1 | General Counsel’s Office of EnforcementRegional StandardsEnforcement Working GroupAn Introduction toDOE’s CurrentEnforcementProgram2 | General Counsel’s Office of EnforcementRelevant Regulatory Provisions• 10 C.F.R. Part 429 (for most covered products)– Certification of compliance– Enforcement tools and procedures• 10 C.F.R. Part 430– Consumer products• Test procedures• Conservation standards• 10 C.F.R. Part 431– Commercial and industrial equipment• Test procedures• Conservation standards3 | General Counsel’s Office of Enforcement• Manufacturers are entities that– manufacture,– assemble,– produce, or– import• Private labelers are entities that– own a brand or trademark that is not the manufacturer’s brand ortrademark and– authorize a manufacturer to label product with that brand• label does NOT include manufacturer’s brand or trademark!Relevant parties defined in EPCA4 | General Counsel’s Office of Enforcement• Retailers are entities to whom a consumer product isdelivered or sold, if such delivery or sale is for purposesof sale or distribution in commerce to purchasers whobuy such product for purposes other than resale.• Distributors are entities (other than a manufacturer orretailer) to whom a consumer product is delivered or soldfor purposes of distribution in commerce.Relevant parties defined in EPCA(continued)5 | General Counsel’s Office of Enforcement• Distribution in commerce means to– sell in commerce– import– introduce or deliver for introduction into commerce, or– hold for sale or distribution after introduction into commerceDistribution in commerce6 | General Counsel’s Office of Enforcement• Energy conservation standards regulatory programbased on self-certification by manufacturer beforedistribution– Submitted initially and annually thereafter• Manufacturer must submit a certification report– Report states that covered product/equipment was manufacturedto comply with the Federal standards• Representation of efficiency must be based upon either:– testing, or– estimations from an authorized rating method (in the case ofCACs)• Certify efficiency of basic model• Once basic model certified, appears on public databaseCertification of compliance (429.12)7 | General Counsel’s Office of EnforcementPublic Database8 | General Counsel’s Office of EnforcementPublic Database (continued)9 | General Counsel’s Office of Enforcement• Warning for certification submission errors• Requests for Test Data and other Information– including subpoena authority• Testing– Assessment– Enforcement• Notice of Noncompliance Determination• Notice of Proposed Civil PenaltyEnforcement Tools10 | General Counsel’s Office of Enforcement• Warning for certification submission errors•Requests for Test Data and other Information– including subpoena authority• Testing– Assessment– Enforcement• Notice of Noncompliance Determination• Notice of Proposed Civil PenaltyEnforcement Tools11 | General Counsel’s Office of Enforcement• DOE may, at any time, request any information relevantto determining compliance with any requirement underparts 429, 430 and 431.• This includes the data underlying certification of a basicmodel.– Such data may be used by DOEto make a determination ofcompliance or noncompliance with an applicable standard.Request for Information (429.106)12 | General Counsel’s Office of Enforcement• Manufacturer shall establish, maintain, and retain therecords of:– certification reports,– underlying test data for all certification testing, and– any other testing conducted to satisfy the requirements of thisparts 429, 430, and 431• Records shall be organized and indexed to make themreadily accessible for review by DOE upon request.• Records shall be retained by the manufacturer for aperiod of two years from the date DOE that notified thedistribution in commerce of the model has beendiscontinued.Records Retention (429.71)13 | General Counsel’s Office of Enforcement• For purposes of carrying out parts 429, 430, and 431,DOE may issue subpoenas for:– the attendance and testimony of witnesses and– the production of relevant books, records, papers, and otherdocuments• If refuse to obey a subpoena, DOE may seek an orderfrom U.S. District Court.• Failure to obey such order is punishable by such courtas contempt thereof.Subpoena (429.8)14 | General Counsel’s Office of Enforcement• Warning for certification submission errors• Requests for Test Data and other Information– including subpoena authority•Testing– Assessment– Enforcement• Notice of Noncompliance Determination• Notice of Proposed Civil PenaltyEnforcement Tools15 | General Counsel’s Office of EnforcementAssessment (429.104) Enforcement (429.110)Basis? No specific basis needed “Reason to believe” may not complySource(for highvolumeconsumerproducts)?Retail (DOE’s expense) Retail, distribution center, or warehouse(manufacturer’s expense)# of units? 1 3 additional or 4 total for 1stsample;up to 21 totalWhere? DOE-contracted lab DOE-contracted labHow? DOE test procedure DOE test procedureAssessment & Enforcement Testing16 | General Counsel’s Office of Enforcement• Warning for certification submission errors• Requests for Test Data and other Information– including subpoena authority• Testing– Assessment– Enforcement•Notice of Noncompliance Determination• Notice of Proposed Civil PenaltyEnforcement Tools17 | General Counsel’s Office of Enforcement• Written notice from DOE after finding of noncompliance• Manufacturermust:– Cease manufacture and distribution of product/equipment– Provide notice to anyone to whom the manufacturer hasdistributed the product of finding of noncompliance– Provide DOE with records of manufacture and sale• Manufacturermayredesign product to come intocompliance– Must provide description of changes and supporting test data– Must receive notice of allowance from DOE before future sale– Redesigned products must have different model numbers andmeet applicable certification requirementsNoncompliance Determination(429.114)18 | General Counsel’s Office of Enforcement• Warning for certification submission errors• Requests for Test Data and other Information– including subpoena authority• Testing– Assessment– Enforcement• Notice of Noncompliance Determination•Notice of Proposed Civil PenaltyEnforcement Tools19 | General Counsel’s Office of Enforcement• Assess for commission of prohibited acts• DOE provides written notice that explains allegedprohibited act and applicable law• Maximum fine is $200 per violation (429.120)– Failure to certify models or provide requested informationcomputed per basic modelper day– Standards failure computedper unitCivil Penalties20 | General Counsel’s Office of Enforcement1. Failure of a manufacturer to provide, maintain, permitaccess to, or copying of records required to be suppliedunder the Act and this part or failure to make reports orprovide other information required to be supplied underthe Act and this part, including but not limited to failureto properly certify covered products and coveredequipment in accordance with §429.12 and §§429.14through 429.54.2. Failure to test any covered product or coveredequipment subject to an applicable energy conservationstandard in conformance with the applicable testrequirements prescribed in 10 CFR parts 430 or 431.Prohibited Acts (429.102)21 | General Counsel’s Office of Enforcement3. Deliberate use of controls or features in a coveredproduct or covered equipment to circumvent therequirements of a test procedure and produce testresults that are unrepresentative of a product's energyor water consumption if measured pursuant to DOE'srequired test procedure.4. Failure of a manufacturer to supply at themanufacturer's expense a requested number of coveredproducts or covered equipment to a designated testlaboratory in accordance with a test notice issued byDOE.Prohibited Acts (429.102)22 | General Counsel’s Office of Enforcement5. Failure of a manufacturer to permit a DOErepresentative to observe any testing required by theAct and this part and inspect the results of such testing.6. Distribution in commerce by a manufacturer or privatelabeler of any new covered product or coveredequipment that is not in compliance with an applicableenergy conservation standard prescribed under EPCA.7. Distribution in commerce by a manufacturer or privatelabeler of a basic model of covered product or coveredequipment after a notice of noncompliancedetermination has been issued to the manufacturer orprivate labeler.Prohibited Acts (429.102)23 | General Counsel’s Office of Enforcement8. Knowing misrepresentation by a manufacturer or privatelabeler by certifying an energy use or efficiency rating ofany covered product or covered equipment distributedin commerce in a manner that is not supported by testdata.9. For any manufacturer, distributor, retailer, or privatelabeler to distribute in commerce an adapter that—– (i) Is designed to allow an incandescent lamp that does not havea medium screw base to be installed into a fixture or lamp holderwith a medium screw base socket; and– (ii) Is capable of being operated at a voltage range at leastpartially within 110 and 130 volts.Prohibited Acts (429.102)24 | General Counsel’s Office of Enforcement10.For any manufacturer or private labeler to knowingly sella product to a distributor, contractor, or dealer withknowledge that the entity routinely violates any regionalstandard applicable to the product.Prohibited Acts (429.102)25 | General Counsel’s Office of EnforcementQuestions?