Energy Conservation Program: Certification, Compliance, and Enforcement Requirements for Certain Consumer Products and Commercial and Industrial Equipment, 652-675 [E9-30887]

Agencies

• DEPARTMENT OF ENERGY

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



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Part V





Department of Energy





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10 CFR Parts 430 and 431



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

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

[[Page 652]]


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DEPARTMENT OF ENERGY

10 CFR Parts 430 and 431

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


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

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Michael McCabe, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121, (202) 586-9155. E-mail: Michael.McCabe@ee.doe.gov.
    Michael Kido, U.S. Department of Energy, Office of the General 
Counsel, GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-
0121, (202) 586-9507. E-mail: Michael.Kido@hq.doe.gov.


SUPPLEMENTARY INFORMATION: 

I. Background
II. Summary of Today's Action
III. Discussion of Comments
    A. Energy Policy Act of 1992--Commercial Heating, Ventilating, 
Air-Conditioning and Water Heating Equipment; Energy Policy Act of 
2005--Very Large Commercial Packaged Air Conditioning and Heating 
Equipment
    1. Voluntary Industry Certification Program Requirements
    2. Criteria for Validation of Alternative Efficiency 
Determination Methods
    3. Differences in Treatment Between Voluntary Industry 
Certification Program Participants and Non-Participants
    4. Reporting for Voluntary Industry Certification Programs
    5. Enforcement Testing
    B. Energy Policy Act of 2005--Consumer Products
    C. Energy Policy Act of 2005--Commercial Equipment
    D. Distribution Transformers
    E. General Requirements
IV. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Congressional Notification
V. Approval of the Office of the Secretary

I. Background

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

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

II. Summary of Today's Action

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

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

III. Discussion of Comments

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

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

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

[[Page 656]]

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

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

[[Page 657]]

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

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

[[Page 658]]

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

[[Page 659]]

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

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

B. Energy Policy Act of 2005--Consumer Products

    Section 323(b)(3) of EPCA, 42 U.S.C. 6293(b)(3), requires a test 
procedure be reasonably designed to produce results measuring energy 
efficiency or energy use and not be unduly burdensome to conduct. In 
the July 2006 NOPR, DOE proposed the use of a statistically meaningful 
sampling procedure for selecting test specimens of consumer products to 
reduce the testing burden on manufacturers, while giving sufficient 
assurance that the true mean energy efficiency of a basic model meets 
or exceeds the rated measure of energy efficiency or energy use. DOE 
stated that it reviewed sampling plans for consumer products and 
commercial and industrial equipment which could provide guidance on how 
many and which units to test to determine compliance.\8\ 71 FR 42193. 
DOE considered four factors when proposing sampling plans: (1) 
Minimizing a manufacturer's testing time and costs; (2) assuring 
compatibility with other sampling plans DOE has promulgated; (3) 
providing a highly valid statistical probability that basic models that 
are tested meet the applicable energy conservation standards; and (4) 
providing a highly valid statistical probability that a manufacturer 
preliminarily found to be in noncompliance will actually be in 
noncompliance. 71 FR 42193.
---------------------------------------------------------------------------

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

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

[[Page 660]]

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

C. Energy Policy Act of 2005--Commercial Equipment

    As part of the July 2006 NOPR,