UNITED STATES OF AMERICA 

# LLF

DEPARTMENT OF ENERGY

PUBLIC HEARING: ENERGY EFFICIENCY TEST PROCEDURES FOR COMMERCIAL FURNACES AND CERTIFICATIONAND ENFORCEMENT PROCEDURES FOR HEATING,AIR CONDITIONING AND WATER HEATING EQUIPMENT

THURSDAY, JANUARY 27, 2 0 0 0

Thehearing commencedat 9:00a.m. inRoom IE-245,Department of Energy, 1000 Independence Avenue, S.W.,Washington, D.C.,Cyrus Nasseri, Team Leader, presiding, Jim Raba facilitating.

DOE PRESENT: EDWARD 0. POLLOCK, Jr

## . CYRUS NASSERI ED LEVY JIM RABA NIST PRESENT: STANLEY LIU STEVEN TREAD0

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comALSO PRESENT: LAKE COULSON WILBUR HAAG JOHN HODGES BRAD HOLLOMON GEORGE KUSTERER MICHAEL MARTIN JOSEPH 

### M. MATTINGLY MARK MENZER FRANK STANONIK CHARLES STEPHENS STEVE WILSON ARI A.O. Smith ARI Pacific Northwest National Laboratory Bock Water Heaters California Energy Commission GAMA ARI GAMA Oregon Department of Energy York International



### NEALR.GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neairgross.comA-G-E-N-D-A Asenda Item Pase I. Opening Remarks Mr. Nasseri 

## .............. 4 11. Agenda Review and Introductions Mr. Raba 

## .............. 10 111. Brief Review of the Proposed Rule Mr. Nasseri 

## ............ 22 IV. Topics for Discussion A. Test Procedures for Commercial Furnaces 

## ................30 B. Sampling, Certification and Enforcement Procedures for Commercial



## ... HVAC and Water Heating Equipment 117



### ... V. Summary Discussion and Adjournment 154

NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com(9:30a.m.) MR. NASSERI: Good morning. It is 9:30. I would like to start our public hearing at this point. If you would be seated and we'll start our hearing at this time. Good morning. I am Cyrus Nasseri, senior program manager and team leader for the Commercial Equipment Team within the Office of Building Research and Standards here at the Department of Energy. The others joining me today are: Edward Pollock, Director of Office of Building Research and Standards; Stanley Liu, and Steve Treado of the National Institute of StandardsandTechnology; Edward Levy from the Department's Office of General Counsel; and sometimes we have Mark Friedrichs from the Department's Office of Policy and International Affairs, aswell as several of my colleagueshere that I see. On behalf of the Department, Iwould like to thank you all for taking the time, that considering the weather conditionsthat we have had the last days, to participate in this public hearing. We will be addressing DOE'S proposals for commercial warm air furnace test procedures, and for 

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### R.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comefficiency certification, compliance, and enforcement requirements for all of the covered commercial heating, air conditioning, water heating products or equipment. The format of this public hearing is designed to enable interested parties topresent oral comments on these proposals, and to facilitate clarification,discussionIandan exchange of ideasas to these comments. Today's hearing will consist primarily of twodistinct parts. In the firstpart, the Department is seekingcomments onall facetsof theproposed rule for commercial warm air furnace test procedures, including comments on the ASHRAE referenced test standards, the definition of thermal efficiency, the test procedure for measurement of energy efficiency, and other test standards topics. In the second part, we seek comments related to the proposal or proposed rule on the certification and enforcement procedure for all the covered HVAC and water heating products, including comments related to certification, the alternative efficiency determinationmethod (AEDM),the voluntary independent certification programs (VICPs), the provisions on non-participating manufacturers, and 

### NEALR. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comother certification and enforcement topics. Inaddition,youmay offer commentsonany otherpertinent issues that youwish to bring to DOE'S attention. The comments received here today, along with comments submitted during the written comment period, will assist the Department in developing the final rules for commercial warm air furnaces test procedures, as well as commercial HVAC and water heating product compliance, certification, and enforcement provisions. I am the presiding officer for the workshop. Our own JimRaba, onmy left side at first

### , will facilitate and set the guidelines for the conducting of this workshop. In approximately two weeks, a complete copy of the transcript, this is the workshop transcript, will be available for inspection and copying at the Department of Energy's Freedom of InformationReading Room, located in Room IE-190,the

same floor as we are,on the extreme right to the end of the building. Anyone wishing topurchase a copy of the transcript may make arrangements with the court reporter,who is sittingonmy right side,right here. We willbeginwith introductions,and then 

### NEALR.GROSS COURTREPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comreview the agenda. We invite you to add issues you think are important, but not already covered. Following the agenda review, we will entertain any general statements participantswish to make. Thenwe will move to the discussion of topics on the agenda. As to each topic concerning the proposed commercial warm air furnace procedures, Stan Liu -- where's Stan? He's sitting at the table -- will make

a brief presentation. I will summarize any written comments we have received to date. Then participants can make any prepared statements on that topic. Members of the panel will ask any questions they have, and we will open the floor for questions and discussion. We will move through each topic identifiedby the Department in the

same way, and try to do the same for the topics that you might add to the agenda. We will follow a similar approach in the second part of this workshop, where Steve Treado of NIST will make a presentation regarding the topics on the certification, compliance, and enforcement provisions for allof the covered commercial products, followed by statements, questions, and discussion. We should have ample time to raise and discuss all important issues. We would ask,however, 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com8 that all participants refrain from making prepared statementsof more than five minutes on any points or overly lengthy follow-upremarks so that everyonegets the floor time they need. Our facilitator will enforce this ground rule, and will also limit debate when speakers' points have been made and are clear. In formulating the proposed rules we are discussing today, we have considered all oral and written comments that you, the stakeholders, gave to

us earlier. The published notice discusses the reasons for incorporating or not incorporating any of your significant recommendations. For your information,we will soon issue separate notices of proposed rulemaking regarding the testprocedures forcommercial water heaters,boilers, and air conditioners. We intend to set up a single set of provisions on compliance, certification, enforcement,and certain other general matters. They would apply to all the covered commercial heating, ventilating, and air conditioning products. Therefore,the other noticesproposingtestprocedures for such equipment will not address these subjects. Questions are welcome throughout any of

our presentations unless you are advised otherwise. It may be necessary, however, to cut off debate on 

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some topics to remain on schedule,although there may be time at the end of today's session for additional discussion of significant issues. I encourage everyonepresent toparticipate as much aspossible so that we may get a full spectrum of opinions of these topics. The session is scheduled to adjourn at 5:00 today, 5:00 p.m., unless of course we finish early. Topics which have not been completely discussed by that time canbe addressed in additional written comments which are due by February 28, 2000, February 28,next month. All written commentsand data submissions will be available for public inspection at the DOE Freedom of Information Reading Room. I am providing their phone number,which is (202)586-6020. Please send your written comments to Brenda Edward-Jones. Brenda is sitting at the table. Referring to docket no.,when you send your comments, EE-RM/TP-99-450,when you respond. We would like to have ten copies of your comments and any supporting data, along with an electronic copy of comments or data using Wordperfect 8 for text-basedinformationorMicrosoft Excel 97 for data-based information. No faxed comments will be 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comaccepted. Anyone attending thishearing or submitting written comments will be added to our list for future mailings concerning the subjects of this rulemaking. Again, we appreciate the time and effort you have taken in participating in this hearing. We will be pleased to receiveyour commentsand opinions. Our purpose today is to listen to your views. I would like now to introduce our facilitator,Mr. JimRaba,who will review the agenda, provide some housekeepingdetails,anddescribehowwe will conduct this hearing. Jim? FACILITATOR RABA: Thank you, Mr. Chairman. Welcome, everybody, to todayf s public hearing. It's good you all are here. I appreciate the time and effort you spent to do that for this importanthearing. This goes in the public record,so again, thanks for coming today. We are going to look first of all at the introductions from everybody. I would like to go around the table, please, and speak clearly into the microphones. Stateyourname andyour company. We'll go around the room. Also, later on,about 10:00 thismorning, 

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we are going to be joined by -- our phone lines will be open too. Sowe'll have to take into account as we have our statements given to the record and introductions that will begin then. I'm Jim Raba, your facilitator. MR. MATTINGLY: Joe Mattingly from GM. MR. HAAG: Wilbur Haag with A.O. Smith Water Products Company. MR. WILSON: Steve Wilson, with York International. MR. KNOWLES: Stewart Knowles with NIST. MR.HOLLOMON: BradHollomon, with Pacific Northwest National Laboratory. MR. STEPHENS: Charlie Stephens, Oregon Office of Energy. MR. MARTIN: Michael Martin, California Energy Commission MR. LIU: Stanley Liu,NIST. MR. TREADO: Steve Treado,NIST. MR. POLLOCK: Ed Pollock, Department of Energy. MR. LEVY: Ed Levy, Office of General Counsel, Department of Energy. MR.NASSERI: CyrusNasseri,Departmentof Energy. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com12 FACILITATOR RABA: In the back, please, and around. Incidently, there's a live mike in the back, if you'll stand up also. MR.HOGDES: JohnHodges,Air Conditioning and Refrigeration Institute. FACILITATOR RABA: Thank you. MR. SOMASUNDARAM: Sriram Somasundaram, Pacific Northwest National Laboratory. MR. McCABE: Michael McCabe, U.S. Department of Energy. FACILITATOR RABA: In the back there? MS. MURPHY: Chlorine Murphy, Department of Energy. MS. JONES: Edna Jones, Department of Energy, and Sandy. (Laughter. ) FACILITATORRABA: SandyBell,Department of Energy. Thank you very much. If we find that there are not many people, please, the participants are welcome to gather at the table and take up closer to the microphones if you feel more comfortable that way. In the agenda review now, take a look at your agenda, which is broken into two major areas. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comThe first segment being the test procedures for commercial furnaces,and the second segment being the sampling, certification, and enforcement procedures for commercial heating, air conditioning, and water heating equipment. On the first area,we have the ASHRAE/IES standard, 90.1 referenced furnace test standards or test procedures, the definition of thermal efficiency for furnaces, a sub-topic, and test procedures for measurement of energy efficiency. In that category of the test procedures for commercial furnaces,are there any other items to add to that? Anything we missed on this? Michael? Michael Martin, California Energy Commission. MR. MARTIN: Excuse me. I have something in my throat. I'm never quite sure what is going to happen when I open my mouth. I do have a short comment Iwould like to make about the scope of this rulemaking. FACILITATORRABA: Okay,thankyou. We'll hold onto that. We'll go through this one time. We'll get all these out. Thenwe'll come back. Thank you very much. Anything else for the first series of topics? 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comThe second series,those are the sampling, certification, and enforcement procedures, the subtopics there. Incidently too, let me go back. Back up a little bit too on the commercial furnaces, as well the test procedures for energy efficiency. There

are some sub-topics which include the flue loss calculation for oil-fired furnaces, condensing furnaces, and other standards topics. Okay? These came fromyour public notice, so if you would like to refer to some of these there, they

are in Notice of Public Hearing. If you need a copy of this, there will be some in the back too with Sandy and Brenda. Also, the topics of certification, the alternative efficiency determination methods, voluntary independent certificationprograms,both for participating and non-participating manufacturers. Anything to add to that for the agenda? Hearing one -- Joe? I'm sorry. MR. MATTINGLY: Joe Mattingly from GAMA. Jim, when you get into that section, would it be useful to go section by section rather than topic by topic? I don't know what your plan is on that. MR. TREADO: That's kind of how it breaks down anyway. 

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### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com15 FACILITATOR RABA: Okay, fine. So we'll do that. Wer 11 leave that to the chairman and he will guide it. Thank you very much. Good comment. Ifyouwould like tomake your comment now about the scope, and then we'll go onto some other housekeeping items and we'll get started then too. MR. MARTIN: Cyrus mentioned an introductory -- FACILITATOR RABA: Your name, sir? MR. MARTIN: Michael Martin. FACILITATOR RAF3A: Thank you. MR. MARTIN: Cyrus mentioned an introductory statement. So I would like to read a short one to indicate I have been employed by the California Energy Commission for 24 years. I helped draft and enforce the Nation's first appliance efficiency standards for commercial appliances, most of which were later incorporated into the Energy Policy Act of 1992. The purpose of DOE'S rulemaking is to incorporatethe standards intoaworkable frameworkof Federal regulation to implement the standards. The Commission, this is the California Energy Commission, is very interested in this rulemaking. MY Commissioners want me to make sure that you publish 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com16 regulations that they can support. If DOE does not have a workable system of regulations to implement and enforce the efficiency standards and the resources necessary to carry out an effective program, California may be forced into debating whether it should develop its own standards, what we have now come to call EPACT products, and petition for exemption from Federal preemption. No state has ever done this. The Commissioners and I sincerely hope this won't become necessary. I have also just finished a term as a member of the ASHRAE/IES NA Standing Standard Project Committee 90.1-1989Rand as Chair of its Mechanical Subcommittee. While I am proud of the achievements both of the California Energy CommissionandASHRAE, I also look at myself as an expert on all the potential mistakes that can be made in developing and implementing regulations and conducting enforcement programs. If I haven't made those mistakes myself, I have watched with other people make them. The Commission is impressed with the quality of the proposed rule and strongly supports several aspects of it. However, there are also some needed improvements, which we will discuss at the 

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### R.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com17 appropriate time. The definition of commercial warm air furnace in section 431.141, on page 69610 -- FACILITATOR RABA: Michael, excuse me. MR. MARTIN: Yes? FACILITATOR RABA: I think we're getting into a specific area of the topics. Would you hold that, please? MR. MARTIN: Sorry. I thought you were asking me to come up on the topic to discuss. FACILITATOR RABA: I was speaking more of

a general statement. Forgive me, please. My fault. When we move into those,may we have those comments at that time, please, the statement? Then we can stay right on focus with what your thoughts are. We won't lose them that way. Would that be all right with you? MR. MARTIN: Yes. The question of the scope isnot a sub -- itf s a third item followingyour first two. It's not on your agenda at all. But any time that is convenient to you is fine. MR. LEVY: Two things. Does anybody have any questions or observationsabout the first part of Mr. Martin's statement? Okay. Then hearing none, the second -- whoever made the observation that the matter that he 

# I NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 w.nealrgross.com18 started to address is not on the agenda, the questions of definition. So I think you should go ahead and make your statement on that. MR. POLLOCK: Therewere some housekeeping items that Jim was proposing covering. Should we do those first, get them out of the way, and then get into substance? MR. LEVY: Sure. Okay. That's fine. FACILITATORRABA: Thankyou. That was Ed Levy from General Counsel, DOE. Ed Pollock,DOE also. MR. MARTIN: Yes. From my point of view, there is no significance inwhat orderyou do things. Whatever is convenient for you. FACILITATORRABA: I just want togiveyou the best for the topic. If you hold onto that,we'll

come back to it for sure. Just let me add to it on the agenda. Again, thank you for your indulgence. With that, just some quick housekeeping items. Some of you have been here before. You know the ropes pretty well about the Department's procedures too. Some things that we have that we call

norms for conducting our hearings/workshop today. We would ask everybody speak one at a time. Raise your hand to be recognized, to get you in the queue to speak in turn. I will be taking care of that and 

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### R.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.commatching as your facilitator. Make sure everybody gets a chance to make a statement or to be heard with a comment. Stateyour name for the record also sowe

can get that in our transcript and we knowwho to get back with the comments for later on. We'll also ask that people who call in, for their names and where they are calling from too each time. Be concisewhen youmake your statements. Try to avoid repetition. We'll focuson the topic and stay with that too. If there's something that does come up in addition,let me know. We'11put it on the parking lot here. We'll hold onto it until we canget to the appropriate time in our hearing for that statement or comment. We would like you also to be heard, everybody be heard. So listen as an ally. Listen constructively to move this process forward. We will be taking some breaks during the day. I'mpresuming thiswill move rather efficiently. Theremay be some extra time at the end. We'11 look at the agenda, see how our time is going for that. But indeed, if we do have some breaks in the meantime, please return promptly from those breaks as well. Also, you can get up and move around and about as you 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.comlike. Those of youwho aremaybe not so familiar with the building, just remember that we have the restroom at either end of the main passage way here. There are the phones here in the elevator bay area. Also directly downstairs in the room is a small snackbar for coffee or for lunch. The main cafeteria, by going downstairs to the ground floor and walking west about two blocks underground, follow the escalator upstairs or your colleagues who know the way. I think I see some smileswho know the ropes,so I'm pretty confident that you won't get lost today. Also, of course there's no smoking in the building. I expect we'll look at our lunchbreak when the time comes as to how we want to schedule that,and look at any other things while we're in the meeting for moving things along in the topics. So,again 1/11 be your facilitator. I am interested in the process. My job is to make your job easy. Everybody is heard. I will not enter the substance, but indeed, I will be sure that as an honest broker, everything goes according to the process that's before us here. Are there anyquestions at this time? Any comments? Seeing none -- also, if you have brought a 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com21 computer,one other thing too. If youneed a property pass to leave the building, see Brenda in the back. She can probably help you exit the building successfullywith your computer. MR. POLLOCK: This is Ed Pollock. For those of you who haven't been here before, just make

sure you know it's not if you need one. If you want to take your computer with you,you do need to get a property pass. FACILITATOR RABA: We have some persons just joining us. I will invite them to introduce themselves once they get settled. Hearing no other opening remarks or statementsat this time, we do have one. I would like to turn this over to the Chairman at this time. Then

we canproceedwith the public hearing. Mr. Chairman? MR. NASSERI: Thank you, Jim. According to your agenda, I put a brief review of the proposed rule. Here, I would like to mention the fact. Should we have the gentlemen introduce themselves? FACILITATOR RABA: Yes. We can do that. At the table,please introduceyourselves. Stateyour name, and where you are coming from. 

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### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comMR. MENZER: My name isMark Menzer

## . I am with theAir Conditioning andRefrigeration Institute. FACILITATOR RABA: Welcome, Mark. MR. MENZER: Thank you. My colleague is Lake Coulson, also with ARI. FACILITATOR RABA: Okay. Thank you very much. Noted for the record. Let's continue then. Thank you very much. MR. NASSERI : I just want to again review theNotice of Proposed Rule whichwas published in the Federal Resister on December 13. We have a comment period until February 28th. So you have that much time, another month to submit your written comments. ~lso, thispublic hearingwas announced in the NOPR at that time, January 27th. Then we requested that you send your statements to speak by January 24th, and also since we had the weather difficultiesand everything else in the last fewdays, I understand of arranging things. I had a problem myself. Some of the things that you see here, for example, I tried toput the agenda togetheryesterday. The topics for discussion under A and B, there are sub-topicson test procedures and sampling that probably I should have listed, but those are basically on the two handouts thatyou see. One is on 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comthe issues related to test procedures, warm air furnaces. The other handout is on sampling. If you look at the sheets on that, those are basically the sub-topics that we are going to cover under each of those topics. Also, 

### I should mention the fact that I only received, the Department only received one statement, written statement from Gas Appliance Manufacturers Association -- thank you, Joe, -- very late yesterday. We have copies here. 

### I had a phone call from Lake. I tried to get in touch with him this morning, that's ARI, that their phone was basically busy all day. I think Lake mentioned in the message that they are working on the statement. I assume it was yesterday and they are going to bring it to the workshop or hearings today. Is that right, Lake? MR. COULSON: That's correct. MR. NASSERI: So actually, we have two requested statements. I read GAMA's statement, which basically isrelated tocomplianceand enforcement and not to the test procedure. So our test procedure sessionand topicsmight be short. You canmake it as short as possible so we can basically not actually stay until 5:00, the scheduled time. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com24 My recommendation is that when we go on the topics of discussion,as GAMA requested, we go for the items that conclude under the area, and then we basically at that point open the floor to discussions and any statement that anybody would like to make. Michael -- is there anybody's comments which are related to the issues that we have on this handout? Michael Martin of California Commissionhas

some comments. Are your comments related to issues that are listed on this handout on test procedures? MR. MARTIN: It is related to that. They are all complimentary. We just feel from time to time

we need to sayyou did a good job,without sayingyou need a good job back. So it does not require going into anything in detail. It is just to tell you you did a good job. We're talking now furnaces. We talking now just furnaces. MR. LEVY: There was a comment on the definitions provision. Why don't you go ahead with that because that's not specifically addressed. MR. MARTIN: That is not related to the test method. MR. LEVY: Right. MR. MARTIN: Can I say my nice things about you before I do that? 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com25 MR. LEVY: Sure. MR. NASSERI: While Brenda is doing this, we provided a call-innumber yesterday. 

### I sent it to ARI and GAMA by e-mail. I'm pretty sure you did not receive it because you didn't go to your offices maybe. Itprovided a call-innumber in case if you're not able to make it to this workshop. MR. LEVY: She will announce the other parties as they call in. MR.NASSERI : Okay. Now we have the call- in number open. So if anybody wants to call us, hopefully they know. MR. POLLOCK: This is Ed Pollock. There

were several people yesterday who I talked with and Cyrus has talked with others, who were finding it difficult to travel because of the weather along the east coast. So that iswhy this is not a normal thing which we plan on doing, but we felt given the emergency, that we would include it for this conference, to allow broader participation. FACILITATOR RABA: Thank you, Ed. MR.MARTIN: We commendDOEon: separating the regulations for commercial appliances,part 431, from those for consumer products in part 430; for consideringwarm air furnacesand boilers as separate 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com26 appliances and discussing their test procedures at separate hearings; for its decision that DOE'S test method should include a procedure for testing the performance of commercial and densing furnaces; and foryourproposed test procedure inwhich DOE appears to have taken the best of several industry test methods, none of which are totally satisfactory,and made a satisfactory combination. No buts. FACILITATOR RABA: Thank you,Michael. MR. NASSERI : I think we're ready. I don't have anything else to add to the brief reviewof the proposed rule. I think we are ready to start our topic discussion at this point,which I think is test procedure for commercial furnaces. I think we probably should have Stan Liu to have his presentation. Then we basically have our open floor forany statements for the areas after that. We'll go in that fashion. Is that okay with everybody? Stan? MR. LEVY: Before we go ahead with that, this is Ed Levy. Did you have a statement,Mike, on the definitional provisions? I thought you said you did earlier or did I just misunderstand you? MR. MARTIN: Ido,but it1 snot the agenda item we are talking about now. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comThey have just found the overhead projector

### . MR. 

### LEVY: Well, why don't you make that statement while they are setting that up. MR. MARTIN: Okay. The definition of commercial warm air furnace, section 431.141 on page 69610, reads, a warm air furnace, that is, a commercial HVAC and WH product, the definition of a furnacethat is a consumer product in section430.2is

a product which utilizes only a single-phaseelectric current in conjunction with natural gas or oil and which is designed to be the principal eating source for the living space of a residence, is not contained within the same cabinetwith a central air conditioner whose rated cooling capacity is above 65,000btu per hour, and has a heat input rate of less than 225,000 btu per hour. It appears from these definitions that warm air furnaces with less than 225,000btu per hour which are not consumer products,asdefined above,are commercial warm air furnaces,and that the efficiency certification complianceand enforcement requirements in the proposed rule apply. This is not obvious to the casual reader, and needs to be clarified. However, the standards 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.neaIrgross.com28 proposed in section 431.171does not apply as written to any warm air furnacesof less than 225,000btu per hour. We urge DOE to modify section 431.171 to include warm air furnaces less than 225,000btu per hour that are not consumer products as being subject to the thermal efficiency standards for other commercial furnaces. The background of this is consumer products under NAECA do not include three-phase equipment. Commercial products apparently do not -- the standard for commercial products does not include three-phase equipment of the smaller sizes. It appears to me that this was overlooked by the people who drafted EPACT. It needs to be clear just where these things stand in your final notice. 

### MR. LEVY: This is Ed Levy. I have a question. Are you suggesting that we expand the coverage of the standard beyond the scope as in the statute? MR. MARTIN: That is the suggestion. Well, there's two suggestions. The key one is that you make whatever the position you take is, very clear. The suggestion that we have as to how you should solve it would be to include these as 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com29 commercial products. It is, as you say, beyond the wording of the statute. Whether it's beyond the intent is another question. MR. LEVY: Any other comments on that point? FACILITATOR RABA: Charlie Stephens? MR. STEPHENS: Charlie Stephens, Oregon Energy Office. We concur with the CEC's recommendation. That we have actually been involved in doing some three-phase 150,000 btu per hour equipment. Under the way NAECA reads now and the way your proposed rule reads now, none of that equipment would be covered by any standard. We think it needs to be covered somewhere. FACILITATOR RABA: Thank you. Michael? MR. MARTIN: Michael again. Overall, it needs to be very clearwhere we stand sowe don't have to ask for interpretations later. MR.NASSERI: Excuseme,Michael. You are going to submit a written comment before February

MR. MARTIN: Yes, sir, Iam. Yes, indeed. MR. NASSERI: Okay. FACILITATOR RABA: Ed Pollock? MR. POLLOCK: I was just going to ask -- 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com30 I believe Joe Mattingly from GAMA was involved in drafting the language in both of these -- if he had any sense of what was intended here or how it will be most appropriate to deal with this. MR. MATTINGLY: This is JoeMattingly. I had no sense at all when I drafted EPACT. We recognize there's a gap there. Beyond that, I can't say more. 

### I will say obviously you do have a statutory problem, whether you can expand beyond the statute. But we acknowledge there is a gap and frankly, I don't know if it was just a total oversight, possibly, when we drafted EPACT. FACILITATOR RABA: Okay, thank you. Any others? Any other comments? MR. NASSERI : I think our projector is working now. I think you are ready for Stan's presentation on issues on commercial furnace test procedures. Stan? MR. LIU: Okay. This is the title page which everybody can read. I don't have to read it. The first issue is incorporation of the ASHRAE Standard 90.1 referenced furnace test standards. In the proposed NOPR, a NOPR was proposed to adopt -- MR.NASSERI : Stan,couldyou speak in the 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.commicrophone, please? MR. LIU: For gas-fired furnaces, is ANSI 221.47 1993 version. For the oil-fired furnaces, is UL on the writers laboratory, 727 version 1994. The reasons listed for adopting the two standards are first, EPCA specifies adoption of the industry test standard referenced 

### by ASHRAE 90.1and in effect on June 30, 1992. The second reason is the standards are those referenced by ASHRAE/IE 90.1 for furnaces. The third one isyou'll notice that since June 30, 1992,the effective date. But all dates,the reference date for gas furnaces is 1993 and for the oil furnaces is 1994. We looked into the version that's referenced in ASHRAE 90.1 prior to 1992 and compared with the latestversion of the standards, and found out there is no difference between the prior version and the current version. The current version is much easier to obtain. That iswhy we reference the currentversion. During the previous,we had two workshops

on the test procedure for furnacesand other subjects. The comments during the workshop, all support. MR. NASSERI: I think the best way to handle this, we'll stop at this point and see if 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com32 anybody wants to make any comments on this issue of referencing the latest version of the ASHRAE standards, which is basically in the standard 90.1, ASHRAE 90.1. MR. MATTINGLY: Joe Mattingly from GAMA. My technical staffwonderswhyyou arenot referencing 221.47 1998, since the thermal efficiency test procedure didn't change? MR. NASSERI: 221.47 1998? Are you recommending that we look at the latest? MR. MATTINGLY: Right, and adopt that as the current standard applicable to furnaces. I say the thermal efficiency requirements or test methods didn't change. MR. WILSON: Steve Wilson from York International. 

### I would like to state also that the thermal efficiency section outlined as 2.37did switch to 2.38 in the 1998 version. It would be important to upgrade to that year. MR. 

### LIU: Yes, we'll look into that, and make sure that they agree with each other. FACILITATOR RABA: So essentially,we're looking to update these current standards. Do you see substantive differences? MR. WILSON: No. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com33 FACILITATOR RABA: Okay, good. Thank you very much. Any other comments? MR. HAAG: Wilbur Haag. Ihave a question because I am not that familiar with the furnace standard,but if the furnace standard is harmonized, like the water heater standard is? The number may not be right. FACILITATOR RABA: Harmonized? How is that? Harmonized with international? MR. HAAG: The Canadian. FACILITATOR RABA: Canadian? MR. HAAG: Yes. MR. NASSERI: Let me clarify on that. Wilbur is talking about 221 which has AD standards. It's harmonized with the Canadian standards. So whoever is referring to that. As I recall, there was many of his standards,since I am amember of that committee also, is that there are certain differences in the members of the committee on some of these. Then obviously we did look at this latest version of this standard and did include any harmonization or numbering system as far as Canadian standards. FACILITATOR RABA: Thank you, Mr. 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C.20005-3701 www.nealrgross.comChairman. Mr. Martin? MR. MARTIN: Yes. Michael Martin. I am

a member of this committee too. These harmonized standards, this is U.S. and Canadian, have two numbers,both the 221 and the Canadian number. So the 221 number, the -47 is an accurate way of defining it in the United States regulation. I would also support updating it to the later edition. FACILITATOR RABA: Thank you. Any other comments, questions on the standard reference for commercial furnace test procedures? Okay. Ready to go to the next? MR. LIU: Now for the commercial warm air furnaces, there is a definition of what is thermal efficiency. Proposed in the NOPR, is to define the term thermal efficiency for commercial furnaces, I stress only for commercial furnaces, as 100 percent minus percent of flue loss. The reason for that is EPCA specified the minimum standard for commercial warm air furnaces in terms of thermal efficiency, which is also the same term used in ASHRAE 90.l. ASHRAE 90.1 uses thermal efficiency as an energy efficiency descriptor. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com

### The third one is the referenced ANSI 221.47, I 

### guess now it's 1998, explicitly defines thermal efficiency as equal to -- 

### they write it out, 100minus percent flue loss in the thermal efficiency test section. The proposed would define it exactly, explicitly as 100 percent minus flue loss as the thermal efficiency,isto eliminate possible confusion with some of the usual definitions of thermal efficiency which is usually defined as output energy divided by input energy. Tomeasure the output energy isdifferent than to measure flue loss. So it is important to define that 100 percentminus flue loss,sowemeasure the flue loss. This procedure mentions the flue loss. There is a different procedure for measuring the output energy, which is involved in flow rate, captured differences and so on. The comments during the prior two workshops,all support the proposal. Also the comment is that no jacket loss shouldbe included, because if youmeasure jacket loss and subtract that from the 100 percent minus flue loss,thenyou are supposed to get the usual definition of thermal efficiency. But during workshop, the comments is that since the NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com36 

### definition in ANSI 221.47 is 100 percent minus flue loss as the thermal efficiency, therefore,no jacket loss shouldbe included, which in the proposal, there is no jacket loss included. MR. NASSERI: Any comments on this issue? Did everybodyunderstand what the issues are and what you are talking about here? Any questions? Anybody need any clarification on this? No questions? No clarification. All right. Let's go to the next slide, Stan. MR. LIU: The third topic is flue loss calculationfor oil-firedfurnaces. Inthereference, the proposed in NOPR is to adopt a 

### flue loss calculationprocedure specified in the 1989 Hydronics Institute test standard for oil-fired boilers as a calculationprocedure for oil-fired furnaces. The reason is first, under writer laboratoryUL 727 for oil furnaces does not provide a method for flue loss calculationwhich is needed for determining thermal efficiency, 100 percent minus percent flue loss. UL 727 does specify, mention flue loss, except it didn't say how. Also, how to calculate it. Theproposed 1989Hydronics Institute test 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com37 standard is ASHRAE 90.1referenced test standard for oil fired boilers. So in an indirect way, it is referenced in ASHRAE 90.1. The third way, there is no difference in the flue gas analysis for oil-firedheating equipment, either boiler or furnace. Therefore, adopting the one for the boiler, the test procedure, and the calculationprocedures are identical,which are also being used in the ASHRAE standard for residential furnaces and boilers. The comments during the prior workshop is no objection to this proposal. FACILITATOR RAl3A: Does everybody understand that? Everybody get that? Any comments? MR. NASSERI: 

### Ihave a question here from GAMA. We are waiting for -- I see Joe doesn't like this question --my question is that GAMA has been or

- - this as part of GAMA, they have been revising this test standard for the last fewyears. 

### Iwould like to know if there's any update on the status of the standards. Because we very much would like to reference the latest version of the HI standards. Joe? MR. MATTINGLY: I am not sure, Cyrus,but we'll address that in ourwritten comments or let you NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comknow beforehand. MR. NASSERI: Thank you very much. FACILITATOR RABA: Has anybody joined us

on the telephone for the Department of Energy Commercial Equipment Public Hearing? So be it. Nothing heard. MR. LIU: Okay. Looks likewe're finished with this then. Let's go to the next issue. The last one on the agenda is optional test procedure for gas-fired condensing furnaces. MR. LEVY: One clarification here. I think the word probably is misplaced here. The test isnot an option. It is only optional in the

sense that if youhave a condensing furnace,then this is the test to use. But it is not the manufacturer's option as to whether to use this test. I wanted to clarify that point. Go ahead. MR. LEVY: The oneproposed in theNOPR is adopting the steady state test method for flue condensate measurement specified in ASHRAE standard 103 in the 1993 version. The reason is in the referenced test standard, none of them give a test procedure for measuring the increased efficiency of gas-fired condensing furnaces. 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com39 But DOE does need a method for use in the design option evaluation process. The third one,I already said. The fourth one is ASHRAE 103 is the referenced testprocedure for residential furnaces and is a familiar procedure for the furnace industry. So there shouldn't be any problem understanding using the test method. Thecomments during theprior workshops is there is really at the present time, no commercial condensing furnace. So comments were why bother providing a test procedure for it. DOE'S point is even though there is no commercial condensing furnace, but eventually there will be one developed. DOE would like to have a test procedure in place rather than playing a catch-up game. When a condensing furnace comes up, and then say where's the test procedure, then DOE is supposed to develop a test procedure which takes time. So DOE would rather have a test procedure in place, in waiting, if ever there is one developed. FACILITATOR RABA: Thank you, Stan. MR. NASSERI : Any comments on this issue? MR. WILSON: Steve Wilson, York International. Twopreceding slidesago,we agreed to define thermal efficiency of 100 percent minus flue 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com40 loss. In this slide,for which there is noproduct on the market at this time,andmost of themanufacturers in the past meetings have proposed this particular section,we arenow referencingASHRAE 103 1993,which isanAFUE calculation. TheAFUE calculation requires that jacket loss be taken. So now we are in direct conflict on what we are asking for a standard, 80 percent tied furnaces versus condensing furnaces. There needs to be a clarification of how we are going to test this. MR.NASSERI: I guessyou are correct that ASHRAE standard is based on AFUE rating. But also, there is a method of measuring their steady state efficiencyon the same document. AFUE isnot the only way of measuring efficiency. So 103 very clearly gives you the test procedure for steady state. In the case of condensing furnaces,we're talking about that issue, not AFUE, and 103, as I said, has a very clear procedure for measuring the efficiency for condensing furnaces. This is a technology that is on the market. Even though we had comments that it's not commercially used, but we believe that this is a technology that actually basically saves energy if we use this technology and reclaim some of the losses through your flue, and is 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.coma good position to have a test procedure since industry has run as ASHRAE 103 in our test procedure for future. FACILITATOR RABA: Comment? MR. LEVY: Yes. I just want to raise a question. This is a question forMr. Wilson. If the regulation made clear that we were referencing only the steady state test procedure, the one that Cyrus just referred to, would that address your concern? MR. WILSON: That would. MR. LEVY: The concernyou just expressed. MR. WILSON: That would. MR. LEVY: Okay. MR. WILSON: There is no reference to a steady state temperature up there or steady state efficiency. MR. NASSERI: As we understand it, as we talk, is this self-explanatorythat when we're taking the efficiency for condensing,you are talking about a steady state efficiency, which is the method in the ASHRAE 103 measurement. MR. WILSON: Exactly. MR. LIU: In the test procedure proposed NOPR would be mentioned, referenced, the section numbers in ASHRAE 103, which is specifically only 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neaIrgross.com42 aimed at the steady state efficiency. FACILITATOR RABA: Thankyou. That was 

### Ed Levy justprior to that asking the question, and Steve Wilson responding. Indeed,we have two hands raised. I will to you in just a moment. We would like to have your comments on this topic, invite certainly,maybe bring it up later on, we would invite your written comments. Michael Martin? MR. MARTIN: Yes. I think first of all,

we need to get this into context. You are setting a test method, but these things are so very much more efficient that they are not going to be used for determining whether or not you comply with a minimum Federal standard. Therefore, all we're actually doing here is specifying a national method of describing the efficiency this kind equipment. such, would support following the details of the ASHRAE standard as ameans of describing the efficiency. But it doesn't affect the question as to whether or not you comply with aminimum because condensing furnaces

are never going to be down that low. So I disagree with Steve. FACILITATOR RABA: Again, your written 

### NEAL R.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comcomments are invited also on that point. Brad? MR. HOLLOMON: Brad Hollomon, Pacific Northwest National Laboratory. I just wanted to ask for confirmation of Ed Levy's remark that this is in effect a mandatory procedure if you have a condensing device, given the comment that Michael Martin just made. One would ask the question I think asked in some of the previous workshops, whether or not if a manufacturer had a condensing device and was not particularly interested taking credit for the latent heat of the condensate, that he would not necessarilyhave to test the device according to this particular procedure. MR. LEVY: I am not going to try and

answer that question here. That is something we can address, and we will. FACILITATOR RABA: Any other comments, please. Mr. Chairman? MR. NASSERI : At this point, sincewe are finished with the presentation of the issue, I would like to open the floor for general discussion if anybody wants to make any statements related to the commercial furnace test procedures. MR. MATTINGLY: Joe Mattingly from GAMA. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com44 We did have a comment on the definition section on basic model, which pertains to all the regulations. It seems like it is better discussed when we talk about the certification and enforcement. MR. NASSERI: Any commentson the issue of test procedures for furnaces? There is none. I think we are ready, Mr. Facilitator,if you would like to have a break at this point. Or do

we go to the next item? FACILITATOR RABA: What's the rule of the group today? Take a break or keep moving? Okay, a short break. Ten minutes. Back at quarter of. MR. NASSERI: Then we're going with the certification compliance presentation. (Whereupon,the foregoingmatterwent off the record at 10:35 a.m.and went back on the record at 10:54 a.m.) FACILITATOR RABA: Please takeyourseats. Mr. Chairman? MR. NASSERI : Thank you. We are ready to go to the next issue of this workshop or public hearing. That is the sampling, certification, and enforcement for commercial heating,ventilating, and air conditioning and water heating equipment. At this point, Steve Treadow will have a 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.compresentation. Then we go and do the same procedure item by item and discussion. FACILITATORRABA: One point of order,Mr. Chairman. I note that Joe Mattingly of 

### GAMA has a brief comment about basic --well, an agenda item that

was not previously brought up, and would like to invite his comments at this time to give a picture of the overall on that one. Thenwe'll have Steve's presentation. We

can then revisit the definition of basic model, comments, even more detail as we go along. So please, if you would. MR. MATTINGLY: Okay. Thanks. Joe Mattingly, from 

### GAMA. This subject first comes the definitions section of basic model. This issue comes up even more starkly in section 431.503. But in your definition of basic model, it appears from that definition that if you had a gas furnace or a gas boiler that was entirely,you know, the same but had different energy consumption, that couldn't be considered the same model. Even if their energy efficiencies were the same, but their energy consumption is different, it couldn't be the same model. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com46 We looked at the definitions in part 430, which you have for the NAECA regulations. When you look down to the different products, indeed you see energy consumption as a basis for having different models for each product, except when you get to furnaces. For that matter, room air conditioners. But we did that on purpose in NAECA because residential furnace manufacturers have model series or families. They will offer a basic model, and then they will have like different input options, just add a little more heat exchanger and you have a different input. So we just flagged that. We don't reallyhave a definitiveposition on thatyet. We are discussing it with furnace manufacturers to see if that is an issue. Now, later on in that other section I referred to, you have recognized thisbecause you say look, if there is a difference in energy consumption but the energy efficiency is the same, you don't have to test the other units as a different basic model. But you do have to file a certificationreport for it. So the fact thatmanufacturers may have to add model numbers may complicate their business. We will comment if we find out that it does. We are just flagging it as an issue now. We will address it one 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comway or the other in our written comments. MR. LEVY: Okay. Just one brief understandingthatyouwill address it definitively in your comments. Does it appear at this point that use of the approach in part 430, the definitions there, basic comment would address your concern? If that

were imported into the final rule here? MR. MATTINGLY: Yes. Ifyou justmodified your definition, except for furnaces which -- 

### YOU know, and change it somewhat. But again, we don1 t want to though raise an issue if it's not truly a problem formanufacturers. That iswhat we are trying find out. MR. LEVY: We'll look at your final comments on this. The approach in part 430 defines basic model product by product. Here there is only one definition forall of theseHVAC and water heating commercial products. So maybe it would make sense. We'll look forward to your comments. Maybe it would make sense tohave aparallel approachhere,where the definition of basic model varies from one type of product to another. FACILITATOR RABA: Thank you for your patience. We have one comment from Michael Martin, please. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com48 MR. MARTIN: Yes. If Joe could explain to

me what circumstanceswe would be talking about where

-- I think you said the input is the same but the efficiency is different? Or was it the other way around? MR. MATTINGLY: No. It is the other way around. Under the NAECA, you know, the residential products, you might have a basic model in a family. Then it's offered with 30,000btu input, 40,000 btu input, 50,000btu input all within the same model. MR. MARTIN: Same basic model? MR. MATTINGLY: Same basic model, yes, MR. MARTIN: But they would have different model numbers when they are on themarket then, I take it? MR. MATTINGLY: I'm not sure how the numbering would be different, but it would be considered still the same basic model. MR. MARTIN: That would affect the model testing you have to do. That is the significance of what you are bringing up? MR. MATTINGLY: Well actually, DOE seems to have forecast that,and they are addressing that in this later paragraph, saying you don't have to do additional testing.

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com49 What we are trying to find out though is this going to complicate the way you do business in

some other way. MR. MARTIN: I see. MR. MATTINGLY: If not, then we'll just say it's not an issue. If it does, we will let you know. MR. MARTIN: Great. Thank you. FACILITATOR RABA: Steve? MR. WILSON: Steve Wilson, York International. The basic model issue would have a different series model number. But the problem is that whenyoudefine a basic model in the fashion itr s being defined, you end up testing each one of those gas inputs when in reality,every one of them is going to have the same efficiency, just a different input size, as just pointed out. So that the danger is here that when you define a basic model in this fashion, that when you have different gas heat sections,saywith a five ton three-phase unit for cooling, then you may have a 60,000and 80,000,and 100,000 input, that those are all defined as three different models, when in actuality, they have got the same blower. They have got the same energy consumption on the cooling side. 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comThey have got the same efficiency on the heating side forall three models. Sowe would be forced intomore basic model testing. That's what we would not like to have as manufacturers. MR. LEVY: Also address Joef s point consistent with this last observation. That the additional round of testing would not be affected by the provision in section 431.503. That addresses new models that come on line. So youmay want to consider that in determining how to address this point. FACILITATOR -A: Sounds like a good topic for follow-up,written comments too. One more from Michael. Then we'll go to Steve. MR. MARTIN: Yes. Then these comments are applyingto allgasproducts then? Furnaces, boilers, and water heaters? MR. MATTINGLY: We have thought of the issue so far in terms of furnaces and boilers. MR. MARTIN: I see. FACILITATOR RABA: Steve? Proceed. MR. TREADO: Just forthe record,I'm sure everybody here is aware of this, but I want to reinforce the fact that what I am going to talk about covers all the commercial HVAC equipment, all the 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com51 various classes, including furnaces, boilers, hot water heaters, air conditioners, heat pumps. We're going to talk about -- I am going to try to describe the sampling, the certification, and the enforcement provisions. The way those things break down, the sampling refers to how to select the units for testing andhow to determine the performance metrics that are going to be used to demonstrate compliance with the minimum standards and also any ratings or representations which are going to be used to describe the performance of covered equipment. Certification is the procedure that needs to be followed in order to certify to the Department of Energy that the covered equipmentmeets the minimum standards. Enforcementreferstotheprocedureswhich are available in case there is some dispute about the actual performance of a piece of covered equipment. Specifically, whether it meets the minimum standards. It was mentioned earlier that you would like to go through theproposed rule basically section by section. I don't quite have it broken down that way, but it is pretty close. As I am going through, 

### I will try to cover each point. Then if you think it spills over into another section, we can go ahead and 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nea1rgross.com52 try to cover that. As Imentioned, certificationprocedures, there's not a lot of change here fromwhat has been in place for the previous residential consumer type products. It consists of a compliance statement, which is intended to be a one-time submittal. Ihad a chancebriefly to look through the two sets of written comments from GAMA and ARI this morning just as the meeting has been going on. I noted that there was a comment in there about whether you needed to submit a compliance statement for each

new product when that comes about. We may need to clear that little bit. I don't believe it's the Department's intention to do that. I believe the compliance statement is more an institutional or corporate indication to the Department Energy that they are aware of the procedures and the standards, and the products that are covered, and that they intend to follow the regulations. So it is basically just a notification to the Department, a one-timesubmittal. In contrast, the certification report needs tobe submitted to the Department foreachbasic model that is covered. Now that can be done either directly orvia a thirdparty. But the Departmenthas 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.combeen pretty consistent inwanting to receive and have

on file an actual certification report. I noted there were some comments along the lines of, well if it's published in a directory, should that be able to substitute. I guess that's something the Department can consider, but they have been fairly consistent,as I mentioned, inwanting to have something on file here at the Department. This certification report includes the energy performance in the metric that is appropriate for each class of equipment. That isdescribed in the rules. It is based on the DOE test procedure or the calculationprocedurewhich itself has tobe validated using the DOE test procedure. Everything comes back to measurements at some point. There are some differences in the requirementsforthecalculationprocedurealternative energy determination method, AEDM, depending upon whether a particularmanufacturer is a participant in voluntary independent certificationprogram VICP. There is a little more leeway given to manufacturers who are participating in an approved voluntary independent certification industry certification program. We will describe a little laterwhat would be required to obtain approval for a 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com54 particular industry program. Any questions on sort of these general topics? MR. WILSON: Steve Wilson from York International. I guess we're really asking as manufacturers if a submittal to ARI and CSA, GAMA, a listing in those appropriate directories, if that constitutes compliance withwhat theDOE is requesting

as far as the certification report. In other words, it will be a substantial amount of work to go through all themodels, families, that we have currently listed once again to submit to another agency to comply with this program when we have already got it listed. FACILITATOR RABA: Any thoughts to that from the Chair? MR. LEVY: Let's just turn it around. Let me ask this question. Is it the intent that these directories would be submitted to the Department as a certification report? MR. WILSON: I am asking if that would be acceptable,iswhat I'm asking. Would that constitute a certification report for each basic model? MR. LEVY: I think that is something that

we can address. I think the Departmentwould probably 

### NEALR.GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.combe satisfied as long as it gets the information. What I'm asking is whether or not that's what you are advocating the Department allow, is that for the associations to submit their directories. MR. WILSON: Yes, it is. That is exactly what I'm asking. FACILITATORRABA: We had one comment from Michael Martin first, then Joe. MR. MARTIN: It does seem to make sense. Those directories should be submitted to DOE. Otherwise, you don't have anything on file. I think

as you look further into this, you need to look at whetheryou are talking about theprinted directoryor the electronic directory as to what you would be accepting. MR. LEVY: What is thedifference,Michael

or if somebody else can address it? MR. MARTIN: The printed directory comes out twice a year, but the electronic directory -- we're talking about ARI, for instance,the electronic directory isupdated more often. So it ismore up-todate than the printed directory. If you are in a position to accept this electronically, you would have much more up-to-date data. However, if youdon't have the facilities to do 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com56 it, then you know what electronic stuff is when you don't know what to do with it. FACILITATOR RABA: Interesting point. Thank you. First, Joe Mattingly, then Mark Menzer. MR. MATTINGLY: Joe Mattingly from GAMA. We would hope that you try to do this the same way as is done for NAECA-covered products, where we give you the directory. Of course we have a commercial boiler certificationprogram in place right now. We almost have one in place for water heaters. That's coming very soon. We have to think hard now about one for furnaces

### . But we would certainly submit the printed directories toyou,and electronic versions, we would give you everything that we've come to give the CaliforniaEnergy Commission forresidential products. FACILITATOR RABA: Thank you. Mark, then Charlie. MR. MENZER: Thank you. Mark Menzer from ARI. We would hope that submittal of a certification directory would suffice to meet this. But let me be clear that for the electronic directory, which is available on the Web, it is updated instantaneously, daily,more often than daily. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.neairgross.com57 A submittal there of course is kind of a passive submittalbecauseyouhave it, youhave access to it. So it would not be a physical submittal of anything,but rather,youwould always have access as everybody who is on the Web does, you would have

access to our directory with the latest data at any time youwanted to. So it kind of redefines the word submittal. FACILITATOR RABA: Electronics makes an interesting world, doesn't it? Charlie Stephens? MR. STEPHENS: Charlie Stephens, Oregon Energy. Ihave one question first,probably of Joe or from Steve. It seems to me that from my use of the GAMA directory, that what you would be submitting is

a lot more than basic models there. I mean you actually have every model listed, complete with inputs. So I guess I am wondering if we go with this notion of a different definition of a basic model, we are going to end up with certifications for much more than that the directory becomes the certification. The other question is,that's fine forthe people who are participating inyour directory. What 

### NEAL R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comabout themanufacturerswhose equipmentarenot listed in your directory and don't participate in your program? FACILITATOR RABA: Good point, Charlie. Thank you. Any comments further? Michael? MR. MARTIN: Yes, I sense the basic model discussion is as to what has to be tested. But the actual model number is what is useful in the file. I don't sense that there is a problem there. 

### I see Steve nodding his head side to side, which I think means he agrees with me. MR. WILSON: 

### I agree. The definitionhas to do with testing after the individual product goes into testing certification and production. Listing the basic models is not a problem because we have to do that anyway. But it does get more complicated, the testing aspect, when you are verifying the testing such as GAMA does on furnaces and you have a list of basic models that includes the same unit with four or five different inputs. MR. LEVY: Just to clarify. The proposed rule would require the certification report that each model be identified, not just each basic model, but 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comeach model number in effect. I take it, and I think GAMA and ARI you responded, I take it that's the information that Charlie was referring to that's in your certification reports, each model, not just each basic model?MR. MATTINGLY: Joe Mattingly from GAMA. These directories are not produced just for the purposes of complying with DOE requirements or CEC requirements. This is forpublic consumption. Ithas got to make sense to the public. So of course we don1 t just list basic models. We list all themodels. MR. STEPHENS: Yes, this is Charlie Stephens. The reason I asked is because it says up there on this slide, certification report for each basic model. It doesn't say each model. So I guess I am trying to make sure here what we are talking about. MR. LEVY: Just to cut to the quick. That does not accurately state what's in the rule, I mean

or totally state. Let's put it that way. The rule calls for each model. MR. STEPHENS: Each model, okay. FACILITATOR RABA: Would you care to comment? MR. TREADO: 

### Ihave a comment that I would 

### NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com60 probably advise the Department to take into consideration along with everything else. The fact that what they have now or what they are asking for now is a piece of paper that basically lists all of the individualmodels, rather thanonebasic model, at

apoint in time,and for eachnewbasic model which is introduced, they would receive a report. Perhapsthedisadvantage of theelectronic version of the database is that the Department would have to proactively query this and keep records somehow as this changed in time since it is a dynamic document. Those would be some tradeoffs that they would have to look at. I can see the difficulties for the manufacturers, of trying to handle additional paperwork. Maybe there is some compromise, where the VICP might be able to consolidate. Since the industry directories are including all the individual models, they might be able to consolidate those down to the basic models. That's the correspondence that the Department, I believe, is trying tomaintain, so that

an actual model can be related back to a test which

was done on a basic model. MR. MARTIN: I guess I want to disagree with what you just said, in that what DOE should be 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.neairgross.com61 maintaining is a list of every model. That is what would come from the trade associations, rather than just the basic model. MR. LEVY: Can I ask a question here of the industrypeople? Are the directories in any way organized in termsof thebasic model definitions that exist? For example,on the appliance side,are models that would constitute a single basic model grouped together in these directories? MR. MENZER: Mark Menzer from ARI

## . No, they are not. Unnecessarily organized that way. MR. POLLOCK: This is Ed Pollock fromDOE. Just to follow up on what Mark just said though. In the ARI directory, there are little asterisks in the column that indicates which are the tested basic models. That in itself identifies those that have been tested. So it is a very easy thing to 

### be done. Ihave not looked at GAMA forthat,but it could be, I assume, added to theirs if it isn't already. FACILITATOR RABA: Thank you. Further comments or statements for discussion? MR. STEPHENS: One other thing. Idohave a question. Iwould just like to hear fromDOE. This is Charlie Stephens. What do you prefer or is there 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 w.nealrgross.com62

a legal issue involved in having paper, and a signed piece of paper with a directory or a periodic submission like once a year, once a quarter, once semi-annually,whatever, of an update, of a formal update of all the added models in the previous six months or the previousyear, or all of the models that

are currentlycertifiedas of some particular time, or I mean in terms of meeting you might say the legal requirementsof amanufacturer to literally certifying that all of these models do comply, do you have a standard position on how that's done? MR. POLLOCK: This is Ed Pollock. From the NAECA residential products, the reason for this compliance statement is that what the company is certifying is that they understand the law and that they are testing and complyingwith the efficiency and reporting requirementsof the law. That iswhy we say that's a corporate thing which is specified one time only. I don't want to get into saying is it legal or what other do we need, but there is a precedent there for a process that's been set up and has worked fairly effectively for us. 

### MR. LEVY: But to address the question. I think the way the rules are set up now, a model or 

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### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISlANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.combasic model at least can't be distributed unless a certification report has been submitted with respect to that basic model. MR. STEPHENS: Basic model, not a model. MR. LEVY: Yes. That is correct. MR. STEPHENS: Basic versus model. 

### I am going to have to go back and read some of this stuff, and just see how it parses out. MR. LEVY: Yes. I think that when -- I haven't really focused real closelyon this issue,but I do believe the same is probably true with regard to

a newmodel. So there is general provisionwhich sort of addresseswhat manufacturers have to do initially. Then after that, you look at the new model language, and that doesn't -- it's not real clear on the time, but when a newmodel is introduced,even if it ispart of an existing basic model, you have to submit a certification report with respect to that new model. The timing is not specified on that. MR. MATTINGLY: Joe Mattingly from GZUW.. I think the laws and regulations are pretty clear that regardless of the paperwork, every model, basic model

or derivativemodel, had better darn cite comply with the law with the applicable standard. 

### I think that is quite clear. NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comSo whether you send in a certification report or committed perjury or whatever, if you get found that you are not in compliance with the law, to

me it's no excuse to say I didn't understand the law

or didn't sign a piece of paper or whatever. I think it is pretty clear what the requirements are. FACILITATOR RABA: So should we move on then? MR. NASSERI: Let's move on to the test basic models. MR. TREADO: Yes. The next items is generallythe categoryof testingand how that relates to basic models. We have talked quite a bit about basic models. Everything in terms of both ratings and the validationof any computermodel used todetermine the performance all comes back with a DOE test procedure. The units that are tested must be representative, meaning typical for that class. It needs to be a randomly selected. Now again, I notice there was a comment about what to do when you only have one or two units. Well, if you only have one or two units, you randomly select from them. That's about as random as you can be in that case. 

### NEALR.GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comanother comment about just what were industry standards for accuracy. The Department was hoping the industry might shed some light on that. It was intentionally vague because we didn't want to set something up that was either incorrector otherwisenot applicable. But certainly, the industry has expectations for the accuracy for 1 2 3 4 5 6 7

these measurements. The reason this phrase came 

### up, to be frank, is that once you get into this whole business of approving the voluntary industry certification program, it is conceivable that new programs might spring up, which people who haven't been doing this be£ ore andmay not have the competenceto really carry 65 What to do about more or less a prototype of a new product,what you need to certify before you

can sell. That's something the Department will have to try to consider if there is 

### a need to be more specific about testing such a unit. The measurements need to be done within industry standards for accuracy. 

### Iknow that that was

out the measurements. So they are hoping to have a qualitative means of being able to identify those sorts of shortcomings compared to the industry standard. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE.,N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com66 MR. MATTINGLY: Joe Mattingly,GAMA. One thing we just want to be sure that you didn't mean, unless you did, with our certification programs that exist now,we have certain tolerances. But we didn't read this as having anything to do with tolerances. MR. TREADO: No. This is not a tolerance issue, this is strictly a measurement issue. MR. MENZER: Mark Menzer from 

### ARI

### . You are concerned about the accuracy of measurements both at the manufacturer and an independent third party testing house? Is that correct? MR. TREADO: Yes. This would be any measurements which were conducted either to determine

a rating or to perform model validation. MR. MENZER: Yet they are testing against

a standard that has accuracy tolerances within that. So you want to make sure that they are staying within those tolerances? MR. TREADO: Yes. Certainly that is an indication of an industry standard if it's for accuracy, if it's actually stated in the test procedure itself. MR. MENZER: And most of the major third party testers are themselves certified through laboratory certificationgroups. Wouldyou take those 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comtypes of certifications as being a stamp of approval that they do have good correlation and accuracy procedures for testing? MR. TREADO: I think the Department would consider that as a positive indication. FACILITATOR RABA: Go ahead, Michael? MR. MARTIN: Yes. If standards for accuracy doesn't mean tolerances,what does it mean? MR. TREADO: Well, I think the specific issue with tolerances is that you may be able to make the measurement very accurately. But then when you compare it to either a ratingor a standard,you allow some leeway based upon manufacturing tolerances, in addition to measurement on certainty. Whereas accuracy, strictly speaking, is how close are you to getting the right answer. Tolerance is once you have this answer, how close is it? When is it considered to be acceptable? MR. MARTIN: We're talking of testing for certification rather than for enforcement, I take it? MR. TREADO: Yes. You need to test a sufficient number of units. It isnot specified. We have some flexibility in terms of selecting a sufficient number of units to get a mean efficiency which is statistically valid and 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nea1rgross.com68 accurate if you are a manufacturer who is participating in a VICP. Sothereareno strict statistical methods specified to achieve this, but whatever methods are used need tobe statistically valid and accurate. The basic rating is a simple mean efficiency. Ibelieve recordsneed tobe maintained so that if any questions come up, the methods that were used come up with the ratings can be evaluated a little bit. If you are not a participant in the VICP, then there is a specified DOE sampling plan which is similar to what's in place now for residential products. am going describe that next, but there are any more questions on these? MR. MATTINGLY: Steve, one thing. Joe Mattingly from GAMA. 

### I would just note in the discussions as you talk about a manufacturer has determinedthe efficiency,thebasicmodel heater from testingorAEDM, we assume that it would be acceptable for a VICP participant, for example, to rely on a third party to do the testing. MR. TREADO: I believe that is totally acceptable, and we'll probably need to make a little change in that to indicate -- 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neairgross.comMR. MATTINGLY: The manufacturer test or have tested. MR. TREADO: On their behalf. MR. LEVY: I take it -- a question I have is that what you would say is that a manufacturer, whether they are participating in the voluntary program or not, shouldbe able to have third parties, labs, for example, do tests on their behalf. MR. MATTINGLY: Exactly. Yes. MR. LEVY: Are there any other comments on the testing part? I just want to make sure we cover those. Yes?MR. WILSON: Steve Wilson, York International. I want some clarification on the testing that you are going to allow, because in our case, we have had the qualifying agencies,ARI, CSA,

come in and reviewourmethods, test,and also in some instances qualified technicians so that they are certified through these agencies to do testing for those agencies. Then when they come in to do their basic certificationof theproduct,theynot only test

one unit, but accept the rest of the data that the manufacturer supplies based upon the fact that they looked at our equipment and our testing procedures, and our programs, that verify efficiencies. They 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com70 accept that data fromus. That's part of what they do today. So theymay not go inand test fiveunits. They may only test one unit and accept the data for the rest of them from the manufacturer. Would that be acceptable to DOE? 

### MR. LEVY: Well, the way the rule is written, the manufacturer certifies to DOE that its products comply. That certificationmust be based on either testing or calculation methods that Steve referred to. There provision this rule for recognizing the certification by a third party. Now if the manufacturer feelsthat orbelieves that it can make the certificationbased on the activities that it is engaged in, then that is perfectly proper. Whatever methods it uses, there are general criteria in the rule concerning thosemethods,but they arenot highly specific. Inother words, whatever methods the manufacturer uses to satisfy itself that its methods

are sound it can continue to use. But those methods have to satisfy the general criteria that are in the rule. I want to come back briefly before we go to the next subject. I took a look at the proposed 

### NEALR.

### GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLAND AVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comrule with regard to the issue that was raised earlier about exactly what has tobe included in certification reports. The way the rule is set up, the proposed rule,when manufacturers initially certify compliance under the rule,theyhave to certify compliance of all thebasic models that theyare distributing. Subsumed under that is a certificationreport or certification reportsthat identifyeachmodel that themanufacturer is distributing. Thereafter, if the manufacturer distributes any new model, not just basic model, but any newmodel,before distributing that model, it must submit a certification report to the Department that identifies that model and its efficiency. So that is the way the proposed rule is structured. MR. MATTINGLY: Ed,this isJoeMattingly. I think it says before or concurrent with distribution. MR. LEVY: Okay, that's correct. FACILITATORRABA: Let's go left to right. Mark? MR. MENZER: Mark Menzer. So then based upon your understanding, would you still accept the directory, either electronic then, the submittal in lieu of the manufacturer's submittal for 

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### R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comeach of those models? MR. LEVY: Well, all I can say is itf s been done before. We understand that that's what you

are advocating. When we issue the final rule,we will focus on that question and respond to it. MR. MENZER: Thank you. FACILITATOR RABA: Charlie? MR. STEPHENS: Charlie Stephens. It seems to me then that the manufacturer is going to be in a positionwhere nomatterwhether they test and certify under aVICP ornot, they are going tohave to,before distributing a product, submit paperwork or some sort of certification to DOE no matter what month it is or what week it is, and that an annual or quarterly or whatever is technicallynot going todo it unless that meets the manufacturerls requirements for their distribution or sales schedule for any particular new models. Am I right about that? MR. LEVY: There are so many points embedded in what you just said, 

### I am having trouble responding to it. But just looking at the rule, it does, as Joe pointed out, before or concurrent with distribution, the manufacturer has to submit a certification report concerning that product. Now how that might fit inwith the timing 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com73 of the issuance of directories, it's difficult to address. Iwould say also that taking another look at the rule, it does contemplate that the certification report could be submitted on behalf of the manufacturerby a representative. So that would allow

a manufacturer to have let's say a trade association

or other similar -- or other organization submit a certification report on its behalf. MR. STEPHENS: I guess - - let me give you

an example so you will understand all those points that were in my statement. The GAMA directory comes out inApril and October. It is officially published inApril and October,twice ayear. If a manufacturer brings out 17newmodels inJune,and those models are not listed in the April directory, then it seems tome that before they distribute thatmodel, they are going to have to certify to DOE. Am I correct? MR. LEVY: That is what the proposed rule calls for, yes. MR. STEPHENS: Okay. FACILITATOR RABA: Go ahead. MR. MARTIN: Michael Martin. It might be helpful to explainwhat happens in Californiaon this. We get certificationupdates from

### ARI and GAMA every two months. They are staggered so we're 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comnot buried by them all at once. However, manufacturers, individualmanufacturers, if they have

an urgent need, have the ability to submit something for themselves. So it can be handled that way. In our case, the crisis comes when somebodywants to install something in a building and the building official won't let them do it because it's not listed on a certification. But if there are urgent things, the individual manufacturer doesn't have to wait for this every two month update. Accepting data from qualified voluntary industrycertification programsevery coupleofmonths electronically should be certainly something you should look into. It has great possibilities. MR. LEVY: All I would say is that the exchange that I had with Charlie describes what is in the rule. If the manufacturers have a problem with that, I hope they will address it in their written comments. If they feel that that's not satisfactory

or that there is some better way to do it, we would like to hear about that. FACILITATOR RABA: Further comments from the floor? Discussion? MR. TREADO: It occurs to me, along those lines,that Iwould ask themanufacturers,whenyoudo 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comcome up with a new model and determine its rating, what the frequency for submittal to the industry certificationprogram? Is that done before you begin to distribute that product? If so,maybe at that time either DOE could be copied or the VICP could submit a copy of that or somehow notify DOE. MR. MENZER: Mark Menzer, ARI. Let me again state that in our program for our products, no product can be sold or distributed until we have the data at ARI, the data at ARI, and in fact it has been put onto our primenet web-based directory. So while printed directories can be six months out of date, and while submittals on diskette electronically can be as much as two months out of date, the electronic web directory is always in date, and anybody who is trying to distribute a product covered by our programs, and is a member of our program,that doesnot have their equipment listed, is in violation of our program. It very rarely happens. MR. LEVY: Joe,doesGAMA operate the same way with its programs? MR.MATTINGLY: This isJoeMattinglywith GAMA

## . So far we have of course the printed directories. Then we have the monthly updates. We

are not on the Web yet, but some day maybe. 

### NEALR. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com76 I'll tell you, I sit here and listen to what Mark is saying. Why donr t we get -- let's be members of the modern age. There is absolutely no

excuse not to take full advantage of the Internet for this. I hope we do someday, have the same kind of program ARI does, because it just makes complete

sense. MR. LEVY: 

### Iwould raise the question also

as to whether anybody here would see any problem if the Department were to accept something such as posting on the ARI website or such as the monthly electronic versions that GAMA has available,whether anybody would see any problem with the Department accepting that as a valid means of manufacturers providing the certification report. You don't have to answer now, but people

can address it in written comments. MR. MARTIN: 

### I think it's important that the data is actually submitted to DOE. DOEmanagement is looking into this question about electronic databases and has set up an advisory subcommittee to its advisory committee to talk about that. 

### I foresee before very long being able to combine a great number of these things. But it needs to be available at DOE. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comMR. HODGES: This is John Hodges, ARI general counsel. I think that it is important that we be in the modern age. We are in a new millennium. Mike, your last remark was so last-millennium. (Laughter. ) MR. MARTIN: Try that again. MR. HODGES: I just think that we have to work out a methodology. The methodology should be able to be worked out. It seems to me to be pretty obvious that if it's available,you folkshave got it. It's delivered. It's on your desk. DOE should be able to review that in the sameway that it canreview something else that's actually been delivered in another fashion. 

### If it is not going to review it, whether it's on paper or in some other method or electronic, there is no way of course for DOE to do it. I think again, it makes modern sense. It makes imminent sense. We are in a new era here. We7 re in a newmillennium. I think that the idea of -

- it is a virtual delivery. You've got it. If you want a piece of paper that says we hereby deliver it and any future versions are hereby delivered, the law and common sense certainly has to accommodate this. MR. MARTIN: I think we are in the same 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com78 millennium, though Imust admit that Ihave spentmost of my life in a different millennium, as have you. But I don't see any problem with having the entire ARI database as of a particular date as in DOE computer. It is thereby submitted. It would be much easier to do that than it is to get into the file

room. Yes, we are in the same millennium. I am looking forward to the date when we can have California tied in with this somewhat too. MR. HODGES: But I think that it is updated instantaneously. I would think, would hope that the arrangements could be made so that we don't have to redeliver every second. If you don't have to redeliver and update every moment that a delivery is made, what's the point, because the most up-to-date one will always be more up-to-datethan the one that was physically submitted. So I am not quite surewhat the issue is. MR. MENZER: Furthermore, it can be downloaded and stored electronically. You can print out a copy and have a paper copy. You can do anything you want at any moment in time. MR. LEVY: One thing that the proposed ruledoesprovide -- somebodymade a comment thatmade

me think of this. That is, that the manufacturermust 

### NEALR.GROSS COURTREPORTERSAND TRANSCRIBERS 1323RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com79 in its one-time client statement authorize a third to submit data its behalf. I think that would probably be - - Ihaven'theard anybody object to that. So that provides somewhat of a link as the rules are set up now. MR. STEPHENS: Charles Stephens. I would add too two things. One is that the newmillennium is proving to be much more up-to-date in many ways than the way. we used to do things,but it's also proven to be much less reliable. The data that you get -- I have to tell you, a lot of what 

### I find is fairly abysmal in its accuracy. It's so easily corrupted that it's not always the most accurate data there is. Even if it was accurate when it was keyed in, the document that it was keyed is from is accurate,what shows up on a website or a database is not always the

same as what went in. ARI1sdirectory, I think, has been subject to quite a bit of that here recently in fact. Itwillget correctedeventually,provided somebody is actually looking at the data. But the other thing is, we keep talking as though the VICPs

are the only people in the game. The fact is, DOE must have some other procedure for the people who don't participate in those things. So whether you 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comallow theVICPs todo this electronicallyornot still doesn't give DOE the entire picture of what it needs to cover in this rule. FACILITATOR RABA: Sounds like a lot of strong views on both sides, equally valid. The Department will have to take a look at this,both the written comments and the transcript, to weigh these issues back and forth, certainly. MR. LEVY: DoesARI have anything to say -

- unfortunately Mark just got up for a fewmoments -- about its database and its reliability? MR. MARTIN: I could have some comments about the reliability. We have been working withARI. We have been accepting their data electronically and renewing our approval each year. TheARI one has not been renewed as of August due to difficulties that we had. Now they are improving what they have all the time. They are still providing stuff and they are working diligently towards it. We are forever getting into the business of as soon as you get used to some computer program, somebody comes along and tells you there is a better one, and the transition is always a mess. So the ARI program and theGAMA submittals toohave had problems, 

### NEALR. GROSS COURT REPORTERS ANDTWNSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com81 but we're working through these things, but by no

means are they perfect. I have a list of some of the shortcomings of the most recent submittal, which are really irrelevant. MR. MATTINGLY: Joe Mattingly. Mike, let s sharenow. I think theproblem -- youperceived problemswith theway we present data maybe sometimes, but you all have problems withyourprograms. Because your program isn't compatible with ours doesn't make

ours all bad and yours all good. MR. MARTIN: There is nothing that's all good. FACILITATOR RABA: Again, I hear some strong thoughts on both sides, something that has to be taken a really hard look at as the proceeding goes along. Please submitwritten comments on this. We'll have to roll up our sleeves on that one, the Department is. So anything further on that? I think we've heard quite a bit. Did you want to inviteARI, for Mark to say anything else, Counselor? MR. 

### LEVY: He just walked out. Maybe when

we reconvene. FACILITATOR RABA: Okay, fine. Last 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comchance. Charlie? MR. STEPHENS: I just wanted to add that what Joe said is very much true. 

### I think it sort of makes my point that one characteristic of the new millennium is that nothing is compatible with everything else for very long. So this is not a very simple issue to resolve. Even if you have resolved it for a year or two, it's going to come back to haunt you on a pretty regular basis. MR. MENZER: Mark Menzer from ARI. I understand, and I'm sorry 

### I missed it, but there was a question,comment about reliabilityof the database. 

### I assume thatmeans reliability in terms of it being -

- the web being up, the server working and the program being accessible. Accuracy. Well, you know, there's over 50,000 entries in that database. The policing mechanism for

our program is one that seems to work very well. The best way of policing is competitors snitching, if you will, on competitors. When one goes to make a sale and finds its competitor there with a piece of information that theydon't think isaccurate,you can bet that that information gets back to us right away and thenwe can go ahead and verify whether something is accurate or not.

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### R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

### I could not tellyouwhat the accuracy is of what's on there,but if it's not 100 percent, it's very, very close to it. I don't think accuracy of what's on there should have to be a concern. Further, I understand that some of the discussion had to do with problems that we may have had in transferring this data in the past. I will

assureyou at 

### DOE that that problem has been one of an interface type of problem, that data was not received in a format that we had agreed to. So there was some

-- in California, yes, so there were some problems, which have been resolved, I think to California's satisfaction. But it never was the accuracy of our data in question. It was more of were we supplying, displaying in the right format at the right time, and doing it exactly in theway that CEC had requested it, in a way that we had agreed that we would try to provide it to them. Again, 

### I think those problems are worked out, but had nothing to do with the accuracy of our database. MR. NASSERI : As 

### Iam quietly sittinghere and listeningto thisdatabase and presentationof the data, directory via electronically and availability, 

### NEALR. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com84 and as I see that the California Energy Commission and Oregon Department of Energy, Charlie Stephens, that they are having -- the people who use this, ARI, and they are having someproblemwith whether they are the numbers,this is something that in the new millennium,

as everybody mentioned, that everybody is using electronic data availability and how convenient and accurate and fast, whatever, we can get our process done via e-mail and electronic means. Obviously this is something the Government, DOE at this point has to look into. We

are looking forward to see your comments related to this issue. Also the problems that some of the users had so far. My concern is that sometimeswhenyouput

new data in a computer orupdate yourdirectory or the number, whoever the operator is might have some inaccuracyofnumbersandwouldbe basically corrected later on or whoever uses it. I think at this point,

we should basically leap into this further. 1/11be looking forward to your comments on using this. Yes, Joe? MR. MATTINGLY: Joe Mattingly, from GAMA. I think the Advisory Committee, DOE Advisory Committee,does have a subcommittee that has been set up for electronic data submission. 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com85 MR. MENZER: Michael Martin has chaired. MR. MATTINGLY: Congratulations,Mike. I hope DOE attends these subcommittee meetings because there will be some interesting discussion. All this I think will come up during those subcommitteemeetings. MR. NASSERI: We will look into this very closely. MichaelMartin ischairing that subcommittee

as far as theAdvisory Committee. Obviously whatever

comesupwith that subcommitteewould affect ourNOPR, final rule. MR. MARTIN: Michael Martin here again. I did learn this morning that Carl Adams and Mike Raymond have been given the task of workingwith us on this, and Linda Graves will be involved also. So we have some individuals to talk to, some DOE people. MR. NASSERI: Okay. Any other questions concerning this issue? If not,we are ready to go to voluntary industry certification program, VICP. Steve? MR. TREADO: I'm sure everybody is familiar with the existing programs. One thing that the proposed rule provides is that to be accepted, it must be approved by the Department of Energy. There

are some requirementswhich 

### Iwill go over which they 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com86 need to meet. As a result of a manufacturer participating in the VICP, they have less stringent requirements for sampling and for approval of their alternative energy determination method, efficiency determinationmethod. One thing that is criticalof VICP is that they conduct verification testing. That is the basis forbeing a little less stringent in the requirements for certification. I have got a couple of slides here that try to summarize the requirements for a VICP to be approved by the Department. The VICP must submit documentationthat theymeet these requirementsto the Department. They just have published procedures for how the actual program operates and what the requirements are for the manufactures. This must be published so that everybody knows how the program works. One key ingredient is that the participants the program must report for all covered models. That means they couldn't just report those that they felt would meet the standards and somehowomit others. The ratingsmust be published by the VICP. 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com87 TheVICP must conduct independent, random verification testing. The testingmust meet industry standards for accuracy. The program must have an appropriate standard for rating verification. That means not only are they going to test accurately,but they must have a standard for determining whether the rating which they received from the manufacturer is actually correct. MR. NASSERI: Joe? MR. MATTINGLY: One, I hope,pretty minor comment. You talked about independent. I think you have definitions for independent laboratory and independent laboratory personnel in the regulations. In GAMA's existing program for commercialboilers,we don't use ITS for something like that. We actually have an employee or employees who go to the manufacturer's facility and do the testing. The manufacturer has to accept that rating determined at that time. GAMA, we consider ourselves independent. We have no corporate relationship with any manufacturer, but we do collect dues from these very same companies. So we hope when you mean having no financial ties with themanufacturers, the definition for independent, that that applies to us too,because 

### NEALR.GROSS COURTREPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE.,N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comlike I say,we don't have any corporate relationship with any manufacturer. MR. LEVY: What about GAMA's board? I

assume it has a board of directors. How are they selected? Who generally serves on it? MR. MATTINGLY: We have anannual election of board directors. A few members of the board of directors are elected in that way. The other representatives to ourboard of directors are chairmen of our 16 different product divisions. But there would be -- it would be impossible for anyone manufacturer to be able to influence the board directors, matter they

were the chairman. As a matter of fact, not only that,but issues of certification never are presented to the board of directors. It is a totally separate program. MR. LEVY: I take it from your comment that the people on the board tend to be associated with manufacturers or many of them are? MR. MATTINGLY: No. They are all representativemanufacturers? The HI, Hydronics Institute Division now at GAMA, they do have their own Executive Committee. They act as kind of their own trade association under 

### NEAL

### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comGAMA'S umbrella, just like all our product divisions do. You know, a GAMA employee does do the testing, but again, we are not influenced by any one manufacturer. We just have no, like I say, financial ties in the normal sense of the word, meaning corporate relationship. I think that's what you intend there. MR. STEPHENS: Can I ask a quick question about that? Joe, just in simple terms, what then becomes the differencebetween the ITSkind of testing that you normally do and the testing that the GAMA employee does aside from the fact that itf s a GAMA person and not an ITS person? MR. MATTINGLY : Well, under the ITS programs, that's verification testing. Under the HI program, there is verification testing too, but the initial rating is one that's determined by the GAMA employee. So, for example, if a manufacturer has tested a product and then per our rules of the game, the GAMA employee comes and does their testing and finds a certain rating, then the manufacturer has to accept that rating. So in other words, it isn't just verification testing. It's the manufacturer doesn't

even put up the first rating. We determine what the 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com90 rating is. MR. STEPHENS: But it's the same test, using the same instruments, the same levels of accuracy for measuring temperature and flow and all that sort of thing? MR. MATTINGLY: Well,theGAMAemployee is

an experienced person. He would ensure that the test conditionsare correct and the equipmentmeets what we say, industry standards for accuracy. MR. STEPHENS: Thenafterthat, itbecomes

a matter of verification testing within the program? MR. MATTINGLY: Yes. MR. STEPHENS: Okay. Thank you. MR. TREADO: The new slide for the continuation of the requirements for a VICP to become approved. There must be procedures for re-rating or delisting equipment which is found to be improperly rated. There should be some penalties and/or incentives which will promote accurate ratings. The VICPmust provide written recordsto the manufacturers of the results of their verification testing. Also, the results of the verification testing must be provided to the Department of Energy. There is a more complete description of what DOE is looking forhere. Inoted that there were 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com91 some specific comments about that. Let me just characterize this clause asbeing developedaspart of DOE'S concern that if it were the case that manufacturers were consistently overrating, they wanted to see the extent to which that was occurring. Let me just summarize it that way. I know 1/11 probably get some comments on that, so I would like to hear more discussion. MR. MATTINGLY: Joe Mattingly from GAMA. In our NAECA-covered programs, an annual report is produced by ITS. It shows resultsby test number,not model number. Frankly,we make this available to the participants in the program. We don't reallywant to put model numbers in there for competitors, because it compares ratings with actual measured test results. But we would assume that because of your purpose of this request, as you have described it,we would say that you probably don't need to have a report that has eachmodel number listed in the report that the manufacturers claim versus the test, ITS or whatever test measurement. But you just want to have sufficient information able determine there is significant over rating going on? MR. TREADO: I believe that's what the Department is concerned about. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comMR. LEVY: Ourproposed rule doesn't call for model numbers necessarily, but it does call for sort of a test by test or sort of model by model report, but it doesn't necessarily call for identification of the model. It does call for sufficient identification, either for the report to include the minimum standard for that unit being tested, for that model being tested or sufficient description so that the Department could determine what the standard is,because that ispart of what the Department is interested in. I don't know if that kind of data is included in the report that you are referring to,but it would be a necessary part of any report under the proposed rule. MR. MATTINGLY: Itwould be obvious in the report. One of the problems is the test results are theproperty of the manufacturer. That's why we canr t just give it out. Now if later, DOE wanted the results of a particular test,we would have to go to themanufacturer and saywe needyourauthorizationto do this. Frankly, if DOE made such a request, the manufacturer has got a problem. I would think the manufacturer would have to comply, for practical purposes. But wewouldnf t then be providing. 

### I think 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comwe have an understanding, we wouldn't be providing model numbers and test results to comply with this requirement. MR. LEVY: When you say test results -- MR. MATTINGLY: Well,we would be showing you test numbers with the claimed rating and the measured results from the verification testing. It just wouldn't be identifying a model number. MR. LEVY: I think that would probably satisfy the proposed rule so long as it also enabled DOE to easily identifywhat the standard is,what the required level is for that model. MR. MATTINGLY: It would. MR.NASSERI: Ihave a question or concern that when we go to let s say enforcement

### , and there is

a report by a competitor industry which are reporting

on a model of certain equipment, non-compliant

### , how

are we able to go ahead and look at that model and find out what is -- if VICP has that. So I am trying to say,what is our means of getting there to that model? MR.MATTINGLY: I think the first stepyou ought to take would be to come to the relevant certification program and request information. The certification program would have to respond in some 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comfashion. It may be to say, look, we need to get the authorization from the manufacturer to release this to you. So be it. But that would be a wise first step. MR. NASSERI : The reason I say that is because my experience in the past, they always refer to amodel of certainboilers or furnacesorwhatever, which are not -- I'm not saying there was such a thing, but just an example. It's not making the minimum or meeting the minimum. MR. MATTINGLY: You would come to the certification program and say we've got 

### a report on this model. We want test data for this model. Have you had verification tests on this model? When? We want the results. Then we have to deal with it. MR. LEVY: Actually, the way the proposed rule is setup, if therewere an enforcement situation

or an investigation involving enforcement, the Department would look to the manufacturer to get the information. It is the manufacturer that is obligated to provide it. In fact, the proposed rule requires that where a certificationprogram does verification testing, it has to provide that information, the result,the test results to themanufacturer. Then it would be up to DOE to obtain those results from the manufacturer. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comI think the proposed rule makes pretty clear that the manufacturer would be obligated to provide them. MR. NASSERI: This was related to Joe's, but in the NAECA products, the way we have -- we had

a program which we are basically having the certification and compliance of the equipment that's reported to DOE in a directory that we have. If somebody claimed a certainmodel and that on our list of a model is not making the minimum standard, then very easily and simplywe cango and find out first of all, if they have a record for that model. If we do, what is their report. This way, I'm trying to make sure that whenwe get to this type of activities,we can somehow go to the VICPs or we have to go directly to manufacturers. We can always go direct to manufacturers. We have authority to do that if we get to that enforcement phase. But the other option is, is there any sufficient data or any record from VICP such as ARI and GAMA or HI program that we can go to and determine if such a model is meeting the standard

or not meeting the standard. MR. MATTINGLY: Well, of course the first thingyouwould have,youwould have the directory, so 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comyouwould knowwhat the claimed rating was. But then if you came to us and said that there has been a report that the claimed rating is inaccurate,we want test data from you. Then as I said before, we can't just release it to you. It is the manufacturer's property. We would get authorization from the manufacturer to do that. So I think we are on the same page. In a way it's either go to themanufacturer directly oryou go through us or both. But we can't give it to you unless the manufacturer agrees. FACILITATORRABA: MichaelMartinhasbeen waiting very patiently. MR. MTIN: Yes. On that particular point, Cyrus, I would suggest that you want to go to the manufacturer, because one of your requirements is that the data is available to him. So he has got it. He doesn't have to worry about authorization. Fromapracticalpoint of view, Ihave had informalphone calls from folks at Intertech. Theydo

some of their own policing. That has taken care of a lot of our concerns. The question Iwaswaiting to bring up was what I understand is is about verification testing results to DOE. That if Intertech, let's say, tests 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com97

a model and the odds of it coming out exactly as rated

are pretty slim. If it's better, that's no problem, but if it's worse, it has to be -- the way currently these programs are, it has to be outside of a tolerance before there's a required re-rating. So Ipresume that what you are looking at is to find out statistically whether what's actually

on the market is significantly less than the formal rating. When you have got that data, what are you going to do with it? If, for instance,you find out that a program consistently comes up with efficiency levels that are three percent less than what it claimed, which is a purely fictitious number for a purely fictitious non-existent organization that 

### I haven't named. MR. 

### LEVY: Well, I mean we did address that point in the 

### NOPR. I guess the basic answer is it depends. But it might be a situation that could result in enforcement. It might be a situation that would cause us to reevaluate the operation of the voluntary program. There is a third possibility that

we stated. I don't remember what it is, but I just remembered that there are three. But basically, it's information that the Department would then evaluate to decide what action 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comwould be called for. MR. MARTIN: No dramatic action. This is just information collecting. MR. LEVY: Yes, as the proposed rule described. MR. MARTIN: That was just a question. It wasn't a complaint foranybodywho feels threatened by it. MR. WILSON: Steve Wilson, York International. I am kind of jumping a fewpages ahead here I guess. But therewas a comment that within one percent of the average for all basic models. It seemed like to me that we have a five percent window now, and now we're going to say year one, here's a hypothetical, I'm three percent low,and that's okay. You're two, I'm three percent low. It's starting to get a little fuzzy whether that's okay or not. You're three, I'm three percent low and now it's not okay. The model has to be redefined as to what its efficiency level is. That isone of themanufacturingconcerns, is that technicallywe're still within theguidelines, but nowyou are saying that the efficiency that we are reporting is no longer any good after two or three years. If it's five percent, it's five percent. If NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comwe fall within the fivepercent range on a statistical basis, then we're good. That's the way it has always been as far as the agencies, and GAMA and ARI has considered that to comply. They haven't asked us to go re-rate equipment. If we state 80 percent efficiency, we come in at 78, that's a compliance. Now if you are going to try to make that band narrower, to one percent, or to bring it in more in line, then that's going to

cause the manufacturers a problem down the road as tubingwears. There's tolerancesonhow the equipment goes together. Falling within a five percent band range is acceptable for manufacturers, but a one percent, even a three percent would not be. MR. TREADO: I just wanted to clarify. I think you are confusing two things. The five percent and one percent average is just for the validating AEDM. The other five percent thatyou arementioning, and you won't find anywhere in the NOPR. That is the tolerance that VICP allows in their determination of whether a rating is accurate or not. It only ties back to VICP when you talk about having an appropriate standard for rating verification. Again, we're not specific on a number there. But it ties back in to verification testing 

### NEALR.GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com100 results at DOE. It was just being discussed by Ed as to what DOE might do if it finds that. Basically the issue is if there is a tolerance there for measurement, and manufacturing -- an uncertainty in manufacturing variability, then basically sometimes you will come up high and sometimesyou will come up low,because it is sort of a random thing. But if it turned out that everything was always coming up low, that might be a concern to the Department. The issue of the fivepercent and the one percent,which applies only toAEDM, is that you have to validate an AEDM using measured data according to the DOE test procedure. If you are in a VICP, you only need to validate that using one measured point. I£you are not in VICP, you need to use three. Then each point needs to be -- each individual model that you test needs tobe within five percent of your -- or let me put it this way. The calculated value needs to be within five percent of your measurement for each individual point. But if you test three, for example, then your average variability or average difference between the calculation and the measurement has tobe onepercent. That is because we don't want to have a model that's 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comconsistentlyoverorunder predicting,as the casemay be. MR. LEVY: But those numbers affect whether you can use the alternative method. That is the need, to show that your method of calculating efficiency is an accurate method. So you compare the results that you get from calculations to actual test results. That is what Steve is describing. MR. MATTINGLY: Joe Mattingly from GAMA. Steve, that paragraph there really was difficult for

us to understand. I think it needs to be -- a little more work needs to be done there regardless whether you can explain it today. I'm sure you can,but itf s not clear. Because aVICP participant onlyhas touse

one basic model to validate the AEDM. Yet that last sentence of that paragraph reads "in addition, the predicted efficiency calculated for the tested basic model must on average be within one percent." Then you say heck, I only tested one. If five percent is okay -- well, it says one percent. MR. LEVY: The intentwas that if you only tested one, then you would have to meet the one percent criteria. The participant in a VICP could test more than one. They are required to test one, 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.neairgross.combut they could test two. They could test three. It's just that one is a minimum number. So the percentages -- well, whatever number you test, that is the limitation you have to meet. Then if you test several, well, no one could be

more than five percent. Maybe that needs to be clarified. Well, maybe that is a problem. But that is the intent. MR. MATTINGLY: Suppose you testedtwo and

one was just within five percent. What does the second one have tobe? MR. LEVY: Well, it has tobe within five percent also. Then the average has tobe within one percent. To take an example. If you tested two,

one was five percent below, well, then in order to achieve the one percent tolerance, I guess the other would have tobe say no less than four percent above

or three and a half, you know, toget tothat average of one percent. Am I right? MR. TREADO: The idea is that if you are using a model and you are not getting the right answer, and we are defining the right answer here as being a measured point, basically the model has some 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com103 assumptions that are built in that may not be sufficient to actually capture what is occurring. There are other processes that are going on. You end up being consistentlyhigh or low, then you are going to end up having to make an adjustment, basically calibrateyourmodel to the measurements. That is the intent. FACILITATOR RABA: Michael Martin? MR. MARTIN: Yes. I had great problems putting my notes together because of all these tolerances. There are several different thingswe are talking about. The first one, which was actually on the previous slide, was talking about the tolerance that the trade associations have. It is a five percent with ARI. I believe that wording is also in ARI standard 210 as part of the test method that any unit has to be within that. For residential furnaces with GAMA, it is five percent. With the water heaters, they reduced it to three percent. MR. MATTINGLY: Three-and-a-half. MR. MARTIN: Three-and-a-half? MR. MATTINGLY: I think it is. MR. MARTIN: Excuse me. I need to check that. I was under the impression it was three. But 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com104 it was reduced recently. For the boiler test method, the 221 13, we have been arguing with the 221 Subcommittee about a two percent tolerance. 

### I understand for the new heat pump pool heater program it's zero. So I think you need to look at these things individually rather than lumping them all together. Now as far as -- maybe I should stop for Ed to respond to that before I bring the other point 

### UP. MR. POLLOCK: This is Ed Pollock. Steve made the reference, and I think we're starting to get confused again. The testing that GAMA orARI or those

are doing in the program isa verification test to say that the product continues to be within compliance. It's sort of like if there was a challenge and DOE would be doing it,we have a fivepercent. NAECA, for the residential products, stipulates that you must specify that you meet or exceed the standard by some level. That is what -- we're trying to simplify it here because people seem to look at that. When we say we want a 95 percent confidence level that you meet or exceed the standard, they take that,well, we 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comgot fivepercent tolerance. We've seen that happen a number of times. What it says is is that if your test data says you have an average value, that value is a one-sided tolerance. You must meet or exceed the standard level. That is not the same as the verificationtesting wherewe have amore lenient five percent deviation. FACILITATOR RABA: Good point. MR. MATTINGLY: First of all, I think we

are way off the point here. But I would agree that for basic certification testing, you cannot test better than the mean. There is no tolerance in certification testing. Now for verification testing, there are tolerances in the various programs. But that is not what this is all about. To me, that's not even a subject for today's conversation. We are talking about these percentages forvalidating AEDM. It is a different subject altogether. MR.MARTIN: That was my secondpoint that I was about to make. MR. MATTINGLY: Iwill just reiterate. I just think that this was very hard to understand as written. I think in the preamble to the finalrule, 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com106 maybe it wouldn't hurt to give a couple of examples in there of how this would be applied. It might be helpful to the public. MR. TREADO: Well we can certainly clear up the language, but whether the concept causes a problem, I guess is a separate issue. I think Ed explained, and I have it up here. I had a separate slide on that. Basically you compare the measured results using the DOE test procedure. Again, the measured results have to come from the DOE test procedure. Each basic model tested, the calculated result must agree to the measurement within five percent. Fox the average 

### of all the ones that you test, and if it's one, it's just that one,within one percent, i.e.

### , must not consistently over or under predict. Again, one percent. Let me just mention one other thing about the AEDM, which is that you have to maintain written documentation, but if you participate in VICP, you don't need to get approval from DOE for the AEDM. If you don't participate in the VICP, then the proposed rule states that you must get approval for it. The approval basically consisted of determiningwhetheryouhave used validprinciples and 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comthe results appear to be reasonable. FACILITATOR RABA: Okay. Michael first, then Ed. MR. MARTIN: Yes. I feel a little uncertain as to what I'm seeing here. But what I understand is you can either test or you have to test something, and then you can come up with a computer calculation. I haven't figured out why you should be allowed to use a computer calculation that comes up with higher values than the testing does. It seems like this is a shortcut and should be at least as accurate as the testing. But I do kind of read it that way, that you test this thing out, and then you are allowed to use a computer program on other things,and you canbe fivepercent -

- claiming fivepercent more efficient than it really tests out to be. Do I get that right? My comments oppose that. MR. LEVY: Why don't you put up the prior slide, Steve, and go through that again. MR. TREADO: I think what was just said could conceivablyoccur. In other words,he is saying that if you test it, but then you don't use the test

as the basis foryour rating,you use the test just to 

### NEALR. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com108 validate the model and the model is off by as much as five percent on that one point, thenyou coulduse the model to rate. On the other hand, your overall model has to be more accurate than that. Soyoumight be off it at some point. But I think that is a valid point as to whether or not the five percent is excessive. Obviously the purpose here of the model is to reduce the amount of testing. MR. MARTIN: But the testing is the preferred method as far as DOE is concerned. It shouldbe able to reduce the amount of testing without degrading the accuracy of the information. MR. LEVY: The proposed rule does not state a preference for one method or the other. MR. MARTIN: NO, but it gives you an alternative. Okay, I do understand it right. So my comments opposing it are correctly understood. FACILITATOR RABA: Charlie Stephens? MR. STEPHENS: Charlie Stephens. I think the example that 

### I was able to read made this whole thing make a lot more sense. The notion that a model might more accuratelypredict one level of efficiency

or the group of technologies that are used to achieve

one level of performance versus a lower or higher 

### NEALR.GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comlevel of performance. The one percent requirement for the average of all basic models is, at least in part, meant to ensure that the model accurately reflects what you might get in test results at both ends of a range such as that, where the model wouldn't consistently under-predict the performance of a high efficiency model, and consistently over-predict the performanceof a lower-efficiency model. So thatwhen you look across the entire range of models, the accuracy of the model is actually held within one percent. Once I read that,it made sense tome that that's a useful, a very useful check to have on a model. FACILITATOR RABA: Further comments? Let's go over here first to Mark, then back to Michael. MR.MENZER: Mark Menzer. 

### Iwould like to make this point because all of this speaks to how manufacturers could play with the numbers to try to over-ratetheir equipment. Of course thenultimately we do a validation test that has to be within five percent. Let me tell you, our experience has been 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comthat those manufacturerswho try to eat into that five percent tolerance, who try to rate their systems at 99, 98, 97 percent of true ratings, ultimately run intoproblems. They ultimately fail tests. In these voluntary independent certification programs, the failure -- the penalty for failure is great, with additional tests and all kinds of expenses that are involved there. Sowhile there are all kinds of ways that

one might be able to try to fiddle with the numbers, ultimately in these kinds of verification tests, they end up paying the piper. I will volunteer in telling you that in

our major programs, the ratio of tested -- of validation tests to what is claimed is about 100 percent. On average, they are 100 percent and sometimes greater, sometimes 101, 102 percent, sometimes they even go down to 99 percent. But those who fiddle with the numbers and will try to take advantage of the tolerance are caught. The numbers, the statistics catch up to them. FACILITATOR RABA: First Michael, then Charlie. MR. MARTIN: Yes. Actually, you do have in ARI a program for coil manufacturers. It's a 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comcomputer one, 

### Ibelieve. How does that compare? Did that work out all right? Did they have a tolerance or do you test them ever? MR. MENZER: We do test them. We've got 22 programs, and 

### I can't tell you how any particular

one goes off hand. MR. TREADO: That particular program was somewhat the model for what we did with this AEDM procedures that they have there. The tolerances are similar. MR. MARTIN: One other question. When you talk about one percent and five percent, is that a plus or minus? MR. TREADO: Yes. MR. STEPHENS: Charlie Stephens again. It

seems to me that for a 

### VICP that has a good program, then thisprovision is essentially irrelevant one way

or the other. But once again, I have to point out that not every manufacturer is a participant in the VICP program. They have to follow these same procedures. They can use the same models or similar models,or their ownmodels forthatmatter,but there still has to be something in this regulation that applies to people who aren't in a program that does such wonderful things as Mark suggests. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comMR.TREAD0: The additional requirement on a non-VICPparticipant is that they have to validate using the minimum of three. But you are right, they still can use that without being subject to verification testing. MR. MARTIN: Just to follow up what Charlie said. One of the things we talk about, ARI

covers by far the bulk of air conditioners. But when you come to looking at the number of manufacturers, there are way, way, way, way, way more manufacturers who are not within these programs than there are within them.It is hard to tell just how many of them there are. It's easy to count numbers in an ARI directory, but based on the data we have, MIcover about half the manufacturers on tease products. Hydronics Institute, about a third. There is no program at all for furnaces and water heaters or hot water storage tanks that we haven't talked about today. So there are a lot more manufacturers outside. Hopefully this proposal you have will persuade them that it's to their interest to join these trade associationprograms. MR. LEVY: Just a couple of points that I 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com113 would like to make. If they give rise to further comments, so much the better. First, the proposed regulations would cover all manufacturers. They address both the situation of manufacturers that participate in these programs and those that do not. I think that Steve has some slides that we haven't gotten to yet that address the non-participant specifically. But second, 

### I would want to reemphasize that what we have been talking about here are methods to determine whether a calculation method is valid. Whether or not a calculation method for determining efficiency can be used. That is what these criteria are about. It does not relate directly to any standards that the voluntary programs might have for determining whether or not a test validates an efficiency rating. There is, I suppose, an indirect relationship in the sense that regardless of the criteria that we have for any method for calculating compliance, manufacturers that participate in such programs are going to have to pass those verification tests. So that probably provides a further check. These criteria though apply also to other manufacturers. So that s why we need to have them in 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLAND AVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comany event. They are a littlemore stringent for nonparticipants,precisely because they are not subject to verification testing. MR. TREADO: I have three more slides. I think I probably should do them. FACILITATOR RABA: Okay. Let me just pause for a second here. Interesting point of order that Pollock brings up, in that we are expecting callers this afternoon on this subject and some other

ones that are going to be comingup,and would like to get some sense of the group if we should continue on

now orbreak for lunch after Steve1 spresentation, and then when the people call in, continue on,hear their statementsand comments too. Even though they are not here, they will be here orally and electronically. We would like to know the sense,if we can finish this part up in a few minutes, 10-15minutes,

or if we should take a break and come back. Ed, you want to say something? MR. POLLOCK: Yes. My comment was that if

we can finishup, I donr t want to hold people to after lunch,but if this is going to extend, then I think as

a courtesy, it would be good to take a break now and permit those who want to call in that were just concerned about this sampling and testing issues and 

### NEAL

### R.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLAND AVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com115 not about the test procedures this morning, that they could participate. MR. MARTIN: I think we ought to be here at the time these guys are going to call in rather than at the lunch break. If they call in and find we have all gone to lunch, I don't think they will get a very good -- MR. LEVY: What time are you anticipating the calls in? MR. POLLOCK: Well, the schedule we had set up said we would be back from lunch at 1:30. MR. MARTIN: So let's go have some lunch. FACILITATOR RABA: Why don't we do that then, because in deference to Steve, if you don't mind, finish your presentation up then, give you a break too. Then when we come back, probably at 1:30 to start,and take any calls that come in and continue this. Is everybodyhappy with that? Thank you. We are recessed until 1:30. (Whereupon, the foregoing matterwent off the record at 12 :38 p.m. for lunch, and went back on the record at 1:38 p.m.)



### NEALR.GROSS COURT REPORTERSANDTFWNSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comFACILITATORRABA: Gentlemen, if youwill take your seats,we'll restart the program. (Pause. ) I'd like to welcome George Kusterer from Bock Water Heaters who made it in today,a brave soul, but still we may still get some call-ins today and we'll be aware of them and we'll try to make some accommodations to folks who couldn't make it, but would still like to participate. MR. MARTIN: We donr thave any yet though. FACILITATOR RABA: Sir? MR. MARTIN: We don't have any yet? FACILITATOR RABA: Not so far, the one that we expected to call it, the gentleman is here

now. MR. KUSTERER: I justwanted to seeMike's bright shiny face. (Laughter. ) MR. MARTIN: Well, thank you. FACILITATOR RABA: Before we get started, Steve is going to finish up his presentation. I'd like to ask for any general comments on the voluntary industry certification programs, VICP comments in 

### NEAL

### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com117 general? Anybody from the floor? MR. MARTIN: I have a number of specific ones,but maybe if we let him finish his presentation and you'll let me come back to that, I would -- these issues are all interrelated. FACILITATOR RABA: Fine. Back to you, Steve. MR. TREADO: Well, these are some of the differences for the non-VICP participants which I guess right now, the furnaces. They must use the DOE sampling plan and the confidencelimitprocedurewhich is a little more specific. It's very similar to what's in there now for the residential appliances. Testing must be conducted at an independent laboratory or under the supervision of independentpersonnel. So it couldbe tested in-house by outside personnel. And there's a definition in there of what would constitute an independent personnel. And the reason for this is that there's no verificationtesting fornon-VICPparticipants,

### so the Department feels that it's justified to be a little

more stringent up front since there's no after the fact verification. The sampling plan is the typical thing that you've seen before for energy efficiency. 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 wvw.nealrgross.comWhichever is the less favorable of either the mean of the sample or the lower 95 percent confidence limit dividedby .95. Conversely,forenergy usage it's the upper confidence limit divided by 1.05. Sample size would have to be a minimum of two to do this. I don't believe there's any other limitations on the number of units in the sample. And of course, they must be representative of the basic model,must be selected randomly,must be tested using the daily test procedure. Comments or questions on that? MR. NASSERI: I presume that nobody here is wondering if this applies to -- any comment on a non-VICPparticipants. I see that Frank Stanonik just joined us. FACILITATOR RABA: Welcome. MR. TREADO: The last item is on enforcement. The regulations for enforcement for the commercialproducts, in general,arepretty similar to what's in place in Section 430 with some significant specific differences,primarily related to the number of samples and a simplification in the method for determining the performance. Everything up front as far as obtaining samples for testing and all that is very similar to 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com119 what's in 430. What's different here is that the initial sample size is just two units and this was as

a result of the comments that we received at the other workshops. And these two units would be measured and their efficiencies would just be averaged. If the manufacturer was satisfied that that number was representative, which probably means that that number meets the minimum standard, then at that point the enforcement would be completed. However, if for some reason the mean was below the minimum standard they could request to test an additional two units, 

### a maximum of four. We will take the mean performance of the four and if that met the standard, actually I believe it has to meet 95 percent of the standard. Now this is a simplification of what's in the 430 enforcement sectionwhere there's a double sided confidence limit approach that uses -- has upper and lower control limits which are basically plus or minus 5 percent the energy performance standard. It's a little more complicated than that because it also relates back to the standard deviation of the measure. But this is a simplificationof that. This is not linked at all to any tolerance in verification testing. This is a 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comseparate item here. Enforcement again only applies in this case to determining whether a particular product meetings the minimum standard. It's not a case of trying to determinewhether it is performingup to its rating. Now as far as exceptions, if a sample of two is impractical, either because the unit is very large or available only in small quantities, then exceptions can be requested to the Department of Energy. So only a single unit would be tested. MR. MATTINGLY: Joe Mattingly from GAMA. Steve, somebody just said there I think it would be helpful if that phrase were put into the regulation too and that iswhere the salesvolume is low orwhere it's availableonly insmall quantities, understanding that the manufacturer has to justify this exception, but that would be a ground in addition to a large product or unusual testing requirement. MR. TREADO: Of course, that exposes the manufacturer to some degree if we test only one and we're off the normal, then that's one of the reasons. That's the justification forhaving -- tomeet only 95 percent of the standard because we're always dealing with some uncertainty and in doing this determination 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comthe Department is trying to make sure they don't unfairly find product to be out of requirements. Any other comments on enforcement? FACILITATOR RABA: Go ahead, Joe. MR. MATTINGLY: Well, since you did enforcement all in one fell swoop, we had a couple of comments in this area. Looking at Section 431.503, you already mentioned the compliance statement as a one time requirement. Thank you very much. In paragraph c(1) under that section, "discontinuedmodelsw you mentioned that a model is discontinued when itsproduction has ceased and is no longer being distributed. You could have a situation where for complicated commercial products where the manufacturer onlyproduces it inresponse toa special order, for example. And so he may still be advertising it for sale in a catalog something,but fact,he's not producing or distributing it. So you might want to just something to that paragraph to say that a model is discontinued when itsproduction has ceased and it is no longerbeing distributed and themanufacturer is longer advertising the model for sale. FACILITATOR RABA: Other comments? 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com122 MR. NASSERI: Joe, are you finished? MR. MATTINGLY: Again, if you're talking about all enforcement now we have just a couple of other comments to make in that area. Youhad arequirement forthemanufacturer to keep on hand all units in a batch before -- until the testing is complete. We just wondered if that is really necessary, especially if we're dealing with products that aren't sold in a lot of quantity anyway. Those units perhaps could be sold. MR. TREADO: That's something the Department will have to consider. 

### I saw that inyour comments That's a hold over from the residential. I think one of the reasons for that, from the residential, was that it was possible that additional samples would be needed for doing the two double sample approach. But the maximum here is four sowe're not tyingup a huge number. And that's themanufacturer's option so they're only providing two. Well, you're selecting those two from a larger group. I don't know what the Department thinks about that. We haven't had a chance to address that. MR. NASSERI: Any other comments? MR. MATTINGLY: Yeah, one other. You had 

### NEALR.GROSS COURTREPORTERSAND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com-- in enforcement you want to -- if you get a product that's obviously defective, you're allowing the manufacturer to say okay, that one shouldn't be counted. That's a defectiveproduct. Let's go on to

one that looks like it's supposed to look like, according to the manufacturer's design. And you've got inhere that a test unit is defective if its found to be inoperative because it fails to operate according to the manufacturer's design and installation instructions. And we just thinkyouought to expand that

a little bit to cover the situation where you had a commercial water heater whose -- it's a lemonbecause its insulation has got big voids in the insulation beyond some percentage of the tank service area and I don't know what the exact language is, but if you could -- in other words, if it operates, it will operate and leave it operate according to the manufacturer's instructions,except that it will lose

a lot of energy because it's -- 

### MR. LEVY: So it's considered defective. MR. MATTINGLY: In other words, it's clearly something terrible has happened in the manufacturing process when you've got big insulation voids. 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com124 FACILITATOR RABA: Was there a reference to a paragraph to that? MR. MATTINGLY: Itt s paragraph (a) (3) under 431.506. FACILITATOR RABA: 431.506(a)(3). Thank you. MR. LEVY: Doyouhave any percentage that would be a rule of thumb on that? MR. MATTINGLY: We will. MR. STANONIK: We're still trying to figurewhat would be the rightnumber fora commercial product. MR. TREADO: Howwouldyoudetermine that? Do you have to take it apart? MR. STANONIK: Yeah. MR. TREADO: So you'd have to test it first and if it came up low,you'd have to dismantle it and find out that there actually was a void. MR. STANONIK: With the -- MR. LEVY: Name and organization? MR. STANONIK: Frank Stanonik with GAMA. The reason -- the way this came to mind when we were looking at this was with electric water heaters,with electric commercial water heaters that's all you can do is insulate them. There really isn't much elseyou 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comcan do and sowith the kind of efficiency requirement that exists for commercial electric water heaters, if there is a significant void, beyond what you might consider representative of normal production, okay, it's going to fail badly because we're talking about

a standby loss for a vessel that's holding 50, 80 or 100 gallons of water that1 s probably no more than 100 watt light bulb, not a lot of loss, okay? So if there's a big hole in the insulation,you're going to see it in the test result and the next thing you do is peel off the jacket and you can see what it looks like. We do that in our residential program. FACILITATORRABA: Clarification,thatwas

MR. MATTINGLY: (aI(3). MR. LEVY: It does say (a)(3) in here. That's probably a typo. FACILITATOR RABA: Go ahead, Mark. MR. MENZER: Yeah, I would just tell you in our program we had defective -- we speak to defectiveproducts aswell. The onus is always on the manufacturer to -- first of all, these are failures that are not at 95 or 94 or 93 percent of rated, of ratings, but usually they're quite low and therer s 

### NEAL

### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comobviously something wrong with the unit. The onus is always on the manufacturer to show us what's wrong with the unit and also to prove to us that this was a one time mistake, this was not

a systematicmistake, so in that example there are not tens or hundreds of water heaters out there with defective insulation,but it's just a one time -- it's quite aburden to themanufacturer to show that to us, but that's what we call a defective unit. FACILITATOR RABA: Thank you. MR.LEVY: Question,Joe,didyouhave any reaction to that formulation or gloss on delineating what's a defective unit? MR. MATTINGLY: You mean that's not systematic? MR. LEVY: Yeah,the kind of approachthat Mark just suggested. That's something that maybe we could incorporate into the regulation. I'm asking if you have a reaction on that or if you don't want to just react on the spot you could address it in your comments. It would be helpful to knowwhat you think. MR. STANONIK: Well,Frank Stanonikagain. In the programwe run for residential, in fact,it may not be as quite spelled out as ARI's,but do apply the

same criteria. If we have what we call a lemon and we 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comgo pick out a new sample and we get another lemon, okay, then the questions start to ask, well, wait a minute, what is representative of the production and what's the outlier? And so we do have a policy in place that the manufacturer is going tobe required to make -- satisfy the program that what was characterized as inoperative or a lemon, if you will, is truly that and not as Mark said, there's some kind of systematic problem here that has been uncovered. FACILITATOR RABA: Michael? MR. MARTIN: I have notes on the opposite side of that particular issue and we noted that the Department authorizes substitution of replacement issue unit for testing if the unit is found to be defective. If the unit isdefective -- if sucha unit is inoperative -- I think it's inoperative rather than

-- Iguess that is theword, inoperable. I'm not sure which it should be. Or it's found to be in noncompliance due to failure of the unit to operate according to the manufacturer's design and operating instructionsand we feel that second phrase shouldbe deleted. If theunit is inoperable,it's reasonable to allow a replacement unit to be substituted. If on 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comthe other hand the unit is operable, but does not operate according to the manufacturer's design or operating instructions it should be tested because

consumers will not use inoperable appliances, obviously, but they may well use appliances that operate incorrectly and in order to help insure that malfunctioning units are not purchases by consumers, they should be subject to testing. I did hear from -- since writing that, from Mark that they have some way of compromise on that situation. But it does seem to me and I have a very good chance of buying a water heater that has a big void in the insulation and if that's what I'm buying that's what ought to be tested. FACILITATOR RABA: Can you keep that in your written comments until we get notes from the record for the proper phraseology. MR. MARTIN: Yes. As I talk to Mark, I may want to bend it a little. FACILITATOR RABA: Sure. Charlie? MR. STEPHENS: Charlie Stephens. Yeah,we may want tohave some further discussionson this. We don't tear the water heaters apart,mind you, but we do take theirpictures with infrared equipment and we

can pretty much attest, we've got hundreds if not 

### NEAL

### R.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com129 thousands of pictures of these things, electric and gas water heaters,mostly electric. There is a certain level of flaw in the insulationgenerally. None of them are perfect. Many are close to perfect. Quite a number, actually,have

some thin spots,youmight say, in the insulationand

onceyou get on that slope of trying to decide what is

a major defect and what is kind of the run of the mill every once in a while we get some funky gas bubble aggregation or something and it doesn't do quite perfectly -- it's going to be very difficult for DOE to define this,especially if you get off to define it for every single product type which could lead you into every different kind of manufacturing process that could lead to different kinds of defects. One of the -- I hesitate to call it a defect,but inrefrigerant charged equipment it's rare when the refrigerant charge put in at the factory is right. And in fact, in California, 80percent of them

are wrong in the field,but it's hard for the factory to give a right charge because the climate it goes to isdifferent in every case,the line set that connects the indoor and the outdoor unit is different. It's almost impossible to do the right charge and yet, they're tested in a certain way with 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.coma perfect charge and that's a whole different type of product. It might require a whole different definition of what a defect is and what's defective and what isn't. And I think that it's a pretty complicated road you embark on when you start looking at that issue and I don't know thatyou have that much time, but we would be willing to discuss it. MR. MATTINGLY: Well, you could. This is Joe Mattingly from GAMA. You could maybe have a line there that puts the burden of proof on the manufacturer and says unless the manufacturer establishes that the test unit is not representative production. FACILITATOR RABA: What we're set to say,

excuse me for interrupting here,but that if the unit is tested at the manufacturer's plant under ideal conditions, that's fine. Once it goes out the door there's no control over it. So maybe it has got to be some other thought to that too Mike had his hand up. MR. MARTIN: No, I'd likeyou to continue

on this subject. I have another one related to the overhead -- another overhead. FACILITATOR RABA: Further comments? MR. STEPHENS: Just one addition. It 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com131 sounded tome that GAMA1skind of response to thiswas in effect an enlargement of the sample size. 

### I mean you can argue over whether the first one should be dropped out of the sample or not, but it sounds like if you're going after anotherbatch to test,well,you know,you've just doubled the sample size,essentially and youmay find that that first one is an outlier and maybe there is a statisticalway todefinewhether the

oneyou've thoughtwas defective or think isdefective is an outlier because it's beyond the variance of the sample size that you subsequently pick, but maybe there is a statistical method of getting at this and I might recommend that it at least be examined on a statistical basis to see if there isn't some way of mathematically getting this a little closer just because what you1 re looking for is a standard. You're looking to see if somethingmeets a number,a standard

or a test value, performance value. FACILITATOR RABA: Noted for the record. Thank you. MR. TREADO: There is an ASTM procedure for identifying outliers. 

### I wouldn't have great confidence based on a test of two. FACILITATOR 

### RABA: Right. MR. STEPHENS: Yeah, and the only reason 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com132 I said that is because Frank sort of intimated that the sample size was going to get bigger here and it wouldn't be two, it might be four, six, whatever it took to determine that it is an outlier,but again, if you have an outlier,maybe that's what you do. Maybe that's what you go through. Is you get enough of a sample that you can statistically use that method and conclude that it is an outlier. FACILITATOR RABA: Anything else? MR. MARTIN: On the sampling question, this is an item where Iwould appreciateyour advice. It's one where we have argued amongst the staff as to what we should do and we generally support the OE sampling provision for certification by non-VICP participants. The section reads, "Inaddition,youmust test a sufficient number of units of the basic model and the efficiency rating of the basic model must be determined such that any rated value of energy efficiency is not greater than the lower of the mean of the sampleor the lower 95percent confidence limit of the true mean divided by 0.95 and any represented value of energy usage is no less than the greater of the mean of the sample or the upper 95 percent confidence limit of the true mean divided by 1.05." 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comSo this wording makes it clear that the represented value of energy efficiency may be either the mean of the sample or some other lower value. Thus, if the mean of a sample is 10.0 SEER, the represented value may never be greater than 10 SEER. And under some circumstances must be lower than 10 SEER. And this is a widely misunderstood provision and Ihave argued withpeople as towhat this saysand somebody brought this up. 

### I forget who. I think it

was Ed. Iwonderwhether this additional safeguard here is really worth the trouble of having or whether it would be better to drop it out all together. The clearest way of getting rid of this misconception

. would be not to include it at all. But I wonder whether you, the staff or anybody else, feels that this 95 percent confidence level of the true mean divided by 0.95 actually adds anything of significance. MR. POLLOCK: Ed Pollock. 

### I know that it's hard for people to understand, but we've been talking about units that deviate slightly or not really completely defective. Charlie Stephenstalked about the insulation in the water heater. What this does is specifies a tolerance on that type of 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com134 deviation. It's not a very hard statistical test to apply to evaluate whether your sample meets that and if youhave avery close tolerance,consistency in the product, then you only have to test a few. If it's very much of a deviation that does raise the number of tests, then it's a pretty well understood representation. MR.MARTIN: Iguess I'm at oddswithyou. As far as the people I talked to, it is not at all well understand and of course, it's not in the people's interest to understand it because it says something they don't want to know. But the other aspect of this also,we talk about an outlier, so if you have this wide outlier and we're talking about a 10 SEER unit and you have a 9 and an 11,but the fact is that things don't get better by chance. It's not a random scattering here. They only get worse. And themean of the samplewould seem to give all the protection that you need. That's the argument in that favor. The other aspect related to that one is that the enforcement provisions should include a requirement that in an enforcement action the manufacturer must provide written proof that the provision quoted about related to certification has 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.combeen met. In practice, this would entail providing test reports for each unit of the sample upon which certification was based. Without such a requirement, this whole provision becomes meaningless. In the NAECA regulations, for instance, DOE'S authority in enforcement is spelled out,but it doesn't -- it says the manufacturer has to do this,but it doesn't have any way of checking whether they actually do and it

seems like for this to be meaningful,particularly if the certification and the enforcement tolerances are different, DOE needs to have this authority to do it. MR. LEVY: Authority to do what? MR. MARTIN: That in an enforcement provision, that the manufacturer should provide written proof that the provisions for certification sampling have been met. MR. LEVY: The regulation here and the proposed rulepretty closely parallels what's in part 430 and I think it contemplates that the Department upon beginning to examine whether or not a product is in compliance would obtain exactly that kind of data fromthemanufacturer. Certainly,the rule authorizes the Department to obtain it and it requires the manufacturer to provide it. 

### I guess I don't 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comunderstand what the issue is. MR. MARTIN: Well, I need to read this again and see if I can find that it does authorize the Department to obtain it. If I find it, 1/11let you know. If I don't find it, 1/11let you know too. MR. LEVY: Okay. MR. STEPHENS: 

### A question along those lines -- Charlie Stephens. Ed, when you were talking about the variance and the sample size climbing, do you have anywhere in here what kind of relationship between variance and sample size you contemplate? MR. POLLOCK: Ed Pollock. There was a paper that was done by DOE before I came to work here at DOE that we can provide copies of that shows a table, does show the deviation and the numbers of tests to be done. MR. STEPHENS: So is that what you would require in an enforcement arrangement? MR. POLLOCK: Well, if you remember -- this is not enforcement we're talking about. We're talking about certification, but the certification puts the burden on the manufacturer. They know what kind of variations they're getting, at least they should and it's up to them to certify that they meet NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neairgross.comor exceed the standard by that 95percent orwhatever the confidence level is. When we get into certification that's a different issue, but one of the things that Michael just raised was whether we had authority to ask for that test data that was used as the basis. We believe we do. We are and have in the past looked at some of those numberswhen there's been values that have been questionable. And we are looking very closely at the fact that whether they indeed did per the specifications of the regulation. If they have not, then they are in violation of the regulation. And that puts them in a very different position than just coming up with something where there was a certification test later on that showed they were 5 percent up. If they had the test data and they didnr t apply it correctly in reporting the value, that's an act which has got other repercussions to it. MR. STEPHENS: Okay, Iwas looking at the enforcement page and just considering that the enforcement is more lax than that. MR. POLLOCK: Yes. MR. STEPHENS: And in fact, I'm wondering

-- in fact,that's another question. How does DOEuse 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. 

# 1 (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comthe enforcement provisions to assure itself that the product as manufactured that each unit manufactured meets the standard if in the enforcementprovision the mean is okay as long as it's 95 percent of the standard? It seems to me that reasonable assurance that each product manufactured meets the standard

means that the mean should be at the standard. Am I wrong about that? MR. TREADO: I can answer that a little bit. The problem with strictly that is that if the

mean performance of the product was exactly the standard,you'd have a 50 percent chance of finding it, making the wrong decision. It has a 50 percent chance of being on either side of the standard. So the Department is trying to bend over backwards a littlebit to make sure that a product is not falsely found to be out of compliance which does,

as you've identified, increased the risk to the

consumer that they will receive a unit which is not performing up to the standard. And it's a simplified way of applying what's in Section 430 now which is -- uses also a 95 percent competence when it applies it against a 95 percent of mean. So it's -- 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com139 MR. POLLOCK: Areyou saying those are the same? MR. TREADO: It's not exactly the same, but in the end it comes out to be about the same. It's another approach at minimizing the risk of falsely finding a product to be out of compliance. FACILITATOR RABA: Michael? MR. MARTIN: I find it hard to figure out how -- if you test two 10 SEER air conditioners and they come out with 9.5 each and the average is 9.5, you canbe given reasonable assurance that they comply with the 10 and that will be the thrust of one of our comments here. Because we recognize that although the statute says all units shall comply, it doesn't make any sense to suggest that all units are going to be tested to see if they comply. And yourpreamble says that you have to have reasonable assurance and we rather likethat terminology that everything complies. As long as you test a sample and they all fail, and then claim that the unit is in compliance, we find rather hard to swallow. FACILITATOR RABA: Go ahead. MR. POLLOCK: If this was the case and we

were just talking about certification, 

### I agree with 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com140 you. we feel that in any compliance or enforcement action the first avenue of inspection is the test data

or the methodology that was used for certifying the product initially. If you find in an enforcement action that two tested at the .95or 9.5value, Iwould hope that that -- I would expect that that would show up in examining the test data that the original certificationwas made on and if we found that those

were in 9.5value, that's a criminal act because they have certified something thatwas false. Theydid not have the statistical basis for certifying that they met or exceeded. MR. MARTIN: I think from our testing experience we have come across a number of occasions. We tested units which are not subject to this, recently, and I was convinced that the design as originally manufactured complied, but that due to a quality control problem, by the time we actually tested on an enforcement action we had lost compliance. So I think it's quite possible that the initial certificationwould complywith the law. It's not a criminal act. And yet what's being sold would fail to comply. I think that does happen in a number 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comof occasions. You make 10,000 or something and then something slips. FACILITATOR RABA: Charlie Stephens. MR. STEPHENS: Charlie Stephens, or you change suppliers of a component and it slips. It happens quite a lot. Not only that,but I'm presuming if this thing is in an enforcement action it didn't' get there by its sterling performance in the marketplace. It got there because somebody is questioning the actual performance of the unit versus its rated value. And 

### I would think that if the enforcement found it to be at 97percent -- SEER 9.7 in this case. I don't want to pick on air conditioning. It's just that 10 is a nice round number. Then you know this would not be a surprising thing if it was in an enforcement action. And the fact that you would then say well, it's 9.7,

so it's within 95percent, just like they said it was when they brought to enforcementbecause itwasn't 10. I guess I'm having trouble figuring out why you would decide then that you have reasonable assurance that all the other ones might be 10. MR. TREADO: I'll respond to that by saying you're right. We do not have reasonable 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comassurance that true mean performance is 10. What we do have, we have to turn that around. We're not sure that it's not 10 because it's not low enough that we can't be sure that we just got a couple that were on the down side of the curve. And that is the way it boils down. We don't want -- the way it's set up right now, just like the current enforcement action, you err on the side of not finding a false negative. MR. STEPHENS: Charlie Stephensagain. It

seems to me you do that in certification. I mean -- MR. TREADO: If we do, it's more strict because the certificationyou have to use the mean or if you're not aVICP participant thenyou have to also compare that to the confidence limit approach. MR. STEPHENS: Whichyou sort of suggested is essentially the same as 95 percent of the mean? MR. TREADO: No, that's more stringent -- that again, the 95 percent of the mean is the enforcement. MR. STEPHENS: Yes. MR. TREADO: For certification, you use the 95 percent confidence limit which is the less favorable number. MR. STEPHENS: Divided by .95or 1-05? MR. TREADO: Divided by the divisor which 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comtends to reduce that effect somewhat. It mitigates the negative penalty. But what happens here is you

can have a case where, if you use your 10 SEER, if that's the standard and one measures 10 and the other

measures 12,you might not meet the standard because your standard deviation is so high it's going to pull you down, your adjustment for the very go of the two unitmeasurements isgoing to actually pullyoubelow. MR. LEVY: Let me just add. What he's saying is that if youhave that kind of variation,you will not be able to meet the criterion of having 95 percent confidence that the totalpopulation,that the

mean of the total population is 10 or higher. MR. STEPHENS: Yes,except I think at that point you're going to trigger Frank's concern about having an outlier. MR. LEVY: That may be. We're just describing what is in the rules, responding to your hypothesis that the certification standard was the

same as the enforcement standard. 

### MR. STEPHENS: NO -- MR. TREADO: Outliers don't really come into play so much for certification. That's for enforcement where you have a limited sample size. You have an unlimited sample size for 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comcertification. 

### MR. STEPHENS: But 

### I think what we're talking about here is the sample size that's already bigger than two. How did it get to enforcement? There's a sample that delivered results somewhere that

are less than what its certified value is. So now you have one sample that suggests to someone that its actual performance is lower than its rated performance and now you add twomore in the enforcement procedure and in both cases if you end up at 9.7,somebody says hey, they're not 10,we've got a samplehere that we think shows that it deserves to go into an enforcement action. You do some testing of two samples and

sure enough it comes in at 9.7. 

### I don't think we're talking about a sample of 2 in enforcement. We're talking about some other sample when in addition to enforcement adds up to less than 10. That's how we got there. 

### MR. LEVY: The complaint that triggers that enforcement actionmay ormay not be based on the test of aproduct andwewouldn't characterize that as a sample that would be considered during the enforcement process. Whatever information we get would trigger DOE action. Now one possibility as 

### Ed NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.neaIrgross.comsuggested was that we get information that suggests possible noncompliance, the first thing we'll do is look at the testing that the manufacturer has done. The testing that it's done is a basis for its certificationand any other testing and it's possible that DOE might stop there that information indicates that the product is in compliance. We would only move on to further testing and further enforcement process if there's some grounds for doing that. FACILITATOR RABA: 

### I saw Frank wanted to make a comment before. 

### MR. STANONIK: Frank Stanonik from GAMA. One of the aspects that's been missing from this discussion is recognition that your measurement tool your test isnot absolutelyprecise either. So if, in fact, there is a number below the expected rating or expectedvalue ordeclaredvalue, whatever,one cannot just really say that's entirely because of some deficiencies in the product. The fact is that the test procedures have tolerances and if you took a real look at it, the result of that test, the manufacturer could have the option to say well, let's test it at another lab that has the same equipment and let's see what result we 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLAND AVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com146 get there. I mean in our certificationprograms, at least the ones in GINA, to this point we have actually artificially set up a test lab to be, if youwill, the benchmark. But it's neither worse or better, necessarily, than any other test facility thathas the necessary equipment to do any of the prescribed test procedures. It's just in thesekind of programs, it's

a little easier if you say okay, this -- we're going to make this lab the one that is the arbitrator, if you will, and so you've got to recognize that the tolerance that's being discussed her is, in fact, acknowledging that some of the cause of the resultmay be just how the test procedure came out that day at that test procedure and had nothing with the product, that particular product. I mean with all deference to NIST, 

### Imean NIST, nonetheless, is still an agency that the government said this is going to be the -- used to be National Bureau of Standards, but that's probably because they had all themoney and resources available tohave thosemeasurementsas close toperfect as they could be, but even they have tolerances. FACILITATOR RAE3A: Before we go on, are there any call ins on this discussion at this time? 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comNot so far. First Charlie, and then Michael. MR. STEPHENS: I just want to let him know,but again, Iwouldn't attach a probability, any greater probability that the test is high or delivers

a high result than a low result. Then I'd begin to worry about the testprocedure. But on the otherhand if the test procedure delivers a high answer in terms of efficiency,Iwouldn't think the manufacturer would be quick to retest, if it's 1point high. MR. STANONIK: My point is if it delivers

a result that's low, you can't just say oh, then it must be because this product has a problem. MR. STEPHENS: True, I wouldn't. MR. STANONIK: Okay. FACILITATOR RABA: I think what I heard too is that there is a very established set of procedures that the Departmentwouldgo through before they got to that conclusion. Michael? MR.MARTIN: Yes,where did that 5percent value come from? I mean why wasn't it 10 percent or 2 percent or 1 percent? MR. TREADO: The 5percent value basically is a simplification of what's in the enforcement for the residential in Section 430 where upper and lower 

### NEAL R.GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comcontrol limits are defined which are plus or minus 5 percent of the energy performance standard and the

mean of the sample is compared to those values and again, it's not a case where you're bound to be in compliance if you are at least at 95percent. You're not bound to be out of compliance and again, it's because of the uncertainty. And letme state again -- MR. MARTIN: I understand -- MR. TREADO: The enforcement just use the

mean and not the 95percent and the actual mean of the performance energy efficiency of the product was exactly equal to the standard. By definition with a normal distribution half are going to be better and half are going tobe worse, soyouwould be willing to take the risk that you would be wrong 50 percent of the time in saying that it didn't meet the standard and that's why there's a little bit of tolerance in there,but I also understand yourpoint very clearly. MR. MARTIN: That 5percent, for instance,

on enforcement is -- Frank does better on his water heaters than 5 percent. He does better on his tolerance thatwe've been arguing about a 2percent in the standard and Joe and 

### Iwere questioning whether it was 3 or 3.5 percent, but here we've got this -- for the people who choose not to go in Frank Stanonik's 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comprogram, theyhave a wider tolerance than those kinds who choose to go in it. MR. LEVY: That's not correct. For nonVICP participants, he's saying you have a greater tolerance and we'll address your assumption -- MR. TREADO: Only in the sense of enforcement. MR. LEVY: No, we're talking about when you see -- they're confusing enforcement in certain

cases. MR. MARTIN: No, I'm talking just enforcement. MR. LEVY: Oh, okay, then there's no difference. MR. MARTIN: There's no difference in your regs,but when Frank does it,he has a standard level that his 5 percent is 3 or 3.5 -- MR. LEVY: But understand in the DOE -- in the proposed rule,there is no difference with regard to the enforcement criterion for firms that do or do not participate in these voluntary certification programs. MR. MARTIN: But don't you think that anybodywho chooses not to be part of Frank's program should meet the same, at least the same tolerance 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com150 requirements that Frank puts on his people? MR. LEVY: You mean for enforcement purposes? MR. MARTIN: For enforcement,yes. Let's talk enforcement for the moment. Imean that would be logical. MR. LEVY: Well, 

### I don't know if it is or not because you still have the problem that -- the risk that theDepartment is trying to avoid of finding people out of compliance who are not out of compliance.MR. MARTIN: But you don't seem to be worrying about finding people as being in compliance who are out of compliance. Maybe it's because there's more of them guys than there are of us guys. MR. LEVY: Maybe because we don't find people in compliance per se. We deal with situations where there's an allegation that somebody is not complying. That's the judgment that we have to make. MR. STANONIK: Mike, we'll do our best to make sure the marketability of Frank's seal of approval is sogreat that everybodywill want tobe in my program. (Laughter.) 

### NEAL

### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comMR. MARTIN: That is one of my goals, personally, and 

### I think the Commission's goal too, to make -- to do everything we can tomake people want to join your programs. FACILITATOR -A: Can we hear from

someone different in the back? Brad Hollomon? MR. HOLLOMON: Does it help any to think in terms of how it is that the police have radar guns

on the highway. When they're chargedwith enforcement they're not necessarily in a 60 mile an hour zone setting the radar gun at 61. They set it forperhaps 10miles over, they set it at 70. The reason they're not doing thiswith any kind of implication that going 65 miles an hours is legal. It's only done as a practical and policy matter they set it at 70 because that way when they go into court they have a solid case and nobody is going to question their instrument and that they don't have a de minimis argument of some sort that could be applied as well. It seems tome that that's really --where they have said that is not really a technical question. MR. LEVY: To come back to the question though actually the analog to Frank's program is not 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com152 

### the enforcement criteria, it's the criteria for testing as abasis for certification. That's what the comparison should be and there the criteria for nonparticipants in his program is stricter than the criteria that his program has. FACILITATOR RABA: Further comments? Anybody else who hasn't spoken? George? MR. KUSTERER: George Kusterer with Bock Water Heaters. I just have a problem with this enforcement issue especiallywith thenoncomplianceor the nonvoluntary program. Fine, somebody brings a product to market. They don't comply. They are not in thevoluntary program. They're in thenonvoluntary program. We're dealing with enforcement. What enforcement?Imean what long arm of the law like this gentleman said about radar, you know, you set radar and unfortunately if you get caught, the enforcement is there. You're going to get a ticket. You're going to get locked up, whatever the case may be. What is DOE going to do about noncompliance? I mean you're going to send out the DOE 

### police and tell them they can't sell their product? What are we doing? 

### NEALR.GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 200053701 www.nea1rgross.com153 MR. LEVY: Well, that's been set forth in Part 430 for a long time and -- MR. KUSTERER: I understand that. MR. LEVY: 

### And it's basically adopted or proposed here for commercial products. MR. KUSTERER: Right. MR. LEVY: There are various things that

can happen if the Department concludes that a product is in noncompliance. One thing is that the product, it might have to be taken off the market MR. KUSTERER: Okay. MR. LEVY: There are possible penalties that can be assessed. It just depends on the circumstances. MR. STANONIK: It would be DOE. MR. KUSTERER: Yeah, it would be DOE. I understand. MR. MATTINGLY: For the commercial enforcement. MR. KUSTERER: Right. MR.MATTINGLY: Forenforcementofminimum standards,yes. MR. LEVY: Correct. Does that answeryour quest ion? MR. KUSTERER: Not entirely, but I don't 

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### R.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comwant to belabor the situation. It1 s for another time. 

### I just don't want to prolong it. FACILITATOR RABA: One more and then we should move on, perhaps. Go ahead. MR. TREADO: Those are all the slides I have. MR. MARTIN: I have a fewpieces that are left over. When somebody talks on the subject I kind of picked them up here. There is a question about this DOE police situation. Section 431.506(a) reads in part, "upon receivinginformationinwriting concerning the energy performance of a particular commercial HVAC and WH product sold by a manufacturer or private labeler which indicates the product may not be in compliance with the applicable energy performance standards,the Secretarymay conduct a review of test records" which I think refers to one of the things you were saying. "TheSecretarymay then conductenforcement testingof that equipment." The implication is that DOEmay not check records or conduct testing unless it receives a written complaint and that's not in the public interest. We urge the wording be changed to indicate that if the Secretary receives a written complaint,he 

### NEALR. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comor she shall take action stated and that the Secretary may take the action stated under any circumstances. DOE here has a responsibility to insure that consumers are protected frommisleading claims of manufacturers,particularly those who are outside the formalVICP programs. It's our experience that there are entire groups of manufacturers that got caughtup in a spiral of exaggerated claims in order not to lose their share of the business. Some of these go back a very long way. Where there iswidespreadexaggeration, no companywill issuea formal complaint sinceno company wishes to open itself for examination. For example,

we did not get any formal complaints before we started testing electric commercial water heaters several years ago and we found 100 percent noncompliance. So

we are suggesting that you should not limit yourself. Two things here. First that instead of saying you may do something or if you get a complaint you should say that youwill do something. And the other one is that you should indicate that you may do something even without a formal complaint. That we'll have in our written requirements. 

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### R.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com156 There's a similar one that says 431.506(a)(1)that states "theSecretary may not take any enforcement action until after the manufacturer has been offered the opportunity to meet the Department to verify compliance with the applicable efficiency standard." And this restriction to the Secretary's action shouldbe deleted since it hinders his ability to protect the interest of the consumer. These are things that have carried over from 430. I keep hearing you mentioning 430 and it's not in today's agenda, but there's a lot of things that we find unacceptable in 430. MR. LEVY: These provisions are carried

over -- MR.MARTIN: You didn'tmake themup. You picked them from -- MR. LEVY: Minor modifications from part

Doesanybodyelse have any commentson the points that Michael just made? MR.KUSTERER: No. Basically,that's what I was alluding to and I thank my colleague for -- MR. LEVY: You agree with what he just said? MR. KUSTERER: Yeah. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com157 MR.HODGES: This is JohnHodges from ARI

## . Ido take exception to Mr.Martin's statement about we being able to act,as Iunderstand,without giving any opportunity for the manufacturer to be heard. It

seems to me that raises substantial due process issue of DOE being able to act against a manufacturer without an opportunity for being heard. MR. LEVY: Other comments? MR. MATTINGLY: Joe Mattingly from GAMA. Yeah, I mean you can imagine a manufacturer who just wants to do mischief against another manufacturer and harass them and so the concept of credible information ought to be implicit in there. And second 

### of all, 

### if an agency counsel, frankly, I don't think you're going to really want to limityour discretion. You certainly are not going to put that in your own regulations. MR. LEVY: I don't follow your point. MR.MATTINGLY: In otherwords, "youshall act" instead of "wemay act". You're going towant to retain that discretion, I'm sure. FACILITATOR RABA: Further comments? Charlie? MR. STEPHENS: Charlie Stephens. I don't know that putting "shall" in there is necessarily 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com158 limiting discretion. The fact is there's -- you Ire not really specifying all the things that you could do. Some of it could be very minor. You could contact a manufacturer and that could be it, but at least you did that much. As for whether or not DOE can act without the manufacturers being allowed to speak up, it's possible that DOE'S ability to direct testing at NIST

or something along those lines before confronting the manufacturer might prevent a situation that Joe was referring to where somebodywas trying todomischief, DOE goes out,does some testing and says hey, this is in compliance. There's no problem here. And that's the end of it. So 

### I don't -- just like Joe says I don't think DOE necessarily has to close off its options, but neither do I think they should be restricted from doing the smart thing and the circumstance to verify where there's something that they need to do in particular or not. That in itself is a response and I'm not sure written directive has to generate that response. DOE may find this on their own and want to act on their own to determine if there really is a problem worth pursuing. And 

### I don't think that should be 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.neairgross.com159 closed off simply because you didn't get a written complaint from somewhere outside the Agency. FACILITATOR RABA: While there' s a bit of quiet, I want to say thank you to Steve for his presentation. MR. MATTINGLY: I don't know if this is thank you time. Thank you, Steve. We only had one other comment worth a darn. (Laughter. ) MR.MARTIN: What about the ones that I've brought up? (Laughter. ) MR. MATTINGLY: Other than to say that we think DOE did a very good job on this regulation. I

mean that sincerely. We were very pleased. On Section 431.505, the certification report. I think this is probably just in the nature of a misprint. You've got furnaces having to report minimum thermal efficiency where I think you really just mean thermal efficiency. And like for water heaters you're saying report maximum standby laws where I thinkyou really justmean reportyour standby laws. In other words, you're taking the language of the standard and sort of putting it in there in the certification report inappropriately. That's all. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com160 MR.NASSERI : Your re going to give usyour comments in writing. FACILITATOR RABA: First,Michael again, then over to Mark. MR. MARTIN: Okay. We particularly support the concept in 431.483(b) that DOE should approve VICPs that meet the 13 criteria only for a limitedperiod of time. And there shouldbe periodic renewal of approval. This should be done annually because the control of manufacturing companies is changing at a fast rate. As companies change, so do the controlling bodies of VICPs. The draft language states the approval be in effect for 5 years unless material changes occurred in the program. If no material changes occur in the program it would be very little burden on aVICP to obtain renewal of approval annually. The alternative to annual renewal is to have DOE revoke approval whenever it believes a VICP is no longer in conformance and this would be -- my original notes said this would be an administrative nightmare,but my reviewer changed it to say it would be administrativelymore difficult,but it's certainly

-- it would be setting battle lines. Failure to reapprove because of lack of 

### NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com161 performance would be much easier and it would lead to

a cooperative spirit between the VICP trying to correct its shortcomings and DOE. So we recommend that instead of 5 years, 12 months which is what we have had with agreements with GAMA and ARI related to provision of data in California. We strongly support 12 of the 13 conditions for approval of VICPs set out in Section 431.4(a)(4)

### . DOE'S delegating significant portion of its enforcement authority to the private sector organization and must be sure that these quality programs, these are quality programs that form well and my notes said that we should insure that the conditions don't get watered down and I'm most encouraged to find that nobody has made any such suggestions that they should be watered down. However,conditionNo. 5we feel shouldbe changed to require that an independent lab conducts the tests. VICPs that base their ratings on testing in the manufacturers' plants should not be allowed to be approved by VICPs by DOE, even if the tests are under supervision of an independent lab personnel. Through our experience over 20 years of enforcement testing, confirmed in discussion with knowledgeable people in the industry,we put much more 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com162 credibility on the claims of ARI, GAMA and AHAM who emphasize that all testing is done at the program's independent lab than those where testing is done at manufacturers' plants. Our experience has shown that the products of labs that use this procedure are noticeably less reliable than the products of those who test in an independent lab. And then we suggest a fourteenth condition. ApproveVICPs,must have a provision that allowsmanufacturers to challenge the claimsof their competitors. ARI staff and members have repeatedly through the last 25 years emphasized that their products within their certification program are generally reliably rated and insisted it is largely because themanufacturers check oneach other products and use the ARI and the GAMA challenge processes and we heard this again from Mark today. We've been convincedbyARI andGAMA staff and members that this is a valuable provision for those certificationprograms that have it and that the performance is noticeably improved by it as you will note fromwritten commentswe've previously submitted about some other programs. That's all I have on that subject. FACILITATOR RABA: Any points need to be NEAL

### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comrepeated that no one heard? Mark,you're up next,please. Thank you, Michael. MR. MENZER: Thank you. We do have a short statement. If youwould indulgeme, I'd like to go through it. A few of the points we've covered already. Some of them may be new, but 

### I will try to be brief. I think you know that ARI is a great association representing 90 percent of the market in domesticairconditioningand commercial refrigeration equipment and we represent over 200 companies employing about 150,000men and women in theU.S. Our credentials in this area,we've provided management of certificationprograms for various products since 1958 and we're a world leader in this area. We think that the current system of voluntary industry certification has worked well for many decades and therefore we believe that existing industry certification programs for the air conditioningequipment coveredunderEPACThaveproven that manufacturers' self-certification of ratings followed up by verification tests and with industry enforcementprotects the customers and is adequate to assure appropriate ratings. 

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### We are very much in support of much of this proposed rule,but we wish to seek clarification and comment on a few critical points. We also support most of the criteria for voluntary independent certification programs that are spelled out in this proposed rule. Most of those criteria are consistentwith the policies that govern our own program. Nevertheless, we're concerned with one proposed requirement and reading fromthe rule this is the one where "a participating manufacturer be expelled from a VICP 

### if it does not comply with such requirements" and that is requirementsof taking care of equipment that falls below the minimums. First of a, it's our experience that this rarely happens that equipment falls below the minimums, but it's also our experience that it's easier to discipline a manufacturer that's in the program rather than remove him from the program. And further,we don't think that it's a good precedent to have DOE 

### determine who should or should not be in an industry program. Again, we certainly think that we should be taking action,but expelling them froma program is not anything we think is appropriate. NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com165 FACILITATOR RABA: Mark, excuse me, help

me out,where is that citation? 4410. Thank you. MR. MENZER: ARI is concerned with the proposed requirements that the VICP provide summary data that would show the results of verification testing on each basic model. We believe that this requirement is rather intrusive and we believe that the existing data provided to DOE is part of the requirements under NAECA should suffice. And again,

as was pointed out earlier, we would have to go back to a manufacturer to get their permission to release data, specific test data to DOE. We should emphasize that competitive factorswork to insurecompliance. Manufacturers that

are found to be noncompliant with EPCA are provided a letter from ARI noting that noncompliance. In our statement, we had written that in turn the ARI reports that noncompliance to DOE. That's not quite correct. What we do is we provide the hold over the directory showing what systems have been re-rated or have been obsoleted. Withregardtore-rating,thedisincentive for being out of compliance with claimed ratings are significant, including costs for additional testing, fines and penalties imposed by our ARI program. So 

### NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neairgross.comit's a very costly thing to be out of compliancewith claimed ratings and as a result there are very low numbers of re-ratedmodels in our directors and very few enforcement actions that we've had to take over the years. Furthermore, purchasers use our directories to select products that meet theirneeds. Manufacturers are well aware of this and theywant to do whatever possible to avoid the stigma of any re-ratingrequirementsor anybad publicity that might result from not meeting the regulated efficiency standards. Additionally,we question requirement for manufacturers that participate in a voluntary, independent certification program, but also submit compliance statements to DOE. Since the VICP will need to be eventually approved by DOE and the manufacturers' ratings will be verified through the VICP, such an effort appears duplicative. ARI directories alone should suffice for certification reports. ARI also wishes to emphasize that nonparticipants should assure compliance in the accuracy of efficiency representations through independent laboratories, by independent testing 

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### R.GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

### personnel. We do believe there's a sufficient number of laboratoriesand independent testingpersonnel out there capable of providing the service to non-VICP manufacturers

## . We don't think this is going to place any undue burden onmanufacturers and we suggest that this requirementnot be modified or omitted by DOE in the proposed rule. We believe that DOE recognition of aVICP shouldnot require re-approvalunless there isamajor change in the program. You've listed some criteria there and we think that unless we have a major change that affects some of those criteria we should not ask for re-approval. Along those lines,eachyearwe do through an audit by the Standard Council of Canada. It1 s a very rigorous review and we have past that year after year and assuming we continue to pass it, we can continue to claim ourselves as a certification organization that is capable of performing energy performance verification and we want to suggest that in an effort of standardization that DOE accept the findings of the SCC in lieu of a separate approval process that you might go through. In answer to a claim that this is not a burdensome thing I will tell you it takes us a few 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comweeks to fill out thepaperwork andprepare for one of these annual auditsand it's severalman-weeksof work to go through. Thank you for listening. Those are our comments

### . FACILITATOR RABA: Thank you, very comprehensive. Many issues here, many topics. Comments? MR. LEVY: Follow-upquestions. First of all with regard to disciplineof manufacturers and the issue of expulsion from the program, what kind of actions are you referring to when you talk about the program taking disciplinary action? MR. MENZER: Manufacturers who fail a test,who have ratings that don't stand up, of course have to re-rate the equipment. If they're below a federal minimum, they have to obsolete their equipment, take it off the market. And we look for proof that and proof that if it's a re-ratingthat they change all of their literature. They also are subject to penalty tests. That is we go along -- I guess our philosophy is we believe you until you give us reasons not to believe you. And when you have failed the test and we suddenly question your ability to rate products, in 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comthe following year we would require many more verification tests fromyou. These are expensive and they pile up and cost them a lot of money. Interestingly,we also send letters to the CEO of the company,now matter how large a company it is, to let them know that their company is failing tests and usually the people who rate the equipment hear about them. We found this to be a very effective way of keeping ratings in line. MR. LEVY: What would happen if a manufacturer failed a test and refused to re-rate a product? MR. MENZER: Never happened. MR. LEVY: Well, how would you deal with it? (Pause. ) MR. MENZER: As I'm reminded, that would be a violation of ourprogram and it has not happened. However, we could expel them from the program and maybe would do so. But we don't think it should be a government edict, 

### I guess I mean to say to have to expel them from the program. MR. LEVY: You had alsomentioned that DOE should not -- your earlier comment, should not NEAL

### R.GROSS COURTREPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comdiscipline manufacturers. I don't think there's anything in the proposed rule that contemplates that. What the proposed rule sets out are features that would have to exist in the program. It would be up to the operator of the program to take action. But the other thing I would say and I'd like to hear your response to this is that I think the intent of this provision isnot that a manufacturerbe expelled from the program simply because it is found to have a failing product, but rather to deal with situations where a manufacturer under the program refuses to take basic actions that are required. For example, refuses to re-rateproducts where that's called for or refuses to obsolete products where that is called for. Or, to give you another example, what action would take if a manufacturer for some reason declined to provide reports on its products? They're suppose to report the efficiency of every product. And what would you do if a manufacturer just declined to do that, said no, we're only going to give you the efficiency ratings on A, B and C products, but D, E and F, we don't want to giveyou. What would you do about that? MR. MENZER: We would have to remove them from the program. NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLAND AVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comMR. LEVY: Okay. MR. HODGES: Again, that is a matter of internal governance and decision by the IR program. We're very nervous about the government telling a private organization who can and who cannot participateas a member of that certification program. We think we have very effective disciplinary tools which have been going on for many, many, many years without thegovernment settingthe criteriauponwhich they would have to be expelled from that program. MR.LEVY: Are those criteriaspecified in the rule? MR. CAULSON: 69604 in the approval criteria. (Pause. ) It says "the program must also provided that a participating" -- I'm sorry, the third column. Very bottom, right hand corner of that page. FACILITATOR RABA: 604. MR. CAULSON: The last sentence of the third column. The program must also provide that a participating manufacturer will be expelled from the VICP if it does not comply with such requirements. Actually,we weren't totally sure when we startedwhat such requirements, what youmeant by that. We weren't 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com172

sure what that modified. MR. LEVY: It modifies the preceding sentence. FACILITATOR RABA: Can we hear from Charlie Stephens first and then Michael? MR. STEPHENS: Charlie Stephens. There is a different level of DOE interest here, it seems tome and another way to solve this. It seems to me that what DOE is interested is only those non-compliance factors with a manufacturer where it leads to an inappropriate rating for some piece of equipment or line of equipment. And it seems to me that DOE could simply decline to accept the ratings of that equipment, even if they came from ARI1sdirectory or whatever other channel they come toDOE from. It seems tome DOE has the discretion to just force thatmanufacturertodeal directlywith the Department for those products where they're not in compliance. And they might be in compliance with five other product lines that they certify through ARI and might not be a problem. And again, I would tend to side with the ARI folks about why kick a manufacturer out of a program if he's got some -- he's holding on to something in one product line out of five, you have 

### NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comthe option it seems to me of declining to accept the results from that directory or that program if that manufacturer is found to not be complying with the program's rules that would affect its rating. FACILITATOR RABA: Michael? MR. MARTIN: Yeah, it's getting late in the day and my mind is not as clear as it was, but I had read this as indicating that this was one of the 13 conditions that ARI or GAMA would have to comply with and that part of the complying is to indicate as much as did that if people do certain things they'll get chucked out. 

### I didn't see this as being that in any way DOE would say chuck out York International. But it was just part of your getting approved as an agency here and 

### I think you already, through your answers done what they've asked you to do. MR. MENZER: Well,we read this as a - - we read this as a mandate and while as I've told you it could, it is likely to be the final outcome of such a hypothetical situation. We would want to use our discretion to do what made sense in that situation. MR. LEVY: To just read it in context I think that the way Michael described it is exactly what's intended here. Not only that,but 

### I think it's 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comwhat it says, because this is a description of requirements that the program must meet and there's nothing in here about the Department giving a directive to any of these programs to take any action against the participant,but this is a requirement as to the kinds of provisions that has to be in, sort of theprogram'sground rules andwhat it says is that if

a model fails testing conducted by the program, the manufacturerhas to remove it fromproduction, if it's not in compliance, or correctly re-rate it. And that the program must provide that if

amanufacturer doesn't comply with those requirements it would be expelled. And that seems very fundamental that if a manufacturer is not applying those 

### basic rating requirements,how could it participate in the program. Now one suggestion was made that well maybe there ought to be other sanctions if a manufacturer is complying with the programwith regard tomost of itsproducts,not with others and if that's what somebody wants to advocate, well, we'd like to hear it. We're in a comment process and this isn't written in stone. It's hard to see how someone could continue to participate in a program when they're flouting one of the basic rules or tenets of the 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comprogram. MR. STEPHENS: Yes, just to clarify. It

seems to me that the goal here is to protect the integrity and I think it's the goal of DOE and the VICP to protect the integrity of the relationship between the VICP and DOE and the data that the VICP is submitting and I'm not sure that kicking a manufacturer out of an organization necessarily is needed to protect the integrity of a particular line of data. I have seen a couple of manufacturers on occasion hold on for dear life to a claim on a particularproduct line,even in the faceof everybody else's skepticism and I'm not sure that again kicking them out of the organization is necessary to protect what we're all interested in here in these provisions. FACILITATOR RABA: Steve,go ahead. MR. WILSON: Steve Wilson, York International. Noncompliance occurs to the point of

amanufacturernot wishing to remove it or re-rateit. Removing it from the listing will essentially get it thrown out of the building codes when the inspector

comes in to look at it, so if it's not rated, not approved, they would be able to sell it. They essentially take it out of production by not listing 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com176 it. So just killing a listing alone, in an of itself could be enough to get the manufacturer upset enough to either re-rate it and/or take it off the market. FACILITATOR RABA: George, do you have a comment? MR. KUSTERER: Not on this particular subject. George Kusterer with Bock Water Heaters. I just wanted to clarify somethingthat my colleague Mr. Mike Martin had mentioned inArticle 431484. Itwould be No. 5, "an independent laboratory conducts the tests or independent laboratory personnel supervise the tests." Again, we're dealing with commercial equipment. This could be extremelyburdensome as far as shipping a major appliancewhich is basically built for spec or built maybe four or five times a year for specifications. It has to be built. It is tested. It is disassembled. It is sent to an independent laboratory. It has to be reassembled, tested, disassembled and then sent to the job site and I think it's a tremendous burden on amanufacturer. And I see nothing wrong with an independent laboratory personnel supervising the testing and I believeMr.Martin wants that stricken. FACILITATORRABA: Did 

### Ihear that before? NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.com177 MR. MARTIN: I didn't say a word. FACILITATOR RABA: Joe. MR. MOSHER: Joe Mattingly, GAMA. Thank you, George. We were going to make the same comment here in a few minutes. As 

### I mentioned before in the commercial boiler efficiencyprogram,certification program that GAMAhas under itsHI division, again an employeegoes to the manufacturer's plant and conducts the test after assuring himself that all the test conditions

are proper and the equipment is proper and all that sort of thing to guarantee some accuracy of testing. And asGeorge said,someof this equipment is just too complicated and large, or whatever, small sales, blame it, whatever, to justify having to send it to another location to do it. MR. STANONIK: Frank Stanonik with GAMA. Just a couple other points on this, these criteria. First of all, getting back to this discussion about whether -- what's described in No. 10, whether the criteria should specifically require that the program must provide to expel participating manufacturers. I don't know if it intended it or not, but perhaps the way to resolve that is to change the words to say the program must provide sanctions to insure that 

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### R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comparticipating manufacturers will comply with such requirements, such requirements being what happens when you fail. Personally,Imean, inthat discussion,at least from GAIVLA's perspective, we also have a responsibility to all the other participants and so, in fact, if there is truly a failure and the product isn't complying,thenwe have an obligation to all the other participants who are complying tomake sure that manufacturer takes the right steps. Iguess if youput sanctions,theprograms can figure out what sanctions they are and when you review it,you can determine whether you're satisfied those are tough enough sanctions or not, but in our program, the programs we run right now, the sanction is if you don't -- when push comes to shove, if you don't comply,you're violating your license agreement and you're not in the program. Not that this model's not in the program, you're not in the program, Mr. Manufacturer. If we change it to sanctions, maybe we can, somebody can find some other effective stick. But the other point that Mike had raised and 

### I didn't want it to be lost completely was this issue about your approval being good for five years and why not 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comhave it, approval every twelve months and that wouldn't be difficult, wouldn't be a burden. Well, the only way that's not going to be difficult and not be a burden is in fact if we submit to the same paperwork every 12 months in which case I'll just be loading up, I guess,my -- attack by e-mail. I'll send it to Cyrus or somebody every twelve months and he'll say oh, that's what 

### I got twelvemonths ago and eitherhe'll spend the time,God forbid, reading it again or he'll just say oh, it's the same and we'll just do a little exercise in practicing our mouth clicking or something. The fact is within the context of this, you have a 5-year approval that's good for 5 years, but you are going to get every year, a report, if you will, a report card on how well the laboratory is doing andwhether it's explicitly stated thereornot, we've certainly looked at that as DOE having the opportunity if they don't like the report card, that they're going to raise questions that may result in the approval not being good for the full five years. So I think what Mike is concerned about is really addressed by this requirement that the program is going to give an annual summary of the results of the verification because that will tell you a lot 

### NEALR. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODEISIANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com180 about what's going on and how the program is running. But to require annual renewal of the actual approval of program, I think,would be unnecessarilyburdensome and just would be a meaningless exercise. FACILITATOR RABA: Counselor? MR. LEVY: On that point, Iwant to ask a question of Mark. Are you suggesting, were you suggesting in your statement that DOE should not require any re-approval,not even every five years? MR. MENZER: We would make two suggestions. Number one, is that you should only -- we should only have re-approval when -- or we should notify you when a major change has been made to the program, such that -- a major change being one that would somehow impact on the 13 criteria here. The second suggest was that we already go through an annual audit by the Standard Council of Canada who has interests very similar to your own and that you might somehow recognize their audit as an approval process. MR. LEVY: What's the answer to my question? So you're basically saying -- MR. MENZER: Yes. MR. LEVY: That we should not require reapproval every five years? 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com181 MR. MENZER: You should not require a separate independent approval every five years. MR. LEVY: Okay. I had another question coming back to the notion of the report and I think theway Frank characterized it that's essentially what the proposed rule said is that we would look at these annual reports and then evaluatewhether any action is appropriate andpossible actions would include review of the voluntary program. Inyour statement,youmake the statement that existing data provided as part of existing requirements under NAECA should suffice,but what are you referring to? I think you said that in your statement. Inotherwords,you indicated thatARI had a problem with DOE'S getting an annual report of the results of verification testing and you said that the type of data, Ipresume then is already provided under NAECA should suffice. What are you referring to? MR. MENZER: The whole list, the whole data base of certified values along with within that list of those units that have been de-rated or taken off the market because they're in noncompliance. MR. LEVY: How is that report intrusive? I guess that wasn't self-evident. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com182 MR. MENZER: Well, we understand what you're looking for is a list of what actual verification test results were compared to actual. MR. LEVY: Correct. MR. MENZER: And I think that --we think that knowing which units passed and failed should be enough. We have certain criteria. We have a 95 percent law and knowingwhich units pass that or fail that we think should be enough. It should meet the needs of DOE. MR. LEVY: Let me ask you one question. Approximately how many verification tests does ARI perform each year? I mean how many different units are tested, approximately? MR. MENZER: About 600 or 700. MR. LEVY: What this would call for is basically to report the results of those 600 or 700 lines? MR. MENZER: Right. MR. LEVY: Okay. MR. MENZER: Again, I think to me, DOE'S requirement -- DOE really needs to know which units pass, which units fail and beyond that -- MR. LEVY: Well, we don't know that 

### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comwithout knowing which ones were tested and 

### I presume that the directory does not indicate which ones were tested. We've got thedirectoryand it hadn'tbeen re-rated so we wouldn't know which of the others had passed the test and also actually the information is

more than which ones passed, but what were your test values on the basis of which they passed,we wouldn't know that either. MR. MENZER: Well,you do know that -- at 95 percent of the rated value or greater. MR. LEVY: Correct. Well, that's what we would know if we did know which ones were tested. MR. MENZER: Are you asking then -- the information that you're asking for is a list of what units were tested in the prior year, is that the information you're looking for? MR. LEVY: In essence. As we discussed earlier, the model numbers wouldn't have to be identified,but that's what essentiallywhat it calls for is just a list of the results -- MR. MENZER: Well, that's not the same thing. Are you looking for a list of the units that were tested? MR. LEVY: Yes. 

### No. 

### NEALR.GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comfor 184 MR. TREADO: No,what we1 re really looking the results,but it's for each of the units that

were tested and it doesn't happen to have the model number. It just has to say -- MR. MENZER: And not in terms of pass/fail, but you want to know what the actual test results were. MR. TREADO: Right, right. MR.MENZER: That was the information that we felt was intrusive on the program. MR. LEVY: The test result,the rating and any kind -- either the applicable standard for sufficient description such asCharlie justmentioned,

sowe can knowwhat the standardwas for that product

or that applied in that test. Okay. We understand your position. MR. NASSERI: Anything else, Ed? MR. LEVY: Well, I had another question concerning your statement with regard to the availability of independent test facilities. Do I take it that your comments only

concernARIproducts,air conditioners andheatpumps? MR. MENZER: They do. MR. LEVY: How many independent test labs are there for those products, roughly -- 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.corn185 MR. MENZER: Interesting you should ask because we're actually in aprocess of going out there and looking ourselves because we -- we're interested to know as well. We do know of four or five that are -- we think would meet our criteria. Four or five may not

seem like that many. The fact that one or two had been doing most of the work for the last two years would suggest that this four or five would give enough capacity to do all the testing thatwould be required. MR. LEVY: I don1 t have any more questions. Thank you. FACILITATOR RABA: Any other comments on this topic,on these topics and the statements at this time? Yes, Michael? MR.MARTIN: Yes, on this lastpoint, itf s

our experience that there are -- that we're aware of fouror five andwe certainly have the impression that there's no problem in getting testing done and especially if you allow it to be supervised in the manufacturer's plant, the testing agents, his personnel. And in theory, these are already being tested. They're supposed to be tested for sale in 

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### R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.neairgross.com186 California today, so if everybody is complying with the law,then it's already being done. Just where the testinghappens,we don't knowandwhether it - - who's actually doing the testing,we don't knowthat either. It does look as though it's not a problem about getting the capacity to do this. MR. LEVY: 1/11 address this to you, Michael, and anybody else. Did anybody have any comments on the capacity for testing the other productswe're concernedwithhere, furnaces, boilers, water heaters? MR. MARTIN: My comments apply to all of these. FACILITATORRABA: Am Ihearing that while there are these four or five independent laboratories per se that wouldn't this testing also come intoplay from agents of those laboratories orARI to gowitness test at the manufacturer's plant which would add to that? Is that the same thing? Did I hear that? MR.MARTIN: Well,to mention a particular name, what used to be ADA Labs is now CSA International. They regularly sent people out to people's labs to do testing. I believe under UnderwritersLab alsodo oil fired equipment and I see George agree here. So that is going on right now. 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.cornAnd they operate out of Cleveland, Los Angeles and Toronto. So there's three labs there and they do that routine -- so I don't think you need to concern yourself on that. FACILITATOR RABA: Further comments? MR. MARTIN: One question. Something we haven't talked about at all is how water storage tanks. What's going to happen with those? Do they fit into the certification and enforcement program at all? MR. LEVY: Well, to the extent that they

are regulated, there are standards for them so they would be covered by the certificationand enforcement requirements. MR. MARTIN: Okay, so if Wilbur is manufacturing these tanks which Ibelievehe is orhis company is -- MR. HOLLOMON: Not me, personally.

(Laughter.) MR. LEVY: Well not today anyway. MR. MARTIN: He would still have the certification requirement and none of the overheads mentioned that at all and enforcement requirements? MR. NASSERI : Are you talking about hot water storage tanks? 

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### R.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com188 MR. MARTIN: Yes. MR. NASSERI : The requirements are they have insulation. That's all they have, the requirements. What is it 12-R? MR. MARTIN: Okay. MR. HOLLOMON: 12.5. MR.MARTIN: Well,we haven't talked about the test methods and so on. We were talking just on furnaces, but we've talked about certification and they are included in the certification and the enforcement requirements, correct? MR. HOLLOMON: Yes. MR. MARTIN: Good. 

### MR. 

### STEPHENS: They're not explicitly included in a lot of places where you do name other appliances.MR. LEVY: I would appreciate it if you would identify those where it would appear that they're a gap because they're included within the broad definition of HVAC and WH products, that's the term we use. So any time that term is used, that product - - MR. STEPHENS: WAS fits too. MR. LEVY: What? MR. STEPHENS: WAS fits too, water 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comstorage. MR. STANONIK: But not WC. MR. STEPHENS: Not WC. MR. LEVY: Actually, I wanted to ask another question and come back -- MR. POLLOCK: Iwas just going to ask for comment on that. In the unfired -- as was just been statedhere, is a design spec. It's not aperformance spec, so it isn't something that really gets covered under a test procedure per se and it is going to have tobe treated somewhatdifferently fromthe tolerances that we were talking about here. So comments,because we are talking about certification and enforcement in the part today, the intentwas to cover all theproducts that are included in EPCA or in EPACT and therefore if youhave thoughts

on how these criteria or whatever criteria we should apply to the unfired tanks, I certainly would appreciate your insight on that. MR. MARTIN: Are aware of anybody who's actually listing these things, doing any kind of program? 

### MR. LEVY: You mean the unfired? MR. MARTIN: Yes. It's something I have absolutely no data on whatever. 

### NEALR.GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com190 MR. NASSERI: It probably falls under GAMA's program. Do you have it in a report? MR. STANONIK: The specific category of unfired storage tanks is not presently within what we are trying to setup forcommercialwater heaters,but certainly the publication of this document may create the impetus, they're easy enough to add, let's put it that way. MR. STEPHENS: They're kind of in a hole. Those of us who kind of specify these things or gauge the performance of them or count on the performance of them have a tough time sometimes figuring out what

we're buying. FACILITATOR RABA: I believe we have a comment over here. MR. LEVY: I just wanted to come back briefly to the issue that we talked about earlier concerningthe sanctionsand compliancewithvoluntary programs and what happens when amanufacturerdoesn't. One thing that struck me is that maybe a little clarification is in order. There are two different kinds of issues. One is what happens when a product gets tested and is found not to be in conformance with the applicable rating and Idon't -- that's not really what I thought 

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### R.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com191

was at issue. The real question is -- and then most of the programs have stepsthatmanufacturersare then required to take. And I didn't hear anybody express any problems with the criteria that we had concerning what a program would have to provide in that regard. But the real issue concerns what happens in a situation where the program directs a certain action by a manufacturer and it then doesnl t comply and that was really the focal point of the provision that we had. And I think some of the comments people made were veryuseful and provide someuseful thoughts

on that. But that's really what was at issue when

we were talking about this question of or the provision in the proposed rule that programs should provide for expulsion of the manufacturers, not what happens when a product is found not to comply, but rather what happens when a program is found not to comply and the program directs action and then the manufacturer doesn't carry out that action. That's really what that expulsion provision, quote unquote, focused on. And as I said, I think we got some useful comments on that which we

can take into account. If anybody has anything furtherto sayon that in theirwritten comments,we'd NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.neairgross.com192 like to hear it. FACILITATOR RABA: Thank you. I think George, did you have something? MR. KUSTERER: Yes, George Kusterer of Bock Water Heaters. With regard to storage tanks, unfortunately, they're like me, they're stupid, inanimate objects that can't think for themselves. (Laughter. ) And that's why Frank Stanonik is with me to prompt me all the time. MR. STANONIK: But George, your animate. MR. KUSTERER: Yeah, that's true.

(Laughter. ) MR. KUSTERER: But with regard to storage tanks as far as performance goes, there is no performance on a storage tank. Water in, water out. It's basically very simple. The performance lies in the heat source, what's heating the water. So if we have a storage tank and we're insulating it properly there is really no efficiency rating. There is,you know, I mean a cup of water is a cup of water so I again -- I don't think it's even applicable in this standard. As far as rating them, okay, it's got insulation,water in, water out,works for me. So I 

### NEALR.GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 w.nealrgross.comdon't think we have to spend a whole heck of a lot of time and emphasis and money on this particular project. That's my own opinion. FACILITATOR RABA: Charlie? Thank you, George. MR. STEPHENS: Yes, Charlie Stephens. That would be good,George,but sometimes they're not insulated or they're not insulated like they claim they're insulated orwe don't know how insulated they are and then water in,but maybe not so much BTU out. MR. KUSTERER: Don't 

### I look like anhonest person, Charlie? I mean would I lie to you? MR. STEPHENS: Nothing personal, George. MR. KUSTERER: Would I lie to you? MR. STEPHENS: I've just been shopping. MR. KUSTERER: But again, as far as --

(Laughter. ) MR. KUSTERER: Again, as far as performance goes, you're really not going to be able to do too much time, spend too much time with regard to setting up standardsonperformance of an inanimate object. But again, I do agree with you, if it has X amount of insulation, then so be it. But as far as going, sending a 500 gallon storage tank out to be tested, I think is a little -- 

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### R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com194 MR. STEPHENS: Oh, we do it, actually. MR. KUSTERER: I know you do. MR. STEPHENS: We just test the loss. MR. KUSTERER: We just shipped 300 to your beautiful stadium. MR. STEPHENS: We use a lot of them.

(Laughter. ) MR. MARTIN: Are you going to tell us again how we get the transcript, so we can save this last exchange here? And whether it's copyrighted or not? FACILITATOR RABA: You can get the transcript from the reporter after today's hearing. I'm sure he'll welcome anyone who would like to purchase a copy. It shouldbe available in twoweeks. MR. KUSTERER: Please don't use that against me, Michael. (Laughter. ) MR. MARTIN: Well,you've been callingme your colleague all afternoon. MR. KUSTERER: That1 s because 

### I respect and admire you, sir. MR. MARTIN: Let1 s go buy each other a beer afterwards. MR. NASSERI: Okay, we are finished with 

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# 1 (202) 234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comour discussion of the last item in the agenda. Anything else before we make a final statement and we call it quits for today? Any final comments about the workshop today or public hearing? MR. MARTIN: I think you did a great job and I thank you for it. MR.NASSERI : Thankyouverymuch. I just wanted to say a fewwords and then I'll let Ed Pollock say anything if he wants to, any closing remarks. We appreciateyourparticipation with all theweather and other difficulties, especially the ones who traveled here from long distances. We have listened to your comments to you made today and will be very, very productive for our position going toward the final rule. Actually, February 28th is the closing of the comment period for this notice and I hope we get the written comments from everybody present here or whoever is not here and will sendus comments. And as somebody mentioned, the transcript of this workshop will be available in two weeks. MR. MATTINGLY: I'm sorry, go ahead. MR. NASSERI: Two weeks and you can purchase that from the court reporter,contacthim and

see what the procedure is to purchase that for your 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.comreading. Again, we have a Freedom of Information reading room in DOE, if anybody has access with local here, they can always come and read it or you can buy the transcripts. Again, after the 28th of next month, we will basically look at your comments at whoever sends in comments and also the transcript and evaluate it and we will pursue to go to a final rule on test procedures for commercial furnaces and compliance enforcement for commercial air conditioning and water heating appliances. Joe? MR. MATTINGLY: Joe Mattingly from GAMA. If we made certain comments either in a statement we've already provided you or during the workshop here, we don't have to repeat those in our written comments, do we? MR. NASSERI : You have your choice. In past, sometimes you did. If you prefer to have this

as part of your comments -- MR.MATTINGLY: I mean it's easy to do so, but is it worthwhile? MR. POLLOCK: I'd like to comment on that. My feeling that actually it's better if you don't 

### NEALR.GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON,D.C. 20005-3701 www.nealrgross.comunless you have a different way of looking at it or phrasing it that might clarify things because it just

means that we have to filter through that much more comment to try to make sure we cover everything. MR. NASSERI: Not, at this point I would like to turn the board to Ed Pollock, Director of Office -- what's the name of the office now? MR. POLLOCK: Research and Standards, Cyrus

### . (Laughter. ) MR. NASSERI: He'll give us some final words. MR. POLLOCK: 

### I justwant to repeat Cyrus' thanks to all of you for participating today and help

us to pull this together. 

### I think we made a good start here. There are a few issues aswe discuss this afternoon which we still need your help on clarifying and finalizing something that works for everybody and that minimizes the burden on the manufacturers

### , but still gives us assurances that the numbers that are being reported and used by those people who are purchasing the products are getting what they're paying for.Also, 

### Iwant to thank the staff,my staff for the effort that they made inpulling this together 

### NEALR. GROSS COURTREPORTERS AND TRANSCRIBERS 1323 RHODEISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.neairgross.com198 considering that we've been shut for two days here at the government. There were a lot of last minute preparations. I especially want to recognize Brenda and her activities this morning in getting us up and running,and Cyrus, who was here yesterday, trying to make final decisions with me on whether or not we would cancel this or try to pull it together and I think we made a good decision. I hope you all agree with us. Thanks again. MR. KUSTERER: Just one more comment. George from Bock Water Heaters. DOE'S choice of moderators has againbeen outstanding and in the past. It was a pleasure working with 

### him. Thank you. (Whereupon, at 3:33 p.m., the public hearing was concluded.)



### NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. (202)234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

### This is to matter of:

Before:



### Date:



### Place:

represents the aforementioned typewriting. CERTIFICATE



### WASHINGTON, D.C. 199



### certify that the foregoing transcript in the PUBLIC HEARING

DEPARTMENT OF 

### ENERGY

JANUARY 27, 2000



### full and complete proceedings of the matter, as reported and reduced to

www.nealrgross.com 

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