[Federal Register Volume 75, Number 88 (Friday, May 7, 2010)]
[Proposed Rules]
[Pages 25121-25124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10894]


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DEPARTMENT OF ENERGY

10 CFR Parts 430 and 431

[Docket No. EERE-2010-BT-CE-0014]
RIN 1904-AC23


Revisions to Energy Efficiency Enforcement Regulations

AGENCY: Office of Energy Efficiency and Renewable Energy and Office of 
the General Counsel, Department of Energy.

ACTION: Request for Information (RFI); request for comment.

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SUMMARY: The U.S. Department of Energy (DOE or the ``Department'') 
intends to expand and revise its existing energy efficiency enforcement 
regulations for certain consumer products and commercial and industrial 
equipment covered under the Energy Policy and Conservation Act of 1975, 
as amended (EPCA or the ``Act''). These regulations provide for 
manufacturer submission of compliance statements and certification 
reports to DOE, maintenance of compliance records by manufacturers, and 
the availability of enforcement actions for improper certification or 
upon a determination of noncompliance. To facilitate this process and 
to allow interested parties to provide suggestions, comments, and 
information, DOE is publishing this request for information. This 
request identifies several areas on which DOE is particularly 
interested in receiving information; however, any input and suggestions 
considered relevant to the topic are welcome.

DATES: Written comments and information are requested on or before June 
7, 2010.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at http://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments, identified by docket number EERE-2010-BT-
CE-0014, by any of the following methods:
    <bullet> E-mail: to <a href="/cdn-cgi/l/email-protection#33765d555c4150565e565d4761757a735b421d777c761d545c45"><span class="__cf_email__" data-cfemail="b2f7dcd4ddc0d1d7dfd7dcc6e0f4fbf2dac39cf6fdf79cd5ddc4">[email protected]</span></a>. Include EERE-2010-
BT-CE-0014 in the subject line of the message.
    <bullet> Mail: Ms. Brenda Edwards, U.S. Department of Energy, 
Building Technologies Program, Mailstop EE-2J, Revisions to Energy 
Efficiency Enforcement Regulations, EERE-2010-BT-CE-0014, 1000 
Independence Avenue, SW., Washington, DC 20585-0121. Phone: (202) 586-
2945. Please submit one signed paper original.
    <bullet> Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy,

[[Page 25122]]

Building Technologies Program, 6th Floor, 950 L'Enfant Plaza, SW., 
Washington, DC 20024. Phone: (202) 586-2945. Please submit one signed 
paper original.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Direct requests for additional 
information may be sent to Ms. Celia Sher, U.S. Department of Energy, 
Office of the General Counsel, Forrestal Building, GC-71, 1000 
Independence Avenue, SW., Washington, DC 20585. Telephone: 202-287-
6122. E-mail: <a href="/cdn-cgi/l/email-protection#83c0e6efeae2add0ebe6f1c3ebf2ade7ece6ade4ecf5"><span class="__cf_email__" data-cfemail="9bd8fef7f2fab5c8f3fee9dbf3eab5fff4feb5fcf4ed">[email protected]</span></a>; and Mr. Richard Karney, U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121. Telephone: 202-586-9449. E-mail: 
<a href="/cdn-cgi/l/email-protection#8fdde6ece7eefdeba1c4eefde1eaf6cfeaeaa1ebe0eaa1e8e0f9"><span class="__cf_email__" data-cfemail="8ddfe4eee5ecffe9a3c6ecffe3e8f4cde8e8a3e9e2e8a3eae2fb">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
    Authority and Background: EPCA authorizes DOE to enforce compliance 
with the energy and water conservation standards (all references herein 
referring to energy use and consumption include water use and 
consumption; all references to energy efficiency include water 
conservation) established for certain consumer products and commercial 
equipment. 42 U.S.C. 6299-6305 (consumer products), 6316 (commercial 
and industrial equipment). To ensure that all covered products 
distributed in the United States comply with DOE's energy conservation 
standards, the Department has promulgated enforcement regulations that 
include specific certification and compliance requirements. See Title 
10 of the Code of Federal Regulations (10 CFR) part 430, subpart F; 10 
CFR part 431, subparts B, K, S, T, U, and V.
    The Department is considering revising its enforcement procedures 
to ensure that all of its energy efficiency regulations are rigorously 
and consistently enforced. The Department is issuing this initial 
request for information to allow interested parties an opportunity to 
provide information that will assist DOE in reforming the existing 
enforcement process. This initial request will be followed by a notice 
of proposed rulemaking that will be based on the information received 
as a result of this notice and other data and information gathered by 
DOE.

Public Participation

A. Submission of Information

    DOE will accept comments in response to this RFI under the timeline 
provided in the DATES section above. Comments submitted to the 
Department through the eRulemaking Portal or by e-mail should be 
provided in WordPerfect, Microsoft Word, PDF, or text file format. 
Those responding should avoid the use of special characters or any form 
of encryption, and wherever possible, comments should include the 
electronic signature of the author. Comments submitted to the 
Department by mail or hand delivery/courier should include one signed 
original paper copy. No telefacsimiles will be accepted.
    Comments submitted in response to this notice will become a matter 
of public record and will be made publicly available.
    The Department encourages interested parties to contact DOE if they 
would like to meet in person to discuss their comments. The 
Department's policy governing ex parte communications is posted on the 
Office of the General Counsel's Web site at: http://www.gc.energy.gov/1309.htm.

B. Issues on Which DOE Seeks Information

    For this RFI, DOE requests comments, information, and 
recommendations on the following concepts for the purpose of revising 
current enforcement regulations in Parts 430 and 431 of 10 CFR. As set 
forth below, we seek comment on DOE's requirements for (1) 
Certification; (2) Enforcement Testing and Adjudication; (3) 
Verification Testing; (4) Waivers; and (5) the Application of our 
Regulations to Distinctive Products. The sequence of these proposals 
does not reflect any specific DOE preference.
(1) Certification Requirements
    a. Under existing Department rules, manufacturers of covered 
products must satisfy a one-time certification requirement for each 
basic model. DOE would like to establish an annual certification 
requirement, similar to the Federal Trade Commission's (FTC) reporting 
requirements under the FTC's Appliance Labeling Rule (see 16 CFR 
305.8). DOE is also considering options to consolidate filings with 
FTC, the Environmental Protection Agency (EPA) and other agencies, as 
appropriate, to reduce the reporting burdens on manufacturers. To the 
extent there are covered products not already required to file annual 
reports with FTC, this would increase the reporting burden on the 
manufacturers of those products. What are the costs and benefits of 
switching to an annual filing process for certification?
    b. DOE is also considering implementing a recertification 
requirement when there is a change to a basic model that either 
increases or decreases energy efficiency or energy consumption. Section 
10 CFR 430.62(b) presently provides for such reporting to DOE only if 
there is a change that increases energy consumption or decreases energy 
efficiency. This system creates a disconnect between the information 
certified to DOE and the energy consumption or energy efficiency of 
products actually on the market. DOE is looking for ways to have a more 
current and complete picture of the energy consumption and energy 
efficiency of the covered products being distributed in the U.S. 
Requiring recertification for any change in energy consumption or 
energy efficiency is one way to address this issue. With regard to 
recertification, should the Department establish a threshold percentage 
change in energy consumption or energy efficiency that must be reached 
before any recertification requirement is triggered? If we move to such 
a system, should the threshold percentage be product specific? Are 
there reasons why DOE should not require recertification for energy 
efficiency improvements? For example, would such a requirement create a 
disincentive to making such improvements? If so, to what extent? Are 
there alternative ways to address the Department's interest in 
obtaining more current and complete certification data?
    c. In conjunction with the possible recertification requirement 
referenced above, DOE is interested in pursuing improvements to the 
manner in which basic model numbers are designated, so that the number 
that is provided to DOE for certification is clearly associated with 
the model number used to identify the unit in the market. A more 
unified numbering system would assist the Department and the public in 
identifying the market-based model number that corresponds with what is 
certified to DOE.
    d. Under existing regulations, the sampling procedures to be used 
for compliance certification purposes are set forth in 10 CFR 430.24, 
and the sampling procedures to be used for enforcement testing (to 
determine compliance with the applicable energy conservation standard) 
are set forth in

[[Page 25123]]

Appendix B to Subpart F of Part 430. The Department seeks comment 
regarding any needed changes in the current sampling plans and the 
reasons the changes are warranted for a given product. DOE seeks 
comment on whether the sampling procedures for compliance certification 
and enforcement testing should be identical.
    e. The regulations currently permit in-house, as well as 
independent, certification testing. In light of issues identified 
through DOE's recent enforcement efforts and the Government 
Accountability Office's recent report on ENERGY STAR, DOE requests 
comment on whether all covered products should be required to be 
independently tested for certification purposes.
    f. Currently, the certification regulations allow a manufacturer or 
private labeler to elect to use a third party to submit certification 
reports to DOE. Should DOE continue to permit this practice? If so, 
what recourse should be available if a third party fails to follow 
through on filing for the manufacturer or labeler? Should that recourse 
be available if the third party fails just once to file on behalf of 
the manufacturer or labeler? Should DOE disallow a third party with a 
history of poor performance (e.g., failure to submit certification 
reports, submission of inaccurate information, submission of incomplete 
information) from acting as a third party representative?
(2) Enforcement Testing and Adjudication
    a. Pursuant to EPCA, DOE has authority to initiate enforcement 
actions to ensure compliance with its standards. The current 
regulations provide for enforcement testing upon DOE's receipt of 
written information that a covered product may be violating a standard. 
DOE contemplates revising its procedures to allow the Department more 
flexibility in its initiation of enforcement actions. For example, DOE 
is considering initiating and performing its own testing at the DOE-
owned National Energy Technology Laboratory (NETL) Appliance Technology 
Evaluation Center (ATEC). DOE seeks comments on the use of its own 
facility for testing and the relationship of DOE testing as compared to 
industry testing.
    In addition, DOE contemplates initiating enforcement actions, as 
needed, in response to credible information, or with reference to a set 
of established factors, such as: Manufacturer history of non-
compliance; product class history of non-compliance; third party 
referrals from other regulatory agencies, advocacy groups, consumers, 
or competitors; models or technologies new to the marketplace; or other 
factors indicating that a model may not comply with the applicable 
standard. The Department seeks comment on this concept. Information 
relating to enforcement testing is also requested on the following:
    (i) Unit selection. How should units be selected for enforcement 
testing? For example, should the units be manufacturer provided, 
supplied by the manufacturer's distributor, obtained off-the-shelf from 
a retailer, or should DOE have the ability to choose from any of these 
options? Should the cost allocation for the unit be the same regardless 
of how the product is obtained (e.g., off-the-shelf or manufacturer 
provided)?
    Under the current rules for enforcement testing, a manufacturer in 
receipt of a DOE test notice must ship a select number of units for 
testing as specified on the notice. In situations where the 
manufacturer keeps limited inventory, the manufacturer may need to 
build units specifically for enforcement testing, rather than providing 
DOE off-the-shelf, or already manufactured units. This creates a 
circumstance vulnerable to bias, which could undermine the overall 
effectiveness of enforcement testing. Are there suggestions regarding 
how the Department should address unit selection in these situations?
    (ii) Cost allocation for testing. Should the cost of performing the 
enforcement testing be assumed by the manufacturer or DOE? Should the 
cost allocation of the testing be different if the product is found in 
compliance? What other factors should be taken into consideration when 
determining how to distribute the cost of testing?
    (iii) Sampling plan. The Department seeks comment regarding any 
needed changes in the current enforcement sampling plans and the 
reasons the changes are warranted for a given product. As discussed 
above, the Department seeks comment regarding the adequacy of the 
current sampling plan for enforcement testing and whether the plans for 
enforcement and certification testing should be identical. See Part B, 
Section (1)d. above.
    (iv) Manufacturer role. How should manufacturers be apprised of 
enforcement testing steps, including: Test set up; test conditions; and 
test data and reports? Should manufacturers have the opportunity to do 
additional testing? If so, what conditions and timeframe should govern 
such testing?
(3) Verification Testing
    a. DOE is considering instituting a new requirement for periodic 
verification testing that would be applicable to all basic models 
certified with DOE. This requirement would be separate from enforcement 
testing and would be used to verify that the units distributed into 
commerce continue to be at the certified levels. DOE seeks comment on 
whether DOE should require manufacturers and/or private labelers to 
perform verification testing according to specified conditions and 
criteria.
    b. With regard to such verification testing, the Department seeks 
comment on the following conditions and criteria:
Information Flow
    (i) With what frequency should verification testing be required? 
What specific criteria should be used? Should this be an annual 
requirement?
    (ii) What percentage of basic models should be verification tested 
annually, and how should units be selected? How many units of each 
model should be tested? What level of tolerance would be acceptable if 
only one unit is tested?
    (iii) What level of information resulting from the verification 
testing should be communicated to DOE (e.g., test data, test reports, 
final results)?
    (iv) When and with what frequency should verification testing 
information be communicated to DOE? Should performance of verification 
testing be documented on the certification report?
    (v) What steps should be taken if a basic model fails the 
verification testing? What information should be communicated to DOE 
and when should it be communicated?
    (vi) What level of access should DOE and its representatives have 
to testing done pursuant to DOE regulations (such as the ability to 
observe testing)?
Testing Laboratories
    (i) DOE contemplates that testing done to verify compliance would 
be performed by independent labs. What level of independence from the 
manufacturer should be required? We also seek comment on whether we 
should require that verification testing be done by a different lab 
than the lab that performed the certification testing.
    (ii) DOE understands that some industry associations have in place 
or are currently developing verification testing programs. How should 
such industry verification programs tie into DOE's verification testing 
process? How would ties to such programs affect those manufacturers 
that are not members of industry associations? What information

[[Page 25124]]

should verification programs provide to DOE (i.e., test reports) and 
with what frequency?
    (iii) Should DOE require labs to be accredited to international 
standards such as International Organization for Standardization/
International Electrotechnical Commission (ISO/IEC) 17025, or 
specifically accredited to perform DOE testing? Should labs that 
manufacturers use for verification testing be accredited by DOE? By an 
accreditation body like the National Institute of Standards and 
Technology's National Voluntary Laboratory Accreditation Program?
    (iv) What conditions should DOE require for labs doing verification 
testing to ensure unbiased, consistent, and robust results? For 
example, should DOE require that all labs performing verification 
testing be calibrated with the same frequency, in order to ensure 
consistency across labs? Should all verification testing labs be 
required to participate in round robin testing? How should such round 
robin testing be conducted to ensure accurate and consistent lab 
results?
Cost
    (i) Should verification testing be paid for by the manufacturer or 
private labeler? DOE requests comments regarding the cost burden placed 
on manufacturers for the above described verification testing. Please 
provide a detailed description of the costs and supporting information.
    c. DOE seeks comment on whether it should conduct its own random 
verification testing of products separate from any required 
manufacturer verification testing. If so, what conditions and criteria 
should govern DOE performed verification testing?
(4) Waivers
    Under existing regulations in 10 CFR 430.27, manufacturers have the 
option of seeking a waiver from the test procedure when a basic model 
contains a design characteristic that either prevents testing according 
to the prescribed test procedures or causes the test procedure to 
evaluate the basic model in a manner so unrepresentative of the model's 
true energy consumption characteristics as to provide materially 
inaccurate comparative data. DOE is considering establishing a 
mandatory waiver requirement, which would obligate manufacturers to 
obtain a waiver in those instances where the test procedure does not 
evaluate the energy or water consumption characteristics in a 
representative manner or where the test procedure yields materially 
inaccurate comparative data. This requirement would apply whether the 
product consumes more energy or less energy than would be measured by 
the applicable test procedure. DOE requests comments on this concept.
(5) Application of Regulations to Distinctive Products
    DOE has an interest in creating a consistent, uniform enforcement 
framework across industries, manufacturers and products. Deviations 
from this approach must be justified based on distinctive product 
characteristics. We are interested in comments on the following 
questions relating to products that may justify unique approaches to 
certification, verification, and enforcement:
    a. DOE understands some niche products or large commercial products 
are manufactured at very low quantities on a made-to-order basis. How 
should DOE's testing requirements and procedures be applied to these 
products? For example, how should units of these products be selected 
for testing?
    b. Some products, such as electric motors, are distributed in 
commerce or imported into the U.S. as components of other products 
where the component product is not readily accessible. When products 
with regulated components are imported into the U.S., how can DOE best 
ensure that the components are compliant with U.S. regulations?
    Docket: For direct access to the docket to read background 
documents, or comments received, visit the U.S. Department of Energy, 
Resource Room of the Building Technologies Program, 950 L'Enfant Plaza, 
SW., Suite 600, Washington, DC, 20024, (202) 586-2945, between 9 a.m. 
and 4 p.m., Monday through Friday, except Federal holidays. Please call 
Ms. Brenda Edwards at the above telephone number for additional 
information regarding visiting the Resource Room.
    Procedural Requirements: Today's regulatory action has been 
determined not to be a significant regulatory action under section 
3(f)(1) of Executive Order 12866, ``Regulatory Planning and Review'', 
58 FR 51735 (Oct. 4, 1993).
    Statutory Authority: 42 U.S.C. 6299-6305; 6316.

    Issued in Washington, DC, on May 4, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.
Scott Blake Harris,
General Counsel.
[FR Doc. 2010-10894 Filed 5-6-10; 8:45 am]
BILLING CODE 6450-01-P


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