### PRESENTATIONAT COMMERCIAL PRODUCTS WORKSHOP

## - STATUTORYFRAMEWORK My name isEd Levy. I'm with DOE'S Office ofGeneral Counsel. I'm goingtotalk primarily about two topics. First, I'm goingto 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 goingto summarize some ofthe specific provisions ofthese laws, particularly provisions pertinent to the issuesthat'll be discussed today. One ofthe thingsI'll try to addressis the relationship, with regard to test procedures, between ASHRAEi Standard 90.1 and the DOE program. The labelingprovisionswill 

### not be addressedin detail my presentationbecause they will be discussed later on in the workshop. Turningtothe overall statutoryframework, today's workshop is part ofa Federal government energy conservationprogram for commercialproducts and consumer products other than automobiles. Most ofthe program's requirements for commercialproductswere adopted in the law commonlyreferredto asEPACT, the full name ofwktch is the Energy Policy Act of 1992. The provisionsofEPACT that impose efficiencyrequirementsfor commercialproducts do not stand alone, and cannot be fullyunderstood by looking only at EPACT. That's because these provisions ofEPACT are amendmentstoa previously existing statute, the EnergyPolicy and Conservation Act, commonlyreferred to as "EPCA." I'll call it theE.P.C.A.
TheE.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

### consumerproducts, it eitherimposed or directedthe adoption of(1) standardsthat each product would haveto meet concerning energy
use or efficiency, (2) 

### test procedurestomeasureenergyuse or efficiency, and (3) 

### energy labeling requirements. What EPACT did with respect tocommer~ial productswasto amend the E.P.C.A
sothat the sametypes ofmandatory energy efficiencyrequirements

# - standards,test procedures and labeling

## -- would applytothese products 

### as already appliedtoconsumerproducts. The EPACT amendments consisted 

### of somecompletelynew provisionsthat were added tothe E.P.C.A, 

### and the macationofsome existing provisions oftheE.P.C.A 

### Thesenew and modiied provisions, alongwith some E.P.C.A provisionsthat were not 

### ~hanged, providethe basis forDOE'S p ofmandatoryefficiencyrequirementsfor commercialproducts.

A


### I want to discussnow a few ofthe spdc provisionsthat EPACT addedtotheE.P.C.A. First, EPACT addedtotheE.P.C.A definitionsforthe productswe will be discussing today. Thereis, for example, a definitionfor "small conimercialpackage heating 

### and 

### air conditioning equi~ment'~, a dfitionfor "large comerd package heating and 

### air conditioning equipment", onefor 

### "packaged boiler", one for "storage water heater" and 

### so on. These definitionsare significantbecausethe efficiency standardand testprocedure that the statute mandates for

### a definedtypeofproduh applyto 

### all quipmatthat meetsthe definition. In 

### addition, DOE

### has limited discretion

### to revisethesedefinitions. AlthoughDOE 

### can adopt 

### in its PRESENTATION AT COMMERCIAL PRODUCTS WORKSHOP

- STATUTORY FRAMEWORK My name is Ed Levy. I'mwith DOE's Office ofGeneral 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 ofthe specific provisions ofthese laws, particularly provisions pertinent to the issues that'll be discussed today. One ofthe 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 ofa Federal government energy conservation program for commercial products and consumer products other than automobiles. Most ofthe program's requirements for commercial products were adopted in the law commonly referred to as EPACT, the full name ofwhich 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 ofmandatory energy efficiency requirements

-- standards, test procedures and labeling

-- would apply to these products as already applied to consumer products. The EPACT amendments consisted ofsome completely new provisions that were added to the E.P.C.A, and the modification ofsome existing provisions ofthe E.P.C.A These new and. modified provisions, along with some E.P.C.Aprovisions that were not cluinged, provide the basis for DOE's program ofmandatory efficiency requirements for commerci81 products.

I want to discuss now a few ofthe 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 ofproduCt 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'mwith DOE's Office ofGeneral 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 ofthe specific provisions ofthese laws, particularly provisions pertinent to the issues that'll be discussed today. One ofthe 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 ofa Federal government energy conservation program for commercial products and consumer products other than automobiles. Most ofthe program's requirements for commercial products were adopted in the law commonly referred to as EPACT, the full name ofwhich 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 ofmandatory energy efficiency requirements

-- standards, test procedures and labeling

-- would apply to these products as already applied to consumer products. The EPACT amendments consisted ofsome completely new provisions that were added to the E.P.C.A, and the modification ofsome existing provisions ofthe E.P.C.A These new and. modified provisions, along with some E.P.C.Aprovisions that were not cluinged, provide the basis for DOE's program ofmandatory efficiency requirements for commerci81 products.

I want to discuss now a few ofthe 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 ofproduCt 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 definitionsthat interpret, clarifjrand elaborateon the statutorydefinitions, DOE cannot narrow or expand or otherwise alter a definition solely on the ground that in DOE'S judgment the scope ofcoverage under the statute shouldbe changed.

A second point 

### I would make concerning definitions isthat some of the statutory definitionsfor commercialproducts are delineatedby the E.P.C.A definitionsfor consumer products. The statute providesthat "industrial equipment", which refers to equipment distributed for commercial orindustrialuse, shallnot include any equipmentthat is covered under the E.P.C.A. 

### as a consumerproduct. Therefore, if a commercial product definitionis worded such that it could includeconsumerproducts

## -- and 1 

### think the definition of "storage water heater" is an example ofthat 

## -- then that definition must be read in conjunctionwith the definitionsfor
consumerproducts. Any equipmentthat would be included in a consumer product definition, and hence would be coveredunder the E.P.C.A. as a consumer product, would not be coveredby the provisio& applicableto commercial products.

1



### want todiscuss now the requirementsfor test procedures. Under the statute, test procedures servethe samefunctionsfor commercialproducts asfor consumerappliances: first, they provide a means for determining compliance with the applicableefficiency standards; second, they must be used 

### as a basis for any representationsby a manufacturer, on labels and in advertising for example, astothe energy eaciency of the product. The general criteria governing the content oftest proceduresfor commercialproducts are also very similartothe criteriafor appliancetest procedures: they must be reasonablydesigned to produce test resultsthat reflect energy efficiency, energyuse, and estimated operating costs, and cannot be unduly burdensome to conduct. Incidentally,this is an example ofan E.P.C. A. provision that is not in EPACT. It was in the statuteprior tothe enactment ofEPACT, and has been retained.
Thereis one significant difference, however, between the test procedureprovisions fof commercial and consumer products. For virtually all consumerproducts DOE has the authority to determinethetest procedure, but for commercialproducts the statuteprescribes speciiicallythe test procedurestobe used initially, and limitsDOE'S authoritytomike subsequentamendments. The statute statesthat, for all productstowhich standardsare applicable, "the test procedures shallbe thosegenerally accepted industrytesting procedures orratingproceduresdeveloped or recogtuzed by the

### ARI orby the

### AS-, asreferenced in ASHRAT3mS Standard90.1 and in effect onJune 30, 1992." Moreover, ifatest procedure referenced in 90.1 is subsequently amended,DOE must mend its test proceduretobe consistent with the amended 90.1 test procedure, unless the Deparhnent determines,based on clear and convincingevidence, that use of the new industrytest procedure would not be reasonably designedtoproduce test resultsthat reflect energy efficiency, energy use, and estimated operating costs, orwould be unduly burdensometoconduct. 

### In esserice, DOE would have to adopt anASHRAT3 amendmentto a test procedure in Standard90.1 unless

### the amendment conflicted

### with thebasic statutorycriteriafor test procedures.
Sobasically, if

### ASHRAE 90.1 

### contains a test procedure for a product, and that test procedure has not been amended sinceJune 30, 1992,the test procedurewould applyunderthe Federal energy eaciencyprogram, for commercialproducts, 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 ofcoverage 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 orindustrial 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 ofthat

-- 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 ofthe product. The general criteria governing the content oftest 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 ofan E.P.C.A provision that is not in EPACT. Itwas 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. Forvirtually 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, "thetest procedures shall be those generally accepted industry testing procedures orrating procedures developed or recognized by the ARI orby the ASHRAE, as referenced in ASHRAEIIES Standard 90.1 and in effect on June 30, 1992." Moreover, ifa test procedure referenced in 90.1 is subsequently amended. DOE must amend its test procedureto 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. Inessence, DOE would have to adopt anASHRAE amendment to a test procedure in Standard 90.1 unless the amendment conflicted with the basic statutory criteria for test procedures.

Sobasically, ifASHRAE 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 ofcoverage 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 orindustrial 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 ofthat

-- 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 ofthe product. The general criteria governing the content oftest 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 ofan E.P.C.A provision that is not in EPACT. Itwas 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. Forvirtually 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, "thetest procedures shall be those generally accepted industry testing procedures orrating procedures developed or recognized by the ARI orby the ASHRAE, as referenced in ASHRAEIIES Standard 90.1 and in effect on June 30, 1992." Moreover, ifa test procedure referenced in 90.1 is subsequently amended. DOE must amend its test procedureto 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. Inessence, DOE would have to adopt anASHRAE amendment to a test procedure in Standard 90.1 unless the amendment conflicted with the basic statutory criteria for test procedures.

Sobasically, ifASHRAE 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 authorityto address situations such as where 90.1 has more than one test procedurethat applies to a particular product, or where the test procedure in 90.1for a product provides no means to measure or calculatefor 

### an efficiency descriptorin the standard for that product. And 

### I would not want torule out flatly the possibility that DOE would have the authorityto make other changesto a test procedure in 90.1. But my basic point here is that DOE has limited discretionto alter a test procedure that 

### has been in ASHUE90.1,without amendment, sinceJune 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 amendmentsto 90.1 are actually adoptedby ASHRAE, DOE could not incorporatethem into its test proceduresin thisprogram, except in very limited circumstances. As I understand it, ASHRAE is currently reviewing proposed amendments totest procedures in 90.1. But for the reasons I'vejust stated, these amendments could not be used in this program until they are formally incorporatedinto 90.1.
Once, however, ASHMI3does adopt amendmentstoa test procedurein 90.1, or tothe extent it has done 

### so sinceJune 1992,then DOE is obligatedto considerthose amendments. And DOE must adopt such amendments unless it determinesthat they are inconsistent

### with the basic test procedure criteriain the statute. 

### IfDOE does make such a determination, it could either leavethe existingtest procedures in place, or adopt the 90.1amendmentswith modifications, or adopt a completely diierent test procedure.
That concludesmy 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'vejust 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. IfDOE 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'vejust 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. IfDOE 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?