Monday 

December 13, 1999 

Part II 

Department of 

Energy 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 431 

Energy Efficiency Program for 

Commercial and Industrial Equipment: 

Test Procedures and Efficiency Standards 

for Commercial Warm Air Furnaces; 

Efficiency Certification, Compliance, and 

Enforcement Requirements for 

Commercial Heating, Air Conditioning and 

Water Heating Equipment; Proposed Rule 

 EE-RM-TP-99-450 COMMENT 01B

EE-RM/TP-99-450 COMMENT 01B
69598 Federal Register 1 Vol. 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 431 

[Docket No. EE-RMITP-99-4501 

RIN NO. 1904-AA96 

Energy Efficiency Program for 

Commercial and Industrial Equipment: 

Test Procedures and Efficiency 

Standards for Commercial Warm Air 

Furnaces; Efficiency Certification, 

Compliance, and Enforcement 

Requirements for Commercial Heating, 

Air Conditioning and Water Heating 

Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Proposed Rule and Public 

Hearing. 

SUMMARY: The Energy Policy and 

Conservation Act, as amended (EPCA), 

establishes energy efficiency standards 

and test procedures for certain 

commercial equipment, including 

commercial warm air furnaces. In 

today's rule the Department of Energy 

(DOE or the Department) proposes 

regulations to implement the standards 

and test procedures for these furnaces 

and to address other ancillary matters 

(e.g., compliance certification, 

prohibited actions, and enforcement 

procedures) for commercial heating, air 

conditioning and water heating 

equipment generally. 

DATES: The Department will accept 

comments, data, and information 

regarding the proposed rule until 

February 28, 2000. Please submit ten 

(10) copies. In addition, the Department 

requests that you provide an electronic 

copy (3?"L3' diskette) of the comments in 

WordPerfectT" 8. 

The Department will hold a public 

hearing on Thursday, January 27, 2000, 

in Washington, DC. Please send requests 

to speak at the hearing so that the 

Department receives them by 4:00 p.m., 

January 24, 2000. Send ten (10) copies 

of your statements for the public hearing 

so that the Department receives them by 

4:00 p.m., January 24, 2000. The 

Department also requests a computer 

diskette (WordPerfectTM 8) of each 

statement. 

ADDRESSES: Please address requests to 

make statements at the public hearing 

and send copies of such statements to 

Ms. Brenda Edwards-Jones, and send 

written comments to Mr. Cyrus Nasseri, 

each at the following address: U.S. 

Department of Energy, Office of Energy 

64, No. 238 1 Monday, December 13, 

Efficiency and Renewable Energy, EE41,1000 Independence Avenue, SW, 

Washington, DC 20585-0121. You 

should identify all such documents both 

on the envelope and on the documents 

as "Energy Conservation Program for 

Commercial Equipment: Test 

Procedures for Commercial Warm Air 

Furnaces and Certification 

Requirements for Commercial 

Equipment, Docket No. EE-RM/TP-99- 

450." The hearing will begin at 9:00 

a.m., on Thursday, January 27, 2000, 

and will take place in Room 1E-245 at 

the U.S. Department of Energy, Forrestal 

Building, 1000 Independence Avenue, 

SW, Washington, DC 20585-0121. You 

can find more information concerning 

public participation in this rulemaking 

proceeding in section IV, "Public 

Comment," of this notice. 

You can read copies of the transcript 

of the public hearing and public 

comments received in the Freedom of 

Information Reading Room (Room No. 

1E-190) at the U.S. Department of 

Energy, Forrestal Building, 1000 

Independence Avenue, SW, 

Washington, DC 20585-0121, between 

the hours of 9:00 a.m. and 4:00 p.m., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: 

Cyrus H. Nasseri, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Mail Station, EE-41. 

1000 Independence Avenue, SW, 

Washington, D.C. 20585, (202) 586- 

9138, FAX (202) 586-4617, 

e-mail: Cyrus.Nasseri@ee.doe., OOV, or 

Edward Levy, Esq, U.S. Department of 

Energy, Office of General Counsel, Mail 

Station, GC-72, 1000 Independence 

Avenue. SW, Washington, D.C. 20585, 

(202) 586-9507, e-mail: 

Edward.Levy@hq.doe.gov 

SUPPLEMENTARY INFORMATION: 

The proposed rule refers to certain 

industry standards established by the 

American National Standards Institute 

(ANSI), the American Society of 

Heating, Refrigerating and AirConditioning Engineers, Inc. (ASHRAE), 

the Illuminating Engineering Society of 

North America (IES), and Underwriters 

Laboratories (UL). These individual 

industry standards are referenced by the 

single comprehensive "ANSIIASHRAEI 

IES Standard 90.1-1989," which will be 

cited by its shorter title "ASHRAE/IES 

Standard 90.1" in the rest of this 

document. The proposed rule would 

incorporate, by reference, the test 

procedures contained in ASHRAEIIES 

Standard 90.1 for commercial warm air 

furnaces. Those industry standards are: 

American National Standards Institute 

1999 /Proposed Rules 

(ANSI) Standard 221.47-1993, "GasFired Central Furnaces'; and 

Underwriters Laboratories (UL) 

Standard 727-1994, "Standard for OilFired Central Furnaces." The proposed 

rule would also incorporate by 

reference, (1) Sections 8.2,11.2, and 

11.2.1, and accompanying Forms 715 

and 721, of the Hydronics Institute (HI) 

Standard "Testing and Rating Standard 

for Heating Boilers," 6th Edition, 1989, 

which specify a flue loss calculation 

procedure for oil-fired equipment, and 

(2) Sections 7.2.2.4, 7.8, 9.2 and 11.3.7 

of the ASHRAE Standard 103-1993, 

"Method of Testing for Annual Fuel 

Utilization Efficiency of Residential 

Central Furnaces and Boilers," which 

specify a test procedure for condensing 

furnaces. 

You can view copies of these 

standards at the Department of Energy's 

Freedom of Information Reading Room 

at the address stated above. You can 

obtain copies of the ASHIZAE and HI 

standards from the American Society of 

Heating, Refrigerating, and AirConditioning Engineers, Inc., 1971 

Tullie Circle, NE, Atlanta, GA 30329, 

and the Hydronics Institute Inc., 35 

Russo Place, Berkeley Heights, N.J. 

07922, respectively. You can obtain 

copies of the ANSI and UL standards 

from Global Engineering Documents, 15 

Inverness Way East, Englewood, CO 

80112, or http://global.ihs.corn/. You 

can obtain electronic versions of the 

ASHRAE standards at ASHRAE's web 

site, http:l/www.ashrae.org/booW 

bookshop.htm, and of the ANSI 

standards at ANSI's web site, http:ll 

webstore.ansi.org/ansidocstorel. For 

more information concerning public 

participation in this rulemaking 

proceeding, see section IV, "Public 

Comment," of this notice. 

You can obtain the latest information 

regarding the public hearing from the 

Office of Codes and Standards world 

wide web site at the following address: 

http://www.eren.doe.gov/buildings/ 

codes-standards/index.htm. 

I. Introduction 

A. Authority 

B. Background. 

1. General. 

2. The Test Procedures for Furnaces. 

C. The Proposed Rule. 

11. Discussion 

A. General. 

B. ASHRAEIIES Standard 90.1 Referenced 

Furnace Test Standards. 

C. Definition of Thermal Efficiency for 

Furnaces. 

D. Procedures for Measuring Flue Losses of 

Oil Furnaces and Incremental Efficiency 

of Condensing Furnaces. 

I. Flue Loss Calculation for Oil-Fired 

Furnaces. 

2. Condensing Furnaces. 

 EE-RM-TP-99-450 COMMENT 01B

EE-RM/TP-99-450 COMMENT 01B
Federal Register /Vol. 64, No. 238 /Monday, December 13, 1999 /Proposed Rules 69599 

E. Sampling, Certification and Enforcement 

for Commercial Heating, Air 

Conditioning and Water Heating 

Equipment. 

1. Background and Public Comments. 

a. Purpose. 

b. Sampling. 

c. Public Comments and 

Recommendations. 

2. Proposed Certification and Enforcement 

Procedures. 

a. Certification Procedures. 

b. Basis for Certification: Methods for 

Determining Efficiency. 

c. Voluntary Independent Certification 

Program. 

d. Manufacturers Not Participating in a 

VICP. 

e. Enforcement. 

3. Accommodation for Manufacturing 

Tolerances, Measurement Uncertainty 

and Small Sanlple Sizes. 

111. Procedural Requirements 

A. Review Under the National 

Environmental Policy Act of 1969. 

B. Review Under Executive Order 12866, 

"Regulatory Planning and Review." 

C. Review Under the Regulatory Flexibility 

Act. 

D. Review Under Executive Order 13132. 

E. Review Under Executive Order 12630, 

"Governmental Actions and Interference 

with Constitutionally Protected Property Rights." 

F. Riview Under the Papenvork Reduction 

Act. 

G. Kevielz Under Executive Order 12988, 

"Civil Justice Reform." 

H. Review Under Section 32 of the Federal 

Energy Administration Act of 1974. 

I. Review Linder Unfunded Mandates 

Keforni Act of 1995. 

J. Kevieu. Under the Plain Language 

Directives. 

I<. Kevie\v Under the Treasury and General 

Government Appropriations Act, 1999. 

IV. Public Comment 

A. \Vritten Comment Procedures. 

B. t'ublic Hearing. 

1. Procedures for Submitting Requests to 

Speak. 

2. Conduct of Hearing. 

C. Issues on which Comments are 

Requested. 

I. Introduction 

Part R of Title 111 of the Energy Policy 

and Conservation Act (EPCA) of 1975, 

Pub. L. 94-163. as amended, bythe 

National Energy Conservation Act of 

1978 (NECPA). Pub. L. 95-619, the 

National Appliance Energy 

Conservation Act of 1987 (NAECA), 

Pub. L. 100-12, the National Appliance 

Energy Conservation Amendments of 

1988 (NAECA 1988), Pub. L. 100-357, 

and the Energy Policy Act (EPACT), 

Pub. L. 102-486, established the Energy 

Conservation Program for Consumer 

Products other than Automobiles. Part 3 

of Title IV of NECPA amended EPCA to 

add "Energy Efficiency of Industrial 

Equipment." which included air 

conditioning equipment, furnances, and 

other types of equipment. 

EPACT also amended EPCA with 

respect to industrial equipment. It 

provided definitions, test procedures, 

labeling provisions, energy conservation 

standards, and authority to require 

information and reports from 

manufacturers. See 42 U.S.C. 6311- 

6316. Specifically, for example, EPCA 

now authorizes the Secretarey of Energy 

to prescribe test procedures that are 

reasonably designed to produce results 

which reflect energy efficiency, energy 

use and estimated operating costs, and 

that are not unduly burdensome to 

conduct. 42 U.S.C. 6314. With respect to. 

certain industrial equipment for which 

EPCA prescribes energy conservation 

standards, including commercial war air 

furnances, "the test procedures shall be 

those generally accepted industry 

testing procedures or rating procedures 

developed or recognized by the 

American Society of Heating, 

Refrigerating and Air Conditioning 

Engineers, as referenced in ASHRAEJ 

IES/ Standard 90.1 and in effect on June 

30, 1992." 42 U.S.C. 6314(a)(4)(A). 

Further, if such an industry testing or 

rating procedure gets amended, DOE 

must revise its test procedure to be 

consistent with the amendment, unless 

the Secretary determines, based on clear 

and convincing evidence, that to do so 

would not me& general requirements 

spelled out in the statute for test 

procedures. 42 U.S.C. 6314(a)(4)(B). 

Before prescribing any test procedures 

for this equipment, the Secretary must 

publish them in the Federal Register 

and afford interested persons at least 45 

days to present data, views and 

arguments. 42 U.S.C. 6314(b). Effective 

360 days after a test procedure rule 

applicable to certain covered 

equipment, including commercial warm 

air furnances, is prescribed, no 

manufacturer. distributor. retailer or 

private labeler may make any 

representation in writing or in broadcast 

advertisement respecting the energy 

consumption or cost of energy 

consumed by such equipment, unless it 

has been tested in accordance with the 

prescribed procedure and such 

representation fairly discloses the 

results of the testing. 42 U.S.C. 6314(d). 

Finally, EPACT extends certain powers, 

originally granted to the Secretary under 

NAECA, to require manufacturers of 

equipment covered by this proposed 

rule to submit information and reports 

for a variety of purposes, including 

insuring compliance with requirements. 

See 42 U.S.C. 6316(a). 

B. Background 

1. General 

The Department of Energy (DOE or 

the Department) has an energy 

conservation program for consumer 

products, conducted under Part B of 

Title 111 of EPCA, 42 U.S.C. 6291-6309. 

Under EPCA, the consumer appliance 

standards program essentially consists 

of four parts: test procedures, Federal 

energy conservation standards, labeling, 

and certification and enforcement 

procedures. The Federal Trade 

Commission (FTC) is responsible for 

labeling, and the Department 

implements the remainder of the 

program as codified in Title 10 of the 

Code of Federal Regulations, Part 430- 

Energy Conservation Program for 

Consumer Products. 

Since 10 CFR part 430 covers 

consumer products, which differ from 

commercial and industrial equipment, 

the Department is creating a new Part 

431 in the Code of Federal Regulations 

(10 CFR part 431). Energy Conservation 

Program for Commercial and Industrial 

Equipment, to implement DOE'S 

program for certain commercial and 

industrial equipment covered under 

EPCA. These will include commercial 

heating, air conditioning and water 

heating equipment. This new program 

will consist of: Test procedures, Federal 

energy conservation standards, labeling, 

and certification and enforcement 

procedures. EPCA directs the 

Department, rather than the FTC, to 

administer the statute's efficiency 

labeling provisions for commercial 

equipment. 

On April 14 and 15,1998, the 

Department convened a public 

workshop to solicit views and 

information from interested parties that 

would aid in the development of rules 

for commercial heating, air conditioning 

and water heating equipment. The 

Department requested comment on a 

number of specific issues, including 

issues related to test procedures, and the 

most cost effective and reliable regimes 

for sampling, certification and 

enforcement. Statements during the 

public workshop and written comments 

that were received afterwards helped 

refine the issues involved in this 

rulemaking and provided useful 

information contributing to their 

resolution. The Department convened a 

second public workshop on October 18, 

1998, to obtain comments on the issues 

as they had been refined, and on 

approaches presented by the National 

Institute of Standards and Technolonv -" 

(NIST) for resolving them. 

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69600 Federal Register 64, No. 238/Monday, December 13, 1999 / Proposed Rules / Vol. 

2. The Test Procedures for Furnaces 

During the April 1998 workshop, the 

Department sought comments on the 

following issues regarding test 

procedures for commercial warm air 

furnaces: 

(1) EPCA uses thermal efficiency as 

the descriptor for reporting the 

efficiency value of commercial warm air 

furnaces. The test standard ANSI 

Standard 221.47, referenced by 

ASHRAEIIES Standard 90.1 for gas-fired 

furnaces, defines a thermal efficiency 

whose value is calculated by the flue 

loss method, resulting in a value that is 

customarily called combustion 

efficiency in the Heating, Ventilation 

and Air-Conditioning and Water 

Heating (HVAC & WH) industry. Also. 

the test standard UL Standard 727 

referenced by ASHRAEIIES Standard 

90.1 for oil-fired furnaces specifies the 

determination of a flue loss during the 

combustion test under steady state 

conditions resulting similarly in a value 

for combustion efficiency. Based on the 

fact that the combustion efficiency 

values are calculated by the referenced 

test standards, should the Department 

interpret the EPCA efficiency descriptor 

"thermal efficiency" to have the same 

meaning that "combustion efficiency" 

has in common technical use? 

(2) The referenced test standard for 

oil-fired furnaces, UL Standard 727, 

does not provide a calculation 

procedure for the determination of flue 

loss. Should DOE designate the flue loss 

calculation procedure from the 

Hydronics Institute Testing and Rating 

Standard for Heating Boilers, the 

referenced test standard for oil-fired 

boilers, for calculating flue loss? 

(3) Should DOE provide a procedure 

specifically for testing condensing 

furnaces? 

Attendees at the April 1998 workshop 

provided comments and input on these 

issues and the California Energy 

Commission (CEC) provided additional 

written comments afterwards. These 

comments helped to further clarify the 

issues. Section 11, Discussion, will cover 

them in more detail. 

After the April 1998 workshop, the 

Department and NIST worked towards 

addressing the identified issues for 

commercial warm air furnaces. A set of 

recommendations resulted from that 

work, and NIST developed a summary 

report of the recommendations. The 

summary report formed the basis for 

discussions during the October 18 

workshop, which enabled the 

Department to elicit further views and 

information from interested parties. The 

summary report included draft rule 

language for commercial warm air 

furnaces. 

C. The Proposed Rule 

In today's proposed rule the 

Department proposes energy efficiency 

test procedures for commercial warm air 

furnaces. In formulating these test 

procedures, the Department has 

considered both oral and written 

comments, and has incorporated 

recommendations where appropriate. 

Section I1 below contains the reasons for 

incorporating or not incorporating any 

significant recommendations. The 

Department will soon issue separate 

notices of proposed rulemaking 

regarding test procedures for 

commercial water heaters, boilers and 

air conditioners. 

Today's proposed rule also contains 

compliance, certification, enforcement 

and certain other general provisions that 

would apply to all covered commercial 

heating, air conditioning and water 

heating equipment. The Department 

intends to promulgate a single set of 

provisions on these subjects for all 

classes of such equipment, and therefore 

the other notices proposing test 

procedures for such equipment will not 

address these subjects. 

11. Discussion 

A. General 

This section discusses the main test 

procedure issues identified for 

commercial warm air furnaces and 

certification and enforcement issues for 

all covered commercial heating, air 

conditioning and water heating 

equipment. The furnace test procedure 

issues are discussed in subsection (B) 

"ASHRAEIIES Standard 90.1 

Referenced Furnace Test Standards," 

subsection (C) "Definition of Thermal 

Efficiency for Furnaces," and subsection 

(D) "Procedures for Measuring Flue 

Losses of Oil Furnaces and Incremental 

Efficiency of Condensing Furnaces." 

Subsection (E) addresses the 

certification and enforcement issues for 

commercial heating, air conditioning 

and water heating equipment generally. 

B. ASHRAEDES Standard 90.1 

Referenced Furnace Test Standards 

EPCA requires that the testing 

procedures for measuring the efficiency 

of commercial warm air furnaces must 

be those generally accepted industry 

testing procedures or rating procedures 

that were developed or are recognized 

by the American Society of Heating, 

Refrigerating and Air Conditioning 

Engineers, Inc., as referenced in 

ASHRAEIIES Standard 90.1 and that 

were in effect on June 30, 1992. Also, if 

such an industry test procedure or 

rating procedure for commercial warm 

air furnaces is amended, the Secretary of 

Energy must adopt such revisions 

unless the Secretary determines that to 

do so would not produce test results 

which reflect energy efficiency, energy 

use, and estimated operating costs, or 

that the procedures would be unduly 

burdensome to conduct. 

The version of ASHRAEIIES Standard 

90.1 in effect on June 30, 1992 

references two industry test standards: 

one for gas-fired furnaces, the American 

National Standard Institute (ANSI) 

Standard 221.47-1987 (ANSI Standard 

221.47); and the other for oil-fired 

furnaces, Underwriters Laboratory (UL) 

Standard 727-1986 (UL Standard 727). 

Since 1989, both industry test standards 

have been revised several times. The 

revised ANSI Standard 221.47-1987 has 

resulted in ANSI Standard 221.47-1993, 

and the revised UL Standard 727-1986 

in UL Standard 727-1994. Also, 

ASHRAE revised ASHRAE/IES 

Standard 90.1-1989 itself via several 

addenda: 90.lb, gO.ld, and 90.le in 

1992; 90.lc, 90.lg, and 90.li in 1993; 

and 90.lm in 1995 and 90.ln in 1997. 

Two of the addenda contained revisions 

related to warm air furnaces: Addendum 

90.lb updated the referenced furnace 

test standards to their most up-to-date 

versions in 1992, and Addendum 9O.li 

revised the Table (Table 10.9 in 

ASHRAEIIES Standard 90.1) containing 

the Standard Rating Conditions and 

Minimum Performance with respect to 

warm air furnaces. Currently, a major 

revision to ASHRAEIIES Standard 90.1- 

1989, designated as ASHRAE/IES 

Standard 90.1-1989R, is going through 

the ASHRAE public review process. 

Once ASHRAE formallv completes 

revisions to ASHRAEIIES Standard 

90.1, the Department intends to either 

amend its test procedure as necessary to 

make it consistent with the amended 

version of ASHRAEIIES 90.1, or 

determine by rule that doing so would 

not meet certain EPCA requirements (for 

example, it would be unduly 

burdensome to conduct). 

Regarding the two industry test 

standards revised after June 30, 1992, 

there is no change in the energy 

performance test section of either 

standard from its prior version. 

Therefore, the Department proposes to 

incorporate by reference the latest 

versions of the two referenced test 

procedures. These test standards are 

ANSI Standard 221.47-1993 for gasfired central furnaces and UL Standard 

727-1994 for oil-fired central furnaces. 

 EE-RM-TP-99-450 COMMENT 01B

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Federal Register /Vol. 64, No. 238 /Monday, December 13, 

C. Definition of Thermal Efiiciency for 0.75% of the input rating. GAMA stated 

Furnaces that this prescriptive requirement was 

E~CA specifies the energy standard an outgrowth of discussions between 

levels and values for commercial warm the industry and the ~SHftAE 

air furnaces in terms of thermal committee about defining a seasonal 

efficiency. Section 342(a)(4)(A)-(B), 42 measure of efficiency for commercial 

U.S.C. 6313(a)(4)(A)-(B). The test warm air furnaces, and the resulting 

standard ANSI Standard 221.47 (for gas- compromise was to continue to specify 

fired furnaces) specifies that the thermal a thermal efficiency term that is 100 

efficiency for a furnace is to be percent minus flue losses, to be 

computed by a formula defined as "100 followed by several additional 

percent minus percent flue loss," and prescriptive requirements that relate to 

UL Standard 727 (for oil-fired furnaces) off-cycle losses, for example. 

defines a maximum allowable flue loss Consequently, GAMA stated that it 

(which is not to exceed 25 percent) in would be stfongly opposed to any its combustion test section. Other than suggestion to define the term thermal 

the flue loss requirement, UL Standard efficiency as (100 percent -. flue loss 

7Z7 does provide for require the '(percent) - jacket losses (percent)]. calculation of either efficiency or 

output. However, with the measured Rheem (Page 162, April 14,1998 

flue loss, one can calculate an efficiency Workshop Transcript) pointed out that 

using the formula as specified in ANSI the efficiency definition also raises a 

Standard 221.47. The efficiency as functional issue. To achieve EPCA 

calculated by the formula in ANSI efficiency values under a traditional 

Standard 221.47 (and defined as definition of thermal efficiency (e.g., an 

thermal efficiency in ANSI Standard 80 percent thermal efficiency as 

221.47) is customarily called the determined by reducing the combustion 

combustion efficiency of fossil-fueled efficiency by the jacket loss) could 

equipment. The statute does not provide result in flue gas condensation, which 

a definition for the term "thermal causes corrosion and premature failures. 

efficiency." 

These points were discussed during 

the April 1998 workshop. 

Conventionally, the definition for 

"thermal efficiency" is the useful output 

of a device divided by its input, 

expressed in percent. It is related 

mathematically to the combustion 

efficiency (also expressed in percent) by 

the equation "Thermal Efficiency 

(percent) = Combustion Efficiency 

(percent) - Jacket Loss (percent)," 

where the combustion efficiency is 

equal to "100 percent minus flue loss 

(percent)." The discussion concerned 

whether the Department should include 

a jacket loss measurement, in addition 

to the flue loss. in the test procedure. 

GAMA (Page 158, April 14,1998 

Workshop Transcript) asserted that (1) 

the thermal efficiency in the statute 

actually referred to the classical 

definition of combustion efficiency, (2) 

thermal efficiency was specified 

because it was so called in the 

referenced test procedure, and (3) it 

meant 100 percent minus flue loss 

(percent). GAMA believes that defining 

the term thermal efficiency to be 

"combustion efficiency minus jacket 

loss" would change both the intent and 

the stringency of the requirements that 

currently exist in ASHRAEIIES 

Standard 90.1 and in EPCA. GAMA 

further stated that there is an additional 

requirement in the proposed ASHRAEI 

IES Standard 90.1-1989R limiting the 

jacket loss of the furnace to less than 

Based on the above discussion, the 

Department understands that the 

consensus of the attendees was that in 

the test procedure the term "thermal 

efficiency," as specified in the statute 

for commercial warm air furnaces 

means what is commonly defined as 

"combustion efficiency" in other 

contexts. The Department believes that, 

consistent with adopting industry test 

standards referenced in ASHRAEIIES 

Standard 90.1-1989, the statute's intent 

is to assign the same meaning to the 

term "thermal efficiency" as its 

definition in the corres~ondine " 

referenced standards. Therefore, the 

Department believes that the term 

thermal efficiency, when used as the 

energy standard descriptor for 

commercial warm air furnaces, should 

be calculated as 100 percent minus 

percent flue loss, as was specified in the 

referenced ANSI Standard 221.47. 

When the Department proposed this 

approach during the October 1998 

workshop, there was no objection from 

the participants. Accordingly, the 

Department proposes today to explicitly 

define the term thermal efficiency of 

commercial warm air furnaces as equal 

to 100 minus the percent flue loss. This 

proposal would avoid any possible 

future confusion regarding the meaning 

of the term thermal efficiency when 

used in the test procedure for 

commercial warm air furnaces. 

1999 /Proposed Rules 69601 

D. Procedures for Measuring Flue Losses 

of Oil Furnaces and Incremental 

Efficiency of Condensing Furnaces 

1. Flue Loss Calculation for Oil-Fired 

Furnaces 

As stated above, the referenced test 

standard for oil-fired furnaces, UL 

Standard 727, does not provide a 

calculation procedure for the 

determination of flue loss. However, a 

value for the percent flue loss is needed 

for determining the efficiency. At the 

April, 1998 workshop, the Department 

suggested the use of the flue loss 

calculation specified in the ASHRAE 

Standard 90.1 referenced test standard 

for oil-fired boilers-the 1989 edition of 

the Hydronics Institute Testing and 

Rating Standard for Heating Boilers-for 

calculating the flue loss of an oil-fired 

furnace. Since the type of flue gas data 

required and the formulas/equations 

used for the flue loss calculation are 

identical for any oil-fired equipment, 

the calculation procedure as specified in 

the Hydronics Institute test standard for 

an oil-fired boiler is directly applicable 

to an oil-fired furnace. There were no 

comments opposing the Department's 

suggestion during the Department's 

workshops held during April and 

October 1998. 

For the above reasons, the Department 

is proposing as the calculation 

procedure for percent flue loss for oilfired furnaces the procedure in (1) 

sections 8.2, 11.2, and 11.2.1 of the 1989 

Hydronics Institute Testing and Rating 

Standard for oil-fired boilers, and (2) 

those parts of accompanying Forms 715 

and 721 which specify the items to be 

measured and calculated to obtain flue 

loss, and which are not related to steam, 

water or natural gas. 

2. Condensing Furnaces 

Participants raised and discussed the 

issue of testing a condensing furnace (a 

warm air furnace designed to condense 

part of the water vapor in the flue gases 

and equipped with a means of collecting 

and draining this condensate) during 

the Department's April 1998 workshop. 

ASHRAEIIES Standard 90.1 and the two 

test standards referenced by ASHRAEI 

IES Standard 90.1 do not specifically 

provide test conditions for testing a 

condensing furnace. 

Attendees at the April 1998 workshop 

from the furnace industry (GAMA, York 

International, and Lennox) stated that 

there are very few, if any, commercial 

unitary or rooftop condensing furnaces 

on the market, and it is difficult to 

provide for the requirements of a 

condensing furnace in a roof-top 

installation. Therefore, they stated, it is 

not necessary to provide a DOE test 

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69602 Federal Register / Vol. 64, No. 238/Monday, December 13, 

procedure for testing the condensing 

feature of a commercial furnace at 

present. 

York (April 14,1998 Workshop 

Transcript, Page 220) stated that 

condensate measurement should not be 

specified for condensing boilers and 

furnaces. York stated that in general, 

rooftop combustion equipment will not 

operate under condensing conditions, 

because of the difficulty of condensate 

disposal. York felt that in the future, 

condensing furnaces might become a 

possibility as the technology evolves. 

York stated that currently, most rooftop 

units have an efficiency of 80 percent or 

less, and they operate at flue 

temperature above condensing range. 

Lennox (April 14,1998 Workshop 

Transcript, Page 220) agreed with the 

York comment and emphasized that 

although condensing units have been on 

the market for a long time, none of 

them, for all intents and purposes, are 

unitary products sold for commercial 

applications. Lennox stated that this is 

due to a number of problems, and if 

these problems were to be solved 

through a technological breakthrough, 

then a test procedure would be 

appropriate. 

During the October workshop, Natural 

Resources Canada (October 13, 1998 

Workshop Transcript, Page 285) stated 

that the condensate collected from the 

condensing furnace should be only what 

condenses within the appliance itself 

and not beyond the heat exchan er. 

The Department disagrees wit fl the 

observation from the furnace industry 

workshop attendees that DOE'S 

adoption of a test procedure for 

determining the improvement to the 

efficiency due to the condensing feature 

of a condensing furnace is unwarranted 

at the present time. Since a condensing 

furnace is likely to provide a 

significantly higher efficiency, the 

Department believes that a test 

procedure should be in place in order to 

have a readily available, accurate 

method for testing these more efficient 

furnaces in the future, even if no 

commercial condensing furnaces are on 

the market at the present time. In 

addition, a test procedure is needed for 

evaluating this design option during any 

future consideration of possible 

revisions to the efficiency standard. 

Although the ASHRAEIIES Standard 

90.1 does not specify a test procedure 

for measuring the energy efficiency of a 

condensing furnace, an industry test 

procedure-ASHRAE Standard 103- 

1993-does exist for residential 

condensing furnaces and industry has 

been using it for over a decade. The 

Department believes that the method of 

collecting and measuring the quantity 

and the temperature of the flue 

condensate under steady state 

conditions at the maximum rated input 

over a 30 minute test period, should 

also be applicable to a commercial 

condensing furnace. Since the 

Department sees no technical problems 

in its application to commercial warm 

air furnaces, the Department is 

proposing to adopt the test procedure 

specified in section 7.2.2.4, 7.8, 9.2 and 

11.3.7 of ASHRAE Standard 103-1993 

for determining the increment in energy 

efficiency due to the condensing feature 

of a condensing furnace. In adopting the 

test procedure, a slight modification is 

applied to the equation in Section 

11.3.7.2 of ASHRAE 103-1993 for 

steady-state heat loss due to hot 

condensate flowing down the drain. In 

the aforementioned section, the 

assumed indoor temperature is 70°F, 

and the average outside temperature is 

specified as 42°F. The modification 

replaces both of these temperatures with 

the actual temperature of the test area, 

to be consistent with Section 2.2.8 of 

ANSI 221.47-1993, during the steadystate thermal efficiency test. 

The Department agrees with the 

recommendation from Natural 

Resources Canada that the condensate 

from the unit be separated from the 

condensate from the flue pipe. The 

referenced test procedure in ASHRAE 

Standard 103-1993 requires an 

installation which prevents the flue 

pipe condensate from flowing back into 

the unit. (See section 7.2.2.4 of ASHRAE 

Standard 103-1993). 

E. Sampling, Certification and 

Enforcement for Commercial Heating, 

Air Conditioning and Water Heating 

Equipment 

1. Background and Public Comments 

a. Purpose. The purpose of 

establishing regula\ions concerning 

sam~line, certification and enforcement L u 

is to provide reasonable assurance that 

covered commercial equipment are 

appropriately tested and actually 

comply with applicable energy 

conservation standards. In today's rule, 

the Department proposes a set of 

provisions concerning compliance 

certification and enforcement 

procedures for certain commercial 

equipment. To help assure compliance 

with energy conservation standards, the 

rule would require that each 

manufacturer use one of the specified 

methods for determining the efficiency 

of each basic model of its commercial 

heating, air conditioning and water 

heating equipment, and certify that the 

basic models comply with the 

applicable energy conservation 

1999 /Proposed Rules 

standards. In addition, the rule specifies 

enforcement procedures for use in 

resolving any disputed performance 

claims for such commercial equipment. 

b. Sampling. For consumer products, 

as described in 10 CFR part 430, 

manufacturers must test a sample of 

each basic model of a covered product 

to establish its efficiency level and its 

compliance with the applicable energy 

efficiency descriptor value specified in 

the Act. The test procedure for each 

product incorporates a sampling plan 

designed to give a reasonable assurance 

that the true mean performance of the 

equipment being manufactured and sold 

meets or exceeds the applicable value, 

and is accurately determined. The mean 

performance is a critical performance 

characteristic of a covered product 

because it determines the overall energy 

usage of a covered product population, 

and thus the impact of the product on 

national energy consumption. 

Individual units produced from a single 

design may vary in energy efficiency, 

however, for a number of valid reasons, 

including variability in manufacturing. 

The Department must balance the risk to 

the public of purchasing a noncomplying unit with the burden on the 

manufacturer in conducting 

performance testing to assure 

compliance, to provide adequate 

protection for the public without 

imposing an excessive testing burden on 

the manufacturers. Given that 

performance testing of every unit of a 

covered product would be prohibitively 

expensive and time-consuming, the 

manufacturer must estimate the average 

performance of the basic model using a 

sample drawn from the population. The 

method for estimating equipment 

performance from a small sample of a 

large population is called a sampling 

plan. 

c. Public Comments and 

Recommendations. At the April 1998 

workshop, the Department presented for 

discussion compliance certification and 

enforcement sampling procedures for 

commercial equipment that were similar 

to those established in the past for 

consumer products. These require 

manufacturers to certify compliance 

based on testing under strictly 

prescribed statistical sampling schemes 

designed to assure, with reasonable 

probability, that the average efficiency 

of each product sold meets the 

applicable standard. Enforcement 

involves a similar, but not identical 

statistical sampling arrangement. The 

advantage of this approach is that 

manufacturers can provide adequate 

assurance of compliance without having 

to test every single unit they produce. 

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When presented with the concept of 

applying a prescribed statistical 

sampling method to certifying 

commercial equipment, the participants 

at the April 1998 workshop made the 

following eneral observations: 

i. A wor f able uniform sampling 

method covering the wide variety of 

commercial equipment would be 

difficult, if not impossible, to formulate. 

This is due to the large number of 

design variations and small numbers of 

identical units for some equipment. 

ii. The California Energy Commission 

(CEC) and several voluntary industry 

associations already have effective 

efficiency certification programs in 

place that leave the sample design to the 

manufacturer. 

iii. With adequate independent 

verification and penalties for improper 

certification by a verification program. 

prescribing the sampling schemes is 

unnecessary, since the manufacturers 

would have an incentive to design them 

in each case so as to limit the risk of 

being found to be out of compliance. 

With these observations in mind, the 

Department investigated the 

certification programs of the State of 

California, the Air Conditioning and 

Refrigeration Institute, the Gas 

Appliance Manufacturers' Association, 

and the Hydronics Institute. 

Participation in these industry 

programs, generically referred to as 

Voluntary Independent Certification 

Programs (VICP's), could help provide 

assurance of accurate performance 

claims. Manufacturers have been 

participating in VICP's primarily for 

marketing reasons, since they feel that 

demonstrating the performance of their 

equipment via an independent testing 

agency adds legitimacy to their 

performance claims. VICP's are typicallv 

operated by industry associations, and 

the costs of the programs are covered by 

fees paid by the participating 

manufacturers. Manufacturers certify 

the performance metrics of their 

equipment to the VICP, the VICP 

publishes a directory that lists 

performance values of equipment 

offered for sale by each manufacturer, 

and the VICP periodically verifies the 

performance claims. When the VICP 

determines that a model performs below 

its rated level, generally the 

manufacturer must either re-rate the 

product or cease manufacturing it and 

have it removed from the directory (i.e., 

"obsolete" the model). A manufacturer's 

failure to meet such conditions typically 

results in its expulsion from the VICP. 

All of these programs entail some form 

of the following: (1) Certification by a 

manufacturer to a VICP of the efficiencv 

level of each of its covered products: (2) 

64, No. 238 /Monday, December 13, 1999 /Proposed Rules 

the VICP's independent verification or 

supervision of levels claimed by the 

manufacturer: and (3) penalties imposed 

by the VICP to discourage inaccurate 

ratings and ensure that certified 

efficiencies would be reliable. On the 

other hand, some manufacturers do not 

participate in VICP's, and no program 

exists at present for commercial warmair furnaces, so the Department would 

need to specify its own certification 

testing and verification arrangement, at 

least for equipment not otherwise 

covered by a VICP. 

The Department received additional 

comments during, and subsequent to, 

the second public workshop which was 

held on October 18, 1998. These 

comments helped refine the proposed 

compliance certification and 

enforcement procedures to take 

advantage of current voluntary industry 

certification programs and allow 

alternate procedures for determining 

compliance. 

At the second workshop, commenters 

suggested that DOE consider the 

following elements in the proposed rule: 

After DOE initially approves a 

VICP, in accordance with the specified 

criteria, a VICP should not require reapproval by DOE unless there is a 

change within the program. In case of 

such a change, the program would 

inform DOE promptly and apply for a 

re-approval. Another suggestion was 

that DOE approve a VICP for a predetermined length of time (suggested 

time frame: 12 months to 5 years), 

during which DOE could revoke 

approval at any time if warranted. 

Participation in a VICP should be a 

basis for establishing both (1) the 

validity of product efficiency 

representations, and (2) compliance 

with minimum standards. 

The "obsoleting" of a model should 

not automatically follow its "delisting" 

from a VICP product directory, if the 

basic model falls short of the certified 

efficiency but still meets the minimum 

efficiency standards prescribed by 

EPCA. 

A VICP should monitor the 

performance data and provide this data 

to DOE. 

For Non-Participants in VICP's, 

review of manufacturer self-testing by a 

licensed Professional Engineer to assure 

compliance and the accuracy of 

efficiency representations by itself is not 

adequate. They should conduct 

performance testing or verify the testing 

results by using a qualified independent 

laboratory. 

DOE should approve alternative 

methods other than testing for efficiency 

determinations, but the Department 

should guard against public disclosure 

of proprietary methods, which could 

harm individual manufacturers. 

An alternative method for efficiency 

determination should not require DOE 

approval in the case of VICP 

participants. 

Certification provisions should 

afford manufacturers the discretion to 

certify more conservative (i.e., lower) 

efficiency ratings than the mean 

efficiency values predicted by the 

manufacturers' tests or calculations. 

Enforcement provisions should 

restrict the definition of units available 

for testing to units which are available 

for commercial distribution within the 

U.S. 

Enforcement testing should require 

samples of no more than two units 

initially, followed by up to two more 

units if the first two fail. 

The compliance statement for a 

basic model should be a one-time report 

to DOE which either the manufacturer1 

private labeler or a VICP acting on their 

behalf can submit. 

Written comments underscored some 

of these observations and added others. 

The Air-Conditioning & Refrigeration 

Institute (ARI) (October 13, 1998 

Workshop, Written Comment #9) 

requested that the regulations allow for 

the rerating of basic models that, when 

tested, fall short of their certified 

efficiencv but still meet the minimum 

efficiency standards. ARI also requested 

that re-approval of a VICP should only 

be required when there is a change in 

the program, or after five years, 

whichever comes first. On the issue of 

enforcement testing, ARI supported 

starting with two test samples instead of 

four. They questioned the need for a 

compliance statement being submitted 

to DOE for manufacturers who 

participate in a VICP, since the VICP 

will have to be approved by DOE, and 

manufacturers' ratings will be verified 

through the VICP. 

Written comments from the Gas 

Appliance Manufacturers Association 

(GAMA) (October 13,1998 Workshop, 

Written Comment #lo) also requested 

that the rerating of a product which 

meets the energy efficiency standard 

prescribed by EPCA, but tests lower 

than the rating submitted by the 

manufacturer, be allowed. GAMA also 

felt that periodic re-approval of a VICP 

should not be required, and that 

enforcement testing should entail an 

initial sample of two units. GAMA also 

questioned the need for a compliance 

statement for VICP participants. 

Based upon the comments received 

during and after the public workshops, 

the Department proposes requiring 

manufacturers to certify compliance 

based on testing, and to either conduct 

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the testing under a DOE-prescribed 

sampling scheme, or participate in a 

VICP approved by the Department. Each 

option would afford the opportunity to 

utilize alternative efficiency 

determination methods. In this way, the 

Department proposes to minimize 

additional testing burdens on 

manufacturers of commercial 

equipment, while maintaining a 

certification procedure which is fair to 

all manufacturers, and which provides 

reasonable assurance that the 

established miniinum performance 

standards are being met. The proposed 

procedures, described in the following 

sections, include a basic certification 

program, a provision for VICP's, and an 

enforcement testing plan. The 

Department anticipates that this 

proposal would not require any 

additional testing beyond what 

manufacturers who are participating in 

industry certification programs conduct 

already, and it would involve a similar 

level of testing by manufacturers who 

elect not to participate in VICP's. 

2. Proposed Certification and 

Enforcement Procedures 

a. Certification Procedures. The 

Department proposes to require each 

manufacturer to certify to the 

Department the efficiencies of 

commercial equipment it manufactures, 

either directly or through a VICP. This 

would be accomplished by submitting 

both a compliance statement, a one-time 

submittal, and a certification statement 

for each basic model of covered 

equipment. The manufacturer would be 

required to maintain records of all test 

results and related analysis used in the 

determination of the mean energy 

performance. Today's rule includes 

possible formats for certifying efficiency 

to the Department. 

b. Basis for Certification: Methods for 

Determining Efficiency. Underlying each 

certification to the Department would be 

the manufacturer's determination of a 

basic model's energy efficiency or usage. 

The proposed rule would require a 

manufacturer to make such 

determination either by testing the basic 

model, or by calculating its energy 

efficiency or use through use of an 

alternative efficiency determination 

method (AEDM). The specific 

requirements for testing and AEDMs 

would differ, however, depending on 

whether a manufacturer's covered 

products were included in a VICP 

approved by the Department. 

An AEDM is an analytical procedure, 

such as a computer simulation or other 

approach, that can determine the energy 

efficiency or use of a product. The 

Department proposes to permit the use 

of AEDMs due to the potentially large 

number of basic model variations, and 

the burden that would result if the 

Department required that each basic 

model be tested to determine its 

efficiency. But a manufacturer could use 

an AEDM to establish the energy 

efficiency or use of covered equipment 

only if the ADEM had been verified and 

validated with measured data, i.e., using 

test results. Thus, although the 

Department proposes to permit the use 

of AEDMs, and would not require the 

testing of every basic model, all 

efficiency determinations would be 

based on testin . The propose f requirements for testing 

would apply both to tests used directly 

to determine the efficiency of a basic 

model, and to tests used to validate an 

AEDM. All manufacturers would be 

required to (1) perform testing in 

accordance with the applicable DOE test 

procedure, (2) test randomly selected 

units representative of the basic model, 

(3) have their testing and rating results 

meet industry standards for accuracy for 

the equipment being rated, and (4) test 

a sufficient number of units to produce 

an accurate estimate of the mean 

efficiency of all units manufactured of 

the basic model. The proposed rule 

allows VICP participants substantial 

discretion in this last respect, by 

permitting them to use any valid 

statistical method to determine the 

number of units to be tested and the 

mean efficiency. For non-participants, 

the Department is proposing stricter, 

prescribed sampling procedures, since 

their efficiency ratings will not be 

subject to routine verification testing. 

As to AEDMs, in addition to the 

general requirements stated above, the 

Department would require any 

manufacturer employing an AEDM to 

maintain written documentation of its 

validation of the AEDM. In addition, if 

the equipment being rated is not listed 

with a VICP approved by the 

Department, validation would require 

demonstration that the results from 

using the AEDM are consistent with the 

results of actual tests of at least three 

basic models, and the manufacturer 

would be required to obtain advance 

approval of the AEDM by the 

Department. The manufacturer would 

apply for such approval in writing and 

submit all relevant information related 

to the calculations and calibration 

procedures. 

c. Voluntary Independent 

Certification Program. Participation in a 

VICP would allow a manufacturer an 

alternative to (1) following the DOE 

sampling plan, and (2) required DOE 

approval of an AEDM. A VICP 

participant must still test its products 

and validate its AEDM, and must file a 

compliance statement and certification 

report, either directly to the Department, 

or via the VICP on the manufacturers' 

behalf. 

The Department proposes that it 

would approve VICP's that meet the 

following requirements: 

The VICP publishes in written form 

the procedures for the operation of the 

certification program, and permits all 

manufacturers of products covered by 

the program to participate so long as 

they comply with requirements 

concerning operation of the program. 

To participate in the VICP, a 

manufacturer would be precluded from 

distributing any basic models of 

equipment covered by the program 

unless it had reported to the VICP the 

energy efficiency or usage, as 

applicable, of that basic model, based on 

measurement of the basic model's 

performance. 

The VICP publishes or otherwise 

makes available to the general public 

and to the Department, these efficiency 

ratings. 

The VICP conducts periodic 

verification testing on listed equipment, 

such that the performance of each basic 

model is checked and compared to its 

rated efficiency value at least once every 

five years. 

The VICP testing personnel select 

units for verification testing randomly 

from manufacturer's stock. 

The VICP conducts its verification 

testing at an independent laboratory, or 

under the supervision of independent 

personnel, in accordance with the 

prescribed DOE test procedures. 

The VICP verification testing meets 

industry standards for the accuracy of 

testing and of rating results for the 

equipment being tested, and the 

program satisfactorily describes how it 

meets these standards. 

The VICP has an appropriate 

standard for determining whether the 

efficiency rating a manufacturer claims 

for a product is valid. 

The VICP provides to the 

manufacturer copies of all records of 

completed verification testing 

performed on the manufacturer's 

covered equipment. 

The VICP requires that, if a basic 

model fails verification testing 

conducted by the VICP, the 

manufacturer of the basic model must 

remove it from production and sale if 

the verification testing results show it is 

not in compliance with EPCA efficiency 

standards, or correctly re-rate it if it 

complies with such standards. The 

program must also provide that a 

participating manufacturer will be 

expelled from the VICP if it does not 

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Federal Register / Vol. 64, No. 238 /Monday, December 13, 1999 /Proposed Rules 69605 

comply with such requirements, and 

that the VICP will report to the 

Department verification test results that 

find the performance of a basic model 

not to meet EPCA efficiency standards. 

(A basic model "fails" verification 

testing when the VICP has compared the 

basic model's efficiency rating resulting 

from completion of that testing with the 

efficiency rating claimed by the 

manufacturer, and has determined that 

the rating claimed by the manufacturer 

is not valid.) 

The VICP provides for penalties or 

other incentives to encourage 

manufacturers to report accurate and 

reliable efficiency ratings. 

The VICP provides to the 

Department on an annual basis, 

summary data that shows the results of 

verification testing on each basic model. 

including the manufacturer's energy 

efficiency or use rating for the model, 

the measured energy efficiency or use 

from the verification testing , and either 

the energv conservation standard for the 

tested basic model or a description of 

the model sufficient to enable the 

Department to determine the standard 

that applies to the basic model. (See 

discussion in section 3 below) 

Voluntary Independent Certification 

Programs which meet the above 

requirements could request the 

Department's approval by submitting 

documentation substantiating their 

compliance directly to the Department. 

Approval would remain in force for five 

years, unless material changes occur in 

the program. In the event of changes, the 

VICP administrator would be required 

to notify the Department, which may at 

that time rescind the approval. At the 

end of any such five-year period, the 

VICP could request re-approval. 

The VICP could submit compliance 

and certification paperwork to the 

Department on the behalf of 

participating manufacturers. 

d. iz/Janufi~turers Not Participating in 

a I'ICP. As discussed above, the 

Department proposes requiring 

manufacturers not participating in 

VICP's to meet more specific criteria for 

testing and AEDMs. With regard to 

testing, the sampling procedure referred 

to above would require a manufacturer 

to select a sample of sufficient size to 

ensure that: 

Any represented value of energv 

efficiency is no greater than the lower of 

the mean of the sample, or the lower 95 

percent confidence limit of the true 

mean divided by 0.95; and, 

Any represented value of energy 

usage is no less than the greater of the 

mean of the sample, or the upper 95 

percent confidence limit of the true 

mean divided by 1.05. 

The Department also proposes that 

manufacturers of commercial heating, 

air conditioning and water heating 

equipment who do not participate in a 

VICP approved by the Department, must 

conduct all performance testing of 

covered products at an independent 

laboratory, or under the supervision of 

independent testing personnel. This 

requirement would provide greater 

assurance of the accuracy and reliability 

of such testing. It is also warranted by 

the lack of on-going verification of the 

efficiency ratings of non-participants in 

VICPs, and by DOE'S proposal that 

verification testing by VICPs be 

conducted by an independent facility or 

under independent supervision. DOE is . 

uncertain, however, as to whether 

sufficient numbers of independent 

testing laboratories and personnel exist 

to enable manufacturers to satisfy this 

requirement, and whether it would 

otherwise impose undue burdens on 

manufacturers. Therefore, the 

Department encourages interested 

parties to address these issues in 

particular, including whether the 

Department should modify or omit this 

requirement in the proposed rule. 

e. Enforcement. The Department 

proposes that the enforcement 

provisions for commercial heating, air 

conditioning and water heating 

equipment would be for the most part 

virtually identical to those in 10 CFR 

Part 430, except for the sampling plan 

for enforcement testing. The proposed 

sampling plan for enforcement testing 

would require a manufacturer to 

provide to DOE an initial sample size of 

two units for enforcement testing, with 

a manufacturer's option of testing an 

additional two units, for a maximum 

sample size of four units. The 

Department could allow an exception to 

the sample size for very large units on 

a case-by-case basis, such that only a 

single unit would be tested. 

Manufacturers would be permitted to 

request such an exception from the 

Department. 

Participation in a VICP would not 

affect a manufacturer's obligations as 

described in the enforcement 

regulations. 

3. Accommodation for Manufacturing 

Tolerances. Measurement Uncertainty 

and Small Sample Sizes 

As indicated above, VICP's conduct 

verification testing to determine if a 

manufacturer's rating of a basic model is 

accurate. The testing frequently consists 

of tests on a single unit, or at most two 

units, of the model. Following the tenets 

of probability, the measured energy 

efficiency or use derived from testing 

any small sample, such as one or two 

units of a basic model, may be higher or 

lower than the average for the basic 

model population as a whole. These 

variations may be due to manufacturing 

tolerances and/or measurement 

uncertainty. As a result, VICP's 

frequently employ a tolerance band by 

which a basic model is deemed not to 

fail verification testing unless its 

performance measured from the testing 

is below the manufacturer's rating for 

the model b57 more than a set 

percentage. such as 5 percent. The 

justification for this tolerance band is to 

avoid a false conclusion that a basic 

model has been over-rated, based on test 

results for a small sample. 

The Department has generally 

required that compliance with the 

energy conservation standards in EPCA 

be determined by whether the mean 

performance of the entire population of 

a covered product meets the minimum 

standard applicable to that product. 

Under this approach, an individual unit 

of a product could have a measured 

efficiency less than the applicable 

minimum standard, due for example to 

variations in manufacturing and/or to 

measurement uncertainty, but the 

product would be in compliance as long 

as the average efficiency of the basic 

model population conforms to the 

minimum standard. Following once 

again the tenets of probability, this 

means that if a sufficiently large number 

of units of a basic model were tested, 

the mean energy efficiency would meet 

the standard. To allow testing of small 

samples to establish compliance, the 

appliance standard rules in 10 CFR Part 

430 incorporate specific statistical 

procedures for rating products for 

energy efficiency and use. In this 

rulemaking, the Department proposes to 

require use of such strict statistical 

procedures by manufacturers to rate 

products not covered by a VICP. But it 

is not proposing them for compliance 

determinations for products covered by 

VICP's, largely because verification 

testing by a VICP helps insure accurate 

efficiency ratings. 

Although the Department recognizes 

that some accommodation by a VICP is 

appropriate to allow for reasonable 

levels of manufacturing variation and 

measurement uncertainty in covered 

products, it is concerned that 

manufacturers might take advantage of a 

tolerance band on verification testing 

results by consistently over-rating the 

energy use or efficiencies of basic 

models. Such a problem might be 

indicated, for example, if verification 

test results were consistently skewed on 

the side of over-rating of basic models, 

rather than exhibiting a normal 

distribution whereby the proportion of 

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69606 Federal Register I Vol. 64, No. 238 / Mondav, December 13, 

the verification test results that were of the Proposed rule would not result in 

higher than the rating submitted by the environmental impacts. The Department 

manufacturer was approximately equal has therefore determined that the 

to the proportion that were lower. The proposed rule is covered under the 

Department is concerned both that non- Categorical Exclusion found at 

complying products might be rated as paragraph A6 of appendix A to subpart 

being in compliance and that complying D of the Department's NEPA 

products might be over-rated. Regulations, which applies to 

To address these concerns, today's rulemakings that are strictly procedural. 

proposed rule contains provisions to Accordingly, neither an environmental 

enable the Department to monitor the assessment nor an environmental 

extent, if any, to which the energy impact statement is required. 

Or use products covered B. Review Under Executive Order 12866, 

VICP's may be over-rated as a result of ,'Regulatory Planning and tolerance bands for verification testing 

results. These provisions would require rule has been determined 

VICP's to submit to the Department to be a "significant regulatory action," 

annually data on verification as defined in section 3(f) of Executive 

testing results. Specifically, the Order 12866, "Regulatory Planning and 

proposed rule would require VICP~~ to Review." 58 FR 51735 (October 4,1993). 

report the following for each verification Accofdingly, this action was not subject 

test or round of verification tests on a to review under the Executive Order by 

basic model: ~h~ energy the Office of Information and Regulatory 

efficiency or use as measured by the Affairs. 

testing, (2) the energy efficiency or use C. Review Under the Regulatory rating submitted by the manufacturer for Flexibility ~ct 

that basic model (i.e., the rating that was The Regulatory Flexibility Act of evaluated by the testing), and (3) either 1980, U.S,C, GO3, requires the the energy conservation standard for preparation of an initial regulatory that basic model or a brief description analysis for every rule which, of the basic model that would enable the law, the agencv must propose for Department to determine the applicable p;blic comment,;nless the agency standard' The data certifies that the rule, if manufacturer identification. If it will not have a significant economic 'PIJeared the Department from this impact on a substantial number of small information that over-rating was entities. A regulatory flexibility analysis occurring, the Department would examines the impact of the rule on 

One Or of the small entities and considers alternative actions: 

wavs of reducing negative impacts. Pursue modification of all or part of The Small Business Administration the VICP's provisions for verification considers an entity to be a small testing; business if, together with its affiliates, it Revoke the Department's 

certification of the VICP; or employs fewer than a threshold number 

Pursue enforcement procedures. of workers specified in 13 CFR part 121. 

The estimated number of affected small 

111. Procedural Requirements businesses are discussed below. 

The threshold number of employees A. Review Under the National 

Environmental Policy Act of 1969 for SIC classification 3585, which 

includes warm-air furnaces, is 750. The 

EPCA prescribes energy efficiency Department estimates that between 25 

standards and test procedures for and 39 firms manufacture warm-air 

commercial equipment, and in today's furnaces, and of these the majority have 

rule, the Department proposes to fewer than 750 employees and are 

implement these requirements for considered small businesses. The 

commercial warm air furnaces and, to number of these small businesses that 

some extent, commercial heating, air manufacture commercial warm-air 

conditioning and water heating furnaces covered by the EPACT 

equipment generally. The Department standards (with capacities of 225,000 

has reviewed the proposed rule under Btu per hour and above) could be 

the National Environmental Policy Act smaller. 

of 1969 (NEPA), 42 U.S.C. §§ 4321 et The threshold number for SIC 

seq., the regulations of the Council on classification 3585, which includes air 

Environmental Quality, 40 CFR parts conditioners and heat pumps, is also 

1500-1508, the Department's 750. The Department estimates that 

regulations for compliance with NEPA, approximately 31 firms manufacture 

10 CFR Part 1021, and the Secretarial covered commercial air conditioners 

Policy on the National Environmental and heat pumps, and of these, 14 are 

Policy Act (June 1994). Implementation considered small businesses. 

1999 I Proposed Rules 

The threshold number for SIC 

classification 3433, which includes 

commercial packaged boilers, and other 

non-electric heating equipment, is 500. 

The Department estimates that no more 

than 29 firms manufacture commercial 

packaged boilers, and of these, the 

majority are considered small 

businesses. The number of small 

businesses that manufacture 

commercial-sized packaged boilers 

covered by the EPACT standards (with 

capacities of 300,000 Btu per hour and 

above) could be smaller. 

The threshold number for SIC 

classification 3589, which includes . 

commercial water heaters, along with 

other service industry machinery not 

elsewhere classified, is also 500. The 

Department estimates that 

approximately 25 firms manufacture 

water heaters and unfired hot water 

storage tanks, and of these the majority 

are considered small businesses. The 

number of small businesses that 

manufacture commercial-sized 

equipment covered by the EPACT 

standards could be smaller. 

EPCA establishes efficiency standards 

for commercial heating, air conditioning 

and water heating equipment and 

requires the Department to prescribe test 

procedures that are accepted by 

industry and referenced in ASHRAEIIES 

Standard 90.1. For the most part, EPCA 

specifies the standards and test 

procedures incorporated in today's 

proposed rule. Therefore, any costs of 

complying with them are imposed by 

EPCA and not the rule. Moreover, 

today's proposed rule codifies testing 

procedures that are already generally 

employed by manufacturers, both large 

and small. The proposed rule also 

prescribes procedures for manufacturers 

to certify compliance with the standards 

and test procedures legislated by EPCA, 

using powers which were originally 

granted to the Secretary under NAECA, 

and extended by EPACT to require 

manufacturers of covered commercial 

equipment to submit information and 

reports for a variety of purposes, 

including insuring compliance with 

requirements. These certification 

requirements, as well as proposed 

enforcement provisions, are new for 

manufacturers of commercial equipment 

and will affect both small and large 

enterprises. 

The Department has drafted the 

proposed rule to minimize the burden of 

compliance for manufacturers, and the 

rule relies heavily on current industry 

practice. Statistical sampling is 

permitted for testing, so as to minimize 

the testing burden. Manufacturers that 

participate in VICP's are also afforded 

considerable latitude in designing 

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sampling plans to suit their individual 

circumstances, consistent with the 

requirement for reasonable degrees of 

reliability. To minimize testing burden 

further, manufacturers are permitted to 

use analytical procedures, such as 

computer simulation, to determine the 

efficiencies of their products. 

Manufacturers are also given the option 

of certifying their products to the 

Department independently or through 

trade associations, which can minimize 

- costs by reporting on large numbers of 

individual products at one time. Finally, 

the certification forms and enforcement 

procedures are similar to those already 

required for consumer products, and 

several of the same manufacturers 

produce both consumer products and 

commercial equipment. 

The cost of establishing compliance 

will depend on the number of basic 

models a manufacturer produces. The 

cost of completing the compliance 

certification formshould be negligible 

once testing has occurred. Testing cost 

depends on unit size, but could amount 

to several thousands of dollars per basic 

model. To the extent that manufacturers 

must already test their products for 

efficiency to assure that they meet the 

existing statutory efficiency standards, 

or for any other reason, they will not 

incur new costs in complying with 

today's proposed rule. The Department 

believes that any significant economic 

impact will fall only on those firms 

which do not now routinely test their 

products. The Department further 

believes that testkg is a widely 

accepted practice, and that companies 

that do not test are rare and do not 

represent a substantial number of small 

entities. 

The Department has limited 

discretion to apply different 

requirements <&small manufacturers. 

EPCA mandates uniform standards and 

test procedures for commercial 

equipment. In this regard, it is 

noteworthy that although EPCA 

contains a "small manufacturer 

exemption'' for consumer appliances 

(42 USC 6295 (t)), it includes no such 

exemption for commercial and 

industrial equipment. 

The Department invites public 

comment-on its conclusion that the 

incremental costs of complying with the 

proposed rule (not including the cost of 

requirements that are directly imposed 

by EPCA, such as the energy efficiency 

standards themselves) would not 

impose a significant impact on a 

substantial number of small businesses. 

D. Review Under Executive Order 131 32 

Executive Order 13132 (64 FR 43255, 

August 4, 1999) imposes certain 

requirements on agencies formulating 

and implementing policies or 

regulations that preempt State law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. The proposed rule 

published today would not regulate the 

States. The proposed mle would 

primarily codify energy efficiency 

standards and test procedures already 

established in EPCA for commercial 

equipment. DOE has determined that 

today's rule does 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. No further action 

is recluired bv Executive Order 13132. 

E. Review Under Executive Order 12630, 

"Governmental Actions and 

IntetTference With Constitutionally 

Protected Property Rights" 

The Department has determined 

under Executive Order 12630, 

"Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights," 52 FR 8859'(March 18, 1988), 

that this regulation would not result in 

any takings which might require 

compensation under the Fifth 

Amendment to the United States 

Constitution. 

F. Review Under the Paperwork 

Reduction Act 

Today's notice of proposed 

rulemaking would impose information 

maintenance and reporting 

requirements on manufacturers of 

commercial heating, air conditioning 

and water heating equipment. An 

agency may not conduct or sponsor a 

collection of information unless the 

collection displays a currently valid 

OMB control number. (See 5 CFR 

1320.5(b)). 

The proposed rule will require 

manufacturers to maintain records 

concerning their determinations of the 

energy consumption and efficiency of 

covered commercial equipment. DOE 

believes that this recordkeeping is 

necessary for implementing and 

monitoring compliance with energy 

conservation standards and testing 

provisions mandated by EPCA. The 

proposed rule would also require 

manufacturers to make a one-time 

submission of a compliance statement, 

and to submit certification reports for 

existing basic models of covered 

commercial equipment, within 12 

months after the publication of a final 

rule in the Federal Register. A report 

covering a basic model need only be 

submitted once, stating that the 

manufacturer has determined that the 

basic model meets the applicable energy 

conservation standard. After the initial 

submission, manufacturers will have to 

submit a certification report for each 

new basic model before the model may 

be distributed in commerce, or to certify 

compliance with a new or amended 

standard. 

The proposed collections .of 

information are necessary for 

implementing and monitoring 

compliance with the efficiency 

standards and testing requirements for 

commercial equipment mandated by 

EPCA. In developing the proposed 

information collection requirements, 

DOE considered the views of 

stakeholders that were received at two 

public workshops held during April and 

October 1998, in written comments 

solicited in the notice of those meetings, 

and in subsequent informal contacts. 

The following are the DOE estimates 

of the total annual reporting and 

recordkeeping burden imposed on the 

affected manufacturing firms for 

compliance with the proposed rule. The 

Department estimates that the number 

of hours required to comply with the 

reporting and recordkeeping 

requirements in the proposed rule is 

approximately 200 to 300 hours per year 

per firm. 

For commercial warm-air furnaces, 

the estimated number of covered 

manufacturing firms is between 25 and 

39. The total annual reporting and 

recordkeeping burden from compliance 

with the proposed rule is expected to be 

from 5,000 to 11,700 hours (25x200 to 

39x300 hours per year). 

For small and large commercial air 

conditioners and heat pumps, the 

estimated number of covered 

manufacturing firms is no more than 31. 

The total annual reporting and 

recordkeeping burden from compliance 

with the proposed rule is expected to be 

from 6,200 to 9,300 hours (31x200 to 

31x300 hours per year). 

For commercial packaged boilers, 

the estimated number of covered 

manufacturing firms is no more than 29. 

The total annual reporting and 

recordkeeping burden from compliance 

with the proposed rule is expected to be 

from 5,800 to 8,700 hours (29x200 to 

29x300 hours per year). 

For commercial water heaters and 

unfired hot water storage tanks, the 

estimated number of covered 

manufacturing firms is no more than 25, 

The total annual reporting and 

recordkeeping burden from compliance 

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with the proposed rule is expected to be 

from 5,000 to 7,500 hours (25x200 to 

25x300 hours per year). 

The above estimates include time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing the collection of 

information. 

In developing the burden estimates, 

DOE considered that each manufacturer 

is required to comply with the statutory 

energy efficiencv standards for each 

.type,f commercial equipment it is 

manufacturing on the effective date of 

the Act, and fGr each model it begins to 

manufacture after that date. The 

required certification would contain the 

type of information that many 

manufacturers already submit to 

voluntary programs or develop for the 

design or marketing of energy efficient 

commercial equipment. Those 

manufacturers should be able to comply 

with the certification required by the 

proposed rule without much additional 

burden. And, finally, the Department 

believes, based on manufacturers' 

statements as to their determinations of 

product performance, that they already 

maintain the records of efficiency 

determinations that the proposed rule 

would require them to keep. 

The Department has submitted these 

proposed information collection and 

recordkeeping requirements to the 

Office of Management and Budget for 

review and approval under the 

Paperwork Reduction Act, 44 U.S.C. 

3501, et seq. The OMB previously 

approved Appendix A to Subpart F of 

Part 430, "Compliance Statement and 

Certification Report," and assigned 

OMB control number 1910-1400. The 

proposed rule would revise these forms 

to cover certification of commercial 

heating, air conditioning and water 

heating equipment; facilitate the use of 

the certification report by third party 

representatives of covered product 

manufacturers; and in an attachment, 

specify forms similar to those that 

manufacturers are currently required to 

submit to DOE by 10 CFR Part 

430.62(a)(2). 

The Department considers the 

information collection and 

recordkeeping called for in this 

proposed rule to be the least 

burdensome possible for meeting the 

legal requirements of EPCA and 

effectively enforcing the provisions of 

the law. However, the Department 

encourages public comments 

concerning the anticipated paperwork 

reporting burden. Send comments 

regarding recordkeeping or reporting 

burdens, or anv other aspect of 

information collection, to the 

Department in accordance with the 

instructions in the DATES and ADDRESSES 

sections of this notice, as well as in 

Section IV below. Send a copy of the 

same comments to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 

Washington, DC 20503, marked 

"Attention: Desk Officer for DOE." 

G. Review Under Executive Order 

12988, "Civil Justice Reform" 

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, 19961, 

imposes on executive 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. With regard to 

the review required by Section 3(a), 

Section 3(b) of the Executive Order 

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) 

provide 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 the Executive Order requires 

agencies to review regulations in light of 

applicable standards Section 3(a) and 

Section 3(b) to determine whether they 

are met or it is unreasonable to meet one 

or more of them. 

The Department reviewed today's 

proposed rule under the standards of 

Section 3 of the Executive Order and 

determined that, to the extent permitted 

by law, it meets the requirements of 

those standards. 

H. Review Under Section 32 of the 

Federal Energy Administration Act of 

1974 

Under section 301 of the Department 

of Energy Organization Act (Pub. L. 95- 

91), the Department of Energy must 

comply with section 32 of the Federal 

Energy Administration Act of 1974, as 

amended by the Federal Energy 

Administration Authorization Act of 

1977. 15 U.S.C. 788. Section 32 provides 

in essence that, where a proposed rule 

contains or involves use of commercial 

1999 /Proposed Rules 

standards, the notice of proposed 

rulemaking must inform the public of 

the use and background of such 

standards. 

This rule proposed in this notice 

incorporates a several commercial 

standards which EPCA requires to be 

used. These include testing standards 

referenced by ASHRAEIIES Standard 

90.1-1989 for the measurement of 

steady state thermal efficiency of 

commercial warm air furnaces. Because 

the Department has very limited 

discretion to depart from the standards 

referenced in ASHRAEIIES 90.1, 

Section 32 of the FEAA does not apply 

to them. 

Two commercial standards 

incorporated in this rule are not 

referenced by ASHRAEIIES Standard 

90.1-1989, and are thus their use is not 

required by EPCA. One is ASHRAE 

Standard 103-1993, " Method of Testing 

for Annual Fuel Utilization Efficiency of 

Residential Central Furnaces and 

Boilers." The Department proposes to 

adopt portions of this standard to obtain 

a suitable test procedure for condensing 

furnaces, which are not covered by 

ASHRAE/IES Standard 90.1-1989. The 

other is the Hvdronics Institute (HI) 

Standard "Testing and Rating Standard 

for Heating Boilers," which specifies a 

flue loss calculation procedure for oilfired equipment, also not covered by 

ASHRAEiIES Standard 90.1-1989. The 

Department has evaluated these two 

standards and is unable to conclude 

whether they fully comply with the 

requirements of section 32(b) of the 

Federal Energy Administration Act, i.e., 

that they were developed in a manner 

that which fully provides for public 

participation, comment and review. 

As required by section 32(c) of the 

Federal Energy Administration Act, the 

Department will consult with the 

Attorney General and the Chairman of 

the Federal Trade Commission 

concerning the impact of these two 

standards on competition, prior to 

prescribing a final rule. 

I. Review Under Unfunded Mandates 

Reform Act of 1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 

("Unfunded Mandates Act") requires 

that the Department prepare a budgetary 

impact statement before promulgating a 

rule that includes a Federal mandate 

that may result in expenditure by state, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year. 

The budgetary impact statement must 

include: (i) Identification of the Federal 

law under which the rule is 

promulgated; (ii) a qualitative and 

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quantitative assessment of anticipated 

costs and benefits of the Federal 

mandate and an analysis of the extent to 

which such costs to state, local, and 

tribal governments may be paid with 

Federal financial assistance; (iii) if 

feasible, estimates of the future 

compliance costs and of any 

disproportionate budgetary effects the 

mandate has on particular regions, 

communities, non-Federal units of 

government, or sectors of the economy; 

(iv) if feasible, estimates of the effect on 

the national economy; and (v) a 

description of the Department's prior 

consultation with elected 

representatives of state, local, and tribal 

governments and a summary and 

evaluation of the comments and 

concerns presented. 

The Department has determined that 

the action proposed today does not 

include a Federal mandate that may 

result in estimated costs of $100 million 

or more to state, local or to tribal 

governments in the aggregate or to the 

private sector. Therefore, the 

requirements of Sections 203 and 204 of 

the Unfunded Mandates Act do not 

apply to this action. 

J. Review Under the Plain Language 

Directives 

The President's Memorandum on 

"Plain Language in Government 

Writing." 63 FR 31885 (June 10, 1998) 

directs each Federal agency to write all 

published rulemaking documents in 

plain language. The Memorandum 

includes general guidance on what 

constitutes "plain language." Plain 

language requirements will vary from 

one document to another, depending on 

the intended audience, but all plain 

language documents should be logically 

organized and clearly written. 

DOE invites public comments on how 

to make this proposed rule easier to 

understand. For example: 

Are the requirements in the rule 

clearly stated? 

would a different organization 

better suit your needs? 

Have we organized the material to 

suit your needs? 

Does the rule contain jargon or 

unnecessary technical language? 

Can we improve the rule's format? 

k'. Review Under the Treasun, and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. No. 105-277) requires 

federal agencies to issue a Family . 

Policymaking Assessment for any 

proposed rule or policy that mav affect 

family well-being. Today's proposal 

would not have any impact on the 

autonomy or the integrity of the family 

as an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

IV. Public Comment 

A. Written Comment Procedures 

The Department invites interested 

persons to participate in the proposed 

rulemaking by submitting data, 

comments, or information with respect 

to the issues set forth in today's rule to 

Mr. Cyrus Nasseri, at the address 

indicated at the beginning of the notice. 

The Department will consider all 

submittals received by the date 

specified at the beginning of this notice 

in develo ing the final rule. 

Under &e provisions of Title 10 CFR 

1004.11, any person submitting 

information which he or she believes to 

be confidential and exempt by law from 

public disclosure should submit one 

complete copy of the document and ten 

(10) copies, if possible, from which the 

information believed to be confidential 

has been deleted. The Department of 

Energy will make its own determination 

with regard to the confidential status of 

the information and treat it according to 

its determination. 

Factors of interest to the Department 

when evaluating requests to treat as 

confidential information that has been 

submitted include: (I) A description of 

the items; (2) an indication as to 

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) an indication as to when 

such information might lose its 

confidential character due to the 

passage of time; and (7) why disclosure 

of the information would be contrary to 

the public interest. 

B. Public Hearing 

1. Procedures for Submitting Requests 

To Speak 

The beginning of this notice of 

proposed rulemaking indicates the time 

and place of the public hearing. The 

Department invites any person who has 

an interest in today's notice of proposed 

rulemaking, or who is a representative 

of a group or class of persons that has 

an interest in these proposed rules, to 

request an opportunity to make an oral 

presentation. If you would like to attend 

the public hearing, please notify Ms. 

Brenda Edwards-Jones at (202) 586- 

2945. You may also hand deliver 

requests to speak to the address 

indicated at the beginning of the notice 

between the hours of 8:00 a.m. and 4:00 

p.m., Monday through Friday, except 

Federal holidays. 

The person making the request should 

briefly describe the interest concerned 

and state why he or she, either 

individually or as a representative of a 

group or class of persons that has such 

an interest, is an appropriate 

spokesperson, and give a telephone 

number for contact. 

The Department requests each person 

selected to be heard to submit an 

advance copy of his or her statement 

prior to the hearing as indicated at the 

beginning of this notice. The 

Department, at its discretion, may 

permit any person wishing to testify 

who cannot meet this requirement, to 

testify if that person has made 

alternative arrangements with the Office 

of Codes and Standards in advance. The 

letter making a request to give an oral 

presentation must ask for such 

alternative arrangements. 

2. Conduct of Hearing 

The Department will designate a 

Department official to preside at the 

hearing. The hearing will not be a 

judicial or an evidentiarv-type hearing, 

but the Department will conduct it in 

accordance with 5 U.S.C. 553 and 

Section 336 of the Act. The Department 

of Energy reserves the right to select the 

persons to be heard at the hearing, to 

schedule the respective presentations, 

and to establish the procedures 

governing the conduct of the hearing. 

The Department will permit each 

participant to make a prepared general 

statement, limited to five (5) minutes, 

prior to the discussion of specific topics. 

The general statement should not 

address these specific topics, but may 

cover any other issues pertinent to this 

rulemaking. The Department will permit 

other participants to briefly comment on 

any general statements. The Department 

will then divide the hearing into 

segments, with each segment consisting 

of one or more topics covered by this 

notice, as follows: 

Test Procedures for Commercial 

Furnaces 

ASHRAE Referenced Test 

Standards. 

Definition of Thermal Efficiency. 

Test Procedures for the 

Measurement of Energy Efficiency. 

Other Test Standard Topics. 

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69610 Federal Register /Vol. 64, No. 238 / Mondav, December 13. 1999 / Pro~osed Rules 

Certification and Enforcement 

Procedures for Commercial Heating, Air 

Conditioning and Water Heating 

Equipment 

Certification. 

Alternative Methods for 

Determining Efficiency. 

Voluntary Independent 

Certification Programs. 

Non-Participating Manufacturers. 

Other Certification and 

Enforcement Topics. 

The Department will introduce each 

topic with a brief summary of the 

relevant provisions of the proposed rule, 

and the significant issues involved. The 

Department will then permit 

participants in the hearing to make a 

prepared statement limited to five (5) 

minutes on that topic. At the end of all 

prepared statements on a topic, the 

Department will permit each participant 

to briefly clarify his or her statement 

and comment on statements made by 

others. The Department is particularly 

interested in having participants 

address in their statements the specific 

issues set forth below in Section IV-C, 

"Issues on which Comments are 

Requested," and participants should be 

prepared to answer questions by the 

Department and other participants at the 

public hearing concerning these issues. 

Representatives of the Department may 

also ask questions of participants 

concerning other matters relevant to the 

hearing. The total cumulative amount of 

time allowed for each participant to 

make prepared statements must be 20 

minutes. 

The official conducting the hearing 

will accept additional comments or 

questions from those attending, as time 

permits. The presiding official will 

announce any further procedural rules, 

or modification of the above procedures. 

needed for the proper conduct of the 

hearing. 

The Department will arrange for a 

transcript of the hearing, and will retain 

the entire record of this rulemaking, 

including the transcript, and will make 

it available for inspection in the 

Department's Freedom of Information 

Reading Room. Any person may 

purchase a copy of the transcript from 

the transcribing reporter. 

C. Issues on Which Comments Are 

Requested 

The Department of Energy is 

interested in receiving comments and/or 

data concerning the feasibility, 

workability and appropriateness of the 

test procedures and certification and 

enforcement program proposed in 

today's rulemaking. Also, the 

Department welcomes discussion on 

improvements or alternatives to the 

proposed approaches. In particular, the 

Department requests comments on 

whether it should require manufacturers 

not participating in a VICP to have their 

equipment tested by, or under the 

supervision of, independent laboratories 

or personnel. And if such a requirement 

is retained in the final rule, should the 

Department impose specific competency 

criteria or qualification requirements to 

ensure accurate and reliable testing? 

Such measures might include laboratory 

accreditation, professional engineering 

registration or other similar 

demonstration of testing competence. 

List of Subjects in 10 CFR Part 431 

Administrative practice and 

procedure, Energy conservation, 

Incorporation by reference. 

Issued in Washington, DC, on November 

10, 1999. 

Dan W. Reicher, 

Assistant Secretary, Energy EfjCiciency and 

Renewable Energy. 

For the reasons set forth in the 

preamble, Title 10, Part 431 of the Code 

of Federal Regulations (CFR) is 

proposed to be amended as set forth 

below: 

PART 431-ENERGY EFFICIENCY 

PROGRAM FOR CERTAIN 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

1. The authority citation for part 431 

continues to read as follows: 

Authority: 42 U.S.C. 6311-6316 

2. Subparts H and I are added to read 

as follows: 

Subpart H-Definitions for Commercial 

HVAC & WH Products 

Sec. 

431.141 Definitions. 

Subpart I--Commercial Warm Air Furnaces 

431.151 Purpose and scope. 

Test Procedures 

431.161 Materials incorporated by 

reference. 

Sec. 431.162 Uniform test method for the 

measurement of energy efficiency of 

commercial warm air furnaces. 

Energy Conservation Standards 

431.171 Energy conservation standards and 

their effective dates. 

Subpart H-Definitions for Commercial 

HVAC & WH Products 

5 431.1 41 Definitions. 

For purposes of subparts I through P, 

words are defined as provided for in 

section 340 of the Act and as followsAct or EPCA means the Energy Policy 

and Conservation Act, 42 U.S.C. 6291- 

6317. 

Alternate efficiency determination 

method or AEDM means a method of 

calculating the efficiency of a 

commercial HVAC & WH product, in 

terms of the descriptor used in or under 

section 342 (a) of the Act to state the 

energy conservation standard for that 

product. 

Basic model means all units of a 

commercial HVAC & WH product 

manufactured by one manufacturer 

which have the same primary energy 

source and which do not have any 

differing electrical, physical, or 

functional characteristics that affect 

energy consumption. 

Batch means a collection of 

production units of a basic model from 

which a test sample is selected. 

Batch size means the number of units 

in a batch. 

Btu means British thermal unit, which 

is the quantity of heat required to raise 

the temperature of one pound of water 

one degree Fahrenheit. 

Commercial HVAC & WHproduct 

means any article of a type which meets 

the statutory definition of "covered 

equipment" under section 340(1)(B)- 

(F) of the Act, and to which an energy 

conservation standard is applicable 

under section 342(a) of the Act. 

Commercial warm air furnace means 

a warm air furnace that is a commercial 

HVAC & WH product. 

Covered equipment means industrial 

equipment of a type specified in section 

340 of the Act. 

DOE or the Department means the 

Department of Energy. 

Flue loss means the sum of the 

sensible heat and latent heat above room 

temperature of the flue gases leaving the 

appliance. 

Independent laboratory means a 

laboratory or test facility not controlled 

by, affiliated with, having financial ties 

with, or under common control with the 

manufacturer or distributor of the 

covered equipment being evaluated. 

Independent testing personnel means 

an individual, or an employee of an 

organization, not controlled by, 

affiliated with, having financial ties 

with, or under common control with the 

manufacturer or distributor of the 

covered equipment being evaluated. 

Manufacturer's model number means 

the identifier used by a manufacturer to 

uniquely identify the group of identical 

or essentially identical commercial 

equipment to which a particular unit 

belongs. The manufacturer's model 

number typically appears on equipment 

nameplates, in equipment catalogs and 

in other product advertising literature. 

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Natural gas means natural gas as procedures. The Department 9 431 .I62 Uniform test method for the 

defined by the Federal Power incorporates the material as it exists on measurement of energy efficiency of 

Commission. the date of the approval and a notice of commercia' warm air furnaces. 

Private labeler means an owner of a any change in the material will be (a) This section covers the test 

brand or trade mark on the label of a published in the Federal Register. procedures you must follow if, pursuant 

commercial HVAC & WH product which (b) ~ist oftest procedures to EPCA, you are measuring the steady 

bears a private label. A commercial incorporated by reference. state thermal efficiency of a gas-fired 

HVAC & WH product bears a private (1) American National Standards commercial warm air furnace or any oillabel if: Institute (ANSI) Standard 221.47-1993, fired capacity commercial of 225,000 warm Btu/h air or furnace, more. with 

(I) Such product (or its container) is -~~~-~i~~d central F~~~~~~~

Where this section prescribes use of labeled with the brand Or trademark of (2) Underwriters Laboratories (UL) ANSI standard z21.47-1993 or UL 

a person than a manufacturer of Standard 727-1994. "Standard for Oil- standard 727-1994, perform for such product, Fired Central Furnaces. " (2) The person with whose brand or purposes of this section only the 

trademark such product (or container) is (3) Sections 8.2.2, 11.2, and 11.2.1, procedures to the 

labeled has authorized or caused such and accompanying FOrrns 715 and 7213 measurement of steady-state efficiendy. 

product to be so labeled, and of the ~ydronics Institute (HI) StaIidard (b) Test setup. (I) Test setup for Gas- 

(3) The brand or trademark of a "Testing and Rating Standard for , Fired Commercial Warm Air Furnaces. 

manufacturer of such product does not Heating Boilers," 6th Edition, 1989. The test setup, including flue 

appear on such label. (4) Sections 7.2.2.4, 7.8, 9.2, and requirement, instrumentation, test 

Secretay means the Secretary of the 11.3.7 of the American Society of conditions, and measurements for 

Department of Energy. Heating, Refrigerating and Air- determining the thermal efficiency of 

State means a State, the District of Conditioning Engineers, Inc. (ASHRAE) gas-fired warm air furnaces with rated 

Columbia, Puerto Rico, or any territory Standard 103-1993, " Method of Testing input of 225,000 Btu/h or more, is as 

or possession of the United States. for Annual Fuel Utilization Efficiency of specified in Sections 1.1 (Scope), 2.1 

State regulation means a law or Residential Central Furnaces and (General), 2.2 (Basic Test 

regulation of a State or political Boilers." Arrangements), 2.3 (Test Ducts and 

subdivision thereof. (c) Availability of references. (1) Plenums). 2.4 (Test Gases), 2.5 (Test 

Thermal efficiency means the Inspection of test procedures. The test Pressures and Burner Adjustments), 2.6 

efficiency descriptor for warm air procedures incorporated by reference (Static Pressure and Air Flow 

furnaces and equals 100 percent minus are available for inspection at: Adjustments), 2.37 (Thermal Efficiency), 

percent flue loss determined using test (i) Office of the Federa] Register 800 and 4.2.1 (Basic Test Arrangements for 

procedures prescribed under 431.162. North Capitol Street, NW, Suite 700, Direct Vent Control Furnaces) of the 

CZiarm air furnace means a self- Washington, DC 20002. American National Standards Institute 

contained oil-fired or gas-fired furnace (ii) U.S. D~~~~~~~~ of E~~~~~, office (ANSI) Standard for Gas-Fired Central 

designed to S~PP~?' heated air through of Energy Efficiency and Renewable Furnaces, ANSI Standard 221.47-1993. 

ducts to spaces that require it and E~~~~~, ~~~~i~~~ and ~~~k~~~, 'e~est The thermal efficiency test must be 

includes combination warm air furnace1 procedures and certification conducted only at the normal inlet test 

electric air conditioning units but does ~~~~i~~~~~~~ for ~~~~~~~

warm ~i~ pressure, as specified in Section 2.5.1 of 

not include unit heaters and duct Furnaces," Docket No. EE-RMlTP-99- ANSI 221.47-1993, and at the 

furnaces. 450, 1000 Independence Avenue, SW, maximum Btu rating 

Washington, DC 20585. specified by the manufacturer for the 

Subpart I-Commercial Warm Air 

(2) Obtaining copies of Standards. product being tested. 

Furnaces (2) Test setup for Oil-Fired Anyone can obtain a copy of standards Commercial Worm Air Furnaces, The 

$431 .I51 Purpose and scope. incorporated by reference from the test setup, including flue requirement. This subpart contains energy following sources: instrumentation, test condition, and 

conservation requirements for certain (i) Request the ASHRAE measurement for measuring the thermal 

commercial warm air furnaces, pursuant Standards from the American Society of efficiency of oil-fired warm air furnaces 

to Part C: of Title 111 of the Energy Policy Heating, Refrigerating. and Air- with rated input of 225,000 Btulh or 

and Conservation Act, as amended, 42 Conditioning Engineers, Inc., 1971 more, is as specified in sections 1 

U.S.C 6311-6316. Tullie Circle, NE, Atlanta, GA 30329, or (scope), 2 (units of Measurement), 3 

http:l/www.ashrae.org/book/ Test Procedures bookshop.htm. (Glossary), 37 (General), 38 and 39 (Test Installation), 40 (Instrumentation, 

$431 .I61 Materials incorporated by (ii) Request copies of the ANSI except 40.4 and 40.6.2 through 40.6.7 

reference. Standards from Global Engineering which are not required for the thermal 

(a) The Department incorporates by Documents, 15 Inverness Way East, efficiency test), 41 (Initial Test 

reference the following test procedures Englewood* CO 801129 or htt~:// Conditions), 42 (Combustion Testwhich are not otherwise set forth in this global.ihs.com/, or http:// Burner and Furnace), 43.2 (Operation 

part 431, The Director of the Federal webstore.ansi.org/ansidocstore/. Tests), 44 (Limit Control Cutout Test), 

Register has approved the material (iii) Request copies of the UL 45 (Continuity of Operation Test), and 

listed in paragraph (b) of this section for Standards from Global Engineering 46 (Air Flow, Downflow or Horizontal 

incorporation by reference in Documents, 15 Inverness Way East, Furnace Test), of the Underwriters 

accordance with 5 U.S.C. 552(a) and 1 Englewood, CO 80112, or http:// Laboratories Standard for Oil-Fired 

CFR Part 51. Any subsequent global.ihs.com/. Central Furnaces, UL Standard 727- 

amendment to this material by the (iv) Request copies of the HI 1994. A fuel oil analysis for heating 

standard-setting organization will not Standards from the Hydronics Institute value, hydrogen content, carbon 

affect the DOE test procedures unless Inc., 35 Russo Place, Berkeley Heights, content, pounds per gallon, and API 

and until DOE amends its test N.J. 07922. gravity must be conducted as specified 

 EE-RM-TP-99-450 COMMENT 01B

EE-RM/TP-99-450 COMMENT 01B
69612 Federal Register / Vol. 1999 / Proposed Rules 

in section 8.2.2 of the 1989 Hydronics 

Institute Testing and Rating Standard 

for Heating Boilers. The steady-state 

combustion conditions, specified in 

section 42.1 of UL 727-1994, are 

attained as evidenced by variations in 

the measured flue gas temperature of 

not more than 5 OF for three consecutive 

readings taken 15 minutes apart. 

(c) Additional test measurements. (1) 

Measurement of Flue COz (Carbon 

Dioxide) for Oil-Fired Furnaces. In 

addition to the flue temperature 

measurement as specified in section 

40.6.8 of UL Standard 727, you must 

locate one or two sampling tubes within 

six inches downstream from the flue 

temperature probe (as indicated on 

Figure 40.3 of UL Standard 727). If you 

use an open end tube, it must project 

into the flue one-third of the chimney 

connector diameter. If you use other 

methods of sampling CO?, you must 

place the sampling tube so as to obtain 

an average sample. There must be no air 

leak between the temperature probe and 

the sampling tube location. You must 

collect the flue gas sample at the same 

time the flue gas temperature is 

recorded. The C02 concentration of the 

flue gas must be as specified by the 

manufacturer for the product being 

tested, with a tolerance of +0.1%. You 

must determine the flue GOz with an 

instrument providing a reading with an 

error no greater than 10.1 %. 

(2) Procedure for the Measurement of 

Condensate for a Gas-Fired Condensing 

Furnace. The test procedure for the 

measurement of the condensate from the 

flue gas under steady state operation 

must be conducted as specified in 

sections 7.2.2.4, 7.8 and 9.2 of the 

American Society of Heating, 

Refrigerating, and Air-Conditioning 

Engineers, Inc. (ASHRAE) Standard 

103-1993 under the maximum rated 

input conditions. You must conduct this 

condensate measurement for an 

additional 30 minutes of steady state 

operation after the completion of the 

steady state thermal efficiency test 

specified in paragraph (b) of this 

section. 

(d) Calculations of Thermal 

Efficiency. (1) Gas-Fired Commercial 

Warm Air Furnaces. You must use the 

calculation procedure as specified in 

section 2.37, Thermal Efficiency, of 

ANSI Standard 221.47-1993, 

(2) Oil-Fired Commercial Warm Air 

Furnaces. You must calculate the 

percent flue loss and the steady state 

efficiency by following the procedure 

specified in section 11.2 (Combustion 

Efficiency Test), and Forms 715 and 

721, of the 1989 Hydronics Institute (HI) 

Testing and Heating Standard for 

64, No. 238 /Monday, December 13, 

Heating Boilers. The thermal efficiency 

must be calculated as: 

Thermal Efficiency (percent) = 100 

percent-flue loss (percent). 

(e) Procedure for the Calculation of 

the Additional Heat Gain and Heat loss. 

and Adjustment to the Thermal 

Efjciciency for a Condensing Furnace. (1) 

You must calculate the latent heat gain 

from the condensation of the water 

vapor in the flue gas, and calculate heat 

loss due to the flue condensate down 

the drain, as specified in sections 

11.3.7.1 and 11.3.7.2 of ASHRAE 

Standard 103-1993, with the exception 

that in the equation for the heat loss due 

to hot condensate flowing down the 

drain in section 11.3.7.2, the assumed 

indoor temperature of 70 OF and the 

temperature term TOA must be replaced 

by the measured room temperature as 

specified in section 2.2.8 of ANSI 

221.47-1993. 

(2) Adjustment to the Thermal 

Efficiency for Condensing Furnace. You 

must adjust the thermal efficiency as 

calculated in paragraph (d)(l) of this 

section by adding the latent gain from 

the condensation of the water vapor in 

the flue gas and subtracting the heat loss 

(due to the flue condensate down the 

drain) to obtain the thermal efficiency of 

a condensing furnace. 

Energy Conservation Standards 

5 431.1 71 Energy conservation standards 

and their effective dates. 

Each commercial warm air furnace 

manufactured on or after January 1. 

1994 must meet the following energy 

efficiency standard levels: 

(a) For a gas-fired commercial warm 

air furnace with capacity of 225,000 Btu 

per hour or more, the thermal efficiency 

at the maximum rated capacity must be 

not less than 80 percent. 

(b) For an oil-fired commercial warm 

air furnace with capacity of 225,000 Btu 

per hour or more, the thermal efficiency 

at the maximum rated capacity must be 

not less than 81 percent. 

3. Subparts J, K, L and M are added 

to read as follows: 

Subpart J-Commercial Air 

Conditioners and Heat Pumps 

[Reserved] 

Subpart K-Commercial Packaged 

Boilers [Reserved] 

Subpart L-Commercial Water Heaters 

and Unfired Hot Water Storage Tanks 

[Reserved] 

Subpart M-Methods of Determining 

Efficiency of Commercial HVAC & WH 

Products. 

Sec. 

431.481 Requirements applicable to all 

manufacturers. 

431.482 Additional requirements applicable 

to VICP participants. 

431.483 Additional requirements applicable 

to non-VICP participants. 

431.484 Voluntary independent 

certification programs (VICP). 

Subpart M-Methods of Determining 

Efficiency of Commercial HVAC 81 WH 

Products. 

5 431.481 Requirements applicable to all 

manufacturers. 

(a) General. A manufacturer of a 

commercial HVAC & WH product may 

not distribute any basic model of such 

product 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 efficiency 

determination method (AEDM) to the 

basic model, in accordance with the 

requirements of this section. (For 

purposes of this subpart, the 

"efficiency" of a commercial HVAC & 

WH product means the energy 

efficiency or energy use of that product, 

expressed in terms of the descriptor that 

is used in or under Section 342(a) of the 

Act to state the energy conservation 

standard for that product.) 

(b) Testing. If you test a basic model 

pursuant to this section to determine its 

efficiency or to validate an AEDM, you 

must: 

(1) Select at random the unit(s) to be 

tested, which must be representative of 

the basic model, 

(2) Perform the testing in accordance 

with the applicable DOE test procedure, 

(3) Meet industry standards for the 

accuracy of testing and of rating results 

for the equipment being tested, and 

(4) Meet the requirements of either 

section 431.482(b) or section 431.483(a), 

whichever is applicable. 

(c) Alternative efficiency 

determination methods. 

(1) Criteria an AEDIM must satish. 

You may not applv an AEDM to a basic 

model to determine its efficiency 

pursuant to this subpart unless, 

 EE-RM-TP-99-450 COMMENT 01B

EE-RM/TP-99-450 COMMENT 01B
Federal Register / Vol. 64, No. 238 /Monday, December 13, 1999 /Proposed Rules 69613 

(i) The AEDM is derived from a 

mathematical model that accurately 

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) Subsequent verification of an AEDM. If you have used an AEDM 

pursuant to this subpart, 

(i) You 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, and 

(C) Complete test data, product 

information, and related information 

that you generated or acquired under 

paragraph (c)(l) of this section and 

55 431.482(c) or 431.483(b)(l), as 

applicable, 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, 

you must: 

(A) Conduct simulations to predict 

the performance of particular basic 

models of the commercial HVAC & WH 

product, or 

(B) Provide analyses of previous 

simulations conducted by you, or 

(C) Conduct sample testing of basic 

models selected by the Department, or 

(D) Conduct a combination of these. 

5 431.482 Additional requirements 

applicable to VICP participants. 

(a) Description of VICP participant. 

For purposes of this subpart, a 

manufacturer that participates in a 

Voluntary Independent Certification 

Program (VICP) approved by the 

Department for a commercial HVAC & 

WH product, as described in 5431.484, 

and that complies with all requirements 

imposed by that program, is a "VICP 

participant" with respect to that 

product. 

(b) Testing. A VICP participant that 

tests a basic model pursuant to this 

subpart must use statistically valid and 

accurate methods to arrive at the 

efficiency rating of such basic model. 

(c) Alternative efficiency 

determination methods. Before using an 

AEDM to determine the efficiency of a 

basic model pursuant to this subpart, a 

VICP participant must apply the AEDM 

to one or more basic models that have 

been tested in accordance with 

5s 431.481(b) and 431.482(b) of this 

subpart, and 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. In addition, the predicted 

efficiency(ies) calculated for the tested 

basic model(s) must on average be 

within one percent of the efficiency(ies) 

determined from testing such basic 

model(s). 

9 431 '483 Additional requirements 

applicable to non-VICP participants. 

If you are a manufacturer that is not 

a VICP participant with respect to a 

particular commercial WAC & WH 

product, you must meet the following 

requirements as to that product. 

(a) Testing. You must perform any 

testing of a basic model pursuant to this 

subpart under the supervision of 

independent testing personnel, or have 

such testing performed at an 

independent laboratory. In addition, 

you must test a sufficient number of 

units of the basic model, and the 

efficiency rating of the basic model must 

be determined, such that, 

(1) Any represented value of energy 

efficiency is no greater than the lower of 

the mean of the sample, or the lower 95 

percent confidence limit of the true 

mean divided by 0.95, and, 

(2) Any represented value of energy 

usage is no less than the greater of the 

mean of the sample, or the upper 95 

percent confidence limit of the true 

mean divided by 1.05. 

(b) Alternative efficiency 

determination methods. Before using an 

AEDM to determine the efficiency of a 

basic model pursuant to this subpart, 

you must first, 

(1) Apply the AEDM to three or more 

basic models that have been tested in 

accordance with 55 431.481(b) and 

431.483(a) of this subpart. 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 

(2) Obtain from the Department 

approval of the AEDM. The Department 

will provide such approval after 

receiving from you documentation 

which establishes that the AEDM 

satisfies the requirements of 

55 431.481(~)(1) and 431.483(b)(l) of 

this subpart. 

5431.484 Voluntary independent 

certification programs (VICP). 

(a) The Department will approve a 

voluntary independent certification 

program (VICP) for a commercial HVAC 

& WH product if the VICP meets all of 

the following criteria: 

(I) The program publishes its 

operating procedures in written form, 

and permits participation by all 

manufacturers of products covered by 

the program so long as they comply 

with the VICP's requirements 

concerning operation of the.program. 

(2) The program requires each 

participant to report to the program the 

efficiency of each basic model that the 

participant manufactures and that is 

covered by the program. The participant 

must determine such efficiency based 

on measurement of the basic model's 

performance. 

(3) The program publishes the 

efficiency ratings received from each 

participant, or otherwise makes the 

ratings readily available to the general 

public and to the Department. 

(4) The program conducts periodic 

verification testing on listed equipment, 

by testing the efficiency of each basic 

model at least once every five years and 

comparing its rated efficiency to the test 

results. 

(5) An independent laboratory 

conducts the tests, or independent 

laboratory personnel supervise the tests. 

(6) For verification testing, the testing 

personnel select units randomly from 

the manufacturer's stock. 

(7) The program uses efficiency 

testing in accordance with applicable 

DOE test procedures. 

(8) The program's verification testing 

meets industry standards for the 

accuracy of testing and of rating results 

for the equipment being tested, and the 

program satisfactorily describes how it 

meets these standards. 

(9) The program has an appropriate 

standard for determining whether the 

efficiency rating a manufacturer claims 

for a roduct is valid. 

(10y~he program requires that, if a 

basic model fails verification testing 

conducted by the VICP, the 

manufacturer of the basic model must 

remove it from production and sale if 

the verification testing results show it is 

not in compliance with EPCA efficiency 

standards, or correctly re-rate it if it 

complies with such standards. The 

program must also provide that a 

participating manufacturer will be 

expelled from the VICP if it does not 

comply with such requirements, and 

that the VICP will report to the 

Department verification test results that 

find the performance of a basic model 

not to meet EPCA efficiency standards. 

 EE-RM-TP-99-450 COMMENT 01B

EE-RM/TP-99-450 COMMENT 01B
69614 Federal RegisterIVol. 64, No. 238/Monday, December 13, 1999lProposed Rules 

(A basic model "fails" verification 431.509 Remedies. (1) The term "new covered 

testing when the VICP has compared the 431.510 Hearings and appeals. equipment" means covered equipment 

basic model's efficiency rating resulting Subpart P-General provisions for the title of which has not passed to a 

from completion of that testing with the Commercial HVAC & WH Products. purchaser who buys such equipment for 

efficiency rating claimed by the 431.601 Petitions for waiver, and purposes other than 

manufacturer, and has determined that applications for interim waiver, of test (i) Reselling such equipment, or 

the rating claimed by the manufacturer procedure. (ii) Leasing such equipment for a 

is not valid.) 431.602 Preemption of state regulations for period in excess of one year; and 

(11) The program provides for commercial InAC & WH products. (2) The term "knowingly" means 

penalties or other incentives to 431.603 Maintenance of records. (i) Having actual knowledge, or 

encourage manufacturers to report 431.604 Imported equipment. (ii) Presumed to have knowledge 

accurate and reliable efficiency ratings. 431.605 equipment. deemed to be possessed by a reasonable 

(12) The program provides to the 431.606 Subpoena. person who acts in the circumstances, 

manufacturer copies of all records of 431.607 including knowledge obtainable upon 

completed verification testing Subpart &Certification and the exercise of due care. 

performed on the manufacturer's Enforcement Provisions Applicable to 5431.503 compliance certification; equipment covered by the program. 

(13) The VICP provides to the Commercial HVAC & WH Products general requirements. 

Department annually data on the results 5 431.501 Purpose and scope. (a) General. Beginning twelve months 

of its verification testing during the after the publication of the applicable This subpart sets out how 

previous 12 months, including the test procedures, if you are a manufacturers and private labelers can manufacturer or private labeler, you following for each basic model on certify that their commercial HVAC & may not distribute in commerce any which the VICP has performed WH products comply with the 

verification testing: basic model of a commercial HVAC & applicable energy efficiency standards, WH product subject to an energy (i) The measured efficiency from the and how the Department will enforce verification testing, conservation standard under section 

(ii) The manufacturer's efficiency the provisions of the Act and 10 CFR 342(a) of the unless you have 

"tiny. and Part 431 such products. certified that the basic model complies 111 Either the applicable energy 5 431.502 Prohibited acts. with the requirements of the applicable 

conservation standard or a description (a) Each of the following is a standards, as follows: 

(1) Submit to the Department a of the sufficient to the prohibited act under sections 332 and compliance statement, as described in De artment to determine such standard. 345 of the Act: 8) An organization seeking the s431.504, and 

Department's approval of its voluntary (1) Failure to permit access to, or (2) Submit to the Department, or have 

independent certification program must copying of records required to be an authorized third party (such as a 

submit to the Department written under the Act and this part Or trade association or VICp) submit to the 

information which demonstrates that failure to make reports or provide other Department, a certification report as 

the program meets the requirements of information required to be supplied described in § 431.505. 

paragraph (a) of this section. Approval under the Act and this part; (b) New models. (1) Prior to or 

will remain in force for five years, (2) Failure of a manufacturer to concurrent with distributing in 

unless material &anges occur in the at his a commerce any new model of a 

program. In the event of changes, the number of units of a covered commercial HVAC & WH product, you 

VICP must promptly notify the commercial equipment to a test must submit all information required 

Department, which may then rescind or laboratory designated by the Secretary; under paragraph (a)(2) of this section for 

continue the approval. The Department (3) a manufacturer permit that model . 

may at any time rescind its approval of a representative designated by the (2) Any change to an existing basic 

a VICP upon determining that the Secretary to observe any testing required model which affects energy 

program does not meet the requirements the Act and this part, and to inspect consumption will constitute the 

of para raph (a) of this section. the results of such testing; and addition of a new basic model. If such 

4. Sutparts N, 0, and P are added to (4) Distribution in commerce by a a change neither alters compliance with 

read as follows: manufacturer or private labeler of any the applicable energy conservation 

new covered equipment which is not in standard for the new basic model, nor 

Subpart N-Labeling (Reserved) compliance with an applicable energy will be a basis for giving the new basic 

efficiency standard prescribed under the model an efficiency rating that differs Subpart 0---Certification and Enforcement Act and this part, Provisions Applicable to Commercial HVAC from the rating of the existing basic 

& WH Products (b) In accordance with sections 333 model, then you need not measure the 

and 345 of the Act, any person who Sec. efficiency of the new basic model. 

431.501 Purpose and scope. knowingly violates any provision of However, you must submit all 

431.502 Prohibited acts. paragraph (a) of this section may be information required by s 431.503(a)(2) 

431.503 Compliance certification; general subject to assessment of a civil penalty for the new basic model. 

requirements. of no more than $110 for each violation. (c) Discontinued models. (1) A model 

431.504 Compliance certification; Each violation of paragraph (a)(4) of this is discontinued when its production has 

compliance statement. section will constitute a separate ceased and it is no longer being 431.505 Compliance certification; violation with respect to each unit of distributed. 

certification report. covered equipment, and each day of 431.506 Enforcement. (2) You (or an authorized 

431.507 Enforcement: compliance noncompliance with paragraphs (a)(l) representative) must report such models 

determination procedure. through (3) of this section will to the Department at the address and in 

431.508 Cessation of distribution of a basic constitute a separate violation. the manner described in paragraph (e) of 

model. (c) For purposes of this section, this section. In such a report, for each 

 EE-RM-TP-99-450 COMMENT 01B

EE-RM/TP-99-450 COMMENT 01B
Federal Register 1 Vol. 64, No. 2 38 / Monday, December 13, 

model, you must list: equipment type, [Company name] submits this compliance 

the manufacturer's name, the private Statement under 10 CFR Part 431 (Energy 

labeler name(s), if applicable, and the for 

manufacturer's model number(s). Equipment) and Part C of the Energy Policy and Conservation Act (Pub. L. 94-163), and 

Amendment 'f If amendments thereto. I am signing this on 

information in a compliance statement behalf of and as a responsible official of the 

or certification report previously above named company. All basic models of 

submitted to the Department under this [the commercial HVAC & WH product 

section is found to be incorrect, you (or covered by this statement1 that the company 

an authorized representative) must manufactures comply with the applicable 

submit the corrected information to the energy conservation standards. We have 

Department at the address and in the with the testing requirements (prescribed in 10 CFR Part 431) manner described in paragraph (el of in making this determination, and in this section. determining the energy efficiency or energy (e) Correspondence with the use that is set forth in the certification report 

Department. Send any correspondence for each of these basic models. All 

by certified mail to: Department of information in that report and in this . 

Energy, Office of Energy Efficiency and statement is true, accurate, and complete. 

Renewable Energy, Office of Codes and The is aware the penalties 

Standards, 1000 Independence Avenue, associated with violations of the Act and the 

regulations thereunder, and is also aware of SW, Washington, DC 20585-0121. the provisions contained in 18 U.S.C. 1001, 

(f) Notices designating a change of which prohibits knowingly making false third party representative must be sent statement to the Federal Government. 

to the Department at the address and in Signature ofcompany Official: 

the manner described in paragraph (e) of 

this section. Name: 

Title: 

9 431.504 Compliance certification; Firm or Organization: 

compliance statement. Date: 

(a) You must send your compliance Name of Person to Contact for Further 

statement to the Department in the Information: 

manner described in 5 431.503 (e) Name: 

signed by a corporate officer, and in the Address: 

format set forth in the paragraph (b) of Tele~honeNumber: 

this section. Facsimile Number: 

(b) Statement contents. Your Third Party Representative: 

compliance statement must certifqr that: If a third party organization, under the 

(1) Each basic model you manufacture provisions of 10 CFR Part 431, prepared any 

of the commercial HVAC & WH product part of this Compliance Certification, or is 

authorized to submit any certification 

covered the statement r,port(s) for the company, provide the 

complies with the applicable energy following information for the company conservation standards; official who authorized third party 

(2) All representations as to efficiency representations: 

in your compliance certification and h'ame: 

certification report(s) are based on 'Title: 

testing andlor use of an AEDM in Address: 

accordance with 10 CFR part 431; Telephone Number: 

Facsimile Number: 

(3) information reported in "Our The third party organization authorized to act compliance statement and certification as representative: report(s) is true, accurate and complete; Third Party Organization: and 

(4) You are aware of the penalties Name of Responsible Person at that 

associated with violations of the Act Organization: 

and the regulations thereunder, and of - 

18 U.S.C. 1001 which prohibits Address: 

knowingly making false statements to Number: 

the Federal Government. Facsimile Number: 

(c) Statement format. You must use 5 431.505 Compliance certification; 

the following format for your certification report. 

compliance statement: (a) You, or an authorized third party 

Statement of Compliance With Energy acting on your behalf, must send your 

Conservation Standards for Commercial certification report(s) to the Department 

HVAC & WH Products in the manner specified in 5 431.503(e), 

Product: signed by an official or your company 

Manufacturer's Name and Address: or the third party representative. The 

Department will also accept a computer 

diskette which contains the certification 

-- report. 

1999 /Proposed Rules 69615 

(b) Report contents. The certification 

report must include the equipment type, 

manufacturer's name, private labeler 

name(s) (if applicable), the 

manufacturer's model number(s), and 

(1) For gas-fired and oil-fired 

commercial warm air furnaces (with a 

capacity of 225,000 Btu per hour or 

more), the minimum thermal efficiency 

at the maximum rated ca acity. 

(2) For gas-fired and oiffired 

commercial packaged boilers, the 

minimum combustion efficiency at the 

maximum rated ca acity 

(3) For air-coo1eJthre~-phase electric 

central air conditioners and central air 

conditioning heat pumps less than 

65,000 Btu per hour (cooling capacity), 

split systems or single package, the 

seasonal energy efficiency ratio and the 

heating seasonal performance factor; 

(4) For air-cooled central air 

conditioners and central air 

conditioning heat pumps at or above 

65,000 Btu per hour (cooling capacity) 

and less than 135,000 Btu per hour 

(cooling capacity), the energy efficiency 

ratio (at a temperature rating of 95°F dry 

bulb temperature) and the coefficient of 

performance in the heating mode (at a 

temperature rating of 47°F dry bulb 

tem erature); 

(57or water-cooled, evaporativelycooled and water-source central air 

conditioners and central air 

conditioning heat pumps of less than 

135,000 Btu per hour (cooling capacity), 

the energy efficiency ratio (at a standard 

rating of 95°F dry bulb temperature, for 

evaporatively cooled equipment, and 

85°F entering water temperature, for 

water-source and water-cooled 

equipment); 

(6) For water-source heat pumps less 

than 135,000 Btu per hour (cooling 

capacity), the coefficient of performance 

in the heating mode (at a standard rating 

of 70°F entering water tern erature); 

(7) For air-cooled centrafair 

conditioners and central air 

conditioning heat pumps at or above 

135,000 Btu per hour (cooling capacity) 

and less than 240,000 Btu per hour 

(cooling capacity), the energy efficiency 

ratio (at a standard rating of 95°F dry 

bulb temperature) and the coefficient of 

performance in the heating mode (at a 

high temperature rating of 47°F dry bulb 

tem erature); 

(87 For water- and evaporativelycooled central air conditioners and 

central air conditioning heat pumps at 

or above 135.000 Btu per hour (cooling 

capacity) and less than 240,000 Btu per 

hour (cooling capacity), the energy 

efficiency ratio (according to ARI 

Standard 3401360-93); 

(9) For packaged terminal air 

conditioners, the energy efficiency ratio 

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(EER) in the cooling mode (at a 

temperature rating of 95°F dry bulb 

temperature); 

(10) For packaged terminal heat 

pumps, the energy efficiency ratio (EER) 

in the cooling mode (at a temperature 

rating of 95°F dry bulb temperature), 

and the coefficient of performance 

(COP) in the heating mode (at a standard 

rating of 47°F dry bulb temperature); 

(11) For storage water heaters (except 

those having more than 140 gallon 

storage capacity, not having a standing 

pilot light, and having the tank surface 

area thermally insulated to R-12.5) 

manufactured on or after January 1, 

1994, the maximum standby loss, in 

percent per hour; 

(12) For instantaneous water heaters 

(except those having more than 140 

gallon storage capacity, not having a 

standing pilot light, and having the tank 

surface area thermally insulated to R12.5), the minimum thermal efficiency, 

and for storage volumes of 10 gallons or 

more, the maximum standby loss, in 

percent per hour; and 

(13) For unfired hot water storage 

tanks (except those having more than 

140 gallon storage capacity, and having 

the tank surface area thermally 

insulated to R-12.5), the maximum heat 

loss in Btus per hour square foot of 

nominal tank surface area. 

(c) One possible format for a 

certification report is as follows: 

Certification report for commercial 

equipment: (Insert the Name of Equipment) 

Dated: 

Signature of Company Official or Third P* 

Representative: 

Equipment Type: 

Manufacturer: 

Private Labeler (if applicable): 

For New or Amended Basic Models: 

(Provide specific equipment information 

including, for each basic model, the 

manufacturer's model number(s) and the 

information required in s431.505 (b)). 

For Discontinued Basic Models: 

(Provide manufacturer's model numher(s)). 

5 431.506 Enforcement. 

(a) Test notice. Upon receiving 

information in writing concerning the 

energy performance of a particular 

commercial HVAC & WH product sold 

by a manufacturer or private labeler 

which indicates that the product may 

not be in compliance with the 

applicable energy performance 

standard, the Secretary may conduct a 

review of test records. The Secretary 

may then conduct enforcement testing 

of that equipment by means of a test 

notice addressed to the manufacturer or 

private labeler in accordance with the 

following requirements: 

(1) The test notice procedure will only 

be followed after the Secretary or his1 

her designated representative has 

examined the underlying test data (or, 

where appropriate, data as to use of an 

alternative efficiency determination 

method) provided by the manufacturer, 

and after the manufacturer has been 

offered the opportunity to meet with the 

Department to verify compliance with 

the applicable efficiency standard. In 

addition, where compliance of a basic 

model was certified based on an AEDM, 

the Department has the discretion to 

pursue the provisions of 

5 431.481(c)(2)(ii) prior to invoking the 

test notice procedure. A representative 

designated by the Secretary must be 

permitted to observe any reverification 

procedures undertaken according to this 

subpart and to inspect the results of 

such reverification. 

(2) The test notice will be signed by 

the Secretary or hislher designee and 

will be mailed or delivered by the 

Department to the plant manager or 

other responsible official designated by 

the manufacturer. 

(3) The test notice will specify the 

model or basic model to be selected for 

testing, the number of units to be tested, 

the method for selecting these units, the 

date and time at which testing is to 

begin, 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 it may include alternative 

basic models. 

(4) The Secretary may require in the 

test notice that the manufacturer ship at 

his expense a reasonable number of 

units of a basic model specified in the 

test notice to a testing laboratory 

designated by the Secretary. 

(5) Within five working days of the 

time the units are selected. the 

manufacturer must ship the specified 

units of a basic model to the designated 

testing lahoratorv. 

(b) Testing ~oboroto~. Whenever the 

Department conducts enforcement 

testing at a designated laboratory in 

accordance with a test notice under this 

section, the resulting test data will 

constitute official test data for that basic 

model. The Department will use such 

test data to make a determination of 

compliance or noncompliance. 

(c) Sampling. The Secretary will base 

the determination of whether a 

manufacturer's basic model complies 

with the applicable energy performance 

standard on the testing conducted in 

accordance with the procedures set 

forth in this section and 5 431.507, and 

the applicable test procedures specified 

in this part. Initially, the Department 

will test two units, except as follows: 

(I) If only one unit of a basic model 

is available for testing, the Department 

will test that unit, and will base the 

compliance determination on the results 

for that unit in a manner otherwise in 

accordance with this section. Available 

units are those which are available for 

commercial distribution within the 

United States. 

(2) If a basic model is very large or has 

unusual testing requirements, the 

Department may decide to base the 

determination of compliance on the 

testing of one unit, if the manufacturer 

so requests and provides sufficient 

justification for the request. 

(d) Test unit selection. A DOE 

inspector will select a batch from all 

available units, and a test sample (i.e., 

the units to be tested) from the batch, in 

accordance with the provisions of this 

paragraph and the conditions specified 

in the test notice. 

(1) DOE may select the batch by 

utilizing criteria specified in the test 

notice, e.g., date of manufacture, 

component-supplier, location of 

manufacturing facility, or other criteria 

which may differentiate one unit from 

another within a basic model. 

(2) DOE will randomly select 

individual units to be tested, comprising 

the test sample, from the batch. DOE 

will achieve random selection by 

sequentially numbering all of the units 

in a batch and then using a table of 

random numbers to select the units to 

be tested. The manufacturer must keep 

on hand all units in the batch until such 

time as the inspector determines the 

basic model to he in compliance or 

noncompliance. 

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

and during testing, no one may prepare, 

modify, or adjust in any manner a test 

unit selected in accordance with 

paragraph (d) of this section unless the 

applicable DOE test procedure allows 

such preparation, modification, or 

adjustment. DOE will conduct one test 

for each test unit in accordance with the 

ap licable test procedures. 6) No one may perform any quality 

control, testing or assembly procedures 

on a test unit, or any parts and 

subassemblies thereof, that is not 

performed during the production and 

assembly of all other units included in 

the basic model. 

(3) A test unit is 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, must be reported immediately 

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to the Department. The Department will 

authorize testing of an additional unit 

on a case-by-case basis. 

(f) Testing at manufacturer's option. If 

the Department determines a basic 

model to be in noncompliance with the 

applicable energy performance standard 

at the conclusion of its initial 

enforcement sampling plan testing, the 

manufacturer may request that the 

Department conduct additional testing 

of up to two additional units of the basic 

model at the manufacturer's expense. 

Testing under this paragraph must be in 

accordance with the applicable test 

procedure specified in this part, the 

provisions of paragraphs (d) and (e) of 

this section, and 5 431.507(d). 

5 431.507 Enforcement; compliance 

determination procedure. 

The Department will determine 

compliance for commercial HVAC & 

WH equipment as follows: 

(a) Make the computation in 

paragraph (b) of this section when the 

first sample size (nl) is two units. 

(b) Compute the mean (x,) of the 

measured energy performance of the nl 

units in the first sample as follows: 

where (x,) is the measured energy 

efficiency or energy consumption of 

unit i. 

(c) From the sample mean 

performance derived pursuant to 

paragraph (b) of this section, or from the 

measured performance when 

compliance is determined from testing 

one unit pursuant to 5 431.506(c), 

determine one of the following: 

(1) For an Energy Efficiency Standard, 

if the aforementioned sample mean or 

measured performance is equal to or 

greater than 95 percent of the applicable 

energy efficiency standard, the basic 

model is in compliance and testing is at 

an end. 

(2) For an Energy Consumption 

Standard, if the aforementioned sample 

mean or measured performance is equal 

to or less than 105 percent of the 

applicable energy consumption 

standard, the basic model is in 

compliance and testing is at an end. 

(3) Otherwise. the basic model is not 

in compliance. 

(d) Manufacturer-Option Testing. If 

the basic model is in non-compliance 

pursuant to paragraph (c)(3) of this 

section, the manufacturer may request 

additional testing, as follows. 

(1) The manufacturer requests the 

testing of an additional number of units, 

such that the total size of the combined 

sample tested does not exceed 4. 

(2) Compute the mean energy 

performance of the new combined 

sample using the paragraph (b) of this 

section. 

(3) From the mean performance of the 

new combined sample, determine one of 

the following: 

(i) For an Energy Efficiency Standard, 

if the new combined sample mean is 

equal to or greater than 95 percent of the 

applicable energy efficiency standard, 

the basic model is in compliance and 

testing is at an end. 

(ii) For an Energy Consumption 

Standard, if the new combined sample 

mean is equal to or less than 105 

percent of the applicable energy 

consumption standard, the basic model . 

is in compliance and testing is at an 

end. 

(iii) Otherwise, the basic model is in 

not in compliance. 

5 431.508 Cessation of distribution of a 

basic model. 

(a) If you are a manufacturer or 

private labeler, and DOE determines one 

of your models to be noncompliant, in 

accordance with 5431.506 and 431.507, 

or you determine that one of your 

models is noncompliant, you must: 

(1) Immediately cease distribution in 

commerce of all units of the basic model 

in question; 

(2) Give immediate written 

notification of the determination of 

noncompliance, to all persons to whom 

you have distributed units of the basic 

model manufactured since the date of 

the last determination of compliance: 

and 

(3) If a request is 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 noncompliant. 

(b) The manufacturer may modify the 

noncompliant basic model in such 

manner as to make it comply with the 

applicable performance standard. You 

must treat such a modified basic model 

as a new basic model and certify it in 

accordance with the provisions of this 

subpart; except that in addition to 

satisfying all requirements of this 

subpart, you must also maintain records 

that demonstrate that modifications 

have been made to all units of the new 

basic model prior to its distribution in 

commerce. 

(c) If a manufacturer or private labeler 

has a basic model not properly certified 

in accordance with the requirements of 

this subpart, the Secretary may seek, 

among other remedies, injunctive action 

to prohibit distribution in commerce of 

units of such a basic model. 

5 431 509 Remedies. 

If the Secretary determines that a 

basic model of covered equipment does 

not comply with an applicable energy 

conservation standard: 

(a) The Secretary will notify the 

manufacturer, private labeler or any 

other person as required, of this finding 

and of the Secretary's intent to seek a 

judicial order restraining further 

distribution in commerce of units of 

such a basic model unless the 

manufacturer, private labeler or any 

other person as required, delivers to the 

Secretary within 15 calendar days a . 

statement, satisfactory to the Secretary, 

of the steps he will take to insure that 

the noncompliant basic model will no 

longer be distributed in commerce. The 

Secretary will monitor the 

im lementation of such statement. 8) If the manufacturer, private labeler 

or any other person as required, fails to 

stop distribution of the noncompliant 

basic model, the Secretary may seek to 

restrain such violation in accordance 

with sections 334 and 345 of the Act. 

(c) The Secretary will determine 

whether the facts of the case warrant the 

assessment of civil penalties for 

knowing violations in accordance with 

sections 333 and 345 of the Act. 

$j 431.510 Hearings and appeals. 

(a) Under sections 333(d) and 345 of 

the Act, before issuing an order 

assessing a civil penalty against any 

person, the Secretary must provide to 

such a person a notice of the proposed 

penalty. Such notice must inform the 

person that such person can choose (in 

writing within 30 days after receipt of 

the notice) to have the procedures of 

paragraph (c) of this section (in lieu of 

those in paragraph (b) of this section) 

ap ly with respect to such assessment. g)(l) Unless a person elects, within 

30 calendar days after receipt of a notice 

under paragraph (a) of this section, to 

have paragraph (c) apply with respect to 

the civil penalty under paragraph (a), 

the Secretary will assess the penalty, by 

order, after providing an opportunity for 

an agency hearing under section 554 of 

title 5, United States Code, and making 

a determination of violation on the 

record before an administrative law 

judge appointed under section 3105 of 

such title 5. Such assessment order will 

include the administrative law judge's 

findings and the basis for such 

assessment. 

(2) Any person against whom the 

Secretary assesses a penalty under this 

paragraph may, within 60 calendar days 

after the date of the order assessing such 

penalty, initiate action in the United 

States Court of Appeals for the 

appropriate judicial circuit for judicial 

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review of such order in accordance with 

chapter 7 of title 5, United States Code. 

The court will 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. 

(c)(l) In the case of any civil penalty 

with respect to which the procedures of 

this paragraph have been elected, the 

Secretary will promptly assess such 

penalty, by order, after the date of the 

receipt of the notice under paragraph (a) 

of this section of the proposed penalty. 

(2) If the person has not paid the civil 

penalty within 60 calendar days after 

the assessment has been made under 

paragraph (c)(l) of this section, the 

Secretary will institute an action in the 

appropriate District Court of the United 

States for an order affirming the 

assessment of the civil penalty. The 

court will have authority to review de 

novo the law and the facts involved and 

jurisdiction to enter a judgment 

enforcing, modifying, and enforcing as 

so modified, or setting aside in whole or 

in part, such assessment. 

(3) Any election to have this 

paragraph apply can only be revoked 

with the consent of the Secretary. 

(d) If any person fails to pay an 

assessment of a civil penalty after it has 

become a final and unappealabie order 

under paragraph (b) of this section, or 

after the appropriate District Court has 

entered final judgment in favor of the 

Secretary under paragraph (c) of this 

section, the Secretary will 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 will not be subject to review. 

(e)(l) In accordance with the 

provisions of sections 333(d)(5)(A) and 

345 of the Act and notwithstanding the 

provisions of title 28, United States 

Code, or section 502(c) of the 

Department of Energy Organization Act, 

the General Counsel of the Department 

of Energy (or any attorney or attorneys 

within DOE designated by the Secretary) 

will represent the Secretary, and will 

supervise, conduct, and argue any civil 

litigation to which paragraph (c) of this 

section applies (including any related 

collection action under paragraph (d) of 

this section) in a court of the United 

States or in any other court, except the 

Supreme Court of the United States. 

However, the Secretary or the General 

Counsel will consult with the Attorney 

General concerning such litigation and 

the Attorney General will provide, on 

request, such assistance in the conduct 

of such litigation as may be appropriate. 

(2) In accordance with the provisions 

of sections 333(d)(5)(B) and 345 of the 

Act, and subject to the provisions of 

section 502(c) of the Department of 

Energy Organization Act, the Secretary 

will be represented by the Attorney 

General, or the Solicitor General, as 

appropriate, in actions under this 

section, except to the extent provided in 

paragraph (e)(l) of this section. 

(3) In accordance with the provisions 

of section 333(d)(5)(C) and 345 of the 

Act, section 402(d) of the Department of 

Energy Organization Act will not apply 

with respect to the function of the 

Secretary under this section. 

Subpart P-General Provisions for 

Commercial HVAC & WH Products 

9 431.601 Petitions for waiver, and 

applications for interim waiver, of test 

procedure. 

(a) General criteria. (1) Any interested 

person may submit a petition to waive 

for a particular basic model any 

requirements of C; 431.162, and of the 

provisions specifying the test methods 

for other commercial HVAC & WH 

products, upon the grounds that either 

the basic model contains one or more 

design characteristics which either 

prevent testing of the basic model 

according to the prescribed test 

procedures, or the prescribed test 

procedures may evaluate the basic 

model in a manner so unrepresentative 

of its true energy consumption 

characteristics as to provide materially 

inaccurate comparative data. 

(2) If you have submitted a Petition 

for Waiver as provided in this subpart, 

you may also file an Application for 

Interim Waiver of the applicable test 

procedure requirements. 

(b) Submission, content, and 

publication. (1) You must submit vour 

Petition for Waiver in triplicate, to the 

Assistant Secretary for Energv Efficiencv 

and Renewable Energy, United States 

Department of Energy. Each Petition for 

Waiver must: 

(i) Identify the particular basic 

model(s) for which a waiver is 

requested, the design characteristic(s) 

constituting the grounds for the petition, 

and the specific requirements sought to 

be waived, and must discuss in detail 

the need for the requested waiver; 

(ii) Identify manufacturers of all other 

basic models marketed in the United 

States and known to the petitioner to 

incorporate similar design 

characteristic(s); 

(iii) Include any alternate test 

procedures known to the petitioner to 

evaluate the characteristics of the basic 

model in a manner representative of its 

energy consum tion; and 

(iv) Be signeBby you or by an 

authorized representative. In accordance 

with the provisions set forth in 10 CFR 

1004.11, any request for confidential 

treatment of any information contained 

in a Petition for Waiver or in supporting 

documentation must be accompanied by 

a copy of the petition, application or 

supporting documentation from which 

the information claimed to be 

confidential has been deleted. DOE will 

publish in the Federal Register the 

petition and supporting documents from 

which confidential information, as . 

determined by DOE, has been deleted in 

accordance with 10 CFR 1004.11 and 

will solicit comments, data and 

information with respect to the 

determination of the petition. 

(2) You must submit any Application 

for Interim Waiver in triplicate, with the 

required three copies of the Petition for 

Waiver, to the Assistant Secretary for 

Energy Efficiency and Renewable 

Energy, U.S. Department of Energy. 

Each Application for Interim Waiver 

must reference the Petition for Waiver 

by identifying the particular basic 

model(s) for which you seek a waiver 

and temporary exception. Each 

Application for Interim Waiver must 

demonstrate likely success of the 

Petition for Waiver and address what 

economic hardship and/or competitive 

disadvantage is likely to result absent a 

favorable determination on the 

Application for Interim Waiver. You or 

an authorized representative must sign 

the Application for Interim Waiver. 

(c) Notification to other 

manufacturers. (1) After filing a Petition 

for Waiver with DOE, and after DOE has 

published the Petition for Waiver in the 

Federal Register, you must, within five 

working days of such publication, notify 

in writing all known manufacturers of 

domesticallv marketed units of the same 

product type (as defined in section 

340(1) of the Act) and must include in 

the notice a statement that DOE has 

published in the Federal Register on a 

certain date the Petition for Waiver and 

supporting documents from which 

confidential information, if anv, as 

determined by DOE, has been deleted in 

accordance with 10 CFR 1004.11. In 

complying with the requirements of this 

paragraph, you must file with DOE a 

statement certifying the names and 

addresses of each person to whom you 

have sent a notice of the Petition for 

Waiver. 

(2) If you apply for Interim Waiver, 

whether filing jointly with or 

subsequent to your Petition for Waiver 

with DOE, you must concurrently notify 

in writing all known manufacturers of 

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domestically marketed units of the same reasons to grant immediate relief 

product type (as defined in Section pending a determination on the Petition 

340(1) of the Act), and must include in for Waiver. 

the notice a copy of the Petition for (4) Duration. An interim waiver will 

Waiver and a copy of the Application terminate 180 days after issuance or 

for Interim Waiver. In complying with upon the determination on the Petition 

this section, you must in the written for Waiver, whichever occurs first. DOE 

notification include a statement that the may extend an interim waiver for up to 

Assistant Secretary for Energy Efficiency 180 days or modifi. its terms based on 

and Renewable Energy will receive and relevant information contained in the 

consider timely written comments on record and any comments received 

the Application for Interim Waiver. subsequent to issuance of the interim 

- Upon filing an Application for Interim waiver. DOE will publish in the Federal 

Waiver, you must in complying with the Register notice of such extension and/ 

requirements of this paragraph certify to or any modification of the terms or 

DOE that a copy of'these documents has duration of the interim waiver. 

been sent to all known manufacturers of (0 Provisions specific to waivers. (1) 

domestically marked units of the same Rebuttal by petitioner. Following 

product type (as listed in section 340(1) publication of the Petition for Waiver in 

of the Act). Such certification must the Federal Register, a petitioner may, 

include the names and addresses of within 10 working days of receipt of a 

such persons. You must comply with copy of any comments submitted in 

the provisions of paragraph (c)(l) of this accordance with paragraph (b)(l) of this 

section with respect to the petition for section, submit a rebuttal statement to 

waiver. the Assistant Secretary for Energy 

(dl Comments; responses to Efficiency and Renewable Energy. A 

comments. (I) Any person submitting petitioner may rebut more than one 

written comments to DOE with respect response in a single rebuttal statement. 

to an Application for Interim Waiver (2) Disposition of petition. DOE will 

must also send a copy of the comments notify the petitioner in writing as soon 

to the applicant. as practicable of the disposition of each 

(2) Any person submitting written Petition for Waiver. The Assistant 

comments to DOE with respect to a Secretary for Energy Efficiency and 

Petition for Waiver must also send a Renewable Energy will issue a decision 

copy of such comments to the on the petition as soon as is practicable 

petitioner. In accordance with following receipt and review of the 

paragraph (b)(l) of this section, a Petition for Waiver and other applicable 

petitioner may submit a rebuttal documents, including, but not limited 

statement to the Assistant Secretary for to, comments and rebuttal statements. 

Energy Efficiency and Renewable (3) Consequence of filing petition. The 

Energy. filing of a Petition for Waiver will not 

(el Provisions specific to interim constitute grounds for noncompliance 

waivers. (I) Dispositjon of application. with any requirements of this subpart, 

If administratively feasible, DOE will until a waiver or interim waiver has 

notify the applicant in writing of the been granted. 

disposition of the Application for (4) Granting: criteria, conditions, and 

Interim Waiver within 15 business days publication. The Assistant Secretary for 

of receipt of the application. Notice of Energy Efficiency and Renewable 

DOE's determination on the Application Energy will grant a waiver, if he or she 

for Interim Waiver will be published in determines that the basic model for 

the Federal Register. which the waiver was requested 

(2) Consequences of filing application. contains a design characteristic which 

The filing of an Application for Interim either prevents testing of the basic 

Waiver will not constitute grounds for model according to the prescribed test 

noncompliance with any requirements procedures, or the prescribed test 

of this subpart, until an Interim Waiver procedures may evaluate the basic 

has been granted. model in a manner so unrepresentative 

(3) Criteria for granting. The Assistant of its true energy consumption 

Secretary for Energy Efficiency and characteristics as to provide materially 

Renewable Energy will grant an Interim inaccurate comparative data. The 

Waiver from test procedure Assistant Secretary for Energy Efficiency 

requirements if he or she determines and Renewable Energy may grant a 

that the applicant will experience waiver subject to conditions, which may 

economic hardship if the Application include adherence to alternate test 

for Interim Waiver is denied, if it procedures. DOE will promptly publish 

appears likely that the Petition for in the Federal Register notice of each 

Waiver will be granted, andlor if the waiver granted or denied, and any 

Assistant Secretary determines that it limiting conditions of each waiver 

would be desirable for public policy granted. 

1999 /Proposed Rules 69619 

(g) Revision of regulation. Within one 

year of the granting of any waiver, the 

Department will publish in the Federal 

Register a notice of proposed 

rulemaking to amend its regulations so 

as to eliminate any need for the 

continuation of such waiver. As soon 

thereafter as practicable, the Department 

will publish in the Federal Register a 

final rule. Such waiver will terminate 

on the effective date of such final rule. 

(h) Exhaustion of remedies. In order 

to exhaust administrative remedies, any 

person aggrieved by an action under this 

section must file an appeal with the 

DOE's Office of Hearings and Appeals as 

provided in 10 CFR Part 1003, subpart 

c. 

9431.602 Preemption of state regulations 

for commercial HVAC & WH products. 

Beginning on the effective date of 

such standard, an energy conservation 

standard set forth in this part for a 

commercial HVAC & WH product 

supersedes any State or local regulation 

concerning the energy efficiency or 

energy use of that product, except as 

provided for in section 345(b)(2)(B)-(D) 

of the Act. 

9 431.603 Maintenance of records. 

(a) If you are the manufacturer of any 

commercial HVAC & WH product, you 

must establish, maintain and retain 

records of the following: 

(1) The test data for all testing 

conducted pursuant to 10 CFR part 431, 

including any testing conducted by a 

VICP; and 

(2) The development, substantiation, 

application, and subsequent verification 

of any AEDM. 

(b) You must organize such records 

and index them so that they are readily 

accessible for review. The records must 

include the supporting test data 

associated with tests performed on any 

test units to satisfy the requirements of 

this subpart (except tests performed by 

the Department directly). 

(c) You must retain all such records 

for a period of two years from the date 

that production of all units of the 

commercial equipment for the basic 

model has ceased. You must retain 

records in a form allowing ready access 

to the Department upon request. 

9 431.604 Imported equipment. 

(a) Under sections 331 and 345 of the 

Act, any person importing any 

commercial HVAC & WH product into 

the United States must comply with the 

provisions of the Act and of this part, 

and is subject to the remedies of this 

part. 

(b) Any commercial HVAC & WH 

product offered for importation in 

 EE-RM-TP-99-450 COMMENT 01B

EE-RM/TP-99-450 COMMENT 01B
69620 Federal Register/Vol. 64, No. 238/Monday, December 13, 1999fProposed Rules 

violation of the Act and of this part will (b) Such product, when distributed in requiring such person to appear and 

be refused admission into the customs commerce, or any container in which it give testimony, or to appear and 

territory of the United States under rules is enclosed when so distributed, bears a produce documents. Such court can 

issued by the Secretary of the Treasury, stamp or label stating that such covered punish the failure to obey such order as 

except that the Secretary of the Treasury product is intended for export. a contempt thereof. 

may. by such rules, authorize the 

importation of such covered product 1431.606 Subpoena' 1 431.607 Confidentiality. 

upon such terms and conditions Under sections 329(a) and 345 of the 

(including the furnishing of a bond) as Act* for Purposes of carrying out this Under the provisions of 10 CFR 

may appear to the secretary of~reasury part, the Secretary or the Secretary's 1004.11, Person submitting 

appropriate to ensure that such covered designee, may sign and issue subpoenas information or data which the Person 

product will not violate the Act and this for the attendance and testimony of believes to be confidential and exempt 

part, or will be exported or abandoned witnesses and the production of by law from public disclosure should 

to the United States. relevant books, records, papers, and submit one complete copy, and fifteen 

other documents, and administer the copies from which the information 

1 431.605 Exported equipment. oaths. The Secretary must pay witnesses believed to be confidential has been 

Under sections 330 and 345 of the summoned under the provisions of this deleted. In accordance with the 

Act, this part does not apply to any section the same fees and mileage as procedures established at 10 CFR 

commercial HVAC & WH product if: paid to witnesses in the Courts of the 1004.11, the Secretary must make his 

(a) Such product is manufactured, United States. In case of contumacy by, own determination with regard to any sold, or held for sale for export from the or refusal to obey a subpoena served claim that information submitted be United States (or such product was upon, any persons subject to this Part, exempt from disclosure. 

imported for export), unless such the Secretary may seek an order from 

product is, in fact, distributed in the District Court of the United States [FR Doc. 99-31670 Filed 12-10-99; 8:45 am1 

commerce for use in the United States, for any District in which such person is BlLUNG CODE 6.%0-0i-P 

and found or resides or transacts business 

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EE-RM/TP-99-450 COMMENT 01B