```

[Federal Register Volume 76, Number 44 (Monday, March 7, 2011)]
[Rules and Regulations]
[Pages 12422-12505]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3146]

[[Page 12421]]

Vol. 76

Monday,

No. 44

March 7, 2011

Part II

Department of Energy

-----------------------------------------------------------------------

10 CFR Parts 429, 430 and 431

Energy Conservation Program: Certification, Compliance, and Enforcement 
for Consumer Products and Commercial and Industrial Equipment; Final 
Rule

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

[[Page 12422]]

-----------------------------------------------------------------------

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 Sec. Sec.  
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 Sec. Sec.  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 Sec.  
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 Sec.  
429.104.
    Copies of ISO/IEC 17025:2005(E) are available from the 
International Standards Organziation1, 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.

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

[[Page 12423]]

    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\
---------------------------------------------------------------------------

    \1\ For 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.
---------------------------------------------------------------------------

    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 non-
proprietary 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, custom-built products or where adequate 
laboratory facilities are unavailable. Thus, today's rule adopts an 
alternative approach to enforcement testing in such exceptional cases--
allowing DOE-witnessed testing at the manufacturer's lab and/or reduced 
sample sizes--to permit effective enforcement testing without imposing 
unreasonable burdens on manufacturers.

[[Page 12424]]

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 self-certification 
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 re-testing, 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

[[Page 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) product-specific 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

[[Page 12426]]

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 non-regulatory 
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, air-conditioning, 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 product-
specific. 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

[[Page 12427]]

     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-
by-product 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 third-party 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

[[Page 12428]]

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

[[Page 12429]]

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 non-compliant. 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

[[Page 12430]]

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 non-compliant 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

[[Page 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-   10 CFR 429.14..........................  10 CFR 430.24(a)-(b).
 freezers and freezers.
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    10 CFR 429.23..........................  10 CFR 430.24(i).
 ovens, microwave ovens.
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,         10 CFR 429.27..........................  10 CFR 430.24(r).
 general service incandescent lamps, and
 incandescent reflector lamps.
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        10 CFR 429.35..........................  10 CFR 430.24(y).
 fluorescent lamps.
                                          ----------------------------------------------------------------------
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     10 CFR 429.40..........................  New per EISA 2007.
 intermediate base incandescent lamps.
                                          ----------------------------------------------------------------------
Electric motors..........................                        No change. (10 CFR 431.17)
                                          ----------------------------------------------------------------------
Commercial refrigerators, freezers, and    10 CFR 429.42..........................  10 CFR 431.65.
 refrigerator-freezers.
                                          ----------------------------------------------------------------------
Commercial heating, ventilating, air-      10 CFR 429.43..........................  10 CFR 431.173 through 10
 conditioning (HVAC) equipment.                                                      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 Sec.   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      10 CFR 429.49..........................  10 CFR 431.225.
 modules.
                                          ----------------------------------------------------------------------
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    10 CFR 429.52..........................  10 CFR 431.295.
 vending machines.
                                          ----------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

[[Page 12432]]

    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 product-specific 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 
air-conditioning 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 in-house 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 third-party 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)

[[Page 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

[[Page 12434]]

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 case-by-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,

[[Page 12435]]

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 pre-manufactured, 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-to-order 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 built-to-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, built-to-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-size-fits-
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

[[Page 12436]]

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 low-volume or built-to-order. To accommodate these 
circumstances and reduce burden on manufacturers, DOE proposed to 
modify the existing sampling procedures to account for low-volume 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-to-order. 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 low-volume 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-to-order products, DOE proposed that it would determine the 
most reliable method of selecting units that are

[[Page 12437]]

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

[[Page 12438]]

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, due-process 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 manufacturer-elected 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

[[Page 12439]]

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 third-party 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.

[[Page 12440]]

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 under-representation 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.

[[Page 12441]]

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,

[[Page 12442]]

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 
walk-in 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,

[[Page 12443]]

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 U-value 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 walk-ins. (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

[[Page 12444]]

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 component-based 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 non-energy 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

[[Page 12445]]

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 R-value, but NEEA suggested that 
basic models be defined on the basis of various factors including foam 
type, panel thickness, panel skin type(s),

[[Page 12446]]

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 
dry-type, 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.

[[Page 12447]]

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).

[[Page 12448]]

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
----------------------------------------------------------------------------------------------------------------
                                                                              NAICS definition
                                                                                  of small       Total number of
         Covered product or covered equipment type             NAICS code       manufacturer          small
                                                                                 (number of       manufacturers
                                                                                 employees)
----------------------------------------------------------------------------------------------------------------
Residential refrigerators, residential refrigerator-                  335222            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

[[Page 12451]]

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, air-conditioning (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.

[[Page 12452]]

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

Sec.  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 Sec.  431.12, 
and all references to ``covered equipment'' in this part exclude such 
motors.

Sec.  429.2  Definitions.

    (a) The definitions found in Sec. Sec.  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.

Sec.  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 Sec.  
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 Sec.  
429.110.
    (2) [Reserved]

Sec.  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.

Sec.  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.

Sec.  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 Sec.  
429.19(b)(13).
    (b) Pursuant to the provisions of 10 CFR 1004.11(e), any person 
submitting

[[Page 12453]]

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.

Sec.  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

Sec.  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.

Sec.  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 Sec. Sec.  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 Sec. Sec.  429.14 through 429.54 of this subpart); and

Sec.  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 Sec.  430.27 or Sec.  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 Sec. Sec.  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;

[[Page 12454]]

    (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:

------------------------------------------------------------------------
                                                      Deadline  for data
                  Product category                         submission
------------------------------------------------------------------------
Fluorescent lamp ballasts, Medium base compact        Mar. 1.
 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.
Residential water heater, Residential furnaces,       May 1
 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.
Residential dishwashers, Commercial prerinse spray    June 1.
 valves, Illuminated exit signs, Traffic signal
 modules, Pedestrian modules, and Distribution
 transformers.
Room air conditioners, Residential central air        July 1.
 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.
Residential refrigerators, Residential refrigerators- Aug. 1.
 freezers, Residential freezers, Commercial
 refrigerator, freezer, and refrigerator-freezer,
 Automatic commercial automatic ice makers,
 Refrigerated bottled or canned beverage vending
 machine, Walk-in coolers, and Walk-in freezers.
Torchieres, Residential dehumidifiers, Metal halide   Sept. 1.
 lamp fixtures, and External power supplies.
Residential clothes washers, Residential clothes      Oct. 1.
 dryers, Residential direct heating equipment,
 Residential cooking products, and Commercial
 clothes washers.
------------------------------------------------------------------------

     (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.

Sec.  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.

Sec.  429.14  Residential refrigerators, refrigerator-freezers and 
freezers.

    (a) Sampling plan for selection of units for testing.

[[Page 12455]]

    (1) The requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.003
    

or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.004

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.005
    

or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.006

    (b) Certification reports.
    (1) The requirements of Sec.  429.12 are applicable to residential 
refrigerators, refrigerator-freezers and freezers; and
    (2) Pursuant to Sec.  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 Sec.  429.12(b)(13), a certification report shall 
include the following additional product-specific

[[Page 12456]]

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 anti-sweat 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.

Sec.  429.15  Room air conditioners.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.007
    

or,

    (B) The upper 97\1/2\; percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.008

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.009
    

or,

    (B) The lower 97\1/2\; percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.010

[[Page 12457]]

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to room air conditioners; and
    (2) Pursuant to Sec.  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 Watt-hour (Btu/W-
h)), cooling capacity in British thermal units per hour (Btu/h), and 
the electrical power input in watts (W).

Sec.  429.16  Central air conditioners and heat pumps.

    (a) Sampling plan for selection of units for testing. (1) The 
general requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.011
    

Or,

    (2) The upper 90 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.012

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.013
    

Or,

    (2) The lower 90 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:

[[Page 12458]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.014

    (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 
condenser-evaporator 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 mini-split 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 non-ducted 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 condenser-evaporator 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 unit-indoor 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 Sec.  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 Sec.  429.12 are 
applicable to central air conditioners and heat pumps; and
    (2) Pursuant to Sec.  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

[[Page 12459]]

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 Watt-hour (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 Sec.  
429.70 of this subpart.

Sec.  429.17  Residential water heaters.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.015
    
    Or,
    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.016

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.017
    
    Or,
    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.018

[[Page 12460]]

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to residential water heaters; and
    (2) Pursuant to Sec.  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).

Sec.  429.18  Residential furnaces.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.019
    
    Or,
    (2) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.020

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.021
    
    Or,
    (2) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.022

[[Page 12461]]

    (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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.023
    
    Or,
    (2) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.024

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.025
    
    Or,
    (2) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.026

    (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:

[[Page 12462]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.027

    Or,
    (2) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.028

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.029
    
    Or,
    (2) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.030

    (iv) For each basic model or capacity other than the highest or 
lowest of the group of basic models of sectional cast-iron 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:

[[Page 12463]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.031

    Or,
    (ii) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.032

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.033
    
    Or,
    (ii) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.034

    (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

[[Page 12464]]

of the capacities of the units of the sample.
    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to residential furnaces; and
    (2) Pursuant to Sec.  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 Sec.  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.

Sec.  429.19  Dishwashers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.035
    
    Or,
    (B) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.036

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.037
    
    Or,
    (B) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:

[[Page 12465]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.038

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to dishwashers; and
    (2) Pursuant to Sec.  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 Sec.  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 Sec.  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 
([deg]F).

Sec.  429.20  Residential clothes washers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.039
    
    Or,
    (B) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.040

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.041
    
    Or,
    (B) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:

[[Page 12466]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.042

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to residential clothes washers; and
    (2) Pursuant to Sec.  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).

Sec.  429.21  Residential clothes dryers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.043
    
    Or,
    (B) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.044

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.045
    
    Or,
    (B) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:

[[Page 12467]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.046

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to clothes dryers; and
    (2) Pursuant to Sec.  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).

Sec.  429.22  Direct heating equipment.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.047
    
    Or,
    (2) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.048

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.049
    
    Or,
    (2) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:

[[Page 12468]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.050

    (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 Sec.  429.12 are 
applicable to direct heating equipment; and
    (2) Pursuant to Sec.  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 Sec.  430.2 must 
report no later than April 16, 2013.

Sec.  429.23  Conventional cooking tops, conventional ovens, microwave 
ovens.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.051
    
    Or,
    (B) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.052

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.053
    

[[Page 12469]]

    Or,
    (B) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.054

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to conventional cooking tops, conventional ovens and 
microwave ovens; and
    (2) Pursuant to Sec.  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.

Sec.  429.24  Pool heaters.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.055
    
    Or,
    (ii) The lower 97\1/2\ percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.056

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to pool heaters; and
    (2) Pursuant to Sec.  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).

Sec.  429.25  Television sets. [Reserved]

Sec.  429.26  Fluorescent lamp ballasts.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:

[[Page 12470]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.057

    Or,
    (B) The upper 99 percent confidence limit (UCL) of the true mean 
divided by 1.01, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.058

    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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.059
    

Or,

    (B) The lower 99 percent confidence limit (LCL) of the true mean 
divided by 0.99, where
[GRAPHIC] [TIFF OMITTED] TR07MR11.060

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to fluorescent lamp ballasts; and
    (2) Pursuant to Sec.  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.

Sec.  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 Sec.  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

[[Page 12471]]

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.061
    
    Or,
    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by .97, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.062

    (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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.063
    
    Or,
    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by .97, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.064

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to general service fluorescent lamps, general service 
incandescent lamps and incandescent reflector lamps; and
    (2) Pursuant to Sec.  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),

[[Page 12472]]

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 Sec.  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 Sec.  429.71.

Sec.  429.28  Faucets.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.065
    
    Or,
    (ii) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.066

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to faucets; and
    (2) Pursuant to Sec.  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).

Sec.  429.29  Showerheads.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.067
    
    Or,
    (ii) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:

[[Page 12473]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.068

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to showerheads; and
    (2) Pursuant to Sec.  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 Sec.  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.

Sec.  429.30  Water closets.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.069
    
    Or,
    (ii) The upper 90 percent confidence limit (UCL) of the true mean 
divided by 1.1, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.070

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to water closets; and
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: The maximum 
water use in gallons per flush (gpf).

Sec.  429.31  Urinals.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.071
    

[[Page 12474]]

    Or,
    (ii) The upper 90 percent confidence limit (UCL) of the true mean 
divided by 1.1, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.072

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to urinals; and
    (2) Pursuant to Sec.  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).

Sec.  429.32  Ceiling fans.

    (a) Sampling plan for selection of units for testing. The 
requirements of Sec.  429.11 are applicable to ceiling fans.
    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to ceiling fans; and
    (2) Pursuant to Sec.  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.

Sec.  429.33  Ceiling fan light kits.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.073
    
    Or,
    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.1, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.074

    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:

[[Page 12475]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.075

    Or,
    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.9, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.076

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to ceiling fan light kits; and
    (2) Pursuant to Sec.  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 pin-based 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 Sec.  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).

Sec.  429.34  Torchieres.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  429.11 are applicable to torchieres; and
    (2) Reserved
    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to torchieres; and
    (2) Pursuant to Sec.  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).

Sec.  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 Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.077
    

Or,

    (B) The lower 97.5 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:

[[Page 12476]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.078

    (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 Sec.  429.12 are 
applicable to bare of covered medium base compact fluorescent lamps; 
and
    (2) Pursuant to Sec.  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 Sec.  429.71.

Sec.  429.36  Dehumidifiers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.079
    

Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.080

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:

[[Page 12477]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.081

Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.082

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to dehumidifiers; and
    (2) Pursuant to Sec.  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.

Sec.  429.37  Class A external power supplies.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.083
    

Or,

    (B) The upper 97.5 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.084

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:

[[Page 12478]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.085

Or,

    (B) The lower 97.5 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.086

    (b) Certification reports. (1) The requirements of Sec.  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 Sec.  429.12(b)(6), report the 
individual manufacturer's model numbers covered by the design family.
    (2) Pursuant to Sec.  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).

Sec.  429.38  Non-class A external power supplies. [Reserved]

Sec.  429.39  Battery chargers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.087
    

Or,

    (B) The upper 97.5 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:

[[Page 12479]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.088

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.089
    

Or,

    (B) The lower 97.5 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.090

    (b) Certification reports. [Reserved]

Sec.  429.40  Candelabra base incandescent lamps and intermediate base 
incandescent lamps.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.091
    

Or,

    (ii) The lower 97.5 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:

[[Page 12480]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.092

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to candelabra base and intermediate base incandescent lamps; 
and
    (2) Pursuant to Sec.  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).

Sec.  429.41  Electric motors. [Reserved]

Sec.  429.42  Commercial refrigerators, freezers, and refrigerator-
freezers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  429.11 are applicable to commercial 
refrigerators, freezers, and refrigerator-freezers; 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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.093
    

Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.094

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.095
    

[[Page 12481]]

Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.096

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to commercial refrigerators, freezers, and refrigerator-
freezers; and
    (2) Pursuant to Sec.  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 (ft\3\).
    (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 (ft\3\).
    (iii) Remote condensing commercial refrigerators, freezers, and 
refrigerator-freezers, self-contained commercial refrigerators, 
freezers, and refrigerator-freezers without doors, commercial ice-cream 
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 
(ft\2\) or the chilled volume in cubic feet (ft\3\) as necessary to 
demonstrate compliance with the standards set forth in Sec.  431.66, 
the rating temperature in degrees Fahrenheit ([deg]F), the operating 
temperature range in degrees Fahrenheit (e.g., >=32[deg]F, 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 Sec.  431.87 and the maximum rated input 
capacity in British thermal units per hour (Btu/h).
    (iii) Commercial package air-conditioning 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 Sec.  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 Watt-hour(Btu/Wh)) as necessary to 
meet the standards set forth in Sec.  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 Watt-hour (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

[[Page 12483]]

(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 Sec.  429.70 of this 
subpart.

Sec.  429.44  Commercial water heating equipment.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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 Sec. Sec.  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 Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.101
    

Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.102

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.103
    

Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:

[[Page 12484]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.104

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to commercial WH equipment; and
    (2) Pursuant to Sec.  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 oil-fired 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 Sec.  429.70 of this 
subpart.

Sec.  429.45  Automatic commercial ice makers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.105
    

Or,
    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.106

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:

[[Page 12485]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.107

Or,
    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.108

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to automatic commercial ice makers; and
    (2) Pursuant to Sec.  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.

Sec.  429.46  Commercial clothes washers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.109
    
    Or,
    (B) The upper 97\1/2\ percent confidence limit (UCL) of the true 
mean divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.110

    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:

[[Page 12486]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.111

    Or,
    (B) The lower 97\1/2\; percent confidence limit (LCL) of the true 
mean divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.112

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to commercial clothes washers; and
    (2) Pursuant to Sec.  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.

Sec.  429.47  Distribution transformers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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 Sec.  431.193 
and the provisions of this section, or by application of an AEDM that 
meets the requirements of Sec.  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 Sec.  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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.113

    (b) Certification reports. (1) The requirements of Sec.  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 Sec.  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 dry-types).
    (c) Alternative methods for determining efficiency or energy use 
for distribution transformers can be found in Sec.  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., low-voltage dry-type, 
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 to96 kV BIL).

Sec.  429.48  Illuminated exit signs.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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

[[Page 12487]]

values shall be greater than or equal to the higher of:
    (A) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.114
    

Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where
[GRAPHIC] [TIFF OMITTED] TR07MR11.115

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.116
    

Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where
[GRAPHIC] [TIFF OMITTED] TR07MR11.117

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to illuminated exit signs; and
    (2) Pursuant to Sec.  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.

Sec.  429.49  Traffic signal modules and pedestrian modules.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  429.11 are applicable to traffic signal modules 
and pedestrian modules; and

[[Page 12488]]

    (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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.118
    

Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.119

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.120
    

Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.121

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to traffic signal modules and pedestrian modules; and
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: The maximum 
wattage at 74 degrees Celsius ([deg]C) in watts (W), the nominal 
wattage at 25 degrees Celsius ([deg]C) in watts (W), and the signal 
type.

Sec.  429.50  Commercial unit heaters.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  429.11 are applicable to commercial unit heaters; 
and
    (2) [Reserved]

[[Page 12489]]

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to commercial unit heaters; and
    (2) Pursuant to Sec.  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.

Sec.  429.51  Commercial pre-rinse spray valves.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.122
    

Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.123

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.124
    

Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.125

[[Page 12490]]

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to commercial pre-rinse spray valves; and
    (2) Pursuant to Sec.  429.12(b)(13), a certification report shall 
include the following public product-specific information: The flow 
rate in gallons per minute (gpm).

Sec.  429.52  Refrigerated bottled or canned beverage vending machines.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.126
    

Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.127

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.128
    

Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TR07MR11.129

[[Page 12491]]

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to refrigerated bottled or canned beverage vending machine; 
and
    (2) Pursuant to Sec.  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 (ft\3\) used to demonstrate 
compliance with standards set forth in Sec.  431.296, the ambient 
temperature in degrees Fahrenheit ([deg]F), and the ambient relative 
humidity in percent (%) during the test.

Sec.  429.53  Walk-in coolers and walk-in freezers.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  429.11 are applicable to walk-in coolers and 
freezers; and
    (2) [Reserved]
    (b) Certification reports. (1) The requirements of Sec.  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 Sec.  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, triple-pane glass with gas fill), and the power draw of the 
antisweat heater in watts.

Sec.  429.54  Metal halide lamp ballasts and fixtures.

    (a) Sampling plan for selection of units for testing. (1) The 
requirements of Sec.  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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.130
    

Or,

    (B) The lower 99-percent confidence limit (LCL) of the true mean 
divided by 0.99.
[GRAPHIC] [TIFF OMITTED] TR07MR11.131

    (b) Certification reports. (1) The requirements of Sec.  429.12 are 
applicable to metal halide lamp ballasts; and
    (2) Pursuant to Sec.  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 probe-start, and non-
pulse start electronic).

Sec.  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 Sec. Sec.  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

[[Page 12492]]

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 Sec. Sec.  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 Sec.  431.173(b), and either Sec.  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 liquid-immersed 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 Sec.  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;
---------------------------------------------------------------------------

    \1\ When 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.
---------------------------------------------------------------------------

    (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

[[Page 12493]]

    (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 Sec.  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 vapor-compression 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 Sec.  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 DOE-approved 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 Sec.  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 Sec.  
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 cyclic-degradation 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 non-ducted systems) 
must be stated in the documentation.
    (C) Complete test data from laboratory tests on four mixed (i.e., 
non-highest-sales-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 Sec.  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 ``high-capacity mixed systems.'' A mixed 
system indoor coil may come from the same coil family as the highest-
sales-volume-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 split-system central air 
conditioners and heat pumps. If a manufacturer has a DOE-approved 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 coil-only 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 Sec.  429.16(a)(2)(ii)(B)(1) and paragraph 
(e)(1) of this section must submit a

[[Page 12494]]

request for DOE to review the ARM when:
    (i) DOE amends the energy conservation standards as specified in 
Sec.  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 Sec.  430.32. Re-approval 
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 Sec.  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 state-registered 
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 Sec.  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.

Sec.  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 Sec.  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]
----------------------------------------------------------------------------------------------------------------
                                                                        Confidence Interval
      Degrees of freedom  (from Appendix D)      ---------------------------------------------------------------
                                                        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

Sec.  429.100  Purpose and scope.

    This subpart describes the enforcement authority of DOE to ensure 
compliance with the conservation standards and regulations.

Sec.  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 Sec.  429.12 and Sec. Sec.  429.14 through 
429.54;
    (2) Failure to test any covered product or covered equipment 
subject to an

[[Page 12495]]

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.

Sec.  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).

Sec.  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.

Sec.  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 Sec.  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-to-order 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.

[[Page 12496]]

    (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 
Sec.  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 High-Volume 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 Low-Volume 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.

Sec.  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

[[Page 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.

Sec.  429.116  Additional certification testing requirements.

    Pursuant to Sec.  429.102(b)(2), if DOE determines that 
independent, third-party 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.

Sec.  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.

Sec.  429.120  Maximum civil penalty.

    Any person who knowingly violates any provision of Sec.  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 Sec.  429.102(a)(1) with respect to 
failure to certify, and as to Sec.  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 Sec.  429.102(a)(1), (3), and (4), each day of 
noncompliance shall constitute a separate violation for each basic 
model at issue.

Sec.  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 
Sec.  429.128 (in lieu of those of Sec.  429.126) apply with respect to 
the penalty.

Sec.  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 Sec.  429.126 of this part; or
    (2) Elect to have the procedures of Sec.  429.128 apply.
    (b) Any election to have the procedures of Sec.  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 
Sec.  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 Sec.  429.126.

Sec.  429.126  Administrative law judge hearing and appeal.

    (a) When elected pursuant to Sec.  429.124, DOE shall refer a civil 
penalty action brought under Sec.  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.

Sec.  429.128  Immediate issuance of order assessing civil penalty.

    (a) If the respondent elects to forgo an agency hearing pursuant to 
Sec.  429.124, the General Counsel (or delegee) shall issue an order 
assessing the civil penalty proposed in the notice of proposed penalty 
under Sec.  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.

Sec.  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 Sec.  429.126 or 
after the appropriate District Court has entered final judgment in 
favor of the Department under Sec.  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.

Sec.  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

[[Page 12498]]

exercised at any time prior to a final decision by the United States 
Court of Appeals if Sec.  429.126 procedures are utilized, or prior to 
a final decision by the United States District Court, if Sec.  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 Sec.  
429.57(e)(1)(i).
    (b) Compute the mean of the measured energy performance 
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.132

    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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.133

    (d) Compute the standard error (sx1) of the measured 
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.134

    (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 x1x
[GRAPHIC] [TIFF OMITTED] TR07MR11.135

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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.136

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

[[Page 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 n21>= 
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 n211, 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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.137

    (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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.138

    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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.139

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 x22, 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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.140

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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.141

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 n211, 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 
n21 > 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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.142

    (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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.143

    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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.144

where the t-statistic has the value obtained in (f)(1).

[[Page 12500]]

    (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 22, 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 Sec.  429.57(e)(1)(ii).
    (b) Compute the mean of the measured energy performance 
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.145

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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.146

    (d) Compute the standard error (sx1) of the measured 
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.147

    (e)(1) For an energy efficiency standard (EES), determine the 
appropriate lower control limit (LCL1) according to:
[GRAPHIC] [TIFF OMITTED] TR07MR11.148

    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:

[[Page 12501]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.149

    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 Sec.  
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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.150

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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.151

    (3) Compute the standard error (SE(X1)) of the mean 
efficiency of the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.152

    (4) Compute the sample size discount (SSD(m1)) as 
follows:
[GRAPHIC] [TIFF OMITTED] TR07MR11.153

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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.154

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:
    [GRAPHIC] [TIFF OMITTED] TR07MR11.155
    
    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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.156

    (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:
[GRAPHIC] [TIFF OMITTED] TR07MR11.157

    (Note that S1 is the value obtained above in (2).)
    (10) Set the lower control limit (LCL2) to,

[[Page 12502]]

[GRAPHIC] [TIFF OMITTED] TR07MR11.158

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

0
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.

0
3. In Sec.  430.2 revise the definitions of ``Act,'' ``basic model,'' 
and ``Energy conservation standard'' to read as follows:

Sec.  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.
* * * * *

Sec.  430.24  [Removed and Reserved]

0
4. Remove and reserve Sec.  430.24.

0
5. In Sec.  430.27 revise paragraph (b)(1) to read as follows:

Sec.  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:
* * * * *

0
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 
Refrigerator-Freezers

* * * * *

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 Sec.  430.3) and shall be 
accurate to within  0.5 [deg]F (0.3 [deg]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 non-
standard sensor locations were used.
* * * * *

0
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 
Refrigerator-Freezers

* * * * *

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 Sec.  430.3) and shall be 
accurate to within 0.5 [deg]F (0.3 [deg]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 non-
standard sensor locations were used.
* * * * *

0
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 Sec.  430.3) and shall be accurate 
to within  0.5 [deg]F (0.3 [deg]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 non-standard sensor 
locations were used.
* * * * *

0
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 Sec.  430.3) and shall be accurate 
to within 0.5 [deg]F (0.3 [deg]C).

[[Page 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 non-standard sensor 
locations were used.
* * * * *

Subpart F [Removed and Reserved]

0
10. Remove and reserve Subpart F, consisting of Sec. Sec.  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

0
11. The authority citation for part 431 continues to read as follows:

    Authority: 42 U.S.C. 6291-6317.

0
12. In Sec.  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:

Sec.  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.
* * * * *

0
13. In Sec.  431.62 revise the definition of ``Basic model'' to read as 
follows:

Sec.  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.
* * * * *

Sec.  431.65  [Removed]

0
14. Section 431.65 is removed.

0
15. In Sec.  431.72 add in alphabetical order the definition of ``Basic 
model'' to read as follows:

Sec.  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.
* * * * *

0
16. In Sec.  431.82 add in alphabetical order the definition of ``Basic 
model'' to read as follows:

Sec.  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.
* * * * *

0
17. In Sec.  431.92 add in alphabetical order the definition of ``Basic 
model'' to read as follows:

Sec.  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.
* * * * *

0
18. In Sec.  431.102 add in alphabetical order the definition of 
``Basic model'' to read as follows:

Sec.  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.
* * * * *

0
19. In Sec.  431.132 revise the definition of ``Basic model'' to read 
as follows:

[[Page 12504]]

Sec.  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.
* * * * *

Sec.  431.135  [Removed]

0
20. Section 431.135 is removed.

0
21. In Sec.  431.152 add the definition of ``Basic model'' in 
alphabetical order to read as follows:

Sec.  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]

0
22. Remove and reserve Subpart J of Part 431, consisting of Sec. Sec.  
431.171 through 431.176.

Sec. Sec.  431.197 and 431.198  [Removed]

0
23. Sections 431.197 and 431.198 are removed.

Appendix B to Subpart K of Part 431 [Removed]

0
23a. Appendix B to subpart K of part 431 is removed.

0
24. In Sec.  431.202 revise the definition of ``Basic model'' to read 
as follows:

Sec.  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.
* * * * *

Sec.  431.205  [Removed]

0
25. Section 431.205 is removed.

0
26. In Sec.  431.222 revise the definition of ``Basic model'' to read 
as follows:

Sec.  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.
* * * * *

Sec.  431.225  [Removed]

0
27. Section 431.225 is removed.

0
28. In Sec.  431.242 add in alphabetical order the definition of 
``Basic model'' to read as follows:

Sec.  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.
* * * * *

0
29. In Sec.  431.262 revise the definition of ``Basic model'' to read 
as follows:

Sec.  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.
* * * * *

Sec.  431.265  [Removed]

0
30. Section 431.265 is removed.

0
31. In Sec.  431.292 revise the definition of ``Basic model'' to read 
as follows:

Sec.  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.
* * * * *

Sec.  431.295  [Removed]

0
32. Section 431.295 is removed.

0
33. In Sec.  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:

Sec.  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 walk-in 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.
* * * * *

0
34. In Sec.  431.322 revise the definition of ``Basic model'' to read 
as follows:

Sec.  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.
* * * * *

Sec.  431.325  [Removed]

0
35. Section 431.325 is removed.

Sec. Sec.  431.327 through 431.329  [Removed]

0
36. Remove Sec. Sec.  431.327 through 431.329.

[[Page 12505]]

Appendices A Through C to Subpart S of Part 431 [Removed]

0
37. Remove Appendices A through C to subpart S of part 431.

Subpart T [Removed]

0
38. Remove Subpart T to part 431, consisting of Sec. Sec.  431.370 
through 431.373, and Appendices A through D to subpart T of part 431 is 
removed.

0
39. Revise the heading to Subpart U to read as follows:

Subpart U--Enforcement for Electric Motors

* * * * *

0
40. Revise Sec.  431.381 to read as follows:

Sec.  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 
non-compliance 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.

0
41. In Sec.  431.401 revise paragraph (b)(1) introductory text to read 
as follows:

Sec.  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:
* * * * *

0
42. Revise Sec.  431.403 to read as follows:

Sec.  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.

0
43. Revise Sec.  431.404 to read as follows:

Sec.  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.

0
44. Revise Sec.  431.405 to read as follows:

Sec.  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.

0
45. Revise Sec.  431.406 to read as follows:

Sec.  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.

0
46. Revise Sec.  431.407 to read as follows:

Sec.  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
```