12422 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

DEPARTMENT OF ENERGY 

10 CFR Parts 429, 430 and 431 

[Docket No. EERE–2010–BT–CE–0014] 

RIN 1904–AC23 

Energy Conservation Program: 

Certification, Compliance, and 

Enforcement for Consumer Products 

and Commercial and Industrial 

Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE or the ‘‘Department’’) is 

adopting revisions to its existing 

certification, compliance, and 

enforcement regulations for certain 

consumer products and commercial and 

industrial equipment covered under the 

Energy Policy and Conservation Act of 

1975, as amended (EPCA or the ‘‘Act’’). 

These regulations provide for sampling 

plans used in determining compliance 

with existing standards, manufacturer 

submission of compliance statements 

and certification reports to DOE, 

maintenance of compliance records by 

manufacturers, and the availability of 

enforcement actions for improper 

certification or noncompliance with an 

applicable standard. Ultimately, the 

provisions being adopted in this final 

rule will allow DOE to enforce 

systematically the applicable energy and 

water conservation standards for 

covered products and covered 

equipment and provide for more 

accurate, comprehensive information 

about the energy and water use 

characteristics of products sold in the 

United States. 

DATES: Effective Dates: The amendments 

to Parts 429 (except §§ 429.12 through 

429.54), 430 (except Appendix A to 

Subpart B of Part 430 and Appendix B 

to Subpart B of Part 430), and 431 are 

effective April 6, 2011. 

The amendments to §§ 429.12 through 

429.54 are effective July 5, 2011. 

The amendments to Appendix A to 

Subpart B of Part 430 and Appendix B 

to Subpart B of Part 430 are effective 

November 28, 2011. 

The incorporation by reference of the 

standards listed in this rule is approved 

by the Director of the Federal Register 

as of April 6, 2011. 

ADDRESSES: This rulemaking can be 

identified by docket number EERE– 

2010–BT–CE–0014 and/or Regulatory 

Identification Number (RIN) 1904– 

AC23. 

Docket: For access to the docket to 

read background documents, or 

comments received, go to the Federal 

eRulemaking Portal at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ashley Armstrong, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. 

Telephone: 202–586–6590. E-mail: 

Ashley.Armstrong@ee.doe.gov; and Ms. 

Laura Barhydt, U.S. Department of 

Energy, Office of the General Counsel, 

Forrestal Building, GC–32, 1000 

Independence Avenue, SW., 

Washington, DC 20585. Telephone: 

202–287–6122. E-mail: 

Laura.Barhydt@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule incorporates by reference into Part 

429 the following industry standards: 

• ANSI/AHAM DW–1–1992, 

American National Standard, 

Household Electric Dishwashers, 

approved February 6, 1992, IBR 

approved for § 429.19. 

Copies of ANSI/AHAM DW–1–1992 is 

available from the Association of Home 

Appliance Manufacturers, 1111 19th 

Street, NW., Suite 402, Washington, DC 

20036, 202–872–5955, or go to http:// 

www.aham.org. 

• International Organization for 

Standardization (ISO)/International 

Electrotechnical Commission, (‘‘ISO/IEC 

17025:2005(E)’’), ‘‘General requirements 

for the competence of testing and 

calibration laboratories’’, Second 

edition, May 15, 2005, IBR approved for 

§ 429.104. 

Copies of ISO/IEC 17025:2005(E) are 

available from the International 

Standards Organziation1, ch. de la VoieCreuse CP 56 CH–1211 Geneva 20 

Switzerland, telephone +41 22 749 01 

11, or go to http://www.iso.org/iso. 

Table of Contents 

I. Authority and Background 

II. Summary of the Final Rule 

A. Certification 

B. Enforcement Testing 

C. Reorganization 

III. Discussion of Comments 

A. Annual Certification Requirement 

B. Revisions to Reporting Requirements 

1. Reporting Sample Size and Total 

Number of Tests Performed 

2. Reporting of Testing Data 

3. Reporting Use of an ARM/AEDM or 

Other Alternative Method of Rating 

4. Defining ‘‘distribute in commerce’’ 

5. Product-Specific Revisions to Reporting 

Requirements 

C. Certifying Entities and Third-Party 

Representation 

D. Submission of Certification Reports 

E. New Basic Model Filing, Basic Model 

Concept, and Notice of Discontinuance 

1. New Model Filing and Basic Model 

Concept 

2. Basic Model Numbering 

3. Notice of Discontinuance 

F. Certification Testing, Generally 

G. Certification Testing Specific to 

Commercial HVAC and WH Equipment, 

Including the Use of AEDMs and VICPs 

H. Records Retention and Confidentiality 

1. Records Retention by Manufacturers 

2. Confidentiality of Information 

I. Enforcement Testing 

1. Initiation of an Enforcement Action 

2. Process Provided to Manufacturers 

During Enforcement Testing 

3. Test Notice 

4. Sampling for Enforcement Testing 

5. Testing Done for Other Agencies 

6. Test Unit Selection 

7. Testing at Manufacturer’s Option 

8. Cost Allocation for Testing 

9. Third-Party Laboratory Requirements for 

Enforcement Testing 

10. Enforcement for Imports and Exports 

J. Adjudication 

1. Prohibited Acts 

2. Penalties 

3. Imposition of Additional Certification 

Testing Requirements as Remedy for 

Non-Compliance 

4. Compromise and Settlement 

K. Waivers 

L. Additional Product Specific Issues 

1. Entity Responsible for Certification and 

Compliance for Walk-In Coolers or 

Freezers (WICFs) 

2. Basic Model Definition for Walk-In 

Coolers or Freezers (WICFs) 

3. Basic Model and Manufacturer Model 

Number Reporting for Distribution 

Transformers, WICFs, and External 

Power Supplies. 

M. Additional Issues for Which DOE 

Sought Comment in September 2010 

NOPR 

1. Verification Testing 

2. Voluntary Industry Certification 

Programs 

3. Certification, Compliance and 

Enforcement for Electric Motors 

4. Revisions to Sampling Plans for 

Certification Testing 

IV. Procedural Issues and Regulatory Review 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

1. Reasons for the Final Rule 

2. Objectives of and Legal Basis for the 

Final Rule 

3. Description and Estimated Number of 

Small Entities Regulated 

4. Description and Estimate of Compliance 

Requirements 

5. Duplication, Overlap, and Conflict With 

Other Rules and Regulations 

6. Significant Alternatives to the Rule 

C. Review Under the Paperwork Reduction 

Act 

1. Description of the Requirements 

2. Method of Collection 

3. Data 

D. Review Under the National 

Environmental Policy Act 

E. Review Under Executive Order 13132 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12423 

1For editorial reasons, Parts B (consumer 

products) and C (commercial equipment) of Title III 

of EPCA were re-designated as parts A and A–1, 

respectively, in the United States Code. 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 12630 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

V. Approval of the Office of the Secretary 

I. Authority and Background 

Title III of the Energy Policy and 

Conservation Act of 1975, as amended 

(‘‘EPCA’’ or, in context, ‘‘the Act’’) sets 

forth a variety of provisions designed to 

improve energy efficiency. Part A of 

Title III (42 U.S.C. 6291–6309) provides 

for the Energy Conservation Program for 

Consumer Products Other Than 

Automobiles. The National Energy 

Conservation Policy Act (NECPA), 

Public Law 95–619, amended EPCA to 

add Part A–1 of Title III, which 

established an energy conservation 

program for certain industrial 

equipment. (42 U.S.C. 6311–6317) 1

Sections 6299–6305, and 6316 of 

EPCA authorize DOE to enforce 

compliance with the energy and water 

conservation standards (all non-product 

specific references herein referring to 

energy use and consumption include 

water use and consumption; all 

references to energy efficiency include 

water efficiency) established for certain 

consumer products and commercial 

equipment. (42 U.S.C. 6299–6305 

(consumer products), 6316 (commercial 

equipment)) DOE has promulgated 

enforcement regulations that include 

specific certification and compliance 

requirements. See 10 CFR part 430, 

subpart F; 10 CFR 430.23–25; 10 CFR 

part 431, subparts B, J, K, S, T, U, and 

V. 

On September 16, 2010, the 

Department published in the Federal 

Register a Notice of Proposed 

Rulemaking regarding Certification, 

Compliance, and Enforcement for 

Consumer Products and Commercial 

and Industrial Equipment (September 

2010 NOPR). 75 FR 56796. DOE 

subsequently published two correction 

notices, which addressed the public 

meeting date and an omission in the 

regulatory text. 75 FR 57410 (September 

21, 2010) and 75 FR 61361 (October 5, 

2010), respectively. A public meeting 

was held in Washington, DC, on 

September 30, 2010. The comment 

period for written submissions was 

scheduled to close on October 18. In 

response to multiple requests, DOE 

extended the comment period to close 

on October 29, 2010. 

The September 2010 NOPR proposed 

to revise, consolidate and streamline the 

Department’s existing certification, 

compliance, and enforcement 

regulations for certain consumer 

products and commercial and industrial 

equipment covered under EPCA. 

II. Summary of the Final Rule 

A. Certification 

Today’s rule revises the Department’s 

current certification regulations to 

ensure that the Department has the 

information it needs to ensure that 

regulated products sold in the United 

States comply with the law. Currently, 

manufacturers of covered consumer 

products and commercial and industrial 

equipment must certify, by means of a 

compliance statement and a certification 

report, that each basic model meets the 

applicable energy conservation, water 

conservation, and/or design standard 

before distributing it in commerce 

within the United States. See 10 CFR 

430.62 (consumer products); 431.327 

(metal halide lamp ballast) and 430.371 

(certain commercial equipment). As 

proposed in the September 2010 NOPR, 

DOE is adopting an annual certification 

reporting requirement for all covered 

products and covered equipment. 

Additional details are discussed below. 

Such annual filings will provide DOE 

with comprehensive, up-to-date 

efficiency information about the 

regulated products sold in the United 

States at any given time—a necessary 

predicate to an effective enforcement 

program. 

DOE believes it is also appropriate to 

provide more transparency in the 

certification report itself. In the 

September 2010 NOPR, DOE proposed 

to expand the information submitted by 

manufacturers, including general 

requirements applicable to all products 

and product-specific requirements. DOE 

also proposed to make clear that all nonproprietary certification information 

will be considered public information. 

As a result of stakeholder comments, 

DOE made some modifications to the 

product-specific information it is 

collecting and the public disclosure of 

such information in the final rule. These 

changes are discussed in more detail 

below. By requiring additional relevant 

data that affects the energy or water 

efficiency of a product to be supplied in 

the certification report, DOE will be able 

to more effectively enforce compliance 

with the conservation standards. 

To provide manufacturers with 

sufficient time to transition to these new 

certification provisions, the effective 

date of the certification requirements is 

120 days from the publication of the 

final rule in the Federal Register. Each 

basic model of covered product or 

covered equipment that has not 

previously been certified with the 

Department must be certified on or 

before July 5, 2011 using DOE’s on-line 

certification tool (i.e., the Compliance 

Certification Management System or 

CCMS) and the pre-formatted EXCEL 

templates. See https:// 

www.regulations.doe.gov/ccms/ for 

additional information. For those basic 

models of covered products or covered 

equipment that have previously been 

certified with the Department, 

manufacturers are required to submit 

revised certification data pursuant to 

regulations being adopted as part of 

today’s final rule in accordance with the 

annual report table in 10 CFR 429.12. 

B. Enforcement Testing 

The Department is modifying its 

regulations for enforcement testing to 

allow the Department to enforce the 

Federal efficiency standards proactively 

and fairly based on the circumstances of 

each case. In particular, today’s rule 

makes three revisions to DOE’s 

approach to enforcement testing that, 

although relatively minor, will 

significantly improve the effectiveness 

of DOE’s enforcement program. First, 

the Department is removing the current 

regulatory provision that requires DOE 

to receive a written complaint alleging 

a violation of the standard before it can 

perform enforcement testing to 

determine a model’s compliance. EPCA 

affords DOE with broad enforcement 

discretion, and DOE must be able to 

exercise that discretion proactively to 

ensure compliance and deter violations 

effectively. Second, today’s rule allows 

the Department to select units for 

enforcement testing from retail, 

distribution, or manufacturer sources, 

depending on the circumstances, to 

ensure enforcement test results that are 

as unbiased, accurate, and 

representative as possible. Finally, the 

Department recognizes that the current 

regulatory approach to enforcement 

testing—involving DOE selected units 

and third party testing—may be 

impracticable for low-volume, custombuilt products or where adequate 

laboratory facilities are unavailable. 

Thus, today’s rule adopts an alternative 

approach to enforcement testing in such 

exceptional cases—allowing DOEwitnessed testing at the manufacturer’s 

lab and/or reduced sample sizes—to 

permit effective enforcement testing 

without imposing unreasonable burdens 

on manufacturers. 

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12424 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

C. Reorganization 

With the exception of electric motors, 

in the September 2010 NOPR, DOE 

proposed to move all of the existing 

certification, compliance, and 

enforcement regulations currently 

scattered throughout parts 430 and 431 

to a new Part 429. DOE additionally 

proposed to consolidate similar 

provisions for both consumer products 

and commercial and industrial 

equipment. 

In response to DOE’s proposed new 

structure, DOE received several 

comments from interested parties on its 

September 2010 NOPR, some of which 

were organizational in nature. For 

example, a comment submitted by the 

National Electrical Manufacturers 

Association (NEMA) suggested grouping 

all the regulations that were relevant to 

a single product in a discrete portion of 

Part 429. (NEMA, No. 85.1 at p. 2) In 

response to these comments, and to 

provide additional clarity to Part 429 

requirements, DOE has made the 

following changes to Part 429 in today’s 

final rule: 

• Consolidated general requirements 

into Subpart A. 

• Consolidated all certification 

requirements into Subpart B, with the 

creation of product-specific sections for 

sampling plans and certification 

requirements. This is intended to 

simplify the presentation for 

manufacturers and others who need 

information on a single product. Also, 

each of the product-specific sections 

now specifies the relevant sampling 

equations to ensure certification 

requirements are clear; 

• Added Appendix D to Subpart B 

which includes Student’s t-distribution 

values for one-tailed confidence level 

calculations for product certification; 

• Reorganized Subpart C to 

distinguish between enforcement 

measures and verification measures; and 

• Incorporated a variety of editorial 

changes addressing certification, 

sampling plans, and enforcement. 

DOE is adopting Part 429 in its 

entirety today and expects to integrate 

electric motors into this Part in a 

subsequent rulemaking. 

III. Discussion of Comments 

A. Annual Certification Requirement 

Existing certification requirements 

direct most manufacturers of covered 

consumer products and commercial and 

industrial equipment to certify, by 

means of a compliance statement and a 

certification report, that each basic 

model meets the applicable energy 

conservation, water conservation, 

and/or design standard before 

distributing it in commerce within the 

United States. See 10 CFR 430.62 

(consumer products); 10 CFR 431.36, 

430.371 (commercial equipment). In the 

September 2010 NOPR, DOE proposed 

moving to an annual certification 

reporting requirement for each basic 

model of covered product and covered 

equipment. Additionally, DOE proposed 

an annual filing schedule based 

generally upon the Federal Trade 

Commission (FTC) schedule for similar 

product types subject to annual 

reporting under the FTC’s Appliance 

Labeling Rule. For commercial and 

industrial equipment, DOE proposed to 

align similar equipment types with the 

FTC schedule for consumer products. 

Today’s rule adopts a mandatory 

annual certification filing requirement 

(as opposed to an annual testing 

requirement) and sets out a reporting 

schedule aligned as closely as possible 

with the current FTC schedule for 

consumer products. Under DOE’s selfcertification enforcement framework, 

only products that have been certified to 

DOE by manufacturers as compliant 

with the applicable standards can be 

distributed in commerce in the United 

States. Annual filings will provide the 

Department with up-to-date and 

comprehensive efficiency information 

about regulated products sold in the 

United States—a necessary predicate to 

an effective enforcement program. 

Recognizing this, many commenters, 

including the Alliance for Water 

Efficiency (AWE), Underwriters 

Laboratories, Inc. (UL), Alliance 

Laundry Systems LLC (ALS), Northwest 

Energy Efficiency Alliance (NEEA), 

Earthjustice, and the Association of 

Home Appliance Manufacturers 

(AHAM), supported an annual filing 

requirement. (AWE, No. 38.1 at p. 3; UL, 

No. 60.1 at p. 1; ALS, No. 66.1 at p. 1; 

NEEA, No. 67.1 at p. 2; Earthjustice, 

Public Meeting Transcript, No. 103 at 

pp. 42–43; AHAM, No. 98.1 at p. 4) As 

one commenter put it: ‘‘Knowledge of 

what products are being distributed in 

commerce at any given time is the 

foundation of an effective certification 

and enforcement program. A one-time 

initial certification of compliance does 

not provide the needed level of 

knowledge.’’ (NEEA, No. 67.1 at p. 2) 

A few commenters objected to the 

proposal, arguing that annual filing was 

not needed and would increase 

reporting burdens. The International 

Association of Plumbing and 

Mechanical Officials (IAPMO) and 

IAPMO R&T, for example, commented 

that the Department’s existing 

certification requirements already 

provide sufficient assurance of 

compliance. (IAPMO, No. 36.1 at p. 1) 

Similarly, AO Smith opposed an annual 

certification requirement, commenting 

that such a requirement would unduly 

increase the level of reporting required 

by manufacturers. (AO Smith, No. 81.1 

at p. 2) Although DOE recognizes that 

annual filing will increase the frequency 

with which manufactures must file 

reports, the record reflects that the 

increase in cost burden will be minimal. 

As NAMA explained, ‘‘annual 

certification does not cause an extreme 

economic burden and harm.’’ (NAMA, 

No. 72.1 at p. 2; See also Traulsen, No. 

52.1, at p. 4 (‘‘Annual certification 

should not be a major burden’’)) DOE 

also believes that electronic reporting 

will reduce the burden of preparing 

certification reports. Accordingly, the 

Department believes that this minimal 

increase in cost burden is outweighed 

by the need to ensure that the 

Department and the public have 

accurate and comprehensive efficiency 

information. In addition, an annual 

filing establishes a set date for 

manufacturers to fulfill this reporting 

obligation, which should allow 

manufacturers to regularize their annual 

reporting practices, thereby lowering 

costs and enhancing compliance. 

Several commenters suggested that 

DOE should impose annual testing 

requirements in addition to the 

proposed annual filing requirement. In 

particular, UL, ALS, the Natural 

Resources Defense Council (NRDC) and 

Earthjustice commented that while they 

are in support of establishing an annual 

certification requirement, such a 

requirement should include mandatory 

re-testing to validate the annual 

certification submissions, rather than 

merely re-submission of the original test 

data. (UL, No. 60.1 at p. 1; ALS, No. 66.1 

at p. 2; NRDC, Public Meeting 

Transcript, No. 103 at p. 39; 

Earthjustice, Public Meeting Transcript, 

No. 103 at pp. 43–44) NRDC proposed 

regular recertification of basic models 

that would require new laboratory 

testing of currently produced models 

and not simply resubmission of old test 

data from the initial certification. NRDC 

stated that the frequency of such 

recertification should depend on 

product-specific factors as well as a 

production cycle, and whether there is 

any change in energy usage above a de 

minimus threshold. (NRDC, No. 39.1 at 

p. 2) Earthjustice further contended that 

since determining when a model has 

been modified can be very difficult, a retesting, as opposed to a re-submission, 

requirement would help to alleviate this 

problem. (Earthjustice, Public Meeting 

Transcript, No. 103 at pp. 43–44) 

While DOE recognizes these 

commenters’ call for additional testing 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12425 

after the initial certification to ensure 

continued compliance, the Department 

declines to adopt an annual testing 

requirement whereby manufacturers 

must annually re-test all certified 

products and equipment. As several 

commenters point out, such a 

requirement would impose considerable 

burdens on manufacturers. (See, e.g., 

AHAM, No. 98.1 at p. 4; ALS, No. 66.1 

at p. 2; Traulsen, No. 52.1 at p. 4) As 

AHAM further explains, requiring 

‘‘costly and time consuming’’ annual 

re-certification testing ‘‘would likely be 

detrimental to innovation,’’ and ‘‘might 

threaten the viability to small 

manufacturers.’’ (AHAM, No. 98.1 at 

p. 4.) AHAM also pointed out that in 

light of DOE’s additional testing and 

industry verification programs, the 

benefit to consumers from 

manufacturers’ retesting certified 

products would be minimal. DOE agrees 

that the burdens of such a requirement 

would likely outweigh the benefits and 

is not requiring any new or additional 

testing to be performed as part of the 

annual filing requirement. It is instead 

a yearly submission of the ratings for all 

models a manufacturer has in 

distribution in that year. As discussed 

below, DOE continues to consider 

approaches to verification testing that 

would require subsequent testing of 

previously certified products, without 

an across the board annual re-testing 

requirement. 

With regard to DOE’s proposal in the 

September 2010 NOPR to align the 

annual certification reporting deadlines 

with the FTC’s schedule, ALS, NEEA, 

IAMPO, the American Lighting 

Association (ALA), and AHAM 

submitted comments supporting 

harmonization with the FTC’s reporting 

requirements. (ALS, No. 66.1 at p. 1; 

NEEA, No. 67.1 at p. 2; IAMPO, Public 

Meeting Transcript, No. 103 at p. 42; 

ALA, No. 97.1 at p. 1; AHAM, No. 98.1 

at p. 4) Specifically, ALA commented 

that such consolidation of reporting 

requirements would improve the 

efficiency and reduce the cost of 

compliance. (ALA, No. 97.1 at p. 1) 

Delta Faucet submitted comments 

requesting that efforts be made to reduce 

the reporting burden and cost on 

manufacturers by combining the DOE 

and FTC reports into one template. 

(Delta Faucet, No. 94.1 at p. 2) Today’s 

final rule consolidates the Department’s 

certification reporting requirements 

with FTC’s schedule only. DOE will 

continue to consider consolidating 

filings with the FTC or other 

government agencies in a future 

certification, compliance, and 

enforcement rulemaking. 

B. Revisions to Reporting Requirements 

In the September 2010 NOPR, DOE 

proposed to revise what information 

must be submitted as a part of a 

certification filing for DOE to better 

enforce its conservation standards. 

Specifically, DOE proposed to 

standardize to the extent possible the 

basic information required for 

certification of all covered products and 

covered equipment, setting out the basic 

requirements for every certification 

filing, followed by product-specific 

information requirements. DOE also 

proposed to require manufacturers to 

submit information related to waivers, 

exemptions, and approved alternative 

rating methodologies along with their 

certification submissions as appropriate. 

Lastly, DOE proposed to expand the 

product-specific information it was 

collecting with respect to each of the 

covered products and covered 

equipment to help DOE better 

understand the underlying attributes of 

the basic model’s efficiency that impact 

the testing and certification data. 

DOE generally received comments on 

the following issues related to its 

proposed revisions to the certification 

reporting requirements: (1) Reporting 

sample size and total number of tests 

performed; (2) reporting of testing data; 

(3) reporting use of an Alternate Rating 

Method (ARM)/Alternative Efficiency 

Determination Method (AEDM) or other 

alternative method of rating; (4) defining 

‘‘distribute in commerce’’; (5) productspecific revisions to reporting 

requirements. With the exception of the 

requirement for reporting the total 

number of tests performed, DOE is 

adopting all of the revisions to its 

reporting requirements proposed in the 

September 2010 NOPR. A discussion of 

specific stakeholder comments on these 

issues is presented below. 

1. Reporting Sample Size and Total 

Number of Tests Performed 

Under the rule adopted today, 

manufacturers must report the size of 

the sample tested, but need not report 

the number of tests performed. With 

regard to DOE’s proposal to require 

annual reporting of sample size, DOE 

received comments in opposition from 

AHAM and NEEA. (AHAM, No. 98.1 at 

p. 4; NEEA, No. 67.1 at p. 6) NEEA 

argued that there are no compelling 

reasons to require submission of 

sampling plan information or data as 

part of certification. (NEEA, No. 67.1 at 

p. 6) The Department disagrees. 

For purposes of certification testing, 

the determination that a basic model 

complies with the applicable 

conservation standard must be based on 

the sampling procedures, which are 

now found, by product, in 10 CFR Part 

429. The sampling procedures provide 

that ‘‘a sample of sufficient size shall be 

tested to insure [compliance].’’ Unless 

the product-specific regulations specify 

otherwise, a minimum of two units 

must be tested to certify a basic model 

as compliant. This minimum is implicit 

in the requirement to calculate a mean— 

an average—which requires at least two 

values. Under no circumstances is a 

sample size of one (1) authorized. 

Manufacturers may need to test more 

than two samples depending on the 

variability of their sample. Therefore, 

the sample size can be an important 

element when evaluating the 

compliance of a basic model. 

Consequently, the Department 

believes it is still important to request 

information regarding the sample size 

used in calculating the certification 

values submitted to DOE. As DOE has 

previously found, see http:// 

www.gc.energy.gov/documents/ 

certification_samplingplan.pdf, there is 

a significant amount of confusion in this 

area and DOE has attempted to clarify 

the sampling provisions, while 

maintaining the same level of 

tolerances, in the final rule. Sample size 

information that is submitted with the 

certification report will allow the 

Department to better understand how 

manufacturers are calculating their 

certified values. In the event the 

Department requests the test data 

underlying certification, manufacturers 

must provide the test data for each 

sample. DOE strongly encourages 

manufacturers to maintain records that 

clearly distinguished between each 

sample using unique identifiers like 

serial numbers and that provide a clear 

summary of how the appropriate 

statistics were applied to generate the 

certified ratings. 

The September 2010 NOPR also 

proposed to require that manufacturers 

report the total number of tests per 

sample. AHAM, the Air-Conditioning, 

Heating and Refrigeration Institute 

(AHRI) and ALS objected to reporting 

the total number of tests performed in 

the annual certification report. (AHAM, 

No. 98.1 at p. 4; AHRI, No. 91.1 at pp. 

9–10; ALS, No. 66.1 at p. 2) Specifically, 

AHAM commented that it failed to see 

how this information is necessary or 

useful to DOE. As the commenters 

suggest, this information may not be as 

helpful to understanding the certified 

values since the number of tests 

performed by unit can vary widely 

based upon a number of factors, 

including manufacturing practices and 

production lots. Therefore, DOE will not 

require the manufacturer to report the 

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12426 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

total number of tests performed per 

sample. Manufacturers may not use 

multiple tests of a single unit as separate 

samples when applying the sampling 

procedures. 

2. Reporting of Testing Data 

A number of commenters urged DOE 

to require that manufacturers report all 

test data for all covered products and 

equipment in support of the certified 

value reported to DOE. (See, e.g., NRDC, 

No. 80.1 at 4) NEEA stated that it 

supports the submission of nonregulatory metrics data from which the 

metric is derived. (NEEA, No. 67.1 at 

p. 2) Several manufacturers, however, 

strongly opposed reporting test results 

as part of the annual certification 

requirement. (Traulsen, No. 52.1 at p. 4; 

ALS, No. 66.1 at p. 2; BSH, No. 89.1 at 

p. 4) Specifically, Traulsen noted that 

providing such detailed data would 

compromise its product designs and 

competitive advantage. (Traulsen, No. 

52.1 at p. 4) ALS stated that such a 

requirement would necessitate a huge 

undertaking by DOE to manage the 

submission and recordkeeping of all 

data for all the covered products under 

DOE’s charge. (ALS, No. 66.1 at p. 2) 

The Department did not propose in 

the September 2010 NOPR to require 

submission of test data in the 

certification report, and such a 

requirement is not part of this final rule. 

While the Department believes that test 

data is a key factor in helping the 

Department understand the certified 

rating, DOE does not believe it is 

necessary to collect test data from all 

manufacturers at this time. Instead, DOE 

is hoping that by expanding the 

certification data that the Department is 

collecting and providing additional 

clarity in the regulations as to the 

processes manufacturers must follow to 

determine the certified ratings DOE will 

be in a better position to understand the 

data underlying compliance. Although 

DOE is not mandating that 

manufacturers submit test data along 

with each certification report at this 

time, the Department’s regulations 

continue to require manufacturers to 

retain test data records in an easily 

accessible format and provide them to 

the Department upon request. 

3. Reporting Use of an ARM/AEDM or 

Other Alternative Method of Rating 

From the comments, it appears there 

is general support for requiring 

manufacturers to submit information 

related to waivers, exemptions, and 

approved alternative rating 

methodologies along with their 

certification submissions. (See, e.g., 

NEEA No. 67.1 at 3) NEEA, for example, 

strongly supported the requirement that 

manufacturers report this information as 

part of the certification process. GE 

Prolec Distribution Transformers (GE 

Prolec) commented that, due to high 

volume designs and volume variations, 

manufacturers that use an AEDM for 

certification should have to update the 

AEDM substantiation each year and 

include this in the annual recertification 

process. (GE Prolec, No. 95.1 at p. 4) 

ABB Inc (ABB) noted that there is no 

approval process for an AEDM and, as 

such, the requirement to include the 

approval date should be removed from 

the certification report. (ABB, No. 53.1 

at pp. 11–12) Currently, the regulations 

provide for use of an alternative rating 

method only for residential central air 

conditioners and heat pumps, 

commercial heating, ventilation, airconditioning, and water heating 

equipment (HVAC and WH), electric 

motors, and distribution transformers. 

While ABB is correct that certain 

products, such as commercial HVAC 

and WH equipment do not require 

approval of the AEDM before it is used, 

other products, like residential central 

air conditioners and heat pumps, do. 

Thus, these approvals are productspecific. DOE has clarified this in the 

final rule, which states that the 

information should be submitted, if 

applicable. The product-specific 

templates, which will be available for 

use with the new online submission 

system, will also be product-specific 

and consistent with DOE’s regulations. 

DOE also believes that manufacturers 

need the ability to specify that they have 

not performed actual testing but have 

modeled or simulated testing through 

the use of an ARM or AEDM or have 

used an alternative testing method 

authorized through a test procedure 

waiver, as the certification report itself 

requires the manufacturer to certify that 

it has tested the model. Providing 

alternative rating or alternative testing 

information in the certification report 

allows the manufacturer to make a more 

accurate certification statement to the 

Department. Similarly, in order to make 

an accurate certification statement to the 

Department, a manufacturer needs to 

identify any basic model that is being 

certified in accordance with an 

exception to the applicable standard. 

Accordingly, DOE adopts this 

requirement in today’s final rule to 

provide an accurate reflection of the test 

procedures or exceptions used as a basis 

for the certification. 

4. Defining ‘‘distribute in commerce’’ 

EPCA’s standards and DOE’s 

certification and compliance 

requirements apply to covered products 

and equipment that are ‘‘distribute[d] in 

commerce.’’ A number of commenters 

requested that the Department adopt a 

definition of ‘‘distribution in commerce’’ 

in its regulations. Mitsubishi Electric & 

Electronics USA, Inc. (MEUS) stated its 

concern that the definition of 

‘‘introduction into commerce’’ is so 

broad it requires manufacturers to 

certify before providing information to 

the distribution base. As a solution, 

MEUS recommended that DOE de-link 

certification with ‘‘introduce into 

commerce.’’ (MEUS, No. 86.1 at p. 5) 

Additionally, NEEA expressed its 

concern that the definition of ‘‘distribute 

in commerce’’ would require 

certification prior to a decision to 

actually market the product. (NEEA, 

Public Meeting Transcript No. 67.1 at 

p. 336) Traulsen commented that DOE 

should define ‘‘distribution in 

commerce’’ as a published price. 

(Traulsen, No. 52.1 at p. 4) 

EPCA defines ‘‘distribute in 

commerce’’ as ‘‘to sell in commerce, to 

import, to introduce or deliver for 

introduction into commerce, or to hold 

for sale or distribution after introduction 

into commerce.’’ (See 42 U.S.C. 6291 

(16).) The Department recognizes that 

products may be imported for 

prototyping, research, field testing, or 

trade shows while the product is still 

being developed or before it may be 

available to the general public for a 

price. But the Department’s 

interpretation of this term and the 

application of the statute’s definition 

will necessarily depend on a particular 

manufacturer’s production practices, 

business decisions, and the facts and 

circumstances of a particular case. 

Therefore, DOE is reluctant to dictate a 

single point in time for all 

manufacturers when the product 

development process stops and when 

distribution in commerce begins. As 

such, the Department declines to add a 

precise definition of ‘‘distribution in 

commerce’’ into its regulations. Instead, 

in each case, DOE will look to a number 

of factors to determine whether a model 

of a regulated product has been 

‘‘distributed in commerce.’’ Such factors 

will include the following: 

• Whether units of the model have 

been sold or offered for sale in exchange 

for monetary compensation; 

• Whether units have been included 

in marketing material made available to 

the public (e.g., on Web sites or in 

catalogs); 

• Whether the manufacturer has 

distributed marketing material that 

includes a claim or statements regarding 

the product’s efficiency; 

• Whether a unit has been shown at 

trade show; and 

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• The number of units produced, 

distributed, imported, and/or sold. 

A model must be certified to DOE as 

compliant with the applicable standard 

prior to distribution in commerce, but 

the exact point at which any particular 

model has, in fact, been distributed in 

commerce may vary considerably across 

product types and manufacturers. 

5. Product-Specific Revisions to 

Reporting Requirements 

In the September 2010 NOPR, the 

Department proposed including 

reporting requirements for products that 

did not previously have to submit 

information, including those added to 

DOE’s programs by the Energy 

Independence and Security Act of 2007. 

In addition, the Department sought 

comment on expanding its sampling 

plans for certification to ‘‘features’’ other 

than the regulatory metrics. As an 

example, DOE suggested that the actual 

storage volume of a residential water 

heater may be a metric that should be 

subject to sampling requirements. 

Today’s rule extends the reporting 

requirements to all products regulated 

under EPCA, but does not impose 

sampling plans for features other than 

the regulatory metric. The Department’s 

certification requirements are the 

foundation of DOE’s compliance and 

enforcement framework and will be 

mandatory for all products regulated by 

EPCA. 

Commenters generally disagreed, 

however, with the approach of 

extending the sampling plans beyond 

the regulatory metrics. For example, AO 

Smith commented that DOE should only 

test products for values that are covered 

in the current regulations, such as 

energy efficiency. (AO Smith, No. 81.1 

at p. 3) Similarly, Bradford White 

Corporation commented that adding 

sampling plans and tolerances for other 

features of products is redundant and 

burdensome. (BWC, No. 45.1 at p. 2) 

While DOE is not adopting sampling 

plans for features other than the 

regulatory metrics at this time, DOE is 

expanding its product-specific 

certification requirements to require this 

type of information in the certification 

report. 

DOE believes information about 

features that affect the energy-efficiency 

of the product is essential for DOE to 

audit compliance and for consumers to 

make informed decisions about product 

purchases. In addition, DOE notes that 

manufacturers have this information on 

hand and typically provide it in their 

marketing materials, on their Web site, 

or to product retailers. DOE’s current 

regulations already request this type of 

information for certain products and 

equipment and requiring this 

information in the certification report is 

consistent with DOE’s adoption of a 

more uniform approach to certification. 

In some instances, product or 

equipment feature information is 

necessary to determine how to apply 

DOE’s test procedures. Thus, DOE 

believes this type of information is 

essential to any verification testing and 

enforcement testing that may be 

conducted by the Department. To help 

interested parties identify the new 

product-specific information to be 

submitted in certification reports, DOE 

has included this on a product-byproduct basis throughout Part 429. 

C. Certifying Entities and Third-Party 

Representation 

Current certification regulations allow 

either the manufacturer or private 

labeler to submit certification reports 

and compliance statements for each 

basic model. DOE proposed, in the 

September 2010 NOPR, to require that 

manufacturers be solely responsible for 

submitting the certification reports to 

DOE. Under this proposal, the 

certification burden would be placed on 

the manufacturer, and not the private 

labeler, although the manufacturer 

would still have the option of electing 

to have its private labeler act as a thirdparty filer and submit the certification 

report on the manufacturer’s behalf. 

With regard to third-party filers, DOE 

proposed in the September 2010 NOPR 

to make clear in its regulations that it 

may refuse to accept certification 

reports from a third party with a history 

of poor performance. A discussion of 

comments on this issue is below. 

In today’s rule, DOE is adopting its 

proposed requirement that 

manufacturers be solely responsible for 

submitting certification reports, which 

would include manufacturer 

information, as well as private labeler 

information and/or brand information, 

where appropriate. AWE and BWC 

submitted comments supporting DOE’s 

proposal to hold the manufacturer 

solely responsible for submitting 

certification reports to DOE. (AWE, No. 

38.1 at p. 2; BWC, No. 45.1 at p. 2) The 

Department considered NEEA’s 

suggestion that the party responsible for 

introducing the product into commerce 

in the U.S. should be responsible for 

certification, whether that is a 

manufacturer, third-party private 

labeler, or an importer. (NEEA, No. 67.1 

at p. 3) The Department notes that, 

pursuant to EPCA, an importer is a 

manufacturer and is included in DOE’s 

proposal. While NEEA’s suggestion has 

some conceptual appeal, the 

Department believes that such an 

approach would create confusion and be 

difficult to administer as it may be 

unclear who is the party responsible for 

introducing the product into commerce 

in a particular case. (See, e.g., above 

discussion regarding the definition of 

distribution in commerce.) Another 

commenter, the NEMA Motor & 

Generator Section, argued that DOE 

should continue to permit the private 

labeler to submit certification reports on 

electric motors as the information 

required is well known by the private 

labelers. (NEMA, No. 85.1 at p. 23) DOE 

believes that, in most cases, the 

manufacturer, rather than the private 

labeler, is one that tests a model and 

therefore is in the best position to 

provide certification information to the 

Department and to retain the underlying 

test data as required by the rules. DOE 

reiterates, however, that under today’s 

rule, a manufacturer may elect to have 

its private labeler act as a third-party 

filer and submit the certification report 

on the manufacturer’s behalf. 

Commenters generally supported 

DOE’s proposal to continue to allow 

third parties to submit certification 

reports to DOE on behalf of the 

manufacturer, as long as the third party 

does not have a history of poor 

performance. (See, e.g., AHAM, No. 98.1 

at p. 6; BWC, No. 45.1 at p. 3) The 

Department notes that although a 

manufacturer is ultimately responsible 

for submission of the certification 

reports to DOE, it is a criminal violation 

for third parties to make knowingly false 

statements to the government. AHAM 

and BSH suggest that DOE notify the 

manufacturer or private labeler when 

the third-party it has selected has not 

met DOE’s requirements given that the 

manufacturer or private labeler is the 

party that bears the ultimate liability for 

the report. (AHAM, No. 98.1 at p. 6; 

BSH, No. 89.1 at p. 4) DOE agrees that 

manufacturers should be notified in 

such cases by the third-party certified 

barred from submitting on behalf of 

manufacturers. DOE may also publish 

on its Web site a list of third-party 

certifiers barred from submitting 

certification reports. Intertek, UL and 

Earthjustice requested that DOE provide 

more specificity regarding when DOE 

will deem a third-party submitter to 

have a history of poor performance. 

(Intertek, No. 88.1 at p. 2; UL, No. 60.1 

at p. 2; Earthjustice, No. 83.1 at p. 3) 

DOE clarifies that there is not a set of 

specific circumstances that must be met 

for a third-party certifier to have a 

history of poor performance. However, 

in each case, DOE will look at 

circumstances, such as the number of 

certification violations involving the 

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third party, including number of 

reoccurrences, the scope and type of the 

violations (e.g., was certain data missing 

or was there a failure to file altogether), 

the willingness of a third-party certifier 

to cooperate with DOE, and any 

corrective actions taken to prevent 

recurring problems. 

D. Submission of Certification Reports 

In the September 2010 NOPR, DOE 

proposed to remove the certified mail 

and e-mail options for filing 

certification data that are currently 

allowed in DOE’s regulations and make 

electronic submission of certification 

reports through the Compliance and 

Certification Management System 

(CCMS) found at http:// 

www.regulations.doe.gov/ccms the sole 

method of submission. CCMS will have 

sample templates for all covered 

products and covered equipment 

available for manufacturers to use when 

submitting certification data to DOE. 

The Department received few 

comments on this issue, with the 

majority of commenters supporting the 

move to exclusive use of the CCMS for 

certification. Specifically, NEEA 

commented that the proposed move to 

electronic filing for certification will 

reduce manufacturer compliance 

burdens and should allow for 

consistency of filed data from one 

Federal agency to another (NEEA, No. 

67.1 at p. 3). Similarly, GE Prolec 

supported the CCMS approach, but also 

noted that there is currently no CCMS 

template for distribution transformers. 

(GE Prolec, No. 95.1 at p. 11; Public 

Meeting Transcript, No. 103 at p. 143) 

GE Prolec requested that it be able to 

review and comment on a proposed 

template for distribution transformers 

before it is finalized. DOE received one 

comment from First Co. opposing the 

use of CCMS as the sole method of 

certification because it would take time 

and a significant amount of work for 

manufacturers. First Co. suggested that 

the new CCMS only filing requirement 

should not become effective prior to 

July 1, 2011, to allow a reasonable 

period of time before converting to an 

electronic-only filing system. (First Co., 

No. 76.1 at p. 2) 

DOE believes the availability of 

electronic filing through the CCMS 

system should reduce compliance 

burdens, streamline the process, and 

provide the Department with needed 

information in a standardized, more 

accessible form. This electronic filing 

system will also ensure that records are 

recorded in a permanent, systematic 

way and enable the Department to move 

towards a public, searchable database. 

Thus, in this final rule DOE removes the 

certified mail and e-mail options for 

filing certification data that are 

currently allowed in DOE’s regulations. 

DOE notes that the CCMS requires users 

to apply to use the system by filling out 

a registration form, signing a 

compliance statement, and receiving a 

personal password. Due to the number 

of user requests the Department expects 

to receive by the compliance date of the 

certification requirements being adopted 

in today’s final rule, DOE strongly 

encourages users to set-up their 

accounts well in advance of the 

deadline. In addition, the CCMS 

templates with the new requirements for 

all covered products and covered 

equipment should be online shortly 

after the publication of today’s final 

rule. The Department also encourages 

manufacturers, to the extent possible, to 

fill out these templates in advance of the 

compliance date in case questions arise. 

E. New Basic Model Filing, Basic Model 

Concept, and Notice of Discontinuance 

1. New Model Filing and Basic Model 

Concept 

In addition to the new annual 

certification requirement discussed 

above, DOE’s September 2010 NOPR 

retained the existing regulatory 

requirement that any new basic model 

be certified before distribution in 

commerce. The Department explained 

that this requirement would apply to 

newly manufactured and produced 

basic models, as well as models that 

have been modified in a way that 

decreases a model’s efficiency or 

increases its consumption and thus 

constitutes a new basic model. In 

connection with this requirement, the 

Department solicited comments on 

whether, and if so how, the Department 

should clarify the basic model concept 

to better identify whether and how 

energy or water use characteristics of a 

product may vary across different 

models in a basic model group. The 

Department’s current regulations 

provide product-specific basic model 

definitions, which typically state that 

models within the same basic model 

group have ‘‘essentially identical’’ 

energy or water use characteristics. 10 

CFR 430.2; 431.62, 431.172, 431.192, 

431.202, 431.222, and 431.292. In the 

September 2010 NOPR, DOE asked how 

manufacturers determine that a 

particular model constitutes a new basic 

model, the difference in the energy use 

characteristics a typical change may 

have on a per product basis, and 

whether DOE should adopt a regulation 

requiring that a model be recertified as 

a new basic model if modifications 

impact the energy or water 

characteristics by a given de minimus 

percentage. 

In response to DOE’s questions, 

several manufacturers provided detailed 

product and manufacturer-specific 

information as to how they determine 

and make changes to basic model 

groupings. (See, e.g., Rheem, No. 79.1 at 

pp. 1–3; First Co., No. 76.1 at p. 1) 

Others, like NRDC, urged DOE to adopt 

specific and stringent product-specific 

thresholds for increases in energy 

consumption or decreases in energy 

efficiency that must be deemed a new 

basic model. (See, e.g., NRDC, No. 80.1 

at p. 2) 

More generally, commenters 

recognized the importance of the basic 

model concept and sought additional 

clarification on the matter. (See, e.g., 

AHAM, No. 98.1 at pp. 2–3 (seeking 

‘‘clear and uniform rules’’ for 

‘‘determining that a particular model 

constitutes a new basic model’’); NRDC, 

No. 80.1 at pp. 2–3) Some commenters 

offered ideas for adopting a general 

definition of the basic model concept. 

Consumers Union, for example, urged 

DOE to establish that any differences in 

electrical and mechanical parts and any 

significant changes in functional 

volumes, capacity or water usage should 

be categorized as different basic models. 

(Consumers Union, No. 74.1 at p. 2) 

Along similar lines, NRDC suggested 

that DOE look to California’s definition 

of ‘basic model’’ as a model along with 

an additional requirement that products 

within a basic model have similar 

efficiency and energy performance. 

(NRDC No. 80.1 at p. 2) NEEA cited 

California’s approach, but also 

recommended that DOE allow for 

conservative ratings and simply require 

that all models in a basic model 

grouping have the same certified 

efficiency rating, on the ground that 

manufacturers certify compliance with a 

minimum standard rather than a 

performance level. (NEEA, No. 67.1 at 

pp. 4–5) 

A number of manufacturers and trade 

associations urged DOE to allow 

manufacturers to rate their products 

conservatively, so long as the ratings are 

supported by the test results and 

comply with the applicable standard. As 

Rheem explained, conservative ratings 

ensure performance for consumers that 

is the same or better than the rating, 

while giving manufacturers ‘‘the 

flexibility to address fluctuations in 

component pricing or availability 

without the added burden of re-rating 

an appliance for every change.’’ (Rheem, 

No. 79.1 at p. 3) Whirlpool similarly 

noted that manufacturers may rate 

products conservatively ‘‘to allow for 

natural fluctuation in component 

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tolerances and similar unit-to-unit 

variances.’’ (Whirlpool, No. 78.1 at p. 1) 

Reflecting manufacturers’ desire for 

flexibility, AHAM proposed that, rather 

than establishing de minimus 

percentages, DOE should require 

manufacturers to certify changes to a 

basic model as a new basic model 

‘‘when the test results no longer support 

the rated value,’’ explaining that results 

support a rated value when they 

demonstrate higher energy efficiency or 

lower energy consumption than the 

rating. (AHAM, No. 98.1 at p. 3) AO 

Smith advocated for a requirement that 

basic models have the same critical 

components and control logic along 

with a de minimus percentage that 

reasonably compares to enforcement 

sampling provisions. (AO Smith, No. 

81.1 at pp. 1–2) 

Although all of these commenters 

expressed varying approaches to the 

basic model concept, there was general 

agreement that a modification to a 

model that would increase energy or 

water consumption—such that testing 

would no longer support the rated 

value—should constitute a new basic 

model that must be certified to DOE. 

(See, e.g., AHAM, No. 98.1 at pp. 2–3; 

NRDC, No. 80.1 at pp. 2–3) The existing 

regulations already require certification 

of a new basic model if a modification 

results in an increase in energy or water 

consumption beyond the rated amount, 

and DOE is retaining that requirement. 

DOE agrees with the comments that 

the ‘basic model’ concept is 

fundamental to the conservation 

standards regulatory framework. It 

allows manufacturers to group like 

models for purposes of fulfilling the 

Department’s certification requirements, 

thereby reducing the burden placed on 

manufacturers by streamlining the 

amount of testing they must do to rate 

the efficiencies of their products. At the 

same time, the basic model provides the 

relevant basis for Departmental 

enforcement actions, including 

determinations of non-compliance. 

Accordingly, to clarify the basic 

model concept, today’s rule centralizes 

and aligns the existing product-specific 

basic model definitions in a general 

definition, which provides (with some 

exceptions noted in the regulatory text) 

that a basic model means ‘‘all units of 

a given type of product (or class thereof) 

manufactured by one manufacturer, 

having the same primary energy source, 

and which have essentially identical 

electrical, physical, and functional (or 

hydraulic) characteristics that affect 

energy consumption, energy efficiency, 

water consumption, or water efficiency.’’ 

Although in some cases, the language of 

this general definition differs slightly 

from the precise language of the 

product-specific definitions, DOE 

emphasizes that this clarification 

reflects DOE’s intent to maintain the 

status quo until a future rulemaking. 

This change is intended to provide a 

single, uniform definition of the basic 

model using language that permits what 

the Department understands to be the 

current practice—the grouping together 

of individual models with essentially 

(but not necessarily exactly) identical 

energy or water efficiency 

characteristics. 

The Department is not, at this time, 

adopting threshold de minimus changes 

that would trigger the creation of a new 

basic model or otherwise establishing 

set criteria for what is meant by 

‘‘essentially identical’’ characteristics. 

The record suggests that identifying 

specific percentages is a complicated 

matter, particularly given that there may 

be significant variations among 

manufacturers and products with 

respect to basic model groupings. Thus, 

the Department continues to review the 

bases for more precise, product-specific 

limitations on which models can be 

grouped together as a basic model. DOE 

hopes to address this in the next phase 

of the certification, compliance, and 

enforcement rulemaking and will take 

all of the comments in the record into 

account at that time. DOE understands 

that, in the meantime, today’s rule will 

permit flexibility in determining how 

manufacturers choose to group 

individual models with essentially, but 

not exactly, identical energy or water 

efficiency characteristics. DOE 

encourages manufacturers to adopt a 

reasonable approach to basic model 

groupings and to certify as a single basic 

model individual models with only 

superficial differences, such as product 

finishes. Furthermore, the Department 

provides the following guidance on 

DOE’s basic model certification and 

compliance obligations. 

First, all models identified in a 

certification report as being the same 

basic model must have the same 

certified efficiency rating. With this 

rulemaking, manufacturers may elect to 

group individual models into basic 

models at their discretion to the extent 

the models have essentially identical 

electrical, physical, and functional (or 

hydraulic) characteristics that affect 

energy efficiency, energy consumption, 

water consumption, or water efficiency. 

However, the rated efficiency 

certification and representations of all of 

the individual models represented by a 

given basic model must be the same. 

Additionally, if a manufacturer wishes 

to change the certified rating of a 

particular model, this change 

constitutes the creation of a new basic 

model that must be certified to the 

Department. 

Second, any individual model that is 

modified resulting in performance that 

is less efficient than the rated level 

when tested in accordance with the 

DOE test procedures in Parts 430 and 

431 and the applicable sampling plans 

in Part 429 must be re-rated as a new 

basic model and certified to DOE. 

Certified ratings must be supported by 

tested values that are at least as efficient 

as the rating when the applicable 

sampling plans in Part 429 are applied. 

Third, manufacturers may rate models 

conservatively, meaning the tested 

performance of the model(s) must be at 

least as good as the certified rating, after 

applying the appropriate sampling plan. 

The sampling plans are designed to 

create conservative ratings, which 

ensures that consumers get—at a 

minimum—the efficiency indicated by 

the certified rating. In this final rule, 

DOE allows manufacturers to use 

conservative ratings beyond those 

provided by the sampling plans. If DOE 

determines that any individual model 

within a basic model does not meet an 

applicable conservation standard, 

however, all models within the basic 

model group will be deemed noncompliant. Thus, as NEEA explained 

‘‘the larger the basic model group, the 

larger the risk associated with a 

compliance failure.’’ (NEEA, No. 67.1 at 

p. 5) 

Finally, under the certification 

requirements adopted today, unless 

otherwise specified, manufacturers must 

identify in their certification reports the 

individual models that are included in 

each basic model. The Department’s 

approach to certification, compliance, 

and enforcement depends on DOE 

having information about which 

individual models are covered by a 

given basic model. 

2. Basic Model Numbering 

In the September 2010 NOPR, DOE 

proposed that manufacturers must 

designate a new basic model number 

when an existing model is modified 

such that a new basic model is created 

to permit transparency and improve 

consumer awareness. Several 

commenters, including AHAM, NEEA, 

Whirlpool, and ALS, expressed support 

for DOE’s proposal to require a new 

number for a new basic model so long 

as a new basic model is created only 

when test results no longer support the 

rated value. (See, e.g., ALS, No. 66.1 at 

p. 1; Whirlpool, No. 78.1 at pp. 1–2; 

AHAM, No. 98.1 at p. 3; NEEA, No. 67.1 

at p. 5) A number of manufacturers, 

however, objected to the new basic 

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model number requirement as costly, 

administratively burdensome, and 

disruptive to the marketplace. (See, e.g., 

Traulsen, No. 52.1 at p. 1 (estimating a 

25% increase in marketing costs); Delta, 

No. 94.1 at p. 1 (describing increased 

burden from updating literature, 

advertising materials, and installation 

instructions); and AO Smith, No. 81.1 at 

p. 1 (emphasizing the stress to their 

customers from model number 

changes)) 

In light of these comments, the 

Department will not require a new basic 

model number when a manufacturer 

creates a new basic model unless DOE 

has determined that the basic model is 

non-compliant with the standard. If 

manufacturers—on their own—seek to 

certify a new basic model, DOE will not 

require that they designate new model 

numbers to avoid unnecessary 

advertising, marketing, and consumer 

related costs. But, should DOE 

determine that a basic model does not 

comply with the applicable standard, 

manufacturers cannot certify any of the 

model numbers included in that basic 

model using the same model numbers 

certified in the basic model determined 

noncompliant. If, for example, a 

manufacturer wishes to make changes to 

a noncompliant basic model to bring it 

into compliance, that modified model(s) 

must be recertified as a new basic 

model, with a new model number(s). 

See 10 CFR 429.114(d). We reiterate 

that, in such cases, the Department is 

not requiring any particular numbering 

system or convention, only that it has a 

new basic model number to distinguish 

it from the noncompliant basic model. 

The Department believes that new 

model numbers are warranted in such 

cases to prevent consumer confusion 

and permit the Department to monitor 

compliance effectively. 

We note that designating new model 

numbers for a new basic model may be 

prudent in some circumstances even 

when it is not required by today’s rule. 

DOE enforcement efforts will be based 

on the basic model number. A 

manufacturer that increases the 

efficiency of a model may elect not to 

recertify it using a new basic model 

number. If, however, DOE tests an 

earlier-manufactured unit and 

determines the basic model to be noncompliant with the standard, the 

manufacturer will be required to cease 

distribution of all units of all models 

listed under that basic model number, 

even if modifications to the model may 

have made it compliant over time. 

Furthermore, we note, as Whirlpool’s 

comment points out, that the FTC has 

issued a staff opinion stating that the 

failure to change model numbers when 

changing the efficiency rating of a 

product may be considered an unfair 

and deceptive practice in violation of 

Federal law. (Whirlpool, No. 78.1, at p. 

2 (attaching FTC staff opinion letter)) 

3. Notice of Discontinuance 

In the September 2010 NOPR, the 

Department proposed to require that 

manufacturers report a model as 

discontinued as a part of their annual 

filing following the date on which 

production of a model has ceased and 

it is no longer being sold or offered for 

sale by the manufacturer or private 

labeler. Several commenters sought 

additional clarity with respect to when 

a model has been discontinued. AHRI 

members, such as Daikin AC, urged 

DOE to adopt AHRI’s approach, 

whereby models are discontinued when 

production has stopped, yet stock 

remains, and such models remain listed 

in AHRI’s directory for 6 months. (See, 

e.g., Daikin AC, No. 73.1 at p. 1) Other 

commenters argued that discontinuance 

should be defined with respect to when 

production has ceased and should not 

refer to commerce. (See, e.g., BSH Home 

Appliance, No. 89.1 at p. 2; AHAM, No. 

98.1 at p. 7) And one commenter 

suggested that DOE should simply 

remove all requirements for reporting 

discontinued models to DOE. (See ABB, 

No 53.1 at p. 8) 

Today’s rule retains the requirement 

that manufacturers or certifying parties 

(i.e., third-party filers acting on behalf of 

a manufacturer) notify DOE in their 

annual certification filing when a model 

is no longer being produced and the 

manufacturer or private labeler is no 

longer offering it for sale. EPCA 

obligates DOE to ensure that all covered 

products distributed by manufacturers 

and private labelers in U.S. commerce 

comply with applicable Federal 

conservation standards. The reporting 

requirements for discontinued models— 

like the certification reporting 

requirements themselves—provide the 

Department with necessary information 

about the products that are being 

distributed in U.S. commerce and thus, 

which products are subject to DOE’s 

regulatory regime. As one commenter 

put it, ‘‘knowledge of what covered 

products are being distributed in 

commerce at any given time is the 

foundation of an effective certification 

and enforcement program.’’ (NEEA, No. 

67.1 at p. 2) 

The Department’s view of when a 

model is discontinued stems from 

EPCA’s statutory framework. Although 

DOE understands that it may be easier 

for manufacturers to track production 

dates, the relevant information for 

DOE’s compliance and enforcement 

efforts, and manufacturer or private 

labeler liability, does not stem from 

production, but from the distribution of 

a model in commerce by the regulated 

entity. Thus, the Department will 

consider a model to be discontinued 

when production has ceased and when 

the manufacturer (including importer) 

or private labeler is no longer offering 

the product for sale. To reduce the 

burden on manufacturers, today’s rule 

no longer requires notification at the 

time of discontinuance, but rather 

requires that a model’s discontinuance 

be reported to DOE as a part of the 

annual filing. 

The Department emphasizes, 

moreover, that whether a model is 

discontinued depends on whether the 

manufacturer, importer, or private 

labeler has ceased production and 

stopped offering the model for sale. It 

does not depend upon distributor or 

retail sales and offerings. EPCA’s 

standards and the Department’s 

reporting obligations regulate 

manufacturers, importers, and private 

labelers. The certifying entity will know 

when it stops offering a model for sale, 

but would have no way of knowing 

when distributor or retail stock has been 

depleted. Thus, in the annual filing, the 

manufacturer or certifying entity should 

report basic models which are no longer 

being produced and that the 

manufacturer or private labeler is no 

longer offering for sale. 

F. Certification Testing, Generally 

Under existing regulations, the 

sampling procedures for certain 

consumer products and certain 

commercial and industrial equipment to 

be used for certification testing are set 

forth in sections 430.24, 431.65, 

431.135, 431.174, 431.175, 431.197, 

431.205, 431.225, 431.265, 431.295, and 

431.328. In the September 2010 NOPR, 

DOE proposed to consolidate existing 

sampling provisions in Part 429 and 

establish sampling provisions for the 

types of consumer products and 

commercial equipment that do not 

currently have them. Further, DOE 

proposed the use of a statistically 

meaningful sampling procedure for 

selecting test specimens of consumer 

products and commercial and industrial 

equipment, which would require the 

manufacturer to select a sample at 

random from a production line and, 

after each unit or group of units is 

tested, either accept the sample or 

continue sampling and testing 

additional units until a rating 

determination can be made. DOE did 

not propose a specific sample size for 

each product because the sample size is 

determined by the validity of the sample 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12431 

and how the mean compares to the 

standard, factors which cannot be 

determined in advance. 

While DOE has moved the sampling 

plans for all covered products and 

covered equipment, except electric 

motors, to Part 429, DOE is not adopting 

any changes to the existing tolerances at 

this time. In this final rule, DOE 

restructured the presentation of the 

sampling plan and statistical 

information and included the Student’s 

t-distribution values to help 

manufacturers in understanding the 

process behind calculating the 

certification values for each product. 

DOE hopes these changes, which are 

editorial in nature, provide the 

additional clarity that interested parties 

have been seeking regarding DOE’s 

sampling procedures. Table III.1 

demonstrates a mapping between the 

existing location in parts 430 and 431 

and the future location in part 429 of the 

sampling plans that manufacturers 

apply to the test data in order to 

generate their certified ratings. 

TABLE III.1—CURRENT AND FUTURE LOCATIONS OF THE PROVISIONS FOR STATISTICAL SAMPLING PLANS FOR

CERTIFICATION TESTING

Product type New regulation 

citation in final rule 

Existing regulation 

citation 

Residential refrigerators, refrigerator-freezers and freezers ................................ 10 CFR 429.14 .......... 10 CFR 430.24(a)–(b). 

Room air conditioners .......................................................................................... 10 CFR 429.15 .......... 10 CFR 430.24(f). 

Central air conditioners and heat pumps ............................................................. 10 CFR 429.16 .......... 10 CFR 430.24(m). 

Residential water heaters ..................................................................................... 10 CFR 429.17 .......... 10 CFR 430.24(e). 

Residential furnaces ............................................................................................. 10 CFR 429.18 .......... 10 CFR 430.24(n). 

Dishwashers ......................................................................................................... 10 CFR 429.19 .......... 10 CFR 430.24(c). 

Residential clothes washers ................................................................................. 10 CFR 429.20 .......... 10 CFR 430.24(j). 

Residential clothes dryers .................................................................................... 10 CFR 429.21 .......... 10 CFR 430.24(d). 

Direct heating equipment ..................................................................................... 10 CFR 429.22 .......... 10 CFR 430.24(g) and 10 CFR 

430.24(o). 

Conventional cooking tops, conventional ovens, microwave ovens .................... 10 CFR 429.23 .......... 10 CFR 430.24(i). 

Pool heaters ......................................................................................................... 10 CFR 429.24 .......... 10 CFR 430.24(p). 

Fluorescent lamp ballasts .................................................................................... 10 CFR 429.26 .......... 10 CFR 430.24(q). 

General service fluorescent lamps, general service incandescent lamps, and 

incandescent reflector lamps.

10 CFR 429.27 .......... 10 CFR 430.24(r). 

Faucets ................................................................................................................. 10 CFR 429.28 .......... 10 CFR 430.24(s). 

Showerheads ........................................................................................................ 10 CFR 429.29 .......... 10 CFR 430.24(t). 

Water closets ........................................................................................................ 10 CFR 429.30 .......... 10 CFR 430.24(u). 

Urinals .................................................................................................................. 10 CFR 429.31 .......... 10 CFR 430.24(v). 

Ceiling fans ........................................................................................................... Design standard. Not applicable. 

Ceiling fan light kits .............................................................................................. 10 CFR 429.33 .......... 10 CFR 430.24(w) and 10 CFR 

430.24(x). 

Torchieres ............................................................................................................. Design standard. Not applicable. 

Bare or covered medium base compact fluorescent lamps ................................ 10 CFR 429.35 .......... 10 CFR 430.24(y). 

Dehumidifiers ........................................................................................................ 10 CFR 429.36 .......... 10 CFR 430.24(z). 

Class A external power supplies .......................................................................... 10 CFR 429.37 .......... 10 CFR 430.24(bb). 

Battery Chargers .................................................................................................. 10 CFR 429.39 .......... 10 CFR 430.24(aa). 

Candelabra base incandescent lamps and intermediate base incandescent 

lamps.

10 CFR 429.40 .......... New per EISA 2007. 

Electric motors ...................................................................................................... No change. (10 CFR 431.17) 

Commercial refrigerators, freezers, and refrigerator-freezers ............................. 10 CFR 429.42 .......... 10 CFR 431.65.

Commercial heating, ventilating, air-conditioning (HVAC) equipment ................. 10 CFR 429.43 .......... 10 CFR 431.173 through 10 CFR 

431.175. 

Commercial water heating (WH) equipment ........................................................ 10 CFR 429.44 .......... 10 CFR 431.173 through 10 CFR 

431.175. 

Automatic commercial ice makers ....................................................................... 10 CFR 429.45 .......... 10 CFR § 431.135. 

Commercial clothes washers ............................................................................... 10 CFR 429.46 .......... New per EISA 2007. 

Distribution transformers ...................................................................................... 10 CFR 429.47 .......... 10 CFR 431.197. 

Illuminated exit signs ............................................................................................ 10 CFR 429.48 .......... 10 CFR 431.205. 

Traffic signal modules and pedestrian modules .................................................. 10 CFR 429.49 .......... 10 CFR 431.225. 

Commercial unit heaters ...................................................................................... Design standard. Not applicable. 

Commercial pre-rinse spray valves ...................................................................... 10 CFR 429.51 .......... 10 CFR 431.265. 

Refrigerated bottled or canned beverage vending machines .............................. 10 CFR 429.52 .......... 10 CFR 431.295. 

Walk-in coolers and walk-in freezers ................................................................... Design standard. Not applicable. 

Metal halide lamp ballasts and fixtures ................................................................ 10 CFR 429.54 .......... 10 CFR 431.328 

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DOE sought comment on a variety of 

issues relating to sampling plans in the 

September 2010 NOPR. DOE is 

continuing to consider further changes 

to the sampling plans for certification 

testing of all consumer products, 

including: (1) Changes to the productspecific coefficients and the rationale 

for such changes; (2) whether DOE 

should continue to have different 

sampling plans for certification testing 

and enforcement testing; and (3) 

whether DOE should expand the 

submission of data requirements in the 

certification section to include test data 

and the details of the sampling 

procedures used for making 

representations of and certifying 

compliance with the energy and water 

use or efficiency. DOE will consider all 

of the comments submitted as part of 

this record as it continues any potential 

revisions in the next certification, 

compliance, and enforcement 

rulemaking. 

G. Certification Testing Specific to 

Commercial HVAC and WH Equipment, 

Including the Use of AEDMs and VICPs 

In the September 2010 NOPR, DOE 

proposed that one set of sampling 

procedures be used for certification 

testing of all types of commercial airconditioning and water heating 

equipment (HVAC and WH) and for 

verification of the AEDM, regardless of 

participation in a voluntary industry 

certification program (VICP). DOE 

further proposed to allow all 

manufacturers of commercial HVAC and 

WH equipment, irrespective of 

participation in a VICP, to use both inhouse testing facilities and independent 

laboratories at the manufacturer’s 

discretion for certification testing. 

In response to DOE’s proposals, AHRI 

objected to the application of the more 

stringent non-VICP regulations to VICP 

participants. Specifically, AHRI stated 

that the certification testing 

requirements for VICPs should remain 

unchanged because changing them 

would actually be an advantage to those 

manufacturers that do not participate in 

a VICP. (AHRI, No. 91.1 at p. 8) 

DOE does not agree with AHRI and is 

adopting its approach as proposed in 

the September 2010 NOPR. DOE 

believes that fair and equal treatment of 

all manufacturers of commercial HVAC 

and WH equipment is important 

regardless of participation in 

certification programs. While DOE 

recognizes that participation in industry 

programs can provide invaluable 

benefits to manufacturers, DOE does not 

believe the regulations for certification 

testing should be differentiated based on 

this factor. Certification sampling plans, 

which are applied to the certification 

testing results, have been established to 

capture the variances in manufacturing 

processes, testing methods, and 

materials. DOE does not believe these 

factors are influenced by participation 

in a VICP. As such, DOE is adopting 

identical provisions, which use certain 

provisions from the existing regulations, 

for both non-VICP and VICP 

participants. 

H. Records Retention and 

Confidentiality 

1. Records Retention by Manufacturers 

In the September 2010 NOPR, DOE 

proposed to establish a record retention 

requirement for certification reports that 

would require the reports to be retained 

by the manufacturer as long as the 

model is being distributed in commerce 

and, for discontinued models, for two 

years from the date that production of 

a basic model has ceased and is no 

longer being distributed by the 

manufacturer. This requirement would 

be in addition to the records retention 

requirement for underlying certification 

test data, which existing regulations 

require manufacturers to maintain for 

two years. Records must be maintained 

such that they are readily accessible for 

review by DOE upon request. 

In response to this proposal, BSH 

recommended that DOE strike the 

language proposed in the September 

2010 NOPR requiring manufacturers to 

retain certification records for as long as 

the model is being distributed in 

commerce. Instead, BSH suggested that 

DOE simply state that records should be 

retained for two years from the date 

production ceased. (BSH, No. 89.1 at 

p. 4) 

Although we recognize the date on 

which production ceases may be readily 

available to manufacturers, the 

Department’s regulatory regime centers 

on the distribution of covered products 

in commerce, rather than 

manufacturers’ production schedules. 

Thus, the Department is adopting in this 

final rule the requirement that 

certification records be retained for two 

years from the date that the 

manufacturer or certifying entity 

notified DOE that the basic model is no 

longer being distributed in commerce. 

As discussed above, the Department 

views a model as discontinued when 

the entity that certified the basic model 

(or the party represented by a thirdparty certifier) is no longer offering the 

model for sale. Accordingly, under 

today’s rule, records must be retained 

for two years from the date of that 

submission. This approach creates a 

specific date known to both 

manufacturers and the Department and 

requires manufacturers to retain records 

for models in the distribution chain for 

a reasonable period of time after they 

are discontinued. 

DOE also clarifies that, under its 

maintenance of records requirement, a 

manufacturer must retain the 

certification records, including test 

reports, which underlie the each 

certification of a model. As an example, 

if a basic model is certified to DOE on 

April 1, 2011, the test report underlying 

that certification report must be retained 

such that it can be provided to the 

Department upon request. A test report 

generated at a later date will not be 

sufficient. If the basic model is 

recertified to DOE on April 1, 2012, 

based on a different test report, the new 

test report underlying that certification 

report must be retained, in addition to 

the certification report underlying the 

2011 certification. 

2. Confidentiality of Information 

In the September 2010 NOPR, DOE 

proposed to clarify in its regulations 

that the following information 

submitted pursuant to the certification 

requirements is considered public 

record: The manufacturer’s name, brand 

name, model number(s), and all of the 

product-specific information submitted 

on the certification report. In addition, 

the Department retained the current 

approach whereby certifying entities 

seeking to withhold other information 

submitted to the Department from 

public disclosure must provide redacted 

copies at the time of submission. 

In response, a number of commenters 

expressed strong support for public 

access to certification data. (See, e.g., 

AWE, No. 38.1 at p. 2; NRDC, No. 80.1 

at p. 6, NEEA, No. 67.1 at p. 3; 

Earthjustice, No. 83.1 at p. 2) As one 

commenter explained: ‘‘Providing the 

public with a ready means to access 

efficiency testing results strengthens the 

incentive for manufacturers to follow 

the law and helps ensure that they will 

be held accountable if they failed to 

meet efficiency standards.’’ (See Lish, 

No. 58.1 at p. 2) Several commenters 

encouraged DOE to establish a public 

online database as the repository for all 

product and equipment information to 

increase transparency and public access. 

(See, e.g., NRDC, No. 80.1 at p. 6; NEEA, 

No. 67.1 at p. 3, First Co., No. 76.1 at 

p. 3) First Company, for example, 

offered ‘‘strong support for the 

development of a single DOE/FTC list of 

certified equipment that is published 

and publicly available on the DOE Web 

site,’’ that would include certification 

reports and notices of discontinuance. 

(First Co., No. 76.1 at p. 3) 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12433 

As for the specific information to be 

considered as a matter of public record, 

several parties objected to making 

public the business relationship 

between a manufacturer and private 

labeler of a covered product. Delta 

Faucet, for example, commented that 

certification information related to 

private labelers should be segregated 

and kept confidential due to concerns 

for contracting with potential customers 

and release of such information to 

competitors. (Delta, No. 94.1 at p. 1) 

Similarly, AHAM recognized that who 

manufactures a privately labeled 

product ‘‘may be valid and valuable 

information to DOE as a regulator,’’ but 

that this information ‘‘is not publicly 

known and, in many cases, would harm 

companies’ competitive postures if 

* * * such arrangements were 

disclosed.’’ (AHAM, No. 98.1 at p. 6) 

First Company suggested that, to avoid 

consumer confusion, only the following 

information should be made public for 

central air conditioners and heat pumps: 

‘‘manufacturer name, private labeler 

name, brand name, basic model number, 

individual model numbers covered by 

that basic model, capacity, SEER and 

HSPF (if applicable) of the model.’’ 

(First Co., No. 76.1 at p. 3) 

AHAM further opposed making CT(l), 

CT(m) and standard temperature sensor 

location information for refrigerators, 

refrigerator-freezers, and freezers 

available to the public because they 

would reveal confidential information. 

(AHAM, No. 98.1 at p. 6) AHAM also 

asserted that certification information 

should only be made public once the 

product is released into commerce. 

AHAM believes that releasing such 

information prior to the product’s 

release will deflate product launches 

and release information to competitors 

before it is otherwise known. (AHAM, 

No. 98.1 at pp. 6–7) 

The Department believes that making 

data accessible to the public provides 

increased transparency and 

accountability to the Department’s 

regulatory regime. At the same time, the 

Department recognizes that certain 

information may be confidential in 

nature and exempt by law from public 

disclosure. To balance these interests, 

the final rule adopts the following 

framework for addressing the public 

disclosure of information submitted to 

DOE under Part 429, while protecting 

valid claims of confidential business 

information. 

First, certain categories of certification 

information will be considered a matter 

of public record that DOE intends to 

make available to the public on its Web 

site. The Department is developing a 

public, searchable database that will 

allow the public ready access to certain 

certification information for covered 

products. This certification database is 

still being developed, and the 

Department hopes to make it available 

to interested parties in the coming year. 

While this will be a DOE database, we 

are continuing to work with FTC and 

EPA on establishing a consolidated 

Federal database of energy and water 

efficiency information. 

Using this database, the Department 

intends to publicize the following 

certification information for covered 

products: The brand name, model 

number(s), and product-specific 

certification information for which no 

confidentiality concerns have been 

raised. With respect to manufacturer 

and private labeler information, we 

understand from the comments that 

there may be heightened competitive 

sensitivity attached to the identity of 

manufacturers and private labelers of 

certain products. We also note that the 

FTC has chosen not to publicize this 

information on its Web site. In 

recognition of this, the Department will 

follow the FTC’s approach and 

publicize brand information in lieu of 

information that reveals business 

relationships between manufacturers 

and private labelers. Although DOE has 

decided not to include the manufacturer 

and brand relationship on the public 

database, the Department still requires 

this information be submitted as part of 

the certification report to the 

Department and it will be subject to the 

confidentiality provisions outlined 

below. 

DOE also intends to publish in the 

public database product-specific 

information that is already available or 

is readily available, such as the energy 

or water ratings and volume 

measurements. Though some of this 

information is technical, no party has 

deemed it proprietary and it will 

increase the accountability of 

manufacturers’ self-certification and 

DOE’s compliance and enforcement 

activities. DOE will not publicize the 

CT(l), CT(m) and standard temperature 

sensor location for refrigerators and 

freezers in light of the concerns that this 

information would reveal design details 

of the control mechanisms of a product 

that manufacturers treat as confidential. 

All other product-specific certification 

information will be made publicly 

available. 

Once the database is available, these 

public categories of certification 

information will be posted promptly 

upon receipt and remain available until 

DOE receives a notice of 

discontinuance. With respect to 

AHAM’s concerns about the posting of 

information prior to product launch, we 

note that manufacturers can wait to file 

a certification report until a model is 

about to be distributed in commerce. 

Furthermore, DOE believes that 

instances in which the entirety of a 

certification filing must be kept 

confidential will be exceedingly rare. 

Should such instances occur, 

manufacturers should contact DOE, in 

advance, and provide a full explanation 

of the extenuating circumstances 

justifying such confidential treatment. 

Second, for all other information 

submitted pursuant to Part 429, today’s 

rule provides a mechanism for 

submitting parties to claim 

confidentiality on a case-by-case basis at 

the time of submission. Any person 

submitting information or data pursuant 

to Part 429 that the person believes to 

be confidential and exempt by law from 

public disclosure should submit via an 

attachment to CCMS: (1) A request for 

confidential treatment; (2) one complete 

copy, and (3) one copy from which the 

information believed to be confidential 

has been deleted or redacted. The 

request for confidential treatment must 

contain a comprehensive statement of 

the reasons for withholding the 

information from disclosure, including: 

(1) A description of the specific items 

for which confidential treatment is 

sought, (2) whether and why such items 

are customarily treated as confidential 

within the industry, (3) whether the 

information is generally known by or 

available from other sources, (4) 

whether the information has previously 

been made available to others without 

obligation concerning its 

confidentiality, (5) an explanation of the 

competitive injury to the submitting 

person that would result from public 

disclosure, (6) a date upon which such 

information might lose its confidential 

nature due to the passage of time, (7) 

why disclosure of the information 

would be contrary to the public interest; 

and (8) any other information that the 

party seeking confidential treatment 

believes may be useful in assessing 

whether its request for confidentiality 

should be granted. 

DOE may defer acting on any requests 

for confidentiality until DOE receives a 

request for the disclosure of the 

information covered by the request. The 

information will be treated as 

confidential until DOE acts on the 

request and all subsequent appeal 

proceedings have been exhausted. In 

response to a request for the disclosure 

of information, DOE will review the 

submitter’s views, but will make its own 

determination with regard to any claim 

that information submitted be exempt 

from public disclosure. If the 

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12434 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

Department denies a request for 

confidentiality in whole or in part, 

seven days’ notice of that determination 

will be given to the submitter pursuant 

to 10 CFR 1004.11(e) before the 

information is disclosed. 

This approach provides submitters 

with an opportunity to express claims of 

confidentiality with particularity at the 

time the information is submitted, 

including a request for information to 

remain confidential for a set period of 

time, such as prior to a public product 

launch. Furthermore, it will allow the 

Department to determine whether a 

particular piece of information is 

exempt from public disclosure by law 

on a case-by-case, fact specific basis. In 

this way DOE can both consider 

confidentiality claims effectively and 

respond to disclosure requests 

promptly, while protecting against 

unlawful disclosure of information. 

I. Enforcement Testing 

1. Initiation of an Enforcement Action 

The current regulations provide for 

enforcement testing only upon DOE’s 

receipt of written information that a 

covered product or covered equipment 

may be violating a standard. 10 CFR 

430.70(a); 10 CFR 431.373(a). In the 

September 2010 NOPR, DOE proposed 

to revise its procedures to make clear 

that, pursuant to section 6296 of EPCA, 

the Department retains the discretion to 

request data, test, or examine the 

standard compliance of any covered 

product or covered equipment at any 

time, and to initiate enforcement 

investigations and actions based on a 

belief that a covered product or covered 

equipment is not compliant with an 

applicable standard. 75 FR 56803; 

56825. 

Today’s rule removes the requirement 

that DOE must receive a written 

complaint alleging a violation of the 

standard before it can perform 

enforcement testing to determine a 

model’s compliance. The Department’s 

need to exercise its discretion under the 

statute and enforce regulations 

proactively was recognized by a number 

of comments in the record. Consumer’s 

Union and the Appliance Standards 

Awareness Project, for example, 

submitted comments in support of the 

Department’s revision to its regulations 

to make clear that DOE, on its own, can 

initiate enforcement actions. 

(Consumer’s Union, No. 74.1 at p. 3; 

Appliance Standards Awareness Project, 

Public Meeting Transcript, No. 103 at 

p. 21) Additionally, IAPMO R&T 

encouraged DOE to continue to seek 

companies that are not complying with 

the testing and reporting requirements 

so as to ensure a level, competitive 

playing field. (IAPMO R&T, No. 36.1 

and 66.1 at p. 1) 

Some commenters urged DOE to 

retain the existing limit on its discretion 

and require that it receive written 

information of a standards violation 

before testing to determine whether a 

product is compliant. Specifically, ABB 

requested that DOE retain the original 

requirement that a formal complaint 

must exist prior to the initiation of 

formal testing. (ABB, No. 53.1 at p. 11) 

AHRI also commented that the proposed 

change was unwarranted because DOE 

should have some reason for initiating 

an investigation of compliance or at 

least give preference to written 

information. (AHRI, No. 91.1 at p. 10) 

The Department continues to believe 

that it is essential to align its regulations 

with its broad statutory authority under 

EPCA to initiate enforcement 

investigations and actions to determine 

if a covered product or covered 

equipment is compliant. This will 

ensure that the Department can enforce 

its regulations in a timely, effective 

manner as Congress intended. The 

enforcement program simply cannot be 

as effective if the Department can only 

initiate enforcement testing upon the 

receipt of an external complaint—DOE 

must be able to monitor compliance and 

test products at its own discretion. 

Today’s final rule reflects the 

Department’s authority to monitor 

compliance by requesting data and 

testing products, at any time, and to 

initiate enforcement investigations and 

actions based on a belief that a covered 

product or covered equipment may not 

be compliant with an applicable 

standard. This authority comes directly 

from the statute, see 42 U.S.C. 6296, 

which obligates the Department to 

ensure that all covered products and 

equipment comply with applicable 

Federal conservation standards. In 

addition, the Department’s ability to 

request records, test products, and 

examine design standard compliance, at 

any time, is crucial to the deterrent 

effect of the Department’s enforcement 

efforts. The Department believes its 

authority to take these actions will serve 

to encourage compliance. 

Other commenters requested 

clarification regarding the criteria under 

which DOE will initiate an enforcement 

action. (See AWE, No. 38.1 at pp. 2–3; 

American Panel Corporation, No. 59.1 at 

p. 3; Royal Vendors Inc., No. 64.1 at p. 

2; Hill Phoenix, No. 70.1 at p. 1) For 

example, American Panel Corporation 

suggested there should be written 

criteria setting conditions under which 

DOE may initiate enforcement testing 

without information from a third party. 

(American Panel Corporation, No. 59.1 

at p. 3) Further, Ingersoll Rand 

expressed concerns because the 

September 2010 NOPR did not define 

the process that will be used to initiate 

enforcement testing. (Ingersoll Rand, 

No. 6.1 at p. 3) Similarly, NAMA noted 

its objection to DOE’s ability to initiate 

enforcement testing at any time without 

notification, urging DOE to define the 

causes that would trigger an 

enforcement investigation. (NAMA, No. 

11.1 at p. 6) NEMA commented that 

DOE should revise its regulations to 

require that DOE may initiate an 

investigation of compliance upon 

verified belief that a basic model may 

not be compliant. (NEMA, No. 26.1 at 

p. 11) 

In practice, the Department’s 

enforcement actions and how it chooses 

to exercise its enforcement authority 

will be dictated by the facts on a caseby-case basis. However, the Department 

understands commenters’ desire for a 

greater understanding of the factors that 

DOE will use to guide the exercise of its 

enforcement discretion. We also 

recognize the importance of providing 

notice to regulated entities and making 

the Department’s practices as 

transparent as possible. To provide 

further clarity, notice, and 

accountability, the Department plans to 

issue a policy statement on 

enforcement, which will address the 

types of factors and circumstances it 

will consider in deciding whether to 

initiate an enforcement action. The 

Department will make this policy 

statement available on its Web site in 

the near future. 

2. Process Provided to Manufacturers 

During Enforcement Testing 

Under the current regulations, DOE 

initially reviews the underlying test data 

supporting the certification and 

provides the manufacturer with an 

opportunity to come in and meet with 

the Department upon receipt of 

information regarding a potential 

standards violation. 10 CFR 430.70(a); 

10 CFR 431.373(a). In the September 

2010 NOPR, DOE proposed to allow 

DOE, at any time, to request any 

information relevant to determining 

compliance, including the certification 

and test data. 75 FR 56825. In addition, 

DOE removed the provision requiring 

DOE to offer to meet with the 

manufacturer prior to initiating testing. 

Id. 

Several commenters expressed 

concerns that removing these provisions 

would deprive manufacturers of the 

ability to respond in a timely and 

informed way to allegations of 

noncompliance. AHRI, for example, 

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commented that DOE should retain the 

requirement in its current regulations 

that DOE review underlying data 

provided by the manufacturer and offer 

the manufacturer the opportunity to 

meet with DOE to verify the compliance 

of the model(s) in question before 

initiating enforcement testing. (AHRI, 

No. 91.1 at p. 10) Similarly, AHAM 

argued that before a finding of 

noncompliance, DOE should 

communicate with the manufacturer or 

private labeler during the testing 

process and invite them to witness 

testing. (AHAM, No. 98.1 at p. 11) 

Additionally, AHAM stated that DOE 

should provide manufacturers with 

copies of test reports, regardless of 

whether the product is found to be 

compliant. Id. Traulsen also commented 

that DOE should provide the 

manufacturer with an opportunity to 

witness testing or, at a minimum, 

review the data and equipment prior to 

any final rulings. (Traulsen, No. 52.1 at 

p. 7) 

The Department will continue to 

afford manufacturers due process and 

an opportunity to respond to allegations 

in the course of an enforcement 

investigation. The Department’s 

forthcoming enforcement policy 

statement will provide additional 

guidance and detail on the enforcement 

process. However, in light of the 

comments, we address a few issues here 

as well. With respect to the 

manufacturer’s certification test data, 

the Department agrees with interested 

parties that reviewing the data 

underlying the certifications prior to 

initiating enforcement testing is in an 

important step in the investigative 

process because it can reveal additional 

details that are not apparent in the 

certification data. Thus, the Department 

typically reviews the underlying 

certification data and test reports 

supporting the certification report prior 

to proceeding to enforcement testing. 

However, because there may be rare 

circumstances where expedited testing 

is necessary, DOE believes it is 

important to maintain flexibility by 

providing DOE with authority to request 

records and initiate testing at any time. 

DOE also agrees that manufacturers 

should have access to enforcement test 

data. DOE expects to provide the 

manufacturer with the test data reports 

after the enforcement testing has been 

completed. The Department will also 

return any test units provided by the 

manufacturer (or at the manufacturer’s 

expense) once the case is officially 

closed. 

3. Test Notice 

DOE’s current regulations require 

manufacturers to ship units for 

enforcement testing within five working 

days once they have been identified by 

DOE. 10 CFR 430.70(a)(v); 10 CFR 

431.373(a)(v). In the September 2010 

NOPR, DOE proposed to reduce the time 

period by which a manufacturer must 

ship test units of a basic model to the 

testing laboratory pursuant to a test 

notice from 5 to 2 days. 75 FR 56826. 

In today’s rule, the Department (1) 

retains the current regulation’s five 

working day shipping rule for high 

volume, off-the-shelf products and (2) 

adopts a flexible window for low 

volume, custom built products. As 

discussed below, many of the 

commenters suggested that DOE 

separate built-to-order from premanufactured, off-the-shelf products, 

giving built-to-order products a longer 

time period to ship the basic model. The 

Department agrees and adopts this 

approach. To ensure that manufacturers 

have an adequate amount of time to ship 

test units for such low volume, built-toorder products, the Department is 

establishing separate shipping time 

periods by which a manufacturer must 

ship test units of a basic model for 

different groups of products. 

For off-the-shelf products, which can 

be acquired at the retail level, DOE is 

retaining the current five-day window to 

ship a basic model to a test laboratory 

in the event a manufacturer receives a 

notice for enforcement testing from 

DOE. The record reflects that reducing 

the time frame from five to two days 

would impose a significant burden. In 

particular, JVC, Royal Vendors Inc., 

ALS, NEEA, Hill Phoenix, Ingersoll 

Rand, Delta Faucet, AHAM, AHRI, 

Manitowoc Ice, Craig Industries, 

Traulsen, GE Prolec, Kysor Panel 

Systems, and the Appliance Standards 

Awareness Project generally commented 

that two days is too short and would 

work an undue hardship on the 

manufacturer, distributor or dealer from 

whom the test samples are being 

acquired. (JVC, No. 56.1 at p. 1; Royal 

Vendors Inc., No. 64.1 at p. 2; ALS, No. 

66.1 at p. 3, NEEA, No. 67.1 at p. 7; Hill 

Phoenix, No. 70.1 at p. 2, Ingersoll 

Rand, No. 6.1 at p. 4; Delta Faucet, No. 

94.1at p. 2; AHAM, No. 98.1 at p. 9, 

AHRI, No. 92.1 at p. 10; Manitowoc Ice, 

Public Meeting Transcript, No. 103 at 

pp. 174–175; Craig Industries, Public 

Meeting Transcript, No. 103 at pp. 179– 

180; Traulsen, No. 52.1 at p. 6; GE 

Prolec, No. 95.1 at p. 6; Kysor Panel 

Systems, Public Meeting Transcript, No. 

103 at p. 182; ASAP, Public Meeting 

Transcript, No. 103 at pp. 183–184) 

For products like low-volume or builtto-order models that are unavailable 

upon receipt of the test notice at the 

manufacturer’s facility, warehouse, 

distribution chain, or retailer, DOE will 

work with the manufacturer to obtain 

units as quickly as possible for a 

pending enforcement case. The 

comments in the record support a longer 

timeframe and a more flexible approach 

for these types of products. In 

particular, BWC, American Panel, AO 

Smith, NEMA, MEUS, NAMA, and ABB 

generally noted that the existing 5 days 

is too short, especially for custom, builtto-order products, which require a 

longer lead time to manufacture. (BWC, 

No. 45.1 at p. 3; American Panel, No. 

59.1 at p. 3; AO Smith, No. 81.1 at 

p. 4; NEMA, No. 85.1 at p. 5, MEUS, 

Public Meeting Transcript, No. 103 at 

p. 183; NAMA, No. 25.2 at p. 5; ABB, 

No. 53.1 at p. 10) Some of these 

commenters also suggested a one-sizefits-all approach is impractical for a 

number of products. For example, 

American Panel asserted that 3 to 15 

days are required to manufacture 

custom Walk-In Coolers or Freezers 

(WICFs). (American Panel, No. 59.1 at p. 

3) Further, BWC asserted that 30 days is 

a more appropriate time period for 

shipping water heater test units, 

especially niche products, which are 

almost entirely built-to-order. (BWC, 

No. 45.1 at p. 3) Today’s rule adopts a 

flexible approach in response to 

commenters’ concern that it may not be 

feasible for low volume or built-to-order 

products to comply with a few days lead 

time for shipping test units for 

enforcement testing purposes. 

4. Sampling for Enforcement Testing 

The existing sampling procedures to 

be used for enforcement testing are set 

forth in Appendix B to Subpart F of Part 

430 (consumer products), Appendix B 

to Subpart K of Part 431 (distribution 

transformers), Appendix C to Subpart S 

of Part 431 (metal halide lamp ballast), 

and Appendix D to Subpart T of Part 

431 (certain commercial 

equipment).The sampling plan for 

enforcement testing of consumer 

products requires testing an initial 

sample of four products. Then, 

depending on the variation in the 

testing results of the initial sample, a 

second sample size of up to 16 

additional units may need to be tested 

to make a determination of compliance 

or non-compliance per the current 

regulations. (Appendix B to Subpart F of 

Part 430) 

For commercial products, DOE’s 

existing regulations are similar to those 

of consumer products except there are 

provisions for testing a sample of less 

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than four products for commercial 

heating, ventilation, air-conditioning, 

and water heating equipment when the 

full sample cannot be obtained. In 

addition, the tolerances for certain 

commercial products are different due 

to the equipment-specific attributes 

such as manufacturing practices and 

testing procedures. 

In the September 2010 NOPR, DOE 

proposed to increase the maximum 

sample size for enforcement testing of 

all products to 21 units. 75 FR 56826. 

DOE proposed this increase in the 

maximum number of units to account 

for the test sample needed for certain 

types of consumer lighting products. 75 

FR 56804. 

In addition, DOE recognized that a 

sample size of 20 total units under the 

existing regulations may not always be 

available for basic models that are lowvolume or built-to-order. To 

accommodate these circumstances and 

reduce burden on manufacturers, DOE 

proposed to modify the existing 

sampling procedures to account for lowvolume and built-to-order basic models. 

75 FR 56803–804; 56826. Further, DOE 

proposed to retain the discretion to 

determine whether the basic model 

qualifies as low-volume or built-toorder. DOE proposed to make such 

determination by evaluating the number 

of units of a given basic model available 

at the manufacturer’s site and all 

distributors. Id. 

Today’s rule makes two general 

changes to the current enforcement 

sampling regulations. First, it increases 

the maximum number of units that may 

be tested to 21. Second, it adopts new, 

flexible sampling provisions for low 

volume or custom-built products. 

Together, these provisions permit the 

Department to identify units for 

enforcement testing effectively, 

depending on the circumstances of a 

particular case. 

First, for high-volume, consumer 

products and commercial equipment, 

DOE retains its sampling plan proposal, 

under which DOE tests an initial sample 

size of four units per basic model and, 

depending on the variability of the test 

results, may test up to 17 additional 

units, as required, for enforcement 

testing. DOE believes this is the best 

approach to provide robust test results 

and ensure that products are not 

incorrectly found out of compliance. 

DOE notes that with the exception of 

increasing the maximum sample size for 

off-the-shelf products from 20 to 21— 

which reflects the test sample needed 

for certain types of consumer lighting 

products—the sampling provisions for 

enforcement testing are nearly identical 

to the current provisions found in DOE’s 

regulations and those currently being 

used for enforcement testing. 

Second, DOE agrees with many of the 

comments on the importance of 

flexibility where units are not available 

for testing, especially in the case of lowvolume or built-to-order basic models. 

American Panel Corporation stated its 

belief that DOE should allow for 

additional sampling based on analysis 

of the first sample(s) since the initial 

testing of products could be impacted 

by testing queues of as much as six 

months. (American Panel Corporation, 

No. 59.1 at p. 3) Ingersoll Rand 

recommended that DOE consider the 

nature and the cost of the product under 

test. (Ingersoll Rand, Public Meeting 

Transcript, No. 103 at p. 319 and No. 6.1 

at p. 3) General Electric Lighting 

encouraged DOE to do computer 

simulation of enforcement testing to 

ensure that DOE has a high degree of 

confidence that DOE will not produce a 

false signal of non-compliance. (General 

Electric Lighting, Public Meeting 

Transcript, No. 103 at p. 229) IAPMO 

R&T stated its support for DOE’s current 

proposal for enforcement testing. 

(IAPMO R&T, No. 36.1 at p. 2) Royal 

Vendors misunderstood DOE’s proposal 

and commented that an initial sample 

size of four units and an additional 

sample size of up to 21 units is 

troublesome because of the unit cost, 

which could be burdensome and the 

availability of those units could be 

difficult to obtain. (Royal Vendors, No. 

64.1 at p. 2) NAMA opposed the 

enforcement sampling size procedures 

as they related to beverage vending 

machines because the manufacturers do 

not have the economic capacity to 

warehouse up to 20 beverage vending 

machines of each basic model. NAMA 

urged DOE to use its discretion when 

fewer than two beverage vending 

machines of a given model are available 

for testing within 30 days of the test 

notice. (NAMA, No. 25.1 at pp. 4–5) 

Hoshizaki America, Inc. stated its belief 

that test samples should be minimized 

for commercial equipment, generally, 

because these units can be costly to 

make and house if limited machines are 

sold each year. (Hoshizaki America, Inc. 

No. 75.1 at p. 1) 

Recognizing these concerns, DOE has 

decided to adopt several enforcement 

sampling provisions that take account of 

low-volume or built-to-order consumer 

products and commercial equipment. 

First, DOE specifies provisions for 

certain covered products and equipment 

where there is a lower volume market 

and manufacturing tends to be more 

customized. These include automatic 

commercial ice makers, commercial 

refrigeration equipment, refrigerated 

bottled or canned vending machines, 

commercial HVAC and WH equipment, 

and distribution transformers. The 

initial sample size of these units 

matches that of high-volume consumer 

and commercial equipment, which is 

four units. 

Second, DOE is including a provision 

that provides for testing of fewer than 

four units if they are unavailable at the 

time the test notice is received. While 

these provisions were proposed in the 

September 2010 NOPR, DOE has 

attempted to clarify them to aid 

manufacturers in determining the exact 

sample size required for enforcement 

testing depending on product or 

equipment type. 

Finally, DOE has also included a 

general provision applicable to all 

covered products and covered 

equipment, which allows DOE to use its 

discretion in determining the sample 

size when covered products and 

covered equipment are generally 

unavailable. DOE will use many of the 

considerations that interested parties 

noted above in their comments, 

including the availability of units and 

the availability of third-party testing 

facilities to run the DOE test procedure. 

5. Testing Done for Other Agencies 

DOE proposed to allow units tested 

using the applicable DOE test procedure 

by DOE or another Federal agency, 

pursuant to other provisions or 

programs, to count toward units in the 

test sample for enforcement testing, so 

long as the testing is done in accordance 

with the DOE test procedures and 

certification testing provisions. 75 FR 

56804. The record does not reflect any 

specific comments on this issue and 

DOE continues to believe the 

Department should not have to 

duplicate efforts taken by itself or by 

other agencies to re-test units that have 

already been tested by the Federal 

government using DOE’s test procedure. 

Thus, DOE is adopting this provision, as 

proposed, in the final rule. 

6. Test Unit Selection 

Currently, DOE must obtain units for 

testing directly from the manufacturer’s 

facility or another location specified by 

the manufacturer. In the September 

2010 NOPR, DOE proposed to revise its 

test unit selection provisions for 

enforcement testing to allow DOE to 

select the units of a basic model to be 

tested from the manufacturer, a 

distributor, or directly from a retailer. 75 

FR 56826. For low-volume or built-toorder products, DOE proposed that it 

would determine the most reliable 

method of selecting units that are 

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representative of those sold to 

consumers. Id. 

In today’s rule DOE is adopting in its 

regulations that DOE may select units of 

a basic model to be tested for 

enforcement purposes from a 

distributor, a retailer, or the 

manufacturer. Reliable enforcement 

testing requires the selection and testing 

of an unbiased sample that is 

representative of the units distributed in 

commerce. Based on DOE’s experience, 

it is necessary to obtain units from 

diverse sources to allow for an 

unbiased, representative, and sufficient 

sample to produce the most reliable 

testing. A number of commenters 

supported DOE’s proposal to obtain test 

units from retailers and distributors, as 

well as directly from the manufacturer. 

(AWE, No. 38.1 at p. 3; NEEA, No. 67.1 

at p. 7; NRDC, No. 80.1 at p. 6) 

Some commenters objected to this 

change, arguing that test units should 

come directly from the manufacturer. 

BWC stated this was necessary since not 

every manufacturer distributes their 

product through the retail channel. 

(NAMA, No. 25.1 at pp. 5–6; BWC, No. 

10049 at p. 3; AHRI, No. 92.1 at p. 10) 

Commenters also noted that DOE’s 

approach of obtaining test units from 

retailers would be too burdensome for 

products with limited or no stock. For 

example, Craig Industries stated that a 

WICF test unit is not stocked and would 

therefore have to be built by the 

manufacturer and then shipped to DOE 

at a cost of approximately $6,000 per 

unit under DOE’s test unit selection 

process. (Craig Industries, Public 

Meeting Transcript, No. 103 at p. 192) 

As described above, however, DOE did 

not propose and is not adopting a 

process to select exclusively from retail 

sources. Today’s rule broadens the 

potential sources of units for testing. 

DOE is not changing from a 

manufacturer-supplied process to an 

exclusively retail-supplied process. 

NAMA and AHRI further argued 

against selecting units from distributors 

or retailers because the manufacturer 

cannot be held responsible for 

equipment once it is out of their control. 

(NAMA, No. 25.1 at pp. 5–6; AHRI, No. 

92.1 at p. 10) DOE agrees that 

manufacturers should not be held 

responsible for most post-production 

modifications; however, unaltered 

equipment should function as intended 

whether it is obtained directly from the 

manufacturer or through the 

manufacturer’s normal distribution 

channels. NAMA also questioned 

whether DOE is considering testing used 

or rebuilt equipment that has been 

modified by the purchasers, which 

would not provide a valid test of 

compliance. (NAMA, No. 25.1 at pp. 5– 

6) DOE has previously stated that its 

authority does not extend to rebuilt and 

refurbished equipment, and DOE does 

not plan to test equipment not covered 

by regulation. See, e.g., 74 FR 44920. 

Similarly, DOE is not adopting any 

change to the existing regulatory 

requirement that no quality control, 

testing or assembly be performed on 

units selected for testing. Therefore, 

irrespective of the source (retail, 

distributor or manufacturer), DOE 

intends to obtain and test units to which 

no alterations have been made. More 

generally, DOE believes that selecting 

units from the retailer or distributor may 

often provide DOE with the best 

representation of a typical unit that is 

distributed in commerce. 

DOE recognizes that for low-volume 

and built-to-order basic models that are 

not available from retailers or 

distributors, the only method of 

obtaining these units, in many cases, is 

from the manufacturer. Manufacturers 

of low-volume and built-to-order basic 

models also explained that they will 

most likely not have inventory available 

for enforcement testing. (See e.g., GE 

Prolec No. 95.1 at pp. 5–6) In such 

cases, DOE does not intend to require 

manufacturers to produce units simply 

for the purpose of enforcement testing. 

Doing so exclusively could be 

burdensome and wasteful and could 

risk introducing bias in the enforcement 

test sample. Rather, DOE will work with 

the manufacturer to identify units for 

enforcement testing, which may include 

similar alternative models. Moreover, 

DOE is also adopting a provision in 

today’s final rule, which allows DOE to 

use its discretion to perform 

enforcement testing at a manufacturer’s 

laboratory when there are extenuating 

circumstances, which make testing at a 

third-party laboratory impracticable or 

inadvisable. In these rare instances, the 

manufacturer’s lab must also be 

accredited to the International 

Organization for Standardization (ISO)/ 

International Electrotechnical 

Commission (IEC) 17025, ‘‘General 

requirements for the competence of 

testing and calibration laboratories’’, 

Second edition, May 15, 2005, (ISO/IEC 

17025:2005(E)) and DOE will witness 

the testing. DOE believes this will also 

facilitate the enforcement process of 

low-volume and built-to-order products. 

Other commenters expressed concern 

about the mechanism by which 

manufacturers would be notified of unit 

selection when units are obtained from 

retailers or distributors. AO Smith noted 

that if DOE adopts the approach of 

selecting test units from retailers, then 

a clear definition of cost would need to 

be established as well as a method of 

notifying a manufacturer that a unit was 

selected and obtained from a certain 

supplier. (AO Smith, No. 81.1 at p. 3) 

AHRI requested that DOE clarify that a 

manufacturer’s reimbursement to the 

retailer is limited to providing a 

replacement product without any 

additional monetary compensation. 

(AHRI, No. 92.1 at p. 10; AHRI, Public 

Meeting Transcript, No. 103 at pp. 191– 

192) AO Smith also commented that 

although obtaining samples from a 

distributor or retailer may be a 

reasonable idea to prevent pre-selection 

of units by the manufacturer, it will be 

difficult (if not impossible) to 

administer. (AO Smith, No. 81.1 at p. 3) 

DOE believes that obtaining units 

from a distributor or retailer will be 

relatively straightforward, as 

manufacturers have specified 

distributors as sources under the current 

regulations and have arranged some 

form of compensation to facilitate the 

transfer of the units to DOE’s specified 

test lab directly from the distributors. 

Furthermore, DOE is adopting a process 

that includes the issuance of a test 

notice, which will specify the source of 

units for testing. Therefore, the 

manufacturer will be aware of the 

selection of units and can make 

arrangements to compensate the retailer 

for the units selected for testing. As 

stated earlier, DOE will communicate 

with manufacturers during the 

enforcement process and keep them 

informed about the investigation. 

Today’s rule does not specify the form 

of reimbursement the manufacturer 

provides to the retailer. Such 

reimbursement may take the form of a 

replacement unit, monetary 

compensation, a voucher, or any other 

mechanism upon which the 

manufacturer and retailer agree. 

Some of the commenters supporting 

the rule urged DOE to go farther, 

recommending that DOE adopt a 

preference for retail selection and obtain 

samples for testing from the 

manufacturer only if no retail product is 

available. NEEA and NRDC, for 

example, requested that DOE develop a 

protocol for enforcement testing that 

would establish off-the-shelf testing as 

the preferred method for acquiring 

products. (NEEA, No. 67.1 at pp. 7–8; 

NRDC, No. 80.1 at p. 6) NEEA further 

suggested that DOE’s prioritization 

process for sourcing products for testing 

should be aligned to the Energy Star 

program’s prioritization process. (NEEA, 

No. 67.1 at pp. 7–8) 

The Department declines to adopt a 

systematic preference for sourcing 

products for enforcement testing from 

either retail or manufacturer sources. As 

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12438 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

the comments reflect, retail sources may 

be preferred in some instances, while 

manufacturer sources will be more 

effective in others. Thus, the 

Department retains the discretion to 

select units in the manner most 

appropriate in a particular case to 

achieve our goals of unbiased, 

representative, and sufficient samples. 

Testing an unbiased sample and 

obtaining that sample quickly when 

DOE has identified a potentially 

noncompliant product is necessary to 

ensure the American public is receiving 

the energy efficiency promised by the 

Federal efficiency standards. The 

Department will consider many factors 

when determining where to obtain 

units, including unit availability and 

shipping times. DOE realizes that basic 

models may not always be available 

from the retailer or distributer, such as 

if the unit is a seasonal product like a 

room air conditioner. Consequently, 

DOE is retaining its discretion to obtain 

basic models from the manufacturer, a 

retailer, a distributor, or some 

combination thereof. 

7. Testing at Manufacturer’s Option 

After the Department has tested a 

model and determined through 

statistical analysis that it does not meet 

the applicable standard, the existing 

regulations allow a manufacturer to do 

additional testing at DOE’s selected lab 

at the manufacturer’s expense. In the 

September 2010 NOPR, the Department 

proposed to remove these sections 

because manufacturers can perform 

additional testing on their own at any 

time. 

The Department is removing the 

regulatory provision governing 

manufacturer testing because it is both 

unnecessary—given that manufacturers 

are free to perform additional testing on 

their own at any time—and otherwise 

delays the finality of a compliance 

determination. In written comments, 

AHRI, ABB, and NEMA opposed 

removal of the provisions allowing 

additional testing at the manufacturer’s 

option. (AHRI, No. 92.1 at p. 11; ABB, 

No. 53.1 at p. 9, NEMA, No. 85.1 at p. 

11) In particular, AHRI commented that 

this provision provides a safeguard 

against a ‘‘false negative’’ conclusion and 

provides manufacturers with fair, dueprocess in enforcement testing. (AHRI, 

No. 92.1 at p. 5) AHAM further 

commented that while it recognizes the 

Department is interested in minimizing 

delay in the enforcement process, this 

should not be at the expense of the 

Department being fair and obtaining 

accurate results. (AHAM, Public 

Meeting Transcript, No. 103 at p. 244) 

The Department disagrees that 

removing the manufacturer optional 

testing provision will result in 

unfairness or inaccurate test results. 

Manufacturers can perform additional 

testing on their own and provide test 

results to DOE at any time. There is no 

need for a regulatory provision to give 

them this option. Moreover, DOE’s 

enforcement testing is based on a 

statistically valid sample size. Once the 

Department has completed its 

enforcement testing, allowing for any 

additional testing serves no purpose 

other than to increase the testing sample 

size. As NEEA’s comment explained, if 

the enforcement testing is done in a 

statistically rigorous way (according to 

procedure, within specified tolerances), 

then the only impact of further testing, 

regardless of who does it, is delay in the 

enforcement process. (NEEA, No. 67.1 at 

p. 8) Furthermore, under the existing 

(and proposed) regulation, 

manufacturers are prohibited from 

distributing the model in commerce 

during any additional manufacturerelected testing, so delay in moving the 

adjudication process forward works to 

the disadvantage of the manufacturer. 

Raising concerns about the possibility 

of defects in the tested units, MEUS, 

Johnson Controls, and Manitowoc Food 

Service generally commented that it is 

necessary for manufacturers to have the 

ability to test the same units that DOE 

has tested for there to be a 

determination that a component was 

defective. (MEUS, Public Meeting 

Transcript, No. 103 at pp. 233–234; 

Johnson Controls, Public Meeting 

Transcript, No. 103 at pp. 233–234; and 

Manitowoc Food Service, Public 

Meeting Transcript, No. 103 at pp. 242– 

243) Similarly, Owens Corning stated at 

the public meeting that it is imperative 

for manufacturers to retest a product 

that has been determined to be out of 

spec by an outside laboratory to 

determine whether it was the product or 

the outside laboratory’s test that was at 

fault. (Owens Corning, Public Meeting 

Transcript, No. 103 at pp. 226–227) 

Such comments, however, reflect a 

misunderstanding of DOE’s current 

regulations, which do not allow the 

manufacturer (1) to test the same units 

tested by DOE, (2) to observe the 

additional testing permitted by the 

regulation, or (3) to select the test lab for 

manufacturer-elected testing. 

Furthermore, today’s final rule retains 

the current regulatory provision 

addressing defective units, allowing 

DOE to test a replacement unit if a 

selected unit is inoperative or is found 

to be in noncompliance due to failure of 

the unit to operate according to the 

manufacturer’s design and operating 

instructions. 

Other commenters expressed 

concerns about variability or 

uncertainty surrounding how an outside 

laboratory would conduct enforcement 

testing, and whether the laboratory 

would conduct the test in a manner 

similar to that of the manufacturer. 

NEMA, for example, asserted that 

manufacturers of distribution 

transformers should have some ability 

to challenge the results of an 

independent test lab that does not have 

proven, established experience with the 

particular product tested. (NEMA, No. 

85.1 at p. 11) Similarly, GE Appliances 

and Lighting asserted that because 

variability questions exist among 

laboratories, where labs can test the 

same or similar products and get very 

different results, it is difficult for 

manufacturers to feel comfortable and 

validate those results. (GE Appliances 

and Lighting, Public Meeting Transcript, 

No. 103 at pp. 241–242) 

As discussed below, DOE’s 

enforcement testing will be done by 

appropriately qualified, ISO/IEC 

17025:2005 accredited laboratories. 

However, in recognition of the concerns 

of the rare instances when laboratories 

may be unavailable to test certain 

products or equipment, DOE is adopting 

a provision in today’s final rule that 

allows DOE to use its discretion to 

perform DOE-witnessed enforcement 

testing at a manufacturer’s laboratory 

when there are extenuating 

circumstances that make testing at an 

independent laboratory inadequate or 

unrealistic. 

8. Cost Allocation for Testing 

In the September 2010 NOPR, DOE 

tentatively concluded that the cost of 

enforcement testing should remain with 

the Department, as existing regulations 

require. The Department received 

comments on this issue from the ALA, 

AWE and Hoshizaki America, Inc. 

Specifically, ALA commented that it 

supports DOE’s tentative decision that 

the cost of enforcement testing should 

remain with DOE. (ALA, No. 97.1 at 

p. 1) In addition, AWE noted that DOE 

should consider alternate vehicles to 

pay for enforcement testing, including 

certification fees, VICP from 

manufacturers, and revolving funds 

paid from successful enforcement fines. 

(AWE, No. 38.1 at p. 3) Lastly, 

Hoshizaki America, Inc. suggested that 

the cost of enforcement testing be on a 

case-by-case basis, similar to AHRI’s 

current process, which requires that the 

loser in the challenge process pay for 

enforcement testing. (Hoshizaki, No. 

75.1 at p. 2) Hoshizaki America stated 

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that the manufacturer should only have 

to pay for testing with enforcement if 

they are found to be in non-compliance. 

(Hoshizaki, No. 75.1 at p. 2) 

DOE appreciates the suggestions by 

the commenters on the variety of 

potential methods to pay for 

enforcement testing. Unlike voluntary 

programs, which could incorporate a 

potential fee for registration, DOE’s 

regulatory program requires 

manufacturers to certify with the 

Department and we currently have no 

authority to collect filing fees that could 

be used for administering the 

enforcement program. DOE agrees with 

ALA that the cost of enforcement testing 

should reside with the Department, as 

this allows the Department with the 

greatest flexibility in executing the 

enforcement testing at the third-party 

laboratory of its choice. Consequently, 

DOE concludes that the cost of 

enforcement testing should remain with 

the Department and is not adopting a 

change in today’s final rule. 

9. Third-Party Laboratory Requirements 

for Enforcement Testing 

DOE did not propose specific thirdparty laboratory requirements for 

enforcement testing in the September 

2010 NOPR. However, DOE sought 

comment, generally, about the attributes 

of a laboratory accreditation program as 

it relates to enforcement testing. 

In response, DOE generally received 

comments supporting some type of 

broad accreditation for laboratories DOE 

uses to enforcement test covered 

products and covered equipment. For 

example, Earthjustice commented that 

accreditation should be required for all 

labs testing covered products and 

equipment. (Earthjustice, No. 83.1 at p. 

1) UL stated its support for laboratory 

accreditation through the ISO/IEC 

17025:2005 process. UL further 

commented that adoption of an ISO/IEC 

17025:2005 requirement will improve 

initial product quality. (UL, No. 60.1 at 

p. 2) Similarly, IAPMO R&T commented 

that the laboratory used for determining 

compliance in enforcement actions 

should meet the ISO/IEC 17025:2005 

requirements. (IAPMO R&T, No. 36.1 at 

p. 2) Additionally, the Natural 

Resources Defense Council, the 

Appliance Standards Awareness Project, 

the National Consumer Law Center, and 

the Northeast Energy Efficiency 

Partnership submitted a joint comment 

supporting laboratory accreditation for 

enforcement testing. (NRDC, ASAP, 

NCLC, and NEEP, No. 39.1 at p. 4) 

As a result of the support to establish 

some type of laboratory accreditation 

program for enforcement testing, DOE 

has taken the initial steps towards this 

goal by requiring that any laboratory 

used for enforcement testing by DOE be 

lab accredited to ISO/IEC 17025:2005. 

DOE believes this requirement, while 

limiting the laboratories DOE could use 

for potential enforcement testing, will 

provide interested parties with 

additional reassurance in the robustness 

and accuracy of the test results. DOE 

will continue to consider additional 

accreditation requirements, including 

test procedure-specific requirements, in 

the next certification, compliance, and 

enforcement rulemaking. 

10. Enforcement for Imports and Exports 

In the September 2010 NOPR, DOE 

proposed to modify the label on 

exported products that do not comply 

with the applicable energy conservation 

standard to read ‘‘NOT FOR SALE IN 

THE UNITED STATES’’ to make it clear 

that those products are not for 

distribution in commerce in the United 

States. Additionally, DOE sought 

comments on how to modify its 

certification, compliance, and 

enforcement provisions to more 

effectively enforce at the border. 

In today’s final rule, the Department 

is modifying its proposed label 

requirement for exported products to 

read ‘‘NOT FOR SALE FOR USE IN THE 

UNITED STATES.’’ The Department 

believes this new language makes clear 

that the labeled item cannot be sold or 

distributed in the United States for 

ultimate use in the United States— 

which is what the statute requires— 

while incorporating commenters’ 

suggestions that the label explicitly state 

‘‘NOT FOR USE IN THE UNITED 

STATES.’’ (See AWE, No. 38.1 at p. 3; 

NEMA, No. 85.1 at p. 4; Baldor Electric, 

Public Meeting Transcript, No. 103 at p. 

317; Rheem, No. 79.1 at p. 6; GE Prolec, 

No. 95.1 at p. 9) As NEMA explained in 

its comment, this change to the language 

will account for the fact that ‘‘the 

commercial process often involves sale 

to a U.S. based company for subsequent 

export.’’ (NEMA, No. 85.1 at p. 4). The 

Department declines to adopt the 

suggestions from ALS that the label 

should state ‘‘EXPORT,’’ and from 

Schneider Electric that we should use 

the term ‘‘Installation’’ instead of ‘‘Sale.’’ 

(ALS, No. 66.1 at p. 5; Schneider 

Electric, No. 63.1 at p. 3) To enforce 

compliance with the energy efficiency 

regulations at the border, the 

Department believes it is essential to 

include language on the label clearly 

indicating the product must not be sold 

for use in the U.S. 

With regard to DOE’s question in the 

September 2010 NOPR on how to 

modify its regulations to more 

effectively enforce at the border, the 

Department received several comments 

recommending that DOE develop 

documentation and labeling 

requirements for determining 

compliance. For example, GE Prolec 

recommended that DOE provide 

additional documentation guidelines for 

import reviews by U.S. Customs and 

Border Protection (CBP), since it would 

be extremely difficult for CBP to 

determine if a distribution transformer 

was compliant from only a visual 

perspective. (GE Prolec, No. 95.1 at p. 9) 

Additionally, GE Prolec suggested DOE 

adopt some sort of a labeling 

requirement, such as a symbol, for 

commercial products that would 

explicitly state that it was compliant 

with the energy efficiency regulations. 

(GE Prolec, Public Meeting Transcript, 

No. 103 at pp. 312–314) Similarly, the 

NEMA Transformer Section 

recommended that DOE adopt a 

program, akin to the CC number system 

used for motor manufacturers, that 

would indicate to CBP that the product 

comes from a source that has complied 

with the certification and compliance 

requirements of the DOE. (NEMA 

Transformer Section, No. 84.1 at p. 16) 

For Medium-Voltage Dry-Type and 

Liquid-Fill Distribution Transformers, 

the NEMA Transformers Section 

proposed requiring a ‘‘Circle E’’ to be 

placed on all products tested and 

certified to indicate compliance with 

the energy conservation standards. 

(NEMA Transformer Section, No. 84.1 at 

p. 16) 

The Department agrees that it may be 

beneficial to adopt some type of 

documentation to verify compliance and 

will consider these comments in its 

ongoing discussions with CBP. The 

Department declines to adopt 

commenters’ suggestions regarding 

labeling for distribution transformers at 

this time. DOE questions the value of CC 

numbers assigned to motor 

manufacturers and does not wish to 

extend this practice to distribution 

transformers. We do not adopt any type 

of labeling requirement, including 

placement of a ‘‘Circle E’’ on a product, 

at this time. While DOE continues to 

work with CBP for effective enforcement 

of the energy conservation standards at 

the border, any labeling requirement 

DOE would adopt would need to be 

established in coordination with CBP, as 

CBP is be the agency that has the 

authority to deny entrance of any 

products that are not in compliance 

with the energy conservation standards. 

Other commenters generally 

suggested that DOE develop some type 

of enforcement program with CBP to 

conduct inspections at the port. (See 

NEMA Motor & Generator Section, No. 

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84.1 at p. 22) For example, the NEMA 

Lamp Section suggested that DOE work 

with CBP to determine when regulated 

products are being imported, 

particularly to identify companies 

without a significant brand presence in 

the U.S. and who may not be familiar 

with U.S. energy regulations. (NEMA, 

No. 84.1 at p. 31) The NEMA Lamp 

Section also recommended that CBP set 

up a system to assure that products 

imported comply with DOE regulations. 

Specifically, NEMA suggested an audit 

system to follow up with the importer 

of record to review test reports from a 

NVLAP accredited lab. (NEMA, No. 84.1 

at p. 31) Further, the Office of Energy 

Efficiency, Natural Sources Canada 

(NRCAN) recommended that, similar to 

the requirements of the Canadian Border 

Services Agency, DOE may want to 

work with CBP to require that a 

manufacturer provide to CBP certain 

data elements as it imports a product, 

including the purpose of import for the 

product. (NRCAN, Public Meeting 

Transcript, No. 103 at pp. 315–317) 

As previously stated, the Department 

is currently working with CBP on ways 

to ensure effective enforcement of the 

Federal energy efficiency regulations at 

the border and will take commenters’ 

suggestions into consideration in 

developing any new practices with CBP. 

Lastly, regarding specific changes to 

the regulatory text proposed in the 

September 2010 NOPR, NEMA 

recommended that DOE revise its 

proposed language in the imported and 

exported products rule in the proposed 

sections 429.25–26. (NEMA, No. 84.1 at 

pp. 4–5) NEMA asserted that DOE 

should make clear that the reference to 

‘‘this part’’ in proposed sections 429.25 

and 429.26 refers not only to Part 429, 

but also Parts 430 and 431. (NEMA, No. 

84.1 at p. 4) NEMA additionally 

commented that DOE make explicit in 

proposed section 429.25(b) that there is 

an exception for a product imported for 

export. (NEMA, No. 84.1 at p. 5) The 

Department agrees with NEMA 

regarding the reference to ‘‘this part’’ in 

proposed sections 429.25–26 and 

revises these sections in today’s final 

rule sections 429.5 and 429.6 to include 

not only Part 429, but also Parts 430 and 

431. With respect to NEMA’s comment 

on proposed section 429.25(b), however, 

DOE believes that no change is needed. 

The existing text already reflects that 

there is an exception for a product 

imported for export, and, of course, 

section 429.6 specifically addresses 

exported products. 

J. Adjudication 

1. Prohibited Acts 

In the September 2010 NOPR, DOE 

proposed to explicitly establish in its 

rules that a manufacturer’s failure to 

properly certify a covered product or 

covered equipment and retain records in 

accordance with DOE regulations may 

be subject to enforcement action, 

including the assessment of civil 

penalties, separate from any 

determination of whether a covered 

product or covered equipment does or 

does not comply with the applicable 

conservation standard. In addition, the 

Department proposed to revise its 

regulations to make clear that the 

following violations would also 

constitute a prohibited act subject to 

enforcement action: (1) A failure to test 

any covered product or covered 

equipment subject to any of the 

conservation standards, including 

deliberate use of controls or features in 

such product or equipment to 

circumvent the requirements of a test 

procedure and produce test results that 

are unrepresentative of a product’s 

energy or water consumption if 

measured pursuant to DOE’s required 

test procedure; (2) a manufacturer or 

private labeler’s distribution in 

commerce of a basic model after a notice 

of noncompliance determination has 

been issued; and (3) the occurrence of 

a knowing misrepresentation. 

DOE received comments from various 

member sections of NEMA on its 

proposed enforcement steps. In 

particular, the NEMA Motor and 

Generator Section requested 

clarification that not testing a basic 

model is not a violation when the 

efficiency of the basic model has been 

certified under an AEDM or certification 

program. (NEMA, No. 85.1 at p. 26) On 

this point, the Department clarifies that 

a basic model must be tested in 

accordance with a DOE test procedure 

and regulations, which includes 

sampling plans and alternative methods 

of testing, to be properly certified. Thus, 

if a manufacturer is using an AEDM to 

certify a basic model, then, so long as 

the manufacturer has substantiated and 

applied the AEDM properly in 

accordance with DOE regulations, there 

is no violation. 

The NEMA Motor and Generator 

Section also commented that DOE 

should permit a grace period between 

the time of issuance of a notice of 

noncompliance determination and the 

time at which distribution must be fully 

stopped, since distribution of a 

noncompliant electric motor may need 

to be stopped at several locations. Id. 

DOE declines to adopt such a grace 

period, because EPCA, on its face, 

clearly prohibits a manufacturer from 

distributing a noncompliant product. As 

a matter of law, once a manufacturer 

receives a notice of noncompliance, the 

manufacturer must immediately 

discontinue its sales of the 

noncompliant product. 

Additionally, the NEMA Lamp 

Section and NEMA Lamp Ballast 

Section stated that while they accept the 

need for enforcement steps in cases of 

knowing misrepresentation, a high level 

of confidence should be required to 

establish this and the enforcement 

standard would have to acknowledge 

industry and regulatory tolerances. 

(NEMA, No. 85.1 at pp. 38, 52) These 

Sections also noted that the sampling 

provisions can result in an underrepresentation of the true performance 

characteristic and expressed concern 

that this would be considered a 

knowing misrepresentation. Id. The 

NEMA Lamp Section and NEMA Lamp 

Ballast Section further questioned 

DOE’s authority to pursue this type of 

relief against false and misleading 

statements under EPCA, recommending 

instead that the FTC has some authority 

for this type of enforcement under the 

FTC Act. Id. 

Today’s rule clarifies that a knowing 

misrepresentation of the efficiency of a 

product in a required certification report 

to the Department is a violation under 

EPCA. Pursuant to EPCA, DOE has the 

authority to require that manufacturer 

submissions are both accurate and 

provided in accordance with its 

regulations. (See 42 U.S.C. 6302(a)(3).) 

A failure to do so is a prohibited act 

under EPCA and DOE rules and is 

subject to enforcement action. A 

contrary reading would substantially 

undermine the purpose of the 

certification and compliance 

requirements in the first place—to 

ensure that all covered products 

distributed in commerce comply with 

the applicable energy conservation 

standards and have been tested as 

prescribed by the rules. The Department 

also wishes to clarify that a conservative 

rating is not a misrepresentation. As 

long as the tested performance of the 

product is at least as good as its certified 

rating, a knowing misrepresentation will 

not have occurred. Rather, a 

misrepresentation occurs when a 

manufacturer certifies a product it 

knows to be noncompliant or when a 

manufacturer certifies a value it knows 

cannot be supported by test data. Of 

course, separate from an EPCA 

violation, such conduct is also 

prohibited by 18 U.S.C. 1001, which 

prohibits knowingly making false 

statements to the Federal Government. 

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2. Penalties 

In the September 2010 NOPR, the 

Department proposed to revise its 

regulations to state clearly that for 

certification requirement violations, per 

statutory authority and DOE guidance, 

the Department would calculate 

penalties based on each day a 

manufacturer distributes each basic 

model in commerce in the United States 

without having submitted a certification 

report. Additionally, DOE proposed to 

explicitly state in its regulations that, 

consistent with its guidance, it would 

consider numerous factors in assessing 

civil penalties, including: The nature 

and scope of the violation; the provision 

violated; the violator’s history of 

compliance or noncompliance; whether 

the violator is a small business; the 

violator’s ability to pay; the violator’s 

timely self-reporting of the violation; the 

violator’s self-initiated corrected action, 

if any; and such other matters as justice 

may require. In today’s final rule, the 

Department clarifies its penalty 

procedure. Further, the Department 

determines not to add to its regulation 

the specific factors DOE takes into 

consideration when assessing civil 

penalties, as proposed in the September 

2010 NOPR. 

The Department has determined that 

it will not adopt its proposal to list 

explicitly in its regulations the factors 

that DOE takes into consideration in 

assessing civil penalties. The 

Department’s previously issued 

Guidance on the Imposition of Civil 

Penalties for Violations of EPCA 

Standards and Certification Obligations 

(Penalty Guidance), available at http:// 

www.gc.energy.gov/documents/ 

Penalty_Guidance_5_7_2010_final_(1) 

.pdf, sets forth the Department’s 

approach to the imposition of penalties 

for violations of DOE’s standards and 

certification requirements. This 

guidance provides ample notice to 

regulated entities and makes more 

transparent the process by which DOE 

calculates penalties. Since this guidance 

already lists the factors that DOE will 

consider in calculating a penalty, 

repeating these factors in the 

Department’s regulations would be 

duplicative. 

Although we are not adopting this 

provision, the Department has 

considered comments on DOE’s 

proposal in light of the existing Penalty 

Guidance. For example, Earthjustice 

suggested that, to make the assessment 

of penalties fairer, DOE should use the 

manufacturer’s markup across the 

industry for a product to calculate how 

much a manufacturer has benefitted 

from selling a noncompliant product 

and then take that into consideration in 

developing a penalty amount. 

(Earthjustice, Public Meeting Transcript, 

No. 103 at pp. 268–269) The Department 

agrees with Earthjustice and will amend 

its Penalty Guidance to include a 

manufacturer’s markup data as one of 

the factors the Department may consider 

in developing a penalty amount. 

A few parties objected to some of the 

factors listed in DOE’s Penalty 

Guidance. Specifically, American Panel 

stated that certain factors DOE considers 

in assessing civil penalties, namely the 

size of violator’s business and violator’s 

ability to pay, have merit but could lead 

to unequal enforcement. (American 

Panel, No. 59.1 at p. 3) The NEMA 

Motor & Generator Section similarly 

commented that penalties should be the 

same for any violator, regardless of size 

or ability to pay (NEMA, No. 85.1 at p. 

26) The Department is mindful of such 

concerns and wishes to reassure parties 

that it will balance concerns of fairness 

and equity in the assessment of 

penalties to achieve deterrence and 

encourage timely resolution of any 

instances of non-compliance. While 

DOE will look at a company’s size and 

their ability to pay, this will just be one 

factor among others from which the 

Department determines the appropriate 

penalty in any given case. 

Interested parties also suggested 

including additional penalties for 

frivolous claims. Specifically, the 

NEMA Motor & Generator Section 

recommended that a penalty be assessed 

on anyone who submits a frivolous 

claim about a violation which is found 

to be untrue. Id. American Panel also 

suggested there should be some sort of 

penalty for frivolous turn-in, so that 

regulated entities are deterred from 

turning in their competitors without 

merit. (American Panel, Public Meeting 

Transcript, No. 103 at pp. 277–278) The 

Department recognizes commenters’ 

concerns and shares the desire to 

prevent the filing of frivolous 

complaints. However, DOE does not 

have the authority under EPCA to assess 

penalties for frivolous claims. Under the 

statute, the Department may only assess 

penalties for specified prohibited acts, 

and frivolous claims do not fit into any 

of these prohibitions. The Department 

will, however, exercise its discretion in 

initiating enforcement actions and will 

consider the source of the complaint 

and the Department’s prior experience 

with involved parties in making such 

decisions. 

Lastly, with regard to distribution 

transformers, Schneider Electric 

commented that the language in section 

429.55 relating to the assessment of civil 

penalties should be modified from ‘‘each 

day of noncompliance’’ to ‘‘each day 

energized’’ since the distribution 

transformer can sit un-energized for 

months. (Schneider Electric, No. 63.1 at 

pp. 4–5) The Department understands 

that products may be used or not used 

in a variety of ways once distributed in 

commerce and that a distribution 

transformer may be distributed in 

commerce but not energized for some 

periods of time. But EPCA prohibits the 

distribution in commerce of 

noncompliant products, and this cannot 

turn on whether and how the product is 

used or energized once sold. Therefore, 

DOE declines to adopt Schneider 

Electric’s proposal. 

3. Imposition of Additional Certification 

Testing Requirements as Remedy for 

Non-Compliance 

As an additional tool to ensure 

compliance with the DOE conservation 

standards and regulations, the 

Department proposed in the September 

2010 NOPR to revise its regulations to 

provide that the DOE may require 

independent, third-party testing for 

certification of covered products and 

covered equipment where DOE has 

determined a manufacturer or private 

labeler is in noncompliance with the 

certification requirements or applicable 

conservation standards. DOE received 

no comments in opposition to this 

proposal and is including this 

requirement that allows for third-party 

certification testing for noncompliance 

in today’s final rule. 

4. Compromise and Settlement 

In the September 2010 NOPR, the 

Department proposed to outline the 

steps to be taken by both parties (DOE 

and respondent) once a compromise or 

settlement offer has been made. No 

interested parties opposed this proposal, 

and the Department is including 

language outlining the process for 

compromising or settling a penalty 

amount assessed under its regulations in 

today’s final rule. 

K. Waivers 

DOE also addressed the possibility of 

establishing a mandatory waiver 

requirement in the September 2010 

NOPR. This would obligate 

manufacturers to obtain a waiver where 

the test procedure does not evaluate the 

energy or water consumption 

characteristics in a representative 

manner or where the test procedure 

yields materially inaccurate 

comparative data. 

The Department received comments 

in support of a mandatory waiver 

requirement from NRDC, the Appliance 

Standards Awareness Project, 

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Consumers Union, NEEA and AWE 

(NRDC, No. 39.1 at p. 6; Appliance 

Standards Awareness Project, Public 

Meeting Transcript, No. 103 at pp. 

34–35; Consumers Union, No. 74.1 at 

p. 5; NEEA, No. 67.1 at p. 3; AWE, No. 

38.1 at p. 2) For example, NRDC 

recommended that DOE require 

manufacturers to report to DOE any 

instance where the manufacturer knows 

or has reason to know that a product 

uses significantly more energy in 

normal, real-world performance than as 

reported in its certification for such 

product using the approved test 

procedure. (NRDC, No. 39.1 at p. 6) In 

such cases, NRDC recommended that 

DOE establish a protocol for consulting 

with the manufacturer to determine if a 

waiver is appropriate. Id. Additionally, 

the Appliance Standards Awareness 

Project and Consumers Union generally 

commented that the number of 

manufacturers requesting waivers is a 

good indicator that the test procedures 

being used are out-of-date, and that such 

a practice would alert DOE to the need 

to reexamine the relevant rule. 

(Appliance Standards Awareness 

Project, Public Meeting Transcript, No. 

103 at pp. 34–35; Consumers Union, No. 

74.1 at p. 5) 

Although various commenters 

supported a mandatory waiver 

requirement, DOE is not adding such a 

requirement to its final rule. While DOE 

appreciates that such a requirement may 

serve to prevent manufacturers from 

deliberately circumventing the test 

procedures, DOE believes that its 

existing regulations already provide 

adequate protections against such 

circumvention. DOE notes that coverage 

of a product is not dependent upon 

whether there is a test procedure that 

can test a product. Thus, regardless of 

whether a waiver is obtained for a 

product that is not covered by a test 

procedure, a manufacturer must still 

meet the required energy conservation 

standard for the product if it is a 

covered product under DOE’s regulatory 

authority. 

Consequently, DOE has multiple 

processes to address the testing 

concerns that are not explicitly 

addressed by DOE’s test procedure. 

First, manufacturers can submit test 

procedure related questions through 

DOE’s Test Procedure Guidance process. 

See http://www1.eere.energy.gov/ 

guidance/default.aspx?pid=2&spid=1 

for additional information. 

Alternatively, DOE’s regulations allow 

manufacturers to apply for a waiver 

when a manufacturer determines that a 

given basic model contains one or more 

design features that prevent testing in 

accordance with DOE’s test procedure. 

Because new models that cannot be 

tested using the existing test procedure 

must obtain a waiver before they are 

sold, DOE must do better in processing 

waivers quickly and appropriately. The 

Department renews its commitment to 

act swiftly on waiver requests and to 

update our test procedures promptly to 

address issues raised by waivers. The 

Department is also adding an electronic 

method of submission 

(AS_Waiver_Requests@ee.doe.gov) and 

revising the mailing address in today’s 

final rule. Second, DOE recognizes that 

product innovations will always 

outpace DOE’s rulemaking efforts. Thus, 

to encourage waivers and prevent the 

Department’s administrative waiver 

process from delaying or deterring the 

introduction of novel, innovative 

products into the marketplace, DOE, as 

a matter of policy, will refrain from 

enforcement actions related to a waiver 

request that is pending with the 

Department. 

L. Additional Product Specific Issues 

1. Entity Responsible for Certification 

and Compliance for Walk-In Coolers or 

Freezers (WICFs) 

In the January WICF Test Procedure 

NOPR, DOE proposed to have a separate 

test procedure for the WICF envelope 

and WICF refrigeration system. 75 FR 

186. Due to the separate test procedures 

for each of the components being 

considered by the Department, DOE 

explored the idea that the 

‘‘manufacturer’’ of an entire walk-in 

system (i.e., envelope and refrigeration 

system combined) could be a third party 

assembler (i.e., essentially a contractor 

who assembles the walk-in from the 

separate components in the field). The 

third party assembler may even be the 

end-user or owner of the equipment. 

DOE received a number of comments 

about this proposed definition in the 

January WICF Test Procedure NOPR. 

DOE addressed these comments in the 

September 2010 NOPR, where DOE 

proposed that the ‘‘manufacturer’’ is the 

entity responsible for compliance with 

any DOE energy conservation standard. 

75 FR 56806. EPCA defines the term 

‘‘manufacture’’ as ‘‘to manufacture, 

produce, assemble, or import.’’ (42 

U.S.C. 6291(10)) DOE proposed in the 

September 2010 NOPR that the term 

‘‘manufacturer’’ be applied to the entity 

responsible for designing and/or 

selecting the various components used 

in a WICF. 75 FR 56806. 

Some stakeholders agreed with DOE’s 

proposed definition of manufacturer. 

Arctic Industries believes that the 

person who chooses the specifications 

for a WIFC should be responsible for its 

efficiency. (Arctic Industries, Public 

Meeting Transcript, No. 103 at p. 293) 

Kysor stated that the installation of the 

components to create a complete walkin is accomplished by several different 

parties: a panel installer, a refrigeration 

installer, and an electrical contractor, 

for example. Due to the number of 

parties involved, Kysor agreed with 

DOE’s clarification of the entity 

responsible as the person who has 

control of the completed walk-in and all 

of its components. (Kysor, No. 68.1 at p. 

3) American Panel agreed with the 

proposed definition but suggested an 

addition. American Panel stated that the 

definition of ‘‘manufacture’’ should be 

modified to state the manufacturer of a 

WICF means any person who specifies, 

manufactures, produces, assembles or 

imports a WICF. American Panel also 

recommended that the definition of 

manufacturer should include a food 

service consultant who prepares a 

written specification of equipment to be 

provided on a project. (American Panel, 

No. 59.1 at p. 4) 

Other stakeholders stated that the 

installer should be involved in WICF 

compliance. CrownTonka stated that 

they would be in favor of a definition 

that held the assembler responsible for 

compliance, if the definition 

encompassed the installer. CrownTonka 

explained that even if components 

comply, a poor installation will not 

cause efficiency gains to be realized. 

(EERE–2008–BT–STD–0015, 

CrownTonka, Public Meeting 

Transcript, No. 44 at p. 323) Craig stated 

that only the installers, who assemble 

the product in the field, can verify the 

energy usage for WICFs. (Craig, Public 

Meeting Transcript, No. 103 at p. 27) 

Craig expressed concern that unless 

installers ensure the integrity of the 

material that goes into a WICF, installers 

are excluded from the definition of 

manufacturer even though they can 

have more impact on the energy use of 

a WICF than the manufacturers because 

energy usage depends on proper 

installation, which the manufacturer 

cannot control. (Craig, Public Meeting 

Transcript, No. 103 at p. 25) 

CrownTonka, Thermalrite, and ICS, also 

known as the Joint Comment, stated that 

since the ‘‘matched’’ ratings are applied 

to remote condensing units the 

certification should be done by the 

installer instead of the manufacturer, 

which would increase the number of 

responsible parties. (EERE–2008–BT– 

TP–0014, Joint Comment, No. 2.3.006 at 

p. 3) Hill Phoenix stated that the 

responsibility for infiltration testing and 

compliance should be placed on the 

installer. (EERE–2008–BT–TP–0014, 

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Hill Phoenix, No.2.3.007 at p. 2) Kysor 

recommended that certification should 

be done by someone at the final site 

who approves the assembly because 

energy use depends on the final 

assembly. (EERE–2008–BT–STD–0015, 

Public Meeting Transcript, Kysor, No. 

44 at p. 43) 

Many stakeholders were concerned 

about the consequences of making the 

assembler responsible for certifying the 

entire walk-in. NEEA implied that the 

proposed definition of a WICF 

manufacturer was too broad. (NEEA, 

Public Meeting Transcript, No. 103 at p. 

295) NEEA also stated that the current 

framework would be difficult to enforce 

(EERE–2008–BT–TP–0014, NEEA, No. 

2.3.005 at p. 1) CA State IOU 

recommended that DOE carefully 

consider how this rule would be 

enforced before proceeding under the 

proposed regulatory framework, which 

shifts compliance documentation from 

tens of manufacturers to thousands of 

contractors and designers, converts this 

appliance standard to a building 

standard, and also shifts enforcement 

from DOE to over 3,000 building 

departments. (EERE–2008–BT–STD– 

0015, CA State IOU, No. 60 at p. 4) 

Specifically, some stakeholders 

expressed concern about the cost 

burden that would be imposed upon the 

defined ‘‘manufacturer.’’ Heatcraft stated 

that it would be very burdensome for 

component manufacturers to be 

responsible for testing different 

components that they did not 

manufacture. (EERE–2008–BT–STD– 

0015, Public Meeting Transcript, 

Heatcraft, No. 44 at p. 318) Craig stated 

that the proposals in the September 

2010 NOPR were overly burdensome, 

and costs associated with the proposed 

regulations would likely put three 

quarters of the manufacturers out of 

business. (Craig, Public Meeting 

Transcript, No. 103 at p. 24) Manitowoc 

stated that if the assembler is a local 

contractor, the contractor may not be in 

a position to handle the responsibility of 

demonstrating compliance with an 

overall performance standard. 

Manitowoc worried that assemblers may 

get out of the business for fear of 

noncompliance consequences. (EERE– 

2008–BT–STD–0015, Public Meeting 

Transcript, Manitowoc, No. 44 at p. 30) 

Hill Phoenix stated that requiring 

manufacturer certification of installers 

would place undue burden and cost on 

both manufacturers and consumers. 

(EERE–2008–BT–TP–0014, Hill 

Phoenix, No. 1.2.023 at p. 1) 

Various stakeholders suggested other 

compliance, certification, and 

enforcement paths the DOE could 

follow. NWEEA and NPCC stated that 

one way DOE could ensure compliance 

with these standards is by conventional 

means at the manufacturer level for 

WICF system components. (EERE–2008– 

BT–STD–0015, NWEEA and NPCC, No. 

58 at p. 3) Kysor emphasized that 

certification and compliance to a panel 

standard should be incumbent upon the 

panel manufacturer. (Kysor, No. 68.1 at 

p. 1) Similarly, Master-Bilt stated that 

door manufacturers should rate their 

own doors. (EERE–2008–BT–TP–0014, 

Master-Bilt, No. 2.3.014 at p. 2) Both 

Kysor’s and Master-Bilt’s comments are 

examples of a component level 

certification approach. Hill Phoenix 

argued that the definition of walk-in 

manufacturer should be clarified 

because in the current definition, the 

compliance responsibility could be 

applied to several entities, including the 

end user, consulting engineer/architect, 

dealer, wholesaler, and component 

manufacturer. Hill Phoenix 

recommended responsibility fall on 

three possible areas: The component 

manufacturers, the installer, and the 

entity that specifies all of the 

components of a walk-in envelope. Hill 

Phoenix also recommended that DOE 

adopt a regulatory framework similar to 

NEEA’s, in which the component 

manufacturers are responsible for 

certifying their own components, the 

installer is responsible for infiltration, 

and the entity responsible for specifying 

the components would be responsible 

for the efficiency of the whole envelope. 

(Hill Phoenix, No. 70.1 at p. 3; EERE– 

2008–BT–TP–0014, Hill Phoenix, No. 

2.3.007 at p. 1) Kysor stated that the 

manufacturer of each component should 

be responsible for testing that 

component, but should have nothing to 

do with the finished product in terms of 

compliance. (Kysor, No. 44 at p. 317, 

Standards Preliminary Analysis Public 

Meeting) Kysor explained that the 

overall installation is typically 

controlled or at least monitored by the 

permitting agency, general contractor, 

building certification official, or owner. 

These are the only parties in contact 

with all involved component 

manufacturers and installers and are the 

only parties in a position to have 

complete information from each 

component manufacturer for 

compilation; therefore, they are the only 

parties that could demonstrate 

compliance of the completed walk-in. 

(EERE–2008–BT–STD–0015, Kysor, No. 

53 at p. 2; EERE–2008–BT–STD–0015, 

Public Meeting Transcript, Kysor, No. 

44 at p. 326). Kysor also stated that DOE 

could request test data and certification 

at any time from the supplier for 

verification. Also, Kysor requested that 

the manufacturers be allowed to witness 

any verification testing of their products 

because testing labs do not always use 

the same equipment and often disagree 

on method or interpretation. (Kysor, 

68.1 at p. 3) AHRI suggested that DOE 

should have two compliance paths: a 

prescriptive path and a performance 

path, similar to the International Energy 

Conservation Code. (EERE–2008–BT– 

STD–0015, Public Meeting Transcript, 

AHRI, No. 44 at p. 333) 

Stakeholders suggested options like 

labeling and check sheets to make 

certification, compliance and 

enforcement easier. Ingersoll Rand 

stated that a program with a compliance 

check sheet would be good because the 

installer would just have to make sure 

the walk-in incorporates compliant 

components and would not have to do 

actual testing. (EERE–2008–BT–STD– 

0015, Public Meeting Transcript, 

Ingersoll Rand, No. 44 at p. 343) 

CrownTonka agreed with Ingersoll 

Rand’s suggestion and stated that it 

would be self-regulating. (EERE–2008– 

BT–STD–0015, Public Meeting 

Transcript, CrownTonka, No. 44 at p. 

343) NEEA stated that the overall Uvalue can be enforced by attaching 

paperwork to the shipped panels or a 

label similar to NFRC-rated fenestration 

products. NEEA continued to suggest 

that labeled products would make it 

easier for the manufacturer to calculate 

a performance metric. (EERE–2008–BT– 

TP–0014, NEEA, 2.3.005 at p. 1; EERE– 

2008–BT–TP–0014, NEEA, 2.3.005 at 

p. 2) Joint Utilities, which comprises of 

Southern California Edison, Pacific Gas 

& Electric, San Diego Gas & Electric, 

Sacramento Municipal Utility District, 

and CA State IOU stated that products 

intended for walk-ins must have 

certified ratings and have a label and 

catalog information that indicates that 

these products are approved for walkins. (EERE–2008–BT–TP–0014, Joint 

Utilities, 2.3.003 at p. 6; EERE–2008– 

BT–STD–0015, CA State IOU, No. 60 at 

p. 4) Carpenter Co. suggested WICF 

components be labeled with their 

energy consumption to streamline 

inspection and eliminate confusion 

when components are from different 

manufacturers. (EERE–2008–BT–TP– 

0014, Carpenter Co., 2.3.012 at p. 2) 

Adjuvant, Kysor, CrownTonka, and ICS 

all supported labeling WICF 

components. (EERE–2008–BT–STD– 

0015; Public Meeting Transcript, 

Adjuvant, No. 44 at p. 52; EERE–2008– 

BT–STD–0015, Public Meeting 

Transcript, Kysor, No. 44 at p. 55; 

EERE–2008–BT–STD–0015, 

CrownTonka and ICS, No. 56 at p. 1) 

NWEEA and NPCC suggested 

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component labels that could be checked 

by field inspectors as part of the 

compliance process. (EERE–2008–BT– 

STD–0015, NWEEA and NPCC, No. 58 

at p. 3) 

Stakeholders also discussed who 

would enforce the WICF standards. 

Manitowoc stated that a framework 

exists for oversight by health inspectors 

and oversight of structural and other 

elements, and recommended that DOE 

examine the existing framework to see 

if it can support energy efficiency 

measures. (EERE–2008–BT–STD–0015, 

Public Meeting Transcript, Manitowoc, 

No. 44 at p. 48) Adjuvant stated that in 

its experience with the California Title 

20 standard, building and health 

inspectors could not inspect for energy 

efficiency because it was impossible to 

tell if a walk-in complied with energy 

regulations just by looking at it. (EERE– 

2008–BT–STD–0015, Public Meeting 

Transcript, Adjuvant, No. 44 at p. 52) 

CA Codes and Standards stated that 

building officials trying to evaluate a 

performance standard (e.g., tradeoffs 

between components) would add cost to 

the States because inspection would be 

more difficult. (EERE–2008–BT–STD– 

0015, Public Meeting Transcript, CA 

C&S, No. 44 at p. 335) Joint Utilities 

stated that the local jurisdictions may 

not have the technical background to 

assure that compliant refrigeration 

equipment selections have been made. 

(EERE–2008–BT–TP–0014, Joint 

Utilities, No. 2.3.003 at p. 5) Craig 

recommended that enforcement could 

occur from sampling, and field testing 

could ensure representative 

calculations. (EERE–2008–BT–TP–0014, 

Craig, 2.3.013 at p. 6) 

In light of the comments, DOE is 

modifying the definition of 

manufacturer as it relates to WICFs in 

the final rule. DOE notes that the 

current legislative design standards set 

forth by the Energy Independence and 

Security Act of 2007 (EISA 2007) 

provide the framework for a componentbased approach since each design 

standard is based on the performance of 

a given component of the WICF. Using 

this approach, component 

manufacturers would be the entity 

responsible for certifying compliance of 

the components they manufacture for 

walk-in applications and ensuring 

compliance with the applicable 

standards for those components. This 

system would follow Master-Bilt’s 

suggestion that door manufacturers 

certify their own doors. Since the 

current Federal standards are 

component level standards, DOE is able 

to make certification as conventional as 

possible, as suggested by NWEEA and 

NPCC. Enabling component 

manufacturers to certify their own 

components would also relieve testing 

and cost burden from the assembler, 

which s an issue identified by Heatcraft, 

Craig, and Manitowoc, and Hill 

Phoenix. 

DOE also is specifying certain 

requirements for the manufacturers or 

assemblers of complete walk-ins, 

whether they are assembled in a factory 

or on-site. Even if the component 

manufacturers test and certify their 

components to the Department as 

required by this final rule, DOE must 

still ensure that only compliant 

components are used in walk-ins. 

Therefore, DOE notes that definition of 

manufacturer being adopted today 

extends the compliance responsibility to 

both the component manufacturer and 

the assembler even though the 

component manufacturer is the sole 

entity responsible for certification. 

Assemblers of the complete walk-in 

system are required to use only 

components that are certified to meet 

the Federal energy conservation 

standards in the assembled walk-in. The 

manufacturer or assembler of the 

complete walk-in does not have to 

certify each walk-in, as this could be 

unduly burdensome. Rather, DOE 

anticipates that the market will police 

itself and report noncompliant 

installations to the Department, 

especially if component manufacturers 

educate their purchasers about 

compliance requirements. This 

approach is very similar to the 

compliance pathways proposed by 

Ingersoll Rand and CrownTonka, Hill 

Phoenix, and Kysor. 

In this final rule, DOE adopts a 

framework for enforcement in which 

DOE will determine whether the 

manufacturer of the component or 

manufacturer or assembler of the 

complete walk-in (or both) is 

responsible for noncompliance on a 

case-by-case basis. If a component 

manufacturer certifies a noncompliant 

component as compliant, or if the 

component is not properly tested and 

certified, DOE would initiate an 

enforcement action against the 

component manufacturer. If a walk-in is 

assembled from non-compliant 

components, DOE would initiate an 

enforcement action against the 

manufacturer or assembler of the 

complete walk-in. This approach 

provides DOE with flexibility in 

enforcing WICF standards. Although the 

outlined approach may not reduce the 

number of manufacturers, as CA State 

IOU warned, this approach clearly 

identifies who is responsible for 

compliance and certification, and how 

the standard will be enforced. 

2. Basic Model Definition for Walk-In 

Coolers or Freezers (WICFs) 

In the January WICF Test Procedure 

NOPR, DOE proposed to define ‘‘basic 

model’’ as all units of a given type of 

walk-in equipment manufactured by a 

single manufacturer, and—(1) With 

respect to envelopes, which do not have 

any differing construction methods, 

materials, components, or other 

characteristics that significantly affect 

the energy consumption characteristics. 

(2) With respect to refrigeration systems, 

which have the same primary energy 

source and which do not have any 

differing electrical, physical, or 

functional characteristics that 

significantly affect energy consumption. 

DOE requested comment on this 

proposed approach. 75 FR 189. 

In the September WICF Test 

Procedure SNOPR, DOE proposed that 

envelope models grouped within a basic 

model could still differ in terms of nonenergy characteristics (e.g., color, 

shelving, metal skin material type, 

exterior finish, or door kick plate) but 

any change to a characteristic that 

affects normalized energy consumption 

(e.g. panel systems, door systems, 

electrical components, and infiltration 

reduction devices) would constitute a 

new basic model. (75 FR 55072) 

Later in the September 2010 NOPR, 

DOE described the concept of ‘‘basic 

model’’ as a group of manufacturers’ 

models that have essentially identical 

energy consumption characteristics 

such that the manufacturer would 

derive the efficiency rating for all 

models in the group from testing sample 

units of these models. DOE anticipated 

that applying this concept within the 

energy conservation program would 

streamline certification and compliance 

and alleviate burden on manufacturers 

by reducing the amount of testing they 

must do to rate the efficiencies of their 

products. DOE asked for comment on 

how manufacturers determine that a 

particular model constitutes a basic 

model, and what modifications to an 

existing model would make it a new 

basic model subject to the new model 

certification requirement. 75 FR 56798– 

56799. 

Interested parties, including many 

manufacturers of walk-in coolers and 

freezers, submitted comments on the 

basic model concept to both this 

rulemaking docket and the WICF test 

procedure rulemaking docket. For 

consistency, all comments pertaining to 

basic model of WICF will be addressed 

in this rulemaking. 

A large number of interested parties 

expressed concern that DOE’s typical 

approach of using the basic model 

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concept to categorize equipment would 

not be applicable to walk-in coolers and 

freezers. American Panel, Arctic 

Industries, Bally, Craig Industries, 

Heatcraft, and Hill Phoenix all 

commented that developing a basic 

model definition or categorization could 

be difficult because there are a vast 

number of variations in walk-in shape 

and size that could each be a different 

basic model. (American Panel, Public 

Meeting Transcript, No. 103 at p. 89; 

Arctic Industries, Public Meeting 

Transcript, No. 103 at p. 67; EERE– 

2008–BT–TP–0014, Bally, No. 46 at p. 1; 

Craig Industries, Public Meeting 

Transcript, No. 103 at p. 59; Heatcraft, 

No. 65.1 at p. 1; EERE–2008–BT–TP– 

0014, Hill Phoenix, No. 2.3.007 at p. 3) 

Bally, Hill Phoenix, and Kysor Panel 

pointed out that walk-ins are often or, 

for some manufacturers, always 

engineered to order or custom designed 

for a particular customer. (Bally, No. 46 

at p. 1; Kysor Panel, Public Meeting 

Transcript, No. 103 at p. 88; Kysor 

Panel, No. 68.1 at p. 1; Hill Phoenix, No. 

70.1 at p. 1; EERE–2008–BT–TP–0014, 

Hill Phoenix, No. 2.3.007 at p. 1) Craig 

Industries, Heatcraft and Master-Bilt 

commented that the basic model 

concept as defined by DOE could cause 

a large testing burden on the WICF 

industry, and AHRI urged DOE to adopt 

a practical definition of basic model to 

reduce testing burden. (Craig Industries, 

Public Meeting Transcript, No. 103 at p. 

60; Heatcraft, No. 65.1 at p. 1; EERE– 

2010–BT–TP–0014, Heatcraft, No. 

2.3.009 at p. 1; EERE–2010–BT–TP– 

0014, Master-Bilt, No. 2.3.014 at p. 1; 

EERE–2010–BT–TP–0014, AHRI, No. 

2.3.015 at p. 3) Craig Industries and Hill 

Phoenix commented on the particular 

burden of testing on small businesses 

under DOE’s proposed basic model 

approach. (EERE–2010–BT–TP–0014, 

Craig Industries, No. 2.3.013 at p. 2; H 

EERE–2010–BT–TP–0014, Hill Phoenix, 

No. 2.3.007 at p. 3) Carpenter added that 

DOE’s proposed basic model concept 

would be costly and cumbersome, and 

that 75% of WICF envelopes are custom 

designed. (EERE–2010–BT–TP–0014, 

Carpenter, No. 2.3.012 at p. 1) American 

Panel, Hill Phoenix and Kysor Panel 

further stated that model numbers are 

typically not used in the WICF industry, 

so DOE should not define basic model 

for walk-ins in terms of model numbers; 

American Panel further suggested 

tracking and keeping records of WICF 

equipment by manufacturing number 

and date of manufacture or date code. 

(American Panel, No. 59.1 at p. 4; Kysor 

Panel, No. 68.1 at p. 1; Kysor Panel, 

Public Meeting Transcript, No. 103 at p. 

88; Hill Phoenix, No. 70.1 at p. 1; EERE– 

2010–BT–TP–0014, Hill Phoenix, No. 

2.3.007 at p. 2) Craig Industries and 

Kysor Panel added that instead of model 

number, WICFs are characterized by 

some aspect of size. (Craig Industries, 

Public Meeting Transcript, No. 103 at p. 

97; Kysor Panel, Public Meeting 

Transcript, No. 103 at p. 99) Not all 

interested parties disagreed with the 

basic model concept: CPI supported the 

basic model definition because it 

distinguishes envelopes that vary in 

normalized energy consumption from 

those that differ only cosmetically, and 

NRDC agreed that a basic model for 

WICF would provide a baseline to 

compare envelopes from different 

manufacturers. (EERE–2010–BT–STD– 

0015, CPI, No. 51 at p. 2; EERE–2010– 

BT–TP–0014, NRDC, No. 2.3.008 at p. 2) 

Despite the supportive comments 

from CPI and NRDC, DOE notes that the 

basic model concept is particularly 

suited for instances where 

manufacturers make products that tend 

to be the same with respect to energy 

consumption; in that case the basic 

model concept would reduce the 

number of models that would need to be 

tested and certified. However, the 

comments from AHRI, American Panel, 

Arctic Industries, Bally, Craig 

Industries, Heatcraft, Hill Phoenix, 

Kysor Panel, and Master-Bilt indicate 

that most walk-ins would tend to differ 

in energy consumption, making each 

walk-in effectively a different basic 

model. Therefore, DOE realizes the need 

to carefully consider its basic model 

concept as it applies to walk-ins. 

Many interested parties offered 

suggestions on how to improve the basic 

model concept so that it could be 

applied to walk-ins. Some suggested 

DOE adopt a calculation methodology or 

allow manufacturers to use a calculation 

methodology to reduce the number of 

tests. Hill Phoenix stated that allowing 

manufacturers to test a limited number 

of models and then calculate 

performance of other models would 

reduce burden. (EERE–2010–BT–TP– 

0014, Hill Phoenix, No. 2.3.007 at p. 3) 

Arctic Industries and Craig Industries 

recommended a calculation or formula 

based on size. (EERE–2010–BT–CE– 

0014, Public Meeting Transcript, Arctic 

Industries, No. 103 at p. 67; EERE– 

2010–BT–TP–0014, Craig Industries, 

No. 2.3.013 at p. 6) Heatcraft, Hill 

Phoenix and SBA stated that 

manufacturers could calculate the 

energy consumption based on 

component test results. (EERE–2010– 

BT–CE–0014, Heatcraft, No. 65 at p. 1; 

EERE–2010–BT–CE–0014, Hill Phoenix, 

No. 70 at p. 1; EERE–2010–BT–TP– 

0014, SBA, No. 2.3.011 at p. 2) Other 

interested parties, specifically American 

Panel, Heatcraft, and SBA, agreed with 

an approach DOE considered in the Test 

Procedure SNOPR to group basic 

models into a more general ‘‘family’’ and 

only require manufacturers to certify 

some basic models within the family. 

(75 FR 55072) (EERE–2010–BT–TP– 

0014, American Panel, No. 2.3.001 at p. 

1; EERE–2010–BT–TP–0014, Heatcraft, 

No. 2.3.009 at p. 2; EERE–2010–BT–TP– 

0014, SBA, No. 2.3.011 at p. 3) The Joint 

Comment recommended that a basic 

model could represent a family of 

models as long as a linear relationship 

could be established with regard to 

energy consumption over the range of 

models. (EERE–2010–BT–TP–0014, 

Joint Comment, No. 1.3.019 at p. 1) 

Heatcraft also suggested that the family 

of models could include units of similar 

design, construction, and function, 

which would reduce the number of 

basic models and related equipment 

tests. (EERE–2010–BT–CE–0014, 

Heatcraft, No. 65 at p. 1; EERE–2010– 

BT–TP–0014, Heatcraft, No. 2.3.009 at 

p. 1) American Panel and Bally 

suggested DOE allow manufacturers to 

test one basic unit, with characteristics 

specified by DOE, for purposes of 

certifying their walk-ins to DOE. (EERE– 

2010–BT–CE–0014, Public Meeting 

Transcript, American Panel, No. 103 at 

p. 89; EERE–2010–BT–CE–0014, Bally, 

No. 46 at p. 1) 

The majority of interested parties, 

however, recommended that DOE 

implement the basic model concept on 

a component level as this would remove 

the difficulty of testing and/or certifying 

different size walk-ins that would have 

different energy consumption. For 

instance, American Panel, Craig 

Industries, Hill Phoenix, and Kysor 

Panel stated that DOE should define a 

basic model of a panel which would be 

distinguished on the basis of insulation 

value or panel thickness as this 

characteristic is most closely indicative 

of the panel’s performance. (EERE– 

2010–BT–TP–0014, American Panel, 

No. 2.3.001 at p. 1; EERE–2010–BT–CE– 

0014, Public Meeting Transcript, 

American Panel, No. 103 at p. 89; 

EERE–2010–BT–CE–0014, Public 

Meeting Transcript, Craig Industries, 

No. 103 at p. 60; EERE–2010–BT–CE– 

0014, Hill Phoenix, No. 70 at p. 1; 

EERE–2010–BT–TP–0014, Hill Phoenix, 

No. 2.3.007 at p. 2; EERE–2010–BT–CE– 

0014, Kysor Panel, No. 68 at p. 1) Kysor 

stated that basic model testing should 

consist of only an R-value test as it 

distinguishes panels based only on Rvalue, but NEEA suggested that basic 

models be defined on the basis of 

various factors including foam type, 

panel thickness, panel skin type(s), 

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framing factor, and panel gasket and 

joining system. (EERE–2010–BT–CE– 

0014, Public Meeting Transcript, Kysor 

Panel, No. 103 at p. 88 and 99; EERE– 

2010–BT–CE–0014, Kysor Panel, No. 68 

at p. 1; EERE–2010–BT–TP–0014, 

NEEA, No. 2.3.005 at p. 7) Carpenter 

suggested implementing individual 

WICF component certifications instead 

of the proposed approach. (EERE–2010– 

BT–TP–0014, Carpenter, No. 2.3.012 at 

p. 1) AHRI recommended that basic 

model be based on panel design 

characteristics to minimize test burden. 

(EERE–2010–BT–TP–0014, AHRI, No. 

2.3.015 at p. 2) Owens Corning agreed 

that one test could represent all the 

panels of the same configuration. 

(EERE–2010–BT–TP–0014, Owens 

Corning, No. 2.3.002 at p. 2) NEEA also 

agreed with a model that does not rely 

on walk-in size as that would simplify 

testing and reporting. (EERE–2010–BT– 

TP–0014, NEEA, No. 2.3.005 at p. 9) 

Although most comments about 

component certification specifically 

pertained to panels, some interested 

parties commented on refrigeration. 

AHRI urged DOE to group refrigeration 

models into the same basic model even 

if there was some difference in energy 

consumption. (EERE–2010–BT–TP– 

0014, AHRI, No. 2.3.015 at p. 2) 

Heatcraft suggested a more detailed 

system whereby a basic model would 

consist of units designed with 

interchangeable components such that 

data from component testing and 

calculation could predict the energy 

consumption of each unit with minimal 

verification testing necessary. (EERE– 

2010–BT–TP–0014, Heatcraft, No. 

2.3.009 at p. 1) 

DOE agrees with the suggestion of 

applying the basic model concept at the 

component level. Since DOE is adopting 

a component-level approach to 

certification as described in the section 

above (i.e., definition of manufacturer), 

DOE is defining a basic model for each 

of the key components of a walk-in, 

rather than defining a basic model for 

the entire walk-in. DOE emphasizes that 

although basic model is defined on the 

component level, it is still implemented 

in the same manner as it is in the rest 

of DOE’s appliance standards program; 

that is, basic model consists of 

equipment that is essentially the same 

with respect to energy consumption, 

efficiency, or other measure of 

performance. For example, panels are 

grouped into basic models not just on 

the basis of thickness or R-value as 

suggested by American Panel, Craig 

Industries, Hill Phoenix, and Kysor 

Panel, but must consider various design 

characteristics that could affect 

performance, as stated by AHRI and 

NEEA, which could include, but may 

not be limited to, foam type, panel 

thickness, and framing factor. 

Some interested parties commented 

on recertification provisions. Craig 

Industries stated that a restrictive 

definition of basic model would 

discourage product improvement 

because of the corresponding testing 

expense. (EERE–2010–BT–CE–0014, 

Public Meeting Transcript, Craig 

Industries, No. 103 at p. 94) Kysor stated 

that recertification should only be 

required if the R-value changes. (EERE– 

2010–BT–CE–0014, Kysor, No. 68 at p. 

1) DOE notes that recertification is only 

required if a model is re-rated to claim 

new efficiency or if the model is 

modified such that testing no longer 

supports the certified rating. (See 

discussion in Section III.E.1.). 

3. Basic Model and Manufacturer Model 

Number Reporting for Distribution 

Transformers, WICFs, and External 

Power Supplies 

As discussed above (Section III.B.), 

DOE is adopting most of the reporting 

requirements that it proposed in the 

September 2010 NOPR. For a few 

specific products, however, DOE is not 

adopting the requirement to report the 

individual manufacturer model 

numbers. Commenters argued against 

reporting manufacturer model numbers 

for distribution transformers and WICFs. 

(See, e.g., NEMA, No. 84.1 at p. 8 

(distribution transformers); Hill 

Phoenix, No. 70.1 at p. 1 (WICFs)) ABB 

suggested certification reports for 

distribution transformers should be 

made on the basis of kVA groupings in 

lieu of model numbers. (ABB, No. 53.1 

at p. 4) GE Prolec argued that the 

concept of a manufacturer’s model does 

not fit the characteristics of the 

distribution transformers industry. (GE 

Prolec, No. 95.1 at p. 2) Distribution 

transformers not only do not have 

model numbers, but due to the custom 

nature of the product, would have to 

report thousands of models annually. 

(See GE Prolec, No. 96) 

DOE is adopting a requirement for 

manufacturers of distribution 

transformers to report the characteristics 

of the most and least efficient basic 

models within the kVA grouping. The 

term ‘‘kVA grouping’’ is defined to mean 

a group of basic models, which all have 

the same kVA rating, have the same 

insulation type (i.e., low-voltage drytype, medium-voltage dry-type or 

liquid-immersed), have the same 

number of phases (i.e., single-phase or 

three-phase), and, for medium-voltage 

dry-types, have the same BIL group 

rating (i.e., 20–45 kV BIL, 46–95 kV BIL 

or greater than or equal to 96 kV BIL). 

DOE notes that by certifying using these 

broad groupings in lieu of reporting 

basic models, the manufacturer assumes 

the risk that if one model in a kVA 

grouping is found noncompliant, all of 

the models in that grouping are 

noncompliant. In an enforcement 

action, DOE should be able to determine 

all of the individual models that fall 

within a kVA grouping certification 

using the required certification 

information and basic model design and 

testing information. While DOE is not 

requiring a requirement for 

manufacturers to tell DOE all the 

individual model numbers that fall into 

a kVA grouping, DOE expects 

manufacturers to make this information 

available, as necessary, during 

enforcement actions. 

Generally, the WICF comments in 

opposition to reporting manufacturer 

model numbers were based on DOE’s 

proposal, which required certification of 

each basic model of completed WICF. 

(See, e.g., Hill Phoenix, No. 70.1 at p. 1) 

Kysor, however, specifically opposed 

requiring reporting of model numbers 

for the panel component of a WICF. 

(Kysor, No. 68.1 at p. 2) Because DOE 

has adopted a reporting requirement for 

the components of the WICF rather than 

for the completed product, DOE does 

not have sufficient information to 

determine whether reporting of model 

numbers for WICF components is 

feasible. Accordingly, this final rule 

does not require WICF manufacturers to 

report manufacturer model numbers. 

DOE intends to revisit this issue in a 

future rulemaking. Upon the effective 

date specified in this final rule, 

manufacturers of WICF components are 

required to certify that each basic model 

of WICF component complies with the 

applicable standard. 

For external power supplies, DOE is 

adopting product-specific regulatory 

text to permit certification on the basis 

of either a basic model or a design 

family. Irrespective of the model 

grouping option chosen, the 

certification report must include the 

manufacturer model numbers covered 

by the basic model or the design family. 

DOE notes that by certifying using the 

broader grouping of design family in 

lieu of reporting basic models, the 

manufacturer assumes the risk that if 

one model in a design family is found 

noncompliant, all of the models in that 

grouping are noncompliant. 

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M. Additional Issues for Which DOE 

Sought Comment in September 2010 

NOPR 

1. Verification Testing 

In the September 2010 NOPR, DOE 

requested comments on a variety of 

issues relating to the establishment of a 

potential verification program for 

covered products and covered 

equipment. Specifically, DOE requested 

comment about the requirements and 

details for verification testing programs 

(e.g., the use of an independent testing 

laboratory and a specific number of 

samples that should be randomly tested 

for each product). DOE received 

numerous comments from a variety of 

interested parties. 75 FR 56805. DOE 

plans to consider these comments in the 

next certification, compliance, and 

enforcement rulemaking. DOE continues 

to believe that a potential verification 

testing program may be an integral part 

to meeting DOE’s compliance and 

enforcement objectives and will 

continue to accept comments relating to 

a DOE verification program. 

2. Voluntary Industry Certification 

Programs 

DOE noted in the September 2010 

NOPR that it was not proposing 

modifications to DOE’s provisions 

defining voluntary industry certification 

programs (VICP) at that time. However, 

because the Department is considering 

imposing a verification testing 

requirement for all product and 

equipment types, which may entail 

changes to the current provisions 

governing VICPs, DOE sought comment 

regarding the criteria defining VICPs, 

and the use of VICPs in DOE’s 

certification, compliance, and 

enforcement programs for both 

consumer products and commercial and 

industrial equipment. Specifically, DOE 

requested comment about the actions 

taken by the VICP in conjunction with 

DOE when a unit is found to have failed 

the verification testing program of the 

VICP. 

3. Certification, Compliance and 

Enforcement for Electric Motors 

Although DOE did not propose 

revisions to the requirements for electric 

motors in the September 2010 NOPR, 

DOE noted in the NOPR that it intends 

to propose to move and harmonize, 

where possible, the certification, 

compliance, and enforcement 

provisions for electric motors in new 

Part 429, as well as add an annual 

certification requirement, in a second 

rulemaking. As such, DOE sought 

comment on the existing provisions for 

electric motors, including any previous 

proposals for small electric motors and 

any changes DOE should consider in the 

next rulemaking applicable to these 

products. With regard to an annual 

certification requirement, DOE 

specifically sought comment on if and 

how the certification compliance 

numbers for electric motors could be 

modified to clearly demonstrate 

compliance when there is a change in 

the Federal energy conservation 

standards for these products. 

Because DOE did not propose to 

amend any provisions with respect to 

electric motors, DOE has made 

amendments to the language of sections 

431.403 through 431.407. These 

amendments make it clear that the 

general provisions in these sections 

relate to and maintain the status quo for 

electric motors. 

4. Revisions to Sampling Plans for 

Certification Testing 

In the September 2010 NOPR, DOE 

noted that it is considering adding 

sampling plans and tolerances for other 

features of covered products and 

covered equipment which impact the 

water or energy characteristics of a 

product. DOE sought comment on this 

approach, and the methodologies DOE 

should consider if it decides to extend 

the sampling provisions to features 

other than the regulatory metrics. 

In response to these four broad 

categories, DOE received a plethora of 

feedback and valuable suggestions for it 

to consider in the next certification, 

compliance, and enforcement 

rulemaking. At that time, DOE will 

further discuss and address the general 

issues that were noted by interested 

parties in this docket. 

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

Today’s regulatory action is not a 

‘‘significant regulatory action’’ under 

section 3(f) of Executive Order 12866. 

Accordingly, this action was not subject 

to review under that Executive Order by 

the Office of Information and Regulatory 

Affairs (OIRA) of the Office of 

Management and Budget (OMB). 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.) requires 

preparation of an initial regulatory 

flexibility analysis (IRFA) for any rule 

that by law must be proposed for public 

comment, unless the agency certifies 

that the rule, if promulgated, will not 

have a significant economic impact on 

a substantial number of small entities. 

As required by E.O. 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of General 

Counsel’s Web site, http:// 

www.gc.doe.gov. 

DOE reviewed the certification, 

compliance, and enforcement 

requirements being adopted in today’s 

final rule under the provisions of the 

Regulatory Flexibility Act and the 

procedures and policies published on 

February 19, 2003. As discussed in more 

detail below, DOE found that because a 

subset of the certification, compliance, 

and enforcement regulations have not 

previously been required of 

manufacturers, all manufacturers, 

including small manufacturers, could 

potentially experience a financial 

burden associated with new 

certification, compliance, and 

enforcement requirements. While 

examining this issue, DOE determined 

that it could not certify that the final 

rule, if promulgated, would not have a 

significant effect on a substantial 

number of small entities. Therefore, 

DOE has prepared a final regulatory 

flexibility analysis (FRFA) for this 

rulemaking. The FRFA describes 

potential impacts on small businesses 

associated with certification, 

compliance, and enforcement 

requirements on covered products and 

covered equipment. This final rule 

includes changes made to the FRFA in 

response to the comments from 

interested parties on the September 

2010 NOPR. 

1. Reasons for the Final Rule 

The reasons for this final rule are 

discussed elsewhere in the preamble 

and not repeated here. 

2. Objectives of and Legal Basis for the 

Final Rule 

The objectives of and legal basis for 

the final rule are discussed elsewhere in 

the preamble and not repeated here. 

3. Description and Estimated Number of 

Small Entities Regulated 

DOE used the small business size 

standards published on January 31, 

1996, as amended, by the SBA to 

determine whether any small entities 

would be required to comply with the 

rule. 61 FR 3286; see also 65 FR 30836, 

30850 (May 15, 2000), as amended at 65 

FR 53533, 53545 (September 5, 2000). 

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The size standards are codified at 13 

CFR Part 121. The standards are listed 

by North American Industry 

Classification System (NAICS) code and 

industry description and are available at 

http://www.sba.gov/idc/groups/public/

documents/sba_homepage/serv_sstd_

tablepdf.pdf. 

This final rule potentially impacts 

manufacturers of almost all types of 

covered products and covered 

equipment subject to DOE’s energy 

conservation, water conservation, and 

design standards. 

TABLE IV.1—SMALL BUSINESS CLASSIFICATIONS FOR COVERED PRODUCTS AND COVERED EQUIPMENT

Covered product or covered equipment type NAICS code 

NAICS definition 

of small manufacturer (number 

of employees) 

Total number of 

small manufacturers 

Residential refrigerators, residential refrigerator-freezers, and residential freezers ....... 335222 ≤1000 1 

Room air conditioners ...................................................................................................... 333415 ≤750 0 

Residential central air conditioners and heat pumps ...................................................... 333415 ≤750 13 

Small-duct, high velocity .................................................................................................. 333415 ≤750 2 

Through-the-wall air conditioners and heat pumps ......................................................... 333415 ≤750 1 

Residential water heaters ................................................................................................ 335228 ≤500 6 

Residential furnaces and boilers ..................................................................................... 333415 ≤750 25 

Dishwashers .................................................................................................................... 335228 ≤500 0 

Residential clothes washers ............................................................................................ 335224 ≤1000 1 

Clothes dryers .................................................................................................................. 335224 ≤1000 0 

Direct heating equipment ................................................................................................. 333414 ≤500 12 

Cooking products ............................................................................................................. 335221 ≤750 2 

Pool heaters ..................................................................................................................... 333414 ≤500 1 

Fluorescent lamp ballasts ................................................................................................ 335311 ≤750 11 

General service fluorescent lamps .................................................................................. 335110 ≤1000 1 

Incandescent reflector lamps ........................................................................................... 335110 ≤1000 0 

Ceiling fans ...................................................................................................................... 335211 ≤750 91 

Ceiling fan light kits ......................................................................................................... 335211 ≤750 91 

Torchieres ........................................................................................................................ 335121 ≤500 404 

Medium base compact fluorescent lamps ....................................................................... 335110 ≤1000 70 

Dehumidifiers ................................................................................................................... 335211 ≤750 0 

External power supplies .................................................................................................. 335999 ≤500 250 

General service incandescent lamps .............................................................................. 335110 ≤1000 67 

Candelabra base incandescent lamp .............................................................................. 335110 ≤1000 67 

Intermediate base incandescent lamp ............................................................................. 335110 ≤1000 67 

Commercial refrigeration equipment ............................................................................... 333415 ≤750 20 

Commercial warm air furnaces ........................................................................................ 333415 ≤750 3 

Commercial packaged boilers ......................................................................................... 333414 or 

332410 

≤500 13 

Commercial package air-conditioning and heating equipment ....................................... 333415 ≤750 1 

Packaged terminal air conditioners and heat pumps ...................................................... 333415 ≤750 6 

Single package vertical units ........................................................................................... 333415 ≤750 5 

Commercial water heaters ............................................................................................... 333319 ≤500 7 

Automatic commercial ice makers ................................................................................... 333415 ≤750 2 

Commercial clothes washers ........................................................................................... 333312 ≤500 0 

Distribution transformers .................................................................................................. 335311 ≤750 45 

Illuminated exit signs ....................................................................................................... 335129 ≤500 269 

Traffic signal modules and pedestrian modules .............................................................. 335129 ≤500 269 

Refrigerated bottled or canned beverage vending machines ......................................... 333311 ≤500 6 

Walk-in coolers and freezers ........................................................................................... 333415 ≤750 45 

Metal halide fixtures ......................................................................................................... 335122 ≤500 75 

Faucets ............................................................................................................................ 332913 ≤500 62 

Showerheads ................................................................................................................... 332913 ≤500 42 

Water closets ................................................................................................................... 327111 ≤750 9 

Urinals .............................................................................................................................. 327111 ≤750 2 

Commercial prerinse spray valves .................................................................................. 332919 ≤500 8 

4. Description and Estimate of 

Compliance Requirements 

Many of the certification, compliance, 

and enforcement provisions subject to 

today’s final rule are already codified in 

existing regulations for consumer 

products and commercial and industrial 

equipment. As a result, DOE expects the 

impact on all manufactures to be 

minimal. Many of the changes being 

adopted in today’s final rule surround 

expanding DOE’s existing certification 

requirements and could slightly 

increase the recordkeeping burden. DOE 

does not expect manufacturers of all 

types to incur any capital expenditures 

as a result of the proposals, since the 

rulemaking does not impose any 

product specific requirements that 

would require changes to existing 

plants, facilities, product specifications, 

or test procedures. Rather, this rule 

clarifies sampling requirements and 

imposes certain data reporting 

requirements, which may have a slight 

impact on labor costs. 

With regard to sampling for 

certification testing, this rule clarifies 

that the minimum number of units 

tested for certification compliance must 

be no less than 2 unless a different 

minimum number is specified. DOE 

does not believe this specification 

increases the testing burden on 

manufacturers because DOE has always 

required a minimum of 2 samples, if not 

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more, to achieve a realistic sample mean 

and to mitigate the risk of a product to 

be out of compliance. For a small 

number of products, DOE is proposing 

statistical sampling procedures that are 

based on previously established 

procedures for consumer products and 

commercial equipment. These 

procedures are designed to keep the 

testing burden on manufacturers as low 

as possible, while still providing 

confidence that the test results can be 

applied to all units of the same basic 

model. In some cases, manufacturers are 

permitted to use analytical procedures, 

such as computer simulations, to 

determine the efficiencies of their 

products, which will further minimize 

testing burden. 

With regard to certification, the final 

provisions require manufacturers of 

covered products and covered 

equipment to certify annually that their 

products meet the applicable energy 

conservation standard, water 

conservation standard or design 

standard. It is expected that 

manufacturers will re-submit the 

original certification testing information 

each year for basic models with no 

modifications affecting energy 

consumption, water consumption, or 

design. As DOE currently requires 

manufacturers to submit certification 

information at the introduction of a new 

or modified basic model, DOE does not 

anticipate that annual certification on 

products already submitted will add 

substantial additional burden to 

manufacturers. 

The cost of certification testing will 

depend on the number of basic models 

a manufacturer produces. The cost of 

certifying should be minimal once 

testing for each basic model has 

occurred pursuant to the test procedures 

prescribed by DOE. 

DOE estimates that a typical firm 

would spend approximately 20 hours 

complying with the additional 

certification, compliance, and 

enforcement procedures being 

considered in today’s final rule. This 

estimate does not include any testing 

burden, which results from DOE’s test 

procedures. DOE has already considered 

this burden on all manufacturers in the 

test procedure rulemakings for 

individual manufacturers. Instead, this 

burden represents the time it would take 

a certification engineer to gather the 

appropriate data, apply the statistical 

sampling methods required, and submit 

the required certification to DOE both 

for new basic models and on an annual 

basis. DOE has tried to mitigate the 

impacts on all manufacturers by 

aligning the annual certification 

schedule with the Federal Trade 

Commission’s model submission 

schedule for consumer products. At 

most, DOE expects an average 

manufacturer to allocate 4 of the 20 

hours to meeting the annual 

certification reporting requirement. 

DOE notes that these values likely 

overestimate the manufacturer reporting 

burden, as the Federal Trade 

Commission currently requires annual 

submission of data regarding all basic 

models distributed into commerce for 

consumer products, and many voluntary 

programs also require annual data 

submission. 

In addition, to minimize the impact 

that annual certification filings may 

have on manufacturers, DOE has 

introduced the online CCMS system 

through which manufacturers would be 

required to submit their products for 

certification. In addition, DOE is making 

available CCMS templates for each 

product, which clearly lay out the 

certification requirements for each 

covered product and covered 

equipment. 

5. Duplication, Overlap, and Conflict 

With Other Rules and Regulations 

DOE is not aware of any rules or 

regulations that duplicate, overlap, or 

conflict with the proposed rule being 

considered today. 

6. Significant Alternatives to the Rule 

This section considers alternatives to 

the proposals in today’s certification, 

compliance, and enforcement 

rulemaking. DOE could mitigate the 

small potential impacts on small 

manufacturers by reducing the number 

of samples used, eliminating the annual 

certification filing, or by expanding the 

groupings of models. However, DOE 

strongly believes the proposals in 

today’s rulemaking are essential to a 

sustainable and consistent enforcement 

program for all of the covered products 

and covered equipment. While these 

alternatives may mitigate the potential 

economic impacts on small entities 

compared to the proposed provisions, 

the ability for DOE to enforce its energy 

conservation regulations far exceeds any 

potential burdens. Thus, DOE rejected 

these alternatives and is adopting the 

certification, compliance, and 

enforcement provisions set forth in this 

rulemaking for all manufacturers of 

covered products and covered 

equipment. DOE continues to seek input 

from businesses that would be affected 

by this rulemaking and will consider 

comments received in the development 

of any final rule. 

C. Review Under the Paperwork 

Reduction Act 

1. Description of the Requirements 

DOE is developing regulations to 

implement reporting requirements for 

energy conservation, water 

conservation, and design standards, and 

to address other matters including 

compliance certification, prohibited 

actions, and enforcement procedures for 

covered consumer products and 

commercial and industrial equipment 

covered by EPCA. 

DOE is adopting provisions to require 

manufacturers of covered consumer 

products and commercial and industrial 

equipment to maintain records about 

how they determined the energy 

efficiency, energy consumption, water 

consumption or design features of their 

products. DOE is also going to require 

manufacturers to submit a certification 

report indicating that all basic models 

currently produced comply with the 

applicable standards using DOE’s 

testing procedures, as well as include 

the necessary product specific 

certification data. The certification 

reports are submitted for each basic 

model, either when the requirements go 

into effect (for models already in 

distribution) or when the manufacturer 

begins distribution of a particular basic 

model, and annually thereafter. Reports 

must be updated when a new model is 

introduced or a change affecting energy 

efficiency or use is made to an existing 

model. The collection of information is 

necessary for monitoring compliance 

with the conservation standards and 

testing requirements for the consumer 

products and commercial and industrial 

equipment mandated by EPCA. 

The information that would be 

required by these regulations, once 

effective, and that is the subject of the 

collection of information, would be 

submitted by manufacturers to certify 

compliance with energy conservation, 

water conservation, and design 

standards established by DOE. DOE 

would also use the information to 

determine whether an enforcement 

action is warranted and to better inform 

DOE during a test procedure and energy 

conservation standards rulemaking. 

The certification and recordkeeping 

requirements for certain consumer 

products in 10 CFR part 430 have 

previously been approved by OMB and 

assigned OMB control number 1910– 

1400. As part of the September 2010 

NOPR, DOE proposed to renew the 

previously approved certification and 

recordkeeping requirements, as well as 

submitted a new proposed certification 

and recordkeeping requirements for all 

consumer products and commercial and 

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12450 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

industrial equipment subject to 

certification, compliance, and 

enforcement regulations to OMB for 

review and approval under the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. DOE received OMB 

approval for collecting certification, 

compliance, and enforcement 

information for all covered products and 

covered equipment on February 3, 2011, 

under OMB control number 1910–1400. 

These products generally include: 

Residential refrigerators, refrigeratorfreezers, and freezers, room air 

conditioners, central air conditioners 

and heat pumps, residential water 

heaters, residential furnaces and boilers, 

dishwashers, residential clothes 

washers, residential clothes dryers, 

direct heating equipment, conventional 

cooking tops, conventional ovens, 

microwave ovens, pool heaters, 

fluorescent lamp ballasts, general 

service fluorescent lamps, general 

service incandescent lamps, 

incandescent reflector lamps, faucets, 

showerheads, water closets, urinals, 

ceiling fans, ceiling fan light kits, 

torchieres, medium base compact 

fluorescent lamps, dehumidifiers, 

external power supplies, candelabra 

base incandescent lamps, intermediate 

base incandescent lamps, electric 

motors, commercial refrigerators, 

freezers, and refrigerator-freezers, 

commercial heating, ventilating, and airconditioning equipment, commercial 

water heating equipment, automatic 

commercial ice makers, commercial 

clothes washers, distribution 

transformers, illuminated exit signs, 

traffic signal modules and pedestrian 

modules, commercial unit heaters, 

commercial prerinse spray valves, 

refrigerated bottled or canned beverage 

vending machines, walk-in coolers and 

walk-in freezers, and metal halide lamp 

ballasts and fixtures. 

2. Method of Collection 

Respondents must submit electronic 

forms using DOE’s on-line CCMS 

system. 

3. Data 

The following are DOE estimates of 

the total annual reporting and 

recordkeeping burden imposed on 

manufacturers of all consumer products 

and commercial and industrial 

equipment subject to certification, 

compliance, and enforcement 

provisions. These estimates take into 

account the time necessary to develop 

testing documentation, complete the 

certification, and submit all required 

documents to DOE electronically. 

OMB Control Number: 1910–1400. 

Form Number: None. 

Type of Review: Regular submission. 

Affected Public: Manufacturers of 

consumer products and commercial and 

industrial equipment covered by the 

rulemakings discussed above. 

Estimated Number of Respondents: 

2,916. 

Estimated Time per Response: 

Certification reports, 20 hours. 

Estimated Total Annual Burden 

Hours: 58,320. 

Estimated Total Annual Cost to the 

Manufacturers: $4,374,000 in 

recordkeeping/reporting costs. 

D. Review Under the National 

Environmental Policy Act 

DOE has determined that this rule 

falls into a class of actions that are 

categorically excluded from review 

under the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et 

seq.) and DOE’s implementing 

regulations at 10 CFR part 1021. 

Specifically, this rule amends an 

existing rule without changing its 

environmental effect and, therefore, is 

covered by the Categorical Exclusion in 

10 CFR part 1021, subpart D, paragraph 

A5. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

DOE reviewed this rule pursuant to 

Executive Order 13132, ‘‘Federalism,’’ 64 

FR 43255 (August 4, 1999), which 

imposes certain requirements on 

agencies formulating and implementing 

policies or regulations that preempt 

State law or that have federalism 

implications. In accordance with DOE’s 

statement of policy describing the 

intergovernmental consultation process 

it will follow in the development of 

regulations that have federalism 

implications, 65 FR 13735 (March 14, 

2000), DOE examined today’s final rule 

and determined that the rule would not 

have a substantial direct effect on the 

States, on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of Government. See 74 FR 61497. 

Therefore, DOE has taken no further 

action in today’s final rule with respect 

to Executive Order 13132. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4729 (February 7, 1996)) 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, the 

regulations being adopted in today’s 

final rule meet the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4; 2 U.S.C. 1501 et seq.) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. For a proposed regulatory 

action likely to result in a rule that may 

cause the expenditure by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year 

(adjusted annually for inflation), section 

202 of UMRA requires a Federal agency 

to publish estimates of the resulting 

costs, benefits, and other effects on the 

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

UMRA also requires a Federal agency to 

develop an effective process to permit 

timely input by elected officers of State, 

local, and Tribal governments on a 

proposed ‘‘significant intergovernmental 

mandate,’’ and requires an agency plan 

for giving notice and opportunity for 

timely input to potentially affected 

small governments before establishing 

any requirements that might 

significantly or uniquely affect such 

governments. On March 18, 1997, DOE 

published a statement of policy on its 

process for intergovernmental 

consultation under UMRA. 62 FR 

12820. (The policy is also available at 

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http://www.gc.doe.gov). Today’s final 

rule contains neither an 

intergovernmental mandate nor a 

mandate that may result in an 

expenditure of $100 million or more in 

any year, so these requirements do not 

apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. 

Today’s proposed rule would not have 

any impact on the autonomy or integrity 

of the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

I. Review Under Executive Order 12630 

DOE determined under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights,’’ 53 FR 8859 

(March 18, 1988), that today’s proposed 

rule would not result in any takings that 

might require compensation under the 

Fifth Amendment to the U.S. 

Constitution. See 74 FR 61497–98. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516 note) provides 

for agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (February 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (October 7, 2002). DOE has 

reviewed today’s final rule under OMB 

and DOE guidelines and has concluded 

that it is consistent with applicable 

policies in those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OIRA a Statement 

of Energy Effects for any proposed 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates or is 

expected to lead to promulgation of a 

final rule, and that (1) is a significant 

regulatory action under Executive Order 

12866, or any successor order; and (2) 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy; or (3) is designated by the 

Administrator of OIRA as a significant 

energy action. For any proposed 

significant energy action, the agency 

must give a detailed statement of any 

adverse effects on energy supply, 

distribution, or use if the proposal is 

implemented, and of reasonable 

alternatives to the action and their 

expected benefits on energy supply, 

distribution, and use. Today’s regulatory 

action, which adopts amendments to the 

Department’s certification, compliance, 

enforcement procedures, is not a 

significant regulatory action under 

Executive Order 12866 or any successor 

order; would not have a significant 

adverse effect on the supply, 

distribution, or use of energy; and has 

not been designated by the 

Administrator of OIRA as a significant 

energy action. Therefore, it is not a 

significant energy action, and, 

accordingly, DOE has not prepared a 

Statement of Energy Effects. 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s final rule. 

List of Subjects 

10 CFR Part 429 

Confidential business information, 

Energy conservation, Household 

appliances, Imports, Incorporation by 

reference, Reporting and recordkeeping 

requirements. 

10 CFR Part 430 

Confidential business information, 

Energy conservation, Household 

appliances, Imports. 

10 CFR Part 431 

Confidential business information, 

Energy conservation, Reporting and 

recordkeeping requirements. 

Issued in Washington, DC, on February 7, 

2011. 

Cathy Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

Scott Blake Harris, 

General Counsel. 

For the reasons stated in the 

preamble, DOE amends chapter II, 

subchapter D, of title 10 of the Code of 

Federal Regulations, to read as set forth 

below: 

1. Add new part 429 to read as 

follows: 

PART 429—CERTIFICATION, 

COMPLIANCE, AND ENFORCEMENT 

FOR CONSUMER PRODUCTS AND 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

Subpart A—General Provisions 

Sec. 

429.1 Purpose and scope. 

429.2 Definitions. 

429.4 Materials incorporated by reference. 

429.5 Imported products. 

429.6 Exported products. 

429.7 Confidentiality. 

429.8 Subpoenas. 

Subpart B—Certification 

429.10 Purpose and scope. 

429.11 General requirements applicable to 

units to be tested. 

429.12 General requirements applicable to 

certification reports. 

429.13 Testing requirements. 

429.14 Residential refrigerators, 

refrigerator-freezers and freezers. 

429.15 Room air conditioners. 

429.16 Central air conditioners and heat 

pumps. 

429.17 Residential water heaters. 

429.18 Residential furnaces. 

429.19 Dishwashers. 

429.20 Residential clothes washers. 

429.21 Residential clothes dryers. 

429.22 Direct heating equipment. 

429.23 Conventional cooking tops, 

conventional ovens, microwave ovens. 

429.24 Pool heaters. 

429.25 Television sets. [Reserved] 

429.26 Fluorescent lamp ballasts. 

429.27 General service fluorescent lamps, 

general service incandescent lamps, and 

incandescent reflector lamps. 

429.28 Faucets. 

429.29 Showerheads. 

429.30 Water closets. 

429.31 Urinals. 

429.32 Ceiling fans. 

429.33 Ceiling fan light kits. 

429.34 Torchieres. 

429.35 Bare or covered medium base 

compact fluorescent lamps. 

429.36 Dehumidifiers. 

429.37 Class A external power supplies. 

429.38 Non-class A external power 

supplies. [Reserved] 

429.39 Battery chargers. 

429.40 Candelabra base incandescent lamps 

and intermediate base incandescent 

lamps. 

429.41 Electric motors. [Reserved] 

429.42 Commercial refrigerators, freezers, 

and refrigerator-freezers. 

429.43 Commercial heating, ventilating, airconditioning (HVAC) equipment. 

429.44 Commercial water heating (WH) 

equipment. 

429.45 Automatic commercial ice makers. 

429.46 Commercial clothes washers. 

429.47 Distribution transformers. 

429.48 Illuminated exit signs. 

429.49 Traffic signal modules and 

pedestrian modules. 

429.50 Commercial unit heaters. 

429.51 Commercial pre-rinse spray valves. 

429.52 Refrigerated bottled or canned 

beverage vending machines. 

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429.53 Walk-in coolers and Walk-in 

freezers. 

429.54 Metal halide lamp ballasts and 

fixtures. 

429.70 Alternative methods for determining 

efficiency or energy use. 

429.71 Maintenance of records. 

Appendix A to Subpart B of Part 429— 

Student’s t-Distribution Values for 

Certification Testing 

Subpart C—Enforcement 

429.100 Purpose and scope. 

429.102 Prohibited acts subjecting persons 

to enforcement action. 

429.104 Assessment testing. 

429.106 Investigation of compliance. 

429.110 Enforcement testing. 

429.114 Notice of noncompliance 

determination to cease distribution of a 

basic model. 

429.116 Additional certification testing 

requirements. 

429.118 Injunctions. 

429.120 Maximum civil penalty. 

429.122 Notice of proposed civil penalty. 

429.124 Election of procedures. 

429.126 Administrative law judge hearing 

and appeal. 

429.128 Immediate issuance of order 

assessing civil penalty. 

429.130 Collection of civil penalties. 

429.132 Compromise and settlement. 

Appendix A to Subpart C of Part 429— 

Sampling Plan for Enforcement Testing of 

Covered Products and Certain High-Volume 

Covered Equipment 

Appendix B to Subpart C of Part 429— 

Sampling Plan for Enforcement Testing of 

Covered Commercial Equipment and Certain 

Low-Volume Covered Products 

Appendix C to Subpart C of Part 429— 

Sampling Plan for Enforcement Testing of 

Distribution Transformers 

Authority: 42 U.S.C. 6291–6317. 

Subpart A—General Provisions 

§ 429.1 Purpose and scope. 

This part sets forth the procedures to 

be followed for certification, 

determination and enforcement of 

compliance of covered products and 

covered equipment with the applicable 

conservation standards set forth in parts 

430 and 431 of this subchapter. This 

part does not cover motors or electric 

motors as defined in § 431.12, and all 

references to ‘‘covered equipment’’ in 

this part exclude such motors. 

§ 429.2 Definitions. 

(a) The definitions found in §§ 430.2, 

431.2, 431.62, 431.72, 431.82, 431.92, 

431.102, 431.132, 431.152, 431.172, 

431.192, 431.202, 431.222, 431.242, 

431.262, 431.292, 431.302, 431.322, and 

431.442 apply for purposes of this part. 

(b) The following definitions apply for 

the purposes of this part. Any words or 

terms defined in this section or 

elsewhere in this part shall be defined 

as provided in sections 321 and 340 of 

the Energy Policy Conservation Act, as 

amended, hereinafter referred to as ‘‘the 

Act.’’ 

Energy conservation standard means 

any standards meeting the definitions of 

that term in 42 U.S.C. 6291(6) and 42 

U.S.C. 6311(18) as well as any other 

water conservation standards and 

design requirements found in this part 

or parts 430 or 431. 

Manufacturer’s model number means 

the identifier used by a manufacturer to 

uniquely identify the group of identical 

or essentially identical covered products 

or covered equipment to which a 

particular unit belongs. The 

manufacturer’s model number typically 

appears on the product nameplates, in 

product catalogs and in other product 

advertising literature. 

§ 429.4 Materials incorporated by 

reference. 

(a) General. We incorporate by 

reference the following standards into 

Part 429. The material listed has been 

approved for incorporation by reference 

by the Director of the Federal Register 

in accordance with 5 U.S.C. 552(a) and 

1 CFR part 51. Any subsequent 

amendment to a standard by the 

standard-setting organization will not 

affect the DOE regulations unless and 

until amended by DOE. Material is 

incorporated as it exists on the date of 

the approval and a notice of any change 

in the material will be published in the 

Federal Register. All approved material 

is available for inspection at the 

National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. Also, this material is 

available for inspection at U.S. 

Department of Energy, Office of Energy 

Efficiency and Renewable Energy, 

Building Technologies Program, 6th 

Floor, 950 L’Enfant Plaza, SW., 

Washington, DC 20024, (202) 586–2945, 

or go to: http://www1.eere.energy.gov/ 

buildings/appliance_standards/. 

Standards can be obtained from the 

sources below. 

(b) AHAM. Association of Home 

Appliance Manufacturers, 1111 19th 

Street, NW., Suite 402, Washington, DC 

20036, 202–872–5955, or go to http:// 

www.aham.org. 

(1) ANSI/AHAM DW–1–1992, 

American National Standard, 

Household Electric Dishwashers, 

approved February 6, 1992, IBR 

approved for § 429.19. 

(2) [Reserved] 

(c) ISO. International Organization for 

Standardization, ch. de la Voie-Creuse 

CP 56 CH–1211 Geneva 20 Switzerland, 

telephone +41 22 749 01 11, or go to 

http://www.iso.org/iso. 

(1) International Organization for 

Standardization (ISO)/International 

Electrotechnical Commission, (‘‘ISO/IEC 

17025:2005(E)’’), ‘‘General requirements 

for the competence of testing and 

calibration laboratories’’, Second 

edition, May 15, 2005, IBR approved for 

§ 429.110. 

(2) [Reserved] 

§ 429.5 Imported products. 

(a) Any person importing any covered 

product or covered equipment into the 

United States shall comply with the 

provisions of this part, and parts 430 

and 431, and is subject to the remedies 

of this part. 

(b) Any covered product or covered 

equipment offered for importation in 

violation of this part, or part 430 or 431, 

shall be refused admission into the 

customs territory of the United States 

under rules issued by the U.S. Customs 

and Border Protection (CBP) and subject 

to further remedies as provided by law, 

except that CBP may, by such rules, 

authorize the importation of such 

covered product or covered equipment 

upon such terms and conditions 

(including the furnishing of a bond) as 

may appear to CBP appropriate to 

ensure that such covered product or 

covered equipment will not violate this 

part, or part 430 or 431, or will be 

exported or abandoned to the United 

States. 

§ 429.6 Exported products. 

This part, and parts 430 and 431, shall 

not apply to any covered product or 

covered equipment if: 

(a) Such covered product or covered 

equipment is manufactured, sold, or 

held for sale for export from the United 

States or is imported for export; 

(b) Such covered product or covered 

equipment or any container in which it 

is enclosed, when distributed in 

commerce, bears a stamp or label stating 

‘‘NOT FOR SALE FOR USE IN THE 

UNITED STATES’’; and 

(c) Such product is, in fact, not 

distributed in commerce for use in the 

United States. 

§ 429.7 Confidentiality. 

(a) The following records are not 

exempt from public disclosure: The 

brand name, and applicable model 

number(s), and the energy or water 

rating submitted by manufacturers to 

DOE pursuant to § 429.19(b)(13). 

(b) Pursuant to the provisions of 10 

CFR 1004.11(e), any person submitting 

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information or data which the person 

believes to be confidential and exempt 

by law from public disclosure should— 

at the time of submission—submit: 

(1) One complete copy, and one copy 

from which the information believed to 

be confidential has been deleted. 

(2) A request for confidentiality 

containing the submitter’s views on the 

reasons for withholding the information 

from disclosure, including: 

(i) A description of the items sought 

to be withheld from public disclosure, 

(ii) Whether and why such items are 

customarily treated as confidential 

within the industry, 

(iii) Whether the information is 

generally known by or available from 

other sources, 

(iv) Whether the information has 

previously been made available to 

others without obligation concerning its 

confidentiality, 

(v) An explanation of the competitive 

injury to the submitting person which 

would result from public disclosure, 

(vi) A date upon which such 

information might lose its confidential 

nature due to the passage of time, and 

(vii) Why disclosure of the 

information would be contrary to the 

public interest. 

(c) In accordance with the procedures 

established in 10 CFR 1004.11(e), DOE 

shall make its own determination with 

regard to any claim that information 

submitted be exempt from public 

disclosure. 

§ 429.8 Subpoena. 

For purposes of carrying out parts 

429, 430, and 431, the General Counsel 

(or delegee), may sign and issue 

subpoenas for the attendance and 

testimony of witnesses and the 

production of relevant books, records, 

papers, and other documents, and 

administer oaths. Witnesses summoned 

under the provisions of this section 

shall be paid the same fees and mileage 

as are paid to witnesses in the courts of 

the United States. In case of contumacy 

by, or refusal to obey a subpoena served, 

upon any persons subject to parts 429, 

430, or 431, the General Counsel (or 

delegee) 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 is punishable by such court 

as contempt thereof. 

Subpart B—Certification 

§ 429.10 Purpose and scope. 

This subpart sets forth the procedures 

for manufacturers to certify that their 

covered products and covered 

equipment comply with the applicable 

energy conservation standards. 

§ 429.11 General sampling requirements 

for selecting units to be tested. 

(a) When testing of covered products 

or covered equipment is required to 

comply with section 323(c) of the Act, 

or to comply with rules prescribed 

under sections 324, 325, or 342, 344, 

345 or 346 of the Act, a sample 

comprised of production units (or units 

representative of production units) of 

the basic model being tested shall be 

selected at random and tested, and shall 

meet the criteria found in §§ 429.14 

through 429.54 of this subpart. 

Components of similar design may be 

substituted without additional testing if 

the substitution does not affect energy 

or water consumption. Any represented 

values of measures of energy efficiency, 

water efficiency, energy consumption, 

or water consumption for all individual 

models represented by a given basic 

model must be the same. 

(b) Unless otherwise specified, the 

minimum number of units tested shall 

be no less than two (except where a 

different minimum limit is specified in 

§§ 429.14 through 429.54 of this 

subpart); and 

§ 429.12 General requirements applicable 

to certification reports. 

(a) Certification. Each manufacturer, 

before distributing in commerce any 

basic model of a covered product or 

covered equipment subject to an 

applicable energy conservation standard 

set forth in parts 430 or 431, and 

annually thereafter on or before the 

dates provided in paragraph (e) of this 

section, shall submit a certification 

report to DOE certifying that each basic 

model meets the applicable energy 

conservation standard(s). The 

certification report(s) must be submitted 

to DOE in accordance with the 

submission procedures of paragraph (i) 

of this section. 

(b) Certification report. A certification 

report shall include a compliance 

statement (see paragraph (c) of this 

section), and for each basic model, the 

information listed in this paragraph (b): 

(1) Product or equipment type; 

(2) Product or equipment class (as 

denoted in the provisions of part 430 or 

431 containing the applicable energy 

conservation standard); 

(3) Manufacturer’s name and address; 

(4) Private labeler’s name(s) and 

address (if applicable); 

(5) Brand name, if applicable; 

(6) For each brand, the basic model 

number and the individual 

manufacturer’s model numbers covered 

by that basic model with the following 

exceptions: For external power supplies 

that certify based on design families, the 

design family model number and the 

individual manufacturer’s model 

numbers covered by that design family 

must be submitted for each brand. For 

walk-in coolers, the basic model number 

for each brand must be submitted. For 

distribution transformers, the basic 

model number or kVA grouping model 

number (depending on the certification 

method) for each brand must be 

submitted; 

(7) Whether the submission is for a 

new model, a discontinued model, a 

correction to a previously submitted 

model, data on a carryover model, or a 

model that has been found in violation 

of a voluntary industry certification 

program; 

(8) The test sample size (i.e., number 

of units tested for each basic model); 

(9) Certifying party’s U.S. Customs 

and Border Protection (CBP) importer 

identification numbers assigned by CBP 

pursuant to 19 CFR 24.5, if applicable; 

(10) Whether certification is based 

upon any waiver of test procedure 

requirements under § 430.27 or 

§ 431.401 and the date of such waivers; 

(11) Whether certification is based 

upon any exception relief from an 

applicable energy conservation standard 

and the date such relief was issued by 

DOE’s Office of Hearing and Appeals; 

(12) Whether certification is based 

upon the use of an alternate way of 

determining measures of energy 

conservation (e.g., an ARM or AEDM), 

or other method of testing, for 

determining measures of energy 

conservation and the approval date, if 

applicable, of any such alternate rating, 

testing, or efficiency determination 

method; and 

(13) Product specific information 

listed in §§ 429.14 through 429.54 of 

this part. 

(c) Compliance statement. The 

compliance statement required by 

paragraph (b) of this section shall 

include the date, the name of the 

company official signing the statement, 

and his or her signature, title, address, 

telephone number, and facsimile 

number and shall certify that: 

(1) The basic model(s) complies with 

the applicable energy conservation 

standard(s); 

(2) All required testing has been 

conducted in conformance with the 

applicable test requirements prescribed 

in parts 429, 430 and 431, as 

appropriate, or in accordance with the 

terms of an applicable test procedure 

waiver; 

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(3) All information reported in the 

certification report is true, accurate, and 

complete; and 

(4) The manufacturer is aware of the 

penalties associated with violations of 

the Act, the regulations thereunder, and 

18 U.S.C. 1001 which prohibits 

knowingly making false statements to 

the Federal Government. 

(d) Annual filing. All data required by 

paragraphs (a) through (c) shall be 

submitted to DOE annually, on or before 

the following dates: 

Product category 

Deadline 

for data 

submission 

Fluorescent lamp ballasts, Medium base compact fluorescent lamps, Incandescent reflector lamps, General service fluorescent 

lamps, General service incandescent lamps, Intermediate base incandescent lamps, Candelabra base incandescent lamps, 

Residential ceiling fans, Residential ceiling fan light kits, Residential showerheads, Residential faucets, Residential water closets, and Residential urinals.

Mar. 1. 

Residential water heater, Residential furnaces, Residential boilers, Residential pool heaters, Commercial water heaters, Commercial hot water supply boilers, Commercial unfired hot water storage tanks, Commercial packaged boilers, Commercial warm air 

furnaces, and Commercial unit heaters.

May 1 

Residential dishwashers, Commercial prerinse spray valves, Illuminated exit signs, Traffic signal modules, Pedestrian modules, 

and Distribution transformers.

June 1. 

Room air conditioners, Residential central air conditioners, Residential central heat pumps, Small duct high velocity system, 

Space constrained products, Commercial package air-conditioning and heating equipment, Packaged terminal air conditioners, 

Packaged terminal heat pumps, and Single package vertical units.

July 1. 

Residential refrigerators, Residential refrigerators-freezers, Residential freezers, Commercial refrigerator, freezer, and refrigeratorfreezer, Automatic commercial automatic ice makers, Refrigerated bottled or canned beverage vending machine, Walk-in coolers, and Walk-in freezers.Aug. 1. 

Torchieres, Residential dehumidifiers, Metal halide lamp fixtures, and External power supplies ........................................................ Sept. 1. 

Residential clothes washers, Residential clothes dryers, Residential direct heating equipment, Residential cooking products, and 

Commercial clothes washers.

Oct. 1. 

(e) New model filing. (1) In addition 

to the annual filing schedule in 

paragraph (d) of this section, any new 

basic models must be certified pursuant 

to paragraph (a) of this section before 

distribution in commerce. A 

modification to a model that increases 

the model’s energy or water 

consumption or decreases its efficiency 

resulting in re-rating must be certified as 

a new basic model pursuant to 

paragraph (a) of this section. 

(2) For general service fluorescent 

lamps or incandescent reflector lamps: 

Prior to or concurrent with the 

distribution of a new basic model each 

manufacturer shall submit an initial 

certification report listing the basic 

model number, lamp wattage, and date 

of first manufacture (i.e., production 

date) for that basic model. The 

certification report must also state how 

the manufacturer determined that the 

lamp meets or exceeds the energy 

conservation standards, including a 

description of any testing or analysis the 

manufacturer performed. Manufacturers 

of general service fluorescent lamps and 

incandescent reflector lamps shall 

submit the certification report required 

by paragraph (b) of this section within 

one year after the first date of new 

model manufacture. 

(3) For distribution transformers, the 

manufacturer shall submit all 

information required in paragraphs (b) 

and (c) of this section for the new basic 

model, unless the manufacturer has 

previously submitted to the Department 

a certification report for a basic model 

of distribution transformer that is in the 

same kVA grouping as the new basic 

model. 

(f) Discontinued model filing. When 

production of a basic model has ceased 

and it is no longer being sold or offered 

for sale by the manufacturer or private 

labeler, the manufacturer shall report 

this discontinued status to DOE as part 

of the next annual certification report 

following such cessation. For each basic 

model, the report shall include the 

information specified in paragraphs 

(b)(1) through (b)(7) of this section. 

(g) Third party submitters. A 

manufacturer may elect to use a third 

party to submit the certification report 

to DOE (for example, a trade association, 

independent test lab, or other 

authorized representative, including a 

private labeler acting as a third party 

submitter on behalf of a manufacturer); 

however, the manufacturer is 

responsible for submission of the 

certification report to DOE. DOE may 

refuse to accept certification reports 

from third party submitters who have 

failed to submit reports in accordance 

with the rules of this part. The third 

party submitter must complete the 

compliance statement as part of the 

certification report. Each manufacturer 

using a third party submitter must have 

an authorization form on file with DOE. 

The authorization form includes a 

compliance statement, specifies the 

third party authorized to submit 

certification reports on the 

manufacturer’s behalf and provides the 

contact information and signature of a 

company official. 

(h) Method of submission. Reports 

required by this section must be 

submitted to DOE electronically at 

http://www.regulations.doe.gov/ccms 

(CCMS). A manufacturer or third party 

submitter can find product-specific 

templates for each covered product or 

covered equipment with certification 

requirements online at https:// 

www.regulations.doe.gov/ccms/ 

templates.html. Manufacturers and third 

party submitters must submit a 

registration form, signed by an officer of 

the company, in order to obtain access 

to CCMS. 

§ 429.13 Testing requirements. 

(a) The determination that a basic 

model complies with an applicable 

energy conservation standard shall be 

determined from the values derived 

pursuant to the applicable testing and 

sampling requirements set forth in parts 

429, 430 and 431. The determination 

that a basic model complies with the 

applicable design standard shall be 

based upon the incorporation of specific 

design requirements in parts 430 and 

431 or as specified in section 325 and 

342 of the Act. 

(b) Where DOE has determined a 

particular entity is in noncompliance 

with an applicable standard or 

certification requirement, DOE may 

impose additional testing requirements 

as a remedial measure. 

§ 429.14 Residential refrigerators, 

refrigerator-freezers and freezers. 

(a) Sampling plan for selection of 

units for testing. 

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(1) The requirements of § 429.11 are 

applicable to residential refrigerators, 

refrigerator-freezers and freezers; and 

(2) For each basic model of residential 

refrigerators, refrigerator-freezers, and 

freezers, a sample of sufficient size shall 

be randomly selected and tested to 

ensure that— 

(i) Any represented value of estimated 

annual operating cost, energy 

consumption, or other measure of 

energy consumption of a basic model for 

which consumers would favor lower 

values shall be greater than or equal to 

the higher of: 

(A) The mean of the sample, where: 

or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

energy factor or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 

or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 

(b) Certification reports. 

(1) The requirements of § 429.12 are 

applicable to residential refrigerators, 

refrigerator-freezers and freezers; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The annual energy use in 

kilowatt hours per year (kWh/yr), total 

adjusted volume in cubic feet (cu ft), 

and measured height of the unit. 

(3) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following additional product-specific 


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information: whether the basic model 

has variable defrost control (in which 

case, manufacturers must also report the 

values, if any, of CTL and CTM (For an 

example, see section 5.2.1.3 in 

Appendix A to Subpart B of Part 430) 

used in the calculation of energy 

consumption), whether the basic model 

has variable anti-sweat heater control 

(in which case, manufacturers must also 

report the values of heater Watts at the 

ten humidity levels 5%, 15%, through 

95% used to calculate the variable antisweat heater ‘‘Correction Factor’’), and 

whether testing has been conducted 

with modifications to the standard 

temperature sensor locations specified 

by the figures referenced in section 5.1 

of Appendices A1, B1, A, and B to 

Subpart B of Part 430. 

§ 429.15 Room air conditioners. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to room air 

conditioners; and 

(2) For each basic model of room air 

conditioners, a sample of sufficient size 

shall be randomly selected and tested to 

ensure that— 

(i) Any represented value of estimated 

annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

or, (B) The upper 971⁄2; percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(ii) Any represented value of the 

energy efficiency ratio or other measure 

of energy consumption of a basic model 

for which consumers would favor 

higher values shall be less than or equal 

to the lower of: 

(A) The mean of the sample, where: 

or, (B) The lower 971⁄2; percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to room air conditioners; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The energy efficiency ratio 

(EER in British thermal units per Watthour (Btu/W-h)), cooling capacity in 

British thermal units per hour (Btu/h), 

and the electrical power input in watts 

(W). 

§ 429.16 Central air conditioners and heat 

pumps. 

(a) Sampling plan for selection of 

units for testing. (1) The general 

requirements of § 429.11 are applicable 

to central air conditioners and heat 

pumps; and 

(2)(i) For central air conditioners and 

heat pumps, each single-package system 

and each condensing unit (outdoor unit) 

of a split-system, when combined with 

a selected evaporator coil (indoor unit) 

or a set of selected indoor units, must 

have a sample of sufficient size tested in 

accordance with the applicable 

provisions of this subpart. The 

represented values for any model of a 

single-package system, any model of a 

tested split-system combination, any 

model of a tested mini-split system 

combination, or any model of a tested 

multi-split system combination must be 

assigned such that— 

(A) Any represented value of annual 

operating cost, energy consumption or 

other measure of energy consumption of 

the central air conditioner or heat pump 

for which consumers would favor lower 

values shall be greater than or equal to 

the higher of: 

(1) The mean of the sample, where: 

Or, (2) The upper 90 percent confidence 

limit (UCL) of the true mean divided by 

1.05, where: 

and 

(B) Any represented value of the 

energy efficiency or other measure of 

energy consumption of the central air 

conditioner or heat pump for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(1) The mean of the sample, where: 

Or, (2) The lower 90 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 


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(C) For heat pumps, all units of the 

sample population must be tested in 

both the cooling and heating modes and 

the results used for determining the heat 

pump’s certified Seasonal Energy 

Efficiency Ratio (SEER) and Heating 

Seasonal Performance Factor (HSPF) 

ratings in accordance with paragraph 

(a)(2)(i)(B) of this section. 

(ii) For split-system air conditioners 

and heat pumps, the condenserevaporator coil combination selected for 

tests pursuant to paragraph (a)(2)(i) of 

this section shall include the evaporator 

coil that is likely to have the largest 

volume of retail sales with the particular 

model of condensing unit. For minisplit condensing units that are designed 

to always be installed with more than 

one indoor unit, a ‘‘tested combination’’ 

as defined in 10 CFR 430.2 shall be used 

for tests pursuant to paragraph (a)(2)(i) 

of this section. For multi-split systems, 

each model of condensing unit shall be 

tested with two different sets of indoor 

units. For one set, a ‘‘tested 

combination’’ composed entirely of nonducted indoor units shall be used. For 

the second set, a ‘‘tested combination’’ 

composed entirely of ducted indoor 

units shall be used. However, for any 

split-system air conditioner having a 

single-speed compressor, the condenserevaporator coil combination selected for 

tests pursuant to paragraph (a)(2)(i) of 

this section shall include the indoor 

coil-only unit that is likely to have the 

largest volume of retail sales with the 

particular model of outdoor unit. This 

coil-only requirement does not apply to 

split-system air conditioners that are 

only sold and installed with blower-coil 

indoor units, specifically mini-splits, 

multi-splits, and through-the-wall units. 

This coil-only requirement does not 

apply to any split-system heat pumps. 

For every other split-system 

combination that includes the same 

model of condensing unit but a different 

model of evaporator coil and for every 

other mini-split and multi-split system 

that includes the same model of 

condensing unit but a different set of 

evaporator coils, whether the evaporator 

coil(s) is manufactured by the same 

manufacturer or by a component 

manufacturer, either— 

(A) A sample of sufficient size, 

comprised of production units or 

representing production units, must be 

tested as complete systems with the 

resulting ratings for the outdoor unitindoor unit(s) combination obtained in 

accordance with paragraphs (a)(2)(i)(A) 

and (a)(2)(i)(B) of this section; or 

(B) The representative values of the 

measures of energy efficiency must be 

assigned as follows: 

(1) Using an alternative rating method 

(ARM) that has been approved by DOE 

in accordance with the provisions of 

§ 429.70(e)(1) and (2); or 

(2) For multi-split systems composed 

entirely of non-ducted indoor units, set 

equal to the system tested in accordance 

with paragraph (a)(2)(i) of this section 

whose tested combination was entirely 

non-ducted indoor units; or 

(3) For multi-split systems composed 

entirely of ducted indoor units, set 

equal to the system tested in accordance 

with paragraph (a)(2)(i) of this section 

when the tested combination was 

entirely ducted indoor units; or 

(4) For multi-split systems having a 

mix of non-ducted and ducted indoor 

units, set equal to the mean of the 

values for the two systems—one having 

the tested combination of all non-ducted 

units and the second having the tested 

combination of all ducted indoor 

units—tested in accordance with 

paragraph (a)(2)(i) of this section. 

(iii) Whenever the representative 

values of the measures of energy 

consumption, as determined by the 

provisions of paragraph (a)(2)(ii)(B) of 

this section, do not agree within 5 

percent of the energy consumption as 

determined by actual testing, the values 

determined by actual testing must be 

used to comply with section 323(c) of 

the Act or to comply with rules under 

section 324 of the Act. 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to central air conditioners and heat 

pumps; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) Residential central air 

conditioners: The seasonal energy 

efficiency ratio (SEER in British thermal 

units per Watt-hour (Btu/W-h)), the 

cooling capacity in British thermal units 

per hour (Btu/h), and the manufacturer 

and individual manufacturer’s model 

numbers of the indoor and outdoor unit. 

For central air conditioners whose 

seasonal energy efficiency ratio is based 

on an installation that includes a 

particular model of ducted air mover 

(e.g., furnace, air handler, blower kit), 

the manufacturer’s model number of 

this ducted air mover must be included 

among the model numbers listed on the 

certification report. 

(ii) Residential central air 

conditioning heat pumps: The seasonal 

energy efficiency ratio (SEER in British 

thermal units per Watt-hour (Btu/W-h)), 

the cooling capacity in British thermal 

units per hour (Btu/h), the heating 

seasonal performance factor (HSPF in 

British thermal units per Watt-hour 

(Btu/W-h)), and the manufacturer and 

individual model numbers of the indoor 

and outdoor unit. For central air 

conditioning heat pumps whose 

seasonal energy efficiency ratio and 

heating seasonal performance factor are 

based on an installation that includes a 

particular model of ducted air mover 

(e.g., furnace, air handler, blower kit), 

the model number of this ducted air 

mover must be included among the 

model numbers listed on the 

certification report. 

(iii) Small duct, high velocity air 

conditioners: The seasonal energy 

efficiency ratio (SEER in British thermal 

units per Watt-hour (Btu/W-h)) and the 

cooling capacity in British thermal units 

per hour (Btu/h). 

(iv) Small duct, high velocity heat 

pumps: The seasonal energy efficiency 

ratio (SEER in British thermal units per 

Watt-hour (Btu/W-h)), the heating 

seasonal performance factor (HSPF in 

British thermal units per Watt-hour 

(Btu/W-h)), and the cooling capacity in 

British thermal units per hour (Btu/h). 

(iv) Space constrained air 

conditioners: The seasonal energy 


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efficiency ratio (SEER in British thermal 

units per Watt-hour (Btu/W-h)) and the 

cooling capacity in British thermal units 

per hour (Btu/h). 

(v) Space constrained heat pumps: 

The seasonal energy efficiency ratio 

(SEER in British thermal units per Watthour (Btu/W-h)), the coefficient of 

performance, and the cooling capacity 

in British thermal units per hour (Btu/ 

h). 

(c) Alternative methods for 

determining efficiency or energy use for 

central air conditioners and heat pumps 

can be found in § 429.70 of this subpart. 

§ 429.17 Residential water heaters. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to residential 

water heaters; and 

(2) For each basic model of residential 

water heaters, a sample of sufficient size 

shall be randomly selected and tested to 

ensure that— 

(i) Any represented value of estimated 

annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

energy factor or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to residential water heaters; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The energy factor (EF), 

rated storage volume in gallons (gal), 

first hour rating (maximum gallons per 

minute), and recovery efficiency 

(percent). 

§ 429.18 Residential furnaces. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to residential 

furnaces; and 

(2) (i) For each basic model of 

furnaces, other than basic models of 

those sectional cast-iron boilers (which 

may be aggregated into groups having 

identical intermediate sections and 

combustion chambers) a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(A) Any represented value of 

estimated annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(1) The mean of the sample, where: 

Or, (2) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(B) Any represented value of the 

annual fuel utilization efficiency or 

other measure of energy consumption of 

a basic model for which consumers 

would favor higher values shall be less 

than or equal to the lower of: 

(1) The mean of the sample, where: 

Or, (2) The lower 971⁄2 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 


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(ii) For the lowest capacity basic 

model of a group of basic models of 

those sectional cast-iron boilers having 

identical intermediate sections and 

combustion chambers, a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(A) Any represented value of 

estimated annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(1) The mean of the sample, where: 

Or, (2) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(B) Any represented value of the fuel 

utilization efficiency or other measure 

of energy consumption of a basic model 

for which consumers would favor 

higher values shall be less than or equal 

to the lower of: 

(1) The mean of the sample, where: 

Or, (2) The lower 971⁄2 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 

(iii) For the highest capacity basic 

model of a group of basic models of 

those sectional cast-iron boilers having 

identical intermediate sections and 

combustion chambers, a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(A) Any represented value of 

estimated annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(1) The mean of the sample, where: 


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Or, (2) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(B) Any represented value of the fuel 

utilization efficiency or other measure 

of energy consumption of a basic model 

for which consumers would favor 

higher values shall be less than or equal 

to the lower of: 

(1) The mean of the sample, where: 

Or, (2) The lower 971⁄2 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 

(iv) For each basic model or capacity 

other than the highest or lowest of the 

group of basic models of sectional castiron boilers having identical 

intermediate sections and combustion 

chambers, represented values of 

measures of energy consumption shall 

be determined by either— 

(A) A linear interpolation of data 

obtained for the smallest and largest 

capacity units of the family, or 

(B) Testing a sample of sufficient size 

to ensure that: 

(1) Any represented value of 

estimated annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(i) The mean of the sample, where: 


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Or, (ii) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(2) Any represented value of the 

energy factor or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(i) The mean of the sample, where: 

Or, (ii) The lower 971⁄2 percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 

(v) Whenever measures of energy 

consumption determined by linear 

interpolation do not agree with 

measures of energy consumption 

determined by actual testing, the values 

determined by testing must be used for 

certification. 

(vi) In calculating the measures of 

energy consumption for each unit 

tested, use the design heating 

requirement corresponding to the mean 


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of the capacities of the units of the 

sample. 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to residential furnaces; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) Residential furnaces and boilers: 

The annual fuel utilization efficiency 

(AFUE) in percent (%) and the input 

capacity in British thermal units per 

hour (Btu/h). 

(ii) For cast-iron sectional boilers: The 

type of ignition system for gas-fired 

steam and hot water boilers no later 

than September 1, 2012. 

(3) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following additional product-specific 

information: For cast-iron sectional 

boilers: a declaration of whether 

certification is based on linear 

interpolation or testing. For hot water 

boilers, a declaration that the 

manufacturer has incorporated the 

applicable design requirements no later 

than September 1, 2012. 

§ 429.19 Dishwashers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to dishwashers; 

and 

(2) For each basic model of 

dishwashers, a sample of sufficient size 

shall be randomly selected and tested to 

ensure that— 

(i) Any represented value of estimated 

annual operating cost, energy or water 

consumption or other measure of energy 

or water consumption of a basic model 

for which consumers would favor lower 

values shall be greater than or equal to 

the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(ii) Any represented value of the 

energy or water factor or other measure 

of energy or water consumption of a 

basic model for which consumers would 

favor higher values shall be less than or 

equal to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 971⁄2 percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to dishwashers; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The annual energy use in 

kilowatt hours per year (kWh/yr) and 

the water factor in gallons per cycle. 

(3) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following additional product-specific 

information: the capacity in number of 

place settings as specified in ANSI/ 

AHAM DW–1 (incorporated by 

reference, see § 429.4), presence of a soil 

sensor (if yes, the number of cycles 

required to reach calibration), and the 

water inlet temperature used for testing 

in degrees Fahrenheit (°F). 

§ 429.20 Residential clothes washers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to residential 

clothes washers; and 

(2) For each basic model of residential 

clothes washers, a sample of sufficient 

size shall be randomly selected and 

tested to ensure that— 

(i) Any represented value of the water 

factor, the estimated annual operating 

cost, the energy or water consumption, 

or other measure of energy or water 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(ii) Any represented value of the 

modified energy factor or other measure 

of energy or water consumption of a 

basic model for which consumers would 

favor higher values shall be less than or 

equal to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 971⁄2 percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to residential clothes washers; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The modified energy factor 

(MEF) in cubic feet per kilowatt hour 

per cycle (cu ft/kWh/cycle) and the 

capacity in cubic feet (cu ft). For 

standard-size residential clothes 

washers, a water factor (WF) in gallons 

per cycle per cubic feet (gal/cycle/cu ft). 

§ 429.21 Residential clothes dryers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to clothes dryers; 

and 

(2) For each basic model of clothes 

dryers a sample of sufficient size shall 

be randomly selected and tested to 

ensure that— 

(i) Any represented value of estimated 

annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(ii) Any represented value of the 

energy factor or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 

Or, (B) The lower 971⁄2 percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to clothes dryers; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The energy factor in 

pounds per kilowatt hours (lb/kWh), the 

capacity in cubic feet (cu ft), and the 

voltage in volts (V) (for electric dryers 

only). 

§ 429.22 Direct heating equipment. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to direct heating 

equipment; and 

(2) (i) For each basic model of direct 

heating equipment (not including 

furnaces) a sample of sufficient size 

shall be randomly selected and tested to 

ensure that— 

(A) Any represented value of 

estimated annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(1) The mean of the sample, where: 

Or, (2) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(B) Any represented value of the fuel 

utilization efficiency or other measure 

of energy consumption of a basic model 

for which consumers would favor 

higher values shall be less than or equal 

to the lower of: 

(1) The mean of the sample, where: 

Or, (2) The lower 971⁄2 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 


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(ii) In calculating the measures of 

energy consumption for each unit 

tested, use the design heating 

requirement corresponding to the mean 

of the capacities of the units of the 

sample. 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to direct heating equipment; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: Direct heating equipment, 

the annual fuel utilization efficiency 

(AFUE) in percent (%), the mean input 

capacity in British thermal units per 

hour (Btu/h), and the mean output 

capacity in British thermal units per 

hour (Btu/h). Note, vented hearth 

heaters as defined in § 430.2 must report 

no later than April 16, 2013. 

§ 429.23 Conventional cooking tops, 

conventional ovens, microwave ovens. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to conventional 

cooking tops, conventional ovens and 

microwave ovens; and 

(2) For each basic model of 

conventional cooking tops, conventional 

ovens and microwave ovens a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(i) Any represented value of estimated 

annual operating cost, energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(ii) Any represented value of the 

energy factor or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 


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Or, (B) The lower 971⁄2 percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to conventional cooking tops, 

conventional ovens and microwave 

ovens; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The type of pilot light and 

a declaration that the manufacturer has 

incorporated the applicable design 

requirements. 

§ 429.24 Pool heaters. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to pool heaters; 

and 

(2) For each basic model of pool 

heater a sample of sufficient size shall 

be randomly selected and tested to 

ensure that any represented value of the 

thermal efficiency or other measure of 

energy consumption of a basic model for 

which consumers would favor higher 

values shall be less than or equal to the 

lower of: 

(i) The mean of the sample, where: 

Or, (ii) The lower 971⁄2 percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to pool heaters; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The thermal efficiency in 

percent (%) and the input capacity in 

British thermal units per hour (Btu/h). 

§ 429.25 Television sets. [Reserved] 

§ 429.26 Fluorescent lamp ballasts. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to fluorescent 

lamp ballasts; and 

(2) For each basic model of 

fluorescent lamp ballasts, a sample of 

sufficient size, not less than four, shall 

be randomly selected and tested to 

ensure that— 

(i) Any represented value of estimated 

annual energy operating costs, energy 

consumption, or other measure of 

energy consumption of a basic model for 

which consumers would favor lower 

values shall be greater than or equal to 

the higher of: 

(A) The mean of the sample, where: 


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Or, (B) The upper 99 percent confidence 

limit (UCL) of the true mean divided by 

1.01, where: 

and 

(ii) Any represented value of the 

ballast efficacy factor or other measure 

of the energy consumption of a basic 

model for which consumers would favor 

a higher value shall be less than or equal 

to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 99 percent confidence 

limit (LCL) of the true mean divided by 

0.99, where 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to fluorescent lamp ballasts; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The ballast efficacy factor, 

the ballast power factor, the number of 

lamps operated by the ballast, and the 

type of lamps operated by the ballast. 

§ 429.27 General service fluorescent 

lamps, general service incandescent lamps, 

and incandescent reflector lamps. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to general 

service fluorescent lamps, general 

service incandescent lamps and 

incandescent reflector lamps; and 

(2)(i) For each basic model of general 

service fluorescent lamp, general service 

incandescent lamp, and incandescent 

reflector lamp, samples of production 

lamps shall be obtained from a 12- 

month period, tested, and the results 

averaged. A minimum sample of 21 

lamps shall be tested. The manufacturer 

shall randomly select a minimum of 

three lamps from each month of 

production for a minimum of 7 out of 

the 12-month period. In the instance 

where production occurs during fewer 

than 7 of such 12 months, the 

manufacturer shall randomly select 3 or 

more lamps from each month of 

production, where the number of lamps 


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selected for each month shall be 

distributed as evenly as practicable 

among the months of production to 

attain a minimum sample of 21 lamps. 

Any represented value of lamp efficacy 

of a basic model shall be based on the 

sample and shall be less than or equal 

to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

.97, where: 

(ii) For each basic model of general 

service fluorescent lamp, the color 

rendering index (CRI) shall be measured 

from the same lamps selected for the 

lumen output and watts input 

measurements in paragraph (a)(2)(i) of 

this section, i.e., the manufacturer shall 

measure all lamps for lumens, watts 

input, and CRI. The CRI shall be 

represented as the average of a 

minimum sample of 21 lamps and shall 

be less than or equal to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

.97, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to general service fluorescent lamps, 

general service incandescent lamps and 

incandescent reflector lamps; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) General service fluorescent lamps: 

the testing laboratory’s National 

Voluntary Laboratory Accreditation 

Program (NVLAP) identification number 

or other NVLAP-approved accreditation 

identification, production dates of the 

units tested, the 12-month average lamp 

efficacy in lumens per watt (lm/W), 


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lamp wattage (W), correlated color 

temperature in Kelvin (K), and the 12- 

month average Color Rendering Index 

(CRI). 

(ii) Incandescent reflector lamps: The 

laboratory’s NVLAP identification 

number or other NVLAP-approved 

accreditation identification, production 

dates of the units tested, the 12-month 

average lamp efficacy in lumens per 

watt (lm/W), and lamp wattage (W). 

(iii) General service incandescent 

lamps: On or after the effective dates 

specified in § 430.32, the testing 

laboratory’s National Voluntary 

Laboratory Accreditation Program 

(NVLAP) identification number or other 

NVLAP-approved accreditation 

identification, production dates of the 

units tested, the 12-month average 

maximum rate wattage in watts (W), the 

12-month average minimum rated 

lifetime (hours), and the 12-month 

average Color Rendering Index (CRI). 

(c) Test data. Manufacturers must 

include the production date codes and 

the accompanying decoding scheme 

corresponding to all of the units tested 

for a given basic model in the detailed 

test records maintained under § 429.71. 

§ 429.28 Faucets. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to faucets; and 

(2) For each basic model of faucet, a 

sample of sufficient size shall be 

randomly selected and tested to ensure 

that any represented value of water 

consumption of a basic model for which 

consumers favor lower values shall be 

no less than the higher of the higher of: 

(i) The mean of the sample, where: 

Or, (ii) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.05, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to faucets; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The maximum water use in 

gallons per minute (gpm) or, in the case 

of metering faucets, gallons per cycle 

(gal/cycle) for each faucet and the flow 

water pressure in pounds per square 

inch (psi). 

§ 429.29 Showerheads. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to showerheads; 

and 

(2) For each basic model of a 

showerhead, a sample of sufficient size 

shall be randomly selected and tested to 

ensure that any represented value of 

water consumption of a basic model for 

which consumers favor lower values 

shall be greater than or equal to the 

higher of: 

(i) The mean of the sample, where: 

Or, (ii) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.05, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to showerheads; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The maximum water use in 

gallons per minute (gpm) and the 

maximum flow water pressure in 

pounds per square inch (psi). 

(3) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following additional product-specific 

information: A declaration that the 

showerhead meets the requirements of 

ASME/ANSI A112.18.1M:1996. 

§ 429.30 Water closets. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to water closets; 

and 

(2) For each basic model of water 

closet, a sample of sufficient size shall 

be randomly selected and tested to 

ensure that any represented value of 

water consumption of a basic model for 

which consumers favor lower values 

shall be greater than or equal to the 

higher of: 

(i) The mean of the sample, where: 

Or, (ii) The upper 90 percent confidence 

limit (UCL) of the true mean divided by 

1.1, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to water closets; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The maximum water use in 

gallons per flush (gpf). 

§ 429.31 Urinals. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to urinals; and 

(2) For each basic model of urinal, a 

sample of sufficient size shall be 

randomly selected and tested to ensure 

that any represented value of water 

consumption of a basic model for which 

consumers favor lower values shall be 

greater than or equal to the higher of: 

(i) The mean of the sample, where: 


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Or, (ii) The upper 90 percent confidence 

limit (UCL) of the true mean divided by 

1.1, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to urinals; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The maximum water use in 

gallons per flush and for trough-type 

urinals, the maximum flow rate in 

gallons per minute (gpm) and the length 

of the trough in inches (in). 

§ 429.32 Ceiling fans. 

(a) Sampling plan for selection of 

units for testing. The requirements of 

§ 429.11 are applicable to ceiling fans. 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to ceiling fans; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The number of speeds 

within the ceiling fan controls and a 

declaration that the manufacturer has 

incorporated the applicable design 

requirements. 

§ 429.33 Ceiling fan light kits. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to ceiling fan 

light kits; and 

(2) For each basic model of ceiling fan 

light kit with sockets for medium screw 

base lamps or pin-based fluorescent 

lamps selected for testing, a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(i) Any value of estimated energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.1, where: 

and 

(ii) Any represented value of the 

efficacy or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 


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Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.9, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to ceiling fan light kits; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) Ceiling fan light kits with sockets 

for medium screw base lamps: the rated 

wattage in watts (W) and the system’s 

efficacy in lumens per watt (lm/W). 

(ii) Ceiling fan light kits with pinbased sockets for fluorescent lamps: the 

rated wattage in watts (W), the system’s 

efficacy in lumens per watt (lm/W), and 

the length of the lamp in inches (in). 

(iii) Ceiling fan light kits with any 

other socket type: the rated wattage in 

watts (W) and the number of individual 

sockets. 

(3) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following additional product-specific 

information: Ceiling fan light kits with 

any other socket type: a declaration that 

the basic model meets the applicable 

design requirement and the features that 

have been incorporated into the ceiling 

fan light kit to meet the applicable 

design requirement (e.g., circuit breaker, 

fuse, ballast). 

§ 429.34 Torchieres. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to torchieres; 

and 

(2) Reserved 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to torchieres; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following additional product-specific 

information: A declaration that the basic 

model meets the applicable design 

requirement and the features that have 

been incorporated into the torchiere to 

meet the applicable design requirement 

(e.g., circuit breaker, fuse, ballast). 

§ 429.35 Bare or covered (no reflector) 

medium base compact fluorescent lamps. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to bare or 

covered (no reflector) medium base 

compact fluorescent lamps; and 

(2) For each basic model of bare or 

covered (no reflector) medium base 

compact fluorescent lamp 

(i) No less than five units per basic 

model must be used when testing for the 

efficacy, 1,000-hour lumen 

maintenance, and the lumen 

maintenance. Each unit must be tested 

in the base-up position unless the 

product is labeled restricted by the 

manufacturer, in which case the unit 

should be tested in the manufacturer 

specified position. Any represented 

value of efficacy, 1,000-hour lumen 

maintenance, and lumen maintenance 

shall be based on a sample randomly 

selected and tested to ensure that the 

represented value is less than or equal 

to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 97.5 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 


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(ii) No less than 6 unique units (i.e., 

units that have not previously been 

tested) per basic model must be used 

when testing for the rapid cycle stress. 

Each unit can be tested in the base up 

or base down position as stated by the 

manufacturer. 

(iii) No less than 10 units per basic 

model must be used when testing for the 

average rated lamp life. Half the sample 

should be tested in the base up position 

and half of the sample should be tested 

in the base down position, unless 

specific use or position appears on the 

packaging of that particular unit. 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to bare of covered medium base 

compact fluorescent lamps; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The testing laboratory’s 

NVLAP identification number or other 

NVLAP-approved accreditation 

identification, production dates for the 

units tested, the minimum initial 

efficacy in lumens per watt (lm/W), the 

lumen maintenance at 1,000 hours in 

percent (%), the lumen maintenance at 

40 percent of rated life in percent (%), 

the rapid cycle stress test in number of 

units passed, and the lamp life in hours 

(h). 

(c) Test data. Manufacturers must 

include the production date codes and 

the accompanying decoding scheme 

corresponding to all of the units tested 

for a given basic model in the detailed 

test records maintained under § 429.71. 

§ 429.36 Dehumidifiers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to 

dehumidifiers; and 

(2) For each basic model of 

dehumidifier selected for testing, a 

sample of sufficient size shall be 

randomly selected and tested to ensure 

that— 

(i) Any represented value of energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

energy factor or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 


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Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to dehumidifiers; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The energy factor in liters 

per kilowatt hour (liters/kWh) and 

capacity in pints per day. 

§ 429.37 Class A external power supplies. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to external 

power supplies; and 

(2) For each basic model of external 

power supply selected for testing, a 

sample of sufficient size shall be 

randomly selected and tested to ensure 

that— 

(i) Any represented value of the 

estimated energy consumption of a basic 

model for which consumers would favor 

lower values shall be greater than or 

equal to the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 97.5 percent confidence 

limit (UCL) of the true mean divided by 

1.05, where: 

and (ii) Any represented value of the 

estimated energy consumption of a basic 

model for which consumers would favor 

higher values shall be less than or equal 

to the lower of: 

(A) The mean of the sample, where: 


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Or, (B) The lower 97.5 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to external power supplies except that 

required information may be reported 

on the basis of a basic model or a design 

family. If certifying using a design 

family, for § 429.12(b)(6), report the 

individual manufacturer’s model 

numbers covered by the design family. 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) External power supplies: The 

average active mode efficiency as a 

percent (%), no-load mode power 

consumption in watts (W), nameplate 

output power in watts (W), and, if 

missing from the nameplate, the output 

current in amperes (A) of the basic 

model or the output current in amperes 

(A) of the highest- and lowest-voltage 

models within the external power 

supply design family. 

(ii) Switch-selectable single-voltage 

external power supplies: The average 

active mode efficiency as a percent (%), 

no-load mode power consumption in 

watts (W) at the lowest and highest 

selectable output voltage, nameplate 

output power in watts (W), and, if 

missing from the nameplate, the output 

current in amperes (A). 

§ 429.38 Non-class A external power 

supplies. [Reserved] 

§ 429.39 Battery chargers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to battery 

chargers; and 

(2) For each basic model of battery 

charger selected for testing, a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(i) Any represented value of the 

estimated non-active energy ratio or 

other measure of energy consumption of 

a basic model for which consumers 

would favor lower values shall be 

greater than or equal to the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 97.5 percent confidence 

limit (UCL) of the true mean divided by 

1.05, where: 


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and 

(ii) Any represented value of the 

estimated non-active energy ratio or 

other measure of energy consumption of 

a basic model for which consumers 

would favor higher values shall be less 

than or equal to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 97.5 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 

(b) Certification reports. [Reserved] 

§ 429.40 Candelabra base incandescent 

lamps and intermediate base incandescent 

lamps. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to candelabra 

base incandescent lamps; and 

(2) For each basic model of candelabra 

base incandescent lamp and 

intermediate base incandescent lamp, a 

minimum sample of 21 lamps shall be 

randomly selected and tested. Any 

represented value of lamp wattage of a 

basic model shall be based on the 

sample and shall be less than or equal 

to the lower of: 

(i) The mean of the sample, where: 

Or, (ii) The lower 97.5 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to candelabra base and intermediate 

base incandescent lamps; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) Candelabra base incandescent 

lamp: The rated wattage in watts (W). 

(ii) Intermediate base incandescent 

lamp: The rated wattage in watts (W). 

§ 429.41 Electric motors. [Reserved] 

§ 429.42 Commercial refrigerators, 

freezers, and refrigerator-freezers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to commercial 

refrigerators, freezers, and refrigeratorfreezers; and 

(2) For each basic model of 

commercial refrigerator, freezer, or 

refrigerator-freezer selected for testing, a 

sample of sufficient size shall be 

randomly selected and tested to ensure 

that— 

(i) Any value of estimated maximum 

daily energy consumption or other 

measure of energy consumption of a 

basic model for which consumers would 

favor lower values shall be greater than 

or equal to the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

energy efficiency or other measure of 

energy consumption of a basic model for 

which consumers would favor higher 

values shall be less than or equal to the 

lower of: 

(A) The mean of the sample, where: 


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Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to commercial refrigerators, freezers, 

and refrigerator-freezers; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) Self-contained commercial 

refrigerators with solid doors, 

commercial refrigerators with 

transparent doors, commercial freezers 

with solid doors, and commercial 

freezers with transparent doors: the 

maximum daily energy consumption in 

kilowatt hours per day (kWh/day) and 

the chilled or frozen compartment 

volume in cubic feet (ft3). 

(ii) Self-contained commercial 

refrigerator-freezers with solids doors: 

the maximum average daily energy 

consumption in kilowatt hours per day 

(kWh/day) and the adjusted volume in 

cubic feet (ft3). 

(iii) Remote condensing commercial 

refrigerators, freezers, and refrigeratorfreezers, self-contained commercial 

refrigerators, freezers, and refrigeratorfreezers without doors, commercial icecream freezers, and commercial 

refrigeration equipment with two or 

more compartments (i.e., hybrid 

refrigerators, hybrid freezers, hybrid 

refrigerator-freezers, and non-hybrid 

refrigerator-freezers): On or after January 

1, 2012, the maximum daily energy 

consumption in kilowatt hours per day 

(kWh/day), the total display area (TDA) 

in feet squared (ft2) or the chilled 

volume in cubic feet (ft3) as necessary to 

demonstrate compliance with the 

standards set forth in § 431.66, the 

rating temperature in degrees 

Fahrenheit (°F), the operating 

temperature range in degrees Fahrenheit 

(e.g., ≥32°F, <32°F, and ≤¥5°F), the 

equipment family designation as 

described in § 431.66, and the 

condensing unit configuration. 

§ 429.43 Commercial heating, ventilating, 

air conditioning (HVAC) equipment. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to commercial 

HVAC equipment; and 

(2) For each basic model of 

commercial heating, ventilating, air 

conditioning (HVAC) equipment, 

efficiency must be determined either by 

testing, in accordance with applicable 

test procedures in §§ 431.76, 431.86, 

431.96, or 431.106 and the provisions of 

this section, or by application of an 

alternative efficiency determination 

method (AEDM) that meets the 

requirements of § 429.48 and the 

provisions of this section. For each basic 

model of commercial HVAC equipment, 

a sample of sufficient size shall be 

selected and tested to ensure that— 

(i) Any represented value of energy 

consumption or other measure of energy 

usage of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.05, where: 


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and 

(ii) Any represented value of energy 

efficiency or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to commercial HVAC equipment; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) Commercial warm air furnaces: 

The thermal efficiency in percent (%) 

and the maximum rated input capacity 

in British thermal units per hour (Btu/ 

h). 

(ii) Commercial packaged boilers: The 

combustion efficiency in percent (%) 

and the maximum rated input capacity 

in British thermal unit per hour (Btu/h) 

for equipment manufactured before 

March 2, 2012. For equipment 

manufactured on or after March 2, 2012, 

either the combustion efficiency in 

percent (%), or the thermal efficiency in 

percent (%) as required in § 431.87 and 

the maximum rated input capacity in 

British thermal units per hour (Btu/h). 

(iii) Commercial package airconditioning and heating equipment 

(except small commercial package air 

conditioning and heating equipment 

that is air-cooled with a cooling capacity 

less than 65,000 Btu/h): the energy 

efficiency ratio (EER in British thermal 

units per Watt-hour (Btu/Wh)), the 

coefficient of performance (COP) as 

necessary to meet the standards set forth 

in § 431.97, the cooling capacity in 

British thermal unit per hour (Btu/h), 

and the type of heating used by the unit. 

(iv) Small commercial package air 

conditioning and heating equipment 

that is air-cooled with a cooling capacity 

less than 65,000 Btu/h: The seasonal 

energy efficiency ratio (SEER in British 

thermal units per Watt-hour (Btu/Wh)), 

the heating seasonal performance factor 

(HSPF in British thermal units per Watthour(Btu/Wh)) as necessary to meet the 

standards set forth in § 431.97, and the 

cooling capacity in British thermal units 

per hour (Btu/h). 

(v) Package terminal air conditioners: 

The energy efficiency ratio (EER in 

British thermal units per Watt-hour 

(Btu/Wh)), the cooling capacity in 

British thermal units per hour (Btu/h), 

and the wall sleeve dimensions in 

inches (in). 

(vi) Package terminal heat pumps: The 

energy efficiency ratio (EER in British 

thermal units per Watt-hour (Btu/W-h)), 

the coefficient of performance (COP), 

the cooling capacity in British thermal 

units per hour (Btu/h), and the wall 

sleeve dimensions in inches (in). 

(vii) Single package vertical air 

conditioner: The energy efficiency ratio 

(EER in British thermal units per Watthour (Btu/Wh)) and the cooling capacity 

in British thermal units per hour (Btu/ 

h). 

(viii) Single package vertical heat 

pumps: The energy efficiency ratio (EER 

in British thermal units per Watt-hour 


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(Btu/Wh)), the coefficient of 

performance (COP), and the cooling 

capacity in British thermal units per 

hour (Btu/h). 

(c) Alternative methods for 

determining efficiency or energy use for 

commercial HVAC equipment can be 

found in § 429.70 of this subpart. 

§ 429.44 Commercial water heating 

equipment. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to commercial 

WH equipment; and 

(2) For each basic model of 

commercial water heating (WH) 

equipment, efficiency must be 

determined either by testing, in 

accordance with applicable test 

procedures in §§ 431.76, 431.86, 431.96, 

or 431.106 and the provisions of this 

section, or by application of an 

alternative efficiency determination 

method (AEDM) that meets the 

requirements of § 429.48 and the 

provisions of this section. For each basic 

model of commercial WH equipment, a 

sample of sufficient size shall be 

selected and tested to ensure that— 

(i) Any represented value of 

maximum standby loss or other measure 

of energy usage of a basic model for 

which consumers would favor lower 

values shall be greater than or equal to 

the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.05, where: 

and 

(ii) Any represented value of 

minimum thermal efficiency or other 

measure of energy consumption of a 

basic model for which consumers would 

favor higher values shall be less than or 

equal to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.95, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to commercial WH equipment; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: 

(i) Commercial electric storage water 

heaters: The maximum standby loss in 

percent per hour (%/hr), and the 

measured storage volume in gallons 

(gal). 

(ii) Commercial gas-fired and oil-fired 

storage water heaters: The minimum 

thermal efficiency in percent (%), the 

maximum standby loss in British 

thermal units per hour (Btu/h), the rated 

storage volume in gallons (gal), the 

measured storage volume in gallons 

(gal) and the nameplate input rate in 

British thermal units per hour (Btu/h). 

(iii) Commercial gas-fired and oilfired instantaneous water heaters greater 

than or equal to 10 gallons and gas-fired 

and oil-fired hot water supply boilers 

greater than or equal to 10 gallons: the 

minimum thermal efficiency in percent 

(%), the maximum standby loss in 

British thermal units per hour (Btu/h), 

the rated storage volume in gallons (gal), 

and the nameplate input rate in Btu/h. 

(iv) Commercial gas-fired and oil-fired 

instantaneous water heaters less than 10 

gallons and gas-fired and oil-fired hot 

water supply boilers less than 10 

gallons: the minimum thermal 

efficiency in percent (%) and the storage 

volume in gallons (g). 

(v) Commercial unfired hot water 

storage tanks: The minimum thermal 

insulation (i.e., R-value) and the 

measured storage volume in gallons 

(gal). 

(c) Alternative methods for 

determining efficiency or energy use for 

commercial WH equipment can be 

found in § 429.70 of this subpart. 

§ 429.45 Automatic commercial ice 

makers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to automatic 

commercial ice makers; and 

(2) For each basic model of automatic 

commercial ice maker selected for 

testing, a sample of sufficient size shall 

be randomly selected and tested to 

ensure that— 

(i) Any represented value of 

maximum energy use or other measure 

of energy consumption of a basic model 

for which consumers would favor lower 

values shall be greater than or equal to 

the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

energy efficiency or other measure of 

energy consumption of a basic model for 

which consumers would favor higher 

values shall be less than or equal to the 

lower of: 

(A) The mean of the sample, where: 


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Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to automatic commercial ice makers; 

and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The maximum energy use 

in kilowatt hours per 100 pounds of ice 

(kWh/100 lbs ice), the maximum 

condenser water use in gallons per 100 

pounds of ice (gal/100 lbs ice), the 

harvest rate in pounds of ice per 24 

hours (lbs ice/24 hours), the type of 

cooling, and the equipment type. 

§ 429.46 Commercial clothes washers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to commercial 

clothes washers; and 

(2) For each basic model of 

commercial clothes washers, a sample 

of sufficient size shall be randomly 

selected and tested to ensure that— 

(i) Any represented value of energy or 

water consumption or other measure of 

energy or water consumption of a basic 

model for which consumers would favor 

lower values shall be greater than or 

equal to the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 971⁄2 percent 

confidence limit (UCL) of the true mean 

divided by 1.05, where: 

and 

(ii) Any represented value of the 

modified energy factor, water factor, or 

other measure of energy or water 

consumption of a basic model for which 

consumers would favor higher values 

shall be less than or equal to the lower 

of: 

(A) The mean of the sample, where: 


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Or, (B) The lower 971⁄2; percent 

confidence limit (LCL) of the true mean 

divided by 0.95, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to commercial clothes washers; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The modified energy factor 

(MEF) in cubic feet per kilowatt hour 

per cycle (cu ft/kWh/cycle) and the 

water factor in gallons per cubic feet per 

cycle (gal/cu ft/cycle) for units 

manufactured on or after January 8, 

2013. 

§ 429.47 Distribution transformers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to distribution 

transformers; and 

(2) For each basic model of 

distribution transformer, efficiency must 

be determined either by testing, in 

accordance with § 431.193 and the 

provisions of this section, or by 

application of an AEDM that meets the 

requirements of § 429.70 and the 

provisions of this section. 

(i) For each basic model selected for 

testing: 

(A) If the manufacturer produces five 

or fewer units of a basic model over 6 

months, each unit must be tested. A 

manufacturer may not use a basic model 

with a sample size of fewer than five 

units to substantiate an AEDM pursuant 

to § 429.70. 

(B) If the manufacturer produces more 

than five units over 6 months, a sample 

of at least five units must be selected 

and tested. 

(ii) Any represented value of 

efficiency of a basic model must satisfy 

the condition: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to distribution transformers except that 

required information in paragraph (b) of 

this section may be reported by kVA 

grouping instead of by basic model and 

paragraph (b)(6) of this section does not 

apply; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: For the most and least 

efficient basic models within each ‘‘kVA 

grouping’’ for which part 431 prescribes 

an efficiency standard, the kVA rating, 

the insulation type (i.e., low-voltage 

dry-type, medium-voltage dry-type or 

liquid-immersed), the number of phases 

(i.e., single-phase or three-phase), and 

the basic impulse insulation level (BIL) 

group rating (for medium-voltage drytypes). 

(c) Alternative methods for 

determining efficiency or energy use for 

distribution transformers can be found 

in § 429.70 of this subpart. 

(d) Kilovolt ampere (kVA) grouping. 

As used in this section, a ‘‘kVA 

grouping’’ is a group of basic models 

which all have the same kVA rating, 

have the same insulation type (i.e., lowvoltage dry-type, medium-voltage drytype or liquid-immersed), have the same 

number of phases (i.e., single-phase or 

three-phase), and, for medium-voltage 

dry-types, have the same BIL group 

rating (i.e., 20–45 kV BIL, 46–95 kV BIL 

or greater than or equal to96 kV BIL). 

§ 429.48 Illuminated exit signs. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to illuminated 

exit signs; and 

(2) For each basic model of 

illuminated exit sign selected for 

testing, a sample of sufficient size shall 

be randomly selected and tested to 

ensure that— 

(i) Any represented value of input 

power demand or other measure of 

energy consumption of a basic model for 

which consumers would favor lower 


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values shall be greater than or equal to 

the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where 

and 

(ii) Any represented value of the 

energy efficiency or other measure of 

energy consumption of a basic model for 

which consumers would favor higher 

values shall be less than or equal to the 

lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to illuminated exit signs; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The input power demand 

in watts (W) and the number of faces. 

§ 429.49 Traffic signal modules and 

pedestrian modules. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to traffic signal 

modules and pedestrian modules; and 


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(2) For each basic model of traffic 

signal module or pedestrian module 

selected for testing, a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(i) Any represented value of estimated 

maximum and nominal wattage or other 

measure of energy consumption of a 

basic model for which consumers would 

favor lower values shall be greater than 

or equal to the higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

energy efficiency or other measure of 

energy consumption of a basic model for 

which consumers would favor higher 

values shall be less than or equal to the 

lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to traffic signal modules and pedestrian 

modules; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The maximum wattage at 

74 degrees Celsius (°C) in watts (W), the 

nominal wattage at 25 degrees Celsius 

(°C) in watts (W), and the signal type. 

§ 429.50 Commercial unit heaters. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to commercial 

unit heaters; and 

(2) [Reserved] 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to commercial unit heaters; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The type of ignition system 

and a declaration that the manufacturer 

has incorporated the applicable design 

requirements. 

§ 429.51 Commercial pre-rinse spray 

valves. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to commercial 

pre-rinse spray valves; and 

(2) For each basic model of 

commercial pre-rinse spray valves 

selected for testing, a sample of 

sufficient size shall be randomly 

selected and tested to ensure that— 

(i) Any represented value of water 

consumption or other measure of water 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

water efficiency or other measure of 

water consumption of a basic model for 

which consumers would favor higher 

values shall be less than or equal to the 

lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to commercial pre-rinse spray valves; 

and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The flow rate in gallons per 

minute (gpm). 

§ 429.52 Refrigerated bottled or canned 

beverage vending machines. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to refrigerated 

bottled or canned beverage vending 

machine; and 

(2) For each basic model of 

refrigerated bottled or canned beverage 

vending machine selected for testing, a 

sample of sufficient size shall be 

randomly selected and tested to ensure 

that— 

(i) Any represented value of energy 

consumption or other measure of energy 

consumption of a basic model for which 

consumers would favor lower values 

shall be greater than or equal to the 

higher of: 

(A) The mean of the sample, where: 

Or, (B) The upper 95 percent confidence 

limit (UCL) of the true mean divided by 

1.10, where: 

and 

(ii) Any represented value of the 

energy efficiency or other measure of 

energy consumption of a basic model for 

which consumers would favor higher 

values shall be less than or equal to the 

lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 95 percent confidence 

limit (LCL) of the true mean divided by 

0.90, where: 


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(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to refrigerated bottled or canned 

beverage vending machine; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: For units manufactured on 

or after August 31, 2012, the maximum 

average daily energy consumption in 

kilowatt hours per day (kWh/day), the 

refrigerated volume (V) in cubic feet (ft3) 

used to demonstrate compliance with 

standards set forth in § 431.296, the 

ambient temperature in degrees 

Fahrenheit (°F), and the ambient relative 

humidity in percent (%) during the test. 

§ 429.53 Walk-in coolers and walk-in 

freezers. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to walk-in 

coolers and freezers; and 

(2) [Reserved] 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to walk-in coolers and freezers, except 

that paragraph (b)(6) of this section does 

not apply; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The door type, the R-value 

of the wall, ceiling and door insulation 

(except for glazed portions of the doors 

or structural members), the R-value of 

the floor insulation (for freezers only), 

the evaporator fan motor type, the 

efficacy of the lighting including ballast 

losses, and a declaration that the 

manufacturer has incorporated the 

applicable design requirements. In 

addition, for those walk-in coolers and 

freezers with transparent reach-in doors 

and windows: the glass type of the 

doors and windows (e.g., double-pane 

with heat reflective treatment, triplepane glass with gas fill), and the power 

draw of the antisweat heater in watts. 

§ 429.54 Metal halide lamp ballasts and 

fixtures. 

(a) Sampling plan for selection of 

units for testing. (1) The requirements of 

§ 429.11 are applicable to metal halide 

lamp ballasts; and 

(2) For each basic model of metal 

halide lamp ballast selected for testing, 

a sample of sufficient size, not less than 

four, shall be selected at random and 

tested to ensure that: 

(i) Any represented value of estimated 

energy efficiency calculated as the 

measured output power to the lamp 

divided by the measured input power to 

the ballast (Pout/Pin), of a basic model is 

less than or equal to the lower of: 

(A) The mean of the sample, where: 

Or, (B) The lower 99-percent confidence 

limit (LCL) of the true mean divided by 

0.99. 

(b) Certification reports. (1) The 

requirements of § 429.12 are applicable 

to metal halide lamp ballasts; and 

(2) Pursuant to § 429.12(b)(13), a 

certification report shall include the 

following public product-specific 

information: The minimum ballast 

efficiency in percent (%), the lamp 

wattage in watts (W), and the type of 

ballast (e.g., pulse-start, magnetic probestart, and non-pulse start electronic). 

§ 429.70 Alternative methods for 

determining energy efficiency or energy 

use. 

(a) General. A manufacturer of 

commercial HVAC and WH equipment, 

distribution transformers, and central 

air conditioners and heat pumps may 

not distribute any basic model of such 

equipment in commerce unless the 

manufacturer has determined the energy 

efficiency of the basic model, either 

from testing the basic model or from 

applying an alternative method for 

determining energy efficiency or energy 

use (AEDM) to the basic model, in 

accordance with the requirements of 

this section. In instances where a 

manufacturer has tested a basic model 

to validate the alternative method, the 

energy efficiency of that basic model 

must be determined and rated according 

to results from actual testing. In 

addition, a manufacturer may not 

knowingly use an AEDM to overrate the 

efficiency of a basic model. For each 

basic model of distribution transformer 

that has a configuration of windings that 

allows for more than one nominal rated 

voltage, the manufacturer must 

determine the basic model’s efficiency 

either at the voltage at which the highest 

losses occur or at each voltage at which 

the transformer is rated to operate. 

(b) Testing. Testing for each covered 

product or covered equipment must be 

done in accordance with the sampling 

plan provisions established in §§ 429.14 

through 429.54 and the testing 

procedures in parts 430 and 431. 

(c) Alternative efficiency 

determination method (AEDM) for 

commercial HVAC and WH 


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1When identifying these five basic models, any 

basic model that does not comply with Federal 

energy conservation standards for distribution 

transformers that may be in effect shall be excluded 

from consideration. 

equipment—(1) Criteria an AEDM must 

satisfy. A manufacturer may not apply 

an AEDM to a basic model to determine 

its efficiency pursuant to this section 

unless: 

(i) The AEDM is derived from a 

mathematical model that represents the 

energy consumption characteristics of 

the basic model; 

(ii) The AEDM is based on 

engineering or statistical analysis, 

computer simulation or modeling, or 

other analytic evaluation of performance 

data; and 

(iii) The manufacturer has 

substantiated the AEDM, in accordance 

with paragraph (c)(2) of this section. 

(2) Substantiation of an AEDM. Before 

using an AEDM, the manufacturer must 

substantiate and validate the AEDM as 

follows: 

(i) A manufacturer must first apply 

the AEDM to three or more basic models 

that have been tested in accordance 

with §§ 431.173(b) and 431.175(a). The 

predicted efficiency calculated for each 

such basic model from application of 

the AEDM must be within five percent 

of the efficiency determined from 

testing that basic model, and the 

predicted efficiencies calculated for the 

tested basic models must, on average, be 

within one percent of the efficiencies 

determined from testing such basic 

models; and 

(ii) Using the AEDM, the 

manufacturer must calculate the 

efficiency of three or more of its basic 

models. They must be the 

manufacturer’s highest-selling basic 

models to which the AEDM could apply 

and different models than those used to 

develop the AEDM (i.e., different 

models than those used in paragraph 

(c)(2)(i) of this section); and 

(iii) The manufacturer must test each 

of these basic models in accordance 

with § 431.173(b), and either 

§ 431.174(b) or 431.175(a), whichever is 

applicable; and 

(iv) The predicted efficiency 

calculated for each such basic model 

from application of the AEDM must be 

within five percent of the efficiency 

determined from testing that basic 

model, and the average of the predicted 

efficiencies calculated for the tested 

basic models must be within one 

percent of the average of the efficiencies 

determined from testing these basic 

models. 

(3) Subsequent verification of an 

AEDM. If a manufacturer has used an 

AEDM pursuant to this section, 

(i) The manufacturer must have 

available for inspection by the 

Department records showing: 

(A) The method or methods used; 

(B) The mathematical model, the 

engineering or statistical analysis, 

computer simulation or modeling, and 

other analytic evaluation of performance 

data on which the AEDM is based; 

(C) Complete test data, product 

information, and related information 

that the manufacturer generated or 

acquired under paragraph (c)(1) through 

(2) of this section; and 

(D) The calculations used to 

determine the average efficiency and 

energy consumption of each basic 

model to which an AEDM was applied. 

(ii) If requested by the Department, 

the manufacturer must perform at least 

one of the following: 

(A) Conduct simulations to predict 

the performance of particular basic 

models of the commercial HVAC and 

WH product; 

(B) Provide analyses of previous 

simulations conducted by the 

manufacturer; 

(C) Conduct sample testing of basic 

models selected by the Department; or 

(D) Conduct a combination of these. 

(d) Alternative efficiency 

determination method for distribution 

transformers—A manufacturer may use 

an AEDM to determine the efficiency of 

one or more of its untested basic models 

only if it determines the efficiency of at 

least five of its other basic models 

(selected in accordance with paragraph 

(d)(3) of this section) through actual 

testing. 

(1) Criteria an AEDM must satisfy. 

(i) The AEDM has been derived from 

a mathematical model that represents 

the electrical characteristics of that basic 

model; 

(ii) The AEDM is based on 

engineering and statistical analysis, 

computer simulation or modeling, or 

other analytic evaluation of performance 

data; and 

(iii) The manufacturer has 

substantiated the AEDM, in accordance 

with paragraph (d)(2) of this section, by 

applying it to, and testing, at least five 

other basic models of the same type, i.e., 

low-voltage dry-type distribution 

transformers, medium-voltage dry-type 

distribution transformers, or liquidimmersed distribution transformers. 

(2) Substantiation of an AEDM. Before 

using an AEDM, the manufacturer must 

substantiate the AEDM’s accuracy and 

reliability as follows: 

(i) Apply the AEDM to at least five of 

the manufacturer’s basic models that 

have been selected for testing in 

accordance with paragraph (d)(3) of this 

section, and calculate the power loss for 

each of these basic models; 

(ii) Test at least five units of each of 

these basic models in accordance with 

the applicable test procedure and 

§ 429.42, and determine the power loss 

for each of these basic models; 

(iii) The predicted total power loss for 

each of these basic models, calculated 

by applying the AEDM pursuant to 

paragraph (c)(2)(i) of this section, must 

be within plus or minus five percent of 

the mean total power loss determined 

from the testing of that basic model 

pursuant to paragraph (c)(2)(ii) of this 

section; and 

(iv) Calculate for each of these basic 

models the percentage that its power 

loss calculated pursuant to paragraph 

(c)(2)(i) of this section is of its power 

loss determined from testing pursuant to 

paragraph (c)(2)(ii) of this section, 

compute the average of these 

percentages, and that calculated average 

power loss, expressed as a percentage of 

the average power loss determined from 

testing, must be no less than 97 percent 

and no greater than 103 percent. 

(3) Additional testing requirements. (i) 

A manufacturer must select basic 

models for testing in accordance with 

the following criteria: 

(A) Two of the basic models must be 

among the five basic models with the 

highest unit volumes of production by 

the manufacturer in the prior year, or 

during the prior 12-calendar-month 

period beginning in 2003,1 whichever is 

later; 

(B) No two basic models should have 

the same combination of power and 

voltage ratings; and 

(C) At least one basic model should be 

single-phase and at least one should be 

three-phase. 

(ii) In any instance where it is 

impossible for a manufacturer to select 

basic models for testing in accordance 

with all of these criteria, the criteria 

shall be given priority in the order in 

which they are listed. Within the limits 

imposed by the criteria, basic models 

shall be selected randomly. 

(4) Subsequent verification of an 

AEDM. (i) Each manufacturer that has 

used an AEDM under this section shall 

have available for inspection by the 

Department of Energy records showing: 

(A) The method or methods used; 

(B) The mathematical model, the 

engineering or statistical analysis, 

computer simulation or modeling, and 

other analytic evaluation of performance 

data on which the AEDM is based; 

(C) Complete test data, product 

information, and related information 

that the manufacturer has generated or 

acquired pursuant to paragraph (d)(4) of 

this section; and 

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(D) The calculations used to 

determine the efficiency and total power 

losses of each basic model to which the 

AEDM was applied. 

(ii) If requested by the Department, 

the manufacturer must perform at least 

one of the following: 

(A) Conduct simulations to predict 

the performance of particular basic 

models of distribution transformers 

specified by the Department; 

(B) Provide analyses of previous 

simulations conducted by the 

manufacturer; 

(C) Conduct sample testing of basic 

models selected by the Department; or 

(D) Conduct a combination of these. 

(e) Alternate Rating Method (ARM) for 

residential split-system central air 

conditioners and heat pumps— 

(1) Criteria an ARM must satisfy. The 

basis of the ARM referred to in 

§ 429.16(a)(2)(ii) for residential central 

air conditioners and heat pumps must 

be a representation of the test data and 

calculations of a mechanical vaporcompression refrigeration cycle. The 

major components in the refrigeration 

cycle must be modeled as ‘‘fits’’ to 

manufacturer performance data or by 

graphical or tabular performance data. 

Heat transfer characteristics of coils may 

be modeled as a function of face area, 

number of rows, fins per inch, 

refrigerant circuitry, air-flow rate and 

entering-air enthalpy. Additional 

performance-related characteristics to be 

considered may include type of 

expansion device, refrigerant flow rate 

through the expansion device, power of 

the indoor fan and cyclic-degradation 

coefficient. Ratings for untested 

combinations must be derived from the 

ratings of a combination tested in 

accordance with § 429.16(a)(2)(i). The 

seasonal energy efficiency ratio (SEER) 

and/or heating seasonal performance 

factor (HSPF) ratings for an untested 

combination must be set equal to or less 

than the lower of the SEER and/or HSPF 

calculated using the applicable DOEapproved alternative rating method 

(ARM). If the method includes an ARM/ 

simulation adjustment factor(s), 

determine the value(s) of the factors(s) 

that yield the best match between the 

SEER/HSPF determined using the ARM 

versus the SEER/HSPF determined from 

testing in accordance with 

§ 429.16(a)(2)(i). Thereafter, apply the 

ARM using the derived adjustment 

factor(s) only when determining the 

ratings for untested combinations 

having the same outdoor unit. 

(2) Approval of an ARM. (i) 

Manufacturers who elect to use an ARM 

for determining measures of energy 

consumption under 

§ 429.16(a)(2)(ii)(B)(1) and paragraph 

(e)(1) of this section must submit a 

request for DOE to review the ARM. 

Send the request to: U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program (EE–2J), 

Attention: Alternative Rating Methods 

(ARM) for Certification and Compliance, 

Forrestal Building, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121. 

(ii) Each request to DOE for approval 

of an ARM must include: 

(A) The name, mailing address, 

telephone number, and e-mail address 

of the official representing the 

manufacturer. 

(B) Complete documentation of the 

alternative rating method to allow DOE 

to evaluate its technical adequacy. The 

documentation must include a 

description of the methodology, state 

any underlying assumptions, and 

explain any correlations. The 

documentation should address how the 

method accounts for the cyclicdegradation coefficient, the type of 

expansion device, and, if applicable, the 

indoor fan-off delay. The requestor must 

submit any computer programs— 

including spreadsheets—having less 

than 200 executable lines that 

implement the ARM. Longer computer 

programs must be identified and 

sufficiently explained, as specified 

above, but their inclusion in the initial 

submittal package is optional. 

Applicability or limitations of the ARM 

(e.g., only covers single-speed units 

when operating in the cooling mode, 

covers units with rated capacities of 3 

tons or less, not applicable to the 

manufacturer’s product line of nonducted systems) must be stated in the 

documentation. 

(C) Complete test data from laboratory 

tests on four mixed (i.e., non-highestsales-volume combination) systems per 

each ARM. 

(1) The four mixed systems must 

include four different indoor units and 

at least two different outdoor units. A 

particular model of outdoor unit may be 

tested with up to two of the four indoor 

units. The four systems must include 

two low-capacity mixed systems and 

two high-capacity mixed systems. The 

low-capacity mixed systems may have 

any capacity. The rated capacity of each 

high-capacity mixed system must be at 

least a factor of two higher than its 

counterpart low-capacity mixed system. 

The four mixed systems must meet the 

applicable energy conservation standard 

in § 430.32(c) in effect at the time of the 

rating. 

(2) The four indoor units must come 

from at least two different coil families, 

with a maximum of two indoor units 

coming from the same coil family. Data 

for two indoor units from the same coil 

family, if submitted, must come from 

testing with one of the ‘‘low-capacity 

mixed systems’’ and one of the ‘‘highcapacity mixed systems.’’ A mixed 

system indoor coil may come from the 

same coil family as the highest-salesvolume-combination indoor unit (i.e., 

the ‘‘matched’’ indoor unit) for the 

particular outdoor unit. Data on mixed 

systems where the indoor unit is now 

obsolete will be accepted towards the 

ARM-validation submittal requirement 

if it is from the same coil family as other 

indoor units still in production. 

(3) The first two sentences of 

paragraph (e)(2)(ii)(C)(2) of this section 

do not apply if the manufacturer offers 

indoor units from only one coil family. 

In this case only, all four indoor coils 

must be selected from this one coil 

family. If approved, the ARM will be 

specifically limited to applications for 

this one coil family. 

(D) All product information on each 

mixed system indoor unit, each 

matched system indoor unit, and each 

outdoor unit needed to implement the 

proposed ARM. The calculated ratings 

for the four mixed systems, as 

determined using the proposed ARM, 

must be provided along with any other 

related information that will aid the 

verification process. 

(E) If request for approval is for an 

updated ARM, manufacturers must 

identify modifications made to the ARM 

since the last submittal, including any 

ARM/simulation adjustment factor(s) 

added since the ARM was last approved 

by DOE. 

(iii) Approval must be received from 

the Department to use the ARM before 

the ARM may be used for rating splitsystem central air conditioners and heat 

pumps. If a manufacturer has a DOEapproved ARM for products also 

distributed in commerce by a private 

labeler, the ARM may also be used by 

the private labeler for rating these 

products. Once an ARM is approved, 

DOE may contact a manufacturer to 

learn if their ARM has been modified in 

any way and to verify that the ARM is 

being applied as approved. DOE will 

give follow-up priority to individual 

combinations having questionably high 

ratings (e.g., a coil-only system having a 

rating that exceeds the rating of a coilonly highest sales volume combination 

by more than 6 percent). 

(3) Changes to DOE’s regulations 

requiring re-approval of an ARM. 

Manufacturers who elect to use an ARM 

for determining measures of energy 

consumption under 

§ 429.16(a)(2)(ii)(B)(1) and paragraph 

(e)(1) of this section must submit a 

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request for DOE to review the ARM 

when: 

(i) DOE amends the energy 

conservation standards as specified in 

§ 430.32 for residential central air 

conditioners and heat pumps. In this 

case, any testing and evidence required 

under paragraph (e)(2) of this section 

shall be developed with units that meet 

the amended energy conservation 

standards specified in § 430.32. Reapproval for the ARM must be obtained 

before the compliance date of amended 

energy conservation standards. (ii) DOE 

amends the test procedure for 

residential air conditioners and heat 

pumps as specified in Appendix M to 

Subpart B of Part 430. Re-approval for 

the ARM must be obtained before the 

compliance date of amended test 

procedures. 

(4) Manufacturers that elect to use an 

ARM for determining measures of 

energy consumption under 

§ 429.16(a)(2)(ii)(B)(1) and paragraph 

(e)(1) of this section must regularly 

either subject a sample of their units to 

independent testing, e.g., through a 

voluntary certification program, in 

accordance with the applicable DOE test 

procedure, or have the representations 

reviewed by an independent stateregistered professional engineer who is 

not an employee of the manufacturer. 

The manufacturer may continue to use 

the ARM only if the testing establishes, 

or the registered professional engineer 

certifies, that the results of the ARM 

accurately represent the energy 

consumption of the unit(s). Any 

proposed change to the alternative 

rating method must be approved by 

DOE prior to its use for rating. 

(5) Manufacturers who choose to use 

computer simulation or engineering 

analysis for determining measures of 

energy consumption under 

§ 429.16(a)(2)(ii)(B)(1) and paragraphs 

(e)(1) through (e)(4) of this section must 

permit representatives of the 

Department of Energy to inspect for 

verification purposes the simulation 

method(s) and computer program(s) 

used. This inspection may include 

conducting simulations to predict the 

performance of particular outdoor unit 

‘‘indoor’’ unit combinations specified by 

DOE, analysis of previous simulations 

conducted by the manufacturer, or both. 

§ 429.71 Maintenance of records. 

(a) The manufacturer of any covered 

product or covered equipment shall 

establish, maintain, and retain the 

records of certification reports, of the 

underlying test data for all certification 

testing, and of any other testing 

conducted to satisfy the requirements of 

this part, part 430, and part 431. Any 

manufacturer who chooses to use an 

alternative method for determining 

energy efficiency or energy use in 

accordance with § 429.70 must retain 

the records required by that section, any 

other records of any testing performed 

to support the use of the alternative 

method, and any certifications required 

by that section, on file for review by 

DOE for two years following the 

discontinuance of all models or 

combinations whose ratings were based 

on the alternative method. 

(b) Such records shall be organized 

and indexed in a fashion that makes 

them readily accessible for review by 

DOE upon request. 

(c) The records shall be retained by 

the manufacturer for a period of two 

years from the date that the 

manufacturer or third party submitter 

has notified DOE that the model has 

been discontinued in commerce. 

Appendix A to Subpart B of Part 429— 

Student’s t-Distribution Values for 

Certification Testing 

FIGURE 1—T-DISTRIBUTION VALUES FOR CERTIFICATION TESTING

[One-Sided] 

Degrees of freedom 

(from Appendix D) 

Confidence Interval 

90% 95% 97.5% 99% 

1 ................................................................................................................... 3.078 6.314 12 .71 31 .82 

2 ................................................................................................................... 1.886 2.920 4 .303 6 .965 

3 ................................................................................................................... 1.638 2.353 3 .182 4 .541 

4 ................................................................................................................... 1.533 2.132 2 .776 3 .747 

5 ................................................................................................................... 1.476 2.015 2 .571 3 .365 

6 ................................................................................................................... 1.440 1.943 2 .447 3 .143 

7 ................................................................................................................... 1.415 1.895 2 .365 2 .998 

8 ................................................................................................................... 1.397 1.860 2 .306 2 .896 

9 ................................................................................................................... 1.383 1.833 2 .262 2 .821 

10 ................................................................................................................. 1.372 1.812 2 .228 2 .764 

11 ................................................................................................................. 1.363 1.796 2 .201 2 .718 

12 ................................................................................................................. 1.356 1.782 2 .179 2 .681 

13 ................................................................................................................. 1.350 1.771 2 .160 2 .650 

14 ................................................................................................................. 1.345 1.761 2 .145 2 .624 

15 ................................................................................................................. 1.341 1.753 2 .131 2 .602 

16 ................................................................................................................. 1.337 1.746 2 .120 2 .583 

17 ................................................................................................................. 1.333 1.740 2 .110 2 .567 

18 ................................................................................................................. 1.330 1.734 2 .101 2 .552 

19 ................................................................................................................. 1.328 1.729 2 .093 2 .539 

20 ................................................................................................................. 1.325 1.725 2 .086 2 .528 

Subpart C—Enforcement 

§ 429.100 Purpose and scope. 

This subpart describes the 

enforcement authority of DOE to ensure 

compliance with the conservation 

standards and regulations. 

§ 429.102 Prohibited acts subjecting 

persons to enforcement action. 

(a) Each of the following actions is 

prohibited: 

(1) Failure of a manufacturer to 

provide, maintain, permit access to, or 

copying of records required to be 

supplied under the Act and this part or 

failure to make reports or provide other 

information required to be supplied 

under the Act and this part, including 

but not limited to failure to properly 

certify covered products and covered 

equipment in accordance with § 429.12 

and §§ 429.14 through 429.54; 

(2) Failure to test any covered product 

or covered equipment subject to an 

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applicable energy conservation standard 

in conformance with the applicable test 

requirements prescribed in 10 CFR parts 

430 or 431; 

(3) Deliberate use of controls or 

features in a covered product or covered 

equipment to circumvent the 

requirements of a test procedure and 

produce test results that are 

unrepresentative of a product’s energy 

or water consumption if measured 

pursuant to DOE’s required test 

procedure; 

(4) Failure of a manufacturer to 

supply at the manufacturer’s expense a 

requested number of covered products 

or covered equipment to a designated 

test laboratory in accordance with a test 

notice issued by DOE; 

(5) Failure of a manufacturer to permit 

a DOE representative to observe any 

testing required by the Act and this part 

and inspect the results of such testing; 

(6) Distribution in commerce by a 

manufacturer or private labeler of any 

new covered product or covered 

equipment that is not in compliance 

with an applicable energy conservation 

standard prescribed under the Act; 

(7) Distribution in commerce by a 

manufacturer or private labeler of a 

basic model of covered product or 

covered equipment after a notice of 

noncompliance determination has been 

issued to the manufacturer or private 

labeler; 

(8) Knowing misrepresentation by a 

manufacturer or private labeler by 

certifying an energy use or efficiency 

rating of any covered product or covered 

equipment distributed in commerce in a 

manner that is not supported by test 

data; 

(9) For any manufacturer, distributor, 

retailer, or private labeler to distribute 

in commerce an adapter that— 

(i) Is designed to allow an 

incandescent lamp that does not have a 

medium screw base to be installed into 

a fixture or lamp holder with a medium 

screw base socket; and 

(ii) Is capable of being operated at a 

voltage range at least partially within 

110 and 130 volts; or 

(10) For any manufacturer or private 

labeler to knowingly sell a product to a 

distributor, contractor, or dealer with 

knowledge that the entity routinely 

violates any regional standard 

applicable to the product. 

(b) When DOE has reason to believe 

that a manufacturer or private labeler 

has undertaken a prohibited act listed in 

paragraph (a) of this section, DOE may: 

(1) Issue a notice of noncompliance 

determination; 

(2) Impose additional certification 

testing requirements; 

(3) Seek injunctive relief; 

(4) Assess a civil penalty for knowing 

violations; or 

(5) Undertake any combination of the 

above. 

§ 429.104 Assessment testing. 

DOE may, at any time, test a basic 

model to assess whether the basic model 

is in compliance with the applicable 

energy conservation standard(s). 

§ 429.106 Investigation of compliance. 

(a) DOE may initiate an investigation 

that a basic model may not be compliant 

with an applicable conservation 

standard, certification requirement or 

other regulation at any time. 

(b) DOE may, at any time, request any 

information relevant to determining 

compliance with any requirement under 

parts 429, 430 and 431, including the 

data underlying certification of a basic 

model. Such data may be used by DOE 

to make a determination of compliance 

or noncompliance with an applicable 

standard. 

§ 429.110 Enforcement testing. 

(a) General provisions. (1) If DOE has 

reason to believe that a basic model is 

not in compliance it may test for 

enforcement. 

(2) DOE will select and test units 

pursuant to paragraphs (c) and (e) of this 

section. 

(3) Testing will be conducted at a lab 

accredited to the International 

Organization for Standardization (ISO)/ 

International Electrotechnical 

Commission (IEC), ‘‘General 

requirements for the competence of 

testing and calibration laboratories,’’ 

ISO/IEC 17025:2005(E) (incorporated by 

reference; see § 429.4). If testing cannot 

be completed at an independent lab, 

DOE, at its discretion, may allow 

enforcement testing at a manufacturer’s 

lab, so long as the lab is accredited to 

ISO/IEC 17025:2005(E) and DOE 

representatives witness the testing. 

(b) Test notice. (1) To obtain units for 

enforcement testing to determine 

compliance with an applicable 

standard, DOE will issue a test notice 

addressed to the manufacturer in 

accordance with the following 

requirements: 

(i) DOE will send the test notice to the 

manufacturer’s certifying official or 

other company official. 

(ii) The test notice will specify the 

basic model that will be selected for 

testing, the method of selecting the test 

sample, the maximum size of the 

sample and the size of the initial test 

sample, the dates at which testing is 

scheduled to be started and completed, 

and the facility at which testing will be 

conducted. The test notice may also 

provide for situations in which the 

selected basic model is unavailable for 

testing and may include alternative 

models or basic models. 

(iii) DOE will state in the test notice 

that it will select the units of a basic 

model to be tested from the 

manufacturer, from one or more 

distributors, and/or from one or more 

retailers. If any unit is selected from a 

distributor or retailer, the manufacturer 

shall make arrangements with the 

distributor or retailer for compensation 

for or replacement of any such units. 

(iv) DOE may require in the test notice 

that the manufacturer of a basic model 

ship or cause to be shipped from a 

retailer or distributor at its expense the 

requested number of units of a basic 

model specified in such test notice to 

the testing laboratory specified in the 

test notice. The manufacturer shall ship 

the specified initial test unit(s) of the 

basic model to the testing laboratory 

within 5 working days from the time 

units are selected. 

(v) If DOE determines that the units 

identified are low-volume or built-toorder products, DOE will contact the 

manufacturer to develop a plan for 

enforcement testing in lieu of 

paragraphs (ii)–(iv) of this section. 

(2) [Reserved] 

(c) Test unit selection. (1) To select 

units for testing from a: 

(i) Manufacturer’s warehouse, 

distributor, or other facility affiliated 

with the manufacturer. DOE will select 

a batch sample at random in accordance 

with the provisions in paragraph (e) of 

this section and the conditions specified 

in the test notice. DOE will randomly 

select an initial test sample of units 

from the batch sample for testing in 

accordance with appendices A through 

C of this subpart. DOE will make a 

determination whether an alternative 

sample size will be used in accordance 

with the provisions in paragraph 

(e)(1)(iv) of this section. 

(ii) Retailer or other facility not 

affiliated with the manufacturer. DOE 

will select an initial test sample of units 

at random that satisfies the minimum 

units necessary for testing in accordance 

with the provisions in appendices A 

through C of this subpart and the 

conditions specified in the test notice. 

Depending on the results of the testing, 

DOE may select additional units for 

testing from a retailer in accordance 

with appendices A through C of this 

subpart. If the full sample is not 

available from a retailer, DOE will make 

a determination whether an alternative 

sample size will be used in accordance 

with the provisions in paragraph 

(e)(1)(iv) of this section. 

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(2) Units tested in accordance with 

the applicable test procedure under this 

part by DOE or another Federal agency, 

pursuant to other provisions or 

programs, may count toward units in 

the test sample. 

(3) The resulting test data shall 

constitute official test data for the basic 

model. Such test data will be used by 

DOE to make a determination of 

compliance or noncompliance if a 

sufficient number of tests have been 

conducted to satisfy the requirements of 

paragraph (e) of this section and 

appendices A through C of this subpart. 

(d) Test unit preparation. (1) Prior to 

and during testing, a test unit selected 

for enforcement testing shall not be 

prepared, modified, or adjusted in any 

manner unless such preparation, 

modification, or adjustment is allowed 

by the applicable DOE test procedure. 

One test shall be conducted for each test 

unit in accordance with the applicable 

test procedures prescribed in parts 430 

and 431. 

(2) No quality control, testing or 

assembly procedures shall be performed 

on a test unit, or any parts and 

subassemblies thereof, that is not 

performed during the production and 

assembly of all other units included in 

the basic model. 

(3) A test unit shall be considered 

defective if such unit is inoperative or 

is found to be in noncompliance due to 

failure of the unit to operate according 

to the manufacturer’s design and 

operating instructions. Defective units, 

including those damaged due to 

shipping or handling, shall be reported 

immediately to DOE. DOE may 

authorize testing of an additional unit 

on a case-by-case basis. 

(e) Basic model compliance. (1) DOE 

will evaluate whether a basic model 

complies with the applicable energy 

conservation standard(s) based on 

testing conducted in accordance with 

the applicable test procedures specified 

in parts 430 and 431, and with the 

following statistical sampling 

procedures: 

(i) For products with applicable 

energy conservation standard(s) in 

§ 430.32, and commercial pre-rinse 

spray valves, illuminated exit signs, 

traffic signal modules and pedestrian 

modules, commercial clothes washers, 

and metal halide lamp ballasts, DOE 

will use a sample size of not more than 

21 units and follow the sampling plans 

in appendix A of this subpart (Sampling 

for Enforcement Testing of Covered 

Consumer Products and Certain HighVolume Commercial Equipment). 

(ii) For automatic commercial ice 

makers; commercial refrigerators, 

freezers, and refrigerator-freezers; 

refrigerated bottled or canned vending 

machines; and commercial HVAC and 

WH equipment, DOE will use an initial 

sample size of not more than four units 

and follow the sampling plans in 

appendix B of this subpart (Sampling 

Plan for Enforcement Testing of Covered 

Equipment and Certain Low-Volume 

Covered Products). If fewer than four 

units of a basic model are available for 

testing when the manufacturer receives 

the notice, then: 

(A) DOE will test the available unit(s); 

or 

(B) If one or more other units of the 

basic model are expected to become 

available within 30 calendar days, DOE 

may instead, at its discretion, test either: 

(1) The available unit(s) and one or 

more of the other units that 

subsequently become available (up to a 

maximum of four); or 

(2) Up to four of the other units that 

subsequently become available. 

(iii) For distribution transformers, 

DOE will use an initial sample size of 

not more than five units and follow the 

sampling plans in appendix C of this 

subpart (Sampling Plan for Enforcement 

Testing of Distribution Transformers). If 

fewer than five units of a basic model 

are available for testing when the 

manufacturer receives the test notice, 

then: 

(A) DOE will test the available unit(s); 

or 

(B) If one or more other units of the 

basic model are expected to become 

available within 30 calendar days, the 

Department may instead, at its 

discretion, test either: 

(1) The available unit(s) and one or 

more of the other units that 

subsequently become available (up to a 

maximum of five); or 

(2) Up to five of the other units that 

subsequently become available. 

(iv) Notwithstanding paragraphs 

(e)(1)(i) through (e)(1)(iii) of this section, 

if testing of the available or 

subsequently available units of a basic 

model would be impractical, as for 

example when a basic model has 

unusual testing requirements or has 

limited production, DOE may in its 

discretion decide to base the 

determination of compliance on the 

testing of fewer than the otherwise 

required number of units. 

(v) When DOE makes a determination 

in accordance with section (e)(1)(iv) to 

test less than the number of units 

specified in parts (d)(1)(i) through 

(d)(1)(iii) of this section, DOE will base 

the compliance determination on the 

results of such testing in accordance 

with appendix B of this subpart 

(Sampling Plan for Enforcement Testing 

of Covered Equipment and Certain LowVolume Covered Products) using a 

sample size (n1) equal to the number of 

units tested. 

(vi) For the purposes of paragraphs 

(e)(1)(i) through (e)(1)(v) of this section, 

available units are those that are 

available for distribution in commerce 

within the United States. 

§ 429.114 Notice of noncompliance and 

notice to cease distribution of a basic 

model. 

(a) In the event that DOE determines 

a basic model is noncompliant with an 

applicable energy conservation 

standard, or if a manufacturer or private 

labeler determines a basic model to be 

in noncompliance, DOE may issue a 

notice of noncompliance determination 

to the manufacturer or private labeler. 

This notice of noncompliance 

determination will notify the 

manufacturer or private labeler of its 

obligation to: 

(1) Immediately cease distribution in 

commerce of the basic model; 

(2) Give immediate written 

notification of the determination of 

noncompliance to all persons to whom 

the manufacturer has distributed units 

of the basic model manufactured since 

the date of the last determination of 

compliance; and 

(3) Provide DOE, within 30 calendar 

days of the request, records, reports and 

other documentation pertaining to the 

acquisition, ordering, storage, shipment, 

or sale of a basic model determined to 

be in noncompliance. 

(b) In the event that DOE determines 

a manufacturer has failed to comply 

with an applicable certification 

requirement with respect to a particular 

basic model, DOE may issue a notice of 

noncompliance determination to the 

manufacturer or private labeler. This 

notice of noncompliance determination 

will notify the manufacturer or private 

labeler of its obligation to: 

(1) Immediately cease distribution in 

commerce of the basic model; 

(2) Immediately comply with the 

applicable certification requirement; 

and/or 

(3) Provide DOE within 30 days of the 

request, records, reports and other 

documentation pertaining to the 

acquisition, ordering, storage, shipment, 

or sale of the basic model. 

(c) If a manufacturer or private labeler 

fails to comply with the required actions 

in the notice of noncompliance 

determination as set forth in paragraphs 

(a) or (b) of this section, the General 

Counsel (or delegee) may seek, among 

other remedies, injunctive action and 

civil penalties, where appropriate. 

(d) The manufacturer may modify a 

basic model determined to be 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12497 

noncompliant with an applicable energy 

conservation standard in such manner 

as to make it comply with the applicable 

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 

part; except that in addition to satisfying 

all requirements of this part, any models 

within the basic model must be assigned 

new model numbers and the 

manufacturer shall also maintain, and 

provide upon request to DOE, records 

that demonstrate that modifications 

have been made to all units of the new 

basic model prior to distribution in 

commerce. 

§ 429.116 Additional certification testing 

requirements. 

Pursuant to § 429.102(b)(2), if DOE 

determines that independent, thirdparty testing is necessary to ensure a 

manufacturer’s compliance with the 

rules of this part, part 430, or part 431, 

a manufacturer must base its 

certification of a basic model under 

subpart B of this part on independent, 

third-party laboratory testing. 

§ 429.118 Injunctions. 

If DOE has reason to seek an 

injunction under the Act: 

(a) DOE will notify the manufacturer, 

private labeler or any other person as 

required, of the prohibited act at issue 

and DOE’s intent to seek a judicial order 

enjoining the prohibited act unless the 

manufacturer, private labeler or other 

person, delivers to DOE within 15 

calendar days a corrective action and 

compliance plan, satisfactory to DOE, of 

the steps it will take to ensure that the 

prohibited act ceases. DOE will monitor 

the implementation of such plan. 

(b) If the manufacturer, private labeler 

or any other person as required, fails to 

cease engaging in the prohibited act or 

fails to provide a satisfactory corrective 

action and compliance plan, DOE may 

seek an injunction. 

§ 429.120 Maximum civil penalty. 

Any person who knowingly violates 

any provision of § 429.102(a) of this part 

may be subject to assessment of a civil 

penalty of no more than $200 for each 

violation. As to § 429.102(a)(1) with 

respect to failure to certify, and as to 

§ 429.102(a)(2), (5) through (9), each 

unit of a covered product or covered 

equipment distributed in violation of 

such paragraph shall constitute a 

separate violation. For violations of 

§ 429.102(a)(1), (3), and (4), each day of 

noncompliance shall constitute a 

separate violation for each basic model 

at issue. 

§ 429.122 Notice of proposed civil penalty. 

(a) The General Counsel (or delegee) 

shall provide notice of any proposed 

civil penalty. 

(b) The notice of proposed penalty 

shall: 

(1) Include the amount of the 

proposed penalty; 

(2) Include a statement of the material 

facts constituting the alleged violation; 

and 

(3) Inform the person of the 

opportunity to elect in writing within 30 

calendar days of receipt of the notice to 

have the procedures of § 429.128 (in lieu 

of those of § 429.126) apply with respect 

to the penalty. 

§ 429.124 Election of procedures. 

(a) In responding to a notice of 

proposed civil penalty, the respondent 

may request: 

(1) An administrative hearing before 

an Administrative Law Judge (ALJ) 

under § 429.126 of this part; or 

(2) Elect to have the procedures of 

§ 429.128 apply. 

(b) Any election to have the 

procedures of § 429.128 apply may not 

be revoked except with the consent of 

the General Counsel (or delegee). 

(c) If the respondent fails to respond 

to a notice issued under § 429.120 or 

otherwise fails to indicate its election of 

procedures, DOE shall refer the civil 

penalty action to an ALJ for a hearing 

under § 429.126. 

§ 429.126 Administrative law judge hearing 

and appeal. 

(a) When elected pursuant to 

§ 429.124, DOE shall refer a civil 

penalty action brought under § 429.122 

of this part to an ALJ, who shall afford 

the respondent an opportunity for an 

agency hearing on the record. 

(b) After consideration of all matters 

of record in the proceeding, the ALJ will 

issue a recommended decision, if 

appropriate, recommending a civil 

penalty. The decision will include a 

statement of the findings and 

conclusions, and the reasons therefore, 

on all material issues of fact, law, and 

discretion. 

(c)(1) The General Counsel (or 

delegee) shall adopt, modify, or set 

aside the conclusions of law or 

discretion contained in the ALJ’s 

recommended decision and shall set 

forth a final order assessing a civil 

penalty. The General Counsel (or 

delegee) shall include in the final order 

the ALJ’s findings of fact and the 

reasons for the final agency actions. 

(2) Any person against whom a 

penalty is assessed under this section 

may, within 60 calendar days after the 

date of the final order 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 setting aside in whole or in part, the 

final order, or the court may remand the 

proceeding to the Department for such 

further action as the court may direct. 

§ 429.128 Immediate issuance of order 

assessing civil penalty. 

(a) If the respondent elects to forgo an 

agency hearing pursuant to § 429.124, 

the General Counsel (or delegee) shall 

issue an order assessing the civil 

penalty proposed in the notice of 

proposed penalty under § 429.122, 30 

calendar days after the respondent’s 

receipt of the notice of proposed 

penalty. 

(b) If within 60 calendar days of 

receiving the assessment order in 

paragraph (a) of this section the 

respondent does not pay the civil 

penalty amount, DOE shall institute an 

action in the appropriate United States 

District Court for an order affirming 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. 

§ 429.130 Collection of civil penalties. 

If any person fails to pay an 

assessment of a civil penalty after it has 

become a final and unappealable order 

under § 429.126 or after the appropriate 

District Court has entered final 

judgment in favor of the Department 

under § 429.128, the General Counsel 

(or delegee) shall institute an action to 

recover the amount of such penalty in 

any appropriate District Court of the 

United States. In such action, the 

validity and appropriateness of such 

final assessment order or judgment shall 

not be subject to review. 

§ 429.132 Compromise and settlement. 

(a) DOE may compromise, modify, or 

remit, with or without conditions, any 

civil penalty (with leave of court if 

necessary). 

(b) In exercising its authority under 

paragraph (a) of this section, DOE may 

consider the nature and seriousness of 

the violation, the efforts of the 

respondent to remedy the violation in a 

timely manner, and other factors as 

justice may require. 

(c) DOE’s authority to compromise, 

modify or remit a civil penalty may be 

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12498 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

exercised at any time prior to a final 

decision by the United States Court of 

Appeals if § 429.126 procedures are 

utilized, or prior to a final decision by 

the United States District Court, if 

§ 429.128 procedures are utilized. 

(d) Notwithstanding paragraph (a) of 

this section, DOE or the respondent may 

propose to settle the case. If a settlement 

is agreed to by the parties, the 

respondent is notified and the case is 

closed in accordance with the terms of 

the settlement. 

APPENDIX A TO SUBPART C OF 

PART 429—SAMPLING PLAN FOR 

ENFORCEMENT TESTING OF 

COVERED CONSUMER PRODUCTS 

AND CERTAIN HIGH-VOLUME 

COMMERCIAL EQUIPMENT 

(a) The first sample size (n1) for 

enforcement testing must be four or more 

units, except as provided by § 429.57(e)(1)(i). 

(b) Compute the mean of the measured 

energy performance (x1) for all tests as 

follows: 

where xi is the measured energy or water 

efficiency or consumption from test i, and n1

is the total number of tests. 

(c) Compute the standard deviation (s1) of 

the measured energy performance from the n1

tests as follows: 

(d) Compute the standard error (sx1) of the 

measured energy performance from the n1

tests as follows: 

(e)(1) Compute the upper control limit 

(UCL1) and lower control limit (LCL1) for the 

mean of the first sample using the applicable 

DOE energy efficiency standard (EES) as the 

desired mean and a probability level of 95 

percent (two-tailed test) as follows: LCL1 EES 

— ts x1 x

where t is the statistic based on a 95 percent 

two-tailed probability level with degrees of 

freedom (n1¥1). 

(2) For an energy efficiency or water 

efficiency standard, compare the mean of the 

first sample (x1) with the upper and lower 

control limits (UCL1 and LCL1) to determine 

one of the following: 

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

the lower 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.) 

(ii) If the mean of the first sample is equal 

to or greater than the upper control limit, 

then the basic model is in compliance and 

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

the steps below.) 

(iii) If the sample mean is equal to or 

greater than the lower control limit but less 

than the upper control limit, then no 

determination of compliance or 

noncompliance can be made and a second 

sample size is determined by Step (e)(3). 

(3) For an energy efficiency or water 

efficiency standard, determine the second 

sample size (n2) as follows: 

where s1 and t have the values used in 

equations 2 and 4, respectively. The term 

‘‘0.05 EES’’ is the difference between the 

applicable energy efficiency or water 

efficiency standard and 95 percent of the 

standard, where 95 percent of the standard is 

taken as the lower control limit. This 

procedure yields a sufficient combined 

sample size (n1+n2) to give an estimated 97.5 


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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12499 

percent probability of obtaining a 

determination of compliance when the true 

mean efficiency is equal to the applicable 

standard. Given the solution value of n2, 

determine one of the following: 

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

to zero and if the mean energy or water 

efficiency of the first sample (x1) is either 

equal to or greater than the lower control 

limit (LCL1) or equal to or greater than 95 

percent of the applicable energy efficiency or 

water efficiency standard (EES), whichever is 

greater, i.e., if n2≤ 0 and x1≥ max (LCL1, 0.95 

EES), the basic model is in compliance and 

testing is at an end. 

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

to zero and the mean energy efficiency of the 

first sample (x1) is less than the lower control 

limit (LCL1) or less than 95 percent of the 

applicable energy or water efficiency 

standard (EES), whichever is greater, i.e., if 

n2≤ 0 and x1≤ max (LCL1, 0.95 EES), the basic 

model is not in compliance and testing is at 

an end. 

(iii) If the value of n2 is greater than zero, 

then, the value of the second sample size is 

determined to be the smallest integer equal 

to or greater than the solution value of n2 for 

equation (6). If the value of n2 so calculated 

is greater than 21¥ n1, set n2 equal to 21¥ 

n1. 

(4) Compute the combined mean (x2) of the 

measured energy or water efficiency of the n1

and n2 units of the combined first and second 

samples as follows: 

(5) Compute the standard error (Sx2) of the 

measured energy or water performance of the 

n1 and n2 units in the combined first and 

second samples as follows: 

Note: s1 is the value obtained in Step (c). 

(6) For an energy efficiency standard (EES), 

compute the lower control limit (LCL2) for 

the mean of the combined first and second 

samples using the DOE EES as the desired 

mean and a one-tailed probability level of 

97.5 percent (equivalent to the two-tailed 

probability level of 95 percent used in Step 

(e)(1)) as follows: 

where the t-statistic has the value obtained in 

Step (e)(1) and sx2 is the value obtained in 

Step (e)(5). 

(7) For an energy efficiency standard (EES), 

compare the combined sample mean (x2) to 

the lower control limit (LCL2) to determine 

one of the following: 

(i) If the mean of the combined sample (x2) 

is less than the lower control limit (LCL2) or 

95 percent of the applicable energy efficiency 

standard (EES), whichever is greater, i.e., if 

x2< max (LCL2, 0.95 EES), the basic model is 

not compliant and testing is at an end. 

(iii) If the mean of the combined sample 

(x2) is equal to or greater than the lower 

control limit (LCL2) or 95 percent of the 

applicable energy efficiency standard (EES), 

whichever is greater, i.e., if x2≥ max (LCL2, 

0.95 EES), the basic model is in compliance 

and testing is at an end. 

(f)(1) Compute the upper control limit 

(UCL1) and lower control limit (LCL1) for the 

mean of the first sample using the applicable 

DOE energy consumption standard (ECS) as 

the desired mean and a probability level of 

95 percent (two-tailed test) as follows: 

where t is the statistic based on a 95 percent 

two-tailed probability level with degrees of 

freedom (n1 ¥ 1). 

(2) For an energy or water consumption 

standard, compare the mean of the first 

sample (x1) with the upper and lower control 

limits (UCL1 and LCL1) to determine one of 

the following: 

(i) If 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.) 

(ii) If the mean of the first sample is equal 

to or less 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 steps 

below.) 

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

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 (f)(3). 

(3) For an Energy or Water Consumption 

Standard, determine the second sample size 

(n2) as follows: 

where s1and t have the values used in 

equations (2) and (10), respectively. The term 

‘‘0.05 ECS’’ is the difference between the 

applicable energy or water consumption 

standard and 105 percent of the standard, 

where 105 percent of the standard is taken 

as the upper control limit. This procedure 

yields a sufficient combined sample size (n1

+ n2) to give an estimated 97.5 percent 

probability of obtaining a determination of 

compliance when the true mean 

consumption is equal to the applicable 

standard. Given the solution value of n2, 

determine one of the following: 

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

to zero and if the mean energy or water 

consumption of the first sample (x1) is either 

equal to or less than the upper control limit 

(UCL1) or equal to or less than 105 percent 

of the applicable energy or water 

consumption standard (ECS), whichever is 

less, i.e., if n2 ≤ 0 and x1 ≤ min (UCL1, 1.05 

ECS), the basic model is in compliance and 

testing is at an end. 

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

to zero and the mean energy or water 

consumption of the first sample (x1) is greater 

than the upper control limit (UCL1) or more 

than 105 percent of the applicable energy or 

water consumption standard (ECS), 

whichever is less, i.e., if n2 ≤ 0 and x1 > min 

(UCL1, 1.05 EPS), the basic model is not 

compliant and testing is at an end. 

(iii) If the value of n2 is greater than zero, 

then the value of the second sample size is 

determined to be the smallest integer equal 

to or greater than the solution value of n2 for 

equation (11). If the value of n2 so calculated 

is greater than 21¥n1, set n2 equal to 21¥n1. 

(4) Compute the combined mean (x2) of the 

measured energy or water consumption of 

the n1 and n2 units of the combined first and 

second samples as follows: 

(5) Compute the standard error (Sx2) of the 

measured energy or water consumption of 

the n1 and n2 units in the combined first and 

second samples as follows: 

Note: s1 is the value obtained in Step (c). 

(6) For an energy or water consumption 

standard (ECS), compute the upper control 

limit (UCL2) for the mean of the combined 

first and second samples using the DOE ECS 

as the desired mean and a one-tailed 

probability level of 97.5 percent (equivalent 

to the two-tailed probability level of 95 

percent used in Step (f)(1)) as follows: 

where the t-statistic has the value obtained in 

(f)(1). 


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(7) For an energy or water consumption 

standard (ECS), compare the combined 

sample mean (x2) to the upper control limit 

(UCL2) to determine one of the following: 

(i) If the mean of the combined sample (x2) 

is greater than the upper control limit (UCL2) 

or 105 percent of the ECS whichever is less, 

i.e., if x2 > min (UCL2, 1.05 ECS), the basic 

model is not compliant and testing is at an 

end. 

(ii) If the mean of the combined sample (x2) 

is equal to or less than the upper control 

limit (UCL2) or 105 percent of the applicable 

energy or water performance standard (ECS), 

whichever is less, i.e., if x 2≤ min (UCL2, 1.05 

ECS), the basic model is in compliance and 

testing is at an end. 

APPENDIX B TO SUBPART C OF PART 

429—SAMPLING PLAN FOR 

ENFORCEMENT TESTING OF 

COVERED EQUIPMENT AND 

CERTAIN LOW-VOLUME COVERED 

PRODUCTS 

The Department will determine 

compliance as follows: 

(a) The first sample size (n1) must be four 

or more units, except as provided by 

§ 429.57(e)(1)(ii). 

(b) Compute the mean of the measured 

energy performance (x1) for all tests as 

follows: 

where xi is the measured energy efficiency or 

consumption from test i, and n1 is the total 

number of tests. 

(c) Compute the standard deviation (s1) of 

the measured energy performance from the n1

tests as follows: 

(d) Compute the standard error (sx1) of the 

measured energy performance from the n1

tests as follows: 

(e)(1) For an energy efficiency standard 

(EES), determine the appropriate lower 

control limit (LCL1) according to: 

And use whichever is greater. Where EES 

is the energy efficiency standard and t is a 

statistic based on a 97.5 percent, one-sided 

confidence limit and a sample size of n1. 

(2) For an energy consumption standard 

(ECS), determine the appropriate upper 

control limit (UCL1) according to: 


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And use whichever is less, where ECS is 

the energy consumption standard and t is a 

statistic based on a 97.5 percent, one-sided 

confidence limit and a sample size of n1. 

(f)(1) Compare the sample mean to the 

control limit. 

(i) The basic model is in compliance and 

testing is at an end if: 

(A) For an energy or water efficiency 

standard, the sample mean is equal to or 

greater than the lower control limit, or 

(B) For an energy or water consumption 

standard, the sample mean is equal to or less 

than the upper control limit. 

APPENDIX C TO SUBPART C OF PART 

429—SAMPLING PLAN FOR 

ENFORCEMENT TESTING OF 

DISTRIBUTION TRANSFORMERS 

(a) When testing distribution transformers, 

the number of units in the sample (m1) shall 

be in accordance with § 429.47(a) and DOE 

shall perform the following number of tests: 

(1) If DOE tests four or more units, it will 

test each unit once; 

(2) If DOE tests two or three units, it will 

test each unit twice; or 

(3) If DOE tests one unit, it will test that 

unit four times. 

(b) DOE shall determine compliance as 

follows: 

(1) Compute the mean (X1) of the measured 

energy performance of the n1 tests in the first 

sample as follows: 

where Xi is the measured efficiency of test i. 

(2) Compute the sample standard deviation 

(S1) of the measured efficiency of the n1 tests 

in the first sample as follows: 

(3) Compute the standard error (SE(X1)) of 

the mean efficiency of the first sample as 

follows: 

(4) Compute the sample size discount 

(SSD(m1)) as follows: 

where m1 is the number of units in the 

sample, and RE is the applicable DOE 

efficiency when the test is to determine 

compliance with the applicable energy 

conservation standard, or is the labeled 

efficiency when the test is to determine 

compliance with the labeled efficiency value. 

(5) Compute the lower control limit (LCL1) 

for the mean of the first sample as follows: 

Where t is statistic based on a 97.5 percent 

one-tailed t test with degrees of freedom 

(from Appendix D) n1¥1. 

(6) Compare the mean of the first sample 

(X1) with the lower control limit (LCL1) to 

determine one of the following: 

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

the lower control limit, then the basic model 

is not compliant and testing is at an end. 

(ii) If the mean is equal to or greater than 

the lower control limit, no final 

determination of compliance or 

noncompliance can be made; proceed to Step 

(7). 

(7) Determine the recommended sample 

size (n) as follows: 

Given the value of n, determine one of the 

following: 

(i) If the value of n is less than or equal 

to n1 and if the mean energy efficiency of the 

first sample (X1) is equal to or greater than 

the lower control limit (LCL1), the basic 

model is in compliance and testing is at an 

end. 

(ii) If the value of n is greater than n1, the 

basic model is not compliant. The size of a 

second sample n2 is determined to be the 

smallest integer equal to or greater than the 

difference n¥n1. If the value of n2 so 

calculated is greater than 21¥n1, set n2 equal 

to 21¥n1. 

(8) Compute the combined (X2) mean of the 

measured energy performance of the n1 and 

n2 units of the combined first and second 

samples as follows: 

(9) Compute the standard error (SE(X2)) of 

the mean full-load efficiency of the n1 and n2

units in the combined first and second 

samples as follows: 

(Note that S1 is the value obtained above 

in (2).) 

(10) Set the lower control limit (LCL2) to, 


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where t has the value obtained in (5) and 

SSD(m1) is sample size discount determined 

in (4), and compare the combined sample 

mean (X2) to the lower control limit (LCL2) 

to determine one of the following: 

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

is less than the lower control limit (LCL2), the 

basic model is not compliant and testing is 

at an end. 

(ii) If the mean of the combined sample 

(X2) is equal to or greater than the lower 

control limit (LCL2), the basic model is in 

compliance and testing is at an end. 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 2. The authority citation for part 430 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6309; 28 U.S.C. 

2461 note. 

■ 3. In § 430.2 revise the definitions of 

‘‘Act,’’ ‘‘basic model,’’ and ‘‘Energy 

conservation standard’’ to read as 

follows: 

§ 430.2 Definitions. 

* * * * * 

Act means the Energy Policy and 

Conservation Act of 1975, as amended, 

42 U.S.C. 6291–6316. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency; and 

(1) With respect to general service 

fluorescent lamps, general service 

incandescent lamps, and incandescent 

reflector lamps: Lamps that have 

essentially identical light output and 

electrical characteristics—including 

lumens per watt (lm/W) and color 

rendering index (CRI). 

(2) With respect to faucets and 

showerheads: Have the identical flow 

control mechanism attached to or 

installed within the fixture fittings, or 

the identical water-passage design 

features that use the same path of water 

in the highest flow mode. 

* * * * * 

Energy conservation standard means 

any standards meeting the definitions of 

that term in 42 U.S.C. 6291(6) and 42 

U.S.C. 6311(18) as well as any other 

water conservation standards and 

design requirements found in this part 

or parts 430 or 431. 

* * * * * 

§ 430.24 [Removed and Reserved] 

■ 4. Remove and reserve § 430.24. 

■ 5. In § 430.27 revise paragraph (b)(1) 

to read as follows: 

§ 430.27 Petitions for waiver and 

applications for interim waiver. 

* * * * * 

(b)(1) A Petition for Waiver shall be 

submitted either electronically to 

AS_Waiver_Requests@ee.doe.gov or by 

mail, in triplicate, to U.S. Department of 

Energy, Building Technologies Program, 

Test Procedure Waiver, 1000 

Independence Avenue, SW., Mailstop 

EE–2J, Washington, DC 20585–0121. 

Each Petition for Waiver shall: 

* * * * * 

■ 6. In Appendix A to subpart B of part 

430, revise paragraph 5.1 to read as 

follows: 

Appendix A to Subpart B of Part 430— 

Uniform Test Method for Measuring the 

Energy Consumption of Electric 

Refrigerators and Electric RefrigeratorFreezers 

* * * * * 

5. Test Measurements 

5.1 Temperature Measurements. 

Temperature measurements shall be made at 

the locations prescribed in Figures 5.1 and 

5.2 of HRF–1–2008 (incorporated by 

reference; see § 430.3) and shall be accurate 

to within ± 0.5 °F (0.3 °C). No freezer 

temperature measurements need be taken in 

an all-refrigerator model. 

If the interior arrangements of the cabinet 

do not conform with those shown in Figure 

5.1 and 5.2 of HRF–1–2008, the product may 

be tested by relocating the temperature 

sensors from the locations specified in the 

figures to avoid interference with hardware 

or components within the cabinet, in which 

case the specific locations used for the 

temperature sensors shall be noted in the test 

data records maintained by the manufacturer 

in accordance with 10 CFR 429.14, and the 

certification report shall indicate that nonstandard sensor locations were used. 

* * * * * 

■ 7. In Appendix A1 to subpart B of part 

430, revise paragraph 5.1 to read as 

follows: 

Appendix A1 to Subpart B of Part 430— 

Uniform Test Method for Measuring the 

Energy Consumption of Electric 

Refrigerators and Electric RefrigeratorFreezers 

* * * * * 

5. Test Measurements 

5.1 Temperature Measurements. 

Temperature measurements shall be made at 

the locations prescribed in Figures 7.1 and 

7.2 of HRF–1–1979 (incorporated by 

reference; see § 430.3) and shall be accurate 

to within ±0.5 °F (0.3 °C). No freezer 

temperature measurements need be taken in 

an all-refrigerator model. 

If the interior arrangements of the cabinet 

do not conform with those shown in Figure 

7.1 and 7.2 of HRF–1–1979, the product may 

be tested by relocating the temperature 

sensors from the locations specified in the 

figures to avoid interference with hardware 

or components within the cabinet, in which 

case the specific locations used for the 

temperature sensors shall be noted in the test 

data records maintained by the manufacturer 

in accordance with 10 CFR 429.14, and the 

certification report shall indicate that nonstandard sensor locations were used. 

* * * * * 

■ 8. In Appendix B to subpart B of part 

430, revise paragraph 5.1 to read as 

follows: 

Appendix B to Subpart B of Part 430— 

Uniform Test Method for Measuring the 

Energy Consumption of Freezers 

* * * * * 

5. Test Measurements 

5.1 Temperature Measurements. 

Temperature measurements shall be made at 

the locations prescribed in Figure 5–2 of 

HRF–1–2008 (incorporated by reference; see 

§ 430.3) and shall be accurate to within ± 0.5 

°F (0.3 °C). 

If the interior arrangements of the cabinet 

do not conform with those shown in Figure 

5.2 of HRF–1–2008, the product may be 

tested by relocating the temperature sensors 

from the locations specified in the figures to 

avoid interference with hardware or 

components within the cabinet, in which 

case the specific locations used for the 

temperature sensors shall be noted in the test 

data records maintained by the manufacturer 

in accordance with 10 CFR 429.14, and the 

certification report shall indicate that nonstandard sensor locations were used. 

* * * * * 

■ 9. In Appendix B1 to subpart B of part 

430, revise paragraph 5.1 to read as 

follows: 

Appendix B1 to Subpart B of Part 430— 

Uniform Test Method for Measuring the 

Energy Consumption of Freezers 

* * * * * 

5. Test Measurements 

5.1 Temperature Measurements. 

Temperature measurements shall be made at 

the locations prescribed in Figure 7.2 of 

HRF–1–1979 (incorporated by reference; see 

§ 430.3) and shall be accurate to within ±0.5 

°F (0.3 °C). 


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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12503 

If the interior arrangements of the cabinet 

do not conform with those shown in Figure 

7.2 of HRF–1–1979, the product may be 

tested by relocating the temperature sensors 

from the locations specified in the figures to 

avoid interference with hardware or 

components within the cabinet, in which 

case the specific locations used for the 

temperature sensors shall be noted in the test 

data records maintained by the manufacturer 

in accordance with 10 CFR 429.14, and the 

certification report shall indicate that nonstandard sensor locations were used. 

* * * * * 

Subpart F [Removed and Reserved] 

■ 10. Remove and reserve Subpart F, 

consisting of §§ 430.60 through 430.75, 

and Appendix A and B to subpart F of 

part 430. 

PART 431—ENERGY EFFICIENCY 

PROGRAM FOR CERTAIN 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

■ 11. The authority citation for part 431 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6317. 

■ 12. In § 431.2 add the definitions of 

‘‘alternate efficiency determination 

method or AEDM,’’ ‘‘Commercial HVAC 

&WH product,’’ ‘‘Energy conservation 

standard,’’ ‘‘Flue loss,’’ ‘‘Industrial 

equipment,’’ and ‘‘Private labeler,’’ in 

alphabetical order to read as follows: 

§ 431.2 Definitions. 

* * * * * 

Alternate efficiency determination 

method or AEDM means a method of 

calculating the efficiency of a 

commercial HVAC and WH product, in 

terms of the descriptor used in or under 

section 342(a) of the Act to state the 

energy conservation standard for that 

product. 

Commercial HVAC & WH product 

means any small or large commercial 

package air-conditioning and heating 

equipment, packaged terminal air 

conditioner, packaged terminal heat 

pump, commercial packaged boiler, hot 

water supply boiler, commercial warm 

air furnace, instantaneous water heater, 

storage water heater, or unfired hot 

water storage tank. 

* * * * * 

Energy conservation standard means 

any standards meeting the definitions of 

that term in 42 U.S.C. 6291(6) and 42 

U.S.C. 6311(18) as well as any other 

water conservation standards and 

design requirements found in this part 

or parts 430 or 431. 

* * * * * 

Flue loss means the sum of the 

sensible heat and latent heat above room 

temperature of the flue gases leaving the 

appliance. 

* * * * * 

Industrial equipment means an article 

of equipment, regardless of whether it is 

in fact distributed in commerce for 

industrial or commercial use, of a type 

which: 

(1) In operation consumes, or is 

designed to consume energy; 

(2) To any significant extent, is 

distributed in commerce for industrial 

or commercial use; and 

(3) Is not a ‘‘covered product’’ as 

defined in Section 321(2) of EPCA, 42 

U.S.C. 6291(2), other than a component 

of a covered product with respect to 

which there is in effect a determination 

under Section 341(c) of EPCA, 42 U.S.C. 

6312(c). 

* * * * * 

Private labeler means, with respect to 

a commercial HVAC & WH product, an 

owner of a brand or trademark on the 

label of a product which bears a private 

label. A commercial HVAC & WH 

product bears a private label if: 

(1) Such product (or its container) is 

labeled with the brand or trademark of 

a person other than a manufacturer of 

such product; 

(2) The person with whose brand or 

trademark such product (or container) is 

labeled has authorized or caused such 

product to be so labeled; and 

(3) The brand or trademark of a 

manufacturer of such product does not 

appear on such label. 

* * * * * 

■ 13. In § 431.62 revise the definition of 

‘‘Basic model’’ to read as follows: 

§ 431.62 Definitions concerning 

commercial refrigerators, freezers and 

refrigerator-freezers. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

§ 431.65 [Removed] 

■ 14. Section 431.65 is removed. 

■ 15. In § 431.72 add in alphabetical 

order the definition of ‘‘Basic model’’ to 

read as follows: 

§ 431.72 Definitions concerning 

commercial warm air furnaces. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

■ 16. In § 431.82 add in alphabetical 

order the definition of ‘‘Basic model’’ to 

read as follows: 

§ 431.82 Definitions commercial packaged 

boilers. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

■ 17. In § 431.92 add in alphabetical 

order the definition of ‘‘Basic model’’ to 

read as follows: 

§ 431.92 Definitions concerning 

commercial air conditioners and heat 

pumps. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

■ 18. In § 431.102 add in alphabetical 

order the definition of ‘‘Basic model’’ to 

read as follows: 

§ 431.102 Definitions concerning 

commercial water heaters, hot water supply 

boilers, and unfired hot water storage 

tanks. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

■ 19. In § 431.132 revise the definition 

of ‘‘Basic model’’ to read as follows: 

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12504 Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 

§ 431.132 Definitions concerning 

automatic commercial ice makers. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

§ 431.135 [Removed] 

■ 20. Section 431.135 is removed. 

■ 21. In § 431.152 add the definition of 

‘‘Basic model’’ in alphabetical order to 

read as follows: 

§ 431.152 Definitions concerning 

commercial clothes washers. 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

Subpart J [Removed and Reserved] 

■ 22. Remove and reserve Subpart J of 

Part 431, consisting of §§ 431.171 

through 431.176. 

§§ 431.197 and 431.198 [Removed] 

■ 23. Sections 431.197 and 431.198 are 

removed. 

Appendix B to Subpart K of Part 431 

[Removed] 

■ 23a. Appendix B to subpart K of part 

431 is removed. 

■ 24. In § 431.202 revise the definition 

of ‘‘Basic model’’ to read as follows: 

§ 431.202 Definitions concerning 

illuminated exit signs. 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

§ 431.205 [Removed] 

■ 25. Section 431.205 is removed. 

■ 26. In § 431.222 revise the definition 

of ‘‘Basic model’’ to read as follows: 

§ 431.222 Definitions concerning traffic 

signal modules and pedestrian modules. 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

§ 431.225 [Removed] 

■ 27. Section 431.225 is removed. 

■ 28. In § 431.242 add in alphabetical 

order the definition of ‘‘Basic model’’ to 

read as follows: 

§ 431.242 Definitions concerning unit 

heaters. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

■ 29. In § 431.262 revise the definition 

of ‘‘Basic model’’ to read as follows: 

§ 431.262 Definitions concerning 

commercial prerinse spray valves. 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

§ 431.265 [Removed] 

■ 30. Section 431.265 is removed. 

■ 31. In § 431.292 revise the definition 

of ‘‘Basic model’’ to read as follows: 

§ 431.292 Definitions concerning 

refrigerated bottled or canned beverage 

vending machines. 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency. 

* * * * * 

§ 431.295 [Removed] 

■ 32. Section 431.295 is removed. 

■ 33. In § 431.302 add the definitions of 

‘‘Basic model’’ and ‘‘manufacturer of 

walk-in cooler or walk-in freezer’’ in 

alphabetical order to read as follows: 

§ 431.302 Definitions concerning walk-in 

coolers and walk-in freezers. 

Basic model means all components of 

a given type of walk-in cooler or walkin freezer (or class thereof) 

manufactured by one manufacturer, 

having the same primary energy source, 

and which have essentially identical 

electrical, physical, and functional (or 

hydraulic) characteristics that affect 

energy consumption, energy efficiency, 

water consumption, or water efficiency; 

and 

(1) With respect to panels, which do 

not have any differing features or 

characteristics that affect U-factor. 

(2) [Reserved] 

Manufacturer of a walk-in cooler or 

walk-in freezer means any person who: 

(1) Manufactures a component of a 

walk-in cooler or walk-in freezer that 

affects energy consumption, including, 

but not limited to, refrigeration, doors, 

lights, windows, or walls; or 

(2) Manufactures or assembles the 

complete walk-in cooler or walk-in 

freezer. 

* * * * * 

■ 34. In § 431.322 revise the definition 

of ‘‘Basic model’’ to read as follows: 

§ 431.322 Definitions concerning metal 

halide lamp ballasts and fixtures. 

* * * * * 

Basic model means all units of a given 

type of covered product (or class 

thereof) manufactured by one 

manufacturer, having the same primary 

energy source, and which have 

essentially identical electrical, physical, 

and functional (or hydraulic) 

characteristics that affect energy 

consumption, energy efficiency, water 

consumption, or water efficiency, and 

are rated to operate a given lamp type 

and wattage. 

* * * * * 

§ 431.325 [Removed] 

■ 35. Section 431.325 is removed. 

§§ 431.327 through 431.329 [Removed] 

■ 36. Remove §§ 431.327 through 

431.329. 

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Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Rules and Regulations 12505 

Appendices A Through C to Subpart S 

of Part 431 [Removed] 

■ 37. Remove Appendices A through C 

to subpart S of part 431. 

Subpart T [Removed] 

■ 38. Remove Subpart T to part 431, 

consisting of §§ 431.370 through 

431.373, and Appendices A through D 

to subpart T of part 431 is removed. 

■ 39. Revise the heading to Subpart U to 

read as follows: 

Subpart U—Enforcement for Electric 

Motors 

* * * * * 

■ 40. Revise § 431.381 to read as 

follows: 

§ 431.381 Purpose and scope for electric 

motors. 

This subpart describes violations of 

EPCA’s energy conservation 

requirements, specific procedures we 

will follow in pursuing alleged noncompliance of an electric motor with an 

applicable energy conservation standard 

or labeling requirement, and general 

procedures for enforcement action, 

largely drawn directly from EPCA, that 

apply to electric motors. 

■ 41. In § 431.401 revise paragraph 

(b)(1) introductory text to read as 

follows: 

§ 431.401 Petitions for waiver, and 

applications for interim waiver, of test 

procedure. 

* * * * * 

(b) Submission, content, and 

publication. (1) A Petition for Waiver 

shall be submitted either electronically 

to AS_Waiver_Requests@ee.doe.gov or 

by mail, in triplicate, to U.S. 

Department of Energy, Building 

Technologies Program, Test Procedure 

Waiver, 1000 Independence Avenue, 

SW., Mailstop EE–2J, Washington, DC 

20585–0121. Each Petition for Waiver 

shall: 

* * * * * 

■ 42. Revise § 431.403 to read as 

follows: 

§ 431.403 Maintenance of records for 

electric motors. 

(a) Manufacturers of electric motors 

must establish, maintain and retain 

records of the following: 

(1) The test data for all testing 

conducted pursuant to this part; 

(2) The development, substantiation, 

application, and subsequent verification 

of any AEDM used under this part; 

(3) Any written certification received 

from a certification program, including 

a certificate or conformity, relied on 

under the provisions of this part; 

(b) You must organize such records 

and index them so that they are readily 

accessible for review. The records must 

include the supporting test data 

associated with tests performed on any 

test units to satisfy the requirements of 

this part (except tests performed by 

DOE). 

(c) For each basic model, you must 

retain all such records for a period of 

two years from the date that production 

of all units of that basic model has 

ceased. You must retain records in a 

form allowing ready access to DOE, 

upon request. 

■ 43. Revise § 431.404 to read as 

follows: 

§ 431.404 Imported electric motors. 

(a) Under sections 331 and 345 of the 

Act, any person importing an electric 

motor into the United States must 

comply with the provisions of the Act 

and of this part, and is subject to the 

remedies of this part. 

(b) Any electric motor offered for 

importation in violation of the Act and 

of this part will be refused admission 

into the customs territory of the United 

States 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 electric motor upon such terms 

and conditions (including the 

furnishing of a bond) as may appear to 

the Secretary of the Treasury 

appropriate to ensure that such electric 

motor will not violate the Act and this 

part, or will be exported or abandoned 

to the United States. 

■ 44. Revise § 431.405 to read as 

follows: 

§ 431.405 Exported electric motors. 

Under Sections 330 and 345 of the 

Act, this Part does not apply to any 

electric motor if: 

(a) Such electric motor is 

manufactured, sold, or held for sale for 

export from the United States (or such 

electric motor was imported for export), 

unless such electric motor is, in fact, 

distributed in commerce for use in the 

United States; and, 

(b) Such electric motor, when 

distributed in commerce, or any 

container in which it is enclosed when 

so distributed, bears a stamp or label 

stating that such electric motor is 

intended for export. 

■ 45. Revise § 431.406 to read as 

follows: 

§ 431.406 Subpoena—Electric Motors. 

Pursuant to sections 329(a) and 345 of 

the Act, for purposes of carrying out this 

part, the Secretary or the Secretary’s 

designee, may sign and issue subpoenas 

for the attendance and testimony of 

witnesses and the production of 

relevant books, records, papers, and 

other documents, and administer the 

oaths. Witnesses summoned under the 

provisions of this section shall be paid 

the same fees and mileage as are paid to 

witnesses 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 is punishable by such court 

as a contempt thereof. 

■ 46. Revise § 431.407 to read as 

follows: 

§ 431.407 Confidentiality—Electric Motors. 

Pursuant to the provisions of 10 CFR 

1004.11, any manufacturer or private 

labeler of electric motors submitting 

information or data which they believe 

to be confidential and exempt from 

public disclosure should submit one 

complete copy, and 15 copies from 

which the information believed to be 

confidential has been deleted. In 

accordance with the procedures 

established at 10 CFR 1004.11, the 

Department shall make its own 

determination with regard to any claim 

that information submitted be exempt 

from public disclosure. 

[FR Doc. 2011–3146 Filed 3–4–11; 8:45 am] 

BILLING CODE 6450–01–P 

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