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[Federal Register Volume 79, Number 187 (Friday, September 26, 2014)]
[Proposed Rules]
[Pages 57842-57850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22890]

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DEPARTMENT OF ENERGY

10 CFR Parts 429

[Docket No. EERE-2011-BT-TP-0024]
RIN 1904-AC46

Energy Conservation Program: Alternative Efficiency Determination 
Methods, Basic Model Definition, and Compliance for Commercial HVAC, 
Refrigeration, and Water Heating Equipment

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Energy (DOE) is proposing to revise its 
regulations governing DOE verification testing of industrial equipment 
covered by EPCA rated with alternative efficiency determination methods 
(AEDMs). These regulations arose from a negotiated rulemaking effort on 
issues regarding certification of commercial heating, ventilating, air-
conditioning (HVAC), water heating (WH), and refrigeration equipment.

DATES: Comments: DOE will accept comments, data, and information 
regarding this supplemental notice of proposed rulemaking (SNOPR) no 
later than October 27, 2014. See section IV, ``Public Participation,'' 
for details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at www.regulations.gov. Alternatively, 
interested persons may submit comments, identified by docket number 
EERE-2011-BT-TP-0024 and/or RIN 1904-AC46, by any of the following 
methods:
     Email: AED-ARM-2011-TP-0024@ee.doe.gov Include EERE-2011-
BT-TP-0024 and/or RIN 1904-AC46 in the subject line of the message. 
Submit electronic comments in WordPerfect, Microsoft Word, PDF, or 
ASCII file format, and avoid the use of special characters or any form 
of encryption.
     Postal Mail: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence 
Avenue SW., Washington, DC 20585- 0121. If possible, please submit all 
items on a compact disc (CD), in which case it is not necessary to 
include printed copies.
     Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., 6th 
Floor, Washington, DC 20024. Telephone: (202) 586-2945. If possible, 
please submit all items on a CD, in which case it is not necessary to 
include printed copies.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see section IV of this document 
(Public Participation).
    Docket: The docket is available for review at www.regulations.gov, 
including Federal Register notices, public meeting attendee lists and 
transcripts, comments, and other supporting documents/materials. All 
documents in the docket are listed in the www.regulations.gov index. 
However, not all documents listed in the index may be publicly 
available, such as information that is exempt from public disclosure.
    A link to the docket Web page can be found at: http://www.regulations.gov/#!docketDetail;D=EERE-2011-BT-TP-0024. This Web 
page contains a link to the docket for this notice on the 
www.regulations.gov site. The www.regulations.gov Web page contains 
simple instructions on how to access all documents, including public 
comments, in the docket. See section V, ``Public Participation,'' for 
information on how to submit comments through www.regulations.gov.
    For information on how to submit a comment or review other public 
comments and the docket, contact Ms. Brenda Edwards at (202) 586-2945 
or by email: Brenda.Edwards@ee.doe.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, 
DC 20585-0121. Email: Ashley.Armstrong@ee.doe.gov; and Ms. Laura 
Barhydt, U.S. Department of Energy, Office of the General Counsel, 
Forrestal Building, GC-32, 1000 Independence Avenue SW., Washington, DC 
20585. Email: Laura.Barhydt@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Authority and Background

[[Page 57843]]

    A. Authority
    B. Background
II. Discussion of Specific Revisions to DOE's Regulations for 
Alternative Efficiency Determination Methods Verification Testing
III. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under Section 32 of the Federal Energy Administration 
Act of 1974
IV. Public Participation
V. Approval of the Office of the Secretary

I. Authority and Background

Authority

    Title III of the Energy Policy and Conservation Act of 1975, as 
amended (``EPCA'' or, in context, ``the Act'') sets forth a variety of 
provisions designed to improve energy efficiency. Part A of Title III 
(42 U.S.C. 6291-6309) provides for the Energy Conservation Program for 
Consumer Products Other Than Automobiles. The National Energy 
Conservation Policy Act (NECPA), 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\ The 
Department of Energy (``DOE'') is charged with implementing these 
provisions.
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    \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.
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    Under EPCA, this program consists essentially of four parts: (1) 
Testing; (2) labeling; (3) Federal energy conservation standards; and 
(4) certification and enforcement procedures. The Federal Trade 
Commission (FTC) is primarily responsible for labeling of consumer 
products, and DOE implements the remainder of the program. The testing 
requirements consist of test procedures that manufacturers of covered 
products and equipment must use (1) as the basis for certifying to DOE 
that their products comply with the applicable energy conservation 
standards adopted under EPCA, and (2) for making representations about 
the efficiency of those products and equipment. Similarly, DOE must use 
these test requirements to determine whether the products comply with 
any relevant standards promulgated under EPCA. For certain consumer 
products and industrial equipment, DOE's existing testing regulations 
allow the use of an alternative efficiency determination method (AEDM) 
or an alternative rating method (ARM), in lieu of actual testing, to 
simulate the energy consumption or efficiency of certain basic models 
of covered products under DOE's test procedure conditions.
    In addition, EPCA (through 42 U.S.C. 6299-6305 and 6316) authorizes 
DOE to enforce compliance with the energy and water conservation 
standards (all 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 429; 10 CFR part 431, 
subparts B, U, and V.

Background

    On March 7, 2011, DOE published a final rule in the Federal 
Register that, among other things, modified the requirements regarding 
manufacturer submission of compliance statements and certification 
reports to DOE (hereafter referred to as the March 2011 Final Rule). 76 
FR 12422. This rule, among other things, imposed new or revised 
reporting requirements for some types of covered products and 
equipment, including a requirement that manufacturers submit annual 
reports to the Department certifying compliance of their basic models 
with applicable standards. See 76 FR 12428-12429 for more information.
    In response to the initial deadline for certifying compliance 
imposed on commercial heating, ventilation, and air conditioning 
(HVAC), water heating (WH), and refrigeration equipment manufacturers 
by the March 2011 Final Rule, certain manufacturers of particular types 
of commercial and industrial equipment stated that, for a variety of 
reasons, they would be unable to meet that deadline. DOE initially 
extended the deadline for certifications for commercial HVAC, WH, and 
refrigeration equipment in a final rule published June 30, 2011 
(hereafter referred to as the June 2011 Final Rule). 76 FR 38287. DOE 
subsequently extended the compliance date for certification by an 
additional 12 months to December 31, 2013, for these types of equipment 
(December 2012 Final Rule) to allow, among other things, the Department 
to explore the negotiated rulemaking process for this equipment. 77 FR 
76825 (Dec. 31, 2012).
    Earlier, in the summer of 2012, DOE had an independent convener 
evaluate the likelihood of success of using the negotiated rulemaking 
process to develop a consensus-based approach with respect to the 
regulation of commercial HVAC, WH, and refrigeration equipment by 
analyzing the feasibility of developing certification requirements for 
these equipment types.\2\ In October 2012, the convener issued his 
report based on a confidential interview process involving forty (40) 
parties from a wide range of commercial HVAC, WH, and refrigeration 
equipment interests. Ultimately, the convener recommended that, with 
the proper scope of issues on the table surrounding commercial HVAC, 
WH, and refrigeration equipment certification, a negotiated rulemaking 
appeared to have a reasonable likelihood of achieving consensus based 
on the factors set forth in the Negotiated Rulemaking Act (5 U.S.C. 
561-570) because the interviewed parties believed the negotiated 
rulemaking was superior to notice and comment rulemaking for 
certification-related issues. For additional details of the report, see 
https://www1.eere.energy.gov/buildings/appliancestandards/
pdfs/conveningreporthvaccre1.pdf.
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    \2\ Walk-in coolers and freezers, which are treated as a 
separate equipment type by statute, were not part of this analysis.
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    On February 26, 2013, members of the Appliance Standards and 
Rulemaking Federal Advisory Committee (ASRAC) unanimously decided to 
form a working group to engage in a negotiated rulemaking effort on the 
certification of HVAC, WH, and commercial refrigeration equipment. A 
notice of intent to form the Commercial Certification Working Group was 
published in the Federal Register on March 12, 2013, to which DOE 
received 35 nominations. 78 FR 15653. On April 16, 2013, the Department 
published a notice of open meeting that announced the first meeting and 
listed the 22 nominations that were selected to serve as members of the 
Working Group, in addition to two members from ASRAC, and one DOE 
representative. 78 FR 22431. The members of the Working Group were 
selected to ensure a broad and balanced array of stakeholder interests 
and expertise, and included efficiency advocates, manufacturers, a

[[Page 57844]]

utility representative, and third-party laboratory representatives.
    During the Working Group's first meeting, Working Group members 
voted to expand the scope of the negotiated rulemaking efforts to 
include developing methods of estimating equipment performance based on 
AEDM simulations. AEDMs are computer modeling or mathematical tools 
that predict the performance of non-tested basic models. They are 
derived from mathematical and engineering principles that govern the 
energy efficiency and energy consumption characteristics of a type of 
covered equipment. AEDMs, when properly developed, can provide a 
relatively straightforward and reasonably accurate means to predict the 
energy usage or efficiency characteristics of a basic model of a given 
covered product or equipment and reduce the burden and cost associated 
with testing. Where authorized by regulation, AEDMs enable 
manufacturers to rate and certify the compliance of their basic models 
by using the projected energy use or energy efficiency results derived 
from these simulation models in lieu of testing.
    The Working Group discussed the particular elements that the AEDM 
simulations should address for each equipment type and other related 
considerations of note, including validation requirements for AEDMs, 
DOE verification of models rated with an AEDM, and the consequences for 
misuse of the AEDM construct. As required, the Working Group submitted 
an interim report to ASRAC on June 26, 2013, summarizing the group's 
recommendations regarding AEDMs for commercial HVAC, WH, and 
refrigeration equipment. The interim report to ASRAC can be found at 
http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-NOC-0023-
0046.
    ASRAC subsequently voted unanimously to approve the recommendations 
in the interim report for AEDMs. Later, the Working Group submitted a 
final report on August 30, 2013, summarizing the Working Group's 
recommendations for model grouping, certification requirements and 
deadlines, and features to be excluded from certification, 
verification, and enforcement testing as long as specific conditions 
were met. ASRAC voted unanimously to approve the recommendations in the 
final report.
    On October 22, 2013, the Department published in the Federal 
Register a Supplemental Notice of Proposed Rulemaking (hereafter 
referred to as the October 2013 AEDM SNOPR) regarding alternative 
efficiency determination methods, basic model definitions, and 
certification compliance dates for commercial HVAC, refrigeration, and 
WH equipment. 78 FR 62472. The October 2013 AEDM SNOPR also proposed a 
process for DOE to conduct verification testing to ensure that models 
rated with an AEDM perform to their certified ratings. As part of the 
verification testing process, the Working Group recommended that a 
manufacturer may elect to have a DOE representative and a 
manufacturer's representative on site for the initial test of up to 10 
percent of all basic models that they have rated with an AEDM. However, 
commenters raised concerns over the Department's proposal allowing 
manufacturers to witness verification tests. In reviewing their 
comments, DOE determined that its proposed regulatory text, which was 
based in large part on the Working Group's recommendation, may not have 
been sufficiently clear. Accordingly, DOE decided not to finalize any 
regulation regarding witness testing when issuing the December 31, 2013 
Final Rule on AEDM requirements for commercial HVAC, refrigeration, and 
WH equipment. See 78 FR 79579, 79585 for additional details.
    DOE is proposing regulations to allow manufacturers to witness the 
test set-up as part of the AEDM verification process. The Department's 
intent is to establish a clear process while ensuring that the 
regulatory text reflects the recommendations of the Working Group.

II. Discussion of Specific Revisions to DOE's Regulations for 
Alternative Efficiency Determination Methods Verification Testing

    Between April 30, 2013, and August 28, 2013, the Commercial 
Certification Working Group held nine meetings in Washington, DC in 
which sixty-nine interested parties participated. More details of the 
discussions and recommendations can be found in the Commercial 
Certification Working Group meeting transcripts, which are located at 
http://www.regulations.gov/#!docketDetail;D=EERE-2013-BT-NOC-0023. DOE 
published the Working Group's recommendations regarding AEDM validation 
and verification in the October 2013 AEDM SNOPR (78 FR 62472) and then 
subsequently finalized most of these recommendations, excluding the 
provisions regarding witness testing, in a Final Rule. (78 FR 79579).
    The Working Group negotiated the process that DOE would use, 
through third-party testing, to verify a given basic model's certified 
rating when established by an AEDM; DOE codified this process in the 
December 31, 2013 AEDM final rule. 78 FR 79579. Under this approach, 
DOE will first select a single unit of a given basic model for testing 
either from retail or, if not available from retail, by obtaining a 
sample from the manufacturer. DOE will then test the unit at an 
independent, third-party testing facility of the Department's choosing, 
unless no third-party laboratory is capable of testing the equipment, 
in which case it may be tested at a manufacturer's facility. For some 
equipment, the manufacturer may provide additional information to DOE 
for test set-up or testing by uploading a Portable Document Format 
(pdf) file as part of their certification report. DOE will provide this 
information to the test facility as long as the additional instructions 
do not conflict with the DOE test procedure or applicable DOE test 
procedure waiver. The test facility may not use any additional 
information during the testing process that has not been approved by 
DOE or shipped in the packaging of the unit. If needed, the test 
facility may request from DOE additional information on test set-up, 
installation, or testing. Upon receiving a request from the test 
facility for additional information, DOE may hold and coordinate a 
meeting with the manufacturer and the test facility to discuss the 
additional details needed for testing. Additional instructions may be 
given to the test facility as agreed upon by DOE and the manufacturer. 
At no time may a representative of the test facility discuss DOE 
verification testing with the manufacturer without a representative of 
the Department present. 10 CFR 429.70(c).
    With respect to the AEDM verification process, the industry 
representatives within the Working Group expressed their desire for 
increased manufacturer involvement in this process. ([Docket No. EERE-
2013-BT-NOC-0023], Department of Energy, Public Meeting Transcript, No. 
0040 pp. 19-39; 59-65; 69-91; 103-105; 113; 117-119) Manufacturers 
expressed their collective belief that the complexity of some of this 
equipment will require manufacturer involvement in testing set-up even 
if such involvement is not necessary for field installation. ([Docket 
No. EERE-2013-BT-NOC-0023], Department of Energy, Public Meeting 
Transcript, No. 0040 pp. 15-39; 76-91; 98-99; 103-105; 117-126) As a 
compromise, the Working Group negotiated a solution that would allow 
manufacturers to elect to be present during the set-up for AEDM 
verification testing for 10% of their equipment

[[Page 57845]]

certified to DOE as compliant based upon an AEDM. Further, for 
equipment that is verification tested without a manufacturer 
representative witnessing test set-up that then fails to perform within 
the specified tolerances, DOE would automatically allow a re-test with 
the manufacturer present for set-up.
    In the October 2013 AEDM SNOPR, DOE proposed to allow commercial 
HVAC, WH, and refrigeration equipment manufacturers to elect to have a 
manufacturer's representative on-site for the initial verification test 
for up to 10 percent of the manufacturer's certified basic models rated 
with an AEDM. Based on the comments DOE received regarding the October 
2013 AEDM SNOPR proposal, DOE determined that the proposed witness 
testing provisions required clarification.
    In response to the October 2013 AEDM SNOPR proposal, Hussmann noted 
that CRE manufacturers have concerns about the expertise of third-party 
test facilities to operate the CRE units under test or conduct the DOE 
test procedure. (Hussmann, No. 0079.1 at p. 2) At the May 28, 2013 
Working Group negotiations meeting, DOE stated its view that third-
party test facilities should have sufficient expertise in conducting 
the relevant test and that the Department's test procedures are already 
written in a manner that they should be able to be administered without 
the Department's or a manufacturer's supervision. ([Docket No. EERE-
2013-BT-NOC-0023], Department of Energy, Public Meeting Transcript, No. 
0041 pp. 34 and 36) However, DOE appreciates that commercial HVAC, WH 
and refrigeration equipment may have inherent complexities that justify 
additional manufacturer participation in the set-up of such a unit for 
verification testing. Thus, the Department agreed with the negotiated 
solution to this issue and is proposing regulations that allow such 
participation.
    In order to clarify its October 2013 AEDM SNOPR proposal, the 
Department is revising the proposed regulatory text to state explicitly 
that manufacturers may elect to witness the test set-up. DOE did not 
intend in its October 2013 AEDM SNOPR proposal to allow manufacturers 
to witness the actual verification testing (e.g., the period during 
which the test facility is collecting data). As described in greater 
detail, adopting this clarification would better align with the Working 
Group's recommendation on this issue.
    During the May 15, 2014 and May 28, 2014 Working Group meetings, 
manufacturer discussions of verification testing indicated that set-up 
may be the most problematic part of a verification test and 
manufacturers would be more confident with test results if they had a 
representative present at the set-up. AHRI opined that if a 
manufacturer was able to confirm that a unit was set up properly, then 
the manufacturer could determine if the test results were accurate or 
anomalous by reviewing the test data. ([Docket No. EERE-2013-BT-NOC-
0023], AHRI, Public Meeting Transcript, No. 0040 pp. 104-105) Daikin 
suggested DOE adopt regulations to allow manufacturers to witness the 
set-up of a unit under test and clarified that the manufacturer should 
not witness actual testing of the unit. ([Docket No. EERE-2013-BT-NOC-
0023], Daikin, Public Meeting Transcript, No. 0040 pp. 59 and 62-63) 
Northwest Energy Efficiency Alliance expressed the position that if 
equipment requires factory installation then the personnel that would 
ordinarily install the unit should install the unit at the test site. 
([Docket No. EERE-2013-BT-NOC-0023], NEEA, Public Meeting Transcript, 
No. 0040 pp. 78-79) Hoshizaki remarked that the test set-up process can 
be lengthy, typically taking two days for commercial refrigeration 
equipment, and that there are many things that can go wrong. Hoshizaki 
added that being present during the test set-up allows manufacturers to 
address questions quickly and accurately. Hoshizaki also stated that 
they would at least like to be allowed to inspect the unit visually 
that arrives at the test lab to ensure it is in good condition because 
of the risk of damage in shipping and to be able to address any 
questions that arise. ([Docket No. EERE-2013-BT-NOC-0023], Hoshizaki, 
Public Meeting Transcript, No. 0040 pp. 84-85, 113, and 125) Hussman 
and Goodman both commented that slight variation in test set-up, like 
air flow settings or air sampler location, could impact test results. 
([Docket No. EERE-2013-BT-NOC-0023], Hussman, Public Meeting 
Transcript, No. 0040 p. 20; [Docket No. EERE-2013-BT-NOC-0023], 
Goodman, Public Meeting Transcript, No. 0040 p. 22) In response to 
Hussman's and Goodman's comments, Lochinvar supported having a 
manufacturer's representative present at the test facility to address 
these concerns. ([Docket No. EERE-2013-BT-NOC-0023], Lochinvar, Public 
Meeting Transcript, No. 0040 p. 23) Hussman stated that manufacturers 
should be given the option to be present at the third-party test 
facility and make sure the set-up is correct. ([Docket No. EERE-2013-
BT-NOC-0023], Hussman, Public Meeting Transcript, No. 0041 p. 19) Rheem 
commented that to conduct assessment tests efficiently then the 
manufacturer should at least be present for the set-up and start-up of 
the unit. ([Docket No. EERE-2013-BT-NOC-0023], Rheem, Public Meeting 
Transcript, No. 0041 pp. 41-42)
    Based on comments made by the manufacturers during the negotiation 
public meetings, DOE's understanding is that the intent of the Working 
Group was to allow manufacturers to be on-site solely for the set-up of 
the verification test. In today's notice, DOE is proposing regulatory 
text that allows manufacturers to elect, as part of the certification 
of that basic model, to have the opportunity to witness the test set-
up. A manufacturer may elect to witness the test set-up for the initial 
verification test for up to 10 percent of the manufacturer's certified 
basic models rated through the use of an AEDM. That would mean in those 
instances where DOE conducts a verification test on a basic model that 
a manufacturer elected to witness, DOE would alert the manufacturer to 
the basic model's selection for verification testing and provide the 
manufacturer with the opportunity to witness the set-up of the unit 
prior to test.
    DOE is also clarifying that the assessment or enforcement testing 
of variable refrigerant flow (VRF) systems is governed by the rules in 
10 CFR 431.96(f). These systems would not be subject to the 
requirements proposed in today's rulemaking. While DOE's regulations 
proposed in the October 2013 AEDM SNOPR may have been unclear in this 
regard, the public meeting transcripts show that VRF systems should be 
excluded from the verification witness testing proposal. Mitsubishi 
requested that DOE add a clause to the presentation summarizing the 
Working Group's proposals that stated that VRF systems should follow 
the procedures already codified in the CFR. ([Docket No. EERE-2013-BT-
NOC-0023], Mitsubishi, Public Meeting Transcript, No. 0040 p. 117) DOE 
agreed to that request. ([Docket No. EERE-2013-BT-NOC-0023], Department 
of Energy, Public Meeting Transcript, No. 0040 pp. 117)
    One interested party commented on the potential for logistical 
problems in arranging to have a manufacturer's representative on-site 
for verification testing. Zero Zone commented that a manufacturer may 
not be able to witness the initial verification test unless it knows in 
advance which units will be tested. (Zero Zone, No. 0077 at p. 3) To 
address Zero Zone's concern, the Department is proposing the following 
scenarios for notifying the manufacturer if DOE conducts AEDM 
verification

[[Page 57846]]

testing on a basic model for which a manufacturer elected to witness 
the test set-up. If the unit is obtained through retail channels, DOE 
proposes to notify the manufacturer of the basic model's selection for 
testing and provide the manufacturer the option to be present for test 
set-up once the unit has arrived at the test laboratory and is 
scheduled to be tested. If the manufacturer does not respond within 
five calendar days, the manufacturer would waive the option to be 
present for test set-up, and DOE would then proceed with the test set-
up without a manufacturer's representative present. If DOE has obtained 
a unit directly from the manufacturer, under today's proposed approach, 
DOE would provide the manufacturer with the option to be present for 
test set-up at the time the unit is ordered. DOE would then specify the 
date (not less than five calendar days) by which the manufacturer would 
notify DOE whether the manufacturer chooses to have a representative 
present. A failure to notify DOE by the date specified would be treated 
by DOE as a waiver of the manufacturer's option to be present for test 
set-up, and DOE would then proceed with the test set-up without a 
manufacturer's representative present. DOE also notes that any time a 
manufacturer's representative requests to be on-site for the test set-
up, a DOE representative would also be present at the third-party test 
facility. Additionally, 10 CFR 429.70(c)(5)(iv)(A) would continue to 
apply prior to, during and after the manufacturer's representative is 
on site; that is, the manufacturer's representative cannot communicate 
with a third-party test facility regarding verification testing without 
the DOE representative present.
    In response to the October 2013 SNOPR, Hoshizaki disagreed with the 
proposed requirement that up to 10 percent of a manufacturer's 
certified basic models be subjected to witness testing because the 
affected units are so complex that slight changes could result in 
separate basic models. Instead, Hoshizaki suggested DOE collaborate 
with existing bodies that test annually like the EPA's ENERGY STAR 
program. (Hoshizaki, No. 0087 at p. 1) The Department reads Hoshizaki's 
comment as expressing concern with the number of basic models that 
would be eligible for witness testing. In today's notice, DOE proposes 
to maintain that manufacturers may select up to 10 percent of its 
certified basic models rated with an AEDM because this threshold was 
negotiated as an acceptable amount by participants in the Working 
Group. DOE agreed that this level was not overly burdensome for the 
Department while increasing manufacturer involvement in the 
verification process. DOE notes that manufacturers are not required to 
select 10 percent of eligible basic models and that manufacturers can 
decline to attend the test set-up when notified. DOE also notes that 
the 10 percent is a limit on how many basic models a manufacturer may 
pre-select for witnessing test set-up; it is not an indication that DOE 
will test 10 percent of that manufacturer's basic models.
    The Department is also proposing a framework to address a situation 
where a manufacturer selects more than 10 percent of its certified 
basic models rated with an AEDM. At the time DOE selects a basic model 
for testing, DOE will review the certification submissions from the 
manufacturer to determine if the manufacturer has indicated that it 
wants to be present for testing of the selected basic model. DOE will 
also verify that the manufacturer has not selected more than 10 percent 
of the manufacturer's certified basic models rated with an AEDM. If DOE 
discovers that the manufacturer has exceeded the 10 percent limit, DOE 
will notify the manufacturer of this fact and deny its request to be 
present for the testing of the selected basic model. The manufacturer 
must update its certification submission to ensure it has selected no 
more than 10 percent of the manufacturer's certified basic models rated 
with an AEDM to witness the test set-up for any future selections.
    In the October 2013 AEDM SNOPR, DOE proposed that the 10 percent 
requirement would apply to all of the basic models certified by a given 
manufacturer using an AEDM no matter how many AEDMs a manufacturer has 
used to develop its ratings. DOE proposed that it would perform testing 
without a manufacturer's representative present for each basic model 
DOE selects for assessment testing unless either: (1) The manufacturer 
has elected to have the opportunity to witness the test set-up as part 
of its allocated 10 percent; or (2) the manufacturer requires the basic 
model to be started only by a factory-trained installer per the 
installation manual instructions. For the basic models for which a 
manufacturer requested to witness the initial verification test set-up, 
the manufacturer would be unable to request that the unit be retested. 
The results from this initial test would be used to make a definitive 
determination regarding the validity of the basic model's rating. For 
those basic models that are initially tested without the manufacturer 
present for test set-up, a manufacturer would be automatically eligible 
to request a retest for those basic models where the initial results 
indicate a potential rating issue. See 78 FR 62472, 62476. DOE is 
retaining these proposals.
    The Department requests comment on its proposed regulations to 
allow a manufacturer's representative on-site to witness the test set-
up for the initial verification test for up to 10 percent of the 
manufacturer's certified basic models rated with an AEDM.
    DOE is also proposing to amend its regulations to provide that 
information necessary for testing of certain products (such as the 
override code for controls that would otherwise prevent the completion 
of testing in accordance with the applicable DOE test procedure) must 
accompany the certification submission for a basic model of those 
products. DOE notes that, under this proposal, failure to provide this 
information would preclude a manufacturer being present for testing of 
a basic model of its product. If, in the course of testing a selected 
basic model, DOE discovers that the necessary information for 
completing the test has not been provided, DOE will contact the 
manufacturer to obtain that information and complete the testing. 
However, as DOE is proposing to amend its regulations to make clear the 
information required to be submitted as part of a certification report 
includes the equipment-specific, supplemental information necessary to 
operate the basic model, failure to provide such information would be a 
prohibited act as described at 10 CFR 429.102(a)(1), subject to the 
maximum civil penalty described at 10 CFR 429.120.
    Finally, DOE is proposing to clarify its treatment of private model 
numbers under 10 CFR 429.7(b)(3). In the negotiated rulemaking, the 
working group agreed that, in limited circumstances, manufacturers 
should be able to identify when disclosure of an individual model 
number would reveal confidential business information and that, in 
those instances, DOE should treat the individual model number as 
confidential. It has recently come to DOE's attention that, as drafted, 
the language at 429.7 may permit a much broader range of model numbers 
to be identified as ``private'' than had been intended, which would 
result in many more models not being published in DOE's public 
Compliance Certification database. Specifically, the current language 
could be interpreted to permit a manufacturer to mark as ``private'' 
any model number that is not available in public marketing materials. 
Accordingly, DOE is proposing to revise

[[Page 57847]]

the regulatory text to better reflect the negotiated position of the 
working group. DOE requests comment regarding this proposed revision.

III. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget has determined that test 
procedure rulemakings do not constitute ``significant regulatory 
actions'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this 
action was not subject to review under the Executive Order by the 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires the 
preparation of an initial regulatory flexibility analysis (RFA) for any 
rule that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the DOE rulemaking process. 68 FR 7990. DOE has made 
its procedures and policies available on the Office of the General 
Counsel's Web site: http://www.energy.gov/sites/prod/files/gcprod/documents/eo13272.pdf
    DOE reviewed the proposed requirements in today's SNOPR 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 the provisions of this SNOPR will not 
result in increased testing and/or reporting burden. Accordingly, 
manufacturers will not experience increased financial burden as a 
result of this proposed rulemaking.
    The SNOPR proposes to clarify how DOE intends to exercise its 
authority to validate AEDM performance and verify the performance of 
commercial HVAC, WH, and refrigeration equipment certified using an 
AEDM. Specifically, DOE is proposing to allow representatives of 
commercial HVAC, WH, and refrigeration equipment manufacturers to 
witness the test set-up for DOE-initiated verification testing for up 
to 10 percent of a manufacturer's basic models certified to the 
Department and that are rated with an AEDM. The selection of basic 
models and the decision to witness the test set-up for verification 
testing is at the discretion of the manufacturer. Thus, because these 
proposed changes would apply irrespective of a manufacturer's size and 
would provide these entities with added flexibility to witness the 
testing set-up of their equipment, DOE certifies that this proposed 
rulemaking, if promulgated, would not have a significant impact on a 
substantial number of small entities.

C. Review Under the Paperwork Reduction Act

    Manufacturers of the covered equipment addressed in today's SNOPR 
must certify to DOE that their equipment comply with any applicable 
energy conservation standards. In certifying compliance, manufacturers 
must test their equipment according to the applicable DOE test 
procedures for the given equipment type, including any amendments 
adopted for those test procedures, or use the appropriate AEDMs to 
develop the certified ratings of the basic models. DOE has established 
regulations for the certification and recordkeeping requirements for 
all covered consumer products and commercial equipment, including the 
equipment at issue in this proposed rule. (76 FR 12422 (March 7, 
2011)). The collection-of-information requirement for these 
certification and recordkeeping provisions is subject to review and 
approval by OMB under the Paperwork Reduction Act (PRA). This 
requirement has been approved by OMB under OMB Control Number 1910-
1400. Public reporting burden for the certification is estimated to 
average 20 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act

    DOE has determined that this proposed 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 SNOPR 
is proposing changes to DOE's verification testing regulations so it 
would not affect the amount, quality or distribution of energy usage, 
and, therefore, would not result in any environmental impacts. Thus, 
this rulemaking is covered by Categorical Exclusion A6 under 10 CFR 
part 1021, subpart D. Accordingly, neither an environmental assessment 
nor an environmental impact statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have Federalism 
implications. The Executive Order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this SNOPR and has 
determined that it would not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. EPCA governs and prescribes Federal 
preemption of State regulations as to energy conservation for the 
products that are the subject of today's proposed rule. States can 
petition DOE for exemption from such preemption to the extent, and 
based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further 
action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal 
agencies the general duty to adhere to the following requirements: (1) 
Eliminate drafting errors and ambiguity; (2) write

[[Page 57848]]

regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. Section 3(b) of Executive Order 
12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in sections 3(a) and 3(b) to determine whether they are met 
or it is unreasonable to meet one or more of them. DOE has completed 
the required review and determined that, to the extent permitted by 
law, this SNOPR meets the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a proposed regulatory action likely to result in a rule that may 
cause the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a)-(b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820; also available 
at www.gc.doe.gov. DOE examined today's SNOPR according to UMRA and its 
statement of policy and determined that the rule contains neither an 
intergovernmental mandate, nor a mandate that may result in the 
expenditure of $100 million or more in any year. Accordingly, these 
requirements do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This SNOPR would not have any impact on the autonomy or integrity of 
the family as an institution. Accordingly, DOE has concluded that it is 
not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (March 18, 1988), that this proposed regulation 
would not result in any takings that might require compensation under 
the Fifth Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed the SNOPR under the OMB and DOE guidelines and has concluded 
that it is consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB, 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    The SNOPR would allow manufacturers of commercial HVAC, WH, and 
refrigeration equipment the opportunity to witness the set-up DOE 
verification testing for up to 10 percent of basic models rated with an 
AEDM and is not a significant regulatory action under Executive Order 
12866. Moreover, it would not have a significant adverse effect on the 
supply, distribution, or use of energy, nor has it been designated as a 
significant energy action by the Administrator of OIRA. Therefore, it 
is not a significant energy action, and, accordingly, DOE has not 
prepared a Statement of Energy Effects.

L. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the 
Federal Energy Administration Act of 1974, as amended by the Federal 
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) 
Section 32 essentially provides in relevant part that, where a proposed 
rule authorizes or requires use of commercial standards, the notice of 
proposed rulemaking must inform the public of the use and background of 
such standards. In addition, section 32(c) requires DOE to consult with 
the Attorney General and the Chairman of the Federal Trade Commission 
(FTC) concerning the impact of the commercial or industry standards on 
competition. Today's proposed rule to amend regulations relating to the 
verification test of commercial HVAC, WH, and refrigeration equipment 
rated with an AEDM does not propose the use of any commercial 
standards.

IV. Public Participation

Submission of Comments

    DOE will accept comments, data, and information regarding the 
proposed rule no later than the date provided at the beginning of this 
notice. Comments, data, and information submitted to

[[Page 57849]]

DOE's email address for this rulemaking should be provided in 
WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. 
Interested parties should avoid the use of special characters or any 
form of encryption, and wherever possible, comments should include the 
electronic signature of the author. Absent an electronic signature, 
comments submitted electronically must be followed and authenticated by 
submitting a signed original paper document to the address provided at 
the beginning of this notice. Comments, data, and information submitted 
to DOE via mail or hand delivery/courier should include one signed 
original paper copy. No telefacsimiles (faxes) will be accepted.
    According to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit two copies: one copy of the document including 
all the information believed to be confidential and one copy of the 
document with the information believed to be confidential deleted. DOE 
will make its own determination as to the confidential status of the 
information and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include (1) a description of the 
items, (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 which would result from 
public disclosure, (6) a date upon which such information might lose 
its confidential nature due to the passage of time, and (7) why 
disclosure of the information would be contrary to the public interest.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this 
supplemental notice of proposed rulemaking.

List of Subjects in 10 CFR Part 429

    Administrative practice and procedure, Energy conservation, 
Reporting and recordkeeping requirements.

    Issued in Washington, DC, on September 18, 2014.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.
    For the reasons set forth in the preamble, DOE proposes to amend 
part 429 of chapter II, subchapter D, of title 10 of the Code of 
Federal Regulations, as set forth below:

PART 429--CERTIFICATION, COMPLIANCE AND ENFORCEMENT FOR CONSUMER 
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT

0
1. The authority citation for part 429 continues to read as follows:

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

0
2. Amend Sec.  429.7 by removing the words ``it is'' from the 
introductory text of paragraph (b) and by revising paragraph (b)(3) to 
read as follows:

Sec.  429.7  Confidentiality.

* * * * *
    (b) * * *
    (3) Disclosure of the individual, manufacturer model number would 
reveal confidential business information as described at 10 CFR 
1004.11--in which case, under these limited circumstances, a 
manufacturer may identify the individual manufacturer model number as a 
private model number on a certification report submitted pursuant to 
Sec.  429.12(b)(6).
* * * * *
0
3. Section 429.41 is amended by revising paragraph (b)(4) to read as 
follows:

Sec.  429.41  Commercial warm air furnaces.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report may 
include supplemental testing instructions in PDF format. If necessary 
to run a valid test, the equipment-specific, supplemental information 
must include any additional testing and testing set up instructions 
(e.g., specific operational or control codes or settings), which would 
be necessary to operate the basic model under the required conditions 
specified by the relevant test procedure. A manufacturer may also 
include with a certification report other supplementary items in PDF 
format (e.g., manuals) for DOE consideration in performing testing 
under subpart C of this part.
0
4. Section 429.42 is amended by revising paragraph (b)(4) to read as 
follows:

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

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report must 
include supplemental information submitted in PDF format. The 
equipment-specific, supplemental information must include any 
additional testing and testing set up instructions (e.g., charging 
instructions) for the basic model; identification of all special 
features that were included in rating the basic model; and all other 
information (e.g., any specific settings or controls) necessary to 
operate the basic model under the required conditions specified by the 
relevant test procedure. A manufacturer may also include with a 
certification report other supplementary items in PDF format (e.g., 
manuals) for DOE consideration in performing testing under subpart C of 
this part.
0
5. Section 429.43 is amended by revising paragraph (b)(4) to read as 
follows:

Sec.  429.43  Commercial heating, ventilating, air conditioning (HVAC) 
equipment.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report must 
include supplemental information submitted in PDF format. The 
equipment-specific, supplemental information must include any 
additional testing and testing set up instructions (e.g., charging 
instructions) for the basic model; identification of all special 
features that were included in rating the basic model; and all other 
information (e.g. operational codes or component settings) necessary to 
operate the basic model under the required conditions specified by the 
relevant test procedure. A manufacturer may also include with a 
certification report other supplementary items in PDF format (e.g., 
manuals) for DOE consideration in performing testing under subpart C of 
this part. The equipment-specific, supplemental information must 
include at least the following:
* * * * *
0
6. Section 429.44 is amended by revising paragraph (b)(4) to read as 
follows:

Sec.  429.44  Commercial water heating equipment.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report may 
include supplemental testing instructions in PDF format. If necessary 
to run a valid test, the equipment-specific,

[[Page 57850]]

supplemental information must include any additional testing and 
testing set up instructions (e.g., whether a bypass loop was used for 
testing) for the basic model and all other information (e.g. 
operational codes or overrides for the control settings) necessary to 
operate the basic model under the required conditions specified by the 
relevant test procedure. A manufacturer may also include with a 
certification report other supplementary items in PDF format (e.g. 
manuals) for DOE consideration in performing testing under subpart C of 
this part.
* * * * *
0
7. Section 429.60 is amended by revising paragraph (b)(4) to read as 
follows:

Sec.  429.60  Commercial packaged boilers.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report may 
include supplemental testing instructions in PDF format. If necessary 
to run a valid test, the equipment-specific, supplemental information 
must include any additional testing and testing set up instructions 
(e.g., specific operational or control codes or settings), which would 
be necessary to operate the basic model under the required conditions 
specified by the relevant test procedure. A manufacturer may also 
include with a certification report other supplementary items in PDF 
format (e.g. manuals) for DOE consideration in performing testing under 
subpart C of this part.
* * * * *
0
8. Section 429.70 is amended by revising paragraph (c)(5)(iii) to read 
as follows:

Sec.  429.70  Alternative methods for determining energy efficiency and 
energy use.

* * * * *
    (c) * * *
    (5) * * *
    (iii) Manufacturer participation. (A) Except when testing variable 
refrigerant flow systems (which are governed by the rules found at 
Sec.  431.96(f)), testing will be completed without a manufacturer 
representative on-site. In limited instances further described in 
paragraph (c)(5)(iii)(B) of this section, a manufacturer and DOE 
representative may be present to witness the test set-up.
    (B) A manufacturer's representative may request to be on-site to 
witness the test set-up if:
    (1) The installation manual for the basic model specifically 
requires it to be started only by a factory-trained installer; or
    (2) The manufacturer has elected, as part of the certification of 
that basic model, to have the opportunity to witness the test set-up. A 
manufacturer may elect to witness the test set-up for the initial 
verification test for no more than 10 percent of the manufacturer's 
certified basic models rated with an AEDM. The 10-percent limit applies 
to all of the eligible basic models certified by a given manufacturer 
no matter how many AEDMs a manufacturer has used to develop its 
ratings. A manufacturer must identify the basic models it wishes to 
witness as part of its certification report(s) prior to the basic model 
being selected for verification testing.
    (3) In those instances in which a manufacturer has not provided the 
required information as specified in Sec.  429.12(b)(13) for a given 
basic model that has been rated and certified as compliant with the 
applicable standards, a manufacturer is precluded from witnessing the 
testing set up for that basic model.
    (C) A DOE representative will be present for the test set-up in all 
cases where a manufacturer representative requests to be on-site for 
the test set-up. The manufacturer's representative cannot communicate 
with a lab representative outside of the DOE representative's presence.
    (D) If DOE has obtained a unit for test through retail channels 
that meets either of the conditions in paragraph (c)(5)(iii)(B) of this 
section, DOE will notify the manufacturer of the basic model's 
selection for testing and that the manufacturer may have a 
representative present for the test set-up. If the manufacturer does 
not respond within five calendar days of receipt of that notification, 
the manufacturer waives the option to be present for test set-up, and 
DOE will proceed with the test set-up without a manufacturer's 
representative present.
    (E) If DOE has obtained a unit for test directly from the 
manufacturer that meets either of the conditions in paragraph 
(c)(5)(iii)(B) of this section, DOE will notify the manufacturer of the 
option to be present for the test set-up at the time the unit is 
purchased. DOE will specify the date (not less than five calendar days) 
by which the manufacturer must notify DOE whether a manufacturer's 
representative will be present. If the manufacturer does not notify DOE 
by the date specified, the manufacturer waives the option to be present 
for the test set-up, and DOE will proceed with the test set-up without 
a manufacturer's representative present.
    (F) DOE will review the certification submissions from the 
manufacturer that were on file as of the date DOE purchased a basic 
model (under paragraph (c)(5)(iii)(D) of this section) or the date DOE 
notifies the manufacturer that the basic model has been selected for 
testing (under paragraph (c)(5)(iii)(E) of this section) to determine 
if the manufacturer has indicated that it intends to witness the test 
set-up of the selected basic model. DOE will also verify that the 
manufacturer has not selected more than 10 percent of the 
manufacturer's certified basic models rated with an AEDM. If DOE 
discovers that the manufacturer has selected more than 10 percent, DOE 
will notify the manufacturer of this fact and deny its request to be 
present for the test set-up of the selected basic model. The 
manufacturer must update its certification submission to ensure it has 
selected no more than 10 percent of the manufacturer's certified basic 
models rated with an AEDM to be present at set-up for future 
selections.
    (G) If DOE determines, pursuant to paragraph (c)(5)(ii) of this 
section, that the model should be tested at the manufacturer's 
facility, a DOE representative will be present on site to observe the 
test set-up and testing with the manufacturer's representative. All 
testing will be conducted at DOE's direction, which may include DOE-
contracted personnel from a third-party lab, as well as the 
manufacturer's technicians.
    (H) As further explained in paragraph (c)(5)(v)(B) of this section, 
if a manufacturer's representative is present for the initial test set-
up for any reason, the manufacturer forfeits any opportunity to request 
a retest of the basic model. Furthermore, if the manufacturer requests 
to be on-site for test set-up pursuant to paragraph (c)(5)(iii)(B) of 
this section but is not present on site, the manufacturer forfeits any 
opportunity to request a retest of the basic model.
* * * * *
[FR Doc. 2014-22890 Filed 9-25-14; 8:45 am]
BILLING CODE 6450-01-P
```