[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Notices]
[Pages 52793-52795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24666]


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DEPARTMENT OF ENERGY


Guidance on Energy-Efficiency Enforcement Regulations

AGENCY: Office of the General Counsel, Department of Energy.

ACTION: Notice.

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SUMMARY: This notice sets forth the Department of Energy's (DOE's) 
interpretation of its energy efficiency

[[Page 52794]]

enforcement regulations. These regulations provide for manufacturer 
submission of compliance statements and certification reports to DOE, 
maintenance of compliance records by manufacturers, and the 
availability of enforcement actions for improper certification or upon 
a determination of noncompliance. DOE also announces its intent to 
randomly select and review manufacturer compliance with these 
requirements and initiate enforcement actions as appropriate.

DATES: This guidance is effective October 14, 2009.

FOR FURTHER INFORMATION CONTACT: Ms. Stephanie Weiner, Office of the 
General Counsel, U.S. Department of Energy, Forrestal Building, Room 
6A-245, 1000 Independence Ave., SW., Washington, DC 20585; Telephone 
(202) 586-9648.

SUPPLEMENTARY INFORMATION: The Energy Policy and Conservation Act of 
1975, as amended, (EPCA or the ``Act'') authorizes the Department of 
Energy (DOE or the ``Department'') to enforce compliance with the 
energy conservation standards established for certain consumer products 
and commercial equipment. 42 U.S.C. 6299-6305 (consumer products), 6316 
(commercial and industrial equipment). To ensure that all covered 
products distributed in the United States comply with DOE's energy 
conservation standards, the Department has promulgated enforcement 
regulations, which include specific certification and compliance 
requirements. See 10 CFR part 430, subpart F; 10 CFR part 431, subparts 
B, K, U, and V.
    The Department issues this guidance to make clear that under 
existing DOE regulations, a manufacturer's failure to properly certify 
a covered product and retain records in accordance with DOE regulations 
may be subject to enforcement action, including the assessment of civil 
penalties. In addition, DOE announces its intent to exercise this 
enforcement authority more rigorously, beginning this fall, with a 
program to randomly select and review manufacturers' compliance with 
these certification requirements.
    The Department's rules require manufacturers of covered consumer 
products to ``certify by means of a compliance statement and a 
certification report that each basic model(s) meets the applicable 
energy conservation standard,'' before distributing it in commerce 
within the United States. 10 CFR 430.62. Appendix A to Subpart F of 
Part 430 sets forth templates for these filings. For each basic model, 
the certification report must include certain identifying information, 
including the product type, product class, manufacturer's name and 
model number, as well as a product-specific energy efficiency levels. 
Id. Section 430.62(a)(4). The accompanying compliance report must 
certify that ``the basic model(s) complies with the applicable energy 
conservation standard'' and that ``[a]ll required testing has been 
conducted in conformance'' with applicable DOE test procedures. Id. 
Section 430.62(a)(3)(i)-(ii). Importantly, the manufacturer must also 
certify that all reported certification information is ``true, 
accurate, and complete,'' and that he or she is ``aware of the 
penalties associated with violations of the Act, the regulations 
thereunder, and 18 U.S.C. 1001 which prohibits knowingly making false 
statements to the Federal Government.'' Id. Section 430.62(a)(3)(iii)-
(iv).
    In connection with these filings, the Department's rules also 
require manufacturers to ``establish, maintain, and retain the records 
of the underlying test data for all certification testing.'' 10 CFR 
430.62(d). Further, the records must be ``organized and indexed in a 
fashion which makes them readily accessible for review by DOE'' and 
``shall include the supporting test data associated with tests 
performed on any test units to satisfy'' the certification and 
compliance requirements. Id.
    Under EPCA, the Secretary may take enforcement action for 
violations of these certification requirements. As relevant here, EPCA 
makes it unlawful ``for any manufacturer to fail to permit access to, 
or copying of, records required to be supplied under this part, or fail 
to make reports or provide other information required to be supplied 
under [the Act].'' 42 U.S.C. 6302(a)(3). Implementing that provision, 
the Department's rules prohibit both the ``[f]ailure to permit access 
to, or copying of records required to be supplied under the Act and 
this rule'' and the ``failure to make reports or provide information 
required to be supplied under this Act and this rule.'' 10 CFR 
430.61(a)(1). The Secretary may bring an injunctive action for the 
failure to properly certify covered products, 42 U.S.C. 6304, or may 
assess penalties for knowing violations of the certification reporting 
requirements, id. Section 6303(a). DOE's rules establish that, for 
consumer products:

    If a basic model is not properly certified in accordance with 
the requirements of this subpart, the Secretary may seek, among 
other remedies, injunctive action to prohibit distribution in 
commerce of such basic model.

10 CFR 430.71(b).
    To eliminate uncertainty among manufacturers subject to these 
requirements, the Department hereby provides its interpretation of the 
scope of these rules. Specifically, the Department clarifies that a 
failure to certify covered products in accordance with the DOE's rules 
is an independent violation of EPCA and DOE's implementing regulations 
that may be subject to enforcement action. The Department reads 42 
U.S.C. 6302(a)(3) and 10 CFR 430.61(a)(1) to require not only that 
manufacturers make reports and provide the information required by the 
certification regulations, but also that such submissions be both 
accurate and provided in accordance with those regulations. A failure 
to do so is a prohibited act under EPCA and DOE rules and subject to 
enforcement action. A contrary reading would substantially undermine 
the purpose of the certification and compliance requirements in the 
first place--to ensure that all covered products distributed in 
commerce comply with applicable energy-efficiency standards and have 
been tested as prescribed by the rules.
    Under a plain reading of section 430.71(b), moreover, improperly 
certifying a covered product is itself a violation subject to 
enforcement action. The Department need not test an improperly 
certified product or otherwise determine its noncompliance with the 
applicable standard before seeking an injunction or assessing civil 
penalties. Separate from these certification requirements, the 
Department's rules also establish both the process for testing covered 
consumer products' compliance, 10 CFR 430.70, and the Department's 
authority to take enforcement actions in the event that DOE determines 
that a covered product does not comply with an applicable standard, id. 
Sections 430.71(a), 430.73. But those regulations do not restrict the 
Department from seeking injunctive relief or civil penalties for 
prohibited acts that are not dependent upon testing or a determination 
of noncompliance. See, e.g., id. Section 430.61(b) (allowing DOE to 
seek penalties for acts other than standards violations). Thus, the 
Department has the authority to initiate enforcement action for 
improper certification, separate from any determination of whether a 
covered product does or does not comply with the applicable energy-
conservation standard.
    EPCA's enforcement provisions likewise apply to covered commercial 
and industrial equipment. See 42 U.S.C. 6316 (providing that the 
enforcement

[[Page 52795]]

provisions for consumer products apply ``to the same extent and in the 
same manner'' for covered commercial and industrial equipment). As with 
consumer products, the Department has promulgated certification and 
compliance regulations for certain equipment, including motors and 
transformers. See 10 CFR part 431, subparts B, K, U, and V; See, e.g., 
10 CFR 431.385(b) (``If a basic model [of electric motor] is not 
properly certified in accordance with the requirements of this subpart, 
the Secretary may seek, among other remedies, injunctive action to 
prohibit distribution in commerce of such basic model.'') \1\ The 
Department interprets its certification regulations governing covered 
commercial and industrial equipment in the same way as its regulations 
governing consumer products. For the reasons set forth above, the 
failure to certify a covered piece of commercial or industrial 
equipment in accordance with DOE rules may be subject to enforcement 
action, including the imposition of civil penalties.
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    \1\ Additionally, the Department is developing a final rule to 
adopt similar certification and compliance regulations for the 
remaining types of covered commercial and industrial equipment 
covered by statute. See 64 FR 69598 (December 13, 1999); 71 FR 25104 
(April 28, 2006); 71 FR 42193 (July 25, 2006); 71 FR 71341-42 
(December 8, 2006).
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    Today, the Department also announces its intent to exercise its 
enforcement authority more rigorously in the future. In order for DOE's 
efficiency standards to effectively promote the development and 
distribution of energy efficient products that will save energy and 
reduce costs for millions of Americans, DOE must ensure that these 
standards are aggressively and consistently enforced. Proper 
certification is a necessary prerequisite to achieving these goals. 
This fall, therefore, DOE will begin this effort by initiating a 
compliance review of certification reports for consumer products and 
commercial equipment covered by DOE regulations. Pursuant to its 
existing enforcement authority, the Department intends to randomly 
select previously filed certification reports for review, to request 
certification records from manufacturers as needed, and to hold 
manufacturers accountable for any failure to certify covered products 
in accordance with DOE rules.
    This guidance represents the Department's interpretation of 
existing regulations and announcement of the agency's general policy 
with respect to exercising its existing enforcement authority. It is 
not intended to create or remove any rights or duties, nor is it 
intended to affect any other aspect of EPCA or DOE regulations.

    Authority: 42 U.S.C. 6299-6305; 6316.

Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice.

    Issued in Washington, DC, on October 7, 2009.
Scott Harris,
General Counsel.
[FR Doc. E9-24666 Filed 10-13-09; 8:45 am]
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