Thursday, 

September 16, 2010 

Part III 

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; 

Proposed Rule 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
56796 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

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: Notice of proposed rulemaking 

and public meeting. 

SUMMARY: The U.S. Department of 

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

proposing to revise and expand 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, these 

proposals will allow DOE to 

systematically enforce 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. Additionally, today’s 

notice announces a public meeting on 

the proposed amendments. 

DATES: DOE will hold a public meeting 

on Thursday, September 23, 2010, from 

9 a.m. to 4 p.m., in Washington, DC. 

DOE must receive requests to speak at 

the public meeting before 4 p.m., 

Thursday, September 23, 2010. 

Additionally, DOE plans to conduct the 

public meeting via webinar. To 

participate via webinar, DOE must be 

notified by no later than Thursday, 

September 16, 2010. Participants 

seeking to present statements in person 

during the meeting must submit to DOE 

a signed original and an electronic copy 

of statements to be given at the public 

meeting before 4 p.m., Thursday, 

September 23, 2010. 

DOE will accept comments, data, and 

information regarding this notice of 

proposed rulemaking (NOPR) before and 

after the public meeting but no later 

than October 18, 2010. See section V, 

‘‘Public Participation,’’ of this NOPR for 

details. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments, identified by docket 

number EERE–2010–BT–CE–0014, by 

any of the following methods: 

• E-mail: CCE–2010–BT–CE– 

0014@ee.doe.gov. Include EERE–2010– 

BT–CE–0014 in the subject line of the 

message. 

• Mail: Ms. Brenda Edwards, U.S. 

Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

Revisions to Energy Efficiency 

Enforcement Regulations, EERE–2010– 

BT–CE–0014, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121. Phone: (202) 586–2945. Please 

submit one signed paper original. 

• Hand Delivery/Courier: Ms. Brenda 

Edwards, U.S. Department of Energy, 

Building Technologies Program, 6th 

Floor, 950 L’Enfant Plaza, SW., 

Washington, DC 20024. Phone: (202) 

586–2945. Please submit one signed 

paper original. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this 

rulemaking. Note that all comments 

received will be posted without change, 

including any personal information 

provided. 

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. 

Celia Sher, U.S. Department of Energy, 

Office of the General Counsel, Forrestal 

Building, GC–71, 1000 Independence 

Avenue, SW., Washington, DC 20585. 

Telephone: 202–287–6122. E-mail: 

Celia.Sher@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Authority and Background 

II. Summary of the Proposal 

A. Reorganization of DOE’s Existing 

Certification, Compliance, and 

Enforcement Regulations 

B. Applying DOE’s Existing Certification, 

Compliance, and Enforcement 

Regulations to Other Consumer Products 

and Commercial and Industrial 

Equipment 

C. Certification 

D. Enforcement Testing and Adjudication 

III. Discussion of Specific Revisions to DOE’s 

Certification, Compliance, and 

Enforcement Regulations and Comments 

Received in Response to the RFI 

A. Basic Model Provisions 

1. Basic Model Certification 

2. Basic Model Numbers 

B. Certification 

1. Annual Certification Requirements 

2. Filings Consolidation With FTC 

3. Revisions to the Reporting 

Requirements, General 

4. Product Specific Revisions to the 

Reporting Requirements 

5. Certifying Entities 

6. Third Party Representation 

7. Submission of Certification Reports 

8. Initial Certification and Notice of 

Discontinuance 

9. Certification Testing 

a. In-House vs. Independent Testing 

b. Sampling Procedures for Certification 

Testing 

c. Provisions Specific to Commercial 

HVAC and WH Equipment, Including 

the Use of AEDMs and VICPs 

10. Records 

a. Maintenance of Records 

b. Public Records 

C. Enforcement Testing and Adjudication 

1. Enforcement Testing 

a. Initiation of Enforcement Action 

b. Test Notice 

c. Sampling for Enforcement Testing 

d. Test Procedure Guidance and 

Enforcement Testing 

e. Test Unit Selection 

f. Testing at Manufacturer’s Option 

g. Cost Allocation for Testing 

2. Adjudication 

a. Improper Certification 

b. Failure To Test 

c. Distribution in Commerce After Notice 

of Noncompliance Determination 

d. Knowing Misrepresentation 

e. Penalties 

f. Imposition of Additional Certification 

Testing Requirements as Remedy for 

Non-Compliance 

g. Compromise and Settlement 

D. Verification Testing 

E. Waivers 

F. Additional Product Specific Discussions 

and Issues for Which DOE Continues To 

Seek Comment 

1. Clarification of Entity Responsible for 

Compliance for Walk-In Coolers or 

Freezers 

2. Submission of Data Requirements for 

Fluorescent Lamp Ballast 

3. Certification, Compliance, and 

Enforcement for Electric Motors 

4. Enforcement for Imports and Exports 

IV. Procedural Issues and Regulatory Review 

A. Review Under Executive Order 12866 

B. Review Under the Regulatory Flexibility 

Act 

1. Reasons for the Proposed Rule 

2. Objectives of and Legal Basis for the 

Proposed Rule 

3. Description and Estimated Number of 

Small Entities Regulated 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 56797 

1For editorial reasons, Parts B (consumer 

products) and C (commercial equipment) of Title III 

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

respectively, in the United States Code. 

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 

4. Comments 

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 

V. Public Participation 

A. Attendance at Public Meeting 

B. Procedure for Submitting Requests To 

Speak 

C. Conduct of Public Meeting 

D. Submission of Comments 

E. Issues on Which DOE Seeks Comment 

VI. 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

Under the Act, the regulatory program 

consists of three parts: Labeling, testing, 

and Federal conservation standards, 

which include energy conservation, 

water conservation and design 

standards. The Federal Trade 

Commission (FTC) is primarily 

responsible for labeling consumer 

products, and DOE implements the 

remainder of the program. The testing 

requirements consist of test procedures 

prescribed under the authority of EPCA, 

which are used to aid in the 

development of standards for covered 

products or covered equipment, to make 

representations about equipment 

efficiency, and to determine whether 

covered products or covered equipment 

comply with standards promulgated 

under EPCA. 

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)) To ensure that all covered 

products and covered equipment 

distributed in the United States comply 

with DOE’s conservation standards, 

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 May 7, 2010, the Department 

published in the Federal Register a 

Request for Information (RFI) regarding 

Revisions to Energy Efficiency 

Enforcement Regulations. 75 FR 25121. 

The RFI requested suggestions, 

comments, and information relating to 

the Department’s intent to expand and 

revise its existing energy efficiency 

enforcement regulations for consumer 

products and commercial and industrial 

equipment covered under EPCA. The 

comment period for written submissions 

closed on June 7, 2010. 

The record of the RFI reflects that the 

consideration of many of the procedural 

changes to DOE’s certification 

requirements and enforcement process 

are relatively straightforward, while 

other changes under consideration, such 

as the creation of a verification testing 

requirement, raise more complicated 

and nuanced issues. Even relatively 

simple changes, however, can greatly 

advance the effective enforcement of 

DOE’s conservation standards and 

regulations. Therefore, today’s NOPR 

focuses on promptly advancing two 

aspects of the DOE’s enforcement 

regime: Certification requirements and 

enforcement procedures. In addition, 

this notice proposes consolidating and 

standardizing, where possible, all of the 

certification, compliance, and 

enforcement requirements for both 

consumer products and commercial 

equipment into a new 10 CFR Part 429. 

In all cases, the Department’s goals are 

to establish a uniform, systematic, and 

fair approach to certification, 

compliance, and enforcement that will 

allow the Department to effectively 

enforce its standards and ensure a level 

playing field in the marketplace without 

unduly burdening regulated entities. 

While not addressed here, DOE 

anticipates addressing the remaining 

topics outlined in the RFI and 

additional issues regarding certification, 

compliance, and enforcement, including 

verification testing requirements, in a 

subsequent rulemaking. To that end, 

today’s NOPR seeks comment on a 

variety of issues, which will be more 

fully addressed in a second certification, 

compliance, and enforcement 

rulemaking, including: Revisions to 

sampling plans for certification and 

enforcement testing, consideration of 

compliance requirements for other 

features affecting the energy and water 

efficiency of a product, additional 

provisions for imports, voluntary 

industry certification programs (VICP), 

verification testing requirements, 

laboratory accreditation, and rounding. 

DOE continues to seek views from all 

interested parties on these issues and 

how they can be best developed to 

ensure effective enforcement. 

II. Summary of the Proposal 

In today’s notice, DOE proposes to 

revise its certification and enforcement 

regulations to encourage compliance, 

achieve energy savings, and prevent 

those manufacturers that do not adhere 

to the rules from having a competitive 

advantage over those that do. As 

summarized below, the notice proposes 

revisions to existing certification, 

compliance, enforcement, and 

adjudication procedures applicable to 

both consumer products and 

commercial and industrial equipment. 

A. Reorganization of DOE’s Existing 

Certification, Compliance, and 

Enforcement Regulations 

With the exception of electric motors, 

DOE is proposing to move all of the 

existing certification, compliance, and 

enforcement regulations currently 

scattered throughout parts 430 and 431 

to a new part 429. DOE has consolidated 

similar provisions for both consumer 

products and commercial and industrial 

equipment into one section. As an 

example, all of the submission of data 

requirements that are currently found in 

10 CFR 430.62, 431.327, and 431.371 

will be found in 10 CFR 429.19 for 

consumer products and commercial and 

industrial equipment once DOE’s 

proposals become final. While DOE is 

not proposing revisions to the 

requirements for electric motors in 

today’s NOPR, DOE does intend to 

propose to move and harmonize, where 

possible, the certification, compliance, 

and enforcement provisions for electric 

motors in part 429, as well as add an 

annual certification requirement, in the 

second rulemaking. 


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56798 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

B. Applying DOE’s Existing 

Certification, Compliance, and 

Enforcement Regulations to Other 

Consumer Products and Commercial 

and Industrial Equipment 

DOE intends to apply certification, 

compliance, and enforcement 

regulations to all covered products and 

covered equipment. Thus, the 

Department also proposes to establish 

certification and enforcement 

requirements for the consumer products 

and commercial and industrial 

equipment that have been added to 

DOE’s programs by either DOE’s 

completion of energy and water 

conservation standards rulemakings or 

the Energy Independence and Security 

Act of 2007. These products include 

fluorescent lamp ballasts, general 

service incandescent lamps, candelabra 

base incandescent lamps, intermediate 

base incandescent lamps, certain types 

of commercial refrigeration equipment, 

beverage vending machines, and walkin coolers and freezers. 

C. Certification 

Existing certification requirements 

direct 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). For consumer products, 

much of the information required to be 

reported to DOE must also be reported 

annually to the FTC. In light of these 

similarities in reporting, DOE desires to 

eventually work towards the creation of 

a single, annual reporting mechanism 

for DOE and FTC, as appropriate. While 

today’s notice does not yet propose such 

a shared annual reporting mechanism 

for DOE and FTC, DOE is proposing to 

include an annual reporting 

requirement for all covered products 

and covered equipment. DOE has 

aligned its annual reporting schedule 

with FTC’s reporting schedule for 

consumer products. Such annualized 

reporting will provide DOE with more 

accurate and comprehensive 

information regarding the industries 

subject to DOE’s regulations and a better 

understanding of the efficiency 

characteristics of products distributed in 

commerce. 

In harmonizing the certification 

requirements for consumer products 

and commercial and industrial 

equipment, DOE believes it is also 

appropriate to provide more 

transparency in the certification report 

itself. As currently written, the 

Department’s rules for certification 

reports do not always provide DOE with 

a complete set of information to verify 

that a covered product or covered 

equipment is compliant with DOE’s 

regulations. Thus, DOE is proposing to 

expand the information submitted by 

manufacturers, including general 

requirements applicable to all products 

and product specific requirements. See 

section 429.19 of the proposed 

regulatory text for additional details. 

DOE is also proposing to make clear that 

all non-proprietary certification 

information will be considered public 

information subject to disclosure. By 

requiring additional relevant data to be 

supplied in the certification report, DOE 

will be able to more effectively enforce 

compliance with the conservation 

standards. Additionally, the public 

would have information to use in 

evaluating the energy efficiency of a 

covered product or covered equipment. 

Overall, the proposed revisions have 

been crafted to balance any incremental 

reporting burden on manufacturers 

against the Department’s need for 

comprehensive, timely, and accurate 

information about regulated products 

being sold in the United States. 

D. Enforcement Testing and 

Adjudication 

In addition, DOE is proposing 

regulations to make clear the extent of 

the Department’s enforcement authority 

under EPCA and the Department’s 

process for exercising that authority. 

DOE desires to make more transparent 

the process by which it currently 

exercises its statutory authority to: (1) 

Request information, by letter or 

subpoena, from manufacturers 

concerning the compliance of a basic 

model with an applicable conservation 

standard; (2) test or examine units of a 

given basic model to determine 

compliance with an applicable 

standard; and (3) take appropriate 

enforcement action as warranted. To 

that end, DOE proposes to establish a 

standardized process for seeking 

injunctive relief, civil penalties, or other 

remedies for violations of conservation 

standards and/or certification 

requirements. This includes developing 

a standard method for responding to 

complaints of non-compliance, 

notifying the allegedly non-compliant 

manufacturer of the complaint, and 

collecting any needed data via 

enforcement testing. Revising the 

current enforcement and adjudication 

procedures for consumer products and 

commercial and industrial equipment 

will provide certainty and clarity to the 

regulated industry and will ensure that 

the Department can initiate 

investigations promptly, respond to 

complaints effectively, and enforce its 

regulations in a fair and timely way. 

III. Discussion of Specific Revisions to 

DOE’s Certification, Compliance, and 

Enforcement Regulations and 

Comments Received in Response to the 

RFI 

In this section, DOE provides a 

section by section analysis of its 

proposed rule. As discussed above, DOE 

proposes to add a new Part 429 to its 

regulations to address, in one place, the 

certification, compliance, and 

enforcement of conservation standards 

for both consumer products and 

commercial and industrial equipment 

with the exception of electric motors. 

This new part would set forth the 

certification, compliance, and 

enforcement procedures to be followed 

to determine whether a basic model of 

a covered product or covered equipment 

complies with the applicable 

conservation standard. 

DOE received comments from 30 

interested parties, including 

manufacturers, trade associations, and 

advocacy groups. Specifically, 

comments were received from: 

Plumbing Manufacturers Institute, 

Alsons Corporation, Air-Conditioning, 

Heating, and Refrigeration Institute, 

National Resource Defense Council, 

Appliance Standards Awareness Project, 

Bosch and Siemens Home Appliances 

Group, Heat Transfer Products, United 

CoolAir Corporation, Bob McGarrah, 

Plumbing Americas, Bose Corporation, 

Intertek, First Company, National 

Automatic Merchandising Association, 

Mestek, Underwriters Laboratories, 

Trane, Sony Electronics Inc., 

Earthjustice, Delta Faucet Company, 

Hansgrohe, Consumers Union, 

Whirlpool Corporation, Association of 

Home Appliance Manufacturers, Shane 

Holt, General Electric, National 

Electrical Manufacturer’s Association, 

Rheem Manufacturing, Friedrich Air 

Conditioning Co., and American 

Standard Brands. These comments are 

discussed in more detail below. The full 

set of comments can be found at 

http://www.regulations.gov. 

A. Basic Model Provisions 

1. Basic Model Certification 

Under the DOE’s existing energy 

conservation program, DOE has applied 

the ‘‘basic model’’ concept to streamline 

certification and compliance and 

alleviate burden on manufacturers by 

reducing the amount of testing they 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 56799 

must do to rate the efficiencies of their 

products. DOE’s intent is that a 

manufacturer would treat each group of 

its models that have essentially 

identical energy consumption or water 

consumption characteristics as a ‘‘basic 

model,’’ such that the manufacturer 

would derive the efficiency rating for all 

models in the group from testing sample 

units of these models. All of the models 

in the group would comprise the ‘‘basic 

model,’’ and they would all have the 

same efficiency rating. For example, a 

manufacturer can identify as the same 

basic model black, white, and stainless 

steel finished dishwasher models with 

the same features and functions. By 

contrast, a manufacturer could produce 

two identical models of air conditioners 

with essentially the same internal 

components but which use a different 

control strategy affecting the energy 

consumption of the unit as measured by 

DOE’s test procedure. Even though both 

models have essentially the same 

physical characteristics, the models 

have different functional characteristics 

that affect the energy consumption and 

efficiency. 10 CFR Part 430.2(11). Thus, 

these models would be considered by 

DOE to be two different basic models. 

The Department recognizes, however, 

that additional clarity as to what 

constitutes ‘‘essentially identical’’ energy 

or water consumption across different 

model designs or modifications for 

purposes of a basic model may be 

helpful for certain types of products and 

equipment. To provide additional 

certainty and improve implementation 

of the basic model concept, the 

Department seeks comment on how 

manufacturers determine that a 

particular model constitutes a basic 

model. 

Sections 430.62(b) and 431.371(b) 

presently provide for recertification 

reporting to DOE if there is a change to 

a basic model that increases energy 

consumption or decreases energy 

efficiency. In the RFI, DOE sought input 

on implementing a recertification 

requirement whenever there is a change 

made to a basic model that increases or 

decreases energy efficiency or energy 

consumption. Several commenters in 

the manufacturing sector were opposed 

to this proposal. These filers stated that 

such a requirement would discourage 

producers from introducing product 

designs that improve energy efficiency 

and would increase cost and reporting 

burdens on manufacturers. Other 

commenters supported recertification if 

DOE established a threshold percentage 

that would trigger recertification, or if 

the recertification requirement was 

product specific. DOE has tentatively 

determined not to impose a separate 

model modification requirement at this 

time. However, the Department is 

retaining its requirement that new basic 

models—including models that are 

modified such that they are new basic 

models—must be certified before 

distribution in commerce. Accordingly, 

the Department is seeking comment to 

clarify what modifications to an existing 

model make it a new basic model 

subject to the new model certification 

requirement. 

DOE is interested in information 

regarding how a manufacturer 

determines that it has made changes to 

the features or energy use characteristics 

of a basic model so as to constitute a 

new basic model. Specifically, DOE is 

interested in the types of potential 

changes manufacturers may make to a 

given model and the difference in the 

energy use characteristics a typical 

change may have on a per product basis. 

Additionally, DOE seeks comment on 

whether it should propose a specific 

regulation that requires a new basic 

model declaration and filing when a 

modification to a given basic model 

impacts the energy characteristics of the 

product by a given de minimus 

percentage. If so, should these de 

minimus percentages be product 

specific, based on the manufacturing 

characteristics of the product and the 

variability experienced in testing? DOE 

seeks comment on how these de 

minimus percentages might change for 

each covered product and covered 

equipment. In addition, DOE believes 

characterizing the types of changes that 

constitute a new basic model will be 

particularly useful in the context of a 

verification testing program (addressed 

in III.C of this NOPR) in order to 

determine what fraction of basic models 

will be tested under the program. See 

Issue 1 under ‘‘Issues on Which DOE 

Seeks Comment’’ in section V of this 

NOPR. 

2. Basic Model Numbers 

In conjunction with the certification 

requirement described above for a basic 

model, DOE proposes to require that 

manufacturers change the basic model 

number whenever a new basic model is 

created. DOE believes this would 

improve the manner in which basic 

model numbers are designated so that 

the number that is provided to DOE for 

certification is clearly associated with 

the model number used to identify the 

unit in the market. This more unified 

approach to numbering changes would 

assist the Department and the public in 

identifying the market-based model 

number that corresponds with what is 

certified to DOE. 

DOE received comments from three 

trade associations and three 

manufacturers in protest of creating a 

more uniform numbering system. These 

groups stated that requiring a uniform 

numbering system across products, 

manufacturers, and models is not 

desirable because it would have high 

implementation costs and create 

confusion and that DOE should focus on 

ensuring that test reports match model 

numbers, rather than requiring 

companies to change their model 

numbering systems to meet DOE needs. 

One advocacy group commented 

positively on the proposal. To be clear, 

DOE’s proposal does not mandate any 

particular system or configuration of 

numbering models. Manufacturers and 

private labelers remain free to use 

whatever numbering system they 

choose. However, DOE continues to 

believe that requiring that the model 

numbering system, whatever it is, 

include a change in model number for 

each new basic model will allow for 

more transparency and consumer 

awareness. Thus, DOE proposes to 

establish a requirement that a new basic 

model number must be designated when 

a new basic model is created. 

In the RFI, DOE also sought comment 

on how a basic model should be 

identified such that the number 

provided to DOE for certification is 

clearly associated with the model 

number used to identify the unit in the 

market. Accordingly, DOE is proposing 

to define manufacturer model number 

as, essentially, the unique identifier for 

the product as it is sold. As described 

above, a basic model can subsume 

multiple manufacturer model numbers. 

DOE thus suggests that the manufacturer 

use one of the manufacturer model 

numbers as the basic model and identify 

all the manufacturer model numbers 

that are covered by that particular basic 

model. DOE believes this will provide 

further transparency between the 

certifications received by DOE and the 

model numbers a consumer sees in the 

market. 

B. Certification 

DOE proposes the following 

amendments relating to certification 

requirements. If DOE has obtained OMB 

clearance for the information collection 

prior to issuance of the final rule, these 

amendments would become effective 30 

days following publication of the final 

rule. The compliance date for the 

annual filing requirements would be the 

first day of the first month following the 

effective date. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
56800 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

1. Annual Certification Requirements 

Under existing DOE regulations, 

manufacturers of certain covered 

products and covered equipment must 

satisfy a one-time certification 

requirement for each basic model before 

the basic model can be distributed in 

commerce. DOE is proposing an annual 

certification reporting requirement for 

each basic model of covered product 

and covered equipment as discussed in 

section 429.19 of the proposed 

regulatory text. In order to reduce the 

reporting burdens on manufacturers, 

DOE proposes to consolidate the 

schedule of reporting requirements with 

the FTC’s schedule for consumer 

products, where possible. DOE 

determined the proposed annual filing 

schedule based generally upon the FTC 

schedule for similar product types 

subject to annual reporting under the 

FTC’s Appliance Labeling Rule (see 16 

CFR 305.8). For commercial and 

industrial equipment, DOE is aligning 

similar equipment types with the FTC 

schedule for consumer products. For 

example, a manufacturer of both 

residential and commercial airconditioning and heating equipment 

would be required to submit annually 

by July 1st under the proposed 

modifications. DOE believes aligning 

the reporting schedule for products of 

similar types will also help reduce the 

number of times annually a 

manufacturer has to submit information. 

As discussed above, DOE raised the 

possibility of annual reporting 

requirements in the RFI, and 

commenters were fairly equally divided 

in their responses to this proposal, with 

approximately half of commenters 

supporting annual certification and the 

other half opposed to an annual 

requirement because it would create 

additional cost and reporting burdens. 

DOE finds that the costs for annual 

filing would be minimal for consumer 

products, especially since it would be 

coupled with the manufacturer’s FTC 

submission for the same product. 

Although DOE acknowledges there 

could be small incremental costs for 

additional submissions for certain types 

of commercial and industrial 

equipment, these filings are needed to 

ensure that the Department and the 

public has accurate and comprehensive 

efficiency information. 

A number of commenters objected to 

DOE imposing annual testing 

requirements. For clarification, 

however, the proposed annual filing 

requirement is not an annual testing 

requirement. The proposed revision 

does not require any new or additional 

testing to be done. The Department’s 

pre-existing regulations require that 

basic models be tested to ensure 

compliance with the applicable 

standard before the unit is first 

introduced in commerce. The annual 

filing does not require retesting, but 

rather a yearly submission of the results 

of the testing already done for all 

models a manufacturer has in 

distribution in that year. In this way, 

annual submission of certification 

information would assure that DOE has 

the most current and complete picture 

of efficiency characteristics of covered 

products and covered equipment 

currently in the marketplace. 

2. Filings Consolidation With FTC 

In the RFI, DOE had discussed the 

possibility of consolidating filings with 

FTC and other agencies such as EPA. In 

response to a discussion of certification 

reporting requirements in the RFI, four 

commenters supported simplifying the 

reporting requirements and suggested 

creating a shared database between DOE 

and FTC for all products covered by 

DOE standards and FTC labels. Three 

commenters objected to the proposal, 

arguing that such a requirement would 

add additional burdens to those 

industries that do not participate in the 

FTC program. 

The Department continues to believe 

that a single Federal database for 

efficiency information would be of great 

value. At this time, however, the 

Department is consolidating its 

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. 

3. Revisions to the Reporting 

Requirements, General 

DOE is proposing to expand the 

information it is collecting for certain 

covered products and covered 

equipment to include additional details 

that will help DOE to better enforce its 

conservation standards. Specifically, 

DOE proposes to revise what 

information must be submitted as a part 

of a certification filing to ensure that the 

Department obtains the information it 

needs to effectively carry out its 

statutory enforcement obligations 

without unnecessarily burdening 

certifying parties. To begin, as a 

streamlining measure, DOE proposes to 

include the compliance statement as 

part of the certification report, rather 

than a separate filing, to reduce the 

number of submissions transmitted to 

DOE. Further, DOE seeks 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. Along these 

lines, DOE proposes that the following 

items be included in certification 

reports for all basic models of all 

covered products and covered 

equipment: the manufacturer name, the 

private labeler(s)’ name (as applicable), 

the brand name, the basic model 

number, and the individual model 

numbers covered by that basic model; 

the sample size and the total number of 

tests performed; and the certifying 

party’s U.S. Importer of Record 

identification numbers assigned by U.S. 

Customs and Border Protection 

pursuant to 19 CFR 24.5, if applicable. 

This information should be readily 

available to the certifying party and will 

allow the Department to more 

effectively monitor compliance, 

investigate complaints, and take 

appropriate enforcement action. 

Additionally, DOE proposes to require 

manufacturers to submit information 

related to waivers, exemptions, and 

approved alternative rating 

methodologies along with their 

certification submissions as appropriate. 

Manufacturers of covered products and 

covered equipment that are not covered 

under an existing test procedure, or that 

cannot meet a DOE conservation 

standard, have the option to either seek 

waivers of the test procedures under 

existing regulations or seek exception 

relief from the conservation standard 

from DOE’s Office of Hearings and 

Appeals (OHA). DOE proposes to 

require that manufacturers who obtain a 

waiver of test procedures or a grant of 

exception-based standards from OHA 

specify such information on the 

certification report submitted to the 

Department. This will serve to eliminate 

the current lengthy records review 

process the Department must now 

undertake to determine what test 

procedures or conservation standards 

apply to a certain basic model. It will 

also allow a manufacturer to tailor the 

certification to its situation rather than 

causing a manufacturer to certify that a 

product was tested in accordance with 

the DOE test procedure when the 

product was not, in fact, tested in 

accordance with the DOE test 

procedure. Similarly, DOE also proposes 

to require that any DOE-allowed 

alternative method of determining 

energy consumption or efficiency, such 

as an Alternative Rating Method (ARM) 

for untested split-system central air 

conditioners or heat pumps, or other 

alternative method of rating, such as 


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alternative efficiency determination 

methods (AEDMs) for commercial 

heating, ventilating, air-conditioning 

and water heating equipment (HVAC 

and WH) or distribution transformers, 

be indicated on the certification report 

to provide a clear picture of the test 

procedures or exceptions used as a basis 

for the certification. 

4. Product Specific Revisions to the 

Reporting Requirements 

As discussed generally above, DOE is 

proposing new certification reporting 

requirements for fluorescent lamp 

ballasts, general service incandescent 

lamps, candelabra base incandescent 

lamps, intermediate base incandescent 

lamps, certain types of commercial 

refrigeration equipment, beverage 

vending machines, and walk-in coolers 

and freezers. These annual reporting 

requirements were generally based upon 

the existing reporting requirements for 

certain types of consumer products and 

commercial and industrial equipment, 

which require the certification of a basic 

model before it is distributed in 

commerce. 

In addition, DOE proposes additional 

product-specific information that 

should be submitted to DOE as a part of 

the certification filing for a variety of 

consumer products and commercial 

equipment. DOE believes the addition of 

this information on the certification 

report for these products will provide a 

more complete set of information on a 

covered product or covered equipment 

and assist the Department in verifying 

that a covered product or covered 

equipment is compliant with DOE’s 

standards. All of the product specific 

reporting requirements are presented in 

10 CFR 429.19(b)(13). 

Lastly, DOE is proposing to revise the 

certification reporting requirements for 

existing products, where updates have 

been made to DOE’s conservation 

standards. For example, DOE is 

proposing to modify the certification 

reporting requirements for residential 

clothes washers to add a water factor 

reporting requirement starting on 

January 1, 2011. 

5. Certifying Entities 

Currently, DOE’s certification 

regulations allow either the 

manufacturer or private labeler to 

submit certification reports and 

compliance statements for each basic 

model. However, this approach lacks 

certainty as to who should submit data 

to DOE for privately labeled products. 

DOE is interested in removing 

uncertainty, preventing duplicative 

filings, and having a more 

comprehensive set of market data 

concerning each covered product and 

covered equipment. Accordingly, it is 

proposing to require that manufacturers 

be solely responsible for submitting the 

certification reports to DOE, which 

would include data regarding the 

manufacturer’s information, as well as 

the private labeler’s information and/or 

brand information, where appropriate. 

By placing the reporting burden on 

manufacturers, which, by statutory 

definition, includes importers, DOE 

would have more certainty that the 

certification information it receives for a 

product type is comprehensive. DOE 

also notes that, as discussed more fully 

below, a 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. 

6. Third Party Representation 

Currently, sections 430.62(e) and 

431.371(d) allow a manufacturer or 

private labeler to elect to use a third 

party to submit certification reports to 

DOE. While DOE intends to continue to 

permit this practice, DOE proposes to 

make clear in its regulations that it may 

refuse to accept certification reports 

from a third party with a poor history 

of performance (i.e., failure to properly 

submit reports on behalf of a 

manufacturer on at least two occasions). 

Most commenters were in agreement 

that third party submission of 

certification reports should continue to 

be allowed, with appropriate 

consequences for poor performance, 

such as improper certification. In 

particular, one trade association and one 

manufacturer asserted that third parties 

with greater than three failures should 

be put on probation or completely 

disallowed to submit reports. Other 

commenters, including a consumer 

advocacy group, suggested that 

manufacturers, and not third parties, 

should be held accountable for any 

misfiling by the third party. 

The Department agrees there is value 

in continuing its practice of allowing 

third party submission of certification 

reports. However, the Department 

proposes to make explicit in its 

regulations that the manufacturer 

remains ultimately responsible for 

submission of the certification reports to 

DOE. And, as mentioned, DOE’s 

proposal reserves the discretion to 

disallow a third party filing from a filer 

with a poor history of performance. 

7. Submission of Certification Reports 

The Department proposes to make 

electronic submission of certification 

reports through the Certification 

Compliance Management System 

(CCMS) found at http:// 

www.regulations.doe.gov/ccms the sole 

method of submission. The CCMS 

currently has sample templates for 

certain covered products and covered 

equipment available for manufacturers 

to use when submitting certification 

data to DOE. DOE plans to have these 

sample templates for all covered 

products and covered equipment when 

it issues the final rule for this 

rulemaking. DOE believes the 

availability of electronic filing through 

the CCMS system should reduce 

reporting 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. DOE notes 

that it is proposing to remove the 

certified mail and e-mail options for 

filing certification data that are 

currently allowed in DOE’s regulations. 

8. Initial Certification and Notice of 

Discontinuance 

In addition to the annual certification 

requirement, DOE proposes to retain the 

requirement in the existing regulations 

that any new basic model be certified 

before distribution in commerce. This 

initial certification requirement applies 

to newly manufactured and produced 

basic models as well as models that 

have been modified in a way that 

changes the model’s energy use 

characteristics and thus constitutes a 

new basic model. 

In addition, the Department proposes 

to require that discontinued models be 

reported to DOE as part of the next 

annual certification report period from 

when production of the model has 

ceased. A discontinued model is a 

model that is no longer distributed in 

commerce. 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.’’ (42 U.S.C. 6291(16)) 

Thus, a model has been discontinued 

when it is no longer being sold, or held 

out for sale or distribution, by the 

manufacturer or private labeler. 

9. Certification Testing 

In-House vs. Independent Testing 

The regulations currently permit inhouse, as well as independent, 

certification testing for determining 

compliance with DOE’s performancebased conservation standards. In the 

RFI, the Department requested 

comments as to whether all covered 

products and covered equipment should 


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be required to be independently tested 

for certification purposes. DOE received 

comments from ten manufacturers and 

two trade associations in protest of this 

suggestion. These commenters urged 

that independent testing would add no 

additional benefit to consumers, would 

increase costs and lower profit margins, 

cause delays which would stifle 

innovation and competition, and put 

small manufacturers out of business. 

DOE received positive comments from 

one advocacy group in support of the 

concept, who noted that such testing 

would ensure a higher level of 

confidence in manufacturer 

certification. In view of the above 

concerns, DOE recognizes that 

independent testing for purposes of 

certification may not be appropriate for 

all manufacturers and all industries. 

Therefore, DOE is maintaining the 

current certification testing procedures 

of allowing both in-house and 

independent testing. DOE plans to 

pursue verification testing in a future 

rulemaking and continues to seek 

comment on the attributes DOE should 

consider as part of its verification 

testing program. See Issue 2 under 

‘‘Issues on Which DOE Seeks Comment’’ 

in section V of this NOPR. The 

Department believes that a selfcertification approach, coupled with an 

appropriate verification program and 

robust enforcement, can facilitate 

compliance without unduly burdening 

manufacturers. 

Sampling Procedures for Certification 

Testing 

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 RFI, the Department 

sought comment regarding any needed 

changes in the current sampling plan for 

certification testing and the reasons the 

changes are warranted for a given 

product. The majority of comments DOE 

received on this issue were from 

manufacturers, who were all in 

agreement that the current sampling 

plans for certification is adequate and 

do not require change. Two trade 

associations commented similarly. 

Additionally, one advocacy group stated 

that the sampling plans for certification 

and enforcement testing should be 

similar, but may vary in some details 

including how the samples are 

procured, or sample size. 

For this rulemaking, DOE is 

consolidating existing sampling 

provisions in Part 429 and establishing 

sampling provisions for the types of 

consumer products and commercial 

equipment that do not currently have 

them. Section 323(b)(3) of EPCA, 

42 U.S.C. 6293(b)(3), requires a test 

procedure be reasonably designed to 

produce results measuring energy 

efficiency or energy use and not be 

unduly burdensome to conduct. DOE is 

proposing the use of a statistically 

meaningful sampling procedure for 

selecting test specimens of consumer 

products and commercial and industrial 

equipment to reduce the testing burden 

on manufacturers, while giving 

sufficient assurance that the true mean 

energy efficiency of a basic model meets 

or exceeds the represented measure of 

energy efficiency. The represented 

measure of energy efficiency is 

determined by the manufacturer based 

on the application of certification 

testing and DOE’s sampling procedures. 

DOE reviewed the existing sampling 

plans for consumer products and 

commercial and industrial equipment, 

which provided guidance on how many 

and which units to test to determine 

compliance. After reviewing the existing 

certification and enforcement sampling 

plans for consumer products and 

commercial and industrial equipment, 

DOE is proposing that the manufacturer 

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. As in the 

existing regulations, DOE does not 

propose a specific sample size for each 

product because the sample size is 

determined by the validity of the sample 

and how the mean compares to the 

standard, factors which cannot be 

determined in advance. Moreover, DOE 

believes that testing a randomly selected 

sample until a determination is reached 

is a method that arrives at a statistically 

valid decision on the basis of fewer tests 

than fixed-number sampling. As with 

the existing regulations, DOE is 

continuing to propose that 

manufacturers randomly select and test 

a sample of production units of a 

representative basic model, and then 

calculate a simple average of the values 

to determine the actual mean value of 

the sample. The confidence limits and 

coefficients are product specific and 

intended to reasonably reflect variations 

in materials, the manufacturing process, 

and testing tolerances. The proposed 

sampling plans for certification testing 

can be found in section 10 CFR 429.9 of 

the regulatory text. 

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 using sampling 

plans for certification testing, which 

provide manufacturers with the option 

of using the calculated values resulting 

from applying the criteria set forth in 

proposed section 10 CFR 429.9 or 

another representative value meeting 

the criteria in proposed section 10 CFR 

429.9; (3) whether DOE should continue 

to have different sampling plans for 

certification testing and enforcement 

testing; and (4) 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. 

In addition, DOE 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. For example, DOE could add a 

sampling provision for the measured 

storage volume of residential water 

heaters. The representative value of the 

measured storage volume could then be 

used in determining the energy 

efficiency of the product. DOE is 

seeking 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. See Issue 3 under 

‘‘Issues on Which DOE Seeks Comment’’ 

in section V of this NOPR. 

c. Provisions Specific to Commercial 

HVAC and WH Equipment, Including 

the Use of AEDMs and VICPs 

Currently, DOE’s sampling procedures 

for certification testing of commercial 

HVAC and WH are based on provisions 

allowing the use of an AEDM and 

whether a manufacturer participates in 

a VICP. See 10 CFR 431.174–176. DOE 

is continuing to allow the use of AEDMs 

for commercial HVAC and WH 

equipment once the manufacturer has 

met the criteria in 10 CFR 429.23 of the 

proposed rule. Currently, DOE has 

provisions requiring more stringent 

criteria for testing and the use of AEDMs 

for those manufacturers opting not to 

participate in a VICP. Specifically, DOE 

requires non-VICP manufacturers to 

conduct independent testing, use DOEprescribed sampling plans, and obtain 

DOE approval of its AEDMs (if 

applicable) before those methods may 

be used for compliance certification 

purposes. In addition, DOE requires that 

non-VICP manufacturers file a 


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compliance statement and certification 

report directly to DOE. 

In this NOPR, DOE is proposing to 

simplify the procedures governing 

sampling plans for certification testing, 

voluntary programs, and AEDM 

verification. Specifically, DOE is 

proposing one set of procedures for all 

types of commercial HVAC and WH 

equipment regardless of participation in 

a VICP. In particular, DOE is proposing 

that the sampling procedures currently 

applicable for non-VICP members be 

used for certification testing of all types 

of commercial HVAC and WH 

equipment and verification of the 

AEDM. DOE is proposing to allow 

manufacturers to use both in-house 

testing facilities and independent 

laboratories at the manufacturer’s 

discretion for certification testing. 

Lastly, DOE is continuing to allow thirdparty certification of compliance 

statements and certification reports 

regardless of participation in a VICP. 

DOE believes this approach treats all 

manufacturers equally and will simplify 

the provisions applicable to commercial 

HVAC and WH equipment. 

Even though DOE wants to encourage 

the use of voluntary industry 

certification programs, DOE is not 

proposing modifications to DOE’s 

provisions defining VICPs at this time. 

However, DOE is considering imposing 

a verification testing requirement for all 

product and equipment types. Such a 

requirement may entail changes to the 

current provisions governing VICPs in 

the second certification, compliance, 

and enforcement rulemaking. DOE thus 

seeks comment regarding the criteria 

defining VICPs and the use of VICPs in 

DOE’s certification, compliance, and 

enforcement programs. Specifically, 

DOE requests comment about the 

requirements and details for verification 

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

independent testing laboratory, a 

specific number of samples randomly 

tested, etc.) and 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. 

See Issue 4 under ‘‘Issues on Which DOE 

Seeks Comment’’ in section V of this 

NOPR. 

10. Records 

Maintenance of Records 

DOE proposes to establish a record 

retention requirement for certification 

reports that corresponds to the time 

period established for retention of test 

data under sections 430.62(d) and 

431.371(d). This would require 

certification reports, along with the 

underlying certification test data that is 

already required to be retained under 

sections 430.62(d) and 431.371(d), 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. 

b. Public Records 

In response to the RFI, two advocacy 

groups provided comments in support 

of making certification data publicly 

available. To that end, DOE proposes to 

clarify in its regulations that the 

following information submitted 

pursuant to the certification 

requirements is considered public 

information: the manufacturer’s name, 

brand name, model number(s), and all 

of the product-specific information 

submitted on the certification report. 

C. Enforcement Testing and 

Adjudication 

DOE proposes the following 

amendments relating to its enforcement 

testing and adjudication requirements. 

1. Enforcement Testing 

a. Initiation of Enforcement Action 

Pursuant to EPCA, DOE has authority 

to initiate enforcement actions to ensure 

compliance with its standards. The 

current regulations provide for 

enforcement testing upon DOE’s receipt 

of written information that a covered 

product or covered equipment may be 

violating a standard. DOE proposes 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. DOE may initiate enforcement 

testing on its own and is not required 

to rely solely on receipt of written 

information from another entity. 

In response to DOE’s questions 

relating to enforcement testing set forth 

in the RFI, three commenters asserted 

that DOE should have broader authority 

to initiate an enforcement proceeding, 

while six commenters argued that the 

standard of proof required to initiate a 

proceeding should be higher. Four 

commenters said they would support 

greater flexibility in enforcement 

procedures as long as plumbing 

products are excluded from those 

changes. 

After consideration of these 

comments, DOE 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. 

Furthermore, the ability of the 

Department to request records, test 

products, or examine design standard 

compliance, at any time, is crucial to the 

deterrent effect of the Department’s 

enforcement efforts. Making clear the 

Department’s authority as established by 

Congress to take these actions—in and 

of itself—will encourage compliance. 

Thus, the Department is proposing 

regulations for all covered products and 

covered equipment that make plain its 

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 is not compliant with an 

applicable standard. 

Test Notice 

DOE proposes to change the current 

requirements relating to the time period 

by which a manufacturer must ship test 

units of a basic model to the testing 

laboratory pursuant to a test notice. DOE 

proposes to reduce the time period from 

5 to 2 days, in order to ensure that the 

enforcement testing process is not 

unnecessarily delayed. Because select 

units are already boxed for shipping in 

most cases, DOE believes this will not 

impose additional burden on 

manufacturers. 

Sampling for Enforcement Testing 

The sampling procedures to be used 

for enforcement testing are set forth in 

Appendix B to Subpart F of Part 430, 

Appendix B to Subpart K of Part 431, 

Appendix C to Subpart S of Part 431, 

and Appendix D to Subpart T of Part 

431. Currently, the existing sampling 

plans for enforcement testing of 

consumer products require testing an 

initial sample of four products. Then, 

depending on the standard deviation of 

the 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. DOE recognizes a 

sample size of 20 total units may not 

always be available for basic models 

that are low-volume and built-to-order. 

To accommodate these circumstances 

and reduce burden on manufacturers, 

DOE proposes to modify the existing 


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sampling procedures for consumer 

products to account for low-volume and 

built-to-order basic models. DOE has 

modeled these provisions on the 

existing enforcement sampling 

provisions for commercial and 

industrial equipment, where lowvolume and built-to-order 

manufacturing is more common. 

Further, DOE proposes to retain the 

discretion to determine whether the 

basic model qualifies as low-volume or 

built-to-order. DOE proposes to make 

such determination by evaluating the 

number of units of a given basic model 

available at the manufacturer’s site and 

all distributors. 

Test Procedure Guidance and 

Enforcement Testing 

DOE has launched a new online 

database offering guidance on the 

Department’s test procedures for 

consumer products and commercial 

equipment. The new database will 

provide a publicly accessible forum for 

anyone with questions about—or 

needing clarification of—DOE’s test 

procedures. This new online resource 

will also ensure that all manufacturers 

and members of the public are equally 

and immediately aware of the 

Department’s interpretations of its test 

procedures. The database is available 

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

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

In response to questions submitted, 

the Department will develop draft 

interpretive guidance, post it on the 

public database, and solicit public 

comment for a period of 30 days. At the 

end of that comment period, draft 

guidance documents may be adopted as 

final, revised, or withdrawn. Guidance 

marked as final and posted on the 

database represents the definitive 

interpretation of the Department on the 

questions addressed and may be relied 

upon by industry and members of the 

public. DOE wishes to make clear that 

any test procedure guidance that is 

marked final on DOE’s database will be 

used by DOE when conducting 

enforcement testing. 

e. Test Unit Selection 

i. Collection Method 

In order to allow for maximum 

flexibility in obtaining test units for 

enforcement testing and to discourage 

units from being chosen that may not be 

representative of the product that the 

consumer receives, DOE proposes to 

revise its test unit selection provisions 

for enforcement testing to allow DOE to 

select the units of a basic model to be 

tested and to provide that, at DOE’s 

discretion, those units could come from 

the manufacturer, a distributor, or 

directly from the retailer. 

In response to questions in the RFI 

regarding test unit selection, DOE 

received several comments from various 

parties. One advocacy group, one 

manufacturer, and two trade 

associations supported test unit 

selection directly from retail sources. 

Another trade association and two 

manufacturers commented that 

manufacturers should be given the 

opportunity to determine where the 

products can be best selected. In the 

case of low-volume products, 

commenters suggested that DOE settle 

for built-to-order products or 

manufacturer written assurances. 

Reliable enforcement testing requires 

the selection and testing of an unbiased 

sample that is representative of the units 

distributed in commerce. DOE believes 

that providing Departmental flexibility 

in the test unit selection method will 

allow for the most reliable testing. 

Therefore, DOE proposes to provide in 

its regulations that units of a basic 

model to be tested for enforcement 

purposes may come from the distributor 

or retailer, as well as from the 

manufacturer. With regard to units that 

are specifically built-to-order or 

produced in low volume, the 

Department will determine the most 

reliable method of selecting units that 

are representative of those sold to 

consumers. 

ii. Selection Process 

In selecting test units for enforcement 

testing, existing regulations require a 

DOE representative to select a batch 

sample of up to 20 units, and test units 

from the batch sample. This 

requirement was intended to ensure that 

sufficient units were available for 

testing and to help prevent bias by 

requiring random sampling and by the 

quarantine of units at the outset of 

enforcement testing. DOE has found that 

this selection process is not always 

feasible due to varying production 

volume and distribution mechanisms. 

The Department proposes to revise this 

requirement to allow greater flexibility 

when selecting a sample for testing. 

Specifically, DOE proposes that DOE 

need not select a batch sample when it 

selects units off the retail shelf. In such 

circumstances, there is less concern 

about sample bias and no need to 

quarantine additional units. The 

proposed approach will minimize the 

burden on a manufacturer, while still 

allowing DOE to obtain a valid sample. 

DOE also proposes that, for particular 

products, the size of the sample selected 

may vary depending on the statistical 

sampling procedures that apply to the 

particular product for enforcement 

purposes. This variability exists for 

certain commercial equipment in the 

current regulations and reflects known 

variations in materials, the 

manufacturing process, and testing 

tolerances. To address production 

environments, such as build-to-order 

manufacturing or low volume 

production requirements, DOE is also 

proposing a new provision that will 

allow DOE to make a determination of 

compliance where a statistically valid 

sample size cannot be obtained. 

DOE proposes to increase the 

maximum sample size to 21 units in 

order to account for the test sample 

needed for certain types of consumer 

lighting products. Additionally, DOE 

proposes 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, so long 

as the testing is done in accordance with 

the DOE test procedures and 

certification testing provisions. In this 

way, the Department will not have to 

duplicate efforts already taken by itself 

or other agencies to test units for 

compliance. For example, if a unit was 

tested under the ENERGY STAR 

verification program, DOE is proposing 

to allow these test units and results to 

count towards the sample for 

enforcement testing. 

iii. Cost Allocation for Unit Selection 

In the RFI, the Department solicited 

comments on whether the cost 

allocation for test units should be the 

same regardless of how the units are 

obtained (e.g. off-the-shelf or 

manufacturer provided). DOE received 

two comments on this issue from 

manufacturers. In particular, one 

manufacturer asserted that the cost 

allocation should be the same regardless 

of how the product is obtained. On the 

contrary, another manufacturer argued 

that DOE should pay the cost if units are 

selected off-the-shelf. Section 6296(b)(3) 

of EPCA provides DOE with the 

authority to require a manufacturer to 

supply at its expense covered products 

and covered equipment to DOE for 

testing. Consistent with this statutory 

directive, DOE proposes to require 

manufacturers to continue to assume the 

expense of supplying basic models for 

enforcement testing, including 

reimbursing the distributor or retailer 

for any units DOE has directly acquired 

from such distributer or retailer, not to 

exceed twenty-one units. 

f. Testing at Manufacturer’s Option 

In the RFI, DOE requested comments 

on whether to remove the provision in 


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section 430.70(a)(6) relating to testing at 

the manufacturer’s option if a basic 

model is determined to be in 

noncompliance with the applicable 

conservation standard at the conclusion 

of DOE testing. DOE received five 

comments from manufacturers arguing 

that manufacturers should be given the 

opportunity to request a repeat of the 

tests. The Department wishes to clarify 

that current regulations do not provide 

for manufacturers to test the same units 

that DOE has already tested. On the 

contrary, sections 430.70(a)(6) and 

431.383(f) merely allow manufacturers 

to increase the testing sample size. 

Because manufacturers can perform 

additional testing on their own at any 

time, the Department proposes to 

remove existing sections 430.70(a)(6) 

and 431.383(f). There is no statutory 

requirement that manufacturers be given 

additional opportunities to test units 

found by DOE to be noncompliant, and 

the Department believes that such 

additional testing will only serve to 

delay the enforcement process. 

g. Cost Allocation for Testing 

In the RFI, DOE solicited comments 

relating to the distribution of costs for 

enforcement testing. Currently, 

enforcement testing is done at the 

Department’s expense. Most 

commenting manufacturers argued that 

DOE should be responsible for paying 

the cost of testing appliances, while one 

non-profit organization stated that the 

manufacturers should bear the cost. 

Three commenters suggested that DOE 

should pay if the manufacturer was 

found to be in compliance, and the 

manufacturer should pay if it was not. 

Commenters also urged DOE to limit 

testing where possible and to conduct 

targeted challenge testing rather than 

random tests. One commenter suggested 

that DOE should create an online testing 

cost calculator. 

DOE tentatively concludes that the 

cost of enforcement testing should 

remain with the Department and is not 

proposing a change at this time. 

2. Adjudication 

a. Improper Certification 

DOE proposes 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. While existing 

regulations already provide for 

enforcement action to be taken for 

improper certification or upon a 

determination of noncompliance, to 

eliminate any uncertainty, the 

Department proposes to make clear that 

a failure to certify covered products and 

covered equipment in accordance with 

the DOE rules is an independent 

violation of EPCA and DOE’s 

implementing regulations that may be 

subject to enforcement action. 

b. Failure To Test 

The Department proposes to clarify in 

its regulations that a failure to test any 

covered product or covered equipment 

subject to any of the conservation 

standards would be a violation of the 

applicable conservation standard. 

c. Distribution in Commerce After 

Notice of Noncompliance Determination 

DOE proposes to revise its regulations 

to make clear that a manufacturer or 

private labeler’s distribution in 

commerce of a basic model after a notice 

of noncompliance determination has 

been issued would constitute a 

prohibited act subject to enforcement 

action. 

d. Knowing Misrepresentation 

DOE proposes to establish 

enforcement steps to be taken to address 

those instances where a knowing 

misrepresentation has occurred. This 

may arise where a covered product or a 

covered equipment meets the applicable 

conservation standard, but not at the 

efficiency level that has been claimed. 

e. Penalties 

Existing statutory authority under 

EPCA allows DOE to assess civil 

penalties for knowing violations. Under 

section 6303 of the statute, each unit of 

a covered product or covered equipment 

found to be in violation of a prohibited 

act, such as failure to meet an applicable 

conservation standard, constitutes a 

separate violation. For certification 

requirement violations, per statutory 

authority and DOE guidance, the 

Department will calculate penalties 

based on each day a manufacturer 

distributes each basic model in 

commerce in the United States without 

having submitted a certification report. 

DOE proposes to revise its regulations to 

clearly state this penalty procedure. 

Additionally, DOE proposes to 

explicitly state in its regulations that, 

consistent with its guidance, it will 

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. 

f. 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 proposes 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. 

g. Compromise and Settlement 

The Department proposes to outline 

the steps to be taken by both parties 

(DOE and respondent) once a 

compromise or settlement offer has been 

made. 

D. Verification Testing 

In the RFI, DOE requested comments 

relating to a possible new requirement 

for periodic verification testing by 

manufacturers that would be applicable 

to all basic models certified to DOE. 

This requirement would be used to 

verify that the units distributed into 

commerce continue to perform at the 

certified levels. In particular, DOE 

solicited comments on whether 

manufacturers and/or private labelers 

should be required to perform 

verification testing according to certain 

conditions and criteria. DOE received 

extensive comments and suggestions on 

this issue, relating to costs, coverage, 

unit selection, information flow, testing 

labs and methodology. At this time, 

DOE has not yet made a determination 

as to the development of a verification 

program and instead has focused its 

initial efforts on revising its 

certification, enforcement testing and 

adjudication regulations. An effective 

verification program must be carefully 

crafted to balance the benefits of 

regularized compliance monitoring 

against the additional testing burdens 

on manufacturers. Moreover, such a 

program must be consistent and fair 

across all regulated product types, while 

accounting for legitimate differences in 

the diverse products covered by EPCA. 

DOE continues to seek comments about 

how to best balance the competing 

interests and achieve the Department’s 

overarching objective of ensuring 

compliance with the Federal 


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conservation standards. Specifically, 

DOE requests 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). 

E. Waivers 

DOE also addressed the possibility of 

establishing a mandatory waiver 

requirement in the RFI. 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 majority of 

comments the Department received in 

response to this information request 

agreed that DOE has authority to grant 

waivers, but were divided on whether 

the waiver requirement will hold new 

authority or whether it is just replicating 

an existing process. One commenter in 

support of the waiver process pointed 

out that a waiver can act as a sign that 

a test procedure is out-of-date. Another 

commenter urged the DOE to seek 

advice from relevant trade associations 

and standards committees before issuing 

a waiver. A third commenter argued that 

manufacturers should not be required to 

obtain a waiver at all if the test 

procedure does not address a specific 

product design. 

In view of these comments, the 

Department will continue to monitor the 

market to ensure that a manufacturer 

does not receive an unfair advantage 

due to product characteristics. 

F. Additional Product Specific 

Discussions and Issues for Which DOE 

Continues To Seek Comment 

1. Clarification of Entity Responsible for 

Compliance for Walk-In Coolers or 

Freezers 

In response to the test procedure 

notice of proposed rulemaking for walkin coolers or freezers (WICFs), several 

interested parties commented on DOE’s 

interpretation of the compliance testing 

responsibility associated with the role of 

‘‘manufacturer’’. 75 FR 186 (January 4, 

2010). Consistent with the Department’s 

consolidation of certification and 

enforcement provisions for all products 

into one section, we propose to address 

this issue as a part of today’s NOPR. 

In the comments on the test procedure 

notice, Craig cautioned that not holding 

contractors, end-users, or wholesalers 

accountable for WICF performance 

would remove the incentive for these 

entities to ensure compliance. It 

suggested that this would put 

manufacturers, who would be required 

to demonstrate compliance, at a 

competitive disadvantage due to testing 

costs to the manufacturers and cost 

differences to the end users. (EERE– 

2008–BT–TP–0014, Craig, No. 1.3.017 at 

p. 2 and Public Meeting Transcript, No. 

1.2.010 at pp. 140 and 179) Kysor 

suggested that the general contractor at 

the end-use site could certify the WICF, 

as general contractors already go 

through a certification process for other 

parts of a building. (EERE–2008–BT– 

TP–0014, Kysor, Public Meeting 

Transcript, No. 1.2.010 at pp. 66 and 

75¥76) Arctic added that a 

manufacturer does not have complete 

control over WICF efficiency because 

the end-user’s behavior can also affect 

WICF performance. (EERE–2008–BT– 

TP–0014, Arctic, Public Meeting 

Transcript, No. 1.2.010 at p. 80) 

Others commented on the role of the 

installer—that is, the entity who places 

or constructs the WICF in its end use 

location—in ensuring compliance with 

the regulation. Craig, Schott Gemtron, 

and Bally stated that the installer should 

be considered the manufacturer and 

thus be held responsible for ensuring 

compliance. Bally stated that infiltration 

in particular depends on the ability of 

the installer and that Bally does not 

control the installation procedure. 

(EERE–2008–BT–TP–0014, Bally, Public 

Meeting Transcript, No. 1.2.010 at p. 

132) Schott Gemtron stated that 

incorrect installation affects WICF 

performance, which, in its view, should 

be the responsibility of the installer 

because WICF manufacturers cannot 

ensure proper installation. (EERE–2008– 

BT–TP–0014, Schott Gemtron, Public 

Meeting Transcript, No. 1.2.010 at pp. 

67 and 139) 

Craig agreed that the manufacturer 

cannot control installation in the field, 

but Craig also mentioned that testing at 

the point of installation would be 

infeasible if every application would 

need to be tested. (EERE–2008–BT–TP– 

0014, Craig, Public Meeting Transcript, 

No. 1.2.010 at pp. 70–71) Craig 

recommended that DOE define the 

installer as the manufacturer and hold 

the installer responsible for compliance, 

or, alternatively, require that the 

manufacturer assume responsibility and 

control of all aspects of the process— 

including installation—so that the 

manufacturer could verify that the WICF 

is tested correctly and meets DOE’s 

requirements. (EERE–2008–BT–TP– 

0014, Craig, No. 1.3.017 at p. 1 and 

Public Meeting Transcript, No. 1.2.010 

at pp. 23, 25 and 52) 

American Panel contended that a 

requirement for a factory representative 

to oversee installation would be cost 

prohibitive to the end user. (EERE– 

2008–BT–TP–0014, American Panel, 

Public Meeting Transcript, No. 1.2.010 

at pp. 74 and 79) Kason urged DOE not 

to consider the installer the 

manufacturer because installers have no 

control over system design and 

components. (EERE–2008–BT–TP–0014, 

Kason, No. 1.3.0XX at p. 1) American 

Panel agreed that the installer should 

not be part of the testing and 

certification process set forth by DOE. 

(EERE–2008–BT–TP–0014, American 

Panel, No. 1.3.024 at p. 3) 

In general, the ‘‘manufacturer’’ is the 

entity responsible for compliance with 

any DOE performance standard. EPCA 

defines the term ‘‘manufacture’’ as ‘‘to 

manufacture, produce, assemble or 

import.’’ 42 U.S.C. 6291(10) The breadth 

of this definition leaves open numerous 

entities that could be held responsible 

for compliance with a WICF 

performance standard. To clarify the 

application of this term in the case of 

WICFs, DOE proposes that the term be 

applied to the entity responsible for 

designing and/or selecting the various 

components used in a WICF. The term 

could apply to different entities in 

different situations. If an entity 

physically manufactures all components 

that comprise the WICF, that entity 

would be considered the manufacturer. 

Alternatively, if an entity physically 

manufactures some of the components 

that comprise the WICF and purchases 

other components from a supplier, and 

assembles all components into a 

complete WICF or supplies all 

components as a complete kit for 

assembly at a customer’s site, that entity 

would be considered the manufacturer. 

In this context, a third party that does 

not manufacture any components but 

rather chooses the components that 

comprise the WICF, would be 

considered the manufacturer of the 

WICF for purposes of EPCA. DOE 

believes this addresses Craig’s concern 

that certain parties involved in the 

manufacture of a WICF could be put at 

a competitive disadvantage to others. 

While DOE recognizes that incorrect 

installation or use could affect the 

performance of the WICF, as stated by 

Craig, Schott Gemtron, and Bally, DOE 

believes that testing and compliance 

responsibility in the case of WICFs 

should not rest with an entity that 

simply installs this equipment. This is 

because an entity who solely installs the 

equipment, and does not make design 

decisions about the components that are 

included in the equipment, would not 

be in a position to certify compliance 

with the regulations, as suggested by 

American Panel and Kason. Therefore, 

DOE proposes that entities responsible 


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for physical installation of the system 

would not be required to certify 

compliance if they do not otherwise 

meet criteria for being considered the 

manufacturer, assuming that the 

envelope or refrigeration system is 

physically assembled in accordance 

with the applicable technical 

specifications developed by the 

manufacturer. 

The unique nature of WICFs requires 

DOE to consider carefully the 

assignment of compliance-related 

responsibilities. The high level of 

customization that appears in a 

significant number of WICF requires 

DOE to apply its requirements in a 

manner that recognizes the issues 

presented by this market. Accordingly, 

while DOE could opt to require every 

entity in the manufacturing chain to 

certify compliance, or even assign that 

responsibility solely to the installer, the 

agency believes that the entity who 

designs the WICF and/or selects 

components of a WICF, is in the best 

position to ensure that the WICF, when 

properly installed, will satisfy the 

required standard. DOE believes that 

this approach best balances the equities 

involved with the manufacture and 

installation of this type of equipment. 

Accordingly, DOE proposes the 

following definition of manufacturer of 

a WICF: 

Manufacturer of a walk-in cooler or 

walk-in freezer means any person who 

manufactures, produces, assembles or 

imports such a walk-in cooler or walkin freezer, including any person who: 

(1) Manufactures, produces, 

assembles, or imports a walk-in cooler 

or walk-in freezer in its entirety, 

including the collection and shipment 

of all components that affect the energy 

consumption of a walk-in cooler or 

walk-in freezer; 

(2) Manufactures, produces, 

assembles or imports a walk-in cooler or 

walk-in freezer in part, and specifies or 

approves the walk-in cooler or walk-in 

freezer’s components that affect energy 

consumption, including refrigeration, 

doors, lights, or other components 

produced by others, as for example by 

specifying such components in a 

catalogue by make and model number or 

parts number; 

(3) Is any vendor who sells a walk-in 

cooler or walk-in freezer that consists of 

a combination of components that affect 

energy consumption, which are not 

specified or approved by a person 

described in paragraph (1) or (2) of this 

definition; or 

(4) Is an individual or a company who 

arranges for a walk-in cooler or walk-in 

freezer to be assembled at his own or 

any other specified premises from 

components that affect energy 

consumption, which are specified and 

approved by him and not by a person 

described in paragraph (1), (2), or (3) of 

this definition. 

DOE believes the burden on 

manufacturers of certifying compliance 

with these prescriptive standards will 

be minimal because no test is necessary 

to determine compliance with most of 

the requirements. The chief burden 

imposed by this rule is a certification 

report burden of providing DOE 

information to show that the product is 

in compliance with the design standards 

in EISA 2007. DOE is proposing that 

manufacturers use the online CCMS 

templates that DOE develops. DOE notes 

that the manufacturer, as defined, will 

be required to certify to DOE that the 

equipment meets the prescriptive 

requirements, rather than the general 

contractor as suggested by Kysor, unless 

the general contractor meets the criteria 

for being considered the manufacturer. 

Furthermore, although the end user’s 

behavior does affect WICF performance 

as stated by Arctic, DOE will not 

consider the end user responsible for 

compliance unless the end user meets 

the criteria for being considered the 

manufacturer. 

In addition, DOE’s regulations for 

WICF specify a test for one requirement: 

EPCA contains R-value requirements for 

insulation and states, ‘‘for the purpose of 

test procedures for WICF: The R-value 

shall be the 1/K factor multiplied by the 

thickness of the panel. The K factor 

shall be based on ASTM test procedure 

C518–2004.’’ 42 U.S.C. 6314(a)(9)(A)(i)- 

(ii). This means that ASTM C518–2004 

must be used to test foam to determine 

its R-value. However, for purposes of 

certifying compliance with the R-value 

requirements, the manufacturer may 

elect to use the test procedure to test the 

foam that they use, or the manufacturer 

may rely on the results of testing done 

by a third party on their behalf, for 

instance, a test lab or the foam supplier. 

Nevertheless, the manufacturer is still 

responsible for complying with the 

standard. 

2. Submission of Data Requirements for 

Fluorescent Lamp Ballast 

Under DOE’s existing regulations, 

fluorescent lamp ballast manufacturers 

currently are not required to submit 

compliance statements and certification 

reports. In March 2010, DOE published 

a test procedure NOPR that proposed 

submission of data requirements for 

fluorescent lamp ballasts that would 

become effective one year following the 

final rule publication of such 

requirements. 75 FR 14288 (March 24, 

2010). 

In response to that proposal, 

Earthjustice, the Northwest Energy 

Efficiency Alliance (NEEA), Northwest 

Power and Conservation Council 

(NPCC) and several CA utilities 

supported the addition of submission of 

data requirements. (EERE–2009–BT– 

TP–0016; NEEA & NPCC, No. 32 at p. 

10; Earthjustice, No. 14 at p. 1; CA 

Utilities, No. 13 at p. 3) Earthjustice 

added that as there have been no 

changes made to the test procedure that 

would require retesting to determine 

compliance with existing standards, 

there is no justification for permitting a 

full year before manufactures must 

submit data. It cited a precedent (74 FR 

65105 (December 9, 2009)) in which 

DOE allowed a timeline of 30 days for 

manufactures to submit required 

certification reports and compliance 

statements. Earthjustice also commented 

that DOE should publish a separate final 

rule to require written documentation of 

compliance with energy conservation 

standards on an accelerated timeframe 

in advance of the full test procedure 

final rule. (EERE–2009–BT–TP–0016; 

Earthjustice, No. 14 at p. 1) 

DOE agrees that fluorescent lamp 

ballasts should be included in the 

provisions for written documentation of 

compliance with energy conservation 

standards on an accelerated timeline. 

For that reason, DOE is proposing to 

include provisions for the certification 

of fluorescent lamp ballasts. The 

proposed revisions will require that 

ballast manufacturers follow all existing 

provisions of subpart F of 10 CFR part 

430 and report ballast efficacy factor, 

power factor, number of lamps operated 

by the ballast, and type of lamp 

operated by the ballast. 

3. Certification, Compliance, and 

Enforcement for Electric Motors 

As explained throughout the NOPR, 

DOE has not proposed moving or 

changing any of the certification, 

compliance, and enforcement 

provisions related to electric motors. 

However, DOE will be considering 

consolidating the provisions, as 

applicable, with the proposals from 

today’s NOPR in the second 

certification, compliance, and 

enforcement rulemaking. Consequently, 

DOE is seeking comments 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. 

In the next certification, compliance, 

and enforcement rulemaking, DOE will 

consider an annual certification 

requirement for motors similar to what 


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56808 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

it is proposing for all other types of 

covered products and covered 

equipment in today’s proposed rule. In 

light of the annual requirement for other 

products, DOE specifically seeks 

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. See Issue 5 under ‘‘Issues on 

Which DOE Seeks Comment’’ in section 

V of this NOPR. 

4. Enforcement for Imports and Exports 

As DOE puts an additional emphasis 

on enforcing its regulatory program, 

DOE believes that some of the proposals 

in today’s notice will aid in enforcing 

DOE’s regulations relating to products 

imported and exported from the United 

States. Specifically, DOE is proposing to 

modify the label on exported products 

to read ‘‘NOT FOR SALE IN THE 

UNITED STATES’’ to make it clear that 

this product is not for distribution in 

commerce in the United States. In 

addition, DOE is interested in seeking 

comment from interested parties on how 

DOE could modify its certification, 

compliance, and enforcement 

provisions to more effectively enforce at 

the border. See Issue 6 under ‘‘Issues on 

Which DOE Seeks Comment’’ in section 

V of this NOPR. 

IV. Procedural Issues and Regulatory 

Review 

E. 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). 

F. 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 proposed 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 

proposed 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 

proposed rule, if promulgated, would 

not have a significant effect on a 

substantial number of small entities. 

Therefore, DOE has prepared an IRFA 

for this rulemaking. The IRFA describes 

potential impacts on small businesses 

associated with certification, 

compliance, and enforcement 

requirements on covered products and 

covered equipment. 

DOE has transmitted a copy of this 

IRFA to the Chief Counsel for Advocacy 

of the Small Business Administration 

(SBA) for review. 

1. Reasons for the Proposed Rule 

The reasons for this proposed rule are 

discussed elsewhere in the preamble 

and not repeated here. 

2. Objectives of and Legal Basis for the 

Proposed Rule 

The objectives of and legal basis for 

the proposed 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). 

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 proposed rule potentially 

impacts manufacturers of almost all 

types of covered products and covered 

equipment subject to DOE’s energy 

conservation, water conservation, and 

design standards. 

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

Covered product or covered equipment type NAICS code 

NAICS definition 

of small 

manufacturer 

(number of employees) 

Total number of 

small 

manufacturers 

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Covered product or covered equipment type NAICS code 

NAICS definition 

of small 

manufacturer 

(number of employees) 

Total number of 

small 

manufacturers 

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

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

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

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

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

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

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

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

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

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

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

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

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

Commercial packaged boilers ................................................................................... 333414 or 332410 ≤500 13 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Description and Estimate of 

Compliance Requirements 

Many of the certification, compliance, 

and enforcement provisions subject to 

today’s final rule are already codified in 

existing regulations for consumer 

products and commercial and industrial 

equipment. As a result, DOE expects the 

impact on all manufacturers to be 

minimal. Many of the changes being 

proposed in today’s final rule surround 

expanding DOE’s existing certification 

requirements and could slightly 

increase the recordkeeping burden. DOE 

does not expect manufacturers of all 

types to incur any capital expenditures 

as a result of the proposals, since the 

rulemaking does not impose any 

product-specific requirements that 

would require changes to existing 

plants, facilities, product-specifications, 

or test procedures. Rather, this rule 

clarifies sampling requirements and 

imposes certain data reporting 

requirements, which may have a slight 

impact on labor costs. 

With regard to sampling for 

certification testing, this rule clarifies 

that the minimum number of units 

tested for certification compliance must 

be no less than 2 unless a different 

minimum number is specified. DOE 

does not believe this specification 

increases the testing burden on 

manufacturers because DOE has always 

required a minimum of 2 samples, if not 

more, to achieve a realistic sample mean 

and to mitigate the risk of a product to 

be out of compliance. For a small 

number of products, DOE is proposing 

statistical sampling procedures that are 

based on previously established 

procedures for consumer products and 

commercial equipment. These 

procedures are designed to keep the 

testing burden on manufacturers as low 

as possible, while still providing 

confidence that the test results can be 

applied to all units of the same basic 

model. In some cases, manufacturers are 

permitted to use analytical procedures, 

such as computer simulations, to 

determine the efficiencies of their 

products, which will further minimize 

testing burden. 

With regard to certification, the 

proposal considers requiring 

manufacturers of covered products and 

covered equipment to certify annually 

that their products meet the applicable 

energy conservation standard, water 

conservation standard or design 

standard. It is expected that 

manufacturers will re-submit the 

original certification testing information 

each year for basic models with no 

modifications affecting energy 

consumption, water consumption, or 

design. As DOE currently requires 

manufacturers to submit certification 

information at the introduction of a new 

or modified basic model, DOE does not 

anticipate that annual certification on 

products already submitted will add 

substantial additional burden to 

manufacturers. 

The cost of certification testing will 

depend on the number of basic models 

a manufacturer produces. The cost of 

certifying should be minimal once 

testing for each basic model has 

occurred pursuant to the test procedures 

prescribed by DOE. 

DOE estimates that a typical firm 

would spend approximately 20 hours 

complying with the additional 

certification, compliance, and 

enforcement procedures being 

considered in today’s proposed rule. 

This estimate does not include any 

testing burden, which results from 

DOE’s test procedures. DOE has already 

considered this burden on all 


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manufacturers in the test procedure 

rulemakings for individual 

manufacturers. Instead, this burden 

represents the time it would take a 

certification engineer to gather the 

appropriate data, apply the statistical 

sampling methods required, and submit 

the required certification to DOE both 

for new basic models and on an annual 

basis. DOE has tried to mitigate the 

impacts on all manufacturers by 

aligning the annual certification 

schedule with the Federal Trade 

Commission’s model submission 

schedule for consumer products. At 

most, DOE expects an average 

manufacturer to allocate 4 of the 20 

hours to meeting the annual 

certification reporting requirement. 

DOE notes that these values likely 

overestimate the manufacturer reporting 

burden, as the Federal Trade 

Commission currently requires annual 

submission of data regarding all basic 

models distributed into commerce for 

consumer products, and many voluntary 

programs also require annual data 

submission. 

In addition, to minimize the impact 

that annual certification filings may 

have on manufacturers, DOE has 

introduced the online CCMS system 

through which manufacturers would be 

required to submit their products for 

certification. In addition, DOE is making 

available CCMS templates for each 

product, which clearly lay out the 

certification requirements for each 

covered product and covered 

equipment. 

5. Duplication, Overlap, and Conflict 

With Other Rules and Regulations 

DOE is not aware of any rules or 

regulations that duplicate, overlap, or 

conflict with the proposed rule being 

considered today. 

6. Significant Alternatives to the Rule 

This section considers alternatives to 

the proposals in today’s certification, 

compliance, and enforcement 

rulemaking. DOE could mitigate the 

small potential impacts on small 

manufacturers by reducing the number 

of samples used, eliminating the annual 

certification filing, or by expanding the 

groupings of models. However, DOE 

strongly believes the proposals in 

today’s rulemaking are essential to a 

sustainable and consistent enforcement 

program for all of the covered products 

and covered equipment. While these 

alternatives may mitigate the potential 

economic impacts on small entities 

compared to the proposed provisions, 

the ability for DOE to enforce its energy 

conservation regulations far exceeds any 

potential burdens. Thus, DOE rejected 

these alternatives and is proposing the 

certification, compliance, and 

enforcement provisions set forth in this 

rulemaking for all manufacturers of 

covered products and covered 

equipment. DOE continues to seek input 

from businesses that would be affected 

by this rulemaking and will consider 

comments received in the development 

of any final rule. 

C. Review Under the Paperwork 

Reduction Act 

1. Description of the Requirements 

DOE is developing regulations to 

implement reporting requirements for 

energy conservation, water 

conservation, and design standards, and 

to address other matters including 

compliance certification, prohibited 

actions, and enforcement procedures for 

covered consumer products and 

commercial and industrial equipment 

covered by EPCA. 

DOE is proposing to require 

manufacturers of covered consumer 

products and commercial and industrial 

equipment to maintain records about 

how they determined the energy 

efficiency, energy consumption, water 

consumption or design features of their 

products. DOE is also proposing to 

require manufacturers to submit a 

certification report indicating that all 

basic models currently produced 

comply with the applicable standards 

using DOE’s testing procedures, as well 

as include the necessary product 

specific certification data. The 

certification reports are submitted for 

each basic model, either when the 

requirements go into effect (for models 

already in distribution) or when the 

manufacturer begins distribution of a 

particular basic model, and annually 

thereafter. Reports must be updated 

when a new model is introduced or a 

change affecting energy efficiency or use 

is made to an existing model. The 

collection of information is necessary 

for monitoring compliance with the 

conservation standards and testing 

requirements for the consumer products 

and commercial and industrial 

equipment mandated by EPCA. 

The information that would be 

required by these regulations, if 

finalized, and that is the subject of this 

proposed collection of information, 

would be submitted by manufacturers to 

certify compliance with energy 

conservation, water conservation, and 

design standards established by DOE. 

DOE would also use the information to 

determine whether an enforcement 

action is warranted and to better inform 

DOE during a test procedure and energy 

conservation standards rulemaking. 

The certification and recordkeeping 

requirements for certain consumer 

products in 10 CFR part 430 have 

previously been approved by OMB and 

assigned OMB control number 1910– 

1400. DOE is renewing the previously 

approved certification and 

recordkeeping requirements, as well as 

submitting these new proposed 

certification and recordkeeping 

requirements for all consumer products 

and commercial and industrial 

equipment subject to certification, 

compliance, and enforcement 

regulations to OMB for review and 

approval under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

2. Method of Collection 

Respondents must submit electronic 

forms using DOE’s on-line CCMS 

system. 

3. Data 

The following are DOE estimates of 

the total annual reporting and 

recordkeeping burden imposed on 

manufacturers of all consumer products 

and commercial and industrial 

equipment subject to certification, 

compliance, and enforcement 

provisions. These estimates take into 

account the time necessary to develop 

testing documentation, complete the 

certification, and submit all required 

documents to DOE electronically. 

OMB Control Number: 1910–1400. 

Form Number: None. 

Type of Review: Regular submission. 

Affected Public: Manufacturers of 

consumer products and commercial and 

industrial equipment covered by the 

rulemakings discussed above. 

Estimated Number of Respondents: 

2,916. 

Estimated Time per Response: 

Certification reports, 20 hours. 

Estimated Total Annual Burden 

Hours: 58,320. 

Estimated Total Annual Cost to the 

Manufacturers: $4,374,000 in 

recordkeeping/reporting costs. 

4. Comments 

Comments are invited on: (a) Whether 

the proposed collection of information 

is necessary for the proper performance 

of the functions of the agency, including 

whether the information shall have 

practical utility; (b) the accuracy of the 

agency’s estimate of the burden 

(including hours and cost) of the 

proposed collection of information; (c) 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and (d) ways to minimize the 

burden of the collection of information 

on respondents, including through the 

use of automated collection techniques 


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or other forms of information 

technology. Comments submitted in 

response to this notice will be 

summarized and/or included in the 

request for OMB approval of this 

information collection; they also will 

become a matter of public record. 

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 proposed 

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 proposed 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 

proposed regulations 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 

http://www.gc.doe.gov). Today’s 

proposed 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 proposed 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 


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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 proposed 

regulatory action, which proposes 

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. Public Participation 

A. Attendance at Public Meeting 

The time, date, and location of the 

public meeting are provided in the 

DATES and ADDRESSES sections at the 

beginning of this document. Anyone 

who wants to attend the public meeting 

must notify Ms. Brenda Edwards at 

(202) 586–2945. Foreign nationals 

visiting DOE headquarters are subject to 

advance security screening procedures. 

B. Procedure for Submitting Requests To 

Speak 

Any person who has an interest in the 

topics addressed in this notice, or who 

is a representative of a group or class of 

persons that has an interest in these 

issues, may request an opportunity to 

make an oral presentation at the public 

meeting. Such persons may handdeliver requests to speak to the address 

shown in the ADDRESSES section at the 

beginning of this notice between 9 a.m. 

and 4 p.m., Monday through Friday, 

except Federal holidays. Requests may 

also be sent by mail or email to: Ms. 

Brenda Edwards, U.S. Department of 

Energy, Building Technologies Program, 

Mailstop EE–2J, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121, or Brenda.Edwards@ee.doe.gov. 

Persons who wish to speak should 

include in their request a computer 

diskette or CD in WordPerfect, Microsoft 

Word, PDF, or text (ASCII) file format 

that briefly describes the nature of their 

interest in this rulemaking and the 

topics they wish to discuss. Such 

persons should also provide a daytime 

telephone number where they can be 

reached. 

DOE requests that those persons who 

are scheduled to speak submit a copy of 

their statements at least one week prior 

to the public meeting. DOE may permit 

any person who cannot supply an 

advance copy of this statement to 

participate, if that person has made 

alternative arrangements with the 

Building Technologies Program in 

advance. When necessary, the request to 

give an oral presentation should ask for 

such alternative arrangements. 

C. Conduct of Public Meeting 

DOE will designate a DOE official to 

preside at the public meeting and may 

also employ a professional facilitator to 

aid discussion. The public meeting will 

be conducted in an informal, conference 

style. The meeting will not be a judicial 

or evidentiary public hearing, but DOE 

will conduct it in accordance with 

section 336 of EPCA (42 U.S.C. 6306). 

Discussion of proprietary information, 

costs or prices, market share, or other 

commercial matters regulated by U.S. 

anti-trust laws is not permitted. 

DOE reserves the right to schedule the 

order of presentations and to establish 

the procedures governing the conduct of 

the public meeting. A court reporter will 

record the proceedings and prepare a 

transcript. 

At the public meeting, DOE will 

present summaries of comments 

received before the public meeting, 

allow time for presentations by 

participants, and encourage all 

interested parties to share their views on 

issues affecting this rulemaking. Each 

participant may present a prepared 

general statement (within time limits 

determined by DOE) before the 

discussion of specific topics. Other 

participants may comment briefly on 

any general statements. At the end of 

the prepared statements on each specific 

topic, participants may clarify their 

statements briefly and comment on 

statements made by others. Participants 

should be prepared to answer questions 

from DOE and other participants. DOE 

representatives may also ask questions 

about other matters relevant to this 

rulemaking. The official conducting the 

public meeting will accept additional 

comments or questions from those 

attending, as time permits. The 

presiding official will announce any 

further procedural rules or modification 

of procedures needed for the proper 

conduct of the public meeting. 

DOE will make the entire record of 

this proposed rulemaking, including the 

transcript from the public meeting, 

available for inspection at the U.S. 

Department of Energy, 6th Floor, 950 

L’Enfant Plaza, SW., Washington, DC 

20024, (202) 586–2945, between 9 a.m. 

and 4 p.m., Monday through Friday, 

except Federal holidays. Anyone may 

purchase a copy of the transcript from 

the transcribing reporter. Additionally, 

the record for this proposed rulemaking 

will be made available at http:// 

www.regulations.gov. 

D. 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 

DOE’s e-mail 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. 

E. Issues on Which DOE Seeks Comment 

DOE is particularly interested in 

receiving comments on the following 

issues: 

1. DOE seeks comment on how 

manufacturers determine that a 

particular model constitutes a new basic 


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model, the types of potential changes 

manufacturers may make to a given 

model, and the difference in the energy 

use characteristics a typical change may 

have on a per product basis. For 

example, should DOE contemplate 

proposing a specific regulation that 

requires a new basic model declaration 

and filing when a modification to a 

given basic model impacts the energy 

characteristics of the product by a given 

de minimus percentage? DOE seeks 

comment on how these de minimus 

percentages might change for each 

covered product and covered 

equipment. 

2. DOE seeks comment on the 

attributes DOE should consider as part 

of its verification testing program. 

3. DOE seeks 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 requests comment 

about the requirements and details for 

verification testing programs (e.g., the 

use of an independent testing 

laboratory, a specific number of samples 

randomly tested, etc.) and 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. 

4. DOE 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 is seeking 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. 

5. DOE is seeking comments 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. In light of the annual 

requirement for other products, DOE 

specifically seeks 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. 

6. DOE is interested in seeking 

comment from interested parties on how 

DOE could modify its certification, 

compliance, and enforcement 

provisions to more effectively enforce at 

the border. 

7. DOE continues to seek comment 

from businesses that would be affected 

by this rulemaking and will consider 

comments received in the development 

of any final rule. 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s NOPR. 

List of Subjects 

10 CFR Part 429 

Confidential business information, 

Energy conservation, Household 

appliances, Imports, 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 August 31, 

2010. 

Henry Kelly, 

Acting Assistant Secretary, Energy Efficiency 

and Renewable Energy. 

Scott Blake Harris, 

General Counsel. 

For the reasons stated in the 

preamble, DOE is proposing to amend 

chapter II, subchapter D, of title 10 of 

the Code of Federal Regulations, 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. 

429.3 Definitions. 

Subpart B—Sampling for Certification 

Testing 

429.9 Units to be tested. 

Subpart C—Certification 

429.17 Purpose and scope. 

429.19 Certification. 

429.21 Testing Requirements for 

Certification. 

429.23 Alternative Methods for 

Determining Efficiency or Energy Use. 

Subpart D—General Provisions 

429.24 Maintenance of records. 

429.25 Imported products. 

429.26 Exported products. 

429.27 Public record. 

Subpart E—Enforcement 

429.29 Purpose and scope. 

429.31 Prohibited acts subjecting persons to 

enforcement action. 

429.33 Investigation of compliance. 

420.34 Review of certification data. 

429.35 Subpoena. 

429.36 Testing. 

429.37 Test notice. 

429.39 [Reserved]. 

429.41 Test unit selection. 

429.43 Test unit preparation. 

429.45 Sampling for enforcement testing. 

429.47 [Reserved] 

429.49 Notice of noncompliance 

determination to cease distribution of a 

basic model. 

429.51 Additional certification testing 

requirements. 

429.53 Injunctions. 

429.55 Maximum civil penalty. 

429.57 Penalty considerations. 

429.59 Notice of proposed civil penalty. 

429.61 Election of procedures. 

429.63 Administrative law judge hearing 

and appeal. 

429.65 Immediate issuance of order 

assessing civil penalty. 

429.67 Collection of civil penalties. 

429.69 Compromise and settlement. 

429.71 Confidentiality. 

Appendix A to Subpart E of Part 429— 

Sampling Plan for Enforcement Testing 

of Covered Products and Certain HighVolume Covered Equipment 

Appendix B to Subpart E of Part 429— 

Sampling Plan for Enforcement Testing 

of Covered Commercial Equipment and 

Certain Low-Volume Covered Products 

Appendix C to Subpart E of Part 429— 

Sampling Plan for Enforcement Testing 

of Distribution Transformers 

Authority: 42 U.S.C. 6291–6317. 

Subpart A—General Provisions 

§ 429.1 Purpose and scope. 

This part sets forth the procedures to 

be followed for certification of 

compliance and for enforcement for 

consumer products and commercial and 

industrial equipment to determine 

whether covered products and covered 

equipment comply with the applicable 

conservation standards set forth in parts 

430 and 431 of this subchapter. For the 

purposes of this subpart, 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. This part does not cover 

motors or electric motors as defined in 

§ 431.12, and all references to ‘‘covered 

equipment’’ in this part exclude such 

motors. 

§ 429.3 Definitions. 

(a) The definitions found in §§ 430.2, 

431.2, 431.62, 431.72, 431.82, 431.92, 

431.102, 431.132, 431.152, 431.172, 

431.192, 431.202, 431.222, 431.242, 

431.262, 431.292, 431.302, 431.322, and 

431.442 apply for purposes of this part. 


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56814 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

(b) The following definition applies 

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 Act: 

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. 

Subpart B—Sampling for Certification 

Testing 

§ 429.9 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 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 following 

applicable criteria. 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 basic models 

not tested shall be the same as for the 

tested basic model. 

(b) For covered products and covered 

equipment subject to the provisions in 

this part 429, the minimum number of 

units tested shall be no less than 2 

(except where a different minimum 

limit is specified in paragraph (c) of this 

section); and 

(c)(1) For each basic model of 

residential refrigerators, refrigeratorfreezers, and freezers, a sample of 

sufficient size shall be tested to insure 

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 no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

and 

(ii) Any represented value of the 

energy factor or other measure of energy 

consumption of a basic model for which 

consumer would favor higher values 

shall be no greater than the lower of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(2) For each basic model of room air 

conditioners, a sample of sufficient size 

shall be tested to insure 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 no less than the higher of: 

(A) The mean of the sample, or 

(B) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05; 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 no greater than 

the lower of: 

(A) The mean of the sample, or 

(B) The lower 971⁄2 percent 

confidence limit of the true mean 

divided by 0.95. 

(3)(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 

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 

estimated 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 no less than the higher of: 

(1) The mean of the sample, or 

(2) The upper 90-percent confidence 

limit of the true mean divided by 1.05; 

(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 no greater than the lower of: 

(1) The mean of the sample, or 

(2) The lower 90-percent confidence 

limit of the true mean divided by 0.95; 

(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 SEER and HSPF ratings 

in accordance with paragraph (c)(3)(i)(B) 

of this section. 

(ii) For split-system air conditioners 

and heat pumps, the condenserevaporator coil combination selected for 

tests pursuant to paragraph (c)(3)(i) of 

this section shall include the evaporator 

coil that is likely to have the largest 

volume of retail sales with the particular 

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

to always be installed with more than 

one indoor unit, a ‘‘tested combination’’ 

as defined in 10 CFR 430.2 shall be used 

for tests pursuant to paragraph (c)(3)(i) 

of this section. For multi-split systems, 

each model of condensing unit shall be 

tested with two different sets of indoor 

units. For one set, a ‘‘tested 

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

the second set, a ‘‘tested combination’’ 

composed entirely of ducted indoor 

units shall be used. However, for any 

split-system air conditioner having a 

single-speed compressor, the condenserevaporator coil combination selected for 

tests pursuant to paragraph (c)(3)(i) of 

this section shall include the indoor 

coil-only unit that is likely to have the 

largest volume of retail sales with the 

particular model of outdoor unit. This 

coil-only requirement does not apply to 

split-system air conditioners that are 

only sold and installed with blower-coil 

indoor units, specifically mini-splits, 

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

This coil-only requirement does not 

apply to any split-system heat pumps. 

For every other split-system 

combination that includes the same 

model of condensing unit but a different 

model of evaporator coil and for every 

other mini-split and multi-split system 

that includes the same model of 

condensing unit but a different set of 

evaporator coils, whether the evaporator 

coil(s) is manufactured by the same 

manufacturer or by a component 

manufacturer, either— 

(A) A sample of sufficient size, 

comprised of production units or 

representing production units, must be 

tested as complete systems with the 

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

accordance with paragraphs (c)(3)(i)(A) 

and (c)(3)(i)(B) of this section; or 

(B) The representative values of the 

measures of energy efficiency must be 

assigned as follows, 

(1) Using an alternative rating method 

(ARM) that has been approved by DOE 

in accordance with the provisions of 

§ 429.23(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 (c)(3)(i) of this section 

whose tested combination was entirely 

non-ducted indoor units; 

(3) For multi-split systems composed 

entirely of ducted indoor units, set 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 56815 

equal to the system tested in accordance 

with paragraph (c)(3)(i) of this section 

when the tested combination was 

entirely ducted indoor units; and 

(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 (c)(3)(i) of this section. 

(iii) Whenever the representative 

values of the measures of energy 

consumption, as determined by the 

provisions of paragraph (c)(3)(ii)(B) of 

this section, do not agree within 5 

percent of the representative values of 

the measures of energy consumption as 

determined by actual testing, the 

representative 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. 

(4) For each basic model of water 

heaters, a sample of sufficient size shall 

be tested to insure 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 no less than the higher of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10, 

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 no greater than the lower of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(5)(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 tested to insure 

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 no less than the higher of: 

(1) The mean of the sample, or 

(2) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, 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 no 

greater than the lower of: 

(1) The mean of the sample, or 

(2) The lower 971⁄2 percent confidence 

limit of the true mean divided by 0.95. 

(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 tested to insure 

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 no less than the higher of: 

(1) The mean of the sample, or 

(2) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, 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 no greater than 

the lower of: 

(1) The mean of the sample, or 

(2) The lower 971⁄2 percent confidence 

limit of the true mean divided by 0.95. 

(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 tested to insure 

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 be 

no less than the higher of: 

(1) The mean of the sample, or 

(2) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, 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 no greater than 

the lower of: 

(1) The mean of the sample, or 

(2) The lower 971⁄2 percent confidence 

limit of the true mean divided by 0.95. 

(iv) For each basic model or capacity 

other than the highest or lowest of the 

group of basic models of sectional castiron boilers having identical 

intermediate sections and combustion 

chambers, represented values of 

measures of energy consumption shall 

be determined by either— 

(A) A linear interpolation of data 

obtained for the smallest and largest 

capacity units of the family, or 

(B) Testing a sample of sufficient size 

to insure 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 no less than the higher of 

(i) The mean of the sample, or 

(ii) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, 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 no greater than the lower of: 

(i) The mean of the sample, or 

(ii) The lower 971⁄2 percent 

confidence limit of the true mean 

divided by 0.95. 

(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 

of the capacities of the units of the 

sample. 

(6) For each basic model of 

dishwashers, a sample of sufficient size 

shall be tested to insure 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 no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, 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 no greater 

than the lower of: 

(A) The mean of the sample, or 

(B) The lower 971⁄2 percent 

confidence limit of the true mean 

divided by 0.95. 

(7) For each basic model of residential 

clothes washers, a sample of sufficient 

size shall be tested to insure 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 no less than the higher of: 

(A) The mean of the sample, or 

(B) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, and 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
56816 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

(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 no greater 

than the lower of: 

(A) The mean of the sample, or 

(B) The lower 971⁄2 percent 

confidence limit of the true mean 

divided by 0.95. 

(8) For each basic model of clothes 

dryers a sample of sufficient size shall 

be tested to insure 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 no less than the higher of: 

(A) The mean of the sample, or 

(B) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, 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 no greater than the lower of: 

(A) The mean of the sample, or 

(B) The lower 971⁄2 percent 

confidence limit of the true mean 

divided by 0.95. 

(11) For each basic model of pool 

heater a sample of sufficient size shall 

be tested to insure 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 no greater 

than the lower of: 

(i) The mean of the sample, or 

(ii) The lower 971⁄2 percent 

confidence limit of the true mean 

divided by 0.95. 

(12) For each basic model of 

fluorescent lamp ballasts, a sample of 

sufficient size, not less than four, shall 

be tested to insure 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 no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 99 percent confidence 

limit of the true mean divided by 1.01, 

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 no greater than 

the lower of: 

(A) The mean of the sample, or 

(B) The lower 99 percent confidence 

limit of the true mean divided by 0.99. 

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

service fluorescent lamp, general service 

incandescent lamp, and incandescent 

reflector lamp, samples of production 

lamps shall be tested and the results for 

all samples shall be averaged for a 12- 

month period. 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 

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 no greater than the 

lower of the mean of the sample or the 

lower 95-percent confidence limit of the 

true mean (XL) divided by 0.97, i.e., 

X s

n − ⎛

⎝

⎜ ⎞

⎠

⎟ t0 95

0 97

.

.

Where: 

x ̄ = the mean luminous efficacy of the sample 

s = the sample standard deviation 

t0.95 = the t statistic for a 95-percent 

confidence limit for n-1 degrees of 

freedom (from statistical tables) 

n = sample size 

(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 (c)(13)(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 no greater than the lower of the mean 

of the sample or the lower 95-percent 

confidence limit of the true mean (XL) 

divided by 0.97, i.e., 

X s

n − ⎛

⎝

⎜ ⎞

⎠

⎟ t0 95

0 97

.

.

Where: 

x ̄ = the mean color rendering index of the 

sample 

s = the sample standard deviation 

t0.95 = the t statistic for a 95-percent 

confidence limit for n-1 degrees of 

freedom (from statistical tables) 

n = sample size 

(14) For each basic model of faucet, a 

sample of sufficient size shall be 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: 

(i) The mean of the sample or 

(ii) The upper 95 percent confidence 

limit of the true mean divided by 1.05. 

(15) For each basic model of 

showerhead, a sample of sufficient size 

shall be 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: 

(i) The mean of the sample or 

(ii) The upper 95 percent confidence 

limit of the true mean divided by 1.05. 

(16) For each basic model of water 

closet, a sample of sufficient size shall 

be 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: 

(i) The mean of the sample or 

(ii) The upper 90 percent confidence 

limit of the true mean divided by 1.1. 

(17) For each basic model of urinal, a 

sample of sufficient size shall be 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: 

(1) The mean of the sample or 

(2) The upper 90 percent confidence 

limit of the true mean divided by 1.1. 

(18) 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 

selected at random and tested to ensure 

that— 

(i) Any represented value of estimated 

energy consumption or other measure of 

energy consumption of a basic model for 

which consumers would favor lower 

values shall be no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.1; 

and 

(ii) Any represented value of the 

airflow efficiency or other measure of 

energy consumption of a basic model for 

which consumers would favor higher 

values shall be no greater than the lower 

of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.9. 

(19) For each basic model of bare or 

covered (no reflector) medium base 

compact fluorescent lamp selected for 

testing, a minimum sample of no less 

than 5 units per basic model must be 

used when testing for the efficacy, 1000- 

hour lumen maintenance, and the 

lumen maintenance, a minimum sample 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2EP16SE10.000</MATH> EP16SE10.001</MATH>
Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 56817 

of 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, and a 

minimum sample of no less than 10 

units per basic model must be used 

when testing for the average rated lamp 

life. With the exception of the rapid 

cycle stress test, the units tested in the 

sample should be the same. For the 

efficacy, the 1000-hour lumen 

maintenance, and the lumen 

maintenance, each unit within the 

sample 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. For the 

rapid cycle stress test, each unit within 

the sample can be tested in the base up 

or down position as stated by the 

manufacturer. For the average rated 

lamp life test, half of 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. Any 

representative value of efficacy, 1000- 

hour lumen maintenance, lumen 

maintenance, and average rated lamp 

life, shall be based on the sample 

selected at random and tested to ensure 

that the represented value shall be no 

greater than the lower of: 

(i) The mean of the sample, or 

(ii) The lower 97.5 percent confidence 

limit of the true mean divided by 0.95. 

(20) For each basic model of 

dehumidifier selected for testing, a 

sample of sufficient size shall be 

selected at random and tested to ensure 

that— 

(i) Any represented value of estimated 

energy consumption or other measure of 

energy consumption of a basic model for 

which consumers would favor lower 

values shall be no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

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 no greater than the lower of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(21) For each basic model of external 

power supply selected for testing, a 

sample of sufficient size shall be 

selected at random 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 no less than the 

higher of: 

(A) The mean of the sample, or 

(B) The upper 97.5 percent confidence 

limit of the true mean divided by 1.05; 

and 

(ii) Any represented value of the 

estimated energy consumption of a basic 

model for which consumers would favor 

higher values shall be no greater than 

the lower of: 

(A) The mean of the sample, or 

(B) The lower 97.5 percent confidence 

limit of the true mean divided by 0.95. 

(22) For each basic model of 

candelabra base incandescent lamp and 

intermediate base incandescent lamp, a 

minimum sample of 21 lamps shall be 

tested. Any represented value of lamp 

wattage of a basic model shall be based 

on the sample and shall be no greater 

than the lower of the mean of the 

sample or the lower 95-percent 

confidence limit of the true mean (XL) 

divided by 0.97, i.e., 

X s

n − ⎛

⎝

⎜ ⎞

⎠

⎟ t0 95

0 97

.

.

Where: 

x ̄ = the mean wattage of the sample 

s = the sample standard deviation 

t0.95 = the t statistic for a 95-percent 

confidence limit for n-1 degrees of 

freedom (from statistical tables) 

n = sample size 

(23) For each basic model of 

commercial refrigerator, freezer, or 

refrigerator-freezer selected for testing, a 

sample of sufficient size shall be 

selected at random and tested to ensure 

that— 

(i) Any represented value of estimated 

energy consumption or other measure of 

energy consumption of a basic model for 

which consumers would favor lower 

values shall be no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

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 no greater than the lower 

of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(24) A manufacturer must determine 

the efficiency of each basic model of 

commercial heating, ventilating, air 

conditioning, and water heating (HVAC 

and WH) equipment either by testing, in 

accordance with applicable test 

procedures in §§ 431.76, 431.86, 431.96, 

or 431.106 and the provisions of this 

section, or by application of an 

alternative efficiency determination 

method (AEDM) that meets the 

requirements of § 429.23 and the 

provisions of this section. For each basic 

model of commercial HVAC and WH 

equipment, a sample of sufficient size 

shall be selected and tested to ensure 

that— 

(i) Any represented value of energy 

efficiency or other measure of energy 

consumption of a basic model for which 

consumers would favor higher values 

shall be no greater than the lower of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.95, 

and 

(ii) Any represented value of energy 

consumption or other measure of energy 

usage of a basic model for which 

consumers would favor lower values 

shall be no less than the higher of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.05. 

(25) For each basic model of 

automatic commercial ice maker 

selected for testing, a sample of 

sufficient size shall be selected at 

random and tested to ensure that— 

(i) Any represented value of estimated 

maximum energy use or other measure 

of energy consumption of a basic model 

for which consumers would favor lower 

values shall be no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

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 no greater than the lower 

of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(26) For each basic model of 

commercial clothes washers, a sample 

of sufficient size shall be tested to 

insure that— 

(i) Any represented value of estimated 

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 no less than the higher of: 

(A) The mean of the sample, or 

(B) The upper 971⁄2 percent 

confidence limit of the true mean 

divided by 1.05, and 

(ii) Any represented value of the 

modified energy factor, water factor, or 

other measure of energy or water 


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consumption of a basic model for which 

consumers would favor higher values 

shall be no greater than the lower of: 

(A) The mean of the sample, or 

(B) The lower 971⁄2 percent 

confidence limit of the true mean 

divided by 0.95. 

(27) A manufacturer must determine 

the efficiency of each basic model of 

distribution transformer either by 

testing, in accordance with § 431.193 

and the provisions of this section, or by 

application of an AEDM) that meets the 

requirements of § 429.23 and the 

provisions of this section. 

(i) Selection of units for testing within 

a basic model. For each basic model a 

manufacturer selects for testing, it shall 

select and test units as follows: 

(A) If the manufacturer would 

produce five or fewer units of a basic 

model over a reasonable period of time 

(approximately 180 days), then it must 

test each unit. However, a manufacturer 

may not use a basic model with a 

sample size of fewer than five units to 

substantiate an AEDM pursuant to 

§ 429.23. 

(B) If the manufacturer produces more 

than five units over such period of time, 

it must either test all such units or select 

a sample of at least five units and test 

them. 

(ii) Applying results of testing. In a 

test of compliance with a represented 

efficiency, the average efficiency of the 

sample, X, which is defined by 

x = n xi

i

n 1

=1

∑

where Xi is the measured efficiency of unit 

i and n is the number of units tested, 

must satisfy the condition: 

x

n RE

≥

+ + ⎛

⎝

⎜ ⎞

⎠

⎟ − ⎛

⎝

⎜ ⎞

⎠

⎟

100

1 1 0 08 100 1 .

where RE is the represented efficiency. 

(28) For each basic model of 

illuminated exit sign selected for 

testing, a sample of sufficient size shall 

be selected at random and tested to 

ensure that— 

(i) Any represented value of estimated 

input power demand or other measure 

of energy consumption of a basic model 

for which consumers would favor lower 

values shall be no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

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 no greater than the lower 

of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(29) For each basic model of traffic 

signal module or pedestrian module 

selected for testing, a sample of 

sufficient size shall be selected at 

random 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 no less than 

the higher of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

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 no greater than the lower 

of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(30) For each basic model of 

commercial prerinse spray valves 

selected for testing, a sample of 

sufficient size shall be selected at 

random and tested to ensure that— 

(i) Any represented value of estimated 

water consumption or other measure of 

water consumption of a basic model for 

which consumers would favor lower 

values shall be no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

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 no greater than the lower 

of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(31) For each basic model of 

refrigerated bottled or canned beverage 

vending machine selected for testing, a 

sample of sufficient size shall be 

selected at random and tested to ensure 

that— 

(i) Any represented value of estimated 

energy consumption or other measure of 

energy consumption of a basic model for 

which consumers would favor lower 

values shall be no less than the higher 

of: 

(A) The mean of the sample, or 

(B) The upper 95 percent confidence 

limit of the true mean divided by 1.10; 

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 no greater than the lower 

of: 

(A) The mean of the sample, or 

(B) The lower 95 percent confidence 

limit of the true mean divided by 0.90. 

(32) 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 

no less than the higher of: 

(A) The mean of the sample, or 

(B) The upper 99-percent confidence 

limit of the true mean divided by 1.01. 

(ii) Any represented value of the 

energy efficiency of a basic model is no 

greater than the lower of: 

(A) The mean of the sample, or 

(B) The lower 99-percent confidence 

limit of the true mean divided by 0.99. 

Subpart C—Certification 

§ 429.17 Purpose and scope. 

This subpart sets forth the procedures 

for manufacturers to certify that their 

covered products and covered 

equipment comply with the applicable 

energy conservation standards. 

§ 429.19 Certification. 

(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 and 431 of this 

subchapter, and annually thereafter on 

or before the dates provided in 

paragraph (e) of this section, shall 

certify by means of a certification report 

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. Manufacturers 

of covered products or covered 

equipment must submit a certification 

report for all basic models to DOE. The 

certification report shall include a 

compliance statement (See paragraph (c) 

of this section.) for each basic model: 

(1) The 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); 


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Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 56819 

(3) Manufacturer’s name and address; 

(4) Private labeler’s name(s) and 

address (if applicable); 

(5) Brand name; 

(6) For each brand, the basic model 

number and the individual 

manufacturer’s model numbers covered 

by that basic model; in the case of 

external power supplies, when the 

manufacturer is certifying using a 

design family, the individual 

manufacturer’s model numbers covered 

by the design family; in the case of 

distribution transformers, the individual 

manufacturer’s model numbers covered 

by the kilovolt ampere (kVA) grouping; 

(7) Whether the submission is for a 

new model, a discontinued model, a 

correction to a previously submitted 

model, data on a historical model, or a 

model that has been found in violation 

of a voluntary industry certification 

program; 

(8) The sample size and the total 

number of tests performed; 

(9) Certifying party’s U.S. Customs 

and Border Protection (CBP) importer 

identification numbers assigned by CBP 

pursuant to 19 CFR 24.5, if applicable; 

(10) Whether certification is based 

upon any waiver of test procedure 

requirements under § 430.27 or 

§ 431.401 and the date of such waivers; 

(11) Whether certification is based 

upon any exception relief from an 

applicable energy conservation standard 

and the date such relief was issued by 

DOE’s Office of Hearing and Appeals; 

(12) Whether certification is based 

upon the use of an alternate way of 

determining measures of energy 

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

or other method of testing, for 

determining measures of energy 

conservation and the approval date, if 

applicable, of any such alternate rating, 

testing, or efficiency determination 

method; and 

(13) For: 

(i) Residential refrigerators, 

residential refrigerator-freezers, and 

residential freezers, the annual energy 

use in kilowatt hours per year, total 

adjusted volume in cubic feet, 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. 

(ii) Room air conditioners, the energy 

efficiency ratio and cooling capacity in 

Btu/h. 

(iii) Residential central air 

conditioners, the seasonal energy 

efficiency ratio, the cooling capacity in 

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, 

etc.), the manufacturer’s model number 

of this ducted air mover must be 

included among the model numbers 

listed on the certification report. 

(iv) Residential central air 

conditioning heat pumps, the seasonal 

energy efficiency ratio, the cooling 

capacity in Btu/h, the heating seasonal 

performance factor, 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, etc.), the model number of 

this ducted air mover must be included 

among the model numbers listed on the 

certification report. 

(v) Small duct, high velocity air 

conditioners, the seasonal energy 

efficiency ratio and the cooling capacity 

in Btu/h. Small duct, high velocity heat 

pumps, the seasonal energy efficiency 

ratio, the heating seasonal performance 

factor, and the cooling capacity in Btu/ 

h. 

(vi) Through-the-wall air 

conditioners, the seasonal energy 

efficiency ratio and the cooling capacity 

in Btu/h. Through-the-wall heat pumps, 

the seasonal energy efficiency ratio, the 

coefficient of performance, and the 

cooling capacity in Btu/h. 

(vii) Residential water heaters, the 

energy factor and rated storage volume 

in gallons. 

(viii) Residential furnaces and boilers, 

the annual fuel utilization efficiency in 

percent and the input capacity in Btu/ 

h. For cast-iron sectional boilers, a 

declaration of whether certification is 

based on linear interpolation or testing. 

In addition, the type of ignition system 

for gas-fired steam and hot water boilers 

and a declaration that the manufacturer 

has incorporated the applicable design 

requirements for units manufactured on 

or after September 1, 2012. 

(ix) Dishwashers, the annual energy 

use in kilowatt hours per year, the water 

factor in gallons per cycle, and capacity 

as described in § 430.32(f). 

(x) Residential clothes washers, the 

modified energy factor in cubic feet per 

kilowatt hour per cycle and the capacity 

in cubic feet. For top-loading or frontloading standard-size residential clothes 

washers, a water factor in gallons per 

cycle per cubic feet must also be 

reported on or after January 1, 2011. 

(xi) Residential clothes dryers, the 

energy factor in pounds per kilowatt 

hours, the capacity in cubic feet, and the 

voltage in volts. 

(xii) Direct heating equipment, the 

annual fuel utilization efficiency in 

percent and the mean input capacity in 

Btu/h. Note, vented hearth heaters as 

defined in § 430.2 must report on or 

after April 16, 2013. 

(xiii) Gas cooking products, the type 

of pilot light and a declaration that the 

manufacturer has incorporated the 

applicable design requirements. 

(xiv) Pool heaters, the thermal 

efficiency in percent and the input 

capacity in Btu/h. 

(xv) Fluorescent Lamp Ballasts, 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. 

(xvi) General service fluorescent 

lamps, the testing laboratory’s National 

Voluntary Laboratory Accreditation 

Program (NVLAP) identification number 

or other NVLAP-approved accreditation 

identification, production date codes 

(and accompanying decoding scheme), 

the 12-month average lamp efficacy in 

lumens per watt, lamp wattage, 

correlated color temperature, and the 

12-month average Color Rendering 

Index. 

(xvii) Incandescent reflector lamps, 

the laboratory’s NVLAP identification 

number or other NVLAP-approved 

accreditation identification, production 

date codes (and accompanying decoding 

scheme), the 12-month average lamp 

efficacy in lumens per watt, and lamp 

wattage. 

(xviii) Faucets, the maximum water 

use in gallons per minute or, in the case 

of metering faucets, gallons per cycle for 

each faucet and the flow water pressure 

in pounds per square inch. 

(xix) Showerheads, the maximum 

water use in gallons per minute and the 

maximum flow water pressure in 

pounds per square inch. 

(xx) Water closets, the maximum 

water use in gallons per flush. 

(xxi) Urinals, the maximum water use 

in gallons per flush and for trough-type 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
56820 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

urinals, the length of the trough-type 

urinal. 

(xxii) Ceiling fans, the number of 

spends within the ceiling fan controls 

and a declaration that the manufacturer 

has incorporated the applicable design 

requirements. 

(xxiii) Ceiling fan light kits with 

sockets for medium screw base lamps or 

pin-based fluorescent lamps, the 

efficacy in lumens per watt. 

(xxiv) Ceiling fan light kits with 

sockets for other than medium screw 

base lamps or pin-based fluorescent 

lamps, the features that have been 

incorporated into the ceiling fan light 

kit to meet the applicable design 

requirement (e.g., circuit breaker, fuse, 

ballast). 

(xxv) Torchieres, the features that 

have been incorporated into the 

torchiere to meet the applicable design 

requirement (e.g., circuit breaker, fuse, 

ballast). 

(xxvi) Medium base compact 

fluorescent lamps, the testing 

laboratory’s NVLAP identification 

number or other NVLAP-approved 

accreditation identification, production 

date codes (and accompanying decoding 

scheme), the minimum initial efficacy 

in lumens per watt, the lumen 

maintenance at 1,000 hours in 

percentage, the lumen maintenance at 

40 percent of rated life in lumens, the 

rapid cycle stress test, and the lamp life 

in hours. 

(xxvii) Dehumidifiers, the energy 

factor in liters per kilowatt hour and 

capacity in pints per day. 

(xxviii) External power supplies, the 

average active mode efficiency 

percentage, no-load mode power 

consumption in watts, nameplate output 

power in watts, and, if missing from the 

nameplate, the output current in 

amperes of the highest- and lowestvoltage models within the external 

power supply design family. 

(xxix) Switch-selectable single-voltage 

external power supplies, the average 

active mode efficiency percentage and 

no-load mode power consumption in 

watts at the lowest and highest 

selectable output voltage, nameplate 

output power in watts, and, if missing 

from the nameplate, the output current 

in amperes. 

(xxx) On or after the effective dates 

specified in § 430.32, general service 

incandescent lamps, the testing 

laboratory’s National Voluntary 

Laboratory Accreditation Program 

(NVLAP) identification number or other 

NVLAP-approved accreditation 

identification, production date codes 

(and accompanying decoding scheme), 

the 12-month average maximum rate 

wattage, the 12-month average 

minimum rate lifetime, and the 12- 

month average Color Rendering Index. 

(xxxi) Candelabra base incandescent 

lamp, the wattage in watts. 

(xxxii) Intermediate base 

incandescent lamp, the wattage in watts. 

(xxxiii) Self-contained commercial 

refrigerators with solid doors, 

refrigerators with transparent doors, 

freezers with solid doors, and 

commercial freezers with transparent 

doors, the maximum daily energy 

consumption in kilowatt hours per day 

and the volume in cubic feet. 

(xxxiv) Self-contained commercial 

refrigerator/freezers with solids doors, 

the maximum daily energy consumption 

in kilowatt hours per day and the 

adjusted volume in cubic feet. 

(xxxv) On or after January 1, 2012, 

remote condensing commercial 

refrigerators, freezers, and refrigeratorfreezers, self-contained commercial 

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

refrigeration equipment with two or 

more compartments (i.e., hybrid 

refrigerators, hybrid freezers, hybrid 

refrigerator-freezers, and non-hybrid 

refrigerator-freezers), the maximum 

daily energy consumption in kilowatt 

hours per day, the total display area 

(TDA) in feet squared or the volume in 

cubic feet as necessary to demonstrate 

compliance with the standards set forth 

in § 431.66, the rating temperature in 

degrees Fahrenheit, the operating 

temperature range in degrees Fahrenheit 

(e.g., ≥ 32 °F, < 32 °F, and ≤¥5 °F), the 

equipment family designation as 

described in § 431.66, and the 

condensing unit configuration. 

(xxxvi) Commercial warm air 

furnaces, the thermal efficiency in 

percent and the maximum rated input 

capacity in Btu/h. 

(xxxvii) Commercial packaged boilers, 

the combustion efficiency in percent 

and the maximum rated input capacity 

in Btu/h for equipment manufactured 

before March 2, 2012. For equipment 

manufactured on or after March 2, 2012, 

either the combustion efficiency or the 

thermal efficiency as required in 

§ 431.87 and the maximum rated input 

capacity in Btu/h. 

(xxxviii) Commercial package airconditioning and heating equipment 

(except small commercial package air 

conditioning and heating equipment 

that is air-cooled with a cooling capacity 

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

efficiency ratio, the coefficient of 

performance as necessary to meet the 

standards set forth in § 431.97, the 

cooling capacity in Btu/h, and the type 

of heating used by the unit. 

(xxxix) 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, the heating 

seasonal performance factor as 

necessary to meet the standards set forth 

in § 431.97, and the cooling capacity in 

Btu/h. 

(xl) Packaged terminal air 

conditioners, the energy efficiency ratio, 

the cooling capacity in Btu/h, and the 

wall sleeve dimensions in inches. 

Packaged terminal heat pumps, the 

energy efficiency ratio, the coefficient of 

performance, the cooling capacity in 

Btu/h, and the wall sleeve dimensions 

in inches. 

(xli) Single package vertical air 

conditioner, the energy efficiency ratio 

and the cooling capacity in Btu/h. 

Single package vertical heat pumps, the 

energy efficiency ratio, the coefficient of 

performance, and the cooling capacity 

in Btu/h. 

(xlii) Commercial electric storage 

water heaters, the maximum standby 

loss in percent per hour and the 

measured storage volume in gallons. 

(xliii) Commercial gas-fired and oilfired storage water heaters, the 

minimum thermal efficiency in percent, 

the maximum standby loss in Btu/h, the 

rated storage volume in gallons, and the 

nameplate input rate in Btu/h. 

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

than or equal to 10 gallons and gas-fired 

and oil-fired hot water supply boilers 

greater than or equal to 10 gallons, the 

minimum thermal efficiency in percent, 

the maximum standby loss in Btu/h, the 

rated storage volume in gallons, and the 

nameplate input rate in gallons. 

(xlv) Commercial gas-fired and oilfired instantaneous water heaters less 

than 10 gallons and gas-fired and oilfired hot water supply boilers less than 

10 gallons, the minimum thermal 

efficiency in percent and the storage 

volume in gallons. 

(xlvi) Commercial unfired hot water 

storage tanks, the minimum thermal 

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

volume. 

(xlvii) Automatic commercial ice 

makers, the maximum energy use in 

kilowatt hours per 100 pounds of ice, 

the maximum condenser water use in 

gallons per 100 pounds of ice, the 

harvest rate in pounds of ice per 24 

hours, the type of cooling, and the 

equipment type. 

(xlviii) Commercial clothes washers, 

the modified energy factor in cubic feet 

per kilowatt hour per cycle and the 

water factor in gallons per cubic feet per 

cycle for units manufactured on or after 

January 8, 2013. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 56821 

(xlix) For the least efficient basic 

model of distribution transformer 

within each ‘‘kilovolt ampere (kVA) 

grouping’’ for which part 431 prescribes 

an efficiency standard, the kVA rating, 

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

dry-type, medium-voltage dry-type or 

liquid-immersed), the number of phases 

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

the basic impulse insulation level (BIL) 

group rating (for medium-voltage drytypes). As used in this section, a ‘‘kVA 

grouping’’ is a group of basic models 

which all have the same kVA rating, 

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

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

three-phase), and, for medium-voltage 

dry-types, have the same BIL group 

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

or greater than 96 kV BIL). 

(l) Illuminated exit signs, the input 

power demand in watts. 

(li) Traffic signal modules and 

pedestrian modules, the maximum 

wattage in watts, the nominal wattage in 

watts, and the signal type. 

(lii) Commercial unit heaters, the type 

of ignition system and a declaration that 

the manufacturer has incorporated the 

applicable design requirements. 

(liii) Commercial prerinse spray 

valves, the flow rate in gallons per 

minute. 

(liv) Refrigerated bottled or canned 

beverage vending machines, the 

maximum daily energy consumption in 

kilowatt hours per day, the refrigerated 

volume (V) in cubic feet used to 

demonstrate compliance with standards 

set forth in § 431.296, the ambient 

temperature in degrees Fahrenheit, and 

the ambient relative humidity in percent 

during the test for units manufactured 

on or after August 31, 2012. 

(lv) Walk-in coolers and freezers, the 

door type, the R-value of the insulation 

of the wall, ceiling, and doors, the Rvalue of the floor (for freezers only), the 

motor type, and the efficacy of the 

lighting including ballast losses. In 

addition, for those walk-in coolers and 

freezers with transparent reach-in doors 

and windows, the glass type of the 

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

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

draw of the antisweat heater in watts, 

and a declaration that the manufacturer 

has incorporated the applicable design 

requirements. 

(lvi) Metal halide lamp fixtures, 

minimum ballast efficiency in percent, 

the lamp wattage in watts, and the type 

of ballast (e.g., pulse-start, magnetic 

probe-start, and non-pulse start 

electronic). 

(c) 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 conservation standard(s); 

(2) All required testing has been 

conducted in conformance with the 

applicable test requirements prescribed 

in parts 429, 430 and 431 of this 

subchapter, as appropriate, or in 

accordance with the terms of an 

applicable test procedure waiver; 

(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 Energy Policy and Conservation Act 

(Pub. L. 94–163), as amended by Public 

Law 95–619, Public Law 100–12, Public 

Law 100–357, and Public Law 102–486 

(the Act), the regulations there under, 

and 18 U.S.C. 1001 which prohibits 

knowingly making false statements to 

the Federal Government. 

(d) Copies of reports to the Federal 

Trade Commission could serve in lieu of 

the certification report provided the 

reports include all required information 

specified in paragraph (b) of this 

section. 

(e) Annual filing. All data required by 

§ 429.19(a) through (c) shall be 

submitted to DOE annually, on or before 

the following dates: 

Product category 

Deadline 

for data 

submission 

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

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

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

Mar. 1. 

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

air furnaces, and Commercial unit heaters.

May 1. 

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

and Distribution transformers.

June 1. 

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

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

Packaged terminal heat pumps, and Single package vertical units.

July 1. 

(5) Residential refrigerators, Residential refrigerators-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.

Aug. 1. 

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

(7) Residential clothes washers, Residential clothes dryers, Residential direct heating equipment, Residential cooking products, 

and Commercial clothes washers.

Oct. 1. 

(f) New model filing. (1) In addition to 

the annual filing schedule in paragraph 

(e) of this section, any new basic models 

must be certified pursuant to paragraph 

(a) of this section before distribution in 

commerce. New basic model numbers 

shall be designated whenever a new 

basic model is created pursuant to this 

paragraph (f). 

(2) Prior to or concurrent with the 

distribution of a new model of general 

service fluorescent lamp or 

incandescent reflector lamp, each 

manufacturer shall submit a statement 

signed by a company official stating 

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. This statement 

shall also list the model number, lamp 

wattage, and date of commencement of 

manufacture. Manufacturers of general 

service fluorescent lamps and 

incandescent reflector lamps shall 

submit the certification report required 

by paragraph (b) of this section within 


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one year after the date manufacture of 

that new model commences. 

(3) For distribution transformers, the 

manufacturer must 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. 

(g) 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: Product 

or equipment type, product or 

equipment class, the manufacturer’s 

name, the private labeler name(s), if 

applicable, the brand, and the 

manufacturer’s model number(s) of the 

basic model that has been discontinued. 

(h) 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, on at least two occasions, to 

submit reports in accordance with the 

rules of this part. 

(i) Method of submission. Reports 

required by this section must be 

submitted to DOE electronically at 

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

§ 429.21 Testing Requirements for 

Certification. 

(a) For purposes of a certification of 

compliance, the determination that a 

basic model complies with an 

applicable energy conservation standard 

or water conservation standard shall be 

determined from the calculated values 

derived pursuant to the applicable 

requirements set forth in parts 429, 430 

and 431 of this subchapter. For 

purposes of a certification of 

compliance, 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) Pursuant to § 429.51, where DOE 

has determined a particular entity is in 

noncompliance with an applicable 

standard or certification requirement, 

DOE may impose additional testing 

requirements for certification as a 

remedial measure. 

§ 429.23 Alternative Methods for 

Determining Efficiency or Energy Use. 

(a) General. A manufacturer of 

residential central air conditioners and 

heat pumps, distribution transformers, 

and commercial HVAC and WH 

equipment may not distribute any basic 

model of such equipment in commerce 

unless the manufacturer has determined 

the efficiency of the basic model either 

from testing of the basic model or from 

application of an alternative method to 

the basic model, in accordance with the 

requirements of this section. In 

instances where a manufacturer has 

tested that basic model to validate the 

alternative method, the 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 

which 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 

plans established in § 429.9 and the 

testing procedures in parts 430 and 431 

of this subchapter. 

(c) Alternative efficiency 

determination method (AEDM) for 

Commercial HVAC and WH 

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; and 

(ii) The AEDM is based on 

engineering or statistical analysis, 

computer simulation or modeling, or 

other analytic evaluation of performance 

data. 

(2) Substantiation of an AEDM. Before 

using an AEDM, the manufacturer must 

substantiate and validate the AEDM as 

follows: 

(i) A manufacturer must first apply 

the AEDM to three or more basic models 

that have been tested in accordance 

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

predicted efficiency calculated for each 

such basic model from application of 

the AEDM must be within five percent 

of the efficiency determined from 

testing that basic model, and the 

predicted efficiencies calculated for the 

tested basic models must on average be 

within one percent of the efficiencies 

determined from testing such basic 

models; and 

(ii) Using the AEDM, the 

manufacturer must calculate the 

efficiency of three or more of its basic 

models. They must be the 

manufacturer’s highest-selling basic 

models to which the AEDM could 

apply. 

(iii) The manufacturer must test each 

of these basic models in accordance 

with § 431.173(b), and either 

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

is applicable. 

(iv) The predicted efficiency 

calculated for each such basic model 

from application of the AEDM must be 

within three 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; 


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1When identifying these five basic models, any 

basic model that does not comply with Federal 

energy conservation standards for distribution 

transformers that may be in effect shall be excluded 

from consideration. 

(B) Provide analyses of previous 

simulations conducted by the 

manufacturer; 

(C) Conduct sample testing of basic 

models selected by the Department; or 

(D) Conduct a combination of these. 

(d) Alternative efficiency 

determination method for Distribution 

Transformers—A manufacturer may use 

an AEDM to determine the efficiency of 

one or more of its untested basic models 

only if it determines the efficiency of at 

least five of its other basic models 

(selected in accordance with paragraph 

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

testing. 

(1) Criteria an AEDM must satisfy. (i) 

The AEDM has been derived from a 

mathematical model that represents the 

electrical characteristics of that basic 

model; 

(ii) The AEDM is based on 

engineering and statistical analysis, 

computer simulation or modeling, or 

other analytic evaluation of performance 

data; and 

(iii) The manufacturer has 

substantiated the AEDM, in accordance 

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

applying it to, and testing, at least five 

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

low-voltage dry-type distribution 

transformers, medium-voltage dry-type 

distribution transformers, or liquidimmersed distribution transformers. 

(2) Substantiation of an AEDM. Before 

using an AEDM, the manufacturer must 

substantiate the AEDM’s accuracy and 

reliability as follows: 

(i) Apply the AEDM to at least five of 

the manufacturer’s basic models that 

have been selected for testing in 

accordance with paragraph (d)(3) of this 

section, and calculate the power loss for 

each of these basic models; 

(ii) Test at least five units of each of 

these basic models in accordance with 

the applicable test procedure and 

§ 429.9, and determine the power loss 

for each of these basic models; 

(iii) The predicted total power loss for 

each of these basic models, calculated 

by applying the AEDM pursuant to 

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

be within plus or minus five percent of 

the mean total power loss determined 

from the testing of that basic model 

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

section; and 

(iv) Calculate for each of these basic 

models the percentage that its power 

loss calculated pursuant to paragraph 

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

loss determined from testing pursuant to 

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

compute the average of these 

percentages, and that calculated average 

power loss, expressed as a percentage of 

the average power loss determined from 

testing, must be no less than 97 percent 

and no greater than 103 percent. 

(3) Additional testing requirements. 

(i) A manufacturer must select basic 

models for testing in accordance with 

the following criteria: 

(A) Two of the basic models must be 

among the five basic models with the 

highest unit volumes of production by 

the manufacturer in the prior year, or 

during the prior 12-calendar-month 

period beginning in 2003,1 whichever is 

later; 

(B) No two basic models should have 

the same combination of power and 

voltage ratings; and 

(C) At least one basic model should be 

single-phase and at least one should be 

three-phase. 

(ii) In any instance where it is 

impossible for a manufacturer to select 

basic models for testing in accordance 

with all of these criteria, the criteria 

shall be given priority in the order in 

which they are listed. Within the limits 

imposed by the criteria, basic models 

shall be selected randomly. 

(4) Subsequent verification of an 

AEDM. (i) Each manufacturer that has 

used an AEDM under this section shall 

have available for inspection by the 

Department of Energy records showing: 

(A) The method or methods used; 

(B) The mathematical model, the 

engineering or statistical analysis, 

computer simulation or modeling, and 

other analytic evaluation of performance 

data on which the AEDM is based; 

(C) Complete test data, product 

information, and related information 

that the manufacturer has generated or 

acquired pursuant to paragraph (d)(4) of 

this section; and 

(D) The calculations used to 

determine the efficiency and total power 

losses of each basic model to which the 

AEDM was applied. 

(ii) If requested by the Department, 

the manufacturer must perform at least 

one of the following: 

(A) Conduct simulations to predict 

the performance of particular basic 

models of distribution transformers 

specified by the Department; 

(B) Provide analyses of previous 

simulations conducted by the 

manufacturer; 

(C) Conduct sample testing of basic 

models selected by the Department; or 

(D) Conduct a combination of these. 

(e) Alternate Rating Method (ARM) for 

residential split-system central air 

conditioners and heat pumps—(1) 

Criteria an ARM must satisfy. The basis 

of the ARM referred to in 

§ 429.9(c)(3)(ii) for residential central air 

conditioners and heat pumps must be a 

representation of the test data and 

calculations of a mechanical vaporcompression refrigeration cycle. The 

major components in the refrigeration 

cycle must be modeled as ‘‘fits’’ to 

manufacturer performance data or by 

graphical or tabular performance data. 

Heat transfer characteristics of coils may 

be modeled as a function of face area, 

number of rows, fins per inch, 

refrigerant circuitry, air-flow rate and 

entering-air enthalpy. Additional 

performance-related characteristics to be 

considered may include type of 

expansion device, refrigerant flow rate 

through the expansion device, power of 

the indoor fan and cyclic-degradation 

coefficient. Ratings for untested 

combinations must be derived from the 

ratings of a combination tested in 

accordance with § 429.9(c)(3)(i). The 

seasonal energy efficiency ratio (SEER) 

and/or heating seasonal performance 

factor (HSPF) ratings for an untested 

combination must be set equal to or less 

than the lower of the SEER and/or HSPF 

calculated using the applicable DOEapproved alternative rating method 

(ARM). If the method includes an ARM/ 

simulation adjustment factor(s), 

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

that yield the best match between the 

SEER/HSPF determined using the ARM 

versus the SEER/HSPF determined from 

testing in accordance with 

§ 429.9(c)(3)(i). Thereafter, apply the 

ARM using the derived adjustment 

factor(s) only when determining the 

ratings for untested combinations 

having the same outdoor unit. 

(2) Approval of an ARM. 

(i) Manufacturers who elect to use an 

ARM for determining measures of 

energy consumption under 

§ 429.9(c)(3)(ii)(B)(1) and paragraph 

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

request for DOE to review the ARM. 

Send the request to the U.S. Department 

of Energy, Office of Energy Efficiency 

and Renewable Energy, Building 

Technologies Program (EE–2J), 

Attention: Certification and Compliance 

Reports (ARM), Forrestal Building, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. 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 


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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). 

(ii) Each request to DOE for approval 

of an ARM must include: 

(A) The name, mailing address, 

telephone number, and e-mail address 

of the official representing the 

manufacturer. 

(B) Complete documentation of the 

alternative rating method to allow DOE 

to evaluate its technical adequacy. The 

documentation must include a 

description of the methodology, state 

any underlying assumptions, and 

explain any correlations. The 

documentation should address how the 

method accounts for the cyclicdegradation coefficient, the type of 

expansion device, and, if applicable, the 

indoor fan-off delay. The requestor must 

submit any computer programs— 

including spreadsheets—having less 

than 200 executable lines that 

implement the ARM. Longer computer 

programs must be identified and 

sufficiently explained, as specified 

above, but their inclusion in the initial 

submittal package is optional. 

Applicability or limitations of the ARM 

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

when operating in the cooling mode, 

covers units with rated capacities of 3 

tons or less, not applicable to the 

manufacturer’s product line of nonducted systems, etc.) must be stated in 

the documentation. 

(C) Complete test data from laboratory 

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

each ARM. 

(1) The four mixed systems must 

include four different indoor units and 

at least two different outdoor units. A 

particular model of outdoor unit may be 

tested with up to two of the four indoor 

units. The four systems must include 

two low-capacity mixed systems and 

two high-capacity mixed systems. The 

low-capacity mixed systems may have 

any capacity. The rated capacity of each 

high-capacity mixed system must be at 

least a factor of two higher than its 

counterpart low-capacity mixed system. 

The four mixed systems must meet the 

applicable energy conservation standard 

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

rating. 

(2) The four indoor units must come 

from at least two different coil families, 

with a maximum of two indoor units 

coming from the same coil family. Data 

for two indoor units from the same coil 

family, if submitted, must come from 

testing with one of the ‘‘low-capacity 

mixed systems’’ and one of the ‘‘high 

capacity mixed systems.’’ A mixed 

system indoor coil may come from the 

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

the ‘‘matched’’ indoor unit) for the 

particular outdoor unit. Data on mixed 

systems where the indoor unit is now 

obsolete will be accepted towards the 

ARM-validation submittal requirement 

if it is from the same coil family as other 

indoor units still in production. 

(3) The first two sentences of 

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

do not apply if the manufacturer offers 

indoor units from only one coil family. 

In this case only, all four indoor coils 

must be selected from this one coil 

family. If approved, the ARM will be 

specifically limited to applications for 

this one coil family. 

(D) All product information on each 

mixed system indoor unit, each 

matched system indoor unit, and each 

outdoor unit needed to implement the 

proposed ARM. The calculated ratings 

for the four mixed systems, as 

determined using the proposed ARM, 

must be provided along with any other 

related information that will aid the 

verification process. 

(E) If request for approval is for an 

updated ARM, manufacturers must 

identify modifications made to the ARM 

since the last submittal, including any 

ARM/simulation adjustment factor(s) 

added since the ARM was last approved 

by DOE. 

(3) Changes to DOE’s Regulations 

Requiring Re-Approval of an ARM. 

Manufacturers who elect to use an ARM 

for determining measures of energy 

consumption under § 429.9(3)(ii)(B)(1) 

and (d)(1) of this section must resubmit 

a request for DOE to review the ARM 

when: 

(i) DOE amends the energy 

conservation standards as specified in 

§ 429.32 for residential central air 

conditioners and heat pumps. In this 

case, any testing and evidence required 

under paragraph (e)(2) of this subsection 

shall be developed with units that meet 

the amended energy conservation 

standards specified in § 429.32. 

(ii) DOE amends the test procedure for 

residential air conditioners and heat 

pumps as specified in Appendix M to 

Subpart B of Part 430. 

(4) Manufacturers that elect to use an 

ARM for determining measures of 

energy consumption under 

§ 429.9(c)(3)(ii)(B)(1) and (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). The 

manufacturer is to keep the records of 

any such testing, and any such 

certifications, on file for review by DOE 

for two years following the 

discontinuance of said combination. 

Any proposed change to the alternative 

rating method must be approved by 

DOE prior to its use for rating. 

(5) Manufacturers who choose to use 

computer simulation or engineering 

analysis for determining measures of 

energy consumption under 

§ 429.9(c)(3)(ii)(B)(1) and (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. 

Subpart D—General Provisions 

§ 429.24 Maintenance of records. 

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 429, part 430, and part 431 of 

this subchapter. Such records shall be 

organized and indexed in a fashion that 

makes them readily accessible for 

review by DOE upon request. The 

records shall be retained by the 

manufacturer for a period of two years 

from the date that production of the 

applicable model has ceased. 

§ 429.25 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 is subject to 

the remedies of this part. 

(b) Any covered product or covered 

equipment offered for importation in 

violation of this part shall be refused 

admission into the customs territory of 

the United States under rules issued by 

the Department of Homeland Security 


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(DHS) and subject to further remedies as 

provided by law, except that DHS 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 DHS 

appropriate to ensure that such covered 

product or covered equipment will not 

violate this part, or will be exported or 

abandoned to the United States. 

§ 429.26 Exported products. 

This part 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 such product was imported 

for export), unless such product is, in 

fact, distributed in commerce for use in 

the United States; and 

(b) Such covered product or covered 

equipment, when distributed in 

commerce, or any container in which it 

is enclosed when so distributed, bears a 

stamp or label stating ‘‘NOT FOR SALE 

IN THE UNITED STATES.’’ 

§ 429.27 Public record. 

Pursuant to the provisions of § 429.71, 

product-specific information submitted 

by manufacturers to DOE pursuant to 

§ 429.19(b)(13), including the 

manufacturer’s name, the brand name, 

and applicable model number(s), shall 

be considered public information not 

exempt from public disclosure. 

Subpart E—Enforcement 

§ 429.29 Purpose and scope. 

This subpart describes the 

enforcement authority of the Secretary 

and the General Counsel of DOE to 

ensure compliance with the 

conservation standards and regulations. 

§ 429.31 Prohibited acts subjecting 

persons to enforcement action. 

(a) Each of the following actions are 

prohibited: 

(1) Failure of a manufacturer to 

provide, maintain, permit access to, or 

copying of records required to be 

supplied under the Act and this part or 

failure to make reports or provide other 

information required to be supplied 

under the Act and this part, including 

but not limited to failure to properly 

certify covered products and covered 

equipment in accordance with § 429.19 

of this part; 

(2) Failure to test any covered product 

or covered equipment, subject to an 

applicable energy conservation 

standard, in conformance with the 

applicable test requirements prescribed 

in 10 CFR parts 430 or 431; or 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; 

(3) Failure of a manufacturer to 

supply at the manufacturer’s expense a 

requested number of covered products 

or covered equipment to a test 

laboratory designated by the Secretary; 

(4) Failure of a manufacturer to permit 

a representative designated by the 

Secretary to observe any testing required 

by the Act and this part and inspect the 

results of such testing; 

(5) 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, 

except to the extent that the new 

covered product or covered equipment 

is covered by a regional standard that is 

more stringent than the base national 

standard; 

(6) 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; 

(7) Knowing misrepresentation by a 

manufacturer or private labeler of the 

applicable conservation standard of any 

covered product or covered equipment 

distributed in commerce; or 

(8) 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. 

(9) 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 the Secretary has reason to 

believe that a person has undertaken a 

prohibited act listed in paragraph (a) of 

this section, the Secretary may: 

(1) Issue a notice of noncompliance 

determination; 

(2) Impose additional certification 

testing requirements; 

(3) Seek injunctive relief; 

(4) Assess a civil penalty for knowing 

violations; or 

(5) Undertake any combination of the 

above. 

§ 429.33 Investigation of compliance. 

DOE may initiate an investigation of 

compliance upon belief that a basic 

model may not be compliant with an 

applicable conservation standard, 

certification requirement or other 

regulation. 

§ 429.34 Review of certification data. 

DOE may, at any time, request any 

information relevant to determining 

compliance with any requirement under 

parts 429, 430 and 431 of this 

subchapter, including the data 

underlying certification of a basic 

model. Such data may be used by DOE 

to make a determination of compliance 

or noncompliance with an applicable 

standard. 

§ 429.35 Subpoena. 

For purposes of carrying out parts 

429, 430, and 431 of this subchapter, the 

Secretary or the General Counsel, 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 contempt thereof. 

§ 429.36 Testing. 

DOE may, at any time, test a basic 

model to assess whether the basic model 

is in compliance with the applicable 

energy conservation standard(s). 

§ 429.37 Test notice. 

To obtain units for enforcement 

testing to determine compliance with an 

applicable standard, DOE may issue a 

test notice addressed to the 

manufacturer in accordance with the 

following requirements: 

(a) The test notice will be signed by 

the Secretary or his designee. The test 

notice will be sent by DOE to the 

government relations representative or 

other responsible official, as designated 

by the manufacturer. 

(b) The test notice will specify the 

basic model to be selected for testing, 

the method of selecting the test sample, 


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the maximum size of the sample and the 

size of the initial test sample, the time 

at which testing shall be initiated, the 

date by which testing is scheduled to be 

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 basic models. 

(c) 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 reimburse the distributor or 

retailer (with a replacement unit or a 

voucher) for any such units. 

(d) 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 a 

requested number of units of a basic 

model specified in such test notice to a 

testing laboratory designated by the 

Secretary. The number of units of a 

basic model specified in a test notice 

shall not exceed twenty one (21). 

(e) Within 2 working days of the time 

units are selected, the manufacturer 

shall ship the specified test units of a 

basic model to the testing laboratory. 

§ 429.39 [Reserved]. 

§ 429.41 Test unit selection. 

(a) To select units for testing from a: 

(1) Manufacturer’s warehouse, 

distributor, or other facility affiliated 

with the manufacturer. A DOE 

representative will select a batch sample 

at random of not more than 21 units in 

accordance with the provisions in 

§ 429.45 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 § 429.45(a)(5). 

(2) Retailer. A DOE representative will 

select an initial test sample of units at 

random, which satisfies the minimum 

units necessary for testing in accordance 

with the provisions in appendices A 

through C of the 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 the 

subpart. If the full sample is not 

available from a retailer, DOE will make 

a determination based on the provisions 

in § 429.45(a)(5). 

(b) 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. 

(c) 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 

§ 429.45 and appendix A through 

appendix C of this subpart. 

§ 429.43 Test unit preparation. 

(a) Prior to and during testing, a test 

unit selected in accordance with 

§ 429.41 of this subpart 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 of this subchapter. 

(b) 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. 

(c) 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 shall 

authorize testing of an additional unit 

on a case-by-case basis. 

§ 429.45 Sampling for enforcement testing. 

(a) The Department will base the 

determination of whether a basic model 

complies with the applicable energy 

conservation or water conservation 

standards on testing conducted in 

accordance with the applicable test 

procedures specified in parts 430 and 

431 of this subchapter, and with the 

following statistical sampling 

procedures: 

(1) For products with applicable 

energy and water conservation 

standards in § 430.32, the Department 

will use a sample size of not more than 

21 units and follow the sampling plans 

in Appendix A to Subpart E of Part 429 

(Sampling for Enforcement Testing of 

Covered Consumer Products and Certain 

High-Volume Commercial Equipment). 

(2) For commercial prerinse spray 

valves, illuminated exit signs, traffic 

signal modules and pedestrian modules, 

commercial clothes washers, and metal 

halide lamp ballasts, the Department 

will use a sample size of not more than 

21 units and follow the sampling plans 

in Appendix A to Subpart E of Part 429 

(Sampling for Enforcement Testing of 

Covered Consumer Products and Certain 

High-Volume Commercial Equipment). 

(3) For automatic commercial ice 

makers, commercial refrigerators, 

freezers, and refrigerator-freezers, 

refrigerated bottled or canned vending 

machines, and commercial HVAC and 

WH equipment, the Department will use 

an initial sample size of not more than 

four units and follow the sampling 

plans in Appendix B to Subpart E of 

Part 429 (Sampling Plan for 

Enforcement Testing of Covered 

Equipment and Certain Low-Volume 

Covered Products) with the following 

exceptions: 

(i) Except as required or provided in 

paragraphs (a)(3)(ii) of this section, 

initially, the Department will test two 

units. 

(ii) If fewer than two units of the basic 

model are available for testing when the 

manufacturer receives the test notice, 

then: 

(A) The Department will test the 

available unit; or 

(B) If one or more other units of the 

basic model are expected to become 

available within 30 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 four); or 

(2) Up to four of the other units that 

subsequently become available. 

(4) For distribution transformers, the 

Department will use an initial sample 

size of not more than five units and 

follow the sampling plans in Appendix 

C to Subpart E of Part 429 (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: 

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

or 

(ii) If one or more other units of the 

basic model are expected to become 

available within 30 days, the 

Department may instead at its 

discretion, test either: 

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

more of the other units that 

subsequently become available (up to a 

maximum of 21); or 

(B) Up to 21 of the other units that 

subsequently become available. 

(5) Notwithstanding paragraphs (a)(1) 

through (a)(4) of this section, if testing 


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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, 

the Department may in its discretion 

decide to base the determination of 

compliance on the testing of fewer than 

the otherwise required number of units. 

(6) When the Department makes a 

determination in accordance with 

section (a)(5) to test less than the 

number of units specified (a)(1) through 

(a)(4) of this section, the Department 

will base the compliance determination 

on the results of such testing in 

accordance with Appendix B to Subpart 

E of Part 429 (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 

identified in § 429.41 without the option 

for additional testing at the 

manufacturer’s option. 

(6) For the purposes of paragraphs 

(a)(1) through (a)(5) of this section, 

available units are those that are 

available for commercial distribution 

within the United States. 

§ 429.47 [Reserved] 

§ 429.49 Notice of noncompliance 

determination 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. 

(3) Pursuant to a request made by the 

Secretary, provide DOE within 30 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 model is noncompliant with an 

applicable certification requirement, or 

if a manufacturer or private labeler 

determines a model to be in 

noncompliance with the certification 

requirements, 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) Pursuant to a request made by the 

Secretary, provide DOE within 30 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. 

(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 Secretary 

may seek, among other remedies, 

injunctive action and civil penalties, 

where appropriate. 

(d) The manufacturer may modify a 

basic model determined to be 

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, the 

manufacturer shall also maintain, and 

provide upon request made by the 

Secretary, records that demonstrate that 

modifications have been made to all 

units of the new basic model prior to 

distribution in commerce. 

§ 429.51 Additional certification testing 

requirements. 

Pursuant to § 429.31(b)(2), if DOE 

determines that independent, thirdparty testing is necessary to ensure a 

manufacturer’s compliance with the 

rules of this part 429, part 430, or part 

431 of this subchapter, a manufacturer 

must base its certification of a basic 

model under subpart C of this part on 

independent, third-party laboratory 

testing. 

§ 429.53 Injunctions. 

If the Secretary 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 the Secretary’s intent to seek a 

judicial order enjoining the 

manufacturer, private labeler or any 

other person as required from engaging 

in the prohibited act unless the 

manufacturer, private labeler or any 

other person as required, 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 

conduct 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 

conduct or fails to provide a satisfactory 

corrective action and compliance plan, 

the Secretary may seek an injunction. 

(c) The Secretary shall determine 

whether the facts of the case warrant the 

assessment of civil penalties for 

knowing violations. 

§ 429.55 Maximum civil penalty. 

Any person who knowingly violates 

any provision of § 429.31(a) of this part 

may be subject to assessment of a civil 

penalty of no more than $200 for each 

violation. As to § 429.31(a)(1) with 

respect to failure to certify, and as to 

§ 429.31(a)(2), (5) through (9), each unit 

of a covered product or covered 

equipment distributed in violation of 

such paragraph shall constitute a 

separate violation. For violations of 

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

noncompliance shall constitute a 

separate violation for each basic model 

at issue. 

§ 429.57 Penalty considerations. 

DOE will assess a civil penalty under 

this subpart taking the following into 

account: 

(a) The nature and scope of the 

violation; 

(b) The provision violated; 

(c) The violator’s history of 

compliance or non-compliance; 

(d) Whether the violator is a small 

business; 

(e) The violator’s ability to pay; 

(f) The violator’s timely self-reporting 

of the violation, if any; 

(g) The violator’s self-initiated 

corrected action, if any; and 

(h) Such other matters as justice may 

require. 

§ 429.59 Notice of proposed civil penalty. 

(a) Before issuing an order assessing a 

civil penalty against any person under 

this section, the Secretary shall provide 

to such person notice of the proposed 

penalty. 

(b) The notice of proposed penalty 

will: 

(1) Include the amount of the 

proposed penalty; 

(2) Include a statement of the material 

facts constituting the alleged violation; 

and 

(3) Inform the person of the 

opportunity to elect in writing within 30 

calendar days of receipt of the notice to 

have the procedures of § 429.65 (in lieu 


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56828 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

of those of § 429.63) apply with respect 

to the penalty. 

§ 429.61 Election of procedures. 

(a) In responding to a notice of 

proposed civil penalty, the respondent 

may request: 

(1) An administrative hearing before 

an Administrative Law Judge (ALJ) 

under § 429.63 of this part; or 

(2) Elect to have the procedures of 

§ 429.65 apply. 

(b) Any election to have the 

procedures of § 429.65 apply may not be 

revoked except with the consent of the 

Secretary. 

(c) If the respondent fails to respond 

to a notice issued under § 429.59 or 

otherwise fails to indicate its election of 

procedures, DOE shall refer the civil 

penalty action to an ALJ for a hearing 

under § 429.63. 

§ 429.63 Administrative law judge hearing 

and appeal. 

(a) When elected pursuant to § 429.61, 

DOE shall refer a civil penalty action 

brought under § 429.59 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 includes a 

statement of the findings and 

conclusions, and the reasons therefore, 

on all material issues of fact, law, and 

discretion. 

(c)(1) The Secretary 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 Secretary shall include in 

its final order the ALJ’s findings of fact 

and the reasons for its 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 of the Secretary 

assessing such penalty, institute an 

action in the United States Court of 

Appeals for the appropriate judicial 

circuit for judicial review of such order 

in accordance with chapter 7 of title 5, 

United States Code. The court shall 

have jurisdiction to enter a judgment 

affirming, modifying, or setting aside in 

whole or in part, the order of the 

Secretary, or the court may remand the 

proceeding to the Secretary for such 

further action as the court may direct. 

§ 429.65 Immediate issuance of order 

assessing civil penalty. 

(a) If respondent elects to forgo an 

agency hearing pursuant to § 429.61, 

DOE shall issue an order assessing the 

civil penalty proposed in the notice of 

proposed penalty under § 429.59, 30 

days after respondent’s receipt of the 

notice of proposed penalty. 

(b) If within 60 days of receiving the 

assessment order in paragraph (a) of this 

section the respondent does not pay the 

civil penalty amount, the Secretary shall 

institute an action in the appropriate 

United States District Court for an order 

affirming the assessment of the civil 

penalty. The court shall have authority 

to review de novo the law and the facts 

involved and shall have jurisdiction to 

enter a judgment enforcing, modifying, 

and enforcing as so modified, or setting 

aside in whole or in part, such 

assessment. 

§ 429.67 Collection of civil penalties. 

(a) If any person fails to pay an 

assessment of a civil penalty after it has 

become a final and unappealable order 

under § 429.63 or after the appropriate 

District Court has entered final 

judgment in favor of the Secretary under 

§ 429.65, the Secretary 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. 

(b)(1) The Secretary will be 

represented by the General Counsel of 

DOE (or any attorney or attorneys 

within DOE designated by the General 

Counsel) who shall supervise, conduct, 

and argue any civil litigation to which 

§ 429.65 applies including any related 

collection action under paragraph (a) of 

this section in a court of the United 

States or in any other court, except the 

Supreme Court of the United States, 

consulting with the Attorney General 

concerning such litigation. The Attorney 

General will provide, on request, such 

assistance in the conduct of such 

litigation as may be appropriate. 

(2) The Secretary shall be represented 

by the Attorney General, or the Solicitor 

General, as appropriate, in actions 

under this section, except to the extent 

provided in paragraph (b)(1) of this 

section. 

(3) DOE will provide to a Respondent 

contact information for the appropriate 

administrative law judge when a case is 

referred for hearing pursuant to 

§ 429.63. 

§ 429.69 Compromise and settlement. 

(a) The Secretary 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, the 

Secretary 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) The Secretary’s authority to 

compromise, modify or remit a civil 

penalty may be exercised at any time 

prior to a final decision by the United 

States Court of Appeals if § 429.63 

procedures are utilized, or prior to a 

final decision by the United States 

District Court, if § 429.65 procedures are 

utilized. 

(d) Notwithstanding paragraph (a) of 

this section, the Secretary 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. 

§ 429.71 Confidentiality. 

Pursuant to the provisions of 10 CFR 

1004.11, any person submitting 

information or data which the person 

believes to be confidential and exempt 

by law from public disclosure should 

submit one complete copy, and one 

copy from which the information 

believed to be confidential has been 

deleted. In accordance with the 

procedures established in 10 CFR 

1004.11, DOE shall make its own 

determination with regard to any claim 

that information submitted be exempt 

from public disclosure; however, the 

following records and other material of 

DOE are not exempt from public 

disclosure: 

(a) Reports of compliance filed 

pursuant to the rules in this part or 

pursuant to a provision in a DOE order; 

and 

(b) Product-specific information 

submitted by manufacturers to DOE 

pursuant to § 429.19(b)(13), including 

the manufacturer’s name, the brand 

name, and applicable model number(s). 

Appendix A to Subpart E of Part 429— 

Sampling Plan for Enforcement Testing 

of Covered Consumer Products and 

Certain High-Volume Commercial 

Equipment 

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

or more units, except as provided by 

§ 429.45. 

(b) Compute the mean of the measured 

energy performance (x1) for all tests as 

follows: 

x n xi

i

n

1

1 1

1 1

= ⎛

⎝

⎜

⎜

⎞

⎠

⎟

⎟ =

∑ [Equation 1]

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: 


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s

x x

n

i

i

n

1

1

2

1

1

1

1 =

( ) −

−

=

∑

[Equation 2]

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

measured energy performance from the n1

tests as follows: 

s

s

n x1

1

1

= [Equation 3]

(e) Compute the upper control limit (UCL1) 

and lower control limit (LCL1) for the mean 

of the first sample using the applicable DOE 

energy or water performance standard (EPS) 

as the desired mean and a probability level 

of 95 percent (two-tailed test) as follows: 

LCL EPS ts 1 x1 = − [Equation 4]

and 

UCL EPS +ts 1 x1 = [Equation 5]

where t is the statistic based on a 95 percent 

two-tailed probability level and a sample 

size of n1. 

(f)(1) 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: 

(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: 

(A) 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.) 

(B) 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.) 

(C) 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 h(1). 

(g)(1) For an energy efficiency or water 

efficiency standard, determine the second 

sample size (n2) as follows: 

n ts

EPS n 2

1

2

1 0 05 = ⎛

⎝

⎜ ⎞

⎠

⎟ − . [Equation 6a]

where s1 and t have the values used in Steps 

4 and 5, respectively. The term ‘‘0.05 

EPS’’ 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 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: 

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

to zero and if the mean energy or water 

efficiency of the first sample (x1) is either 

equal to or greater than the lower control 

limit (LCL1) or equal to or greater than 95 

percent of the applicable energy efficiency or 

water efficiency standard (EES), whichever is 

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

0.95 EES), the basic model is in compliance 

and testing is at an end. 

(B) 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 efficiency standard (EES), 

whichever is greater, i.e., if n2 ≤ 0 and 

x1 ≥ max (LCL1, 0.95 EES), the basic model is 

in noncompliance and testing is at an end. 

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

then 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 n2so calculated 

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

(2) For an Energy or Water Consumption 

Standard, determine the second sample size 

(n2) as follows: 

n ts

EPS n 2

1

2

1 0 05 = ⎛

⎝

⎜

⎜

⎞

⎠

⎟

⎟ − . [Equation 6b]

where s1and t have the values used in (d) and 

(e), respectively. The term ‘‘0.05 EPS’’ 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: 

(A) 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 

performance standard (EPS), whichever is 

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

EPS), the basic model is in compliance and 

testing is at an end. 

(B) 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 performance standard (EPS), 

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

(UCL1, 1.05 EPS), the basic model is in 

noncompliance and testing is at an end. 

(C) 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 (6a). If the value of n2 so calculated 

is greater than 20¥n1, set n2 equal to 21¥n1. 

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

measured energy or water performance of the 

n1 and n2 units of the combined first and 

second samples as follows: 

x n n xi

i

n n

2

1 2 1

1 1 2

= +

⎛

⎝

⎜

⎜

⎞

⎠

⎟

⎟ =

+

∑ [Equation 7]

(i) Compute the standard error (Sx1) of the 

measured energy or water performance of 

then 1 and n2 units in the combined first and 

second samples as follows: 

s

s

n n x 2

1

1 2

= +[Equation 8]

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

(j)(1). For an Energy Efficiency Standard, 

compute the lower control limit (LCL2) for 

the mean of the combined first and second 

samples using the DOE energy efficiency 

standard (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)) as follows: 

LCL EPS ts 2 x2 = − [Equation 9a]

where the t-statistic has the value obtained in 

Step (e). 

(j)(2). For an Energy or Water Consumption 

Standard, compute the upper control limit 

(UCL2) for the mean of the combined first and 

second samples using the DOE energy or 

water performance standard (EPS) as the 

desired mean and a one-tailed probability 

level of 102.5 percent (equivalent to the twotailed probability level of 95 percent used in 

Step (e)) as follows: 

UCL EPS +ts 1 x1 = [Equation 9b]

where the t-statistic has the value obtained in 

(e). 

(k)(1). For an Energy Efficiency Standard, 

compare the combined sample mean (x2) to 

the lower control limit (LCL2) to find one of 

the following: 

(A) If the mean of the combined sample 

(x2) is less than the lower control limit (LCL2) 

or 95 percent of the applicable energy 

efficiency standard (EES), whichever is 

greater, i.e., if x2 < max (LCL2, 0.95 EES), the 

basic model is in noncompliance and testing 

is at an end. 

(B) 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. 

(k)(2). For an Energy or Water 

Consumption Standard, compare the 

combined sample mean (x2) to the upper 

control limit (UCL2) to find one of the 

following: 

(A) If the mean of the combined sample 

(x2) is greater than the upper control limit 

(UCL2) or 105 percent of the applicable 

energy or water performance standard (EPS), 

whichever is less, i.e., if x2> min (UCL2, 1.05 

EPS), the basic model is in noncompliance 

and testing is at an end. 

(B) 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 (EPS), 


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56830 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

whichever is less, i.e., if x2 ≤ min (UCL2, 

1.05 EPS), the basic model is in compliance 

and testing is at an end. 

Appendix B to Subpart E of Part 429— 

Sampling Plan for Enforcement Testing 

of Covered Equipment and Certain 

Low-Volume Covered Products 

The Department will determine 

compliance as follows: 

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

or more units, except as provided by 

§ 429.45. 

(b) Compute the mean of the measured 

energy performance (x1) for all tests as 

follows: 

x n xi

i

n

1

1 1

1 1

= ⎛

⎝

⎜

⎜

⎞

⎠

⎟

⎟ =

∑ [Equation 1]

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: 

s

x x

n

i

i

n

1

1

2

1

1

1

1 =

( ) −

−

=

∑

[Equation 2]

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

measured energy performance from the n1

tests as follows: 

s

s

n x1

1

1

= [Equation 3]

(e)(1) For an energy efficiency standard, 

compute the lower control limit (LCL1) 

according to: 

LCL EPS ts 1 x1 = − [Equation 4a]

or 

LCL EPS 1 = 0 95 . , [Equation 4b]

(whichever is greater). 

(2) For an energy use standard, compute 

the upper control limit (UCL1) according to: 

UCL EPS +ts 1 x1 = [Equation 5a]

or 

UCL EPS 1= 1 05 . , [Equation 5b]

(whichever is less), 

Where EPS is the energy performance 

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. 

(ii) Unless the manufacturer requests 

manufacturer-option testing and provides the 

additional units for such testing, the basic 

model is in noncompliance and the testing is 

at an end because compliance has not been 

demonstrated if: 

(A) For an energy efficiency standard, the 

sample mean is less than the lower control 

limit, or 

(B) For an energy consumption standard, 

the sample mean is greater than the upper 

control limit. 

(2) If the manufacturer does request 

additional testing, and provides the 

necessary additional units, the Department 

will test each unit the same number of times 

it tested previous units. The Department will 

then compute a combined sample mean, 

standard deviation, and standard error as 

described above. (The ‘‘combined sample’’ 

refers to the units the Department initially 

tested plus the additional units the 

Department has tested at the manufacturer’s 

request.) The Department will determine 

compliance or noncompliance from the mean 

and the new lower or upper control limit of 

the combined sample. If, for an energy 

efficiency standard, the combined sample 

mean is equal to or greater than the new 

lower control limit or, for an energy 

consumption standard, the sample mean is 

equal to or less than the upper control limit, 

the basic model is in compliance, and testing 

is at an end. If the combined sample mean 

does not satisfy one of these two conditions, 

the basic model is in noncompliance and the 

testing is at an end. 

Appendix C to Subpart E of Part 429— 

Sampling Plan for Enforcement Testing 

of Distribution Transformers 

(a) When testing distribution transformers, 

the number of units in the sample (m1) shall 

be in accordance with § 429.45 and DOE 

shall perform the following number of tests: 

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

test each unit once; 

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

test each unit twice; or 

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

unit four times. 

(b) DOE shall determine compliance as 

follows: 

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

energy performance of the n1 tests in the first 

sample as follows: 

X = n Xi

i

n

1

1 1

1 1

=

∑ [Equation 1]

Where Xi is the measured efficiency of test 

i. 

(ii) Compute the sample standard deviation 

(S1) of the measured efficiency of the n1 tests 

in the first sample as follows: 

s

X X

n

i

i

n

1

1

2

1 1 1

1

= ( ) −

− =

∑ [Equation 2]

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

the mean efficiency of the first sample as 

follows: 

SE X S

n 1

1

1

( ) = [Equation 3]

(iv) Computer the sample size discount 

(SSD(m1)) as follows: 

SSD m

m RE

1

1

100

1 1 0 08 100 1

( ) =

+ +

⎛

⎝

⎜

⎜

⎞

⎠

⎟

⎟ − ⎛

⎝

⎜ ⎞

⎠

⎟ .

[Equation 4]

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. 

(v) Compute the lower control limit (LCL1) 

for the mean of the first sample as follows: 

LCL SSD m tSE X 11 1 = ( ) − ( ) [Equation 5]

Where t is the 2.5th percentile of a tdistribution for a sample size of n1, 

which yields a 97.5 percent confidence 

level for a one-tailed t-test. 

(vi) Compare the mean of the first sample 

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

determine one of the following: 


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Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 56831 

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

the lower control limit, then the basic model 

is in non-compliance and testing is at an end. 

(B) 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 

(vii). 

(vii) Determine the recommended sample 

size (n) as follows: 

n tS RE

RE RE = −

−

⎡

⎣

⎢ ⎤

⎦

⎥ 1

2 108 0 08

8 0 08

( .

(. )

) [Equation 6]

Where S1 and t have the values used in Steps 

(ii) and (v), respectively. The factor 

( .

(. )

108 0 08

8 0 08

−

−

RE

RE

)

is based on an 8-percent tolerance in the total 

power loss. 

Given the value of n, determine one of the 

following: 

(A) 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. 

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

basic model is in non-compliance. 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. 

(viii) 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: 

X n n Xi

i

n n

2

1 2 1

1 1 2

= +

⎛

⎝

⎜

⎜

⎞

⎠

⎟

⎟ =

+

∑ [Equation 7]

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

the mean full-load efficiency of the n1 and 

n2units in the combined first and second 

samples as follows: 

SE X S

n n 2

1

1 2

( ) = +

[Equation 8]

(Note that S1 is the value obtained above in 

(ii).) 

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

LCL SSD m tSE X 212 = ( ) − ( ) [Equation 9]

Where t has the value obtained in (v), and 

compare the combined sample mean (X2) 

to the lower control limit (LCL2) to find 

one of the following: 

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

is less than the lower control limit 

(LCL2), the basic model is in noncompliance and testing is at an end. 

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

is equal to or greater than the lower 

control limit (LCL2), the basic model is 

in compliance and testing is at an end. 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

2. The authority citation for part 430 

continues to read as follows: 

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

2461 note. 

3. In § 430.2 revise the definition of 

‘‘Act’’ and in the definition of ‘‘basic 

model’’ revise paragraph (24) to read as 

follows: 

§ 430.2 Definitions. 

* * * * * 

Act means the Energy Policy and 

Conservation Act of 1975, as amended, 

42 U.S.C. 6291–6316. 

* * * * * 

Basic model * * * 

(24) With respect to medium base 

compact fluorescent lamps, means 

lamps that have essentially identical 

light output and electrical 

characteristics and that do not have any 

differing physical or functional 

characteristics that affect energy 

consumption or efficacy. 

* * * * * 

§ 430.24 [Removed and Reserved] 

4. Remove and reserve § 430.24. 

Subpart F—[Removed and Reserved] 

5. Remove and reserve Subpart F, 

consisting of §§ 430.60 through 430.75, 

and Appendix A and B to subpart F of 

part 430. 

PART 431—ENERGY EFFICIENCY 

PROGRAM FOR CERTAIN 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

6. The authority citation for part 431 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6317. 

§ 431.65 [Removed] 

7. Section 431.65 is removed. 

§ 431.135 [Removed] 

8. Section 431.135 is removed. 

§§ 431.173 through 431.175 [Removed and 

Reserved] 

9. Sections 431.173 through 431.175 

are removed and reserved. 

§§ 431.197 and 431.198 [Removed] 

10a. Sections 431.197 and 431.198 are 

removed. 

Appendix B to Subpart K of Part 431— 

[Removed] 

10b. Appendix B to subpart K of part 

431 is removed. 

§ 431.205 [Removed] 

11. Section 431.205 is removed. 

§ 431.225 [Removed] 

12. Section 431.225 is removed. 

§ 431.265 [Removed] 

13. Section 431.265 is removed. 

§ 431.295 [Removed] 

14. Section 431.295 is removed. 

15. In § 431.302 a new definition of 

‘‘manufacturer of walk-in cooler or walkin freezer’’ is added in alphabetical 

order to read as follows: 

§ 431.302 Definitions concerning walk-in 

coolers and walk-in freezers. 

Manufacturer of a walk-in cooler or 

walk-in freezer means any person who 

manufactures, produces, assembles or 

imports such a walk-in cooler or walkin freezer, including any person who: 

(1) Manufacturers, produces, 

assembles, or imports a walk-in cooler 

or walk-in freezer in its entirety, 

including the collection and shipment 

of all components that affect the energy 

consumption of a walk-in cooler or 

walk-in freezer; 

(2) Manufactures, produces, 

assembles or imports a walk-in cooler or 

walk-in freezer in part, and specifies or 

approves the walk-in cooler or walk-in 

freezer’s components that affect energy 

consumption, including refrigeration, 

doors, lights, or other components 

produced by others, as for example by 

specifying such components in a 

catalogue by make and model number or 

parts number; 

(3) Is any vendor who sells a walk-in 

cooler or walk-in freezer that consists of 

a combination of components that affect 

energy consumption, which are not 

specified or approved by a person 

described in paragraphs (1) or (2) of this 

definition; or 

(4) Is an individual or a company who 

arranges for a walk-in cooler or walk-in 

freezer to be assembled at his own or 

any other specified premises from 

components that affect energy 

consumption, which are specified and 

approved by him and not by a person 

described in paragraphs (1), (2), or (3) of 

this definition. 

* * * * * 

§ 431.325 [Removed] 

16. Section 431.325 is removed. 

§§ 431.327 through 431.329 [Removed] 

17. Remove §§ 431.327 through 

431.329. 

Appendices A through C to Subpart S 

of Part 431—[Removed]. 

18. Remove Appendices A through C 

to subpart S of part 431. 


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56832 Federal Register / Vol. 75, No. 179 / Thursday, September 16, 2010 / Proposed Rules 

Subpart T—[Removed] 

19. Remove subpart T to part 431, 

consisting of §§ 431.370 through 

431.373 and appendices A through D, is 

removed. 

20a. Revise the heading to Subpart U 

to read as follows: 

Subpart U—Enforcement for Electric 

Motors 

* * * * * 

20b. Revise § 431.381 to read as 

follows 

§ 431.381 Purpose and scope for electric 

motors. 

This subpart describes violations of 

EPCA’s energy conservation 

requirements, specific procedures we 

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

applicable energy conservation standard 

or labeling requirement, and general 

procedures for enforcement action, 

largely drawn directly from EPCA, that 

apply to electric motors. 

§§ 431.403 through 431.407 [Removed] 

21. Remove §§ 431.403 through 

431.407. 

[FR Doc. 2010–22353 Filed 9–15–10; 8:45 am] 

BILLING CODE 6450–01–P 


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