[Federal Register Volume 80, Number 2 (Monday, January 5, 2015)]
[Rules and Regulations]
[Pages 144-152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30821]



[[Page 144]]

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DEPARTMENT OF ENERGY

10 CFR Part 429

[Docket No. EERE-2011-BT-TP-0024]
RIN 1904-AC46


Energy Conservation Program: Alternative Efficiency Determination 
Methods and Compliance for Commercial HVAC, Refrigeration, and Water 
Heating Equipment

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) is revising its 
regulations governing DOE verification testing of industrial equipment 
covered by EPCA rated with alternative efficiency determination methods 
(AEDMs). These regulations arose from a negotiated rulemaking effort on 
issues regarding the certification of commercial heating, ventilating, 
air-conditioning (HVAC), water heating (WH), and refrigeration 
equipment.

DATES: Effective: February 4, 2015.

ADDRESSES: This rulemaking can be identified by docket number EERE-
2011-BT-TP-0024 and/or RIN 1904-AC46.
    Docket: The docket is available for review at www.regulations.gov, 
including Federal Register notices, public meeting attendee lists and 
transcripts, comments, and other supporting documents/materials. All 
documents in the docket are listed in the www.regulations.gov index. 
However, not all documents listed in the index may be publicly 
available, such as information that is exempt from public disclosure.

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, 
DC 20585-0121. Email: <a href="/cdn-cgi/l/email-protection#fcbd8f94909985d2bd8e918f888e93929bbc9999d2989399d29b938a"><span class="__cf_email__" data-cfemail="ebaa9883878e92c5aa9986989f9984858cab8e8ec58f848ec58c849d">[email protected]</span></a>; and Ms. Laura 
Barhydt, U.S. Department of Energy, Office of the General Counsel, 
Forrestal Building, GC-32, 1000 Independence Avenue SW., Washington, DC 
20585. Email: <a href="/cdn-cgi/l/email-protection#3874594d4a59167a594a50415c4c785049165c575d165f574e"><span class="__cf_email__" data-cfemail="e9a5889c9b88c7ab889b81908d9da98198c78d868cc78e869f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Authority and Background
    Authority
    Background
II. Discussion of Specific Revisions to DOE's Regulations for 
Alternative Efficiency Determination Methods Verification Testing
III. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    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
    L. Review Under Section 32 of the Federal Energy Administration 
Act of 1974
    M. Congressional Notification
IV. Approval of the Office of the Secretary

I. Authority and Background

Authority

    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), Pub. L. 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\ The 
Department of Energy (``DOE'') is charged with implementing these 
provisions.
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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 EPCA, this program consists essentially of four parts: (1) 
Testing; (2) labeling; (3) Federal energy conservation standards; and 
(4) certification and enforcement procedures. The Federal Trade 
Commission (FTC) is primarily responsible for the labeling of consumer 
products and DOE implements the remainder of the program. The testing 
requirements consist of test procedures that manufacturers of covered 
products and equipment must use (1) as the basis for certifying to DOE 
that their products comply with the applicable energy conservation 
standards adopted under EPCA, and (2) for making representations about 
the efficiency of those products and equipment. Similarly, DOE must use 
these test requirements to determine whether the products comply with 
any relevant standards promulgated under EPCA. For certain consumer 
products and industrial equipment, DOE's existing testing regulations 
allow the use of an alternative efficiency determination method (AEDM) 
or an alternative rating method (ARM), in lieu of actual testing, to 
simulate the energy consumption or efficiency of certain basic models 
of covered products under DOE's test procedure conditions.
    In addition, EPCA (through 42 U.S.C. 6299-6305 and 6316) authorizes 
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 industrial equipment. (42 U.S.C. 
6299-6305 (consumer products), 6316 (industrial equipment)) DOE has 
promulgated enforcement regulations that include specific certification 
and compliance requirements. See 10 CFR part 429; 10 CFR part 431, 
subparts B, U, and V.

Background

    On February 26, 2013, members of the Appliance Standards and 
Rulemaking Federal Advisory Committee (ASRAC) unanimously decided to 
form a working group to engage in a negotiated rulemaking effort on the 
certification of the compliance of commercial HVAC, WH, and 
refrigeration equipment. A notice of intent to form the Commercial 
Certification Working Group (``the Working Group'') was published in 
the Federal Register on March 12, 2013, to which DOE received 35 
nominations. 78 FR 15653. On April 16, 2013, DOE published a notice of 
open meeting that announced the first meeting and listed the 22 
nominated individuals (and their affiliations) who were selected to 
serve as members of the Working Group, in addition to two members from 
ASRAC, and one DOE representative. 78 FR 22431. The members of the 
Working Group were selected to ensure a broad and balanced array of 
stakeholder interests and expertise, and included efficiency advocates, 
manufacturers, a utility representative, and third-party laboratory 
representatives.
    During the Working Group's first meeting, Working Group members 
voted to expand the scope of the negotiated rulemaking efforts to 
include developing methods of estimating equipment performance based on 
AEDM simulations. AEDMs are computer modeling or mathematical tools 
that predict the performance of non-tested basic models. They are 
derived from mathematical and engineering principles that govern the 
energy efficiency and energy consumption characteristics of a type of 
covered

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equipment. AEDMs, when properly developed, can provide a relatively 
straight-forward and reasonably accurate means to predict the energy 
usage or efficiency characteristics of a basic model of a given covered 
product or equipment and reduce the burden and cost associated with 
testing. Where authorized by regulation, AEDMs enable manufacturers to 
rate and certify the compliance of their basic models by using the 
projected energy use or energy efficiency results derived from these 
simulation models in lieu of testing.
    The Working Group discussed the particular elements that the AEDM 
simulations should address for each equipment type and other related 
considerations, including validation requirements for AEDMs, DOE 
verification of models rated with an AEDM, and the consequences for 
misuse of the AEDM construct. As required, the Working Group submitted 
an interim report to ASRAC on June 26, 2013, summarizing the group's 
recommendations regarding AEDMs for commercial HVAC, WH, and 
refrigeration equipment. The interim report to ASRAC can be found at 
http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-NOC-0023-
0046. ASRAC subsequently voted unanimously to approve the 
recommendations in the interim report for AEDMs.
    On October 22, 2013, DOE published in the Federal Register a 
Supplemental Notice of Proposed Rulemaking (``the October 2013 AEDM 
SNOPR'') regarding alternative efficiency determination methods, basic 
model definitions, and certification compliance dates for commercial 
HVAC, refrigeration, and WH equipment. 78 FR 62472. The October 2013 
AEDM SNOPR also proposed a process for DOE to conduct verification 
testing to ensure that models rated with an AEDM perform to their 
certified ratings. As part of the verification testing process, the 
Working Group recommended that a manufacturer may elect to have a DOE 
representative and a manufacturer's representative on site for the 
initial test of up to 10 percent of the basic models that they have 
rated with an AEDM. DOE adopted most of the provisions from the October 
2013 AEDM SNOPR in a December 31, 2013 final rule (``the December 2013 
final rule''). 78 FR 79579. However, commenters raised concerns over 
DOE's proposal allowing manufacturers to witness verification tests. In 
reviewing their comments, DOE determined that its proposed regulatory 
text, which was based in large part on the Working Group's 
recommendation, may not have been sufficiently clear. As a result, DOE 
published a Supplemental Notice of Proposed Rulemaking (``the September 
2014 SNOPR'') clarifying the process for witnessing the test set-up as 
part of the AEDM verification process. The Department's intent was to 
establish a clear process while ensuring that the regulatory text 
reflects the recommendations of the Working Group. 79 FR 57842 
(September 26, 2014).
    The final rule adopts the approach proposed in the September 2014 
SNOPR.

II. Discussion of Specific Revisions to DOE's Regulations for 
Alternative Efficiency Determination Methods Verification Testing

    As described in the background section of this notice, DOE proposed 
clarifications regarding witnessing the verification test set-up for 
models rated with an AEDM. See 79 FR 57842. DOE received three comments 
in response--two from manufacturers and one from a trade association. 
These comments are discussed in more detail below, and a full set of 
comments can be found at: http://www.regulations.gov/#!docketDetail;D=EERE-2011-BT-TP-0024.

                          Table II-1--Stakeholders That Submitted Comments to the SNOPR
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                  Name                             Acronym                        Organization type
----------------------------------------------------------------------------------------------------------------
Air-Conditioning, Heating, and           AHRI......................  Trade Association.
 Refrigeration Institute.
Continental Refrigerator...............  Continental...............  Manufacturer.
Hussmann Corporation...................  Hussmann..................  Manufacturer.
----------------------------------------------------------------------------------------------------------------

Manufacturer Presence During Verification Testing

    DOE proposed regulatory text to state explicitly that manufacturers 
may elect to witness the test set-up of verification tests. DOE 
proposed this clarification to better align the regulatory text with 
the Working Group's recommendation on this issue. See 79 FR at 57845.
    Continental suggested that, given its own problematic experiences 
with third-party testing, DOE should allow manufacturers the option to 
be present for the duration of any verification test to ensure that no 
issues requiring additional manufacturer input arise. (Continental, No. 
0111 at p.1) Continental went on to state that they understand and 
concur with DOE's decision to only allow manufacturers to be present 
for the test setup, given manufacturer's ability to review the test 
data, calculations and final results. (Id.)
    DOE's proposed approach to verification testing uses a number of 
different steps to help ensure that commercial HVAC, WH, and 
refrigeration equipment is tested correctly. First, the proposal would 
allow manufacturers to witness the set-up for AEDM verification testing 
for a selection of basic models rated with an AEDM. Second, if a lab 
encounters an issue during a verification test and requires additional 
information to test in accordance with the applicable DOE test 
procedure, under already existing regulations, DOE may coordinate a 
meeting between the manufacturer and the test facility to resolve that 
issue. See 10 CFR 429.70(c)(5)(iv)(E). Third, if a model performs worse 
than its certified rating during testing, DOE also already provides the 
manufacturer with the test report, and manufacturers may present any 
claims that the test was performed incorrectly. See 10 CFR 
429.70(c)(5)(v). In light of these pre-existing provisions, expanding 
the witness testing provisions beyond the Working Group's 
recommendation to allow manufacturers to witness the set-up of the test 
is unnecessary. Consequently, consistent with the Working Group's 
recommendation, DOE is adopting regulatory text that allows 
manufacturers to elect to witness the test set-up for a basic model. 
That election would be made as part of that basic model's certification 
report.

10 Percent Witness Testing Limitation

    In the September 2014 SNOPR, DOE proposed to maintain that a 
manufacturer may select up to 10 percent of its certified basic models 
rated with an AEDM to witness the set-up of any verification test 
performed by DOE. DOE remarked that this threshold was negotiated 
through detailed discussions with the Working Group, who collectively 
concluded that this level would be acceptable to both industry and 
efficiency advocates while not being overly burdensome for DOE to

[[Page 146]]

administer. DOE noted that manufacturers were not required to select 10 
percent of eligible basic models and that manufacturers could decline 
to attend the test set-up when notified. DOE also noted that the 10 
percent was a limit on how many basic models a manufacturer might pre-
select for witnessing test set-up; it was not an indication that DOE 
would test 10 percent of that manufacturer's basic models. 79 FR at 
57846.
    Hussmann expressed little confidence that a third-party laboratory 
can properly set-up and test a remote supermarket case because third-
party laboratories do not understand the issues to look for prior to 
and during an actual test--issues like discharge temperature and air 
flow. Hussmann recommended that remote supermarket case manufacturers 
should be allowed to be present at all test set-ups (rather than simply 
10 percent) and data collection periods (rather than just set-up) until 
the third-party laboratories have established thorough knowledge of how 
to prepare a remote supermarket case to be tested. (Hussmann, No. 0110 
at pp. 1-2) Hussmann provided no substantiating data or other 
information for its assertions.
    While DOE acknowledges manufacturer concerns that their equipment 
is tested properly, DOE disagrees that supermarket case manufacturers 
(along with other commercial refrigeration equipment manufacturers who 
will be similarly affected by this provision) should be allowed to 
witness the set-up and data collection of all remote condensing 
commercial refrigerator and freezer verification tests. The Department 
reiterates its position from the Working Group negotiation meetings 
that third-party test facilities should have sufficient expertise in 
conducting the relevant test and that DOE's test procedures should be 
written in a manner that allows the test facility to administer the 
test procedure without DOE's or a manufacturer's supervision. ([Docket 
No. EERE-2013-BT-NOC-0023], Department of Energy, Public Meeting 
Transcript, No. 0041 pp. 34 and 36)
    Moreover, the Working Group, which included Hussmann, unanimously 
voted in favor of the 10 percent approach detailed in the September 
2014 NOPR. ([Docket No. EERE-2013-BT-NOC-0023], 2013-06-24 Appliance 
Standards and Rulemaking Federal Advisory Committee Commercial HVAC, 
WH, and Refrigeration Certification Working Group Alternative 
Efficiency Determination Methods, No. 0046 at p. 5) After reaching a 
consensus among the broad array of interests represented at the 
numerous ASRAC meetings that led to the development of this approach, 
DOE is highly reluctant, without further substantive and compelling 
data, to alter the comprehensively crafted and unanimously supported 
recommendation set forth by the Working Group.

Applying the 10 Percent Limit

    Continental commented that it appreciated DOE's efforts to clarify 
the rules regarding witnessing the test set-up for up to 10 percent of 
the manufacturer's certified basic models rated with an AEDM. 
Continental sought, however, additional clarity regarding DOE's 
proposal in the form of additional sample scenarios to further explain 
DOE's approach. (Continental, No. 0111 at p. 2)
    In response to Continental's request, DOE is clarifying that a 
manufacturer may witness the test set-up for up to 10 percent of the 
basic models rated with an AEDM per validation class submitted to DOE 
for certification. The validation classes for commercial HVAC, WH, and 
refrigeration equipment can be found in 10 CFR 429.70(c)(2)(iv). As an 
example, if a manufacturer submits for certification 100 basic models 
of single package vertical air conditioners rated with an AEDM and 100 
basic models of package terminal air conditioners rated with an AEDM, 
then the manufacture may elect to witness the test set-up for up to 10 
single package vertical air conditioners and 10 package terminal air 
conditioners because single package vertical air conditioners and 
package terminal air conditioners fall into separate validation 
classes. In contrast, if a manufacturer submits to DOE for 
certification 100 single package vertical air conditioners rated with 
an AEDM and 100 single package vertical heat pumps rated with an AEDM, 
then the manufacturer may elect to witness the test set-up no more than 
20 basic models made up of any combination of single package vertical 
air conditioners and/or single package vertical heat pumps because 
single package vertical air conditioners and single package vertical 
heat pumps are part of the same validation class. The manufacturer may 
select any combination of models rated with an AEDM within the same 
validation class for witnessing the test set-up of a verification test.
    Further, DOE is clarifying that if a manufacturer submits for 
certification fewer than 10 basic models rated with an AEDM per 
validation class, then the manufacturer may elect to witness the 
verification test set-up for one basic model from that validation 
class. Manufacturers that submit for certification 10 or more basic 
models rated with an AEDM per validation class must use the following 
method to determine the maximum number of basic models for which it may 
witness the verification test set-up. The manufacturer should first 
calculate 10 percent of the total number of basic models rated with an 
AEDM per validation class, and then truncate the resulting product. For 
example, if a manufacturer submits for certification 56 water source 
heat pump basic models rated with an AEDM, then the manufacturer may 
elect 5 water source heat pump basic models to witness the verification 
test set-up.
    DOE plans to provide additional examples in a separate guidance 
document.
    Additionally, DOE notes that if a manufacturer selects one or more 
individual models per basic model then DOE considers the manufacturer 
to have selected the entire basic model, including all individual 
models associated with it as a model for which the manufacturer opts to 
witness the verification test set-up. That basic model will count 
towards the total number of basic models for which the manufacturer has 
elected to witness the verification test set-up and is subject to the 
10 percent limit.
    Consistent with the above discussion, this final rule adopts 
regulations allowing manufacturers to witness the set-up of a selection 
of verification test performed by DOE. Manufacturers may select up to 
10 percent of its basic models per validation class submitted to DOE 
for certification and rated with an AEDM.
    The Department also proposed a framework to address situations 
where a manufacturer exceeds the 10 percent limit. See 79 FR at 57846. 
If the unit is obtained through retail channels, DOE will review the 
certification submissions from the manufacturer that were on file as of 
the date DOE purchased a basic model. If the unit is obtained directly 
from the manufacturer, DOE will review the certification submissions 
from the manufacturer that were on file as of the date DOE notifies the 
manufacturer that the basic model has been selected for testing. DOE 
will review the certification submissions from the manufacturer to 
determine if the manufacturer has chosen to be present for testing of 
the selected basic model. DOE will also verify that the manufacturer 
has not selected more than 10 percent of the manufacturer's basic 
models per validation class rated

[[Page 147]]

with an AEDM and submitted to DOE for certification. If DOE discovers 
that the manufacturer has exceeded the 10 percent limit, DOE will 
notify the manufacturer of this fact and deny its request to be present 
for the testing of the selected basic model. The manufacturer must 
update its certification submission to ensure it has selected no more 
than 10 percent of its basic models per validation class rated with an 
AEDM to witness the test set-up for any future verification testing. 
See id. DOE received no comments on this aspect of the proposal and is 
adopting it in this final rule.

Retesting

    In the September 2014 SNOPR, DOE proposed that the 10 percent 
requirement would apply to all of the basic models per validation class 
rated with an AEDM that are submitted to DOE for certification by a 
given manufacturer no matter how many AEDMs a manufacturer has used to 
develop its ratings. See id. DOE proposed that it would perform testing 
without a manufacturer's representative present for each basic model 
DOE selects for assessment testing unless either: (1) The manufacturer 
has elected to have the opportunity to witness the test set-up as part 
of its allocated 10 percent; or (2) the manufacturer requires the basic 
model to be started only by a factory-trained installer per the 
installation manual instructions. For those basic models that a 
manufacturer has requested to witness the initial verification test 
set-up, the manufacturer would be unable to request that the unit be 
retested. The results from this initial test would be used to make a 
definitive determination regarding the validity of the basic model's 
rating from the AEDM. For those basic models that are initially tested 
without the manufacturer present for test set-up, a manufacturer would 
be automatically eligible to request a retest for those basic models 
where the initial results indicate a potential rating issue (non-
compliance or discrepancy with the certified rating). See id.
    AHRI commented that DOE's proposal that a manufacturer forfeits any 
opportunity to request a retest of the basic model if the 
manufacturer's representative is present for the initial test set-up 
for any reason is too severe. AHRI added that the provision incorrectly 
assumes that all problems that may arise during the course of an 
efficiency test are related to an issue involving the set-up of the 
unit. AHRI agreed with this proposal insofar as it limits the 
manufacturer's ability to request a retest because of a set-up issue. 
However, if some other problem occurs during the testing which is 
unrelated to any set-up procedure, the manufacturer should still have 
the option to request a retest. AHRI suggested that the language be 
rewritten to state, ``If a manufacturer's representative is present for 
the initial test set-up for any reason, the manufacturer forfeits any 
opportunity to request a retest of the basic model based on a claim 
that the unit was set up improperly.'' (AHRI, No. 0112 at 2)
    DOE disagrees with AHRI's assessment. The Working Group unanimously 
recommended that manufacturers who are on-site for the test set-up of a 
verification test would not be allowed to automatically request a 
retest. ([Docket No. EERE-2013-BT-NOC-0023], Department of Energy, 
2013-06-24 Appliance Standards and Rulemaking Federal Advisory 
Committee Commercial HVAC, WH, and Refrigeration Certification Working 
Group Alternative Efficiency Determination Methods, No. 0046 at p. 5)] 
Additionally, attending the set-up of a verification test is optional. 
As proposed in the September 2014 SNOPR, when DOE selects a model for 
verification testing and the manufacturer has elected in its 
certification report to witness that model's testing set-up, DOE will 
alert the manufacturer of its testing selection. At this point, the 
manufacturer may decide whether to be present at the set-up of the 
verification test. 79 FR at 57846.
    DOE also disagrees with AHRI's suggestion to allow manufacturers to 
automatically require the Department to retest for reasons other than 
improper set-up. In the case where a model fails to meet its certified 
rating, DOE provides the manufacturer with all documentation related to 
the test set-up, test conditions, and test results for the unit. At 
this time the manufacturer may present claims regarding the validity of 
the test. 10 CFR 429.70(c)(5)(v). If the manufacturer identifies 
problems that occurred during the test that impact the validity of the 
test (e.g., a malfunctioning measurement device), DOE would consider 
the test to be invalid. DOE does not make compliance determinations 
based on invalid testing and would retest the sample unit to obtain 
valid test results. DOE does not believe that, in the absence of any 
problems with the conduct of the verification test, it is necessary to 
permit the retesting of a unit when a manufacturer has already attended 
the verification test's set-up. Consequently, DOE's adopted approach 
does not permit the retesting of a basic model under these 
circumstances. (In contrast, for those basic models that are initially 
tested without the manufacturer present for test set-up, a manufacturer 
would be automatically eligible to request a retest for those basic 
models where the initial results indicate a potential rating issue.)

DOE Notification to Manufacturers

    In the September 2014 SNOPR, DOE proposed the following scenarios 
for notifying the manufacturer if DOE conducts AEDM verification 
testing on a basic model for which a manufacturer elected to witness 
the test set-up. If the unit is obtained through retail channels, DOE 
would notify the manufacturer of the basic model's selection for 
testing and provide the manufacturer the option to be present for test 
set-up once the unit has arrived at the test laboratory and is 
scheduled to be tested. If the manufacturer does not respond within 
five calendar days, the manufacturer would waive the option to be 
present for test set-up, and DOE would then proceed with the test set-
up without a manufacturer's representative present. If DOE has obtained 
a unit directly from the manufacturer, DOE would provide the 
manufacturer with the option to be present for test set-up at the time 
the unit is ordered. DOE would then specify the date (not less than 
five calendar days) by which the manufacturer would notify DOE whether 
the manufacturer chooses to have a representative present. If the 
manufacturer does not notify DOE of its choice by the date specified, 
the manufacturer would waive the option to be present for test set-up. 
DOE would then proceed with the test set-up without a manufacturer's 
representative present. DOE also notes that any time a manufacturer's 
representative requests to be on-site for the test set-up, a DOE 
representative would also be present at the third-party test facility. 
Additionally, 10 CFR 429.70(c)(5)(iv)(A) would continue to apply prior 
to, during, and after the manufacturer's representative is on site; 
that is, the manufacturer's representative cannot communicate with a 
third-party test facility regarding verification testing without the 
DOE representative present. DOE received no comments on this aspect of 
the proposal and is adopting it in this final rule.

Supplemental Information

    DOE proposed to amend its regulations to provide that information 
necessary for testing certain products (such as the override code for 
controls that would otherwise prevent the completion of testing in 
accordance with the applicable DOE test procedure) must accompany the 
certification

[[Page 148]]

submission for a basic model of those products. DOE also proposed that 
failure to provide this information would preclude a manufacturer being 
present for testing of a basic model of its product. If, in the course 
of testing a selected basic model, DOE discovers that the necessary 
information for completing the test has not been provided, DOE will 
contact the manufacturer to obtain that information and complete the 
testing. The September 2014 SNOPR also explained that the failure to 
submit with a certification report equipment-specific, supplemental 
information necessary to operate the basic model is a prohibited act as 
described at 10 CFR 429.102(a)(1), subject to the maximum civil penalty 
described at 10 CFR 429.120. 79 FR at 57845.
    AHRI commented that it did not recall any discussion by the Working 
Group where the failure to supply supplemental information would be 
considered a prohibited act. AHRI asserted that DOE's proposed approach 
was an inappropriate and unnecessary expansion of the scope of 
prohibited acts. AHRI added that, if a manufacturer does not provide 
supplemental information, the model will likely fail testing. AHRI also 
stated that, because a manufacturer cannot provide additional 
information at any time other than at certification, a model would fail 
the verification test if the manufacturer failed to provide the 
required information. At that point, DOE would be able to apply fully 
the penalties and remedies specified. (AHRI, No. 0112, at 1-2)
    AHRI's comments suggest that it misunderstood the purpose of these 
portions of the proposal. DOE may determine a basic model's compliance 
with the applicable energy conservation standard only through testing 
of that basic model. 10 CFR 429.106 and 429.110(c)(3). AHRI appears to 
be commenting about situations in which it may be highly desirable for 
a manufacturer to provide testing instructions because the basic model 
is not likely to pass verification testing without those instructions. 
DOE's proposal addressed a problem wherein DOE cannot test--it is 
impossible to test--a basic model without additional testing 
information. For example, DOE has found that certain PTACs require 
special codes to be entered to make the unit perform under test 
conditions; without those codes, the unit will not perform at test 
conditions and DOE cannot obtain a valid test. In such a situation, DOE 
proposed to contact the manufacturer, but the manufacturer would 
forfeit its opportunity to be present for test set-up. 79 FR at 57846
    Contrary to AHRI's assertion that DOE would not consider any 
testing instructions not provided at certification under any 
circumstances, DOE explained in the September 2014 SNOPR that, if a 
manufacturer has not provided supplemental information required for 
testing, then DOE will obtain the information from the manufacturer and 
complete the testing. 79 FR at 57846. In addition, if for other reasons 
DOE is unable to test a unit, the Working Group recommended, and DOE 
has already codified in its regulations, that DOE may coordinate a 
meeting between the manufacturer and test facility to resolve any 
technical issues. See 10 CFR 429.70(c)(5)(iv)(E).
    In this rule, DOE is requiring that, if necessary to run a valid 
test, the equipment-specific, supplemental information for commercial 
HVAC, WH, and refrigeration equipment must include any additional 
testing and testing set-up instructions.
    DOE also proposed that, if the unit is obtained through retail 
channels, DOE will review the certification submissions from the 
manufacturer that were on file as of the date DOE purchased a basic 
model. If DOE has obtained a unit directly from the manufacturer, DOE 
will review the certification submissions from the manufacturer that 
were on file as of the date DOE notifies the manufacturer that the 
basic model has been selected for testing. At this time, DOE will 
determine if the manufacturer provided necessary supplemental 
instructions. Additionally, for the purposes of conducting the 
verification test DOE will use the most recent version of supplemental 
instructions on file as of the date DOE purchased a basic model or the 
date DOE notified the manufacturer of the verification testing. DOE 
received no comments on these proposals and is adopting them in this 
rule.
    DOE notes that manufacturers will also need to provide the complete 
name of the PDF containing the supplemental testing instructions as 
part of the certification report. If the manufacturer changes the 
supplemental testing instructions and as a result changes the file 
name, then the manufacturer must update the certification report 
accordingly.
    DOE notes that 10 CFR 429.102(a)(1) establishes that the failure to 
properly certify covered products and covered equipment in accordance 
with 10 CFR 429.12 and 10 CFR 429.14 through 429.54 is a prohibited 
act. The Working Group recommended that manufacturers of certain kinds 
of commercial refrigeration, HVAC, and WH equipment should be required 
to submit a supplemental Portable Document Format (PDF) file with 
additional testing information with the certification report. The 
Working Group specified that the supplemental information would be 
required for commercial refrigeration equipment and most types of 
commercial HVAC equipment. DOE codified these requirements in 10 CFR 
429.42(b)(4) and 10 CFR 429.43(b)(4). DOE's statement in the September 
2014 SNOPR regarding the consequences of failing to provide 
supplemental information necessary to operate the basic model 
information was reiterating an existing prohibited act subject to the 
maximum civil penalty prescribed at 10 CFR 429.120--not proposing a new 
provision or reflecting a change in regulations due to the Working 
Group's recommendations.

Private Model Numbers

    DOE proposed to clarify its treatment of ``private'' model numbers 
under 10 CFR 429.7(b)(3). ``Private'' model numbers were created in a 
final rule published May 5, 2014, which adopted the recommendations of 
the Working Group with respect to the data elements to include in 
certification reports. See 79 FR 25486, 25491. These ``private'' models 
numbers addressed concerns raised by Working Group participants during 
the negotiated rulemaking indicating that the model numbers can, in 
certain circumstances, comprise confidential business information. The 
Working Group reached a consensus that, in limited circumstances, 
manufacturers should be able to identify when disclosure of an 
individual model number would reveal confidential business information 
and that DOE should treat that information as confidential in those 
specific instances. DOE has discovered, however, that, as drafted, the 
language at 10 CFR 429.7 may permit a much broader range of model 
numbers to be identified as ``private'' than had been intended, which 
would result in fewer identified models in DOE's public Compliance 
Certification Database. Specifically, the current language could be 
interpreted to permit a manufacturer to mark as ``private'' any model 
number that is not available in public marketing materials. 
Accordingly, DOE proposed to revise the regulatory text to better 
reflect the negotiated position of the working group. DOE received no 
comments on this aspect of the proposal and is adopting it in this 
final rule.

[[Page 149]]

Variable Refrigerant Flow Systems

    DOE also clarified in its September 2014 SNOPR that variable 
refrigerant flow system assessment and enforcement testing is governed 
by 10 CFR 431.96(f), and would not be subject to any of the proposed 
requirements. 79 FR at 57845. DOE received no comments on this aspect 
of the proposal and is adopting this approach in the final rule.

Certification Templates

    Finally, Continental urged DOE to publish the product templates for 
certifying commercial refrigeration equipment--specifically, for 
equipment with either single compartment or multiple compartments--on 
the Compliance Certification Management System Web page as quickly as 
possible. Continental believes a minimum of 90 calendar days should 
have been allowed for manufacturers to complete their certifications. 
(Continental, No. 0111 at p. 2) The CRE certification templates are 
available at: https://www.regulations.doe.gov/ccms/templates/product_templates.
    DOE notes that it adopted the certification requirements for 
commercial refrigeration equipment in a final rule for which 
manufacturers negotiated to have over 180 days to collect the required 
certification information. See 79 FR 25486 (May 5, 2014). Accordingly, 
DOE will not provide additional time to supplement that which has 
already been provided.

III. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget has determined that test 
procedure rulemakings do not constitute ``significant regulatory 
actions'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this 
action was not subject to review under the Executive Order by the 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires the 
preparation of a regulatory flexibility analysis (RFA) 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 Executive Order 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 DOE rulemaking process. 68 FR 7990. DOE has made 
its procedures and policies available on the Office of the General 
Counsel's Web site: http://www.energy.gov/sites/prod/files/gcprod/documents/eo13272.pdf.
    DOE reviewed the requirements in the Final Rule 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 the provisions of this rule will not increase 
testing and/or reporting burden. Accordingly, manufacturers will not 
experience increased financial burden as a result of this rulemaking.
    This Final Rule clarifies how DOE intends to exercise its authority 
to validate AEDM performance and verify the performance of commercial 
HVAC, WH, and refrigeration equipment certified using an AEDM. 
Specifically, DOE is allowing representatives of commercial HVAC, WH, 
and refrigeration equipment manufacturers to witness the test set-up 
for DOE-initiated verification testing for up to 10 percent of a 
manufacturer's basic models certified to DOE and that are rated with an 
AEDM. The selection of basic models and the decision to witness the 
test set-up for verification testing is at the discretion of the 
manufacturer. Thus, because these proposed changes would apply 
irrespective of a manufacturer's size and would provide these entities 
with added flexibility to witness the testing set-up of their 
equipment, DOE certifies that this rulemaking would not have a 
significant impact on a substantial number of small entities.

C. Review Under the Paperwork Reduction Act

    Manufacturers of the covered equipment addressed in the Final Rule 
must certify to DOE that their equipment comply with any applicable 
energy conservation standards. In certifying compliance, manufacturers 
must test their equipment according to the applicable DOE test 
procedures for the given equipment type, including any amendments 
adopted for those test procedures, or use the appropriate AEDMs to 
develop the certified ratings of the basic models. DOE has established 
regulations for the certification and recordkeeping requirements for 
all covered consumer products and commercial equipment, including the 
equipment at issue in this rule. (79 FR 25486 (May 5, 2014)). The 
collection-of-information requirement for these certification and 
recordkeeping provisions is subject to review and approval by OMB under 
the Paperwork Reduction Act (PRA). This requirement has been approved 
by OMB under OMB Control Number 1910-1400. Public reporting burden for 
the certification is estimated to average 30 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

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 
is changing DOE's verification testing regulations so it would not 
affect the amount, quality or distribution of energy usage, and, 
therefore, would not result in any environmental impacts. Thus, this 
rulemaking is covered by Categorical Exclusion A6 under 10 CFR part 
1021, subpart D. Accordingly, neither an environmental assessment nor 
an environmental impact statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have Federalism 
implications. The Executive Order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications. On March 14, 2000, DOE 
published a

[[Page 150]]

statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations. 65 FR 
13735. DOE has examined this rulemaking and has determined that it 
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. EPCA governs and prescribes Federal preemption of State 
regulations as to energy conservation for the products that are the 
subject of this rule. States can petition DOE for exemption from such 
preemption to the extent, and based on criteria, set forth in EPCA. (42 
U.S.C. 6297(d)) No further action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 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; (3) provide a clear legal standard for affected 
conduct rather than a general standard; and (4) 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 
sections 3(a) and 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, 
this Final Rule meets 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) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
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 a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a)-(b)) The 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 small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820; also available 
at http://energy.gov/gc/office-general-counsel. DOE examined this 
rulemaking according to UMRA and its statement of policy and determined 
that the rule contains neither an intergovernmental mandate, nor a 
mandate that may result in the expenditure of $100 million or more in 
any year. Accordingly, 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. 
This Final 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 has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (March 18, 1988), that this regulation would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

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 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed the final rule under the 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 OMB, 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated 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 adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    This rule allows manufacturers of commercial HVAC, WH, and 
refrigeration equipment the opportunity to witness the set-up for DOE 
verification testing for up to 10 percent of basic models submitted to 
DOE for certification and rated with an AEDM, and is not a significant 
regulatory action under Executive Order 12866. Moreover, it would not 
have a significant adverse effect on the supply, distribution, or use 
of energy, nor has it been designated as a significant energy action by 
the Administrator of OIRA. Therefore, DOE has not prepared a Statement 
of Energy Effects.

[[Page 151]]

L. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the 
Federal Energy Administration Act of 1974, as amended by the Federal 
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) 
Section 32 essentially provides in relevant part that, where a rule 
authorizes or requires use of commercial standards, the notice of 
rulemaking must inform the public of the use and background of such 
standards. In addition, section 32(c) requires DOE to consult with the 
Attorney General and the Chairman of the Federal Trade Commission (FTC) 
concerning the impact of the commercial or industry standards on 
competition. This rule amending DOE's regulations relating to the 
verification test procedure for commercial HVAC, WH, and refrigeration 
equipment rated with an AEDM does not involve the use of any commercial 
standards.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this 
supplemental notice of proposed rulemaking.

List of Subjects in 10 CFR Part 429

    Administrative practice and procedure, Energy conservation, 
Reporting and recordkeeping requirements.

    Issued in Washington, DC, on December 22, 2014.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    For the reasons set forth in the preamble, DOE is amending part 429 
of chapter II, subchapter D, of title 10 of the Code of Federal 
Regulations, as set forth below:

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

0
1. The authority citation for part 429 continues to read as follows:

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


0
2. Section 429.7 is amended in paragraph (b) introductory text by 
removing the words ``it is'' and by revising paragraph (b)(3) to read 
as follows:


Sec.  429.7  Confidentiality.

* * * * *
    (b) * * *
    (3) Disclosure of the individual, manufacturer model number would 
reveal confidential business information as described at Sec.  1004.11 
of this title--in which case, under these limited circumstances, a 
manufacturer may identify the individual manufacturer model number as a 
private model number on a certification report submitted pursuant to 
Sec.  429.12(b)(6).
* * * * *

0
3. Section 429.41 is amended by revising the section heading and 
paragraph (b)(4) to read as follows:


Sec.  429.41  Commercial warm air furnaces.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report may 
include supplemental testing instructions in PDF format. If necessary 
to run a valid test, the equipment-specific, supplemental information 
must include any additional testing and testing set up instructions 
(e.g., specific operational or control codes or settings), which would 
be necessary to operate the basic model under the required conditions 
specified by the relevant test procedure. A manufacturer may also 
include with a certification report other supplementary items in PDF 
format (e.g., manuals) for DOE consideration in performing testing 
under subpart C of this part.

0
4. Section 429.42 is amended by revising paragraph (b)(4) to read as 
follows:


Sec.  429.42  Commercial refrigerators, freezers, and refrigerator-
freezers.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report must 
include supplemental information submitted in PDF format. The 
equipment-specific, supplemental information must include any 
additional testing and testing set up instructions (e.g., charging 
instructions) for the basic model; identification of all special 
features that were included in rating the basic model; and all other 
information (e.g., any specific settings or controls) necessary to 
operate the basic model under the required conditions specified by the 
relevant test procedure. A manufacturer may also include with a 
certification report other supplementary items in PDF format (e.g., 
manuals) for DOE to consider when performing testing under subpart C of 
this part.

0
5. Section 429.43 is amended by revising paragraph (b)(4) introductory 
text to read as follows:


Sec.  429.43  Commercial heating, ventilating, air conditioning (HVAC) 
equipment.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report must 
include supplemental information submitted in PDF format. The 
equipment-specific, supplemental information must include any 
additional testing and testing set up instructions (e.g., charging 
instructions) for the basic model; identification of all special 
features that were included in rating the basic model; and all other 
information (e.g., operational codes or component settings) necessary 
to operate the basic model under the required conditions specified by 
the relevant test procedure. A manufacturer may also include with a 
certification report other supplementary items in PDF format (e.g., 
manuals) for DOE consideration in performing testing under subpart C of 
this part. The equipment-specific, supplemental information must 
include at least the following:
* * * * *

0
6. Section 429.44 is amended by revising paragraph (b)(4) to read as 
follows:


Sec.  429.44  Commercial water heating equipment.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report may 
include supplemental testing instructions in PDF format. If necessary 
to run a valid test, the equipment-specific, supplemental information 
must include any additional testing and testing set up instructions 
(e.g., whether a bypass loop was used for testing) for the basic model 
and all other information (e.g., operational codes or overrides for the 
control settings) necessary to operate the basic model under the 
required conditions specified by the relevant test procedure. A 
manufacturer may also include with a certification report other 
supplementary items in PDF format (e.g., manuals) for DOE consideration 
in performing testing under subpart C of this part.
* * * * *

0
7. Section 429.60 is amended by revising paragraph (b)(4) to read as 
follows:

[[Page 152]]

Sec.  429.60  Commercial packaged boilers.

* * * * *
    (b) * * *
    (4) Pursuant to Sec.  429.12(b)(13), a certification report may 
include supplemental testing instructions in PDF format. If necessary 
to run a valid test, the equipment-specific, supplemental information 
must include any additional testing and testing set up instructions 
(e.g., specific operational or control codes or settings), which would 
be necessary to operate the basic model under the required conditions 
specified by the relevant test procedure. A manufacturer may also 
include with a certification report other supplementary items in PDF 
format (e.g., manuals) for DOE consideration in performing testing 
under subpart C of this part.
* * * * *

0
8. Section 429.70 is amended by revising paragraph (c)(5)(iii) to read 
as follows:


Sec.  429.70  Alternative methods for determining energy efficiency and 
energy use.

* * * * *
    (c) * * *
    (5) * * *
    (iii) Manufacturer participation. (A) Except when testing variable 
refrigerant flow systems (which are governed by the rules found at 
Sec.  431.96(f)), testing will be completed without a manufacturer 
representative on-site. In limited instances further described in 
paragraph (c)(5)(iii)(B) of this section, a manufacturer and DOE 
representative may be present to witness the test set-up.
    (B) A manufacturer's representative may request to be on-site to 
witness the test set-up if:
    (1) The installation manual for the basic model specifically 
requires it to be started only by a factory-trained installer; or
    (2) The manufacturer has elected, as part of the certification of 
that basic model, to have the opportunity to witness the test set-up. A 
manufacturer may elect to witness the test set-up for the initial 
verification test for no more than 10 percent of the manufacturer's 
basic models submitted for certification and rated with an AEDM per 
validation class specified in section (c)(2)(iv) of this paragraph. The 
10-percent limit applies to all of the eligible basic models submitted 
for certification by a given manufacturer no matter how many AEDMs a 
manufacturer has used to develop its ratings. The 10-percent limit is 
determined by first calculating 10 percent of the total number of basic 
models rated with an AEDM per validation class, and then truncating the 
resulting product. Manufacturers who have submitted fewer than 10 basic 
models rated with an AEDM for certification may elect to have the 
opportunity to witness the test set-up of one basic model. A 
manufacturer must identify the basic models it wishes to witness as 
part of its certification report(s) prior to the basic model being 
selected for verification testing.
    (3) In those instances in which a manufacturer has not provided the 
required information as specified in Sec.  429.12(b)(13) for a given 
basic model that has been rated and certified as compliant with the 
applicable standards, a manufacturer is precluded from witnessing the 
testing set up for that basic model.
    (C) A DOE representative will be present for the test set-up in all 
cases where a manufacturer representative requests to be on-site for 
the test set-up. The manufacturer's representative cannot communicate 
with a lab representative outside of the DOE representative's presence.
    (D) If DOE has obtained through retail channels a unit for test 
that meets either of the conditions in paragraph (c)(5)(iii)(B) of this 
section, DOE will notify the manufacturer that the basic model was 
selected for testing and that the manufacturer may have a 
representative present for the test set-up. If the manufacturer does 
not respond within five calendar days of receipt of that notification, 
the manufacturer waives the option to be present for test set-up, and 
DOE will proceed with the test set-up without a manufacturer's 
representative present.
    (E) If DOE has obtained directly from the manufacturer a unit for 
test that meets either of the conditions in paragraph (c)(5)(iii)(B) of 
this section, DOE will notify the manufacturer of the option to be 
present for the test set-up at the time the unit is purchased. DOE will 
specify the date (not less than five calendar days) by which the 
manufacturer must notify DOE whether a manufacturer's representative 
will be present. If the manufacturer does not notify DOE by the date 
specified, the manufacturer waives the option to be present for the 
test set-up, and DOE will proceed with the test set-up without a 
manufacturer's representative present.
    (F) DOE will review the certification submissions from the 
manufacturer that were on file as of the date DOE purchased a basic 
model (under paragraph (c)(5)(iii)(D) of this section) or the date DOE 
notifies the manufacturer that the basic model has been selected for 
testing (under paragraph (c)(5)(iii)(E) of this section) to determine 
if the manufacturer has indicated that it intends to witness the test 
set-up of the selected basic model. DOE will also verify that the 
manufacturer has not exceeded the allowable limit of witness testing 
selections as specified in paragraph (c)(5)(iii)(B)(2) of this section. 
If DOE discovers that the manufacturer exceeded the limits specified in 
paragraph (c)(5)(iii)(B)(2), DOE will notify the manufacturer of this 
fact and deny its request to be present for the test set-up of the 
selected basic model. The manufacturer must update its certification 
submission to ensure it has not exceeded the allowable limit of witness 
testing selections as specified in paragraph (c)(5)(iii)(B)(2) to be 
present at set-up for future selections. At this time DOE will also 
review the supplemental PDF submission(s) for the selected basic model 
to determine that all necessary information has been provided to the 
Department.
    (G) If DOE determines, pursuant to paragraph (c)(5)(ii) of this 
section, that the model should be tested at the manufacturer's 
facility, a DOE representative will be present on site to observe the 
test set-up and testing with the manufacturer's representative. All 
testing will be conducted at DOE's direction, which may include DOE-
contracted personnel from a third-party lab, as well as the 
manufacturer's technicians.
    (H) As further explained in paragraph (c)(5)(v)(B) of this section, 
if a manufacturer's representative is present for the initial test set-
up for any reason, the manufacturer forfeits any opportunity to request 
a retest of the basic model. Furthermore, if the manufacturer requests 
to be on-site for test set-up pursuant to paragraph (c)(5)(iii)(B) of 
this section but is not present on site, the manufacturer forfeits any 
opportunity to request a retest of the basic model.
* * * * *
[FR Doc. 2014-30821 Filed 1-2-15; 8:45 am]
BILLING CODE 6450-01-P


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