[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Proposed Rules]
[Pages 53691-53707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16690]
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DEPARTMENT OF ENERGY
10 CFR Parts 429 and 431
[EERE-2019-BT-CE-0015]
RIN 1904-AE34
Enforcement for Consumer Products and Commercial and Industrial
Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'')
proposes to revise its existing enforcement regulations for certain
consumer products and commercial and industrial equipment covered under
the Energy Policy and Conservation Act of 1975, as amended (EPCA or the
``Act''). The proposal, if adopted, would provide the regulated
industry with further clarity and transparency about DOE's enforcement
process, including enforcement sampling procedures and test notice
requirements. The proposal provides for a process to petition DOE for
reexamination of a pending determination of noncompliance, and for DOE
to have the discretion to consider third-party certification program
testing as official enforcement test data. Ultimately, the proposal
will further align DOE's regulations with its statutory authority,
foster communication between DOE and the regulated industry, and
promote the effective and systematic enforcement of DOE's regulations.
DATES: DOE will accept comments, data, and information regarding this
notice of proposed rulemaking (NOPR) no later than October 30, 2020.
See section V, ``Public Participation,'' for details.
ADDRESSES: You may submit comments using any of the below methods.
(1) Federal eRulemaking Portal: https://www.regulations.gov. Follow
the instructions for submitting comments.
(2) Email: [email protected]. Include the docket
number and/or RIN in the subject line of the message.
(3) Postal Mail: Office of the Assistant General Counsel for
Enforcement, U.S. Department of Energy, Mailstop GC-32, 1000
Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202)
287-5997. If possible, please submit all items on a compact disc (CD),
in which case it is not necessary to include printed copies.
(4) Hand Delivery/Courier: Office of the Assistant General Counsel
for Enforcement, U.S. Department of Energy, Mailstop GC-32, 1000
Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202)
287-5997. If possible, please submit all items on a CD, in which case
it is not necessary to include printed copies.
Instructions: In any comment, include the words ``Enforcement
NOPR'' and provide docket number EERE-2019-BT-CE-0015 and/or regulatory
information number (RIN) number RIN 1904-AE34. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see section V of this document (Public
Participation).
Docket: The docket, which includes Federal Register notices, public
meeting attendee lists and transcripts, comments, and other supporting
documents/materials, is available for review at https://www.regulations.gov. All documents in the docket are listed in the
https://www.regulations.gov index. However, some documents listed in
the index, such as those containing information that is exempt from
public disclosure, may not be publicly available.
The docket web page can be found at https://www.regulations.gov/docket?D=EERE-2019-BT-CE-0015. The docket web page will contain simple
instructions on how to access all documents, including public comments,
in the docket. See section V for information on how to submit comments
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Smitha Vemuri, U.S. Department of
Energy, Office of the General Counsel, GC-32, 1000 Independence Avenue
SW, Washington, DC 20585-0121. Telephone: (202) 586-3421. Email:
[email protected].
For further information on how to submit a comment, review other
public comments and the docket, contact the Appliance and Equipment
Standards Program staff at (202) 287-1445 or by email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority and Background
II. Summary of the Proposal
III. Discussion of Revisions
A. Enforcement for Electric Motors and Small Electric Motors
B. Prohibited Acts
C. Design Standards
D. DOE Investigation and Basis of Noncompliance
E. Third-Party Certification Program Testing
F. Test Notice
G. Basic Model Compliance
H. Notification of Obligations
I. Petitions for Reexamination
J. Notice of Allowance
K. Injunctions
L. Response to a Notice of Proposed Civil Penalty in Writing
M. Settlement
N. Administrative Law Judge Hearing and Appeal
O. Immediate Issuance of Order Assessing Civil Penalty
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under Executive Order 13771 and 13777
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act of 1995
E. Review Under the National Environmental Policy Act
[[Page 53692]]
F. Review Under Executive Order 13132
G. Review Under Executive Order 12988
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under the Treasury and General Government
Appropriations Act, 1999
J. Review Under Executive Order 12630
K. Review Under Treasury and General Government Appropriations
Act, 2001
L. Review Under Executive Order 13211
M. Review Under Section 32 of the Federal Energy Administration
Act of 1974
N. Description of Materials Incorporated by Reference
V. Public Participation
A. Submission of Comments
B. Requests for Comment
VI. Approval of the Office of the Secretary
I. Authority and Background
Title III of the Energy Policy and Conservation Act of 1975, as
amended (``EPCA'' or, in context, ``the Act''') \1\ sets forth a
variety of provisions designed to improve energy efficiency. Part A of
Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation
Program for Consumer Products Other Than Automobiles. The National
Energy Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA
to add Part A-1 of Title III, which established an energy conservation
program for certain industrial equipment. (42 U.S.C. 6311-6317) Under
the Act, the regulatory program consists essentially of four parts: (1)
Testing, (2) labeling, (3) Federal energy conservation standards, which
include performance and design standards, and (4) certification and
enforcement procedures. Provisions of the Act include definitions (42
U.S.C. 6291, 6311), energy efficiency standards (42 U.S.C. 6295, 6313),
test procedures (42 U.S.C. 6293, 6314), labeling provisions (42 U.S.C.
6294, 6315), and the authority to require information and reports from
manufacturers, as well as enforcement authority (42 U.S.C. 6296, 6316).
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\1\ All references to EPCA refer to the statute as amended
through the Energy Efficiency Improvement Act of 2015, Public Law
114-11 (April 30, 2015), the Power and Security Systems (PASS) Act,
Public Law 115-78 (November 2, 2017), and the Ceiling Fan Energy
Conservation Harmonization Act, Public Law 115-161 (April 3, 2018).
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The Federal Trade Commission (FTC) is primarily responsible for
labeling consumer products, and DOE implements the remainder of the
program. The testing requirements consist of test procedures prescribed
under the authority of EPCA, which are used to aid in the development
of standards for covered products or covered equipment, to make
representations about equipment efficiency, and to determine whether
covered products or covered equipment comply with standards promulgated
under EPCA.
Sections 6298-6305, and 6316 of EPCA authorize DOE to enforce
compliance with the energy conservation standards established for
covered products and covered equipment. To ensure that all covered
products and covered equipment distributed in the United States comply
with DOE's conservation standards and certification requirements, DOE
promulgated enforcement regulations in 10 CFR part 429. On September
16, 2010, the Department published in the Federal Register a notice of
proposed rulemaking regarding Certification, Compliance, and
Enforcement for Consumer Products and Commercial and Industrial
Equipment (September 2010 NOPR). 75 FR 56796. The September 2010 NOPR
proposed to revise, consolidate and streamline the Department's
existing certification, compliance, and enforcement regulations for
certain consumer products and commercial and industrial equipment
covered under EPCA. On March 7, 2011, DOE published in the Federal
Register a final rule on the matter that revised the Department's
regulations to, amongst other things, allow the Department to enforce
applicable conservation standards in a proactive and fair manner based
on the circumstances of each case (March 2011 Final Rule). 76 FR 12422.
Some issues addressed by the rule included DOE-witnessed testing; the
selection of units for enforcement testing from retail, distribution,
or manufacturer sources, depending on the circumstances, to ensure
enforcement test results that are as unbiased, accurate, and
representative as possible; and alternative approaches to enforcement
testing in certain circumstances, such as when the requested model is
low-volume. DOE subsequently published two correction notices in May
2011 and August 2011. 76 FR 24762; 76 FR 46202.
Separate from other covered products and equipment, the enforcement
provisions for electric motors are currently located at 10 CFR part
431, subpart U. On June 24, 2016, DOE published a notice of proposed
rulemaking proposing a variety of changes to the current compliance,
certification, and enforcement regulations for electric motors and
small electric motors. (June 2016 NOPR) 81 FR 41378. No final rule was
promulgated in that rulemaking, and this proposal does not address each
of the previously proposed changes. Instead, in this rulemaking, DOE is
only proposing to apply the enforcement procedures found at subpart C
of part 429 to electric motors and small electric motors.
II. Summary of the Proposal
DOE remains committed to establishing a systematic and fair
approach to enforcement that will allow the Department to enforce
standards and certification requirements effectively and ensure a level
playing field in the marketplace without unduly burdening regulated
entities. In this document, based on experience and a greater
understanding of the challenges faced in the enforcement process by
both DOE and the regulated industry, DOE proposes to again revise its
enforcement regulations to ensure they convey a clear and comprehensive
enforcement process. The document proposes revisions to existing
enforcement procedures applicable to both covered products and covered
equipment. Revising the current enforcement procedures will afford
further certainty and clarity to the regulated industry, facilitate
communication between DOE and the regulated industry, and advance the
effective enforcement of DOE's regulations. In addition to minor edits
throughout the regulation for clarity and readability, DOE's proposal
is summarized below.
To provide additional process in instances where DOE is planning to
make a finding of noncompliance, DOE proposes to provide manufacturers
and private labelers with a letter of intent stating DOE's intent to
issue a notice of noncompliance determination for a basic model. DOE
also proposes a petition process to ask DOE (within 30 days after
issuance of a letter of intent) to reexamine the pending determination.
To reduce manufacturer burden, DOE proposes to no longer require
within its regulations that manufacturers inform customers of DOE's
determination of noncompliance. Further, to ensure clarity and
consistency regarding how to attain a notice of allowance to distribute
a redesigned or modified basic model after a finding of noncompliance,
DOE also proposes to provide the full notice of allowance process
explicitly within its regulations.
DOE is also proposing regulations to make clear the extent of the
Department's enforcement authority under EPCA and the Department's
process for exercising that authority. DOE desires to make more
transparent the process by which it may exercise its statutory
authority to: (1) Make a determination of noncompliance for a basic
model subject to a design requirement; (2) request from any party
information concerning the certification
[[Page 53693]]
of or compliance of a basic model with an applicable conservation
standard; (3) make a finding of noncompliance based on information
received through the course of an investigation, which may include
information other than DOE's own test data; (4) pursue or settle
enforcement actions, with adherence to statutory timeframes set forth
in EPCA; (5) request and attain test units via the issuance of a test
notice; and (6) seek injunctive relief.
In response to feedback from various industry associations, DOE
proposes within its regulations to have the discretion to consider
third-party certification program testing as official enforcement test
data.
DOE proposes to restructure and clarify its regulations pertaining
to DOE's sampling provisions. To provide manufacturers with a better
understanding of how DOE's sampling plans apply, the proposal also
explicitly provides that in addition to DOE enforcement testing, there
are other bases upon which DOE may make a finding of noncompliance
(e.g., in whole or part on DOE's own enforcement testing, testing from
another Federal agency, or a manufacturer's own test report).
DOE also proposes updates to current enforcement regulations to
account for prohibited actions prescribed by Congress that are not
reflected within DOE's enforcement regulations.
DOE proposes that it may make a finding of noncompliance based on a
single test where the results of the assessment test are so far from an
applicable standard (i.e., at least 25% worse) that a finding of
compliance is extremely unlikely.
DOE also notes in this proposal that the Department expects to
address administrative law judge hearing procedures in a subsequent
rulemaking.
DOE proposes to move the enforcement provisions for electric motors
from 10 CFR part 431, subpart U, to 10 CFR 429.110 with corresponding
revisions, and to move the enforcement sampling provisions unchanged to
a new appendix E to subpart C of part 429. DOE also proposes to
explicitly adopt for small electric motors the proposed enforcement
provisions in subpart C to part 429.
III. Discussion of Revisions
In this section, DOE provides a detailed analysis of its proposed
rule.
A. Enforcement for Electric Motors and Small Electric Motors
As a part of this comprehensive proposed rule regarding DOE's
enforcement procedures, DOE proposes that the enforcement provisions in
subpart C to part 429 that apply to all other types of covered products
and equipment apply to electric motors and small electric motors. DOE
proposes to transition the enforcement provisions currently in place
for electric motors from 10 CFR part 431, subpart U to 10 CFR part 429,
subpart C, and to move the enforcement sampling provisions to a new
appendix E in subpart C of part 429. DOE proposes to reserve subpart U.
The enforcement provisions for electric motors are currently
located at 10 CFR part 431, subpart U. As for other types of covered
products and equipment, these regulations prescribe an enforcement
process through which DOE determines whether an electric motor
manufacturer is in violation of the energy conservation requirements of
EPCA. The current regulations, amongst other things, identify various
prohibited acts that may subject a manufacturer to civil penalties.
Subpart U also details remedies for addressing cases of noncompliance
and a process for the assessment and recovery of civil penalties.
Harmonizing the enforcement process for motors with the process for
all other types of covered products and equipment would ensure that
electric motors and small electric motors manufacturers are afforded
the same processes (e.g., the petition for reexamination process
discussed in Section III.I.) as manufacturers of all other covered
products and equipment. The enforcement process provided in 10 CFR part
429 is significantly more developed than the current procedures for
electric motors, so transitioning motors to the Part 429 process will
provide greater clarity to manufacturers. The proposal provides that
enforcement testing for motors would only be conducted by a laboratory
that is accredited to the International Organization for
Standardization (ISO)/International Electrotechnical Commission (IEC),
``General requirements for the competence of testing and calibration
laboratories,'' ISO/IEC 17025:2005(E). Further, the proposal would
remove the regulatory provision allowing electric motors manufacturers
to request additional DOE testing after DOE makes a noncompliance
determination, and permit DOE to use its discretion to conduct
additional testing due to a defective unit in the initial sample.
There are also several proposed prohibited acts regarding electric
motors and small electric motors that reflect the unique statutory
provisions for each type of equipment, and that are proposed to be
relocated to 10 CFR part 429. Those prohibited acts are discussed in
more detail in Section III.B. of this proposed rulemaking.
B. Prohibited Acts
DOE proposes to remove the prohibited act currently at 10 CFR
429.102(a)(7) (i.e., distribution in commerce by a manufacturer or
private labeler of a basic model of a covered product or covered
equipment after a notice of noncompliance determination (NND) has been
issued to the manufacturer or private labeler). DOE understands that
this regulatory language suggests that it is a separate violation to
distribute a noncompliant product after DOE issues a notice of
noncompliance determination. However, pursuant to EPCA, it is a
prohibited act to distribute in commerce in the U.S. any covered
product or equipment not in compliance with an applicable energy
conservation standard, regardless of whether DOE has issued an NND or
not. 42 U.S.C. 6302(a)(5) Thus, the prohibited act intended to be
covered by 10 CFR 429.102(a)(7) is currently covered under 10 CFR
429.102(a)(6).
DOE proposes to add prohibited acts to 10 CFR 429.102(a) for
distribution of rough service lamps and vibration service lamps that do
not meet the applicable standard(s) and to codify at 10 CFR 429.102(a)
the prohibited acts related to grid-enabled water heaters. DOE also
proposes to amend 10 CFR 429.102(a)(9) to clarify that DOE interprets
the provision as prohibiting the distribution of an adapter designed to
allow the use of a non-medium screw base lamp in a medium screw base
socket. Because the term ``incandescent lamp,'' which is used in the
current text, is defined to include only lamps with a medium screw
base, the provision would lead to the absurd result of prohibiting
distribution of an adapter for only medium screw base lamps that do not
have a medium screw base, which renders the provision a nullity.
DOE proposes to move certain prohibited acts to 10 CFR 429.102, and
adjust two of these acts to reflect that the prohibitions apply (by
statute) to all covered equipment for which DOE has promulgated a
labeling rule. Specifically, DOE proposes to move and adjust the
prohibited acts from 10 CFR 431.382(a)(1), (2), and (4) to 10 CFR
429.102 as follows: (1) Manufacturers and private labelers are
prohibited from distributing in commerce any covered equipment that is
not labeled in accordance with part 431; (2) Manufacturers,
distributors, retailers, and private labelers are prohibited from
removing or rendering illegible from any
[[Page 53694]]
covered equipment any label required to be provided under part 431; and
(3) Manufacturers, distributors, retailers, and private labelers are
prohibited from advertising electric motors in a catalog from which the
equipment may be purchased, without including in the catalog all
information as required by 10 CFR 431.31(b), provided, however, that
this shall not apply to an advertisement of an electric motor in a
catalog if distribution of the catalog began before the effective date
of the labeling rule applicable to that motor. DOE requests comment on
whether the last clause of the third prohibited act (i.e., ``provided,
however, that this shall not apply to an advertisement of an electric
motor in a catalog if distribution of the catalog began before the
effective date of the labeling rule applicable to that motor'')
provides any value given that the labeling provision for electric
motors has been in effect for motors manufactured since October 5,
2000.
The inclusion of electric motors in 10 CFR 429.102 would also
clarify that certain additional prohibited acts not currently specified
in 10 CFR 431.382 also apply to electric motor manufacturers.\2\ As
discussed in the March 7, 2011 CCE final rule (see 76 FR 12422, 12440),
these prohibited acts are within the scope of the prohibited acts
specified in EPCA at 42 U.S.C. 6302 (See 42 U.S.C. 6316(a)).
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\2\ These entail prohibitions against the following actions:
Failure to test any covered product or covered equipment subject to
an applicable energy conservation standard in conformance with the
applicable test requirements prescribed in 10 CFR part 430 or 431;
deliberate use of controls or features in a covered product or
covered equipment to circumvent the requirements of a test procedure
to produce test results that are unrepresentative of a product's
energy or water consumption if measured pursuant to DOE's required
test procedure; and knowing misrepresentation by a manufacturer or
private labeler by certifying an energy use or efficiency rating of
any covered product or covered equipment distributed in commerce in
a manner that is not supported by test data.
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EPCA provides in 42 U.S.C. 6317(f)(1)(A) prohibited acts that apply
to small electric motors (and distribution transformers and HID lamps)
identical in effect to those found at section 6302(a)(1) and (2);
however, DOE has not adopted labeling provisions for small electric
motors and is not proposing in this rule to do so. Accordingly, the
prohibited acts related to labeling would not apply to small electric
motors or any other type of covered equipment for which DOE has not
established labeling provisions.
C. Design Standards
DOE proposes edits to 10 CFR 429.106 in order to clarify that
design requirements are energy conservation standards that are subject
to DOE investigation and enforcement. EPCA explicitly provides that
energy conservation standards include design requirements for certain
enumerated products, and that DOE may enforce such standards. (42
U.S.C. 6291, 6311, 6303, and 6316). Nevertheless, DOE believes that the
proposed edits to DOE's regulations are necessary, as it has received
some questions from manufacturers as to whether manufacturers and
private labelers of products are subject to design standards are also
subject to the enforcement process set forth in 10 CFR part 429,
subpart C. To provide the regulated industry with an explicit
understanding of how DOE may make its determination of noncompliance
for models subject to a design standard, DOE's proposal explicitly
states that a test unit of a basic model subject to a design
requirement may be selected for enforcement testing or examination. In
such an instance, DOE will make a determination of noncompliance for
the basic model based on an examination of whether a single unit of the
basic model fails to comply with the applicable design requirements, as
the standard applies to a design--not the measured performance of
individual units--such that one unit can demonstrate noncompliance.
D. DOE Investigation and Basis of Noncompliance
Pursuant to EPCA, DOE has authority to initiate enforcement actions
to ensure compliance with, amongst other things, its certification
requirements and energy conservation standards. Current DOE regulations
already provide that DOE may request any information relevant to
determining compliance. DOE proposes to revise its procedures to
provide that the Department retains the discretion to request data,
underlying the certification of a basic model or belief as to whether a
basic model is compliant with an applicable standard, from any party.
DOE has historically requested this information from manufacturers of
covered products and equipment. DOE proposes to revise its regulations
to include explicitly that DOE may request the information from a party
other than the manufacturer of the covered equipment, such as a third-
party certification program or other manufacturer with independent test
data. This proposal ensures that DOE can enforce its regulations in
instances where relevant information is retained by parties other than
the manufacturer. Parties other than the manufacturer often conduct
independent testing to determine compliance with applicable standards.
In such instances, DOE's ability to retrieve that test information
could save government testing resources, and ensure that DOE can
enforce in a timely manner, which will further DOE's goals of
maintaining a level playing field for all parties and encouraging
compliance.
Should DOE obtain information from any party demonstrating that a
basic model does not comply with a certification requirement or energy
conservation standard, DOE may make a finding of noncompliance and
impose civil penalties pursuant to its authority under EPCA. (42 U.S.C.
6303) To provide transparency within the regulation and further align
its regulations with its statutory authority, DOE also proposes
regulatory text at 10 CFR 429.112, explicitly setting forth that DOE's
determination of noncompliance may be based on test data from a variety
of sources: The manufacturer or private labeler, another Federal
agency, or a third-party certification program; testing pursuant to
Sec. Sec. 429.104 and 429.110; and/or an admission. Stating the
various bases upon which DOE may make a determination of noncompliance
provides clarity for all parties.
E. Third-Party Certification Program Testing
DOE proposes that test data (for units tested in accordance with
the applicable DOE test procedure) from a third-party certification
program may be considered official enforcement test data upon which DOE
may make a finding of noncompliance. Various industry associations have
asked DOE to consider their test results as a part of DOE's enforcement
process. DOE understands that reliance on a third-party certification
program test in lieu of, or in addition to, testing conducted by DOE
pursuant to a test notice may save resources for all parties and may
lead to a more expedient enforcement process in some circumstances.
Thus, this proposal provides DOE the opportunity to contemplate and
potentially rely on test data obtained under a third-party
certification test program as an official enforcement test.
F. Test Notice
DOE's proposal is intended to provide more specificity and
transparency regarding DOE's current test notice process, and to make
consistent with all other enforcement actions the test notice process
for electric motors and small electric motors.
[[Page 53695]]
1. Test Notice Information
DOE seeks to provide manufacturers with more specific information
about the units requested in a test notice. Unfortunately, in various
enforcement actions, DOE has often received units that are not
responsive to a test notice (e.g., units with varied designs or
features as compared to the assessment test unit, units with similar
nameplates but that are in fact different (in design, components,
materials, etc.) from the assessment test unit). DOE's request in a
test notice does not constitute a flexible request for units that a
manufacturer may fulfill at its own discretion. In instances where DOE
has already conducted an assessment test, the requested units are meant
to be equivalent to the assessment test unit. Thus, in addition to
identifying in the test notice the basic model selected for enforcement
testing, DOE proposes that it may also include other characteristics or
specifications of the requested units (e.g., individual model numbers,
serial numbers, manufacturer date ranges, manufacture location). DOE
anticipates that additional identifying information within the test
notice will alleviate any confusion about exactly what units DOE is
requesting. This additional communication will result in clarity and
saved resources for all parties.
Current regulations state that DOE will identify in the test notice
the exact date DOE is scheduled to begin testing the requested units.
The proposed edits provide instead that DOE will identify in the test
notice the approximate date of testing. The proposal accounts for the
fact that the test laboratory's schedule can fluctuate such that it is
not realistic to assure that testing will begin on one specific day.
DOE is, however, able to schedule an approximate date for testing that
is usually within a one- to two-week range. Therefore, an approximate
date in the test notice is more realistic and reliable.
2. Availability of Units
Current regulations state that DOE will work with the manufacturer
to create an enforcement plan for testing when the requested units are
low volume or built to order. In current practice, DOE in fact works
with manufacturers to create an enforcement plan in other instances as
well, such as when the manufacturer does not have the exact requested
units and is unable to produce them, but can produce similar units. DOE
proposes various edits to address scenarios where fewer than the
requested number of units in the test notice are available for
shipment.
In instances where manufacturers believe that test units are
unavailable, DOE has found that the manufacturers often send alternate
units (i.e., units that are different than those requested in the test
notice) without communicating the circumstances of the potential
unavailability to DOE. In some cases, DOE has learned that the
manufacturer provided alternate units only upon the DOE laboratory
inspection or test of the units. To foster communication and avoid
wasted resources for both parties, the proposed edits address both DOE
and the manufacturer's next steps when the manufacturer believes that
the requested units are unavailable for shipment. Specifically, the
manufacturer must inform DOE if it believes that the requested units in
the test notice are unavailable and must provide details regarding the
unavailability. The manufacturer must also inform DOE if it does not
have the requested units but has similar ones, along with details about
the similar units.
If DOE determines that the requested units are in fact unavailable,
DOE will contact the manufacturer to develop a plan for enforcement
testing. In such instances, DOE may test the available units, which may
include testing of similar units identified by the manufacturer and/or
may test units that become available within 30 days. Although these
options are not novel to the test notice process, DOE proposes to
restructure the options within the regulations to ensure applicability
to all scenarios of test unit unavailability (as opposed to only when
the units are low volume or built to order).
3. Selection of Units
The proposed edits provide that a test notice will specify whether
DOE or the manufacturer will select units for testing. When DOE
finalized existing regulations in 2011, DOE was in the practice of
selecting all test units. However, over time the process has changed
such that manufacturers often select units. Thus, the proposed edits
capture both scenarios.
In addition, the proposed text further explains and clarifies the
process of randomly selecting units in response to a test notice.
Although the random selection of units has been discussed by DOE
previously in the September 2010 NOPR and March 2011 Final Rule (75 FR
56804; 76 FR 12430), DOE finds that manufacturers continue to be
uncertain about how to make selections, particularly in regards to how
a batch sample is selected when the units are sourced from the
manufacturer's warehouse, distributor, or other facility affiliated
with the manufacturer. In order to provide clarification, in this
proposal, DOE explains that the batch sample must be selected at random
from all units of the specified model that are in inventory on the date
of the test notice, including all units that have not yet been shipped.
From that batch sample, the initial test sample should be randomly
selected. DOE expects that the clarifying edits to the regulatory text
will alleviate confusion about how to make the required random
selection of units.
DOE also proposes to explicitly provide within its regulations the
current practice regarding documentation required after issuance of a
test notice. Specifically, the proposed text provides that DOE may ask
for documentation demonstrating the location from which each unit is
selected, and that the unit was in inventory at such location on the
date the test notice was issued. DOE typically asks manufacturers to
provide this information as it provides assurance that the units are
from inventory as required and ensures that DOE understands the source
of the test units.
4. Preparation of Units
Current regulatory text provides that a test unit provided in
response to a test notice shall not be prepared, modified, or adjusted
in any manner unless such preparation, modification, or adjustment is
allowed by the applicable DOE test procedure. DOE has received
inquiries as to whether these restrictions on preparation,
modification, and adjustment also apply to DOE, or if DOE is permitted
to alter test units. Thus, DOE proposes edits to current regulations in
order to clarify that upon receipt of a test unit, DOE will only
prepare, modify, or adjust a unit if allowable under the DOE test
procedure or authorized by the manufacturer. Further, DOE will also
notify the manufacturer if a test unit is received by the test lab in a
condition that may impact performance. In such an instance, DOE may
decide to test another unit depending on the condition of the
particular unit. DOE may also determine that it can rectify the
condition easily to continue with the test, for example, by replacing a
commonly available part. However, in such an instance, DOE would still
discuss the matter with the manufacturer prior to any modification.
[[Page 53696]]
G. Basic Model Compliance
1. General Applicability of Enforcement Sampling Procedures
DOE proposes restructuring and clarifying edits to regulations
pertaining to DOE's enforcement sampling procedures. A significant
portion of the information contained within DOE's proposal is currently
contained at 10 CFR 429.110(e), and is restructured in DOE's proposed
10 CFR 429.111, but the current applicable sample sizes and references
to the applicable appendices remain unchanged. DOE also proposes some
new provisions to 10 CFR 429.111, which are discussed in further detail
below. DOE also proposes to move the current enforcement sampling plan
for electric motors, which is at appendix A to subpart U of part 431,
to a new appendix E to subpart C of part 429 without change.
To provide the regulated industry with a better understanding of
how DOE's sampling plans apply, as noted previously, DOE's proposal
explicitly provides that in addition to DOE enforcement testing, there
are other bases upon which DOE may make a finding of noncompliance
(e.g., in whole or part on DOE's own enforcement testing, testing from
another Federal agency, or a manufacturer's own test report.)
2. Sample Size
a. Reduced Sample Size
Current regulations at 10 CFR 429.110 indicate that, in an instance
where units are unavailable for testing, DOE may make a determination
of noncompliance based on a sample size of less than the otherwise
required number of units. DOE's current regulations at 10 CFR
429.110(e)(7) also state that a reduced sample size may be used when
testing is impractical or where a basic model has unusual testing
requirements. To provide a more fulsome understanding of when DOE may
rely on a reduced sample size, DOE also proposes 10 CFR 429.111(a)(7),
which provides that a reduced sample size may also apply in other
circumstances, such as when DOE makes a determination of noncompliance
for a basic model subject to design requirements, or based on the
manufacturer's test data.
b. Sample Comprised of a Single Unit
DOE also proposes to explicitly state that for all products, if the
sample size is comprised of a single unit, DOE will determine
noncompliance for the basic model based solely on the results of the
single test. In such an instance, the sampling plans in the appendices
do not apply. Although DOE believes that it is inherently understood
that sampling statistics would not be applicable to a single unit,
explicit inclusion within regulations provides transparency in the
compliance determination process.
c. Noncompliance Determined by Single Assessment Test
DOE proposes that if the results of an assessment test show that
the basic model performed at least 25% worse than the applicable energy
conservation standard, DOE may make a determination of noncompliance
for the basic model based solely on the results of such test. In such
an instance, the sampling plans would not apply, as the determination
is based on a single unit. This new process would avoid unnecessary
expenditure of resources by both the manufacturer and DOE and would
permit DOE to make a finding of noncompliance based on a single test
where the results of the assessment test were so far below an
efficiency standard or above a conservation standard that compliance is
extremely unlikely.
3. Addition of Walk-In Cooler and Freezer Doors & Panels
DOE's proposal adds walk-in cooler and freezer doors and panels to
the list of equipment subject to the low-volume enforcement sampling
procedures (i.e., the Sampling Plan for Enforcement Testing of Covered
Equipment and Certain Low-Volume Covered Products in Appendix B to
Subpart C of Part 429). This equipment is not currently included within
DOE's list because at the time the current regulations were drafted,
only design standards applied to such equipment (versus the now also
applicable performance standards), and thus, sampling provisions were
not necessary at that time.
4. Design Standards
In line with the above discussion regarding models that are subject
to design standards, in this proposal DOE explicitly states that the
sampling plans in the appendices do not apply in instances where DOE is
evaluating whether a basic model complies with an applicable design
requirement, as the determination is based on a single unit.
H. Notification of Obligations
Current regulations at 10 CFR 429.114 address notification to the
manufacturer of certain obligations and requirements of the
manufacturer upon issuance of a notice of noncompliance determination.
To this section, DOE proposes various clarifying edits for readability
and proposes to remove the requirement that manufacturers must inform
their customers of DOE's noncompliance determination.
I. Petitions for Reexamination
DOE proposes to add new Sec. 429.115 to 10 CFR part 429. This
addition to the enforcement regulations provides the manufacturer or
private labeler with a formal process to ask DOE to reexamine a pending
determination of noncompliance. Historically, DOE has always accepted
any information from parties both before and after the issuance of a
test notice or notice of noncompliance determination. However, in order
to provide manufacturers and private labelers with a specific process
to request DOE to consider certain information and arguments prior to
DOE's issuance of a notice of noncompliance determination, DOE proposes
to adopt regulations detailing a specific procedure and substance for
such a request.
The proposal states that, at least 30 calendar days prior to the
issuance of a notice of noncompliance determination, DOE will issue to
the manufacturer or private labeler a letter of intent stating DOE's
intent to issue a notice of noncompliance determination for the basic
model. Within 30 days of DOE's issuance of a letter of intent, DOE will
accept a petition for reexamination of the pending determination, which
must include a variety of information: The material issue(s) that the
manufacturer or private labeler has with the assessment and/or
enforcement testing of the basic model; complete test reports or
alternative efficiency determination methods (AEDM) information (if
applicable) the manufacturer or private labeler believes demonstrate
the basic model meets the applicable standard; all legal and other
arguments that the manufacturer or private labeler wishes to make in
support of its position; and information/test data regarding any
previous representations of the basic model's energy consumption. The
process as proposed provides the petitioner and DOE with a clear
understanding of the information DOE requires to inform its
reexamination of the pending determination, while still allowing the
petitioner to submit any other information it deems pertinent.
The proposed process also serves to ensure that the petitioner, in
support of its request, provides DOE with test data that is in fact
relevant to the finding of noncompliance. As such, all test reports
must demonstrate that the applicable DOE test procedure was followed.
In addition, petitioners must inform DOE if the units it tested are
different (in design, components, materials, etc.) from the units that
are the basis of the
[[Page 53697]]
pending finding of noncompliance, or if the units were modified prior
to or during the test. In addition, for any testing completed after the
issuance of the letter of intent, the manufacturer must provide DOE
with documentation, such as the source of the units, how they were
selected, and if relevant, whether and how many units were available in
inventory or from a retailer on the date of testing.
Upon review of a petition, DOE may modify or leave unchanged its
pending determination. In any case, the process ensures that DOE
considered the petitioner's submission of relevant materials. DOE also
notes that although the petition must be submitted within 30 days of
issuance of the letter of intent, the petitioner may always compile and
share information at any earlier date, such as upon DOE's issuance of a
test notice.
DOE also notes that the proposed petition for reexamination process
addresses DOE's obligations under Section 6 of Executive Order 13892,
``Promoting the Rule of Law Through Transparency and Fairness in Civil
Administrative Enforcement and Adjudication,'' which requires that DOE,
before issuing a notice of noncompliance determination, must afford the
manufacturer or private labeler an opportunity to be heard regarding
the pending determination.
J. Notice of Allowance
The Department proposes to provide within its regulations the
complete process for attaining a notice of allowance after DOE has made
a finding of noncompliance for a basic model. DOE has received feedback
from various respondents indicating that the process, as currently
explained within 10 CFR part 429 and the body of the notice of
noncompliance determination, is not intuitive and deserves
clarification. After review of current regulations at Sec. 429.114(d),
DOE also believes that further clarity and explanation of the process
within its regulations would be helpful to all parties. The proposal
clarifies and captures various aspects of the notice of allowance
process, including that a manufacturer or private labeler must, prior
to distribution in commerce of a modified model, receive a notice of
allowance from DOE for that modified model. The proposal also
explicitly states that the manufacturer or private labeler must, prior
to receipt of a notice of allowance, provide DOE with a detailed
explanation of all modifications and test data demonstrating that the
modified basic model meets the applicable standard(s). If the
manufacturer chooses to modify the noncompliant basic model, DOE also
proposes that, as a part of its records, the manufacturer or private
labeler maintain records of serial numbers of and the modifications
made to any units of the noncompliant basic model in existing stock.
DOE regulations currently permit in-house or independent testing
for determining compliance with DOE's performance based conservation
standards. Currently, Sec. 429.116 provides that DOE may require
testing by an independent third-party if DOE determines it is necessary
to ensure compliance. Third-party testing may be essential to ensuring
compliance in some circumstances, such as with manufacturers who are
routinely found to violate standards, or in instances where DOE
believes that the manufacturer's in-house testing is inaccurate or
unreliable. Although DOE may rely on 10 CFR 429.116, for the sake of
transparency and clarity of process, DOE proposes that the regulations
pertaining to the notice of allowance process also explicitly
incorporate this requirement--that the manufacturer or private
labeler's testing in support of the request for a notice of allowance
be performed at an independent, third-party testing facility.
K. Injunctions
DOE proposes minor edits to clarify that, in instances where a
person fails to cease engaging in a prohibited act, DOE may either
immediately seek an injunction or allow the person an opportunity to
first implement a corrective action plan.
L. Response to a Notice of Proposed Civil Penalty in Writing
DOE proposes that a respondent's election of procedures in response
to a notice of proposed civil penalty be made to the Department in
writing. This is an established practice, and DOE believes that
explicitly requiring the response to be in writing ensures that the
respondent's election is made without miscommunication or
misinterpretation.
M. Settlement
The respondent's election to settle a case, while available in
every enforcement case, is not explicitly stated within current
regulations. Thus, the proposed text explicitly provides a respondent
in an enforcement action with the option of settlement. Further, DOE's
proposal explains in greater detail the settlement process, including
that the compromise agreement will set forth the terms of the
agreement, and that DOE's General Counsel will sign an order adopting
the agreement and assessing the civil penalty. The proposal as a whole
completes the comprehensive list of the respondent's election of
procedures, and provides clarity of the settlement process.
N. Administrative Law Judge Hearing and Appeal
DOE's proposal includes some minor edits to 10 CFR 429.126 for
clarity and readability. In addition, the proposal includes a reference
to a new subpart D, for which DOE plans to propose administrative law
judge hearing procedures in the future.
O. Immediate Issuance of Order Assessing Civil Penalty
DOE proposes edits to ensure that DOE's regulations clearly convey
the statutory requirement that an election to have the procedures of 10
CFR 429.128 apply (i.e., in lieu of an administrative law judge
hearing, the respondent elects to have DOE immediately issue an order
assessing the civil penalty) must be made by the respondent within 30
days of the notice of proposed civil penalty. The 30-day window within
which this option is available is a timeframe mandated by EPCA and is
currently captured within DOE regulations at 10 CFR 429.122.
Nevertheless, DOE has found that there is confusion over the timeframe
to elect this option and believes that further clarification and
additional references to the 30-day window will help create a better
understanding of the statutory requirement.
Further, current regulations provide that, in instances where the
respondent takes the maximum 30 days allowable to make a selection for
the immediate issuance of an adopting order, the General Counsel must
issue such order on that very same day. In order to create a more
reasonable and realistic timeline, DOE also proposes edits to current
regulations such that the General Counsel will not sign an adopting
order sooner than 60 days after the issuance of the notice of proposed
civil penalty.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
This regulatory action is not a ``significant regulatory action''
under section 3(f) of Executive Order 12866. Accordingly, this action
was not subject to review under the Executive Order by the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget (OMB).
[[Page 53698]]
B. Review Under Executive Orders 13771 and 13777
On January 30, 2017, the President issued Executive Order (E.O.)
13771, ``Reducing Regulation and Controlling Regulatory Costs.'' E.O.
13771 stated the policy of the executive branch is to be prudent and
financially responsible in the expenditure of funds, from both public
and private sources. E.O. 13771 stated it is essential to manage the
costs associated with the governmental imposition of private
expenditures required to comply with Federal regulations.
Additionally, on February 24, 2017, the President issued E.O.
13777, ``Enforcing the Regulatory Reform Agenda.'' E.O. 13777 required
the head of each agency designate an agency official as its Regulatory
Reform Officer (RRO). Each RRO oversees the implementation of
regulatory reform initiatives and policies to ensure that agencies
effectively carry out regulatory reforms, consistent with applicable
law. Further, E.O. 13777 requires the establishment of a regulatory
task force at each agency. The regulatory task force is required to
make recommendations to the agency head regarding the repeal,
replacement, or modification of existing regulations, consistent with
applicable law. At a minimum, each regulatory reform task force must
attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) Are outdated, unnecessary, or ineffective;
(iii) Impose costs that exceed benefits;
(iv) Create a serious inconsistency or otherwise interfere with
regulatory reform initiatives and policies;
(v) Are inconsistent with the requirements of Information Quality
Act, or the guidance issued pursuant to that Act, in particular those
regulations that rely in whole or in part on data, information, or
methods that are not publicly available or that are insufficiently
transparent to meet the standard for reproducibility; or
(vi) Derive from or implement Executive Orders or other
Presidential directives that have been subsequently rescinded or
substantially modified.
DOE initially concludes that this rulemaking is consistent with the
directives set forth in these executive orders.
As discussed in this NOPR, DOE is proposing to revise its
enforcement regulations to ensure they convey a clear and comprehensive
enforcement process and to revise existing enforcement procedures
applicable to both covered products and covered equipment. The
following section provides an overview of the costs and burdens
discussed previously in this document.
Table IV.1--Summary of Cost Impacts for Enforcement for Consumer
Products and Commercial and Industrial Equipment
------------------------------------------------------------------------
Present value
Category (thousands Discount rate
2016$) (percent)
------------------------------------------------------------------------
Cost Savings
------------------------------------------------------------------------
Reduction in Notification Costs......... 109 3
42 7
------------------------------------------------------------------------
Total Net Cost Impact
------------------------------------------------------------------------
Total Net Cost Impact............... (109) 3
(42) 7
------------------------------------------------------------------------
Table IV.2--Summary of Annualized Cost Impacts for Enforcement for
Consumer Products and Commercial and Industrial Equipment
------------------------------------------------------------------------
Annualized
value Discount rate
Category (thousands (percent)
2016$)
------------------------------------------------------------------------
Annualized Cost Savings
------------------------------------------------------------------------
Reduction in Notification Costs......... 3.3 3
2.9 7
------------------------------------------------------------------------
Total Net Annualized Cost Impact
------------------------------------------------------------------------
Total Net Cost Impact (3.3) 3
(2.9) 7
------------------------------------------------------------------------
As discussed in section III.H, DOE proposes to remove the
requirement that manufacturers must inform their customers of DOE's
noncompliance determination. DOE estimates that this will reduce
manufacturer burden when manufacturers are issued a noncompliance
determination by DOE, resulting in costs savings for manufactures.
Based on a review of previous noncompliance determinations spanning the
previous five years, DOE estimates there are on average 14.8
noncompliance determinations each year.
To estimate the cost savings manufacturers would experience due to
the proposal to remove the requirement to notify consumers of
noncompliance determinations, DOE first estimated the cost savings of
drafting a notification letter and then of identifying all customers
that purchased noncompliant units.
DOE assumes manufacturers currently incur costs to write a
noncompliance letter to their customers. DOE estimates
[[Page 53699]]
that an average noncompliance determination would result in a general
and operations manager spending one hour writing a letter and an
executive spending 30 minutes reviewing the letter that would be sent
to all customers that purchased noncompliant units. DOE estimated that
the average hourly rate to employ a general and operations manager is
$77.67 and the average hourly rate to employ an executive is
$125.48.\3\ Therefore, the average cost to draft a noncompliance
notification letter to all customers is approximately $140 per basic
model that is found to be noncompliant. This proposal is estimated to
result in approximately $2,078 of costs savings annually for all
manufacturers to forgo drafting on average 14.8 notifications of
noncompliance each year.
---------------------------------------------------------------------------
\3\ The Bureau of Labor Statistics mean hourly wage rate
``General and Operations Manager'' is $59.56 (May 2018: https://www.bls.gov/oes/current/oes111021.htm) and the mean hourly wage for
``Chief Executives'' is $96.22 (May 2018: https://www.bls.gov/oes/current/oes111011.htm).
Additionally, according to the Annual Survey of Manufacturers
for NAICS code 31-33, all manufacturing, wages represent
approximately 77 percent of the total cost of employment. (AMS 2016,
NAICS code 31-33; https://www.census.gov/programs-surveys/asm.html).
---------------------------------------------------------------------------
DOE assumes manufacturers currently incur costs to identify
customers that have purchased noncompliant units. DOE assumes there are
two types of basic models that are found to be noncompliant, low-volume
basic models with less than 100 units sold and, high-volume basic
models with 100 or more units sold. DOE assumes low-volume basic models
are typically sold individually, with each customer only purchasing one
unit on average, while high-volume basic models are typically sold in a
group of 50 units per customer, with each customer purchasing 50 units
as a single purchase on average. DOE assumes that it takes
manufacturers approximately 5 minutes to identify a single customer's
contact information. This equally applies to customers of low-volume
and high-volume basic models. Therefore, it takes manufacturers an
equal amount of time to identify the low-volume customer that purchased
one unit and the high-volume customer that purchased 50 units.
Based on previous noncompliance findings, DOE estimates that
typically 31 units are sold for a low-volume basic model and 600 units
are sold for a high-volume basic model. Therefore, a low-volume basic
model manufacturer would have to identify 31 customers on average and a
high-volume basic model manufacturer would have to identify 12
customers on average (600 divided by 50).
Again, DOE assumes that a general and operations manager would be
responsible for identifying customers and the average hourly rate for
this employee is $77.67.\4\ Therefore, on average it costs
approximately $201 to identify all customers of low-volume basic models
and $78 to identify all customers of high-volume basic models.\5\ Based
on the weighted average of low-volume and high-volume basic models
found noncompliant,\6\ this proposal is estimated to result in cost
savings of approximately $1,640 annually for all manufacturers to forgo
identifying customers of noncompliant basic models.
---------------------------------------------------------------------------
\4\ The Bureau of Labor Statistics mean hourly wage rate
``General and Operations Manager'' is $59.56 (May 2018: https://www.bls.gov/oes/current/oes111021.htm).
Additionally, according to the Annual Survey of Manufacturers
for NAICS code 31-33, all manufacturing, wages represent
approximately 77 percent of the total cost of employment. (AMS 2016,
NAICS code 31-33; https://www.census.gov/programs-surveys/asm.html).
\5\ There are on average 31 customers of low-volume models and
on average 122 customers of high-volume models. The hour employment
cost is $77.67, and each customer take approximately 10 minutes to
identify ($77.67 * \1/6\ hr * 31 = $401; $77.67 * \1/6\ hr * 122 =
$1,579).
\6\ Based on previous noncompliance findings over the past five
years, DOE estimated that approximately 27 percent of noncompliant
models had less than 100 units sold, and 73 percent of noncompliant
models had 100 or more units sold.
---------------------------------------------------------------------------
Overall, this proposal is estimated to result in cost savings of
approximately $3,718 annually for all manufacturers to forgo drafting
on average 14.8 notifications of noncompliance each year, identifying
customers of noncompliant models, and sending noncompliance letters to
customers.
DOE anticipates that the remainder of the amendments proposed in
this document would not impact manufacturers' burden during the
enforcement process. Most of the proposed amendments will provide
additional certainty and clarity to the regulated industry, facilitate
communication between DOE and the regulated industry, and advance the
effective enforcement of DOE's regulations.
This proposed rule is estimated to result in cost savings. The
proposed rule would yield an annualized cost saving of approximately
$2,926 (2016$) using a perpetual time horizon discounted to 2016 at a 7
percent discount rate. Therefore, if finalized as proposed, this rule
is expected to be an E.O. 13771 deregulatory action.
DOE requests comment on its understanding of the impact and
associated costs of these proposed amendments.
C. 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 (IFRA) for
any rule that by law must be proposed for public comment, unless the
agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
As required by Executive Order 13272, ``Proper Consideration of Small
Entities in Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE
published procedures and policies on February 19, 2003, to ensure that
the potential impacts of its rules on small entities are properly
considered during the DOE rulemaking process. 68 FR 7990. DOE has made
its procedures and policies available on the Office of the General
Counsel's website: http://energy.gov/gc/office-general-counsel.
Under the provisions of the Regulatory Flexibility Act and the
procedures and policies published on February 19, 2003, DOE reviewed
this proposal. DOE certifies that the proposed rule, if adopted, would
not have a significant economic impact on a substantial number of small
entities. The factual basis of this certification is set forth in the
following paragraphs.
The Small Business Administration (SBA) considers a business entity
to be a small business, if, together, with its affiliates, it employs
less than a threshold number of workers specified in 13 CFR part 121.
These size standards and codes established by the North American
Industry Classification System (NAICS) and are available at https://
www.sba.gov/document/support--table-size-standards.
This proposal impacts manufacturers of all covered products and
covered equipment subject to DOE's energy conservation, water
conservation, and design standards. DOE estimates that the
manufacturing of all these covered products and covered equipment
includes approximately 20 unique NAICS codes. The SBA threshold number
of employees for these 20 NAICS codes ranges from 500 to 1,500 total
employees. DOE estimates there are several hundred small businesses
that manufacture the products and equipment covered by this proposal.
DOE is attempting to revise the current enforcement procedures on
manufacturers of covered products and covered equipment to give
certainty and clarity to the regulated industries, to facilitate
communication between DOE
[[Page 53700]]
and the regulated industries, to reduce burden, and to advance the
effective enforcement of DOE's regulations. Since this proposal would
reduce burden and result in cost savings, as described in section IV.B,
on all manufacturers, including small businesses, DOE tentatively
concludes that the impacts of this proposal would not have a
``significant economic impact on a substantial number of small
entities,'' and that the preparation of an IRFA is not warranted. 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).
DOE requests comment on its finding that this proposal would not
present a significant economic impact on the several hundred small
businesses that manufacture products and equipment covered by this
proposal.
D. Review Under the Paperwork Reduction Act of 1995
The Paperwork Reduction Act (PRA) of 1995 requires that U.S.
Federal Government agencies obtain Office of Management and Budget
(OMB) approval prior to collecting data in any situation where 10 or
more respondents, within a 12 month period, are involved and the
questions are standardized in nature. This proposed rule does not seek
to collect any information or data in such a manner; accordingly, DOE
has determined that neither review nor approval by OMB under the PRA is
required.
E. Review Under the National Environmental Policy Act
We are analyzing this proposed regulation in accordance with NEPA
and DOE's NEPA implementing regulations (10 CFR part 1021). We invite
the public to comment on the extent to which this proposed regulation
may have a significant impact on the human environment, or fall within
one of the categorical exclusions for actions that have no individual
or cumulative effect on the quality of the human environment. We will
complete our analysis, in compliance with NEPA, before finalizing this
regulation.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have Federalism
implications. The Executive Order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and to carefully assess
the necessity for such actions. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have Federalism implications. On March 14, 2000, DOE
published a statement of policy describing the intergovernmental
consultation process it will follow in the development of such
regulations. 65 FR 13735. DOE has examined this proposed rule and has
determined that it would not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. No further action is required by
Executive Order 13132.
G. Review Under Executive Order 12988
Regarding the review of existing regulations and the promulgation
of new regulations, section 3(a) of Executive Order 12988, ``Civil
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal
agencies the general duty to adhere to the following requirements: (1)
Eliminate drafting errors and ambiguity, (2) write regulations to
minimize litigation, (3) provide a clear legal standard for affected
conduct rather than a general standard, and (4) promote simplification
and burden reduction. Section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation (1) clearly specifies the
preemptive effect, if any, (2) clearly specifies any effect on existing
Federal law or regulation, (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction,
(4) specifies the retroactive effect, if any, (5) adequately defines
key terms, and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
sections 3(a) and 3(b) to determine whether they are met or it is
unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the proposed rule meets the relevant standards of Executive Order
12988.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a proposed regulatory action likely to result in a rule that may
cause the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year (adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. On March 18, 1997,
DOE published a statement of policy on its process for
intergovernmental consultation under UMRA. 62 FR 12820; also available
at http://energy.gov/gc/office-general-counsel. DOE examined this
proposed rule according to UMRA and its statement of policy and
determined that its requirements do not apply because the rule contains
neither an intergovernmental mandate, nor a mandate that may result in
the expenditure of $100 million or more in any year.
I. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This rule would not have any impact on the autonomy or integrity of the
family as an institution. Accordingly, DOE has concluded that it is not
necessary to prepare a Family Policymaking Assessment.
J. Review Under Executive Order 12630
DOE has determined, under Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights'' 53 FR 8859
[[Page 53701]]
(March 18, 1988) that this regulation would not result in any takings
that might require compensation under the Fifth Amendment to the U.S.
Constitution.
K. Review Under Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by OMB
to maximize the quality, objectivity, utility, and integrity of
information. OMB's guidelines were published at 67 FR 8452 (Feb. 22,
2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7,
2002). DOE has reviewed this proposed rule under the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
L. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OMB,
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that (1) is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use.
DOE has reviewed this proposed rule under the Executive Order
13211, and has concluded that it is not a significant regulatory action
under Executive Order 12866; would not have a significant adverse
effect on the supply, distribution, or use of energy; and that the
Administrator of OIRA has not designated it as a significant energy
action. Accordingly, DOE has concluded that it is not necessary to
prepare a Statement of Energy Affects.
M. Review Under Section 32 of the Federal Energy Administration Act of
1974
Under section 301 of the Department of Energy Organization Act
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the
Federal Energy Administration Act of 1974, as amended by the Federal
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA)
Section 32 essentially provides in relevant part that, where a proposed
rule authorizes or requires use of commercial standards, the notice of
proposed rulemaking must inform the public of the use and background of
such standards. In addition, section 32(c) requires DOE to consult with
the Attorney General and the Chairman of the Federal Trade Commission
(FTC) concerning the impact of the commercial or industry standards on
competition.
Because this proposed rulemaking does not authorize or require use
of any commercial standard, the FEAA requirements do not apply.
N. Description of Materials Incorporated by Reference
In this NOPR, DOE is not proposing to incorporate by reference any
new industry standard. The incorporation by reference of ISO/IEC
17025:2005(E) in Sec. 429.110 has already been approved by the
Director of the Federal Register and there are no proposed changes in
this NOPR.
V. Public Participation
A. Submission of Comments
DOE will accept comments, data, and information regarding this
proposed rule no later than the date provided in the DATES section at
the beginning of this proposed rule. Interested parties may submit
comments using any of the methods described in the ADDRESSES section at
the beginning of this proposed rule.
Submitting comments via https://regulations.gov. The https://www.regulations.gov web page will require you to provide your name and
contact information. Your contact information will be viewable to DOE
Building Technologies staff only. Your contact information will not be
publicly viewable except for your first and last names, organization
name (if any), and submitter representative name (if any). If your
comment is not processed properly because of technical difficulties,
DOE will use this information to contact you. If DOE cannot read your
comment due to technical difficulties and cannot contact you for
clarification, DOE may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment or in any documents attached to your comment.
Any information that you do not want to be publicly viewable should not
be included in your comment, nor in any document attached to your
comment. Persons viewing comments will see only first and last names,
organization names, correspondence containing comments, and any
documents submitted with the comments.
Do not submit to https://www.regulations.gov information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (CBI)). Comments submitted through
https://www.regulations.gov cannot be claimed as CBI. Comments received
through the website will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
DOE processes submissions made through https://www.regulations.gov
before posting. Normally, comments will be posted within a few days of
being submitted. However, if large volumes of comments are being
processed simultaneously, your comment may not be viewable for up to
several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you have successfully uploaded your
comment.
Submitting comments via email, hand delivery, or mail. Comments and
documents submitted via email, hand delivery, or mail also will be
posted to https://www.regulations.gov. If you do not want your personal
contact information to be publicly viewable, do not include it in your
comment or any accompanying documents. Instead, provide your contact
information on a cover letter. Include your first and last names, email
address, telephone number, and optional mailing address. The cover
letter will not be publicly viewable as long as it does not include any
comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. If you submit via mail or hand
delivery, please provide all items on a CD, if feasible. It is not
necessary to submit printed copies. No facsimiles (faxes) will be
accepted.
Comments, data, and other information submitted to DOE
[[Page 53702]]
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, written in English and free of any defects or viruses.
Documents should not contain special characters or any form of
encryption and, if possible, they should carry the electronic signature
of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This reduces comment processing and posting
time.
Confidential Business Information. According to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email, postal mail, or hand delivery two well-marked copies: One copy
of the document marked confidential including all the information
believed to be confidential, and one copy of the document marked non-
confidential with the information believed to be confidential deleted.
Submit these documents via email or on a CD, if feasible. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
Factors DOE considers when evaluating requests to treat submitted
information as confidential include (1) a description of the items, (2)
whether and why such items are customarily treated as confidential
within the industry, (3) whether the information is generally known by
or available from other sources, (4) whether the information has
previously been made available to others without obligation concerning
its confidentiality, (5) an explanation of the competitive injury to
the submitting person which would result from public disclosure, (6)
when such information might lose its confidential character due to the
passage of time, and (7) why disclosure of the information would be
contrary to the public interest.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
B. Requests for Comment
DOE welcomes written comments from the public on all aspects of its
proposal, and any subject related to DOE's enforcement process,
including topics not specifically raised in this proposed rule. DOE
continues to seek views from all interested parties on how DOE's
enforcement rules can best be developed to ensure effective
enforcement. DOE requests comment on its finding that this proposal
would not present a significant economic impact on the several hundred
small businesses that manufacture products and equipment covered by
this proposal.
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this proposed
rule.
List of Subjects
10 CFR Part 429
Confidential business information, Energy conservation, Household
appliances, Imports, Incorporation by reference, Reporting and
recordkeeping requirements.
10 CFR Part 431
Administrative practice and procedure, Confidential business
information, Energy conservation, Reporting and recordkeeping
requirements.
Signing Authority
This document of the Department of Energy was signed on July 28,
2020, by William S. Cooper III, General Counsel and Daniel R. Simmons,
Assistant Secretary for Energy Efficiency, pursuant to delegated
authority from the Secretary of Energy. That document with the original
signature and date is maintained by DOE. For administrative purposes
only, and in compliance with requirements of the Office of the Federal
Register, the undersigned DOE Federal Register Liaison Officer has been
authorized to sign and submit the document in electronic format for
publication, as an official document of the Department of Energy. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Signed in Washington, DC, on July 28, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE is proposing to amend
parts 429 and 431 of Chapter II of Title 10, Code of Federal
Regulations as set forth below:
PART 429--CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT
0
1. The authority citation for part 429 continues to read as follows:
Authority: 42 U.S.C. 6291-6317, 28 U.S.C. 2461 note.
0
2. Revise Sec. 429.1 to read as follows:
Sec. 429.1 Purpose and scope.
This part sets forth the procedures to be followed for
certification, determination and enforcement of compliance of covered
products and covered equipment with the applicable conservation
standards set forth in parts 430 and 431 of this subchapter.
0
3. Section 429.2(a) is revised to read as follows:
Sec. 429.2 Definitions.
(a) The definitions found in 10 CFR parts 430 and 431 of this
chapter apply for purposes of this part.
* * * * *
0
4. Revise Sec. 429.100 to read as follows:
Sec. 429.100 Purpose and scope.
This subpart describes the enforcement authority of DOE to ensure
compliance with the conservation standards regulations in 10 CFR parts
429, 430 and 431.
0
5. Section 429.102 is amended by:
0
a. Revising paragraphs (a)(1), and (5) through (10);
0
b. Adding paragraphs (a)(11) through (14); and
0
c. Revising paragraph (c)(4)(iii).
The revisions and additions read as follows:
Sec. 429.102 Prohibited acts subjecting persons to enforcement
action.
(a) * * *
(1) Failure of a manufacturer to provide, maintain, permit access
to, or copying of records required to be supplied under the Act or this
part or failure to make reports or provide other information required
to be supplied under the Act or this part, including but not limited to
failure to properly certify covered products and covered equipment in
accordance with subpart B of this part;
* * * * *
(5) Failure of a manufacturer to permit a DOE representative to
observe any testing required by the Act, this part, or 10 CFR part 430
or part 431 of this chapter, or to inspect the results of such testing;
(6) Distribution in commerce by a manufacturer or private labeler
of any new covered product or covered
[[Page 53703]]
equipment that is not in compliance with an applicable energy
conservation standard;
(7) Knowing misrepresentation by a manufacturer or private labeler
by certifying an energy use or efficiency rating of any covered product
or covered equipment distributed in commerce in a manner that is not
supported by test data;
(8) For any manufacturer, distributor, retailer, or private labeler
to distribute in commerce an adapter that--
(i) Is designed to allow a lamp that does not have a medium screw
base to be installed into a fixture or lamp holder with a medium screw
base socket; and
(ii) Is capable of being operated at a voltage range at least
partially within 110 and 130 volts;
(9) For any manufacturer or private labeler to knowingly sell a
product to a distributor, contractor, or dealer with knowledge that the
entity routinely violates any regional standard applicable to the
product; or
(10) For any person to sell at retail a rough service lamp or
vibration service lamp in a package containing more than one lamp; or
(11) For any person--
(i) To activate an activation lock for a grid-enabled water heater
with knowledge that such water heater is not used as part of an
electric thermal storage or demand response program;
(ii) To distribute an activation key for a grid-enabled water
heater with knowledge that such activation key will be used to activate
a grid-enabled water heater that is not used as part of an electric
thermal storage or demand response program;
(iii) To otherwise enable a grid-enabled water heater to operate at
its designed specification and capabilities with knowledge that such
water heater is not used as part of an electric thermal storage or
demand response program; or
(iv) To knowingly remove or render illegible the required label of
a grid-enabled water heater; or
(12) Distribution in commerce by a manufacturer or private labeler
of any covered equipment that is not labeled in accordance with 10 CFR
part 431 of this chapter; or
(13) Removal from any covered equipment or rendering illegible, by
a manufacturer, distributor, retailer, or private labeler, any label
required to be provided under 10 CFR part 431 of this chapter; or
(14) Advertisement of an electric motor, by a manufacturer,
distributor, retailer, or private labeler, in a catalog from which the
equipment may be purchased, without including in the catalog all
information as required by Sec. 431.31(b) of this chapter, provided,
however, that this shall not apply to an advertisement of an electric
motor in a catalog if distribution of the catalog began before the
effective date of the labeling rule applicable to that motor.
* * * * *
(c) * * *
(4) * * *
(iii) An outdoor unit that is part of any combination certified at
less than the standard applicable in the region in which it is
installed.
0
6. Section 429.106(b) is revised to read as follows:
Sec. 429.106 Investigation of compliance.
* * * * *
(b) DOE may, at any time, request any information relevant to
determining compliance with any requirement under 10 CFR parts 429, 430
and 431, including data from any party that underlies the certification
of a basic model and/or demonstrates whether a basic model complies
with an applicable conservation standard (including any applicable
design requirements).
0
7. Section 429.110 is revised to read as follows:
Sec. 429.110 Enforcement testing.
(a) DOE may determine that test data for units tested in accordance
with the applicable test procedure specified in 10 CFR part 430 or part
431 of this chapter by DOE pursuant to this section or Sec. 429.104,
another Federal agency pursuant to other provisions or programs, or a
third-party certification program is official enforcement test data
upon which DOE may make a finding of noncompliance.
(b) If DOE has reason to believe that a basic model does not comply
with an applicable standard, it may select and test units as follows.
(1) Test location. DOE testing will be conducted at a laboratory
accredited to the International Organization for Standardization (ISO)/
International Electrotechnical Commission (IEC), ``General requirements
for the competence of testing and calibration laboratories,'' ISO/IEC
17025:2005(E) (incorporated by reference; see Sec. 429.4). If testing
cannot be completed at an independent laboratory, DOE, at its
discretion, may allow enforcement testing at a manufacturer's
laboratory, so long as the lab is accredited to ISO/IEC 17025:2005(E)
and DOE representatives witness the testing. In addition, for
commercial packaged boilers with rated input greater than 5,000,000
Btu/h, DOE, at its discretion, may allow enforcement testing of a
commissioned commercial packaged boiler in the location in which it was
commissioned for use, pursuant to the test provisions at Sec.
431.86(c) of this chapter, for which accreditation to ISO/IEC
17025:2005(E) would not be required.
(2) Test notice. To obtain units for enforcement testing to
determine compliance with an applicable standard, DOE will issue a test
notice addressed to the manufacturer in accordance with the following
requirements:
(i) DOE will send the test notice to the manufacturer.
(ii) The test notice will specify the basic model selected for
testing, and may include other characteristics or specifications of the
requested units (e.g., individual or nameplate model numbers, serial
number or manufacture date range(s), manufacture location). In
addition, for electric motors with non-standard endshields or flanges
and partial electric motors, the test notice may specify that the
manufacturer provide a general purpose electric motor of equivalent
electrical design and enclosure.
(iii) The test notice will specify the method of selecting the test
sample, the maximum size of the sample and the size of the initial test
sample, the approximate date testing is to be started, and the facility
at which testing will be conducted. The test notice may also provide
for situations in which the selected basic model is unavailable for
testing and may include alternative models or basic models.
(iv) DOE will state in the test notice whether DOE or the
manufacturer will select the units for testing.
(v) The test notice will specify whether the units selected must be
from the manufacturer's inventory, from one or more distributors, and/
or from one or more retailers. DOE may ask for documentation
demonstrating the location from which each unit was selected, and that
the unit was in inventory at such location on the date the test notice
was issued. If any unit is selected from a distributor or retailer, the
manufacturer shall make arrangements with the distributor or retailer
for compensation for or replacement of any such units.
(vi) DOE may require in the test notice that the manufacturer of a
basic model ship or cause to be shipped from a retailer or distributor
at the manufacturer's expense the requested number of units of a basic
model specified in such test notice to the testing laboratory specified
in the test notice. The manufacturer shall ship or cause to be shipped
the specified test unit(s) of the basic model to the testing
[[Page 53704]]
laboratory within 5 working days from the date of the test notice.
(3) Test Unit Availability. (i) If the manufacturer believes that
it is unable to provide DOE with units of the basic model as specified
in the test notice (e.g., having the same design, components,
materials, manufacture date or date range, manufacture location, and
nameplate or individual model number), the manufacturer must
immediately notify DOE in writing, and include details of why the units
are unavailable and what efforts the manufacturer has taken to secure
them. If the manufacturer believes that it has similar, but not exactly
the same, units that should satisfy the test notice, it must
immediately notify DOE in writing, and include details about the
specific units available and an explanation of how such units differ
from the units requested. If DOE determines that the requested units
are unavailable, DOE will contact the manufacturer to develop a plan
for enforcement testing, which may include testing of similar units
identified by the manufacturer.
(ii) If DOE determines that fewer than the requested units of a
basic model are available for testing when the manufacturer receives
the test notice, then DOE may test the available unit(s) (which may,
under paragraph (b)(3)(i) of this section, include testing of similar
units identified by the manufacturer) and/or one or more other units of
the basic model if expected to become available within 30 calendar
days.
(iii) For the purposes of this section, available units are those
that are available for distribution in commerce within the United
States.
(4) Test unit selection. As specified by DOE in the test notice,
either DOE or the manufacturer will select units for testing from one
of the following sources:
(i) Manufacturer's warehouse, distributor, or other facility
affiliated with the manufacturer. DOE or the manufacturer will select a
batch sample at random in accordance with the provisions in Sec.
429.111 and the conditions specified in the test notice. The batch
sample must be selected at random from all units of the specified model
that are in inventory on the date of the test notice, including all
units that have not yet been shipped. From that batch sample, DOE or
the manufacturer will randomly select an initial test sample of units
for testing in accordance with the instructions in the test notice.
(ii) Retailer or other party not affiliated with the manufacturer.
DOE, the retailer, or other party not affiliated with the manufacturer
will select an initial test sample of units at random from the
inventory of the retailer or other party. This sample must provide the
minimum units necessary for testing in accordance with the instructions
in the test notice. Depending on the results of the testing, DOE may
select additional units for testing from the retailer or other
facility.
(iii) Previously commissioned commercial packaged boilers with a
rated input greater than 5,000,000 Btu/h. DOE may test a sample of at
least one unit in the location in which it was commissioned for use.
(5) Test unit preparation. (i) Prior to and during testing, a test
unit selected for enforcement testing will not be prepared, modified,
or adjusted in any manner by DOE unless such preparation, modification,
or adjustment is allowed by the applicable DOE test procedure, or is
authorized by the manufacturer in response to a specific modification
request by DOE. One test shall be conducted for each test unit in
accordance with the applicable test procedure prescribed in 10 CFR part
430 or part 431 of this chapter.
(ii) Prior to and during testing, a test unit selected for
enforcement testing shall not be prepared, modified, or adjusted in any
manner by the manufacturer. No quality control, testing or assembly
procedures shall be performed by the manufacturer 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) DOE may consider a test unit to be defective if such unit is
inoperative or is found to be in noncompliance due to failure of the
unit to operate according to the manufacturer's operating instructions.
DOE will notify the manufacturer if a test unit is received by the test
lab in a condition that may impact its performance. DOE may authorize
testing of an additional unit on a case-by-case basis.
(c) A test unit of a basic model subject to a design requirement
may be selected in accordance with the procedures under paragraph (b)
of this section. In such an instance, DOE will make a determination of
noncompliance for the basic model based on an examination of whether a
single unit of the basic model fails to comply with the applicable
design requirements.
0
8. Section 429.111 is added to read as follows:
Sec. 429.111 Basic model compliance.
(a) DOE will evaluate whether a basic model complies with an
applicable performance standard(s) based on testing conducted in
accordance with the applicable test procedure specified in 10 CFR part
430 or 431 of this chapter, and with the following sampling procedures:
(1) For all products, if the sample size is comprised of a single
unit, DOE will determine noncompliance for the basic model based solely
on the results of the single test. In such an instance, the sampling
plans in the appendices of this subpart do not apply.
(2) For products with applicable energy conservation standard(s) in
Sec. 430.32 of this chapter, and commercial pre-rinse spray valves,
illuminated exit signs, traffic signal modules and pedestrian modules,
commercial clothes washers, dedicated-purpose pool pumps, and metal
halide lamp fixtures, and compressors:
(i) If the sample size is comprised of two or three units, DOE will
apply appendix B of this subpart (Sampling Plan for Enforcement Testing
of Covered Equipment and Certain Low-Volume Covered Products) using a
sample size (n1) equal to the number of units tested to
determine if the basic model is noncompliant.
(ii) If the sample size is comprised of four or more units (up to
21), DOE will apply appendix A of this subpart (Sampling Plan for
Enforcement Testing of Covered Consumer Products and Certain High-
Volume Commercial Equipment) using a sample size equal to the total
number of units tested to determine if the basic model is noncompliant.
(3) For automatic commercial ice makers; commercial refrigerators,
freezers, and refrigerator-freezers; refrigerated bottled or canned
vending machines; commercial HVAC & WH products; walk-in cooler and
walk-in freezer panels, and walk-in cooler and walk-in freezer doors;
and walk-in cooler and walk-in freezer refrigeration systems, if the
sample size is comprised of two or more units (up to four), DOE will
apply appendix B of this subpart (Sampling Plan for Enforcement Testing
of Covered Equipment and Certain Low-Volume Covered Products) using a
sample size (n1) equal to the number of units tested to
determine if the basic model is noncompliant.
(4) For distribution transformers, if the sample size is comprised
of two or more units (up to five), DOE will apply appendix C of this
subpart (Sampling Plan for Enforcement Testing of Distribution
Transformers).
(5) For pumps subject to the standards specified in Sec.
431.465(a) of this chapter, DOE will determine if the basic model is
noncompliant based on the arithmetic mean of the sample (up to four
units).
[[Page 53705]]
(6) For uninterruptible power supplies, if a basic model is
certified for compliance to the applicable energy conservation
standard(s) in Sec. 430.32 of this chapter according to the sampling
plan in Sec. 429.39(a)(2)(iv)(A) or is not certified, DOE will make a
determination of noncompliance using a sample size of not more than 21
units and follow the sampling plan in appendix A of this subpart
(Sampling Plan for Enforcement Testing of Covered Consumer Products and
Certain High-Volume Commercial Equipment). If a basic model is
certified for compliance to the applicable energy conservation
standard(s) in Sec. 430.32 of this chapter according to the sampling
plan in Sec. 429.39(a)(2)(iv)(B), DOE will make a determination of
noncompliance using a sample size of at least one unit (up to four) and
follow the sampling plan in appendix D of this subpart (Sampling Plan
for Enforcement Testing of Uninterruptible Power Supplies).
(7) For electric motors and small electric motors, if the sample
size is comprised of five or more units (up to 20) DOE will apply
appendix E of this subpart (Sampling Plan for Enforcement Testing of
Electric Motors and Small Electric Motors) using a sample size
(n1) equal to the number of units tested to determine if the
basic model is noncompliant.
(8) DOE may make a determination of noncompliance based on a sample
size of less than four units (five for distribution transformers,
electric motors, and small electric motors) in limited circumstances
(e.g., when DOE makes a determination of noncompliance for a basic
model subject to design requirements; when DOE's test notice process
pursuant to Sec. 429.110(a)(3) results in a reduced sample size).
(b) DOE will evaluate whether a basic model complies with an
applicable design requirement(s) based on examination of a single unit
of the basic model, on design information, or pursuant to a test notice
issued under Sec. 429.110(b). In such an instance, the sampling plans
in the appendices of this subpart do not apply.
(c) If the results of any assessment test conducted pursuant to
Sec. 429.104 provides results that the basic model performed 25% or
worse than the applicable energy conservation standard, DOE may make a
determination of noncompliance for the basic model based solely on the
results of such test. In such an instance, the sampling plans in the
appendices of this subpart do not apply.
0
9. Section 429.112 is added to read as follows:
Sec. 429.112 Basis of noncompliance determination.
DOE may make a determination that a basic model does not comply
with an applicable energy conservation standard based on test data from
manufacturer or private labeler, another Federal agency, or a third-
party certification program; testing pursuant to Sec. Sec. 429.104 and
429.110 of this part; and/or an admission.
0
10. Section 429.114 is revised to read as follows:
Sec. 429.114 Notice of noncompliance determination and notice to
cease distribution of a basic model.
(a) In the event that a basic model is determined to be
noncompliant with an applicable energy conservation standard, DOE may
issue a notice of noncompliance determination to the manufacturer or
private labeler.
(1) The notice of noncompliance determination will notify the
manufacturer or private labeler that it is a prohibited act to
distribute in commerce a basic model that does not meet applicable
standards.
(2) The manufacturer or private labeler must, within 30 calendar
days of the issuance of the notice of noncompliance determination,
submit to DOE records, reports and other documentation pertaining to
the acquisition, ordering, storage, shipment, or sale of the basic
model(s) determined to be in noncompliance.
(b) In the event that DOE determines a manufacturer has failed to
comply with an applicable certification requirement with respect to a
particular basic model, DOE may issue a notice of noncompliance
determination to the manufacturer.
(1) The notice of noncompliance determination will notify the
manufacturer of its obligation to immediately comply with the
applicable certification requirement.
(2) The manufacturer must, within 30 calendar days of the issuance
of the notice of noncompliance determination, submit to DOE records,
reports and other documentation pertaining to the acquisition,
ordering, storage, shipment, or sale of the basic model.
(c) At least 30 calendar days prior to the issuance of a notice of
noncompliance determination, DOE will issue to the manufacturer or
private labeler a letter of intent stating DOE's intent to issue a
notice of noncompliance determination for the basic model.
0
11. Section 429.115 is added to read as follows:
Sec. 429.115 Petitions for reexamination.
(a) Within 30 calendar days after issuance of DOE's letter of
intent to issue a notice of noncompliance determination under Sec.
429.114, the manufacturer or private labeler may petition DOE to
reexamine such determination. Such petitions must be submitted to DOE
in writing, and must contain:
(1) The material issue(s) that the manufacturer or private labeler
has with the assessment and/or enforcement testing of the basic model;
(2) Complete test reports or AEDM information (if applicable) the
manufacturer or private labeler believes demonstrate the basic model
meets the applicable standard;
(3) All legal and other arguments that the manufacturer or private
labeler wishes to make in support of its position;
(4) Information regarding any previous representations of the basic
model's energy consumption, and if different than paragraph (a)(3) of
this section, the complete test reports or AEDM information in support
of such representations; and
(5) Any other pertinent material.
(b) Test reports submitted as a part of a petition must demonstrate
that the applicable DOE test procedure specified in 10 CFR part 430 or
part 431 of this chapter was followed in its entirety.
(c) The manufacturer or private labeler must, for each test report
submitted as a part of the petition, inform DOE if the tested units'
design, components, materials, manufacture date or date range, or
manufacture location differ in any way from the unit(s) of the basic
model (specified in the letter of intent) tested pursuant to Sec.
429.104 or 429.110. If no units of the basic model specified in the
letter of intent were tested pursuant to Sec. 429.104 or 429.110, the
manufacturer or private labeler must, for each test report submitted as
a part of the petition, inform DOE if the tested unit's design,
components, or materials differ in any way from the least efficient
model within such basic model.
(d) The manufacturer or private labeler must, for each test report
submitted as a part of the petition, inform DOE whether the tested
units were prepared, modified, or adjusted in any manner prior to and
during testing.
(e) In the event that, as a part of its petition, a manufacturer or
private labeler submits test reports for testing completed after the
date of issuance of the letter of intent, the manufacturer or private
labeler must provide DOE with documentation identifying the source of
the tested units and an explanation of
[[Page 53706]]
how the units were selected for testing. If the tested units were built
subsequent to the date of issuance of the letter of intent, the
manufacturer or private labeler must provide documentation
demonstrating whether and how many units were available in inventory or
from a retailer on the date of testing.
(f) Failure to submit a petition as specified in this section
constitutes a waiver of the right to petition DOE to reexamine the
pending determination.
(g) DOE will only consider validly submitted petitions, as required
in paragraphs (a) through (e) of this section.
(h) DOE may require that the manufacturer or private labeler
provide information or documentation to supplement its petition.
(i) Upon review of a validly submitted petition, DOE may modify or
leave unchanged DOE's pending determination of noncompliance of the
basic model.
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12. Section 429.116 is revised to read as follows:
Sec. 429.116 Additional certification testing requirements.
If DOE determines that independent, third-party testing is
necessary to ensure compliance with the rules of this part, 10 CFR part
430, or part 431, a manufacturer must base its certification of a basic
model under subpart B of this part on independent, third-party
laboratory testing.
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13. Section 429.117 is added to read as follows:
Sec. 429.117 Notice of allowance.
(a) After issuance of a noncompliance determination under Sec.
429.114(a), a manufacturer or private labeler may modify a noncompliant
basic model in such manner as to make it comply with the applicable
standard(s).
(b) Prior to distribution in commerce in the United States of the
modified model, the manufacturer or private labeler must request in
writing a notice of allowance from DOE.
(c) The manufacturer or private labeler's request to DOE for a
notice of allowance must include:
(1) A detailed explanation of all modifications made, including a
clear explanation of all features removed or added to make the model
comply with the applicable standard(s).
(2) Complete test data, which satisfy the sampling requirements
under Sec. 429.11 and the product-specific sections in subpart B of
this part, and demonstrate that:
(i) The applicable DOE test procedure specified in 10 CFR part 430
or part 431 of this chapter was followed in its entirety; and
(ii) The modified basic model meets the applicable standard when
applying the appropriate sampling provisions under subpart B of this
part.
(d) DOE may require that the manufacturer or private labeler's
testing in support of the request for a notice of allowance be
performed at an independent, third-party testing facility.
(e) The manufacturer or private labeler must treat the modified
basic model as a new basic model, to include:
(1) The modified basic model must be assigned a new basic model
number;
(2) Any model within the new basic model must be assigned a new
individual model number; and
(3) Such new basic model must be certified in accordance with the
provisions of this part.
(f) The manufacturer or private labeler must maintain records for
the modified basic model, including records of serial numbers of and
the modifications made to any units of the noncompliant basic model in
existing stock.
(g) Such records shall be organized and indexed in a fashion that
makes them readily accessible for review by DOE upon request.
(h) The manufacturer or private labeler must retain these records
consistent with Sec. 429.71.
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14. Section 429.118 is revised to read as follows:
Sec. 429.118 Injunctions.
(a) If a manufacturer, private labeler or any other person as
required fails to cease engaging in a prohibited act, DOE may
immediately seek an injunction. In such instance, DOE will notify the
manufacturer, private labeler or any other person as required, of the
prohibited act(s) at issue and DOE's intent to seek a judicial order
enjoining the prohibited act(s).
(b) DOE may, in its discretion, provide the manufacturer, private
labeler or other person, an opportunity to deliver to DOE, within 15
calendar days of the notification provided pursuant to paragraph (a) of
this section, a corrective action and compliance plan detailing the
steps it will take to ensure that the prohibited act(s) cease(s). DOE
will review the plan and, if satisfactory, monitor implementation of
such plan. If DOE determines the manufacturer, private labeler or other
person is not effectively implementing such plan, DOE may seek an
injunction immediately upon notifying the manufacturer, private labeler
or other person of this decision and DOE's renewed intent to seek an
injunction.
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15. Section 429.120 is revised to read as follows:
Sec. 429.120 Maximum civil penalty.
Any person who knowingly commits a prohibited action listed in
Sec. 429.102(a) may be subject to assessment of a civil penalty of no
more than $460 for each violation. As to Sec. 429.102(a)(1) with
respect to failure to certify, and as to Sec. 429.102(a)(2), and (5)
through (12), each unit of a basic model of a covered product or
covered equipment distributed shall constitute a separate violation.
For violations of Sec. 429.102(a)(1), (3), and (4), each day of
noncompliance shall constitute a separate violation for each basic
model at issue.
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16. Section 429.122 is revised to read as follows:
Sec. 429.122 Notice of proposed civil penalty.
(a) The General Counsel (or delegee) shall provide notice of any
proposed civil penalty.
(b) The notice of proposed civil penalty shall:
(1) Include the amount of the proposed civil penalty;
(2) Include a statement of the material facts constituting the
alleged violation; and
(3) Inform the person of the opportunity to elect in writing within
30 calendar days of receipt of the notice to have the procedures of
Sec. 429.128 (in lieu of those of Sec. 429.126) apply with respect to
the penalty.
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17. Section 429.124 is revised to read as follows:
Sec. 429.124 Election of procedures.
(a) In responding to a notice of proposed civil penalty, the
respondent may:
(1) Request, in writing, an administrative hearing before an
Administrative Law Judge (ALJ) under Sec. 429.126;
(2) Within 30 calendar days of issuance of such notice, elect in
writing to have the procedures of Sec. 429.128 apply; or
(3) Submit a signed compromise agreement (provided by DOE pursuant
to Sec. 429.132), to settle the matter for the civil penalty amount
and conditions provided by DOE within such agreement.
(b) Any election to have the procedures of Sec. 429.128 apply may
not be revoked except with the consent of the General Counsel (or
delegee).
(c) If the respondent fails to respond to a notice issued under
Sec. 429.120 or otherwise fails to indicate its election of
procedures, DOE shall refer the civil penalty action to an ALJ for a
hearing under Sec. 429.126.
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18. Section 429.126 is revised to read as follows:
[[Page 53707]]
Sec. 429.126 Administrative law judge hearing and appeal.
(a) Pursuant to Sec. 429.124, DOE shall refer a civil penalty
action brought under Sec. 429.122 to an Administrative law judge
(ALJ), who shall afford the respondent an opportunity for an agency
hearing on the record in accordance with the procedures of subpart D of
this part.
(b) After consideration of all matters of record in the proceeding,
the ALJ will issue a recommended decision and, if appropriate,
recommend a civil penalty. The decision will include a statement of the
findings and conclusions, and the reasons therefore, on all material
issues of fact, law, and discretion.
(c)(1) The General Counsel (or delegee) shall adopt, modify, or set
aside the conclusions of law or discretion contained in the ALJ's
recommended decision and shall issue a final order, which may assess a
civil penalty. The General Counsel (or delegee) shall include in the
final order the ALJ's findings of fact and the reasons for the final
agency actions.
(2) Any person against whom a penalty is assessed under this
section may, within 60 calendar days after the date of the final order
assessing such penalty, institute an action in the United States Court
of Appeals for the appropriate judicial circuit for judicial review of
such order in accordance with chapter 7 of title 5, United States Code.
The court shall have jurisdiction to enter a judgment affirming,
modifying, or setting aside in whole or in part, the final order, or
the court may remand the proceeding to the Department for such further
action as the court may direct.
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19. Section 429.128 is revised to read as follows:
Sec. 429.128 Immediate issuance of order assessing civil penalty.
(a) A respondent may elect within 30 calendar days of issuance of a
notice of proposed civil penalty for DOE to issue an order assessing
the civil penalty. In such case, the General Counsel (or delegee) shall
issue an order assessing the civil penalty proposed in the notice of
proposed penalty under Sec. 429.122, not sooner than 60 calendar days
after the respondent's receipt of the notice of proposed penalty.
(b) If within 60 calendar days of receiving the assessment order in
paragraph (a) of this section the respondent does not pay the civil
penalty amount, DOE shall institute an action in the appropriate United
States District Court for an order affirming the assessment of the
civil penalty. The court shall have authority to review de novo the law
and the facts involved and shall have jurisdiction to enter a judgment
enforcing, modifying, and enforcing as so modified, or setting aside in
whole or in part, such assessment.
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20. Section 429.132 is amended by adding paragraph (e) to read as
follows:
Sec. 429.132 Compromise and settlement.
* * * * *
(e) If a settlement is agreed to by the parties, a compromise
agreement setting forth the terms of the agreement shall be signed by
the respondent and DOE, and the General Counsel (or delegee) shall set
forth a final order adopting the compromise agreement and assessing any
civil penalty. The case shall be closed in accordance with the terms of
the settlement.
Appendix A to Subpart C of Part 429 [Amended]
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21. Appendix A to subpart C of part 429, paragraph (a), is amended by
removing the reference ``Sec. 429.57(e)(1)(i)'' and adding in its
place, ``Sec. 429.111''.
Appendix B to Subpart C of Part 429 [Amended]
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22. Appendix B to subpart C of part 429, paragraph (a), is amended by
removing the reference ``Sec. 429.57(e)(1)(ii)'' and adding in its
place, ``Sec. 429.111''.
PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND
INDUSTRIAL EQUIPMENT
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23. The authority citation for part 431 continues to read as follows:
Authority: 42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
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24. Appendix A to subpart U of part 431 is redesignated as appendix E
to subpart C of part 429.
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25. Revise the heading to newly redesignated appendix E to subpart C of
part 429 to read as follows:
Appendix E to Subpart C of Part 429--Sampling Plan for Enforcement
Testing of Electric Motors and Small Electric Motors
* * * * *
Subpart U--[Removed and Reserved]
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26. Remove and reserve subpart U of part 431, consisting of Sec. Sec.
431.381 through 431.387.
[FR Doc. 2020-16690 Filed 8-28-20; 8:45 am]
BILLING CODE 6450-01-P