PRESENTATION AT COMMERCIAL PRODUCTS WORKSHOP - 

STATUTORY FRAMEWORK 

My name is Ed Levy. I'm with DOE'S Office of General Counsel. I'm going to talk 

primarily about two topics. 

First, I'm going to describe in general terms the Federal laws that provide the framework 

for the DOE program under which this workshop is being held. 

Second, I'm going to summarize some of the specific provisions of these laws, particularly 

provisions pertinent to the issues that'll be discussed today. One of the things I'll try to address is 

the relationship, with regard to test procedures, between ASHRAEi Standard 90.1 and the DOE 

program. The labeling provisions will not be addressed in detail my presentation because they will 

be discussed later on in the workshop. 

Turning to the overall statutory framework, today's workshop is part of a Federal 

government energy conservation program for commercial products and consumer products other 

than automobiles. Most of the program's requirements for commercial products were adopted in 

the law commonly referred to as EPACT, the full name of wktch is the Energy Policy Act of 

1992. The provisions of EPACT that impose efficiency requirements for commercial products do 

not stand alone, and cannot be fully understood by looking only at EPACT. That's because these 

provisions of EPACT are amendments to a previously existing statute, the Energy Policy and 

Conservation Act, commonly referred to as "EPCA." I'll call it the E.P.C.A. 

The E.P.C.A. was first adopted in the 1970's. By 1992, when EPACT was enacted, the 

E,P.C.A had been amended several times and, for certain consumer products, it either imposed or 

directed the adoption of (1) standards that each product would have to meet concerning energy 

use or efficiency, (2) test procedures to measure energy use or efficiency, and (3) energy labeling 

requirements. What EPACT did with respect to commer~ial products was to amend the E.P.C.A 

so that the same types of mandatory energy efficiency requirements - standards, test procedures 

and labeling -- would apply to these products as already applied to consumer products. The 

EPACT amendments consisted of some completely new provisions that were added to the 

E.P.C. A, and the macation of some existing provisions of the E.P.C. A These new and 

modiied provisions, along with some E.P.C.A provisions that were not ~hanged, provide the 

basis for DOE'S p of mandatory efficiency requirements for commercial products. A 

I want to discuss now a few of the spdc provisions that EPACT added to the E.P.C.A. 

First, EPACT added to the E.P.C.A definitions for the products we will be discussing 

today. There is, for example, a definition for "small conimercial package heating and air 

conditioning equi~ment'~, a dfition for "large comerd package heating and air conditioning 

equipment", one for "packaged boiler", one for "storage water heater" and so on. These 

definitions are significant because the efficiency standard and test procedure that the statute 

mandates for a defined type of produh apply to all quipmat that meets the definition. In 

addition, DOE has limited discretion to revise these definitions. Although DOE can adopt in its 

 EE-TP-98-101 COMMENT 02EE

PRESENTATION AT COMMERCIAL PRODUCTS WORKSHOP -

STATUTORY FRAMEWORK 

My name is Ed Levy. I'm with DOE's Office of General Counsel. I'm going to talk 

primarily about two topics. 

First, I'm going to describe in general terms the Federal laws that provide the framework 

for the DOE program under which this workshop is being held. 

Second, I'm going to summarize some of the specific provisions of these laws, particularly 

provisions pertinent to the issues that'll be discussed today. One of the things I'll try to address is 

the relationship, with regard to test procedures, between ASHRAE Standard 90.1 and the DOE 

program. The labeling provisions will not be addressed in detail my presentation because they will 

be discussed later on in the workshop. 

Turning to the overall statutory framework, today's workshop is part of a Federal 

government energy conservation program for commercial products and consumer products other 

than automobiles. Most of the program's requirements for commercial products were adopted in 

the law commonly referred to as EPACT, the full name of which is the Energy Policy Act of 

1992. The provisions ofEPACT that impose efficiency requirements for commercial products do 

not stand alone, and cannot be fully understood by looking only at EPACT. That's because these 

provisions ofEPACT are amendments to a previously existing statute, the Energy Policy and 

Conservation Act, commonly referred to as "EPCA" I'll call it the E.P.C.A 

The E.P.C.A was first adopted in the 1970's. By 1992, when EPACT was enacted, the 

E.P. C.A had been amended several times and, for certain consumer products, it either imposed or 

directed the adoption of (1) standards that each product would have to meet concerning energy 

use or efficiency, (2) test procedures to measure energy use or efficiency, and (3) energy labeling 

requirements. What EPACT did with respect to commercial products was to amend the E.P.C.A 

so that the same types of mandatory energy efficiency requirements -- standards, test procedures 

and labeling -- would apply to these products as already applied to consumer products. The 

EPACT amendments consisted of some completely new provisions that were added to the 

E.P.C.A, and the modification of some existing provisions of the E.P.C.A These new and. 

modified provisions, along with some E.P.C.A provisions that were not cluinged, provide the 

basis for DOE's program of mandatory efficiency requirements for commerci81 products. 

I want to discuss now a few of the specific provisions that EPACT added to the E.P.C.A 

First, EPACT added to the E.P.C.A definitions for the products we will be discussing 

today. There is, for example, a definition for "small commercial package heating and air 

conditiomng equipment", a definition for "large commercial package heating and air conditioning 

equipment", one for "packa8ed boiler", one for "storage water heater" <and so on. These 

definitions are significant because the efficiency standard and test procedure that the statute 

mandates for a defined type of produCt apply to all equipment that meets the definition. In 

addition, DOE has limited discretion to revise these definitions. Although DOE can adopt in its 

PRESENTATION AT COMMERCIAL PRODUCTS WORKSHOP -

STATUTORY FRAMEWORK 

My name is Ed Levy. I'm with DOE's Office of General Counsel. I'm going to talk 

primarily about two topics. 

First, I'm going to describe in general terms the Federal laws that provide the framework 

for the DOE program under which this workshop is being held. 

Second, I'm going to summarize some of the specific provisions of these laws, particularly 

provisions pertinent to the issues that'll be discussed today. One of the things I'll try to address is 

the relationship, with regard to test procedures, between ASHRAE Standard 90.1 and the DOE 

program. The labeling provisions will not be addressed in detail my presentation because they will 

be discussed later on in the workshop. 

Turning to the overall statutory framework, today's workshop is part of a Federal 

government energy conservation program for commercial products and consumer products other 

than automobiles. Most of the program's requirements for commercial products were adopted in 

the law commonly referred to as EPACT, the full name of which is the Energy Policy Act of 

1992. The provisions ofEPACT that impose efficiency requirements for commercial products do 

not stand alone, and cannot be fully understood by looking only at EPACT. That's because these 

provisions ofEPACT are amendments to a previously existing statute, the Energy Policy and 

Conservation Act, commonly referred to as "EPCA" I'll call it the E.P.C.A 

The E.P.C.A was first adopted in the 1970's. By 1992, when EPACT was enacted, the 

E.P. C.A had been amended several times and, for certain consumer products, it either imposed or 

directed the adoption of (1) standards that each product would have to meet concerning energy 

use or efficiency, (2) test procedures to measure energy use or efficiency, and (3) energy labeling 

requirements. What EPACT did with respect to commercial products was to amend the E.P.C.A 

so that the same types of mandatory energy efficiency requirements -- standards, test procedures 

and labeling -- would apply to these products as already applied to consumer products. The 

EPACT amendments consisted of some completely new provisions that were added to the 

E.P.C.A, and the modification of some existing provisions of the E.P.C.A These new and. 

modified provisions, along with some E.P.C.A provisions that were not cluinged, provide the 

basis for DOE's program of mandatory efficiency requirements for commerci81 products. 

I want to discuss now a few of the specific provisions that EPACT added to the E.P.C.A 

First, EPACT added to the E.P.C.A definitions for the products we will be discussing 

today. There is, for example, a definition for "small commercial package heating and air 

conditiomng equipment", a definition for "large commercial package heating and air conditioning 

equipment", one for "packa8ed boiler", one for "storage water heater" <and so on. These 

definitions are significant because the efficiency standard and test procedure that the statute 

mandates for a defined type of produCt apply to all equipment that meets the definition. In 

addition, DOE has limited discretion to revise these definitions. Although DOE can adopt in its 
regulations definitions that interpret, clarifjr and elaborate on the statutory definitions, DOE 

cannot narrow or expand or otherwise alter a definition solely on the ground that in DOE'S 

judgment the scope of coverage under the statute should be changed. 

A second point I would make concerning definitions is that some of the statutory 

definitions for commercial products are delineated by the E.P.C.A definitions for consumer 

products. The statute provides that "industrial equipment", which refers to equipment distributed 

for commercial or industrial use, shall not include any equipment that is covered under the 

E.P.C.A. as a consumer product. Therefore, if a commercial product definition is worded such 

that it could include consumer products -- and 1 think the definition of "storage water heater" is 

an example of that -- then that definition must be read in conjunction with the definitions for 

consumer products. Any equipment that would be included in a consumer product definition, and 

hence would be covered under the E.P.C.A. as a consumer product, would not be covered by the 

provisio& applicable to commercial products. 

1 want to discuss now the requirements for test procedures. Under the statute, test 

procedures serve the same functions for commercial products as for consumer appliances: first, 

they provide a means for determining compliance with the applicable efficiency standards; second, 

they must be used as a basis for any representations by a manufacturer, on labels and in 

advertising for example, as to the energy eaciency of the product. The general criteria governing 

the content of test procedures for commercial products are also very similar to the criteria for 

appliance test procedures: they must be reasonably designed to produce test results that reflect 

energy efficiency, energy use, and estimated operating costs, and cannot be unduly burdensome to 

conduct. Incidentally, this is an example of an E.P.C. A. provision that is not in EPACT. It was in 

the statute prior to the enactment of EPACT, and has been retained. 

There is one significant difference, however, between the test procedure provisions fof 

commercial and consumer products. For virtually all consumer products DOE has the authority 

to determine the test procedure, but for commercial products the statute prescribes speciiically the 

test procedures to be used initially, and limits DOE'S authority to mike subsequent amendments. 

The statute states that, for all products to which standards are applicable, "the test procedures 

shall be those generally accepted industry testing procedures or rating procedures developed or 

recogtuzed by the ARI or by the AS-, as referenced in ASHRAT3mS Standard 90.1 and in 

effect on June 30, 1992." Moreover, ifa test procedure referenced in 90.1 is subsequently 

amended, DOE must mend its test procedure to be consistent with the amended 90.1 test 

procedure, unless the Deparhnent determines, based on clear and convincing evidence, that use of 

the new industry test procedure would not be reasonably designed to produce test results that 

reflect energy efficiency, energy use, and estimated operating costs, or would be unduly 

burdensome to conduct. In esserice, DOE would have to adopt an ASHRAT3 amendment to a test 

procedure in Standard 90.1 unless the amendment conflicted with the basic statutory criteria for 

test procedures. 

So basically, if ASHRAE 90.1 contains a test procedure for a product, and that test 

procedure has not been amended since June 30, 1992, the test procedure would apply under the 

Federal energy eaciency program, for commercial products, and DOE would have to adopt it. 

 EE-TP-98-101 COMMENT 02EE

regulations definitions that interpret, clarify and elaborate on the statutory definitions, DOE 

cannot narrow or expand or otherwise alter a definition solely on the ground that in DOE's 

judgment the scope of coverage under the statute should be changed. 

A second point I would make concerning definitions is that some of the statutory 

definitions for commercial products are delineated by the E.P.C.A definitions for consumer 

products. The statute provides that "industrial equipment", which refers to equipment distributed 

for commercial or industrial use, shall not include any equipment that is covered under the 

E.P.C.A as a consumer product. Therefore, if a commercial product definition is worded such 

that it could include consumer products -- and I think the definition of "storage water heater" is 

aD. example of that -- then that definition must be read in conjunCtion with the definitions for 

consumer products. Any equipmentthat would be included in a consumer product definition, and 

hence would be covered under the E.P.C.A as a consumer product, would not be covered by the 

provisions applicable to commercial products. 

I want to discuss now the requirements for test procedures. Under the statute, test 

procedures serve the same functions for commercial products as for consumer appliances: first, 

they provide a means for determining compliance with the applicable efficiency standards; second, 

they must be used as a basis for any representations by a manufacturer, on labels and in 

advertising for example, as to the energy efficiency of the product. The general criteria governing 

the content of test procedures for commercial products are also very similar to the criteria for 

appliance test procedures: they must be reasonably designed to produce test results that reflect 

energy efficiency, energy use," and estimated operating costs, and cannot be unduly burdensome to 

conduct. Incidentally, this is an example of an E.P.C.A provision that is not in EPACT. It was in 

the statute prior to the enactment ofEPACT, and has been retained. 

There is one significant difference, however, between the test procedure provisions fof 

commercial and consumer products. For virtually all consumer products DOE has the authority 

to determine the test procedure, but for commercial products the statute prescribes specifically the 

test procedures to be used initially, and limits DOE's authority to make subsequent amendments. 

The statute states that, for all products to which standards are applicable, "the test procedures 

shall be those generally accepted industry testing procedures or rating procedures developed or 

recognized by the ARI or by the ASHRAE, as referenced in ASHRAEIIES Standard 90.1 and in 

effect on June 30, 1992." Moreover, if a test procedure referenced in 90.1 is subsequently 

amended. DOE must amend its test procedure to be consistent with the amended 90.1 test 

procedure, unless the Department determines, based on clear and convincing evidence, that use of 

the new industry test procedure would not be reasonably designed to produce test results that 

reflect energy efficiency, energy use, and estimated operating costs, or would be unduly 

burdensome to conduct. In essence, DOE would have to adopt an ASHRAE amendment to a test 

procedure in Standard 90.1 unless the amendment conflicted with the basic statutory criteria for 

test procedures. 

So basically, if ASHRAE 90.1 contains a test procedure for a product, and that test 

procedure has not been amended since June 30, 1992, the test procedure would apply under the 

Federal energy efficiency program for commercial products, and DOE would have to adopt it. 

regulations definitions that interpret, clarify and elaborate on the statutory definitions, DOE 

cannot narrow or expand or otherwise alter a definition solely on the ground that in DOE's 

judgment the scope of coverage under the statute should be changed. 

A second point I would make concerning definitions is that some of the statutory 

definitions for commercial products are delineated by the E.P.C.A definitions for consumer 

products. The statute provides that "industrial equipment", which refers to equipment distributed 

for commercial or industrial use, shall not include any equipment that is covered under the 

E.P.C.A as a consumer product. Therefore, if a commercial product definition is worded such 

that it could include consumer products -- and I think the definition of "storage water heater" is 

aD. example of that -- then that definition must be read in conjunCtion with the definitions for 

consumer products. Any equipmentthat would be included in a consumer product definition, and 

hence would be covered under the E.P.C.A as a consumer product, would not be covered by the 

provisions applicable to commercial products. 

I want to discuss now the requirements for test procedures. Under the statute, test 

procedures serve the same functions for commercial products as for consumer appliances: first, 

they provide a means for determining compliance with the applicable efficiency standards; second, 

they must be used as a basis for any representations by a manufacturer, on labels and in 

advertising for example, as to the energy efficiency of the product. The general criteria governing 

the content of test procedures for commercial products are also very similar to the criteria for 

appliance test procedures: they must be reasonably designed to produce test results that reflect 

energy efficiency, energy use," and estimated operating costs, and cannot be unduly burdensome to 

conduct. Incidentally, this is an example of an E.P.C.A provision that is not in EPACT. It was in 

the statute prior to the enactment ofEPACT, and has been retained. 

There is one significant difference, however, between the test procedure provisions fof 

commercial and consumer products. For virtually all consumer products DOE has the authority 

to determine the test procedure, but for commercial products the statute prescribes specifically the 

test procedures to be used initially, and limits DOE's authority to make subsequent amendments. 

The statute states that, for all products to which standards are applicable, "the test procedures 

shall be those generally accepted industry testing procedures or rating procedures developed or 

recognized by the ARI or by the ASHRAE, as referenced in ASHRAEIIES Standard 90.1 and in 

effect on June 30, 1992." Moreover, if a test procedure referenced in 90.1 is subsequently 

amended. DOE must amend its test procedure to be consistent with the amended 90.1 test 

procedure, unless the Department determines, based on clear and convincing evidence, that use of 

the new industry test procedure would not be reasonably designed to produce test results that 

reflect energy efficiency, energy use, and estimated operating costs, or would be unduly 

burdensome to conduct. In essence, DOE would have to adopt an ASHRAE amendment to a test 

procedure in Standard 90.1 unless the amendment conflicted with the basic statutory criteria for 

test procedures. 

So basically, if ASHRAE 90.1 contains a test procedure for a product, and that test 

procedure has not been amended since June 30, 1992, the test procedure would apply under the 

Federal energy efficiency program for commercial products, and DOE would have to adopt it. 
DOE probably has the authority to address situations such as where 90.1 has more than one test 

procedure that applies to a particular product, or where the test procedure in 90.1 for a product 

provides no means to measure or calculate for an efficiency descriptor in the standard for that 

product. And I would not want to rule out flatly the possibility that DOE would have the 

authority to make other changes to a test procedure in 90.1. But my basic point here is that DOE 

has limited discretion to alter a test procedure that has been in ASHUE 90.1, without 

amendment, since June 1992. 

And that is not changed by the fact that AS- is considering amendments to a test 

procedure in Standard 90.1. Unless and until amendments to 90.1 are actually adopted by 

ASHRAE, DOE could not incorporate them into its test procedures in this program, except in 

very limited circumstances. As I understand it, ASHRAE is currently reviewing proposed 

amendments to test procedures in 90.1. But for the reasons I've just stated, these amendments 

could not be used in this program until they are formally incorporated into 90.1. 

Once, however, ASHMI3 does adopt amendments to a test procedure in 90.1, or to the 

extent it has done so since June 1992, then DOE is obligated to consider those amendments. And 

DOE must adopt such amendments unless it determines that they are inconsistent with the basic 

test procedure criteria in the statute. If DOE does make such a determination, it could either 

leave the existing test procedures in place, or adopt the 90.1 amendments with modifications, or 

adopt a completely diierent test procedure. 

That concludes my presentation. Are there any questions at this point? 

 EE-TP-98-101 COMMENT 02EE

DOE probably has the authority to address situations such as where 90.1 has more than one test 

procedure that applies to a particular product, or where the test procedure in 90.1 for a product 

provides no means to measure or calculate for an efficiency descriptor in the standard for that 

product. And I would not want to rule out flatly the possibility that DOE would have the 

authority to make other changes to a test procedure in 90.1. But my basic point here is that DOE 

has limited discretion to alter a test procedure that has been in ASHRAE 90.1, without 

amendment, since June 1992. . 

And that is not changed by the fact that ASHRAE is considering amendments to a test 

procedure in Standard 90.1. Unless and until amendments to 90.1 are actually adopted by 

ASHRAE, DOE could not incorporate them into its test procedures in this program, except in 

very limited circumstances. As I understand it, ASHRAE is currently reviewing proposed 

amendments to test procedures in 90.1. But for the reasons I've just stated, these amendments 

could not be used in this program until they are formally incorporated into 90.1. 

Once, however, ASHRAE does adopt amendments to a test procedure in 90.1, or to the 

extent it has done so since June 1992, then DOE is obligated to consider those amendments. And 

DOE must adopt such amendments 'unless it determines that they are inconsistent with the basic 

test procedure criteria in the statute. If DOE does make such a determination, it could either 

leave the existing test procedures in place, or adopt the 90.1 amendments with modifications, or 

adopt a completely different test procedure. 

That concludes my presentation. Are there any questions at this point? 

DOE probably has the authority to address situations such as where 90.1 has more than one test 

procedure that applies to a particular product, or where the test procedure in 90.1 for a product 

provides no means to measure or calculate for an efficiency descriptor in the standard for that 

product. And I would not want to rule out flatly the possibility that DOE would have the 

authority to make other changes to a test procedure in 90.1. But my basic point here is that DOE 

has limited discretion to alter a test procedure that has been in ASHRAE 90.1, without 

amendment, since June 1992. . 

And that is not changed by the fact that ASHRAE is considering amendments to a test 

procedure in Standard 90.1. Unless and until amendments to 90.1 are actually adopted by 

ASHRAE, DOE could not incorporate them into its test procedures in this program, except in 

very limited circumstances. As I understand it, ASHRAE is currently reviewing proposed 

amendments to test procedures in 90.1. But for the reasons I've just stated, these amendments 

could not be used in this program until they are formally incorporated into 90.1. 

Once, however, ASHRAE does adopt amendments to a test procedure in 90.1, or to the 

extent it has done so since June 1992, then DOE is obligated to consider those amendments. And 

DOE must adopt such amendments 'unless it determines that they are inconsistent with the basic 

test procedure criteria in the statute. If DOE does make such a determination, it could either 

leave the existing test procedures in place, or adopt the 90.1 amendments with modifications, or 

adopt a completely different test procedure. 

That concludes my presentation. Are there any questions at this point?