6450-01-P 

DEPARTMENT OF ENERGY
 

10 CFR Parts 430 and 431
 

Docket No. EERE-2010-BT-CE-0014
 

RIN 1904-AC23 

Revisions to Energy Efficiency Enforcement Regulations 

AGENCY: Office of Energy Efficiency and Renewable Energy and Office of the 

General Counsel, Department of Energy. 

ACTION: Request for Information (RFI); request for comment. 

SUMMARY: The U.S. Department of Energy (DOE or the “Department”) intends to 

expand and revise its existing energy efficiency 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 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 upon a determination 

of noncompliance. To facilitate this process and to allow interested parties to provide 

suggestions, comments, and information, DOE is publishing this request for information. 

This request identifies several areas on which DOE is particularly interested in receiving 

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information; however, any input and suggestions considered relevant to the topic are 

welcome. 

DATES: Written comments and information are requested on or before [INSERT 

DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. 

ADDRESSES: Interested persons are encouraged to submit comments using the Federal 

eRulemaking Portal at www.regulations.gov. Follow the instructions for submitting 

comments. Alternatively, interested persons may submit comments, identified by docket 

number EERE-2010-BT-CE-0014, by any of the following methods: 

•	 E-mail: to EnforcementRFI@hq.DOE.gov. Include EERE-2010-BT-CE-0014 in 

the subject line of the message. 

•	 Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies 

Program, Mailstop EE–2J, Revisions to Energy Efficiency Enforcement 

Regulations, EERE-2010-BT-CE-0014, 1000 Independence Avenue, SW., 

Washington, DC 20585–0121. Phone: (202) 586–2945. Please submit one signed 

paper original. 

•	 Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, 

Building Technologies Program, 6th Floor, 950 L’Enfant Plaza, SW., 

Washington, DC 20024. Phone: (202) 586–2945. Please submit one signed paper 

original. 

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Instructions: All submissions received must include the agency name and docket number 

or RIN for this rulemaking. 

Docket: For access to the docket to read background documents, or comments received, 

go to the Federal eRulemaking Portal at www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Direct requests for additional 

information may be sent to Ms. Celia Sher, U.S. Department of Energy, Office of the 

General Counsel, Forrestal Building, GC-71, 1000 Independence Avenue, SW., 

Washington, DC 20585. Telephone: 202-287-6122. E-mail: Celia.Sher@hq.doe.gov; and 

Mr. Richard Karney, 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: 202-586-9449. E-mail: 

Richard.Karney@ee.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Authority and Background: EPCA authorizes DOE to enforce compliance with the 

energy and water conservation standards (all references herein referring to energy use and 

consumption include water use and consumption; all references to energy efficiency 

include water conservation) established for certain consumer products and commercial 

equipment. 42 U.S.C. 6299-6305 (consumer products), 6316 (commercial and industrial 

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equipment). To ensure that all covered products distributed in the United States comply 

with DOE’s energy conservation standards, the Department has promulgated enforcement 

regulations that include specific certification and compliance requirements. See Title 10 

of the Code of Federal Regulations (10 CFR) part 430, subpart F; 10 CFR part 431, 

subparts B, K, S, T, U, and V. 

The Department is considering revising its enforcement procedures to ensure that 

all of its energy efficiency regulations are rigorously and consistently enforced. The 

Department is issuing this initial request for information to allow interested parties an 

opportunity to provide information that will assist DOE in reforming the existing 

enforcement process. This initial request will be followed by a notice of proposed 

rulemaking that will be based on the information received as a result of this notice and 

other data and information gathered by DOE. 

Public Participation 

A. Submission of Information 

DOE will accept comments in response to this RFI under the timeline provided in 

the DATES section above. Comments submitted to the Department through the 

eRulemaking Portal or by e-mail should be provided in WordPerfect, Microsoft Word, 

PDF, or text file format. Those responding should avoid the use of special characters or 

any form of encryption, and wherever possible, comments should include the electronic 

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signature of the author. Comments submitted to the Department by mail or hand 

delivery/courier should include one signed original paper copy. No telefacsimiles will be 

accepted. 

Comments submitted in response to this notice will become a matter of public 

record and will be made publicly available. 

The Department encourages interested parties to contact DOE if they would like 

to meet in person to discuss their comments. The Department’s policy governing ex parte 

communications is posted on the Office of the General Counsel’s website at: 

www.gc.energy.gov/1309.htm. 

B. Issues on Which DOE Seeks Information 

For this RFI, DOE requests comments, information, and recommendations on the 

following concepts for the purpose of revising current enforcement regulations in Parts 

430 and 431 of 10 CFR. As set forth below, we seek comment on DOE’s requirements 

for (1) Certification; (2) Enforcement Testing and Adjudication; (3) Verification Testing; 

(4) Waivers; and (5) the Application of our Regulations to Distinctive Products. The 

sequence of these proposals does not reflect any specific DOE preference. 

1)	 Certification Requirements 

a.	 Under existing Department rules, manufacturers of covered products must 

satisfy a one-time certification requirement for each basic model. DOE would 

like to establish an annual certification requirement, similar to the Federal 

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Trade Commission’s (FTC) reporting requirements under the FTC’s 

Appliance Labeling Rule (see 16 CFR 305.8). DOE is also considering 

options to consolidate filings with FTC, the Environmental Protection 

Agency (EPA) and other agencies, as appropriate, to reduce the reporting 

burdens on manufacturers. To the extent there are covered products not 

already required to file annual reports with FTC, this would increase the 

reporting burden on the manufacturers of those products. What are the costs 

and benefits of switching to an annual filing process for certification? 

b.	 DOE is also considering implementing a recertification requirement when 

there is a change to a basic model that either increases or decreases energy 

efficiency or energy consumption. Section 10 CFR 430.62(b) presently 

provides for such reporting to DOE only if there is a change that increases 

energy consumption or decreases energy efficiency. This system creates a 

disconnect between the information certified to DOE and the energy 

consumption or energy efficiency of products actually on the market. DOE is 

looking for ways to have a more current and complete picture of the energy 

consumption and energy efficiency of the covered products being distributed 

in the U.S. Requiring recertification for any change in energy consumption or 

energy efficiency is one way to address this issue. With regard to 

recertification, should the Department establish a threshold percentage change 

in energy consumption or energy efficiency that must be reached before any 

recertification requirement is triggered? If we move to such a system, should 

the threshold percentage be product specific? Are there reasons why DOE 

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should not require recertification for energy efficiency improvements? For 

example, would such a requirement create a disincentive to making such 

improvements? If so, to what extent? Are there alternative ways to address 

the Department’s interest in obtaining more current and complete certification 

data? 

c.	 In conjunction with the possible recertification requirement referenced above, 

DOE is interested in pursuing improvements to the manner in which basic 

model numbers are designated, so that the number that is provided to DOE 

for certification is clearly associated with the model number used to identify 

the unit in the market. A more unified numbering system would assist the 

Department and the public in identifying the market-based model number that 

corresponds with what is certified to DOE. 

d.	 Under existing regulations, the sampling procedures to be used for 

compliance certification purposes are set forth in 10 CFR 430.24, and the 

sampling procedures to be used for enforcement testing (to determine 

compliance with the applicable energy conservation standard) are set forth in 

Appendix B to Subpart F of Part 430. The Department seeks comment 

regarding any needed changes in the current sampling plans and the reasons 

the changes are warranted for a given product. DOE seeks comment on 

whether the sampling procedures for compliance certification and 

enforcement testing should be identical. 

e.	 The regulations currently permit in-house, as well as independent, 

certification testing. In light of issues identified through DOE’s recent 

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enforcement efforts and the Government Accountability Office’s recent report 

on ENERGY STAR, DOE requests comment on whether all covered products 

should be required to be independently tested for certification purposes. 

f.	 Currently, the certification regulations allow a manufacturer or private labeler 

to elect to use a third party to submit certification reports to DOE. Should 

DOE continue to permit this practice? If so, what recourse should be 

available if a third party fails to follow through on filing for the manufacturer 

or labeler? Should that recourse be available if the third party fails just once 

to file on behalf of the manufacturer or labeler? Should DOE disallow a third 

party with a history of poor performance (e.g., failure to submit certification 

reports, submission of inaccurate information, submission of incomplete 

information) from acting as a third party representative? 

2)	 Enforcement Testing and Adjudication 

a.	 Pursuant to EPCA, DOE has authority to initiate enforcement actions to 

ensure compliance with its standards. The current regulations provide for 

enforcement testing upon DOE’s receipt of written information that a covered 

product may be violating a standard. DOE contemplates revising its 

procedures to allow the Department more flexibility in its initiation of 

enforcement actions. For example, DOE is considering initiating and 

performing its own testing at the DOE-owned National Energy Technology 

Laboratory (NETL) Appliance Technology Evaluation Center (ATEC). DOE 

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seeks comments on the use of its own facility for testing and the relationship 

of DOE testing as compared to industry testing. 

In addition, DOE contemplates initiating enforcement actions, as needed, in 

response to credible information, or with reference to a set of established 

factors, such as: manufacturer history of non-compliance; product class 

history of non-compliance; third party referrals from other regulatory 

agencies, advocacy groups, consumers, or competitors; models or 

technologies new to the marketplace; or other factors indicating that a model 

may not comply with the applicable standard. The Department seeks comment 

on this concept. Information relating to enforcement testing is also requested 

on the following: 

(i)	 Unit selection. How should units be selected for enforcement testing? 

For example, should the units be manufacturer provided, supplied by 

the manufacturer’s distributor, obtained off-the-shelf from a retailer, or 

should DOE have the ability to choose from any of these options? 

Should the cost allocation for the unit be the same regardless of how 

the product is obtained (e.g., off-the-shelf or manufacturer provided)? 

Under the current rules for enforcement testing, a manufacturer in 

receipt of a DOE test notice must ship a select number of units for 

testing as specified on the notice. In situations where the manufacturer 

keeps limited inventory, the manufacturer may need to build units 

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specifically for enforcement testing, rather than providing DOE offthe-shelf, or already manufactured units. This creates a circumstance 

vulnerable to bias, which could undermine the overall effectiveness of 

enforcement testing. Are there suggestions regarding how the 

Department should address unit selection in these situations? 

(ii)	 Cost allocation for testing. Should the cost of performing the 

enforcement testing be assumed by the manufacturer or DOE? Should 

the cost allocation of the testing be different if the product is found in 

compliance? What other factors should be taken into consideration 

when determining how to distribute the cost of testing? 

(iii)	 Sampling plan. The Department seeks comment regarding any needed 

changes in the current enforcement sampling plans and the reasons the 

changes are warranted for a given product. As discussed above, the 

Department seeks comment regarding the adequacy of the current 

sampling plan for enforcement testing and whether the plans for 

enforcement and certification testing should be identical. See Part B, 

Section 1) d. above. 

(iv)	 Manufacturer role. How should manufacturers be apprised of 

enforcement testing steps, including: test set up; test conditions; and 

test data and reports? Should manufacturers have the opportunity to 

do additional testing? If so, what conditions and timeframe should 

govern such testing? 

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3)	 Verification Testing 

a.	 DOE is considering instituting a new requirement for periodic verification 

testing that would be applicable to all basic models certified with DOE. This 

requirement would be separate from enforcement testing and would be used to 

verify that the units distributed into commerce continue to be at the certified 

levels. DOE seeks comment on whether DOE should require manufacturers 

and/or private labelers to perform verification testing according to specified 

conditions and criteria. 

b.	 With regard to such verification testing, the Department seeks comment on the 

following conditions and criteria: 

Information Flow 

(i)	 With what frequency should verification testing be required? What 

specific criteria should be used? Should this be an annual 

requirement? 

(ii)	 What percentage of basic models should be verification tested 

annually, and how should units be selected? How many units of each 

model should be tested? What level of tolerance would be acceptable 

if only one unit is tested? 

(iii)	 What level of information resulting from the verification testing 

should be communicated to DOE (e.g., test data, test reports, final 

results)? 

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(iv) When and with what frequency should verification testing information 

be communicated to DOE? Should performance of verification testing 

be documented on the certification report? 

(v)	 What steps should be taken if a basic model fails the verification 

testing? What information should be communicated to DOE and when 

should it be communicated? 

(vi)	 What level of access should DOE and its representatives have to 

testing done pursuant to DOE regulations (such as the ability to 

observe testing)? 

Testing Laboratories 

(i)	 DOE contemplates that testing done to verify compliance would be 

performed by independent labs. What level of independence from the 

manufacturer should be required? We also seek comment on whether 

we should require that verification testing be done by a different lab 

than the lab that performed the certification testing. 

(ii)	 DOE understands that some industry associations have in place or are 

currently developing verification testing programs. How should such 

industry verification programs tie into DOE’s verification testing 

process? How would ties to such programs affect those manufacturers 

that are not members of industry associations? What information 

should verification programs provide to DOE (i.e., test reports) and 

with what frequency? 

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(iii) Should DOE require labs to be accredited to international standards 

such as International Organization for Standardization/International 

Electrotechnical Commission (ISO/IEC) 17025, or specifically 

accredited to perform DOE testing? Should labs that manufacturers 

use for verification testing be accredited by DOE? By an accreditation 

body like the National Institute of Standards and Technology’s 

National Voluntary Laboratory Accreditation Program? 

(iv)	 What conditions should DOE require for labs doing verification testing 

to ensure unbiased, consistent, and robust results? For example, 

should DOE require that all labs performing verification testing be 

calibrated with the same frequency, in order to ensure consistency 

across labs? Should all verification testing labs be required to 

participate in round robin testing? How should such round robin 

testing be conducted to ensure accurate and consistent lab results? 

Cost 

(i)	 Should verification testing be paid for by the manufacturer or private 

labeler? DOE requests comments regarding the cost burden placed on 

manufacturers for the above described verification testing. Please 

provide a detailed description of the costs and supporting information. 

c.	 DOE seeks comment on whether it should conduct its own random 

verification testing of products separate from any required manufacturer 

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verification testing. If so, what conditions and criteria should govern DOE 

performed verification testing? 

4) Waivers 

Under existing regulations in 10 CFR 430.27, manufacturers have the 

option of seeking a waiver from the test procedure when a basic model contains a 

design characteristic that either prevents testing according to the prescribed test 

procedures or causes the test procedure to evaluate the basic model in a manner so 

unrepresentative of the model’s true energy consumption characteristics as to 

provide materially inaccurate comparative data. DOE is considering establishing a 

mandatory waiver requirement, which would obligate manufacturers to obtain a 

waiver in those instances 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. This requirement would 

apply whether the product consumes more energy or less energy than would be 

measured by the applicable test procedure. DOE requests comments on this 

concept. 

5) Application of Regulations to Distinctive Products 

DOE has an interest in creating a consistent, uniform enforcement 

framework across industries, manufacturers and products. Deviations from this 

approach must be justified based on distinctive product characteristics. We are 

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interested in comments on the following questions relating to products that may 

justify unique approaches to certification, verification, and enforcement: 

a. DOE understands some niche products or large commercial products are 

manufactured at very low quantities on a made-to-order basis. How should 

DOE’s testing requirements and procedures be applied to these products? For 

example, how should units of these products be selected for testing? 

b. Some products, such as electric motors, are distributed in commerce or 

imported into the U.S. as components of other products where the component 

product is not readily accessible. When products with regulated components 

are imported into the U.S., how can DOE best ensure that the components are 

compliant with U.S. regulations? 

Docket: For direct access to the docket to read background documents, or comments 

received, visit the U.S. Department of Energy, Resource Room of the Building 

Technologies Program, 950 L’Enfant Plaza, SW., Suite 600, Washington, DC, 20024, 

(202) 586-2945, between 9:00 a.m. and 4:00 p.m., Monday through Friday, except 

Federal holidays. Please call Ms. Brenda Edwards at the above telephone number for 

additional information regarding visiting the Resource Room. 

Procedural Requirements: Today’s regulatory action has been determined not to be a 

significant regulatory action under section 3(f)(1) of Executive Order 12866, “Regulatory 

Planning and Review”, 58 FR 51735 (Oct. 4, 1993). 

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