[Federal Register Volume 75, Number 179 (Thursday, September 16, 2010)]
[Proposed Rules]
[Pages 56796-56832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22353]



[[Page 56795]]

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Part III





Department of Energy





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10 CFR Parts 429, 430 and 431



Energy Conservation Program: Certification, Compliance, and Enforcement 
for Consumer Products and Commercial and Industrial Equipment; Proposed 
Rule

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

[[Page 56796]]


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DEPARTMENT OF ENERGY

10 CFR Parts 429, 430 and 431

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


Energy Conservation Program: Certification, Compliance, and 
Enforcement for Consumer Products and Commercial and Industrial 
Equipment

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

ACTION: Notice of proposed rulemaking and public meeting.

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SUMMARY: The U.S. Department of Energy (DOE or the ``Department'') is 
proposing to revise and expand its existing certification, compliance, 
and enforcement regulations for certain consumer products and 
commercial and industrial equipment covered under the Energy Policy and 
Conservation Act of 1975, as amended (EPCA or the ``Act''). These 
regulations provide for sampling plans used in determining compliance 
with existing standards, manufacturer submission of compliance 
statements and certification reports to DOE, maintenance of compliance 
records by manufacturers, and the availability of enforcement actions 
for improper certification or noncompliance with an applicable 
standard. Ultimately, these proposals will allow DOE to systematically 
enforce applicable energy and water conservation standards for covered 
products and covered equipment and provide for more accurate, 
comprehensive information about the energy and water use 
characteristics of products sold in the United States. Additionally, 
today's notice announces a public meeting on the proposed amendments.

DATES: DOE will hold a public meeting on Thursday, September 23, 2010, 
from 9 a.m. to 4 p.m., in Washington, DC. DOE must receive requests to 
speak at the public meeting before 4 p.m., Thursday, September 23, 
2010. Additionally, DOE plans to conduct the public meeting via 
webinar. To participate via webinar, DOE must be notified by no later 
than Thursday, September 16, 2010. Participants seeking to present 
statements in person during the meeting must submit to DOE a signed 
original and an electronic copy of statements to be given at the public 
meeting before 4 p.m., Thursday, September 23, 2010.
    DOE will accept comments, data, and information regarding this 
notice of proposed rulemaking (NOPR) before and after the public 
meeting but no later than October 18, 2010. See section V, ``Public 
Participation,'' of this NOPR for details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at http://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments, identified by docket number EERE-2010-BT-
CE-0014, by any of the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#236060660e111312130e61770e60660e131312176346460d474c460d444c55"><span class="__cf_email__" data-cfemail="abe8e8ee86999b9a9b86e9ff86e8ee869b9b9a9febcece85cfc4ce85ccc4dd">[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, Building Technologies Program, 6th Floor, 950 L'Enfant 
Plaza, SW., Washington, DC 20024. Phone: (202) 586-2945. Please submit 
one signed paper original.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. Note that all comments 
received will be posted without change, including any personal 
information provided.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121. Telephone: 202-586-6590. E-mail: 
<a href="/cdn-cgi/l/email-protection#3677455e5a534f1877445b4542445958517653531852595318515940"><span class="__cf_email__" data-cfemail="2667554e4a435f0867544b5552544948416643430842494308414950">[email protected]</span></a>; and Ms. Celia Sher, U.S. Department of 
Energy, Office of the General Counsel, Forrestal Building, GC-71, 1000 
Independence Avenue, SW., Washington, DC 20585. Telephone: 202-287-
6122. E-mail: <a href="/cdn-cgi/l/email-protection#450620292c246b162d2037052d346b212a206b222a33"><span class="__cf_email__" data-cfemail="83c0e6efeae2add0ebe6f1c3ebf2ade7ece6ade4ecf5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Authority and Background
II. Summary of the Proposal
    A. Reorganization of DOE's Existing Certification, Compliance, 
and Enforcement Regulations
    B. Applying DOE's Existing Certification, Compliance, and 
Enforcement Regulations to Other Consumer Products and Commercial 
and Industrial Equipment
    C. Certification
    D. Enforcement Testing and Adjudication
III. Discussion of Specific Revisions to DOE's Certification, 
Compliance, and Enforcement Regulations and Comments Received in 
Response to the RFI
    A. Basic Model Provisions
    1. Basic Model Certification
    2. Basic Model Numbers
    B. Certification
    1. Annual Certification Requirements
    2. Filings Consolidation With FTC
    3. Revisions to the Reporting Requirements, General
    4. Product Specific Revisions to the Reporting Requirements
    5. Certifying Entities
    6. Third Party Representation
    7. Submission of Certification Reports
    8. Initial Certification and Notice of Discontinuance
    9. Certification Testing
    a. In-House vs. Independent Testing
    b. Sampling Procedures for Certification Testing
    c. Provisions Specific to Commercial HVAC and WH Equipment, 
Including the Use of AEDMs and VICPs
    10. Records
    a. Maintenance of Records
    b. Public Records
    C. Enforcement Testing and Adjudication
    1. Enforcement Testing
    a. Initiation of Enforcement Action
    b. Test Notice
    c. Sampling for Enforcement Testing
    d. Test Procedure Guidance and Enforcement Testing
    e. Test Unit Selection
    f. Testing at Manufacturer's Option
    g. Cost Allocation for Testing
    2. Adjudication
    a. Improper Certification
    b. Failure To Test
    c. Distribution in Commerce After Notice of Noncompliance 
Determination
    d. Knowing Misrepresentation
    e. Penalties
    f. Imposition of Additional Certification Testing Requirements 
as Remedy for Non-Compliance
    g. Compromise and Settlement
    D. Verification Testing
    E. Waivers
    F. Additional Product Specific Discussions and Issues for Which 
DOE Continues To Seek Comment
    1. Clarification of Entity Responsible for Compliance for Walk-
In Coolers or Freezers
    2. Submission of Data Requirements for Fluorescent Lamp Ballast
    3. Certification, Compliance, and Enforcement for Electric 
Motors
    4. Enforcement for Imports and Exports
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    1. Reasons for the Proposed Rule
    2. Objectives of and Legal Basis for the Proposed Rule
    3. Description and Estimated Number of Small Entities Regulated

[[Page 56797]]

    4. Description and Estimate of Compliance Requirements
    5. Duplication, Overlap, and Conflict With Other Rules and 
Regulations
    6. Significant Alternatives to the Rule
    C. Review Under the Paperwork Reduction Act
    1. Description of the Requirements
    2. Method of Collection
    3. Data
    4. Comments
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
V. Public Participation
    A. Attendance at Public Meeting
    B. Procedure for Submitting Requests To Speak
    C. Conduct of Public Meeting
    D. Submission of Comments
    E. Issues on Which DOE Seeks Comment
VI. Approval of the Office of the Secretary

I. Authority and Background

    Title III of the Energy Policy and Conservation Act of 1975, as 
amended (``EPCA'' or, in context, ``the Act'') sets forth a variety of 
provisions designed to improve energy efficiency. Part A of Title III 
(42 U.S.C. 6291-6309) provides for the Energy Conservation Program for 
Consumer Products Other Than Automobiles. The National Energy 
Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA to add 
Part A-1 of Title III, which established an energy conservation program 
for certain industrial equipment. (42 U.S.C. 6311-6317) \1\
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    \1\ For editorial reasons, Parts B (consumer products) and C 
(commercial equipment) of Title III of EPCA were re-designated as 
parts A and A-1, respectively, in the United States Code.
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    Under the Act, the regulatory program consists of three parts: 
Labeling, testing, and Federal conservation standards, which include 
energy conservation, water conservation and design standards. The 
Federal Trade Commission (FTC) is primarily responsible for labeling 
consumer products, and DOE implements the remainder of the program. The 
testing requirements consist of test procedures prescribed under the 
authority of EPCA, which are used to aid in the development of 
standards for covered products or covered equipment, to make 
representations about equipment efficiency, and to determine whether 
covered products or covered equipment comply with standards promulgated 
under EPCA.
    Sections 6299-6305, and 6316 of EPCA authorize DOE to enforce 
compliance with the energy and water conservation standards (all non-
product specific references herein referring to energy use and 
consumption include water use and consumption; all references to energy 
efficiency include water efficiency) established for certain consumer 
products and commercial equipment. (42 U.S.C. 6299-6305 (consumer 
products), 6316 (commercial equipment)) To ensure that all covered 
products and covered equipment distributed in the United States comply 
with DOE's conservation standards, DOE has promulgated enforcement 
regulations that include specific certification and compliance 
requirements. See 10 CFR part 430, subpart F; 10 CFR 430.23-25; 10 CFR 
part 431, subparts B, J, K, S, T, U, and V.
    On May 7, 2010, the Department published in the Federal Register a 
Request for Information (RFI) regarding Revisions to Energy Efficiency 
Enforcement Regulations. 75 FR 25121. The RFI requested suggestions, 
comments, and information relating to the Department's intent to expand 
and revise its existing energy efficiency enforcement regulations for 
consumer products and commercial and industrial equipment covered under 
EPCA. The comment period for written submissions closed on June 7, 
2010.
    The record of the RFI reflects that the consideration of many of 
the procedural changes to DOE's certification requirements and 
enforcement process are relatively straightforward, while other changes 
under consideration, such as the creation of a verification testing 
requirement, raise more complicated and nuanced issues. Even relatively 
simple changes, however, can greatly advance the effective enforcement 
of DOE's conservation standards and regulations. Therefore, today's 
NOPR focuses on promptly advancing two aspects of the DOE's enforcement 
regime: Certification requirements and enforcement procedures. In 
addition, this notice proposes consolidating and standardizing, where 
possible, all of the certification, compliance, and enforcement 
requirements for both consumer products and commercial equipment into a 
new 10 CFR Part 429. In all cases, the Department's goals are to 
establish a uniform, systematic, and fair approach to certification, 
compliance, and enforcement that will allow the Department to 
effectively enforce its standards and ensure a level playing field in 
the marketplace without unduly burdening regulated entities.
    While not addressed here, DOE anticipates addressing the remaining 
topics outlined in the RFI and additional issues regarding 
certification, compliance, and enforcement, including verification 
testing requirements, in a subsequent rulemaking. To that end, today's 
NOPR seeks comment on a variety of issues, which will be more fully 
addressed in a second certification, compliance, and enforcement 
rulemaking, including: Revisions to sampling plans for certification 
and enforcement testing, consideration of compliance requirements for 
other features affecting the energy and water efficiency of a product, 
additional provisions for imports, voluntary industry certification 
programs (VICP), verification testing requirements, laboratory 
accreditation, and rounding. DOE continues to seek views from all 
interested parties on these issues and how they can be best developed 
to ensure effective enforcement.

II. Summary of the Proposal

    In today's notice, DOE proposes to revise its certification and 
enforcement regulations to encourage compliance, achieve energy 
savings, and prevent those manufacturers that do not adhere to the 
rules from having a competitive advantage over those that do. As 
summarized below, the notice proposes revisions to existing 
certification, compliance, enforcement, and adjudication procedures 
applicable to both consumer products and commercial and industrial 
equipment.

A. Reorganization of DOE's Existing Certification, Compliance, and 
Enforcement Regulations

    With the exception of electric motors, DOE is proposing to move all 
of the existing certification, compliance, and enforcement regulations 
currently scattered throughout parts 430 and 431 to a new part 429. DOE 
has consolidated similar provisions for both consumer products and 
commercial and industrial equipment into one section. As an example, 
all of the submission of data requirements that are currently found in 
10 CFR 430.62, 431.327, and 431.371 will be found in 10 CFR 429.19 for 
consumer products and commercial and industrial equipment once DOE's 
proposals become final. While DOE is not proposing revisions to the 
requirements for electric motors in today's NOPR, DOE does intend to 
propose to move and harmonize, where possible, the certification, 
compliance, and enforcement provisions for electric motors in part 429, 
as well as add an annual certification requirement, in the second 
rulemaking.

[[Page 56798]]

B. Applying DOE's Existing Certification, Compliance, and Enforcement 
Regulations to Other Consumer Products and Commercial and Industrial 
Equipment

    DOE intends to apply certification, compliance, and enforcement 
regulations to all covered products and covered equipment. Thus, the 
Department also proposes to establish certification and enforcement 
requirements for the consumer products and commercial and industrial 
equipment that have been added to DOE's programs by either DOE's 
completion of energy and water conservation standards rulemakings or 
the Energy Independence and Security Act of 2007. These products 
include fluorescent lamp ballasts, general service incandescent lamps, 
candelabra base incandescent lamps, intermediate base incandescent 
lamps, certain types of commercial refrigeration equipment, beverage 
vending machines, and walk-in coolers and freezers.

C. Certification

    Existing certification requirements direct manufacturers of covered 
consumer products and commercial and industrial equipment to certify, 
by means of a compliance statement and a certification report, that 
each basic model meets the applicable energy conservation, water 
conservation, and/or design standard before distributing it in commerce 
within the United States. See 10 CFR 430.62 (consumer products); 10 CFR 
431.36, 430.371 (commercial equipment). For consumer products, much of 
the information required to be reported to DOE must also be reported 
annually to the FTC. In light of these similarities in reporting, DOE 
desires to eventually work towards the creation of a single, annual 
reporting mechanism for DOE and FTC, as appropriate. While today's 
notice does not yet propose such a shared annual reporting mechanism 
for DOE and FTC, DOE is proposing to include an annual reporting 
requirement for all covered products and covered equipment. DOE has 
aligned its annual reporting schedule with FTC's reporting schedule for 
consumer products. Such annualized reporting will provide DOE with more 
accurate and comprehensive information regarding the industries subject 
to DOE's regulations and a better understanding of the efficiency 
characteristics of products distributed in commerce.
    In harmonizing the certification requirements for consumer products 
and commercial and industrial equipment, DOE believes it is also 
appropriate to provide more transparency in the certification report 
itself. As currently written, the Department's rules for certification 
reports do not always provide DOE with a complete set of information to 
verify that a covered product or covered equipment is compliant with 
DOE's regulations. Thus, DOE is proposing to expand the information 
submitted by manufacturers, including general requirements applicable 
to all products and product specific requirements. See section 429.19 
of the proposed regulatory text for additional details. DOE is also 
proposing to make clear that all non-proprietary certification 
information will be considered public information subject to 
disclosure. By requiring additional relevant data to be supplied in the 
certification report, DOE will be able to more effectively enforce 
compliance with the conservation standards. Additionally, the public 
would have information to use in evaluating the energy efficiency of a 
covered product or covered equipment. Overall, the proposed revisions 
have been crafted to balance any incremental reporting burden on 
manufacturers against the Department's need for comprehensive, timely, 
and accurate information about regulated products being sold in the 
United States.

D. Enforcement Testing and Adjudication

    In addition, DOE is proposing regulations to make clear the extent 
of the Department's enforcement authority under EPCA and the 
Department's process for exercising that authority. DOE desires to make 
more transparent the process by which it currently exercises its 
statutory authority to: (1) Request information, by letter or subpoena, 
from manufacturers concerning the compliance of a basic model with an 
applicable conservation standard; (2) test or examine units of a given 
basic model to determine compliance with an applicable standard; and 
(3) take appropriate enforcement action as warranted. To that end, DOE 
proposes to establish a standardized process for seeking injunctive 
relief, civil penalties, or other remedies for violations of 
conservation standards and/or certification requirements. This includes 
developing a standard method for responding to complaints of non-
compliance, notifying the allegedly non-compliant manufacturer of the 
complaint, and collecting any needed data via enforcement testing. 
Revising the current enforcement and adjudication procedures for 
consumer products and commercial and industrial equipment will provide 
certainty and clarity to the regulated industry and will ensure that 
the Department can initiate investigations promptly, respond to 
complaints effectively, and enforce its regulations in a fair and 
timely way.

III. Discussion of Specific Revisions to DOE's Certification, 
Compliance, and Enforcement Regulations and Comments Received in 
Response to the RFI

    In this section, DOE provides a section by section analysis of its 
proposed rule. As discussed above, DOE proposes to add a new Part 429 
to its regulations to address, in one place, the certification, 
compliance, and enforcement of conservation standards for both consumer 
products and commercial and industrial equipment with the exception of 
electric motors. This new part would set forth the certification, 
compliance, and enforcement procedures to be followed to determine 
whether a basic model of a covered product or covered equipment 
complies with the applicable conservation standard.
    DOE received comments from 30 interested parties, including 
manufacturers, trade associations, and advocacy groups. Specifically, 
comments were received from: Plumbing Manufacturers Institute, Alsons 
Corporation, Air-Conditioning, Heating, and Refrigeration Institute, 
National Resource Defense Council, Appliance Standards Awareness 
Project, Bosch and Siemens Home Appliances Group, Heat Transfer 
Products, United CoolAir Corporation, Bob McGarrah, Plumbing Americas, 
Bose Corporation, Intertek, First Company, National Automatic 
Merchandising Association, Mestek, Underwriters Laboratories, Trane, 
Sony Electronics Inc., Earthjustice, Delta Faucet Company, Hansgrohe, 
Consumers Union, Whirlpool Corporation, Association of Home Appliance 
Manufacturers, Shane Holt, General Electric, National Electrical 
Manufacturer's Association, Rheem Manufacturing, Friedrich Air 
Conditioning Co., and American Standard Brands. These comments are 
discussed in more detail below. The full set of comments can be found 
at http://www.regulations.gov.

A. Basic Model Provisions

1. Basic Model Certification
    Under the DOE's existing energy conservation program, DOE has 
applied the ``basic model'' concept to streamline certification and 
compliance and alleviate burden on manufacturers by reducing the amount 
of testing they

[[Page 56799]]

must do to rate the efficiencies of their products. DOE's intent is 
that a manufacturer would treat each group of its models that have 
essentially identical energy consumption or water consumption 
characteristics as a ``basic model,'' such that the manufacturer would 
derive the efficiency rating for all models in the group from testing 
sample units of these models. All of the models in the group would 
comprise the ``basic model,'' and they would all have the same 
efficiency rating. For example, a manufacturer can identify as the same 
basic model black, white, and stainless steel finished dishwasher 
models with the same features and functions. By contrast, a 
manufacturer could produce two identical models of air conditioners 
with essentially the same internal components but which use a different 
control strategy affecting the energy consumption of the unit as 
measured by DOE's test procedure. Even though both models have 
essentially the same physical characteristics, the models have 
different functional characteristics that affect the energy consumption 
and efficiency. 10 CFR Part 430.2(11). Thus, these models would be 
considered by DOE to be two different basic models.
    The Department recognizes, however, that additional clarity as to 
what constitutes ``essentially identical'' energy or water consumption 
across different model designs or modifications for purposes of a basic 
model may be helpful for certain types of products and equipment. To 
provide additional certainty and improve implementation of the basic 
model concept, the Department seeks comment on how manufacturers 
determine that a particular model constitutes a basic model.
    Sections 430.62(b) and 431.371(b) presently provide for 
recertification reporting to DOE if there is a change to a basic model 
that increases energy consumption or decreases energy efficiency. In 
the RFI, DOE sought input on implementing a recertification requirement 
whenever there is a change made to a basic model that increases or 
decreases energy efficiency or energy consumption. Several commenters 
in the manufacturing sector were opposed to this proposal. These filers 
stated that such a requirement would discourage producers from 
introducing product designs that improve energy efficiency and would 
increase cost and reporting burdens on manufacturers. Other commenters 
supported recertification if DOE established a threshold percentage 
that would trigger recertification, or if the recertification 
requirement was product specific. DOE has tentatively determined not to 
impose a separate model modification requirement at this time. However, 
the Department is retaining its requirement that new basic models--
including models that are modified such that they are new basic 
models--must be certified before distribution in commerce. Accordingly, 
the Department is seeking comment to clarify what modifications to an 
existing model make it a new basic model subject to the new model 
certification requirement.
    DOE is interested in information regarding how a manufacturer 
determines that it has made changes to the features or energy use 
characteristics of a basic model so as to constitute a new basic model. 
Specifically, DOE is interested in the types of potential changes 
manufacturers may make to a given model and the difference in the 
energy use characteristics a typical change may have on a per product 
basis. Additionally, DOE seeks comment on whether it should propose a 
specific regulation that requires a new basic model declaration and 
filing when a modification to a given basic model impacts the energy 
characteristics of the product by a given de minimus percentage. If so, 
should these de minimus percentages be product specific, based on the 
manufacturing characteristics of the product and the variability 
experienced in testing? DOE seeks comment on how these de minimus 
percentages might change for each covered product and covered 
equipment. In addition, DOE believes characterizing the types of 
changes that constitute a new basic model will be particularly useful 
in the context of a verification testing program (addressed in III.C of 
this NOPR) in order to determine what fraction of basic models will be 
tested under the program. See Issue 1 under ``Issues on Which DOE Seeks 
Comment'' in section V of this NOPR.
 2. Basic Model Numbers
    In conjunction with the certification requirement described above 
for a basic model, DOE proposes to require that manufacturers change 
the basic model number whenever a new basic model is created. DOE 
believes this would improve the manner in which basic model numbers are 
designated so that the number that is provided to DOE for certification 
is clearly associated with the model number used to identify the unit 
in the market. This more unified approach to numbering changes would 
assist the Department and the public in identifying the market-based 
model number that corresponds with what is certified to DOE.
    DOE received comments from three trade associations and three 
manufacturers in protest of creating a more uniform numbering system. 
These groups stated that requiring a uniform numbering system across 
products, manufacturers, and models is not desirable because it would 
have high implementation costs and create confusion and that DOE should 
focus on ensuring that test reports match model numbers, rather than 
requiring companies to change their model numbering systems to meet DOE 
needs. One advocacy group commented positively on the proposal. To be 
clear, DOE's proposal does not mandate any particular system or 
configuration of numbering models. Manufacturers and private labelers 
remain free to use whatever numbering system they choose. However, DOE 
continues to believe that requiring that the model numbering system, 
whatever it is, include a change in model number for each new basic 
model will allow for more transparency and consumer awareness. Thus, 
DOE proposes to establish a requirement that a new basic model number 
must be designated when a new basic model is created.
    In the RFI, DOE also sought comment on how a basic model should be 
identified such that the number provided to DOE for certification is 
clearly associated with the model number used to identify the unit in 
the market. Accordingly, DOE is proposing to define manufacturer model 
number as, essentially, the unique identifier for the product as it is 
sold. As described above, a basic model can subsume multiple 
manufacturer model numbers. DOE thus suggests that the manufacturer use 
one of the manufacturer model numbers as the basic model and identify 
all the manufacturer model numbers that are covered by that particular 
basic model. DOE believes this will provide further transparency 
between the certifications received by DOE and the model numbers a 
consumer sees in the market.

B. Certification

    DOE proposes the following amendments relating to certification 
requirements. If DOE has obtained OMB clearance for the information 
collection prior to issuance of the final rule, these amendments would 
become effective 30 days following publication of the final rule. The 
compliance date for the annual filing requirements would be the first 
day of the first month following the effective date.

[[Page 56800]]

1. Annual Certification Requirements
    Under existing DOE regulations, manufacturers of certain covered 
products and covered equipment must satisfy a one-time certification 
requirement for each basic model before the basic model can be 
distributed in commerce. DOE is proposing an annual certification 
reporting requirement for each basic model of covered product and 
covered equipment as discussed in section 429.19 of the proposed 
regulatory text. In order to reduce the reporting burdens on 
manufacturers, DOE proposes to consolidate the schedule of reporting 
requirements with the FTC's schedule for consumer products, where 
possible. DOE determined the proposed annual filing schedule based 
generally upon the FTC schedule for similar product types subject to 
annual reporting under the FTC's Appliance Labeling Rule (see 16 CFR 
305.8). For commercial and industrial equipment, DOE is aligning 
similar equipment types with the FTC schedule for consumer products. 
For example, a manufacturer of both residential and commercial air-
conditioning and heating equipment would be required to submit annually 
by July 1st under the proposed modifications. DOE believes aligning the 
reporting schedule for products of similar types will also help reduce 
the number of times annually a manufacturer has to submit information.
    As discussed above, DOE raised the possibility of annual reporting 
requirements in the RFI, and commenters were fairly equally divided in 
their responses to this proposal, with approximately half of commenters 
supporting annual certification and the other half opposed to an annual 
requirement because it would create additional cost and reporting 
burdens. DOE finds that the costs for annual filing would be minimal 
for consumer products, especially since it would be coupled with the 
manufacturer's FTC submission for the same product. Although DOE 
acknowledges there could be small incremental costs for additional 
submissions for certain types of commercial and industrial equipment, 
these filings are needed to ensure that the Department and the public 
has accurate and comprehensive efficiency information.
    A number of commenters objected to DOE imposing annual testing 
requirements. For clarification, however, the proposed annual filing 
requirement is not an annual testing requirement. The proposed revision 
does not require any new or additional testing to be done. The 
Department's pre-existing regulations require that basic models be 
tested to ensure compliance with the applicable standard before the 
unit is first introduced in commerce. The annual filing does not 
require retesting, but rather a yearly submission of the results of the 
testing already done for all models a manufacturer has in distribution 
in that year. In this way, annual submission of certification 
information would assure that DOE has the most current and complete 
picture of efficiency characteristics of covered products and covered 
equipment currently in the marketplace.
2. Filings Consolidation With FTC
    In the RFI, DOE had discussed the possibility of consolidating 
filings with FTC and other agencies such as EPA. In response to a 
discussion of certification reporting requirements in the RFI, four 
commenters supported simplifying the reporting requirements and 
suggested creating a shared database between DOE and FTC for all 
products covered by DOE standards and FTC labels. Three commenters 
objected to the proposal, arguing that such a requirement would add 
additional burdens to those industries that do not participate in the 
FTC program.
    The Department continues to believe that a single Federal database 
for efficiency information would be of great value. At this time, 
however, the Department is consolidating its requirements with FTC's 
schedule only. DOE will continue to consider consolidating filings with 
the FTC or other government agencies in a future certification, 
compliance, and enforcement rulemaking.

3. Revisions to the Reporting Requirements, General

    DOE is proposing to expand the information it is collecting for 
certain covered products and covered equipment to include additional 
details that will help DOE to better enforce its conservation 
standards. Specifically, DOE proposes to revise what information must 
be submitted as a part of a certification filing to ensure that the 
Department obtains the information it needs to effectively carry out 
its statutory enforcement obligations without unnecessarily burdening 
certifying parties. To begin, as a streamlining measure, DOE proposes 
to include the compliance statement as part of the certification 
report, rather than a separate filing, to reduce the number of 
submissions transmitted to DOE. Further, DOE seeks to standardize to 
the extent possible the basic information required for certification of 
all covered products and covered equipment, setting out the basic 
requirements for every certification filing, followed by product-
specific information requirements. Along these lines, DOE proposes that 
the following items be included in certification reports for all basic 
models of all covered products and covered equipment: the manufacturer 
name, the private labeler(s)' name (as applicable), the brand name, the 
basic model number, and the individual model numbers covered by that 
basic model; the sample size and the total number of tests performed; 
and the certifying party's U.S. Importer of Record identification 
numbers assigned by U.S. Customs and Border Protection pursuant to 19 
CFR 24.5, if applicable. This information should be readily available 
to the certifying party and will allow the Department to more 
effectively monitor compliance, investigate complaints, and take 
appropriate enforcement action.
    Additionally, DOE proposes to require manufacturers to submit 
information related to waivers, exemptions, and approved alternative 
rating methodologies along with their certification submissions as 
appropriate. Manufacturers of covered products and covered equipment 
that are not covered under an existing test procedure, or that cannot 
meet a DOE conservation standard, have the option to either seek 
waivers of the test procedures under existing regulations or seek 
exception relief from the conservation standard from DOE's Office of 
Hearings and Appeals (OHA). DOE proposes to require that manufacturers 
who obtain a waiver of test procedures or a grant of exception-based 
standards from OHA specify such information on the certification report 
submitted to the Department. This will serve to eliminate the current 
lengthy records review process the Department must now undertake to 
determine what test procedures or conservation standards apply to a 
certain basic model. It will also allow a manufacturer to tailor the 
certification to its situation rather than causing a manufacturer to 
certify that a product was tested in accordance with the DOE test 
procedure when the product was not, in fact, tested in accordance with 
the DOE test procedure. Similarly, DOE also proposes to require that 
any DOE-allowed alternative method of determining energy consumption or 
efficiency, such as an Alternative Rating Method (ARM) for untested 
split-system central air conditioners or heat pumps, or other 
alternative method of rating, such as

[[Page 56801]]

alternative efficiency determination methods (AEDMs) for commercial 
heating, ventilating, air-conditioning and water heating equipment 
(HVAC and WH) or distribution transformers, be indicated on the 
certification report to provide a clear picture of the test procedures 
or exceptions used as a basis for the certification.
4. Product Specific Revisions to the Reporting Requirements
    As discussed generally above, DOE is proposing new certification 
reporting requirements for fluorescent lamp ballasts, general service 
incandescent lamps, candelabra base incandescent lamps, intermediate 
base incandescent lamps, certain types of commercial refrigeration 
equipment, beverage vending machines, and walk-in coolers and freezers. 
These annual reporting requirements were generally based upon the 
existing reporting requirements for certain types of consumer products 
and commercial and industrial equipment, which require the 
certification of a basic model before it is distributed in commerce.
    In addition, DOE proposes additional product-specific information 
that should be submitted to DOE as a part of the certification filing 
for a variety of consumer products and commercial equipment. DOE 
believes the addition of this information on the certification report 
for these products will provide a more complete set of information on a 
covered product or covered equipment and assist the Department in 
verifying that a covered product or covered equipment is compliant with 
DOE's standards. All of the product specific reporting requirements are 
presented in 10 CFR 429.19(b)(13).
    Lastly, DOE is proposing to revise the certification reporting 
requirements for existing products, where updates have been made to 
DOE's conservation standards. For example, DOE is proposing to modify 
the certification reporting requirements for residential clothes 
washers to add a water factor reporting requirement starting on January 
1, 2011.
5. Certifying Entities
    Currently, DOE's certification regulations allow either the 
manufacturer or private labeler to submit certification reports and 
compliance statements for each basic model. However, this approach 
lacks certainty as to who should submit data to DOE for privately 
labeled products. DOE is interested in removing uncertainty, preventing 
duplicative filings, and having a more comprehensive set of market data 
concerning each covered product and covered equipment. Accordingly, it 
is proposing to require that manufacturers be solely responsible for 
submitting the certification reports to DOE, which would include data 
regarding the manufacturer's information, as well as the private 
labeler's information and/or brand information, where appropriate. By 
placing the reporting burden on manufacturers, which, by statutory 
definition, includes importers, DOE would have more certainty that the 
certification information it receives for a product type is 
comprehensive. DOE also notes that, as discussed more fully below, a 
manufacturer would still have the option of electing to have its 
private labeler act as a third party filer and submit the certification 
report on the manufacturer's behalf.
6. Third Party Representation
    Currently, sections 430.62(e) and 431.371(d) allow a manufacturer 
or private labeler to elect to use a third party to submit 
certification reports to DOE. While DOE intends to continue to permit 
this practice, DOE proposes to make clear in its regulations that it 
may refuse to accept certification reports from a third party with a 
poor history of performance (i.e., failure to properly submit reports 
on behalf of a manufacturer on at least two occasions).
    Most commenters were in agreement that third party submission of 
certification reports should continue to be allowed, with appropriate 
consequences for poor performance, such as improper certification. In 
particular, one trade association and one manufacturer asserted that 
third parties with greater than three failures should be put on 
probation or completely disallowed to submit reports. Other commenters, 
including a consumer advocacy group, suggested that manufacturers, and 
not third parties, should be held accountable for any misfiling by the 
third party.
    The Department agrees there is value in continuing its practice of 
allowing third party submission of certification reports. However, the 
Department proposes to make explicit in its regulations that the 
manufacturer remains ultimately responsible for submission of the 
certification reports to DOE. And, as mentioned, DOE's proposal 
reserves the discretion to disallow a third party filing from a filer 
with a poor history of performance.
7. Submission of Certification Reports
    The Department proposes to make electronic submission of 
certification reports through the Certification Compliance Management 
System (CCMS) found at http://www.regulations.doe.gov/ccms the sole 
method of submission. The CCMS currently has sample templates for 
certain covered products and covered equipment available for 
manufacturers to use when submitting certification data to DOE. DOE 
plans to have these sample templates for all covered products and 
covered equipment when it issues the final rule for this rulemaking. 
DOE believes the availability of electronic filing through the CCMS 
system should reduce reporting burdens, streamline the process, and 
provide the Department with needed information in a standardized, more 
accessible form. This electronic filing system will also ensure that 
records are recorded in a permanent, systematic way. DOE notes that it 
is proposing to remove the certified mail and e-mail options for filing 
certification data that are currently allowed in DOE's regulations.
8. Initial Certification and Notice of Discontinuance
    In addition to the annual certification requirement, DOE proposes 
to retain the requirement in the existing regulations that any new 
basic model be certified before distribution in commerce. This initial 
certification requirement applies to newly manufactured and produced 
basic models as well as models that have been modified in a way that 
changes the model's energy use characteristics and thus constitutes a 
new basic model.
    In addition, the Department proposes to require that discontinued 
models be reported to DOE as part of the next annual certification 
report period from when production of the model has ceased. A 
discontinued model is a model that is no longer distributed in 
commerce. EPCA defines ``distribute in commerce'' as ``to sell in 
commerce, to import, to introduce or deliver for introduction into 
commerce, or to hold for sale or distribution after introduction into 
commerce.'' (42 U.S.C. 6291(16)) Thus, a model has been discontinued 
when it is no longer being sold, or held out for sale or distribution, 
by the manufacturer or private labeler.
9. Certification Testing
In-House vs. Independent Testing
    The regulations currently permit in-house, as well as independent, 
certification testing for determining compliance with DOE's 
performance-based conservation standards. In the RFI, the Department 
requested comments as to whether all covered products and covered 
equipment should

[[Page 56802]]

be required to be independently tested for certification purposes. DOE 
received comments from ten manufacturers and two trade associations in 
protest of this suggestion. These commenters urged that independent 
testing would add no additional benefit to consumers, would increase 
costs and lower profit margins, cause delays which would stifle 
innovation and competition, and put small manufacturers out of 
business. DOE received positive comments from one advocacy group in 
support of the concept, who noted that such testing would ensure a 
higher level of confidence in manufacturer certification. In view of 
the above concerns, DOE recognizes that independent testing for 
purposes of certification may not be appropriate for all manufacturers 
and all industries. Therefore, DOE is maintaining the current 
certification testing procedures of allowing both in-house and 
independent testing. DOE plans to pursue verification testing in a 
future rulemaking and continues to seek comment on the attributes DOE 
should consider as part of its verification testing program. See Issue 
2 under ``Issues on Which DOE Seeks Comment'' in section V of this 
NOPR. The Department believes that a self-certification approach, 
coupled with an appropriate verification program and robust 
enforcement, can facilitate compliance without unduly burdening 
manufacturers.
Sampling Procedures for Certification Testing
    Under existing regulations, the sampling procedures for certain 
consumer products and certain commercial and industrial equipment to be 
used for certification testing are set forth in sections 430.24, 
431.65, 431.135, 431.174, 431.175, 431.197, 431.205, 431.225, 431.265, 
431.295, and 431.328. In the RFI, the Department sought comment 
regarding any needed changes in the current sampling plan for 
certification testing and the reasons the changes are warranted for a 
given product. The majority of comments DOE received on this issue were 
from manufacturers, who were all in agreement that the current sampling 
plans for certification is adequate and do not require change. Two 
trade associations commented similarly. Additionally, one advocacy 
group stated that the sampling plans for certification and enforcement 
testing should be similar, but may vary in some details including how 
the samples are procured, or sample size.
    For this rulemaking, DOE is consolidating existing sampling 
provisions in Part 429 and establishing sampling provisions for the 
types of consumer products and commercial equipment that do not 
currently have them. Section 323(b)(3) of EPCA, 42 U.S.C. 6293(b)(3), 
requires a test procedure be reasonably designed to produce results 
measuring energy efficiency or energy use and not be unduly burdensome 
to conduct. DOE is proposing the use of a statistically meaningful 
sampling procedure for selecting test specimens of consumer products 
and commercial and industrial equipment to reduce the testing burden on 
manufacturers, while giving sufficient assurance that the true mean 
energy efficiency of a basic model meets or exceeds the represented 
measure of energy efficiency. The represented measure of energy 
efficiency is determined by the manufacturer based on the application 
of certification testing and DOE's sampling procedures.
    DOE reviewed the existing sampling plans for consumer products and 
commercial and industrial equipment, which provided guidance on how 
many and which units to test to determine compliance. After reviewing 
the existing certification and enforcement sampling plans for consumer 
products and commercial and industrial equipment, DOE is proposing that 
the manufacturer select a sample at random from a production line and, 
after each unit or group of units is tested, either accept the sample 
or continue sampling and testing additional units until a rating 
determination can be made. As in the existing regulations, DOE does not 
propose a specific sample size for each product because the sample size 
is determined by the validity of the sample and how the mean compares 
to the standard, factors which cannot be determined in advance. 
Moreover, DOE believes that testing a randomly selected sample until a 
determination is reached is a method that arrives at a statistically 
valid decision on the basis of fewer tests than fixed-number sampling. 
As with the existing regulations, DOE is continuing to propose that 
manufacturers randomly select and test a sample of production units of 
a representative basic model, and then calculate a simple average of 
the values to determine the actual mean value of the sample. The 
confidence limits and coefficients are product specific and intended to 
reasonably reflect variations in materials, the manufacturing process, 
and testing tolerances. The proposed sampling plans for certification 
testing can be found in section 10 CFR 429.9 of the regulatory text.
    DOE is continuing to consider further changes to the sampling plans 
for certification testing of all consumer products, including: (1) 
Changes to the product-specific coefficients and the rationale for such 
changes; (2) whether DOE should continue using sampling plans for 
certification testing, which provide manufacturers with the option of 
using the calculated values resulting from applying the criteria set 
forth in proposed section 10 CFR 429.9 or another representative value 
meeting the criteria in proposed section 10 CFR 429.9; (3) whether DOE 
should continue to have different sampling plans for certification 
testing and enforcement testing; and (4) whether DOE should expand the 
submission of data requirements in the certification section to include 
test data and the details of the sampling procedures used for making 
representations of and certifying compliance with the energy and water 
use or efficiency.
    In addition, DOE is considering adding sampling plans and 
tolerances for other features of covered products and covered equipment 
which impact the water or energy characteristics of a product. For 
example, DOE could add a sampling provision for the measured storage 
volume of residential water heaters. The representative value of the 
measured storage volume could then be used in determining the energy 
efficiency of the product. DOE is seeking comment on this approach, and 
the methodologies DOE should consider if it decides to extend the 
sampling provisions to features other than the regulatory metrics. See 
Issue 3 under ``Issues on Which DOE Seeks Comment'' in section V of 
this NOPR.
c. Provisions Specific to Commercial HVAC and WH Equipment, Including 
the Use of AEDMs and VICPs
    Currently, DOE's sampling procedures for certification testing of 
commercial HVAC and WH are based on provisions allowing the use of an 
AEDM and whether a manufacturer participates in a VICP. See 10 CFR 
431.174-176. DOE is continuing to allow the use of AEDMs for commercial 
HVAC and WH equipment once the manufacturer has met the criteria in 10 
CFR 429.23 of the proposed rule. Currently, DOE has provisions 
requiring more stringent criteria for testing and the use of AEDMs for 
those manufacturers opting not to participate in a VICP. Specifically, 
DOE requires non-VICP manufacturers to conduct independent testing, use 
DOE-prescribed sampling plans, and obtain DOE approval of its AEDMs (if 
applicable) before those methods may be used for compliance 
certification purposes. In addition, DOE requires that non-VICP 
manufacturers file a

[[Page 56803]]

compliance statement and certification report directly to DOE.
    In this NOPR, DOE is proposing to simplify the procedures governing 
sampling plans for certification testing, voluntary programs, and AEDM 
verification. Specifically, DOE is proposing one set of procedures for 
all types of commercial HVAC and WH equipment regardless of 
participation in a VICP. In particular, DOE is proposing that the 
sampling procedures currently applicable for non-VICP members be used 
for certification testing of all types of commercial HVAC and WH 
equipment and verification of the AEDM. DOE is proposing to allow 
manufacturers to use both in-house testing facilities and independent 
laboratories at the manufacturer's discretion for certification 
testing. Lastly, DOE is continuing to allow third-party certification 
of compliance statements and certification reports regardless of 
participation in a VICP. DOE believes this approach treats all 
manufacturers equally and will simplify the provisions applicable to 
commercial HVAC and WH equipment.
    Even though DOE wants to encourage the use of voluntary industry 
certification programs, DOE is not proposing modifications to DOE's 
provisions defining VICPs at this time. However, DOE is considering 
imposing a verification testing requirement for all product and 
equipment types. Such a requirement may entail changes to the current 
provisions governing VICPs in the second certification, compliance, and 
enforcement rulemaking. DOE thus seeks comment regarding the criteria 
defining VICPs and the use of VICPs in DOE's certification, compliance, 
and enforcement programs. Specifically, DOE requests comment about the 
requirements and details for verification testing programs (e.g., the 
use of an independent testing laboratory, a specific number of samples 
randomly tested, etc.) and the actions taken by the VICP in conjunction 
with DOE when a unit is found to have failed the verification testing 
program of the VICP. See Issue 4 under ``Issues on Which DOE Seeks 
Comment'' in section V of this NOPR.
10. Records
Maintenance of Records
    DOE proposes to establish a record retention requirement for 
certification reports that corresponds to the time period established 
for retention of test data under sections 430.62(d) and 431.371(d). 
This would require certification reports, along with the underlying 
certification test data that is already required to be retained under 
sections 430.62(d) and 431.371(d), to be retained by the manufacturer 
as long as the model is being distributed in commerce and, for 
discontinued models, for two years from the date that production of a 
basic model has ceased and is no longer being distributed by the 
manufacturer.
b. Public Records
    In response to the RFI, two advocacy groups provided comments in 
support of making certification data publicly available. To that end, 
DOE proposes to clarify in its regulations that the following 
information submitted pursuant to the certification requirements is 
considered public information: the manufacturer's name, brand name, 
model number(s), and all of the product-specific information submitted 
on the certification report.

C. Enforcement Testing and Adjudication

    DOE proposes the following amendments relating to its enforcement 
testing and adjudication requirements.
1. Enforcement Testing
a. Initiation of Enforcement Action
    Pursuant to EPCA, DOE has authority to initiate enforcement actions 
to ensure compliance with its standards. The current regulations 
provide for enforcement testing upon DOE's receipt of written 
information that a covered product or covered equipment may be 
violating a standard. DOE proposes to revise its procedures to make 
clear that, pursuant to section 6296 of EPCA, the Department retains 
the discretion to request data, test, or examine the standard 
compliance of any covered product or covered equipment at any time. DOE 
may initiate enforcement testing on its own and is not required to rely 
solely on receipt of written information from another entity.
    In response to DOE's questions relating to enforcement testing set 
forth in the RFI, three commenters asserted that DOE should have 
broader authority to initiate an enforcement proceeding, while six 
commenters argued that the standard of proof required to initiate a 
proceeding should be higher. Four commenters said they would support 
greater flexibility in enforcement procedures as long as plumbing 
products are excluded from those changes.
    After consideration of these comments, DOE continues to believe 
that it is essential to align its regulations with its broad statutory 
authority under EPCA to initiate enforcement investigations and actions 
to determine if a covered product or covered equipment is compliant. 
This will ensure that the Department can enforce its regulations in a 
timely, effective manner as Congress intended. The enforcement program 
simply cannot be as effective if the Department can only initiate 
enforcement testing upon the receipt of an external complaint--DOE must 
be able to monitor compliance and test products at its own discretion. 
Furthermore, the ability of the Department to request records, test 
products, or examine design standard compliance, at any time, is 
crucial to the deterrent effect of the Department's enforcement 
efforts. Making clear the Department's authority as established by 
Congress to take these actions--in and of itself--will encourage 
compliance. Thus, the Department is proposing regulations for all 
covered products and covered equipment that make plain its authority to 
monitor compliance by requesting data and testing products, at any 
time, and to initiate enforcement investigations and actions based on a 
belief that a covered product or covered equipment is not compliant 
with an applicable standard.
Test Notice
    DOE proposes to change the current requirements relating to the 
time period by which a manufacturer must ship test units of a basic 
model to the testing laboratory pursuant to a test notice. DOE proposes 
to reduce the time period from 5 to 2 days, in order to ensure that the 
enforcement testing process is not unnecessarily delayed. Because 
select units are already boxed for shipping in most cases, DOE believes 
this will not impose additional burden on manufacturers.
Sampling for Enforcement Testing
    The sampling procedures to be used for enforcement testing are set 
forth in Appendix B to Subpart F of Part 430, Appendix B to Subpart K 
of Part 431, Appendix C to Subpart S of Part 431, and Appendix D to 
Subpart T of Part 431. Currently, the existing sampling plans for 
enforcement testing of consumer products require testing an initial 
sample of four products. Then, depending on the standard deviation of 
the results of the initial sample, a second sample size of up to 16 
additional units may need to be tested to make a determination of 
compliance or non-compliance. DOE recognizes a sample size of 20 total 
units may not always be available for basic models that are low-volume 
and built-to-order. To accommodate these circumstances and reduce 
burden on manufacturers, DOE proposes to modify the existing

[[Page 56804]]

sampling procedures for consumer products to account for low-volume and 
built-to-order basic models. DOE has modeled these provisions on the 
existing enforcement sampling provisions for commercial and industrial 
equipment, where low-volume and built-to-order manufacturing is more 
common. Further, DOE proposes to retain the discretion to determine 
whether the basic model qualifies as low-volume or built-to-order. DOE 
proposes to make such determination by evaluating the number of units 
of a given basic model available at the manufacturer's site and all 
distributors.
Test Procedure Guidance and Enforcement Testing
    DOE has launched a new online database offering guidance on the 
Department's test procedures for consumer products and commercial 
equipment. The new database will provide a publicly accessible forum 
for anyone with questions about--or needing clarification of--DOE's 
test procedures. This new online resource will also ensure that all 
manufacturers and members of the public are equally and immediately 
aware of the Department's interpretations of its test procedures. The 
database is available here: http://www1.eere.energy.gov/guidance/default.aspx?pid=2&spid=1.
    In response to questions submitted, the Department will develop 
draft interpretive guidance, post it on the public database, and 
solicit public comment for a period of 30 days. At the end of that 
comment period, draft guidance documents may be adopted as final, 
revised, or withdrawn. Guidance marked as final and posted on the 
database represents the definitive interpretation of the Department on 
the questions addressed and may be relied upon by industry and members 
of the public. DOE wishes to make clear that any test procedure 
guidance that is marked final on DOE's database will be used by DOE 
when conducting enforcement testing.
e. Test Unit Selection
i. Collection Method
    In order to allow for maximum flexibility in obtaining test units 
for enforcement testing and to discourage units from being chosen that 
may not be representative of the product that the consumer receives, 
DOE proposes to revise its test unit selection provisions for 
enforcement testing to allow DOE to select the units of a basic model 
to be tested and to provide that, at DOE's discretion, those units 
could come from the manufacturer, a distributor, or directly from the 
retailer.
    In response to questions in the RFI regarding test unit selection, 
DOE received several comments from various parties. One advocacy group, 
one manufacturer, and two trade associations supported test unit 
selection directly from retail sources. Another trade association and 
two manufacturers commented that manufacturers should be given the 
opportunity to determine where the products can be best selected. In 
the case of low-volume products, commenters suggested that DOE settle 
for built-to-order products or manufacturer written assurances.
    Reliable enforcement testing requires the selection and testing of 
an unbiased sample that is representative of the units distributed in 
commerce. DOE believes that providing Departmental flexibility in the 
test unit selection method will allow for the most reliable testing. 
Therefore, DOE proposes to provide in its regulations that units of a 
basic model to be tested for enforcement purposes may come from the 
distributor or retailer, as well as from the manufacturer. With regard 
to units that are specifically built-to-order or produced in low 
volume, the Department will determine the most reliable method of 
selecting units that are representative of those sold to consumers.
ii. Selection Process
    In selecting test units for enforcement testing, existing 
regulations require a DOE representative to select a batch sample of up 
to 20 units, and test units from the batch sample. This requirement was 
intended to ensure that sufficient units were available for testing and 
to help prevent bias by requiring random sampling and by the quarantine 
of units at the outset of enforcement testing. DOE has found that this 
selection process is not always feasible due to varying production 
volume and distribution mechanisms. The Department proposes to revise 
this requirement to allow greater flexibility when selecting a sample 
for testing. Specifically, DOE proposes that DOE need not select a 
batch sample when it selects units off the retail shelf. In such 
circumstances, there is less concern about sample bias and no need to 
quarantine additional units. The proposed approach will minimize the 
burden on a manufacturer, while still allowing DOE to obtain a valid 
sample.
    DOE also proposes that, for particular products, the size of the 
sample selected may vary depending on the statistical sampling 
procedures that apply to the particular product for enforcement 
purposes. This variability exists for certain commercial equipment in 
the current regulations and reflects known variations in materials, the 
manufacturing process, and testing tolerances. To address production 
environments, such as build-to-order manufacturing or low volume 
production requirements, DOE is also proposing a new provision that 
will allow DOE to make a determination of compliance where a 
statistically valid sample size cannot be obtained.
    DOE proposes to increase the maximum sample size to 21 units in 
order to account for the test sample needed for certain types of 
consumer lighting products. Additionally, DOE proposes to allow units 
tested using the applicable DOE test procedure by DOE or another 
Federal agency, pursuant to other provisions or programs, to count 
toward units in the test sample, so long as the testing is done in 
accordance with the DOE test procedures and certification testing 
provisions. In this way, the Department will not have to duplicate 
efforts already taken by itself or other agencies to test units for 
compliance. For example, if a unit was tested under the ENERGY STAR 
verification program, DOE is proposing to allow these test units and 
results to count towards the sample for enforcement testing.
iii. Cost Allocation for Unit Selection
    In the RFI, the Department solicited comments on whether the cost 
allocation for test units should be the same regardless of how the 
units are obtained (e.g. off-the-shelf or manufacturer provided). DOE 
received two comments on this issue from manufacturers. In particular, 
one manufacturer asserted that the cost allocation should be the same 
regardless of how the product is obtained. On the contrary, another 
manufacturer argued that DOE should pay the cost if units are selected 
off-the-shelf. Section 6296(b)(3) of EPCA provides DOE with the 
authority to require a manufacturer to supply at its expense covered 
products and covered equipment to DOE for testing. Consistent with this 
statutory directive, DOE proposes to require manufacturers to continue 
to assume the expense of supplying basic models for enforcement 
testing, including reimbursing the distributor or retailer for any 
units DOE has directly acquired from such distributer or retailer, not 
to exceed twenty-one units.
f. Testing at Manufacturer's Option
    In the RFI, DOE requested comments on whether to remove the 
provision in

[[Page 56805]]

section 430.70(a)(6) relating to testing at the manufacturer's option 
if a basic model is determined to be in noncompliance with the 
applicable conservation standard at the conclusion of DOE testing. DOE 
received five comments from manufacturers arguing that manufacturers 
should be given the opportunity to request a repeat of the tests. The 
Department wishes to clarify that current regulations do not provide 
for manufacturers to test the same units that DOE has already tested. 
On the contrary, sections 430.70(a)(6) and 431.383(f) merely allow 
manufacturers to increase the testing sample size. Because 
manufacturers can perform additional testing on their own at any time, 
the Department proposes to remove existing sections 430.70(a)(6) and 
431.383(f). There is no statutory requirement that manufacturers be 
given additional opportunities to test units found by DOE to be 
noncompliant, and the Department believes that such additional testing 
will only serve to delay the enforcement process.
g. Cost Allocation for Testing
    In the RFI, DOE solicited comments relating to the distribution of 
costs for enforcement testing. Currently, enforcement testing is done 
at the Department's expense. Most commenting manufacturers argued that 
DOE should be responsible for paying the cost of testing appliances, 
while one non-profit organization stated that the manufacturers should 
bear the cost. Three commenters suggested that DOE should pay if the 
manufacturer was found to be in compliance, and the manufacturer should 
pay if it was not. Commenters also urged DOE to limit testing where 
possible and to conduct targeted challenge testing rather than random 
tests. One commenter suggested that DOE should create an online testing 
cost calculator.
    DOE tentatively concludes that the cost of enforcement testing 
should remain with the Department and is not proposing a change at this 
time.
2. Adjudication
a. Improper Certification
    DOE proposes to explicitly establish in its rules that a 
manufacturer's failure to properly certify a covered product or covered 
equipment and retain records in accordance with DOE regulations may be 
subject to enforcement action, including the assessment of civil 
penalties, separate from any determination of whether a covered product 
or covered equipment does or does not comply with the applicable 
conservation standard. While existing regulations already provide for 
enforcement action to be taken for improper certification or upon a 
determination of noncompliance, to eliminate any uncertainty, the 
Department proposes to make clear that a failure to certify covered 
products and covered equipment in accordance with the DOE rules is an 
independent violation of EPCA and DOE's implementing regulations that 
may be subject to enforcement action.
b. Failure To Test
    The Department proposes to clarify in its regulations that a 
failure to test any covered product or covered equipment subject to any 
of the conservation standards would be a violation of the applicable 
conservation standard.
c. Distribution in Commerce After Notice of Noncompliance Determination
    DOE proposes to revise its regulations to make clear that a 
manufacturer or private labeler's distribution in commerce of a basic 
model after a notice of noncompliance determination has been issued 
would constitute a prohibited act subject to enforcement action.
d. Knowing Misrepresentation
    DOE proposes to establish enforcement steps to be taken to address 
those instances where a knowing misrepresentation has occurred. This 
may arise where a covered product or a covered equipment meets the 
applicable conservation standard, but not at the efficiency level that 
has been claimed.
e. Penalties
    Existing statutory authority under EPCA allows DOE to assess civil 
penalties for knowing violations. Under section 6303 of the statute, 
each unit of a covered product or covered equipment found to be in 
violation of a prohibited act, such as failure to meet an applicable 
conservation standard, constitutes a separate violation. For 
certification requirement violations, per statutory authority and DOE 
guidance, the Department will calculate penalties based on each day a 
manufacturer distributes each basic model in commerce in the United 
States without having submitted a certification report. DOE proposes to 
revise its regulations to clearly state this penalty procedure. 
Additionally, DOE proposes to explicitly state in its regulations that, 
consistent with its guidance, it will consider numerous factors in 
assessing civil penalties, including: the nature and scope of the 
violation; the provision violated; the violator's history of compliance 
or noncompliance; whether the violator is a small business; the 
violator's ability to pay; the violator's timely self-reporting of the 
violation; the violator's self-initiated corrected action, if any; and 
such other matters as justice may require.
f. Imposition of Additional Certification Testing Requirements as 
Remedy for Non-Compliance
    As an additional tool to ensure compliance with the DOE 
conservation standards and regulations, the Department proposes to 
revise its regulations to provide that the DOE may require independent, 
third-party testing for certification of covered products and covered 
equipment where DOE has determined a manufacturer or private labeler is 
in noncompliance with the certification requirements or applicable 
conservation standards.
g. Compromise and Settlement
    The Department proposes to outline the steps to be taken by both 
parties (DOE and respondent) once a compromise or settlement offer has 
been made.

D. Verification Testing

    In the RFI, DOE requested comments relating to a possible new 
requirement for periodic verification testing by manufacturers that 
would be applicable to all basic models certified to DOE. This 
requirement would be used to verify that the units distributed into 
commerce continue to perform at the certified levels. In particular, 
DOE solicited comments on whether manufacturers and/or private labelers 
should be required to perform verification testing according to certain 
conditions and criteria. DOE received extensive comments and 
suggestions on this issue, relating to costs, coverage, unit selection, 
information flow, testing labs and methodology. At this time, DOE has 
not yet made a determination as to the development of a verification 
program and instead has focused its initial efforts on revising its 
certification, enforcement testing and adjudication regulations. An 
effective verification program must be carefully crafted to balance the 
benefits of regularized compliance monitoring against the additional 
testing burdens on manufacturers. Moreover, such a program must be 
consistent and fair across all regulated product types, while 
accounting for legitimate differences in the diverse products covered 
by EPCA. DOE continues to seek comments about how to best balance the 
competing interests and achieve the Department's overarching objective 
of ensuring compliance with the Federal

[[Page 56806]]

conservation standards. Specifically, DOE requests comment about the 
requirements and details for verification testing programs (e.g., the 
use of an independent testing laboratory and a specific number of 
samples that should be randomly tested for each product).

E. Waivers

    DOE also addressed the possibility of establishing a mandatory 
waiver requirement in the RFI. This would obligate manufacturers to 
obtain a waiver where the test procedure does not evaluate the energy 
or water consumption characteristics in a representative manner or 
where the test procedure yields materially inaccurate comparative data. 
The majority of comments the Department received in response to this 
information request agreed that DOE has authority to grant waivers, but 
were divided on whether the waiver requirement will hold new authority 
or whether it is just replicating an existing process. One commenter in 
support of the waiver process pointed out that a waiver can act as a 
sign that a test procedure is out-of-date. Another commenter urged the 
DOE to seek advice from relevant trade associations and standards 
committees before issuing a waiver. A third commenter argued that 
manufacturers should not be required to obtain a waiver at all if the 
test procedure does not address a specific product design.
    In view of these comments, the Department will continue to monitor 
the market to ensure that a manufacturer does not receive an unfair 
advantage due to product characteristics.

F. Additional Product Specific Discussions and Issues for Which DOE 
Continues To Seek Comment

1. Clarification of Entity Responsible for Compliance for Walk-In 
Coolers or Freezers
    In response to the test procedure notice of proposed rulemaking for 
walk-in coolers or freezers (WICFs), several interested parties 
commented on DOE's interpretation of the compliance testing 
responsibility associated with the role of ``manufacturer''. 75 FR 186 
(January 4, 2010). Consistent with the Department's consolidation of 
certification and enforcement provisions for all products into one 
section, we propose to address this issue as a part of today's NOPR.
    In the comments on the test procedure notice, Craig cautioned that 
not holding contractors, end-users, or wholesalers accountable for WICF 
performance would remove the incentive for these entities to ensure 
compliance. It suggested that this would put manufacturers, who would 
be required to demonstrate compliance, at a competitive disadvantage 
due to testing costs to the manufacturers and cost differences to the 
end users. (EERE-2008-BT-TP-0014, Craig, No. 1.3.017 at p. 2 and Public 
Meeting Transcript, No. 1.2.010 at pp. 140 and 179) Kysor suggested 
that the general contractor at the end-use site could certify the WICF, 
as general contractors already go through a certification process for 
other parts of a building. (EERE-2008-BT-TP-0014, Kysor, Public Meeting 
Transcript, No. 1.2.010 at pp. 66 and 75-76) Arctic added that a 
manufacturer does not have complete control over WICF efficiency 
because the end-user's behavior can also affect WICF performance. 
(EERE-2008-BT-TP-0014, Arctic, Public Meeting Transcript, No. 1.2.010 
at p. 80)
    Others commented on the role of the installer--that is, the entity 
who places or constructs the WICF in its end use location--in ensuring 
compliance with the regulation. Craig, Schott Gemtron, and Bally stated 
that the installer should be considered the manufacturer and thus be 
held responsible for ensuring compliance. Bally stated that 
infiltration in particular depends on the ability of the installer and 
that Bally does not control the installation procedure. (EERE-2008-BT-
TP-0014, Bally, Public Meeting Transcript, No. 1.2.010 at p. 132) 
Schott Gemtron stated that incorrect installation affects WICF 
performance, which, in its view, should be the responsibility of the 
installer because WICF manufacturers cannot ensure proper installation. 
(EERE-2008-BT-TP-0014, Schott Gemtron, Public Meeting Transcript, No. 
1.2.010 at pp. 67 and 139)
    Craig agreed that the manufacturer cannot control installation in 
the field, but Craig also mentioned that testing at the point of 
installation would be infeasible if every application would need to be 
tested. (EERE-2008-BT-TP-0014, Craig, Public Meeting Transcript, No. 
1.2.010 at pp. 70-71) Craig recommended that DOE define the installer 
as the manufacturer and hold the installer responsible for compliance, 
or, alternatively, require that the manufacturer assume responsibility 
and control of all aspects of the process--including installation--so 
that the manufacturer could verify that the WICF is tested correctly 
and meets DOE's requirements. (EERE-2008-BT-TP-0014, Craig, No. 1.3.017 
at p. 1 and Public Meeting Transcript, No. 1.2.010 at pp. 23, 25 and 
52)
    American Panel contended that a requirement for a factory 
representative to oversee installation would be cost prohibitive to the 
end user. (EERE-2008-BT-TP-0014, American Panel, Public Meeting 
Transcript, No. 1.2.010 at pp. 74 and 79) Kason urged DOE not to 
consider the installer the manufacturer because installers have no 
control over system design and components. (EERE-2008-BT-TP-0014, 
Kason, No. 1.3.0XX at p. 1) American Panel agreed that the installer 
should not be part of the testing and certification process set forth 
by DOE. (EERE-2008-BT-TP-0014, American Panel, No. 1.3.024 at p. 3)
    In general, the ``manufacturer'' is the entity responsible for 
compliance with any DOE performance standard. EPCA defines the term 
``manufacture'' as ``to manufacture, produce, assemble or import.'' 42 
U.S.C. 6291(10) The breadth of this definition leaves open numerous 
entities that could be held responsible for compliance with a WICF 
performance standard. To clarify the application of this term in the 
case of WICFs, DOE proposes that the term be applied to the entity 
responsible for designing and/or selecting the various components used 
in a WICF. The term could apply to different entities in different 
situations. If an entity physically manufactures all components that 
comprise the WICF, that entity would be considered the manufacturer. 
Alternatively, if an entity physically manufactures some of the 
components that comprise the WICF and purchases other components from a 
supplier, and assembles all components into a complete WICF or supplies 
all components as a complete kit for assembly at a customer's site, 
that entity would be considered the manufacturer. In this context, a 
third party that does not manufacture any components but rather chooses 
the components that comprise the WICF, would be considered the 
manufacturer of the WICF for purposes of EPCA. DOE believes this 
addresses Craig's concern that certain parties involved in the 
manufacture of a WICF could be put at a competitive disadvantage to 
others.
    While DOE recognizes that incorrect installation or use could 
affect the performance of the WICF, as stated by Craig, Schott Gemtron, 
and Bally, DOE believes that testing and compliance responsibility in 
the case of WICFs should not rest with an entity that simply installs 
this equipment. This is because an entity who solely installs the 
equipment, and does not make design decisions about the components that 
are included in the equipment, would not be in a position to certify 
compliance with the regulations, as suggested by American Panel and 
Kason. Therefore, DOE proposes that entities responsible

[[Page 56807]]

for physical installation of the system would not be required to 
certify compliance if they do not otherwise meet criteria for being 
considered the manufacturer, assuming that the envelope or 
refrigeration system is physically assembled in accordance with the 
applicable technical specifications developed by the manufacturer.
    The unique nature of WICFs requires DOE to consider carefully the 
assignment of compliance-related responsibilities. The high level of 
customization that appears in a significant number of WICF requires DOE 
to apply its requirements in a manner that recognizes the issues 
presented by this market. Accordingly, while DOE could opt to require 
every entity in the manufacturing chain to certify compliance, or even 
assign that responsibility solely to the installer, the agency believes 
that the entity who designs the WICF and/or selects components of a 
WICF, is in the best position to ensure that the WICF, when properly 
installed, will satisfy the required standard. DOE believes that this 
approach best balances the equities involved with the manufacture and 
installation of this type of equipment. Accordingly, DOE proposes the 
following definition of manufacturer of a WICF:
    Manufacturer of a walk-in cooler or walk-in freezer means any 
person who manufactures, produces, assembles or imports such a walk-in 
cooler or walk-in freezer, including any person who:
    (1) Manufactures, produces, assembles, or imports a walk-in cooler 
or walk-in freezer in its entirety, including the collection and 
shipment of all components that affect the energy consumption of a 
walk-in cooler or walk-in freezer;
    (2) Manufactures, produces, assembles or imports a walk-in cooler 
or walk-in freezer in part, and specifies or approves the walk-in 
cooler or walk-in freezer's components that affect energy consumption, 
including refrigeration, doors, lights, or other components produced by 
others, as for example by specifying such components in a catalogue by 
make and model number or parts number;
    (3) Is any vendor who sells a walk-in cooler or walk-in freezer 
that consists of a combination of components that affect energy 
consumption, which are not specified or approved by a person described 
in paragraph (1) or (2) of this definition; or
    (4) Is an individual or a company who arranges for a walk-in cooler 
or walk-in freezer to be assembled at his own or any other specified 
premises from components that affect energy consumption, which are 
specified and approved by him and not by a person described in 
paragraph (1), (2), or (3) of this definition.
    DOE believes the burden on manufacturers of certifying compliance 
with these prescriptive standards will be minimal because no test is 
necessary to determine compliance with most of the requirements. The 
chief burden imposed by this rule is a certification report burden of 
providing DOE information to show that the product is in compliance 
with the design standards in EISA 2007. DOE is proposing that 
manufacturers use the online CCMS templates that DOE develops. DOE 
notes that the manufacturer, as defined, will be required to certify to 
DOE that the equipment meets the prescriptive requirements, rather than 
the general contractor as suggested by Kysor, unless the general 
contractor meets the criteria for being considered the manufacturer. 
Furthermore, although the end user's behavior does affect WICF 
performance as stated by Arctic, DOE will not consider the end user 
responsible for compliance unless the end user meets the criteria for 
being considered the manufacturer.
    In addition, DOE's regulations for WICF specify a test for one 
requirement: EPCA contains R-value requirements for insulation and 
states, ``for the purpose of test procedures for WICF: The R-value 
shall be the 1/K factor multiplied by the thickness of the panel. The K 
factor shall be based on ASTM test procedure C518-2004.'' 42 U.S.C. 
6314(a)(9)(A)(i)-(ii). This means that ASTM C518-2004 must be used to 
test foam to determine its R-value. However, for purposes of certifying 
compliance with the R-value requirements, the manufacturer may elect to 
use the test procedure to test the foam that they use, or the 
manufacturer may rely on the results of testing done by a third party 
on their behalf, for instance, a test lab or the foam supplier. 
Nevertheless, the manufacturer is still responsible for complying with 
the standard.
2. Submission of Data Requirements for Fluorescent Lamp Ballast
    Under DOE's existing regulations, fluorescent lamp ballast 
manufacturers currently are not required to submit compliance 
statements and certification reports. In March 2010, DOE published a 
test procedure NOPR that proposed submission of data requirements for 
fluorescent lamp ballasts that would become effective one year 
following the final rule publication of such requirements. 75 FR 14288 
(March 24, 2010).
    In response to that proposal, Earthjustice, the Northwest Energy 
Efficiency Alliance (NEEA), Northwest Power and Conservation Council 
(NPCC) and several CA utilities supported the addition of submission of 
data requirements. (EERE-2009-BT-TP-0016; NEEA & NPCC, No. 32 at p. 10; 
Earthjustice, No. 14 at p. 1; CA Utilities, No. 13 at p. 3) 
Earthjustice added that as there have been no changes made to the test 
procedure that would require retesting to determine compliance with 
existing standards, there is no justification for permitting a full 
year before manufactures must submit data. It cited a precedent (74 FR 
65105 (December 9, 2009)) in which DOE allowed a timeline of 30 days 
for manufactures to submit required certification reports and 
compliance statements. Earthjustice also commented that DOE should 
publish a separate final rule to require written documentation of 
compliance with energy conservation standards on an accelerated 
timeframe in advance of the full test procedure final rule. (EERE-2009-
BT-TP-0016; Earthjustice, No. 14 at p. 1)
    DOE agrees that fluorescent lamp ballasts should be included in the 
provisions for written documentation of compliance with energy 
conservation standards on an accelerated timeline. For that reason, DOE 
is proposing to include provisions for the certification of fluorescent 
lamp ballasts. The proposed revisions will require that ballast 
manufacturers follow all existing provisions of subpart F of 10 CFR 
part 430 and report ballast efficacy factor, power factor, number of 
lamps operated by the ballast, and type of lamp operated by the 
ballast.
3. Certification, Compliance, and Enforcement for Electric Motors
    As explained throughout the NOPR, DOE has not proposed moving or 
changing any of the certification, compliance, and enforcement 
provisions related to electric motors. However, DOE will be considering 
consolidating the provisions, as applicable, with the proposals from 
today's NOPR in the second certification, compliance, and enforcement 
rulemaking. Consequently, DOE is seeking comments on the existing 
provisions for electric motors, including any previous proposals for 
small electric motors and any changes DOE should consider in the next 
rulemaking applicable to these products.
    In the next certification, compliance, and enforcement rulemaking, 
DOE will consider an annual certification requirement for motors 
similar to what

[[Page 56808]]

it is proposing for all other types of covered products and covered 
equipment in today's proposed rule. In light of the annual requirement 
for other products, DOE specifically seeks comment on if and how the 
certification compliance numbers for electric motors could be modified 
to clearly demonstrate compliance when there is a change in the Federal 
energy conservation standards for these products. See Issue 5 under 
``Issues on Which DOE Seeks Comment'' in section V of this NOPR.
4. Enforcement for Imports and Exports
    As DOE puts an additional emphasis on enforcing its regulatory 
program, DOE believes that some of the proposals in today's notice will 
aid in enforcing DOE's regulations relating to products imported and 
exported from the United States. Specifically, DOE is proposing to 
modify the label on exported products to read ``NOT FOR SALE IN THE 
UNITED STATES'' to make it clear that this product is not for 
distribution in commerce in the United States. In addition, DOE is 
interested in seeking comment from interested parties on how DOE could 
modify its certification, compliance, and enforcement provisions to 
more effectively enforce at the border. See Issue 6 under ``Issues on 
Which DOE Seeks Comment'' in section V of this NOPR.

IV. Procedural Issues and Regulatory Review

E. Review Under Executive Order 12866

    Today's regulatory action is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, this 
action was not subject to review under that Executive Order by the 
Office of Information and Regulatory Affairs (OIRA) of the Office of 
Management and Budget (OMB).

F. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule that by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
As required by E.O. 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site, http://www.gc.doe.gov.
    DOE reviewed the certification, compliance, and enforcement 
requirements being proposed under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. As discussed in more detail below, DOE found that because a 
subset of the proposed certification, compliance, and enforcement 
regulations have not previously been required of manufacturers, all 
manufacturers, including small manufacturers, could potentially 
experience a financial burden associated with new certification, 
compliance, and enforcement requirements. While examining this issue, 
DOE determined that it could not certify that the proposed rule, if 
promulgated, would not have a significant effect on a substantial 
number of small entities. Therefore, DOE has prepared an IRFA for this 
rulemaking. The IRFA describes potential impacts on small businesses 
associated with certification, compliance, and enforcement requirements 
on covered products and covered equipment.
    DOE has transmitted a copy of this IRFA to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA) for review.
1. Reasons for the Proposed Rule
    The reasons for this proposed rule are discussed elsewhere in the 
preamble and not repeated here.
2. Objectives of and Legal Basis for the Proposed Rule
    The objectives of and legal basis for the proposed rule are 
discussed elsewhere in the preamble and not repeated here.
3. Description and Estimated Number of Small Entities Regulated
    DOE used the small business size standards published on January 31, 
1996, as amended, by the SBA to determine whether any small entities 
would be required to comply with the rule. 61 FR 3286; see also 65 FR 
30836, 30850 (May 15, 2000), as amended at 65 FR 53533, 53545 
(September 5, 2000). The size standards are codified at 13 CFR Part 
121. The standards are listed by North American Industry Classification 
System (NAICS) code and industry description and are available at 
http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
    This proposed rule potentially impacts manufacturers of almost all 
types of covered products and covered equipment subject to DOE's energy 
conservation, water conservation, and design standards.

              Table IV--1 Small Business Classifications for Covered Products and Covered Equipment
----------------------------------------------------------------------------------------------------------------
                                                                             NAICS definition
                                                                                 of small       Total number of
       Covered product or covered equipment type             NAICS code        manufacturer          small
                                                                                (number of       manufacturers
                                                                                employees)
----------------------------------------------------------------------------------------------------------------
Residential refrigerators, residential refrigerator-                335222             <=1000                  1
 freezers, and residential freezers....................
Room air conditioners..................................             333415              <=750                  0
Residential central air conditioners and heat pumps....             333415              <=750                 13
Small-duct, high velocity..............................             333415              <=750                  2
Through-the-wall air conditioners and heat pumps.......             333415              <=750                  1
Residential water heaters..............................             335228              <=500                  6
Residential furnaces and boilers.......................             333415              <=750                 25
Dishwashers............................................             335228              <=500                  0
Residential clothes washers............................             335224             <=1000                  1
Clothes dryers.........................................             335224             <=1000                  0
Direct heating equipment...............................             333414              <=500                 12
Cooking products.......................................             335221              <=750                  2
Pool heaters...........................................             333414              <=500                  1
Fluorescent lamp ballasts..............................             335311              <=750                 11

[[Page 56809]]

 
General service fluorescent lamps......................             335110             <=1000                  1
Incandescent reflector lamps...........................             335110             <=1000                  0
Ceiling fans...........................................             335211              <=750                 91
Ceiling fan light kits.................................             335211              <=750                 91
Torchieres.............................................             335121              <=500                404
Medium base compact fluorescent lamps..................             335110             <=1000                 70
Dehumidifiers..........................................             335211              <=750                  0
External power supplies................................             335999              <=500                250
General service incandescent lamps.....................             335110             <=1000                 67
Candelabra base incandescent lamps.....................             335110             <=1000                 67
Intermediate base incandescent lamps...................             335110             <=1000                 67
Commercial refrigeration equipment.....................             333415              <=750                 20
Commercial warm air furnaces...........................             333415              <=750                  3
Commercial packaged boilers............................   333414 or 332410              <=500                 13
Commercial package air-conditioning and heating                     333415              <=750                  1
 equipment.............................................
Packaged terminal air conditioners and heat pumps......             333415              <=750                  6
Single package vertical units..........................             333415              <=750                  5
Commercial water heaters...............................             333319              <=500                  7
Automatic commercial ice makers........................             333415              <=750                  2
Commercial clothes washers.............................             333312              <=500                  0
Distribution transformers..............................             335311              <=750                 45
Illuminated exit signs.................................             335129              <=500                269
Traffic signal modules and pedestrian modules..........             335129              <=500                269
Refrigerated bottled or canned beverage vending                     333311              <=500                  6
 machines..............................................
Walk-in coolers and freezers...........................             333415              <=750                 45
Metal halide fixtures..................................             335122              <=500                 75
Faucets................................................             332913              <=500                 62
Showerheads............................................             332913              <=500                 42
Water closets..........................................             327111              <=750                  9
Urinals................................................             327111              <=750                  2
Commercial prerinse spray valves.......................             332919             <= 500                  8
----------------------------------------------------------------------------------------------------------------

 4. Description and Estimate of Compliance Requirements
    Many of the certification, compliance, and enforcement provisions 
subject to today's final rule are already codified in existing 
regulations for consumer products and commercial and industrial 
equipment. As a result, DOE expects the impact on all manufacturers to 
be minimal. Many of the changes being proposed in today's final rule 
surround expanding DOE's existing certification requirements and could 
slightly increase the recordkeeping burden. DOE does not expect 
manufacturers of all types to incur any capital expenditures as a 
result of the proposals, since the rulemaking does not impose any 
product-specific requirements that would require changes to existing 
plants, facilities, product-specifications, or test procedures. Rather, 
this rule clarifies sampling requirements and imposes certain data 
reporting requirements, which may have a slight impact on labor costs.
    With regard to sampling for certification testing, this rule 
clarifies that the minimum number of units tested for certification 
compliance must be no less than 2 unless a different minimum number is 
specified. DOE does not believe this specification increases the 
testing burden on manufacturers because DOE has always required a 
minimum of 2 samples, if not more, to achieve a realistic sample mean 
and to mitigate the risk of a product to be out of compliance. For a 
small number of products, DOE is proposing statistical sampling 
procedures that are based on previously established procedures for 
consumer products and commercial equipment. These procedures are 
designed to keep the testing burden on manufacturers as low as 
possible, while still providing confidence that the test results can be 
applied to all units of the same basic model. In some cases, 
manufacturers are permitted to use analytical procedures, such as 
computer simulations, to determine the efficiencies of their products, 
which will further minimize testing burden.
    With regard to certification, the proposal considers requiring 
manufacturers of covered products and covered equipment to certify 
annually that their products meet the applicable energy conservation 
standard, water conservation standard or design standard. It is 
expected that manufacturers will re-submit the original certification 
testing information each year for basic models with no modifications 
affecting energy consumption, water consumption, or design. As DOE 
currently requires manufacturers to submit certification information at 
the introduction of a new or modified basic model, DOE does not 
anticipate that annual certification on products already submitted will 
add substantial additional burden to manufacturers.
    The cost of certification testing will depend on the number of 
basic models a manufacturer produces. The cost of certifying should be 
minimal once testing for each basic model has occurred pursuant to the 
test procedures prescribed by DOE.
    DOE estimates that a typical firm would spend approximately 20 
hours complying with the additional certification, compliance, and 
enforcement procedures being considered in today's proposed rule. This 
estimate does not include any testing burden, which results from DOE's 
test procedures. DOE has already considered this burden on all

[[Page 56810]]

manufacturers in the test procedure rulemakings for individual 
manufacturers. Instead, this burden represents the time it would take a 
certification engineer to gather the appropriate data, apply the 
statistical sampling methods required, and submit the required 
certification to DOE both for new basic models and on an annual basis. 
DOE has tried to mitigate the impacts on all manufacturers by aligning 
the annual certification schedule with the Federal Trade Commission's 
model submission schedule for consumer products. At most, DOE expects 
an average manufacturer to allocate 4 of the 20 hours to meeting the 
annual certification reporting requirement.
    DOE notes that these values likely overestimate the manufacturer 
reporting burden, as the Federal Trade Commission currently requires 
annual submission of data regarding all basic models distributed into 
commerce for consumer products, and many voluntary programs also 
require annual data submission.
    In addition, to minimize the impact that annual certification 
filings may have on manufacturers, DOE has introduced the online CCMS 
system through which manufacturers would be required to submit their 
products for certification. In addition, DOE is making available CCMS 
templates for each product, which clearly lay out the certification 
requirements for each covered product and covered equipment.
5. Duplication, Overlap, and Conflict With Other Rules and Regulations
    DOE is not aware of any rules or regulations that duplicate, 
overlap, or conflict with the proposed rule being considered today.
6. Significant Alternatives to the Rule
    This section considers alternatives to the proposals in today's 
certification, compliance, and enforcement rulemaking. DOE could 
mitigate the small potential impacts on small manufacturers by reducing 
the number of samples used, eliminating the annual certification 
filing, or by expanding the groupings of models. However, DOE strongly 
believes the proposals in today's rulemaking are essential to a 
sustainable and consistent enforcement program for all of the covered 
products and covered equipment. While these alternatives may mitigate 
the potential economic impacts on small entities compared to the 
proposed provisions, the ability for DOE to enforce its energy 
conservation regulations far exceeds any potential burdens. Thus, DOE 
rejected these alternatives and is proposing the certification, 
compliance, and enforcement provisions set forth in this rulemaking for 
all manufacturers of covered products and covered equipment. DOE 
continues to seek input from businesses that would be affected by this 
rulemaking and will consider comments received in the development of 
any final rule.

C. Review Under the Paperwork Reduction Act

1. Description of the Requirements
    DOE is developing regulations to implement reporting requirements 
for energy conservation, water conservation, and design standards, and 
to address other matters including compliance certification, prohibited 
actions, and enforcement procedures for covered consumer products and 
commercial and industrial equipment covered by EPCA.
    DOE is proposing to require manufacturers of covered consumer 
products and commercial and industrial equipment to maintain records 
about how they determined the energy efficiency, energy consumption, 
water consumption or design features of their products. DOE is also 
proposing to require manufacturers to submit a certification report 
indicating that all basic models currently produced comply with the 
applicable standards using DOE's testing procedures, as well as include 
the necessary product specific certification data. The certification 
reports are submitted for each basic model, either when the 
requirements go into effect (for models already in distribution) or 
when the manufacturer begins distribution of a particular basic model, 
and annually thereafter. Reports must be updated when a new model is 
introduced or a change affecting energy efficiency or use is made to an 
existing model. The collection of information is necessary for 
monitoring compliance with the conservation standards and testing 
requirements for the consumer products and commercial and industrial 
equipment mandated by EPCA.
    The information that would be required by these regulations, if 
finalized, and that is the subject of this proposed collection of 
information, would be submitted by manufacturers to certify compliance 
with energy conservation, water conservation, and design standards 
established by DOE. DOE would also use the information to determine 
whether an enforcement action is warranted and to better inform DOE 
during a test procedure and energy conservation standards rulemaking.
    The certification and recordkeeping requirements for certain 
consumer products in 10 CFR part 430 have previously been approved by 
OMB and assigned OMB control number 1910-1400. DOE is renewing the 
previously approved certification and recordkeeping requirements, as 
well as submitting these new proposed certification and recordkeeping 
requirements for all consumer products and commercial and industrial 
equipment subject to certification, compliance, and enforcement 
regulations to OMB for review and approval under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq.
2. Method of Collection
    Respondents must submit electronic forms using DOE's on-line CCMS 
system.
3. Data
    The following are DOE estimates of the total annual reporting and 
recordkeeping burden imposed on manufacturers of all consumer products 
and commercial and industrial equipment subject to certification, 
compliance, and enforcement provisions. These estimates take into 
account the time necessary to develop testing documentation, complete 
the certification, and submit all required documents to DOE 
electronically.
    OMB Control Number: 1910-1400.
    Form Number: None.
    Type of Review: Regular submission.
    Affected Public: Manufacturers of consumer products and commercial 
and industrial equipment covered by the rulemakings discussed above.
    Estimated Number of Respondents: 2,916.
    Estimated Time per Response: Certification reports, 20 hours.
    Estimated Total Annual Burden Hours: 58,320.
    Estimated Total Annual Cost to the Manufacturers: $4,374,000 in 
recordkeeping/reporting costs.
4. Comments
    Comments are invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; (b) the accuracy of the agency's estimate of the burden 
(including hours and cost) of the proposed collection of information; 
(c) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (d) ways to minimize the burden of the 
collection of information on respondents, including through the use of 
automated collection techniques

[[Page 56811]]

or other forms of information technology. Comments submitted in 
response to this notice will be summarized and/or included in the 
request for OMB approval of this information collection; they also will 
become a matter of public record.

D. Review Under the National Environmental Policy Act

    DOE has determined that this rule falls into a class of actions 
that are categorically excluded from review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's 
implementing regulations at 10 CFR part 1021. Specifically, this rule 
amends an existing rule without changing its environmental effect and, 
therefore, is covered by the Categorical Exclusion in 10 CFR part 1021, 
subpart D, paragraph A5. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required.

E. Review Under Executive Order 13132

    DOE reviewed this rule pursuant to Executive Order 13132, 
``Federalism,'' 64 FR 43255 (August 4, 1999), which imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. In accordance with DOE's statement of policy describing 
the intergovernmental consultation process it will follow in the 
development of regulations that have federalism implications, 65 FR 
13735 (March 14, 2000), DOE examined today's proposed rule and 
determined that the rule would not have a substantial direct effect on 
the States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of Government. See 74 FR 61497. Therefore, DOE has taken 
no further action in today's proposed rule with respect to Executive 
Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729 (February 7, 1996)) imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed regulations meet the relevant standards 
of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4; 2 U.S.C. 1501 et seq.) requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and Tribal 
governments and the private sector. For a proposed regulatory action 
likely to result in a rule that may cause the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation), section 202 of UMRA requires a Federal agency to publish 
estimates of the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a), (b)) UMRA also requires a Federal 
agency to develop an effective process to permit timely input by 
elected officers of State, local, and Tribal governments on a proposed 
``significant intergovernmental mandate,'' and requires an agency plan 
for giving notice and opportunity for timely input to potentially 
affected small governments before establishing any requirements that 
might significantly or uniquely affect such governments. On March 18, 
1997, DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820. (The policy is 
also available at http://www.gc.doe.gov). Today's proposed rule 
contains neither an intergovernmental mandate nor a mandate that may 
result in an expenditure of $100 million or more in any year, so these 
requirements do not apply.

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

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

I. Review Under Executive Order 12630

    DOE determined under Executive Order 12630, ``Governmental Actions 
and Interference with Constitutionally Protected Property Rights,'' 53 
FR 8859 (March 18, 1988), that today's proposed rule would not result 
in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution. See 74 FR 61497-98.

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

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

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any

[[Page 56812]]

adverse effects on energy supply, distribution, or use if the proposal 
is implemented, and of reasonable alternatives to the action and their 
expected benefits on energy supply, distribution, and use. Today's 
proposed regulatory action, which proposes amendments to the 
Department's certification, compliance, enforcement procedures, is not 
a significant regulatory action under Executive Order 12866 or any 
successor order; would not have a significant adverse effect on the 
supply, distribution, or use of energy; and has not been designated by 
the Administrator of OIRA as a significant energy action. Therefore, it 
is not a significant energy action, and, accordingly, DOE has not 
prepared a Statement of Energy Effects.

V. Public Participation

A. Attendance at Public Meeting

    The time, date, and location of the public meeting are provided in 
the DATES and ADDRESSES sections at the beginning of this document. 
Anyone who wants to attend the public meeting must notify Ms. Brenda 
Edwards at (202) 586-2945. Foreign nationals visiting DOE headquarters 
are subject to advance security screening procedures.

B. Procedure for Submitting Requests To Speak

    Any person who has an interest in the topics addressed in this 
notice, or who is a representative of a group or class of persons that 
has an interest in these issues, may request an opportunity to make an 
oral presentation at the public meeting. Such persons may hand-deliver 
requests to speak to the address shown in the ADDRESSES section at the 
beginning of this notice between 9 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays. Requests may also be sent by mail or 
email to: Ms. Brenda Edwards, U.S. Department of Energy, Building 
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121, or <a href="/cdn-cgi/l/email-protection#6b29190e050f0a452e0f1c0a190f182b0e0e450f040e450c041d"><span class="__cf_email__" data-cfemail="7a38081f141e1b543f1e0d1b081e093a1f1f541e151f541d150c">[email protected]</span></a>. Persons who 
wish to speak should include in their request a computer diskette or CD 
in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format that 
briefly describes the nature of their interest in this rulemaking and 
the topics they wish to discuss. Such persons should also provide a 
daytime telephone number where they can be reached.
    DOE requests that those persons who are scheduled to speak submit a 
copy of their statements at least one week prior to the public meeting. 
DOE may permit any person who cannot supply an advance copy of this 
statement to participate, if that person has made alternative 
arrangements with the Building Technologies Program in advance. When 
necessary, the request to give an oral presentation should ask for such 
alternative arrangements.

C. Conduct of Public Meeting

    DOE will designate a DOE official to preside at the public meeting 
and may also employ a professional facilitator to aid discussion. The 
public meeting will be conducted in an informal, conference style. The 
meeting will not be a judicial or evidentiary public hearing, but DOE 
will conduct it in accordance with section 336 of EPCA (42 U.S.C. 
6306). Discussion of proprietary information, costs or prices, market 
share, or other commercial matters regulated by U.S. anti-trust laws is 
not permitted.
    DOE reserves the right to schedule the order of presentations and 
to establish the procedures governing the conduct of the public 
meeting. A court reporter will record the proceedings and prepare a 
transcript.
    At the public meeting, DOE will present summaries of comments 
received before the public meeting, allow time for presentations by 
participants, and encourage all interested parties to share their views 
on issues affecting this rulemaking. Each participant may present a 
prepared general statement (within time limits determined by DOE) 
before the discussion of specific topics. Other participants may 
comment briefly on any general statements. At the end of the prepared 
statements on each specific topic, participants may clarify their 
statements briefly and comment on statements made by others. 
Participants should be prepared to answer questions from DOE and other 
participants. DOE representatives may also ask questions about other 
matters relevant to this rulemaking. The official conducting the public 
meeting will accept additional comments or questions from those 
attending, as time permits. The presiding official will announce any 
further procedural rules or modification of procedures needed for the 
proper conduct of the public meeting.
    DOE will make the entire record of this proposed rulemaking, 
including the transcript from the public meeting, available for 
inspection at the U.S. Department of Energy, 6th Floor, 950 L'Enfant 
Plaza, SW., Washington, DC 20024, (202) 586-2945, between 9 a.m. and 4 
p.m., Monday through Friday, except Federal holidays. Anyone may 
purchase a copy of the transcript from the transcribing reporter. 
Additionally, the record for this proposed rulemaking will be made 
available at http://www.regulations.gov.

D. Submission of Comments

    DOE will accept comments, data, and information regarding the 
proposed rule no later than the date provided at the beginning of this 
notice. Comments, data, and information submitted to DOE's e-mail 
address for this rulemaking should be provided in WordPerfect, 
Microsoft Word, PDF, or text (ASCII) file format. Interested parties 
should avoid the use of special characters or any form of encryption, 
and wherever possible, comments should include the electronic signature 
of the author. Absent an electronic signature, comments submitted 
electronically must be followed and authenticated by submitting a 
signed original paper document to the address provided at the beginning 
of this notice. Comments, data, and information submitted to DOE via 
mail or hand delivery/courier should include one signed original paper 
copy. No telefacsimiles (faxes) will be accepted.
    According to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit two copies: one copy of the document including 
all the information believed to be confidential and one copy of the 
document with the information believed to be confidential deleted. DOE 
will make its own determination as to the confidential status of the 
information and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include (1) a description of the 
items, (2) whether and why such items are customarily treated as 
confidential within the industry, (3) whether the information is 
generally known by or available from other sources, (4) whether the 
information has previously been made available to others without 
obligation concerning its confidentiality, (5) an explanation of the 
competitive injury to the submitting person which would result from 
public disclosure, (6) a date upon which such information might lose 
its confidential nature due to the passage of time, and (7) why 
disclosure of the information would be contrary to the public interest.

E. Issues on Which DOE Seeks Comment

    DOE is particularly interested in receiving comments on the 
following issues:
    1. DOE seeks comment on how manufacturers determine that a 
particular model constitutes a new basic

[[Page 56813]]

model, the types of potential changes manufacturers may make to a given 
model, and the difference in the energy use characteristics a typical 
change may have on a per product basis. For example, should DOE 
contemplate proposing a specific regulation that requires a new basic 
model declaration and filing when a modification to a given basic model 
impacts the energy characteristics of the product by a given de minimus 
percentage? DOE seeks comment on how these de minimus percentages might 
change for each covered product and covered equipment.
    2. DOE seeks comment on the attributes DOE should consider as part 
of its verification testing program.
    3. DOE seeks comment regarding the criteria defining VICPs, and the 
use of VICPs in DOE's certification, compliance, and enforcement 
programs for both consumer products and commercial and industrial 
equipment. Specifically, DOE requests comment about the requirements 
and details for verification testing programs (e.g., the use of an 
independent testing laboratory, a specific number of samples randomly 
tested, etc.) and the actions taken by the VICP in conjunction with DOE 
when a unit is found to have failed the verification testing program of 
the VICP.
    4. DOE is considering adding sampling plans and tolerances for 
other features of covered products and covered equipment which impact 
the water or energy characteristics of a product. DOE is seeking 
comment on this approach, and the methodologies DOE should consider if 
it decides to extend the sampling provisions to features other than the 
regulatory metrics.
    5. DOE is seeking comments on the existing provisions for electric 
motors, including any previous proposals for small electric motors and 
any changes DOE should consider in the next rulemaking applicable to 
these products. In light of the annual requirement for other products, 
DOE specifically seeks comment on if, and how, the certification 
compliance numbers for electric motors could be modified to clearly 
demonstrate compliance when there is a change in the Federal energy 
conservation standards for these products.
    6. DOE is interested in seeking comment from interested parties on 
how DOE could modify its certification, compliance, and enforcement 
provisions to more effectively enforce at the border.
    7. DOE continues to seek comment from businesses that would be 
affected by this rulemaking and will consider comments received in the 
development of any final rule.

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's NOPR.

List of Subjects

10 CFR Part 429

    Confidential business information, Energy conservation, Household 
appliances, Imports, Reporting and recordkeeping requirements.

10 CFR Part 430

    Confidential business information, Energy conservation, Household 
appliances, Imports.

10 CFR Part 431

    Confidential business information, Energy conservation, Reporting 
and recordkeeping requirements.

    Issued in Washington, DC, on August 31, 2010.
Henry Kelly,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy.
Scott Blake Harris,
General Counsel.
    For the reasons stated in the preamble, DOE is proposing to amend 
chapter II, subchapter D, of title 10 of the Code of Federal 
Regulations, as set forth below:
    1. Add new part 429 to read as follows:

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

Subpart A--General Provisions
Sec.
429.1 Purpose and scope.
429.3 Definitions.
Subpart B--Sampling for Certification Testing
429.9 Units to be tested.
Subpart C--Certification
429.17 Purpose and scope.
429.19 Certification.
429.21 Testing Requirements for Certification.
429.23 Alternative Methods for Determining Efficiency or Energy Use.
Subpart D--General Provisions
429.24 Maintenance of records.
429.25 Imported products.
429.26 Exported products.
429.27 Public record.
Subpart E--Enforcement
429.29 Purpose and scope.
429.31 Prohibited acts subjecting persons to enforcement action.
429.33 Investigation of compliance.
420.34 Review of certification data.
429.35 Subpoena.
429.36 Testing.
429.37 Test notice.
429.39 [Reserved].
429.41 Test unit selection.
429.43 Test unit preparation.
429.45 Sampling for enforcement testing.
429.47 [Reserved]
429.49 Notice of noncompliance determination to cease distribution 
of a basic model.
429.51 Additional certification testing requirements.
429.53 Injunctions.
429.55 Maximum civil penalty.
429.57 Penalty considerations.
429.59 Notice of proposed civil penalty.
429.61 Election of procedures.
429.63 Administrative law judge hearing and appeal.
429.65 Immediate issuance of order assessing civil penalty.
429.67 Collection of civil penalties.
429.69 Compromise and settlement.
429.71 Confidentiality.
Appendix A to Subpart E of Part 429--Sampling Plan for Enforcement 
Testing of Covered Products and Certain High-Volume Covered 
Equipment
Appendix B to Subpart E of Part 429--Sampling Plan for Enforcement 
Testing of Covered Commercial Equipment and Certain Low-Volume 
Covered Products
Appendix C to Subpart E of Part 429--Sampling Plan for Enforcement 
Testing of Distribution Transformers

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

Subpart A--General Provisions


Sec.  429.1  Purpose and scope.

    This part sets forth the procedures to be followed for 
certification of compliance and for enforcement for consumer products 
and commercial and industrial equipment to determine whether covered 
products and covered equipment comply with the applicable conservation 
standards set forth in parts 430 and 431 of this subchapter. For the 
purposes of this subpart, energy conservation standard means any 
standards meeting the definitions of that term in 42 U.S.C. 6291(6) and 
42 U.S.C. 6311(18) as well as any other water conservation standards 
and design requirements. This part does not cover motors or electric 
motors as defined in Sec.  431.12, and all references to ``covered 
equipment'' in this part exclude such motors.


Sec.  429.3  Definitions.

    (a) The definitions found in Sec. Sec.  430.2, 431.2, 431.62, 
431.72, 431.82, 431.92, 431.102, 431.132, 431.152, 431.172, 431.192, 
431.202, 431.222, 431.242, 431.262, 431.292, 431.302, 431.322, and 
431.442 apply for purposes of this part.

[[Page 56814]]

    (b) The following definition applies for the purposes of this part. 
Any words or terms defined in this section or elsewhere in this part 
shall be defined as provided in sections 321 and 340 of the Act:
    Manufacturer's model number means the identifier used by a 
manufacturer to uniquely identify the group of identical or essentially 
identical covered products or covered equipment to which a particular 
unit belongs. The manufacturer's model number typically appears on the 
product nameplates, in product catalogs and in other product 
advertising literature.

Subpart B--Sampling for Certification Testing


Sec.  429.9  Units to be tested.

    (a) When testing of covered products or covered equipment is 
required to comply with section 323(c) of the Act, or to comply with 
rules prescribed under sections 324, 325, or 342 of the Act, a sample 
comprised of production units (or units representative of production 
units) of the basic model being tested shall be selected at random and 
tested, and shall meet the following applicable criteria. Components of 
similar design may be substituted without additional testing if the 
substitution does not affect energy or water consumption. Any 
represented values of measures of energy efficiency, water efficiency, 
energy consumption, or water consumption for basic models not tested 
shall be the same as for the tested basic model.
    (b) For covered products and covered equipment subject to the 
provisions in this part 429, the minimum number of units tested shall 
be no less than 2 (except where a different minimum limit is specified 
in paragraph (c) of this section); and
    (c)(1) For each basic model of residential refrigerators, 
refrigerator-freezers, and freezers, a sample of sufficient size shall 
be tested to insure that--
    (i) Any represented value of estimated annual operating cost, 
energy consumption, or other measure of energy consumption of a basic 
model for which consumers would favor lower values shall be no less 
than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the energy factor or other measure of 
energy consumption of a basic model for which consumer would favor 
higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (2) For each basic model of room air conditioners, a sample of 
sufficient size shall be tested to insure that--
    (i) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of a basic 
model for which consumers would favor lower values shall be no less 
than the higher of:
    (A) The mean of the sample, or
    (B) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05; and
    (ii) Any represented value of the energy efficiency ratio or other 
measure of energy consumption of a basic model for which consumers 
would favor higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (3)(i) For central air conditioners and heat pumps, each single-
package system and each condensing unit (outdoor unit) of a split-
system, when combined with a selected evaporator coil (indoor unit) or 
a set of selected indoor units, must have a sample of sufficient size 
tested in accordance with the applicable provisions of this subpart. 
The represented values for any model of single-package system, any 
model of a tested split-system combination, any model of a tested mini-
split system combination, or any model of a tested multi-split system 
combination must be assigned such that--
    (A) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of the 
central air conditioner or heat pump for which consumers would favor 
lower values shall be no less than the higher of:
    (1) The mean of the sample, or
    (2) The upper 90-percent confidence limit of the true mean divided 
by 1.05;
    (B) Any represented value of the energy efficiency or other measure 
of energy consumption of the central air conditioner or heat pump for 
which consumers would favor higher values shall be no greater than the 
lower of:
    (1) The mean of the sample, or
    (2) The lower 90-percent confidence limit of the true mean divided 
by 0.95;
    (C) For heat pumps, all units of the sample population must be 
tested in both the cooling and heating modes and the results used for 
determining the heat pump's certified SEER and HSPF ratings in 
accordance with paragraph (c)(3)(i)(B) of this section.
    (ii) For split-system air conditioners and heat pumps, the 
condenser-evaporator coil combination selected for tests pursuant to 
paragraph (c)(3)(i) of this section shall include the evaporator coil 
that is likely to have the largest volume of retail sales with the 
particular model of condensing unit. For mini-split condensing units 
that are designed to always be installed with more than one indoor 
unit, a ``tested combination'' as defined in 10 CFR 430.2 shall be used 
for tests pursuant to paragraph (c)(3)(i) of this section. For multi-
split systems, each model of condensing unit shall be tested with two 
different sets of indoor units. For one set, a ``tested combination'' 
composed entirely of non-ducted indoor units shall be used. For the 
second set, a ``tested combination'' composed entirely of ducted indoor 
units shall be used. However, for any split-system air conditioner 
having a single-speed compressor, the condenser-evaporator coil 
combination selected for tests pursuant to paragraph (c)(3)(i) of this 
section shall include the indoor coil-only unit that is likely to have 
the largest volume of retail sales with the particular model of outdoor 
unit. This coil-only requirement does not apply to split-system air 
conditioners that are only sold and installed with blower-coil indoor 
units, specifically mini-splits, multi-splits, and through-the-wall 
units. This coil-only requirement does not apply to any split-system 
heat pumps. For every other split-system combination that includes the 
same model of condensing unit but a different model of evaporator coil 
and for every other mini-split and multi-split system that includes the 
same model of condensing unit but a different set of evaporator coils, 
whether the evaporator coil(s) is manufactured by the same manufacturer 
or by a component manufacturer, either--
    (A) A sample of sufficient size, comprised of production units or 
representing production units, must be tested as complete systems with 
the resulting ratings for the outdoor unit-indoor unit(s) combination 
obtained in accordance with paragraphs (c)(3)(i)(A) and (c)(3)(i)(B) of 
this section; or
    (B) The representative values of the measures of energy efficiency 
must be assigned as follows,
    (1) Using an alternative rating method (ARM) that has been approved 
by DOE in accordance with the provisions of Sec.  429.23(e)(1) and (2); 
or
    (2) For multi-split systems composed entirely of non-ducted indoor 
units, set equal to the system tested in accordance with paragraph 
(c)(3)(i) of this section whose tested combination was entirely non-
ducted indoor units;
    (3) For multi-split systems composed entirely of ducted indoor 
units, set

[[Page 56815]]

equal to the system tested in accordance with paragraph (c)(3)(i) of 
this section when the tested combination was entirely ducted indoor 
units; and
    (4) For multi-split systems having a mix of non-ducted and ducted 
indoor units, set equal to the mean of the values for the two systems 
-- one having the tested combination of all non-ducted units and the 
second having the tested combination of all ducted indoor units -- 
tested in accordance with paragraph (c)(3)(i) of this section.
    (iii) Whenever the representative values of the measures of energy 
consumption, as determined by the provisions of paragraph (c)(3)(ii)(B) 
of this section, do not agree within 5 percent of the representative 
values of the measures of energy consumption as determined by actual 
testing, the representative values determined by actual testing must be 
used to comply with section 323(c) of the Act or to comply with rules 
under section 324 of the Act.
    (4) For each basic model of water heaters, a sample of sufficient 
size shall be tested to insure that--
    (i) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of a basic 
model for which consumers would favor lower values shall be no less 
than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10, and
    (ii) Any represented value of the energy factor or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (5)(i) For each basic model of furnaces, other than basic models of 
those sectional cast-iron boilers which may be aggregated into groups 
having identical intermediate sections and combustion chambers, a 
sample of sufficient size shall be tested to insure that--
    (A) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of a basic 
model for which consumers would favor lower values shall be no less 
than the higher of:
    (1) The mean of the sample, or
    (2) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and
    (B) Any represented value of the annual fuel utilization efficiency 
or other measure of energy consumption of a basic model for which 
consumers would favor higher values shall be no greater than the lower 
of:
    (1) The mean of the sample, or
    (2) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (ii) For the lowest capacity basic model of a group of basic models 
of those sectional cast-iron boilers having identical intermediate 
sections and combustion chambers, a sample of sufficient size shall be 
tested to insure that--
    (A) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of a basic 
model for which consumers would favor lower values shall be no less 
than the higher of:
    (1) The mean of the sample, or
    (2) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and
    (B) Any represented value of the fuel utilization efficiency or 
other measure of energy consumption of a basic model for which 
consumers would favor higher values shall be no greater than the lower 
of:
    (1) The mean of the sample, or
    (2) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (iii) For the highest capacity basic model of a group of basic 
models of those sectional cast-iron boilers having identical 
intermediate sections and combustion chambers, a sample of sufficient 
size shall be tested to insure that--
    (A) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of a basic 
model for which consumers would favor lower values be no less than the 
higher of:
    (1) The mean of the sample, or
    (2) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and
    (B) Any represented value of the fuel utilization efficiency or 
other measure of energy consumption of a basic model for which 
consumers would favor higher values shall be no greater than the lower 
of:
    (1) The mean of the sample, or
    (2) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (iv) For each basic model or capacity other than the highest or 
lowest of the group of basic models of sectional cast-iron boilers 
having identical intermediate sections and combustion chambers, 
represented values of measures of energy consumption shall be 
determined by either--
    (A) A linear interpolation of data obtained for the smallest and 
largest capacity units of the family, or
    (B) Testing a sample of sufficient size to insure that:
    (1) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of a basic 
model for which consumers would favor lower values shall be no less 
than the higher of
    (i) The mean of the sample, or
    (ii) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and
    (2) Any represented value of the energy factor or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be no greater than the lower of:
    (i) The mean of the sample, or
    (ii) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (v) Whenever measures of energy consumption determined by linear 
interpolation do not agree with measures of energy consumption 
determined by actual testing, the values determined by testing must be 
used for certification.
    (vi) In calculating the measures of energy consumption for each 
unit tested, use the design heating requirement corresponding to the 
mean of the capacities of the units of the sample.
    (6) For each basic model of dishwashers, a sample of sufficient 
size shall be tested to insure that--
    (i) Any represented value of estimated annual operating cost, 
energy or water consumption or other measure of energy or water 
consumption of a basic model for which consumers would favor lower 
values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and
    (ii) Any represented value of the energy or water factor or other 
measure of energy or water consumption of a basic model for which 
consumers would favor higher values shall be no greater than the lower 
of:
    (A) The mean of the sample, or
    (B) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (7) For each basic model of residential clothes washers, a sample 
of sufficient size shall be tested to insure that--
    (i) Any represented value of the water factor, the estimated annual 
operating cost, the energy or water consumption, or other measure of 
energy or water consumption of a basic model for which consumers would 
favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and

[[Page 56816]]

    (ii) Any represented value of the modified energy factor or other 
measure of energy or water consumption of a basic model for which 
consumers would favor higher values shall be no greater than the lower 
of:
    (A) The mean of the sample, or
    (B) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (8) For each basic model of clothes dryers a sample of sufficient 
size shall be tested to insure that--
    (i) Any represented value of estimated annual operating cost, 
energy consumption or other measure of energy consumption of a basic 
model for which consumers would favor lower values shall be no less 
than the higher of:
    (A) The mean of the sample, or
    (B) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and
    (ii) Any represented value of the energy factor or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (11) For each basic model of pool heater a sample of sufficient 
size shall be tested to insure that any represented value of the 
thermal efficiency or other measure of energy consumption of a basic 
model for which consumers would favor higher values shall be no greater 
than the lower of:
    (i) The mean of the sample, or
    (ii) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (12) For each basic model of fluorescent lamp ballasts, a sample of 
sufficient size, not less than four, shall be tested to insure that--
    (i) Any represented value of estimated annual energy operating 
costs, energy consumption, or other measure of energy consumption of a 
basic model for which consumers would favor lower values shall be no 
less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 99 percent confidence limit of the true mean divided 
by 1.01, and
    (ii) Any represented value of the ballast efficacy factor or other 
measure of the energy consumption of a basic model for which consumers 
would favor a higher value shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 99 percent confidence limit of the true mean divided 
by 0.99.
    (13)(i) For each basic model of general service fluorescent lamp, 
general service incandescent lamp, and incandescent reflector lamp, 
samples of production lamps shall be tested and the results for all 
samples shall be averaged for a 12-month period. A minimum sample of 21 
lamps shall be tested. The manufacturer shall randomly select a minimum 
of three lamps from each month of production for a minimum of 7 out of 
the 12-month period. In the instance where production occurs during 
fewer than 7 of such 12 months, the manufacturer shall randomly select 
3 or more lamps from each month of production, where the number of 
lamps selected for each month shall be distributed as evenly as 
practicable among the months of production to attain a minimum sample 
of 21 lamps. Any represented value of lamp efficacy of a basic model 
shall be based on the sample and shall be no greater than the lower of 
the mean of the sample or the lower 95-percent confidence limit of the 
true mean (X<INF>L</INF>) divided by 0.97, i.e.,
[GRAPHIC] [TIFF OMITTED] TP16SE10.000

Where:

x = the mean luminous efficacy of the sample
s = the sample standard deviation
t<INF>0.95</INF> = the t statistic for a 95-percent confidence limit 
for n-1 degrees of freedom (from statistical tables)
    n = sample size

    (ii) For each basic model of general service fluorescent lamp, the 
color rendering index (CRI) shall be measured from the same lamps 
selected for the lumen output and watts input measurements in paragraph 
(c)(13)(i) of this section, i.e., the manufacturer shall measure all 
lamps for lumens, watts input, and CRI. The CRI shall be represented as 
the average of a minimum sample of 21 lamps and shall be no greater 
than the lower of the mean of the sample or the lower 95-percent 
confidence limit of the true mean (X<INF>L</INF>) divided by 0.97, 
i.e.,
[GRAPHIC] [TIFF OMITTED] TP16SE10.001

Where:

x = the mean color rendering index of the sample
s = the sample standard deviation
t<INF>0.95</INF> = the t statistic for a 95-percent confidence limit 
for n-1 degrees of freedom (from statistical tables)
n = sample size

    (14) For each basic model of faucet, a sample of sufficient size 
shall be tested to ensure that any represented value of water 
consumption of a basic model for which consumers favor lower values 
shall be no less than the higher of:
    (i) The mean of the sample or
    (ii) The upper 95 percent confidence limit of the true mean divided 
by 1.05.
    (15) For each basic model of showerhead, a sample of sufficient 
size shall be tested to ensure that any represented value of water 
consumption of a basic model for which consumers favor lower values 
shall be no less than the higher of:
    (i) The mean of the sample or
    (ii) The upper 95 percent confidence limit of the true mean divided 
by 1.05.
    (16) For each basic model of water closet, a sample of sufficient 
size shall be tested to ensure that any represented value of water 
consumption of a basic model for which consumers favor lower values 
shall be no less than the higher of:
    (i) The mean of the sample or
    (ii) The upper 90 percent confidence limit of the true mean divided 
by 1.1.
    (17) For each basic model of urinal, a sample of sufficient size 
shall be tested to ensure that any represented value of water 
consumption of a basic model for which consumers favor lower values 
shall be no less than the higher of:
    (1) The mean of the sample or
    (2) The upper 90 percent confidence limit of the true mean divided 
by 1.1.
    (18) For each basic model of ceiling fan light kit with sockets for 
medium screw base lamps or pin-based fluorescent lamps selected for 
testing, a sample of sufficient size shall be selected at random and 
tested to ensure that--
    (i) Any represented value of estimated energy consumption or other 
measure of energy consumption of a basic model for which consumers 
would favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.1; and
    (ii) Any represented value of the airflow efficiency or other 
measure of energy consumption of a basic model for which consumers 
would favor higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.9.
    (19) For each basic model of bare or covered (no reflector) medium 
base compact fluorescent lamp selected for testing, a minimum sample of 
no less than 5 units per basic model must be used when testing for the 
efficacy, 1000-hour lumen maintenance, and the lumen maintenance, a 
minimum sample

[[Page 56817]]

of no less than 6 unique units (i.e., units that have not previously 
been tested) per basic model must be used when testing for the rapid 
cycle stress, and a minimum sample of no less than 10 units per basic 
model must be used when testing for the average rated lamp life. With 
the exception of the rapid cycle stress test, the units tested in the 
sample should be the same. For the efficacy, the 1000-hour lumen 
maintenance, and the lumen maintenance, each unit within the sample 
must be tested in the base up position unless the product is labeled 
restricted by the manufacturer, in which case the unit should be tested 
in the manufacturer specified position. For the rapid cycle stress 
test, each unit within the sample can be tested in the base up or down 
position as stated by the manufacturer. For the average rated lamp life 
test, half of the sample should be tested in the base up position and 
half of the sample should be tested in the base down position, unless 
specific use or position appears on the packaging of that particular 
unit. Any representative value of efficacy, 1000-hour lumen 
maintenance, lumen maintenance, and average rated lamp life, shall be 
based on the sample selected at random and tested to ensure that the 
represented value shall be no greater than the lower of:
    (i) The mean of the sample, or
    (ii) The lower 97.5 percent confidence limit of the true mean 
divided by 0.95.
    (20) For each basic model of dehumidifier selected for testing, a 
sample of sufficient size shall be selected at random and tested to 
ensure that--
    (i) Any represented value of estimated energy consumption or other 
measure of energy consumption of a basic model for which consumers 
would favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the energy factor or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (21) For each basic model of external power supply selected for 
testing, a sample of sufficient size shall be selected at random and 
tested to ensure that--
    (i) Any represented value of the estimated energy consumption of a 
basic model for which consumers would favor lower values shall be no 
less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 97.5 percent confidence limit of the true mean 
divided by 1.05; and
    (ii) Any represented value of the estimated energy consumption of a 
basic model for which consumers would favor higher values shall be no 
greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 97.5 percent confidence limit of the true mean 
divided by 0.95.
    (22) For each basic model of candelabra base incandescent lamp and 
intermediate base incandescent lamp, a minimum sample of 21 lamps shall 
be tested. Any represented value of lamp wattage of a basic model shall 
be based on the sample and shall be no greater than the lower of the 
mean of the sample or the lower 95-percent confidence limit of the true 
mean (X<INF>L</INF>) divided by 0.97, i.e.,
[GRAPHIC] [TIFF OMITTED] TP16SE10.002


Where:

x = the mean wattage of the sample
s = the sample standard deviation
t<INF>0.95</INF> = the t statistic for a 95-percent confidence limit 
for n-1 degrees of freedom (from statistical tables)
n = sample size

    (23) For each basic model of commercial refrigerator, freezer, or 
refrigerator-freezer selected for testing, a sample of sufficient size 
shall be selected at random and tested to ensure that--
    (i) Any represented value of estimated energy consumption or other 
measure of energy consumption of a basic model for which consumers 
would favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the energy efficiency or other 
measure of energy consumption of a basic model for which consumers 
would favor higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (24) A manufacturer must determine the efficiency of each basic 
model of commercial heating, ventilating, air conditioning, and water 
heating (HVAC and WH) equipment either by testing, in accordance with 
applicable test procedures in Sec. Sec.  431.76, 431.86, 431.96, or 
431.106 and the provisions of this section, or by application of an 
alternative efficiency determination method (AEDM) that meets the 
requirements of Sec.  429.23 and the provisions of this section. For 
each basic model of commercial HVAC and WH equipment, a sample of 
sufficient size shall be selected and tested to ensure that--
    (i) Any represented value of energy efficiency or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.95, and
    (ii) Any represented value of energy consumption or other measure 
of energy usage of a basic model for which consumers would favor lower 
values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.05.
    (25) For each basic model of automatic commercial ice maker 
selected for testing, a sample of sufficient size shall be selected at 
random and tested to ensure that--
    (i) Any represented value of estimated maximum energy use or other 
measure of energy consumption of a basic model for which consumers 
would favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the energy efficiency or other 
measure of energy consumption of a basic model for which consumers 
would favor higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (26) For each basic model of commercial clothes washers, a sample 
of sufficient size shall be tested to insure that--
    (i) Any represented value of estimated energy or water consumption 
or other measure of energy or water consumption of a basic model for 
which consumers would favor lower values shall be no less than the 
higher of:
    (A) The mean of the sample, or
    (B) The upper 97\1/2\ percent confidence limit of the true mean 
divided by 1.05, and
    (ii) Any represented value of the modified energy factor, water 
factor, or other measure of energy or water

[[Page 56818]]

consumption of a basic model for which consumers would favor higher 
values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 97\1/2\ percent confidence limit of the true mean 
divided by 0.95.
    (27) A manufacturer must determine the efficiency of each basic 
model of distribution transformer either by testing, in accordance with 
Sec.  431.193 and the provisions of this section, or by application of 
an AEDM) that meets the requirements of Sec.  429.23 and the provisions 
of this section.
    (i) Selection of units for testing within a basic model. For each 
basic model a manufacturer selects for testing, it shall select and 
test units as follows:
    (A) If the manufacturer would produce five or fewer units of a 
basic model over a reasonable period of time (approximately 180 days), 
then it must test each unit. However, a manufacturer may not use a 
basic model with a sample size of fewer than five units to substantiate 
an AEDM pursuant to Sec.  429.23.
    (B) If the manufacturer produces more than five units over such 
period of time, it must either test all such units or select a sample 
of at least five units and test them.
    (ii) Applying results of testing. In a test of compliance with a 
represented efficiency, the average efficiency of the sample, X, which 
is defined by
[GRAPHIC] [TIFF OMITTED] TP16SE10.003

where X<INF>i</INF> is the measured efficiency of unit i and n is 
the number of units tested, must satisfy the condition:
[GRAPHIC] [TIFF OMITTED] TP16SE10.004

where RE is the represented efficiency.

    (28) For each basic model of illuminated exit sign selected for 
testing, a sample of sufficient size shall be selected at random and 
tested to ensure that--
    (i) Any represented value of estimated input power demand or other 
measure of energy consumption of a basic model for which consumers 
would favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the energy efficiency or other 
measure of energy consumption of a basic model for which consumers 
would favor higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (29) For each basic model of traffic signal module or pedestrian 
module selected for testing, a sample of sufficient size shall be 
selected at random and tested to ensure that--
    (i) Any represented value of estimated maximum and nominal wattage 
or other measure of energy consumption of a basic model for which 
consumers would favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the energy efficiency or other 
measure of energy consumption of a basic model for which consumers 
would favor higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (30) For each basic model of commercial prerinse spray valves 
selected for testing, a sample of sufficient size shall be selected at 
random and tested to ensure that--
    (i) Any represented value of estimated water consumption or other 
measure of water consumption of a basic model for which consumers would 
favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the water efficiency or other measure 
of water consumption of a basic model for which consumers would favor 
higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (31) For each basic model of refrigerated bottled or canned 
beverage vending machine selected for testing, a sample of sufficient 
size shall be selected at random and tested to ensure that--
    (i) Any represented value of estimated energy consumption or other 
measure of energy consumption of a basic model for which consumers 
would favor lower values shall be no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (ii) Any represented value of the energy efficiency or other 
measure of energy consumption of a basic model for which consumers 
would favor higher values shall be no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (32) For each basic model of metal halide lamp ballast selected for 
testing, a sample of sufficient size, not less than four, shall be 
selected at random and tested to ensure that:
    (i) Any represented value of estimated energy efficiency calculated 
as the measured output power to the lamp divided by the measured input 
power to the ballast (P<INF>out</INF>/P<INF>in</INF>), of a basic model 
is no less than the higher of:
    (A) The mean of the sample, or
    (B) The upper 99-percent confidence limit of the true mean divided 
by 1.01.
    (ii) Any represented value of the energy efficiency of a basic 
model is no greater than the lower of:
    (A) The mean of the sample, or
    (B) The lower 99-percent confidence limit of the true mean divided 
by 0.99.

Subpart C--Certification


Sec.  429.17  Purpose and scope.

    This subpart sets forth the procedures for manufacturers to certify 
that their covered products and covered equipment comply with the 
applicable energy conservation standards.


Sec.  429.19  Certification.

    (a) Certification. Each manufacturer, before distributing in 
commerce any basic model of a covered product or covered equipment 
subject to an applicable energy conservation standard set forth in 
parts 430 and 431 of this subchapter, and annually thereafter on or 
before the dates provided in paragraph (e) of this section, shall 
certify by means of a certification report that each basic model meets 
the applicable energy conservation standard(s). The certification 
report(s) must be submitted to DOE in accordance with the submission 
procedures of paragraph (i) of this section.
    (b) Certification report. Manufacturers of covered products or 
covered equipment must submit a certification report for all basic 
models to DOE. The certification report shall include a compliance 
statement (See paragraph (c) of this section.) for each basic model:
    (1) The product or equipment type;
    (2) Product or equipment class (as denoted in the provisions of 
part 430 or 431 containing the applicable energy conservation 
standard);

[[Page 56819]]

    (3) Manufacturer's name and address;
    (4) Private labeler's name(s) and address (if applicable);
    (5) Brand name;
    (6) For each brand, the basic model number and the individual 
manufacturer's model numbers covered by that basic model; in the case 
of external power supplies, when the manufacturer is certifying using a 
design family, the individual manufacturer's model numbers covered by 
the design family; in the case of distribution transformers, the 
individual manufacturer's model numbers covered by the kilovolt ampere 
(kVA) grouping;
    (7) Whether the submission is for a new model, a discontinued 
model, a correction to a previously submitted model, data on a 
historical model, or a model that has been found in violation of a 
voluntary industry certification program;
    (8) The sample size and the total number of tests performed;
    (9) Certifying party's U.S. Customs and Border Protection (CBP) 
importer identification numbers assigned by CBP pursuant to 19 CFR 
24.5, if applicable;
    (10) Whether certification is based upon any waiver of test 
procedure requirements under Sec.  430.27 or Sec.  431.401 and the date 
of such waivers;
    (11) Whether certification is based upon any exception relief from 
an applicable energy conservation standard and the date such relief was 
issued by DOE's Office of Hearing and Appeals;
    (12) Whether certification is based upon the use of an alternate 
way of determining measures of energy conservation (e.g., an ARM or 
AEDM), or other method of testing, for determining measures of energy 
conservation and the approval date, if applicable, of any such 
alternate rating, testing, or efficiency determination method; and
    (13) For:
    (i) Residential refrigerators, residential refrigerator-freezers, 
and residential freezers, the annual energy use in kilowatt hours per 
year, total adjusted volume in cubic feet, whether the basic model has 
variable defrost control (in which case, manufacturers must also report 
the values, if any, of CT<INF>L</INF> and CT<INF>M</INF> (For an 
example see section 5.2.1.3 in Appendix A to Subpart B of Part 430) 
used in the calculation of energy consumption), whether the basic model 
has variable anti-sweat heater control (in which case, manufacturers 
must also report the values of Heater Watts at the ten humidity levels 
5%, 15%, through 95% used to calculate the variable anti-sweat heater 
``Correction Factor''), and whether testing has been conducted with 
modifications to the standard temperature sensor locations specified by 
the figures referenced in section 5.1 of Appendices A1, B1, A, and B to 
Subpart B of Part 430.
    (ii) Room air conditioners, the energy efficiency ratio and cooling 
capacity in Btu/h.
    (iii) Residential central air conditioners, the seasonal energy 
efficiency ratio, the cooling capacity in Btu/h, and the manufacturer 
and individual manufacturer's model numbers of the indoor and outdoor 
unit. For central air conditioners whose seasonal energy efficiency 
ratio is based on an installation that includes a particular model of 
ducted air mover (e.g., furnace, air handler, blower kit, etc.), the 
manufacturer's model number of this ducted air mover must be included 
among the model numbers listed on the certification report.
    (iv) Residential central air conditioning heat pumps, the seasonal 
energy efficiency ratio, the cooling capacity in Btu/h, the heating 
seasonal performance factor, and the manufacturer and individual model 
numbers of the indoor and outdoor unit. For central air conditioning 
heat pumps whose seasonal energy efficiency ratio and heating seasonal 
performance factor are based on an installation that includes a 
particular model of ducted air mover (e.g., furnace, air handler, 
blower kit, etc.), the model number of this ducted air mover must be 
included among the model numbers listed on the certification report.
    (v) Small duct, high velocity air conditioners, the seasonal energy 
efficiency ratio and the cooling capacity in Btu/h. Small duct, high 
velocity heat pumps, the seasonal energy efficiency ratio, the heating 
seasonal performance factor, and the cooling capacity in Btu/h.
    (vi) Through-the-wall air conditioners, the seasonal energy 
efficiency ratio and the cooling capacity in Btu/h. Through-the-wall 
heat pumps, the seasonal energy efficiency ratio, the coefficient of 
performance, and the cooling capacity in Btu/h.
    (vii) Residential water heaters, the energy factor and rated 
storage volume in gallons.
    (viii) Residential furnaces and boilers, the annual fuel 
utilization efficiency in percent and the input capacity in Btu/h. For 
cast-iron sectional boilers, a declaration of whether certification is 
based on linear interpolation or testing. In addition, the type of 
ignition system for gas-fired steam and hot water boilers and a 
declaration that the manufacturer has incorporated the applicable 
design requirements for units manufactured on or after September 1, 
2012.
    (ix) Dishwashers, the annual energy use in kilowatt hours per year, 
the water factor in gallons per cycle, and capacity as described in 
Sec.  430.32(f).
    (x) Residential clothes washers, the modified energy factor in 
cubic feet per kilowatt hour per cycle and the capacity in cubic feet. 
For top-loading or front-loading standard-size residential clothes 
washers, a water factor in gallons per cycle per cubic feet must also 
be reported on or after January 1, 2011.
    (xi) Residential clothes dryers, the energy factor in pounds per 
kilowatt hours, the capacity in cubic feet, and the voltage in volts.
    (xii) Direct heating equipment, the annual fuel utilization 
efficiency in percent and the mean input capacity in Btu/h. Note, 
vented hearth heaters as defined in Sec.  430.2 must report on or after 
April 16, 2013.
    (xiii) Gas cooking products, the type of pilot light and a 
declaration that the manufacturer has incorporated the applicable 
design requirements.
    (xiv) Pool heaters, the thermal efficiency in percent and the input 
capacity in Btu/h.
    (xv) Fluorescent Lamp Ballasts, the ballast efficacy factor, the 
ballast power factor, the number of lamps operated by the ballast, and 
the type of lamps operated by the ballast.
    (xvi) General service fluorescent lamps, the testing laboratory's 
National Voluntary Laboratory Accreditation Program (NVLAP) 
identification number or other NVLAP-approved accreditation 
identification, production date codes (and accompanying decoding 
scheme), the 12-month average lamp efficacy in lumens per watt, lamp 
wattage, correlated color temperature, and the 12-month average Color 
Rendering Index.
    (xvii) Incandescent reflector lamps, the laboratory's NVLAP 
identification number or other NVLAP-approved accreditation 
identification, production date codes (and accompanying decoding 
scheme), the 12-month average lamp efficacy in lumens per watt, and 
lamp wattage.
    (xviii) Faucets, the maximum water use in gallons per minute or, in 
the case of metering faucets, gallons per cycle for each faucet and the 
flow water pressure in pounds per square inch.
    (xix) Showerheads, the maximum water use in gallons per minute and 
the maximum flow water pressure in pounds per square inch.
    (xx) Water closets, the maximum water use in gallons per flush.
    (xxi) Urinals, the maximum water use in gallons per flush and for 
trough-type

[[Page 56820]]

urinals, the length of the trough-type urinal.
    (xxii) Ceiling fans, the number of spends within the ceiling fan 
controls and a declaration that the manufacturer has incorporated the 
applicable design requirements.
    (xxiii) Ceiling fan light kits with sockets for medium screw base 
lamps or pin-based fluorescent lamps, the efficacy in lumens per watt.
    (xxiv) Ceiling fan light kits with sockets for other than medium 
screw base lamps or pin-based fluorescent lamps, the features that have 
been incorporated into the ceiling fan light kit to meet the applicable 
design requirement (e.g., circuit breaker, fuse, ballast).
    (xxv) Torchieres, the features that have been incorporated into the 
torchiere to meet the applicable design requirement (e.g., circuit 
breaker, fuse, ballast).
    (xxvi) Medium base compact fluorescent lamps, the testing 
laboratory's NVLAP identification number or other NVLAP-approved 
accreditation identification, production date codes (and accompanying 
decoding scheme), the minimum initial efficacy in lumens per watt, the 
lumen maintenance at 1,000 hours in percentage, the lumen maintenance 
at 40 percent of rated life in lumens, the rapid cycle stress test, and 
the lamp life in hours.
    (xxvii) Dehumidifiers, the energy factor in liters per kilowatt 
hour and capacity in pints per day.
    (xxviii) External power supplies, the average active mode 
efficiency percentage, no-load mode power consumption in watts, 
nameplate output power in watts, and, if missing from the nameplate, 
the output current in amperes of the highest- and lowest-voltage models 
within the external power supply design family.
    (xxix) Switch-selectable single-voltage external power supplies, 
the average active mode efficiency percentage and no-load mode power 
consumption in watts at the lowest and highest selectable output 
voltage, nameplate output power in watts, and, if missing from the 
nameplate, the output current in amperes.
    (xxx) On or after the effective dates specified in Sec.  430.32, 
general service incandescent lamps, the testing laboratory's National 
Voluntary Laboratory Accreditation Program (NVLAP) identification 
number or other NVLAP-approved accreditation identification, production 
date codes (and accompanying decoding scheme), the 12-month average 
maximum rate wattage, the 12-month average minimum rate lifetime, and 
the 12-month average Color Rendering Index.
    (xxxi) Candelabra base incandescent lamp, the wattage in watts.
    (xxxii) Intermediate base incandescent lamp, the wattage in watts.
    (xxxiii) Self-contained commercial refrigerators with solid doors, 
refrigerators with transparent doors, freezers with solid doors, and 
commercial freezers with transparent doors, the maximum daily energy 
consumption in kilowatt hours per day and the volume in cubic feet.
    (xxxiv) Self-contained commercial refrigerator/freezers with solids 
doors, the maximum daily energy consumption in kilowatt hours per day 
and the adjusted volume in cubic feet.
    (xxxv) On or after January 1, 2012, remote condensing commercial 
refrigerators, freezers, and refrigerator-freezers, self-contained 
commercial refrigerators, freezers, and refrigerator-freezers without 
doors, commercial ice-cream freezers, and commercial refrigeration 
equipment with two or more compartments (i.e., hybrid refrigerators, 
hybrid freezers, hybrid refrigerator-freezers, and non-hybrid 
refrigerator-freezers), the maximum daily energy consumption in 
kilowatt hours per day, the total display area (TDA) in feet squared or 
the volume in cubic feet as necessary to demonstrate compliance with 
the standards set forth in Sec.  431.66, the rating temperature in 
degrees Fahrenheit, the operating temperature range in degrees 
Fahrenheit (e.g., >= 32 [deg]F, < 32 [deg]F, and <=-5 [deg]F), the 
equipment family designation as described in Sec.  431.66, and the 
condensing unit configuration.
    (xxxvi) Commercial warm air furnaces, the thermal efficiency in 
percent and the maximum rated input capacity in Btu/h.
    (xxxvii) Commercial packaged boilers, the combustion efficiency in 
percent and the maximum rated input capacity in Btu/h for equipment 
manufactured before March 2, 2012. For equipment manufactured on or 
after March 2, 2012, either the combustion efficiency or the thermal 
efficiency as required in Sec.  431.87 and the maximum rated input 
capacity in Btu/h.
    (xxxviii) Commercial package air-conditioning and heating equipment 
(except small commercial package air conditioning and heating equipment 
that is air-cooled with a cooling capacity less than 65,000 Btu/h), the 
energy efficiency ratio, the coefficient of performance as necessary to 
meet the standards set forth in Sec.  431.97, the cooling capacity in 
Btu/h, and the type of heating used by the unit.
    (xxxix) Small commercial package air conditioning and heating 
equipment that is air-cooled with a cooling capacity less than 65,000 
Btu/h, the seasonal energy efficiency ratio, the heating seasonal 
performance factor as necessary to meet the standards set forth in 
Sec.  431.97, and the cooling capacity in Btu/h.
    (xl) Packaged terminal air conditioners, the energy efficiency 
ratio, the cooling capacity in Btu/h, and the wall sleeve dimensions in 
inches. Packaged terminal heat pumps, the energy efficiency ratio, the 
coefficient of performance, the cooling capacity in Btu/h, and the wall 
sleeve dimensions in inches.
    (xli) Single package vertical air conditioner, the energy 
efficiency ratio and the cooling capacity in Btu/h. Single package 
vertical heat pumps, the energy efficiency ratio, the coefficient of 
performance, and the cooling capacity in Btu/h.
    (xlii) Commercial electric storage water heaters, the maximum 
standby loss in percent per hour and the measured storage volume in 
gallons.
    (xliii) Commercial gas-fired and oil-fired storage water heaters, 
the minimum thermal efficiency in percent, the maximum standby loss in 
Btu/h, the rated storage volume in gallons, and the nameplate input 
rate in Btu/h.
    (xliv) Commercial gas-fired and oil-fired instantaneous water 
heaters greater than or equal to 10 gallons and gas-fired and oil-fired 
hot water supply boilers greater than or equal to 10 gallons, the 
minimum thermal efficiency in percent, the maximum standby loss in Btu/
h, the rated storage volume in gallons, and the nameplate input rate in 
gallons.
    (xlv) Commercial gas-fired and oil-fired instantaneous water 
heaters less than 10 gallons and gas-fired and oil-fired hot water 
supply boilers less than 10 gallons, the minimum thermal efficiency in 
percent and the storage volume in gallons.
    (xlvi) Commercial unfired hot water storage tanks, the minimum 
thermal insulation (i.e., R-value) and the storage volume.
    (xlvii) Automatic commercial ice makers, the maximum energy use in 
kilowatt hours per 100 pounds of ice, the maximum condenser water use 
in gallons per 100 pounds of ice, the harvest rate in pounds of ice per 
24 hours, the type of cooling, and the equipment type.
    (xlviii) Commercial clothes washers, the modified energy factor in 
cubic feet per kilowatt hour per cycle and the water factor in gallons 
per cubic feet per cycle for units manufactured on or after January 8, 
2013.

[[Page 56821]]

    (xlix) For the least efficient basic model of distribution 
transformer within each ``kilovolt ampere (kVA) grouping'' for which 
part 431 prescribes an efficiency standard, the kVA rating, the 
insulation type (i.e., low-voltage dry-type, medium-voltage dry-type or 
liquid-immersed), the number of phases (i.e., single-phase or three-
phase), and the basic impulse insulation level (BIL) group rating (for 
medium-voltage dry-types). As used in this section, a ``kVA grouping'' 
is a group of basic models which all have the same kVA rating, have the 
same insulation type (i.e., low-voltage dry-type, medium-voltage dry-
type or liquid-immersed), have the same number of phases (i.e., single-
phase or three-phase), and, for medium-voltage dry-types, have the same 
BIL group rating (i.e., 20-45 kV BIL, 46-95 kV BIL or greater than 96 
kV BIL).
    (l) Illuminated exit signs, the input power demand in watts.
    (li) Traffic signal modules and pedestrian modules, the maximum 
wattage in watts, the nominal wattage in watts, and the signal type.
    (lii) Commercial unit heaters, the type of ignition system and a 
declaration that the manufacturer has incorporated the applicable 
design requirements.
    (liii) Commercial prerinse spray valves, the flow rate in gallons 
per minute.
    (liv) Refrigerated bottled or canned beverage vending machines, the 
maximum daily energy consumption in kilowatt hours per day, the 
refrigerated volume (V) in cubic feet used to demonstrate compliance 
with standards set forth in Sec.  431.296, the ambient temperature in 
degrees Fahrenheit, and the ambient relative humidity in percent during 
the test for units manufactured on or after August 31, 2012.
    (lv) Walk-in coolers and freezers, the door type, the R-value of 
the insulation of the wall, ceiling, and doors, the R-value of the 
floor (for freezers only), the motor type, and the efficacy of the 
lighting including ballast losses. In addition, for those walk-in 
coolers and freezers with transparent reach-in doors and windows, the 
glass type of the doors and windows (e.g., double-pane with heat 
reflective treatment, triple-pane glass with gas fill, etc.), the power 
draw of the antisweat heater in watts, and a declaration that the 
manufacturer has incorporated the applicable design requirements.
    (lvi) Metal halide lamp fixtures, minimum ballast efficiency in 
percent, the lamp wattage in watts, and the type of ballast (e.g., 
pulse-start, magnetic probe-start, and non-pulse start electronic).
    (c) The compliance statement required by paragraph (b) of this 
section shall include the date, the name of the company official 
signing the statement, and his or her signature, title, address, 
telephone number, and facsimile number and shall certify that:
    (1) The basic model(s) complies with the applicable conservation 
standard(s);
    (2) All required testing has been conducted in conformance with the 
applicable test requirements prescribed in parts 429, 430 and 431 of 
this subchapter, as appropriate, or in accordance with the terms of an 
applicable test procedure waiver;
    (3) All information reported in the certification report is true, 
accurate, and complete; and
    (4) The manufacturer is aware of the penalties associated with 
violations of the Energy Policy and Conservation Act (Pub. L. 94-163), 
as amended by Public Law 95-619, Public Law 100-12, Public Law 100-357, 
and Public Law 102-486 (the Act), the regulations there under, and 18 
U.S.C. 1001 which prohibits knowingly making false statements to the 
Federal Government.
    (d) Copies of reports to the Federal Trade Commission could serve 
in lieu of the certification report provided the reports include all 
required information specified in paragraph (b) of this section.
    (e) Annual filing. All data required by Sec.  429.19(a) through (c) 
shall be submitted to DOE annually, on or before the following dates:

------------------------------------------------------------------------
                                                  Deadline for data
              Product category                        submission
------------------------------------------------------------------------
(1) Fluorescent lamp ballasts, Medium base   Mar. 1.
 compact fluorescent lamps, Incandescent
 reflector lamps, General service
 fluorescent lamps, General service
 incandescent lamps, Intermediate base
 incandescent lamps, Candelabra base
 incandescent lamps, Residential ceiling
 fans, Residential ceiling fan light kits,
 Residential showerheads, Residential
 faucets, Residential water closets, and
 Residential urinals.
(2) Residential water heater, Residential    May 1.
 furnaces, Residential boilers, Residential
 pool heaters, Commercial water heaters,
 Commercial hot water supply boilers,
 Commercial unfired hot water storage
 tanks, Commercial packaged boilers,
 Commercial warm air furnaces, and
 Commercial unit heaters.
(3) Residential dishwashers, Commercial      June 1.
 prerinse spray valves, Illuminated exit
 signs, Traffic signal modules, Pedestrian
 modules, and Distribution transformers.
(4) Room air conditioners, Residential       July 1.
 central air conditioners, Residential
 central heat pumps, Small duct high
 velocity system, Space constrained
 products, Commercial package air-
 conditioning and heating equipment,
 Packaged terminal air conditioners,
 Packaged terminal heat pumps, and Single
 package vertical units.
(5) Residential refrigerators, Residential   Aug. 1.
 refrigerators-freezers, Residential
 freezers, Commercial refrigerator,
 freezer, and refrigerator-freezer,
 Automatic commercial automatic ice makers,
 Refrigerated bottled or canned beverage
 vending machine, Walk-in coolers, and Walk-
 in freezers.
(6) Torchieres, Residential dehumidifiers,   Sept. 1.
 Metal halide lamp fixtures, and External
 power supplies.
(7) Residential clothes washers,             Oct. 1.
 Residential clothes dryers, Residential
 direct heating equipment, Residential
 cooking products, and Commercial clothes
 washers.
------------------------------------------------------------------------

     (f) New model filing. (1) In addition to the annual filing 
schedule in paragraph (e) of this section, any new basic models must be 
certified pursuant to paragraph (a) of this section before distribution 
in commerce. New basic model numbers shall be designated whenever a new 
basic model is created pursuant to this paragraph (f).
    (2) Prior to or concurrent with the distribution of a new model of 
general service fluorescent lamp or incandescent reflector lamp, each 
manufacturer shall submit a statement signed by a company official 
stating how the manufacturer determined that the lamp meets or exceeds 
the energy conservation standards, including a description of any 
testing or analysis the manufacturer performed. This statement shall 
also list the model number, lamp wattage, and date of commencement of 
manufacture. Manufacturers of general service fluorescent lamps and 
incandescent reflector lamps shall submit the certification report 
required by paragraph (b) of this section within

[[Page 56822]]

one year after the date manufacture of that new model commences.
    (3) For distribution transformers, the manufacturer must submit all 
information required in paragraphs (b) and (c) of this section for the 
new basic model, unless the manufacturer has previously submitted to 
the Department a certification report for a basic model of distribution 
transformer that is in the same kVA grouping as the new basic model.
    (g) Discontinued model filing. When production of a basic model has 
ceased and it is no longer being sold or offered for sale by the 
manufacturer or private labeler, the manufacturer shall report this 
discontinued status to DOE as part of the next annual certification 
report following such cessation. For each basic model, the report shall 
include: Product or equipment type, product or equipment class, the 
manufacturer's name, the private labeler name(s), if applicable, the 
brand, and the manufacturer's model number(s) of the basic model that 
has been discontinued.
    (h) Third party submitters. A manufacturer may elect to use a third 
party to submit the certification report to DOE (for example a trade 
association, independent test lab, or other authorized representative, 
including a private labeler acting as a third party submitter on behalf 
of a manufacturer); however, the manufacturer is responsible for 
submission of the certification report to DOE. DOE may refuse to accept 
certification reports from third party submitters who have failed, on 
at least two occasions, to submit reports in accordance with the rules 
of this part.
    (i) Method of submission. Reports required by this section must be 
submitted to DOE electronically at  http://www.regulations.doe.gov/ccms. A manufacturer or third party submitter can find product-specific 
templates for each covered product or covered equipment with 
certification requirements online at https://www.regulations.doe.gov/ccms/templates.html.


Sec.  429.21  Testing Requirements for Certification.

    (a) For purposes of a certification of compliance, the 
determination that a basic model complies with an applicable energy 
conservation standard or water conservation standard shall be 
determined from the calculated values derived pursuant to the 
applicable requirements set forth in parts 429, 430 and 431 of this 
subchapter. For purposes of a certification of compliance, the 
determination that a basic model complies with the applicable design 
standard shall be based upon the incorporation of specific design 
requirements in parts 430 and 431 or as specified in section 325 and 
342 of the Act.
    (b) Pursuant to Sec.  429.51, where DOE has determined a particular 
entity is in noncompliance with an applicable standard or certification 
requirement, DOE may impose additional testing requirements for 
certification as a remedial measure.


Sec.  429.23  Alternative Methods for Determining Efficiency or Energy 
Use.

    (a) General. A manufacturer of residential central air conditioners 
and heat pumps, distribution transformers, and commercial HVAC and WH 
equipment may not distribute any basic model of such equipment in 
commerce unless the manufacturer has determined the efficiency of the 
basic model either from testing of the basic model or from application 
of an alternative method to the basic model, in accordance with the 
requirements of this section. In instances where a manufacturer has 
tested that basic model to validate the alternative method, the 
efficiency of that basic model must be determined and rated according 
to results from actual testing. In addition, a manufacturer may not 
knowingly use an AEDM to overrate the efficiency of a basic model. For 
each basic model of distribution transformer that has a configuration 
of windings which allows for more than one nominal rated voltage, the 
manufacturer must determine the basic model's efficiency either at the 
voltage at which the highest losses occur or at each voltage at which 
the transformer is rated to operate.
    (b) Testing. Testing for each covered product or covered equipment 
must be done in accordance with the sampling plans established in Sec.  
429.9 and the testing procedures in parts 430 and 431 of this 
subchapter.
    (c) Alternative efficiency determination method (AEDM) for 
Commercial HVAC and WH equipment--(1) Criteria an AEDM must satisfy. A 
manufacturer may not apply an AEDM to a basic model to determine its 
efficiency pursuant to this section unless:
    (i) The AEDM is derived from a mathematical model that represents 
the energy consumption characteristics of the basic model; and
    (ii) The AEDM is based on engineering or statistical analysis, 
computer simulation or modeling, or other analytic evaluation of 
performance data.
    (2) Substantiation of an AEDM. Before using an AEDM, the 
manufacturer must substantiate and validate the AEDM as follows:
    (i) A manufacturer must first apply the AEDM to three or more basic 
models that have been tested in accordance with Sec. Sec.  431.173(b) 
and 431.175(a). The predicted efficiency calculated for each such basic 
model from application of the AEDM must be within five percent of the 
efficiency determined from testing that basic model, and the predicted 
efficiencies calculated for the tested basic models must on average be 
within one percent of the efficiencies determined from testing such 
basic models; and
    (ii) Using the AEDM, the manufacturer must calculate the efficiency 
of three or more of its basic models. They must be the manufacturer's 
highest-selling basic models to which the AEDM could apply.
    (iii) The manufacturer must test each of these basic models in 
accordance with Sec.  431.173(b), and either Sec. Sec.  431.174(b) or 
431.175(a), whichever is applicable.
    (iv) The predicted efficiency calculated for each such basic model 
from application of the AEDM must be within three percent of the 
efficiency determined from testing that basic model, and the average of 
the predicted efficiencies calculated for the tested basic models must 
be within one percent of the average of the efficiencies determined 
from testing these basic models.
    (3) Subsequent verification of an AEDM. If a manufacturer has used 
an AEDM pursuant to this section,
    (i) The manufacturer must have available for inspection by the 
Department records showing:
    (A) The method or methods used;
    (B) The mathematical model, the engineering or statistical 
analysis, computer simulation or modeling, and other analytic 
evaluation of performance data on which the AEDM is based;
    (C) Complete test data, product information, and related 
information that the manufacturer generated or acquired under paragraph 
(c)(1) through (2) of this section; and
    (D) The calculations used to determine the average efficiency and 
energy consumption of each basic model to which an AEDM was applied.
    (ii) If requested by the Department, the manufacturer must perform 
at least one of the following:
    (A) Conduct simulations to predict the performance of particular 
basic models of the commercial HVAC and WH product;

[[Page 56823]]

    (B) Provide analyses of previous simulations conducted by the 
manufacturer;
    (C) Conduct sample testing of basic models selected by the 
Department; or
    (D) Conduct a combination of these.
    (d) Alternative efficiency determination method for Distribution 
Transformers--A manufacturer may use an AEDM to determine the 
efficiency of one or more of its untested basic models only if it 
determines the efficiency of at least five of its other basic models 
(selected in accordance with paragraph (d)(3) of this section) through 
actual testing.
    (1) Criteria an AEDM must satisfy. (i) The AEDM has been derived 
from a mathematical model that represents the electrical 
characteristics of that basic model;
    (ii) The AEDM is based on engineering and statistical analysis, 
computer simulation or modeling, or other analytic evaluation of 
performance data; and
    (iii) The manufacturer has substantiated the AEDM, in accordance 
with paragraph (d)(2) of this section, by applying it to, and testing, 
at least five other basic models of the same type, i.e., low-voltage 
dry-type distribution transformers, medium-voltage dry-type 
distribution transformers, or liquid-immersed distribution 
transformers.
    (2) Substantiation of an AEDM. Before using an AEDM, the 
manufacturer must substantiate the AEDM's accuracy and reliability as 
follows:
    (i) Apply the AEDM to at least five of the manufacturer's basic 
models that have been selected for testing in accordance with paragraph 
(d)(3) of this section, and calculate the power loss for each of these 
basic models;
    (ii) Test at least five units of each of these basic models in 
accordance with the applicable test procedure and Sec.  429.9, and 
determine the power loss for each of these basic models;
    (iii) The predicted total power loss for each of these basic 
models, calculated by applying the AEDM pursuant to paragraph (c)(2)(i) 
of this section, must be within plus or minus five percent of the mean 
total power loss determined from the testing of that basic model 
pursuant to paragraph (c)(2)(ii) of this section; and
    (iv) Calculate for each of these basic models the percentage that 
its power loss calculated pursuant to paragraph (c)(2)(i) of this 
section is of its power loss determined from testing pursuant to 
paragraph (c)(2)(ii) of this section, compute the average of these 
percentages, and that calculated average power loss, expressed as a 
percentage of the average power loss determined from testing, must be 
no less than 97 percent and no greater than 103 percent.
    (3) Additional testing requirements. (i) A manufacturer must select 
basic models for testing in accordance with the following criteria:
    (A) Two of the basic models must be among the five basic models 
with the highest unit volumes of production by the manufacturer in the 
prior year, or during the prior 12-calendar-month period beginning in 
2003,\1\ whichever is later;
---------------------------------------------------------------------------

    \1\ When identifying these five basic models, any basic model 
that does not comply with Federal energy conservation standards for 
distribution transformers that may be in effect shall be excluded 
from consideration.
---------------------------------------------------------------------------

    (B) No two basic models should have the same combination of power 
and voltage ratings; and
    (C) At least one basic model should be single-phase and at least 
one should be three-phase.
    (ii) In any instance where it is impossible for a manufacturer to 
select basic models for testing in accordance with all of these 
criteria, the criteria shall be given priority in the order in which 
they are listed. Within the limits imposed by the criteria, basic 
models shall be selected randomly.
    (4) Subsequent verification of an AEDM. (i) Each manufacturer that 
has used an AEDM under this section shall have available for inspection 
by the Department of Energy records showing:
    (A) The method or methods used;
    (B) The mathematical model, the engineering or statistical 
analysis, computer simulation or modeling, and other analytic 
evaluation of performance data on which the AEDM is based;
    (C) Complete test data, product information, and related 
information that the manufacturer has generated or acquired pursuant to 
paragraph (d)(4) of this section; and
    (D) The calculations used to determine the efficiency and total 
power losses of each basic model to which the AEDM was applied.
    (ii) If requested by the Department, the manufacturer must perform 
at least one of the following:
    (A) Conduct simulations to predict the performance of particular 
basic models of distribution transformers specified by the Department;
    (B) Provide analyses of previous simulations conducted by the 
manufacturer;
    (C) Conduct sample testing of basic models selected by the 
Department; or
    (D) Conduct a combination of these.
    (e) Alternate Rating Method (ARM) for residential split-system 
central air conditioners and heat pumps--(1) Criteria an ARM must 
satisfy. The basis of the ARM referred to in Sec.  429.9(c)(3)(ii) for 
residential central air conditioners and heat pumps must be a 
representation of the test data and calculations of a mechanical vapor-
compression refrigeration cycle. The major components in the 
refrigeration cycle must be modeled as ``fits'' to manufacturer 
performance data or by graphical or tabular performance data. Heat 
transfer characteristics of coils may be modeled as a function of face 
area, number of rows, fins per inch, refrigerant circuitry, air-flow 
rate and entering-air enthalpy. Additional performance-related 
characteristics to be considered may include type of expansion device, 
refrigerant flow rate through the expansion device, power of the indoor 
fan and cyclic-degradation coefficient. Ratings for untested 
combinations must be derived from the ratings of a combination tested 
in accordance with Sec.  429.9(c)(3)(i). The seasonal energy efficiency 
ratio (SEER) and/or heating seasonal performance factor (HSPF) ratings 
for an untested combination must be set equal to or less than the lower 
of the SEER and/or HSPF calculated using the applicable DOE-approved 
alternative rating method (ARM). If the method includes an ARM/
simulation adjustment factor(s), determine the value(s) of the 
factors(s) that yield the best match between the SEER/HSPF determined 
using the ARM versus the SEER/HSPF determined from testing in 
accordance with Sec.  429.9(c)(3)(i). Thereafter, apply the ARM using 
the derived adjustment factor(s) only when determining the ratings for 
untested combinations having the same outdoor unit.
    (2) Approval of an ARM. (i) Manufacturers who elect to use an ARM 
for determining measures of energy consumption under Sec.  
429.9(c)(3)(ii)(B)(1) and paragraph (e)(1) of this section must submit 
a request for DOE to review the ARM. Send the request to the U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Building Technologies Program (EE-2J), Attention: Certification and 
Compliance Reports (ARM), Forrestal Building, 1000 Independence Avenue, 
SW., Washington, DC 20585-0121. Approval must be received from the 
Department to use the ARM before the ARM may be used for rating split-
system central air conditioners and heat pumps. If a manufacturer has a 
DOE-approved ARM for products also distributed in commerce by a private 
labeler, the ARM may also be used by the private labeler for rating 
these products. Once an ARM is approved, DOE may contact a

[[Page 56824]]

manufacturer to learn if their ARM has been modified in any way and to 
verify that the ARM is being applied as approved. DOE will give follow-
up priority to individual combinations having questionably high ratings 
(e.g., a coil-only system having a rating that exceeds the rating of a 
coil-only highest sales volume combination by more than 6 percent).
    (ii) Each request to DOE for approval of an ARM must include:
    (A) The name, mailing address, telephone number, and e-mail address 
of the official representing the manufacturer.
    (B) Complete documentation of the alternative rating method to 
allow DOE to evaluate its technical adequacy. The documentation must 
include a description of the methodology, state any underlying 
assumptions, and explain any correlations. The documentation should 
address how the method accounts for the cyclic-degradation coefficient, 
the type of expansion device, and, if applicable, the indoor fan-off 
delay. The requestor must submit any computer programs--including 
spreadsheets--having less than 200 executable lines that implement the 
ARM. Longer computer programs must be identified and sufficiently 
explained, as specified above, but their inclusion in the initial 
submittal package is optional. Applicability or limitations of the ARM 
(e.g., only covers single-speed units when operating in the cooling 
mode, covers units with rated capacities of 3 tons or less, not 
applicable to the manufacturer's product line of non-ducted systems, 
etc.) must be stated in the documentation.
    (C) Complete test data from laboratory tests on four mixed (i.e., 
non-highest-sales-volume combination) systems per each ARM.
    (1) The four mixed systems must include four different indoor units 
and at least two different outdoor units. A particular model of outdoor 
unit may be tested with up to two of the four indoor units. The four 
systems must include two low-capacity mixed systems and two high-
capacity mixed systems. The low-capacity mixed systems may have any 
capacity. The rated capacity of each high-capacity mixed system must be 
at least a factor of two higher than its counterpart low-capacity mixed 
system. The four mixed systems must meet the applicable energy 
conservation standard in Sec.  430.32(c) in effect at the time of the 
rating.
    (2) The four indoor units must come from at least two different 
coil families, with a maximum of two indoor units coming from the same 
coil family. Data for two indoor units from the same coil family, if 
submitted, must come from testing with one of the ``low-capacity mixed 
systems'' and one of the ``high capacity mixed systems.'' A mixed 
system indoor coil may come from the same coil family as the highest-
sales-volume-combination indoor unit (i.e., the ``matched'' indoor 
unit) for the particular outdoor unit. Data on mixed systems where the 
indoor unit is now obsolete will be accepted towards the ARM-validation 
submittal requirement if it is from the same coil family as other 
indoor units still in production.
    (3) The first two sentences of paragraph (e)(2)(ii)(C)(2) of this 
section do not apply if the manufacturer offers indoor units from only 
one coil family. In this case only, all four indoor coils must be 
selected from this one coil family. If approved, the ARM will be 
specifically limited to applications for this one coil family.
    (D) All product information on each mixed system indoor unit, each 
matched system indoor unit, and each outdoor unit needed to implement 
the proposed ARM. The calculated ratings for the four mixed systems, as 
determined using the proposed ARM, must be provided along with any 
other related information that will aid the verification process.
    (E) If request for approval is for an updated ARM, manufacturers 
must identify modifications made to the ARM since the last submittal, 
including any ARM/simulation adjustment factor(s) added since the ARM 
was last approved by DOE.
    (3) Changes to DOE's Regulations Requiring Re-Approval of an ARM. 
Manufacturers who elect to use an ARM for determining measures of 
energy consumption under Sec.  429.9(3)(ii)(B)(1) and (d)(1) of this 
section must resubmit a request for DOE to review the ARM when:
    (i) DOE amends the energy conservation standards as specified in 
Sec.  429.32 for residential central air conditioners and heat pumps. 
In this case, any testing and evidence required under paragraph (e)(2) 
of this subsection shall be developed with units that meet the amended 
energy conservation standards specified in Sec.  429.32.
    (ii) DOE amends the test procedure for residential air conditioners 
and heat pumps as specified in Appendix M to Subpart B of Part 430.
    (4) Manufacturers that elect to use an ARM for determining measures 
of energy consumption under Sec.  429.9(c)(3)(ii)(B)(1) and (e)(1) of 
this section must regularly either subject a sample of their units to 
independent testing, e.g., through a voluntary certification program, 
in accordance with the applicable DOE test procedure, or have the 
representations reviewed by an independent state-registered 
professional engineer who is not an employee of the manufacturer. The 
manufacturer may continue to use the ARM only if the testing 
establishes, or the registered professional engineer certifies, that 
the results of the ARM accurately represent the energy consumption of 
the unit(s). The manufacturer is to keep the records of any such 
testing, and any such certifications, on file for review by DOE for two 
years following the discontinuance of said combination. Any proposed 
change to the alternative rating method must be approved by DOE prior 
to its use for rating.
    (5) Manufacturers who choose to use computer simulation or 
engineering analysis for determining measures of energy consumption 
under Sec.  429.9(c)(3)(ii)(B)(1) and (e)(1) through (e)(4) of this 
section must permit representatives of the Department of Energy to 
inspect for verification purposes the simulation method(s) and computer 
program(s) used. This inspection may include conducting simulations to 
predict the performance of particular outdoor unit ``indoor'' unit 
combinations specified by DOE, analysis of previous simulations 
conducted by the manufacturer, or both.

Subpart D--General Provisions


Sec.  429.24  Maintenance of records.

    The manufacturer of any covered product or covered equipment shall 
establish, maintain, and retain the records of certification reports, 
of the underlying test data for all certification testing, and of any 
other testing conducted to satisfy the requirements of this part 429, 
part 430, and part 431 of this subchapter. Such records shall be 
organized and indexed in a fashion that makes them readily accessible 
for review by DOE upon request. The records shall be retained by the 
manufacturer for a period of two years from the date that production of 
the applicable model has ceased.


Sec.  429.25  Imported products.

    (a) Any person importing any covered product or covered equipment 
into the United States shall comply with the provisions of this part, 
and is subject to the remedies of this part.
    (b) Any covered product or covered equipment offered for 
importation in violation of this part shall be refused admission into 
the customs territory of the United States under rules issued by the 
Department of Homeland Security

[[Page 56825]]

(DHS) and subject to further remedies as provided by law, except that 
DHS may, by such rules, authorize the importation of such covered 
product or covered equipment upon such terms and conditions (including 
the furnishing of a bond) as may appear to DHS appropriate to ensure 
that such covered product or covered equipment will not violate this 
part, or will be exported or abandoned to the United States.


Sec.  429.26  Exported products.

    This part shall not apply to any covered product or covered 
equipment if:
    (a) Such covered product or covered equipment is manufactured, 
sold, or held for sale for export from the United States (or such 
product was imported for export), unless such product is, in fact, 
distributed in commerce for use in the United States; and
    (b) Such covered product or covered equipment, when distributed in 
commerce, or any container in which it is enclosed when so distributed, 
bears a stamp or label stating ``NOT FOR SALE IN THE UNITED STATES.''


Sec.  429.27  Public record.

    Pursuant to the provisions of Sec.  429.71, product-specific 
information submitted by manufacturers to DOE pursuant to Sec.  
429.19(b)(13), including the manufacturer's name, the brand name, and 
applicable model number(s), shall be considered public information not 
exempt from public disclosure.

 Subpart E--Enforcement


Sec.  429.29  Purpose and scope.

    This subpart describes the enforcement authority of the Secretary 
and the General Counsel of DOE to ensure compliance with the 
conservation standards and regulations.


Sec.  429.31  Prohibited acts subjecting persons to enforcement action.

    (a) Each of the following actions are prohibited:
    (1) Failure of a manufacturer to provide, maintain, permit access 
to, or copying of records required to be supplied under the Act and 
this part or failure to make reports or provide other information 
required to be supplied under the Act and this part, including but not 
limited to failure to properly certify covered products and covered 
equipment in accordance with Sec.  429.19 of this part;
    (2) Failure to test any covered product or covered equipment, 
subject to an applicable energy conservation standard, in conformance 
with the applicable test requirements prescribed in 10 CFR parts 430 or 
431; or deliberate use of controls or features in a covered product or 
covered equipment to circumvent the requirements of a test procedure 
and produce test results that are unrepresentative of a product's 
energy or water consumption if measured pursuant to DOE's required test 
procedure;
    (3) Failure of a manufacturer to supply at the manufacturer's 
expense a requested number of covered products or covered equipment to 
a test laboratory designated by the Secretary;
    (4) Failure of a manufacturer to permit a representative designated 
by the Secretary to observe any testing required by the Act and this 
part and inspect the results of such testing;
    (5) Distribution in commerce by a manufacturer or private labeler 
of any new covered product or covered equipment that is not in 
compliance with an applicable energy conservation standard prescribed 
under the Act, except to the extent that the new covered product or 
covered equipment is covered by a regional standard that is more 
stringent than the base national standard;
    (6) Distribution in commerce by a manufacturer or private labeler 
of a basic model of covered product or covered equipment after a notice 
of noncompliance determination has been issued to the manufacturer or 
private labeler;
    (7) Knowing misrepresentation by a manufacturer or private labeler 
of the applicable conservation standard of any covered product or 
covered equipment distributed in commerce; or
    (8) For any manufacturer, distributor, retailer, or private labeler 
to distribute in commerce an adapter that--
    (i) Is designed to allow an incandescent lamp that does not have a 
medium screw base to be installed into a fixture or lamp holder with a 
medium screw base socket; and
    (ii) Is capable of being operated at a voltage range at least 
partially within 110 and 130 volts.
    (9) For any manufacturer or private labeler to knowingly sell a 
product to a distributor, contractor, or dealer with knowledge that the 
entity routinely violates any regional standard applicable to the 
product.
    (b) When the Secretary has reason to believe that a person has 
undertaken a prohibited act listed in paragraph (a) of this section, 
the Secretary may:
    (1) Issue a notice of noncompliance determination;
    (2) Impose additional certification testing requirements;
    (3) Seek injunctive relief;
    (4) Assess a civil penalty for knowing violations; or
    (5) Undertake any combination of the above.


Sec.  429.33  Investigation of compliance.

    DOE may initiate an investigation of compliance upon belief that a 
basic model may not be compliant with an applicable conservation 
standard, certification requirement or other regulation.


Sec.  429.34  Review of certification data.

    DOE may, at any time, request any information relevant to 
determining compliance with any requirement under parts 429, 430 and 
431 of this subchapter, including the data underlying certification of 
a basic model. Such data may be used by DOE to make a determination of 
compliance or noncompliance with an applicable standard.


Sec.  429.35  Subpoena.

    For purposes of carrying out parts 429, 430, and 431 of this 
subchapter, the Secretary or the General Counsel, may sign and issue 
subpoenas for the attendance and testimony of witnesses and the 
production of relevant books, records, papers, and other documents, and 
administer the oaths. Witnesses summoned under the provisions of this 
section shall be paid the same fees and mileage as are paid to 
witnesses in the courts of the United States. In case of contumacy by, 
or refusal to obey a subpoena served, upon any persons subject to this 
part, the Secretary may seek an order from the District Court of the 
United States for any District in which such person is found or resides 
or transacts business requiring such person to appear and give 
testimony, or to appear and produce documents. Failure to obey such 
order is punishable by such court as contempt thereof.


Sec.  429.36  Testing.

    DOE may, at any time, test a basic model to assess whether the 
basic model is in compliance with the applicable energy conservation 
standard(s).


Sec.  429.37  Test notice.

    To obtain units for enforcement testing to determine compliance 
with an applicable standard, DOE may issue a test notice addressed to 
the manufacturer in accordance with the following requirements:
    (a) The test notice will be signed by the Secretary or his 
designee. The test notice will be sent by DOE to the government 
relations representative or other responsible official, as designated 
by the manufacturer.
    (b) The test notice will specify the basic model to be selected for 
testing, the method of selecting the test sample,

[[Page 56826]]

the maximum size of the sample and the size of the initial test sample, 
the time at which testing shall be initiated, the date by which testing 
is scheduled to be completed and the facility at which testing will be 
conducted. The test notice may also provide for situations in which the 
selected basic model is unavailable for testing, and may include 
alternative basic models.
    (c) DOE will state in the test notice that it will select the units 
of a basic model to be tested from the manufacturer, from one or more 
distributors, and/or from one or more retailers. If any unit is 
selected from a distributor or retailer, the manufacturer shall 
reimburse the distributor or retailer (with a replacement unit or a 
voucher) for any such units.
    (d) DOE may require in the test notice that the manufacturer of a 
basic model ship or cause to be shipped from a retailer or distributor 
at its expense a requested number of units of a basic model specified 
in such test notice to a testing laboratory designated by the 
Secretary. The number of units of a basic model specified in a test 
notice shall not exceed twenty one (21).
    (e) Within 2 working days of the time units are selected, the 
manufacturer shall ship the specified test units of a basic model to 
the testing laboratory.


Sec.  429.39  [Reserved].


Sec.  429.41  Test unit selection.

    (a) To select units for testing from a:
    (1) Manufacturer's warehouse, distributor, or other facility 
affiliated with the manufacturer. A DOE representative will select a 
batch sample at random of not more than 21 units in accordance with the 
provisions in Sec.  429.45 and the conditions specified in the test 
notice. DOE will randomly select an initial test sample of units from 
the batch sample for testing in accordance with appendices A through C 
of this subpart. DOE will make a determination whether an alternative 
sample size will be used in accordance with the provisions in Sec.  
429.45(a)(5).
    (2) Retailer. A DOE representative will select an initial test 
sample of units at random, which satisfies the minimum units necessary 
for testing in accordance with the provisions in appendices A through C 
of the subpart and the conditions specified in the test notice. 
Depending on the results of the testing, DOE may select additional 
units for testing from a retailer in accordance with appendices A 
through C of the subpart. If the full sample is not available from a 
retailer, DOE will make a determination based on the provisions in 
Sec.  429.45(a)(5).
    (b) Units tested in accordance with the applicable test procedure 
under this part by DOE or another Federal agency, pursuant to other 
provisions or programs, may count toward units in the test sample.
    (c) The resulting test data shall constitute official test data for 
the basic model. Such test data will be used by DOE to make a 
determination of compliance or noncompliance if a sufficient number of 
tests have been conducted to satisfy the requirements of Sec.  429.45 
and appendix A through appendix C of this subpart.


Sec.  429.43  Test unit preparation.

    (a) Prior to and during testing, a test unit selected in accordance 
with Sec.  429.41 of this subpart shall not be prepared, modified, or 
adjusted in any manner unless such preparation, modification, or 
adjustment is allowed by the applicable DOE test procedure. One test 
shall be conducted for each test unit in accordance with the applicable 
test procedures prescribed in parts 430 and 431 of this subchapter.
    (b) No quality control, testing or assembly procedures shall be 
performed on a test unit, or any parts and subassemblies thereof, that 
is not performed during the production and assembly of all other units 
included in the basic model.
    (c) A test unit shall be considered defective if such unit is 
inoperative or is found to be in noncompliance due to failure of the 
unit to operate according to the manufacturer's design and operating 
instructions. Defective units, including those damaged due to shipping 
or handling, shall be reported immediately to DOE. DOE shall authorize 
testing of an additional unit on a case-by-case basis.


Sec.  429.45  Sampling for enforcement testing.

    (a) The Department will base the determination of whether a basic 
model complies with the applicable energy conservation or water 
conservation standards on testing conducted in accordance with the 
applicable test procedures specified in parts 430 and 431 of this 
subchapter, and with the following statistical sampling procedures:
    (1) For products with applicable energy and water conservation 
standards in Sec.  430.32, the Department will use a sample size of not 
more than 21 units and follow the sampling plans in Appendix A to 
Subpart E of Part 429 (Sampling for Enforcement Testing of Covered 
Consumer Products and Certain High-Volume Commercial Equipment).
    (2) For commercial prerinse spray valves, illuminated exit signs, 
traffic signal modules and pedestrian modules, commercial clothes 
washers, and metal halide lamp ballasts, the Department will use a 
sample size of not more than 21 units and follow the sampling plans in 
Appendix A to Subpart E of Part 429 (Sampling for Enforcement Testing 
of Covered Consumer Products and Certain High-Volume Commercial 
Equipment).
    (3) For automatic commercial ice makers, commercial refrigerators, 
freezers, and refrigerator-freezers, refrigerated bottled or canned 
vending machines, and commercial HVAC and WH equipment, the Department 
will use an initial sample size of not more than four units and follow 
the sampling plans in Appendix B to Subpart E of Part 429 (Sampling 
Plan for Enforcement Testing of Covered Equipment and Certain Low-
Volume Covered Products) with the following exceptions:
    (i) Except as required or provided in paragraphs (a)(3)(ii) of this 
section, initially, the Department will test two units.
    (ii) If fewer than two units of the basic model are available for 
testing when the manufacturer receives the test notice, then:
    (A) The Department will test the available unit; or
    (B) If one or more other units of the basic model are expected to 
become available within 30 days, the Department may instead at its 
discretion, test either:
    (1) The available unit(s) and one or more of the other units that 
subsequently become available (up to a maximum of four); or
    (2) Up to four of the other units that subsequently become 
available.
    (4) For distribution transformers, the Department will use an 
initial sample size of not more than five units and follow the sampling 
plans in Appendix C to Subpart E of Part 429 (Sampling Plan for 
Enforcement Testing of Distribution Transformers). If fewer than five 
units of a basic model are available for testing when the manufacturer 
receives the test notice, then:
    (i) DOE will test the available unit(s); or
    (ii) If one or more other units of the basic model are expected to 
become available within 30 days, the Department may instead at its 
discretion, test either:
    (A) The available unit(s) and one or more of the other units that 
subsequently become available (up to a maximum of 21); or
    (B) Up to 21 of the other units that subsequently become available.
    (5) Notwithstanding paragraphs (a)(1) through (a)(4) of this 
section, if testing

[[Page 56827]]

of the available or subsequently available units of a basic model would 
be impractical, as for example when a basic model has unusual testing 
requirements or has limited production, the Department may in its 
discretion decide to base the determination of compliance on the 
testing of fewer than the otherwise required number of units.
    (6) When the Department makes a determination in accordance with 
section (a)(5) to test less than the number of units specified (a)(1) 
through (a)(4) of this section, the Department will base the compliance 
determination on the results of such testing in accordance with 
Appendix B to Subpart E of Part 429 (Sampling Plan for Enforcement 
Testing of Covered Equipment and Certain Low-Volume Covered Products) 
using a sample size (n<INF>1</INF>) equal to the number of units 
identified in Sec.  429.41 without the option for additional testing at 
the manufacturer's option.
    (6) For the purposes of paragraphs (a)(1) through (a)(5) of this 
section, available units are those that are available for commercial 
distribution within the United States.


Sec.  429.47  [Reserved]


Sec.  429.49  Notice of noncompliance determination to cease 
distribution of a basic model.

    (a) In the event that DOE determines a basic model is noncompliant 
with an applicable energy conservation standard, or if a manufacturer 
or private labeler determines a basic model to be in noncompliance, DOE 
may issue a notice of noncompliance determination to the manufacturer 
or private labeler. This notice of noncompliance determination will 
notify the manufacturer or private labeler of its obligation to:
    (1) Immediately cease distribution in commerce of the basic model.
    (2) Give immediate written notification of the determination of 
noncompliance to all persons to whom the manufacturer has distributed 
units of the basic model manufactured since the date of the last 
determination of compliance.
    (3) Pursuant to a request made by the Secretary, provide DOE within 
30 days of the request, records, reports and other documentation 
pertaining to the acquisition, ordering, storage, shipment, or sale of 
a basic model determined to be in noncompliance.
    (b) In the event that DOE determines a model is noncompliant with 
an applicable certification requirement, or if a manufacturer or 
private labeler determines a model to be in noncompliance with the 
certification requirements, DOE may issue a notice of noncompliance 
determination to the manufacturer or private labeler. This notice of 
noncompliance determination will notify the manufacturer or private 
labeler of its obligation to:
    (1) Immediately cease distribution in commerce of the basic model.
    (2) Pursuant to a request made by the Secretary, provide DOE within 
30 days of the request, records, reports and other documentation 
pertaining to the acquisition, ordering, storage, shipment, or sale of 
a basic model determined to be in noncompliance.
    (c) If a manufacturer or private labeler fails to comply with the 
required actions in the notice of noncompliance determination as set 
forth in paragraphs (a) or (b) of this section, the Secretary may seek, 
among other remedies, injunctive action and civil penalties, where 
appropriate.
    (d) The manufacturer may modify a basic model determined to be 
noncompliant with an applicable energy conservation standard in such 
manner as to make it comply with the applicable standard. Such modified 
basic model shall then be treated as a new basic model and must be 
certified in accordance with the provisions of this part; except that 
in addition to satisfying all requirements of this part, the 
manufacturer shall also maintain, and provide upon request made by the 
Secretary, records that demonstrate that modifications have been made 
to all units of the new basic model prior to distribution in commerce.


Sec.  429.51  Additional certification testing requirements.

    Pursuant to Sec.  429.31(b)(2), if DOE determines that independent, 
third-party testing is necessary to ensure a manufacturer's compliance 
with the rules of this part 429, part 430, or part 431 of this 
subchapter, a manufacturer must base its certification of a basic model 
under subpart C of this part on independent, third-party laboratory 
testing.


Sec.  429.53  Injunctions.

    If the Secretary has reason to seek an injunction under the Act:
    (a) DOE will notify the manufacturer, private labeler or any other 
person as required, of the prohibited act at issue and the Secretary's 
intent to seek a judicial order enjoining the manufacturer, private 
labeler or any other person as required from engaging in the prohibited 
act unless the manufacturer, private labeler or any other person as 
required, delivers to DOE within 15 calendar days a corrective action 
and compliance plan, satisfactory to DOE, of the steps it will take to 
ensure that the prohibited conduct ceases. DOE will monitor the 
implementation of such plan.
    (b) If the manufacturer, private labeler or any other person as 
required, fails to cease engaging in the prohibited conduct or fails to 
provide a satisfactory corrective action and compliance plan, the 
Secretary may seek an injunction.
    (c) The Secretary shall determine whether the facts of the case 
warrant the assessment of civil penalties for knowing violations.


Sec.  429.55  Maximum civil penalty.

    Any person who knowingly violates any provision of Sec.  429.31(a) 
of this part may be subject to assessment of a civil penalty of no more 
than $200 for each violation. As to Sec.  429.31(a)(1) with respect to 
failure to certify, and as to Sec.  429.31(a)(2), (5) through (9), each 
unit of a covered product or covered equipment distributed in violation 
of such paragraph shall constitute a separate violation. For violations 
of Sec.  429.31(a)(1), (3), and (4), each day of noncompliance shall 
constitute a separate violation for each basic model at issue.


Sec.  429.57  Penalty considerations.

    DOE will assess a civil penalty under this subpart taking the 
following into account:
    (a) The nature and scope of the violation;
    (b) The provision violated;
    (c) The violator's history of compliance or non-compliance;
    (d) Whether the violator is a small business;
    (e) The violator's ability to pay;
    (f) The violator's timely self-reporting of the violation, if any;
    (g) The violator's self-initiated corrected action, if any; and
    (h) Such other matters as justice may require.


Sec.  429.59  Notice of proposed civil penalty.

    (a) Before issuing an order assessing a civil penalty against any 
person under this section, the Secretary shall provide to such person 
notice of the proposed penalty.
    (b) The notice of proposed penalty will:
    (1) Include the amount of the proposed penalty;
    (2) Include a statement of the material facts constituting the 
alleged violation; and
    (3) Inform the person of the opportunity to elect in writing within 
30 calendar days of receipt of the notice to have the procedures of 
Sec.  429.65 (in lieu

[[Page 56828]]

of those of Sec.  429.63) apply with respect to the penalty.


Sec.  429.61  Election of procedures.

    (a) In responding to a notice of proposed civil penalty, the 
respondent may request:
    (1) An administrative hearing before an Administrative Law Judge 
(ALJ) under Sec.  429.63 of this part; or
    (2) Elect to have the procedures of Sec.  429.65 apply.
    (b) Any election to have the procedures of Sec.  429.65 apply may 
not be revoked except with the consent of the Secretary.
    (c) If the respondent fails to respond to a notice issued under 
Sec.  429.59 or otherwise fails to indicate its election of procedures, 
DOE shall refer the civil penalty action to an ALJ for a hearing under 
Sec.  429.63.


Sec.  429.63  Administrative law judge hearing and appeal.

    (a) When elected pursuant to Sec.  429.61, DOE shall refer a civil 
penalty action brought under Sec.  429.59 of this part to an ALJ, who 
shall afford the respondent an opportunity for an agency hearing on the 
record.
    (b) After consideration of all matters of record in the proceeding, 
the ALJ will issue a recommended decision, if appropriate, recommending 
a civil penalty. The decision includes a statement of the findings and 
conclusions, and the reasons therefore, on all material issues of fact, 
law, and discretion.
    (c)(1) The Secretary shall adopt, modify, or set aside the 
conclusions of law or discretion contained in the ALJ's recommended 
decision and shall set forth a final order assessing a civil penalty. 
The Secretary shall include in its final order the ALJ's findings of 
fact and the reasons for its actions.
    (2) Any person against whom a penalty is assessed under this 
section may, within 60 calendar days after the date of the final order 
of the Secretary assessing such penalty, institute an action in the 
United States Court of Appeals for the appropriate judicial circuit for 
judicial review of such order in accordance with chapter 7 of title 5, 
United States Code. The court shall have jurisdiction to enter a 
judgment affirming, modifying, or setting aside in whole or in part, 
the order of the Secretary, or the court may remand the proceeding to 
the Secretary for such further action as the court may direct.


Sec.  429.65  Immediate issuance of order assessing civil penalty.

    (a) If respondent elects to forgo an agency hearing pursuant to 
Sec.  429.61, DOE shall issue an order assessing the civil penalty 
proposed in the notice of proposed penalty under Sec.  429.59, 30 days 
after respondent's receipt of the notice of proposed penalty.
    (b) If within 60 days of receiving the assessment order in 
paragraph (a) of this section the respondent does not pay the civil 
penalty amount, the Secretary shall institute an action in the 
appropriate United States District Court for an order affirming the 
assessment of the civil penalty. The court shall have authority to 
review de novo the law and the facts involved and shall have 
jurisdiction to enter a judgment enforcing, modifying, and enforcing as 
so modified, or setting aside in whole or in part, such assessment.


Sec.  429.67  Collection of civil penalties.

    (a) If any person fails to pay an assessment of a civil penalty 
after it has become a final and unappealable order under Sec.  429.63 
or after the appropriate District Court has entered final judgment in 
favor of the Secretary under Sec.  429.65, the Secretary shall 
institute an action to recover the amount of such penalty in any 
appropriate District Court of the United States. In such action, the 
validity and appropriateness of such final assessment order or judgment 
shall not be subject to review.
    (b)(1) The Secretary will be represented by the General Counsel of 
DOE (or any attorney or attorneys within DOE designated by the General 
Counsel) who shall supervise, conduct, and argue any civil litigation 
to which Sec.  429.65 applies including any related collection action 
under paragraph (a) of this section in a court of the United States or 
in any other court, except the Supreme Court of the United States, 
consulting with the Attorney General concerning such litigation. The 
Attorney General will provide, on request, such assistance in the 
conduct of such litigation as may be appropriate.
    (2) The Secretary shall be represented by the Attorney General, or 
the Solicitor General, as appropriate, in actions under this section, 
except to the extent provided in paragraph (b)(1) of this section.
    (3) DOE will provide to a Respondent contact information for the 
appropriate administrative law judge when a case is referred for 
hearing pursuant to Sec.  429.63.


Sec.  429.69  Compromise and settlement.

    (a) The Secretary may compromise, modify, or remit, with or without 
conditions, any civil penalty (with leave of court if necessary).
    (b) In exercising its authority under paragraph (a) of this 
section, the Secretary may consider the nature and seriousness of the 
violation, the efforts of the respondent to remedy the violation in a 
timely manner, and other factors as justice may require.
    (c) The Secretary's authority to compromise, modify or remit a 
civil penalty may be exercised at any time prior to a final decision by 
the United States Court of Appeals if Sec.  429.63 procedures are 
utilized, or prior to a final decision by the United States District 
Court, if Sec.  429.65 procedures are utilized.
    (d) Notwithstanding paragraph (a) of this section, the Secretary or 
the respondent may propose to settle the case. If a settlement is 
agreed to by the parties, the respondent is notified and the case is 
closed.


Sec.  429.71  Confidentiality.

    Pursuant to the provisions of 10 CFR 1004.11, any person submitting 
information or data which the person believes to be confidential and 
exempt by law from public disclosure should submit one complete copy, 
and one copy from which the information believed to be confidential has 
been deleted. In accordance with the procedures established in 10 CFR 
1004.11, DOE shall make its own determination with regard to any claim 
that information submitted be exempt from public disclosure; however, 
the following records and other material of DOE are not exempt from 
public disclosure:
    (a) Reports of compliance filed pursuant to the rules in this part 
or pursuant to a provision in a DOE order; and
    (b) Product-specific information submitted by manufacturers to DOE 
pursuant to Sec.  429.19(b)(13), including the manufacturer's name, the 
brand name, and applicable model number(s).

Appendix A to Subpart E of Part 429--Sampling Plan for Enforcement 
Testing of Covered Consumer Products and Certain High-Volume Commercial 
Equipment

    (a) The first sample size (n<INF>1</INF>) must be four or more 
units, except as provided by Sec.  429.45.
    (b) Compute the mean of the measured energy performance 
(x<INF>1</INF>) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.005

where x<INF>i</INF> is the measured energy or water efficiency or 
consumption from test i, and n<INF>1</INF> is the total number of 
tests.
    (c) Compute the standard deviation (s<INF>1</INF>) of the 
measured energy performance from the n<INF>1</INF> tests as follows:

[[Page 56829]]

[GRAPHIC] [TIFF OMITTED] TP16SE10.006

    (d) Compute the standard error (s<INF>x1</INF>) of the measured 
energy performance from the n<INF>1</INF> tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.007

    (e) Compute the upper control limit (UCL<INF>1</INF>) and lower 
control limit (LCL<INF>1</INF>) for the mean of the first sample 
using the applicable DOE energy or water performance standard (EPS) 
as the desired mean and a probability level of 95 percent (two-
tailed test) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.008

and
[GRAPHIC] [TIFF OMITTED] TP16SE10.009

where t is the statistic based on a 95 percent two-tailed 
probability level and a sample size of n<INF>1</INF>.
    (f)(1) For an energy efficiency or water efficiency standard, 
compare the mean of the first sample (x<INF>1</INF>) with the upper 
and lower control limits (UCL<INF>1</INF> and LCL<INF>1</INF>) to 
determine one of the following:

    (2) For an energy or water consumption standard, compare the 
mean of the first sample (x<INF>1</INF>) with the upper and lower 
control limits (UCL<INF>1</INF> and LCL<INF>1</INF>) to determine 
one of the following:
    (A) If the mean of the first sample is below the lower control 
limit, then the basic model is in noncompliance and testing is at an 
end. (Do not go on to any of the steps below.)
    (B) If the mean of the first sample is equal to or greater than 
the upper control limit, then the basic model is in compliance and 
testing is at an end. (Do not go on to any of the steps below.)
    (C) If the sample mean is equal to or greater than the lower 
control limit but less than the upper control limit, then no 
determination of compliance or noncompliance can be made and a 
second sample size is determined by Step h(1).
    (g)(1) For an energy efficiency or water efficiency standard, 
determine the second sample size (n<INF>2</INF>) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.010

where s<INF>1</INF> and t have the values used in Steps 4 and 5, 
respectively. The term ``0.05 EPS'' is the difference between the 
applicable energy efficiency or water efficiency standard and 95 
percent of the standard, where 95 percent of the standard is taken 
as the lower control limit. This procedure yields a sufficient 
combined sample size (n<INF>1</INF>+n<INF>2</INF>) to give an 
estimated 97.5 percent probability of obtaining a determination of 
compliance when the true mean efficiency is equal to the applicable 
standard. Given the solution value of n<INF>2</INF>, determine one 
of the following:
    (A) If the value of n<INF>2</INF> is less than or equal to zero 
and if the mean energy or water efficiency of the first sample 
(x<INF>1</INF>) is either equal to or greater than the lower control 
limit (LCL<INF>1</INF>) or equal to or greater than 95 percent of 
the applicable energy efficiency or water efficiency standard (EES), 
whichever is greater, i.e., if n<INF>2</INF> <= 0 and x<INF>1</INF> 
>= max (LCL<INF>1</INF>, 0.95 EES), the basic model is in compliance 
and testing is at an end.
    (B) If the value of n<INF>2</INF> is less than or equal to zero 
and the mean energy efficiency of the first sample (x<INF>1</INF>) 
is less than the lower control limit (LCL<INF>1</INF>) or less than 
95 percent of the applicable energy efficiency standard (EES), 
whichever is greater, i.e., if n<INF>2</INF> <= 0 and x<INF>1</INF> 
>= max (LCL<INF>1</INF>, 0.95 EES), the basic model is in 
noncompliance and testing is at an end.
    (C) If the value of n<INF>2</INF> is greater than zero, then 
value of the second sample size is determined to be the smallest 
integer equal to or greater than the solution value of n<INF>2</INF> 
for equation (6). If the value of n<INF>2</INF>so calculated is 
greater than 21-n<INF>1</INF>, set n<INF>2</INF> equal to 21-
n<INF>1</INF>.
    (2) For an Energy or Water Consumption Standard, determine the 
second sample size (n<INF>2</INF>) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.011

where s<INF>1</INF>and t have the values used in (d) and (e), 
respectively. The term ``0.05 EPS'' is the difference between the 
applicable energy or water consumption standard and 105 percent of 
the standard, where 105 percent of the standard is taken as the 
upper control limit. This procedure yields a sufficient combined 
sample size (n<INF>1</INF> + n<INF>2</INF>) to give an estimated 
97.5 percent probability of obtaining a determination of compliance 
when the true mean consumption is equal to the applicable standard. 
Given the solution value of n<INF>2</INF>, determine one of the 
following:
    (A) If the value of n<INF>2</INF> is less than or equal to zero 
and if the mean energy or water consumption of the first sample 
(x<INF>1</INF>) is either equal to or less than the upper control 
limit (UCL<INF>1</INF>) or equal to or less than 105 percent of the 
applicable energy or water performance standard (EPS), whichever is 
less, i.e., if n<INF>2</INF> <= 0 and x<INF>1</INF> <= min 
(UCL<INF>1</INF>, 1.05 EPS), the basic model is in compliance and 
testing is at an end.
    (B) If the value of n<INF>2</INF> is less than or equal to zero 
and the mean energy or water consumption of the first sample 
(x<INF>1</INF>) is greater than the upper control limit 
(UCL<INF>1</INF>) or more than 105 percent of the applicable energy 
or water performance standard (EPS), whichever is less, i.e., if 
n<INF>2</INF> <= 0 and x<INF>1</INF> > min (UCL<INF>1</INF>, 1.05 
EPS), the basic model is in noncompliance and testing is at an end.
    (C) If the value of n<INF>2</INF> is greater than zero, then the 
value of the second sample size is determined to be the smallest 
integer equal to or greater than the solution value of n<INF>2</INF> 
for equation (6a). If the value of n<INF>2</INF> so calculated is 
greater than 20-n<INF>1</INF>, set n<INF>2</INF> equal to 21-
n<INF>1</INF>.
    (h) Compute the combined mean (x<INF>2</INF>) of the measured 
energy or water performance of the n<INF>1</INF> and n<INF>2</INF> 
units of the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.012

    (i) Compute the standard error (S<INF>x1</INF>) of the measured 
energy or water performance of then <INF>1</INF> and n<INF>2</INF> 
units in the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.013


    Note: s<INF>1</INF> is the value obtained in (c).

    (j)(1). For an Energy Efficiency Standard, compute the lower 
control limit (LCL<INF>2</INF>) for the mean of the combined first 
and second samples using the DOE energy efficiency standard (EES) as 
the desired mean and a one-tailed probability level of 97.5 percent 
(equivalent to the two-tailed probability level of 95 percent used 
in Step (e)) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.014

where the t-statistic has the value obtained in Step (e).
    (j)(2). For an Energy or Water Consumption Standard, compute the 
upper control limit (UCL<INF>2</INF>) for the mean of the combined 
first and second samples using the DOE energy or water performance 
standard (EPS) as the desired mean and a one-tailed probability 
level of 102.5 percent (equivalent to the two-tailed probability 
level of 95 percent used in Step (e)) as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.015

where the t-statistic has the value obtained in (e).
    (k)(1). For an Energy Efficiency Standard, compare the combined 
sample mean (x<INF>2</INF>) to the lower control limit 
(LCL<INF>2</INF>) to find one of the following:
    (A) If the mean of the combined sample (x<INF>2</INF>) is less 
than the lower control limit (LCL<INF>2</INF>) or 95 percent of the 
applicable energy efficiency standard (EES), whichever is greater, 
i.e., if x<INF>2</INF> < max (LCL<INF>2</INF>, 0.95 EES), the basic 
model is in noncompliance and testing is at an end.
    (B) If the mean of the combined sample (x<INF>2</INF>) is equal 
to or greater than the lower control limit (LCL<INF>2</INF>) or 95 
percent of the applicable energy efficiency standard (EES), 
whichever is greater, i.e., if x<INF>2</INF> >= max 
(LCL<INF>2</INF>, 0.95 EES), the basic model is in compliance and 
testing is at an end.
    (k)(2). For an Energy or Water Consumption Standard, compare the 
combined sample mean (x<INF>2</INF>) to the upper control limit 
(UCL<INF>2</INF>) to find one of the following:
    (A) If the mean of the combined sample (x<INF>2</INF>) is 
greater than the upper control limit (UCL<INF>2</INF>) or 105 
percent of the applicable energy or water performance standard 
(EPS), whichever is less, i.e., if x<INF>2</INF> > min 
(UCL<INF>2</INF>, 1.05 EPS), the basic model is in noncompliance and 
testing is at an end.
    (B) If the mean of the combined sample (x<INF>2</INF>) is equal 
to or less than the upper control limit (UCL<INF>2</INF>) or 105 
percent of the applicable energy or water performance standard 
(EPS),

[[Page 56830]]

whichever is less, i.e., if x<INF>2</INF> <= min (UCL<INF>2</INF>, 
1.05 EPS), the basic model is in compliance and testing is at an 
end.

Appendix B to Subpart E of Part 429--Sampling Plan for Enforcement 
Testing of Covered Equipment and Certain Low-Volume Covered Products

    The Department will determine compliance as follows:
    (a) The first sample size (n<INF>1</INF>) must be four or more 
units, except as provided by Sec.  429.45.
    (b) Compute the mean of the measured energy performance 
(x<INF>1</INF>) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.016

Where x<INF>i</INF> is the measured energy efficiency or consumption 
from test i, and n<INF>1</INF> is the total number of tests.
    (c) Compute the standard deviation (s<INF>1</INF>) of the 
measured energy performance from the n<INF>1</INF> tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.017

    (d) Compute the standard error (s<INF>x1</INF>) of the measured 
energy performance from the n<INF>1</INF> tests as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.018

    (e)(1) For an energy efficiency standard, compute the lower 
control limit (LCL<INF>1</INF>) according to:
[GRAPHIC] [TIFF OMITTED] TP16SE10.019

or
[GRAPHIC] [TIFF OMITTED] TP16SE10.020

(whichever is greater).
    (2) For an energy use standard, compute the upper control limit 
(UCL<INF>1</INF>) according to:
[GRAPHIC] [TIFF OMITTED] TP16SE10.021

or
[GRAPHIC] [TIFF OMITTED] TP16SE10.022

(whichever is less),
Where EPS is the energy performance standard and t is a statistic 
based on a 97.5 percent, one-sided confidence limit and a sample 
size of n<INF>1</INF>.
    (f)(1) Compare the sample mean to the control limit.
    (i) The basic model is in compliance and testing is at an end 
if:
    (A) For an energy or water efficiency standard, the sample mean 
is equal to or greater than the lower control limit, or
    (B) For an energy or water consumption standard, the sample mean 
is equal to or less than the upper control limit.
    (ii) Unless the manufacturer requests manufacturer-option 
testing and provides the additional units for such testing, the 
basic model is in noncompliance and the testing is at an end because 
compliance has not been demonstrated if:
    (A) For an energy efficiency standard, the sample mean is less 
than the lower control limit, or
    (B) For an energy consumption standard, the sample mean is 
greater than the upper control limit.
    (2) If the manufacturer does request additional testing, and 
provides the necessary additional units, the Department will test 
each unit the same number of times it tested previous units. The 
Department will then compute a combined sample mean, standard 
deviation, and standard error as described above. (The ``combined 
sample'' refers to the units the Department initially tested plus 
the additional units the Department has tested at the manufacturer's 
request.) The Department will determine compliance or noncompliance 
from the mean and the new lower or upper control limit of the 
combined sample. If, for an energy efficiency standard, the combined 
sample mean is equal to or greater than the new lower control limit 
or, for an energy consumption standard, the sample mean is equal to 
or less than the upper control limit, the basic model is in 
compliance, and testing is at an end. If the combined sample mean 
does not satisfy one of these two conditions, the basic model is in 
noncompliance and the testing is at an end.

Appendix C to Subpart E of Part 429--Sampling Plan for Enforcement 
Testing of Distribution Transformers

    (a) When testing distribution transformers, the number of units 
in the sample (m<INF>1</INF>) shall be in accordance with Sec.  
429.45 and DOE shall perform the following number of tests:
    (i) If DOE tests four or more units, it will test each unit 
once;
    (ii) If DOE tests two or three units, it will test each unit 
twice; or
    (iii) If DOE tests one unit, it will test that unit four times.
    (b) DOE shall determine compliance as follows:
    (i) Compute the mean (X<INF>1</INF>) of the measured energy 
performance of the n<INF>1</INF> tests in the first sample as 
follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.023

Where X<INF>i</INF> is the measured efficiency of test i.
    (ii) Compute the sample standard deviation (S<INF>1</INF>) of 
the measured efficiency of the n<INF>1</INF> tests in the first 
sample as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.024

    (iii) Compute the standard error (SE(X<INF>1</INF>)) of the mean 
efficiency of the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.025

    (iv) Computer the sample size discount (SSD(m<INF>1</INF>)) as 
follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.026

Where m<INF>1</INF> is the number of units in the sample, and RE is 
the applicable DOE efficiency when the test is to determine 
compliance with the applicable energy conservation standard, or is 
the labeled efficiency when the test is to determine compliance with 
the labeled efficiency value.
    (v) Compute the lower control limit (LCL<INF>1</INF>) for the 
mean of the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.027

Where t is the 2.5th percentile of a t-distribution for a sample 
size of n<INF>1</INF>, which yields a 97.5 percent confidence level 
for a one-tailed t-test.
    (vi) Compare the mean of the first sample (X<INF>1</INF>) with 
the lower control limit (LCL<INF>1</INF>) to determine one of the 
following:

[[Page 56831]]

    (A) If the mean of the first sample is below the lower control 
limit, then the basic model is in non-compliance and testing is at 
an end.
    (B) If the mean is equal to or greater than the lower control 
limit, no final determination of compliance or non-compliance can be 
made; proceed to Step (vii).
    (vii) Determine the recommended sample size (n) as follows:
    [GRAPHIC] [TIFF OMITTED] TP16SE10.028
    
Where S<INF>1</INF> and t have the values used in Steps (ii) and 
(v), respectively. The factor
[GRAPHIC] [TIFF OMITTED] TP16SE10.032

is based on an 8-percent tolerance in the total power loss.
    Given the value of n, determine one of the following:
    (A) If the value of n is less than or equal to n<INF>1</INF> and 
if the mean energy efficiency of the first sample (X<INF>1</INF>) is 
equal to or greater than the lower control limit (LCL<INF>1</INF>), 
the basic model is in compliance and testing is at an end.
    (B) If the value of n is greater than n<INF>1</INF>, the basic 
model is in non-compliance. The size of a second sample 
n<INF>2</INF> is determined to be the smallest integer equal to or 
greater than the difference n-n<INF>1</INF>. If the value of 
n<INF>2</INF> so calculated is greater than 21-n<INF>1</INF>, set 
n<INF>2</INF> equal to 21-n<INF>1</INF>.
    (viii) Compute the combined (X<INF>2</INF>) mean of the measured 
energy performance of the n<INF>1</INF> and n<INF>2</INF> units of 
the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.029

    (ix) Compute the standard error (SE(X<INF>2</INF>)) of the mean 
full-load efficiency of the n<INF>1</INF> and n<INF>2</INF>units in 
the combined first and second samples as follows:
[GRAPHIC] [TIFF OMITTED] TP16SE10.030

(Note that S<INF>1</INF> is the value obtained above in (ii).)
    (x) Set the lower control limit (LCL<INF>2</INF>) to,
    [GRAPHIC] [TIFF OMITTED] TP16SE10.031
    
Where t has the value obtained in (v), and compare the combined 
sample mean (X<INF>2</INF>) to the lower control limit 
(LCL<INF>2</INF>) to find one of the following:
(A) If the mean of the combined sample (X<INF>2</INF>) is less than 
the lower control limit (LCL<INF>2</INF>), the basic model is in 
non-compliance and testing is at an end.
(B) If the mean of the combined sample (X<INF>2</INF>) is equal to 
or greater than the lower control limit (LCL<INF>2</INF>), the basic 
model is in compliance and testing is at an end.

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

    2. The authority citation for part 430 continues to read as 
follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

    3. In Sec.  430.2 revise the definition of ``Act'' and in the 
definition of ``basic model'' revise paragraph (24) to read as follows:


Sec.  430.2  Definitions.

* * * * *
    Act means the Energy Policy and Conservation Act of 1975, as 
amended, 42 U.S.C. 6291-6316.
* * * * *
    Basic model * * *
    (24) With respect to medium base compact fluorescent lamps, means 
lamps that have essentially identical light output and electrical 
characteristics and that do not have any differing physical or 
functional characteristics that affect energy consumption or efficacy.
* * * * *


Sec.  430.24  [Removed and Reserved]

    4. Remove and reserve Sec.  430.24.

Subpart F--[Removed and Reserved]

    5. Remove and reserve Subpart F, consisting of Sec. Sec.  430.60 
through 430.75, and Appendix A and B to subpart F of part 430.

PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND 
INDUSTRIAL EQUIPMENT

    6. The authority citation for part 431 continues to read as 
follows:

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


Sec.  431.65  [Removed]

    7. Section 431.65 is removed.


Sec.  431.135  [Removed]

    8. Section 431.135 is removed.


Sec. Sec.  431.173 through 431.175  [Removed and Reserved]

    9. Sections 431.173 through 431.175 are removed and reserved.


Sec. Sec.  431.197 and 431.198   [Removed]

    10a. Sections 431.197 and 431.198 are removed.

Appendix B to Subpart K of Part 431--[Removed]

    10b. Appendix B to subpart K of part 431 is removed.


Sec.  431.205  [Removed]

    11. Section 431.205 is removed.


Sec.  431.225  [Removed]

    12. Section 431.225 is removed.


Sec.  431.265  [Removed]

    13. Section 431.265 is removed.


Sec.  431.295  [Removed]

    14. Section 431.295 is removed.
    15. In Sec.  431.302 a new definition of ``manufacturer of walk-in 
cooler or walk-in freezer'' is added in alphabetical order to read as 
follows:


Sec.  431.302  Definitions concerning walk-in coolers and walk-in 
freezers.

    Manufacturer of a walk-in cooler or walk-in freezer means any 
person who manufactures, produces, assembles or imports such a walk-in 
cooler or walk-in freezer, including any person who:
    (1) Manufacturers, produces, assembles, or imports a walk-in cooler 
or walk-in freezer in its entirety, including the collection and 
shipment of all components that affect the energy consumption of a 
walk-in cooler or walk-in freezer;
    (2) Manufactures, produces, assembles or imports a walk-in cooler 
or walk-in freezer in part, and specifies or approves the walk-in 
cooler or walk-in freezer's components that affect energy consumption, 
including refrigeration, doors, lights, or other components produced by 
others, as for example by specifying such components in a catalogue by 
make and model number or parts number;
    (3) Is any vendor who sells a walk-in cooler or walk-in freezer 
that consists of a combination of components that affect energy 
consumption, which are not specified or approved by a person described 
in paragraphs (1) or (2) of this definition; or
    (4) Is an individual or a company who arranges for a walk-in cooler 
or walk-in freezer to be assembled at his own or any other specified 
premises from components that affect energy consumption, which are 
specified and approved by him and not by a person described in 
paragraphs (1), (2), or (3) of this definition.
* * * * *


Sec.  431.325  [Removed]

    16. Section 431.325 is removed.


Sec. Sec.  431.327 through 431.329   [Removed]

    17. Remove Sec. Sec.  431.327 through 431.329.

Appendices A through C to Subpart S of Part 431--[Removed].

    18. Remove Appendices A through C to subpart S of part 431.

[[Page 56832]]

Subpart T--[Removed]

    19. Remove subpart T to part 431, consisting of Sec. Sec.  431.370 
through 431.373 and appendices A through D, is removed.
    20a. Revise the heading to Subpart U to read as follows:

Subpart U--Enforcement for Electric Motors

* * * * *
    20b. Revise Sec.  431.381 to read as follows


Sec.  431.381  Purpose and scope for electric motors.

    This subpart describes violations of EPCA's energy conservation 
requirements, specific procedures we will follow in pursuing alleged 
non-compliance of an electric motor with an applicable energy 
conservation standard or labeling requirement, and general procedures 
for enforcement action, largely drawn directly from EPCA, that apply to 
electric motors.


Sec. Sec.  431.403 through 431.407   [Removed]

    21. Remove Sec. Sec.  431.403 through 431.407.

[FR Doc. 2010-22353 Filed 9-15-10; 8:45 am]
BILLING CODE 6450-01-P


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