Energy Conservation Program: Alternative Efficiency Determination Methods and Compliance for Commercial HVAC, Refrigeration, and Water Heating Equipment, 144-152 [2014-30821]
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Federal Register / Vol. 80, No. 2 / Monday, January 5, 2015 / Rules and Regulations
DEPARTMENT OF ENERGY
10 CFR Part 429
[Docket No. EERE–2011–BT–TP–0024]
RIN 1904–AC46
Energy Conservation Program:
Alternative Efficiency Determination
Methods and Compliance for
Commercial HVAC, Refrigeration, and
Water Heating Equipment
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Final rule.
AGENCY:
The U.S. Department of
Energy (DOE) is revising its regulations
governing DOE verification testing of
industrial equipment covered by EPCA
rated with alternative efficiency
determination methods (AEDMs). These
regulations arose from a negotiated
rulemaking effort on issues regarding
the certification of commercial heating,
ventilating, air-conditioning (HVAC),
water heating (WH), and refrigeration
equipment.
DATES: Effective: February 4, 2015.
ADDRESSES: This rulemaking can be
identified by docket number EERE–
2011–BT–TP–0024 and/or RIN 1904–
AC46.
Docket: The docket is available for
review at www.regulations.gov,
including Federal Register notices,
public meeting attendee lists and
transcripts, comments, and other
supporting documents/materials. All
documents in the docket are listed in
the www.regulations.gov index.
However, not all documents listed in
the index may be publicly available,
such as information that is exempt from
public disclosure.
FOR FURTHER INFORMATION CONTACT: Ms.
Ashley Armstrong, U.S. Department of
Energy, Office of Energy Efficiency and
Renewable Energy, Building
Technologies Office, EE–2J, 1000
Independence Avenue SW.,
Washington, DC 20585–0121. Email:
Ashley.Armstrong@ee.doe.gov; and Ms.
Laura Barhydt, U.S. Department of
Energy, Office of the General Counsel,
Forrestal Building, GC–32, 1000
Independence Avenue SW.,
Washington, DC 20585. Email:
Laura.Barhydt@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Authority and Background
Authority
Background
II. Discussion of Specific Revisions to DOE’s
Regulations for Alternative Efficiency
Determination Methods Verification
Testing
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III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility
Act
C. Review Under the Paperwork Reduction
Act
D. Review Under the National
Environmental Policy Act
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates
Reform Act of 1995
H. Review Under the Treasury and General
Government Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General
Government Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Review Under Section 32 of the Federal
Energy Administration Act of 1974
M. Congressional Notification
IV. Approval of the Office of the Secretary
I. Authority and Background
Authority
Title III of the Energy Policy and
Conservation Act of 1975, as amended
(‘‘EPCA’’ or, in context, ‘‘the Act’’) sets
forth a variety of provisions designed to
improve energy efficiency. Part A of
Title III (42 U.S.C. 6291–6309) provides
for the Energy Conservation Program for
Consumer Products Other Than
Automobiles. The National Energy
Conservation Policy Act (NECPA), Pub.
L. 95–619, amended EPCA to add Part
A–1 of Title III, which established an
energy conservation program for certain
industrial equipment. (42 U.S.C. 6311–
6317) 1 The Department of Energy
(‘‘DOE’’) is charged with implementing
these provisions.
Under EPCA, this program consists
essentially of four parts: (1) Testing; (2)
labeling; (3) Federal energy conservation
standards; and (4) certification and
enforcement procedures. The Federal
Trade Commission (FTC) is primarily
responsible for the labeling of consumer
products and DOE implements the
remainder of the program. The testing
requirements consist of test procedures
that manufacturers of covered products
and equipment must use (1) as the basis
for certifying to DOE that their products
comply with the applicable energy
conservation standards adopted under
EPCA, and (2) for making
representations about the efficiency of
those products and equipment.
Similarly, DOE must use these test
requirements to determine whether the
products comply with any relevant
standards promulgated under EPCA. For
certain consumer products and
industrial equipment, DOE’s existing
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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testing regulations allow the use of an
alternative efficiency determination
method (AEDM) or an alternative rating
method (ARM), in lieu of actual testing,
to simulate the energy consumption or
efficiency of certain basic models of
covered products under DOE’s test
procedure conditions.
In addition, EPCA (through 42 U.S.C.
6299–6305 and 6316) authorizes DOE to
enforce compliance with the energy and
water conservation standards (all nonproduct specific references herein
referring to energy use and consumption
include water use and consumption; all
references to energy efficiency include
water efficiency) established for certain
consumer products and industrial
equipment. (42 U.S.C. 6299–6305
(consumer products), 6316 (industrial
equipment)) DOE has promulgated
enforcement regulations that include
specific certification and compliance
requirements. See 10 CFR part 429; 10
CFR part 431, subparts B, U, and V.
Background
On February 26, 2013, members of the
Appliance Standards and Rulemaking
Federal Advisory Committee (ASRAC)
unanimously decided to form a working
group to engage in a negotiated
rulemaking effort on the certification of
the compliance of commercial HVAC,
WH, and refrigeration equipment. A
notice of intent to form the Commercial
Certification Working Group (‘‘the
Working Group’’) was published in the
Federal Register on March 12, 2013, to
which DOE received 35 nominations. 78
FR 15653. On April 16, 2013, DOE
published a notice of open meeting that
announced the first meeting and listed
the 22 nominated individuals (and their
affiliations) who were selected to serve
as members of the Working Group, in
addition to two members from ASRAC,
and one DOE representative. 78 FR
22431. The members of the Working
Group were selected to ensure a broad
and balanced array of stakeholder
interests and expertise, and included
efficiency advocates, manufacturers, a
utility representative, and third-party
laboratory representatives.
During the Working Group’s first
meeting, Working Group members voted
to expand the scope of the negotiated
rulemaking efforts to include
developing methods of estimating
equipment performance based on AEDM
simulations. AEDMs are computer
modeling or mathematical tools that
predict the performance of non-tested
basic models. They are derived from
mathematical and engineering
principles that govern the energy
efficiency and energy consumption
characteristics of a type of covered
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equipment. AEDMs, when properly
developed, can provide a relatively
straight-forward and reasonably
accurate means to predict the energy
usage or efficiency characteristics of a
basic model of a given covered product
or equipment and reduce the burden
and cost associated with testing. Where
authorized by regulation, AEDMs enable
manufacturers to rate and certify the
compliance of their basic models by
using the projected energy use or energy
efficiency results derived from these
simulation models in lieu of testing.
The Working Group discussed the
particular elements that the AEDM
simulations should address for each
equipment type and other related
considerations, including validation
requirements for AEDMs, DOE
verification of models rated with an
AEDM, and the consequences for
misuse of the AEDM construct. As
required, the Working Group submitted
an interim report to ASRAC on June 26,
2013, summarizing the group’s
recommendations regarding AEDMs for
commercial HVAC, WH, and
refrigeration equipment. The interim
report to ASRAC can be found at
https://www.regulations.gov/
#!documentDetail;D=EERE-2013-BTNOC-0023-0046. ASRAC subsequently
voted unanimously to approve the
recommendations in the interim report
for AEDMs.
On October 22, 2013, DOE published
in the Federal Register a Supplemental
Notice of Proposed Rulemaking (‘‘the
October 2013 AEDM SNOPR’’) regarding
alternative efficiency determination
methods, basic model definitions, and
certification compliance dates for
commercial HVAC, refrigeration, and
WH equipment. 78 FR 62472. The
October 2013 AEDM SNOPR also
proposed a process for DOE to conduct
verification testing to ensure that
models rated with an AEDM perform to
their certified ratings. As part of the
verification testing process, the Working
Group recommended that a
manufacturer may elect to have a DOE
representative and a manufacturer’s
representative on site for the initial test
of up to 10 percent of the basic models
that they have rated with an AEDM.
DOE adopted most of the provisions
from the October 2013 AEDM SNOPR in
a December 31, 2013 final rule (‘‘the
December 2013 final rule’’). 78 FR
79579. However, commenters raised
concerns over DOE’s proposal allowing
manufacturers to witness verification
tests. In reviewing their comments, DOE
determined that its proposed regulatory
text, which was based in large part on
the Working Group’s recommendation,
145
may not have been sufficiently clear. As
a result, DOE published a Supplemental
Notice of Proposed Rulemaking (‘‘the
September 2014 SNOPR’’) clarifying the
process for witnessing the test set-up as
part of the AEDM verification process.
The Department’s intent was to
establish a clear process while ensuring
that the regulatory text reflects the
recommendations of the Working
Group. 79 FR 57842 (September 26,
2014).
The final rule adopts the approach
proposed in the September 2014
SNOPR.
II. Discussion of Specific Revisions to
DOE’s Regulations for Alternative
Efficiency Determination Methods
Verification Testing
As described in the background
section of this notice, DOE proposed
clarifications regarding witnessing the
verification test set-up for models rated
with an AEDM. See 79 FR 57842. DOE
received three comments in response—
two from manufacturers and one from a
trade association. These comments are
discussed in more detail below, and a
full set of comments can be found at:
https://www.regulations.gov/
#!docketDetail;D=EERE-2011-BT-TP0024.
TABLE II–1—STAKEHOLDERS THAT SUBMITTED COMMENTS TO THE SNOPR
Acronym
Air-Conditioning, Heating, and Refrigeration Institute ....................................
Continental Refrigerator .................................................................................
Hussmann Corporation ...................................................................................
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Name
AHRI ..................................................
Continental .........................................
Hussmann ..........................................
Manufacturer Presence During
Verification Testing
DOE proposed regulatory text to state
explicitly that manufacturers may elect
to witness the test set-up of verification
tests. DOE proposed this clarification to
better align the regulatory text with the
Working Group’s recommendation on
this issue. See 79 FR at 57845.
Continental suggested that, given its
own problematic experiences with
third-party testing, DOE should allow
manufacturers the option to be present
for the duration of any verification test
to ensure that no issues requiring
additional manufacturer input arise.
(Continental, No. 0111 at p.1)
Continental went on to state that they
understand and concur with DOE’s
decision to only allow manufacturers to
be present for the test setup, given
manufacturer’s ability to review the test
data, calculations and final results. (Id.)
DOE’s proposed approach to
verification testing uses a number of
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different steps to help ensure that
commercial HVAC, WH, and
refrigeration equipment is tested
correctly. First, the proposal would
allow manufacturers to witness the setup for AEDM verification testing for a
selection of basic models rated with an
AEDM. Second, if a lab encounters an
issue during a verification test and
requires additional information to test
in accordance with the applicable DOE
test procedure, under already existing
regulations, DOE may coordinate a
meeting between the manufacturer and
the test facility to resolve that issue. See
10 CFR 429.70(c)(5)(iv)(E). Third, if a
model performs worse than its certified
rating during testing, DOE also already
provides the manufacturer with the test
report, and manufacturers may present
any claims that the test was performed
incorrectly. See 10 CFR 429.70(c)(5)(v).
In light of these pre-existing provisions,
expanding the witness testing
provisions beyond the Working Group’s
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Organization type
Trade Association.
Manufacturer.
Manufacturer.
recommendation to allow manufacturers
to witness the set-up of the test is
unnecessary. Consequently, consistent
with the Working Group’s
recommendation, DOE is adopting
regulatory text that allows
manufacturers to elect to witness the
test set-up for a basic model. That
election would be made as part of that
basic model’s certification report.
10 Percent Witness Testing Limitation
In the September 2014 SNOPR, DOE
proposed to maintain that a
manufacturer may select up to 10
percent of its certified basic models
rated with an AEDM to witness the setup of any verification test performed by
DOE. DOE remarked that this threshold
was negotiated through detailed
discussions with the Working Group,
who collectively concluded that this
level would be acceptable to both
industry and efficiency advocates while
not being overly burdensome for DOE to
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administer. DOE noted that
manufacturers were not required to
select 10 percent of eligible basic
models and that manufacturers could
decline to attend the test set-up when
notified. DOE also noted that the 10
percent was a limit on how many basic
models a manufacturer might pre-select
for witnessing test set-up; it was not an
indication that DOE would test 10
percent of that manufacturer’s basic
models. 79 FR at 57846.
Hussmann expressed little confidence
that a third-party laboratory can
properly set-up and test a remote
supermarket case because third-party
laboratories do not understand the
issues to look for prior to and during an
actual test—issues like discharge
temperature and air flow. Hussmann
recommended that remote supermarket
case manufacturers should be allowed
to be present at all test set-ups (rather
than simply 10 percent) and data
collection periods (rather than just setup) until the third-party laboratories
have established thorough knowledge of
how to prepare a remote supermarket
case to be tested. (Hussmann, No. 0110
at pp. 1–2) Hussmann provided no
substantiating data or other information
for its assertions.
While DOE acknowledges
manufacturer concerns that their
equipment is tested properly, DOE
disagrees that supermarket case
manufacturers (along with other
commercial refrigeration equipment
manufacturers who will be similarly
affected by this provision) should be
allowed to witness the set-up and data
collection of all remote condensing
commercial refrigerator and freezer
verification tests. The Department
reiterates its position from the Working
Group negotiation meetings that thirdparty test facilities should have
sufficient expertise in conducting the
relevant test and that DOE’s test
procedures should be written in a
manner that allows the test facility to
administer the test procedure without
DOE’s or a manufacturer’s supervision.
([Docket No. EERE–2013–BT–NOC–
0023], Department of Energy, Public
Meeting Transcript, No. 0041 pp. 34 and
36)
Moreover, the Working Group, which
included Hussmann, unanimously
voted in favor of the 10 percent
approach detailed in the September
2014 NOPR. ([Docket No. EERE–2013–
BT–NOC–0023], 2013–06–24 Appliance
Standards and Rulemaking Federal
Advisory Committee Commercial
HVAC, WH, and Refrigeration
Certification Working Group Alternative
Efficiency Determination Methods, No.
0046 at p. 5) After reaching a consensus
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among the broad array of interests
represented at the numerous ASRAC
meetings that led to the development of
this approach, DOE is highly reluctant,
without further substantive and
compelling data, to alter the
comprehensively crafted and
unanimously supported
recommendation set forth by the
Working Group.
Applying the 10 Percent Limit
Continental commented that it
appreciated DOE’s efforts to clarify the
rules regarding witnessing the test setup for up to 10 percent of the
manufacturer’s certified basic models
rated with an AEDM. Continental
sought, however, additional clarity
regarding DOE’s proposal in the form of
additional sample scenarios to further
explain DOE’s approach. (Continental,
No. 0111 at p. 2)
In response to Continental’s request,
DOE is clarifying that a manufacturer
may witness the test set-up for up to 10
percent of the basic models rated with
an AEDM per validation class submitted
to DOE for certification. The validation
classes for commercial HVAC, WH, and
refrigeration equipment can be found in
10 CFR 429.70(c)(2)(iv). As an example,
if a manufacturer submits for
certification 100 basic models of single
package vertical air conditioners rated
with an AEDM and 100 basic models of
package terminal air conditioners rated
with an AEDM, then the manufacture
may elect to witness the test set-up for
up to 10 single package vertical air
conditioners and 10 package terminal
air conditioners because single package
vertical air conditioners and package
terminal air conditioners fall into
separate validation classes. In contrast,
if a manufacturer submits to DOE for
certification 100 single package vertical
air conditioners rated with an AEDM
and 100 single package vertical heat
pumps rated with an AEDM, then the
manufacturer may elect to witness the
test set-up no more than 20 basic
models made up of any combination of
single package vertical air conditioners
and/or single package vertical heat
pumps because single package vertical
air conditioners and single package
vertical heat pumps are part of the same
validation class. The manufacturer may
select any combination of models rated
with an AEDM within the same
validation class for witnessing the test
set-up of a verification test.
Further, DOE is clarifying that if a
manufacturer submits for certification
fewer than 10 basic models rated with
an AEDM per validation class, then the
manufacturer may elect to witness the
verification test set-up for one basic
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model from that validation class.
Manufacturers that submit for
certification 10 or more basic models
rated with an AEDM per validation class
must use the following method to
determine the maximum number of
basic models for which it may witness
the verification test set-up. The
manufacturer should first calculate 10
percent of the total number of basic
models rated with an AEDM per
validation class, and then truncate the
resulting product. For example, if a
manufacturer submits for certification
56 water source heat pump basic models
rated with an AEDM, then the
manufacturer may elect 5 water source
heat pump basic models to witness the
verification test set-up.
DOE plans to provide additional
examples in a separate guidance
document.
Additionally, DOE notes that if a
manufacturer selects one or more
individual models per basic model then
DOE considers the manufacturer to have
selected the entire basic model,
including all individual models
associated with it as a model for which
the manufacturer opts to witness the
verification test set-up. That basic
model will count towards the total
number of basic models for which the
manufacturer has elected to witness the
verification test set-up and is subject to
the 10 percent limit.
Consistent with the above discussion,
this final rule adopts regulations
allowing manufacturers to witness the
set-up of a selection of verification test
performed by DOE. Manufacturers may
select up to 10 percent of its basic
models per validation class submitted to
DOE for certification and rated with an
AEDM.
The Department also proposed a
framework to address situations where a
manufacturer exceeds the 10 percent
limit. See 79 FR at 57846. If the unit is
obtained through retail channels, DOE
will review the certification
submissions from the manufacturer that
were on file as of the date DOE
purchased a basic model. If the unit is
obtained directly from the
manufacturer, DOE will review the
certification submissions from the
manufacturer that were on file as of the
date DOE notifies the manufacturer that
the basic model has been selected for
testing. DOE will review the
certification submissions from the
manufacturer to determine if the
manufacturer has chosen to be present
for testing of the selected basic model.
DOE will also verify that the
manufacturer has not selected more
than 10 percent of the manufacturer’s
basic models per validation class rated
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with an AEDM and submitted to DOE
for certification. If DOE discovers that
the manufacturer has exceeded the 10
percent limit, DOE will notify the
manufacturer of this fact and deny its
request to be present for the testing of
the selected basic model. The
manufacturer must update its
certification submission to ensure it has
selected no more than 10 percent of its
basic models per validation class rated
with an AEDM to witness the test setup for any future verification testing.
See id. DOE received no comments on
this aspect of the proposal and is
adopting it in this final rule.
Retesting
In the September 2014 SNOPR, DOE
proposed that the 10 percent
requirement would apply to all of the
basic models per validation class rated
with an AEDM that are submitted to
DOE for certification by a given
manufacturer no matter how many
AEDMs a manufacturer has used to
develop its ratings. See id. DOE
proposed that it would perform testing
without a manufacturer’s representative
present for each basic model DOE
selects for assessment testing unless
either: (1) The manufacturer has elected
to have the opportunity to witness the
test set-up as part of its allocated 10
percent; or (2) the manufacturer requires
the basic model to be started only by a
factory-trained installer per the
installation manual instructions. For
those basic models that a manufacturer
has requested to witness the initial
verification test set-up, the
manufacturer would be unable to
request that the unit be retested. The
results from this initial test would be
used to make a definitive determination
regarding the validity of the basic
model’s rating from the AEDM. For
those basic models that are initially
tested without the manufacturer present
for test set-up, a manufacturer would be
automatically eligible to request a retest
for those basic models where the initial
results indicate a potential rating issue
(non-compliance or discrepancy with
the certified rating). See id.
AHRI commented that DOE’s proposal
that a manufacturer forfeits any
opportunity to request a retest of the
basic model if the manufacturer’s
representative is present for the initial
test set-up for any reason is too severe.
AHRI added that the provision
incorrectly assumes that all problems
that may arise during the course of an
efficiency test are related to an issue
involving the set-up of the unit. AHRI
agreed with this proposal insofar as it
limits the manufacturer’s ability to
request a retest because of a set-up
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issue. However, if some other problem
occurs during the testing which is
unrelated to any set-up procedure, the
manufacturer should still have the
option to request a retest. AHRI
suggested that the language be rewritten
to state, ‘‘If a manufacturer’s
representative is present for the initial
test set-up for any reason, the
manufacturer forfeits any opportunity to
request a retest of the basic model based
on a claim that the unit was set up
improperly.’’ (AHRI, No. 0112 at 2)
DOE disagrees with AHRI’s
assessment. The Working Group
unanimously recommended that
manufacturers who are on-site for the
test set-up of a verification test would
not be allowed to automatically request
a retest. ([Docket No. EERE–2013–BT–
NOC–0023], Department of Energy,
2013–06–24 Appliance Standards and
Rulemaking Federal Advisory
Committee Commercial HVAC, WH, and
Refrigeration Certification Working
Group Alternative Efficiency
Determination Methods, No. 0046 at p.
5)] Additionally, attending the set-up of
a verification test is optional. As
proposed in the September 2014
SNOPR, when DOE selects a model for
verification testing and the
manufacturer has elected in its
certification report to witness that
model’s testing set-up, DOE will alert
the manufacturer of its testing selection.
At this point, the manufacturer may
decide whether to be present at the setup of the verification test. 79 FR at
57846.
DOE also disagrees with AHRI’s
suggestion to allow manufacturers to
automatically require the Department to
retest for reasons other than improper
set-up. In the case where a model fails
to meet its certified rating, DOE
provides the manufacturer with all
documentation related to the test set-up,
test conditions, and test results for the
unit. At this time the manufacturer may
present claims regarding the validity of
the test. 10 CFR 429.70(c)(5)(v). If the
manufacturer identifies problems that
occurred during the test that impact the
validity of the test (e.g., a
malfunctioning measurement device),
DOE would consider the test to be
invalid. DOE does not make compliance
determinations based on invalid testing
and would retest the sample unit to
obtain valid test results. DOE does not
believe that, in the absence of any
problems with the conduct of the
verification test, it is necessary to permit
the retesting of a unit when a
manufacturer has already attended the
verification test’s set-up. Consequently,
DOE’s adopted approach does not
permit the retesting of a basic model
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147
under these circumstances. (In contrast,
for those basic models that are initially
tested without the manufacturer present
for test set-up, a manufacturer would be
automatically eligible to request a retest
for those basic models where the initial
results indicate a potential rating issue.)
DOE Notification to Manufacturers
In the September 2014 SNOPR, DOE
proposed the following scenarios for
notifying the manufacturer if DOE
conducts AEDM verification testing on
a basic model for which a manufacturer
elected to witness the test set-up. If the
unit is obtained through retail channels,
DOE would notify the manufacturer of
the basic model’s selection for testing
and provide the manufacturer the
option to be present for test set-up once
the unit has arrived at the test laboratory
and is scheduled to be tested. If the
manufacturer does not respond within
five calendar days, the manufacturer
would waive the option to be present for
test set-up, and DOE would then
proceed with the test set-up without a
manufacturer’s representative present. If
DOE has obtained a unit directly from
the manufacturer, DOE would provide
the manufacturer with the option to be
present for test set-up at the time the
unit is ordered. DOE would then specify
the date (not less than five calendar
days) by which the manufacturer would
notify DOE whether the manufacturer
chooses to have a representative
present. If the manufacturer does not
notify DOE of its choice by the date
specified, the manufacturer would
waive the option to be present for test
set-up. DOE would then proceed with
the test set-up without a manufacturer’s
representative present. DOE also notes
that any time a manufacturer’s
representative requests to be on-site for
the test set-up, a DOE representative
would also be present at the third-party
test facility. Additionally, 10 CFR
429.70(c)(5)(iv)(A) would continue to
apply prior to, during, and after the
manufacturer’s representative is on site;
that is, the manufacturer’s
representative cannot communicate
with a third-party test facility regarding
verification testing without the DOE
representative present. DOE received no
comments on this aspect of the proposal
and is adopting it in this final rule.
Supplemental Information
DOE proposed to amend its
regulations to provide that information
necessary for testing certain products
(such as the override code for controls
that would otherwise prevent the
completion of testing in accordance
with the applicable DOE test procedure)
must accompany the certification
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submission for a basic model of those
products. DOE also proposed that
failure to provide this information
would preclude a manufacturer being
present for testing of a basic model of
its product. If, in the course of testing
a selected basic model, DOE discovers
that the necessary information for
completing the test has not been
provided, DOE will contact the
manufacturer to obtain that information
and complete the testing. The
September 2014 SNOPR also explained
that the failure to submit with a
certification report equipment-specific,
supplemental information necessary to
operate the basic model is a prohibited
act as described at 10 CFR 429.102(a)(1),
subject to the maximum civil penalty
described at 10 CFR 429.120. 79 FR at
57845.
AHRI commented that it did not recall
any discussion by the Working Group
where the failure to supply
supplemental information would be
considered a prohibited act. AHRI
asserted that DOE’s proposed approach
was an inappropriate and unnecessary
expansion of the scope of prohibited
acts. AHRI added that, if a manufacturer
does not provide supplemental
information, the model will likely fail
testing. AHRI also stated that, because a
manufacturer cannot provide additional
information at any time other than at
certification, a model would fail the
verification test if the manufacturer
failed to provide the required
information. At that point, DOE would
be able to apply fully the penalties and
remedies specified. (AHRI, No. 0112, at
1–2)
AHRI’s comments suggest that it
misunderstood the purpose of these
portions of the proposal. DOE may
determine a basic model’s compliance
with the applicable energy conservation
standard only through testing of that
basic model. 10 CFR 429.106 and
429.110(c)(3). AHRI appears to be
commenting about situations in which it
may be highly desirable for a
manufacturer to provide testing
instructions because the basic model is
not likely to pass verification testing
without those instructions. DOE’s
proposal addressed a problem wherein
DOE cannot test—it is impossible to
test—a basic model without additional
testing information. For example, DOE
has found that certain PTACs require
special codes to be entered to make the
unit perform under test conditions;
without those codes, the unit will not
perform at test conditions and DOE
cannot obtain a valid test. In such a
situation, DOE proposed to contact the
manufacturer, but the manufacturer
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would forfeit its opportunity to be
present for test set-up. 79 FR at 57846
Contrary to AHRI’s assertion that DOE
would not consider any testing
instructions not provided at certification
under any circumstances, DOE
explained in the September 2014
SNOPR that, if a manufacturer has not
provided supplemental information
required for testing, then DOE will
obtain the information from the
manufacturer and complete the testing.
79 FR at 57846. In addition, if for other
reasons DOE is unable to test a unit, the
Working Group recommended, and DOE
has already codified in its regulations,
that DOE may coordinate a meeting
between the manufacturer and test
facility to resolve any technical issues.
See 10 CFR 429.70(c)(5)(iv)(E).
In this rule, DOE is requiring that, if
necessary to run a valid test, the
equipment-specific, supplemental
information for commercial HVAC, WH,
and refrigeration equipment must
include any additional testing and
testing set-up instructions.
DOE also proposed that, if the unit is
obtained through retail channels, DOE
will review the certification
submissions from the manufacturer that
were on file as of the date DOE
purchased a basic model. If DOE has
obtained a unit directly from the
manufacturer, DOE will review the
certification submissions from the
manufacturer that were on file as of the
date DOE notifies the manufacturer that
the basic model has been selected for
testing. At this time, DOE will
determine if the manufacturer provided
necessary supplemental instructions.
Additionally, for the purposes of
conducting the verification test DOE
will use the most recent version of
supplemental instructions on file as of
the date DOE purchased a basic model
or the date DOE notified the
manufacturer of the verification testing.
DOE received no comments on these
proposals and is adopting them in this
rule.
DOE notes that manufacturers will
also need to provide the complete name
of the PDF containing the supplemental
testing instructions as part of the
certification report. If the manufacturer
changes the supplemental testing
instructions and as a result changes the
file name, then the manufacturer must
update the certification report
accordingly.
DOE notes that 10 CFR 429.102(a)(1)
establishes that the failure to properly
certify covered products and covered
equipment in accordance with 10 CFR
429.12 and 10 CFR 429.14 through
429.54 is a prohibited act. The Working
Group recommended that manufacturers
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of certain kinds of commercial
refrigeration, HVAC, and WH
equipment should be required to submit
a supplemental Portable Document
Format (PDF) file with additional testing
information with the certification
report. The Working Group specified
that the supplemental information
would be required for commercial
refrigeration equipment and most types
of commercial HVAC equipment. DOE
codified these requirements in 10 CFR
429.42(b)(4) and 10 CFR 429.43(b)(4).
DOE’s statement in the September 2014
SNOPR regarding the consequences of
failing to provide supplemental
information necessary to operate the
basic model information was reiterating
an existing prohibited act subject to the
maximum civil penalty prescribed at 10
CFR 429.120—not proposing a new
provision or reflecting a change in
regulations due to the Working Group’s
recommendations.
Private Model Numbers
DOE proposed to clarify its treatment
of ‘‘private’’ model numbers under 10
CFR 429.7(b)(3). ‘‘Private’’ model
numbers were created in a final rule
published May 5, 2014, which adopted
the recommendations of the Working
Group with respect to the data elements
to include in certification reports. See
79 FR 25486, 25491. These ‘‘private’’
models numbers addressed concerns
raised by Working Group participants
during the negotiated rulemaking
indicating that the model numbers can,
in certain circumstances, comprise
confidential business information. The
Working Group reached a consensus
that, in limited circumstances,
manufacturers should be able to identify
when disclosure of an individual model
number would reveal confidential
business information and that DOE
should treat that information as
confidential in those specific instances.
DOE has discovered, however, that, as
drafted, the language at 10 CFR 429.7
may permit a much broader range of
model numbers to be identified as
‘‘private’’ than had been intended,
which would result in fewer identified
models in DOE’s public Compliance
Certification Database. Specifically, the
current language could be interpreted to
permit a manufacturer to mark as
‘‘private’’ any model number that is not
available in public marketing materials.
Accordingly, DOE proposed to revise
the regulatory text to better reflect the
negotiated position of the working
group. DOE received no comments on
this aspect of the proposal and is
adopting it in this final rule.
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Variable Refrigerant Flow Systems
DOE also clarified in its September
2014 SNOPR that variable refrigerant
flow system assessment and
enforcement testing is governed by 10
CFR 431.96(f), and would not be subject
to any of the proposed requirements. 79
FR at 57845. DOE received no
comments on this aspect of the proposal
and is adopting this approach in the
final rule.
Certification Templates
Finally, Continental urged DOE to
publish the product templates for
certifying commercial refrigeration
equipment—specifically, for equipment
with either single compartment or
multiple compartments—on the
Compliance Certification Management
System Web page as quickly as possible.
Continental believes a minimum of 90
calendar days should have been allowed
for manufacturers to complete their
certifications. (Continental, No. 0111 at
p. 2) The CRE certification templates are
available at: https://
www.regulations.doe.gov/ccms/
templates/product_templates.
DOE notes that it adopted the
certification requirements for
commercial refrigeration equipment in a
final rule for which manufacturers
negotiated to have over 180 days to
collect the required certification
information. See 79 FR 25486 (May 5,
2014). Accordingly, DOE will not
provide additional time to supplement
that which has already been provided.
III. Procedural Issues and Regulatory
Review
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A. Review Under Executive Order 12866
The Office of Management and Budget
has determined that test procedure
rulemakings do not constitute
‘‘significant regulatory actions’’ under
section 3(f) of Executive Order 12866,
Regulatory Planning and Review, 58 FR
51735 (Oct. 4, 1993). Accordingly, this
action was not subject to review under
the Executive Order by the Office of
Information and Regulatory Affairs
(OIRA) in the Office of Management and
Budget (OMB).
B. Review Under the Regulatory
Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601, et seq.) requires the
preparation of a regulatory flexibility
analysis (RFA) for any rule that by law
must be proposed for public comment,
unless the agency certifies that the rule,
if promulgated, will not have a
significant economic impact on a
substantial number of small entities. As
required by Executive Order 13272,
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‘‘Proper Consideration of Small Entities
in Agency Rulemaking,’’ 67 FR 53461
(August 16, 2002), DOE published
procedures and policies on February 19,
2003 to ensure that the potential
impacts of its rules on small entities are
properly considered during the DOE
rulemaking process. 68 FR 7990. DOE
has made its procedures and policies
available on the Office of the General
Counsel’s Web site: https://
www.energy.gov/sites/prod/files/gcprod/
documents/eo13272.pdf.
DOE reviewed the requirements in the
Final Rule under the provisions of the
Regulatory Flexibility Act and the
procedures and policies published on
February 19, 2003. As discussed in more
detail below, DOE found that the
provisions of this rule will not increase
testing and/or reporting burden.
Accordingly, manufacturers will not
experience increased financial burden
as a result of this rulemaking.
This Final Rule clarifies how DOE
intends to exercise its authority to
validate AEDM performance and verify
the performance of commercial HVAC,
WH, and refrigeration equipment
certified using an AEDM. Specifically,
DOE is allowing representatives of
commercial HVAC, WH, and
refrigeration equipment manufacturers
to witness the test set-up for DOEinitiated verification testing for up to 10
percent of a manufacturer’s basic
models certified to DOE and that are
rated with an AEDM. The selection of
basic models and the decision to
witness the test set-up for verification
testing is at the discretion of the
manufacturer. Thus, because these
proposed changes would apply
irrespective of a manufacturer’s size and
would provide these entities with added
flexibility to witness the testing set-up
of their equipment, DOE certifies that
this rulemaking would not have a
significant impact on a substantial
number of small entities.
C. Review Under the Paperwork
Reduction Act
Manufacturers of the covered
equipment addressed in the Final Rule
must certify to DOE that their
equipment comply with any applicable
energy conservation standards. In
certifying compliance, manufacturers
must test their equipment according to
the applicable DOE test procedures for
the given equipment type, including any
amendments adopted for those test
procedures, or use the appropriate
AEDMs to develop the certified ratings
of the basic models. DOE has
established regulations for the
certification and recordkeeping
requirements for all covered consumer
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149
products and commercial equipment,
including the equipment at issue in this
rule. (79 FR 25486 (May 5, 2014)). The
collection-of-information requirement
for these certification and recordkeeping
provisions is subject to review and
approval by OMB under the Paperwork
Reduction Act (PRA). This requirement
has been approved by OMB under OMB
Control Number 1910–1400. Public
reporting burden for the certification is
estimated to average 30 hours per
response, including the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
D. Review Under the National
Environmental Policy Act
DOE has determined that this rule
falls into a class of actions that are
categorically excluded from review
under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321, et
seq.) and DOE’s implementing
regulations at 10 CFR part 1021.
Specifically, this rule is changing DOE’s
verification testing regulations so it
would not affect the amount, quality or
distribution of energy usage, and,
therefore, would not result in any
environmental impacts. Thus, this
rulemaking is covered by Categorical
Exclusion A6 under 10 CFR part 1021,
subpart D. Accordingly, neither an
environmental assessment nor an
environmental impact statement is
required.
E. Review Under Executive Order 13132
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255 (August 4, 1999) imposes
certain requirements on agencies
formulating and implementing policies
or regulations that preempt State law or
that have Federalism implications. The
Executive Order requires agencies to
examine the constitutional and statutory
authority supporting any action that
would limit the policymaking discretion
of the States and to carefully assess the
necessity for such actions. The
Executive Order also requires agencies
to have an accountable process to
ensure meaningful and timely input by
State and local officials in the
development of regulatory policies that
have Federalism implications. On
March 14, 2000, DOE published a
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statement of policy describing the
intergovernmental consultation process
it will follow in the development of
such regulations. 65 FR 13735. DOE has
examined this rulemaking and has
determined that it would not have a
substantial direct effect on the States, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. EPCA governs and
prescribes Federal preemption of State
regulations as to energy conservation for
the products that are the subject of this
rule. States can petition DOE for
exemption from such preemption to the
extent, and based on criteria, set forth in
EPCA. (42 U.S.C. 6297(d)) No further
action is required by Executive Order
13132.
F. Review Under Executive Order 12988
Regarding the review of existing
regulations and the promulgation of
new regulations, section 3(a) of
Executive Order 12988, ‘‘Civil Justice
Reform,’’ 61 FR 4729 (Feb. 7, 1996),
imposes on Federal agencies the general
duty to adhere to the following
requirements: (1) Eliminate drafting
errors and ambiguity; (2) write
regulations to minimize litigation; (3)
provide a clear legal standard for
affected conduct rather than a general
standard; and (4) promote simplification
and burden reduction. Section 3(b) of
Executive Order 12988 specifically
requires that Executive agencies make
every reasonable effort to ensure that the
regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly
specifies any effect on existing Federal
law or regulation; (3) provides a clear
legal standard for affected conduct
while promoting simplification and
burden reduction; (4) specifies the
retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses
other important issues affecting clarity
and general draftsmanship under any
guidelines issued by the Attorney
General. Section 3(c) of Executive Order
12988 requires Executive agencies to
review regulations in light of applicable
standards in sections 3(a) and 3(b) to
determine whether they are met or it is
unreasonable to meet one or more of
them. DOE has completed the required
review and determined that, to the
extent permitted by law, this Final Rule
meets the relevant standards of
Executive Order 12988.
G. Review Under the Unfunded
Mandates Reform Act of 1995
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) requires
each Federal agency to assess the effects
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of Federal regulatory actions on State,
local, and Tribal governments and the
private sector. Pub. L. 104–4, sec. 201
(codified at 2 U.S.C. 1531). For a
proposed regulatory action likely to
result in a rule that may cause the
expenditure by State, local, and Tribal
governments, in the aggregate, or by the
private sector of $100 million or more
in any one year (adjusted annually for
inflation), section 202 of UMRA requires
a Federal agency to publish a written
statement that estimates the resulting
costs, benefits, and other effects on the
national economy. (2 U.S.C. 1532(a)–(b))
The UMRA also requires a Federal
agency to develop an effective process
to permit timely input by elected
officers of State, local, and Tribal
governments on a proposed ‘‘significant
intergovernmental mandate,’’ and
requires an agency plan for giving notice
and opportunity for timely input to
potentially affected small governments
before establishing any requirements
that might significantly or uniquely
affect small governments. On March 18,
1997, DOE published a statement of
policy on its process for
intergovernmental consultation under
UMRA. 62 FR 12820; also available at
https://energy.gov/gc/office-generalcounsel. DOE examined this rulemaking
according to UMRA and its statement of
policy and determined that the rule
contains neither an intergovernmental
mandate, nor a mandate that may result
in the expenditure of $100 million or
more in any year. Accordingly, these
requirements do not apply.
H. Review Under the Treasury and
General Government Appropriations
Act, 1999
Section 654 of the Treasury and
General Government Appropriations
Act, 1999 (Pub. L. 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
that may affect family well-being. This
Final Rule would not have any impact
on the autonomy or integrity of the
family as an institution. Accordingly,
DOE has concluded that it is not
necessary to prepare a Family
Policymaking Assessment.
I. Review Under Executive Order 12630
DOE has determined, under Executive
Order 12630, ‘‘Governmental Actions
and Interference with Constitutionally
Protected Property Rights,’’ 53 FR 8859
(March 18, 1988), that this regulation
would not result in any takings that
might require compensation under the
Fifth Amendment to the U.S.
Constitution.
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J. Review Under the Treasury and
General Government Appropriations
Act, 2001
Section 515 of the Treasury and
General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides
for agencies to review most
disseminations of information to the
public under guidelines established by
each agency pursuant to general
guidelines issued by OMB. OMB’s
guidelines were published at 67 FR
8452 (Feb. 22, 2002), and DOE’s
guidelines were published at 67 FR
62446 (Oct. 7, 2002). DOE has reviewed
the final rule under the OMB and DOE
guidelines and has concluded that it is
consistent with applicable policies in
those guidelines.
K. Review Under Executive Order 13211
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use,’’ 66 FR 28355 (May
22, 2001), requires Federal agencies to
prepare and submit to OMB, a
Statement of Energy Effects for any
proposed significant energy action. A
‘‘significant energy action’’ is defined as
any action by an agency that
promulgated or is expected to lead to
promulgation of a final rule, and that:
(1) Is a significant regulatory action
under Executive Order 12866, or any
successor order; and (2) is likely to have
a significant adverse effect on the
supply, distribution, or use of energy; or
(3) is designated by the Administrator of
OIRA as a significant energy action. For
any proposed significant energy action,
the agency must give a detailed
statement of any adverse effects on
energy supply, distribution, or use
should the proposal be implemented,
and of reasonable alternatives to the
action and their expected benefits on
energy supply, distribution, and use.
This rule allows manufacturers of
commercial HVAC, WH, and
refrigeration equipment the opportunity
to witness the set-up for DOE
verification testing for up to 10 percent
of basic models submitted to DOE for
certification and rated with an AEDM,
and is not a significant regulatory action
under Executive Order 12866.
Moreover, it would not have a
significant adverse effect on the supply,
distribution, or use of energy, nor has it
been designated as a significant energy
action by the Administrator of OIRA.
Therefore, DOE has not prepared a
Statement of Energy Effects.
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Authority: 42 U.S.C. 6291–6317.
L. Review Under Section 32 of the
Federal Energy Administration Act of
1974
Under section 301 of the Department
of Energy Organization Act (Pub. L. 95–
91; 42 U.S.C. 7101), DOE must comply
with section 32 of the Federal Energy
Administration Act of 1974, as amended
by the Federal Energy Administration
Authorization Act of 1977. (15 U.S.C.
788; FEAA) Section 32 essentially
provides in relevant part that, where a
rule authorizes or requires use of
commercial standards, the notice of
rulemaking must inform the public of
the use and background of such
standards. In addition, section 32(c)
requires DOE to consult with the
Attorney General and the Chairman of
the Federal Trade Commission (FTC)
concerning the impact of the
commercial or industry standards on
competition. This rule amending DOE’s
regulations relating to the verification
test procedure for commercial HVAC,
WH, and refrigeration equipment rated
with an AEDM does not involve the use
of any commercial standards.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will
report to Congress on the promulgation
of this rule before its effective date. The
report will state that it has been
determined that the rule is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
IV. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of this supplemental notice
of proposed rulemaking.
List of Subjects in 10 CFR Part 429
Administrative practice and
procedure, Energy conservation,
Reporting and recordkeeping
requirements.
Issued in Washington, DC, on December
22, 2014.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy
Efficiency, Energy Efficiency and Renewable
Energy.
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For the reasons set forth in the
preamble, DOE is amending part 429 of
chapter II, subchapter D, of title 10 of
the Code of Federal Regulations, as set
forth below:
PART 429—CERTIFICATION,
COMPLIANCE AND ENFORCEMENT
FOR CONSUMER PRODUCTS AND
COMMERCIAL AND INDUSTRIAL
EQUIPMENT
1. The authority citation for part 429
continues to read as follows:
■
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2. Section 429.7 is amended in
paragraph (b) introductory text by
removing the words ‘‘it is’’ and by
revising paragraph (b)(3) to read as
follows:
■
§ 429.7
Confidentiality.
*
*
*
*
*
(b) * * *
(3) Disclosure of the individual,
manufacturer model number would
reveal confidential business information
as described at § 1004.11 of this title—
in which case, under these limited
circumstances, a manufacturer may
identify the individual manufacturer
model number as a private model
number on a certification report
submitted pursuant to § 429.12(b)(6).
*
*
*
*
*
■ 3. Section 429.41 is amended by
revising the section heading and
paragraph (b)(4) to read as follows:
§ 429.41
Commercial warm air furnaces.
*
*
*
*
*
(b) * * *
(4) Pursuant to § 429.12(b)(13), a
certification report may include
supplemental testing instructions in
PDF format. If necessary to run a valid
test, the equipment-specific,
supplemental information must include
any additional testing and testing set up
instructions (e.g., specific operational or
control codes or settings), which would
be necessary to operate the basic model
under the required conditions specified
by the relevant test procedure. A
manufacturer may also include with a
certification report other supplementary
items in PDF format (e.g., manuals) for
DOE consideration in performing testing
under subpart C of this part.
■ 4. Section 429.42 is amended by
revising paragraph (b)(4) to read as
follows:
§ 429.42 Commercial refrigerators,
freezers, and refrigerator-freezers.
*
*
*
*
*
(b) * * *
(4) Pursuant to § 429.12(b)(13), a
certification report must include
supplemental information submitted in
PDF format. The equipment-specific,
supplemental information must include
any additional testing and testing set up
instructions (e.g., charging instructions)
for the basic model; identification of all
special features that were included in
rating the basic model; and all other
information (e.g., any specific settings or
controls) necessary to operate the basic
model under the required conditions
specified by the relevant test procedure.
A manufacturer may also include with
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151
a certification report other
supplementary items in PDF format
(e.g., manuals) for DOE to consider
when performing testing under subpart
C of this part.
■ 5. Section 429.43 is amended by
revising paragraph (b)(4) introductory
text to read as follows:
§ 429.43 Commercial heating, ventilating,
air conditioning (HVAC) equipment.
*
*
*
*
*
(b) * * *
(4) Pursuant to § 429.12(b)(13), a
certification report must include
supplemental information submitted in
PDF format. The equipment-specific,
supplemental information must include
any additional testing and testing set up
instructions (e.g., charging instructions)
for the basic model; identification of all
special features that were included in
rating the basic model; and all other
information (e.g., operational codes or
component settings) necessary to
operate the basic model under the
required conditions specified by the
relevant test procedure. A manufacturer
may also include with a certification
report other supplementary items in
PDF format (e.g., manuals) for DOE
consideration in performing testing
under subpart C of this part. The
equipment-specific, supplemental
information must include at least the
following:
*
*
*
*
*
■ 6. Section 429.44 is amended by
revising paragraph (b)(4) to read as
follows:
§ 429.44 Commercial water heating
equipment.
*
*
*
*
*
(b) * * *
(4) Pursuant to § 429.12(b)(13), a
certification report may include
supplemental testing instructions in
PDF format. If necessary to run a valid
test, the equipment-specific,
supplemental information must include
any additional testing and testing set up
instructions (e.g., whether a bypass loop
was used for testing) for the basic model
and all other information (e.g.,
operational codes or overrides for the
control settings) necessary to operate the
basic model under the required
conditions specified by the relevant test
procedure. A manufacturer may also
include with a certification report other
supplementary items in PDF format
(e.g., manuals) for DOE consideration in
performing testing under subpart C of
this part.
*
*
*
*
*
■ 7. Section 429.60 is amended by
revising paragraph (b)(4) to read as
follows:
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§ 429.60
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Commercial packaged boilers.
*
*
*
*
*
(b) * * *
(4) Pursuant to § 429.12(b)(13), a
certification report may include
supplemental testing instructions in
PDF format. If necessary to run a valid
test, the equipment-specific,
supplemental information must include
any additional testing and testing set up
instructions (e.g., specific operational or
control codes or settings), which would
be necessary to operate the basic model
under the required conditions specified
by the relevant test procedure. A
manufacturer may also include with a
certification report other supplementary
items in PDF format (e.g., manuals) for
DOE consideration in performing testing
under subpart C of this part.
*
*
*
*
*
■ 8. Section 429.70 is amended by
revising paragraph (c)(5)(iii) to read as
follows:
§ 429.70 Alternative methods for
determining energy efficiency and energy
use.
mstockstill on DSK4VPTVN1PROD with RULES
*
*
*
*
*
(c) * * *
(5) * * *
(iii) Manufacturer participation. (A)
Except when testing variable refrigerant
flow systems (which are governed by
the rules found at § 431.96(f)), testing
will be completed without a
manufacturer representative on-site. In
limited instances further described in
paragraph (c)(5)(iii)(B) of this section, a
manufacturer and DOE representative
may be present to witness the test setup.
(B) A manufacturer’s representative
may request to be on-site to witness the
test set-up if:
(1) The installation manual for the
basic model specifically requires it to be
started only by a factory-trained
installer; or
(2) The manufacturer has elected, as
part of the certification of that basic
model, to have the opportunity to
witness the test set-up. A manufacturer
may elect to witness the test set-up for
the initial verification test for no more
than 10 percent of the manufacturer’s
basic models submitted for certification
and rated with an AEDM per validation
class specified in section (c)(2)(iv) of
this paragraph. The 10-percent limit
applies to all of the eligible basic
models submitted for certification by a
given manufacturer no matter how
many AEDMs a manufacturer has used
to develop its ratings. The 10-percent
limit is determined by first calculating
10 percent of the total number of basic
models rated with an AEDM per
validation class, and then truncating the
VerDate Sep<11>2014
15:47 Jan 02, 2015
Jkt 235001
resulting product. Manufacturers who
have submitted fewer than 10 basic
models rated with an AEDM for
certification may elect to have the
opportunity to witness the test set-up of
one basic model. A manufacturer must
identify the basic models it wishes to
witness as part of its certification
report(s) prior to the basic model being
selected for verification testing.
(3) In those instances in which a
manufacturer has not provided the
required information as specified in
§ 429.12(b)(13) for a given basic model
that has been rated and certified as
compliant with the applicable
standards, a manufacturer is precluded
from witnessing the testing set up for
that basic model.
(C) A DOE representative will be
present for the test set-up in all cases
where a manufacturer representative
requests to be on-site for the test set-up.
The manufacturer’s representative
cannot communicate with a lab
representative outside of the DOE
representative’s presence.
(D) If DOE has obtained through retail
channels a unit for test that meets either
of the conditions in paragraph
(c)(5)(iii)(B) of this section, DOE will
notify the manufacturer that the basic
model was selected for testing and that
the manufacturer may have a
representative present for the test setup. If the manufacturer does not
respond within five calendar days of
receipt of that notification, the
manufacturer waives the option to be
present for test set-up, and DOE will
proceed with the test set-up without a
manufacturer’s representative present.
(E) If DOE has obtained directly from
the manufacturer a unit for test that
meets either of the conditions in
paragraph (c)(5)(iii)(B) of this section,
DOE will notify the manufacturer of the
option to be present for the test set-up
at the time the unit is purchased. DOE
will specify the date (not less than five
calendar days) by which the
manufacturer must notify DOE whether
a manufacturer’s representative will be
present. If the manufacturer does not
notify DOE by the date specified, the
manufacturer waives the option to be
present for the test set-up, and DOE will
proceed with the test set-up without a
manufacturer’s representative present.
(F) DOE will review the certification
submissions from the manufacturer that
were on file as of the date DOE
purchased a basic model (under
paragraph (c)(5)(iii)(D) of this section) or
the date DOE notifies the manufacturer
that the basic model has been selected
for testing (under paragraph (c)(5)(iii)(E)
of this section) to determine if the
manufacturer has indicated that it
PO 00000
Frm 00010
Fmt 4700
Sfmt 9990
intends to witness the test set-up of the
selected basic model. DOE will also
verify that the manufacturer has not
exceeded the allowable limit of witness
testing selections as specified in
paragraph (c)(5)(iii)(B)(2) of this section.
If DOE discovers that the manufacturer
exceeded the limits specified in
paragraph (c)(5)(iii)(B)(2), DOE will
notify the manufacturer of this fact and
deny its request to be present for the test
set-up of the selected basic model. The
manufacturer must update its
certification submission to ensure it has
not exceeded the allowable limit of
witness testing selections as specified in
paragraph (c)(5)(iii)(B)(2) to be present
at set-up for future selections. At this
time DOE will also review the
supplemental PDF submission(s) for the
selected basic model to determine that
all necessary information has been
provided to the Department.
(G) If DOE determines, pursuant to
paragraph (c)(5)(ii) of this section, that
the model should be tested at the
manufacturer’s facility, a DOE
representative will be present on site to
observe the test set-up and testing with
the manufacturer’s representative. All
testing will be conducted at DOE’s
direction, which may include DOEcontracted personnel from a third-party
lab, as well as the manufacturer’s
technicians.
(H) As further explained in paragraph
(c)(5)(v)(B) of this section, if a
manufacturer’s representative is present
for the initial test set-up for any reason,
the manufacturer forfeits any
opportunity to request a retest of the
basic model. Furthermore, if the
manufacturer requests to be on-site for
test set-up pursuant to paragraph
(c)(5)(iii)(B) of this section but is not
present on site, the manufacturer forfeits
any opportunity to request a retest of the
basic model.
*
*
*
*
*
[FR Doc. 2014–30821 Filed 1–2–15; 8:45 am]
BILLING CODE 6450–01–P
E:\FR\FM\05JAR1.SGM
05JAR1
]]>Agencies
[Federal Register Volume 80, Number 2 (Monday, January 5, 2015)]
[Rules and Regulations]
[Pages 144-152]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30821]
[[Page 144]]
=======================================================================
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DEPARTMENT OF ENERGY
10 CFR Part 429
[Docket No. EERE-2011-BT-TP-0024]
RIN 1904-AC46
Energy Conservation Program: Alternative Efficiency Determination
Methods and Compliance for Commercial HVAC, Refrigeration, and Water
Heating Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Energy (DOE) is revising its
regulations governing DOE verification testing of industrial equipment
covered by EPCA rated with alternative efficiency determination methods
(AEDMs). These regulations arose from a negotiated rulemaking effort on
issues regarding the certification of commercial heating, ventilating,
air-conditioning (HVAC), water heating (WH), and refrigeration
equipment.
DATES: Effective: February 4, 2015.
ADDRESSES: This rulemaking can be identified by docket number EERE-
2011-BT-TP-0024 and/or RIN 1904-AC46.
Docket: The docket is available for review at www.regulations.gov,
including Federal Register notices, public meeting attendee lists and
transcripts, comments, and other supporting documents/materials. All
documents in the docket are listed in the www.regulations.gov index.
However, not all documents listed in the index may be publicly
available, such as information that is exempt from public disclosure.
FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department
of Energy, Office of Energy Efficiency and Renewable Energy, Building
Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington,
DC 20585-0121. Email: Ashley.Armstrong@ee.doe.gov; and Ms. Laura
Barhydt, U.S. Department of Energy, Office of the General Counsel,
Forrestal Building, GC-32, 1000 Independence Avenue SW., Washington, DC
20585. Email: Laura.Barhydt@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Authority and Background
Authority
Background
II. Discussion of Specific Revisions to DOE's Regulations for
Alternative Efficiency Determination Methods Verification Testing
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Review Under Section 32 of the Federal Energy Administration
Act of 1974
M. Congressional Notification
IV. Approval of the Office of the Secretary
I. Authority and Background
Authority
Title III of the Energy Policy and Conservation Act of 1975, as
amended (``EPCA'' or, in context, ``the Act'') sets forth a variety of
provisions designed to improve energy efficiency. Part A of Title III
(42 U.S.C. 6291-6309) provides for the Energy Conservation Program for
Consumer Products Other Than Automobiles. The National Energy
Conservation Policy Act (NECPA), Pub. L. 95-619, amended EPCA to add
Part A-1 of Title III, which established an energy conservation program
for certain industrial equipment. (42 U.S.C. 6311-6317) \1\ The
Department of Energy (``DOE'') is charged with implementing these
provisions.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
Under EPCA, this program consists essentially of four parts: (1)
Testing; (2) labeling; (3) Federal energy conservation standards; and
(4) certification and enforcement procedures. The Federal Trade
Commission (FTC) is primarily responsible for the labeling of consumer
products and DOE implements the remainder of the program. The testing
requirements consist of test procedures that manufacturers of covered
products and equipment must use (1) as the basis for certifying to DOE
that their products comply with the applicable energy conservation
standards adopted under EPCA, and (2) for making representations about
the efficiency of those products and equipment. Similarly, DOE must use
these test requirements to determine whether the products comply with
any relevant standards promulgated under EPCA. For certain consumer
products and industrial equipment, DOE's existing testing regulations
allow the use of an alternative efficiency determination method (AEDM)
or an alternative rating method (ARM), in lieu of actual testing, to
simulate the energy consumption or efficiency of certain basic models
of covered products under DOE's test procedure conditions.
In addition, EPCA (through 42 U.S.C. 6299-6305 and 6316) authorizes
DOE to enforce compliance with the energy and water conservation
standards (all non-product specific references herein referring to
energy use and consumption include water use and consumption; all
references to energy efficiency include water efficiency) established
for certain consumer products and industrial equipment. (42 U.S.C.
6299-6305 (consumer products), 6316 (industrial equipment)) DOE has
promulgated enforcement regulations that include specific certification
and compliance requirements. See 10 CFR part 429; 10 CFR part 431,
subparts B, U, and V.
Background
On February 26, 2013, members of the Appliance Standards and
Rulemaking Federal Advisory Committee (ASRAC) unanimously decided to
form a working group to engage in a negotiated rulemaking effort on the
certification of the compliance of commercial HVAC, WH, and
refrigeration equipment. A notice of intent to form the Commercial
Certification Working Group (``the Working Group'') was published in
the Federal Register on March 12, 2013, to which DOE received 35
nominations. 78 FR 15653. On April 16, 2013, DOE published a notice of
open meeting that announced the first meeting and listed the 22
nominated individuals (and their affiliations) who were selected to
serve as members of the Working Group, in addition to two members from
ASRAC, and one DOE representative. 78 FR 22431. The members of the
Working Group were selected to ensure a broad and balanced array of
stakeholder interests and expertise, and included efficiency advocates,
manufacturers, a utility representative, and third-party laboratory
representatives.
During the Working Group's first meeting, Working Group members
voted to expand the scope of the negotiated rulemaking efforts to
include developing methods of estimating equipment performance based on
AEDM simulations. AEDMs are computer modeling or mathematical tools
that predict the performance of non-tested basic models. They are
derived from mathematical and engineering principles that govern the
energy efficiency and energy consumption characteristics of a type of
covered
[[Page 145]]
equipment. AEDMs, when properly developed, can provide a relatively
straight-forward and reasonably accurate means to predict the energy
usage or efficiency characteristics of a basic model of a given covered
product or equipment and reduce the burden and cost associated with
testing. Where authorized by regulation, AEDMs enable manufacturers to
rate and certify the compliance of their basic models by using the
projected energy use or energy efficiency results derived from these
simulation models in lieu of testing.
The Working Group discussed the particular elements that the AEDM
simulations should address for each equipment type and other related
considerations, including validation requirements for AEDMs, DOE
verification of models rated with an AEDM, and the consequences for
misuse of the AEDM construct. As required, the Working Group submitted
an interim report to ASRAC on June 26, 2013, summarizing the group's
recommendations regarding AEDMs for commercial HVAC, WH, and
refrigeration equipment. The interim report to ASRAC can be found at
https://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-NOC-0023-
0046. ASRAC subsequently voted unanimously to approve the
recommendations in the interim report for AEDMs.
On October 22, 2013, DOE published in the Federal Register a
Supplemental Notice of Proposed Rulemaking (``the October 2013 AEDM
SNOPR'') regarding alternative efficiency determination methods, basic
model definitions, and certification compliance dates for commercial
HVAC, refrigeration, and WH equipment. 78 FR 62472. The October 2013
AEDM SNOPR also proposed a process for DOE to conduct verification
testing to ensure that models rated with an AEDM perform to their
certified ratings. As part of the verification testing process, the
Working Group recommended that a manufacturer may elect to have a DOE
representative and a manufacturer's representative on site for the
initial test of up to 10 percent of the basic models that they have
rated with an AEDM. DOE adopted most of the provisions from the October
2013 AEDM SNOPR in a December 31, 2013 final rule (``the December 2013
final rule''). 78 FR 79579. However, commenters raised concerns over
DOE's proposal allowing manufacturers to witness verification tests. In
reviewing their comments, DOE determined that its proposed regulatory
text, which was based in large part on the Working Group's
recommendation, may not have been sufficiently clear. As a result, DOE
published a Supplemental Notice of Proposed Rulemaking (``the September
2014 SNOPR'') clarifying the process for witnessing the test set-up as
part of the AEDM verification process. The Department's intent was to
establish a clear process while ensuring that the regulatory text
reflects the recommendations of the Working Group. 79 FR 57842
(September 26, 2014).
The final rule adopts the approach proposed in the September 2014
SNOPR.
II. Discussion of Specific Revisions to DOE's Regulations for
Alternative Efficiency Determination Methods Verification Testing
As described in the background section of this notice, DOE proposed
clarifications regarding witnessing the verification test set-up for
models rated with an AEDM. See 79 FR 57842. DOE received three comments
in response--two from manufacturers and one from a trade association.
These comments are discussed in more detail below, and a full set of
comments can be found at: https://www.regulations.gov/#!docketDetail;D=EERE-2011-BT-TP-0024.
Table II-1--Stakeholders That Submitted Comments to the SNOPR
----------------------------------------------------------------------------------------------------------------
Name Acronym Organization type
----------------------------------------------------------------------------------------------------------------
Air-Conditioning, Heating, and AHRI...................... Trade Association.
Refrigeration Institute.
Continental Refrigerator............... Continental............... Manufacturer.
Hussmann Corporation................... Hussmann.................. Manufacturer.
----------------------------------------------------------------------------------------------------------------
Manufacturer Presence During Verification Testing
DOE proposed regulatory text to state explicitly that manufacturers
may elect to witness the test set-up of verification tests. DOE
proposed this clarification to better align the regulatory text with
the Working Group's recommendation on this issue. See 79 FR at 57845.
Continental suggested that, given its own problematic experiences
with third-party testing, DOE should allow manufacturers the option to
be present for the duration of any verification test to ensure that no
issues requiring additional manufacturer input arise. (Continental, No.
0111 at p.1) Continental went on to state that they understand and
concur with DOE's decision to only allow manufacturers to be present
for the test setup, given manufacturer's ability to review the test
data, calculations and final results. (Id.)
DOE's proposed approach to verification testing uses a number of
different steps to help ensure that commercial HVAC, WH, and
refrigeration equipment is tested correctly. First, the proposal would
allow manufacturers to witness the set-up for AEDM verification testing
for a selection of basic models rated with an AEDM. Second, if a lab
encounters an issue during a verification test and requires additional
information to test in accordance with the applicable DOE test
procedure, under already existing regulations, DOE may coordinate a
meeting between the manufacturer and the test facility to resolve that
issue. See 10 CFR 429.70(c)(5)(iv)(E). Third, if a model performs worse
than its certified rating during testing, DOE also already provides the
manufacturer with the test report, and manufacturers may present any
claims that the test was performed incorrectly. See 10 CFR
429.70(c)(5)(v). In light of these pre-existing provisions, expanding
the witness testing provisions beyond the Working Group's
recommendation to allow manufacturers to witness the set-up of the test
is unnecessary. Consequently, consistent with the Working Group's
recommendation, DOE is adopting regulatory text that allows
manufacturers to elect to witness the test set-up for a basic model.
That election would be made as part of that basic model's certification
report.
10 Percent Witness Testing Limitation
In the September 2014 SNOPR, DOE proposed to maintain that a
manufacturer may select up to 10 percent of its certified basic models
rated with an AEDM to witness the set-up of any verification test
performed by DOE. DOE remarked that this threshold was negotiated
through detailed discussions with the Working Group, who collectively
concluded that this level would be acceptable to both industry and
efficiency advocates while not being overly burdensome for DOE to
[[Page 146]]
administer. DOE noted that manufacturers were not required to select 10
percent of eligible basic models and that manufacturers could decline
to attend the test set-up when notified. DOE also noted that the 10
percent was a limit on how many basic models a manufacturer might pre-
select for witnessing test set-up; it was not an indication that DOE
would test 10 percent of that manufacturer's basic models. 79 FR at
57846.
Hussmann expressed little confidence that a third-party laboratory
can properly set-up and test a remote supermarket case because third-
party laboratories do not understand the issues to look for prior to
and during an actual test--issues like discharge temperature and air
flow. Hussmann recommended that remote supermarket case manufacturers
should be allowed to be present at all test set-ups (rather than simply
10 percent) and data collection periods (rather than just set-up) until
the third-party laboratories have established thorough knowledge of how
to prepare a remote supermarket case to be tested. (Hussmann, No. 0110
at pp. 1-2) Hussmann provided no substantiating data or other
information for its assertions.
While DOE acknowledges manufacturer concerns that their equipment
is tested properly, DOE disagrees that supermarket case manufacturers
(along with other commercial refrigeration equipment manufacturers who
will be similarly affected by this provision) should be allowed to
witness the set-up and data collection of all remote condensing
commercial refrigerator and freezer verification tests. The Department
reiterates its position from the Working Group negotiation meetings
that third-party test facilities should have sufficient expertise in
conducting the relevant test and that DOE's test procedures should be
written in a manner that allows the test facility to administer the
test procedure without DOE's or a manufacturer's supervision. ([Docket
No. EERE-2013-BT-NOC-0023], Department of Energy, Public Meeting
Transcript, No. 0041 pp. 34 and 36)
Moreover, the Working Group, which included Hussmann, unanimously
voted in favor of the 10 percent approach detailed in the September
2014 NOPR. ([Docket No. EERE-2013-BT-NOC-0023], 2013-06-24 Appliance
Standards and Rulemaking Federal Advisory Committee Commercial HVAC,
WH, and Refrigeration Certification Working Group Alternative
Efficiency Determination Methods, No. 0046 at p. 5) After reaching a
consensus among the broad array of interests represented at the
numerous ASRAC meetings that led to the development of this approach,
DOE is highly reluctant, without further substantive and compelling
data, to alter the comprehensively crafted and unanimously supported
recommendation set forth by the Working Group.
Applying the 10 Percent Limit
Continental commented that it appreciated DOE's efforts to clarify
the rules regarding witnessing the test set-up for up to 10 percent of
the manufacturer's certified basic models rated with an AEDM.
Continental sought, however, additional clarity regarding DOE's
proposal in the form of additional sample scenarios to further explain
DOE's approach. (Continental, No. 0111 at p. 2)
In response to Continental's request, DOE is clarifying that a
manufacturer may witness the test set-up for up to 10 percent of the
basic models rated with an AEDM per validation class submitted to DOE
for certification. The validation classes for commercial HVAC, WH, and
refrigeration equipment can be found in 10 CFR 429.70(c)(2)(iv). As an
example, if a manufacturer submits for certification 100 basic models
of single package vertical air conditioners rated with an AEDM and 100
basic models of package terminal air conditioners rated with an AEDM,
then the manufacture may elect to witness the test set-up for up to 10
single package vertical air conditioners and 10 package terminal air
conditioners because single package vertical air conditioners and
package terminal air conditioners fall into separate validation
classes. In contrast, if a manufacturer submits to DOE for
certification 100 single package vertical air conditioners rated with
an AEDM and 100 single package vertical heat pumps rated with an AEDM,
then the manufacturer may elect to witness the test set-up no more than
20 basic models made up of any combination of single package vertical
air conditioners and/or single package vertical heat pumps because
single package vertical air conditioners and single package vertical
heat pumps are part of the same validation class. The manufacturer may
select any combination of models rated with an AEDM within the same
validation class for witnessing the test set-up of a verification test.
Further, DOE is clarifying that if a manufacturer submits for
certification fewer than 10 basic models rated with an AEDM per
validation class, then the manufacturer may elect to witness the
verification test set-up for one basic model from that validation
class. Manufacturers that submit for certification 10 or more basic
models rated with an AEDM per validation class must use the following
method to determine the maximum number of basic models for which it may
witness the verification test set-up. The manufacturer should first
calculate 10 percent of the total number of basic models rated with an
AEDM per validation class, and then truncate the resulting product. For
example, if a manufacturer submits for certification 56 water source
heat pump basic models rated with an AEDM, then the manufacturer may
elect 5 water source heat pump basic models to witness the verification
test set-up.
DOE plans to provide additional examples in a separate guidance
document.
Additionally, DOE notes that if a manufacturer selects one or more
individual models per basic model then DOE considers the manufacturer
to have selected the entire basic model, including all individual
models associated with it as a model for which the manufacturer opts to
witness the verification test set-up. That basic model will count
towards the total number of basic models for which the manufacturer has
elected to witness the verification test set-up and is subject to the
10 percent limit.
Consistent with the above discussion, this final rule adopts
regulations allowing manufacturers to witness the set-up of a selection
of verification test performed by DOE. Manufacturers may select up to
10 percent of its basic models per validation class submitted to DOE
for certification and rated with an AEDM.
The Department also proposed a framework to address situations
where a manufacturer exceeds the 10 percent limit. See 79 FR at 57846.
If the unit is obtained through retail channels, DOE will review the
certification submissions from the manufacturer that were on file as of
the date DOE purchased a basic model. If the unit is obtained directly
from the manufacturer, DOE will review the certification submissions
from the manufacturer that were on file as of the date DOE notifies the
manufacturer that the basic model has been selected for testing. DOE
will review the certification submissions from the manufacturer to
determine if the manufacturer has chosen to be present for testing of
the selected basic model. DOE will also verify that the manufacturer
has not selected more than 10 percent of the manufacturer's basic
models per validation class rated
[[Page 147]]
with an AEDM and submitted to DOE for certification. If DOE discovers
that the manufacturer has exceeded the 10 percent limit, DOE will
notify the manufacturer of this fact and deny its request to be present
for the testing of the selected basic model. The manufacturer must
update its certification submission to ensure it has selected no more
than 10 percent of its basic models per validation class rated with an
AEDM to witness the test set-up for any future verification testing.
See id. DOE received no comments on this aspect of the proposal and is
adopting it in this final rule.
Retesting
In the September 2014 SNOPR, DOE proposed that the 10 percent
requirement would apply to all of the basic models per validation class
rated with an AEDM that are submitted to DOE for certification by a
given manufacturer no matter how many AEDMs a manufacturer has used to
develop its ratings. See id. DOE proposed that it would perform testing
without a manufacturer's representative present for each basic model
DOE selects for assessment testing unless either: (1) The manufacturer
has elected to have the opportunity to witness the test set-up as part
of its allocated 10 percent; or (2) the manufacturer requires the basic
model to be started only by a factory-trained installer per the
installation manual instructions. For those basic models that a
manufacturer has requested to witness the initial verification test
set-up, the manufacturer would be unable to request that the unit be
retested. The results from this initial test would be used to make a
definitive determination regarding the validity of the basic model's
rating from the AEDM. For those basic models that are initially tested
without the manufacturer present for test set-up, a manufacturer would
be automatically eligible to request a retest for those basic models
where the initial results indicate a potential rating issue (non-
compliance or discrepancy with the certified rating). See id.
AHRI commented that DOE's proposal that a manufacturer forfeits any
opportunity to request a retest of the basic model if the
manufacturer's representative is present for the initial test set-up
for any reason is too severe. AHRI added that the provision incorrectly
assumes that all problems that may arise during the course of an
efficiency test are related to an issue involving the set-up of the
unit. AHRI agreed with this proposal insofar as it limits the
manufacturer's ability to request a retest because of a set-up issue.
However, if some other problem occurs during the testing which is
unrelated to any set-up procedure, the manufacturer should still have
the option to request a retest. AHRI suggested that the language be
rewritten to state, ``If a manufacturer's representative is present for
the initial test set-up for any reason, the manufacturer forfeits any
opportunity to request a retest of the basic model based on a claim
that the unit was set up improperly.'' (AHRI, No. 0112 at 2)
DOE disagrees with AHRI's assessment. The Working Group unanimously
recommended that manufacturers who are on-site for the test set-up of a
verification test would not be allowed to automatically request a
retest. ([Docket No. EERE-2013-BT-NOC-0023], Department of Energy,
2013-06-24 Appliance Standards and Rulemaking Federal Advisory
Committee Commercial HVAC, WH, and Refrigeration Certification Working
Group Alternative Efficiency Determination Methods, No. 0046 at p. 5)]
Additionally, attending the set-up of a verification test is optional.
As proposed in the September 2014 SNOPR, when DOE selects a model for
verification testing and the manufacturer has elected in its
certification report to witness that model's testing set-up, DOE will
alert the manufacturer of its testing selection. At this point, the
manufacturer may decide whether to be present at the set-up of the
verification test. 79 FR at 57846.
DOE also disagrees with AHRI's suggestion to allow manufacturers to
automatically require the Department to retest for reasons other than
improper set-up. In the case where a model fails to meet its certified
rating, DOE provides the manufacturer with all documentation related to
the test set-up, test conditions, and test results for the unit. At
this time the manufacturer may present claims regarding the validity of
the test. 10 CFR 429.70(c)(5)(v). If the manufacturer identifies
problems that occurred during the test that impact the validity of the
test (e.g., a malfunctioning measurement device), DOE would consider
the test to be invalid. DOE does not make compliance determinations
based on invalid testing and would retest the sample unit to obtain
valid test results. DOE does not believe that, in the absence of any
problems with the conduct of the verification test, it is necessary to
permit the retesting of a unit when a manufacturer has already attended
the verification test's set-up. Consequently, DOE's adopted approach
does not permit the retesting of a basic model under these
circumstances. (In contrast, for those basic models that are initially
tested without the manufacturer present for test set-up, a manufacturer
would be automatically eligible to request a retest for those basic
models where the initial results indicate a potential rating issue.)
DOE Notification to Manufacturers
In the September 2014 SNOPR, DOE proposed the following scenarios
for notifying the manufacturer if DOE conducts AEDM verification
testing on a basic model for which a manufacturer elected to witness
the test set-up. If the unit is obtained through retail channels, DOE
would notify the manufacturer of the basic model's selection for
testing and provide the manufacturer the option to be present for test
set-up once the unit has arrived at the test laboratory and is
scheduled to be tested. If the manufacturer does not respond within
five calendar days, the manufacturer would waive the option to be
present for test set-up, and DOE would then proceed with the test set-
up without a manufacturer's representative present. If DOE has obtained
a unit directly from the manufacturer, DOE would provide the
manufacturer with the option to be present for test set-up at the time
the unit is ordered. DOE would then specify the date (not less than
five calendar days) by which the manufacturer would notify DOE whether
the manufacturer chooses to have a representative present. If the
manufacturer does not notify DOE of its choice by the date specified,
the manufacturer would waive the option to be present for test set-up.
DOE would then proceed with the test set-up without a manufacturer's
representative present. DOE also notes that any time a manufacturer's
representative requests to be on-site for the test set-up, a DOE
representative would also be present at the third-party test facility.
Additionally, 10 CFR 429.70(c)(5)(iv)(A) would continue to apply prior
to, during, and after the manufacturer's representative is on site;
that is, the manufacturer's representative cannot communicate with a
third-party test facility regarding verification testing without the
DOE representative present. DOE received no comments on this aspect of
the proposal and is adopting it in this final rule.
Supplemental Information
DOE proposed to amend its regulations to provide that information
necessary for testing certain products (such as the override code for
controls that would otherwise prevent the completion of testing in
accordance with the applicable DOE test procedure) must accompany the
certification
[[Page 148]]
submission for a basic model of those products. DOE also proposed that
failure to provide this information would preclude a manufacturer being
present for testing of a basic model of its product. If, in the course
of testing a selected basic model, DOE discovers that the necessary
information for completing the test has not been provided, DOE will
contact the manufacturer to obtain that information and complete the
testing. The September 2014 SNOPR also explained that the failure to
submit with a certification report equipment-specific, supplemental
information necessary to operate the basic model is a prohibited act as
described at 10 CFR 429.102(a)(1), subject to the maximum civil penalty
described at 10 CFR 429.120. 79 FR at 57845.
AHRI commented that it did not recall any discussion by the Working
Group where the failure to supply supplemental information would be
considered a prohibited act. AHRI asserted that DOE's proposed approach
was an inappropriate and unnecessary expansion of the scope of
prohibited acts. AHRI added that, if a manufacturer does not provide
supplemental information, the model will likely fail testing. AHRI also
stated that, because a manufacturer cannot provide additional
information at any time other than at certification, a model would fail
the verification test if the manufacturer failed to provide the
required information. At that point, DOE would be able to apply fully
the penalties and remedies specified. (AHRI, No. 0112, at 1-2)
AHRI's comments suggest that it misunderstood the purpose of these
portions of the proposal. DOE may determine a basic model's compliance
with the applicable energy conservation standard only through testing
of that basic model. 10 CFR 429.106 and 429.110(c)(3). AHRI appears to
be commenting about situations in which it may be highly desirable for
a manufacturer to provide testing instructions because the basic model
is not likely to pass verification testing without those instructions.
DOE's proposal addressed a problem wherein DOE cannot test--it is
impossible to test--a basic model without additional testing
information. For example, DOE has found that certain PTACs require
special codes to be entered to make the unit perform under test
conditions; without those codes, the unit will not perform at test
conditions and DOE cannot obtain a valid test. In such a situation, DOE
proposed to contact the manufacturer, but the manufacturer would
forfeit its opportunity to be present for test set-up. 79 FR at 57846
Contrary to AHRI's assertion that DOE would not consider any
testing instructions not provided at certification under any
circumstances, DOE explained in the September 2014 SNOPR that, if a
manufacturer has not provided supplemental information required for
testing, then DOE will obtain the information from the manufacturer and
complete the testing. 79 FR at 57846. In addition, if for other reasons
DOE is unable to test a unit, the Working Group recommended, and DOE
has already codified in its regulations, that DOE may coordinate a
meeting between the manufacturer and test facility to resolve any
technical issues. See 10 CFR 429.70(c)(5)(iv)(E).
In this rule, DOE is requiring that, if necessary to run a valid
test, the equipment-specific, supplemental information for commercial
HVAC, WH, and refrigeration equipment must include any additional
testing and testing set-up instructions.
DOE also proposed that, if the unit is obtained through retail
channels, DOE will review the certification submissions from the
manufacturer that were on file as of the date DOE purchased a basic
model. If DOE has obtained a unit directly from the manufacturer, DOE
will review the certification submissions from the manufacturer that
were on file as of the date DOE notifies the manufacturer that the
basic model has been selected for testing. At this time, DOE will
determine if the manufacturer provided necessary supplemental
instructions. Additionally, for the purposes of conducting the
verification test DOE will use the most recent version of supplemental
instructions on file as of the date DOE purchased a basic model or the
date DOE notified the manufacturer of the verification testing. DOE
received no comments on these proposals and is adopting them in this
rule.
DOE notes that manufacturers will also need to provide the complete
name of the PDF containing the supplemental testing instructions as
part of the certification report. If the manufacturer changes the
supplemental testing instructions and as a result changes the file
name, then the manufacturer must update the certification report
accordingly.
DOE notes that 10 CFR 429.102(a)(1) establishes that the failure to
properly certify covered products and covered equipment in accordance
with 10 CFR 429.12 and 10 CFR 429.14 through 429.54 is a prohibited
act. The Working Group recommended that manufacturers of certain kinds
of commercial refrigeration, HVAC, and WH equipment should be required
to submit a supplemental Portable Document Format (PDF) file with
additional testing information with the certification report. The
Working Group specified that the supplemental information would be
required for commercial refrigeration equipment and most types of
commercial HVAC equipment. DOE codified these requirements in 10 CFR
429.42(b)(4) and 10 CFR 429.43(b)(4). DOE's statement in the September
2014 SNOPR regarding the consequences of failing to provide
supplemental information necessary to operate the basic model
information was reiterating an existing prohibited act subject to the
maximum civil penalty prescribed at 10 CFR 429.120--not proposing a new
provision or reflecting a change in regulations due to the Working
Group's recommendations.
Private Model Numbers
DOE proposed to clarify its treatment of ``private'' model numbers
under 10 CFR 429.7(b)(3). ``Private'' model numbers were created in a
final rule published May 5, 2014, which adopted the recommendations of
the Working Group with respect to the data elements to include in
certification reports. See 79 FR 25486, 25491. These ``private'' models
numbers addressed concerns raised by Working Group participants during
the negotiated rulemaking indicating that the model numbers can, in
certain circumstances, comprise confidential business information. The
Working Group reached a consensus that, in limited circumstances,
manufacturers should be able to identify when disclosure of an
individual model number would reveal confidential business information
and that DOE should treat that information as confidential in those
specific instances. DOE has discovered, however, that, as drafted, the
language at 10 CFR 429.7 may permit a much broader range of model
numbers to be identified as ``private'' than had been intended, which
would result in fewer identified models in DOE's public Compliance
Certification Database. Specifically, the current language could be
interpreted to permit a manufacturer to mark as ``private'' any model
number that is not available in public marketing materials.
Accordingly, DOE proposed to revise the regulatory text to better
reflect the negotiated position of the working group. DOE received no
comments on this aspect of the proposal and is adopting it in this
final rule.
[[Page 149]]
Variable Refrigerant Flow Systems
DOE also clarified in its September 2014 SNOPR that variable
refrigerant flow system assessment and enforcement testing is governed
by 10 CFR 431.96(f), and would not be subject to any of the proposed
requirements. 79 FR at 57845. DOE received no comments on this aspect
of the proposal and is adopting this approach in the final rule.
Certification Templates
Finally, Continental urged DOE to publish the product templates for
certifying commercial refrigeration equipment--specifically, for
equipment with either single compartment or multiple compartments--on
the Compliance Certification Management System Web page as quickly as
possible. Continental believes a minimum of 90 calendar days should
have been allowed for manufacturers to complete their certifications.
(Continental, No. 0111 at p. 2) The CRE certification templates are
available at: https://www.regulations.doe.gov/ccms/templates/product_templates.
DOE notes that it adopted the certification requirements for
commercial refrigeration equipment in a final rule for which
manufacturers negotiated to have over 180 days to collect the required
certification information. See 79 FR 25486 (May 5, 2014). Accordingly,
DOE will not provide additional time to supplement that which has
already been provided.
III. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
The Office of Management and Budget has determined that test
procedure rulemakings do not constitute ``significant regulatory
actions'' under section 3(f) of Executive Order 12866, Regulatory
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this
action was not subject to review under the Executive Order by the
Office of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget (OMB).
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires the
preparation of a regulatory flexibility analysis (RFA) for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003 to ensure that the
potential impacts of its rules on small entities are properly
considered during the DOE rulemaking process. 68 FR 7990. DOE has made
its procedures and policies available on the Office of the General
Counsel's Web site: https://www.energy.gov/sites/prod/files/gcprod/documents/eo13272.pdf.
DOE reviewed the requirements in the Final Rule under the
provisions of the Regulatory Flexibility Act and the procedures and
policies published on February 19, 2003. As discussed in more detail
below, DOE found that the provisions of this rule will not increase
testing and/or reporting burden. Accordingly, manufacturers will not
experience increased financial burden as a result of this rulemaking.
This Final Rule clarifies how DOE intends to exercise its authority
to validate AEDM performance and verify the performance of commercial
HVAC, WH, and refrigeration equipment certified using an AEDM.
Specifically, DOE is allowing representatives of commercial HVAC, WH,
and refrigeration equipment manufacturers to witness the test set-up
for DOE-initiated verification testing for up to 10 percent of a
manufacturer's basic models certified to DOE and that are rated with an
AEDM. The selection of basic models and the decision to witness the
test set-up for verification testing is at the discretion of the
manufacturer. Thus, because these proposed changes would apply
irrespective of a manufacturer's size and would provide these entities
with added flexibility to witness the testing set-up of their
equipment, DOE certifies that this rulemaking would not have a
significant impact on a substantial number of small entities.
C. Review Under the Paperwork Reduction Act
Manufacturers of the covered equipment addressed in the Final Rule
must certify to DOE that their equipment comply with any applicable
energy conservation standards. In certifying compliance, manufacturers
must test their equipment according to the applicable DOE test
procedures for the given equipment type, including any amendments
adopted for those test procedures, or use the appropriate AEDMs to
develop the certified ratings of the basic models. DOE has established
regulations for the certification and recordkeeping requirements for
all covered consumer products and commercial equipment, including the
equipment at issue in this rule. (79 FR 25486 (May 5, 2014)). The
collection-of-information requirement for these certification and
recordkeeping provisions is subject to review and approval by OMB under
the Paperwork Reduction Act (PRA). This requirement has been approved
by OMB under OMB Control Number 1910-1400. Public reporting burden for
the certification is estimated to average 30 hours per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
D. Review Under the National Environmental Policy Act
DOE has determined that this rule falls into a class of actions
that are categorically excluded from review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and DOE's
implementing regulations at 10 CFR part 1021. Specifically, this rule
is changing DOE's verification testing regulations so it would not
affect the amount, quality or distribution of energy usage, and,
therefore, would not result in any environmental impacts. Thus, this
rulemaking is covered by Categorical Exclusion A6 under 10 CFR part
1021, subpart D. Accordingly, neither an environmental assessment nor
an environmental impact statement is required.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have Federalism
implications. The Executive Order requires agencies to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and to carefully assess
the necessity for such actions. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have Federalism implications. On March 14, 2000, DOE
published a
[[Page 150]]
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations. 65 FR
13735. DOE has examined this rulemaking and has determined that it
would not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. EPCA governs and prescribes Federal preemption of State
regulations as to energy conservation for the products that are the
subject of this rule. States can petition DOE for exemption from such
preemption to the extent, and based on criteria, set forth in EPCA. (42
U.S.C. 6297(d)) No further action is required by Executive Order 13132.
F. Review Under Executive Order 12988
Regarding the review of existing regulations and the promulgation
of new regulations, section 3(a) of Executive Order 12988, ``Civil
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal
agencies the general duty to adhere to the following requirements: (1)
Eliminate drafting errors and ambiguity; (2) write regulations to
minimize litigation; (3) provide a clear legal standard for affected
conduct rather than a general standard; and (4) promote simplification
and burden reduction. Section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
sections 3(a) and 3(b) to determine whether they are met or it is
unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
this Final Rule meets the relevant standards of Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a proposed regulatory action likely to result in a rule that may
cause the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year (adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a)-(b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. On March 18, 1997,
DOE published a statement of policy on its process for
intergovernmental consultation under UMRA. 62 FR 12820; also available
at https://energy.gov/gc/office-general-counsel. DOE examined this
rulemaking according to UMRA and its statement of policy and determined
that the rule contains neither an intergovernmental mandate, nor a
mandate that may result in the expenditure of $100 million or more in
any year. Accordingly, these requirements do not apply.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This Final Rule would not have any impact on the autonomy or integrity
of the family as an institution. Accordingly, DOE has concluded that it
is not necessary to prepare a Family Policymaking Assessment.
I. Review Under Executive Order 12630
DOE has determined, under Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights,'' 53 FR 8859 (March 18, 1988), that this regulation would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has
reviewed the final rule under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OMB,
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use.
This rule allows manufacturers of commercial HVAC, WH, and
refrigeration equipment the opportunity to witness the set-up for DOE
verification testing for up to 10 percent of basic models submitted to
DOE for certification and rated with an AEDM, and is not a significant
regulatory action under Executive Order 12866. Moreover, it would not
have a significant adverse effect on the supply, distribution, or use
of energy, nor has it been designated as a significant energy action by
the Administrator of OIRA. Therefore, DOE has not prepared a Statement
of Energy Effects.
[[Page 151]]
L. Review Under Section 32 of the Federal Energy Administration Act of
1974
Under section 301 of the Department of Energy Organization Act
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the
Federal Energy Administration Act of 1974, as amended by the Federal
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA)
Section 32 essentially provides in relevant part that, where a rule
authorizes or requires use of commercial standards, the notice of
rulemaking must inform the public of the use and background of such
standards. In addition, section 32(c) requires DOE to consult with the
Attorney General and the Chairman of the Federal Trade Commission (FTC)
concerning the impact of the commercial or industry standards on
competition. This rule amending DOE's regulations relating to the
verification test procedure for commercial HVAC, WH, and refrigeration
equipment rated with an AEDM does not involve the use of any commercial
standards.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule before its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
IV. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this
supplemental notice of proposed rulemaking.
List of Subjects in 10 CFR Part 429
Administrative practice and procedure, Energy conservation,
Reporting and recordkeeping requirements.
Issued in Washington, DC, on December 22, 2014.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and
Renewable Energy.
For the reasons set forth in the preamble, DOE is amending part 429
of chapter II, subchapter D, of title 10 of the Code of Federal
Regulations, as set forth below:
PART 429--CERTIFICATION, COMPLIANCE AND ENFORCEMENT FOR CONSUMER
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT
0
1. The authority citation for part 429 continues to read as follows:
Authority: 42 U.S.C. 6291-6317.
0
2. Section 429.7 is amended in paragraph (b) introductory text by
removing the words ``it is'' and by revising paragraph (b)(3) to read
as follows:
Sec. 429.7 Confidentiality.
* * * * *
(b) * * *
(3) Disclosure of the individual, manufacturer model number would
reveal confidential business information as described at Sec. 1004.11
of this title--in which case, under these limited circumstances, a
manufacturer may identify the individual manufacturer model number as a
private model number on a certification report submitted pursuant to
Sec. 429.12(b)(6).
* * * * *
0
3. Section 429.41 is amended by revising the section heading and
paragraph (b)(4) to read as follows:
Sec. 429.41 Commercial warm air furnaces.
* * * * *
(b) * * *
(4) Pursuant to Sec. 429.12(b)(13), a certification report may
include supplemental testing instructions in PDF format. If necessary
to run a valid test, the equipment-specific, supplemental information
must include any additional testing and testing set up instructions
(e.g., specific operational or control codes or settings), which would
be necessary to operate the basic model under the required conditions
specified by the relevant test procedure. A manufacturer may also
include with a certification report other supplementary items in PDF
format (e.g., manuals) for DOE consideration in performing testing
under subpart C of this part.
0
4. Section 429.42 is amended by revising paragraph (b)(4) to read as
follows:
Sec. 429.42 Commercial refrigerators, freezers, and refrigerator-
freezers.
* * * * *
(b) * * *
(4) Pursuant to Sec. 429.12(b)(13), a certification report must
include supplemental information submitted in PDF format. The
equipment-specific, supplemental information must include any
additional testing and testing set up instructions (e.g., charging
instructions) for the basic model; identification of all special
features that were included in rating the basic model; and all other
information (e.g., any specific settings or controls) necessary to
operate the basic model under the required conditions specified by the
relevant test procedure. A manufacturer may also include with a
certification report other supplementary items in PDF format (e.g.,
manuals) for DOE to consider when performing testing under subpart C of
this part.
0
5. Section 429.43 is amended by revising paragraph (b)(4) introductory
text to read as follows:
Sec. 429.43 Commercial heating, ventilating, air conditioning (HVAC)
equipment.
* * * * *
(b) * * *
(4) Pursuant to Sec. 429.12(b)(13), a certification report must
include supplemental information submitted in PDF format. The
equipment-specific, supplemental information must include any
additional testing and testing set up instructions (e.g., charging
instructions) for the basic model; identification of all special
features that were included in rating the basic model; and all other
information (e.g., operational codes or component settings) necessary
to operate the basic model under the required conditions specified by
the relevant test procedure. A manufacturer may also include with a
certification report other supplementary items in PDF format (e.g.,
manuals) for DOE consideration in performing testing under subpart C of
this part. The equipment-specific, supplemental information must
include at least the following:
* * * * *
0
6. Section 429.44 is amended by revising paragraph (b)(4) to read as
follows:
Sec. 429.44 Commercial water heating equipment.
* * * * *
(b) * * *
(4) Pursuant to Sec. 429.12(b)(13), a certification report may
include supplemental testing instructions in PDF format. If necessary
to run a valid test, the equipment-specific, supplemental information
must include any additional testing and testing set up instructions
(e.g., whether a bypass loop was used for testing) for the basic model
and all other information (e.g., operational codes or overrides for the
control settings) necessary to operate the basic model under the
required conditions specified by the relevant test procedure. A
manufacturer may also include with a certification report other
supplementary items in PDF format (e.g., manuals) for DOE consideration
in performing testing under subpart C of this part.
* * * * *
0
7. Section 429.60 is amended by revising paragraph (b)(4) to read as
follows:
[[Page 152]]
Sec. 429.60 Commercial packaged boilers.
* * * * *
(b) * * *
(4) Pursuant to Sec. 429.12(b)(13), a certification report may
include supplemental testing instructions in PDF format. If necessary
to run a valid test, the equipment-specific, supplemental information
must include any additional testing and testing set up instructions
(e.g., specific operational or control codes or settings), which would
be necessary to operate the basic model under the required conditions
specified by the relevant test procedure. A manufacturer may also
include with a certification report other supplementary items in PDF
format (e.g., manuals) for DOE consideration in performing testing
under subpart C of this part.
* * * * *
0
8. Section 429.70 is amended by revising paragraph (c)(5)(iii) to read
as follows:
Sec. 429.70 Alternative methods for determining energy efficiency and
energy use.
* * * * *
(c) * * *
(5) * * *
(iii) Manufacturer participation. (A) Except when testing variable
refrigerant flow systems (which are governed by the rules found at
Sec. 431.96(f)), testing will be completed without a manufacturer
representative on-site. In limited instances further described in
paragraph (c)(5)(iii)(B) of this section, a manufacturer and DOE
representative may be present to witness the test set-up.
(B) A manufacturer's representative may request to be on-site to
witness the test set-up if:
(1) The installation manual for the basic model specifically
requires it to be started only by a factory-trained installer; or
(2) The manufacturer has elected, as part of the certification of
that basic model, to have the opportunity to witness the test set-up. A
manufacturer may elect to witness the test set-up for the initial
verification test for no more than 10 percent of the manufacturer's
basic models submitted for certification and rated with an AEDM per
validation class specified in section (c)(2)(iv) of this paragraph. The
10-percent limit applies to all of the eligible basic models submitted
for certification by a given manufacturer no matter how many AEDMs a
manufacturer has used to develop its ratings. The 10-percent limit is
determined by first calculating 10 percent of the total number of basic
models rated with an AEDM per validation class, and then truncating the
resulting product. Manufacturers who have submitted fewer than 10 basic
models rated with an AEDM for certification may elect to have the
opportunity to witness the test set-up of one basic model. A
manufacturer must identify the basic models it wishes to witness as
part of its certification report(s) prior to the basic model being
selected for verification testing.
(3) In those instances in which a manufacturer has not provided the
required information as specified in Sec. 429.12(b)(13) for a given
basic model that has been rated and certified as compliant with the
applicable standards, a manufacturer is precluded from witnessing the
testing set up for that basic model.
(C) A DOE representative will be present for the test set-up in all
cases where a manufacturer representative requests to be on-site for
the test set-up. The manufacturer's representative cannot communicate
with a lab representative outside of the DOE representative's presence.
(D) If DOE has obtained through retail channels a unit for test
that meets either of the conditions in paragraph (c)(5)(iii)(B) of this
section, DOE will notify the manufacturer that the basic model was
selected for testing and that the manufacturer may have a
representative present for the test set-up. If the manufacturer does
not respond within five calendar days of receipt of that notification,
the manufacturer waives the option to be present for test set-up, and
DOE will proceed with the test set-up without a manufacturer's
representative present.
(E) If DOE has obtained directly from the manufacturer a unit for
test that meets either of the conditions in paragraph (c)(5)(iii)(B) of
this section, DOE will notify the manufacturer of the option to be
present for the test set-up at the time the unit is purchased. DOE will
specify the date (not less than five calendar days) by which the
manufacturer must notify DOE whether a manufacturer's representative
will be present. If the manufacturer does not notify DOE by the date
specified, the manufacturer waives the option to be present for the
test set-up, and DOE will proceed with the test set-up without a
manufacturer's representative present.
(F) DOE will review the certification submissions from the
manufacturer that were on file as of the date DOE purchased a basic
model (under paragraph (c)(5)(iii)(D) of this section) or the date DOE
notifies the manufacturer that the basic model has been selected for
testing (under paragraph (c)(5)(iii)(E) of this section) to determine
if the manufacturer has indicated that it intends to witness the test
set-up of the selected basic model. DOE will also verify that the
manufacturer has not exceeded the allowable limit of witness testing
selections as specified in paragraph (c)(5)(iii)(B)(2) of this section.
If DOE discovers that the manufacturer exceeded the limits specified in
paragraph (c)(5)(iii)(B)(2), DOE will notify the manufacturer of this
fact and deny its request to be present for the test set-up of the
selected basic model. The manufacturer must update its certification
submission to ensure it has not exceeded the allowable limit of witness
testing selections as specified in paragraph (c)(5)(iii)(B)(2) to be
present at set-up for future selections. At this time DOE will also
review the supplemental PDF submission(s) for the selected basic model
to determine that all necessary information has been provided to the
Department.
(G) If DOE determines, pursuant to paragraph (c)(5)(ii) of this
section, that the model should be tested at the manufacturer's
facility, a DOE representative will be present on site to observe the
test set-up and testing with the manufacturer's representative. All
testing will be conducted at DOE's direction, which may include DOE-
contracted personnel from a third-party lab, as well as the
manufacturer's technicians.
(H) As further explained in paragraph (c)(5)(v)(B) of this section,
if a manufacturer's representative is present for the initial test set-
up for any reason, the manufacturer forfeits any opportunity to request
a retest of the basic model. Furthermore, if the manufacturer requests
to be on-site for test set-up pursuant to paragraph (c)(5)(iii)(B) of
this section but is not present on site, the manufacturer forfeits any
opportunity to request a retest of the basic model.
* * * * *
[FR Doc. 2014-30821 Filed 1-2-15; 8:45 am]
BILLING CODE 6450-01-P
