a compliance check sheet would be good
because the installer would just have to make sure the walk-in
incorporates compliant components and would not have to do actual
testing. (EERE-2008-BT-STD-0015, Public Meeting Transcript, Ingersoll
Rand, No. 44 at p. 343) CrownTonka agreed with Ingersoll Rand's
suggestion and stated that it would be self-regulating. (EERE-2008-BT-
STD-0015, Public Meeting Transcript, CrownTonka, No. 44 at p. 343) NEEA
stated that the overall U-value can be enforced by attaching paperwork
to the shipped panels or a label similar to NFRC-rated fenestration
products. NEEA continued to suggest that labeled products would make it
easier for the manufacturer to calculate a performance metric. (EERE-
2008-BT-TP-0014, NEEA, 2.3.005 at p. 1; EERE-2008-BT-TP-0014, NEEA,
2.3.005 at p. 2) Joint Utilities, which comprises of Southern
California Edison, Pacific Gas & Electric, San Diego Gas & Electric,
Sacramento Municipal Utility District, and CA State IOU stated that
products intended for walk-ins must have certified ratings and have a
label and catalog information that indicates that these products are
approved for walk-ins. (EERE-2008-BT-TP-0014, Joint Utilities, 2.3.003
at p. 6; EERE-2008-BT-STD-0015, CA State IOU, No. 60 at p. 4) Carpenter
Co. suggested WICF components be labeled with their energy consumption
to streamline inspection and eliminate confusion when components are
from different manufacturers. (EERE-2008-BT-TP-0014, Carpenter Co.,
2.3.012 at p. 2) Adjuvant, Kysor, CrownTonka, and ICS all supported
labeling WICF components. (EERE-2008-BT-STD-0015; Public Meeting
Transcript, Adjuvant, No. 44 at p. 52; EERE-2008-BT-STD-0015, Public
Meeting Transcript, Kysor, No. 44 at p. 55; EERE-2008-BT-STD-0015,
CrownTonka and ICS, No. 56 at p. 1) NWEEA and NPCC suggested
[[Page 12444]]
component labels that could be checked by field inspectors as part of
the compliance process. (EERE-2008-BT-STD-0015, NWEEA and NPCC, No. 58
at p. 3)
Stakeholders also discussed who would enforce the WICF standards.
Manitowoc stated that a framework exists for oversight by health
inspectors and oversight of structural and other elements, and
recommended that DOE examine the existing framework to see if it can
support energy efficiency measures. (EERE-2008-BT-STD-0015, Public
Meeting Transcript, Manitowoc, No. 44 at p. 48) Adjuvant stated that in
its experience with the California Title 20 standard, building and
health inspectors could not inspect for energy efficiency because it
was impossible to tell if a walk-in complied with energy regulations
just by looking at it. (EERE-2008-BT-STD-0015, Public Meeting
Transcript, Adjuvant, No. 44 at p. 52) CA Codes and Standards stated
that building officials trying to evaluate a performance standard
(e.g., tradeoffs between components) would add cost to the States
because inspection would be more difficult. (EERE-2008-BT-STD-0015,
Public Meeting Transcript, CA C&S, No. 44 at p. 335) Joint Utilities
stated that the local jurisdictions may not have the technical
background to assure that compliant refrigeration equipment selections
have been made. (EERE-2008-BT-TP-0014, Joint Utilities, No. 2.3.003 at
p. 5) Craig recommended that enforcement could occur from sampling, and
field testing could ensure representative calculations. (EERE-2008-BT-
TP-0014, Craig, 2.3.013 at p. 6)
In light of the comments, DOE is modifying the definition of
manufacturer as it relates to WICFs in the final rule. DOE notes that
the current legislative design standards set forth by the Energy
Independence and Security Act of 2007 (EISA 2007) provide the framework
for a component-based approach since each design standard is based on
the performance of a given component of the WICF. Using this approach,
component manufacturers would be the entity responsible for certifying
compliance of the components they manufacture for walk-in applications
and ensuring compliance with the applicable standards for those
components. This system would follow Master-Bilt's suggestion that door
manufacturers certify their own doors. Since the current Federal
standards are component level standards, DOE is able to make
certification as conventional as possible, as suggested by NWEEA and
NPCC. Enabling component manufacturers to certify their own components
would also relieve testing and cost burden from the assembler, which s
an issue identified by Heatcraft, Craig, and Manitowoc, and Hill
Phoenix.
DOE also is specifying certain requirements for the manufacturers
or assemblers of complete walk-ins, whether they are assembled in a
factory or on-site. Even if the component manufacturers test and
certify their components to the Department as required by this final
rule, DOE must still ensure that only compliant components are used in
walk-ins. Therefore, DOE notes that definition of manufacturer being
adopted today extends the compliance responsibility to both the
component manufacturer and the assembler even though the component
manufacturer is the sole entity responsible for certification.
Assemblers of the complete walk-in system are required to use only
components that are certified to meet the Federal energy conservation
standards in the assembled walk-in. The manufacturer or assembler of
the complete walk-in does not have to certify each walk-in, as this
could be unduly burdensome. Rather, DOE anticipates that the market
will police itself and report noncompliant installations to the
Department, especially if component manufacturers educate their
purchasers about compliance requirements. This approach is very similar
to the compliance pathways proposed by Ingersoll Rand and CrownTonka,
Hill Phoenix, and Kysor.
In this final rule, DOE adopts a framework for enforcement in which
DOE will determine whether the manufacturer of the component or
manufacturer or assembler of the complete walk-in (or both) is
responsible for noncompliance on a case-by-case basis. If a component
manufacturer certifies a noncompliant component as compliant, or if the
component is not properly tested and certified, DOE would initiate an
enforcement action against the component manufacturer. If a walk-in is
assembled from non-compliant components, DOE would initiate an
enforcement action against the manufacturer or assembler of the
complete walk-in. This approach provides DOE with flexibility in
enforcing WICF standards. Although the outlined approach may not reduce
the number of manufacturers, as CA State IOU warned, this approach
clearly identifies who is responsible for compliance and certification,
and how the standard will be enforced.
2. Basic Model Definition for Walk-In Coolers or Freezers (WICFs)
In the January WICF Test Procedure NOPR, DOE proposed to define
``basic model'' as all units of a given type of walk-in equipment
manufactured by a single manufacturer, and--(1) With respect to
envelopes, which do not have any differing construction methods,
materials, components, or other characteristics that significantly
affect the energy consumption characteristics. (2) With respect to
refrigeration systems, which have the same primary energy source and
which do not have any differing electrical, physical, or functional
characteristics that significantly affect energy consumption. DOE
requested comment on this proposed approach. 75 FR 189.
In the September WICF Test Procedure SNOPR, DOE proposed that
envelope models grouped within a basic model could still differ in
terms of non-energy characteristics (e.g., color, shelving, metal skin
material type, exterior finish, or door kick plate) but any change to a
characteristic that affects normalized energy consumption (e.g. panel
systems, door systems, electrical components, and infiltration
reduction devices) would constitute a new basic model. (75 FR 55072)
Later in the September 2010 NOPR, DOE described the concept of
``basic model'' as a group of manufacturers' models that have
essentially identical energy consumption characteristics such that the
manufacturer would derive the efficiency rating for all models in the
group from testing sample units of these models. DOE anticipated that
applying this concept within the energy conservation program would
streamline certification and compliance and alleviate burden on
manufacturers by reducing the amount of testing they must do to rate
the efficiencies of their products. DOE asked for comment on how
manufacturers determine that a particular model constitutes a basic
model, and what modifications to an existing model would make it a new
basic model subject to the new model certification requirement. 75 FR
56798-56799.
Interested parties, including many manufacturers of walk-in coolers
and freezers, submitted comments on the basic model concept to both
this rulemaking docket and the WICF test procedure rulemaking docket.
For consistency, all comments pertaining to basic model of WICF will be
addressed in this rulemaking.
A large number of interested parties expressed concern that DOE's
typical approach of using the basic model
[[Page 12445]]
concept to categorize equipment would not be applicable to walk-in
coolers and freezers. American Panel, Arctic Industries, Bally, Craig
Industries, Heatcraft, and Hill Phoenix all commented that developing a
basic model definition or categorization could be difficult because
there are a vast number of variations in walk-in shape and size that
could each be a different basic model. (American Panel, Public Meeting
Transcript, No. 103 at p. 89; Arctic Industries, Public Meeting
Transcript, No. 103 at p. 67; EERE-2008-BT-TP-0014, Bally, No. 46 at p.
1; Craig Industries, Public Meeting Transcript, No. 103 at p. 59;
Heatcraft, No. 65.1 at p. 1; EERE-2008-BT-TP-0014, Hill Phoenix, No.
2.3.007 at p. 3) Bally, Hill Phoenix, and Kysor Panel pointed out that
walk-ins are often or, for some manufacturers, always engineered to
order or custom designed for a particular customer. (Bally, No. 46 at
p. 1; Kysor Panel, Public Meeting Transcript, No. 103 at p. 88; Kysor
Panel, No. 68.1 at p. 1; Hill Phoenix, No. 70.1 at p. 1; EERE-2008-BT-
TP-0014, Hill Phoenix, No. 2.3.007 at p. 1) Craig Industries, Heatcraft
and Master-Bilt commented that the basic model concept as defined by
DOE could cause a large testing burden on the WICF industry, and AHRI
urged DOE to adopt a practical definition of basic model to reduce
testing burden. (Craig Industries, Public Meeting Transcript, No. 103
at p. 60; Heatcraft, No. 65.1 at p. 1; EERE-2010-BT-TP-0014, Heatcraft,
No. 2.3.009 at p. 1; EERE-2010-BT-TP-0014, Master-Bilt, No. 2.3.014 at
p. 1; EERE-2010-BT-TP-0014, AHRI, No. 2.3.015 at p. 3) Craig Industries
and Hill Phoenix commented on the particular burden of testing on small
businesses under DOE's proposed basic model approach. (EERE-2010-BT-TP-
0014, Craig Industries, No. 2.3.013 at p. 2; H EERE-2010-BT-TP-0014,
Hill Phoenix, No. 2.3.007 at p. 3) Carpenter added that DOE's proposed
basic model concept would be costly and cumbersome, and that 75% of
WICF envelopes are custom designed. (EERE-2010-BT-TP-0014, Carpenter,
No. 2.3.012 at p. 1) American Panel, Hill Phoenix and Kysor Panel
further stated that model numbers are typically not used in the WICF
industry, so DOE should not define basic model for walk-ins in terms of
model numbers; American Panel further suggested tracking and keeping
records of WICF equipment by manufacturing number and date of
manufacture or date code. (American Panel, No. 59.1 at p. 4; Kysor
Panel, No. 68.1 at p. 1; Kysor Panel, Public Meeting Transcript, No.
103 at p. 88; Hill Phoenix, No. 70.1 at p. 1; EERE-2010-BT-TP-0014,
Hill Phoenix, No. 2.3.007 at p. 2) Craig Industries and Kysor Panel
added that instead of model number, WICFs are characterized by some
aspect of size. (Craig Industries, Public Meeting Transcript, No. 103
at p. 97; Kysor Panel, Public Meeting Transcript, No. 103 at p. 99) Not
all interested parties disagreed with the basic model concept: CPI
supported the basic model definition because it distinguishes envelopes
that vary in normalized energy consumption from those that differ only
cosmetically, and NRDC agreed that a basic model for WICF would provide
a baseline to compare envelopes from different manufacturers. (EERE-
2010-BT-STD-0015, CPI, No. 51 at p. 2; EERE-2010-BT-TP-0014, NRDC, No.
2.3.008 at p. 2)
Despite the supportive comments from CPI and NRDC, DOE notes that
the basic model concept is particularly suited for instances where
manufacturers make products that tend to be the same with respect to
energy consumption; in that case the basic model concept would reduce
the number of models that would need to be tested and certified.
However, the comments from AHRI, American Panel, Arctic Industries,
Bally, Craig Industries, Heatcraft, Hill Phoenix, Kysor Panel, and
Master-Bilt indicate that most walk-ins would tend to differ in energy
consumption, making each walk-in effectively a different basic model.
Therefore, DOE realizes the need to carefully consider its basic model
concept as it applies to walk-ins.
Many interested parties offered suggestions on how to improve the
basic model concept so that it could be applied to walk-ins. Some
suggested DOE adopt a calculation methodology or allow manufacturers to
use a calculation methodology to reduce the number of tests. Hill
Phoenix stated that allowing manufacturers to test a limited number of
models and then calculate performance of other models would reduce
burden. (EERE-2010-BT-TP-0014, Hill Phoenix, No. 2.3.007 at p. 3)
Arctic Industries and Craig Industries recommended a calculation or
formula based on size. (EERE-2010-BT-CE-0014, Public Meeting
Transcript, Arctic Industries, No. 103 at p. 67; EERE-2010-BT-TP-0014,
Craig Industries, No. 2.3.013 at p. 6) Heatcraft, Hill Phoenix and SBA
stated that manufacturers could calculate the energy consumption based
on component test results. (EERE-2010-BT-CE-0014, Heatcraft, No. 65 at
p. 1; EERE-2010-BT-CE-0014, Hill Phoenix, No. 70 at p. 1; EERE-2010-BT-
TP-0014, SBA, No. 2.3.011 at p. 2) Other interested parties,
specifically American Panel, Heatcraft, and SBA, agreed with an
approach DOE considered in the Test Procedure SNOPR to group basic
models into a more general ``family'' and only require manufacturers to
certify some basic models within the family. (75 FR 55072) (EERE-2010-
BT-TP-0014, American Panel, No. 2.3.001 at p. 1; EERE-2010-BT-TP-0014,
Heatcraft, No. 2.3.009 at p. 2; EERE-2010-BT-TP-0014, SBA, No. 2.3.011
at p. 3) The Joint Comment recommended that a basic model could
represent a family of models as long as a linear relationship could be
established with regard to energy consumption over the range of models.
(EERE-2010-BT-TP-0014, Joint Comment, No. 1.3.019 at p. 1) Heatcraft
also suggested that the family of models could include units of similar
design, construction, and function, which would reduce the number of
basic models and related equipment tests. (EERE-2010-BT-CE-0014,
Heatcraft, No. 65 at p. 1; EERE-2010-BT-TP-0014, Heatcraft, No. 2.3.009
at p. 1) American Panel and Bally suggested DOE allow manufacturers to
test one basic unit, with characteristics specified by DOE, for
purposes of certifying their walk-ins to DOE. (EERE-2010-BT-CE-0014,
Public Meeting Transcript, American Panel, No. 103 at p. 89; EERE-2010-
BT-CE-0014, Bally, No. 46 at p. 1)
The majority of interested parties, however, recommended that DOE
implement the basic model concept on a component level as this would
remove the difficulty of testing and/or certifying different size walk-
ins that would have different energy consumption. For instance,
American Panel, Craig Industries, Hill Phoenix, and Kysor Panel stated
that DOE should define a basic model of a panel which would be
distinguished on the basis of insulation value or panel thickness as
this characteristic is most closely indicative of the panel's
performance. (EERE-2010-BT-TP-0014, American Panel, No. 2.3.001 at p.
1; EERE-2010-BT-CE-0014, Public Meeting Transcript, American Panel, No.
103 at p. 89; EERE-2010-BT-CE-0014, Public Meeting Transcript, Craig
Industries, No. 103 at p. 60; EERE-2010-BT-CE-0014, Hill Phoenix, No.
70 at p. 1; EERE-2010-BT-TP-0014, Hill Phoenix, No. 2.3.007 at p. 2;
EERE-2010-BT-CE-0014, Kysor Panel, No. 68 at p. 1) Kysor stated that
basic model testing should consist of only an R-value test as it
distinguishes panels based only on R-value, but NEEA suggested that
basic models be defined on the basis of various factors including foam
type, panel thickness, panel skin type(s),
[[Page 12446]]
framing factor, and panel gasket and joining system. (EERE-2010-BT-CE-
0014, Public Meeting Transcript, Kysor Panel, No. 103 at p. 88 and 99;
EERE-2010-BT-CE-0014, Kysor Panel, No. 68 at p. 1; EERE-2010-BT-TP-
0014, NEEA, No. 2.3.005 at p. 7) Carpenter suggested implementing
individual WICF component certifications instead of the proposed
approach. (EERE-2010-BT-TP-0014, Carpenter, No. 2.3.012 at p. 1) AHRI
recommended that basic model be based on panel design characteristics
to minimize test burden. (EERE-2010-BT-TP-0014, AHRI, No. 2.3.015 at p.
2) Owens Corning agreed that one test could represent all the panels of
the same configuration. (EERE-2010-BT-TP-0014, Owens Corning, No.
2.3.002 at p. 2) NEEA also agreed with a model that does not rely on
walk-in size as that would simplify testing and reporting. (EERE-2010-
BT-TP-0014, NEEA, No. 2.3.005 at p. 9)
Although most comments about component certification specifically
pertained to panels, some interested parties commented on
refrigeration. AHRI urged DOE to group refrigeration models into the
same basic model even if there was some difference in energy
consumption. (EERE-2010-BT-TP-0014, AHRI, No. 2.3.015 at p. 2)
Heatcraft suggested a more detailed system whereby a basic model would
consist of units designed with interchangeable components such that
data from component testing and calculation could predict the energy
consumption of each unit with minimal verification testing necessary.
(EERE-2010-BT-TP-0014, Heatcraft, No. 2.3.009 at p. 1)
DOE agrees with the suggestion of applying the basic model concept
at the component level. Since DOE is adopting a component-level
approach to certification as described in the section above (i.e.,
definition of manufacturer), DOE is defining a basic model for each of
the key components of a walk-in, rather than defining a basic model for
the entire walk-in. DOE emphasizes that although basic model is defined
on the component level, it is still implemented in the same manner as
it is in the rest of DOE's appliance standards program; that is, basic
model consists of equipment that is essentially the same with respect
to energy consumption, efficiency, or other measure of performance. For
example, panels are grouped into basic models not just on the basis of
thickness or R-value as suggested by American Panel, Craig Industries,
Hill Phoenix, and Kysor Panel, but must consider various design
characteristics that could affect performance, as stated by AHRI and
NEEA, which could include, but may not be limited to, foam type, panel
thickness, and framing factor.
Some interested parties commented on recertification provisions.
Craig Industries stated that a restrictive definition of basic model
would discourage product improvement because of the corresponding
testing expense. (EERE-2010-BT-CE-0014, Public Meeting Transcript,
Craig Industries, No. 103 at p. 94) Kysor stated that recertification
should only be required if the R-value changes. (EERE-2010-BT-CE-0014,
Kysor, No. 68 at p. 1) DOE notes that recertification is only required
if a model is re-rated to claim new efficiency or if the model is
modified such that testing no longer supports the certified rating.
(See discussion in Section III.E.1.).
3. Basic Model and Manufacturer Model Number Reporting for Distribution
Transformers, WICFs, and External Power Supplies
As discussed above (Section III.B.), DOE is adopting most of the
reporting requirements that it proposed in the September 2010 NOPR. For
a few specific products, however, DOE is not adopting the requirement
to report the individual manufacturer model numbers. Commenters argued
against reporting manufacturer model numbers for distribution
transformers and WICFs. (See, e.g., NEMA, No. 84.1 at p. 8
(distribution transformers); Hill Phoenix, No. 70.1 at p. 1 (WICFs))
ABB suggested certification reports for distribution transformers
should be made on the basis of kVA groupings in lieu of model numbers.
(ABB, No. 53.1 at p. 4) GE Prolec argued that the concept of a
manufacturer's model does not fit the characteristics of the
distribution transformers industry. (GE Prolec, No. 95.1 at p. 2)
Distribution transformers not only do not have model numbers, but due
to the custom nature of the product, would have to report thousands of
models annually. (See GE Prolec, No. 96)
DOE is adopting a requirement for manufacturers of distribution
transformers to report the characteristics of the most and least
efficient basic models within the kVA grouping. The term ``kVA
grouping'' is defined to mean 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 or equal to 96 kV BIL). DOE notes that by
certifying using these broad groupings in lieu of reporting basic
models, the manufacturer assumes the risk that if one model in a kVA
grouping is found noncompliant, all of the models in that grouping are
noncompliant. In an enforcement action, DOE should be able to determine
all of the individual models that fall within a kVA grouping
certification using the required certification information and basic
model design and testing information. While DOE is not requiring a
requirement for manufacturers to tell DOE all the individual model
numbers that fall into a kVA grouping, DOE expects manufacturers to
make this information available, as necessary, during enforcement
actions.
Generally, the WICF comments in opposition to reporting
manufacturer model numbers were based on DOE's proposal, which required
certification of each basic model of completed WICF. (See, e.g., Hill
Phoenix, No. 70.1 at p. 1) Kysor, however, specifically opposed
requiring reporting of model numbers for the panel component of a WICF.
(Kysor, No. 68.1 at p. 2) Because DOE has adopted a reporting
requirement for the components of the WICF rather than for the
completed product, DOE does not have sufficient information to
determine whether reporting of model numbers for WICF components is
feasible. Accordingly, this final rule does not require WICF
manufacturers to report manufacturer model numbers. DOE intends to
revisit this issue in a future rulemaking. Upon the effective date
specified in this final rule, manufacturers of WICF components are
required to certify that each basic model of WICF component complies
with the applicable standard.
For external power supplies, DOE is adopting product-specific
regulatory text to permit certification on the basis of either a basic
model or a design family. Irrespective of the model grouping option
chosen, the certification report must include the manufacturer model
numbers covered by the basic model or the design family. DOE notes that
by certifying using the broader grouping of design family in lieu of
reporting basic models, the manufacturer assumes the risk that if one
model in a design family is found noncompliant, all of the models in
that grouping are noncompliant.
[[Page 12447]]
M. Additional Issues for Which DOE Sought Comment in September 2010
NOPR
1. Verification Testing
In the September 2010 NOPR, DOE requested comments on a variety of
issues relating to the establishment of a potential verification
program for covered products and covered equipment. Specifically, DOE
requested 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). DOE received numerous comments from a variety of
interested parties. 75 FR 56805. DOE plans to consider these comments
in the next certification, compliance, and enforcement rulemaking. DOE
continues to believe that a potential verification testing program may
be an integral part to meeting DOE's compliance and enforcement
objectives and will continue to accept comments relating to a DOE
verification program.
2. Voluntary Industry Certification Programs
DOE noted in the September 2010 NOPR that it was not proposing
modifications to DOE's provisions defining voluntary industry
certification programs (VICP) at that time. However, because the
Department is considering imposing a verification testing requirement
for all product and equipment types, which may entail changes to the
current provisions governing VICPs, DOE sought 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 requested
comment about 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.
3. Certification, Compliance and Enforcement for Electric Motors
Although DOE did not propose revisions to the requirements for
electric motors in the September 2010 NOPR, DOE noted in the NOPR that
it intends to propose to move and harmonize, where possible, the
certification, compliance, and enforcement provisions for electric
motors in new Part 429, as well as add an annual certification
requirement, in a second rulemaking. As such, DOE sought comment 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. With regard to an
annual certification requirement, DOE specifically sought 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.
Because DOE did not propose to amend any provisions with respect to
electric motors, DOE has made amendments to the language of sections
431.403 through 431.407. These amendments make it clear that the
general provisions in these sections relate to and maintain the status
quo for electric motors.
4. Revisions to Sampling Plans for Certification Testing
In the September 2010 NOPR, DOE noted that it 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 sought 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.
In response to these four broad categories, DOE received a plethora
of feedback and valuable suggestions for it to consider in the next
certification, compliance, and enforcement rulemaking. At that time,
DOE will further discuss and address the general issues that were noted
by interested parties in this docket.
IV. Procedural Issues and Regulatory Review
A. 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).
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (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 adopted in today's final rule 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 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
final rule, if promulgated, would not have a significant effect on a
substantial number of small entities. Therefore, DOE has prepared a
final regulatory flexibility analysis (FRFA) for this rulemaking. The
FRFA describes potential impacts on small businesses associated with
certification, compliance, and enforcement requirements on covered
products and covered equipment. This final rule includes changes made
to the FRFA in response to the comments from interested parties on the
September 2010 NOPR.
1. Reasons for the Final Rule
The reasons for this final rule are discussed elsewhere in the
preamble and not repeated here.
2. Objectives of and Legal Basis for the Final Rule
The objectives of and legal basis for the final 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).
[[Page 12448]]
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 final 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
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 lamp......................... 335110 <=1000 67
Intermediate base incandescent lamp....................... 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 equipment. 333415 <=750 1
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 machines.. 333311 <=500 6
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 manufactures to
be minimal. Many of the changes being adopted 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
[[Page 12449]]
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 final provisions require
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 final rule. This
estimate does not include any testing burden, which results from DOE's
test procedures. DOE has already considered this burden on all
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 adopting 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 adopting provisions 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 going 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, once
effective, and that is the subject of the 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. As part of the September
2010 NOPR, DOE proposed to renew the previously approved certification
and recordkeeping requirements, as well as submitted a new proposed
certification and recordkeeping requirements for all consumer products
and commercial and
[[Page 12450]]
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. DOE received OMB
approval for collecting certification, compliance, and enforcement
information for all covered products and covered equipment on February
3, 2011, under OMB control number 1910-1400. These products generally
include: Residential refrigerators, refrigerator-freezers, and
freezers, room air conditioners, central air conditioners and heat
pumps, residential water heaters, residential furnaces and boilers,
dishwashers, residential clothes washers, residential clothes dryers,
direct heating equipment, conventional cooking tops, conventional
ovens, microwave ovens, pool heaters, fluorescent lamp ballasts,
general service fluorescent lamps, general service incandescent lamps,
incandescent reflector lamps, faucets, showerheads, water closets,
urinals, ceiling fans, ceiling fan light kits, torchieres, medium base
compact fluorescent lamps, dehumidifiers, external power supplies,
candelabra base incandescent lamps, intermediate base incandescent
lamps, electric motors, commercial refrigerators, freezers, and
refrigerator-freezers, commercial heating, ventilating, and air-
conditioning equipment, commercial water heating equipment, automatic
commercial ice makers, commercial clothes washers, distribution
transformers, illuminated exit signs, traffic signal modules and
pedestrian modules, commercial unit heaters, commercial prerinse spray
valves, refrigerated bottled or canned beverage vending machines, walk-
in coolers and walk-in freezers, and metal halide lamp ballasts and
fixtures.
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.
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 final 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 final 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 regulations being adopted in today's final rule
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
[[Page 12451]]
http://www.gc.doe.gov). Today's final 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 final 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 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 regulatory action, which
adopts 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. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's final
rule.
List of Subjects
10 CFR Part 429
Confidential business information, Energy conservation, Household
appliances, Imports, Incorporation by reference, 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 February 7, 2011.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.
Scott Blake Harris,
General Counsel.
For the reasons stated in the preamble, DOE amends chapter II,
subchapter D, of title 10 of the Code of Federal Regulations, to read
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.
429.2 Definitions.
429.4 Materials incorporated by reference.
429.5 Imported products.
429.6 Exported products.
429.7 Confidentiality.
429.8 Subpoenas.
Subpart B--Certification
429.10 Purpose and scope.
429.11 General requirements applicable to units to be tested.
429.12 General requirements applicable to certification reports.
429.13 Testing requirements.
429.14 Residential refrigerators, refrigerator-freezers and
freezers.
429.15 Room air conditioners.
429.16 Central air conditioners and heat pumps.
429.17 Residential water heaters.
429.18 Residential furnaces.
429.19 Dishwashers.
429.20 Residential clothes washers.
429.21 Residential clothes dryers.
429.22 Direct heating equipment.
429.23 Conventional cooking tops, conventional ovens, microwave
ovens.
429.24 Pool heaters.
429.25 Television sets. [Reserved]
429.26 Fluorescent lamp ballasts.
429.27 General service fluorescent lamps, general service
incandescent lamps, and incandescent reflector lamps.
429.28 Faucets.
429.29 Showerheads.
429.30 Water closets.
429.31 Urinals.
429.32 Ceiling fans.
429.33 Ceiling fan light kits.
429.34 Torchieres.
429.35 Bare or covered medium base compact fluorescent lamps.
429.36 Dehumidifiers.
429.37 Class A external power supplies.
429.38 Non-class A external power supplies. [Reserved]
429.39 Battery chargers.
429.40 Candelabra base incandescent lamps and intermediate base
incandescent lamps.
429.41 Electric motors. [Reserved]
429.42 Commercial refrigerators, freezers, and refrigerator-
freezers.
429.43 Commercial heating, ventilating, air-conditioning (HVAC)
equipment.
429.44 Commercial water heating (WH) equipment.
429.45 Automatic commercial ice makers.
429.46 Commercial clothes washers.
429.47 Distribution transformers.
429.48 Illuminated exit signs.
429.49 Traffic signal modules and pedestrian modules.
429.50 Commercial unit heaters.
429.51 Commercial pre-rinse spray valves.
429.52 Refrigerated bottled or canned beverage vending machines.
[[Page 12452]]
429.53 Walk-in coolers and Walk-in freezers.
429.54 Metal halide lamp ballasts and fixtures.
429.70 Alternative methods for determining efficiency or energy use.
429.71 Maintenance of records.
Appendix A to Subpart B of Part 429--Student's t-Distribution Values
for Certification Testing
Subpart C--Enforcement
429.100 Purpose and scope.
429.102 Prohibited acts subjecting persons to enforcement action.
429.104 Assessment testing.
429.106 Investigation of compliance.
429.110 Enforcement testing.
429.114 Notice of noncompliance determination to cease distribution
of a basic model.
429.116 Additional certification testing requirements.
429.118 Injunctions.
429.120 Maximum civil penalty.
429.122 Notice of proposed civil penalty.
429.124 Election of procedures.
429.126 Administrative law judge hearing and appeal.
429.128 Immediate issuance of order assessing civil penalty.
429.130 Collection of civil penalties.
429.132 Compromise and settlement.
Appendix A to Subpart C of Part 429--Sampling Plan for Enforcement
Testing of Covered Products and Certain High-Volume Covered Equipment
Appendix B to Subpart C of Part 429--Sampling Plan for Enforcement
Testing of Covered Commercial Equipment and Certain Low-Volume Covered
Products
Appendix C to Subpart C 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, determination and enforcement of compliance of covered
products and covered equipment with the applicable conservation
standards set forth in parts 430 and 431 of this subchapter. 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. 429.2 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.
(b) The following definitions apply 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 Energy
Policy Conservation Act, as amended, hereinafter referred to as ``the
Act.''
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
found in this part or parts 430 or 431.
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.
Sec. 429.4 Materials incorporated by reference.
(a) General. We incorporate by reference the following standards
into Part 429. The material listed has been approved for incorporation
by reference by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Any subsequent amendment to a
standard by the standard-setting organization will not affect the DOE
regulations unless and until amended by DOE. Material is incorporated
as it exists on the date of the approval and a notice of any change in
the material will be published in the Federal Register. All approved
material is available for inspection at the National Archives and
Records Administration (NARA). For information on the availability of
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Also, this material is available for inspection at U.S.
Department of Energy, Office of Energy Efficiency and Renewable Energy,
Building Technologies Program, 6th Floor, 950 L'Enfant Plaza, SW.,
Washington, DC 20024, (202) 586-2945, or go to: http://www1.eere.energy.gov/buildings/appliance_standards/. Standards can be
obtained from the sources below.
(b) AHAM. Association of Home Appliance Manufacturers, 1111 19th
Street, NW., Suite 402, Washington, DC 20036, 202-872-5955, or go to
http://www.aham.org.
(1) ANSI/AHAM DW-1-1992, American National Standard, Household
Electric Dishwashers, approved February 6, 1992, IBR approved for Sec.
429.19.
(2) [Reserved]
(c) ISO. International Organization for Standardization, ch. de la
Voie-Creuse CP 56 CH-1211 Geneva 20 Switzerland, telephone +41 22 749
01 11, or go to http://www.iso.org/iso.
(1) International Organization for Standardization (ISO)/
International Electrotechnical Commission, (``ISO/IEC 17025:2005(E)''),
``General requirements for the competence of testing and calibration
laboratories'', Second edition, May 15, 2005, IBR approved for Sec.
429.110.
(2) [Reserved]
Sec. 429.5 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 parts 430 and 431, and is subject to the remedies of this part.
(b) Any covered product or covered equipment offered for
importation in violation of this part, or part 430 or 431, shall be
refused admission into the customs territory of the United States under
rules issued by the U.S. Customs and Border Protection (CBP) and
subject to further remedies as provided by law, except that CBP 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 CBP appropriate to ensure that
such covered product or covered equipment will not violate this part,
or part 430 or 431, or will be exported or abandoned to the United
States.
Sec. 429.6 Exported products.
This part, and parts 430 and 431, 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 is imported
for export;
(b) Such covered product or covered equipment or any container in
which it is enclosed, when distributed in commerce, bears a stamp or
label stating ``NOT FOR SALE FOR USE IN THE UNITED STATES''; and
(c) Such product is, in fact, not distributed in commerce for use
in the United States.
Sec. 429.7 Confidentiality.
(a) The following records are not exempt from public disclosure:
The brand name, and applicable model number(s), and the energy or water
rating submitted by manufacturers to DOE pursuant to Sec.
429.19(b)(13).
(b) Pursuant to the provisions of 10 CFR 1004.11(e), any person
submitting
[[Page 12453]]
information or data which the person believes to be confidential and
exempt by law from public disclosure should--at the time of
submission--submit:
(1) One complete copy, and one copy from which the information
believed to be confidential has been deleted.
(2) A request for confidentiality containing the submitter's views
on the reasons for withholding the information from disclosure,
including:
(i) A description of the items sought to be withheld from public
disclosure,
(ii) Whether and why such items are customarily treated as
confidential within the industry,
(iii) Whether the information is generally known by or available
from other sources,
(iv) Whether the information has previously been made available to
others without obligation concerning its confidentiality,
(v) An explanation of the competitive injury to the submitting
person which would result from public disclosure,
(vi) A date upon which such information might lose its confidential
nature due to the passage of time, and
(vii) Why disclosure of the information would be contrary to the
public interest.
(c) In accordance with the procedures established in 10 CFR
1004.11(e), DOE shall make its own determination with regard to any
claim that information submitted be exempt from public disclosure.
Sec. 429.8 Subpoena.
For purposes of carrying out parts 429, 430, and 431, the General
Counsel (or delegee), 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 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 parts 429, 430, or 431, the General Counsel
(or delegee) 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.
Subpart B--Certification
Sec. 429.10 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. 429.11 General sampling requirements for selecting 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, 344, 345 or 346 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 criteria
found in Sec. Sec. 429.14 through 429.54 of this subpart. 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 all individual models
represented by a given basic model must be the same.
(b) Unless otherwise specified, the minimum number of units tested
shall be no less than two (except where a different minimum limit is
specified in Sec. Sec. 429.14 through 429.54 of this subpart); and
Sec. 429.12 General requirements applicable to certification reports.
(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 or 431, and annually thereafter on or before the dates
provided in paragraph (e) of this section, shall submit a certification
report to DOE certifying 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. A certification report shall include a
compliance statement (see paragraph (c) of this section), and for each
basic model, the information listed in this paragraph (b):
(1) 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);
(3) Manufacturer's name and address;
(4) Private labeler's name(s) and address (if applicable);
(5) Brand name, if applicable;
(6) For each brand, the basic model number and the individual
manufacturer's model numbers covered by that basic model with the
following exceptions: For external power supplies that certify based on
design families, the design family model number and the individual
manufacturer's model numbers covered by that design family must be
submitted for each brand. For walk-in coolers, the basic model number
for each brand must be submitted. For distribution transformers, the
basic model number or kVA grouping model number (depending on the
certification method) for each brand must be submitted;
(7) Whether the submission is for a new model, a discontinued
model, a correction to a previously submitted model, data on a
carryover model, or a model that has been found in violation of a
voluntary industry certification program;
(8) The test sample size (i.e., number of units tested for each
basic model);
(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) Product specific information listed in Sec. Sec. 429.14
through 429.54 of this part.
(c) Compliance statement. 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 energy
conservation standard(s);
(2) All required testing has been conducted in conformance with the
applicable test requirements prescribed in parts 429, 430 and 431, as
appropriate, or in accordance with the terms of an applicable test
procedure waiver;
[[Page 12454]]
(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 Act, the regulations thereunder, and 18 U.S.C. 1001
which prohibits knowingly making false statements to the Federal
Government.
(d) Annual filing. All data required by paragraphs (a) through (c)
shall be submitted to DOE annually, on or before the following dates:
------------------------------------------------------------------------
Deadline for data
Product category submission
------------------------------------------------------------------------
Fluorescent lamp ballasts, Medium base compact Mar. 1.
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.
Residential water heater, Residential furnaces, May 1
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.
Residential dishwashers, Commercial prerinse spray June 1.
valves, Illuminated exit signs, Traffic signal
modules, Pedestrian modules, and Distribution
transformers.
Room air conditioners, Residential central air July 1.
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.
Residential refrigerators, Residential refrigerators- Aug. 1.
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.
Torchieres, Residential dehumidifiers, Metal halide Sept. 1.
lamp fixtures, and External power supplies.
Residential clothes washers, Residential clothes Oct. 1.
dryers, Residential direct heating equipment,
Residential cooking products, and Commercial
clothes washers.
------------------------------------------------------------------------
(e) New model filing. (1) In addition to the annual filing
schedule in paragraph (d) of this section, any new basic models must be
certified pursuant to paragraph (a) of this section before distribution
in commerce. A modification to a model that increases the model's
energy or water consumption or decreases its efficiency resulting in
re-rating must be certified as a new basic model pursuant to paragraph
(a) of this section.
(2) For general service fluorescent lamps or incandescent reflector
lamps: Prior to or concurrent with the distribution of a new basic
model each manufacturer shall submit an initial certification report
listing the basic model number, lamp wattage, and date of first
manufacture (i.e., production date) for that basic model. The
certification report must also state 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. Manufacturers of general service fluorescent lamps and
incandescent reflector lamps shall submit the certification report
required by paragraph (b) of this section within one year after the
first date of new model manufacture.
(3) For distribution transformers, the manufacturer shall 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.
(f) 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 the information specified in paragraphs (b)(1) through (b)(7)
of this section.
(g) 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 to
submit reports in accordance with the rules of this part. The third
party submitter must complete the compliance statement as part of the
certification report. Each manufacturer using a third party submitter
must have an authorization form on file with DOE. The authorization
form includes a compliance statement, specifies the third party
authorized to submit certification reports on the manufacturer's behalf
and provides the contact information and signature of a company
official.
(h) Method of submission. Reports required by this section must be
submitted to DOE electronically at http://www.regulations.doe.gov/ccms
(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. Manufacturers and third party submitters must
submit a registration form, signed by an officer of the company, in
order to obtain access to CCMS.
Sec. 429.13 Testing requirements.
(a) The determination that a basic model complies with an
applicable energy conservation standard shall be determined from the
values derived pursuant to the applicable testing and sampling
requirements set forth in parts 429, 430 and 431. 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) Where DOE has determined a particular entity is in
noncompliance with an applicable standard or certification requirement,
DOE may impose additional testing requirements as a remedial measure.
Sec. 429.14 Residential refrigerators, refrigerator-freezers and
freezers.
(a) Sampling plan for selection of units for testing.
[[Page 12455]]
(1) The requirements of Sec. 429.11 are applicable to residential
refrigerators, refrigerator-freezers and freezers; and
(2) For each basic model of residential refrigerators,
refrigerator-freezers, and freezers, a sample of sufficient size shall
be randomly selected and tested to ensure 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 greater
than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.003
or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.004
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.005
or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.006
(b) Certification reports.
(1) The requirements of Sec. 429.12 are applicable to residential
refrigerators, refrigerator-freezers and freezers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The annual
energy use in kilowatt hours per year (kWh/yr), total adjusted volume
in cubic feet (cu ft), and measured height of the unit.
(3) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following additional product-specific
[[Page 12456]]
information: 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.
Sec. 429.15 Room air conditioners.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to room air conditioners;
and
(2) For each basic model of room air conditioners, a sample of
sufficient size shall be randomly selected and tested to ensure 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 greater
than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.007
or,
(B) The upper 97\1/2\; percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.008
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.009
or,
(B) The lower 97\1/2\; percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.010
[[Page 12457]]
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to room air conditioners; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The energy
efficiency ratio (EER in British thermal units per Watt-hour (Btu/W-
h)), cooling capacity in British thermal units per hour (Btu/h), and
the electrical power input in watts (W).
Sec. 429.16 Central air conditioners and heat pumps.
(a) Sampling plan for selection of units for testing. (1) The
general requirements of Sec. 429.11 are applicable to central air
conditioners and heat pumps; and
(2)(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 a 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 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 greater than or equal to the higher of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.011
Or,
(2) The upper 90 percent confidence limit (UCL) of the true mean
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.012
and
(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 less than or equal
to the lower of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.013
Or,
(2) The lower 90 percent confidence limit (LCL) of the true mean
divided by 0.95, where:
[[Page 12458]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.014
(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 Seasonal Energy Efficiency Ratio
(SEER) and Heating Seasonal Performance Factor (HSPF) ratings in
accordance with paragraph (a)(2)(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 (a)(2)(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 (a)(2)(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 (a)(2)(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 (a)(2)(i)(A) and (a)(2)(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. 429.70(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
(a)(2)(i) of this section whose tested combination was entirely non-
ducted indoor units; or
(3) For multi-split systems composed entirely of ducted indoor
units, set equal to the system tested in accordance with paragraph
(a)(2)(i) of this section when the tested combination was entirely
ducted indoor units; or
(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 (a)(2)(i) of this section.
(iii) Whenever the representative values of the measures of energy
consumption, as determined by the provisions of paragraph (a)(2)(ii)(B)
of this section, do not agree within 5 percent of the energy
consumption as determined by actual testing, the 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.
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to central air conditioners and heat pumps; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) Residential central air conditioners: The seasonal energy
efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-
h)), the cooling capacity in British thermal units per hour (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), the manufacturer's model number of this ducted air mover
must be included among the model numbers listed on the certification
report.
(ii) Residential central air conditioning heat pumps: The seasonal
energy efficiency ratio (SEER in British thermal units per Watt-hour
(Btu/W-h)), the cooling capacity in British thermal units per hour
(Btu/h), the heating seasonal performance factor (HSPF in British
thermal units per Watt-hour (Btu/W-h)), 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), the model number of this ducted air mover must be
included among the model numbers listed on the certification report.
(iii) Small duct, high velocity air conditioners: The seasonal
energy efficiency ratio (SEER in British thermal units per Watt-hour
(Btu/W-h)) and the cooling capacity in British thermal units per hour
(Btu/h).
(iv) Small duct, high velocity heat pumps: The seasonal energy
efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-
h)), the heating seasonal performance factor (HSPF in British thermal
units per Watt-hour (Btu/W-h)), and the cooling capacity in British
thermal units per hour (Btu/h).
(iv) Space constrained air conditioners: The seasonal energy
[[Page 12459]]
efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-
h)) and the cooling capacity in British thermal units per hour (Btu/h).
(v) Space constrained heat pumps: The seasonal energy efficiency
ratio (SEER in British thermal units per Watt-hour (Btu/W-h)), the
coefficient of performance, and the cooling capacity in British thermal
units per hour (Btu/h).
(c) Alternative methods for determining efficiency or energy use
for central air conditioners and heat pumps can be found in Sec.
429.70 of this subpart.
Sec. 429.17 Residential water heaters.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to residential water
heaters; and
(2) For each basic model of residential water heaters, a sample of
sufficient size shall be randomly selected and tested to ensure 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 greater
than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.015
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.016
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.017
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.018
[[Page 12460]]
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to residential water heaters; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The energy
factor (EF), rated storage volume in gallons (gal), first hour rating
(maximum gallons per minute), and recovery efficiency (percent).
Sec. 429.18 Residential furnaces.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to residential furnaces;
and
(2) (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 randomly selected and tested to
ensure 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 greater
than or equal to the higher of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.019
Or,
(2) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.020
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 less than or equal to the
lower of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.021
Or,
(2) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.022
[[Page 12461]]
(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
randomly selected and tested to ensure 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 greater
than or equal to the higher of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.023
Or,
(2) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.024
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 less than or equal to the
lower of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.025
Or,
(2) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.026
(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 randomly selected and tested to ensure 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 greater
than or equal to the higher of:
(1) The mean of the sample, where:
[[Page 12462]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.027
Or,
(2) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.028
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 less than or equal to the
lower of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.029
Or,
(2) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.030
(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 ensure 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 greater
than or equal to the higher of:
(i) The mean of the sample, where:
[[Page 12463]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.031
Or,
(ii) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.032
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 less than or equal to the lower of:
(i) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.033
Or,
(ii) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.034
(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
[[Page 12464]]
of the capacities of the units of the sample.
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to residential furnaces; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) Residential furnaces and boilers: The annual fuel utilization
efficiency (AFUE) in percent (%) and the input capacity in British
thermal units per hour (Btu/h).
(ii) For cast-iron sectional boilers: The type of ignition system
for gas-fired steam and hot water boilers no later than September 1,
2012.
(3) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following additional product-specific information: For
cast-iron sectional boilers: a declaration of whether certification is
based on linear interpolation or testing. For hot water boilers, a
declaration that the manufacturer has incorporated the applicable
design requirements no later than September 1, 2012.
Sec. 429.19 Dishwashers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to dishwashers; and
(2) For each basic model of dishwashers, a sample of sufficient
size shall be randomly selected and tested to ensure 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 greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.035
Or,
(B) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.036
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 less than or equal to the
lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.037
Or,
(B) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[[Page 12465]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.038
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to dishwashers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The annual
energy use in kilowatt hours per year (kWh/yr) and the water factor in
gallons per cycle.
(3) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following additional product-specific information: the
capacity in number of place settings as specified in ANSI/AHAM DW-1
(incorporated by reference, see Sec. 429.4), presence of a soil sensor
(if yes, the number of cycles required to reach calibration), and the
water inlet temperature used for testing in degrees Fahrenheit
([deg]F).
Sec. 429.20 Residential clothes washers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to residential clothes
washers; and
(2) For each basic model of residential clothes washers, a sample
of sufficient size shall be randomly selected and tested to ensure
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 greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.039
Or,
(B) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.040
and
(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 less than or equal to the
lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.041
Or,
(B) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[[Page 12466]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.042
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to residential clothes washers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The modified
energy factor (MEF) in cubic feet per kilowatt hour per cycle (cu ft/
kWh/cycle) and the capacity in cubic feet (cu ft). For standard-size
residential clothes washers, a water factor (WF) in gallons per cycle
per cubic feet (gal/cycle/cu ft).
Sec. 429.21 Residential clothes dryers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to clothes dryers; and
(2) For each basic model of clothes dryers a sample of sufficient
size shall be randomly selected and tested to ensure 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 greater
than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.043
Or,
(B) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.044
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.045
Or,
(B) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[[Page 12467]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.046
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to clothes dryers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The energy
factor in pounds per kilowatt hours (lb/kWh), the capacity in cubic
feet (cu ft), and the voltage in volts (V) (for electric dryers only).
Sec. 429.22 Direct heating equipment.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to direct heating
equipment; and
(2) (i) For each basic model of direct heating equipment (not
including furnaces) a sample of sufficient size shall be randomly
selected and tested to ensure 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 greater
than or equal to the higher of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.047
Or,
(2) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.048
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 less than or equal to the
lower of:
(1) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.049
Or,
(2) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[[Page 12468]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.050
(ii) 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.
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to direct heating equipment; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: Direct
heating equipment, the annual fuel utilization efficiency (AFUE) in
percent (%), the mean input capacity in British thermal units per hour
(Btu/h), and the mean output capacity in British thermal units per hour
(Btu/h). Note, vented hearth heaters as defined in Sec. 430.2 must
report no later than April 16, 2013.
Sec. 429.23 Conventional cooking tops, conventional ovens, microwave
ovens.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to conventional cooking
tops, conventional ovens and microwave ovens; and
(2) For each basic model of conventional cooking tops, conventional
ovens and microwave ovens a sample of sufficient size shall be randomly
selected and tested to ensure 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 greater
than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.051
Or,
(B) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.052
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.053
[[Page 12469]]
Or,
(B) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.054
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to conventional cooking tops, conventional ovens and
microwave ovens; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The type of
pilot light and a declaration that the manufacturer has incorporated
the applicable design requirements.
Sec. 429.24 Pool heaters.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to pool heaters; and
(2) For each basic model of pool heater a sample of sufficient size
shall be randomly selected and tested to ensure 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
less than or equal to the lower of:
(i) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.055
Or,
(ii) The lower 97\1/2\ percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.056
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to pool heaters; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The thermal
efficiency in percent (%) and the input capacity in British thermal
units per hour (Btu/h).
Sec. 429.25 Television sets. [Reserved]
Sec. 429.26 Fluorescent lamp ballasts.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to fluorescent lamp
ballasts; and
(2) For each basic model of fluorescent lamp ballasts, a sample of
sufficient size, not less than four, shall be randomly selected and
tested to ensure 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
greater than or equal to the higher of:
(A) The mean of the sample, where:
[[Page 12470]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.057
Or,
(B) The upper 99 percent confidence limit (UCL) of the true mean
divided by 1.01, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.058
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.059
Or,
(B) The lower 99 percent confidence limit (LCL) of the true mean
divided by 0.99, where
[GRAPHIC] [TIFF OMITTED] TR07MR11.060
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to fluorescent lamp ballasts; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: 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.
Sec. 429.27 General service fluorescent lamps, general service
incandescent lamps, and incandescent reflector lamps.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to general service
fluorescent lamps, general service incandescent lamps and incandescent
reflector lamps; and
(2)(i) For each basic model of general service fluorescent lamp,
general service incandescent lamp, and incandescent reflector lamp,
samples of production lamps shall be obtained from a 12-month period,
tested, and the results averaged. 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
[[Page 12471]]
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.061
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by .97, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.062
(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
(a)(2)(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 less than or
equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.063
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by .97, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.064
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to general service fluorescent lamps, general service
incandescent lamps and incandescent reflector lamps; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) General service fluorescent lamps: the testing laboratory's
National Voluntary Laboratory Accreditation Program (NVLAP)
identification number or other NVLAP-approved accreditation
identification, production dates of the units tested, the 12-month
average lamp efficacy in lumens per watt (lm/W),
[[Page 12472]]
lamp wattage (W), correlated color temperature in Kelvin (K), and the
12-month average Color Rendering Index (CRI).
(ii) Incandescent reflector lamps: The laboratory's NVLAP
identification number or other NVLAP-approved accreditation
identification, production dates of the units tested, the 12-month
average lamp efficacy in lumens per watt (lm/W), and lamp wattage (W).
(iii) General service incandescent lamps: On or after the effective
dates specified in Sec. 430.32, the testing laboratory's National
Voluntary Laboratory Accreditation Program (NVLAP) identification
number or other NVLAP-approved accreditation identification, production
dates of the units tested, the 12-month average maximum rate wattage in
watts (W), the 12-month average minimum rated lifetime (hours), and the
12-month average Color Rendering Index (CRI).
(c) Test data. Manufacturers must include the production date codes
and the accompanying decoding scheme corresponding to all of the units
tested for a given basic model in the detailed test records maintained
under Sec. 429.71.
Sec. 429.28 Faucets.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to faucets; and
(2) For each basic model of faucet, a sample of sufficient size
shall be randomly selected and 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 the higher of:
(i) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.065
Or,
(ii) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.066
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to faucets; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The maximum
water use in gallons per minute (gpm) or, in the case of metering
faucets, gallons per cycle (gal/cycle) for each faucet and the flow
water pressure in pounds per square inch (psi).
Sec. 429.29 Showerheads.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to showerheads; and
(2) For each basic model of a showerhead, a sample of sufficient
size shall be randomly selected and tested to ensure that any
represented value of water consumption of a basic model for which
consumers favor lower values shall be greater than or equal to the
higher of:
(i) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.067
Or,
(ii) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.05, where:
[[Page 12473]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.068
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to showerheads; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The maximum
water use in gallons per minute (gpm) and the maximum flow water
pressure in pounds per square inch (psi).
(3) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following additional product-specific information: A
declaration that the showerhead meets the requirements of ASME/ANSI
A112.18.1M:1996.
Sec. 429.30 Water closets.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to water closets; and
(2) For each basic model of water closet, a sample of sufficient
size shall be randomly selected and tested to ensure that any
represented value of water consumption of a basic model for which
consumers favor lower values shall be greater than or equal to the
higher of:
(i) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.069
Or,
(ii) The upper 90 percent confidence limit (UCL) of the true mean
divided by 1.1, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.070
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to water closets; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The maximum
water use in gallons per flush (gpf).
Sec. 429.31 Urinals.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to urinals; and
(2) For each basic model of urinal, a sample of sufficient size
shall be randomly selected and tested to ensure that any represented
value of water consumption of a basic model for which consumers favor
lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.071
[[Page 12474]]
Or,
(ii) The upper 90 percent confidence limit (UCL) of the true mean
divided by 1.1, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.072
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to urinals; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The maximum
water use in gallons per flush and for trough-type urinals, the maximum
flow rate in gallons per minute (gpm) and the length of the trough in
inches (in).
Sec. 429.32 Ceiling fans.
(a) Sampling plan for selection of units for testing. The
requirements of Sec. 429.11 are applicable to ceiling fans.
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to ceiling fans; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The number
of speeds within the ceiling fan controls and a declaration that the
manufacturer has incorporated the applicable design requirements.
Sec. 429.33 Ceiling fan light kits.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to ceiling fan light kits;
and
(2) 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 randomly selected and
tested to ensure that--
(i) Any value of estimated energy consumption or other measure of
energy consumption of a basic model for which consumers would favor
lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.073
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.1, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.074
and
(ii) Any represented value of the efficacy or other measure of
energy consumption of a basic model for which consumers would favor
higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
[[Page 12475]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.075
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.9, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.076
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to ceiling fan light kits; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) Ceiling fan light kits with sockets for medium screw base
lamps: the rated wattage in watts (W) and the system's efficacy in
lumens per watt (lm/W).
(ii) Ceiling fan light kits with pin-based sockets for fluorescent
lamps: the rated wattage in watts (W), the system's efficacy in lumens
per watt (lm/W), and the length of the lamp in inches (in).
(iii) Ceiling fan light kits with any other socket type: the rated
wattage in watts (W) and the number of individual sockets.
(3) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following additional product-specific information: Ceiling
fan light kits with any other socket type: a declaration that the basic
model meets the applicable design requirement and the features that
have been incorporated into the ceiling fan light kit to meet the
applicable design requirement (e.g., circuit breaker, fuse, ballast).
Sec. 429.34 Torchieres.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to torchieres; and
(2) Reserved
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to torchieres; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following additional product-specific information: A
declaration that the basic model meets the applicable design
requirement and the features that have been incorporated into the
torchiere to meet the applicable design requirement (e.g., circuit
breaker, fuse, ballast).
Sec. 429.35 Bare or covered (no reflector) medium base compact
fluorescent lamps.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to bare or covered (no
reflector) medium base compact fluorescent lamps; and
(2) For each basic model of bare or covered (no reflector) medium
base compact fluorescent lamp
(i) No less than five units per basic model must be used when
testing for the efficacy, 1,000-hour lumen maintenance, and the lumen
maintenance. Each unit 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. Any
represented value of efficacy, 1,000-hour lumen maintenance, and lumen
maintenance shall be based on a sample randomly selected and tested to
ensure that the represented value is less than or equal to the lower
of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.077
Or,
(B) The lower 97.5 percent confidence limit (LCL) of the true mean
divided by 0.95, where:
[[Page 12476]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.078
(ii) 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. Each unit can be tested in the base up or base
down position as stated by the manufacturer.
(iii) No less than 10 units per basic model must be used when
testing for the average rated lamp life. Half 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.
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to bare of covered medium base compact fluorescent lamps;
and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The testing
laboratory's NVLAP identification number or other NVLAP-approved
accreditation identification, production dates for the units tested,
the minimum initial efficacy in lumens per watt (lm/W), the lumen
maintenance at 1,000 hours in percent (%), the lumen maintenance at 40
percent of rated life in percent (%), the rapid cycle stress test in
number of units passed, and the lamp life in hours (h).
(c) Test data. Manufacturers must include the production date codes
and the accompanying decoding scheme corresponding to all of the units
tested for a given basic model in the detailed test records maintained
under Sec. 429.71.
Sec. 429.36 Dehumidifiers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to dehumidifiers; and
(2) For each basic model of dehumidifier selected for testing, a
sample of sufficient size shall be randomly selected and tested to
ensure that--
(i) Any represented value of energy consumption or other measure of
energy consumption of a basic model for which consumers would favor
lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.079
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.080
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[[Page 12477]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.081
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.082
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to dehumidifiers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The energy
factor in liters per kilowatt hour (liters/kWh) and capacity in pints
per day.
Sec. 429.37 Class A external power supplies.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to external power supplies;
and
(2) For each basic model of external power supply selected for
testing, a sample of sufficient size shall be randomly selected 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
greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.083
Or,
(B) The upper 97.5 percent confidence limit (UCL) of the true mean
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.084
and
(ii) Any represented value of the estimated energy consumption of a
basic model for which consumers would favor higher values shall be less
than or equal to the lower of:
(A) The mean of the sample, where:
[[Page 12478]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.085
Or,
(B) The lower 97.5 percent confidence limit (LCL) of the true mean
divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.086
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to external power supplies except that required information
may be reported on the basis of a basic model or a design family. If
certifying using a design family, for Sec. 429.12(b)(6), report the
individual manufacturer's model numbers covered by the design family.
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) External power supplies: The average active mode efficiency as
a percent (%), no-load mode power consumption in watts (W), nameplate
output power in watts (W), and, if missing from the nameplate, the
output current in amperes (A) of the basic model or the output current
in amperes (A) of the highest- and lowest-voltage models within the
external power supply design family.
(ii) Switch-selectable single-voltage external power supplies: The
average active mode efficiency as a percent (%), no-load mode power
consumption in watts (W) at the lowest and highest selectable output
voltage, nameplate output power in watts (W), and, if missing from the
nameplate, the output current in amperes (A).
Sec. 429.38 Non-class A external power supplies. [Reserved]
Sec. 429.39 Battery chargers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to battery chargers; and
(2) For each basic model of battery charger selected for testing, a
sample of sufficient size shall be randomly selected and tested to
ensure that--
(i) Any represented value of the estimated non-active energy ratio
or other measure of energy consumption of a basic model for which
consumers would favor lower values shall be greater than or equal to
the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.087
Or,
(B) The upper 97.5 percent confidence limit (UCL) of the true mean
divided by 1.05, where:
[[Page 12479]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.088
and
(ii) Any represented value of the estimated non-active energy ratio
or other measure of energy consumption of a basic model for which
consumers would favor higher values shall be less than or equal to the
lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.089
Or,
(B) The lower 97.5 percent confidence limit (LCL) of the true mean
divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.090
(b) Certification reports. [Reserved]
Sec. 429.40 Candelabra base incandescent lamps and intermediate base
incandescent lamps.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to candelabra base
incandescent lamps; and
(2) For each basic model of candelabra base incandescent lamp and
intermediate base incandescent lamp, a minimum sample of 21 lamps shall
be randomly selected and tested. Any represented value of lamp wattage
of a basic model shall be based on the sample and shall be less than or
equal to the lower of:
(i) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.091
Or,
(ii) The lower 97.5 percent confidence limit (LCL) of the true mean
divided by 0.95, where:
[[Page 12480]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.092
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to candelabra base and intermediate base incandescent lamps;
and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) Candelabra base incandescent lamp: The rated wattage in watts
(W).
(ii) Intermediate base incandescent lamp: The rated wattage in
watts (W).
Sec. 429.41 Electric motors. [Reserved]
Sec. 429.42 Commercial refrigerators, freezers, and refrigerator-
freezers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to commercial
refrigerators, freezers, and refrigerator-freezers; and
(2) For each basic model of commercial refrigerator, freezer, or
refrigerator-freezer selected for testing, a sample of sufficient size
shall be randomly selected and tested to ensure that--
(i) Any value of estimated maximum daily energy consumption or
other measure of energy consumption of a basic model for which
consumers would favor lower values shall be greater than or equal to
the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.093
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.094
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.095
[[Page 12481]]
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.096
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to commercial refrigerators, freezers, and refrigerator-
freezers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) Self-contained commercial refrigerators with solid doors,
commercial refrigerators with transparent doors, commercial freezers
with solid doors, and commercial freezers with transparent doors: the
maximum daily energy consumption in kilowatt hours per day (kWh/day)
and the chilled or frozen compartment volume in cubic feet (ft\3\).
(ii) Self-contained commercial refrigerator-freezers with solids
doors: the maximum average daily energy consumption in kilowatt hours
per day (kWh/day) and the adjusted volume in cubic feet (ft\3\).
(iii) 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): On or
after January 1, 2012, the maximum daily energy consumption in kilowatt
hours per day (kWh/day), the total display area (TDA) in feet squared
(ft\2\) or the chilled volume in cubic feet (ft\3\) as necessary to
demonstrate compliance with the standards set forth in Sec. 431.66,
the rating temperature in degrees Fahrenheit ([deg]F), 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.
Sec. 429.43 Commercial heating, ventilating, air conditioning (HVAC)
equipment.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to commercial HVAC
equipment; and
(2) For each basic model of commercial heating, ventilating, air
conditioning (HVAC) equipment, efficiency must be determined 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. 429.48 and the provisions
of this section. For each basic model of commercial HVAC equipment, a
sample of sufficient size shall be selected and tested to ensure that--
(i) 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 greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.097
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.05, where:
[[Page 12482]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.098
and
(ii) 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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.099
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.100
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to commercial HVAC equipment; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) Commercial warm air furnaces: The thermal efficiency in percent
(%) and the maximum rated input capacity in British thermal units per
hour (Btu/h).
(ii) Commercial packaged boilers: The combustion efficiency in
percent (%) and the maximum rated input capacity in British thermal
unit per hour (Btu/h) for equipment manufactured before March 2, 2012.
For equipment manufactured on or after March 2, 2012, either the
combustion efficiency in percent (%), or the thermal efficiency in
percent (%) as required in Sec. 431.87 and the maximum rated input
capacity in British thermal units per hour (Btu/h).
(iii) 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 (EER in British thermal units per Watt-hour
(Btu/Wh)), the coefficient of performance (COP) as necessary to meet
the standards set forth in Sec. 431.97, the cooling capacity in
British thermal unit per hour (Btu/h), and the type of heating used by
the unit.
(iv) 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 (SEER in British thermal
units per Watt-hour (Btu/Wh)), the heating seasonal performance factor
(HSPF in British thermal units per Watt-hour(Btu/Wh)) as necessary to
meet the standards set forth in Sec. 431.97, and the cooling capacity
in British thermal units per hour (Btu/h).
(v) Package terminal air conditioners: The energy efficiency ratio
(EER in British thermal units per Watt-hour (Btu/Wh)), the cooling
capacity in British thermal units per hour (Btu/h), and the wall sleeve
dimensions in inches (in).
(vi) Package terminal heat pumps: The energy efficiency ratio (EER
in British thermal units per Watt-hour (Btu/W-h)), the coefficient of
performance (COP), the cooling capacity in British thermal units per
hour (Btu/h), and the wall sleeve dimensions in inches (in).
(vii) Single package vertical air conditioner: The energy
efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh))
and the cooling capacity in British thermal units per hour (Btu/h).
(viii) Single package vertical heat pumps: The energy efficiency
ratio (EER in British thermal units per Watt-hour
[[Page 12483]]
(Btu/Wh)), the coefficient of performance (COP), and the cooling
capacity in British thermal units per hour (Btu/h).
(c) Alternative methods for determining efficiency or energy use
for commercial HVAC equipment can be found in Sec. 429.70 of this
subpart.
Sec. 429.44 Commercial water heating equipment.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to commercial WH equipment;
and
(2) For each basic model of commercial water heating (WH)
equipment, efficiency must be determined 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. 429.48 and the provisions of this
section. For each basic model of commercial WH equipment, a sample of
sufficient size shall be selected and tested to ensure that--
(i) Any represented value of maximum standby loss or other measure
of energy usage of a basic model for which consumers would favor lower
values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.101
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.102
and
(ii) Any represented value of minimum thermal efficiency or other
measure of energy consumption of a basic model for which consumers
would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.103
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.95, where:
[[Page 12484]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.104
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to commercial WH equipment; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information:
(i) Commercial electric storage water heaters: The maximum standby
loss in percent per hour (%/hr), and the measured storage volume in
gallons (gal).
(ii) Commercial gas-fired and oil-fired storage water heaters: The
minimum thermal efficiency in percent (%), the maximum standby loss in
British thermal units per hour (Btu/h), the rated storage volume in
gallons (gal), the measured storage volume in gallons (gal) and the
nameplate input rate in British thermal units per hour (Btu/h).
(iii) 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
British thermal units per hour (Btu/h), the rated storage volume in
gallons (gal), and the nameplate input rate in Btu/h.
(iv) 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 (g).
(v) Commercial unfired hot water storage tanks: The minimum thermal
insulation (i.e., R-value) and the measured storage volume in gallons
(gal).
(c) Alternative methods for determining efficiency or energy use
for commercial WH equipment can be found in Sec. 429.70 of this
subpart.
Sec. 429.45 Automatic commercial ice makers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to automatic commercial ice
makers; and
(2) For each basic model of automatic commercial ice maker selected
for testing, a sample of sufficient size shall be randomly selected and
tested to ensure that--
(i) Any represented value of maximum energy use or other measure of
energy consumption of a basic model for which consumers would favor
lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.105
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.106
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[[Page 12485]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.107
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.108
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to automatic commercial ice makers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The maximum
energy use in kilowatt hours per 100 pounds of ice (kWh/100 lbs ice),
the maximum condenser water use in gallons per 100 pounds of ice (gal/
100 lbs ice), the harvest rate in pounds of ice per 24 hours (lbs ice/
24 hours), the type of cooling, and the equipment type.
Sec. 429.46 Commercial clothes washers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to commercial clothes
washers; and
(2) For each basic model of commercial clothes washers, a sample of
sufficient size shall be randomly selected and tested to ensure that--
(i) Any represented value of 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 greater than or equal to
the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.109
Or,
(B) The upper 97\1/2\ percent confidence limit (UCL) of the true
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.110
and
(ii) Any represented value of the modified energy factor, water
factor, or other measure of energy or water consumption of a basic
model for which consumers would favor higher values shall be less than
or equal to the lower of:
(A) The mean of the sample, where:
[[Page 12486]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.111
Or,
(B) The lower 97\1/2\; percent confidence limit (LCL) of the true
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.112
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to commercial clothes washers; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The modified
energy factor (MEF) in cubic feet per kilowatt hour per cycle (cu ft/
kWh/cycle) and the water factor in gallons per cubic feet per cycle
(gal/cu ft/cycle) for units manufactured on or after January 8, 2013.
Sec. 429.47 Distribution transformers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to distribution
transformers; and
(2) For each basic model of distribution transformer, efficiency
must be determined 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. 429.70 and the provisions of this
section.
(i) For each basic model selected for testing:
(A) If the manufacturer produces five or fewer units of a basic
model over 6 months, each unit must be tested. A manufacturer may not
use a basic model with a sample size of fewer than five units to
substantiate an AEDM pursuant to Sec. 429.70.
(B) If the manufacturer produces more than five units over 6
months, a sample of at least five units must be selected and tested.
(ii) Any represented value of efficiency of a basic model must
satisfy the condition:
[GRAPHIC] [TIFF OMITTED] TR07MR11.113
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to distribution transformers except that required
information in paragraph (b) of this section may be reported by kVA
grouping instead of by basic model and paragraph (b)(6) of this section
does not apply; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: For the most
and least efficient basic models within each ``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).
(c) Alternative methods for determining efficiency or energy use
for distribution transformers can be found in Sec. 429.70 of this
subpart.
(d) Kilovolt ampere (kVA) grouping. 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 or equal to96 kV BIL).
Sec. 429.48 Illuminated exit signs.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to illuminated exit signs;
and
(2) For each basic model of illuminated exit sign selected for
testing, a sample of sufficient size shall be randomly selected and
tested to ensure that--
(i) Any represented value of input power demand or other measure of
energy consumption of a basic model for which consumers would favor
lower
[[Page 12487]]
values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.114
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where
[GRAPHIC] [TIFF OMITTED] TR07MR11.115
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.116
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where
[GRAPHIC] [TIFF OMITTED] TR07MR11.117
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to illuminated exit signs; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The input
power demand in watts (W) and the number of faces.
Sec. 429.49 Traffic signal modules and pedestrian modules.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to traffic signal modules
and pedestrian modules; and
[[Page 12488]]
(2) For each basic model of traffic signal module or pedestrian
module selected for testing, a sample of sufficient size shall be
randomly selected 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 greater than or equal to
the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.118
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.119
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.120
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.121
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to traffic signal modules and pedestrian modules; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The maximum
wattage at 74 degrees Celsius ([deg]C) in watts (W), the nominal
wattage at 25 degrees Celsius ([deg]C) in watts (W), and the signal
type.
Sec. 429.50 Commercial unit heaters.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to commercial unit heaters;
and
(2) [Reserved]
[[Page 12489]]
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to commercial unit heaters; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The type of
ignition system and a declaration that the manufacturer has
incorporated the applicable design requirements.
Sec. 429.51 Commercial pre-rinse spray valves.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to commercial pre-rinse
spray valves; and
(2) For each basic model of commercial pre-rinse spray valves
selected for testing, a sample of sufficient size shall be randomly
selected and tested to ensure that--
(i) Any represented value of water consumption or other measure of
water consumption of a basic model for which consumers would favor
lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.122
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.123
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.124
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.125
[[Page 12490]]
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to commercial pre-rinse spray valves; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The flow
rate in gallons per minute (gpm).
Sec. 429.52 Refrigerated bottled or canned beverage vending machines.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to refrigerated bottled or
canned beverage vending machine; and
(2) For each basic model of refrigerated bottled or canned beverage
vending machine selected for testing, a sample of sufficient size shall
be randomly selected and tested to ensure that--
(i) Any represented value of energy consumption or other measure of
energy consumption of a basic model for which consumers would favor
lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.126
Or,
(B) The upper 95 percent confidence limit (UCL) of the true mean
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.127
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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.128
Or,
(B) The lower 95 percent confidence limit (LCL) of the true mean
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.129
[[Page 12491]]
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to refrigerated bottled or canned beverage vending machine;
and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: For units
manufactured on or after August 31, 2012, the maximum average daily
energy consumption in kilowatt hours per day (kWh/day), the
refrigerated volume (V) in cubic feet (ft\3\) used to demonstrate
compliance with standards set forth in Sec. 431.296, the ambient
temperature in degrees Fahrenheit ([deg]F), and the ambient relative
humidity in percent (%) during the test.
Sec. 429.53 Walk-in coolers and walk-in freezers.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to walk-in coolers and
freezers; and
(2) [Reserved]
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to walk-in coolers and freezers, except that paragraph
(b)(6) of this section does not apply; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The door
type, the R-value of the wall, ceiling and door insulation (except for
glazed portions of the doors or structural members), the R-value of the
floor insulation (for freezers only), the evaporator fan motor type,
the efficacy of the lighting including ballast losses, and a
declaration that the manufacturer has incorporated the applicable
design requirements. 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), and the power draw of the
antisweat heater in watts.
Sec. 429.54 Metal halide lamp ballasts and fixtures.
(a) Sampling plan for selection of units for testing. (1) The
requirements of Sec. 429.11 are applicable to metal halide lamp
ballasts; and
(2) 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 less than or equal to the lower of:
(A) The mean of the sample, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.130
Or,
(B) The lower 99-percent confidence limit (LCL) of the true mean
divided by 0.99.
[GRAPHIC] [TIFF OMITTED] TR07MR11.131
(b) Certification reports. (1) The requirements of Sec. 429.12 are
applicable to metal halide lamp ballasts; and
(2) Pursuant to Sec. 429.12(b)(13), a certification report shall
include the following public product-specific information: The minimum
ballast efficiency in percent (%), the lamp wattage in watts (W), and
the type of ballast (e.g., pulse-start, magnetic probe-start, and non-
pulse start electronic).
Sec. 429.70 Alternative methods for determining energy efficiency or
energy use.
(a) General. A manufacturer of commercial HVAC and WH equipment,
distribution transformers, and central air conditioners and heat pumps
may not distribute any basic model of such equipment in commerce unless
the manufacturer has determined the energy efficiency of the basic
model, either from testing the basic model or from applying an
alternative method for determining energy efficiency or energy use
(AEDM) to the basic model, in accordance with the requirements of this
section. In instances where a manufacturer has tested a basic model to
validate the alternative method, the energy 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 that
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 plan provisions
established in Sec. Sec. 429.14 through 429.54 and the testing
procedures in parts 430 and 431.
(c) Alternative efficiency determination method (AEDM) for
commercial HVAC and WH
[[Page 12492]]
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;
(ii) The AEDM is based on engineering or 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 (c)(2) of this section.
(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 and
different models than those used to develop the AEDM (i.e., different
models than those used in paragraph (c)(2)(i) of this section); and
(iii) The manufacturer must test each of these basic models in
accordance with Sec. 431.173(b), and either Sec. 431.174(b) or
431.175(a), whichever is applicable; and
(iv) 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 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;
(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. 429.42, 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
[[Page 12493]]
(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. 429.16(a)(2)(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. 429.16(a)(2)(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. 429.16(a)(2)(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.
429.16(a)(2)(ii)(B)(1) and paragraph (e)(1) of this section must submit
a request for DOE to review the ARM. Send the request to: U.S.
Department of Energy, Office of Energy Efficiency and Renewable Energy,
Building Technologies Program (EE-2J), Attention: Alternative Rating
Methods (ARM) for Certification and Compliance, Forrestal Building,
1000 Independence Avenue, SW., Washington, DC 20585-0121.
(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)
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.
(iii) 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 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).
(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. 429.16(a)(2)(ii)(B)(1) and paragraph
(e)(1) of this section must submit a
[[Page 12494]]
request for DOE to review the ARM when:
(i) DOE amends the energy conservation standards as specified in
Sec. 430.32 for residential central air conditioners and heat pumps.
In this case, any testing and evidence required under paragraph (e)(2)
of this section shall be developed with units that meet the amended
energy conservation standards specified in Sec. 430.32. Re-approval
for the ARM must be obtained before the compliance date of amended
energy conservation standards. (ii) DOE amends the test procedure for
residential air conditioners and heat pumps as specified in Appendix M
to Subpart B of Part 430. Re-approval for the ARM must be obtained
before the compliance date of amended test procedures.
(4) Manufacturers that elect to use an ARM for determining measures
of energy consumption under Sec. 429.16(a)(2)(ii)(B)(1) and paragraph
(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). 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. 429.16(a)(2)(ii)(B)(1) and paragraphs (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.
Sec. 429.71 Maintenance of records.
(a) 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, part 430, and part 431. Any manufacturer who chooses to use an
alternative method for determining energy efficiency or energy use in
accordance with Sec. 429.70 must retain the records required by that
section, any other records of any testing performed to support the use
of the alternative method, and any certifications required by that
section, on file for review by DOE for two years following the
discontinuance of all models or combinations whose ratings were based
on the alternative method.
(b) Such records shall be organized and indexed in a fashion that
makes them readily accessible for review by DOE upon request.
(c) The records shall be retained by the manufacturer for a period
of two years from the date that the manufacturer or third party
submitter has notified DOE that the model has been discontinued in
commerce.
Appendix A to Subpart B of Part 429--Student's t-Distribution Values
for Certification Testing
Figure 1--t-Distribution Values for Certification Testing
[One-Sided]
----------------------------------------------------------------------------------------------------------------
Confidence Interval
Degrees of freedom (from Appendix D) ---------------------------------------------------------------
90% 95% 97.5% 99%
----------------------------------------------------------------------------------------------------------------
1............................................... 3.078 6.314 12.71 31.82
2............................................... 1.886 2.920 4.303 6.965
3............................................... 1.638 2.353 3.182 4.541
4............................................... 1.533 2.132 2.776 3.747
5............................................... 1.476 2.015 2.571 3.365
6............................................... 1.440 1.943 2.447 3.143
7............................................... 1.415 1.895 2.365 2.998
8............................................... 1.397 1.860 2.306 2.896
9............................................... 1.383 1.833 2.262 2.821
10.............................................. 1.372 1.812 2.228 2.764
11.............................................. 1.363 1.796 2.201 2.718
12.............................................. 1.356 1.782 2.179 2.681
13.............................................. 1.350 1.771 2.160 2.650
14.............................................. 1.345 1.761 2.145 2.624
15.............................................. 1.341 1.753 2.131 2.602
16.............................................. 1.337 1.746 2.120 2.583
17.............................................. 1.333 1.740 2.110 2.567
18.............................................. 1.330 1.734 2.101 2.552
19.............................................. 1.328 1.729 2.093 2.539
20.............................................. 1.325 1.725 2.086 2.528
----------------------------------------------------------------------------------------------------------------
Subpart C--Enforcement
Sec. 429.100 Purpose and scope.
This subpart describes the enforcement authority of DOE to ensure
compliance with the conservation standards and regulations.
Sec. 429.102 Prohibited acts subjecting persons to enforcement
action.
(a) Each of the following actions is 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. 429.12 and Sec. Sec. 429.14 through
429.54;
(2) Failure to test any covered product or covered equipment
subject to an
[[Page 12495]]
applicable energy conservation standard in conformance with the
applicable test requirements prescribed in 10 CFR parts 430 or 431;
(3) 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;
(4) Failure of a manufacturer to supply at the manufacturer's
expense a requested number of covered products or covered equipment to
a designated test laboratory in accordance with a test notice issued by
DOE;
(5) Failure of a manufacturer to permit a DOE representative to
observe any testing required by the Act and this part and inspect the
results of such testing;
(6) 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;
(7) 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;
(8) Knowing misrepresentation by a manufacturer or private labeler
by certifying an energy use or efficiency rating of any covered product
or covered equipment distributed in commerce in a manner that is not
supported by test data;
(9) 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; or
(10) 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 DOE has reason to believe that a manufacturer or private
labeler has undertaken a prohibited act listed in paragraph (a) of this
section, DOE 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. 429.104 Assessment 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. 429.106 Investigation of compliance.
(a) DOE may initiate an investigation that a basic model may not be
compliant with an applicable conservation standard, certification
requirement or other regulation at any time.
(b) DOE may, at any time, request any information relevant to
determining compliance with any requirement under parts 429, 430 and
431, 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. 429.110 Enforcement testing.
(a) General provisions. (1) If DOE has reason to believe that a
basic model is not in compliance it may test for enforcement.
(2) DOE will select and test units pursuant to paragraphs (c) and
(e) of this section.
(3) Testing will be conducted at a lab accredited to the
International Organization for Standardization (ISO)/International
Electrotechnical Commission (IEC), ``General requirements for the
competence of testing and calibration laboratories,'' ISO/IEC
17025:2005(E) (incorporated by reference; see Sec. 429.4). If testing
cannot be completed at an independent lab, DOE, at its discretion, may
allow enforcement testing at a manufacturer's lab, so long as the lab
is accredited to ISO/IEC 17025:2005(E) and DOE representatives witness
the testing.
(b) Test notice. (1) To obtain units for enforcement testing to
determine compliance with an applicable standard, DOE will issue a test
notice addressed to the manufacturer in accordance with the following
requirements:
(i) DOE will send the test notice to the manufacturer's certifying
official or other company official.
(ii) The test notice will specify the basic model that will be
selected for testing, the method of selecting the test sample, the
maximum size of the sample and the size of the initial test sample, the
dates at which testing is scheduled to be started and 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 models or basic
models.
(iii) 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 make
arrangements with the distributor or retailer for compensation for or
replacement of any such units.
(iv) 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 the requested number of units of a basic model specified
in such test notice to the testing laboratory specified in the test
notice. The manufacturer shall ship the specified initial test unit(s)
of the basic model to the testing laboratory within 5 working days from
the time units are selected.
(v) If DOE determines that the units identified are low-volume or
built-to-order products, DOE will contact the manufacturer to develop a
plan for enforcement testing in lieu of paragraphs (ii)-(iv) of this
section.
(2) [Reserved]
(c) Test unit selection. (1) To select units for testing from a:
(i) Manufacturer's warehouse, distributor, or other facility
affiliated with the manufacturer. DOE will select a batch sample at
random in accordance with the provisions in paragraph (e) of this
section 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 paragraph (e)(1)(iv) of
this section.
(ii) Retailer or other facility not affiliated with the
manufacturer. DOE will select an initial test sample of units at random
that satisfies the minimum units necessary for testing in accordance
with the provisions in appendices A through C of this 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 this subpart. If
the full sample is not available from a retailer, DOE will make a
determination whether an alternative sample size will be used in
accordance with the provisions in paragraph (e)(1)(iv) of this section.
[[Page 12496]]
(2) 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.
(3) 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 paragraph (e)
of this section and appendices A through C of this subpart.
(d) Test unit preparation. (1) Prior to and during testing, a test
unit selected for enforcement testing 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.
(2) 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.
(3) 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 may authorize
testing of an additional unit on a case-by-case basis.
(e) Basic model compliance. (1) DOE will evaluate whether a basic
model complies with the applicable energy conservation standard(s)
based on testing conducted in accordance with the applicable test
procedures specified in parts 430 and 431, and with the following
statistical sampling procedures:
(i) For products with applicable energy conservation standard(s) in
Sec. 430.32, and commercial pre-rinse spray valves, illuminated exit
signs, traffic signal modules and pedestrian modules, commercial
clothes washers, and metal halide lamp ballasts, DOE will use a sample
size of not more than 21 units and follow the sampling plans in
appendix A of this subpart (Sampling for Enforcement Testing of Covered
Consumer Products and Certain High-Volume Commercial Equipment).
(ii) For automatic commercial ice makers; commercial refrigerators,
freezers, and refrigerator-freezers; refrigerated bottled or canned
vending machines; and commercial HVAC and WH equipment, DOE will use an
initial sample size of not more than four units and follow the sampling
plans in appendix B of this subpart (Sampling Plan for Enforcement
Testing of Covered Equipment and Certain Low-Volume Covered Products).
If fewer than four units of a basic model are available for testing
when the manufacturer receives the notice, then:
(A) DOE will test the available unit(s); or
(B) If one or more other units of the basic model are expected to
become available within 30 calendar days, DOE 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.
(iii) For distribution transformers, DOE will use an initial sample
size of not more than five units and follow the sampling plans in
appendix C of this subpart (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:
(A) DOE will test the available unit(s); or
(B) If one or more other units of the basic model are expected to
become available within 30 calendar 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 five); or
(2) Up to five of the other units that subsequently become
available.
(iv) Notwithstanding paragraphs (e)(1)(i) through (e)(1)(iii) of
this section, if testing 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,
DOE may in its discretion decide to base the determination of
compliance on the testing of fewer than the otherwise required number
of units.
(v) When DOE makes a determination in accordance with section
(e)(1)(iv) to test less than the number of units specified in parts
(d)(1)(i) through (d)(1)(iii) of this section, DOE will base the
compliance determination on the results of such testing in accordance
with appendix B of this subpart (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 tested.
(vi) For the purposes of paragraphs (e)(1)(i) through (e)(1)(v) of
this section, available units are those that are available for
distribution in commerce within the United States.
Sec. 429.114 Notice of noncompliance and notice 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; and
(3) Provide DOE, within 30 calendar 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 manufacturer has failed to
comply with an applicable certification requirement with respect to a
particular basic model, 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) Immediately comply with the applicable certification
requirement; and/or
(3) Provide DOE within 30 days of the request, records, reports and
other documentation pertaining to the acquisition, ordering, storage,
shipment, or sale of the basic model.
(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 General Counsel (or
delegee) may seek, among other remedies, injunctive action and civil
penalties, where appropriate.
(d) The manufacturer may modify a basic model determined to be
[[Page 12497]]
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, any models
within the basic model must be assigned new model numbers and the
manufacturer shall also maintain, and provide upon request to DOE,
records that demonstrate that modifications have been made to all units
of the new basic model prior to distribution in commerce.
Sec. 429.116 Additional certification testing requirements.
Pursuant to Sec. 429.102(b)(2), if DOE determines that
independent, third-party testing is necessary to ensure a
manufacturer's compliance with the rules of this part, part 430, or
part 431, a manufacturer must base its certification of a basic model
under subpart B of this part on independent, third-party laboratory
testing.
Sec. 429.118 Injunctions.
If DOE 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 DOE's intent to
seek a judicial order enjoining the prohibited act unless the
manufacturer, private labeler or other person, 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 act
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 act or fails to
provide a satisfactory corrective action and compliance plan, DOE may
seek an injunction.
Sec. 429.120 Maximum civil penalty.
Any person who knowingly violates any provision of Sec. 429.102(a)
of this part may be subject to assessment of a civil penalty of no more
than $200 for each violation. As to Sec. 429.102(a)(1) with respect to
failure to certify, and as to Sec. 429.102(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. 429.102(a)(1), (3), and (4), each day of
noncompliance shall constitute a separate violation for each basic
model at issue.
Sec. 429.122 Notice of proposed civil penalty.
(a) The General Counsel (or delegee) shall provide notice of any
proposed civil penalty.
(b) The notice of proposed penalty shall:
(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. 429.128 (in lieu of those of Sec. 429.126) apply with respect to
the penalty.
Sec. 429.124 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. 429.126 of this part; or
(2) Elect to have the procedures of Sec. 429.128 apply.
(b) Any election to have the procedures of Sec. 429.128 apply may
not be revoked except with the consent of the General Counsel (or
delegee).
(c) If the respondent fails to respond to a notice issued under
Sec. 429.120 or otherwise fails to indicate its election of
procedures, DOE shall refer the civil penalty action to an ALJ for a
hearing under Sec. 429.126.
Sec. 429.126 Administrative law judge hearing and appeal.
(a) When elected pursuant to Sec. 429.124, DOE shall refer a civil
penalty action brought under Sec. 429.122 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 will include a statement of the findings
and conclusions, and the reasons therefore, on all material issues of
fact, law, and discretion.
(c)(1) The General Counsel (or delegee) 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 General Counsel (or delegee) shall include in the
final order the ALJ's findings of fact and the reasons for the final
agency 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
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 final order, or
the court may remand the proceeding to the Department for such further
action as the court may direct.
Sec. 429.128 Immediate issuance of order assessing civil penalty.
(a) If the respondent elects to forgo an agency hearing pursuant to
Sec. 429.124, the General Counsel (or delegee) shall issue an order
assessing the civil penalty proposed in the notice of proposed penalty
under Sec. 429.122, 30 calendar days after the respondent's receipt of
the notice of proposed penalty.
(b) If within 60 calendar days of receiving the assessment order in
paragraph (a) of this section the respondent does not pay the civil
penalty amount, DOE 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. 429.130 Collection of civil penalties.
If any person fails to pay an assessment of a civil penalty after
it has become a final and unappealable order under Sec. 429.126 or
after the appropriate District Court has entered final judgment in
favor of the Department under Sec. 429.128, the General Counsel (or
delegee) 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.
Sec. 429.132 Compromise and settlement.
(a) DOE 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, DOE 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) DOE's authority to compromise, modify or remit a civil penalty
may be
[[Page 12498]]
exercised at any time prior to a final decision by the United States
Court of Appeals if Sec. 429.126 procedures are utilized, or prior to
a final decision by the United States District Court, if Sec. 429.128
procedures are utilized.
(d) Notwithstanding paragraph (a) of this section, DOE 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 in
accordance with the terms of the settlement.
APPENDIX A TO SUBPART C OF PART 429--SAMPLING PLAN FOR ENFORCEMENT
TESTING OF COVERED CONSUMER PRODUCTS AND CERTAIN HIGH-VOLUME COMMERCIAL
EQUIPMENT
(a) The first sample size (n1) for enforcement
testing must be four or more units, except as provided by Sec.
429.57(e)(1)(i).
(b) Compute the mean of the measured energy performance
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.132
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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.133
(d) Compute the standard error (sx1) of the measured
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.134
(e)(1) Compute the upper control limit (UCL1) and
lower control limit (LCL1) for the mean of the first
sample using the applicable DOE energy efficiency standard (EES) as
the desired mean and a probability level of 95 percent (two-tailed
test) as follows: LCL1 EES -- ts x1
x
[GRAPHIC] [TIFF OMITTED] TR07MR11.135
where t is the statistic based on a 95 percent two-tailed
probability level with degrees of freedom (n1-1).
(2) 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:
(i) 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.)
(ii) 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.)
(iii) 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 (e)(3).
(3) For an energy efficiency or water efficiency standard,
determine the second sample size (n2) as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.136
where s1 and t have the values used in equations 2 and 4,
respectively. The term ``0.05 EES'' 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
[[Page 12499]]
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:
(i) 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.
(ii) 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 or water efficiency standard
(EES), whichever is greater, i.e., if n2<= 0 and
x1<= max (LCL1, 0.95 EES), the basic model is
not in compliance and testing is at an end.
(iii) 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 (6). If the value of n2 so calculated is
greater than 21- n1, set n2 equal to 21-
n1.
(4) Compute the combined mean (x2) of the measured
energy or water efficiency of the n1 and n2
units of the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.137
(5) Compute the standard error (Sx2) of the measured
energy or water performance of the n1 and n2
units in the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.138
Note: s1 is the value obtained in Step (c).
(6) For an energy efficiency standard (EES), compute the lower
control limit (LCL2) for the mean of the combined first
and second samples using the DOE 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)(1)) as
follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.139
where the t-statistic has the value obtained in Step (e)(1) and
sx2 is the value obtained in Step (e)(5).
(7) For an energy efficiency standard (EES), compare the
combined sample mean (x2) to the lower control limit
(LCL2) to determine one of the following:
(i) 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 not compliant and testing is at an end.
(iii) 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.
(f)(1) Compute the upper control limit (UCL1) and
lower control limit (LCL1) for the mean of the first
sample using the applicable DOE energy consumption standard (ECS) as
the desired mean and a probability level of 95 percent (two-tailed
test) as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.140
where t is the statistic based on a 95 percent two-tailed
probability level with degrees of freedom (n1 - 1).
(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:
(i) If the mean of the first sample is above the upper 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.)
(ii) If the mean of the first sample is equal to or less than
the lower 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.)
(iii) If the sample mean is equal to or less than the upper
control limit but greater than the lower control limit, then no
determination of compliance or noncompliance can be made and a
second sample size is determined by Step (f)(3).
(3) For an Energy or Water Consumption Standard, determine the
second sample size (n2) as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.141
where s1and t have the values used in equations (2) and
(10), respectively. The term ``0.05 ECS'' 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:
(i) 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 consumption standard (ECS), whichever is
less, i.e., if n2 <= 0 and x1 <= min
(UCL1, 1.05 ECS), the basic model is in compliance and
testing is at an end.
(ii) 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 consumption standard (ECS), whichever is less, i.e., if
n2 <= 0 and x1 > min (UCL1, 1.05
EPS), the basic model is not compliant and testing is at an end.
(iii) 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 (11). If the value of n2 so calculated is
greater than 21-n1, set n2 equal to 21-
n1.
(4) Compute the combined mean (x2) of the measured
energy or water consumption of the n1 and n2
units of the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.142
(5) Compute the standard error (Sx2) of the measured
energy or water consumption of the n1 and n2
units in the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.143
Note: s1 is the value obtained in Step (c).
(6) For an energy or water consumption standard (ECS), compute
the upper control limit (UCL2) for the mean of the
combined first and second samples using the DOE ECS 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
(f)(1)) as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.144
where the t-statistic has the value obtained in (f)(1).
[[Page 12500]]
(7) For an energy or water consumption standard (ECS), compare
the combined sample mean (x2) to the upper control limit
(UCL2) to determine one of the following:
(i) If the mean of the combined sample (x2) is
greater than the upper control limit (UCL2) or 105
percent of the ECS whichever is less, i.e., if x2 > min
(UCL2, 1.05 ECS), the basic model is not compliant and
testing is at an end.
(ii) 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
(ECS), whichever is less, i.e., if x 2<= min
(UCL2, 1.05 ECS), the basic model is in compliance and
testing is at an end.
APPENDIX B TO SUBPART C 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. 429.57(e)(1)(ii).
(b) Compute the mean of the measured energy performance
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.145
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] TR07MR11.146
(d) Compute the standard error (sx1) of the measured
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.147
(e)(1) For an energy efficiency standard (EES), determine the
appropriate lower control limit (LCL1) according to:
[GRAPHIC] [TIFF OMITTED] TR07MR11.148
And use whichever is greater. Where EES is the energy efficiency
standard and t is a statistic based on a 97.5 percent, one-sided
confidence limit and a sample size of n1.
(2) For an energy consumption standard (ECS), determine the
appropriate upper control limit (UCL1) according to:
[[Page 12501]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.149
And use whichever is less, where ECS is the energy consumption
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.
APPENDIX C TO SUBPART C 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.
429.47(a) and DOE shall perform the following number of tests:
(1) If DOE tests four or more units, it will test each unit
once;
(2) If DOE tests two or three units, it will test each unit
twice; or
(3) If DOE tests one unit, it will test that unit four times.
(b) DOE shall determine compliance as follows:
(1) Compute the mean (X1) of the measured energy
performance of the n1 tests in the first sample as
follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.150
where Xi is the measured efficiency of test i.
(2) Compute the sample standard deviation (S1) of the
measured efficiency of the n1 tests in the first sample
as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.151
(3) Compute the standard error (SE(X1)) of the mean
efficiency of the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.152
(4) Compute the sample size discount (SSD(m1)) as
follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.153
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.
(5) Compute the lower control limit (LCL1) for the
mean of the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.154
Where t is statistic based on a 97.5 percent one-tailed t test with
degrees of freedom (from Appendix D) n1-1.
(6) Compare the mean of the first sample (X1) with
the lower control limit (LCL1) to determine one of the
following:
(i) If the mean of the first sample is below the lower control
limit, then the basic model is not compliant and testing is at an
end.
(ii) If the mean is equal to or greater than the lower control
limit, no final determination of compliance or noncompliance can be
made; proceed to Step (7).
(7) Determine the recommended sample size (n) as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.155
Given the value of n, determine one of the following:
(i) 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.
(ii) If the value of n is greater than n1, the basic
model is not compliant. 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.
(8) 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] TR07MR11.156
(9) Compute the standard error (SE(X2)) of the mean
full-load efficiency of the n1 and n2 units in
the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.157
(Note that S1 is the value obtained above in (2).)
(10) Set the lower control limit (LCL2) to,
[[Page 12502]]
[GRAPHIC] [TIFF OMITTED] TR07MR11.158
where t has the value obtained in (5) and SSD(m1) is
sample size discount determined in (4), and compare the combined
sample mean (X2) to the lower control limit
(LCL2) to determine one of the following:
(i) If the mean of the combined sample (X2) is less
than the lower control limit (LCL2), the basic model is
not compliant and testing is at an end.
(ii) 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
0
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.
0
3. In Sec. 430.2 revise the definitions of ``Act,'' ``basic model,''
and ``Energy conservation standard'' 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 means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency; and
(1) With respect to general service fluorescent lamps, general
service incandescent lamps, and incandescent reflector lamps: Lamps
that have essentially identical light output and electrical
characteristics--including lumens per watt (lm/W) and color rendering
index (CRI).
(2) With respect to faucets and showerheads: Have the identical
flow control mechanism attached to or installed within the fixture
fittings, or the identical water-passage design features that use the
same path of water in the highest flow mode.
* * * * *
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
found in this part or parts 430 or 431.
* * * * *
Sec. 430.24 [Removed and Reserved]
0
4. Remove and reserve Sec. 430.24.
0
5. In Sec. 430.27 revise paragraph (b)(1) to read as follows:
Sec. 430.27 Petitions for waiver and applications for interim waiver.
* * * * *
(b)(1) A Petition for Waiver shall be submitted either
electronically to [email protected] or by mail, in
triplicate, to U.S. Department of Energy, Building Technologies
Program, Test Procedure Waiver, 1000 Independence Avenue, SW., Mailstop
EE-2J, Washington, DC 20585-0121. Each Petition for Waiver shall:
* * * * *
0
6. In Appendix A to subpart B of part 430, revise paragraph 5.1 to read
as follows:
Appendix A to Subpart B of Part 430--Uniform Test Method for Measuring
the Energy Consumption of Electric Refrigerators and Electric
Refrigerator-Freezers
* * * * *
5. Test Measurements
5.1 Temperature Measurements. Temperature measurements shall be
made at the locations prescribed in Figures 5.1 and 5.2 of HRF-1-
2008 (incorporated by reference; see Sec. 430.3) and shall be
accurate to within 0.5 [deg]F (0.3 [deg]C). No freezer
temperature measurements need be taken in an all-refrigerator model.
If the interior arrangements of the cabinet do not conform with
those shown in Figure 5.1 and 5.2 of HRF-1-2008, the product may be
tested by relocating the temperature sensors from the locations
specified in the figures to avoid interference with hardware or
components within the cabinet, in which case the specific locations
used for the temperature sensors shall be noted in the test data
records maintained by the manufacturer in accordance with 10 CFR
429.14, and the certification report shall indicate that non-
standard sensor locations were used.
* * * * *
0
7. In Appendix A1 to subpart B of part 430, revise paragraph 5.1 to
read as follows:
Appendix A1 to Subpart B of Part 430--Uniform Test Method for Measuring
the Energy Consumption of Electric Refrigerators and Electric
Refrigerator-Freezers
* * * * *
5. Test Measurements
5.1 Temperature Measurements. Temperature measurements shall be
made at the locations prescribed in Figures 7.1 and 7.2 of HRF-1-
1979 (incorporated by reference; see Sec. 430.3) and shall be
accurate to within 0.5 [deg]F (0.3 [deg]C). No freezer
temperature measurements need be taken in an all-refrigerator model.
If the interior arrangements of the cabinet do not conform with
those shown in Figure 7.1 and 7.2 of HRF-1-1979, the product may be
tested by relocating the temperature sensors from the locations
specified in the figures to avoid interference with hardware or
components within the cabinet, in which case the specific locations
used for the temperature sensors shall be noted in the test data
records maintained by the manufacturer in accordance with 10 CFR
429.14, and the certification report shall indicate that non-
standard sensor locations were used.
* * * * *
0
8. In Appendix B to subpart B of part 430, revise paragraph 5.1 to read
as follows:
Appendix B to Subpart B of Part 430--Uniform Test Method for Measuring
the Energy Consumption of Freezers
* * * * *
5. Test Measurements
5.1 Temperature Measurements. Temperature measurements shall be
made at the locations prescribed in Figure 5-2 of HRF-1-2008
(incorporated by reference; see Sec. 430.3) and shall be accurate
to within 0.5 [deg]F (0.3 [deg]C).
If the interior arrangements of the cabinet do not conform with
those shown in Figure 5.2 of HRF-1-2008, the product may be tested
by relocating the temperature sensors from the locations specified
in the figures to avoid interference with hardware or components
within the cabinet, in which case the specific locations used for
the temperature sensors shall be noted in the test data records
maintained by the manufacturer in accordance with 10 CFR 429.14, and
the certification report shall indicate that non-standard sensor
locations were used.
* * * * *
0
9. In Appendix B1 to subpart B of part 430, revise paragraph 5.1 to
read as follows:
Appendix B1 to Subpart B of Part 430--Uniform Test Method for Measuring
the Energy Consumption of Freezers
* * * * *
5. Test Measurements
5.1 Temperature Measurements. Temperature measurements shall be
made at the locations prescribed in Figure 7.2 of HRF-1-1979
(incorporated by reference; see Sec. 430.3) and shall be accurate
to within 0.5 [deg]F (0.3 [deg]C).
[[Page 12503]]
If the interior arrangements of the cabinet do not conform with
those shown in Figure 7.2 of HRF-1-1979, the product may be tested
by relocating the temperature sensors from the locations specified
in the figures to avoid interference with hardware or components
within the cabinet, in which case the specific locations used for
the temperature sensors shall be noted in the test data records
maintained by the manufacturer in accordance with 10 CFR 429.14, and
the certification report shall indicate that non-standard sensor
locations were used.
* * * * *
Subpart F [Removed and Reserved]
0
10. 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
0
11. The authority citation for part 431 continues to read as follows:
Authority: 42 U.S.C. 6291-6317.
0
12. In Sec. 431.2 add the definitions of ``alternate efficiency
determination method or AEDM,'' ``Commercial HVAC &WH product,''
``Energy conservation standard,'' ``Flue loss,'' ``Industrial
equipment,'' and ``Private labeler,'' in alphabetical order to read as
follows:
Sec. 431.2 Definitions.
* * * * *
Alternate efficiency determination method or AEDM means a method of
calculating the efficiency of a commercial HVAC and WH product, in
terms of the descriptor used in or under section 342(a) of the Act to
state the energy conservation standard for that product.
Commercial HVAC & WH product means any small or large commercial
package air-conditioning and heating equipment, packaged terminal air
conditioner, packaged terminal heat pump, commercial packaged boiler,
hot water supply boiler, commercial warm air furnace, instantaneous
water heater, storage water heater, or unfired hot water storage tank.
* * * * *
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
found in this part or parts 430 or 431.
* * * * *
Flue loss means the sum of the sensible heat and latent heat above
room temperature of the flue gases leaving the appliance.
* * * * *
Industrial equipment means an article of equipment, regardless of
whether it is in fact distributed in commerce for industrial or
commercial use, of a type which:
(1) In operation consumes, or is designed to consume energy;
(2) To any significant extent, is distributed in commerce for
industrial or commercial use; and
(3) Is not a ``covered product'' as defined in Section 321(2) of
EPCA, 42 U.S.C. 6291(2), other than a component of a covered product
with respect to which there is in effect a determination under Section
341(c) of EPCA, 42 U.S.C. 6312(c).
* * * * *
Private labeler means, with respect to a commercial HVAC & WH
product, an owner of a brand or trademark on the label of a product
which bears a private label. A commercial HVAC & WH product bears a
private label if:
(1) Such product (or its container) is labeled with the brand or
trademark of a person other than a manufacturer of such product;
(2) The person with whose brand or trademark such product (or
container) is labeled has authorized or caused such product to be so
labeled; and
(3) The brand or trademark of a manufacturer of such product does
not appear on such label.
* * * * *
0
13. In Sec. 431.62 revise the definition of ``Basic model'' to read as
follows:
Sec. 431.62 Definitions concerning commercial refrigerators, freezers
and refrigerator-freezers.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
Sec. 431.65 [Removed]
0
14. Section 431.65 is removed.
0
15. In Sec. 431.72 add in alphabetical order the definition of ``Basic
model'' to read as follows:
Sec. 431.72 Definitions concerning commercial warm air furnaces.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
0
16. In Sec. 431.82 add in alphabetical order the definition of ``Basic
model'' to read as follows:
Sec. 431.82 Definitions commercial packaged boilers.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
0
17. In Sec. 431.92 add in alphabetical order the definition of ``Basic
model'' to read as follows:
Sec. 431.92 Definitions concerning commercial air conditioners and
heat pumps.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
0
18. In Sec. 431.102 add in alphabetical order the definition of
``Basic model'' to read as follows:
Sec. 431.102 Definitions concerning commercial water heaters, hot
water supply boilers, and unfired hot water storage tanks.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
0
19. In Sec. 431.132 revise the definition of ``Basic model'' to read
as follows:
[[Page 12504]]
Sec. 431.132 Definitions concerning automatic commercial ice makers.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
Sec. 431.135 [Removed]
0
20. Section 431.135 is removed.
0
21. In Sec. 431.152 add the definition of ``Basic model'' in
alphabetical order to read as follows:
Sec. 431.152 Definitions concerning commercial clothes washers.
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
Subpart J [Removed and Reserved]
0
22. Remove and reserve Subpart J of Part 431, consisting of Sec. Sec.
431.171 through 431.176.
Sec. Sec. 431.197 and 431.198 [Removed]
0
23. Sections 431.197 and 431.198 are removed.
Appendix B to Subpart K of Part 431 [Removed]
0
23a. Appendix B to subpart K of part 431 is removed.
0
24. In Sec. 431.202 revise the definition of ``Basic model'' to read
as follows:
Sec. 431.202 Definitions concerning illuminated exit signs.
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
Sec. 431.205 [Removed]
0
25. Section 431.205 is removed.
0
26. In Sec. 431.222 revise the definition of ``Basic model'' to read
as follows:
Sec. 431.222 Definitions concerning traffic signal modules and
pedestrian modules.
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
Sec. 431.225 [Removed]
0
27. Section 431.225 is removed.
0
28. In Sec. 431.242 add in alphabetical order the definition of
``Basic model'' to read as follows:
Sec. 431.242 Definitions concerning unit heaters.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
0
29. In Sec. 431.262 revise the definition of ``Basic model'' to read
as follows:
Sec. 431.262 Definitions concerning commercial prerinse spray valves.
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
Sec. 431.265 [Removed]
0
30. Section 431.265 is removed.
0
31. In Sec. 431.292 revise the definition of ``Basic model'' to read
as follows:
Sec. 431.292 Definitions concerning refrigerated bottled or canned
beverage vending machines.
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency.
* * * * *
Sec. 431.295 [Removed]
0
32. Section 431.295 is removed.
0
33. In Sec. 431.302 add the definitions of ``Basic model'' and
``manufacturer of walk-in cooler or walk-in freezer'' in alphabetical
order to read as follows:
Sec. 431.302 Definitions concerning walk-in coolers and walk-in
freezers.
Basic model means all components of a given type of walk-in cooler
or walk-in freezer (or class thereof) manufactured by one manufacturer,
having the same primary energy source, and which have essentially
identical electrical, physical, and functional (or hydraulic)
characteristics that affect energy consumption, energy efficiency,
water consumption, or water efficiency; and
(1) With respect to panels, which do not have any differing
features or characteristics that affect U-factor.
(2) [Reserved]
Manufacturer of a walk-in cooler or walk-in freezer means any
person who:
(1) Manufactures a component of a walk-in cooler or walk-in freezer
that affects energy consumption, including, but not limited to,
refrigeration, doors, lights, windows, or walls; or
(2) Manufactures or assembles the complete walk-in cooler or walk-
in freezer.
* * * * *
0
34. In Sec. 431.322 revise the definition of ``Basic model'' to read
as follows:
Sec. 431.322 Definitions concerning metal halide lamp ballasts and
fixtures.
* * * * *
Basic model means all units of a given type of covered product (or
class thereof) manufactured by one manufacturer, having the same
primary energy source, and which have essentially identical electrical,
physical, and functional (or hydraulic) characteristics that affect
energy consumption, energy efficiency, water consumption, or water
efficiency, and are rated to operate a given lamp type and wattage.
* * * * *
Sec. 431.325 [Removed]
0
35. Section 431.325 is removed.
Sec. Sec. 431.327 through 431.329 [Removed]
0
36. Remove Sec. Sec. 431.327 through 431.329.
[[Page 12505]]
Appendices A Through C to Subpart S of Part 431 [Removed]
0
37. Remove Appendices A through C to subpart S of part 431.
Subpart T [Removed]
0
38. Remove Subpart T to part 431, consisting of Sec. Sec. 431.370
through 431.373, and Appendices A through D to subpart T of part 431 is
removed.
0
39. Revise the heading to Subpart U to read as follows:
Subpart U--Enforcement for Electric Motors
* * * * *
0
40. 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.
0
41. In Sec. 431.401 revise paragraph (b)(1) introductory text to read
as follows:
Sec. 431.401 Petitions for waiver, and applications for interim
waiver, of test procedure.
* * * * *
(b) Submission, content, and publication. (1) A Petition for Waiver
shall be submitted either electronically to [email protected] or by mail, in triplicate, to U.S. Department of
Energy, Building Technologies Program, Test Procedure Waiver, 1000
Independence Avenue, SW., Mailstop EE-2J, Washington, DC 20585-0121.
Each Petition for Waiver shall:
* * * * *
0
42. Revise Sec. 431.403 to read as follows:
Sec. 431.403 Maintenance of records for electric motors.
(a) Manufacturers of electric motors must establish, maintain and
retain records of the following:
(1) The test data for all testing conducted pursuant to this part;
(2) The development, substantiation, application, and subsequent
verification of any AEDM used under this part;
(3) Any written certification received from a certification
program, including a certificate or conformity, relied on under the
provisions of this part;
(b) You must organize such records and index them so that they are
readily accessible for review. The records must include the supporting
test data associated with tests performed on any test units to satisfy
the requirements of this part (except tests performed by DOE).
(c) For each basic model, you must retain all such records for a
period of two years from the date that production of all units of that
basic model has ceased. You must retain records in a form allowing
ready access to DOE, upon request.
0
43. Revise Sec. 431.404 to read as follows:
Sec. 431.404 Imported electric motors.
(a) Under sections 331 and 345 of the Act, any person importing an
electric motor into the United States must comply with the provisions
of the Act and of this part, and is subject to the remedies of this
part.
(b) Any electric motor offered for importation in violation of the
Act and of this part will be refused admission into the customs
territory of the United States under rules issued by the Secretary of
the Treasury, except that the Secretary of the Treasury may, by such
rules, authorize the importation of such electric motor upon such terms
and conditions (including the furnishing of a bond) as may appear to
the Secretary of the Treasury appropriate to ensure that such electric
motor will not violate the Act and this part, or will be exported or
abandoned to the United States.
0
44. Revise Sec. 431.405 to read as follows:
Sec. 431.405 Exported electric motors.
Under Sections 330 and 345 of the Act, this Part does not apply to
any electric motor if:
(a) Such electric motor is manufactured, sold, or held for sale for
export from the United States (or such electric motor was imported for
export), unless such electric motor is, in fact, distributed in
commerce for use in the United States; and,
(b) Such electric motor, when distributed in commerce, or any
container in which it is enclosed when so distributed, bears a stamp or
label stating that such electric motor is intended for export.
0
45. Revise Sec. 431.406 to read as follows:
Sec. 431.406 Subpoena--Electric Motors.
Pursuant to sections 329(a) and 345 of the Act, for purposes of
carrying out this part, the Secretary or the Secretary's designee, 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 a contempt thereof.
0
46. Revise Sec. 431.407 to read as follows:
Sec. 431.407 Confidentiality--Electric Motors.
Pursuant to the provisions of 10 CFR 1004.11, any manufacturer or
private labeler of electric motors submitting information or data which
they believe to be confidential and exempt from public disclosure
should submit one complete copy, and 15 copies from which the
information believed to be confidential has been deleted. In accordance
with the procedures established at 10 CFR 1004.11, the Department shall
make its own determination with regard to any claim that information
submitted be exempt from public disclosure.
[FR Doc. 2011-3146 Filed 3-4-11; 8:45 am]
BILLING CODE 6450-01-P