144 Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 

1For 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. 

DEPARTMENT OF ENERGY 

10 CFR Part 429 

[Docket No. EERE–2011–BT–TP–0024] 

RIN 1904–AC46 

Energy Conservation Program: 

Alternative Efficiency Determination 

Methods and Compliance for 

Commercial HVAC, Refrigeration, and 

Water Heating Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE) is revising its regulations 

governing DOE verification testing of 

industrial equipment covered by EPCA 

rated with alternative efficiency 

determination methods (AEDMs). These 

regulations arose from a negotiated 

rulemaking effort on issues regarding 

the certification of commercial heating, 

ventilating, air-conditioning (HVAC), 

water heating (WH), and refrigeration 

equipment. 

DATES: Effective: February 4, 2015. 

ADDRESSES: This rulemaking can be 

identified by docket number EERE– 

2011–BT–TP–0024 and/or RIN 1904– 

AC46. 

Docket: The docket is available for 

review at www.regulations.gov, 

including Federal Register notices, 

public meeting attendee lists and 

transcripts, comments, and other 

supporting documents/materials. All 

documents in the docket are listed in 

the www.regulations.gov index. 

However, not all documents listed in 

the index may be publicly available, 

such as information that is exempt from 

public disclosure. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ashley Armstrong, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Office, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. Email: 

Ashley.Armstrong@ee.doe.gov; 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. Email: 

Laura.Barhydt@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Authority and Background 

Authority 

Background 

II. Discussion of Specific Revisions to DOE’s 

Regulations for Alternative Efficiency 

Determination Methods Verification 

Testing 

III. Procedural Issues and Regulatory Review 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act 

D. Review Under the National 

Environmental Policy Act 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 12630 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Review Under Section 32 of the Federal 

Energy Administration Act of 1974 

M. Congressional Notification 

IV. Approval of the Office of the Secretary 

I. Authority and Background 

Authority 

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), Pub. 

L. 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 The Department of Energy 

(‘‘DOE’’) is charged with implementing 

these provisions. 

Under EPCA, this program consists 

essentially of four parts: (1) Testing; (2) 

labeling; (3) Federal energy conservation 

standards; and (4) certification and 

enforcement procedures. The Federal 

Trade Commission (FTC) is primarily 

responsible for the labeling of consumer 

products and DOE implements the 

remainder of the program. The testing 

requirements consist of test procedures 

that manufacturers of covered products 

and equipment must use (1) as the basis 

for certifying to DOE that their products 

comply with the applicable energy 

conservation standards adopted under 

EPCA, and (2) for making 

representations about the efficiency of 

those products and equipment. 

Similarly, DOE must use these test 

requirements to determine whether the 

products comply with any relevant 

standards promulgated under EPCA. For 

certain consumer products and 

industrial equipment, DOE’s existing 

testing regulations allow the use of an 

alternative efficiency determination 

method (AEDM) or an alternative rating 

method (ARM), in lieu of actual testing, 

to simulate the energy consumption or 

efficiency of certain basic models of 

covered products under DOE’s test 

procedure conditions. 

In addition, EPCA (through 42 U.S.C. 

6299–6305 and 6316) authorizes DOE to 

enforce compliance with the energy and 

water conservation standards (all nonproduct 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 industrial 

equipment. (42 U.S.C. 6299–6305 

(consumer products), 6316 (industrial 

equipment)) DOE has promulgated 

enforcement regulations that include 

specific certification and compliance 

requirements. See 10 CFR part 429; 10 

CFR part 431, subparts B, U, and V. 

Background 

On February 26, 2013, members of the 

Appliance Standards and Rulemaking 

Federal Advisory Committee (ASRAC) 

unanimously decided to form a working 

group to engage in a negotiated 

rulemaking effort on the certification of 

the compliance of commercial HVAC, 

WH, and refrigeration equipment. A 

notice of intent to form the Commercial 

Certification Working Group (‘‘the 

Working Group’’) was published in the 

Federal Register on March 12, 2013, to 

which DOE received 35 nominations. 78 

FR 15653. On April 16, 2013, DOE 

published a notice of open meeting that 

announced the first meeting and listed 

the 22 nominated individuals (and their 

affiliations) who were selected to serve 

as members of the Working Group, in 

addition to two members from ASRAC, 

and one DOE representative. 78 FR 

22431. The members of the Working 

Group were selected to ensure a broad 

and balanced array of stakeholder 

interests and expertise, and included 

efficiency advocates, manufacturers, a 

utility representative, and third-party 

laboratory representatives. 

During the Working Group’s first 

meeting, Working Group members voted 

to expand the scope of the negotiated 

rulemaking efforts to include 

developing methods of estimating 

equipment performance based on AEDM 

simulations. AEDMs are computer 

modeling or mathematical tools that 

predict the performance of non-tested 

basic models. They are derived from 

mathematical and engineering 

principles that govern the energy 

efficiency and energy consumption 

characteristics of a type of covered 

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Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 145 

equipment. AEDMs, when properly 

developed, can provide a relatively 

straight-forward and reasonably 

accurate means to predict the energy 

usage or efficiency characteristics of a 

basic model of a given covered product 

or equipment and reduce the burden 

and cost associated with testing. Where 

authorized by regulation, AEDMs enable 

manufacturers to rate and certify the 

compliance of their basic models by 

using the projected energy use or energy 

efficiency results derived from these 

simulation models in lieu of testing. 

The Working Group discussed the 

particular elements that the AEDM 

simulations should address for each 

equipment type and other related 

considerations, including validation 

requirements for AEDMs, DOE 

verification of models rated with an 

AEDM, and the consequences for 

misuse of the AEDM construct. As 

required, the Working Group submitted 

an interim report to ASRAC on June 26, 

2013, summarizing the group’s 

recommendations regarding AEDMs for 

commercial HVAC, WH, and 

refrigeration equipment. The interim 

report to ASRAC can be found at 

http://www.regulations.gov/

#!documentDetail;D=EERE-2013-BTNOC-0023-0046. ASRAC subsequently 

voted unanimously to approve the 

recommendations in the interim report 

for AEDMs. 

On October 22, 2013, DOE published 

in the Federal Register a Supplemental 

Notice of Proposed Rulemaking (‘‘the 

October 2013 AEDM SNOPR’’) regarding 

alternative efficiency determination 

methods, basic model definitions, and 

certification compliance dates for 

commercial HVAC, refrigeration, and 

WH equipment. 78 FR 62472. The 

October 2013 AEDM SNOPR also 

proposed a process for DOE to conduct 

verification testing to ensure that 

models rated with an AEDM perform to 

their certified ratings. As part of the 

verification testing process, the Working 

Group recommended that a 

manufacturer may elect to have a DOE 

representative and a manufacturer’s 

representative on site for the initial test 

of up to 10 percent of the basic models 

that they have rated with an AEDM. 

DOE adopted most of the provisions 

from the October 2013 AEDM SNOPR in 

a December 31, 2013 final rule (‘‘the 

December 2013 final rule’’). 78 FR 

79579. However, commenters raised 

concerns over DOE’s proposal allowing 

manufacturers to witness verification 

tests. In reviewing their comments, DOE 

determined that its proposed regulatory 

text, which was based in large part on 

the Working Group’s recommendation, 

may not have been sufficiently clear. As 

a result, DOE published a Supplemental 

Notice of Proposed Rulemaking (‘‘the 

September 2014 SNOPR’’) clarifying the 

process for witnessing the test set-up as 

part of the AEDM verification process. 

The Department’s intent was to 

establish a clear process while ensuring 

that the regulatory text reflects the 

recommendations of the Working 

Group. 79 FR 57842 (September 26, 

2014). 

The final rule adopts the approach 

proposed in the September 2014 

SNOPR. 

II. Discussion of Specific Revisions to 

DOE’s Regulations for Alternative 

Efficiency Determination Methods 

Verification Testing 

As described in the background 

section of this notice, DOE proposed 

clarifications regarding witnessing the 

verification test set-up for models rated 

with an AEDM. See 79 FR 57842. DOE 

received three comments in response— 

two from manufacturers and one from a 

trade association. These comments are 

discussed in more detail below, and a 

full set of comments can be found at: 

http://www.regulations.gov/

#!docketDetail;D=EERE-2011-BT-TP0024. 

TABLE II–1—STAKEHOLDERS THAT SUBMITTED COMMENTS TO THE SNOPR 

Name Acronym Organization type 

Air-Conditioning, Heating, and Refrigeration Institute .................................... AHRI .................................................. Trade Association. 

Continental Refrigerator ................................................................................. Continental ......................................... Manufacturer. 

Hussmann Corporation ................................................................................... Hussmann .......................................... Manufacturer. 

Manufacturer Presence During 

Verification Testing 

DOE proposed regulatory text to state 

explicitly that manufacturers may elect 

to witness the test set-up of verification 

tests. DOE proposed this clarification to 

better align the regulatory text with the 

Working Group’s recommendation on 

this issue. See 79 FR at 57845. 

Continental suggested that, given its 

own problematic experiences with 

third-party testing, DOE should allow 

manufacturers the option to be present 

for the duration of any verification test 

to ensure that no issues requiring 

additional manufacturer input arise. 

(Continental, No. 0111 at p.1) 

Continental went on to state that they 

understand and concur with DOE’s 

decision to only allow manufacturers to 

be present for the test setup, given 

manufacturer’s ability to review the test 

data, calculations and final results. (Id.) 

DOE’s proposed approach to 

verification testing uses a number of 

different steps to help ensure that 

commercial HVAC, WH, and 

refrigeration equipment is tested 

correctly. First, the proposal would 

allow manufacturers to witness the setup for AEDM verification testing for a 

selection of basic models rated with an 

AEDM. Second, if a lab encounters an 

issue during a verification test and 

requires additional information to test 

in accordance with the applicable DOE 

test procedure, under already existing 

regulations, DOE may coordinate a 

meeting between the manufacturer and 

the test facility to resolve that issue. See 

10 CFR 429.70(c)(5)(iv)(E). Third, if a 

model performs worse than its certified 

rating during testing, DOE also already 

provides the manufacturer with the test 

report, and manufacturers may present 

any claims that the test was performed 

incorrectly. See 10 CFR 429.70(c)(5)(v). 

In light of these pre-existing provisions, 

expanding the witness testing 

provisions beyond the Working Group’s 

recommendation to allow manufacturers 

to witness the set-up of the test is 

unnecessary. Consequently, consistent 

with the Working Group’s 

recommendation, DOE is adopting 

regulatory text that allows 

manufacturers to elect to witness the 

test set-up for a basic model. That 

election would be made as part of that 

basic model’s certification report. 

10 Percent Witness Testing Limitation 

In the September 2014 SNOPR, DOE 

proposed to maintain that a 

manufacturer may select up to 10 

percent of its certified basic models 

rated with an AEDM to witness the setup of any verification test performed by 

DOE. DOE remarked that this threshold 

was negotiated through detailed 

discussions with the Working Group, 

who collectively concluded that this 

level would be acceptable to both 

industry and efficiency advocates while 

not being overly burdensome for DOE to 

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146 Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 

administer. DOE noted that 

manufacturers were not required to 

select 10 percent of eligible basic 

models and that manufacturers could 

decline to attend the test set-up when 

notified. DOE also noted that the 10 

percent was a limit on how many basic 

models a manufacturer might pre-select 

for witnessing test set-up; it was not an 

indication that DOE would test 10 

percent of that manufacturer’s basic 

models. 79 FR at 57846. 

Hussmann expressed little confidence 

that a third-party laboratory can 

properly set-up and test a remote 

supermarket case because third-party 

laboratories do not understand the 

issues to look for prior to and during an 

actual test—issues like discharge 

temperature and air flow. Hussmann 

recommended that remote supermarket 

case manufacturers should be allowed 

to be present at all test set-ups (rather 

than simply 10 percent) and data 

collection periods (rather than just setup) until the third-party laboratories 

have established thorough knowledge of 

how to prepare a remote supermarket 

case to be tested. (Hussmann, No. 0110 

at pp. 1–2) Hussmann provided no 

substantiating data or other information 

for its assertions. 

While DOE acknowledges 

manufacturer concerns that their 

equipment is tested properly, DOE 

disagrees that supermarket case 

manufacturers (along with other 

commercial refrigeration equipment 

manufacturers who will be similarly 

affected by this provision) should be 

allowed to witness the set-up and data 

collection of all remote condensing 

commercial refrigerator and freezer 

verification tests. The Department 

reiterates its position from the Working 

Group negotiation meetings that thirdparty test facilities should have 

sufficient expertise in conducting the 

relevant test and that DOE’s test 

procedures should be written in a 

manner that allows the test facility to 

administer the test procedure without 

DOE’s or a manufacturer’s supervision. 

([Docket No. EERE–2013–BT–NOC– 

0023], Department of Energy, Public 

Meeting Transcript, No. 0041 pp. 34 and 

36) 

Moreover, the Working Group, which 

included Hussmann, unanimously 

voted in favor of the 10 percent 

approach detailed in the September 

2014 NOPR. ([Docket No. EERE–2013– 

BT–NOC–0023], 2013–06–24 Appliance 

Standards and Rulemaking Federal 

Advisory Committee Commercial 

HVAC, WH, and Refrigeration 

Certification Working Group Alternative 

Efficiency Determination Methods, No. 

0046 at p. 5) After reaching a consensus 

among the broad array of interests 

represented at the numerous ASRAC 

meetings that led to the development of 

this approach, DOE is highly reluctant, 

without further substantive and 

compelling data, to alter the 

comprehensively crafted and 

unanimously supported 

recommendation set forth by the 

Working Group. 

Applying the 10 Percent Limit 

Continental commented that it 

appreciated DOE’s efforts to clarify the 

rules regarding witnessing the test setup for up to 10 percent of the 

manufacturer’s certified basic models 

rated with an AEDM. Continental 

sought, however, additional clarity 

regarding DOE’s proposal in the form of 

additional sample scenarios to further 

explain DOE’s approach. (Continental, 

No. 0111 at p. 2) 

In response to Continental’s request, 

DOE is clarifying that a manufacturer 

may witness the test set-up for up to 10 

percent of the basic models rated with 

an AEDM per validation class submitted 

to DOE for certification. The validation 

classes for commercial HVAC, WH, and 

refrigeration equipment can be found in 

10 CFR 429.70(c)(2)(iv). As an example, 

if a manufacturer submits for 

certification 100 basic models of single 

package vertical air conditioners rated 

with an AEDM and 100 basic models of 

package terminal air conditioners rated 

with an AEDM, then the manufacture 

may elect to witness the test set-up for 

up to 10 single package vertical air 

conditioners and 10 package terminal 

air conditioners because single package 

vertical air conditioners and package 

terminal air conditioners fall into 

separate validation classes. In contrast, 

if a manufacturer submits to DOE for 

certification 100 single package vertical 

air conditioners rated with an AEDM 

and 100 single package vertical heat 

pumps rated with an AEDM, then the 

manufacturer may elect to witness the 

test set-up no more than 20 basic 

models made up of any combination of 

single package vertical air conditioners 

and/or single package vertical heat 

pumps because single package vertical 

air conditioners and single package 

vertical heat pumps are part of the same 

validation class. The manufacturer may 

select any combination of models rated 

with an AEDM within the same 

validation class for witnessing the test 

set-up of a verification test. 

Further, DOE is clarifying that if a 

manufacturer submits for certification 

fewer than 10 basic models rated with 

an AEDM per validation class, then the 

manufacturer may elect to witness the 

verification test set-up for one basic 

model from that validation class. 

Manufacturers that submit for 

certification 10 or more basic models 

rated with an AEDM per validation class 

must use the following method to 

determine the maximum number of 

basic models for which it may witness 

the verification test set-up. The 

manufacturer should first calculate 10 

percent of the total number of basic 

models rated with an AEDM per 

validation class, and then truncate the 

resulting product. For example, if a 

manufacturer submits for certification 

56 water source heat pump basic models 

rated with an AEDM, then the 

manufacturer may elect 5 water source 

heat pump basic models to witness the 

verification test set-up. 

DOE plans to provide additional 

examples in a separate guidance 

document. 

Additionally, DOE notes that if a 

manufacturer selects one or more 

individual models per basic model then 

DOE considers the manufacturer to have 

selected the entire basic model, 

including all individual models 

associated with it as a model for which 

the manufacturer opts to witness the 

verification test set-up. That basic 

model will count towards the total 

number of basic models for which the 

manufacturer has elected to witness the 

verification test set-up and is subject to 

the 10 percent limit. 

Consistent with the above discussion, 

this final rule adopts regulations 

allowing manufacturers to witness the 

set-up of a selection of verification test 

performed by DOE. Manufacturers may 

select up to 10 percent of its basic 

models per validation class submitted to 

DOE for certification and rated with an 

AEDM. 

The Department also proposed a 

framework to address situations where a 

manufacturer exceeds the 10 percent 

limit. See 79 FR at 57846. If the unit is 

obtained through retail channels, DOE 

will review the certification 

submissions from the manufacturer that 

were on file as of the date DOE 

purchased a basic model. If the unit is 

obtained directly from the 

manufacturer, DOE will review the 

certification submissions from the 

manufacturer that were on file as of the 

date DOE notifies the manufacturer that 

the basic model has been selected for 

testing. DOE will review the 

certification submissions from the 

manufacturer to determine if the 

manufacturer has chosen to be present 

for testing of the selected basic model. 

DOE will also verify that the 

manufacturer has not selected more 

than 10 percent of the manufacturer’s 

basic models per validation class rated 

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Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 147 

with an AEDM and submitted to DOE 

for certification. If DOE discovers that 

the manufacturer has exceeded the 10 

percent limit, DOE will notify the 

manufacturer of this fact and deny its 

request to be present for the testing of 

the selected basic model. The 

manufacturer must update its 

certification submission to ensure it has 

selected no more than 10 percent of its 

basic models per validation class rated 

with an AEDM to witness the test setup for any future verification testing. 

See id. DOE received no comments on 

this aspect of the proposal and is 

adopting it in this final rule. 

Retesting 

In the September 2014 SNOPR, DOE 

proposed that the 10 percent 

requirement would apply to all of the 

basic models per validation class rated 

with an AEDM that are submitted to 

DOE for certification by a given 

manufacturer no matter how many 

AEDMs a manufacturer has used to 

develop its ratings. See id. DOE 

proposed that it would perform testing 

without a manufacturer’s representative 

present for each basic model DOE 

selects for assessment testing unless 

either: (1) The manufacturer has elected 

to have the opportunity to witness the 

test set-up as part of its allocated 10 

percent; or (2) the manufacturer requires 

the basic model to be started only by a 

factory-trained installer per the 

installation manual instructions. For 

those basic models that a manufacturer 

has requested to witness the initial 

verification test set-up, the 

manufacturer would be unable to 

request that the unit be retested. The 

results from this initial test would be 

used to make a definitive determination 

regarding the validity of the basic 

model’s rating from the AEDM. For 

those basic models that are initially 

tested without the manufacturer present 

for test set-up, a manufacturer would be 

automatically eligible to request a retest 

for those basic models where the initial 

results indicate a potential rating issue 

(non-compliance or discrepancy with 

the certified rating). See id. 

AHRI commented that DOE’s proposal 

that a manufacturer forfeits any 

opportunity to request a retest of the 

basic model if the manufacturer’s 

representative is present for the initial 

test set-up for any reason is too severe. 

AHRI added that the provision 

incorrectly assumes that all problems 

that may arise during the course of an 

efficiency test are related to an issue 

involving the set-up of the unit. AHRI 

agreed with this proposal insofar as it 

limits the manufacturer’s ability to 

request a retest because of a set-up 

issue. However, if some other problem 

occurs during the testing which is 

unrelated to any set-up procedure, the 

manufacturer should still have the 

option to request a retest. AHRI 

suggested that the language be rewritten 

to state, ‘‘If a manufacturer’s 

representative is present for the initial 

test set-up for any reason, the 

manufacturer forfeits any opportunity to 

request a retest of the basic model based 

on a claim that the unit was set up 

improperly.’’ (AHRI, No. 0112 at 2) 

DOE disagrees with AHRI’s 

assessment. The Working Group 

unanimously recommended that 

manufacturers who are on-site for the 

test set-up of a verification test would 

not be allowed to automatically request 

a retest. ([Docket No. EERE–2013–BT– 

NOC–0023], Department of Energy, 

2013–06–24 Appliance Standards and 

Rulemaking Federal Advisory 

Committee Commercial HVAC, WH, and 

Refrigeration Certification Working 

Group Alternative Efficiency 

Determination Methods, No. 0046 at p. 

5)] Additionally, attending the set-up of 

a verification test is optional. As 

proposed in the September 2014 

SNOPR, when DOE selects a model for 

verification testing and the 

manufacturer has elected in its 

certification report to witness that 

model’s testing set-up, DOE will alert 

the manufacturer of its testing selection. 

At this point, the manufacturer may 

decide whether to be present at the setup of the verification test. 79 FR at 

57846. 

DOE also disagrees with AHRI’s 

suggestion to allow manufacturers to 

automatically require the Department to 

retest for reasons other than improper 

set-up. In the case where a model fails 

to meet its certified rating, DOE 

provides the manufacturer with all 

documentation related to the test set-up, 

test conditions, and test results for the 

unit. At this time the manufacturer may 

present claims regarding the validity of 

the test. 10 CFR 429.70(c)(5)(v). If the 

manufacturer identifies problems that 

occurred during the test that impact the 

validity of the test (e.g., a 

malfunctioning measurement device), 

DOE would consider the test to be 

invalid. DOE does not make compliance 

determinations based on invalid testing 

and would retest the sample unit to 

obtain valid test results. DOE does not 

believe that, in the absence of any 

problems with the conduct of the 

verification test, it is necessary to permit 

the retesting of a unit when a 

manufacturer has already attended the 

verification test’s set-up. Consequently, 

DOE’s adopted approach does not 

permit the retesting of a basic model 

under these circumstances. (In contrast, 

for those basic models that are initially 

tested without the manufacturer present 

for test set-up, a manufacturer would be 

automatically eligible to request a retest 

for those basic models where the initial 

results indicate a potential rating issue.) 

DOE Notification to Manufacturers 

In the September 2014 SNOPR, DOE 

proposed the following scenarios for 

notifying the manufacturer if DOE 

conducts AEDM verification testing on 

a basic model for which a manufacturer 

elected to witness the test set-up. If the 

unit is obtained through retail channels, 

DOE would notify the manufacturer of 

the basic model’s selection for testing 

and provide the manufacturer the 

option to be present for test set-up once 

the unit has arrived at the test laboratory 

and is scheduled to be tested. If the 

manufacturer does not respond within 

five calendar days, the manufacturer 

would waive the option to be present for 

test set-up, and DOE would then 

proceed with the test set-up without a 

manufacturer’s representative present. If 

DOE has obtained a unit directly from 

the manufacturer, DOE would provide 

the manufacturer with the option to be 

present for test set-up at the time the 

unit is ordered. DOE would then specify 

the date (not less than five calendar 

days) by which the manufacturer would 

notify DOE whether the manufacturer 

chooses to have a representative 

present. If the manufacturer does not 

notify DOE of its choice by the date 

specified, the manufacturer would 

waive the option to be present for test 

set-up. DOE would then proceed with 

the test set-up without a manufacturer’s 

representative present. DOE also notes 

that any time a manufacturer’s 

representative requests to be on-site for 

the test set-up, a DOE representative 

would also be present at the third-party 

test facility. Additionally, 10 CFR 

429.70(c)(5)(iv)(A) would continue to 

apply prior to, during, and after the 

manufacturer’s representative is on site; 

that is, the manufacturer’s 

representative cannot communicate 

with a third-party test facility regarding 

verification testing without the DOE 

representative present. DOE received no 

comments on this aspect of the proposal 

and is adopting it in this final rule. 

Supplemental Information 

DOE proposed to amend its 

regulations to provide that information 

necessary for testing certain products 

(such as the override code for controls 

that would otherwise prevent the 

completion of testing in accordance 

with the applicable DOE test procedure) 

must accompany the certification 

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148 Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 

submission for a basic model of those 

products. DOE also proposed that 

failure to provide this information 

would preclude a manufacturer being 

present for testing of a basic model of 

its product. If, in the course of testing 

a selected basic model, DOE discovers 

that the necessary information for 

completing the test has not been 

provided, DOE will contact the 

manufacturer to obtain that information 

and complete the testing. The 

September 2014 SNOPR also explained 

that the failure to submit with a 

certification report equipment-specific, 

supplemental information necessary to 

operate the basic model is a prohibited 

act as described at 10 CFR 429.102(a)(1), 

subject to the maximum civil penalty 

described at 10 CFR 429.120. 79 FR at 

57845. 

AHRI commented that it did not recall 

any discussion by the Working Group 

where the failure to supply 

supplemental information would be 

considered a prohibited act. AHRI 

asserted that DOE’s proposed approach 

was an inappropriate and unnecessary 

expansion of the scope of prohibited 

acts. AHRI added that, if a manufacturer 

does not provide supplemental 

information, the model will likely fail 

testing. AHRI also stated that, because a 

manufacturer cannot provide additional 

information at any time other than at 

certification, a model would fail the 

verification test if the manufacturer 

failed to provide the required 

information. At that point, DOE would 

be able to apply fully the penalties and 

remedies specified. (AHRI, No. 0112, at 

1–2) 

AHRI’s comments suggest that it 

misunderstood the purpose of these 

portions of the proposal. DOE may 

determine a basic model’s compliance 

with the applicable energy conservation 

standard only through testing of that 

basic model. 10 CFR 429.106 and 

429.110(c)(3). AHRI appears to be 

commenting about situations in which it 

may be highly desirable for a 

manufacturer to provide testing 

instructions because the basic model is 

not likely to pass verification testing 

without those instructions. DOE’s 

proposal addressed a problem wherein 

DOE cannot test—it is impossible to 

test—a basic model without additional 

testing information. For example, DOE 

has found that certain PTACs require 

special codes to be entered to make the 

unit perform under test conditions; 

without those codes, the unit will not 

perform at test conditions and DOE 

cannot obtain a valid test. In such a 

situation, DOE proposed to contact the 

manufacturer, but the manufacturer 

would forfeit its opportunity to be 

present for test set-up. 79 FR at 57846 

Contrary to AHRI’s assertion that DOE 

would not consider any testing 

instructions not provided at certification 

under any circumstances, DOE 

explained in the September 2014 

SNOPR that, if a manufacturer has not 

provided supplemental information 

required for testing, then DOE will 

obtain the information from the 

manufacturer and complete the testing. 

79 FR at 57846. In addition, if for other 

reasons DOE is unable to test a unit, the 

Working Group recommended, and DOE 

has already codified in its regulations, 

that DOE may coordinate a meeting 

between the manufacturer and test 

facility to resolve any technical issues. 

See 10 CFR 429.70(c)(5)(iv)(E). 

In this rule, DOE is requiring that, if 

necessary to run a valid test, the 

equipment-specific, supplemental 

information for commercial HVAC, WH, 

and refrigeration equipment must 

include any additional testing and 

testing set-up instructions. 

DOE also proposed that, if the unit is 

obtained through retail channels, DOE 

will review the certification 

submissions from the manufacturer that 

were on file as of the date DOE 

purchased a basic model. If DOE has 

obtained a unit directly from the 

manufacturer, DOE will review the 

certification submissions from the 

manufacturer that were on file as of the 

date DOE notifies the manufacturer that 

the basic model has been selected for 

testing. At this time, DOE will 

determine if the manufacturer provided 

necessary supplemental instructions. 

Additionally, for the purposes of 

conducting the verification test DOE 

will use the most recent version of 

supplemental instructions on file as of 

the date DOE purchased a basic model 

or the date DOE notified the 

manufacturer of the verification testing. 

DOE received no comments on these 

proposals and is adopting them in this 

rule. 

DOE notes that manufacturers will 

also need to provide the complete name 

of the PDF containing the supplemental 

testing instructions as part of the 

certification report. If the manufacturer 

changes the supplemental testing 

instructions and as a result changes the 

file name, then the manufacturer must 

update the certification report 

accordingly. 

DOE notes that 10 CFR 429.102(a)(1) 

establishes that the failure to properly 

certify covered products and covered 

equipment in accordance with 10 CFR 

429.12 and 10 CFR 429.14 through 

429.54 is a prohibited act. The Working 

Group recommended that manufacturers 

of certain kinds of commercial 

refrigeration, HVAC, and WH 

equipment should be required to submit 

a supplemental Portable Document 

Format (PDF) file with additional testing 

information with the certification 

report. The Working Group specified 

that the supplemental information 

would be required for commercial 

refrigeration equipment and most types 

of commercial HVAC equipment. DOE 

codified these requirements in 10 CFR 

429.42(b)(4) and 10 CFR 429.43(b)(4). 

DOE’s statement in the September 2014 

SNOPR regarding the consequences of 

failing to provide supplemental 

information necessary to operate the 

basic model information was reiterating 

an existing prohibited act subject to the 

maximum civil penalty prescribed at 10 

CFR 429.120—not proposing a new 

provision or reflecting a change in 

regulations due to the Working Group’s 

recommendations. 

Private Model Numbers 

DOE proposed to clarify its treatment 

of ‘‘private’’ model numbers under 10 

CFR 429.7(b)(3). ‘‘Private’’ model 

numbers were created in a final rule 

published May 5, 2014, which adopted 

the recommendations of the Working 

Group with respect to the data elements 

to include in certification reports. See 

79 FR 25486, 25491. These ‘‘private’’ 

models numbers addressed concerns 

raised by Working Group participants 

during the negotiated rulemaking 

indicating that the model numbers can, 

in certain circumstances, comprise 

confidential business information. The 

Working Group reached a consensus 

that, in limited circumstances, 

manufacturers should be able to identify 

when disclosure of an individual model 

number would reveal confidential 

business information and that DOE 

should treat that information as 

confidential in those specific instances. 

DOE has discovered, however, that, as 

drafted, the language at 10 CFR 429.7 

may permit a much broader range of 

model numbers to be identified as 

‘‘private’’ than had been intended, 

which would result in fewer identified 

models in DOE’s public Compliance 

Certification Database. Specifically, the 

current language could be interpreted to 

permit a manufacturer to mark as 

‘‘private’’ any model number that is not 

available in public marketing materials. 

Accordingly, DOE proposed to revise 

the regulatory text to better reflect the 

negotiated position of the working 

group. DOE received no comments on 

this aspect of the proposal and is 

adopting it in this final rule. 

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Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 149 

Variable Refrigerant Flow Systems 

DOE also clarified in its September 

2014 SNOPR that variable refrigerant 

flow system assessment and 

enforcement testing is governed by 10 

CFR 431.96(f), and would not be subject 

to any of the proposed requirements. 79 

FR at 57845. DOE received no 

comments on this aspect of the proposal 

and is adopting this approach in the 

final rule. 

Certification Templates 

Finally, Continental urged DOE to 

publish the product templates for 

certifying commercial refrigeration 

equipment—specifically, for equipment 

with either single compartment or 

multiple compartments—on the 

Compliance Certification Management 

System Web page as quickly as possible. 

Continental believes a minimum of 90 

calendar days should have been allowed 

for manufacturers to complete their 

certifications. (Continental, No. 0111 at 

p. 2) The CRE certification templates are 

available at: https://

www.regulations.doe.gov/ccms/

templates/product_templates. 

DOE notes that it adopted the 

certification requirements for 

commercial refrigeration equipment in a 

final rule for which manufacturers 

negotiated to have over 180 days to 

collect the required certification 

information. See 79 FR 25486 (May 5, 

2014). Accordingly, DOE will not 

provide additional time to supplement 

that which has already been provided. 

III. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

The Office of Management and Budget 

has determined that test procedure 

rulemakings do not constitute 

‘‘significant regulatory actions’’ under 

section 3(f) of Executive Order 12866, 

Regulatory Planning and Review, 58 FR 

51735 (Oct. 4, 1993). Accordingly, this 

action was not subject to review under 

the Executive Order by the Office of 

Information and Regulatory Affairs 

(OIRA) in 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 the 

preparation of a regulatory flexibility 

analysis (RFA) 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 Executive Order 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 DOE 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s Web site: http://

www.energy.gov/sites/prod/files/gcprod/

documents/eo13272.pdf. 

DOE reviewed the requirements in the 

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 the 

provisions of this rule will not increase 

testing and/or reporting burden. 

Accordingly, manufacturers will not 

experience increased financial burden 

as a result of this rulemaking. 

This Final Rule clarifies how DOE 

intends to exercise its authority to 

validate AEDM performance and verify 

the performance of commercial HVAC, 

WH, and refrigeration equipment 

certified using an AEDM. Specifically, 

DOE is allowing representatives of 

commercial HVAC, WH, and 

refrigeration equipment manufacturers 

to witness the test set-up for DOEinitiated verification testing for up to 10 

percent of a manufacturer’s basic 

models certified to DOE and that are 

rated with an AEDM. The selection of 

basic models and the decision to 

witness the test set-up for verification 

testing is at the discretion of the 

manufacturer. Thus, because these 

proposed changes would apply 

irrespective of a manufacturer’s size and 

would provide these entities with added 

flexibility to witness the testing set-up 

of their equipment, DOE certifies that 

this rulemaking would not have a 

significant impact on a substantial 

number of small entities. 

C. Review Under the Paperwork 

Reduction Act 

Manufacturers of the covered 

equipment addressed in the Final Rule 

must certify to DOE that their 

equipment comply with any applicable 

energy conservation standards. In 

certifying compliance, manufacturers 

must test their equipment according to 

the applicable DOE test procedures for 

the given equipment type, including any 

amendments adopted for those test 

procedures, or use the appropriate 

AEDMs to develop the certified ratings 

of the basic models. DOE has 

established regulations for the 

certification and recordkeeping 

requirements for all covered consumer 

products and commercial equipment, 

including the equipment at issue in this 

rule. (79 FR 25486 (May 5, 2014)). The 

collection-of-information requirement 

for these certification and recordkeeping 

provisions is subject to review and 

approval by OMB under the Paperwork 

Reduction Act (PRA). This requirement 

has been approved by OMB under OMB 

Control Number 1910–1400. Public 

reporting burden for the certification is 

estimated to average 30 hours per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

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 is changing DOE’s 

verification testing regulations so it 

would not affect the amount, quality or 

distribution of energy usage, and, 

therefore, would not result in any 

environmental impacts. Thus, this 

rulemaking is covered by Categorical 

Exclusion A6 under 10 CFR part 1021, 

subpart D. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999) imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have Federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have Federalism implications. On 

March 14, 2000, DOE published a 

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150 Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 

statement of policy describing the 

intergovernmental consultation process 

it will follow in the development of 

such regulations. 65 FR 13735. DOE has 

examined this rulemaking and has 

determined that it 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. EPCA governs and 

prescribes Federal preemption of State 

regulations as to energy conservation for 

the products that are the subject of this 

rule. States can petition DOE for 

exemption from such preemption to the 

extent, and based on criteria, set forth in 

EPCA. (42 U.S.C. 6297(d)) No further 

action is required by Executive Order 

13132. 

F. Review Under Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 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; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) 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 sections 3(a) and 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, this Final Rule 

meets 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) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. Pub. L. 104–4, sec. 201 

(codified at 2 U.S.C. 1531). 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 a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a)–(b)) 

The 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 small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA. 62 FR 12820; also available at 

http://energy.gov/gc/office-generalcounsel. DOE examined this rulemaking 

according to UMRA and its statement of 

policy and determined that the rule 

contains neither an intergovernmental 

mandate, nor a mandate that may result 

in the expenditure of $100 million or 

more in any year. Accordingly, 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. This 

Final 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 has determined, under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights,’’ 53 FR 8859 

(March 18, 1988), that this regulation 

would not result in any takings that 

might require compensation under the 

Fifth Amendment to the U.S. 

Constitution. 

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 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

the final rule under the 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 OMB, a 

Statement of Energy Effects for any 

proposed significant energy action. A 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgated 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 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This rule allows manufacturers of 

commercial HVAC, WH, and 

refrigeration equipment the opportunity 

to witness the set-up for DOE 

verification testing for up to 10 percent 

of basic models submitted to DOE for 

certification and rated with an AEDM, 

and is not a significant regulatory action 

under Executive Order 12866. 

Moreover, it would not have a 

significant adverse effect on the supply, 

distribution, or use of energy, nor has it 

been designated as a significant energy 

action by the Administrator of OIRA. 

Therefore, DOE has not prepared a 

Statement of Energy Effects. 

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Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 151 

L. Review Under Section 32 of the 

Federal Energy Administration Act of 

1974 

Under section 301 of the Department 

of Energy Organization Act (Pub. L. 95– 

91; 42 U.S.C. 7101), DOE must comply 

with section 32 of the Federal Energy 

Administration Act of 1974, as amended 

by the Federal Energy Administration 

Authorization Act of 1977. (15 U.S.C. 

788; FEAA) Section 32 essentially 

provides in relevant part that, where a 

rule authorizes or requires use of 

commercial standards, the notice of 

rulemaking must inform the public of 

the use and background of such 

standards. In addition, section 32(c) 

requires DOE to consult with the 

Attorney General and the Chairman of 

the Federal Trade Commission (FTC) 

concerning the impact of the 

commercial or industry standards on 

competition. This rule amending DOE’s 

regulations relating to the verification 

test procedure for commercial HVAC, 

WH, and refrigeration equipment rated 

with an AEDM does not involve the use 

of any commercial standards. 

M. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule before its effective date. The 

report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

IV. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this supplemental notice 

of proposed rulemaking. 

List of Subjects in 10 CFR Part 429 

Administrative practice and 

procedure, Energy conservation, 

Reporting and recordkeeping 

requirements. 

Issued in Washington, DC, on December 

22, 2014. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

For the reasons set forth in the 

preamble, DOE is amending part 429 of 

chapter II, subchapter D, of title 10 of 

the Code of Federal Regulations, as set 

forth below: 

PART 429—CERTIFICATION, 

COMPLIANCE AND ENFORCEMENT 

FOR CONSUMER PRODUCTS AND 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

■ 1. The authority citation for part 429 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6317. 

■ 2. Section 429.7 is amended in 

paragraph (b) introductory text by 

removing the words ‘‘it is’’ and by 

revising paragraph (b)(3) to read as 

follows: 

§ 429.7 Confidentiality. 

* * * * * 

(b) * * * 

(3) Disclosure of the individual, 

manufacturer model number would 

reveal confidential business information 

as described at § 1004.11 of this title— 

in which case, under these limited 

circumstances, a manufacturer may 

identify the individual manufacturer 

model number as a private model 

number on a certification report 

submitted pursuant to § 429.12(b)(6). 

* * * * * 

■ 3. Section 429.41 is amended by 

revising the section heading and 

paragraph (b)(4) to read as follows: 

§ 429.41 Commercial warm air furnaces. 

* * * * * 

(b) * * * 

(4) Pursuant to § 429.12(b)(13), a 

certification report may include 

supplemental testing instructions in 

PDF format. If necessary to run a valid 

test, the equipment-specific, 

supplemental information must include 

any additional testing and testing set up 

instructions (e.g., specific operational or 

control codes or settings), which would 

be necessary to operate the basic model 

under the required conditions specified 

by the relevant test procedure. A 

manufacturer may also include with a 

certification report other supplementary 

items in PDF format (e.g., manuals) for 

DOE consideration in performing testing 

under subpart C of this part. 

■ 4. Section 429.42 is amended by 

revising paragraph (b)(4) to read as 

follows: 

§ 429.42 Commercial refrigerators, 

freezers, and refrigerator-freezers. 

* * * * * 

(b) * * * 

(4) Pursuant to § 429.12(b)(13), a 

certification report must include 

supplemental information submitted in 

PDF format. The equipment-specific, 

supplemental information must include 

any additional testing and testing set up 

instructions (e.g., charging instructions) 

for the basic model; identification of all 

special features that were included in 

rating the basic model; and all other 

information (e.g., any specific settings or 

controls) necessary to operate the basic 

model under the required conditions 

specified by the relevant test procedure. 

A manufacturer may also include with 

a certification report other 

supplementary items in PDF format 

(e.g., manuals) for DOE to consider 

when performing testing under subpart 

C of this part. 

■ 5. Section 429.43 is amended by 

revising paragraph (b)(4) introductory 

text to read as follows: 

§ 429.43 Commercial heating, ventilating, 

air conditioning (HVAC) equipment. 

* * * * * 

(b) * * * 

(4) Pursuant to § 429.12(b)(13), a 

certification report must include 

supplemental information submitted in 

PDF format. The equipment-specific, 

supplemental information must include 

any additional testing and testing set up 

instructions (e.g., charging instructions) 

for the basic model; identification of all 

special features that were included in 

rating the basic model; and all other 

information (e.g., operational codes or 

component settings) necessary to 

operate the basic model under the 

required conditions specified by the 

relevant test procedure. A manufacturer 

may also include with a certification 

report other supplementary items in 

PDF format (e.g., manuals) for DOE 

consideration in performing testing 

under subpart C of this part. The 

equipment-specific, supplemental 

information must include at least the 

following: 

* * * * * 

■ 6. Section 429.44 is amended by 

revising paragraph (b)(4) to read as 

follows: 

§ 429.44 Commercial water heating 

equipment. 

* * * * * 

(b) * * * 

(4) Pursuant to § 429.12(b)(13), a 

certification report may include 

supplemental testing instructions in 

PDF format. If necessary to run a valid 

test, the equipment-specific, 

supplemental information must include 

any additional testing and testing set up 

instructions (e.g., whether a bypass loop 

was used for testing) for the basic model 

and all other information (e.g., 

operational codes or overrides for the 

control settings) necessary to operate the 

basic model under the required 

conditions specified by the relevant test 

procedure. A manufacturer may also 

include with a certification report other 

supplementary items in PDF format 

(e.g., manuals) for DOE consideration in 

performing testing under subpart C of 

this part. 

* * * * * 

■ 7. Section 429.60 is amended by 

revising paragraph (b)(4) to read as 

follows: 

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152 Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations 

§ 429.60 Commercial packaged boilers. 

* * * * * 

(b) * * * 

(4) Pursuant to § 429.12(b)(13), a 

certification report may include 

supplemental testing instructions in 

PDF format. If necessary to run a valid 

test, the equipment-specific, 

supplemental information must include 

any additional testing and testing set up 

instructions (e.g., specific operational or 

control codes or settings), which would 

be necessary to operate the basic model 

under the required conditions specified 

by the relevant test procedure. A 

manufacturer may also include with a 

certification report other supplementary 

items in PDF format (e.g., manuals) for 

DOE consideration in performing testing 

under subpart C of this part. 

* * * * * 

■ 8. Section 429.70 is amended by 

revising paragraph (c)(5)(iii) to read as 

follows: 

§ 429.70 Alternative methods for 

determining energy efficiency and energy 

use. 

* * * * * 

(c) * * * 

(5) * * * 

(iii) Manufacturer participation. (A) 

Except when testing variable refrigerant 

flow systems (which are governed by 

the rules found at § 431.96(f)), testing 

will be completed without a 

manufacturer representative on-site. In 

limited instances further described in 

paragraph (c)(5)(iii)(B) of this section, a 

manufacturer and DOE representative 

may be present to witness the test setup. 

(B) A manufacturer’s representative 

may request to be on-site to witness the 

test set-up if: 

(1) The installation manual for the 

basic model specifically requires it to be 

started only by a factory-trained 

installer; or 

(2) The manufacturer has elected, as 

part of the certification of that basic 

model, to have the opportunity to 

witness the test set-up. A manufacturer 

may elect to witness the test set-up for 

the initial verification test for no more 

than 10 percent of the manufacturer’s 

basic models submitted for certification 

and rated with an AEDM per validation 

class specified in section (c)(2)(iv) of 

this paragraph. The 10-percent limit 

applies to all of the eligible basic 

models submitted for certification by a 

given manufacturer no matter how 

many AEDMs a manufacturer has used 

to develop its ratings. The 10-percent 

limit is determined by first calculating 

10 percent of the total number of basic 

models rated with an AEDM per 

validation class, and then truncating the 

resulting product. Manufacturers who 

have submitted fewer than 10 basic 

models rated with an AEDM for 

certification may elect to have the 

opportunity to witness the test set-up of 

one basic model. A manufacturer must 

identify the basic models it wishes to 

witness as part of its certification 

report(s) prior to the basic model being 

selected for verification testing. 

(3) In those instances in which a 

manufacturer has not provided the 

required information as specified in 

§ 429.12(b)(13) for a given basic model 

that has been rated and certified as 

compliant with the applicable 

standards, a manufacturer is precluded 

from witnessing the testing set up for 

that basic model. 

(C) A DOE representative will be 

present for the test set-up in all cases 

where a manufacturer representative 

requests to be on-site for the test set-up. 

The manufacturer’s representative 

cannot communicate with a lab 

representative outside of the DOE 

representative’s presence. 

(D) If DOE has obtained through retail 

channels a unit for test that meets either 

of the conditions in paragraph 

(c)(5)(iii)(B) of this section, DOE will 

notify the manufacturer that the basic 

model was selected for testing and that 

the manufacturer may have a 

representative present for the test setup. If the manufacturer does not 

respond within five calendar days of 

receipt of that notification, the 

manufacturer waives the option to be 

present for test set-up, and DOE will 

proceed with the test set-up without a 

manufacturer’s representative present. 

(E) If DOE has obtained directly from 

the manufacturer a unit for test that 

meets either of the conditions in 

paragraph (c)(5)(iii)(B) of this section, 

DOE will notify the manufacturer of the 

option to be present for the test set-up 

at the time the unit is purchased. DOE 

will specify the date (not less than five 

calendar days) by which the 

manufacturer must notify DOE whether 

a manufacturer’s representative will be 

present. If the manufacturer does not 

notify DOE by the date specified, the 

manufacturer waives the option to be 

present for the test set-up, and DOE will 

proceed with the test set-up without a 

manufacturer’s representative present. 

(F) DOE will review the certification 

submissions from the manufacturer that 

were on file as of the date DOE 

purchased a basic model (under 

paragraph (c)(5)(iii)(D) of this section) or 

the date DOE notifies the manufacturer 

that the basic model has been selected 

for testing (under paragraph (c)(5)(iii)(E) 

of this section) to determine if the 

manufacturer has indicated that it 

intends to witness the test set-up of the 

selected basic model. DOE will also 

verify that the manufacturer has not 

exceeded the allowable limit of witness 

testing selections as specified in 

paragraph (c)(5)(iii)(B)(2) of this section. 

If DOE discovers that the manufacturer 

exceeded the limits specified in 

paragraph (c)(5)(iii)(B)(2), DOE will 

notify the manufacturer of this fact and 

deny its request to be present for the test 

set-up of the selected basic model. The 

manufacturer must update its 

certification submission to ensure it has 

not exceeded the allowable limit of 

witness testing selections as specified in 

paragraph (c)(5)(iii)(B)(2) to be present 

at set-up for future selections. At this 

time DOE will also review the 

supplemental PDF submission(s) for the 

selected basic model to determine that 

all necessary information has been 

provided to the Department. 

(G) If DOE determines, pursuant to 

paragraph (c)(5)(ii) of this section, that 

the model should be tested at the 

manufacturer’s facility, a DOE 

representative will be present on site to 

observe the test set-up and testing with 

the manufacturer’s representative. All 

testing will be conducted at DOE’s 

direction, which may include DOEcontracted personnel from a third-party 

lab, as well as the manufacturer’s 

technicians. 

(H) As further explained in paragraph 

(c)(5)(v)(B) of this section, if a 

manufacturer’s representative is present 

for the initial test set-up for any reason, 

the manufacturer forfeits any 

opportunity to request a retest of the 

basic model. Furthermore, if the 

manufacturer requests to be on-site for 

test set-up pursuant to paragraph 

(c)(5)(iii)(B) of this section but is not 

present on site, the manufacturer forfeits 

any opportunity to request a retest of the 

basic model. 

* * * * * 

[FR Doc. 2014–30821 Filed 1–2–15; 8:45 am] 

BILLING CODE 6450–01–P 

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