[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Rules and Regulations]
[Pages 652-675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30887]



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Part V





Department of Energy





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10 CFR Parts 430 and 431



Energy Conservation Program Requirements for Certain Consumer Products 
and Commercial and Industrial Equipment; Proposed Information 
Collection; Comment Request; Certification, Compliance, and Enforcement 
Requirements for Consumer Products and Certain Commercial and 
Industrial Equipment; Final Rule and Notice

  Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules 
and Regulations  

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DEPARTMENT OF ENERGY

10 CFR Parts 430 and 431

[Docket Nos. EE-RM/TP-99-450 and EE-RM/TP-05-500]
RIN 1904-AA96 and 1904-AB53


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

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

ACTION: Final rule.

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SUMMARY: The Energy Policy and Conservation Act (EPCA), as amended, 
establishes energy and water conservation standards and test procedures 
for certain consumer products and commercial and industrial equipment. 
The Energy Policy Act of 1992 (EPACT 1992) (Pub. L. 102-486) and the 
Energy Policy Act of 2005 (EPACT 2005) (Pub. L. 109-58) amended EPCA 
and included new Federal energy and water conservation standards and 
test procedures for certain consumer products and certain commercial 
and industrial equipment. In today's final rule, the U.S. Department of 
Energy (DOE) adopts regulations to implement reporting requirements for 
energy conservation standards and energy use, and to address other 
matters, including compliance certification, prohibited actions, and 
enforcement procedures for specific consumer products and commercial 
and industrial equipment covered by EPACT 2005, as well as commercial 
heating, air-conditioning, and water heating equipment covered under 
EPACT 1992. In addition, DOE is adopting provisions for manufacturer 
certification for distribution transformers.

DATES: This rule is effective February 4, 2010 except for Sec.  431.371 
which contains information collection requirements which have not been 
approved by the Office of Management and Budget (OMB). The Department 
of Energy will publish a document in the Federal Register announcing 
the effective date.
    Manufacturers (or third-party organizations) of consumer products 
subject to today's final rule are required to submit a compliance 
statement and the first certification report to DOE on or before July 
6, 2010. Manufacturers (or third-party organizations) of commercial and 
industrial equipment subject to today's final rule are required to 
submit a compliance statement and the first certification report to DOE 
on or before the date 180 days after publication of the notice 
announcing OMB approval of the information collection requirements.

FOR FURTHER INFORMATION CONTACT: Michael McCabe, 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, (202) 586-9155. E-mail: [email protected].
    Michael Kido, U.S. Department of Energy, Office of the General 
Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-
0121, (202) 586-9507. E-mail: [email protected].


SUPPLEMENTARY INFORMATION: 

I. Background
II. Summary of Today's Action
III. Discussion of Comments
    A. Energy Policy Act of 1992--Commercial Heating, Ventilating, 
Air-Conditioning and Water Heating Equipment; Energy Policy Act of 
2005--Very Large Commercial Packaged Air Conditioning and Heating 
Equipment
    1. Voluntary Industry Certification Program Requirements
    2. Criteria for Validation of Alternative Efficiency 
Determination Methods
    3. Differences in Treatment Between Voluntary Industry 
Certification Program Participants and Non-Participants
    4. Reporting for Voluntary Industry Certification Programs
    5. Enforcement Testing
    B. Energy Policy Act of 2005--Consumer Products
    C. Energy Policy Act of 2005--Commercial Equipment
    D. Distribution Transformers
    E. General Requirements
IV. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    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. Congressional Notification
V. Approval of the Office of the Secretary

I. Background

    Part A of Title III of the Energy Policy and Conservation Act of 
1975 (EPCA), Public Law 94-163, as amended, 42 U.S.C. 6291-6309, 
established the ``Energy Conservation Program for Consumer Products 
Other Than Automobiles.'' Similarly, Part A-1 of Title III of EPCA, as 
amended, 42 U.S.C. 6311-6317, established an energy efficiency program 
for ``Certain Industrial Equipment,'' which included certain commercial 
equipment.\1\ Subtitle C of Title I of the Energy Policy Act of 1992 
(EPACT 1992), Public Law 102-486, amended EPCA to add energy 
conservation standards and test procedures for commercial central air-
conditioning equipment, furnaces, and other types of commercial and 
industrial equipment. Further, Subtitle C of Title I of the Energy 
Policy Act of 2005 (EPACT 2005), Public Law 109-58, amended EPCA by 
providing definitions, test procedures, labeling provisions, and energy 
conservation standards for particular consumer products and commercial 
and industrial equipment. EPACT 2005 also required manufacturers of 
commercial equipment covered by this final rule to submit information 
and reports for a variety of purposes, including ensuring compliance 
with the energy conservation standards. See 42 U.S.C. 6316(a).
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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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    In implementing the series of changes introduced by EPACT 1992 and 
EPACT 2005, DOE issued a number of notices, including two notices of 
proposed rulemaking (NOPR), a supplemental notice of proposed 
rulemaking (SNOPR) and a final rule. These rulemakings are further 
described in detail below.
    To implement EPACT 1992, DOE published a NOPR on December 13, 1999 
(hereafter referred to as the December 1999 NOPR) that proposed: (1) 
Methods for manufacturers to use (in conjunction with DOE test 
procedures) to rate the energy efficiency or use of, determine 
compliance with energy conservation standards for, and make energy 
representations regarding commercial heating, ventilating, air-
conditioning, and water heating (HVAC and WH) equipment; (2) procedures 
for certifying compliance with applicable energy conservation standards 
to DOE; and (3) criteria and procedures for DOE enforcement of the 
energy conservation standards for this equipment. 64 FR 69598, 69603-
06, and 69612-18. Subsequently, DOE published a SNOPR on April 28, 2006 
(April 2006 SNOPR), which proposed alternatives to the proposed 
requirements for items (1) and (3) described above. See generally 71 FR 
25103, 25104-13, and 25115-17.

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    To implement EPACT 2005, DOE first codified the prescribed energy 
conservation standards and related definitions on October 18, 2005 
(October 2005 final rule). 70 FR 60407; Title 10 of the Code of Federal 
Regulations (10 CFR) Parts 430 (consumer products) and 431 (commercial 
and industrial equipment). DOE subsequently proposed test procedures 
for measuring energy and water-use efficiency and related definitions, 
as well as certification, compliance, and enforcement requirements for 
various consumer products and commercial and industrial equipment 
covered by EPACT 2005's amendments to EPCA. 71 FR 42178 (July 25, 2006) 
(July 2006 NOPR). On December 8, 2006, DOE issued a final rule 
(December 2006 final rule) adopting the test procedures for measuring 
energy and water-use efficiency and related definitions for consumer 
products and commercial and industrial equipment covered by EPACT 2005. 
71 FR 71340; 10 CFR parts 430 and 431.
    In the April 2006 SNOPR and July 2006 NOPR, DOE discussed how to 
address the certification, compliance, and enforcement provisions 
raised in these notices and the December 1999 NOPR. In particular, DOE 
considered whether to publish two final rules or a single final rule 
containing the certification, compliance, and enforcement provisions 
for consumer products and commercial and industrial equipment. See 71 
FR 25104 and 71 FR 42193. DOE reviewed the comments responding to the 
April 2006 SNOPR and the July 2006 NOPR and, as stated in the preamble 
to the December 2006 final rule, determined that the issues raised were 
sufficiently related to each other and merited resolution as a single 
final rule. 71 FR 71341-42. However, DOE did not include the 
certification, compliance, and enforcement procedures for the EPACT 
2005 consumer products and commercial and industrial equipment, or for 
commercial heating, air-conditioning and water heating products in the 
December 2006 final rule. Id. at 71342. Instead, DOE stated its 
intention to issue a separate final rule to establish certification, 
compliance, and enforcement provisions for consumer products and 
commercial and industrial equipment. These provisions are the subject 
of today's final rule.
    DOE previously adopted certification and enforcement procedures for 
the consumer products originally covered by EPCA, as amended by the 
National Appliance Energy Conservation Act of 1987 (Pub. L. 100-12) and 
National Appliance Energy Conservation Amendments of 1988 (Pub. L. 100-
357). These procedures, which are applicable only to consumer products, 
are found in 10 CFR 430.24 and 10 CFR part 430, subpart F. The 
certification, compliance, and enforcement procedures in the December 
1999 NOPR, April 2006 SNOPR, and July 2006 NOPR were based on these 
existing provisions.
    Today's final rule sets forth the certification, compliance, and 
enforcement provisions for the EPACT 1992 and EPACT 2005 consumer 
products and commercial and industrial equipment, which DOE discussed 
in detail in the December 1999 NOPR, April 2006 SNOPR, and July 2006 
NOPR. Today's final rule also sets out the certification procedures for 
distribution transformers that DOE proposed in the July 2006 NOPR.

II. Summary of Today's Action

    DOE adopts certification, compliance and enforcement procedures for 
the consumer products and commercial and industrial equipment covered 
by the December 2006 final rule, including ceiling fans, ceiling fan 
light kits, dehumidifiers, medium base compact fluorescent lamps, 
torchieres, unit heaters, automatic commercial ice makers, commercial 
prerinse spray valves, traffic and pedestrian signal modules, 
distribution transformers, certain types of commercial refrigerators, 
freezers, and refrigerator-freezers. DOE also adopts certification, 
compliance and enforcement procedures for the commercial HVAC and WH 
equipment covered by the December 1999 NOPR and the April 2006 
SNOPR.\2\ The adoption of these procedures, explained in more detail 
below, provides a method by which to measure the energy efficiency of, 
and determine compliance with the standards established for, the 
products covered by this final rule. Today's final rule generally 
follows the same approach that currently exists for regulations 
covering consumer products under 10 CFR part 430.
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    \2\ Enforcement provisions for distribution transformers were 
established in the test procedures final rule for distribution 
transformers published on April 27, 2006. 71 FR 24972. Certification 
and enforcement for electric motors are set forth in subpart B of 10 
CFR part 431. Certification procedures for battery chargers and 
external power supplies were included in the July 2006 proposed rule 
but are not included in today's final rule because the energy 
conservation standards rulemaking addressing those products remains 
pending.
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    For each consumer product covered by the December 2006 final rule, 
DOE is adopting sampling requirements. These sampling requirements 
address the number of units of each basic model a manufacturer must 
test as the basis for rating the model and determining whether it 
complies with the applicable energy conservation standard. As stated 
above, these sampling plans follow the approach for sampling found in 
10 CFR part 430. Today's final rule also applies to each of these 
products the existing manufacturer certification and enforcement 
provisions in 10 CFR part 430. These provisions are set forth in 
section 430.62 for certification, and sections 430.61, 430.71, 430.72, 
430.73, and 430.74 for enforcement. Today's final rule also includes an 
amendment to section 430.62(a)(4) about information that manufacturers 
of these products must include in certification reports for the 
consumer products the rule covers.
    For each type of commercial or industrial equipment covered by the 
December 2006 final rule, the December 1999 NOPR, or the April 2006 
SNOPR, DOE is adopting sampling requirements for manufacturer testing. 
DOE is also requiring in today's rule that each manufacturer of 
commercial or industrial equipment file a compliance statement and 
certification reports. The compliance statement adopted today is 
essentially a one-time filing in which the manufacturer or private 
labeler states that all basic models currently produced, as well as any 
basic models manufactured in the future, are (or will be) in compliance 
with applicable energy conservation requirements.\3\ The certification 
reports will generally provide the efficiency, or energy or water use, 
as applicable, for each covered basic model that a manufacturer or 
private labeler distributes.\2\ Manufacturers of consumer products 
subject to today's final rule must submit

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the first compliance statement and certification on or before July 6, 
2010, and manufacturers of commercial or industrial equipment subject 
to today's final rule must submit the first compliance statement and 
certification on or before 180 days after notification of OMB approval 
of the information collection requirements is published in the Federal 
Register. As set forth in Subpart T, the certification provisions 
adopted in today's final rule would also apply to distribution 
transformers. Today's final rule also includes provisions for DOE 
enforcement of the applicable energy conservation standards. These 
provisions include DOE's initial steps in an enforcement action and a 
requirement for manufacturer cessation of distribution of non-complying 
equipment.
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    \3\ The compliance statement must be submitted by each 
manufacturer subject to the energy conservation standards in 10 CFR 
parts 430 and 431. The compliance statement is signed by the company 
official submitting the statement (e.g., the point of contact for 
the company or 3rd party representative), certifying that all basic 
models currently produced, and those that will be produced in the 
future, are (or will be) in compliance with the applicable energy or 
water conservation standards and does not need to be resubmitted 
unless the information on the compliance statement changes.
    \2\ The certification report must be submitted for each basic 
model distributed for sale. The certification report must be updated 
and resubmitted when any change is made to a basic model, which 
affects the energy or water consumption. However, if such change to 
a basic model reduces the energy or water consumption, the new basic 
model shall be considered in compliance. The certification report 
should include the applicable energy-efficiency or energy-use 
ratings as tested using DOE's test procedures along with the other 
information requested in appendix A to subpart F of part 430, 
appendix B to subpart T of part 431, or appendix C to subpart T of 
part 431.
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    Consumer products and commercial and industrial equipment covered 
by DOE's regulations are subject to various provisions in 10 CFR parts 
430 and 431, respectively. These provisions address a variety of 
matters, such as waivers of applicable test procedures, treatment of 
imported and exported equipment, maintenance of records, subpoenas, 
confidentiality of information, and petitions to exempt state 
regulations from preemption. Today's final rule applies these 
provisions to consumer products and commercial and industrial equipment 
covered by this rule. For consumer products, those provisions are in 
sections 430.27, 430.40 through 430.49, 430.50 through 430.57, 430.64, 
430.65, 430.72, and 430.75 of 10 CFR part 430. For commercial 
equipment, those provisions are in sections 431.401, 431.403 through 
431.407, and 431.421 through 431.430.

III. Discussion of Comments

    The agency received comments from a variety of interested parties 
including the Air-Conditioning, Heating, and Refrigeration Institute 
(AHRI) \3\; various manufacturers, and the China WTO/TBT National 
Notification & Enquiry Center, an agency within the Government of the 
People's Republic of China (PRC). These entities generally addressed a 
range of issues and offered alternatives to DOE's proposal. Issues 
addressed by the commenters included the use and validation of 
alternative efficiency determination methods (AEDMs), voluntary 
industry certification program (VICP) requirements, the treatment of 
non-VICP participants, reporting requirements for VICPs, enforcement 
testing, sampling, certification, and enforcement for commercial 
equipment in EPACT 2005, certification requirements for distribution 
transformers, and general requirements for consumer products and 
commercial equipment. The comments and DOE's responses to them are 
discussed below.
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    \3\ The Air-Conditioning, Heating, and Refrigeration Institute 
(AHRI) is the trade association representing a majority of air 
conditioning and heating equipment manufacturers subject to today's 
rule. Formerly, the Air-Conditioning and Refrigeration Instititute 
(ARI) represented the air conditioning manufacturers and GAMA (Gas 
Appliance Manufacturers Association) represented the heating 
manufacturers. GAMA and the Air-Conditioning and Refrigeration 
Institute (ARI) announced on December 17, 2007, that their members 
had voted to approve the merger of the two trade associations to 
represent the interests of cooling, heating, and commercial 
refrigeration equipment manufacturers. The merged association became 
AHRI on Jan. 1, 2008. Since GAMA and ARI submitted comments to this 
rulemaking prior to the merger, DOE is attributing each comment to 
its respective organization.
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A. Energy Policy Act of 1992--Commercial Heating, Ventilating, Air-
Conditioning and Water Heating Equipment; Energy Policy Act of 2005--
Very Large Commercial Packaged Air Conditioning and Heating Equipment

    The December 1999 NOPR proposed sampling requirements for 
manufacturer testing of commercial HVAC and WH equipment, as well as 
provisions that would generally allow manufacturers to use AEDMs to 
calculate the energy performance of equipment in lieu of testing. 64 FR 
69604-05, 69612-14. DOE proposed less stringent sampling and AEDM 
requirements for manufacturers participating in a DOE-approved VICP, 
which is a voluntary program (usually run by a manufacturer trade 
association) that collects, disseminates, and verifies information 
about the performance of one or more types of equipment. 64 FR 69603-
05. DOE proposed less stringent sampling and AEDM requirements for 
manufacturers that participate in a VICP because a VICP verifies the 
accuracy of the manufacturer's certification claims. Non-VICP 
participants are not subject to verification testing and, therefore, 
have a more stringent sampling requirement to ensure the accuracy of 
the manufacturer's certification claims. Under DOE's proposal, a VICP 
would be eligible to use these new requirements if it included features 
such as the collection and dissemination of efficiency ratings for each 
basic model of equipment, periodic testing of each basic model to 
determine the accuracy of the manufacturer's efficiency rating for the 
model, a process for taking corrective actions when a manufacturer's 
rating is inconsistent with the test results, and reporting of certain 
information to DOE. 64 FR 69604-05, 69613-14. These conditions would, 
to some extent, reflect provisions of existing VICPs and were designed 
to give greater assurance that the programs will work as intended to 
help justify less stringent requirements for VICP participants.
    In the April 2006 SNOPR, DOE supplemented its NOPR by: (1) 
Proposing specific, and slightly more stringent criteria where a VICP 
participant uses testing to determine equipment ratings, 71 FR 25105, 
25115; (2) requiring that a VICP participant perform the same amount of 
testing as a non-participant to establish the validity of its AEDM(s), 
71 FR 25105-06, 25115; (3) reducing the tolerance level (i.e., the 
amount by which AEDM and test results could vary) for a manufacturer to 
determine that an AEDM is valid, id.; (4) requiring that any AEDM is 
validated using test results to rate the efficiency the equipment, id.; 
and (5) requiring that a VICP have specific and stringent criteria for 
its verification of manufacturer efficiency and energy use ratings. See 
generally 71 FR 25108-09, 25115-16. The notice also indicated that DOE 
was considering prohibiting knowingly using an AEDM to overrate a basic 
model's energy efficiency. See 71 FR 25107.
    In addition, EPACT 2005 created a new category of covered equipment 
and set forth definitions, test procedures, and energy conservation 
standards for very large commercial package air conditioning and 
heating equipment. DOE has codified the definitions and energy 
conservation standards in 10 CFR part 431. 70 FR 60407. In the April 
2006 SNOPR, DOE proposed to apply the proposed compliance and 
enforcement requirements to very large commercial package air 
conditioning and heating equipment. 71 FR 25104.
    DOE received numerous comments responding to the December 1999 NOPR 
and the five proposed changes detailed in the April 2006 SNOPR, which 
are summarized in the subsections below. Together, the December 1999 
NOPR and the April 2006 SNOPR notices proposed a testing framework that 
would help ensure the accuracy of energy efficiency ratings while 
formalizing the use of VICPs for certification purposes. By providing 
incentives for manufacturers to voluntarily participate in VICPs 
through less burdensome sampling and certification procedures, DOE, 
through the VICPs, can better monitor and ensure the accuracy of energy 
ratings reported by individual manufacturers.
1. Voluntary Industry Certification Program Requirements
    In the December 1999 NOPR, DOE proposed tolerances for validating 
an AEDM by comparing the efficiency

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ratings derived from applying the AEDM to the tested models, which were 
used to derive the AEDM. For VICP participants who made the comparison 
for only one basic model, DOE proposed that the difference between the 
AEDM and test results must be within 1 percent for the AEDM to be 
valid. 64 FR 69613. In the comments from interested parties summarized 
below, the ``1-percent rule'' refers to the December 1999 proposal that 
the predicted efficiencies calculated for the tested basic model(s) 
must on average be within 1 percent of the efficiencies determined from 
testing such basic model(s). The 1-percent rule requires a level of 
tolerance that is greater than the tolerance in the basic certification 
requirements.
    The April 2006 SNOPR proposed revisions to the proposals that DOE 
initially outlined in the December 1999 NOPR to the required criteria 
to receive DOE approval of a VICP. These revisions to the criteria were 
proposed partly on the grounds that the initially proposed amendments 
to sections 431.484(a)(9) and (13) were ``overly vague'' and might not 
sufficiently convey that a VICP must use verification methods and 
criteria sufficiently rigorous to give reasonable assurance that a 
given rating claim would apply to all units of the tested basic model. 
71 FR 25108.
    In the December 1999 NOPR (64 FR 69613-14), DOE had initially 
proposed that these sections read as follows: ``The program has an 
appropriate standard for determining whether the efficiency rating a 
manufacturer claims for a product is valid. * * * the VICP provides to 
the Department annually data on the results of its verification testing 
during the previous 12 months, including the following for each basic 
model on which the VICP has performed verification testing: The 
measured efficiency from the verification testing, the manufacturer's 
efficiency rating, and either the applicable energy conservation 
standard or a description of the model sufficient to enable the 
Department to determine such standard.''
    In contrast, the April 2006 SNOPR (71 FR 25116) proposed to revise 
section 431.484(a)(9) to read as follows: ``The program includes 
appropriate standards for the accuracy of its verification testing 
results and for determining whether the efficiency rating of a 
manufacturer claims for equipment is valid. Such standards must include 
criteria which give reasonable assurance that a manufacturer's 
efficiency rating for a basic model represents the mean performance for 
all units it manufactures of that model, and could include, for 
example, statistically valid methods, such as a sampling plan, for 
determining the efficiency of a basic model. If the program provides 
that a manufacturer's rating for equipment will be valid so long as the 
verification test results under the VICP are within a given percentage 
of the rating, then the program must meet the following requirements: 
It must specify the percentage(s) it uses and the equipment categories 
to which each such percentage applies; each such percentage must 
correspond to the normal manufacturing variability and measurement 
uncertainty for the equipment to which the percentage applies; and the 
program must provide that if, during a calendar year, the average of 
the manufacturers' efficiency ratings found valid under the VICP is 
more than one percent above (or more than one percent below for energy 
use ratings) the average of the efficiencies from the verification 
tests under the VICP, the program will be revised to provide reasonable 
assurance that in the future ratings under the VICP will average no 
more than one percent above verification test results.''
    Lennox International, Inc. (Lennox), the Gas Appliance 
Manufacturers Association (GAMA) and the Air-Conditioning and 
Refrigeration Institute (ARI) commented on the proposed requirements 
for VICPs in the April 2006 SNOPR. Lennox asserted that while a general 
limit on the accuracy of efficiency ratings under a VICP, such as 1 
percent, may be obtained for one class of equipment, it may not be 
practical for other classes of equipment. Lennox urged DOE to prescribe 
the tolerance placed on the accuracy of an efficiency rating on a case-
by-case basis, rather than impose a ``one-size fits all'' approach. To 
this end, Lennox requested that DOE, in consultation with the VICP, 
establish an acceptable percentage of accuracy for each class of 
covered equipment. (EE-RM/TP-99-450, Lennox, No. 10 at p. 1) \4\
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    \4\ A note in the form ``EE-RM/TP-99-450, Lennox, No. 10 at p. 
1'' refers to: (1) To a statement that was submitted by Lennox and 
is recorded in the docket under ``Energy Efficiency Program for 
Commercial and Industrial Equipment: Efficiency Certification, 
Compliance, and Enforcement Requirements for Commercial Heating, Air 
Conditioning and Water Heating Equipment,'' Docket Number EE-RM/TP-
99-450, as comment number 10; and (2) a passage that appears on page 
1 of that statement.
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    Additionally, ARI and GAMA stated that DOE should reconsider its 
proposal that a VICP revise its certification program when the 
disparity between average verification test results and average 
manufacturers' rating claims during a calendar year exceeds 1 percent. 
Without this modification, these commenters asserted that the DOE-
proposed ``1-percent rule'' could be overly burdensome to the industry, 
particularly in light of the steps already taken to avoid overrating 
products and the likely additional costs needed to reevaluate each 
industry certification program. Commenters also pointed to the inherent 
variability of the test procedure results, e.g., instrument accuracy, 
and manufacturing variability for each product. (EE-RM/TP-99-450, ARI, 
No. 12 at p. 2, and EE-RM/TP-99-450, GAMA, No. 11 at p. 3)
    GAMA supported the criteria at sections 431.484(a)(9) and (13) in 
the December 1999 NOPR, but objected to the April 2006 SNOPR revisions 
to section 431.484(a)(9). GAMA opined that the original language of 
section 431.484(a)(9) is not vague, but would produce reasonable 
assurance that a VICP-verified efficiency rating is truly 
representative of all units of the tested basic model. In addition, 
GAMA supported the proposed section 431.484(a)(14) changes contained in 
the April 2006 SNOPR, which would permit manufacturers to challenge a 
competitor's erroneous efficiency ratings. (EE-RM/TP-99-450, GAMA, No. 
11 at p. 2) The April 2006 SNOPR (71 FR 25116) proposed that section 
431.484(a)(14) read as follows: ``The program contains provisions under 
which each participating manufacturer can challenge ratings submitted 
by other manufacturers, which it believes to be in error.''
    ARI, GAMA, and Lennox each contended that a ``one size fits all'' 
methodology is inappropriate given the different types of commercial 
equipment experience, manufacturing variability, test procedure 
accuracy, and measurement uncertainty. (EE-RM/TP-99-450, ARI, No. 12 at 
p. 2; EE-RM/TP-99-450, GAMA, No. 11 at p. 2; and EE-RM/TP-99-450, 
Lennox, No. 10 at p. 1) Additionally, GAMA asserted that such a 
provision would require changing a VICP when ``any disparity'' between 
average test results and ratings exceeds 1 percent. (EE-RM/TP-99-450, 
GAMA No. 11 at p. 2)
    The April 2006 SNOPR proposals are based on the underlying 
assumption that each type of equipment would have a normal distribution 
of ratings, with comparable degrees of error on the high and low sides. 
71 FR 25108. With the sampling in DOE's test procedures for a given 
piece of commercial equipment, on average, the ratings would closely 
match the VICP's verification test results so long as the ratings were 
not biased. If these ratings were significantly

[[Page 656]]

higher, however, this would appear to indicate that many ratings were 
inaccurate, implying that the VICP had validated manufacturer 
overrating of equipment. In such a situation, by systematically rating 
products at levels above what was warranted by test results, these 
results would likely indicate that manufacturers were taking advantage 
of the VICP's practice of holding valid all ratings that were within a 
given percentage above the verification test results.
    In view of the above concerns, DOE recognizes that the proposed 
``one size fits all'' methodology may not be appropriate for all 
commercial HVAC and WH equipment. Therefore, DOE adopts the methodology 
for VICP participants as originally proposed in the December 1999 NOPR, 
which includes a reporting of verification test results to DOE to 
provide assurance that VICP-verified efficiency ratings are 
representative of the units of the model offered for sale. 
Nevertheless, DOE believes that the published ratings must accurately 
reflect the energy efficiency of the models participating in the VICP. 
For example, DOE expects the differences between rated values and 
tested values to have a normal (Gaussian) distribution around the rated 
value (i.e., the proportion of the verification test results that are 
higher than the rating submitted by the manufacturer is approximately 
equal to the proportion that are lower). Thus, if DOE reviews the 
results of a VICP's tests and found a skewed distribution of efficiency 
levels, DOE would closely examine the validity of the VICP and, based 
on that examination, determine whether the VICP is qualified under the 
requirements being issued today.
2. Criteria for Validation of Alternative Efficiency Determination 
Methods
    Lennox asserted that the criteria for validation of an AEDM, as 
proposed in the April 2006 SNOPR, are inadequate to verify the 
robustness of an AEDM for use on all equipment models. It indicated 
that correlating an AEDM to the manufacturer's three highest selling 
basic models would not be sufficient to validate its use for predicting 
the efficiency of other basic models with different characteristics 
because there is no assurance that the basic models chosen are capable 
of accounting for the impact of all critical variables inherent in the 
product type being modeled by the AEDM. Instead, Lennox recommended 
that, in addition to the proposed requirements in the April 2006 SNOPR, 
the review and qualification for use of an AEDM be judged against a 
uniform set of criteria established by the VICP for participants, and 
by DOE for non-VICP participants. (EE-RM/TP-99-450, Lennox, No. 10 at 
pp. 1-2)
    ARI disagreed with the proposed requirement in the April 2006 SNOPR 
that a VICP participant validate its AEDM by comparing test results and 
AEDM results for three or more basic models. ARI asserted that the AEDM 
validation should be performed against no more than one basic model for 
VICP participants. For non-VICP participants, ARI recommended that DOE 
require AEDM validation to be made against three or more basic models. 
(EE-RM/TP-99-450, ARI, No. 12 at p. 2)
    In view of ARI's and Lennox's comments, DOE will require a VICP 
participant to apply its AEDM to one or more basic models that have 
been tested according to the applicable test procedure, and that each 
basic model produced by a manufacturer be tested at least once every 
five years. The provisions being adopted today, which were originally 
proposed in the December 1999 NOPR for subsection 431.484(a)(4), 
require each organization operating a VICP to report to DOE annually on 
verification testing results under the VICP. 64 FR 69603, 69613. In 
addition, DOE approval of a VICP requires that each basic model covered 
by a VICP be tested under the program at least once every five years. 
Id. By reviewing these test data, DOE will be able to validate a 
manufacturer's AEDMs and the appropriate VICP.
    In the April 2006 SNOPR, DOE also proposed to modify the tolerance 
band to  2 percent for comparing the predicted efficiency 
calculated with an AEDM to the test results. 71 FR 25106. DOE stated in 
the April 2006 SNOPR that the December 1999 NOPR proposal, which 
permitted an AEDM to have a margin of error of 5 percent for the 
validation points, could create an increased potential for an AEDM to 
produce erroneous results. Id. To reduce this possibility, DOE proposed 
to modify the tolerance band from  5 percent as originally 
proposed in the December 1999 NOPR to a tolerance band of  
2 percent. 71 FR 25106.
    ARI disagreed with the  2 percent tolerance band 
proposed in the April 2006 SNOPR. ARI commented that tightening the 
AEDM's tolerance to  2 percent for VICP participants is not 
justified, unnecessary, and overly burdensome. Instead, ARI recommended 
that DOE keep the tolerance at  5 percent for VICP 
participants and retain the  2 percent tolerance for non-
VICP participants to account for the very limited testing that is done 
to verify product efficiency. (EE-RM/TP-99-450, ARI, No. 12 at p. 3)
    The PRC commented that commercial HVAC and WH equipment efficiency 
is influenced by several factors, including the ambient temperature, 
room structure, and the parts of the refrigeration systems. Because of 
the variability created by these factors, and the inability of 
mathematical models to describe accurately how they affect product 
performance, it asserted that it is difficult to keep the tolerance 
within  2 percent between the anticipated efficiency value 
and the actual test value. Instead, the PRC suggested that the 
tolerance be set according to the different types and classifications 
of products. (EE-RM/TP-99-450, PRC, No. 13 at p. 1)
    DOE agrees that the 2-percent tolerance level for VICP participants 
could be overly burdensome and VICP participants are already subject to 
more stringent tolerance requirements due to the nature of the VICP 
certification program. DOE also acknowledges the PRC's view that a 
large variation between various types of commercial HVAC and WH 
equipment exists that warrants the use of different tolerances.\5\ In 
view of the above comments, DOE establishes a tolerance level of 5 
percent for VICP participants and 3 percent for non-VICP participants. 
DOE understands that there is sufficient variation in testing and 
repeatability in test results from one laboratory to another that a 3 
to 5 percent difference between the tested value and rated value could 
occur. Nevertheless, DOE expects the variability in test results to be 
a distribution that is centered around the rated value of the 
equipment, rather than a skewed distribution. Consequently, DOE will 
monitor VICPs and AEDMs to determine if they satisfy the goals of the 
VICP program and the testing requirements adopted by today's final 
rule.
---------------------------------------------------------------------------

    \5\ The source of variation between various types of commercial 
HVAC and WH equipment depends on the size of the equipment, the 
number of units manufactured, the variation in equipment design, and 
any manufacturing variations.
---------------------------------------------------------------------------

3. Differences in Treatment Between Voluntary Industry Certification 
Program Participants and Non-Participants
    The proposals detailed in the December 1999 NOPR specified that 
participation in a VICP would allow a manufacturer to follow either: 
(1) The DOE sampling plan; or (2) a DOE approved AEDM. A VICP 
participant must still test its products, validate its AEDM (if 
applicable), and file a compliance statement and certification

[[Page 657]]

report, either directly to DOE, or through the VICP, which will file 
these documents on the manufacturers' behalf. DOE also included 
specific criteria that a VICP must meet to gain recognition. The 
program would have to include, for example, provisions for the 
collection and dissemination of efficiency ratings of each basic model 
of equipment, periodic testing of each basic model to determine the 
accuracy of the manufacturer's efficiency rating for the model, a 
process for taking corrective action (e.g., deleting or decertifying 
equipment) when a manufacturer's rating conflicts with the test 
results, and the reporting of certain information to DOE. The December 
1999 NOPR also addressed how the organization operating a VICP could 
obtain DOE approval of the VICP and the duration of that approval. 64 
FR 69605.
    Further, the December 1999 NOPR proposed more stringent criteria 
for testing and the use of AEDMs for those manufacturers opting not to 
participate in a VICP. DOE proposed to require that non-VICP 
manufacturers would have to conduct independent testing, use DOE-
prescribed sampling plans, and obtain DOE approval of its AEDMs (if 
applicable) before those methods could be used for compliance 
certification purposes. Non-VICP manufacturers would also need to file 
a compliance statement and certification report directly to DOE.
    In the December 1999 NOPR, DOE also proposed to require a non-VICP 
manufacturer that uses an AEDM under this subpart to validate that 
method by subjecting to testing three or more of its basic models, 
which must be the highest-selling basic models. These test results 
would then be compared with the results from the AEDM model. (In 
contrast, a VICP participant would have to compare the test results for 
only one or more basic models with the results of the AEDM model.) 
Under the December 1999 NOPR, the test results would have needed to be 
within 1 percent of the AEDM model results for the AEDM to be valid. 64 
FR 69613. The April 2006 SNOPR maintained these aspects of the 
proposal. 71 FR 25107.
    Lennox and ARI asserted that the December 1999 NOPR and the April 
2006 SNOPR would put VICP participants at a disadvantage relative to 
non-participants. ARI stated that a VICP participant must incur 
``significant cost'' and risk ongoing verification testing of its 
products, whereas a non-participant need only test three basic models 
to validate its AEDM(s). (EE-RM/TP-99-450, ARI, No. 12 at p. 4) In 
addition, Lennox claimed that, for a non-participant's products, 
consumers are only assured that a tested sample of units performs at 
the level of the manufacturer's efficiency ratings. (EE-RM/TP-99-450, 
Lennox, No. 10 at p. 2) GAMA also opined that provisions in the April 
2006 SNOPR ``provide disincentives to participate in VICPs,'' although 
it did not identify which provisions. Further, GAMA stated that a VICP 
polices a manufacturer's efficiency claims at no cost to taxpayers, and 
that a manufacturer participates in a VICP at significant cost and 
considerable risk because of the penalties levied if verification 
testing does not support its efficiency ratings.\6\ (EE-RM/TP-99-450, 
GAMA, No. 11 at p. 4)
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    \6\ Manufacturer trade organizations, such as GAMA, maintain a 
certified directory, which includes the efficiency ratings of 
certified equipment. The information contained within the certified 
directory for VICP participants includes manufacturer, model number, 
input or capacity rating, efficiency rating, and other applicable 
footnotes such as when the efficiency information was revised. In 
addition, the directory indicates where a model is current or 
discontinued. One example of a certified directory currently 
maintained by AHRI (formerly ARI and GAMA) is the ``Consumers' 
Directory of Certified Efficiency Ratings for Heating and Water 
Heating Equipment'' (see http://www.ahrinet.org/ARI/util/showdoc.aspx?doc=710).
---------------------------------------------------------------------------

    Lennox requested that DOE require non-VICP manufacturers to 
participate in a DOE-administered verification program that would be 
based on DOE's requirements and funded at a VICP-equivalent level by 
the non-VICP participants. (EE-RM/TP-99-450, Lennox, No. 10 at p. 2) 
ARI recommended that a non-VICP participant be required to show 
compliance and the accuracy of its efficiency representations through 
verification testing conducted by an independent laboratory. (EE-RM/TP-
99-450, ARI, No. 12 at p. 4)
    The proposals detailed in the December 1999 NOPR and April 2006 
SNOPR were tailored for non-VICP participants and participants of a 
VICP. Note that while the requirements for VICP participants include 
less initial testing, the requirements specify third party verification 
testing. In contrast, non-VICP participants must perform more rigorous 
initial testing because third party verification testing is not 
required. As stated above, non-VICP manufacturers are required to 
conduct independent testing, use DOE-prescribed sampling plans, gain 
DOE's approval of AEDMs, and file their own compliance statements and 
certification reports. For the reasons provided above, DOE believes 
that the procedures for VICP participants and non-VICP manufacturers 
being adopted in today's final rule are appropriate.
4. Reporting for Voluntary Industry Certification Programs
    The December 1999 NOPR proposed to require a VICP to report 
annually verification test results, each manufacturer's rated 
efficiency, and either the applicable energy conservation standard or 
information that would enable DOE to determine the standard for each 
basic model on which the VICP performed verification testing. The April 
2006 SNOPR, which carried over the annual reporting requirement, 
proposed to require that a VICP also report model numbers for tested 
products, which would enable DOE to monitor whether the VICP is doing 
verification testing of each basic model at least once every five 
years. See 71 FR 25109.
    ARI commented that the April 2006 SNOPR's proposed annual model 
number reporting requirement is overly burdensome. Instead, ARI 
suggested that VICPs provide aggregate results by type of equipment 
only. DOE agrees that requiring annual reporting could be unduly 
burdensome, to both the VICP and DOE due to the vast number of models 
offered by manufacturers of a given product type. By providing 
aggregate results, DOE will be able to discern any trends contained in 
the testing data. In addition, DOE is requiring VICPs to make test data 
records available for DOE inspection. DOE believes that, in light of 
all of these factors, the added detail from annual reporting does not 
add any useful value that would significantly enhance DOE's ability to 
monitor manufacturer compliance with the energy conservation standards. 
Therefore, DOE intends to review a VICP on an as-needed basis and has 
withdrawn its proposed requirement for including model numbers in the 
annual reporting. A VICP will be required to maintain the records of 
test results and applicable compliance information, all of which would 
be made available to DOE for inspection as set forth in the 
regulations. In the case, for example, where DOE is investigating an 
energy performance certification, the records of test results would be 
made available to DOE as set forth in the regulations.
5. Enforcement Testing
    DOE proposed in the December 1999 NOPR to test initially two units 
of a basic model to determine its compliance with the applicable energy 
conservation standard, except that under certain circumstances DOE 
would test one unit. 64 FR 69616. The December 1999 NOPR also provided 
that a model would be in compliance if the average result for the

[[Page 658]]

two tested units (or the result from testing a single unit) fell within 
a 5-percent tolerance range (i.e., 95 percent or more of the applicable 
efficiency standard or 105 percent or less of an energy use standard). 
64 FR 69617. If the test results fall outside the 5-percent tolerance 
range, resulting in a non-compliance determination, a manufacturer 
could request that DOE conduct additional testing. DOE would then 
conduct the additional testing and determine compliance by averaging 
the results from both rounds of testing and applying the 5-percent 
criterion.
    DOE revised this approach for enforcement testing in the April 2006 
SNOPR by making three changes. First, DOE would generally test four 
units of a basic model, but would test fewer if only a lesser number 
were available, or if testing of such lesser number were otherwise 
warranted (e.g., if a basic model is very large or has unusual testing 
requirements) as described in section 431.373(a)(3)(ii)(B). If DOE were 
to test three or four units, it would test each unit once; if it tested 
two units it would test each twice; and if it tested one unit it would 
test that unit four times. Second, DOE would compute the mean of the 
test results, as provided in the NOPR, but would also calculate a lower 
control limit for energy efficiency or an upper control limit for 
energy use. The lower control limit, for example, would be the greater 
of either: (a) 97.5 percent of the applicable energy efficiency 
standard, or (b) the applicable energy efficiency standard minus the 
product of the sample standard error and the t-value for a 97.5-
percent, one-sided confidence limit. The upper control limit would be 
calculated in a similar fashion (See Appendix D to Subpart T of Part 
431.). Finally, the April 2006 SNOPR proposed that a basic model would 
be in compliance only if the mean measurement for the sample meets or 
exceeds the lower control limit in the case of an efficiency standard 
or is less than or equal to the upper control limit in the case of an 
energy use standard. 71 FR 25110.
    GAMA disagreed with DOE's proposal to tighten the enforcement 
testing tolerance for commercial equipment. Specifically, it preferred 
the 95 percent confidence limit proposed in the December 1999 NOPR. 
GAMA noted that while its certification programs employ test tolerances 
of 2 percent for commercial equipment and 3.5 percent for residential 
products, DOE's citing of these tolerances in support of the proposed 
tightened tolerances is inaccurate and inappropriate because the 2-
percent tolerance only applies to verification testing of commercial 
boilers and commercial water heater thermal efficiencies. Further, GAMA 
pointed out that the 2-percent tolerance is not included in its 
certification program for commercial furnaces. For residential 
products, GAMA's certification program allows a 3.5-percent tolerance 
for residential water heaters and a 5-percent tolerance for furnaces. 
GAMA cautioned DOE not to prescribe uniform compliance and enforcement 
criteria for all products. (EE-RM/TP-99-450, GAMA, No. 11 at p. 4)
    Notwithstanding GAMA's comments, DOE continues to believe that it 
is unnecessary and would be unduly burdensome to prescribe unique 
tolerances for each type of equipment that could undergo enforcement 
testing. DOE also notes that the 97.5-percent tolerance proposed in the 
April 2006 SNOPR is intended to ensure that DOE has a high degree of 
certainty when making a determination of non-compliance. This is not a 
requirement for the manufacturers but an effort by DOE to help mitigate 
false positives by tightening the tolerances during enforcement 
testing; DOE believes that the lower degree of certainty of 95 percent 
is not appropriate because it would more likely lead to determinations 
of non-compliance when, in fact, the basic model complies with the 
applicable energy conservation standards. Therefore, DOE rejects GAMA's 
comment and is establishing the tolerance specified for enforcement 
testing at 97.5 percent for all types of commercial HVAC and WH 
equipment.
    GAMA also commented that the April 2006 SNOPR proposed to 
significantly change the enforcement testing requirements by proposing 
the selection and testing of four samples. GAMA opined that adopting 
such a requirement would be burdensome and out of proportion to the 
reality of the commercial equipment market. Instead, GAMA supported 
DOE's approach in the December 1999 NOPR, which based enforcement 
testing on two samples instead of four. (EE-RM/TP-99-450, GAMA, No. 11 
at p. 4; EE-RM/TP-05-500, GAMA, No. 7 at p. 3-4)
    In view of GAMA's comment, DOE believes that there are very few 
units produced in any given year for certain types of commercial HVAC 
and WH equipment, and that it would be impossible to find, much less 
test, a sample of four units. For example, small commercial package air 
conditioners and heat pumps are manufactured on a larger scale with 
less variation, whereas very large commercial package air conditioners 
and heat pumps are manufactured on a small scale, made-to-order basis 
with more specific variations based upon the commercial customer's 
design preferences for a given project. DOE acknowledges there can be 
large variations in the number of units produced in a given year 
depending on the specific projects being developed by the commercial 
customer. Therefore, DOE adopts the approach outlined in the December 
1999 NOPR, which requires enforcement testing to be based upon two 
samples instead of four.
    Additionally, GAMA disagreed with DOE's assertion and proposal that 
multiple testing of the same unit would provide greater assurance of 
standards compliance. Instead, GAMA asserted that conducting multiple 
tests of the same unit becomes an evaluation of the test procedure 
accuracy and test setup, rather than an evaluation of the model's 
efficiency rating. (EE-RM/TP-99-450, GAMA, No. 11 at p. 4; EE-RM/TP-05-
500, GAMA, No. 7 at p. 3-4)
    In view of GAMA's comment, DOE understands that multiple testing of 
a single unit does not accurately reflect the energy efficiency or 
performance of the basic model. DOE believes testing multiple units of 
a basic model gives an indication of the manufacturing variability 
within a basic model. While testing one unit multiple times indicates 
the ability of the test procedure to provide repeatable results, 
testing multiple units captures the variability of the manufacturing 
process. As a result, DOE concludes that such multiple testing of an 
individual unit is inappropriate for enforcement testing and is 
removing that requirement from today's final rule.
    GAMA also commented on the definition of a ``defective unit'' as it 
applies to water heaters that DOE proposed in the July 2006 SNOPR. 
Under proposed section 431.373(a)(5)(iii), a defective unit is one that 
is inoperative. A defective unit can also be one that is in 
noncompliance due to a manufacturing defect or the failure of the unit 
to operate according to the manufacturer's design and operating 
instructions, and where the manufacturer demonstrates by statistically 
valid means that, with respect to such defect or failure, the unit is 
not representative of the population of production units from which it 
is obtained. GAMA recommended that a water heater found to have one or 
more significant insulation voids should be considered a defective unit 
and should not be included in an enforcement test sample, because it is 
not representative of the manufacturer's production. GAMA further 
recommended that for commercial water heaters, the criteria for a 
significant insulation void should

[[Page 659]]

be one-third of 1 percent or more of the tank surface area that is 
exposed. GAMA included in its comment a detailed proposal based on 
nominal tank size, but ultimately, GAMA indicated that DOE should 
address the issue of water heater insulation voids. (EE-RM/TP-99-450, 
GAMA, No. 11 at p. 4; EE-RM/TP-05-500, GAMA, No. 7 at p. 3-4)
    DOE disagrees with GAMA on the matter of water heater insulation 
voids. DOE believes that a unit with an insulation void so large as to 
materially affect the measure of efficiency, the unit should, in the 
normal course of manufacturing, be identified and either the insulation 
void corrected or the unit scrapped. Such a unit would, therefore, not 
be subject to testing for either certification or demonstration of 
compliance. However, if a unit with an insulation void is not 
identified through normal inspection procedures and rejected for sale 
to consumers, then it should not be rejected for testing for 
certification purposes or demonstration of compliance since it is 
representative of units offered for sale. Therefore, DOE rejects GAMA's 
comment and will not include any additional requirements to identify 
and exclude a water heater with an insulation void from compliance 
certification or enforcement testing.
    GAMA also asked that the agency clarify what it would consider 
``the date of last determination of compliance'' under the proposed 
section 431.508(a)(2). 64 FR 69617. GAMA asserted that the date of last 
determination of compliance means the most recent date when the 
efficiency of a particular model has been checked, which could include 
either normal verification testing by an approved VICP or efficiency 
checks done in a manufacturer's own quality control program. (EE-RM/TP-
99-450, GAMA, No. 11 at p. 4; EE-RM/TP-05-500, GAMA, No. 7 at p. 3-4) 
Consequently, determining this date largely depends on the individual 
practices followed by the manufacturer.
    Consistent with GAMA's concerns, DOE will notify the manufacturer 
of the applicable date on a case-by-case basis when DOE, or the 
manufacturer, or the private labeler determines that the HVAC or WH 
equipment is noncompliant. Otherwise, if there have been no 
noncompliance issues for a particular manufacturer's model of HVAC or 
WH equipment that was certified by DOE, then the date of last 
determination of compliance would be the date the manufacturer had last 
certified compliance of that product to DOE.
    The PRC suggested that ``definite standards used for testing and 
sampling be specified to facilitate testing procedures.'' (EE-RM/TP-99-
450, PRC, No. 13 at p. 1) DOE understands the PRC's comment as asking 
DOE to specify a test procedure in addition to the sampling plan for 
each equipment class. If correct, DOE believes the PRC has 
misunderstood the purpose of the April 2006 SNOPR, since the test 
procedures for commercial HVAC and WH equipment were finalized in 
previous final rules.\7\ The purpose of the April 2006 SNOPR was to set 
forth the revisions to the certification and enforcement provisions for 
commercial HVAC and WH equipment for the test procedures that already 
exist.
---------------------------------------------------------------------------

    \7\ DOE issued several final rules relating to test procedures 
on October 21, 2004--Test Procedures and Efficiency Standards for 
Commercial Warm Air Furnaces, 69 FR 61916; Test Procedures and 
Efficiency Standards for Commercial Water Heaters, Hot Water Supply 
Boilers and Unfired Hot Water Storage Tanks, 69 FR 61974; Test 
Procedures and Efficiency Standards for Commercial Packaged Boilers, 
69 FR 61949; Test Procedures and Efficiency Standards for Commercial 
Air Conditioners and Heat Pumps, 69 FR 61962.
---------------------------------------------------------------------------

B. Energy Policy Act of 2005--Consumer Products

    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. In 
the July 2006 NOPR, DOE proposed the use of a statistically meaningful 
sampling procedure for selecting test specimens of consumer products 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 rated measure of energy efficiency or energy use. DOE 
stated that it reviewed sampling plans for consumer products and 
commercial and industrial equipment which could provide guidance on how 
many and which units to test to determine compliance.\8\ 71 FR 42193. 
DOE considered four factors when proposing sampling plans: (1) 
Minimizing a manufacturer's testing time and costs; (2) assuring 
compatibility with other sampling plans DOE has promulgated; (3) 
providing a highly valid statistical probability that basic models that 
are tested meet the applicable energy conservation standards; and (4) 
providing a highly valid statistical probability that a manufacturer 
preliminarily found to be in noncompliance will actually be in 
noncompliance. 71 FR 42193.
---------------------------------------------------------------------------

    \8\ The sampling plans reviewed for consumer products are those 
found in 10 CFR Part 430 and the sampling plans reviewed for 
commercial and industrial equipment are those found in 10 CFR Part 
431 and the December 1999 NOPR. See generally 64 FR 69602-06.
---------------------------------------------------------------------------

    After review of the sampling plans for consumer products in 10 CFR 
Part 430, sections 430.63, 430.70, and appendix B to subpart F, DOE 
proposed 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, reject the sample, or continue sampling and 
testing additional units until a compliance determination can be made. 
Id. DOE did not propose a sample size in the July 2006 NOPR 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 believed 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, which is the basis for most of the statistical 
sampling procedures for consumer products under 10 CFR 430.24, Units to 
be Tested.
    The July 2006 NOPR proposed to require at section 430.24 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. 71 FR 
42204. For each representative model, a sample of sufficient size would 
be selected at random and tested to ensure that any represented value 
of energy efficiency is, for example, no greater than the lower of (A) 
the mean of the sample; or (B) the lower 95-percent confidence limit of 
the mean of the entire population of that basic model, divided by a 
coefficient applicable to the represented value. The coefficients in 
the July 2006 NOPR are product specific and intended to reasonably 
reflect variations in materials, the manufacturing process, and testing 
tolerances. 71 FR 42193.
    Additionally, the July 2006 NOPR sought comments and data 
concerning the accuracy and workability of the sampling plan for 
ceiling fans, ceiling fan light kits, torchieres, medium base compact 
fluorescent lamps, and dehumidifiers, including the confidence limits 
and coefficients, and invited discussion about improvements or 
alternatives. 71 FR 42193. DOE did not receive any comments regarding 
its proposed sampling plans and continues to believe that the sampling 
plans and procedures would minimize the manufacturers' testing time and 
cost, while providing statistical validity that the true mean energy 
efficiency of a

[[Page 660]]

basic model meets or exceeds the rated measure of energy efficiency or 
energy use and that the basic models comply with the applicable energy 
conservation standards. Based on a consideration of the above, DOE is 
adopting the sampling plans as proposed in the July 2006 NOPR for 
ceiling fans, ceiling fan light kits, torchieres, medium base compact 
fluorescent lamps, and dehumidifiers. Today's rule would also apply to 
these products the provisions in 10 CFR part 430, subpart F. The 
relevant provisions are section 430.62 for certification, and sections 
430.61, 430.71, 430.72, 430.73, and 430.74 for enforcement. Today's 
final rule amends section 430.62(a)(4) to require manufacturer 
reporting for ceiling fans, ceiling fan light kits, torchieres, medium 
base compact fluorescent lamps, and dehumidifiers. The existing section 
430.62(a)(1) includes general instructions for manufacturer submission 
of certification data to DOE, including the mailing address for 
submitting certification data. Those directions apply to the products 
added by today's final rule.

C. Energy Policy Act of 2005--Commercial Equipment

    As part of the July 2006 NOPR, DOE proposed to adopt sampling 
requirements for manufacturer testing similar to those in part 430 for 
consumer products for each type of commercial or industrial equipment 
EPACT 2005 covers and for which DOE finalized test procedures in the 
December 8, 2006 final rule. For certification reporting on covered 
commercial equipment, the procedures proposed in the July 2006 NOPR 
would require manufacturers to report the energy efficiency, energy 
use, or water use of each basic model. 71 FR 42192. DOE proposed to 
require that each manufacturer of commercial or industrial equipment 
file a compliance statement and certification report. The compliance 
statement would be a one-time filing \9\ in which the manufacturer or 
private labeler states that it complies with applicable energy 
conservation requirements, and the certification reports generally 
provide the efficiency, or energy or water use, as applicable, for each 
covered basic model that a manufacturer distributes. A basic model 
refers to those models with no differing electrical, physical, or 
functional features that affect energy consumption. These requirements 
take the same approach as the certification procedures in part 430 and 
incorporate, with some modifications, certification provisions that DOE 
proposed for commercial heating, air conditioning, and water heating 
equipment in the December 1999 NOPR (64 FR 69602, 69611) and the April 
2006 SNOPR (71 FR 25104, 25116).
---------------------------------------------------------------------------

    \9\ The compliance statement must be submitted by each 
manufacturer subject to the energy conservation standards in 10 CFR 
parts 430 and 431. The compliance statement is signed by the company 
official submitting the statement (e.g., the point of contact for 
the company or 3rd party representative), certifying that the basic 
model is in compliance with the applicable energy or water 
conservation standards and does not need to be resubmitted unless 
the information on the compliance statement changes.
---------------------------------------------------------------------------

    DOE also set forth provisions for enforcement of the EPACT 2005 
standards for commercial equipment in the July 2006 NOPR. 71 FR 42192, 
42214. The enforcement proposals address DOE's initial steps in an 
enforcement action and would require a manufacturer to cease 
distribution of non-complying equipment, following the approach in Part 
430. They are the same procedures for HVAC and WH equipment contained 
in the December 1999 NOPR. 64 FR 69604, 69617. For enforcement testing, 
including sampling provisions during enforcement testing and compliance 
determinations, DOE proposed two procedures based on the volume of 
shipments produced for commercial equipment. 71 FR 42192. For 
commercial prerinse spray valves, illuminated exit signs, traffic 
signal modules and pedestrian modules, and refrigerated bottled or 
canned beverage vending machines, DOE understands that each basic model 
is manufactured in relatively large quantities, similar to the 
quantities of consumer products covered by 10 CFR part 430. As a result 
of this understanding, DOE proposed to adopt the same sampling 
provisions that apply to consumer products under 10 CFR part 430 for 
use during enforcement testing of commercial equipment under 10 CFR 
part 431. Id. For automatic commercial ice makers, as well as 
commercial refrigerators, freezers, and refrigerator-freezers, DOE 
understands each basic model is manufactured in smaller quantities, 
similar to the quantities of commercial heating, air conditioning and 
water heating equipment covered by 10 CFR part 431. Therefore, DOE 
proposed to adopt the same sampling provisions for use during 
enforcement testing as those proposed in the April 2006 SNOPR for 
commercial equipment. Id.
    In comments filed in response to the July 2006 NOPR, ARI agreed 
with DOE that automatic commercial ice makers and commercial 
refrigerators, freezers, and refrigerator-freezers are manufactured in 
small quantities and therefore, should have the same certification and 
enforcement provisions as commercial HVAC and WH equipment. (EE-RM/TP-
05-500, ARI, No. 63 at p. 3) ARI requested that DOE review the comments 
it submitted to DOE in response to the publication of the April 2006 
SNOPR and apply them to automatic commercial ice makers and commercial 
refrigeration equipment. ARI argued that requiring commercial 
refrigeration equipment and automatic commercial ice makers to be 
subject to similar sampling procedures for certification and 
enforcement in 10 CFR part 430 would be unduly burdensome because of 
the small quantities of equipment that are manufactured. ARI urged DOE 
to abandon this concept for automatic commercial ice makers, commercial 
refrigeration equipment, and commercial HVAC and WH equipment. (EE-RM/
TP-05-500, ARI, No. 63 at p. 4)
    DOE recognizes that modeling its certification and enforcement 
provisions for commercial refrigeration equipment and automatic 
commercial ice makers on those provisions already established for 
consumer products has certain drawbacks. For example, consumer products 
are generally manufactured in greater quantities than commercial 
refrigeration equipment and automatic commercial ice makers. Because of 
the smaller population available for sampling, DOE has decided to adopt 
certification and enforcement provisions for commercial refrigeration 
equipment and automatic commercial ice makers with sampling procedures 
based on commercial HVAC and WH equipment. DOE is adopting some of 
these provisions from the December 1999 NOPR and some from the July 
2006 NOPR in response to commenters, like ARI and others listed above 
in section III.A, which this final rule applies to for these two types 
of equipment. 64 FR 69603-06 and 71 FR 42191-93.

D. Distribution Transformers

    Section 325(y) of EPCA, 42 U.S.C. 6295(y), establishes energy 
conservation standards for low-voltage dry-type distribution 
transformers that are manufactured on or after January 1, 2007. The 
July 2006 NOPR provided until January 1, 2008, before certification 
requirements for such transformers would become effective. 71 FR 42193-
95. Today's final rule modifies the proposed schedule and applies an 
effective date of 180 days after publication of notice announcing OMB 
approval of the information collection requirements for manufacturers 
of low-voltage, dry-type, liquid-immersed, and medium-voltage dry-type 
distribution transformers to comply with these certification 
requirements. This change is consistent

[[Page 661]]

with the requirements of other EPACT 2005 products and equipment 
covered under today's final rule.
    The certification requirements for distribution transformers have 
two elements: A compliance statement and a certification report. In the 
July 2006 NOPR, DOE proposed a single format and set of requirements 
for compliance statements for all covered commercial and industrial 
equipment (except electric motors), including distribution 
transformers. 71 FR 42193-95. The certification report for distribution 
transformers being adopted today is similar to that which currently 
exists for electric motors at 10 CFR 431.36(b) and appendix C to 
subpart B, due to the large number of distribution transformer basic 
models that each manufacturer typically produces.
    For distribution transformers in general, each time a design change 
is made to a core or winding, the energy consumption of the transformer 
can change, making that design a different basic model.\10\ Due to the 
way in which distribution transformers are specified and manufactured, 
customized transformer designs will virtually always be a different 
basic model. Customized designs are necessary to meet customer 
requirements and to accommodate price changes in the raw materials used 
in the production of a distribution transformer. Distribution 
transformer manufacturers could produce thousands of basic models each 
year, and DOE is concerned that applying the same certification and 
reporting requirements as found in 10 CFR Part 430 to them could place 
a significant burden on these manufacturers.
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    \10\ The design changes made to distribution transformers affect 
the amount and quality of the material used for the core or winding 
and have a direct impact on the basic model. As the amount 
increased, and the quality improved of the material that is used in 
the core or winding of the distribution transformer, the electrical 
resistance decreases and the system efficiency of the distribution 
transformer increases.
---------------------------------------------------------------------------

    In light of the heavy burdens manufacturers would face if a 
compliance certification process similar to the one used for consumer 
products were followed for distribution transformers, DOE proposed in 
the July 2006 NOPR that each distribution transformer manufacturer 
submit a certification report on the efficiency of the least efficient 
basic model within a certain kilovolt-ampere (kVA) group. 71 FR 42194. 
For low-voltage dry-type distribution transformers, kVA groups are 
defined as the combination of a kVA rating and number of phases for a 
transformer, as presented in the table of efficiency values in 10 CFR 
431.196, as amended by the October 2005 final rule. 70 FR 60417. For 
liquid-immersed distribution transformers, like low-voltage dry-type 
transformers, kVA groups are based on the insulation type (liquid-
immersed), kVA rating, and number of phases. For medium-voltage dry-
type distribution transformers, kVA groups are based on the insulation 
type (dry-type), kVA rating, number of phases (single or three), and 
the basic impulse insulation level (BIL) rating, such as 20-45 kV BIL, 
46-95 kV BIL, and greater than 96 kV BIL.
    In response to the compliance testing and certification 
requirements for dry-type distribution transformers addressed in the 
July 2006 NOPR, Federal Pacific Transformer (Federal Pacific) asserted 
that the definition of ``basic model'' in the distribution transformer 
final rule, at 71 FR 24972 (April 27, 2006), increased the number of 
basic models for testing to an ``unbearable amount,'' and that the 
number of basic models to be tested has ``broadened exponentially'' 
because of how the term ``basic model'' is defined. (EE-RM/TP-05-500, 
Federal Pacific, No. 70 at pp. 3 and 4) DOE is aware of this issue, and 
it is the basis for the rule being adopted today, which establishes kVA 
groupings (described above), the requirement that manufacturers 
maintain records on all basic models sold, and that only compliance 
reports on the least efficient basic model within a kVA grouping are 
required to be submitted to DOE. This approach is consistent with the 
approach DOE adopted for electric motors, another industry with a large 
diversity of basic models.
    In addition, Federal Pacific, GE Energy and the National Electrical 
Equipment Manufacturers Association (NEMA) commented on test procedures 
for distribution transformers which were outside the scope of this 
rulemaking. Federal Pacific questioned DOE's proposal to require 
reporting the least efficient basic model within a kVA group and sought 
clarification as to whether ``least efficient'' refers to the average 
efficiency of a newer, less efficient basic model within a kVA group or 
the highest individual unit within the group. (EE-RM/TP-05-500, Federal 
Pacific, No. 70 at p. 5) Federal Pacific proposed revisions to the 
draft rule language at 10 CFR 431.371(a)(6)(ii) and (b)(1), which 
affect sample size requirements and periodic reporting of compliance to 
DOE. (EE-RM/TP-05-500, Federal Pacific, No. 70 at p. 6).
    For distribution transformers, the test procedure rulemaking 
addressed sampling and other testing issues regarding representations 
and compliance with the energy conservation standards. See 10 CFR part 
431.197; 71 FR 24972 (April 27, 2006). Today's final rule is limited to 
reporting requirements, which include submitting the compliance 
statement and certification reports. While DOE appreciates Federal 
Pacific's comments, changes to incorporate kVA groupings or sampling 
sizes suggested by Federal Pacific is a test procedure issue. Test 
procedures for distribution transformers, including the applicable 
sampling plans for compliance testing, can be found in 10 CFR 431.197 
and were finalized in a final rule published in the Federal Register on 
April 27, 2006. 71 FR 24972.
    Similarly, GE Energy and NEMA both recommended that DOE adopt a 
linear interpolation method to determine the appropriate energy 
efficiency requirement for a unit with a kVA rating that does not 
appear in the tables. (EE-RM/TP-05-500, GE Energy, No. 145 at p. 1; EE-
RM/TP-05-500, NEMA, No. 174 at p. 4) DOE understands that efficiency 
levels can be scaled between any two kVA ratings, and that similar 
techniques are used by the Institute of Electrical and Electronics 
Engineers and the American National Standards Institute to derive 
requirements for unusual (i.e., non-standard) kVA ratings. This issue 
also falls outside the scope of this rulemaking as it deals with the 
application of the energy conservation standards for distribution 
transformers. This issue was dealt with in the October 12, 2007 final 
rule regarding test procedures for distribution transformers. In the 
October 12, 2007 final rule, DOE adopted the linear interpolation 
method proposed by GE Energy and NEMA. (72 FR 58217)

E. General Requirements

    Consumer products and commercial and industrial equipment covered 
under 10 CFR parts 430 and 431, respectively, are subject to a variety 
of regulatory provisions, including those involving Petitions for 
Waiver from a particular test procedure, imported and exported products 
and equipment, maintenance of records, subpoenas, confidentiality of 
information, and petitions to exempt a State regulation from 
preemption. Today's final rule applies these provisions to the consumer 
products and commercial and industrial equipment it covers. For 
consumer products, the provisions are in sections 430.27, 430.40 
through 430.57, 430.64, 430.65, 430.72, and 430.75 of 10 CFR part 430. 
For commercial equipment, the provisions are in sections 431.401, 
431.403 through 431.407, and 431.421 through 431.430.

[[Page 662]]

    In addition, our July 2006 NOPR proposed provisions for the 
preemption of State energy use and efficiency regulations for the 
consumer products and commercial or industrial equipment covered by 
EPACT 2005. The regulations implement EPACT 2005 amendments to EPCA 
that include various provisions concerning preemption with respect to 
these products and equipment. 42 U.S.C. 6295(ff)(7), 6295(ii), and 
6316(e).\11\ All of the provisions applicable to consumer products 
provide that, once Federal energy conservation standards take effect 
for a product, the preemption requirements of section 327 of EPCA (42 
U.S.C. 6297) become applicable to any State or local standard for that 
product. 42 U.S.C. 6295(ff) and (ii) (as amended by EPACT 2005) DOE's 
existing rules for covered consumer products set forth such a 
requirement, providing that any Federal standard that is in effect for 
``a covered product'' preempts any State standard for the product that 
is not identical to the Federal standard, except as otherwise provided 
in section 327 of EPCA. 10 CFR 430.33. Consistent with EPCA's 
preemption provisions, DOE proposed to apply the same requirements for 
consumer products to the commercial or industrial equipment. 71 FR 
42195.
---------------------------------------------------------------------------

    \11\ Since the enactment of EPACT 2005, Congress subsequently 
amended EPCA through the Energy Independence and Security Act of 
2007, Public Law 110-140 (Dec. 19, 2007). As a result of this 
legislative change, 42 U.S.C. 6295(gg) was redesignated as 42 U.S.C. 
6295(ii).
---------------------------------------------------------------------------

IV. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action is not a ``significant regulatory 
action'' under section 3(f)(1) of Executive Order 12866, ``Regulatory 
Planning and Review.'' 58 FR 51735 (October 4, 1993). Accordingly, 
today's action was not subject to review 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 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, and a final regulatory 
flexibility analysis for any such rule that an agency adopts as a final 
rule, unless the agency certifies that the rule, if promulgated, will 
not have a significant economic impact on a substantial number of small 
entities. A regulatory flexibility analysis examines the impact of the 
rule on small entities and considers alternative ways of reducing 
negative impacts. Also, 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 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.
    EPACT 1992 and EPACT 2005 amended EPCA to incorporate into DOE's 
energy conservation program certain consumer products and commercial 
and industrial equipment. Today, DOE establishes certification, 
compliance, and enforcement requirements for these products and types 
of commercial and industrial equipment, as described above and proposed 
in the December 1999 NOPR, April 2006 SNOPR, and July 2006 NOPR.
    DOE reviewed the certification, compliance, and enforcement 
provisions in today's final rule, for the products and equipment 
covered, under the provisions of the Regulatory Flexibility Act and the 
policies and procedures published on February 19, 2003. DOE estimates 
approximately 350 manufacturing firms could be potentially impacted by 
the certification, compliance, and enforcement provisions in today's 
final rule. DOE estimated the total number of manufacturing firms by 
using AHRI's Directory of Certified Product Performance, the ENERGY 
STAR databases of qualifying products, AHAM's Directory of Certified 
Products, and manufacturers' product literature. Of these 350 
manufacturing firms, DOE did not explicitly identify the number of 
small entities that could potentially be impacted by the provisions in 
today's final rule because DOE believes the burden will be small. DOE's 
estimates include both small and large businesses, and the actual 
number of small business is likely to be smaller. The provisions of 
this final rule, described below and in further detail elsewhere in the 
preamble, would apply to all of those small businesses.
    Today's final rule adopts procedures for manufacturers to certify 
compliance with the energy conservation standards in EPCA or set forth 
by DOE pursuant to EPCA, using applicable test procedures established 
by DOE. These procedures require manufacturers of covered consumer 
products and commercial equipment to submit information and reports for 
a variety of purposes, including ensuring compliance with requirements. 
These certification requirements, as well as the enforcement 
provisions, are new for manufacturers of consumer products and 
commercial equipment subject to today's final rule and will affect both 
small and large enterprises.
    The final rule has been drafted to minimize the certification, 
compliance and enforcement burden for manufacturers and relies heavily 
on current industry practice. For example, the statistical sampling 
procedures being adopted in today's final rule are based on procedures 
established for consumer appliance products at 10 CFR 430.24. 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. To minimize the 
testing burden further, manufacturers are permitted to use analytical 
procedures, such as computer simulation, to determine the efficiencies 
of their products. Manufacturers are also given the option of 
certifying their products to DOE independently or through trade 
associations, which can minimize costs by reporting on large numbers of 
individual products at one time. Finally, the certification forms and 
enforcement procedures are similar to those already required for 
consumer products, and several of the same manufacturers produce both 
consumer products and commercial equipment.
    The cost of establishing compliance will depend on the number of 
basic models a manufacturer produces. The cost of completing the 
certification report should be small once testing for each basic model 
has occurred pursuant to test procedures prescribed by DOE; the 
manufacturer must input the data required by, for consumer products, 10 
CFR 430.62 and, for commercial and industrial equipment, 10 CFR 
431.371(a)(6)(i) (or, in the case of distribution transformers, (ii)) 
into the report and provide it to DOE. Some of the information required 
by 10 CFR 430.62 and 431.371 is product-specific; manufacturers would 
be required to provide only that information that is generally 
applicable or specific to the products they manufacture. DOE estimated 
in previous rules that the testing, certification, compliance, and 
enforcement procedures would take the average firm 160 hours to 
complete. 71 FR 42197-98. DOE also believes that at least 90 percent of 
these burden hours can be attributed to complying with DOE's test 
procedures, which have

[[Page 663]]

already been established. DOE believes the resulting 10 percent (i.e., 
16 hours) would be the most that it would take the average firm to 
develop the necessary testing documentation, complete the certification 
and compliance reports, and then either mail or e-mail them to DOE; the 
costs of e-mail would be negligible and the costs of mailing would 
depend on the number of basic models manufactured but are not expected 
to be significant given prevailing postal rates.
    The maintenance of records and the compliance reporting 
requirements are also based largely on current industry practices for 
similar products and equipment under 10 CFR part 430 and 10 CFR part 
431. Moreover, for the products and equipment covered by this notice, 
manufacturers participating in the ENERGY STAR program already report 
the energy performance of their products to the Environmental 
Protection Agency (EPA), and many report such performance to industry 
trade associations such as ARI. DOE concludes that reporting this same 
information to DOE would not result in a significant impact. DOE also 
understands that, as a matter of sound business practice, manufacturers 
routinely maintain the types of records as to product and equipment 
testing that today's rule would require. For all of these reasons, DOE 
believes that the cost of complying with today's final rule will not be 
significant for small manufacturers of these products.
    DOE sought public comment in the December 1999 NOPR and the July 
2006 NOPR conclusion that the incremental costs of complying with the 
certification, compliance and enforcement requirements would not impose 
a significant impact on a substantial number of small businesses. DOE 
did not receive any comments on this conclusion; comments on the 
economic impacts of the proposed rules generally are discussed above 
and do not change this conclusion. Based on the foregoing factual 
basis, DOE certifies that today's final rule will not have a 
significant economic impact on substantial number of small entities. 
DOE will transmit the certification and supporting statement of factual 
basis to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    Adoption of today's final rule requires manufacturers of covered 
consumer products and commercial and industrial equipment to maintain 
records about how they determined the energy efficiency or energy 
consumption of their products. The final rule also requires 
manufacturers to submit a compliance statement indicating that all 
basic models currently produced, as well as any basic models produced 
in the future, comply (or will comply) with the applicable energy 
conservation standards using applicable test procedures,\14\ as well as 
certification reports that set forth the energy performance of the 
basic models it manufactures. 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 that model; the 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 efficiency standards and testing 
requirements for the consumer products and commercial and industrial 
equipment mandated by EPCA.
---------------------------------------------------------------------------

    \14\ The compliance statement must be submitted by each 
manufacturer subject to the energy conservation standards in 10 CFR 
parts 430 and 431. The compliance statement is signed by the company 
official submitting the statement (e.g., the point of contact for 
the company or 3rd party representative), certifying that the basic 
model is in compliance with the applicable energy or water 
conservation standards and does not need to be resubmitted unless 
the information on the compliance statement changes.
---------------------------------------------------------------------------

    The certification and recordkeeping requirements for consumer 
products in 10 CFR part 430 have previously been approved by OMB and 
assigned OMB control number 1910-1400. The certification and 
recordkeeping requirements being adopted in today's final rule for the 
commercial and industrial equipment in 10 CFR part 431 must be approved 
and assigned a control number by OMB. DOE submitted these proposed 
certification and recordkeeping requirements to OMB for review and 
approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and 
will publish notice of the approval, and the effective date of the 
information collection requirements, in a subsequent Federal Register 
notice.
    DOE initially developed burden estimates for the EPACT 2005 
commercial equipment in the July 2006 NOPR; given that the requirements 
in this final rule do not differ significantly from those proposed in 
the July 2006 NOPR, these burden estimates continue to remain accurate. 
71 FR 42197-198. In addition, DOE believes that these burden estimates 
would apply equally for manufacturers of the EPACT 1992 commercial 
equipment because the compliance requirements would be the same for 
these manufacturers. DOE also believes that at least 90 percent of 
these burden hours can be attributed to complying with DOE's test 
procedures, which have already been established through separate 
rulemakings. DOE believes the resulting 10 percent (i.e., 16 hours) 
would be the most that it would take the average firm to comply with 
the certification, compliance, and enforcement requirements in today's 
final rule. The following are the DOE estimates of the total annual 
reporting and recordkeeping burden imposed on manufacturers of 
commercial and industrial equipment by today's final rule to develop 
the necessary testing documentation, complete the certification and 
compliance reports, and then either mail or e-mail them to DOE.
     For unit heaters, the estimated number of covered 
manufacturing firms is 15. The total annual reporting and recordkeeping 
burden from compliance with the final rule is expected to be 240 hours 
per year (15 firms x 16 hours per firm).
     For automatic commercial ice makers, the estimated number 
of covered manufacturing firms is 10. The total annual reporting and 
recordkeeping burden from compliance with the final rule is expected to 
be 160 hours per year (10 firms x 16 hours per firm).
     For commercial prerinse spray valves, the estimated number 
of covered manufacturing firms is five. The total annual reporting and 
recordkeeping burden from compliance with the final rule is expected to 
be 80 hours per year (5 firms x 16 hours per firm).
     For illuminated exit signs, the estimated number of 
covered manufacturing firms is 49. The total annual reporting and 
recordkeeping burden from compliance with the final rule is expected to 
be 784 hours per year (49 firms x 16 hours per firm).
     For traffic signal modules and pedestrian modules, the 
estimated number of covered manufacturing firms is eight. The total 
annual reporting and recordkeeping burden from compliance with the 
final rule is expected to be 128 hours per year (8 firms x 16 hours per 
firm).
     For commercial refrigerators, freezers, and refrigerator-
freezers, the estimated number of covered manufacturing firms is 23. 
The total annual reporting and recordkeeping burden from compliance 
with the final rule is expected to be 368 hours per year (23 firms x 16 
hours per firm).
     For commercial boilers, the estimated number of covered

[[Page 664]]

manufacturing firms is 26. The total annual reporting and recordkeeping 
burden from compliance with the final rule is expected to be 416 hours 
per year (26 firms x 16 hours per firm).
     For commercial furnaces, the estimated number of covered 
manufacturing firms is 15. The total annual reporting and recordkeeping 
burden from compliance with the final rule is expected to be 240 hours 
per year (15 firms x 16 hours per firm).
     For packaged terminal equipment, the estimated number of 
covered manufacturing firms is 9. The total annual reporting and 
recordkeeping burden from compliance with the final rule is expected to 
be 144 hours per year (9 firms x 16 hours per firm).
     For commercial air conditioning and heating equipment, the 
estimated number of covered manufacturing firms is 30. The total annual 
reporting and recordkeeping burden from compliance with the final rule 
is expected to be 480 hours per year (30 firms x 16 hours per firm).
     For commercial water heating equipment, the estimated 
number of covered manufacturing firms is 14. The total annual reporting 
and recordkeeping burden from compliance with the final rule is 
expected to be 224 hours per year (14 firms x 16 hours per firm).
    In developing the burden estimates, DOE considered that the 
required compliance certification would contain the type of information 
that many manufacturers already submit to trade associations or 
government agencies, such as EPA under the ENERGY STAR program. Those 
manufacturers should be able to comply with the proposed certification 
without undue burden because they are already collecting and reporting 
data to other organizations. Moreover, DOE understands that 
manufacturers already maintain the types of records the proposed rule 
would require them to keep.
    In response to the burden hour estimates in the July 2006 proposed 
rule, DOE received several comments from various ceiling fan 
manufacturers. The manufacturers stated their concerns that the testing 
burden hour estimates were inadequate to accurately reflect the number 
of hours they would need to comply with the airflow efficiency test 
included in the July 2006 proposed rule. (EE-RM/TP-05-500, American 
Lighting Association, No. 14 at Part II at pp. 2 and 3, No. 18.8 at pp. 
63-65, and No. 97 at pp. 3-5.)
    At this time, the only requirement for ceiling fans are the design 
standards set forth in EPACT 2005 and codified in the October 2005 
final rule. Manufacturers of these products would simply have to 
certify compliance with the applicable design requirements. If DOE 
establishes energy conservation standards for ceiling fans by setting a 
minimum airflow efficiency rating in a separate rulemaking proceeding, 
then manufacturers would be subject to the other types of 
certification, compliance, and enforcement provisions, such as sampling 
procedures. Note that ceiling fans are a consumer product, the 
information collection requirements of which were approved by OMB under 
control number 1904-1400.
    DOE believes that the collection of information required by this 
final rule is the least burdensome method of meeting the statutory 
requirements and achieving the program objectives of the DOE compliance 
certification program for these products and equipment.
    Under the Paperwork Reduction Act, an agency may not conduct or 
sponsor a collection of information unless the collection displays a 
currently valid OMB control number (44 U.S.C. 3506(c)(1)(B)(iii)(V)). 
As stated in the EFFECTIVE DATE line of this notice of final 
rulemaking, the information collection requirements of today's final 
rule will be effective 180 days after the publication of a notice 
announcing OMB approval of the information collection requirements. DOE 
will provide notice of OMB approval and the OMB control number in a 
subsequent Federal Register notice.

D. Review Under the National Environmental Policy Act of 1969

    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.), the 
regulations of the Council on Environmental Quality (40 CFR parts 1500-
1508), and DOE's regulations for compliance with the National 
Environmental Policy Act (10 CFR Part 1021). Specifically, this rule 
establishing test procedures will not affect the quality or 
distribution of energy, nor will it result in any environmental 
impacts, and, therefore, is covered by the Categorical Exclusion at 
paragraph A6 to subpart D, 10 CFR part 1021. 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. 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 developing regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in developing such regulations. 65 FR 13735. DOE 
examined today's final rule and 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 subject of today's final 
rule. States can petition DOE for exemption from preemption to the 
extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No 
further action required by 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 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

[[Page 665]]

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

    DOE reviewed this regulatory action under Title II of the Unfunded 
Mandates Reform Act of 1995 (UMRA), Public Law 104-4, which requires 
each Federal agency to assess the effects of Federal regulatory actions 
on State, local, and Tribal governments and the private sector. Today's 
rule contains neither an intergovernmental mandate nor a mandate that 
may result in the expenditure by State, local, and Tribal governments, 
in the aggregate, or by the private sector of $100 million or more in 
any year, so these requirements under the UMRA do not apply.

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

    DOE determined that, for this rulemaking, it need not prepare a 
Family Policymaking Assessment under section 654 of the Treasury and 
General Government Appropriations Act, 1999 (Pub. L. 105-277). 71 FR 
42199. DOE received no comments concerning section 654 in response to 
the July 2006 proposed rule and therefore, is taking no further action 
in today's final rule with respect to this provision.

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 rule would not result in any 
takings that might require compensation under the Fifth Amendment to 
the United States Constitution. 71 FR 42199. DOE received no comments 
concerning Executive Order 12630 in response to the July 2006 proposed 
rule and, therefore, is taking no further action in today's final rule 
with respect to this Executive Order.

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 each 
agency establishes 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 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 the 
Office of Information and Regulatory Affairs of OMB a Statement of 
Energy Effects for any proposed significant energy action. DOE 
determined that the proposed rule was not a ``significant energy 
action'' within the meaning of Executive Order 13211. 71 FR 42199. In 
addition, the Administrator of OIRA did not designate this action as a 
significant energy action. Accordingly, DOE did not prepare a Statement 
of Energy Effects on the proposed rule. DOE received no comments on 
this issue in response to the July 2006 proposed rule. As with the 
proposed rule, DOE has concluded that today's final rule is not a 
significant energy action within the meaning of Executive Order 13211, 
and has not prepared a Statement of Energy Effects on the rule.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress a report 
regarding the issuance of today's final rule prior to the effective 
dates set forth at the outset of this notice. 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).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's final 
rule.

List of Subjects

10 CFR Part 430

    Administrative practice and procedure, Energy conservation test 
procedures, Household appliances.

10 CFR Part 431

    Administrative practice and procedure, Commercial products, Energy 
conservation test procedures.

    Issued in Washington, DC, on December 9, 2009.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.


0
For the reasons stated in the preamble, Chapter II, Subchapter D, of 
Title 10 of the Code of Federal Regulations is amended to read as set 
forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

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

0
2. Section 430.24 is amended by revising the introductory paragraph and 
by adding new paragraphs (w), (x), (y), (z), (aa), and (bb) to read as 
follows:


Sec.  430.24  Units to be tested.

    When testing of a covered product is required to comply with 
section 323(c) of the Act, or to comply with rules prescribed under 
sections 324 or 325 of the Act, a sample shall be selected and tested 
comprised of units, or be representative of production units of the 
basic model being tested, and shall meet the following applicable 
criteria. Components of similar design may be substituted without 
requiring additional testing if the represented measures of energy 
consumption, or, in the case of showerheads, faucets, water closets and 
urinals, water use, continue to satisfy the applicable sampling 
provision.
* * * * *
    (w) For each basic model of ceiling fan 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--
    (1) 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:
    (i) The mean of the sample, or
    (ii) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (2) 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:
    (i) The mean of the sample, or
    (ii) The lower 95 percent confidence limit of the true mean divided 
by 0.90.
    (x) For each basic model of ceiling fan light kit with sockets for 
medium screw

[[Page 666]]

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--
    (1) 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:
    (i) The mean of the sample, or
    (ii) The upper 97.5 percent confidence limit of the true mean 
divided by 1.05, and
    (2) Any represented value of the efficacy 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 97.5 percent confidence limit of the true mean 
divided by 0.95.
    (y) For each basic model of bare or covered (no reflector) medium 
base compact fluorescent lamp selected for testing, a sample of 
sufficient size shall be selected at random and tested to ensure that--
    (1) 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:
    (i) The mean of the sample, or
    (ii) The upper 97.5 percent confidence limit of the true mean 
divided by 1.05; and
    (2) Any represented value of the efficacy 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 97.5 percent confidence limit of the true mean 
divided by 0.95.
    (z) For each basic model of dehumidifier selected for testing, a 
sample of sufficient size shall be selected at random and tested to 
ensure that--
    (1) 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:
    (i) The mean of the sample, or
    (ii) The upper 95 percent confidence limit of the true mean divided 
by 1.10; 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 95 percent confidence limit of the true mean divided 
by 0.90.
    (aa) For each basic model of battery charger selected for testing, 
a sample of sufficient size shall be selected at random and tested to 
ensure that--
    (1) Any represented value of the estimated non-active energy ratio 
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 97.5 percent confidence limit of the true mean 
divided by 1.05; and
    (2) Any represented value of the estimated nonactive energy 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:
    (i) The mean of the sample, or
    (ii) The lower 97.5 percent confidence limit of the true mean 
divided by 0.95.
    (bb) 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--
    (1) 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:
    (i) The mean of the sample, or
    (ii) The upper 97.5 percent confidence limit of the true mean 
divided by 1.05; and
    (2) 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:
    (i) The mean of the sample, or
    (ii) The lower 97.5 percent confidence limit of the true mean 
divided by 0.95.

0
3. Section 430.62 is amended by adding new paragraphs (a)(4)(xviii), 
(a)(4)(xix), (a)(4)(xx), (a)(4)(xxi), and (a)(4)(xxii) to read as 
follows:


Sec.  430.62  Submission of data.

    (a) * * *
    (4) * * *
    (xviii) Ceiling fans, the model number.
    (xix) Ceiling fan light kits with sockets for medium screw base 
lamps or pin-based fluorescent lamps, the efficacy in lumens per watt. 
Ceiling fan light kits with sockets other than medium screw base lamps 
or pin-based fluorescent lamps, the model number.
    (xx) Medium base compact fluorescent lamps, the minimum initial 
efficacy in lumens per watt, the lumen maintenance at 1,000 hours in 
lumens, the lumen maintenance at 40 percent of rated life in lumens, 
the rapid cycle stress test, and the lamp life in hours.
    (xxi) Dehumidifiers, the energy factor in liters per kilowatt hour, 
and capacity in pints per day.
    (xxii) Torchieres, the model number.
* * * * *

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

0
4. The authority citation for part 431 continues to read as follows:

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

0
5. Section 431.2 is amended by adding, in alphabetical order, the 
definitions of ``Independent laboratory'' and ``Manufacturer's model 
number'' to read as follows:


Sec.  431.2  Definitions.

* * * * *
    Independent laboratory means a laboratory or test facility not 
controlled by, affiliated with, having financial ties with, or under 
common control with the manufacturer or distributor of the covered 
equipment being evaluated.
* * * * *
    Manufacturer's model number means the identifier used by a 
manufacturer to uniquely identify the group of identical or essentially 
identical commercial equipment to which a particular unit belongs. The 
manufacturer's model number typically appears on equipment nameplates, 
in equipment catalogs and in other product advertising literature.
* * * * *

0
6. Add a new Sec.  431.65 to subpart C of part 431 to read as follows:


Sec.  431.65  Units to be tested.

    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--
    (a) 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:
    (1) The mean of the sample, or
    (2) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (b) 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:
    (1) The mean of the sample, or
    (2) The lower 95 percent confidence limit of the true mean divided 
by 0.90.


(Components of similar design may be substituted without requiring 
additional

[[Page 667]]

testing if the represented measures of energy continue to satisfy the 
applicable sampling provision.)

0
7. Add a new Sec.  431.135 to subpart H of part 431 to read as follows:


Sec.  431.135  Units to be tested.

    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--
    (a) 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:
    (1) The mean of the sample, or
    (2) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (b) 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:
    (1) The mean of the sample, or
    (2) The lower 95 percent confidence limit of the true mean divided 
by 0.90.


(Components of similar design may be substituted without requiring 
additional testing if the represented measures of energy continue to 
satisfy the applicable sampling provision.)
0
8. Section 431.172 is amended by revising the introductory text, and 
adding the definition of ``Alternate efficiency determination method or 
AEDM'' in alphabetical order to read as follows:


Sec.  431.172  Definitions.

    The following definitions apply for purposes of subparts D through 
G, J through K and subpart T of this part. Other terms in these 
subparts shall be defined elsewhere in this Part and, if not defined in 
this part, shall have the meaning set forth in section 340 of the Act.
    Alternate efficiency determination method or AEDM means a method of 
calculating the efficiency of a commercial HVAC and WH product, in 
terms of the descriptor used in or under section 342(a) of the Act to 
state the energy conservation standard for that product.
* * * * *

0
9. Revise subpart J of part 431 to read as follows:

Subpart J--Provisions for Commercial Heating, Ventilating, Air-
Conditioning and Water Heating Products
Sec.
431.174 Additional requirements applicable to Voluntary Independent 
Certification Program participants.
431.175 Additional requirements applicable to non-Voluntary 
Independent Certification Program participants.
431.176 Voluntary Independent Certification Programs.

Subpart J--Provisions for Commercial Heating, Ventilating, Air-
Conditioning and Water Heating Products


Sec.  431.173  Requirements applicable to all manufacturers.

    (a) General. A manufacturer of a HVAC and WH product 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 
efficiency determination method (AEDM) to the basic model, in 
accordance with the requirements of this section. In instances where a 
manufacturer has tested that basic model to validate an AEDM, the 
efficiency of that basic model must be determined and rated according 
to results from actual testing. (For purposes of this subpart, the 
``efficiency'' of a commercial HVAC and WH product means the energy 
efficiency or energy use of that product, expressed in terms of the 
descriptor that referenced in section 342(a) of the Act to state the 
energy conservation standard for that product.)
    (b) Testing. If a manufacturer tests a basic model pursuant to this 
section to determine its efficiency, the manufacturer must:
    (1) Select at random the unit(s) to be tested, which must be 
representative of the basic model,
    (2) Perform the testing in accordance with the applicable 
Department of Energy test procedure,
    (3) Meet industry standards for the measurement accuracy of testing 
for the equipment being tested. This includes accuracy requirements in 
applicable test procedures, accuracy achieved by laboratory-grade 
equipment, and the accuracy of calibration standards, and
    (4) Meet the requirements of either Sec.  431.174(b) or Sec.  
431.175(a), whichever is applicable.
    (c) Alternative efficiency determination methods--(1) Criteria an 
AEDM must satisfy. You may not apply an AEDM to a basic model to 
determine its efficiency pursuant to this subpart 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) Subsequent verification of an AEDM. If you have used an AEDM 
pursuant to this subpart,
    (i) You must have available for inspection by the Department 
records showing:
    (A) The method or methods used;
    (B) The mathematical model, the engineering or statistical 
analysis, computer simulation or modeling, and other analytic 
evaluation of performance data on which the AEDM is based;
    (C) Complete test data, product information, and related 
information that you generated or acquired under paragraph (c)(1) of 
this section and Sec. Sec.  431.174(c) or 431.(b)(1), as applicable; 
and
    (D) The calculations used to determine the average efficiency and 
energy consumption of each basic model to which an AEDM was applied.
    (ii) If requested by the Department, you must 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;
    (B) Provide analyses of previous simulations conducted by you;
    (C) Conduct sample testing of basic models selected by the 
Department; or
    (D) Conduct a combination of these.
    (3) Limitation on use of an AEDM. A manufacturer may not knowingly 
use an AEDM to overrate the efficiency of a basic model.


Sec.  431.174  Additional requirements applicable to Voluntary 
Independent Certification Program participants.

    (a) Description of Voluntary Independent Certification Program 
participant. For purposes of this subpart, a manufacturer that 
participates in a Voluntary Independent Certification Program (VICP) 
approved by the Department for a commercial HVAC and WH product, as 
described in Sec.  431.176, and that complies with all requirements 
imposed by that program, is a ``VICP participant'' with respect to that 
product.
    (b) Testing. A VICP participant that tests a basic model pursuant 
to this subpart must use statistically valid and accurate methods to 
arrive at the efficiency rating of such basic model.
    (c) Alternative efficiency determination methods. Before using an

[[Page 668]]

AEDM to determine the efficiency of a basic model pursuant to this 
subpart, a VICP participant must apply the AEDM to one or more basic 
models that have been tested in accordance with Sec. Sec.  431.173(b) 
and 431.174(b) of this subpart, and the predicted efficiency calculated 
for each such basic model from application of the AEDM must be within 5 
percent of the efficiency determined from testing that basic model. In 
addition, the predicted efficiency(ies) calculated for the tested basic 
model(s) must on average be within one percent of the efficiency(ies) 
determined from testing such basic model(s).
    (d) Limitation on use of an Alternative Efficiency Determination 
Method. A manufacturer may not use an AEDM to overrate the efficiency 
of a basic model.


Sec.  431.175  Additional requirements applicable to non-Voluntary 
Independent Certification Program participants.

    If you are a manufacturer that is not a VICP participant with 
respect to a particular type of commercial HVAC and WH product, you 
must meet the following requirements as to that product.
    (a) Testing. You must perform any testing of a basic model pursuant 
to this subpart under the supervision of independent testing personnel, 
or have such testing performed at an independent laboratory. In 
addition, you must test a sufficient number of units of the basic 
model, and the efficiency rating of the basic model must be determined, 
such that,
    (1) Any represented value of energy efficiency is no greater than 
the lower of the mean of the sample, or the lower 95 percent confidence 
limit of the true mean divided by 0.95, and
    (2) Any represented value of energy usage is no less than the 
greater of the mean of the sample, or the upper 95 percent confidence 
limit of the true mean divided by 1.05.
    (b) Alternative efficiency determination methods. Before using an 
AEDM to determine the efficiency of a basic model pursuant to this 
subpart, you must first:
    (1) Apply the AEDM to three or more basic models that have been 
tested in accordance with Sec. Sec.  431.173(b) and 431.175(a) of this 
subpart. 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 predicted 
efficiencies calculated for the tested basic models must on average be 
within one percent of the efficiencies determined from testing such 
basic models; and
    (2) Obtain from the Department approval of the AEDM. The Department 
will provide such approval after receiving from you documentation which 
establishes that the AEDM satisfies the requirements of Sec. Sec.  
431.173(c)(1) and 431.175(b)(1) of this subpart.
    (3) Validation of an AEDM. To use an AEDM under this subpart, the 
manufacturer must validate it as follows:
    (i) 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.
    (ii) The manufacturer must test each of these basic models in 
accordance with Sec.  431.173(b) of this subpart, and either Sec. Sec.  
431.174(b) or 431.175(a), whichever is applicable.
    (iii) 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.
    (4) Limitation on use of an AEDM. A manufacturer may not use an 
AEDM to overrate the efficiency of a basic model.


Sec.  431.176  Voluntary Independent Certification Programs.

    (a) The Department will approve a Voluntary Independent 
Certification Program (VICP) for a commercial HVAC and WH product if 
the VICP meets all of the following criteria:
    (1) The program publishes its operating procedures in written form, 
and permits participation by all manufacturers of products covered by 
the program so long as they comply with the VICP's requirements 
concerning operation of the program.
    (2) The program requires each participant to report to the program 
the efficiency of each basic model that the participant manufactures 
and that is covered by the program. The participant must determine such 
efficiency based on measurement of the basic model's performance.
    (3) The program publishes the efficiency ratings received from each 
participant, or otherwise makes the ratings readily available to the 
general public and to the Department.
    (4) The program conducts periodic verification testing on listed 
equipment, by testing the efficiency of each basic model at least once 
every five years and comparing its rated efficiency to the test 
results.
    (5) An independent laboratory conducts the tests, or independent 
laboratory personnel supervise the tests.
    (6) For verification testing, the testing personnel select units 
randomly from the manufacturer's stock.
    (7) The program uses efficiency testing in accordance with the 
applicable Department test procedures.
    (8) The program's verification testing meets industry standards for 
the accuracy of testing and of rating results for the equipment being 
tested, and the program satisfactorily describes how it meets these 
standards.
    (9) The program has a standard for determining whether the 
efficiency rating a manufacturer claims for a product is valid.
    (10) The program requires that, if a basic model fails verification 
testing conducted by the VICP, the manufacturer of the basic model must 
remove it from production and sale if the verification testing results 
show it is not in compliance with EPCA efficiency standards, or 
correctly re-rate it if it complies with such standards. The program 
must also provide that a participating manufacturer will be expelled 
from the VICP if it does not comply with such requirements, and that 
the VICP will report to the Department certification test results that 
find the performance of a basic model not to meet EPCA efficiency 
standards. (A basic model ``fails'' verification testing when the VICP 
has compared the basic model's efficiency rating resulting from 
completion of that testing with the efficiency rating claimed by the 
manufacturer, and has determined that the rating claimed by the 
manufacturer is not valid.)
    (11) The program provides for penalties or other incentives to 
encourage manufacturers to report accurate and reliable efficiency 
ratings.
    (12) The program provides to the manufacturer copies of all records 
of completed verification testing performed on the manufacturer's 
equipment covered by the program.
    (13) The VICP makes available for DOE review, data on the results 
of its verification testing, including the following for each basic 
model on which the VICP has performed verification testing:
    (i) The measured efficiency from the verification testing,
    (ii) The manufacturer's efficiency rating, and
    (iii) Either the applicable energy conservation standard or a 
description

[[Page 669]]

of the model sufficient to enable the Department to determine such 
standard.
    (14) The program contains provisions under which each participating 
manufacturer can challenge ratings submitted by other manufacturers, 
which it believes to be in error.
    (b) If the organization operating an approved VICP makes any 
changes in its program, the organization must notify the Department of 
such changes within 30 days of their occurrence, and the Department may 
then rescind or continue its approval.

0
10. Add a new Sec.  431.205 to subpart L of part 431 to read as 
follows:


Sec.  431.205  Units to be tested.

    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--
    (a) 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:
    (1) The mean of the sample, or
    (2) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (b) 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:
    (1) The mean of the sample, or
    (2) The lower 95 percent confidence limit of the true mean divided 
by 0.90.


(Components of similar design may be substituted without requiring 
additional testing if the represented measures of energy continue to 
satisfy the applicable sampling provision.)

0
11. Add a new Sec.  431.225 to subpart M of part 431 to read as 
follows:


Sec.  431.225  Units to be tested.

    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--
    (a) 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:
    (1) The mean of the sample, or
    (2) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (b) 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:
    (1) The mean of the sample, or
    (2) The lower 95 percent confidence limit of the true mean divided 
by 0.90.


(Components of similar design may be substituted without requiring 
additional testing if the represented measures of energy continue to 
satisfy the applicable sampling provision.)

0
12. Add a new Sec.  431.265 to subpart O of part 431 to read as 
follows:


Sec.  431.265  Units to be tested.

    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-
    (a) 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:
    (1) The mean of the sample, or
    (2) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (b) 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:
    (1) The mean of the sample, or
    (2) The lower 95 percent confidence limit of the true mean divided 
by 0.90.


(Components of similar design may be substituted without requiring 
additional testing if the represented measures of energy continue to 
satisfy the applicable sampling provision.)

0
13. Add a new Sec.  431.295 to subpart Q of part 431 to read as 
follows:


Sec.  431.295  Units to be tested.

    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--
    (a) 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:
    (1) The mean of the sample, or
    (2) The upper 95 percent confidence limit of the true mean divided 
by 1.10; and
    (b) 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:
    (1) The mean of the sample, or
    (2) The lower 95 percent confidence limit of the true mean divided 
by 0.90.


(Components of similar design may be substituted without requiring 
additional testing if the represented measures of energy continue to 
satisfy the applicable sampling provision.)

0
14. Add a new subpart T to part 431 to read as follows:
Subpart T--Certification and Enforcement
Sec.
431.370 Purpose and scope.
431.371 Submission of data.
431.372 Sampling.
431.373 Enforcement.
Appendix A to Subpart T of Part 431--Compliance Statement for 
Certain Commercial Equipment
Appendix B to Subpart T of Part 431--Certification Report for 
Certain Commercial Equipment
Appendix C to Subpart T of Part 431--Certification Report for 
Distribution Transformers
Appendix D to Subpart T of Part 431--Enforcement for Performance 
Standards; Compliance Determination Procedure for Certain Commercial 
Equipment

Subpart T--Certification and Enforcement


Sec.  431.370  Purpose and scope.

    This subpart sets forth the procedures to be followed for 
manufacturer compliance certifications of all covered equipment except 
electric motors, and for the Department's enforcement action to 
determine whether a basic model of covered equipment, other than 
electric motors and distribution transformers, complies with the 
applicable energy or water conservation standard set forth in this 
part. Energy and water conservation standards include minimum levels of 
efficiency and maximum levels of consumption (also referred to as 
performance standards), and prescriptive design requirements (also 
referred to as design standards). This subpart does not apply to 
electric motors.


Sec.  431.371  Submission of data.

    (a) Certification. (1) Except as provided in paragraph (a)(2) of 
this section, each manufacturer or private labeler before distributing 
into the stream of commerce any basic model of covered equipment 
covered by this subpart and subject to an energy or water conservation 
standard set forth in this part, shall certify by means of a compliance 
statement and a certification report that each basic model meets the 
applicable energy or water conservation standard. Except as provided in 
paragraph (a)(2) of this section, each manufacturer or private labeler 
shall file

[[Page 670]]

a compliance statement and its first certification report with the 
Department on or before (180 days after the Department of Energy 
publishes a document in the Federal Register announcing OMB approval of 
the information collection requirements in Sec.  431.371). The 
compliance statement, signed by the company official submitting the 
statement, and the certification report(s) shall be sent by certified 
mail to: U.S. Department of Energy, Building Technologies Program, 
Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-
0121, or e-mailed to the Department at: 
[email protected].
    (2) Each manufacturer or private labeler of a basic model of 
commercial clothes washer, distribution transformer, traffic signal 
module, pedestrian module, and commercial prerinse spray valve shall 
file a compliance statement and its first certification report with the 
Department on or before (180 days after the Department of Energy 
publishes a document in the Federal Register announcing OMB approval of 
the information collection requirements in Sec.  431.371).
    (3) Amendment of information. If information in a compliance 
statement or certification report previously submitted to the 
Department under this section is found to be incorrect, each 
manufacturer or private labeler (or an authorized representative) must 
submit the corrected information to the Department at the address and 
in the manner described in this section.
    (4) Notices designating a change of third-party representative must 
be sent to the Department at the address and in the manner described in 
this section.
    (5) The compliance statement, which each manufacturer or private 
labeler need not submit more than once unless the information on the 
report changes, shall include all information specified in the format 
set forth in appendix A of this subpart and shall certify, with respect 
to each basic model currently produced by the manufacturer and new 
basic models it introduces in the future, that:
    (i) Each basic model complies and will comply with the applicable 
energy or water conservation standard;
    (ii) All representations as to efficiency in the manufacturer's 
certification report(s) are and will be based on testing and/or use of 
an AEDM in accordance with 10 CFR Part 431;
    (iii) All information reported in the certification report(s) is 
and will be true, accurate, and complete; and
    (iv) The manufacturer or private labeler 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.
    (6) Each manufacturer must submit to the Department a certification 
report for all of its basic models.
    (i) For covered equipment that are subject to standards other than 
distribution transformers and electric motors, the certification report 
(for which a suggested format is set forth in appendix B of this 
subpart) shall include for each basic model the product type, product 
class, manufacturer's name, private labeler's name(s) (if applicable), 
and the manufacturer's model number(s), and:
    (A) The thermal efficiency as a percentage and the maximum rated 
capacity (rated maximum input) in Btu/h of commercial warm air 
furnaces;
    (B) The combustion efficiency as a percentage and the capacity 
(rated maximum input) in Btu/h of commercial package boilers;
    (C) The seasonal energy efficiency ratio and the cooling capacity 
in Btu/h of small commercial, air cooled, three-phase, packaged air 
conditioners less than 65,000 Btu/h;
    (D) The energy efficiency ratio and the cooling capacity in Btu/h 
of small commercial water-cooled and evaporatively cooled packaged air 
conditioners less than 65,000 Btu/h;
    (E) The energy efficiency ratio and the cooling capacity in Btu/h 
of large and very large commercial air cooled, water-cooled, and 
evaporatively cooled packaged air conditioners;
    (F) The energy efficiency ratio and the cooling capacity in Btu/h 
of packaged terminal air conditioners;
    (G) The seasonal energy efficiency ratio, the heating seasonal 
performance factor and the cooling capacity in Btu/h of small 
commercial air cooled, three-phase packaged air conditioning heat pumps 
less than 65,000 Btu/h;
    (H) The energy efficiency ratio, the coefficient of performance and 
the cooling capacity in Btu/h of small commercial water-source packaged 
air conditioning heat pumps;
    (I) The energy efficiency ratio, the coefficient of performance and 
the cooling capacity in Btu/h of large and very large air cooled 
commercial package air conditioning heat pumps;
    (J) The energy efficiency ratio, coefficient of performance and the 
cooling capacity in Btu/h of packaged terminal heat pumps;
    (K) The maximum standby loss in percent per hour of electric 
storage water heaters;
    (L) The minimum thermal efficiency in percent, the maximum standby 
loss in Btu/h, and the size (input capacity) in Btu/h of gas- and oil-
fired storage water heaters;
    (M) The minimum thermal efficiency in percent, maximum standby loss 
in Btu/h, and the size (storage capacity) in gallons of gas- and oil-
fired instantaneous water heaters and gas- and oil-fired hot water 
supply boilers greater than or equal to 10 gallons;
    (N) The minimum thermal efficiency in percent and the size (storage 
capacity) in gallons of gas- and oil-fired instantaneous water heaters 
and gas- and oil-fired hot water supply boilers less than 10 gallons;
    (O) The minimum thermal insulation and the storage capacity of 
unfired hot water storage tanks;
    (P) The maximum daily energy consumption in kilowatt hours per day 
and volume in cubic feet of refrigerators with solid doors, 
refrigerators with transparent doors, freezers with solid doors, and 
freezers with transparent doors;
    (Q) The maximum daily energy consumption in kilowatt hours per day 
and adjusted volume in cubic feet of refrigerator-freezers with solid 
doors;
    (R) The equipment type, type of cooling, maximum energy use in 
kilowatt hours per 100 pounds of ice, maximum condenser water use in 
gallons per 100 pounds of ice, and harvest rate in pounds of ice per 24 
hours of commercial ice makers;
    (S) The modified energy factor and water consumption factor of 
commercial clothes washers;
    (T) The input power demand in watts of illuminated exit signs;
    (U) The nominal and maximum wattage in watts and signal type of 
traffic signal modules and pedestrian modules; and
    (V) The flow rate in gallons per minute of commercial prerinse 
spray valves.
    (ii) For the least efficient basic model of distribution 
transformer within each ``kilovolt ampere (kVA) grouping'' for which 
this part prescribes an efficiency standard, the certification report 
(for which a suggested format is set forth in appendix C of this 
subpart shall include 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), the basic impulse 
insulation level (BIL) group rating (for medium-voltage dry-types), the 
model number(s), the efficiency, and the method used to determine the 
efficiency (i.e., actual testing or an AEDM). As used in this section, 
a ``kVA grouping''

[[Page 671]]

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).
    (7) Copies of reports to the Federal Trade Commission that include 
the information specified in paragraph (a)(6) of this section could 
serve in lieu of the certification report.
    (b) Model Modifications. Any change to a basic model that affects 
energy or water consumption (in the case of prerinse spray valves) 
constitutes the addition of a new basic model. If such a change reduces 
consumption, the new model shall be considered in compliance with the 
standard without any additional testing. If, however, such a change 
increases consumption while meeting the standard, then
    (1) For distribution transformers, the manufacturer must submit all 
information required by paragraph (a)(6)(ii) 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, 
and that has a lower efficiency than the new basic model;
    (2) For other equipment, the manufacturer must submit all 
information required by paragraph (a)(6) of this section for the new 
basic model; and
    (3) Any such submission shall be by certified mail, to: Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, Forrestal Building, 1000 Independence Avenue, 
SW., Washington, DC 20585-0121, or e-mailed to the Department at: 
[email protected].
    (c) Discontinued model. For equipment other than distribution 
transformers, when production of a basic model has ceased and is no 
longer being distributed, the manufacturer shall report this, by 
certified mail, to: U.S. Department of Energy, Building Technologies 
Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 
20585-0121, or e-mailed to the Department at: 
[email protected]. For each basic model, the report shall 
include: equipment type, equipment class, the manufacturer's name, the 
private labeler's name(s), if applicable, and the manufacturer's model 
number. If the reporting of discontinued models coincides with the 
submittal of a certification report, such information can be included 
in the certification report.
    (d) Third-party representation. A manufacturer or private labeler 
may elect to use a third party (such as a trade association or other 
authorized representative) to submit the certification report to the 
Department. Such certification reports shall include all the 
information specified in paragraph (a)(6) of this section. Third 
parties submitting certification reports shall include the names of the 
manufacturers or private labelers who authorized the submittal of the 
certification reports to the Department on their behalf. The third-
party representative also may submit discontinued model information on 
behalf of an authorizing manufacturer.


Sec.  431.372  Sampling.

    For purposes of a certification of compliance, the determination 
that a basic model complies with the applicable energy conservation 
standard or water conservation standard shall be based upon the testing 
and sampling procedures, and other applicable rating procedures set 
forth in this part. For purposes of a certification of compliance, the 
determination that a basic model complies with the applicable design 
standard shall be based on the incorporation of specific design 
requirements specified in this part.


Sec.  431.373  Enforcement.

    For covered equipment other than electric motors, this section sets 
forth procedures the Department will follow in pursuing alleged non-
compliance with an applicable energy or water conservation standard. 
Paragraph (c) of this section applies to all such covered equipment, 
paragraphs (a)(1) and (a)(2) of this section apply to all such 
equipment except for distribution transformers and commercial heating, 
ventilating, and air conditioning equipment and commercial water 
heating equipment.
    (a) Performance standards--(1) Test notice. Upon receiving 
information in writing concerning the energy performance or water 
performance (in the case of commercial prerinse spray valves) of a 
particular covered equipment sold by a particular manufacturer or 
private labeler, which indicates that the covered equipment may not be 
in compliance with the applicable energy- or water-performance 
standard, the Secretary may conduct a review of the test records. The 
Secretary may then conduct enforcement testing of that equipment by 
means of a test notice addressed to the manufacturer or private labeler 
in accordance with the following requirements:
    (i) The test notice procedure will only be followed after the 
Secretary or his/her designated representative has examined the 
underlying test data (or, where appropriate, data about the use of an 
alternative efficiency determination method (AEDM)) provided by the 
manufacturer, and after the manufacturer has been offered the 
opportunity to meet with the Department to verify compliance with the 
applicable energy conservation standard or water conservation standard. 
When compliance of a basic model was certified based on an AEDM, the 
Department has the discretion to pursue other steps provided under this 
part for verifying the AEDM before invoking the test notice procedure. 
A representative designated by the Secretary must be permitted to 
observe any reverification procedures undertaken according to this 
subpart, and to inspect the results of such reverification.
    (ii) The test notice will be signed by the Secretary or his/her 
designee and will be mailed or delivered by the Department to the plant 
manager or other responsible official designated by the manufacturer.
    (iii) The test notice will specify the model or basic model to be 
selected for testing, the number of units to be tested, the method for 
selecting these units, the date and time at which testing is to begin, 
the date when testing is scheduled to be completed, and the facility at 
which testing will be conducted. The test notice may also provide for 
situations in which the selected basic model is unavailable for 
testing, and it may include alternative basic models. For equipment 
that this part allows to be rated by use of an AEDM, the specified 
basic model may be one that the manufacturer has rated by actual 
testing or that it has rated by the use of an AEDM.
    (iv) The Secretary may require in the test notice that the 
manufacturer of a covered equipment shall ship at his expense a 
reasonable number of units of each basic model specified in the 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 
20.
    (v) Within five working days of the time the units are selected, 
the manufacturer must ship the specified test units of a basic model to 
the designated testing laboratory.
    (2) Testing laboratory. Whenever the Department conducts 
enforcement

[[Page 672]]

testing at a designated laboratory in accordance with a test notice 
under this section, the resulting test data shall constitute official 
test data for that basic model. The Department will use such test data 
to make a determination of compliance or noncompliance.
    (3) Sampling. The Secretary will base the determination of whether 
a manufacturer's basic model complies with the applicable energy- or 
water-performance standard on testing conducted in accordance with the 
applicable test procedures specified in this part, and with the 
following statistical sampling procedures:
    (i) For commercial prerinse spray valves, illuminated exit signs, 
traffic signal modules and pedestrian modules, refrigerated bottled or 
canned vending machines, and commercial clothes washers, the methods 
are described in appendix B to subpart F of part 430 (Sampling Plan for 
Enforcement Testing).
    (ii) For automatic commercial ice makers, as well as commercial 
refrigerators, freezers, and refrigerators-freezers, the methods are 
described in appendix C to subpart T of part 431 and include the 
following provisions:
    (A) Except as required or provided in paragraphs (a)(3)(ii)(B) and 
(a)(3)(ii)(C) of this section, initially, the Department will test two 
units.
    (B) Except as provided in paragraph (a)(3)(ii)(C) of this section, 
if fewer than two units of basic model are available for testing when 
the manufacturer receives the test notice, then:
    (1) If only one unit of a basic model is available for testing, the 
Department will test that unit, and will base the compliance 
determination on the results for that unit in a manner otherwise in 
accordance with this section. Available units are those, which are 
available for commercial distribution within the United States.
    (2) If a basic model is very large or has unusual testing 
requirements, the Department may decide to base the determination of 
compliance on the testing of one unit, if the manufacturer so requests 
and provides sufficient justification for the request.
    (i) The available unit(s) and one or more of the other units that 
subsequently become available (up to a maximum of four); or
    (ii) Up to four of the other units that subsequently become 
available.
    (C) Notwithstanding paragraphs (a)(3)(ii)(A) and (a)(3)(ii)(B) of 
this section, if testing of the available or subsequently available 
units of a basic model would be impractical, as for example when a 
basic model is very large, 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 
available number of units, if the manufacturer so requests and 
demonstrates that the criteria of this paragraph are met.
    (iii) For commercial HVAC and WH products, the methods are 
described in appendix C to subpart T of part 431 and include the 
following provisions:
    (A) Except as required or provided in paragraphs (a)(3)(iii)(B) and 
(a)(3)(iii)(C) of this section, initially, the Department will test two 
units.
    (B) Except as provided in paragraph (a)(3)(iii)(C) of this section, 
if fewer than two units of basic model are available for testing when 
the manufacturer receives the test notice, then:
    (1) The Department will test the available unit(s); or
    (2) If one or more other units of the basic model are expected to 
become available within six months, the Department may instead at its 
discretion, test either:
    (i) The available unit(s) and one or more of the other units that 
subsequently become available (up to a maximum of four); or
    (ii) Up to four of the other units that subsequently become 
available.
    (C) Notwithstanding paragraphs (a)(3)(iii)(A) and (a)(3)(iii)(B) of 
this section, if testing of the available or subsequently available 
units of a basic model would be impractical, as for example when a 
basic model is very large, 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 
available number of units, if the manufacturer so requests and 
demonstrates that the criteria of this paragraph are met.
    (iv) For the purposes of paragraphs (a)(3)(ii)(A) through 
(a)(3)(ii)(C) and (a)(3)(iii)(A) through (a)(3)(iii)(C) of this 
section, when it tests three or fewer units, the Department will base 
the compliance determination on the results of such testing in a manner 
otherwise in accordance with this section.
    (v) For the purposes of paragraphs (a)(3)(ii)(A) through 
(a)(3)(ii)(C) and (a)(3)(iii)(A) through (a)(3)(iii)(C) of this 
section, available units are those that are available for commercial 
distribution within the United States.
    (4) Test unit selection. (i) For commercial prerinse spray valves, 
illuminated exit signs, traffic signal modules and pedestrian modules, 
refrigerated bottled or canned vending machines, and commercial clothes 
washers, the following applies:
    (A) The Department shall select a batch, a batch sample, and test 
units from the batch sample in accordance with the following provisions 
of this paragraph and the conditions specified in the test notice.
    (B) The batch may be subdivided by the Department using criteria 
specified in the test notice.
    (C) The Department will then randomly select a batch sample of up 
to 20 units from one or more subdivided groups within the batch. The 
manufacturer shall keep on hand all units in the batch sample until the 
basic model is determined to be in compliance or non-compliance.
    (D) The Department will randomly select individual test units 
comprising the test sample from the batch sample.
    (E) All random selection shall be achieved by sequentially 
numbering all of the units in a batch sample and then using a table of 
random numbers to select the units to be tested.
    (ii) For automatic commercial ice makers, as well as commercial 
refrigerators, freezers, and refrigerator-freezers, the following 
applies:
    (A) The Department will select a batch from all available units, 
and a test sample (i.e., the units to be tested) from the batch, in 
accordance with the provisions of this paragraph and the conditions 
specified in the test notice.
    (B) The Department may select the batch by utilizing the criteria 
specified in the test notice (date of manufacture, component-supplier, 
location of manufacturing facility, or other criteria) which may 
differentiate one unit from another within a basic model.
    (C) The Department will randomly select individual units to be 
tested, comprising the test sample, from the batch. The Department will 
achieve random selection by sequentially numbering all of the units in 
a batch and then using a table of random numbers to select the units to 
be tested. The manufacturer must keep on hand all units in the batch 
until such time as the inspector determines that the unit(s) selected 
for testing is (are) operative. Thereafter, once a manufacturer 
distributes or otherwise disposes of any unit in the batch, it may no 
longer claim under paragraph (a)(5)(iii) of this section that a unit 
selected for testing is defective due to a manufacturing defect or 
failure to operate in accordance with its design and operating 
instructions.
    (5) Test unit preparation. (i) Before and during the testing, a 
test unit selected in accordance with paragraph (a)(4) of this section 
shall not be prepared, modified, or adjusted in any manner unless such 
preparation, modification, or adjustment is allowed

[[Page 673]]

by the applicable Department test procedure. The Department will test 
each unit in accordance with the applicable test procedures.
    (ii) No one may perform any quality control, testing, or assembly 
procedures on a test unit, or any parts and subassemblies thereof, that 
is not performed during the production and assembly of all other units 
included in the basic model.
    (iii) A test unit shall be considered defective if it is 
inoperative. A test unit is also defective if it is found to be in 
noncompliance due to a manufacturing defect or due to failure of the 
unit to operate according to the manufacturer's design and operating 
instructions, and the manufacturer demonstrates by statistically valid 
means that, with respect to such defect or failure, the unit is not 
representative of the population of production units from which it is 
obtained. Defective units, including those damaged due to shipping or 
handling, must be reported immediately to the Department. The 
Department will authorize testing of an additional unit on a case-by-
case basis.
    (6) Testing at manufacturer's option. (i) If the Department 
determines a basic model to be in noncompliance with the applicable 
energy performance standard or water performance standard at the 
conclusion of its initial enforcement sampling plan testing, the 
manufacturer may request that the Department conduct additional testing 
of the basic model. Additional testing under this paragraph must be in 
accordance with the applicable test procedure, and:
    (A) For commercial prerinse spray valves, illuminated exit signs, 
traffic signal modules and pedestrian modules, refrigerated bottled or 
canned vending machines, and commercial clothes washers, the applicable 
provisions in appendix B to subpart F of part 430;
    (B) For automatic commercial ice makers, as well as commercial 
refrigerators, freezers, and refrigerator-freezers, the applicable 
provisions in appendix C of this subpart, and limited to a maximum of 
six additional units of basic model.
    (ii) All units tested under this paragraph shall be selected and 
tested in accordance with paragraphs (a)(1)(v), (a)(2), (a)(4), and 
(a)(5) of this section.
    (iii) The manufacturer shall bear the cost of all testing under 
this paragraph.
    (iv) The Department will advise the manufacturer of the method for 
selecting the additional units for testing, the date and time at which 
testing is to begin, the date by which testing is scheduled to be 
completed, and the facility at which the testing will occur.
    (v) The manufacturer shall cease distribution of the basic model 
tested under the provisions of this paragraph from the time the 
manufacturer elects to exercise the option provided in this paragraph 
until the basic model is determined to be in compliance. The Department 
may seek civil penalties for all units distributed during such period.
    (vi) If the additional testing results in a determination of 
compliance, the Department will issue a notice of allowance to resume 
distribution.
    (b) Design standard. In the case of a design standard, the 
Department can determine that a model is noncompliant after the 
Department has examined the underlying design information from the 
manufacturer and has offered the manufacturer the opportunity to verify 
compliance with the applicable design standard.
    (c) Cessation of distribution of a basic model of commercial 
equipment other than electric motors. (1) In the event the Department 
determines, in accordance with enforcement provisions set forth in this 
subpart, a model of covered equipment is noncompliant, or if a 
manufacturer or private labeler determines one of its models to be in 
noncompliance, the manufacturer or private labeler shall:
    (i) Immediately cease distribution in commerce of all units of the 
basic model in question;
    (ii) 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; and
    (iii) If requested by the Secretary, provide the Department 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.
    (2) The manufacturer may modify the noncompliant basic model in 
such manner as to make it comply with the applicable performance 
standard. The manufacturer or private labeler must treat such a 
modified basic model as a new basic model and certify it in accordance 
with the provisions of this subpart. In addition to satisfying all 
requirements of this subpart, the manufacturer must also maintain 
records that demonstrate that modifications have been made to all units 
of the new basic model before its distribution in commerce.
    (3) If a manufacturer or private labeler has a basic model that 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 the basic model.

Appendix A to Subpart T of Part 431--Compliance Statement for Certain 
Commercial Equipment

Equipment Type:
-----------------------------------------------------------------------
Manufacturer's or Private Labeler's Name and Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------

    [Company name] (``the company'') submits this Compliance 
Statement under 10 CFR Part 431 (Energy Efficiency Program for 
Certain Commercial and Industrial Equipment) and Part C of the 
Energy Policy and Conservation Act (Pub. L. 94-163), and amendments 
thereto. I am signing this on behalf of and as a responsible 
official of the company. All basic models of commercial or 
industrial equipment subject to energy conservation standards 
specified in 10 CFR part 431 that this company manufacturers comply 
with the applicable energy or water conservation standard(s). We 
have complied with the applicable testing requirements (prescribed 
in 10 CFR part 431) in making this determination, and in determining 
the energy efficiency, energy use, or water use that is set forth in 
any accompanying Certification Report. All information in such 
Certification Report(s) and in this Compliance Statement is true, 
accurate, and complete. The company pledges that all this 
information in any future Compliance Statement(s) and Certification 
Report(s) will meet these standards, and that the company will 
comply with the energy conservation requirements in 10 CFR part 431 
with regard to any new basic model it distributes in the future. The 
company is aware of the penalties associated with violations of the 
Act and the regulations there under, and is also aware of the 
provisions contained in 18 U.S.C. 1001, which prohibits knowingly 
making false statements to the Federal Government.

Name of Company Official:----------------------------------------------
Signature of Company Official:
-----------------------------------------------------------------------
Title:-----------------------------------------------------------------
Firm or Organization:--------------------------------------------------
Date:------------------------------------------------------------------
Name of Person to Contact for Further Information:---------------------
Address:---------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------

Third-Party Representation (if applicable)

    For a certification report prepared and submitted by a third-
party organization under the provisions of 10 CFR part 431, the 
company official who authorized said third-party representation is:

Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
Address:---------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------


[[Page 674]]

-----------------------------------------------------------------------
The third-party organization authorized to act as representative:
Third-Party Organization:----------------------------------------------
Address:---------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------

    The Compliance Statement needs to be resubmitted if information 
on the form changes.

Appendix B to Subpart T of Part 431--Certification Report for Certain 
Commercial Equipment

    All information reported in this Certification Report(s) is 
true, accurate, and complete. The company is aware of the penalties 
associated with violations of the Act, the regulations hereunder, 
and is also aware of the provisions contained in 18 U.S.C. 1001, 
which prohibits knowingly making false statements to the Federal 
Government.

Name of Company Official or Third-Party Representative:----------------
Signature of Company Official or Third-Party Representative:
-----------------------------------------------------------------------
Title:-----------------------------------------------------------------
Date:------------------------------------------------------------------
Equipment Type:--------------------------------------------------------
Manufacturer:----------------------------------------------------------
Private Labeler (if applicable):---------------------------------------
Name of Person to Contact for Further Information:---------------------
Address:---------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------
For Existing, New, or Modified Models: \1\
---------------------------------------------------------------------------

    \1\ Provide specific equipment information for each basic model 
required in 431.371(a)(6)(i), including the product class and 
manufacturer's model number(s).
---------------------------------------------------------------------------

For Discontinued Models: \2\
---------------------------------------------------------------------------

    \2\ Provide manufacturer's model number(s).

    Submit by Certified Mail to: U.S. Department of Energy, Office 
of Energy Efficiency and Renewable Energy, Building Technologies 
Program, Mailstop EE-2J, Forrestal Building, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121.
    Submit by E-mail to: [email protected].

Appendix C to Subpart T of Part 431--Certification Report for 
Distribution Transformers

    All information reported in this Certification Report(s) is 
true, accurate, and complete. The company is aware of the penalties 
associated with violations of the Act, the regulations thereunder, 
and is also aware of the provisions contained in 18 U.S.C. 1001, 
which prohibits knowingly making false statements to the Federal 
Government.

Name of Company Official or Third-Party Representative:----------------
Signature of Company Official or Third-Party Representative:-----------
-----------------------------------------------------------------------
Title:-----------------------------------------------------------------
Date:------------------------------------------------------------------
Equipment Type:--------------------------------------------------------
Manufacturer:----------------------------------------------------------
Private Labeler (if applicable):---------------------------------------
Name of Person to Contact for Further Information:---------------------
Address:---------------------------------------------------------------
-----------------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------

    For Existing, New, or Modified Models: \1\

    Prepare tables that will list distribution transformer 
efficiencies. Each table should have a heading that provides the 
name of the manufacturer, as well as the type of transformer (i.e., 
low-voltage dry-type, liquid-immersed, or medium-voltage dry-type) 
and the number of phases for the transformers reported in that 
table. Each table should also have five columns, labeled ``kVA 
rating,'' ``BIL rating'' for medium-voltage units, ``Least efficient 
basic model (model number(s)),'' ``Efficiency (%)'' and ``Test 
Method Used.'' Each table should have one row for each of the kVA 
groups that are produced by the manufacturer and that are subject to 
minimum efficiency standards. In the ``Test Method Used'' column, 
the manufacturer should report whether the efficiency of the 
reported least efficient basic model in that kVA grouping was 
determined by testing or through the application of an alternative 
efficiency determination method.
    Submit by Certified Mail to: U.S. Department of Energy, Office 
of Energy Efficiency and Renewable Energy, Building Technologies 
Program, Mailstop EE-2J), Forrestal Building, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121.
    Submit by E-mail to: [email protected].

Appendix D to Subpart T of Part 431--Enforcement for Performance 
Standards; Compliance Determination Procedure for Certain Commercial 
Equipment

    The Department will determine compliance as follows:
    (a) The first sample size (n1) must be four or more 
units, except as provided by Sec.  431.373(a)(3).
    (b) Compute the mean of the measured energy performance 
(x1) for all tests as follows:
[GRAPHIC] [TIFF OMITTED] TR05JA10.005

where xi is the measured energy efficiency or consumption 
from test i, and n1 is the total number of tests.
    (c) Compute the standard deviation (s1) of the 
measured energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TR05JA10.006

    (d) Compute the standard error (sx1) of the measured 
energy performance from the n1 tests as follows:
[GRAPHIC] [TIFF OMITTED] TR05JA10.007

    (e)(1) For an energy efficiency standard, compute the lower 
control limit (LCL1) according to:
[GRAPHIC] [TIFF OMITTED] TR05JA10.008

or
[GRAPHIC] [TIFF OMITTED] TR05JA10.009

    (2) For an energy use standard, compute the upper control limit 
(UCL1) according to:
[GRAPHIC] [TIFF OMITTED] TR05JA10.010

or
[GRAPHIC] [TIFF OMITTED] TR05JA10.011

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 n1.
    (f)(1) Compare the sample mean to the control limit. The basic 
model is in compliance and testing is at an end if, for an energy 
efficiency standard, the sample mean is equal to or greater than the 
lower control limit or, for an energy consumption standard, the 
sample mean is equal to or less than the upper control limit. If, 
for an energy efficiency standard, the sample mean is less than the 
lower control limit or, for an energy

[[Page 675]]

consumption standard, the sample mean is greater than the upper 
control limit, compliance has not been demonstrated. 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.
    (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.

0
15. Section 431.403 is amended by removing the word ``and'' at the end 
of paragraph (a)(2); removing the period at the end of paragraph (a)(3) 
and adding a semicolon in its place; and adding new paragraphs (a)(4) 
and (a)(5) to read as follows:


Sec.  431.403  Maintenance of records.

    (a) * * *
    (4) For commercial HVAC and WH products, the test data for all 
testing conducted pursuant to 10 CFR part 431, including any testing 
conducted by a VICP; and
    (5) For commercial HVAC and WH products, the development, 
substantiation, application, and subsequent verification of any AEDM.
* * * * *
0
16. Section 431.408 is added to subpart V to read as follows:


Sec.  431.408  Preemption of State regulations for covered equipment 
other than electric motors and commercial heating, ventilating, air-
conditioning and water heating products.

    This section concerns State regulations providing for any energy 
conservation standard, or water conservation standard (in the case of 
commercial prerinse spray valves or commercial clothes washers), or 
other requirement with respect to the energy efficiency, energy use, or 
water use (in the case of commercial prerinse spray valves or 
commercial clothes washers), for any covered equipment other than an 
electric motor or commercial HVAC and WH product. Any such regulation 
that contains a standard or requirement that is not identical to a 
Federal standard in effect under this subpart is preempted by that 
standard, except as provided for in sections 327(b) and (c) and 345(e), 
(f) and (g) of the Act.

[FR Doc. E9-30887 Filed 1-4-10; 8:45 am]
BILLING CODE 6450-01-P