CAS-RM-78-110 COMMENT 13

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Tuesday

February 7, 1989

Part II

Department of

Energy

Office of Conservation and Renewable

Energy

10 CFR Part 430

Energy Conservation Program for

Consumer Products: Final Rulemaking

Regarding Regulations Related to Energy

Conservation Standards for Consumer

Products; Final Rule
 CAS-RM-78-110 COMMENT 13

&062 Fedend Register I VoL Sf. No. %4 I Tuesday, February 7, 1989 J Rules and Regulations

DEPARTMENT OFENERGY

Offlce of Conservation and

Renewabl. Energy

10 CPR Part .30

(Docleet No. CAs-RM-71-110J

Energy Conservation Program for

Consumer Products: Final Aul.making

Regarding Regulations Related to

Energy Conservation Standards for

Consumer Products

AGENCY: Department of Energy.

ACTION: Final rule.

SUMMARY: The Energy Policy and

Conservation Act. as amended by the

National Energy Conservation Policy

Act. the National Appliance Energy

Conservation Act of 19tJ7, and the

National Appliance Energy

Conservation Amendments of 1988,

prescribes energy conservation

standards for certain types of consumer

products. As a general rna Her. these

Fed~ral standards preempt Sta te and

local standards and any other Sta te and

local requirements wHh respect to

energy efficiency or energy use of these

products.

The Department of Energy today is

i~suing a final rule amending Ti tie 10,

Part 430 of the Code of Federal

Regulations to include procedures for

petitions that may be made by States

and manufacturers with regard to

Federal preemption of State and local

energy conservation standards.

The role also adds procedures by

'JI:hich certain small businesses may

obtain exemptions from the standards

and sets forth procedures for

certulCation and enforcement o.f the

standards. Today's action also includes

the following: Clarification of the basis

for calcula hug the heating seasonal

performance factor energy conservation

standard prescribed by the Energy

Policy and Conservation Act. as

amended. for central ail conditioners

and hea t pumps: an annual energy use

measure for refrigerators. refrigerator.

freezers and freezers: and test procedure

and sampling requirements for pool

heaters.

EFFECTlVI DAn: March 9. 1989.

'OR FURTHER INFORMAnON CONTACT:

Michael J. McCabe. U.S. Department of

Energy. Office of Conservation and

Renewable Energy. Forrestal Building

Mail Station. CE-132. 1000

Independence Avenue. SW..

Washington. DC 20585. (202) 586-9127.

Eugene Margolis. Esq.. U.S. Department

of Energy. Office of General Counsel.

. FamltalBuildilll ~fail Station. ce- ". · 1& toOO Independence Avenue. SW..

Washington. DC Z0585. (202) 586-9507.

.......IIENTMy INfIOItIlATION:

L Introduction

L Authority. _

b. Backgro~d

U. Diacuuion ofComments a. General Provisionl

b. Petitions to Exempt State Replatiou

from Preemption

c. Smail Business Exemptions

d. Cenification and Enforcement

m. Environmental. Regulatory Impact.

Regulatory Flexibility. Paperwork

Reduction Act. Takinss Assesameat. and

Federalism Assessment Reviewl a. Environmental Review

b. Regulatory Impact Review c. Small Entity Impact Review

d. Paperwork Reduction Act Review

e. Takings ASlessment Review

f. Federalism ASlt!sameat Review

8. Regulatory Flexibility Review

L Introduction

Q. Authority

Part Bof Title III of the Energy Policy

and Conservation Act (EPCA). Pub. 1..

94-163, as amended by the National

Energy Conservation Policy Act

(NECPA). Pub. L. 96-619. by the National

Appliance Energy Conservation Act of

1987 (NAECA). Pub. 1... 100-12. and by

the National Appliance Energy

Conservation Amendments of 1988

(NAECA 1988). Pub. L. 100-351,1 created

the Energy CQnservation Program for

Consumer Products other than

Automobiles. The consumer products

subject to thi~ program (often referred to

hereafter as "covered products·') art::

Refrigera tors. refrigera tor-freezers and

freezers; dishwashers: clothes drvers~

water heaters.; central air conditioners

and central air conditioning heat pumps:

furnaces; direct heating equipment.:

television seta; kitchen ranges and

ovens: clothes washers: room air

conditio~ pool heaters: and

fluorescent lamp ballasts: as well as any

other consumer product classified by the

Secretary of Energy. See section 3.Z2. To

date. the. Secretary has not so classified

any additional products.

Under the Act. the program consists

essentially of three parts: testing,

labeling. and mandatory minimum

energy conservation standard&.. The

Department of Energy (DOE or Department), in consultation with the

National Bureau of Standards. is

required to amend or establish new test

procedures. as appropriate, for each of

1 Part B of Titte 111 of EPCA as amended by

NECPA. NAECA. and NAECA 1988 II reiRrred to in

thiS notlce as the "ACL" PaM B of Title Ull..l' codified

at 42 U.S.C. 62.91 et ~. PaM B of Title Dl of E.PCA

.1 .mended by ~ECPA only. il referred Co In thiS

notice I' NECPA.

the covered products. Section 323. The

.purpose of the test procedures is to

provide for test results that reflect the

eersY efficiency. energy use. or

.timated annu~l operating costs of

each of the covered products. Section

323(b)(3). A test procedure is not

required if DOE d~termines by rule that

one C8JU101 be deVeloped. Section .

323(d)(1). One hundred and t!1~hty 'days

after a test procedure for a product is

adopted. no manufacturer may represent

the energy consumption of. or the cost of

eneraY consumed by the product except

as reflected in a test conducted .

according to the DOE procedure. Section

323(c)(2).

The Federal Trade Commission (}olC)

·is required by the Act to prescribe rules

loveming the labeling of covered

products for which test procedures have

been prescribed by DOE. Section 324(a).

These roles are to require tha teach

particular model of a covered product

bear a label that indicates its annual

operating cost and the range of

estimated annual operating costs for

other models of that product. Section

324(c){1). Disclosure of estima ted

operating cost is not required under

section 324 if the ITC determines that

luch disclosure is not likely to assist

consumers in making purchasing

decisions or is not economically

feasible. In such a case. ITC m~st

require a different useful measure of

energy consumption. Section 324(c). At

the present time there is an FTC rule

requiring labels under the Act for the

follOWing products: Room air

conditioners. furnaces. clothes washers.

dishwashers. wa ter hea ters. freezers.

and refrigera tors and refrigera torf.-eezers.44 FR 66475. November 19.

19i9. On December 10.1987, ITC

pt..blished a rule requiring labels for

cen :ral air condi honers. 52 FR -.t6888.

Fl'r twelve of the covered products.

the .'\ct prescribes Federal energy

contervation standards. Section 325

(a)(l) and (b) through (h). The Act

establishes initial effective da les for the

standards in 1988. 1990. 1992 or 1993.

depending on the product and specif!es

that the standards are to be reviewed bv

the Department within three to ten .

years. also depending on the product.

Section 325 (b) through (h). After the

specified three- to ten-year period. DOE

may promulgate new standards for each

product. but such standards may not be

less stnngent than those ini tially

established by the Act. Section 325 (1)(1).

The Act also directs DOE to prescribe

an energy conservation standard no

later than January 1. 1989. for small gas

furnaces. i.e~ gas furnaces having an

input of less than 45.000 Btu per hour

&
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54. No. 24 I Tuesday. February 7. 1989 I Rules and Re~ulations 6063

(

and manufactured on or after January L

1992. Section 325(C)(1J(BJ.

With regard to another covered

product. television lets. the Act allows

the Department to prescribe an .

applicable standard: .however. such

Itandard may Dot become effective

before January 1. 1992. Section 32S(i)(3).

The Act allo permits the Department

to prescribe standards for any other

type of consumer product. that using

certain criteria. DOE may classify as a

covered product. Section 3%5(i), (1) and

(m). Any new or amended Itandard is

required to be designed so as to achieve

the maximum improvement in energy

efficiency that is technologically

feasible and economically justified.

Section 325{1)(2)(At

Section 325(1){2}~B)(i) provides that

before DOE determines whether a

standard is economically jl;stifieci it

must first solicit vie vs and ,,:omments

on a proposed standl.n:L After reviewing

comments on the prc,p,saL DOE must

then determine that lht, benefits of the

standard exceed its bwdens. ~'ased. to

the greatest extent practicable by

considering:

(1) The economic impa,,:t of the

standard on the manufact~J.rers lnd on

the consumers of the produ:'t~ aubject to

such standard:

(2) The savings in operating costs

throughout the estimated average life of

the covered products in the type (or

class) compared to any increase in the

price of, or in the initial charges for, or

maintenance expenses of, the covered

products which are likely to result from

the imposition of the standard; .

(3) The total projected amount of

energy savings likely to result directly"

from the imposition of the standard;

(4) Any lessening of the utility or the

performance of the covered products

likely to result from the imposition of the

standard;

(5) The impa ct of any lessening of

competition. determined in writing by

the Attorney GeneraL that is likely to

result from the imposition of the

standard:

(6) The Nation's need to conserve

energy: and

(i) Other factors the Secretary

considers relevant. In addition. the Act

specifies criteria for petitions to DOE in

regard to amendments to standards.

Section 325(k). Under the Act. any

person may petition the Department to

conduct a ruJemaking to amend a

Federal energy conserva tion standard

for any covered product. Section

325(k)(1). The Department must grant

such a petition if it determines that an

amended standard will result in

significant conservation of energy, is

technologically feasible and is costeffective. Section 325(k)(2). SeCtiOD .

325(k)(3) (Al and (B) stipulates that in no

cale mayan amended standard apply to

product~ manufactured within three

years or five years. dependins on the

product. after pubiication of the final

rule establishing a standard. Today'.

final rule does Dot include procedures

and criteria for petitiORI for an amended

standard. Since 1990 is the eamest date

by which an amended standard could

apply. DOE will address this issue in a

future rulemaking proceeding.

Section 32S(q) provides that

manufacturers bavina annual gross

revenues not exceed.ing sa million may

apply to DOE for an exemption from all

or part of the requirements of an energy

conservation standard. This exemption

may not extend beyond two years from

the effective date of any atandard's

requirement. This authority will not be

exercised by DOE unless. after written

consultation with the Attorney General.

the Secretary finda tha t failure to allow

the exemption would likely result in a

lessening of competition.

Section 326 of the Act authorizes the

Secretary to impose requirements upon

manufacturers to submit information or

reports to assure that each covered

product to which a standard applies

meets the required energy efficiency

level. Today's rule establishes

certificstion provisions that include

testing by the manufacturer and

submission of compliance and.

certification data to DOE. The Act also

specifies that in determining inIonna tion

requirements. DOE consider existing

sources of information. including

na tionally recognized trade associahon

certification programs. Se.ction 326(d).

Enforcement-rela ted provisions of the

Act provide for: (1) DOE to prescribe

rules requiring manufacturers to alloYI

the Department ·to observe testing and

inspect results of testing conducted by

the manufacturer (section 326(b)(5)); (2)

manufacturers to supply to DOE a

reasonable number of products for

testing purposes (section 326(b)(3)); (3)

manufacturers to submit information or

reports necessary to ensure compliance

(section 326(d)): and (4) injunctive relief

against any prohibited act. including

distribution of noncomplying products

(section 334).

Section 327 of the Act addresses the

effect of Federal rules concerning

testing, labeling. and standards on State

laws or regulations concerning such

matters. Generally, all such State laws

or regulations are superseded by the

Act. Section 327 (a) through (c).

Exceptions to this general rule include:

(1) State standards prescribed or

enacted before January 3. 1987, and

applicable to products before January 3.

1988. may remain in effect until the

applicable standard begins (section

327(b)(1)); (2) state procurement

standards which are more stringent than

the applicable Federal standard may

remain in effect (section 327(b)(2) and

(e)): and certain building code

req:lirements for new construction may

remain in effect until the applicable

standards begin. and. if certain criteria

are met. the codes are exempt from

Federal preemption (section 327(b)(3)

and (f)(1) through (f)(4)); state

regulations banniDg constant burning

pilot lights in pool heaters are exempt

from Federal preemption (section

372(b)(4)): and State standards for

television sets effective on or after

January"l, 1992, may remain in effect in

the absence of a Federal standard for

such product (section 327(b){6)).

Another exception to Federal

preemption concerns standards for

refrigerators. refrigera tor-freezers and

freezers. The Act specifies that if DOE

does not publish a final rule before

January 1. 1990. rela ting to the revision

of Federal standards for this product

category. the standards for these

products that have been promulgated by

the State of California. and are to be

effective January 1. 1992. may become

effective beginning January 1. 1993. and

may not be preempted by any Federal

standard prescribed on or after January

1,1990. Section 325(b)(3)(A)(ii)(l) and

section 327(c).

In addition. if DOE does not publish a

final rule before January 1. 1992.. relating

to the revision of standards for .

refrigera tors. refrigera tOf-freezers and

freezers. any Sta te regula hon which

applies to such products manufactured

on or after January 1. 1995. is exempt

from Federal preemption until the

effective date of a Federal standard.

Section 325(b)(AJ(ii)(II).

A State whose energy conservation

standard is preempted may petition the

Department for a rule that it not be

preempted on the basis tha t the Sta te

regulation is needed to meet unusual

and compelling State or local energy

interests. Section 32i( d). Ho\vever. DOE

cannot issue the requested rule if it is

established that such State regulation

will significantly burden marketing,

manufacturing. distribution. sale or

servicing of the covered products. or is

likely to result in the '.'I"'I'::I'I'''']'!~I ..... I ••••

the State of any covered product \\'ith

performance characteristics that are

substantiallv the same as those

generally a;ailable in the State at the

time of DOE's determina han. Section

327(d)(4).

The Act further provides tha 1. except

under certain energy emergency
 CAS-RM-78-110 COMMENT 13

6064 Federal Register I Vol. 54. No. 24 I Tuesdil)·. February 7. 1989 I Rules and Re~'Clations

conditions. aDy State regulation for

which exemptiOl1is granted Ihall apply

to products manufactured three years

after DOE publishes such a rule in the

Federal RePster. or five years after

pubficalion. it DOE finds that additiaaal

time is necessary for retooling and

redesign. Section 3Z1(d](5}.

b. BacJc,nJund

NECPAreqaired DOE to estabUsh

mandatory energy efficiency standards

for each of 13 coverage products.· These

standards were to be designed to

achieve the maximum improvement in

energy efficiency that was

technologicaHy feaSible and

economically jnstified. ~E(;PA providPd. however. that no

standard for a product be estashUshed if

there were no test procedure for the

product. or if DOE determined by role

either that a standard would not result

in significant conservation of energy, or

that a standard was not technologicany

feasible or economically justified. In

determining whether a standard waseconomically justified. the Department

was directed to determine whether the

b'!nefits of the standard exceeded its

burdens by weighing the seven factors

discussed above.

NECPA specified the priorities and

procedures to be followed in adopting

efficiency standards. Nine of the 13

covered products were given priority.

These. nine products were: Refrigera tors

(i nd refrigera tor-freezers, freerers.

clothes ciryers, water beaters.. room air

c~"T1ditioners...home heating equipment

not includIng furnaces. kitchen ranges

~nd ovens.. central air conditioDers. and

f:lmaces.

On June 30. 1980, DOE. set forth its

first proposed rulemaking for the nine

products. 45 FR 439i6. (Hereafter

referred to a.! the June 1980 proposal}.. 11

d 1so propotied comprehensive

requirements fofcertification and

e:1.forcement of the standards as well as

rriteria and procedures for petitions

from small businesses seeking

temporary e:x.emption from standards

and by Slates seeking exemption far

regulations subject to the general

preemption requirements of NECPA.

On April 2.. 1982.. DOE published a further notice- of proposed n.tlemaking

WIth respect to the nine priority

products. 47 FR 14424.. (Hereafter

referred to as. the April 198% proposal).

I Th. ~rprodactJ C8W1"IKf by. NEOA

mel uded: Ref~to.n an.c:i rdnsera tw-frene::s;

freezus-.. dah.~~. cloLhes ctryera; wetl!'r' iHt~

room air concll.tlonera: home huuns. ~~mt not

sncludlng fumaC1!'S: f'er"Jllot1 sett': Knchen rentel

and oven.; c1o!h~, weters: humidifiers end

d hUIPl t<Uf.er'S~ C'I'1'\ tra.i alT c.cmdTtWIws::a:: attd

furnace..

Among other thinp. lb. April198Z

proposal included rule. lovemiDl

petitiODI to DOE both by States to

obtain exemption.from preemption of

State or local eaergy efficjeDCY

.tandarda. II weD as by manufacturers

to obtain preemptiQD. of State or local . standards. '.'

OD December 22. 1982. DOE published • final rule that efficiency .taDdards were not warranted for two Q'J\...:ed

products (clothes dryen and kitchen

ranles aDd oyens) and that a"o

prescribed final procedure. by which . States might obtain exemption for State

orlocal efficiency standards from

Federal preemption. 8J3d by which

manufact:a:ers might obtain preemption

of a State or local standard not

otherwise preempted. 47 FR S7t98.

(Hereafter referred to as the December

1982 final rule).

On August 30. 1983. DOE published a

final rule with respect to six additional

covered products: Refrigerators and

refrigerator-freezers. freezers. water

heaters. furnaces, room air coftditioners

and central air £onditioners. 48 FR

393'78. (Hereafter referred to as the

August 1983 final rule). For each ofthe

six products covered by the August 1983

final rule. except central air

conditioners. DOE determined that an energy efficiency standard would not

result in significant con~rvation of

energy and would not b~ economically

justified. With respect to central air

conditioners', DOE found tha t an energy

efficiency standard would result in

significant conserva ticn of energy, but

would not be economically jtIstified.

On April 1" 1985, DOE published a

proposed role with respect to fOUI

_ covered products: Dishwashers.

television sets, clothes washers and

humidifiers and dehumidifiers. 50 FR

12966. (Hereafter referred to as the 1985

proposaL) For each of the four products

covered by the 1985 proposal, DOE

proposed that an energy efficiency

standard would not be economically

justified and would not result in a

significant conserva tion of energy..

During 1983, DOE's December 1982.

and August 1983 fmal rules were

challenged in a lawsuit brought. by the

Na tural Resources Defense Council

(NRDCI and others against the

Department. On July 1~ 1985, the us..

Cou.rt of Appeals for the District of

Columbia Circuit set aside DOE's

December 1982 and August 1983 final

roles. NRDC v. He.rringwn. 7611 F..2d. 13.»

(DC Cir. 1985).

Consequently. on l-.1arch S. 1986. DOE

published notices in the Fedes:alllelister

removing the December 19&2. and August

1983. fmal n.tl.es acd withdrawing the

1185 proposal 51 Fa 75-19 aDd 51 FR

7582.

As required by NAECA. whien was

enacted OD March 17, 1987, and which

established energy conservation

atandards for certain appliances. DOE

published aD advance notice of

proPOIed relemakinl regarding amended

standards for refrigerators. refrigeratorfreezers. and freezers and regarding

establishing standards for small gas

fumace. and television sets. 52 FR

48387. December 7. 1987. (Hereafter

referred to 8S the December 1987

advance notice.) The December 1987

advance notice presented the product

classes and analytical methodology for

DOE'. analysis in the rulemaking for

these three products. The Department

published a notice of proposed

rulemakins on December 2. 1988..

proposing to increase t.i.e standard level

for refrigerators. refrigerator-freezers.

and freezer!: to -establish a standard of

i8 percent AFUE for small gas fumacl!s

and to determine that no standard be

established at this time for television

sets. 53 FR 48798.

On March 4. 1988. the Department

published a notice of proposed

n.:..lemaking concernIng regulations

implementing certain provisions of

NAECA.. 53 FR 7110.. (Hereafter referred

to as the March 1988 proposal.) In

response to the ~1arch 1988 proposaL

four trade associa bons representing

appliance manufacture:s testified at the

public he~(ll1~ held on April 12. 1988.

and durirl2 Ll-te comment period p.nding

~fay 3. 1988. D(JE received nine written

comment~· from manufacturer!. trade

associatio 1!' ana S~a te govemmen ts.

The issues raised it: the Testimony and

written con,ments a~ addressed in

section II ot this norce. Todav's finat

rule re~ponas to tht! :::otn..."Ilents received

on the Marct. 1988 p.::>posal.

On March .5, 19FA).. the President

signed Execut ve Ord ~r 12630 (53 FR

-8859, March 18 19&5}Hrecting that

agencies review proposed reg'..lIations to

avoid unnecessary taking of private

property and to assist agencies in

accounting for takin8 private property

necessitated by sta tutory mandate..

The Executive- Order states:

"Policies that heTe takings impH1:ations"

refer to Federal reguiations. propoS4!d Feoderai

legisl8tio~ comment, on proposed FedeNtl

legislation or other Federal policy st8f"emenrs,

that.. if implemented or enacte!L could tMTect a

taking. such. aa nsle. and regulanona tha~

propose or implam~tucan.s.ing.. peTm..tttu18 orothel condihoD req~er1t.or liD\itaLiona

on private property u.ae. or' t.hat ntquu-e

dedi ca.n.ona or e -'Ca.e.tIODe. from ownen. of

privata ;u-operty.
 CAS-RM-78-110 COMMENT 13

Fed.raI Register I Vol. 54. No. 24 I Tuesday. February 7. 1989 I Rules and Regulations 6065

Since the Executive Onier ...i.uect

after the March 1988 PropouJ. the

proposal did Dot include a HCtiOD on

this requirement. The Department bal

conducted .uch an a.s_ment of

toda,'. rule and bal coDcluded that

these'replations do not constitute a

takinl of private property. A discussion

of this .Iaesament appears ill sectionm

of this DOUce.

Today'. Dotice also addresse,

Executive Order 12612. "Federalism",

Executive Order 12812 requires that

regulations or rules be reviewed for any

lubstantial direct effects on States, on

the relationship between the National

lovemment and the States, or on the

distribution of power and

responsibilities amon8 various leve.8 of

10vemmenL U there are sufficient

substantial direct effects. then Exec It'\'e

Order 12612 requirel prepafa tion of 1

federalism alseSSinent to be used in i.U

decisions involved in promulgating a'ld

implementing a re8ulation or a rule.

D. DiscussioD of CommeDt,

There was 8eneral agreement among

the comments that DOE's March 1988

proposal was clear, workable and

equitable. Comments recommending

cha~es and requests for clarification

focused primariJy on certilication and

enforcement and preemption of State

regula tions. The comments also inel uded

question. and suggestion. concerning

certain defini tions in the March 1988 .

proposal. The following discussion

addresses these comments. 3

o. General Provisions

The 1987 NAECA amendments

NECPA included several definitions of

tenns which also are defined in 10 eFR

Part 430. However. lome of the

definitions contained in the Act are

inconsisten t wi lh those previously

adopted by DOE regulation. Therefore.

DOE is amending 10 CFR Part 430 by

adopting the definitions contained in the

Act. Since these definitions were

established by law and are not subject

to revision. they were not included in

the March 1988 proposal. However. the

preamblp. to the March 1988 proposal

did include a list of these terms and

definilions. The tenns included in

today's final rule are "energy

conserva tion standard.... "furnace." and U wa ter hea ter.··

The American Gas Association (AGA)

commented that it sees no need for DOE

to adopt the term "energy conserva tion

J CAmments on the ~rch 1988 propoe.if were

81S18:led docl..et numbers and 8M! numbered

con~cutJ'velv. ~nntn~ wHh No, :194, Comments

presented a1·r.he Apnlli 1988. pubhc heanng are

adentlfied .. TnlJrnony.

ltaDdard" iD place of........, efficiency combultion ,yatem values. The

.laDdanL.. (AGA. No. Z2OO. at 3). Aa . HydroDica lnabt..ate a1,0 questioned

stated ill the preamble to the March 1988 whether the weathert.led fumaces and

proposal aDd above ill today'. DOtice. boilers bave to meet 18 and 80 percent

DOE iladoptinl thil and other' A.FUE. respectively, when calculated as

definitionsutabU.bed by the Act. . outdoor units in accordance with the

SimUarly, the NAECA amendments DOE test procedures. or must the

included term, which are not found weatherized units meet 18 and 80

CUlTently in 1430.2 of 10 CFR Part 430. percent Af1JE when calculated as

DOE today is adoptinl tbelesislated indoor units. (Hydronics Institute. .

definitions. The terml are: "Annual fuel Teltimony). Thf! Department believes

utilization efficiency:' '-pool heater," the language in the Act and the March

and "weatherized warm air fumace or 1988 proposal is clear. specifying an

boilel\"lJkewile the NAECA 1988 outdoor unit

Amendments included tennl which are Two comments addressed the

not found in I 430.2 of 10 CFR Part 430. proposed definition for packa8ed

DOE today il .1so adopting those - tenninal heat pump. The Air

legislated defmitiona. The terms are: Conditioning and Refrigeration Institute

uFluorescent lamp ballast" and "ballast (ARJ) suggested that DOE adopt ARl's

efficacy factor." Also, in regard to test definition,-whicb states that the unit

procedures. DOE i. adopting the "should" have other supplementary heat

follOWing legislated tenns in a new 10W"Ces, rather than "may" have'

}~ppendix (Q) to Subpart B of Part 430: lupplementary heating available as

UF4OT12 lamp." uF96T121amp," proposed by DOE. (ARt No. 2197. at 2).

"F96T12HO lamp," "input current," The AGA stressed that the existing

"luminaire,It "ballast input voltage," definition for packaged terminal alf

"nominal lamp we tts," "power factor," conditioner restricts the use of gas as a

"power input:' "relative light output:' heating energy SOurC2. even though units

and "residential building." utilizing gas are available commercially.

A:t noted in the March 1988 proposal. AGA stated that to adopt this definition

~nnuaJ fuel utilization efficiency (AFUE) as the basis for the definition of

is determined in accordance with § 4.6 packaged terminal heat pump would

of Appendix N to Subpart B of Part 430. further restrict the use of gas as an

Beca use the current provisions' for accepta ble source of hea ting energy.

determining AFUE are not consistent (AGA. No. 2200. at 3).

with the legislated definition. DOE The Department accepts ARl's point

proposed and. today. is adopting that the suggested word change implies

amendments to I 4.6 of Appendix N a preference or good practice. Likewise.

which conform to the NAECA DOE agrees with AGA that the current

amendments. definition for packaged termInal air

The Hydronics Institute commented co~ditjoner and the proposed definition

that the expression (1 + 0.7). in the for packaged tenninal heat pump

denominator of the equation should be exclude the use of gas as an available

(1 + Q. stating that modulating units. energy source. Today's notice reflects

being rated at each design heating these recommendations.

requirement. will have varying values of The International Environmental

Q (Alpha). (Hydronics Institute. Corporation (lEe). a manufacturer of

Testimony). The Hydronics Institute's hydronic and direct expansion fan coil

luggested change may be a technical' units. requested clarificatIon on the

improvement to the test procedure. but it number of units comprising a

is not pertinent to the substance of this "collection" since the defini lion of

rulemaking. It is not DOE's intent to ·'batch" in the March 1988 proposal

address test procedure issues in today's sta tes the it is a collection of

notice. units of a basic model from

The March 1988 proposal stated that which a batch sample is selected. (IEC.

the measure of AFUE is based on the No. 2195. at 1). A ··collection·· means all

assumption that weaL'lenzed furnaces units in a manwacturer's possession of a

and boilers are loea ted out-of-doors: single production run of a basic model.

that Don-wea therized furnacp.s are The Department also received

located indoors and all combustion and comments concerning test procedures

ventilation air is admitted through grills and units to be tested. The Association

or ducts from the outdoors and does not of Home Appliance ~1anufacturers

communicate with the air in the (~\1) and Whirlpool Corporation

conditioned space: and that non- (\'Vhlrlpool) were concerned that DOE

wea therized boilers are loca ted indoors. has not sta ted clearly tha t compliance

These amendments willlikeiv result in WIth any standard established by the

many non-weatherized (indo~r) furnaces Act is based on the mean energy value

being rerated to reflect isolated- for a basic model rather than on each
 CAS-RM-78-110 COMMENT 13

eC66 Federal Register I Vol. 54. No. 24 i Tuesday, February 1, 1989 I Rules and'Regulations

individual uniL (AHAM. No. 219& at 2-

3. and WhirlpooL t'0' %194. at 1).

The Department sees no reason to

address this. iSlue in today'I rule since

the test procedures already establish the

requirement as being basic modelspecific. As IUCh. each test procedure

already includes the method for

determinin, the applicable energy

descriptor. Therefore. in order for a

manufacturer to certify compliance with

a standard. th'e energy value calculated

in accordance with the sampling

provisions in I 430.23 must meet or

exceed the standard. These provisions

are based on mean and adjusted mean

values.

.c\HAr.\i also suggested that DOE

amend § 430.23 so that it applies clearly

to the energy conservation standards in

section 325 of the Act. (AHAM:. No. 2198.

at 3).

In response to AHAM's suggestion.

the Department today is amending the

language in the first paragraph of _

§ 430.23.

The National Electrical Manufacturers

Association (NE..'\iA) commented on the

March 1988 proposal in anticipation of

fluorescent lighting fixtures becoming a covered product.. ~\{A urged DOE to -

determine that test procedures for

fluorescent lamp ballasts are not

required under section 323(d)(l) of the

Act. (NEMA, No. 2202. at 2-3).

The Department rejects NE...~'s

reasoning. DOE can make a fmding

under section 323(d)(1) of the Act only if

test procedures cannot be developed

which meet the requirements of section

323(b)(3). That subsection states that

"Any test procedW'e· • • shall be

reasonably designed to produce test

results which measure energy effiCiency,

energy use. or estimated annual

opera ting cost of a product· • • and

shall not be unduly burdensome to

conduct. It Congress recognized and the

legislation specifies a test procedure

which meets the requirements of section

323(b )(3) of the Act. That test procedure

is .A..NSI C82.2-1984, The American

National Standard for Fluorescent Lamp

Ballasts ~1ethods of Measurement. t\E~1A also requested that DOE

include in todav's rule several

definl tions contained in the 1988

Amendments. These terms include. inter

alia. "fluorescent lamp ballast." "ballast

efficacy factor." "fluorescent lamp,"

"luminaire." NEMA also urged DOE to

conduct a new rulemaking to ensure that

fluorescent lightIng fixtures are

addressed adequately in the regulations.

No. 2202. at 10).

The 1988 Amendments wef"el pending before

ConSlre55 dunns tne comment penod for th15

rUlema King.

11Ie 1988 Amendments were not

included in the.Act until after the March

1988 proposaL 10 DOE did not addreu

fluorescent lightinl fixtures in the March

1988 proposal. However. the Department '

conaiders it appropriate to include this

covered produd in today'. final rule.

since it wal discuued in comments

received on the March 1988 proposaL

Therefore. DOE il adoptin, the

legislated definitions. and standards

contained in the NAECA 1988

amendments. The Department will

address additional regulations. u

needed. in a separate rulemaking

dealing with fluorescent-lamp ballast.;

A. stated above. and in the March

1988 proposal, the Act establishes

standards for 12 types of appliances.

Since these standards are established ..

by law. they are being adopted today

without comment.

The California Energy- Commission

(CEC) commented on the classes

established for the covered products. in

particular for refrigerators. The CEC

pointed out that there is no class'

assigned for refrigerators with automatic

defrost or for refrigerator-freezers with

automatic defrost and internally

mounted freezers. (CEe. No. 2201, at A1). Since this relates and was the subject

of comment to the December 1987

advance notice, DOE's review and

determination of these options will be

included in the refrigerator rulemaking

mentioned above.

CEC also suggested that DOE revise

the standard for water heaters 80 that

the formulas used to determine the

energy factor are based on actual

measured volume instead of rated

volume. CEC also requested DOE to

include a defmition of the term "rated

storage volume." (CEe. No. 2.201, at A2).

Today's final role addresse! the

implementation of major provisions of

the Act. Since CEC's comment actually

relates to test procedure issues. DOE

will include this in a pending rnlemaking

concerning amendments to the test

procedW'es for water heaters.

b. Petitions To Exempt State Regulation

From Preemption

The Department received several

comments concerning the critena and

procedures by which States may petition

DOE for exemption from preemption.

NE.t.\1A opposed DOE·s proposed

amendments altogether, stating tha t the

Department's action will allow Sta tes to

petition for exemption from Federal

preemption. NE.t.'AA added tha t it cannot

envision any unusual or compelling

interest to justify DOE granting a State's

petition. (~r:.\1A, No. 2202.. at 10).

NEMA is incorrect in its

understandins of the Act and of DOE's

March 1988 proposal. It i.-the statute.

not the Department'. regulations. that

permits Statel to petition DOE for such

exemptions. Section 327(d)(1)(A) of the

Act provides that:

An, State with a Statetreplation which

providn for any enefIY conservation

.tandard· • • with respect to energy use or

enel'lY emciency for any· • • covered

product for which there is a Federal· • • .tandarei· • • may file a petition with the

Secretary requesqa rule that such Stat3

rqu1ation become effective.· • •

Section 327 of the Act also_ establishes

DOE's responsibilities for considering

such petitions and req~ires that a State

petition established by a preponderanee

of evidence that such regulation is

needed to meet unusual and compelling

State and local interests.

Whirlpool and AHAM urged DOE to

emphasize that the Department may not

grant a State petition if evidence shows

that the rule will result in the

unavailability in the State of any

covered product (or class) of

perfonnance characteristics" .. • that

are substantially the same as those

generally available in the State at the

time of the Secretary's finding:'

(Whirlpool. No. 2194, at 3, and AHA\i,

No. 2198. at 14).

This criterion is prescribed in section

327(d)(4) of the Act with regard to State

petitions. A similar provision. regarding

new or amended standards. is :('ntained

in section 325(1)(4) of the ",,"ct. Whirlpool

and A.HNv1 believe that batt. theSe

provisions should be includet: in today's

rule. The provision establishe j in

section 327(d)(4) of the Act pe1tnining to

State petitions appeared in § 43G.41 of

the ~iarch 1988 proposal and, hkt~wist.,.

is included in today's final rule. TJday':

action. however, is nat a star;.dards'

rulemaking, therefore, section 3:,:",(.)(4)

of the Act does not apply to the

regulations contained in this notic~.

The Gas Appliance Manufacture..·s

Association (GAJ.\1A) argued that the

Department misinterpreted section

32i(d)(5) of the Act. GA.L\tA contends

that no rule granting a State's petition

may permit a State regulation to oecome

effective earlier than three years from

the da te such a rule is published in the

Federal Register. GA~L-\'s

understanding of the Act is that there

are no exceptions to this provisio:l.

Therefore, in the case of an energy

emergency condition. DOE may allow a

State to implement its regulation before

the earliest possible effective date for

the revision of the applicable standard,

but in no case maya State regulation

become effective before three yea~

)
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54, No. 24 I Tuesday, February 7, 1989 I Rules and Regulations 6067

(

from the date DOE ~tI the petition.

(CWA No. 2198.&' 8.) The Department rejectl CAMA'I

arpmenL There is DOtbinS in the Act

preacribin8 or luaesting that the

requirements of lection 327(d)(5)(A)

dictate the terms of a fincling that an

energy emergency condition exists • within. State. Ua State hal established

thlt'luch a condition exists, GAMA'I

Interpretation would nesate the remedy

provided by lection 327(d)(5)(B) of the

Act. The March 1988 proposal and

todaY'1 final rule recognize thil remedy.

Therefore. 8 nile exempting a State

Itandard from Federal preemption will

be effective upon publication in the

rederal Register if DOE determines and

publishes luch determination in the

Federal Regilter that luch rule is needed

to meet an energy emel"8ency condition

existing within the State.

Several "'omments maintained that

DOE did not provide adequate guidance

and criteria concerning the content of

Sta te petitions.

AHAM stated that the Department

should emphasize that the Act does not

favor exemptions and that DOE intends

to scrutinize petitions to ensure that the

intent of the waiver criteria is met.

(~t No. 2198. at 2 and 11.) In

addition. Whirlpool and A.HA.L\1 urged

DOE to emphasize that the criteria

under NAECA. are significantly more

difficult to satisfy than those prescribed

by !\"'ECPA. (Whirlpool. No. 2194, at 2-3

and AHAM. No. 2198, at 2.)

These comments suggest. if not assert

that the Act discourages states from

seeking a rule to exempt a State

standard. The Act establishes general

rules of preemption and allows for the

waiver of Federal preemption.

prescribing the conditions under which

DOE mayor may not grant a petition.

While the grounds for the waiver may

be argued to be more stringent than

formerly. they need be established by ~e State only by a "preponderance of

the evidence." DOE will examine each

petition for adherence to the actual

requirements of the Act and DOE's

regula tions.

Pursuant to NECPA the Department.

in considering a State petition. was

required to determine tha t there was a

significant State or local interest to

justify a State standard and that such a standard was more stringent than the

applicable Federal standard. NECPA

prohibited DOE from granting a petition,

however. if it determined tha t a Sta te

standard would unduly burden

interstate commerce. NECPA did not

require a State to prove 8 negative

prediction. i.e.• tha t its standard would

not impose an undue burden on

interstate commerce. The Department's

. replationa required a petitioner to .

describe the lipificant State or local

Interest justifyins the State standard

and any other iDformation the State

considered nlevant or the,Department

requir.ed. '

The Act. al amended by NAECA.

requires DOE to IfBnt a State petition if

certain criteria are satisfied, though.

theae Criteria are differenL DOE muit

IfIlnt a Statets petition if it find, that the

State hal eltablisheeL by a preponderance of the evidence. that

luch a ltandard is needed to meet

unusual and compellins State or local

energy interests. Thil term. al defined

by the Act. Includes factors to establish

the difference. in nature and magnitude,

between the State's interests and those

prev,9ilingl~ the U.S.lenerally. and the

cost, and benefits resulting from the

State regulation that would make it

preferable or necessary when compared

to the t~osts and benefits of alternative

approaches to energy savings or

production. The Act also requires DOE

to evaiuate the State·. claim of unusual

and compelling State or local interests

within the context of the State's energy

plan and forecast.

The Act prohibits the Department

from granting a petition if it finds th:Jt

interested persons have established. by

a preponderance of the evidence. that

the State standard will significantly

burden manufacturing. marketing.

distribution. sales. or servicing of the . covered product on a na tional basis. The

Department must evaluate all factors.

including the impact on manufacturing

and distribution costs and on small

businesses: the extent to which the

standard would cause a burden to

manufacturers: and the extent to which

the State regulation is likely to

contribute significantly to a proliferation

of State standards. The Department also

may not grant a petition if interested

persons have established by a

preponderance of the evidence. that the

State standard is likely to result in the

unavailability in the State of any

covered product type (or class) of

performance characteristics (including

reliability), features. sizes. capacities

and volumes that are-substantially the

lame as those generally available at the

time of DOE's finding.

It is important to note that pursuant to

the Act as amended by NAECA, again,

a Sta te is not required to prove a

negative prediction. Le.. that a State

standard will not Significantly burden

manufacturing. marketing. etc.. or tha t a standard will not likely result in the

unavailability in the State of any

covered product type. etc.

The Department's regulations. as contained in today's notice. require a

petition to include a copy of the Slale·,

enellY plan and forecast. and any other

lDIormation the petitioner believes is

pertinent or the Department may

require.

In addition to comparinl the

requirements f\lr Stale petitions under

NECPA and NAECA. DOE believes the

above discussion responds to ihe New

York State Energy Office (NYSEO)

request that DOE c13rify '~burden of

proof' requirements for petitioners and

interested persons (those submitting

comments on petitions). (NYSEO. No.

2199. at 2).

On a related issue. CA.J'1A urged DOE

to be explicit. through examples or

requirements. that the burden of proof

on States to justify exemption is ver~'

high. (GAMA, No. 2196. at 5-6). The

California Energy Commission (CEC)

also encouraged DOE to specify. through

regulation. what type of information

DOE expects in petitioDS. (eEC. ~o.

2201. at 10).

In addition. AHA..\A and Whirlpool

Itated that among othe: things. DOE

should require each petItion to provide

the basis for differentiating its State

energy problems from supply and

consumption issues facing other States.

(A.HA.\1. No. 2198. at 11 and \Vhirlponl.

No. 2194. at 2-3). AH..~\.f also suggested

that States must show tha t less

restrictive altema tives. such as

voluntary standards. consumer

education or rebates. cannot accomplish

substantially the same objectives as

Itandards. (AHAM. No. 2198. at 12).

The Act is clear as to the criteria DOE

must consider and evalua te in

determining whether or not to grant a

State petition. In light of such clarity. the

Department disagrees with the

comments that petitioners will not know

what information to include in their

petitions.

The March 1988 proposal provided

examples of information and data that

would be helpful to DOE in its

consideration of a petition. The

Department believes those examples are

adequate guidance. Moreover. in view of

the criteria described above. DOE will

reject. with explanation. any petition

which does not contain sufficient

information. In such a case. the petition

may be resubmitted.

The CEC sta ted tha 1. since time will

be of the essence in the petition process.

DOE should establish regula tions for a discovery process allowing for written

interroga tories and requinng tha t all

data and quantitative sta tements in

petitions and comments be fully

documented. (CEe. No. 2201. at 11.)

Section 336(a)(1) of the Act includes

the petition process in a provision
 CAS-RM-78-110 COMMENT 13

6068 Federal Register I Vol. 54. No. 24 I TuesddY. Februa~ 7, 1989 I Rules and R~tions

requirinl opportunity for public

comment duri11l the rulemaking

procesliq. However. UDder section

336(a)(2). the "opportunity to question"

applies only to rulemaldngs conducted

under section 325 (standards) of the AcL

It appears that the CEC contemplates

other types of evidenlary procedures

which are appropriate for adjudicatory

types of heaMIL DOE does Dot believe

the petition process should be so

expanded.

In regard to documentation of data

and quantitative statements contamed

in petitions and comments. section 327

of the Act already requires that States

and interested parties provide

Itevidence" on which DOE must base its

determination. The Department believes

that those who will file petitions and

submit comments are aware that their

ability to succeed in such rulemaking

proceedings win be based on the

inlonnation contained in these

documents. As such. DOE expects that

data and other quantitative material will

be documented fully. As mentioned

previously. DOE will review thoroughly

each petition and comment for content

and completeness.

A.HAM. GA..\iJ\ and ARI commented

that wno case should DOE grant a

petition without holding a public

hearing. (AHAi\t No. 2197, at 12:

GAMA. No. 2196. at 6; and ARI. No.

2197. at 2.) AHAM stressed that at least

ODe mandatory public heering should be

held on each petition unless DOE

determined that H a petition is

insufficient on its face to warrant further

consideration." (AHAM.. No. 219B. at 1.2..)

As discussed above. section 336{a){1)

of the Act requires DOE to bold a

hearing and provide a comment period

for rulemakings pertaining to (section

327 of the Act) state petitioos. as well a8

for rulemakings conducted under

sections 323. 324. 325 and 328 of the Act.

Therefore. DOE haa concluded that it ia

unnecessary to include t.b.a as a

requirement-in today's rule.

ARl quesHoned whether the Federal

Register notice of a final rule grantiIlg or

denying a petition will contain the

actual text of DOS. determination. i\Rl

believes such text should be included

and available for public review. AR1

also stated that § 430.48 (request for

reconsideration) of the March 1988

proposal was inadequa tee ARl suggested

tha t this section require petitioners

requesting DOE reconsideration of a

denial to serve copies of such request on

interested persons. at least these who

commented on the petition. AR1 also

DOE to publish a Federal Register

notIce upon receipt of a request for

reconsideration, soJ.iciting comments..

data aDd iDformatiora. (ARL No. Z1fJ1, at .

3-4.)

SectioD 430.48 ofthe March 1988

.proposal and today'. rule atate that the

FederalResister natice will include lbe

realona and basis for a final rule srantiua or den)'iJig a petitiOD. M .uch.

the Federal KePler DOtice ia the actual .

text of DOE-, determination. AlIO, since

• denial of a petitioD will be reconsidered

only if it demonstrated the .:lema! wa. based on an error i.D law or fact. and

that evidence of the error it found ill the

record of the proceedi.ns. thil procesa is

not subject ta the pubUcnotification and

request for comment requirements of a

rulemaking proceeding. The Department·.

does have the flexibility. however. to

order a petitioner to serve copies of the

request for reconsideration. in a timely manner. on interested persons.

Finally. the NYSEO requested

clarification on the applicability of the

preemption provisions concerninl

products manufactured prior to the

effective date of FederaJ standards. The

NYSEO interprets the Act to provide

that such products remain subject to

pre-exisMg Itate standards. (NYSEO.

No. 2199. at 2-3.)

The Department agrees with the

NYSEO's understanding of the Act A

State standard would be preempted

upon the effective date of the applicable

Federal standard. However. the preexist.ing State standard would apply to

products manufactured prior to the

effective date of the Federal .tanda.rd..

c. Small Business Exemptions

Pursuant to se<:tion 325(q) of the Act.

DOE proposed. and today is adopting. a

new Subpart E that establishes

procedures by which manufacturers..

whose annual gross revenues for the

preceding 12·month period do not

exceed $8.000.000. may petition DOE for

temporary exemption from all or part of

an energy conservation standard for up

to 24 months from the date such

standard is effective.

In reference to this provision. i\Rl

urged DOE to make it clear that an

exemption may not exceed 24 months...

ARl also commented that the March

1988 proposal did not provide adequate

opportunity for public review and

comment on applicatioD.J for exemption.

i\Rl recommended that all materials

submitted by an applicant be available

for public review, that DOE publish a

Federal Register notice upon receipt of

each application. and that DOE be

explicit io prOViding opportunity for

public comment 00 such applications.

(ARl. No. 2197. at 4). .

The Department believes tha t the

language in both the discussion and rule

sections of the March 1988 proposal was

quite clear. On pap 7115 of the Fedtmll

Resister notice. DOE stated that such

exemptiODl are temporary and may be

gnmted for up to 24 months from the

date the applicable standard is effective.

On pase T124 of the same notice. under

I 430.57 "Dw-ation of Temporary

Exemption." DOE proposed: ••A

temporary exemption terminatf!s

accordiDI to ita awu terms but not later

than twenty-four months after the

effective date for which the exemption

i. aUoweeL.. Furthennore. DOE has

determined that DO additional

provisions are necessary for public

review of and. comment on applications

for exemption. ARI seeks a role

requiriDs all materials submitted to DOE

be publicly available. Section 430.53

pro\idel that all applications and

IUPPOrting documents u may" be made

available for public review. Some

documents. however. might not be made

available_ For example. should DOE

detennine that an entire support

document is exempt from public

discloaure pursuant to 10 CFR 1004.11.

the Department would not make such

document available for public review.

Ukewise. DOE would not make publicly

available an applicacon that was

determined to be incomplete and was

being returned. without further review.

to the applicant. DOE agrees with ARI

on the potential competitive effects of a

small business exemption. The

Department also is aware of and must

be coocerned with the potential

competitiveeff~sofuuonnation

contained in such applications. For this

reason. DOE will determin~ on a caseby-case basis.. which materials will be

made available for public review.

The Department agrees with ARI that

DOE should publish a Federal Register

notice with regard to any application for

exemption that DOE has received and

accepted for filing and tha t such notice

should solicit comments from interested

persona.. Today', rule reflects ARI's

recommendation.

d. CertIfication and Enforcement

. The certification procedures in the

March 1988 proposal were patterned

after the reporting requirements for

FTCs appliance labeling program and

trade association certification programs.

Generally, the comments DOE received

concerning certifica lion and

enforcement characterized these

proviSions of the March 1988 proposal

as equitable and minimally burdensome.

The comments included requests for

clarification 00 issues such as data

submission. record, maintenance.

definitio". e...,--'·

testing:
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54. No. 24 I Tuesday, February '1. 1989 I Rules and Regulations &OE9

revilionl primarily to the propoled manufacturer'. respoDlibility. A third

enforcement pro\ilions. party may submit the information only If

GAMA. WhirlpooL ARI. lEe. CEe and the manufacturer certifies compliance.

AHAM commented an DOE's proposed The Department alia does not agree

reporting requirements under t 430.62. with the. CEC an the necesaity to publish

Regarding third party reporting. lEe directories. particularly in light of the

queatio:1ed whether a trade association. availability and ule of trade assodation

IUch al.UL may submit a report on _ directories. and the rrc labeling

behalf of a manufacturer. (lEC, No. 2129. program. In regard to a need for the

at 2). ARI commented that it beHfI!\'es ..threat of periodic spat checks." nothing

that ilastatement an behalf of any. in the Act or in DOE's regulations

participant should satisfy the prevents the Department from

requirements of the compliance conducting such random checks.

ItatemeDt (ARL No. 2197. at 5). The CEC In commenting on the reporting

maintained that while a third party may requirement. of 1403.82(b). ARI urged

perfonn the reporting function. DOE to revise the reporting dates.

responsibility for accuracy and bringing them more in line with the

completenes8 remains with the effective dates ofstandards. In

manufacturer. (CEC, No. 2201 at 5). particular, ARl pointed Ot" that while

Section 430.62(e) of today's final rule the reporting date for all ~~entral air

remains unchanged-it permits a conditioners and heat pUI:lpS is t or

manufacturer to use a third party, IUch before July 1.1991 (six mon+..hs be ~ore

as a trade aS80ciation, to 8ubmit the Itandards are in effect for ,pUt sy'.ltem

inlonnation required under 1430.6%. central air conditioners an:i heat

However. ARl ia incorrect in assuming pumps), that date illS mOl;L'1s btftre

that this satisfies the requirements of the the effective date of standarc:s for lingle

compliance statement. A third party package central air conditie;n"rs. J\J"I

may not make any statements on behalf suggested that reporting dates be

of a participating manufacturer to changed to 30 days prior to the effectlve

substitute for the compliance statement. date of any atandard. (ARL No. 2197, at

The regulation merely permits the third 4). .

party to transmit the compliance The Department agrees with A,.'qI t!.at

statement to DOE. Therefore, the CEC i. the l8-month difference ia excessive.

COrTect that the manufacturer, alone. is Moreover, DOE wants to clarify that this

responsible for all of the information is not an annual reporting requirement.

submitted by a third party. U a The dates apecified in the March 1988

manufacturer elects to use a third party, propo!al represent initial. one-time only,

the compliance statement must include reporting requirements. In addition, to

thi~ and therefore, serves al notifica tion reduce the reporting burden on

to DOE that the manufacturer has manufacturers and third parties, DOE

authorized a third party to .ubmit such selected dates that coincide with ITC

infonnation. reporting deadlines. To simplify DOE's

The Department emphasizes that the reporting requirements. 1430.6Z(b) of

compliance statement need not be today'. rmal rule specifies that the

resubmitted with future certification initial (one-time only) reporting

reportl for new models unless the requirement for all existing covered

infomlation contained in the original products must be submitted no later

-compliance statement no longer is than the effective date of the standard

accurate. for each product.

The CEe atated that a meaningful For new models, introduced after a

certification and enforcement program standard bei:omes effective. the

should include a provision for DOE to certification report must be submitted to

"spot check" wholesale and retail DOE prior to or concurrent with any

outlets and for DOE to publish distribution of such model. This change.

directories to assist consumers in a8 reflected in today'. rule. also

determining the efficiency of a model addresses an issue raised by GA1v1A

and whether it meets the applicable concerning its certification directory

standard. The CEC also stressed that publica tion cycle.

DOE should accept certification data In submitting certification reports on

only from programs that conduct routine behalf of program participants, A.HA..\.i

testing for a Significant percentage of stated that it plans to submit its

basic appliance models available for certification directory yearly, with

aale each year and include procedures monthly supplements. 88 needed, to

for challenging data open to all reflect new models. {AHAlvt No. 2198,

participants in the program. (CEC No. af 5). GAMA explained that it too. will

2201. at 4). use its certification directory, which is

The Department rejects this point of published twice a year. However.

view on the basis of GEC's earlier GAMA argued that its publication

statement that testing is the schedule conflicts-with DOE's proposal

that information on new models be

submitted prior to the distribution of

IUch modell. C~\tA requested that

DOE allow manufacturers 30 days after

• Dew model i. introduced before

requiring the .ubmission of a

certification report, at which time

GAMA would submit to DOE a monthly

supplement to the G~\1A directory.

(GA.'dA. No. 2196. at 3).

The Department believes that its

clarification and simplification of the

reporting requirements will reduce the

'reporting burden on manufacturers and

third parties. In light of the lead-time

necessary to introduce a new model.

DOE believes there is ample time for a

manufacturer or third party to submit

the necessary infonnation prior to or at

the time a new model is introduced.

Therefore, DOE rejects GAlt.1A·s

suggestion for a 3G-day waiting period.

IEC questioned the meaning of the

statement under 1 430.62(c) that "any

change to a basic model which affects

energy consumption may constitute the

addition of a new basic model subject to

the requirements of 1430.61." (lEe, No.

2195, at 2). If a manufacturer makes any

. adjustments or changes to a basic model

that result in a different ra ting. the

Department will consider tha t to be a

new basic model.

lEe also inquired as to how an indoor

coil manufacturer's basic model would

qualify as an "other than tested model"

pursuant to t 430.63(b) of the March

1988 proposal. (IEC. No. 2195. at 2). In

prescribing test procedures for central

air conditioners, including hea t pumps.

DOE recognized the extreme burden and

cost associated with testing these

products. Therefore. the test procedure

requires testing only of the outdoor unit

and indoor coil that represent a

manufacturer's highest sales

combination. As provided by

I 430.23(m) of DOE regulations. all other

combinations marketed by a

manufacturer, or coil onlv

manufacturers. may be rated on the

basis of computer model.

AHAM. Whirlpool and GAMA also

commented on the March 1988

proposal's requirement under § 430.62(c)

tha t discontinued models shall be

reported in the next annual report.

GAMA viewed this requirement as

unnecessary since in GA\.i.t\'s

certification program discontinued

models "simply don't appear in the next

directory." (GA1v1A. No. 2196. at 4).

AHAM and Whirlpool also

recommended that DOE delete this

requirement lince a model may be

discontinued in production. but remain

in distribution for several years

. afterward. Therefore. since there is no
 CAS-RM-78-110 COMMENT 13

8010 Federal Register! Vol. 54. No. 24 I Tuesday. Febroary 7. 1989 '-Rules and Re~ations

way to determine when a ..lDodel is

discontinued in distributicm..A.HA,..\d and . Whirlpool Itressed that it is important

that once a modeJ is certified. it remaiDa

certified so 8S to avoid the perceptioD of

a noncompliant product (AHAM. No.

2198. at 4-5 and Whirlpool No. 2194. at

2). AHAM recommended that it could

conduct an aJUlual review and provide

DOE a list of models DO lonser in itl

directory. (AHAM. No. 2198. at 5).

The Department accepts the realonin.

offered by these comments. Therefore,

today"s final rule require.s

manufacturer or third party to notify

DOE. in writing. of any model no longer

being manufactured. Such notification

may be a letter or copy of a previous

directory. highlighted to indicate the

discontinued model(s).

Finally. ARl interpreted and DOE

agrees that computer records are

acceptable for meeting the requirement

under t 430.62(d) that records be

maintained for two years from the date

production of a particularmodel has

ceased. (ARI. No. 2197, at 5).

The majority of the comments

submitted to DOE addressed

enforcement-related issues, and are

discussed below.

The Hydronica Institute offered

comments on enforcement testing in

which it described anomalous results of

applying the proposed sampling

provisions. The Hydronica Institute

illustrated an application of the

proposed provisions for two groups.

'each with four test results. It arsued that

the first phase of enforcement testing

should have a fi ve pei"Cent tolerance al

does tM second pbase and asserts that

absent such a to!erancL' a sample of

boilers with a mtHL1 79.1/\.F1JE would

pass. while a sarT.p1 e wi~.h a mean of

79.75 AFUE wou1c.~ r,tol {liydronics

Institute. Testimor. V;.

The first group il', the H.vtironics

Institute's example cl'nsisL of four

boiler test results.. a.\! cf ¥/h. ch are below

the standard level 01. 80 pert ent AFUE

and demonstrate a st:,aU stB ndard

devia tion. The second group of four test

results also are below the standard level

of 80 percent AFUE but demonstrate a

relatively large standard deviation

compared to the first group, Since all the

test results are below the standard level.

the sample means are below the

standard level. i.e.. 79.iS AFUE for the

first group and 79.1 for the second group.

The Hydronics Institute shows that the -

group with a mean of 79.75 AFUE and a

small standard deviation would be

determined in noncompliance in step 6

of the proposed provisionst whereas the

group with the lower AFUE rating (i9.l),

but larger standard deviation group

would be judged in compliance in a.tep 7.

The HydroDica Institute coDCluded that ..th. procedure lavon diversent telt

resulta aD the first telt sample.."

Accord.in&lY, Hydronica Inatitute asb

that the procedure be checked for

pOllible error. The Department haa reviewed the

HydroDic Institute·s commentl and

condudel that the· proposed proviaioDi

are appropriate. The perceived

inconsIStency i, a result of the Dature of

Itatistical inferences. rather than an

error in the equation&. In the example

providecL the procedure does. in fact.

favor diversent telt resultl at that

particular point in the proces.. i.... eteps

8 and 7.1n other worda, the population

represented by the aecond group, with

itl larser degree of uncertainty., i.e.. larger ltandard deviation. il.iven a

better probability of having a true mean

at or above the atandard level than that

of the population represented by the

first group. In the examples, the two

probabilities happen to be above and

below the level cholen al the

"reasonable risk" threshold. thUi

explaining the opposing determinations

of compliance and non-compliance.

Since the issue raised by the Hydronics

Institute is complex. DOE believes it is

appropriate to discuss the concept of

"reasonable risk" in today'I notice. In

general tenna. the two types of risk are:

"Manufacturer risk. tt which is the

probability. based on sample data. of

being. in fact. in compliance when the

sample data indicate a determination of

noncompliance: and "government risk.. tt

which is the probability. bued on

sample data. of being. in fact. in

noncompliance.wben the sample data

indicate a determination of compliance..

As with all statistical matters. the

absolute ia never known. (A "reversal"

is a useful way to express the adverse

impacts of these risks. For example.. at

steps 6 and 7, the proposed procedures

assign a 2.5 percent probability of

reversal as the maximum allowed.)

Applying these terma to the Hydronics

Institute exa.mple. the population

represented by the first group haa less

than a 2.5 percent chance of a reversal..

i.e.. being. in fact. in compliance when

the sample data indicates

noncompliance. Similarly. the

population represented by the second

group bas leu than a 2.5 percent chance

of a reversaL Le~ being in

noncompliance when the sample data

indicate. compliance.

The HydrOluca Institute attributes the

problem to the five percent tolerance

"given" in these procedures. Rather. the

toleran.ce allowed ia in the form of upper

and lower confidence l.imits. In step 11.

the five percent tolerance mentioned is

the limit of toie'rance- aYowed by the

confidence limits. and the tenn "0.05

(EPSr' illstep 1 II Dot. tolerance. but

the malbematical expression of the

difference between a .tandard and 95

percent of the etandarel.

Whirlpool GAMA. AHAM and ARl

pointed out that while the preamble to

the March 1988 proposal stated that

DOE', receipt of "credible and

substantiated" informa tion triggers DO~. action. to determine complif'nce

of a certified product. the role itseIf is

vague. (Whirlpool. No. 2194. at 2:

CAMA. No. 2198. at 4: AHAM. f'10. %198.

at 8: and ARL No. 2197. at 5). Whirlpool

alia sugsested that DOE-discourage

'-nuisance'· challenges by requiring test

data to support any challenge of energy

performance. {Whirlpool. No. 2194. at 6}.

The CEC also commented that DOE

should establish a petition process for

luch challenges and complaints from

manufacturers and consumers, (CEC.

No. 2201. at 1).

The Department believes that'

143O.70(a)(1). aSltated in the March

1988 propolal and in today's final rule.

is clear-the Department "may" conduct

testing of a particular product upon

receipt of information concerning the

energy perlonnance of that product. The

Department will evaluate thoroughly

any complaint received. and will issue a

test notice if DOE determines tha t such

action is warranted. DOE is not

requiring submission of test da ta since.

in several instances.. such data would be

unnecessary. For example. in the case of

prescriptive standards, test data would

be inappropriate in cases concemins

pilot lights in certain appliances.

Furthermore, compliance wi tb certain

performance standards can be

determined by reviewing design

information. Determination of

noncompliance will be made in

accordance With the enforcement

pI'OYisions found in Appendix B to

Subpart F. Therefo~ the Depart.rnent

Yeill determine what infurmahan is

appropriate on a case...by-case basis,

Furthermore, nothing in the Act or in

DOE's regulations prohibits DOE from req~ the subm.ission of additional

information.. including test data.

In reference to CEC's suggestion.. the

Department believes that establishL'l8

procedures and criteria for a separate

petition process would be restrictive

and inappropriate. Since DOE has the

flexibility to require the submission of

additional or supporting infonnation.

DOE sees no purpose in req uiring a

prescribed format or speCIfic procedures

for submItting such information.

Furthermore. since S11ch 8 submittal

does rwt serve 8S a request for

rulemaking or- similM action. e.g_
 CAS-RM-78-110 COMMENT 13

Federal Register I VoL 54, No. 24 I Tuesday. February '1, 1989 I Rules and Regulations 8071

( request for waiver. DOE .... DO

juatificatiOll forrequiriDI a petitioa

proc.... Section 430.70(8)(1) of toda,·. rule does iDcJude the requirement that

informatioa .ubmitted to DOE be ill

writing.· .

CAMA and ARJ ursed DOE to adopt

the term "ba.ic moder'matead of

"model or balic model" .1 included in

II 430.7O(a)(1)(ili) and 430.71(1) of the

March 1988 proposaL (GAMA. No. 2196.

It 4 and ARL No. %191. at 6). In addition.

lEe Itated thlt the proposal did not

define the term "ba.ic modeL"

The Department agrees with CAMA

and ARJ that use of both terms could

cause confusion. Therefore. today'. fmal

rule Ipecifies only "basicmodel:' In

response to lEe'l comment.lince DOE

il not revising the definition of "basic

model" as it 8 ppean in I 43Q.2 Tille 10

of the Code of Federal Regulations. the

term is not included in today'. fmal rule.

GA...tA and ARJ also questioned the

rationale. in I 430.70{a)(1)(W). that

provides for testing altemative basic

models when a lelected basic model is

unavailable for testing.. These comments

maintained L'ta t there is no justificstion

for testing any model other than the

basic model alleged to be in

noncompliance. (ARL No. 2197. at 6 and

GAMA.. No. 2196. 8 t 4).

The Department believes there may.

indeed, be occasions when testing an

ahema tive basic model is necessary.

For example. if a particular condensing

unit is combined with several dIfferent

evaporslion coils. each combina tion

could be 8 different basic modeL If one

combina tion is not svailable. i.e. a

particular coil is not available. an

al tema tive coil could be selected for

testing. representing an alternative basic

model.

Finally. tEC requested clarificstion of

"the method of selecting the test

sample" under § 430.70ls)(1){iii). nEC,

No. 2195. at 2}. Section 430.70(8 Hi) states

that DOE will offer 8 manufacturer the

opportunity to verify compliance. and

today'! ruJe specifies that the

manufacturer may meet with DOE. As

a ppropria te, in correspondence andIor

meetings. DOE will dlSCUSS the method

of selecting test uni ts on 8 case-by-case

basis.

Seversl comments lought clarification

concerning the payment of testing costs.

(GMtA.. No. 2196- at ARt No. %197. at

5; lEe. No. 2195. at 2-3; and CEC. at 7).

The Department is to pay for all

enforcement testing perfonned under

steps 1-11 of Appendix B to Subpart F of

Part 430. The rnanuIaetarer bears the

cost of additional testing. steps A-C of

Appendix B-manuIacturer-option

testing. Such costs are to be paid

directly to tire testing facility. In th.e case

of optIan ....!be Dlaaur.etarerII ....pouible for contractiDI with the

testinl 'acin.,.. .CAMA IUllested that DOE reqme aD

Initial lhipment of four lIDita out of the

test aample of 20 UDit•• (CAMA. No.

21se. It 5). To protect against any

modification or substitution of units.

CAMA and ARI recommended that DOE

identify.. mark aDd packaae each unit

selected with • tamper-proof leal. ARI . also sussested that the independent lab

conductinl the teltiDIJ could also inspect

each unit for tampering. (CA.t.1A. No.

219&. It 5 and ARI. No. %191. at 8J.

The Department believes that IUch a

requirement would be an unnecessary -

burden in I procesl DOE had made

every effort to be simple and

expeditious. TheTefore. an units. up to

20. speCified in 8 test notice. are to be

.hipped according to instructions

contained in the notice. DOE will

detennine the number of units required

after review of infonnation described in

I 430.70(a}(l)(i). A "reasonable" number

of units, no less than four and no more

than 20. will be the amount DOE

determines, upon review of the pertinent

information. is appropriate for

compliance testing. NE.~ stated that the samplingmethod required under § 430.70 is

ina ppropria te for fluorescen t lamp

ballasts since the practice in that

industry is to design and produce every

ballast to meet perfonnance standards.

Therefore, NE,;\1A proposed that all

ballasts be designed to meet the ballast

efficiency faC10r prescribed in the 1988

A.'1lendments and be exempt from the

sampling procedures in the March 1988

proposal. (NafA. No. 2.202. at 4).

The Department i! not persuaded by

!\'Th1A's argument and believes that

NEMA has misunderstood the testing

requirements. SectIon 430.iO( a}(3} of the

March .,gsa propoF;al states tha~ DOE's

determination of a basic model's

complidnce will be based on testing

conducted according to the sla tistical

sampling procedures in Ap~ndix B of

the propcrs.al and in the testing

procedures in § 430.23 of Ti tIe 10 Code

of Federal Regula tions. Since these

procedures minlmize testing and

assocla red costs. e.g., § 430.23 peM'!11ts

testing of as few as two units for each

basic model. today's final role provides

no exemptions or exceptions to the

sampling requirements. The Department

emphasizes that the sampling

procedures minimize the burden on

manufacturers since there is no

requirement to test each unit of a ba!ic

model to demonstrate that the basic

model is in compliance. The regula tion!

take into account the product variability

that OCCtIrS in the manufacturing process

and do BOt pemalize tbe manufactD.rer

for the aDomalous unit.

FInally. while today', final rule does

Dot include 18mplinl provisions under

I 430.%3 for fluorescent lamp ballasts.

DOE wiD propole sucb provisions in an

upcoming test procedure rulemaking.

ARJ also commented on enforcement

aampllna. and contended that if. for

example. 8 central air conditioner or

heat pump basic model is found to be

noncompliant. luch noncompliance

determination applies only to the

condenlor-evaporator combination

found in that unit. and not to other basic

models using the lame condensing unit.

(ARt No. 2197, at 1).

While ARJ'. assertion may be valid in

some ;nstances. it may not be so in

others. The Department ,,:ill make such

dtterm:nations on a C8se-by-case basis.

The t.farch 1988 proposal specified

:liat 010£ may subdivide a batch

"llUizing ~uch criteria as date of

1..10 nufacture, component supplier.

loctltion cf manufacturing facility, or otht\r critt;;a to differentiate one unit

from another. Section 4JO.70(a)(4)(1).

ARl ~naintcined that date and location

are al\equa te for identi!'ying uni ls and

therefu!'p DOE should delete the

language H or other criteria." (ARlo No.

2197. at 7).

The Department does not view that

identification criteria as restrictive or

burdensome. Each manufacturer must

identify each unit using criteria set forth

in the te5t notice, such as da te and

loca tion of manufacture. A ca tegory for

"other criteria·' may indeed be helpful to

a manufacturer and DOE in

differentiating units. As discussed

above. in correspondence and/or

meetings. DOE and the manufact~rer

will detennine if other criteria would be

helpful in differentiating u..."jts.

In a ~par3te reference to da!e of

manufacture. the CEC 8NnJed tho t the

current FTC labels will be insufflclp.nt

for consumers to determine whether 6n

appliance complies with the applicdble

Fedpral standard. The CEC maintdined

tha t without a label requiring date of

manufacture. it will be impossible to

know whether the unit is even required

to meet 8 particular standard. DOE

should require manufacturers to display

prominently a label on every ce~ified

model giving the month and year of

manufacture and ststing tha t the ur:i t

has been certified to be in compliance

with the applicable Federal standard.

(eEC, No. 2201, at 5-6).

The Department recognizes the

situa lion described by CEC and a2'Tees

tha t for a period of time followIng-the

effective date of any standard.

consumers will make p''1rchase decisions
 CAS-RM-78-110 COMMENT 13

6012 Federal Register I Vol. 54. No. 24 I Tuesday. February 7. 1989 I Rules and Regulations

without the certainty a model complies

with the standard. However. while

agreeins that luch information might be

helpfuL DOE believes that such benefit

does not provide an adequate basis for

requiring manufacturers to displaY.8D

additional label on each unit. This is

true because, as discussed above. upon

notification by DOE. a manufacturer is

required to ,ubmit such identifying

information to DOE as part of

establishing compliance prior to entry of

the model into distribution.

ARI and lEe recommended that DOE

provide for units that fail compliance

testing due to defective components or

component failure. (ARI. Testimony and

lEe. No. 2195. at 2).

The Department agrees that if a unit is

inoperative. it cannot be tested.

Therefore. today's final rule provides for

the replacement or repair of defective

components or units. For the purposes of

today's rule. DOE considers a defect as

that which prevents the product from

being operated according to the

manufacturer's intent. design and

directions.

AHAM maintained that DOE should

delete § 430.70{a)(6)(iv). requiring a

manufacturer to cease distribution of a

model being tested at the manufacturer's

option. (AHAM. No. 2198. at 7-9).

AHAM argued that DOE has no

authority for such a regulation other

than seeking 8 court injunction.

would aa:ept such a provision if it

served simply to suggest cessation of

distribution based on indications of

noncompliance and to notify the,

manufacturer that civil penaltie 5 or an injunction may be sought. (AHAM. Nc.

2198. at 7-10).

In addition. GA1i.A stressed ti.a1

cessation of distribution should b,~

required only if non-compliance i~

determined upon completion of all tl'sts

conducted at the manufacturer's ortion.

To require cessation of distribution

before such time would effectively

preclude the additional testing provi.!ed

under' 43O.70(a)(6) and the requirem:nt

430.71(a)(2) would likely halt sales

damage a model's reputation.

(GA...\1A.. No. 2196. at 5).

,A.RI emphasized that. upon receipt of

a manufacturer's request for optional

DOE should conduct prompt

according to prescribed

ut,;(:1 U1Ult;;..,;,. (ARt No. 2197. at 7-8).

First. DOE rejects AHAM's argument

concerning DOE's authority to require

cessation of distribution. Section 325(0)

the i\ct state~ that "any new or

amended • .. • standard • • • may

include any requirement which the

Secretary determines is necessary to

assure that each covered product • • "

meets the required minunum level of

eneJ1Y efficiency • • • specified in such

ltandard." Furthermore. section 328 of

the Act authorize. the Department to

issue such rules u it deems necessary to

carry out the pro\;lions of the Act.

In addition. while DOE accepts

GAMA's observations conceming the

potential impacts of cessation of

distribution. neither GAMA nor AHAM

have been persuasive in arguing why

distribution of a model, determined

noncompliant in accordance with

I 430.70. should be allowed to continue.

Finally. DOE agrees that a

manufacturer'. optional "testing should

be conducted with great balte since a

detennination of compliance will result

in DOE'. issuance of a notice allowing

resumption of distribution. However, as

discussed earlier. such manufacturer's

optional~sting~doneatan

independent testing laboratory

contracted for by the manufacturer, not

DOE. Therefore. DOE is not prescribing

deadlines for work performed under

such contracts.

There was some confusion about the

requirement. under I 430.71(8)(2). to give

written notice of a determination of

compliance.

AHAM stated that this requirement is

unclear and inquired about the meaning

of "notifying all persons whom the

manufacturer has distributed units of

the basic model manufactured since the

date of the last determination of

compliance." AHA..\i asked if DOE is

referring to initial compliance with the

standard. the effective date of the

standard. or does the requirement

presume that a manufacturer was. at

some time. in compliance? AHA..\i also

suggested that DOE revise the

requirement so that notification is

limited to those persons who received

noncomplying products. (A.H..A....\i., No.

2198. at 7).

The CEC ar~.led that manufacturers

should be required to notify dealers.

distributors and consumers and that

~onsumers should be entitled to receive.

it manufacturer expense. replacement

llnits that comply \'rith the standard,

(CEC. No. 2201, at 7-8).

ARI stressed tha t cessa tion of

distribution applies only to unsold units

and future production and that unless it

can be shown that a manufacturer

deliberately misrepresented the rating.

manufacturers should not be required to

replace or retrofit units alreadv

purchased since a noncompliant model

would not pose a health or safety risk.

Finally. IEe requested clarifica tion of

the term "distributed to" as used in

§ 430.71(a)(2) since § 430.71(a)(4) permits

a manufacturer to modify a

noncompliant model and bring it into

compliance as long as records prove

that the modifications were made to all

units prior to distribution in commerce.

(lEe. No. 2195. at 3j.

With respect to ~srequest for

clarity to I 43O.71(a)(2). DOE finds that

the notification requirement could apply

in any of the instances AI-'.A..'1 cited:

that ii, the requirement applies to any

determination of noncompliance.

whether it involves a new bash: modal

or a basic model that pre'\iously was

found to be in compliance. In addition.

while the Department rejects AHA..\A·s

luggestion to limit the re:ipients of

notification fo those who received

noncomplyins units. the test notice will

specify how the batch sample will be

selected. If DOE has reason to believe

that there are factors causing

noncompliance. e.g.• use of compressors

from a new supplier. DOE will consider

such information in making a selection

for a batch sample. If DOE determines

that such a factor exists and its affects

the model's efficiency, those units will

be determined to be a new basic model

and notice is to be limited to those

persons to whom the applicable basic

model was distributed.

As to whom should receive written

notification. a manufacturer is required

to notify all parties to whom the

manufacturer has distributed the basic

model for resale. The extent of such

notification may vary from manufacturer

to manufacturer. depending on each

firm's marketing and distribution

methods. The Department disagrees

with the CEe that manufacturers should

be required to notify consumers. Such a

task would be an enormous. at best..

incomplete. effort. ~lanufacturers do

not. as a rule. have records iden tifying

individual purchasers and the extent

and accuracy of such recordkeeping

varies greatly among department stores.

discount stores and ca talog t~sinesses.

Fu.rL~ermore. the Department beLeves it

is inappropriate to prescnbe. through

regulation. that manufacturers provide

replacement uni ts for consumers.

Section of the Act provides

that "any may commence a civil

action ma:1ufacturer 0::-

is to be in ,nn.I~",n",," • .... Sirlce the includes

such a provislon for citizen suits and

does not specify or suggest that the

lon~.,.",rT'\O'''' prescribe ather remedies for

Cluzenl5. DOE believes such relief may

be addressed in the courts.

The above,

of the term "distributed to" is responsive

to IEC's inquiry concerning notification

requirements. However. it appears that

lEC has misinterpreted the provisions of

§ \Vhile the regulation

permits a manufacturer to modify a
 CAS-RM-78-110 COMMENT 13

. Federal Register I Vol. 54, No. 24 I Tuesday, February 7, 1989 I Rules and Regulations 6073

basic madelia that it complies with the

Itandard. such modification results ill a

Dew balic model which must be

certified pUa...uant to I 430.62 of today',

rule. Also, a manufacturer', records

mUlt .how that the modifications were

made to all units of the new basic model

prior to distributing these units, i.e.,

prior to disbibuting these unita to

resellen of that product. Therefore,

I 430.71 (a)(4) does not address

distribution of the noncompliant basic

model.

The CEC urged DOE to specify in

today's rule L'tat the tem "each

viola tion." as included in section 333(a)

of the Act, means each separate unit of

a noncomplying basic model. The

Department concurs with ~EC's

interpretation. However. DOE believes

the language of the Act is clear and

'requires no further explanation.

The CEC also recommended that DOE

strengthen § 430.65 (Exports) to require

prominent displdy of the prescribed

stamp or label identifying a product as

intended for export. Also. DOE should

specify. who is liable for penalties

should an export unit be marketed in the

U.S. (CEC. No. 2201. at 8-9).

The Department believes tha t the

export labeling requirement of the Act

(section 330) is sufficient. Upon finding

that a product manufactured for export

has been marketed in the U.S., the

Department will determine at which

point in the marketing chain the

transaction oCcun"'ed and will take

appropriate action.

Finally, AHAlYl submitted a list of

technical revisions including spelling

and terr:1inology corrections. to

Appendix B of the March 1988 proposal.

(AH.AM, No. 2'198, at 6). DOE has

included most of these revisions in

today's notice. However, it appears that

AHAM has misunderstood steps lOa

through lIb. Steps lOa and l1a address

energy consumption standards: steps

lob and lIb address energy efficiency

standards. AH.AM's suggested revisions

would. in fact. result in computations

only for energy consumption standards,

Le.. steps lOa and lob would be

identical. 8S would steps l1a and lIb.

ffi. Environmental, Regulatory Impact.

Regula~ory Flexibility, Paperwork

Reduction Act, Takings Assessment, and

Federali5m Assessment Revie\vs

Q. Environmental RevieJv

Pursuant to section 7(c)(2) of the

Federal Energy Administra tion Act of

1974, a copy of the March 1988 proposal

was submitted to the Administrator of

the Environmental Protection Agency

(EPi\) on April 22, 1988. for his

comments concerning the impact of this

. propolal on the quality of the

eavironmenL The EPA bad no COIDIDeDtI

on the Department'. proposaL

The Department is adoptiDs

procedures implementins the Act',

provisions for (1) certification and

enforcement: (2) ,mall business

exemptions: and (3) petitions concerning

exemption of Slate atandards.

The Department believe. the rlrSt

element clearly is not environmentally

aignificant aince it will not result in Iny

environmental impacts.

.For Ipplications aeeking a temporary

Imall business exemption. aa well 8S for

aU petitions aeeking exemption from

Federalstandarda or supersession ofState standards. DOE will conduct an

appropriate National Environmentat

Policy Act (NEPAl review on a case-bycase basis.

The Department believes that today's

action is not a ma jor Federal action

significantly affecting the quality of the

human environment within the meaning

of the Na tional Environmental Policy

Act of 1959, and tha t neither an

Environmentallmpact Statement nor an

Environmental Assessment is required.

b. Regulatory Impact Revie'A'

DOE has concluded tha t the rule is not

a "major rule" for purposes of Executive

Order 12291 because it will not result in:-

(1) An annual effect on the economy of

5100 million or more: (2) a major

increase in costs or pr!ces for

consumers. individual industries.

Federal, Sta te, or local government

agencies, or geographic government

agencies, or geogra phic regions: or (3)

significant adverse efIects on

competition, employment, investment

productivity, innova tion. or on the

ability of United States-based

enterprises to compete with foreignbased enterprises in domestic or export

markets. This conclusion is based on

several factors. First. while the '

imposition of conservation standards

will result in an increase in the cost of

certain appliances, this increase will be

offset by a reduction in energy costs.

Second. the costs of complying with the

testing requirements of the rule are not

significant For example. there will be no

additional testing costs for labeled

products. i.e.. refrigera tors. refrigera torfreezers. freezers, water heaters,

furnaces. central air conditioners and

room air conditioners. since DOE is

accepting the applicable testing

requirements of the Federal Trade

Commission. Likewise, there will be no

testing costs for those products tha t

hove design standards, Le., clothes

washers. dishwashers. and clothes

dryers. With regard to pool heaters

while not a labeled product or covered

by a trade aSlociation certification

program. It i,likely thlt testin.already

hal been accomplished because of

Califomia'. etandards for this product.

Finally, any impacts resulting from a

conservation standard for television sets

will be addressed in 8 future rulemaking

for this product. Therefore. in

accordance with section 3(c)(3) of the

Executive Order. which applies to rules

other than lDajor rules. today'. final rule

was approved by OMB without a

regulatory impact anal}'sis.

c. Small Entity Impact Revielv

In light of L'le foregoing. the

Depertment has determined and hereby

certifies pursuant to section 605(b} of the

Regulatory Flr~xibility Act that today's

action will net have =i "significant

economic imp.~ct on ", substantial

number of smc'P enltt:~s:· To minimize

potential impa ~ts on s.nall businesses

which are appi .ance ln~nuracturers.

DOE is, in fact. a dopting rules that

provide relief, ill ,he form of temporary

exemptions, frcln ·.he ap~Jlicable

conservaUon stanc.'ards.

In addition. as ml~ntion:~d above. the

Department will cor~sider. as

appropriate, any sigr.ificallt economic

impact on small enlitit:~ in deciding

petitio~s to preserve or supersede State

standards under section 327(d) of the

Act.

d. Paperwork Redl.1ction Act Review

This final rulemaking includes

information collections tha t were

previously cleared by the Department

under o~m Control !\umber 1910-1400.

expiring June 3D, 1989.

e. Takings Assessment Review

Executive Order 12630 (53 FR 8859.

March 18. 1988) directs that in

proposing a regula tion. an agency

conducts a "takings" review. Such 8

re\iew is intended to assist agencies in

avoiding unnecessary takings and help

such agencies account for those takings

tha t are necessi ta ted bv 5ta tutOT'\!

mandate. .. ..

For purposes of the Order:

"Policies that have imphcations"

refer! to Federal regulations. proposed

Federal regulations. proposed Federal

legislation. comments on proposed Federal

legIslation. or other FedEral policy statements

that if implemented or enacted. could effect a

taking. such 8S ruJes and regulations that

propose or implement licenSIng, pemutting. or

other conditIon reqUIrements or limitatlons

on private property use. or that reqUIre

dedications or exactions from ov.nen; of

private property.

It appears that there are three parts

the appliance standards regulatory
 CAS-RM-78-110 COMMENT 13

8074 Federal Register I Vol. 54. No, 24 I Tuesday. Febnaarv " 1989 I Rules and Regulations

p"'Fam that should be reviewed for

"t.aki.ass implications." These are testing

aDd certification requirements. the

imp.ell of standard levell. and possible

DOE teltiDI of productl for validation.

With resard to the first part. namely.

testing and certification. the DepartmeDt

believes that such a requirement.

implementing a lon8-established

statutory mandate in a manner

calculated to minimize adverse

economic impacts does not constitute a htakiJ18" of private property, Executive

Order 12630 applies to those regulatory

actions which are a substitute for the

exercise of 80vemmental eminent

domain power. This applies to situations

where regulations exact a transfer of

tille. possession. or beneficial use of

private property without compensation.

The regulations under consideration are

simply an exercise of police power and

do not exact lu.ch a transfer of private

property.

Similarly, the Department's possible

validation testing dou not constitute a Ntaking.It wit.hin the limitation described

above.

The Depcirtment believes that the fact

that while an energy conservation

standard may limit some manufacturers

in the range of appliance efficiencies

that they can produce. such narrowing

of the energy efficiency range does not

conltitute- a "taking" in the sense described above. Furthermore. this

rulemaki.ng simply recitea the standards

explicitly mandated by the Act.

In short. in none of the three parts of

the appliance standards. program does

the Department believe that the

provisions of £.0. 1Z630 pertain.

f Federalism Assessment Review

Exe<:utive Order 12612 (52 FR 41685.

October JO. 1987) require'S that

regulations or rolea be reviewed far any

substantial direct effects on States. on

the relationship between the National

Government and the Statel. or on the _

distribution of power and

responsibilities among various levels of

govemment If there are sufficient .

substantial direct effects, then Executive

Order 12612 requires preparation of a

federalism assessment to be used in all

decisions involved in promulgating and

implementing a regulation or a rule.

DOE has identified a substantial

direct effect that standards have on

State governments. It initially preempts

inconsistent State regulations. However,

DOE has concluded that t"le initially

preemptive effect is not sufficient to

warrant preparation of a federalism

assessment for two reasons. First DOE

does not have discretion under the Act

avoid promulgating a preemptive

regula tion because of a policy

preference-for State repJatian as a

leneral matter. Second. the Act provides

for sublequeDt State petitiona for

exemption which aeceuarily meaD' that

the determination aa to whether a State

law prevails mult be made oa • cae..

by-case basis using criteria set forth in

the Act. When DOE receives such a

petition. it win be appropriate to

consider preparint a federalism

auessment consistent with the criteria

in the Act,

&- Regulatory Flexibility Review

The Regulatory Flexibility Act of 1980

(Pub, L 96-354) requires an assessment

of the impact of proposed regulations an

sman businesses. Small businesses are

defmed a. those firma within an

industry that are privately owned and

less dominant in the market.

In light of the foregoing, the

Department hal determined and hereby

certifies pursuant to section 605(b) of the

Regulatory Flexibility ·Aet that today'.

action will not have a "significant

economic impact on a substantial

number of small entities:' To minimize

potential impacts on small businesses

which are appliance manufacturers,

DOE is. in fact, adopting rules that pro,,-e

relief.. in the form of temporary

exemptiQIlI, from the appliance

conservation standards.

In addition. the Department will

consider. as appropriate. any economic

impact on small entities in deciding

petitions to preserve or supersede State

star.darda under aec.tion 327{d} of the

Act.

lr' consldera tion of the foregoing, Part

430 ,r Chapter IT of Title 10. Code of

Fedf. ~l R&\~ationa is amended. as set

forth b\~low

lsllL in 'h arhingtan. DC. Janu.a.ry 2.4.

1989.

Dr. Jolu: l,l... Sera

ASSilSUZl. '~3ecJ'Y,'~ 'ry, Ccnservation and

RenewaL ·/e.l:;n~ y.

Usta of ubject, in 10 CFR Part 430

Administrative. practice and

procedure, Enersy conservation.

Household appliances.

PART 430-£NERCiY CONSERVATION

PROGRAM FOR CONSUMER

PRODUCTS

1. The authority citation for Part 430

revised to read as follows:

Authority; Energy Policy and Conservation

Act. Title ill. Part B. as amended by Na tional

Energy Caruervation Policy Act Titi~ IV, Part

2... by the National Applian~ Energy

Conservation Act and bv National

Appliance Ene-rgy Cons8-n,'8tWB Ame1ld.ments

af 1988 (4.2 U.s..c. 62Ql-63(9).

Z. Section 43Q..1 is re,-ised to read as

follows:

faa..1 .......... acope.

Thil part eltablishes the regulations

for the implementation of Part B of Title

m(42.U.s.c. 8291-6309) of the EnenJY

Policy and Conservation Act (Pub. L. 94-

183). as amended by ~b- 1. 94-385. Pub,

L 1OG-12. and Pub. 1-'100-357, which .

establlshee an energy conservation

program for cor&Sumer products other

than automobiles.

3. Section 430.% ia amended by

revislnS the definition of ·'Act'·,

removing the definitions of

uAdmini!trator" and "Energy efficienc)-

standard", inserting the word "energy"

in place oi the last five words in the·

definition for "pack3ged terminal air

conditioner," and adding the folloy.;ng

definitions in alphabetical order:

t 430.2 Definttion&.

•

"Act" means the Energy Policy and'

Conservation Act (Pub. L. 94-163), as

amended by the National Ene~

Conservation Policy Act {Pub. 1.. 95-619}

and by the National Appliance Energy

Conservation Act (Pub. L 100-12).

"Annual fuel utilization efficiency"

means the efficiency descriptor fur

furnaces and boilers. determined using

test procedures prescribed under section

323 and based on the assumption that

aU-

(a) \Veatherized WanD. air furnaces or

boilers are located aut-of-doors;

(b) Wann air furnaces which are not

weatherized are located indoars and all

combustion and ventilation ciir is

admitted through grill or ducts from the

outdoo:"S and does not corn.municate

with air in the conditionpd ~pdce;

(c) Boilers which are ::(:l wed therized

are located within the nee lcd space.

*

"Ballast efficacy factfl -' ',:ins Ule

relative light output dl\' H ; ,; b'r f nt!

power of a flUOl~.:H "'L~ It'1l':lt)

ballast. as meaSllreO 'JI1~ t -:, '-;'; t

conchtions specwe-ci Hl A .... ; SrandetrU

C82.2-1984.

"Batch" means a col:~L~ ..Ii- ll[

production units of a basit;. model from

which a batch sample is st.:lected.

"Batch sample" means the conec~ion

of units of the same basic mouel from

which test units are selected.

"Batch sample SIze" means the

number of units in a batch sample.

"Batch size" means the number of

units in a batch.
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54. No. 24 I Tuesday, February '1, 1989 I Rules and Regulations 6075

"Pool heater" means an appliance

designed for heating nonpotable water

contained at atmospheric pressure.

including heating water in swimming

pools, spas. hot tubs and similar

applications.

"Packaged terminal sir conditioner"

means· • • by builder's choice of

energy.

"Packaged terminal heat pump"

means a packaged terminal air

conditioner that utilizes reverse cycle

refrigera lion as its prime heat source

and should have supplementary heating

availabili ty by builder's choice of

energy.

M£nel1Y conse"atioD Itandard"

lDeans: . .

(a) A performance atandard which

prescribes a minimum level of level of

energy efficiency or a maximum

quantity of energy use for a covered

product.·determined in accordance with

test procedures prescribed under section

323; or

(b) A design requirement for the

products specified in paragraphs (8), ('),

(8). (10), and (13) of section 322(a) of the

Act: and includes any other

requirements which the Secretary may

prescribe under section 325(0) of the

Act.

§ .(30.22 (Anwnded]

6. Section 430.22 is amended bv

adding new paragraphs (p) and (q) as

follows:

7. Section 430.23 is amended

revising the first sentence of the

introductory and

new and to read as follows:

§ 430.23 Units to be tested.

\\'hen of a covered product is

to comply with section 3Z3(c) of

Act. or to wi th rujp·

(p) Pool heaters. (1) The estima ted

annual operating cost (space reserved).

The thermal effiCiency of pool

heaters. expressed as a percent. shall be

determined in accordance with sectIon 4

of Appendix P to this subpart.

(q) Fluorescent lamp ballasts.

[Reserved]

5. Subpart B of Part 430 is amended by

removing the word "(ALTERNATIVE)"

in the headings to Appendices A1 and

B1 and by removing the folloY-'ing

references to Appendices A and B in

I 430.22: "4.1 of AppendIX A or" from

paragraphs (a)(l)(ii). (a)(2)(ii}. (a)(3)(ii).

(a)(4)(i), (a)(4)(ii); "4.2 of Appendix A or"

from (a)(4)(i). (a)(4)(ii); "4.1 of Appendix

B or" from (b)(l)(ii). (b)(2J(ii).-(b)(3)(ii),

(b)(4)(i). (b)(4)(ii): and "4.2 of Appendix

Bor" from (b)(4){i). (b)(4)(ii).

(6) Other useful measures of energy

consumption for electric refrigerators

and' electric refrigerator-freezers shall

be those measures of energy

consumption for electric refrigerators

and electric refrigerator-freezers which

the Secretary determines are likely to

alsist consumers in making purchasing

decisions which are deri\·ed from the

application of Appendix At of this

lubpart.

(bl • • • (5) The annual energy use of all

freezers equals the representative

average-use cycle of 365 cycles per )·ear

times the average per-cycle energy

consumption for the standard cycle in

kilowatt-hours per cycle. det ~rminpd

accordlng to 6.2 of Appendi) B1 of his

lubpart.

(6) Other useful measures t f enei"gy

consumption for freezers sha 1,1, be tho.le

measures of energy consumpt ·cn fOI

freezers which the Secretary oe ~ermines

are likely to assist consumers ,n making

purchasing decisions and which ,tre

derived from the applica hon of

Appendix 81 of this subpart.

• •

"Secretary" me8DI the Secretary 01

the Department ofEDel1Y.

• • • • • "Water beater" means. product

which utilizes oiL las. or electricity to

beat potable water for use outside the

heater upon demand. including-

(al Storale type units which heat and

Itore water at a thennostatically

controlled temperature. including gas

storage water heaters with an input of

75,000 Btu per hour or lesl, oil storage

water heaters with an input of 105.000

Btu per hour or lesa. and electric storase

water heaters with an input of 12 .

kilow8tta or less:

(b) Instantaneoul type unitl which

heat water but contain no more than one

gallon of water per 4.000 Btu per hour of

input, including gas instantaneous water

heaters with an input of 200.000 Btu per

hour or less, oil instantaneous water

beatera with an input of 210,000 Btu per

bour or les8, and electric instantaneous

.water beaten with an input of 12

kilowatts or less: and

(cl Heat pump type units. with a

maximum current rating of 24 amperes

at a voltage no greater than 250 volts.

which are products designed to transfer

thermal energy from one temperature

level to a higher temperature level for

the purpose of heating water. including

all ancillary equipment such as fans,

storage tanks. pumps. or controls

necessary for the device to perform its

function.

"Weatherized warm air furnace or

boiler" means a furnace or boiler

designed for installation outdoors.

approved for resistance to wind. rain.

and snow. and supplied with it5 0'W1l

venting system.

- Subpart B-{Amended]

4. Subpart Bof Part 430 is amended by

removing Appendices A and B.

4a. Section 430.22 is amended by

removing paragraphs (a}(6) and (b)(6);

redesigna ting and revising paragra phs

(a)(5) and (b)(S) as paragraphs (s)(6) and

(b}(6) respectively: and adding new

paragraphs (a)(5) and (b)(5) as follows:

§ ,(30.22 [Amended J

(a)· • •

- (5) The annual energy use of electric

refrigerators and electric refrigera torfreezers equals the representa tive

average use cycle of 365 cycles per year

times the average per-cycle energy

consumption for the standard cycle in

kilowatt·hours per cycle. determined

according to 6.2 of Appendix Al of th.is

subpart.

• •• • • "Fluorescent lamp..ballast" means a

device which is used to start and

operate fluorescent lamps by providing

a starting voltage and current and

limiting the current during nonnal

operation.

"Fumace" means a product which

utilizes only single-phase electric

current. or single-phase electric current

or DC current in conjunction with

natural gas. propane, or bome heating

oil. and which-

(a) Is designed to be the principal

heating sources for the living space of a

residence:

(b) Is not contained within the same

cabinet with a central air conditioner

whose rated cooling capacity is above

65.000 Btu per hour;

(c) Is an electric central furnace.

electric boiler. fo!"Ced-air central

furnace. gravity central furnace. or low

pressure steam or hot water boiler; and

(d) Has a heat imput rate of less than

3OO.OCXJ Btu per hour for electric boilers

and low pressure steam or hot water

boilers and less than 2.2S,00Q Btu per

hour for forced-air central furnaces.

gravity central furnaces. and electric

central furnaces, gravity central

furnaces. and electric central furnaces.
 CAS-RM-78-110 COMMENT 13

6078 Federal Register I Vol. 54. No. 24 I Tuesday, February 7. 1989 I Rules and Re~lations

•

Components of Ilmil.r deSign m~y be

substituted WHhout 1"'P!"qt21nng add1tlonat testing if

the ~~edrae","," of ene-rgy ~\On

CQ.Dttmle tQ.~, ~..,~btttw~

pro\'i.wn.

1.15· .'. The linRle number HSPF elleI1Y

conaervatioa ltaDdard for central.ir

conditionins heat pump. specified iD aection

32S{d)(2) (A) and (B) il baaed on Region IV

and.the standardized DHR found in Mction 8

of this appendix.. nearest the capacity

measured in the 47 ·F test.

AFUEefficiency (ArUE) shan be expressed as

a percent and defined as:

where:

5ZOO- a\"erage aMusl hestin, dearee-da)'s

N. - a. defined in 4.3 of this appendix for

condeuinl fumacea and boilers

mealured by the optional direct

condensate measurement method: as

N..... al derIDed ill 4.5.14 of this appendix

at each design heating requirement for

modulating fumaces and boilers: or as

Elfy. as defined in 11.2.5 of ANSI!

ASHRAE 103-82 for all other furnaces

and boilers..

N. a part load efficiency and il based on the

assumption that aU weatherIzed warm

air furnaces or boilers are located out-ofdoors: warm air furnaces which are not

weatherized are installed as isolated

combustion svstems: and boilers which

are not weatherized are installed in

doo,.. Pert load efficiency as defined in

4.3 of this appendix for condensing

fumaeel and boilers measured by the

optional direct condensate rneuurement

method; a. N...trt as defined in 4.5.1 of

this appendix at each design heating

requirement for modulating furnaces

and boilers: or as EffYNl as defined in

11.2..34 oC ANSIIASHRAE 103-82 and in

4.2 of this appendix for all other fumaces

and boilers except tha t and 1...; are

deflned as~

ofor boilers which are not wea therized

3.3 for furnaces whi.ch are weatherized

1.7 for furnaces which are not weatherized

4.7 for boilers which are wee thenzed

L, jacket loss and is either assigned the value

of 1 percent or determined in accordance

y.·ith 8.8 of A.."iSII ASHRAE 103-82 in

percent

Q,• ., steady-state heat input as defined in

11.2..34 of NSII ASHRl\E 103-82

0.1:=r: .vera~e oversizin8 factor for furnaces

a.cd hollers

4600::11: average non-heating season hours per

year

Q. = pilot name fuel input rate as defined in

9.2 of of ANSII ASH.R.A.E 103-82

Appendix N-(Amended)

11. Section 4.7 of Appendix to

Subpart B of Part 430 is amended

ch;anl~ln.~ the fallOWing references "0 for

furnaces or boilers intended to be

installed indoors." to "0 for boilers

which are not weatherized:" U1.7 for

furnaces or boilers intended to be

installed as isola ted combustion

systems:' to "1.7 for furnaces which are

not weatherized."; '''3.3. for furnaces or

boilers intended to be installed

outdoors." to "3.3 for furnaces or boilers

which are weatherized. ": and "1.0 forfinned tubed boile~ intended for

installation outdoor~'" to '1.0 for finned

tubed boilers which are weatherized."

Appeadix Qto Subpart B. of PutaoUDifOnD Test Method for MeasuriDl the

EDerzy Consumptioa of FlUOl8SC8Dt

Lamp Ballasts .

L Delilliti~

t.l -ANSI Standard" means I Itandard

developed b, a ~mittee accredited by the

American NatioDal Standarda Institute.

1.2 ··Ballast iDput volt.18IImea. tb_

rated input yollaS- of a OUoreIC8nt lamp

ballUL

1.3 "F-IOTIZ lamp" meanl. DOD'liDal40

watt tubular fiuorescent lamp which il 48

Inch.. lD length and one and I half inches in

diameter. and conforms to ANSI standard

C7B.1-1978(RI984).

1.4 "F98T1Z lamp" meana a nominal 7S

watt tubular fiuorelCenl lamp which il 48

inche. in leDgth and one and'a balf inches in

diameter, and conIOnDI to ANSI staudarei

C78.1-1978(RI984 ).

1.5 uF96T12HO lamp" meanl • nominal

110 waU tubular fluorescent lamp which is 96

inchella leftltb and one and a half inches in

diameter, and conforml to ANSI Standard

C7a.l-t918(RI984 ).

1.8 -Input current" meana the root-mean·

square (RMS) current In amperes delivered to

a fluorescent lamp ballast.

1.7 "Lumi.Daire" mean. a complete

lightiq unit consisting of a fluorescent lamp

or lamp... together with parts designed to

distribute the Ugh~ to po.aition and protect

IUch lampa. and to correct such lamps to the

power supply through the ballast.

1.8 ~ominallampWlltts means the

wanage at which a fluorescent lamp is

designed to operate.

1.9 "Power factor" means the power input

divided by the product of ballast input

voltage and input current of a fluorescent

lamp ballast. a. me:LSun:d under test

conditiolU speCified in Al~SI Standard C82...2-1984.

1.10 ~~in'pHt Utnecrtl the power

cOMumpUon in we t' .' "f a t 811a~Jt and

fluorescent la.mp or i 'n,pt. al de-lermined in

accordance with the re~t pro::edures specHied

in ANSI Standard ~..2-1984

1.11 "Relative hght O.ltput· .r'lear.s the

light output dt:livered llt)ugh :l ! use of a

ballast divided by the h~t:t auto 'J delivered

through the use of a refe :"eJ.~CP Oi Uas1,

expressed a. a percent. .. , deterr \ined in

accordance with the tes-t .lrOcedu ,'eS specified

in ANSI Standard C82.2-1~

1.12 uResidential building" means

ItruCture or portion of a structure which

provides faCIlities or shelter for human

residency. except that such term does not

include any multifamily residential strocture

oC more than three stores above grade.

10. Section 4.6 of Appendix N to

Subpart a of Part 430 is revised 8!

follows;

Appendix N to Subpart B of Part 43GUniform Tesu Method for Measuring the

Energy Consumption of Furnaces

4.6 AnnooJ fuel ut.i}izaliort

efficiency. The' annual fuel utilization

• • • •

Q. Subpart Bof Part.430 is amended by

adding new Appendices P and Qas

follows:

Appendix P to Subpart B or Part 43GUniIOITD Test Method. for ~A:ea5uring the

E.oergy ConaumptioD of Pool Heaters

1. Test method. The lelt method COl tetting

gas· and oil·fired pool heatera shall be al

specified in American National Standards

Institute Standard for Gal-Fired Pool

Heate", Z21.56-1986.

2... Test conditions. Establish the teat

conditioIll specified in section 2.B of ANSI

z..~ ,56-1988.

3. ,,\[eaSJJremen18. MeasW'e tbe quantities

delineated in section 2.8 of A.t.~S1 Z21....56-19Ba

except in the case of oil·fired heaters the

measurement of energy consumption in Btu'.

to be carried out in appropriate Wlita. e.g.,

gallons,

Calculations. Calculate the thermal

efficiency (exp~sed as a peT'Cent) as

speCified in secHor. 2..8 of ANSI Z-"1.56-1986.

except in the case of oil·fired heaters the

expression of fUe1 consumption shall be in

prescribed UDder sections 324 or 32S of

the Act.· • • (P)(l) For nch basic model' of pool.

heater a sample ofsufficient size shall

be tested to insure thaa-

(i) [Reserved) _

(ii) Any represented value of the fuel

utilization efficiency or other measure of

ene,.., coasumption of a basic model for

which consumers would favor higher

values shall be no greater than the lower

of (Al the mean of the sample or (B) the,

lower 97~ percent confidence limit of

the true mean divided by .95.

(q) [Rese"ed]

8. Subpart S of Part 430 is amended by

adding a sentence to the end of section

1.5 of Appendix M a. follow.:

AppeDdix M to Subpart B of Part 430-

UDiIorm Test Method for Measuring lb.

EDergy CoDSumptiOD of Central Air

Conditioners.
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. S4. No. 24 I Tuesday, February 7, 1989 I Rules and Regulations

58

52

63

&&

65

56

5i

57

81

59

60

;4

Annuat •.- UftllzatlOn

enoency.

J8n.1,

'igo

(percent)

(j) Kitchen ranges and ovens. Gas

kitchen ranges and ovens with an

electrical supply cord shall not be

equipped wiL~ a constant burning pilot_

The standard is effective on January I.

1990.

(k) Pool heaters. The thermal

efficiency of pool heaters must be no

less than 78%. The standard. is effective

on January 1. 1990.

(1) Television sets. [Reserved]

(m) Fluorescent lamp ballasts. (1)

Except as provided in paragraph (m1(2)

of this section. each fluorescent lamp

ballastManufactured on or after

January 1. 199Cr.

(B) Sold by the manufacturer on or

after Aprill, 1990: or

(C) Incorporated into a luminarie bv a

luminarie manufacturer on or after April

1. 1991: and

(ii) Designed-

(A) To operate at nominal input

voltages of 120 or 2.J; volts~

(B) To operate with an input current

frequency of 60 Hertz; and

(C) For use in connectIon with F4OTl2..

F96T12. or F96T12.HO lamps; shall have

a power factor of 0.90 or greater and

option. The .tandarel wu effective on

January t. 1988.

(b) Clothes dryers. Constant buming

pllot lights in sas clothes dryen are

prohibitecL The standard was e'ffecti\'e

on January 1. 1988.

(1) Direct heating equipment.

1.:;: 1M lype up .~••~~:~..1 2. Gas w.. ,.,. type over .2.000 Btul !

....- ._---_....•.......

3. Gas waU type up to 10.000 i

B1Lt/tQlr _.__.--.....- ...._.......••.•.•.t

•. Gal gra¥lty tvoe over 10.000 !

Btu/I'Q.I' up to 12.000 Btu/hOur....._.~

5. Gas waH gravaty Iype 0Yet 12.000 I

Btu/hcu up to 15.000 Btu/hour.....•.•.:

8. Gas .... tyDe over 15.000 I - Btu/how up to 1&,000 Btu/hour.....••..

7. Gas watt gravity type over 19.000 It

Btu/hcu up to 27,000 Btu/hour.......•.

a. Gal wall graVIty tyDe over 27.000 t

Btulhcu up 1046.000 Btu/houf..••_,

9. Gu waH ~YIty type over 46.000 j

BtuI holIr......•.__ ,

10. Gu floor up to 37.000 Btu/hour :

11. Gas floor tNet 31.000 BtuJ~.••_.~

12. Gas room up to 18.000 Btu/hOur....;

13. Gas room ov.- 1a.000 Btulhour 1

up to 20.000 Btu/hOur _.••J 14.. Gai room over 20.000 Btu/hour !

up to 27.000 Btu/hOur _ J

1.5.. Gas room O'Vet 27.000 StulhoYr I UQ to 4o.OUU Bu../hO\..~ _ t

16. Gas room over 46.000 8tu/hOul .._.~

j

.., f01/01 1S12

I.e I 01/01/5)3

I

I 10.01

1.71

(d) Water heaters

,. Furnaces (excluding claSS.j I es noted betow) (percent) .....1 7! , 0'/01/92

2. '~ Home F1Inaces I i

(percent) .•_._•••_. ..1 75 101/01/90

3. ..Sm8JJ" U'nae8s (1IlCU'l i I rate Mlss than 45.000 Stu! I I

I'oJr _ _ _ .•_._ \ (t) I 4. Boeters (exdudIng gal I I

Iteam) (percent} ..__• ..1 80 i 01/01/92

5. Gas bONers (pef- I !

cenlJ·---.----1 75: 01/01/92

(0 Dishwashers. Dishwashers must be

equipped with an option to dry without

heaL The standard.was effective on

January 1, 1988..

(8) Clothes washers. Clothes washers

muS1 hav.e. an unheated water rinse'

(e) Furnaces

1. SoIl.,......_ 2.SngIlI~~·1 t

3. WItftouI cycle n wiIta lou-

..-d '.000 tel 13'" Btu 1.0 . .c. Withoul ,.,.,. eycte and ..." louvered .... 14,000 10 18.999 Btu 1.8

5. Without nMne cycle and with IOU-

...Iidn 20.000 and maN 8tu.- 1..2

I. WIthout Cyc:iI wad WIttQII

lMI .." 1.000 Btu 1.0

7. Without rev cycle Met WI1hout

SIdeS 8.000 to 7.199 Btu 1.5

I. WdftOUt cycle Met

1ouwer8d 1.000 1G 13." Btu~~ 1.5

8. Without f1Net"I8 C¥dlI ..... WIthOut

Iouwer8d lide. 14.000 10 19._ Btu .• ••_··_.. 1.5

10. Without cyde WId WI1hout

20.000 and more Btu 8~

11. With ....... cycle, ..., WIth Ie»

vered 1Ides.• •• • 8.5

12. With,...,.,... cyckt, WI1hout Ie» v.-d a.dM.__________ 1.0

(c) Central air conditioners and

central air conditioning heat pumps.

Product etass I Energy factor, Jan. 1, 1990

1. Ga Water Heater].... O.D2-{.OO'9 x Rated Stor·

age Votume in gat1ons).

2. 01 Wac. HMSat _ . 0.S9-{.OO1 9 x Rateo Storl

ege Voeume '" gaUons).

3. Electne WaJet O.9~OO1J2 xRa.ted StQ(·

Heater. age V~ N'l gaJions).

(b) Room air conditioners.

I Energy

e-tnoencv I rlllO Jan. 1.

1 1990

I

w~~~e.nd~&ou.1

WWed SfCJeS teu than 6.(0) Btu ! 8.0 I

Z. Wr'f!")()Ut r8¥et"'M erN and wrtn k)u. I

Y8f'80 Sldet 6.000 10 7,999 Stu _ ...._.: 8.5.

1. RelriQeraICn and ,..,.tor.! freezers wntl manual oetros:_-

J

16..3 AV+316

2..::a::~__ 21.8AV+429

3.. Retnger.tOl-tree~at·1

c detrost wrtn eop-tnounled I

frMzer wctnout ICe. •...., 23..5 AV+411

4. Re1nqen!tCW'·~ I

mabC de'trOSt WIth s..de-mounled I

freezer ~tnou1lC8••• 27.7 AY+488

S. Retngerator~ I mane ~t With bottom- I

mounted trM'Zer WftnOU1 ce ....--1 21.7 AV + 4.88

6. RetngeraloI.treeun-ausomal.,

M: defrost wrtn top..mOUnted I

freezer With through tile dOOr I

ICe S8f'VC•..•..•••_ ....••..._ •••_...._ .. 25.~ AV +535 '

7. R8tngerator·treez~C)o \ mabC Ge1TOSt .,tn 1IJde.mount8d I

trNZef 'MIn h'ough the (k)O( j a. . ._-.i 30.8 AV+S47

8. LJpngnt freezers wrtn menuaJ I oetr::>st•..••.•...•_ .••.••.•.....•...••............l 10.9 AV + ....22

9. Upngnt treat.-s Wlttl ..toma~ I IC defrost "'__._._'''.__'__''1 16.0 A'V +62:3

, O. Chest freezers and .., oU*'.j

freezers ....__.......__._.._..-..j 14.8 AV .... 223

AV c:Tolal adfuSled \'CMutM. ex;wesaed in It 1

I

Energy

Product dus standards

equaoons.. Jan.

1. 1990

Subpart c--(Am.nd~]

f 43G.31 Purpoee and .cope.

nussubpart contains any energy

conservation standards for cluses of

covered products that are required to be

administered by the Department of

Energy pursuant to the Energy

Conservation Program for Consumer

Products Other Than Automobiles under

the Energy Policy and Conservation Act.

as amended (42 U.S.C. 6291 et seq.).

f 430..32 Energy conservation .tandarda

and ettecttve datn.

The energy conservation standards

for the covered product clasles are:

(a) Refrigerators/refrigeratorfreezers/freezers.

12. Subpart CofPart 430 ia reviled to

read .. followa:

Subpart e-EnergyC._1Idon .........

Sec.

430.31 Purpose and ICO~.

430.32 Energy conservation atandarda and

effective date•. ao.33 Preemption ofState fIIulalions.

(
 CAS-RM-78-110 COMMENT 13

8018 Federal Register I Vol. 54. No. 24 I Tue~day. February 7. 1989 I Rules and Regulations

.haD have a ballast efficacy factor Dot

lest than the followms:

~: 1:=:1i-1=

One F.aT12 lImP._1 120 I, .cJ I· 1.805

2T1 .c» I 1.805.

Two F.cJT12 1ImPI.. ! : I ~:= Two FlT12 .....- 120 I 150 0.570

2T7 150 I 0.570

Two FNT12HO I I

IamPI 120 I 220 I 0.310

2T! 22OJ~

(2) The standards described in

paragraph (m)(I) of this section do not

apply to (i) a ballast which is designed

for dimming or for use in ambient

temperatures of o·F or less. or (ii) a ballast which has a power factor of less

than 0.90 and is designed for use only in

residential building applications.

f Preemption of Nt. ntguJatlonL

Any atate regulation providing for any

energy conservation standard. or other

requirement with respect to the energy

efficiency or energy use. of a coyered

product that is not identical to a Federal

standard in effect under this subpart is

preempted by that standard. except as provided for in section 327 (b) and (c) of

!he Act.

13_ Subpart D of Part 430 is revised to

read a. follows:

Subpart D-Pettttona To Exempt State

Regulation From Preemption; PetitJons

toW11hdnlw Exemption of State

Reguiatlon

Sec.

430.40 Purpose and scope.

430.41 Prescriptions of a role.

430.42 Filing requirement•.

430.43 Notice of petition.

430.44 Consolidation.

430.45 Hearing.

430.46 Disposition of petition•.

430.47 Effe<:tive dates of final role•.

430.48 Request for reconaidera tian.

430.49 FiIUility of decision.

Subpart D-{Amended]

4.3O•.a Purpo.. and acope.

(a) The regula tions in this subpart

prescribe the procedures to be followed

in connection with petitions requesting a rule that a State regulation prescribing an energy conserva tion standard or other requirement respecting energy use

energy effiCiency of a type (or class)

of covered product not be preempted.

The regula tions in this subpart

also prescribe the procedures to be

followed in connection with petitions to

withdraw a rule exempting 8 State

regulation prescribing an energy

conservation standard or other

req uirement respecting energy use or

enel1Y efficiency of. type (or dan) of

covered. prod~ct.

I aGA1 ........ptIons of. rule.

(a) Criteria for exemption from . preemption. Upon petition by • State

which hat prescribed an enel1Y

conservation standard or other

requirement for a type or clals of a

covered product for which a Federal

energy conservation standard is

applicable. the Secretary shall prescribe

a rule that such standard not be

preempted if he determines that the.

State has established by • preponderance of the.evidence that such

requirement is needed to meet unusual

and compelling State or local energy

interests_ For the purposes of this

regulation. the term "unusual and

compelling State or local energy

interests" means interests which are substantially different in nature or magnitude than those prevailing in the

U.S- generally; and are such that when

evaluated within the context of the .5tate-s energy plan and forecast. the

costs. benefits. burdens.. and reliability

of energy savings resulting from the

State regulation make such regulation

preferable or necessary when measured

against the costs. benefits. burdens. and

reliability of alternative approaches to

energy savings or production. including

reliance on reasonably predictable

market-induced improvements in

efficiency of all products subject to the

State regulation. The Secretary may not

prescribe such a rule if he finds that

interested persons have established. by

a preponderance of the evidence. tha t

the State's regulation will signific,ntly

burden manufacturing. marketing,

distribution. sale or servicing of th · covered product on a national basiJ, In

detennining whether to make such \~

finding. the Secretary shall evaluate a'.1

relevant factors including: The extent ';0

which the State regulaHan will increc s,~

manufacturing or distribution costs 01

manufacturers. distributors. and other.';

the extent to which the State regulatioI.

will disadvantage smaller

manufacturers. distributors. or dealers or lessen competition in the sale of the

covered product in the State: the extent

to which the State regulation would cause a burden to manufacturers to

redesign and produce the covered

product type (or class), taking into

consideration the extent to which the

regulation would result in a reduction in

.the current models. or in the projected

availability of models. that could be

shipped on the effective da te of the

regulation to the Sta te -and within the

U.S.• or in the current or projected sales

volume of the covered product type (or

class) in the State and the U.S-~ and the

extent to which the State regulation is

Ubly to contribute significantly to a

proliferation of State appliance -effidency requirements and the

cumulative impact such requirements

would bave. The Secretary may not

prescribe such a rule if he finds that

IUch a rule will res.ult in the

unavailability in thee Slate of any

covered product (or class1of

performance characteristics (including

reliability). features. sizes. capacities.

and volume. U'lat are substantially the

lame as those generally tlvailable in the

State at the time of the Secretary's

finding. The failure of spme classes (or

types) to meet this criterion shall not

affect the Secretary's determination of

whether to prescribe a rule for other

classes (or types).

(1) Requirements of petition for

exemption from preemption_ A petition

from a State for a rule for exemption

from preemption shall include the

information listed in paragraphs (a)(1)(i)

through (a)(1)(viii) of this section. A

petition for a rule and correspondence

relating to such petition shall be

available for public review except for

confidential or proprietary infonnation

submitted in accordance with the

Department of Energy's Freedom of

Infonnation Regulations set forth in 10

CFR Part 1004:

(i) The name. address and telephone

number of the petitioner:

(ii) A copy of the State standard for

which a rule exempting such standard is

~ought:

(iii) A copy of the State's energy plan

and forecast:

(iv) Specification of each type 'or class

of covered product for which a rule

exempting 8 standard is sought:

(v) Other information. if any. ~1ieved

. 0 be pertinent by the petitioner: and

(vi) Such other informa tion as the

ecretary may require.

(b) Criteria for exemption from

pJ eemption when energy emergency

c( nditions exist within State. Upon

petition by a State which has prescribed an energy conserva hon standard or

other requirement for 8 type or class of a

covered product for which a Federal

energy conservation standard is

apphcable. the Secretary may prescribe

a rule, effective publica tion in the

Federal Register. such regula tion

not be preempted if he determines that

in addition to meeting the requirements

of paragraph (a) of thIS section the State

has established that: an energy

emergency condition exists Wlthin the

State that imperils L1e health. safety and

welfare of its residents because of the

._~,",l,"', of the State or utilitles within

the Sta te to pro\'ide adequa te quantities
 CAS-RM-78-110 COMMENT 13

Federal RegisteJL I Vol. 54, No. 24 I Tuesday, February 7, 1989 I Rules and Re~lations 6079

(

of 8as or electric energy to its residents .atandard shall include the iDformatioa

at leal than probibit.ive COlta: and prescn~edill parqrapha (c)(1)(i)

caMot be substantially alleviated by the through (C)(l){Yii) of thiI ..ctiOD. and

importation of enefIY or the use of , IhaU be available for public review,

interconnection agreement.: and the except for confidential or proprietary

State regulation i. necessary to alleviate inform.lion lubmitted iD accordance

•ubstantially such condition. with the Department ofEneI1Y'.

(1) Requirements of petition for Freedom of Information Regulations set

exemption from preemption when forth in 10 CFR Part 1004:

energy emeraency conditioOl exist (i) The name. addre.1 and telephone

within a Stale. A petition from a State number of the petitioner:

for a nde for exemption from (li) A .tatement of the interest of the

preemption when energy emerzency petitioner for which a rule withdrawing

conditions exist within a State shall aD exemption i. 10uSht:

include the information listed in . (iii) A copy of the State .tandani for

paragraphs (a)(1)(i) through (a)(l)(vi) of which a rule withdrawing an exemption

this section. A petition shall also include illought

the infonnation prescribed in (iv) SpecificatioD of each type or class

paragraphs (b)(l)(i) through (b)(l)(iv) of of covered product for which a rule

this.ection. and shall be available for withdrawil1l an exemption is sought:

public review except for confidential or (v) A discussion of the factors

proprietary information submitted in contained in paragraph (al of this

accordance with the Department of .section;

Energy's Freedom of Information (vi) Such other infonnation. if any,

Regulations set forth in 10 CFR Part believed t~ be pertinent by the

1004: petitioner; and

(i) A description of the energy (vii) Such other information as the

emergency condition which exilts Secretary may require.

~ithin the Slate. including causes and 1430 42 Flllftft ui tL

Impacts. · ...... ntQ remen . (ii) A description of emergency (a) ServIce. All ~cuments reqwr~d to

response actions taken by the State and be ~erved under this subpart shall ,If

utilities within the State to alle\'iate the mallecL be served by first class mail

emergency condition: Service upon 8 person's duly authorized

(iii) An analysis of why the emergency representative shall constitute service

condition cannot be alleviated upon that person. .. substantially by importation of energy (b) Obligation to supply information. or the use of interconnection A penon or State submitting B petition agreeme~ is under a continuing obligation to

(iv) An analysis of how the State provide any new or newly discovered

standard can alleviate substantially information relevaot to that petition.

.such emergency condition. Such information includes. but is not

(c) Criteria for withdrawal of orale limlted to. information regardi.ng any

exempting a State standard. Any person other petition or request for action

subject to a State standard wb..ich.. by subsequently submitted by that person

rule. has been exempted from Federal or State.

preemption and which prescribes an (c) The same orrelated matters. A

energy conservation standard or other person or State submitting a petition or

requirement for a type or class of a other request for action shall state

covp,red product when the Federal whether to the best knowledge of that

energy conservation standard for such petitioner the same or related issu~ att.

product subsequently is amended, mayor tranaaction has been or presently is

petition the Secretary requesting that being considered or investigated by any

the exemption role be withdrawn. The State agency. department or Secretary shall consider such petition in instrumentality.

accordance with the requirements of (d) Computation of time. (1)

paragraph (a) of this section. except that Computing any period of time

the burden shall be on the petitioner to prescribed by or allowed under this

demonstrate that the exemption rule subpart. the day of the action from

received by the State should be which the designated period of time

withdrawn as a result of the amendment begins to ron i. not to be included. U the

to the Federal standard" The Secretary last day of the period ii. Saturday. or

shall withdraw such rule if he Sunday. or Federal legal holiday. the

determines tha t the petitioner has period runs until the end of the rrext da y

shown the rule should be withdrawn. that i.J neither a S.turday, or Sunday or (1) Reql.,;irements of petition to legal hol.iclay.

withdraw a rule exempting a Stale Saturdays... Sundays. and

standard. A petition for a rule to intervening Federall.egal hDlidays shall

withdrC'w a rule exempting a State be ex.clw:iedirom the computation of

time when the period of time allowed or

pnlcribed II 7 day. or lesi.

(3) When a .ubmislion i. required to

be made within. prescribed time. DOE

may grant an extension of time upon

IOOd cause shown.

(4) Document,received after regular

business hours a"re deemed to have been

.ubmitted Oft the next regular busineCis

day. Regular business hours for the

DOrs National Office, Washington. DC.

are 8:30 a.m. to 4:30 p.m.

(5) DOE reserves the right to refuse to

accept. and not to consider. untimely

lubmissions.

(e) Filing ofpetitions. (ll A petition

for a rule shall be submitted in triplicate

to: The. Assistant Secretary for

Conservation and Renewable Energy.

U.S. Department of Energy. Section 3~7

Petitions••~ppliance EfficiencjP

Standards. Forrestal Building. 1000

Independence Avenue. SW.•

Washington. DC 20585.

(2) A petition may be submitted on

behalf of more than one person. A joint

petition shall indicate each person

participating in the submission. A joint

.petition shall provide the informa tion

required by 1430.41 for each person on

whose behalf the petition is submi tted.

(3) All petitions shall be signed by the

person(s) submitting the petition or by a

duJy authorized representa ti ve, If

submitted by 8 duly duthorized

representative. the petitIon shall certJfY

this authorization. -

(4) A petition for a rule to withdraw a

rule exempting a State regulation. all

supporting documents. and all future

submissions shall be served on each

State agency. department. or

instrumentality whose regulation the

petitioner seeks to supersede. The

petitiun shall contain 8 certlfica tion of

this service which states the name and

mailing address of the sen'ed parties.

and the d.ate of service.

(f) AcceptDnce for filing. (1) \Vithin

fifteen (15) days of the receipt of 8

petition. the Secretary will either accept

it for fijing or reject it and the petitioner

will be so notified m wnting. The

Secretary will serve a copy of this

notification on each other party served

by the petitioner. Only such petitions

which conform to the requirements of

this subpart and which contain

sufficient infonnation for the purposes

of a substantive decision will be

accepted for filing. Peti hans which do

not so conform will be rejected and an

explana tion provided to petItioner in

writi~

(2) For purposes of the Act and this

subpart. a petition is deemed to be fiied

on the date It is accepted for filir.g.
 CAS-RM-78-110 COMMENT 13

6080 Federal Register '·Vol. 54. No. 24 I Tuesday. February 7. 1989 I Rules and Regulations

tal Docket A petition accepted for

flUng will be assigned an appropriate

docket designation. Petitioner shan use

the docket designation in all subsequent

lubmis.ions.

§ C30.43 Notice of petition.

(a) Promptly after receipt of a petition

and its acceptance for filing, notice of

such petition shall be published in the • Federal Register. The notice shall set

forth the availability for public review of

all data and information available. and

shan solicit comments. data and

infonnation with respect to the

detennination on the petition. Except as

may otherwise be specified. the period

for public comment shall be 60 days

after the notice appears in the Federal

Register.

(b) In addition to the material required

under paragraph (a) of this section.. each

notice shall contain a summarv of the

State regulation at issue and the

petitioner's reasons for the rule sought.

§ 430.44 Consolidation.

DOE may consolidate any or all

matters at issue in two or more

proceedings docketed where there exist

common parties. common questions of

fact and law. and where such

consolida tion would expedite or

simplify considerstion of the issues.

Consolidation shall not affect the right

of any party to raise issues that could

have been raised if consolidation had

not occurred.

§ 430.45 Hearing.

The Secretary may hold a public

hearing. and publish notice in the

Federal Register of the da te and loca tion

of the hearing, when he determines that

such a hearing is necessary and likely to

result in a timely and effective

resolution of the issues. A transcript

shall be kept of any such hearing.

§ ai3O..46 DtsposUJon of petitions..

(a) After the submission of public

comments under § 430.42(a), the

Secretary shall prescribe a final rule or deny the petition within 6 months after

the da te the petition is filed.

(b) The final rule issued by the

Secretary or a determination by the

Secretary to deny the petition shall

include a written statement setting forth

his findings and conclusions. and the reasons and basis therefor. A copy of

the Secretary's decision shall be sent to

the petitioner and the affected State

agency. The Secretary shall publish in

the Federal Register a notice of the final

rule granting or denying the petition and

the reasons and basis therefor.

(c) If the Secretary finds tha t he

cannot issue a final rule within the 6-

month period pursuant to parasraph (a)

ofthil section. he Ihall publish a notice

in the FederalR.t. extending IUch -

period to a date certain. but no longer

thaD one year after the date on which

the petition wal filed. Such notice shaD

include the reasons for the delay.

1...7 Effective...of fInIJI ........

(a) A final rule exemptiilg a State

standard from Federal preemption will

be effective:

(1) Upon publicatiOD in the Federal

Register if the Secretary determines that

such rule is needed to meet aD ··energy

emergency condition'· within the State.

(2) Three years after such "rule is

published in the Federal Register: or

(3) Five years after such rule is

published in the Federal Register if the

Secretary detennines that such

additional time is necessary due to the

burdens of retooling. redesign or distribution.

(b) A final rule withdrawing a rule

exempting a State standard will be

effective upon publication in the Federal

Register.

§ 430.48 Request for reconsideration.

(a) Any petitioner whose petition for a

rule has been denied may request

reconsideration within 30 days of denial.

The request shall contain a statement of

facts and reasons supporting

reconsideration and shall be submitted

in writing to the Secretary.

(b) The denial of a petition will be

reconsidered only where it is alleged

and demonstrated that the denial was

based on error in law or fact and that

evidence of the error is found in the

record of the proceedings.

(c) If the Secretary fails to take action on the request for reconsideration

within 30 days. the request is deemed

denied. and the petitioner may seek

such judicial review as may be

appropriate and available.

(d) A petitioner has not exhausted

other administrative remedies until a

request for reconsideration has been

filed and acted upon or deemed denied.

f 430.4i FinaUty of dectston.

(a) A decision to prescribe a rule that a State energy conservation standard or

other requirement not be preempted is

final on the da te the rule is issued. Le.,

signed by the Secretary. A decision to

prescribe such a rule has no effect on other regulations of a covered product of

any other Sta teo

(b) A decision to prescribe a rule

withdrawing a rule exempting a State

standard or other req.uirement is final on the date the rule is issued. Le., signed by

the Secretary. A decision to deny suc..' a petition is final on the day a denial of a

request for reconsideration is iuued.

.;Le.. liped by the Secretary.

14. Part 430 is amended by adding

Dew Subpart E. to read as follows:

IubI*1 E-sma~lUlin... Exemptions

Sec.

430.50 Purpose and Icope.

430.51 Elilibility. .

430.52 Requirements for applications.

430.53 Procn.iu8 of applications.

430.54 RefelTa1 to the Attomev C"neral.

430.55 Evaluation of the applieation.

430.58 Decision and order.

430.51 Duration of temporary exemption.

Subpart E-(Amended)

1430.50 Purpose .nd scop••

(a) This subpart estabJ:ishes

procedures for the submission and

disposition of applications rUed by

manufacturers of covered consumer

products with annual gross revenues

that do not exceed sa million to exempt

them temporarily from all or part of

energy conserva lion stan daras

established by this part.

(b) The purpose of this subpart is to

provide content and forma t

requirements for manufacturers of

covered consumer products with low

annual gross revenues who desire to

apply for temporary exemptions from

applicable energy conse~aticn

standards.

. ~.51 eligibility.

Any manufacturer of a covered

produci with annual gross revenues that·

do :rot e),ceed S8.CXX>.OOO from all its

operation, (including the manufacture

and sale of covered products) for the 12-

mOD 'h period preceding the date of

appL ;,\tion may apply for an exemption.

In de;'el"mirun~: the annual gross

revenl \eCJ of ,u y manufacturer under this

subpart. the ,\.1 nual gross revenue of any

other pt1t,on ho controls. is controlled.

by, or it u.."dF.r :ommon control with.

such me :lufactl rer shall be taken in to

account.

430.52 Requirements for application&..

(a) Each under this

subpart submitted triplica te

to: u.s. Department of Energy. Small

Business Exemptions. Appliance

Efficiency Standards. Assistant

Secretary for Conservahon and

Renewable Energy, Forrestal Building.

1000 Independence Avenue. S\V...

Washington. DC 20585.

(b) An application shall be in \\'riting

and shall include the follOWing:

(1) Name and mailing address of

applicant:

(2) Whether the controls. is

controlled by. or is common

control with anoL~er manufacturer. and
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54. No. 24 I Tuesday. February 7. 1989 I Rules and Regulations 6081

(

if 10. the nature -of that control

relationship:

(3) The text or substance of the

standard or portion thereof for which

the exemption i. lought and the length

of time desired for the exemption:

(4) Information showing the annual

gross revenue of the Ipplicant for the

preceding 12-month period from all ofits

operations (including the manufacture

and aa1e of covered products):

(5) Information to show that failure to

grant an exemption ia likely to result in

a lessening of competition:

(6) Such other information. if any.

believed to be pertinent by the

petilioner: and

(7) Such other information as the

Secretary may require.

, ao.53 Procnaing of appllc8tJonL

(I) The applicant shall serve a copy of

the application. all supporting

documents and all subsequent

submissions. or a copy from which

confidential information has been

deleted pursuant to 10 CFR 1004.11. to

the Secretary. which may be made

available for public review.

(b) Within fifteen (15) days of the

receipt of an applicanon. the Secretary

will either accept it for filing or reject it.

and the applicant will be so notified in

writing. Only such applica tiona which

confonn to the requirements of this

Jubpart and which contain sufficient

informa tion for the purposes of a

substantive decision will be accepted

for filing. Applications which do not so

conform will be rejected and an

explanation provided to the applicant in

writing.

{c} For the purpose of this subpart. an

application is deemed to be filed on the

da te it is accepted for filing.

(d) Promptly after receipt of an

appliea tion and its acceptance for filing,

notice of such appliestion shall be

published in the Federal Register. The

notice shall set forth the availability for

public review of da ta and informa tion

available. and shall solicit comments.

data and information with respect to the

determination on the application. Except

as may otherwise be specified. the

period for public comment shall be 60

days after the notice appears in the

Federal Register.

The Secretary on his own initiative

may convene a hearing if. in his

discretion. he considers such hearing

will advance his evaluation of the

applicat10n. -

§ 430.54 Aeferral to the Attomey General

Notice of the applica tion for

exemption under this subpart shall be

ransmltted to the Attorney General by

~he Secretary and shall contain (a) a

statement of the facta and of the realons

for the exemption. and (b). copies of all

document. submitted.

f QO.5I .......aon of 8PPkatJon.

The Secretary ahall grant an

application for exemption submitted

under this lubpart if the Secretary fmds.

after obtaininl thf! "-ritten views of the

Attomey General. that • failure to allow

an exemption wculd likely result in a

lessenins of competition_

f 430.51 Declaion and order.

(a) Upon consideration of the

application and other relevant

information received or obtained. the

Secretary shall issue an order granting

or denying the application.

(b) The order shall include a written

Itatement setting forth the relevant facts

and the legal basis of the order.

(c) The Secretary shall serve a copy of

the order upon the applicant and upon

any other person readily identifiable by

the Secretary as one who is interested in

or aggrieved by such order. The

Secretary also shall publish in the

Federal Register 8 notice of the grant or

denial of the order and the reason

therefor.

§ 430.57 Duration of temporary

exemption.

A temporary exemption terminates

according to its terms but not later than

twenty-four months after the affective

date of the rule for which the exemption

is allowed.

15. Part 430 is amended by adding a

new Subpart F to read as follows:

&abpart F-CerttflcatJon and Enforcement

SK.

430.60 Purpose and scope.

430.61 Prohibited acts.

430.62 Submission of data.

430.63 Samplln~.

430.64 Imported products.

430.65 Exported products.

430.70 Enforcement.

430.71 Cessation of distribution of a basic

model.

430.72 Subpoena.

430.73 Remedies.

430.i4 Hearings and Appeals.

430.75 Confidentiality.

APPENDIX A to Subpart F of Part 430-

Compliance Statement.

APPENDIX B to Subpart F of Part 430-

Sampling Plan for Enforcement TestIng.

Subpart F-£Amended]

§ 430.60 Purpo•• and scope.

The regulations in this subpart set

forth the procedures to be followed for

certification and enforcement testing to

determine whether a basic model of a

covered product complies with the

applicable energy conservation standard

Ht forth in Subpart Cof this Part.

EDersY-conlervation atandards include

minimum levels of efficiency and

maximum levels of consumption (also

referred to as performance standards)

and prescriptive energy design

requirements (also referred to as design

atandards).

100.11 Prohibited acts.

(al Each of the following is a

prohibited act pursuant to section 332 of

the Act:

(1) Failure to permit access to. or

copying of records required to be

supplied under the Act and this rule or

failure to make reports or provide other

informatiQn required to be supplied

under this Act and this rule:

(2) Failure of a manufacturer to supply

. at his expense a reasonable number of

covered products to a test laboratory

designated by the Secretary:

(3) Failure of a manufacturer to permit

a representative designated by the

Secretary to observe any testing

required by the Act and this rule and

inspect the results of such testing: and

(4) Distribution in commerce by a

manufacturer or private labeler of any

new covered product which is not in

compliance with an applicable energy

effiCiency standard prescribed under the

Act and this rule.

(b) In accordance with section 333 of

the Act. any person who knoy;ingly

violates any provision of paragraph (a)

of this section may be subject to

assessment of a civil penalty of no more

than $100 for each violation. Each

violation of paragraph (a) of this section

shall constitute a separa te viola tion

with respect to eacn covered product.

and each day of noncompliance \~;i th

paragraphs (a) (1) through (3) of this

section shall constitute a separa te

violation.

§ 430.62 Submission of data.

(a) Compliance statement and

certification report Each manufacturer

or private labeler before dIstributing in

commerce any basic model of a covered

subject to the energy

conservatIon standard set forth in ..... ., ,... ,..., ......, C of this Part shall

means of a statement of ,""v"""t-'a,'\Q.lH•• l;;

certifica tion report. tha t

model meets the requirements of that

standard.

The compliance sta temen t shall

that:

basic model(s) with the

f"'}""""... "I"'·'"-'hlo energy

standards:

required testing on which the

compliance statement is based was

conducted in conformance with the
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54. No. 2'1 I Tuesday'. February 7: 1989 i Rules and R'egulations

appUcable tellreq1linnlllD.bt-. prelCribecl

in 10 CFR Part 430 Subpart B·ud.tm.

lubpart aDd aU. teltdata ",·reported.iD.

accordance with.tbia .ubpart:

(iii) All iDIormatiOD- reported in thlt.

compliance statement· ia true. accurate.

and complete:. and - (Iv) The manufacturer (privale:labeler)

is aware of the penalties ••sociated

with violatioM of the'Act and the

regulation. tbereundef:t and 18 U.S.c:.

1001 which prohibits knowingly makins

false atatementl to the Feeeral

Gove!1UDenL The format for acompiiance statement ilset forth in

Appendix A of thie subpart.

(2) For each· balie model the

certification report:shall include the

annual energy use and adjusted volume'

(for refrigera tors. refrigerator-freezers

and freezers). eDergy factor and rated

storage volume (for water hea ters). the

energy efficiency ratio (fo~ room air

conchtioners). seasonal energy efficiency

ratio and heating seasonal performance

factor (ior central air conditioDers and

central air conditioD.ina heat-pumps).,

thermal efficienC'Y'(forpool heaters),. and

annual fuel utilization efficiency (forfurnaces and direct heating equipment).

the model numbers for each basic

model: and il9 capacity.

(3) Copies of reports to the Federal

Trade Commission which include' the

information paragraph {a )(Z) of this

section meet the requirements of this

paragraph.

(bJ Initial reporting requirements.

All data required by paragraph (a) of

this section shall be submitted on or before the effective da te of the

applicable energy conservation standard

as prescribed in section 325 of the Act.

For each basic model of a covered

product to be distributed in commerce.

each manufacturer and private labeler

or his rppresenta tive shall file a

compliance sta tement and certification

report. by certified mail. to Department

of Energy. Appliance- Efficiency

Standards. i\ssi.stant Secretary for

Conservation and Renewable. Energy,

Forrest~l Buildlng..l000 Independence

..A..venue. SW.• Washin8ton..DC 2.D585.

(c) Newmodels. All information

required by paragraph. (a)(2.) of this

section must be-submitted fat new

models prior to: or concurrent with any

distribution of such modeL Any change

a basic model which affects energy

consumption may constitute the

addition of a new basic model subject to

the. requirements of § 430.61 of this part.

such change does Dot alter compliancev.'ith the applicable energy conservahon

standard for the basic: model. the- new

model shall be. considered certified.

~1odels which are. discentinued- shall be

reported. ill writi....to'tile Depaa tmea.t

ofEaerar.. (d) MaintBllQIICtl 01zet:Drd:r:. f1) th.-

1DI.Dufacturer of aDy covered product

lubjed to u)"o!the eDeJ1T

performance!staDduda «procedure.-

prescribed ill tbia: part. sbaD establish.

maintain. aDd maiD the records of th.

underlyingtelt data for aU: certification

lestiDg. Such recorda sbaD be oraaDized

and indexed ill a fashion. which makes

them readily accessible for review. The

o recorda should include the IUPPOrtins

test data aasociated with tests

performed on any test units to satisfy

the requirement. of this subpart (excepttesta performed by DOE directly).

(2)' All such recordl Ihall be retained.

by the manufacturer for a period of two

yean from the date that production of

the applicable model has ceased.

Record. shall b.. retained in- a fonn

allowing reedy accesl to DOE upon

request.

(e) ThirrfpartyrepresentDtion. If at

manufacturer or private labeler elects to

use a third party..e.g... trade association

or other authorized representative. to.

submit the certification report. the

certifiestion report shall include; all the

infonnation identified in paragraph (a)

of this section. including the compliance

statement.

§ QO.63 Sampling..

(a) For-purposes of a certification of

compliance. the determina tion that a basic model complies with, the

applicable energy performance standard

shall be based upon the sampling

procedures set forth in. § 430.23 of this

Part. For purposes of a certification of

compliance. the determination that a

basic model complies with the

applicable design standard shaH be

based upon the incorpora tion of specific

design requirements for clothes dryers.

dishwashers. clothes wash~rs and

kitchen ranges and ovens speCified in

section 325 of the Act.

(b) A basic model which. meets the

follOWing requirements may qualify as

an "other than tested model" for

purposes of the certifica tion testing and

sampling requirements:

{1] Central alr conditioners: The

condenser·eva pora tor coil combina tions

manufactured by the condensing unit

manufacturer other than the

combination likely to have the largest

volume of retail sales or the condensercoil combinations manufactured in part

by a component manufacturer-using the- same condensIng a.n.iL

(2) For purposes- of certification. of

"other than- tested models.." as defm.ed

in paragraph (bH 1) of this section.. a

manufacturer may' certify the basic

model on the- baSiS' of com-ptrter

limwation or matneerirtl analy.i. as set

forth ill I 430.23{m) of thil Part.

t 43QM. ......... products.

(a) Pursuant to HcUOD' 331 of the Act.

any person importing any covered

product into the United States shall

comply with the provisions of the Act

and of lbil Part aDd ilsubject to the

remedies of thil Part.

(b) Any covered product offered for

importation in violation of the Act and

of this Part shaD be refused admission

iDto the CUltOIDl territory of the Urjted

Statel under rules issued by the

Secretary of the Treasury. except that

the Secretary of the Treasury may, by

such rules. authorize· the importation of

such covered product upon such terms

and condition. (including the furnishing

of a. bond) as may appear to the

Secretary of Treasury appropria te to

ensure that such covered product will

not violate the Act and this Part. or will

be exported or abandoned to the United

States.

I 430.15 Exported products.

Pursuant to section 330 of th e Act, this

part shall not apply to any covered

product if (a) such covered product is

manufacturecL sold. or held for sale for

export from the United Slates (or such

product was imported for export). unless

such product is. in fact. distributed in

commerce for use in the United States.

and (b) such covered product. when

distributed in commerce. or any

container in which it i-:. en~losed when

so distributecL bears (I starr.p or label

stating that such cove,-ed prnduct is

inteDded for export.

§ .t3O.70 Enforcement.

(a) Performance staniJar-d~l~ Test

notice. Upon receiving il'fcrma oj "In in

wri tmg. concerning t.he e71E: rgy

performance of a particUl:lI COve ed

product sold by a parncul ir

manufacturer or private la~eler w'1ich

indicates that the covered rroduc' may

not be in compliance with L."e ap;..hcable

energy performance standard. the

Secretary may conduct testing of that

covered product under this subpart by

means of a test notice addressed to the

manufacturer in accordance wi th the

following requiremen ts:

(1) Such a procedure will only be

followed after the Secretary or his

designated representative has examined

the underlying test da ta provided by the

manufacturer and after the

manufactu.rer has been offered the

opportunity to m~t with DOE to verify

compliance with the applica bie

performance uandard. A representative

designated by' the Secretary shall be
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54. No. 24 I Tuesday, February 7. 1989 I Rules and Re~lations 8083

penn.itted to Oble"1 any reverificatiOD

procedure. by this subpart. and to

inlpect the results of.uch reverification..

Iii) 111. telt notice will be liped by

the Secretary or hi. desisnee. The test

notice will be mailed or delivered by

DOE to the plant manager or other

responsible official. as designated by the

manufacturer.

(iii) The test notice will specify the

model or basic model to be selected for

testing. the method of aelectinl the test

.ample. the time at which testing shall

be initiatecL the date by which teltirl& is

scheduled to be compleled and the

facility at which telting will be

conducted The test notice may also

provide for situations in which the

selected basic model is unavailable for

testing. and may inclu.de alternative

buic models.

(iv) The Seaetary may require in the

test Dotice that the manufacturer of a

co\'ered product shall ship at his

expense a reasonable number of units of a basic model specined in such test

notice to a testing laboratory designated

by the Secretary. The number of units of

'" basic model specified in a test notice

,hall not exceed twenty (2D).

(v) Within 5 working days of the time

ullits are selected. the manufacturer

shall ship the specified test unita of a

basic model to the ,testi.tlg laboratory.

(2) Testing Laboratory. Whenever

DOE conducts enforcement testing at a

designated laboratory iB accordance

with a test notice under this section. the

resulting test data shall constitute

official test data for that basic model.

Such test data will be used by DOE to

make a determination of compliance or

noncompliance if a ,ufficient number of

tests have been conducted to satisfy the

requirements of Appendix Bof this

subpart.

(3) Sampling. The determination tbat a

manufacturer's basic model complies

Yiith the applicable energy performance

standard shall be based OD the testing

conducted in accordance with the

statistical sampling procedW'es set forth

in Appendix B of this subpart and the

test procedures set forth in Subpart B of

this Part

(4) Test unit selection. A DOE

inspector shall select a batc~ a batch

sample. and test units from the batch

sample in accordance with the

provisions of this paragraph aod the

condi tions specified in the test notice.

(i) The catch may be subdivided by

DOE utilizing criteria specified. in the

test notice. e.g.. date of manufacture.

component-supplier. location of

manuIacturing facility. or other criteria

which may differentiate one unit from

another ~ithin a basic modeL

(ii) A batch aample of up to 20 units

will thaD be nndomJy aelected from ODe

or more .ubdiYided FOUPI within the

batch. The manufacturer.hall keep on . hand aU UDiti ill the batch aample until

.ucb time •• the basic model il

determined to be in compliance or

noncompliance-

(iii) IDdiYidual test unita comprising ..

the test ....-nple .hall be randomly

lelected from the batch .ampie.

(iv) All random .election .hall bit

achieved by sequentially numbering all

of the anita iD • batcb. sample aDd then

uains a table of raodem nwnbers to ..lect the units to be tested.

(SJ Tat unit preparation. (i) Prior to

aDd durins teatms. a test unit selected tn

accordance with paragraph (8)(4) of this

section .hall not be prepared. modified.

or adjusted in any manner unless such

preparation.. modification. or adjustment

i8 allowed by the applicable DOE test

procedure. One test shall be conducted

for each test unit in accordance with the

applicable test procedures pre.cribed in

Subpart B.

(ii) No quality control. testins or

assembly procedures shall be perfonned

on a test unit. or any parts and

.ubassemblies thereof. that is Dot

performed during the production and

assembly of all other Wlits included in

the basic modeL

(ill) A test unit shall be considered

defective if loch unit is inoperative or is

fou.nd to be in noncompliance due to

failure of the unit to operate according

to the manufacturer'. design and

operating inltroctions. Defective unilB.

including thoae damaged due to shipping or handling, shall be reported

immediately to DOE. DOE shall

authorize testing of an additional unit on

a case-by-case basis.

(6) Testing at manufacturer's option.

(i) II a manufacturer's basic model is

deten:nin~ to-be in noncompliance with

the applicable energy performance

standard at the conclusion of DOE

testing in accordance with the double

aampling plan specified in Appendix B

of this subpart. the manufacturer may

request that DOE conduct additional

testing of the model according to

procedure. set forth in Appendix B of

this subpart.

(ii) All units tested under paragraph

(a)(6) of this section shall be selected

and tested in accordance with the

provisions given in paragraphs

~ough(5)oftlllssectio~

(iii) The manufacturer shall bear the

COlt of all testing conducted under

paragraph (a)(6) of this section.

(iv) The manufacturer shall cease

distribution of the basic model being

tested under the provisions of paragraph

(a).{6) 9f this sectioo from the time themanufacturer elects to exercise the

option provided ill this paragraph until

the ba.ie model is determined to be in

compliance. DOE may leek civil

penaltia for all units distributed during

luda period.

(v) Uthe additional testing results in a

detennination of compliance. a notice of

allowance to resume distribution shall

be issued by the Department.

(b) Design standard. In the csse of a

design standard. a model is determined

noncompliant by DOE after the

Secretary or his designated

representative hal examined the

underlying design information pro,·ided

by the manufacturer and after the

manufacturer has been offered the

opportunity to ,-erify compliance with

the applicable design standard.

I C30.71 Cftutlon of distribution of •

baeicmodeL

(a) In the event that a model is

determined noncompliant by DOE in

accordance with § 430.70 of this Part or

if a DlaDufactun!r or private labeler

determines a model to be in

noncompliance. then the manufacturer

or private labeler shall:

(1) Immediately cease distribution in

commerce of the basic model:

(2) Give immediate WTittcn

notificatioD of the determina tion of

noncompliance. to all persons to whom

the manufacturer has dist:ibuted units

of the basic model manufactured Since

the da te of the last determina tion of

compliance.

'(3) Pursuant to a request made by the

Secretary, provide DOE within 30 days

of the request. records. reports and other

documenta tion pertaining to the

acquisition. ordering, storage. shipment.

or sale of a basic model determined to

be in noncompliance.

4. The manufacturer may modify the

noncompliant basic model in such

manner as to make it comply with the

applicable performance standard. Such

modified basic model shall then be

treated as a new basic model and must

be certified in accordance with the

provisions of this subpart; except that in

addition satisfying all requirements of

this subpart. the manufacturer shall also

maintain records that demonstrate that

modifications have been made to all

units of the new oasic model prior to

distribution in commerce.

(b) U a basic model is not properly

certified in accordance with the

requirements of this subpart the

Secretary may seek. among other

remedies. injunctive action to prohibit

distribution in 'COmmerce of such basic

model
 CAS-RM-78-110 COMMENT 13

8084 Federal Register I Vol. 54. No. 24 I Tuesday, February 7, 1989 I Rules and Regulations

1430.71 ...........

Punuant to section 329{a) of theAct.· .

for purposes of carryinl out this part.

the Secretary or the Secretary's

delianee. may sign and i.sue subpoenal

for me attendance and testimony of

witnesses and the production of relevant

books. recorda. papera. and other

documents. and administer the oaths.

Witnesses summoned under the

provisions of th il section ehall be paid

the .ame rees and mileage al are paid to

witneslel in the courts of the United

States. In case of contumacy by. or

refusal to obey a subpoena served. upon

any persons subject to this Part. the

Secretary may seek an order from the

District Court of the United States for

any District in which such person is

found or resides or transacts business

requiring such person to appear and give

testimony, or to appear and produce

documents. Failure to obey such order il

punishable by such court al a contempt

thereof.

§~73 AemedJeL

If DOE determines that a basic model

of a covered product does not comply

with an applicable energy conservation

standard: " (a) DOE will notify the manufacturer,

private labeler or any other person al

required. of this finding and of the

Secretary's intent to seek a judicial

order restraining further distribution in

commerce of such basic model unless

the manufacturer, priva te labeler or any

other person as required. delivers to .

DOE within 15 calendar days a statement. satisfactory to DOE. of the

stepa he will take to insure that the

noncompliant model will no longer be

distributed in commerce. DOE will

monitor the implementation of such

statement.

(b) U the manufacturer, private labeler

or any other person as requireti fails to

Itop distribution of the noncompliant

model. the Secretary may seek to

restrain luch viola tion in accordance

with section 334 of the Act.

(c) The Secretary shall determine

whether the fact! of the case warrant

the assessment of civil penalties for

knowing violations in accordance with

section 333 of the Act.

§ .a3O.7.. Heartn9s and appeal&.

(a) Pursuant to section 333(d) of the

Act. before issuing an order assessing a civil penalty against any person under

this section. the Secretary shall provide

to such person notice of the proposed

penalty. Such notice shall inform such

person of tha t person's opportunity to

elect in writing within 30 days after the

date of receipt of such notice to have the . procedures of paragraph (c) of this

,leCtioa (iD Ueu of those ill parasraph (b)

of tbil .ection) apply with rnpect to

IUCb a..es.menL

(b)(t) Unless an election II made

within 30 calendar days .fter receipt of

notiCe under paragraph (8) of this

.ection to have paragraph (cl of this

section apply with respect to luch

penalty, the Secretary shaD asse.s the

penalty. by order. after a determination

ofviolationtba. been made on the

record after an opportunity for an a.eney hearing pursuant to lection 554

of Tide l. United Statel Code. before I.Il

administrative law judse appointed

under section 3105 of such Title 5. Such

assessment order shall include the

administrati,,·e law judge's findings and

the basis for such assessment.

(2) Any person against whom a penalty is assessed under this section

may. within 60 calendar days after the

date of the order of the Secretary

assessing such penalty. institute an

action in the United States Court of

Appeals for the appropriate judicial

circuit for judicial review of such order

in accordance with Chapter 7 of Title 5,

United States Code. The court shall

have jurisdiction to enter a judgment

affirming. modifying, or letting aside in

whole or in part. the order of the

Secretary, or the court may remand the

proceeding to the Secretary for such

further action as the court may direct.

(c)(1) In the case of any civil penalty

with respect.to which the procedures of

this section have been elected. the

Secretary shall promptly assess such

penalty. by order, after the date of the

receipt of the notice under paragraph (a)

of this section of the proposed penalty.

(2) II the civil penalty has not been

paid within 60 calendar days after the

assessment has been made under

paragraph (c)(1) of this section. the

Secretary shall institute an action in the

appropriate District Court of the United

States for an order afilmling the

assessment of the civil penalty. The

court shall have authority to review de novo the law and the facts involved and

shall have jurisdiction to enter a judgment enforcing. modifying, and

enforcing as so modified. or setting

aside in whole or in part. such

assessment.

(3) Any election to have this

paragraph apply may not be revoked

except with the consent of the Secretary.

(d) U any person fails to pay an assessment of a civil penalty after it has

become a final and unappealable order

under paragraph (b) of this sect!on. or after the appropriate District Court has

entered final judgment in favor of the

Secretary under paragraph (c) of this

section. the Secretary shall institute an action to recover the amount of such

penalty in any appropriate District Court

of the United-5tatel. In such action. the

validity and appropriateness of such

final a.les.ment order or judgment shall

not be subject to review.

(e)(1) In accordance wit!t the

provisionl of section 333(dl(S)(A) of the

Act and notwithstanding the provisions

of title 28. United States Code. or section

502(c) of the Department of Energy

Ol'lanization Act. the Secretary shall be

represented by the General Counsel of

the Department of Energy (or any

attomey or attorneys within DOE

designated by the Secretary) who shall

supenise. conduct. and argue any civH

,litigation to which paragraph (c) of this

section applies including any relcted

collection action under paragraph (d) of

this section in a court of the United

States or in any other court. except the

Supreme Court of the United States.

However. the Secretary or the General

Counsel shall consult with the Attornev

General conceming such litigation and"

the Attorney General shall provid~. on

request. such assistance in the conduct

of such litigation as may be appropriate.

(2) In accordance with the provisions

of section 333{d){5){B) of the Act. and

subject to the provisions of section

502(c) of the Department of Energy

Organization Act. the Secretary shall be

represented by the Attorney General, or

the Solicitor General. as appropriate. in

actions under this section. except to the

extent pro\'ided in paragraph (e){1) of

this section.

(3) In accordance with the provi~dons

of section 333(d)(S)(C) of the Act. sectior.

402(d) of the Department of Energy

Organization Act shall not apply w th

respect to the function of the Secre t \ry

under this section.

f~75 Confldentlaltty.

Pursuant to the provisions of 10 CFH

1004.11. any person subrnitting

information or data which the person

believes to be confidential and exempt

law from public disclosure should

submit one complete copy. and fifteen

copies from which the information

believed to be confidential has been

deleted. In accordance with the

procedures established at 10 C.FR

1004.11. DOE shall make its own

determination with regard to any claim

that information submitted be exempt

from public disclosure.

OMB Control No. 1910-1400

Appendix A to Subpart F Compliance

Statement

Statement of Compliance With Energy

Conservation Standards for Appliances

Product:------- _

ManuIacturer', Name and Addresa
 CAS-RM-78-110 COMMENT 13

Fed.ral Register I VoL 54. No. 24- I Tuesday. February 1, 1989 I Rules and Regulations 6085

Date: -------------- Submit by Ctlrti!ied MQil to: Dep.rtment of

Enet1Y. Appliance Effidency Standard.. Aalistant Secretary for Conservation and

Renewable Energy. Forrestal Building.. 1000

Independpnce Avenue. SW•• Wa.hiftlton. DC

Z058S.

Thil report il lubmitted pursuant to Part

430 (Ene'l1' Conservation ProtP'8m for

Con.umer Productl) of the £DerBY Policy an~

Conservation Act (Pub. L. 94-183). and

amendmentl thereto. The baie model(l)

inclUded in thi. report comptie. (comply)

with the applicable enefIY conlervation

.tandard. All teltiftl where appropri.te. on

which thil certificatiOIl report i.e haaeeL wal

canductecl iD CODformuace with the

appbcable tnt requirements preec:ribed In

Subpart Bof10 CFR Part GO. All information

reported in thiI certification report 11 true.

accurate. and complete. I am aWaN or the

penaltie. anodated with violationa of the

Act'and tbe resulatioftl thereunder. and am alia aware of the provisions contained in 18

U.s.c. 1001. which prohibits kDowingly makinI falae atatements to the Federal

CovemmenL

Name of Penon to Contact for further

Information: Name:------------- Addresl:

TelephoneNo.:----------

U the model.pecific information

accompanying thi. It.tement of compliance wu prep.red by. third party o....nization -

IIDder the proYi.iona of I 430.12 of 10 CFR

Part GO. the iDdlvidual (manufacturer)

authorizilll third party reprelentetiona:

Silftahlre:----------- Name:'-------------- AcIclresa:

TelephoneNo.;-----------

Appeadix B to Subpart F of Part 430-

SAmpliDl PIaD for EDforcemeDt Te1tml

Doll..SampUal

Step 1. The'fint Ample lize (n,) mUlt be

four or more unitl.

Step 2. Compute the,mean (x,) of the

me.awed energy perfonnance of the n, units

ill the fint lample •• foUows: '

(1)

where Xt I. tht: measured energy emciency or

eneJ'IY consumption cl' unit i. .

Step 3. Compute the standard deviation (11)

of the mellsuree eDergy performance of the D,

units in the first .empie aa followa:

n1

L (Xi - 2

Xl)

51 = 1=1 "-

n - 1 1

Step t. Compute the .tandard error {571

}

oI the measured eaergy performance,of the n,

units in thP. first sample .1 follows.:

(2)

Step 5. Compute the upper control limit

fUeL.) and lower control limit (Letl) for the

mean of the ftn.t aample using the appliC'!ble

DOE energy performance standard (EPS) as

3

the desired mean and a level of 95

percent {two-taded a8 follO¥t·s:
 CAS-RM-78-110 COMMENT 13

8088 Federal Register I Vol. 54, No. 24 I Tuesday, February 7, 1989 I Rules and Regulations

LCL1 • IPS ts- (4)

~1

VCL1

" a IPS + ts- (5)

'X,l

i.

where t i•••talistic based on 895 percent

two-tailed probability level and. sample size

OfDI.

Step IA. For an EnefIY Efficiency

Standard. compare the mean of the rU'St

sample (i,) with the upper and lower control

limits (UCL, and LeL.) to determine one of

the following:

(i) If the mean of the first sample is below

the lower controllimiL then the basic model

il in noncompliance and testing ia at an end.

(Do not go on to any of the Iteps b~low.)

(ii) 1£ the mean of the first sample is equal

to or greeter than the upper control limit. then

the basic model is in compliance and testing

is at an end. (Do not 80 on to any of the steps

below.)

(iii) If the sample mean il equal to or

~eater than thf! lowp.r control limit but less

than the upper control limit. then no

detennina tion of compliance or

noncompliance can be made snd a second

sample size is detennined by Step 7a.

Step 6b. For an Energy Consumption

Standard. cOIT'.pa~e the mean of the first

sample (il ) with the upper and lower control

limits (UCL1 and LCL&) to determine one of

the following:

(i) II the mean of the first sample is above

the upper control limit. then the basic model

is in noncompliance and testing is at an end.

(Do not go on to any of the steps below.)

Oi) II the mean of the first sample is equal

to or lesl than the lower control limit. then

the basic model is in compliance and testing

is at an end. (Do not go on to any of the stepl

below.)

(iii) If the sample mean is equal to or lesl

than the upper control limit but greater than

the lower control limit. then no determination

of compliance or noncompliance can be made

and a second sample size is determined by

Step 7b.

Step 7a. For an Energy Efficiency Standard..

determine the sf-cond lampie sIze (0::) 81

follows:

1 = +

Step 9. Campute the standard error (I~) of

the measured energy performance of the nl

-11I- ( o.~ ;A )a -Ill- (ea)

where .. and t have the values used in'Stepl

4 and S. respectively. The term "0.05 EPS" il

the difference between the applicable enel'8Y

effiCiency Itandard and 95 percent of the

standard. where 95 percent of the standard is

taken al the lower controllimiL Thil

procedure yields a sufficient combined

lample lize (nl +111) to give an estimated 97.5

percent probability of obtaining a

determination of compliance when the true

mean efficiency il equal to the applicable

Itandard.

Civen the solution value of fb. detennine

one of the following~

(1) If the value of ria il less than or equal to

zero and if the mean energy efficiency of the

first sample (xd is either equal to or greater

than the lower control limit (LCL,) or equal to

or greater than 95 percent of the applicable

energy effiCiency standard (EES), whichever

ia greater. i.e.. if

I'b <a and XI maxfLCLa. 0.95 EES).

the basic model is in compliance and testing

ia at an end.

(2) If the value of lla is less than or equal to

zero and the mean energy effiCiency of the

fll'St sample (Xl) ia les8 than the lower control

limit (LCLd or less than 95 percent of the

applicable energy effiCiency standard (EES).

whichever il grea ter. i.e.• if

I'b aand Xl < max(LCLa. 0.95 EES).

the basic model il in noncompliance and

teating is at an end.

(3) II the value of Qa is greater than zero.

then value of the second sample size is

determined to be the smallest integer equal to

or gN!ater than the solution value of t'b for

equation (6a). II the value of lb so calculated

i. greater than 2O-n,. set Il:I equal to 2O-n,.

Step 7b. For an Energy Consumption

Standard. detemune the second sample size

(n=) as follows:

and 0:: units in the combined first and second

samples aa follows:

na- ( _' 1'_ )2 -n, (tib)

o.os EPA

where II and t have the values used in Steps

4 and 5. respectively. The term "0.05 EPS" lS

the difference between the applicable ener~y

consumption standard and 105 percent of t::i:

Itandard. where lOS percent of the standard

i. taken aa the upper control limit. This

procedure yhdds a sufficient combined

lample size (n, + n:zl to give an estiffiated

07.5 percent probability of obtai!1in~ a

determination of compliance when the true

mean co~sumptionis equal to the applicable

Itandard.

Given the solution value of n2. determi:1e

one of the fol1owinsz:

(1) If the value of n2 is less than or equal to

zero and if the mean energy consumption of

the first sample (xd is either equal to or less

than the upper controllirnit (UeL,) or equal

to or less than 105 pe;-cent of the applictlbl~

energy performance standard (EPS).

whichever is less. Le.. if

na Oandxl min(UCl,. 1.05 EPS).

the basic model is in compliance and testing

is at an end.

(2) II the value of l"b is lesl than or equal to

zero and the mean ene~ consumption of the

flrlt lample (Xl) u. greater than the upper

controllirnlt (UCL.) or more than 105 percent

of the applicable ene~y performance

standard (EPS). whichever is less. Le.. if

fb 0 and Xl ~t!~ min(LCL.. 1.05 EPS).

the basic model is in noncompliance and

testing is at an end.

(3) If the value of t'b is grea ter than zero.

then the value of the second sample 11ze is

determined to be the smallest integer equal to

or greater than the solution value of n. for

equation (6b). U the value of!b so C4Jlculated

i. greater than 2O-n,. let l"b equal to 2O-n,.

Step a. Compute the combined mean (x.:) of

the mealured energy performance of the n,

and I'b units of the combined first and second

samples aa follows~

(7)
 CAS-RM-78-110 COMMENT 13

Federal Register I Vol. 54, No. 24 I Tuesday. February 7, 19aq I Rules and Regulations &087

ai

2

No~ is the value obtained ill Step 3.

Step 108. For an EnellY Efficiency

Standard. compute the lower control limit

(LCLe) for the mean of the combined first and

second Ampln Ulilll the'DOE enellY

efficiency standard (EES) as th. desired

mean and a one-tailed probability-level of

81.1 percent (equivalent to the two-tailed

(8)

probability level 0195 percent used in Step 5.

above) a. followa:

LCL2 = EES - t s-X2

~9a)

where the t-.tatistic hal the 'value ob~ained in

Step 5 above.

Step tOb. For an Energy Conaumption

Standard. compute the upper ccntrollimit

(Va.) for the mean of the combined first and

NCOnd samples using the DOE energy

performance standard (EPS) as the desired

mean aDd. one-tailed probability level of

102.5 percent (equivalent to the two-tailed

probability level of 95 percent used in Step 5.

aboveJaa follows:

UCL2 = EPS + t sX2

(9b)

"here the t-llaUstic hal the value obtained in

Step 5 above.

Step 118. For an Energy Efficiency

Standard. compare the combined lample

mean (X:i) to the lower control limit (LCI...) to

find one of the follOWing:

(i) If the mean of the combined sample (i,)

illess than the lower control limit (LCLe) or

95 percent of the applicable energy efficiency

Itandard (EES). whichever i. greater. i.e.. if

Xi < max(LCLe. 0.95 ££5).

the basic model il in noncompliance and

testing is at an end.

(ii) If the mean of the combined sample (X.)

is equal to or greater than the lower control

limit (LCLe) or 95 percent of the applicable

energy efficiency standard (EES). whichever

i. greater. i.e.. if

max(LCLlt 0.95 EES).

the basic model is in compliance and testing

is at an end.

Step llb. For an Energy Consumption

Standard. compare the combined lample

mean (Xa) to the upper control limit (UCI..) to

find one of the following:

(i) If the mean of the combined lample (X2)

is greater than the upper control limit (UCLe)

or 105 percent of the applicable energy

performance Itandard (EPS). whichever ia

less. i.e.• if

XI > min(UCL.. 1.05 EPS).

the basic model ia in noncompliance and

telting ia at an end.

(ii) U the meaD of the combined .ample (Xt)

ia equal to or In. than the upper control limit

(UCL.) or 105 percent of the applicable

energy perfonnance Itandard (EPS),

whichever leiS, i.e.• if

Xi :a minCUc.., 1.05 EPS).

the basic model it in compliance and testing

il at an end.

Manufacturer-Option Testing

U a detennination of non-eompliance is

made in Steps 6. 7 or 11. above, the

manufacturer may request that additional

telting be conducted. in accordance with the

follOWing procedures.

Step A. The manufacturer requests that an

additional number. na, of units be tested wi th

Ib chosen such that D, +J1I+1b does not

exceed 20.

Step B. Compute the mean energy

performance. Itandard error. and lower or

upper control limit of the new combined

aample in accordance with the procedures

prescribed in Steps 8. 9. and 10. above.

Step C. Compare the mean performance of

the new combined sample to the revised

lower or upper control limit to determine one

of the following:

a.l. For an Energy Efficiency Standard. if

the new combined sample mean is equal to or

greater than the lower control limit or 95

percent of the applicable energy efficienc;,

atandard. whichever il greater. the basic

model il in compliance and.testing is at an

end.

a.2. For an Energy Consumption Standard.

if the new combined lample mean is equal to

or less than the upper control limit or 105

percent of the applicable energ)' consumption

Itandard. whichever i. les•. the basic model

11 in compliance and telting is at an end.

b.l. For an Energy Efficiency Standard. if

the new combined sample mean i. less than

the lower controllirnit or 95 percent of the

applicable energy efficiency standard.

whichever. is greater. and the value of

D, +Ih+fb is less than 20. the manufacturer

may request that additional units be tested.

The total of all units tested may not exceed

20. Steps A. B. and C are then repea ted.

b.2.. For an Energy Consumption Standard.

if the new combined sample mean is grea ler

than the upper control limit or 105 percent of

the applicable energy consumption standard.

whichever is less. and the value of n, +, +3 is

less than 20. the manufacturer may request

that additional units be tested. The total of all

units tested may not exceed 20. Steps A. B.

and C are then repea ted.

c. Otherwise. the basic model il

determined to be in noncomphance.

[FR Doc. 89-2716 Filed 2-6-89: 8:45 am I

..WHO CODE 1A50-0,....