Energy Efficiency Program for Commercial and Industrial Equipment: Test Procedures and Efficiency Standards for Commercial Warm Air Furnaces; Efficiency Certification, Compliance, and Enforcement Requirements for Commercial Heating, Air Conditioning and Water Heating Equipment
Federal RegisterDec 13, 1999
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DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
10 CFR Part 431
[Docket No. EE-RM/TP-99-450]
RIN No. 1904-AA96
Energy Efficiency Program for Commercial and Industrial
Equipment: Test Procedures and Efficiency Standards for Commercial Warm
Air Furnaces; Efficiency Certification, Compliance, and Enforcement
Requirements for Commercial Heating, Air Conditioning and Water Heating
Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Proposed Rule and Public Hearing.
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SUMMARY: The Energy Policy and Conservation Act, as amended (EPCA),
establishes energy efficiency standards and test procedures for certain
commercial equipment, including commercial warm air furnaces. In
today's rule the Department of Energy (DOE or the Department) proposes
regulations to implement the standards and test procedures for these
furnaces and to address other ancillary matters (e.g., compliance
certification, prohibited actions, and enforcement procedures) for
commercial heating, air conditioning and water heating equipment
generally.
DATES: The Department will accept comments, data, and information
regarding the proposed rule until February 28, 2000. Please submit ten
(10) copies. In addition, the Department requests that you provide an
electronic copy (3\1/2\'' diskette) of the comments in
WordPerfectTM 8.
The Department will hold a public hearing on Thursday, January 27,
2000, in Washington, DC. Please send requests to speak at the hearing
so that the Department receives them by 4:00 p.m., January 24, 2000.
Send ten (10) copies of your statements for the public hearing so that
the Department receives them by 4:00 p.m., January 24, 2000. The
Department also requests a computer diskette (WordPerfectTM
8) of each statement.
ADDRESSES: Please address requests to make statements at the public
hearing and send copies of such statements to Ms. Brenda Edwards-Jones,
and send written comments to Mr. Cyrus Nasseri, each at the following
address: U.S. Department of Energy, Office of Energy Efficiency and
Renewable Energy, EE-41, 1000 Independence Avenue, SW, Washington, DC
20585-0121. You should identify all such documents both on the envelope
and on the documents as ``Energy Conservation Program for Commercial
Equipment: Test Procedures for Commercial Warm Air Furnaces and
Certification Requirements for Commercial Equipment, Docket No. EE-RM/
TP-99-450.'' The hearing will begin at 9:00 a.m., on Thursday, January
27, 2000, and will take place in Room 1E-245 at the U.S. Department of
Energy, Forrestal Building, 1000 Independence Avenue, SW, Washington,
DC 20585-0121. You can find more information concerning public
participation in this rulemaking proceeding in section IV, ``Public
Comment,'' of this notice.
You can read copies of the transcript of the public hearing and
public comments received in the Freedom of Information Reading Room
(Room No. 1E-190) at the U.S. Department of Energy, Forrestal Building,
1000 Independence Avenue, SW, Washington, DC 20585-0121, between the
hours of 9:00 a.m. and 4:00 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Cyrus H. Nasseri, U.S. Department of
Energy, Office of Energy Efficiency and Renewable Energy, Mail Station,
EE-41, 1000 Independence Avenue, SW, Washington, D.C. 20585, (202) 586-
9138, FAX (202) 586-4617,
e-mail: Cyrus.N[email protected], or Edward Levy, Esq, U.S.
Department of Energy, Office of General Counsel, Mail Station, GC-72,
1000 Independence Avenue, SW, Washington, D.C. 20585, (202) 586-9507,
e-mail: Edward.L[email protected]
SUPPLEMENTARY INFORMATION:
The proposed rule refers to certain industry standards established
by the American National Standards Institute (ANSI), the American
Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc.
(ASHRAE), the Illuminating Engineering Society of North America (IES),
and Underwriters Laboratories (UL). These individual industry standards
are referenced by the single comprehensive ``ANSI/ASHRAE/IES Standard
90.1-1989,'' which will be cited by its shorter title ``ASHRAE/IES
Standard 90.1'' in the rest of this document. The proposed rule would
incorporate, by reference, the test procedures contained in ASHRAE/IES
Standard 90.1 for commercial warm air furnaces. Those industry
standards are: American National Standards Institute (ANSI) Standard
Z21.47-1993, ``Gas-Fired Central Furnaces'; and Underwriters
Laboratories (UL) Standard 727-1994, ``Standard for Oil-Fired Central
Furnaces.'' The proposed rule would also incorporate by reference, (1)
Sections 8.2, 11.2, and 11.2.1, and accompanying Forms 715 and 721, of
the Hydronics Institute (HI) Standard ``Testing and Rating Standard for
Heating Boilers,'' 6th Edition, 1989, which specify a flue loss
calculation procedure for oil-fired equipment, and (2) Sections
7.2.2.4, 7.8, 9.2 and 11.3.7 of the ASHRAE Standard 103-1993, ``Method
of Testing for Annual Fuel Utilization Efficiency of Residential
Central Furnaces and Boilers,'' which specify a test procedure for
condensing furnaces.
You can view copies of these standards at the Department of
Energy's Freedom of Information Reading Room at the address stated
above. You can obtain copies of the ASHRAE and HI standards from the
American Society of Heating, Refrigerating, and Air-Conditioning
Engineers, Inc., 1971 Tullie Circle, NE, Atlanta, GA 30329, and the
Hydronics Institute Inc., 35 Russo Place, Berkeley Heights, N.J. 07922,
respectively. You can obtain copies of the ANSI and UL standards from
Global Engineering Documents, 15 Inverness Way East, Englewood, CO
80112, or http://global.ihs.com/. You can obtain electronic versions of
the ASHRAE standards at ASHRAE's web site, http://www.ashrae.org/book/
bookshop.htm, and of the ANSI standards at ANSI's web site, http://
webstore.ansi.org/ansidocstore/. For more information concerning public
participation in this rulemaking proceeding, see section IV, ``Public
Comment,'' of this notice.
You can obtain the latest information regarding the public hearing
from the Office of Codes and Standards world wide web site at the
following address: http://www.eren.doe.gov/buildings/codes__standards/
index.htm.
I. Introduction
A. Authority
B. Background.
1. General.
2. The Test Procedures for Furnaces.
C. The Proposed Rule.
II. Discussion
A. General.
B. ASHRAE/IES Standard 90.1 Referenced Furnace Test Standards.
C. Definition of Thermal Efficiency for Furnaces.
D. Procedures for Measuring Flue Losses of Oil Furnaces and
Incremental Efficiency of Condensing Furnaces.
1. Flue Loss Calculation for Oil-Fired Furnaces.
2. Condensing Furnaces.
[[Page 69599]]
E. Sampling, Certification and Enforcement for Commercial
Heating, Air Conditioning and Water Heating Equipment.
1. Background and Public Comments.
a. Purpose.
b. Sampling.
c. Public Comments and Recommendations.
2. Proposed Certification and Enforcement Procedures.
a. Certification Procedures.
b. Basis for Certification: Methods for Determining Efficiency.
c. Voluntary Independent Certification Program.
d. Manufacturers Not Participating in a VICP.
e. Enforcement.
3. Accommodation for Manufacturing Tolerances, Measurement
Uncertainty and Small Sample Sizes.
III. Procedural Requirements
A. Review Under the National Environmental Policy Act of 1969.
B. Review Under Executive Order 12866, ``Regulatory Planning and
Review.''
C. Review Under the Regulatory Flexibility Act.
D. Review Under Executive Order 13132.
E. Review Under Executive Order 12630, ``Governmental Actions
and Interference with Constitutionally Protected Property Rights.''
F. Review Under the Paperwork Reduction Act.
G. Review Under Executive Order 12988, ``Civil Justice Reform.''
H. Review Under Section 32 of the Federal Energy Administration
Act of 1974.
I. Review Under Unfunded Mandates Reform Act of 1995.
J. Review Under the Plain Language Directives.
K. Review Under the Treasury and General Government
Appropriations Act, 1999.
IV. Public Comment
A. Written Comment Procedures.
B. Public Hearing.
1. Procedures for Submitting Requests to Speak.
2. Conduct of Hearing.
C. Issues on which Comments are Requested.
I. Introduction
A. Authority
Part B of Title III of the Energy Policy and Conservation Act
(EPCA) of 1975, Pub. L. 94-163, as amended, by the National Energy
Conservation Act of 1978 (NECPA), Pub. L. 95-619, the National
Appliance Energy Conservation Act of 1987 (NAECA), Pub. L. 100-12, the
National Appliance Energy Conservation Amendments of 1988 (NAECA 1988),
Pub. L. 100-357, and the Energy Policy Act (EPACT), Pub. L. 102-486,
established the Energy Conservation Program for Consumer Products other
than Automobiles. Part 3 of Title IV of NECPA amended EPCA to add
``Energy Efficiency of Industrial Equipment,'' which included air
conditioning equipment, furnances, and other types of equipment.
EPACT also amended EPCA with respect to industrial equipment. It
provided definitions, test procedures, labeling provisions, energy
conservation standards, and authority to require information and
reports from manufacturers. See 42 U.S.C. 6311-6316. Specifically, for
example, EPCA now authorizes the Secretarey of Energy to prescribe test
procedures that are reasonably designed to produce results which
reflect energy efficiency, energy use and estimated operating costs,
and that are not unduly burdensome to conduct. 42 U.S.C. 6314. With
respect to certain industrial equipment for which EPCA prescribes
energy conservation standards, including commercial war air furnances,
``the test procedures shall be those generally accepted industry
testing procedures or rating procedures developed or recognized by the
American Society of Heating, Refrigerating and Air Conditioning
Engineers, as referenced in ASHRAE/IES/ Standard 90.1 and in effect on
June 30, 1992.'' 42 U.S.C. 6314(a)(4)(A). Further, if such an industry
testing or rating procedure gets amended, DOE must revise its test
procedure to be consistent with the amendment, unless the Secretary
determines, based on clear and convincing evidence, that to do so would
not meet general requirements spelled out in the statute for test
procedures. 42 U.S.C. 6314(a)(4)(B). Before prescribing any test
procedures for this equipment, the Secretary must publish them in the
Federal Register and afford interested persons at least 45 days to
present data, views and arguments. 42 U.S.C. 6314(b). Effective 360
days after a test procedure rule applicable to certain covered
equipment, including commercial warm air furnances, is prescribed, no
manufacturer, distributor, retailer or private labeler may make any
representation in writing or in broadcast advertisement respecting the
energy consumption or cost of energy consumed by such equipment, unless
it has been tested in accordance with the prescribed procedure and such
representation fairly discloses the results of the testing. 42 U.S.C.
6314(d). Finally, EPACT extends certain powers, originally granted to
the Secretary under NAECA, to require manufacturers of equipment
covered by this proposed rule to submit information and reports for a
variety of purposes, including insuring compliance with requirements.
See 42 U.S.C. 6316(a).
B. Background
1. General
The Department of Energy (DOE or the Department) has an energy
conservation program for consumer products, conducted under Part B of
Title III of EPCA, 42 U.S.C. 6291-6309. Under EPCA, the consumer
appliance standards program essentially consists of four parts: test
procedures, Federal energy conservation standards, labeling, and
certification and enforcement procedures. The Federal Trade Commission
(FTC) is responsible for labeling, and the Department implements the
remainder of the program as codified in Title 10 of the Code of Federal
Regulations, Part 430--Energy Conservation Program for Consumer
Products.
Since 10 CFR part 430 covers consumer products, which differ from
commercial and industrial equipment, the Department is creating a new
Part 431 in the Code of Federal Regulations (10 CFR part 431), Energy
Conservation Program for Commercial and Industrial Equipment, to
implement DOE's program for certain commercial and industrial equipment
covered under EPCA. These will include commercial heating, air
conditioning and water heating equipment. This new program will consist
of: Test procedures, Federal energy conservation standards, labeling,
and certification and enforcement procedures. EPCA directs the
Department, rather than the FTC, to administer the statute's efficiency
labeling provisions for commercial equipment.
On April 14 and 15, 1998, the Department convened a public workshop
to solicit views and information from interested parties that would aid
in the development of rules for commercial heating, air conditioning
and water heating equipment. The Department requested comment on a
number of specific issues, including issues related to test procedures,
and the most cost effective and reliable regimes for sampling,
certification and enforcement. Statements during the public workshop
and written comments that were received afterwards helped refine the
issues involved in this rulemaking and provided useful information
contributing to their resolution. The Department convened a second
public workshop on October 18, 1998, to obtain comments on the issues
as they had been refined, and on approaches presented by the National
Institute of Standards and Technology (NIST) for resolving them.
[[Page 69600]]
2. The Test Procedures for Furnaces
During the April 1998 workshop, the Department sought comments on
the following issues regarding test procedures for commercial warm air
furnaces:
(1) EPCA uses thermal efficiency as the descriptor for reporting
the efficiency value of commercial warm air furnaces. The test standard
ANSI Standard Z21.47, referenced by ASHRAE/IES Standard 90.1 for gas-
fired furnaces, defines a thermal efficiency whose value is calculated
by the flue loss method, resulting in a value that is customarily
called combustion efficiency in the Heating, Ventilation and Air-
Conditioning and Water Heating (HVAC & WH) industry. Also, the test
standard UL Standard 727 referenced by ASHRAE/IES Standard 90.1 for
oil-fired furnaces specifies the determination of a flue loss during
the combustion test under steady state conditions resulting similarly
in a value for combustion efficiency. Based on the fact that the
combustion efficiency values are calculated by the referenced test
standards, should the Department interpret the EPCA efficiency
descriptor ``thermal efficiency'' to have the same meaning that
``combustion efficiency'' has in common technical use?
(2) The referenced test standard for oil-fired furnaces, UL
Standard 727, does not provide a calculation procedure for the
determination of flue loss. Should DOE designate the flue loss
calculation procedure from the Hydronics Institute Testing and Rating
Standard for Heating Boilers, the referenced test standard for oil-
fired boilers, for calculating flue loss?
(3) Should DOE provide a procedure specifically for testing
condensing furnaces?
Attendees at the April 1998 workshop provided comments and input on
these issues and the California Energy Commission (CEC) provided
additional written comments afterwards. These comments helped to
further clarify the issues. Section II, Discussion, will cover them in
more detail.
After the April 1998 workshop, the Department and NIST worked
towards addressing the identified issues for commercial warm air
furnaces. A set of recommendations resulted from that work, and NIST
developed a summary report of the recommendations. The summary report
formed the basis for discussions during the October 18 workshop, which
enabled the Department to elicit further views and information from
interested parties. The summary report included draft rule language for
commercial warm air furnaces.
C. The Proposed Rule
In today's proposed rule the Department proposes energy efficiency
test procedures for commercial warm air furnaces. In formulating these
test procedures, the Department has considered both oral and written
comments, and has incorporated recommendations where appropriate.
Section II below contains the reasons for incorporating or not
incorporating any significant recommendations. The Department will soon
issue separate notices of proposed rulemaking regarding test procedures
for commercial water heaters, boilers and air conditioners.
Today's proposed rule also contains compliance, certification,
enforcement and certain other general provisions that would apply to
all covered commercial heating, air conditioning and water heating
equipment. The Department intends to promulgate a single set of
provisions on these subjects for all classes of such equipment, and
therefore the other notices proposing test procedures for such
equipment will not address these subjects.
II. Discussion
A. General
This section discusses the main test procedure issues identified
for commercial warm air furnaces and certification and enforcement
issues for all covered commercial heating, air conditioning and water
heating equipment. The furnace test procedure issues are discussed in
subsection (B) ``ASHRAE/IES Standard 90.1 Referenced Furnace Test
Standards,'' subsection (C) ``Definition of Thermal Efficiency for
Furnaces,'' and subsection (D) ``Procedures for Measuring Flue Losses
of Oil Furnaces and Incremental Efficiency of Condensing Furnaces.''
Subsection (E) addresses the certification and enforcement issues for
commercial heating, air conditioning and water heating equipment
generally.
B. ASHRAE/IES Standard 90.1 Referenced Furnace Test Standards
EPCA requires that the testing procedures for measuring the
efficiency of commercial warm air furnaces must be those generally
accepted industry testing procedures or rating procedures that were
developed or are recognized by the American Society of Heating,
Refrigerating and Air Conditioning Engineers, Inc., as referenced in
ASHRAE/IES Standard 90.1 and that were in effect on June 30, 1992.
Also, if such an industry test procedure or rating procedure for
commercial warm air furnaces is amended, the Secretary of Energy must
adopt such revisions unless the Secretary determines that to do so
would not produce test results which reflect energy efficiency, energy
use, and estimated operating costs, or that the procedures would be
unduly burdensome to conduct.
The version of ASHRAE/IES Standard 90.1 in effect on June 30, 1992
references two industry test standards: one for gas-fired furnaces, the
American National Standard Institute (ANSI) Standard Z21.47-1987 (ANSI
Standard Z21.47); and the other for oil-fired furnaces, Underwriters
Laboratory (UL) Standard 727-1986 (UL Standard 727). Since 1989, both
industry test standards have been revised several times. The revised
ANSI Standard Z21.47-1987 has resulted in ANSI Standard Z21.47-1993,
and the revised UL Standard 727-1986 in UL Standard 727-1994. Also,
ASHRAE revised ASHRAE/IES Standard 90.1-1989 itself via several
addenda: 90.1b, 90.1d, and 90.1e in 1992; 90.1c, 90.1g, and 90.1i in
1993; and 90.1m in 1995 and 90.1n in 1997. Two of the addenda contained
revisions related to warm air furnaces: Addendum 90.1b updated the
referenced furnace test standards to their most up-to-date versions in
1992, and Addendum 90.1i revised the Table (Table 10.9 in ASHRAE/IES
Standard 90.1) containing the Standard Rating Conditions and Minimum
Performance with respect to warm air furnaces. Currently, a major
revision to ASHRAE/IES Standard 90.1-1989, designated as ASHRAE/IES
Standard 90.1-1989R, is going through the ASHRAE public review process.
Once ASHRAE formally completes revisions to ASHRAE/IES Standard 90.1,
the Department intends to either amend its test procedure as necessary
to make it consistent with the amended version of ASHRAE/IES 90.1, or
determine by rule that doing so would not meet certain EPCA
requirements (for example, it would be unduly burdensome to conduct).
Regarding the two industry test standards revised after June 30,
1992, there is no change in the energy performance test section of
either standard from its prior version. Therefore, the Department
proposes to incorporate by reference the latest versions of the two
referenced test procedures. These test standards are ANSI Standard
Z21.47-1993 for gas-fired central furnaces and UL Standard 727-1994 for
oil-fired central furnaces.
[[Page 69601]]
C. Definition of Thermal Efficiency for Furnaces
EPCA specifies the energy standard levels and values for commercial
warm air furnaces in terms of thermal efficiency. Section 342(a)(4)(A)-
(B), 42 U.S.C. 6313(a)(4)(A)-(B). The test standard ANSI Standard
Z21.47 (for gas-fired furnaces) specifies that the thermal efficiency
for a furnace is to be computed by a formula defined as ``100 percent
minus percent flue loss,'' and UL Standard 727 (for oil-fired furnaces)
defines a maximum allowable flue loss (which is not to exceed 25
percent) in its combustion test section. Other than the flue loss
requirement, UL Standard 727 does not provide for or require the
calculation of either efficiency or output. However, with the measured
flue loss, one can calculate an efficiency using the formula as
specified in ANSI Standard Z21.47. The efficiency as calculated by the
formula in ANSI Standard Z21.47 (and defined as thermal efficiency in
ANSI Standard Z21.47) is customarily called the combustion efficiency
of fossil-fueled equipment. The statute does not provide a definition
for the term ``thermal efficiency.''
These points were discussed during the April 1998 workshop.
Conventionally, the definition for ``thermal efficiency'' is the useful
output of a device divided by its input, expressed in percent. It is
related mathematically to the combustion efficiency (also expressed in
percent) by the equation ``Thermal Efficiency (percent) = Combustion
Efficiency (percent) - Jacket Loss (percent),'' where the combustion
efficiency is equal to ``100 percent minus flue loss (percent).'' The
discussion concerned whether the Department should include a jacket
loss measurement, in addition to the flue loss, in the test procedure.
GAMA (Page 158, April 14, 1998 Workshop Transcript) asserted that
(1) the thermal efficiency in the statute actually referred to the
classical definition of combustion efficiency, (2) thermal efficiency
was specified because it was so called in the referenced test
procedure, and (3) it meant 100 percent minus flue loss (percent). GAMA
believes that defining the term thermal efficiency to be ``combustion
efficiency minus jacket loss'' would change both the intent and the
stringency of the requirements that currently exist in ASHRAE/IES
Standard 90.1 and in EPCA. GAMA further stated that there is an
additional requirement in the proposed ASHRAE/IES Standard 90.1-1989R
limiting the jacket loss of the furnace to less than 0.75% of the input
rating. GAMA stated that this prescriptive requirement was an outgrowth
of discussions between the industry and the ASHRAE committee about
defining a seasonal measure of efficiency for commercial warm air
furnaces, and the resulting compromise was to continue to specify a
thermal efficiency term that is 100 percent minus flue losses, to be
followed by several additional prescriptive requirements that relate to
off-cycle losses, for example. Consequently, GAMA stated that it would
be strongly opposed to any suggestion to define the term thermal
efficiency as [100 percent - flue loss (percent) - jacket losses
(percent)].
Rheem (Page 162, April 14, 1998 Workshop Transcript) pointed out
that the efficiency definition also raises a functional issue. To
achieve EPCA efficiency values under a traditional definition of
thermal efficiency (e.g., an 80 percent thermal efficiency as
determined by reducing the combustion efficiency by the jacket loss)
could result in flue gas condensation, which causes corrosion and
premature failures.
Based on the above discussion, the Department understands that the
consensus of the attendees was that in the test procedure the term
``thermal efficiency,'' as specified in the statute for commercial warm
air furnaces means what is commonly defined as ``combustion
efficiency'' in other contexts. The Department believes that,
consistent with adopting industry test standards referenced in ASHRAE/
IES Standard 90.1-1989, the statute's intent is to assign the same
meaning to the term ``thermal efficiency'' as its definition in the
corresponding referenced standards. Therefore, the Department believes
that the term thermal efficiency, when used as the energy standard
descriptor for commercial warm air furnaces, should be calculated as
100 percent minus percent flue loss, as was specified in the referenced
ANSI Standard Z21.47. When the Department proposed this approach during
the October 1998 workshop, there was no objection from the
participants. Accordingly, the Department proposes today to explicitly
define the term thermal efficiency of commercial warm air furnaces as
equal to 100 minus the percent flue loss. This proposal would avoid any
possible future confusion regarding the meaning of the term thermal
efficiency when used in the test procedure for commercial warm air
furnaces.
D. Procedures for Measuring Flue Losses of Oil Furnaces and Incremental
Efficiency of Condensing Furnaces
1. Flue Loss Calculation for Oil-Fired Furnaces
As stated above, the referenced test standard for oil-fired
furnaces, UL Standard 727, does not provide a calculation procedure for
the determination of flue loss. However, a value for the percent flue
loss is needed for determining the efficiency. At the April, 1998
workshop, the Department suggested the use of the flue loss calculation
specified in the ASHRAE Standard 90.1 referenced test standard for oil-
fired boilers--the 1989 edition of the Hydronics Institute Testing and
Rating Standard for Heating Boilers--for calculating the flue loss of
an oil-fired furnace. Since the type of flue gas data required and the
formulas/equations used for the flue loss calculation are identical for
any oil-fired equipment, the calculation procedure as specified in the
Hydronics Institute test standard for an oil-fired boiler is directly
applicable to an oil-fired furnace. There were no comments opposing the
Department's suggestion during the Department's workshops held during
April and October 1998.
For the above reasons, the Department is proposing as the
calculation procedure for percent flue loss for oil-fired furnaces the
procedure in (1) sections 8.2, 11.2, and 11.2.1 of the 1989 Hydronics
Institute Testing and Rating Standard for oil-fired boilers, and (2)
those parts of accompanying Forms 715 and 721 which specify the items
to be measured and calculated to obtain flue loss, and which are not
related to steam, water or natural gas.
2. Condensing Furnaces
Participants raised and discussed the issue of testing a condensing
furnace (a warm air furnace designed to condense part of the water
vapor in the flue gases and equipped with a means of collecting and
draining this condensate) during the Department's April 1998 workshop.
ASHRAE/IES Standard 90.1 and the two test standards referenced by
ASHRAE/IES Standard 90.1 do not specifically provide test conditions
for testing a condensing furnace.
Attendees at the April 1998 workshop from the furnace industry
(GAMA, York International, and Lennox) stated that there are very few,
if any, commercial unitary or rooftop condensing furnaces on the
market, and it is difficult to provide for the requirements of a
condensing furnace in a roof-top installation. Therefore, they stated,
it is not necessary to provide a DOE test
[[Page 69602]]
procedure for testing the condensing feature of a commercial furnace at
present.
York (April 14, 1998 Workshop Transcript, Page 220) stated that
condensate measurement should not be specified for condensing boilers
and furnaces. York stated that in general, rooftop combustion equipment
will not operate under condensing conditions, because of the difficulty
of condensate disposal. York felt that in the future, condensing
furnaces might become a possibility as the technology evolves. York
stated that currently, most rooftop units have an efficiency of 80
percent or less, and they operate at flue temperature above condensing
range.
Lennox (April 14, 1998 Workshop Transcript, Page 220) agreed with
the York comment and emphasized that although condensing units have
been on the market for a long time, none of them, for all intents and
purposes, are unitary products sold for commercial applications. Lennox
stated that this is due to a number of problems, and if these problems
were to be solved through a technological breakthrough, then a test
procedure would be appropriate.
During the October workshop, Natural Resources Canada (October 13,
1998 Workshop Transcript, Page 285) stated that the condensate
collected from the condensing furnace should be only what condenses
within the appliance itself and not beyond the heat exchanger.
The Department disagrees with the observation from the furnace
industry workshop attendees that DOE's adoption of a test procedure for
determining the improvement to the efficiency due to the condensing
feature of a condensing furnace is unwarranted at the present time.
Since a condensing furnace is likely to provide a significantly higher
efficiency, the Department believes that a test procedure should be in
place in order to have a readily available, accurate method for testing
these more efficient furnaces in the future, even if no commercial
condensing furnaces are on the market at the present time. In addition,
a test procedure is needed for evaluating this design option during any
future consideration of possible revisions to the efficiency standard.
Although the ASHRAE/IES Standard 90.1 does not specify a test
procedure for measuring the energy efficiency of a condensing furnace,
an industry test procedure--ASHRAE Standard 103-1993--does exist for
residential condensing furnaces and industry has been using it for over
a decade. The Department believes that the method of collecting and
measuring the quantity and the temperature of the flue condensate under
steady state conditions at the maximum rated input over a 30 minute
test period, should also be applicable to a commercial condensing
furnace. Since the Department sees no technical problems in its
application to commercial warm air furnaces, the Department is
proposing to adopt the test procedure specified in section 7.2.2.4,
7.8, 9.2 and 11.3.7 of ASHRAE Standard 103-1993 for determining the
increment in energy efficiency due to the condensing feature of a
condensing furnace. In adopting the test procedure, a slight
modification is applied to the equation in Section 11.3.7.2 of ASHRAE
103-1993 for steady-state heat loss due to hot condensate flowing down
the drain. In the aforementioned section, the assumed indoor
temperature is 70 deg.F, and the average outside temperature is
specified as 42 deg.F. The modification replaces both of these
temperatures with the actual temperature of the test area, to be
consistent with Section 2.2.8 of ANSI Z21.47-1993, during the steady-
state thermal efficiency test.
The Department agrees with the recommendation from Natural
Resources Canada that the condensate from the unit be separated from
the condensate from the flue pipe. The referenced test procedure in
ASHRAE Standard 103-1993 requires an installation which prevents the
flue pipe condensate from flowing back into the unit. (See section
7.2.2.4 of ASHRAE Standard 103-1993).
E. Sampling, Certification and Enforcement for Commercial Heating, Air
Conditioning and Water Heating Equipment
1. Background and Public Comments
a. Purpose. The purpose of establishing regulations concerning
sampling, certification and enforcement is to provide reasonable
assurance that covered commercial equipment are appropriately tested
and actually comply with applicable energy conservation standards. In
today's rule, the Department proposes a set of provisions concerning
compliance certification and enforcement procedures for certain
commercial equipment. To help assure compliance with energy
conservation standards, the rule would require that each manufacturer
use one of the specified methods for determining the efficiency of each
basic model of its commercial heating, air conditioning and water
heating equipment, and certify that the basic models comply with the
applicable energy conservation standards. In addition, the rule
specifies enforcement procedures for use in resolving any disputed
performance claims for such commercial equipment.
b. Sampling. For consumer products, as described in 10 CFR part
430, manufacturers must test a sample of each basic model of a covered
product to establish its efficiency level and its compliance with the
applicable energy efficiency descriptor value specified in the Act. The
test procedure for each product incorporates a sampling plan designed
to give a reasonable assurance that the true mean performance of the
equipment being manufactured and sold meets or exceeds the applicable
value, and is accurately determined. The mean performance is a critical
performance characteristic of a covered product because it determines
the overall energy usage of a covered product population, and thus the
impact of the product on national energy consumption. Individual units
produced from a single design may vary in energy efficiency, however,
for a number of valid reasons, including variability in manufacturing.
The Department must balance the risk to the public of purchasing a non-
complying unit with the burden on the manufacturer in conducting
performance testing to assure compliance, to provide adequate
protection for the public without imposing an excessive testing burden
on the manufacturers. Given that performance testing of every unit of a
covered product would be prohibitively expensive and time-consuming,
the manufacturer must estimate the average performance of the basic
model using a sample drawn from the population. The method for
estimating equipment performance from a small sample of a large
population is called a sampling plan.
c. Public Comments and Recommendations. At the April 1998 workshop,
the Department presented for discussion compliance certification and
enforcement sampling procedures for commercial equipment that were
similar to those established in the past for consumer products. These
require manufacturers to certify compliance based on testing under
strictly prescribed statistical sampling schemes designed to assure,
with reasonable probability, that the average efficiency of each
product sold meets the applicable standard. Enforcement involves a
similar, but not identical statistical sampling arrangement. The
advantage of this approach is that manufacturers can provide adequate
assurance of compliance without having to test every single unit they
produce.
[[Page 69603]]
When presented with the concept of applying a prescribed
statistical sampling method to certifying commercial equipment, the
participants at the April 1998 workshop made the following general
observations:
i. A workable uniform sampling method covering the wide variety of
commercial equipment would be difficult, if not impossible, to
formulate. This is due to the large number of design variations and
small numbers of identical units for some equipment.
ii. The California Energy Commission (CEC) and several voluntary
industry associations already have effective efficiency certification
programs in place that leave the sample design to the manufacturer.
iii. With adequate independent verification and penalties for
improper certification by a verification program, prescribing the
sampling schemes is unnecessary, since the manufacturers would have an
incentive to design them in each case so as to limit the risk of being
found to be out of compliance.
With these observations in mind, the Department investigated the
certification programs of the State of California, the Air Conditioning
and Refrigeration Institute, the Gas Appliance Manufacturers'
Association, and the Hydronics Institute. Participation in these
industry programs, generically referred to as Voluntary Independent
Certification Programs (VICP's), could help provide assurance of
accurate performance claims. Manufacturers have been participating in
VICP's primarily for marketing reasons, since they feel that
demonstrating the performance of their equipment via an independent
testing agency adds legitimacy to their performance claims. VICP's are
typically operated by industry associations, and the costs of the
programs are covered by fees paid by the participating manufacturers.
Manufacturers certify the performance metrics of their equipment to the
VICP, the VICP publishes a directory that lists performance values of
equipment offered for sale by each manufacturer, and the VICP
periodically verifies the performance claims. When the VICP determines
that a model performs below its rated level, generally the manufacturer
must either re-rate the product or cease manufacturing it and have it
removed from the directory (i.e., ``obsolete'' the model). A
manufacturer's failure to meet such conditions typically results in its
expulsion from the VICP. All of these programs entail some form of the
following: (1) Certification by a manufacturer to a VICP of the
efficiency level of each of its covered products; (2) the VICP's
independent verification or supervision of levels claimed by the
manufacturer; and (3) penalties imposed by the VICP to discourage
inaccurate ratings and ensure that certified efficiencies would be
reliable. On the other hand, some manufacturers do not participate in
VICP's, and no program exists at present for commercial warm-air
furnaces, so the Department would need to specify its own certification
testing and verification arrangement, at least for equipment not
otherwise covered by a VICP.
The Department received additional comments during, and subsequent
to, the second public workshop which was held on October 18, 1998.
These comments helped refine the proposed compliance certification and
enforcement procedures to take advantage of current voluntary industry
certification programs and allow alternate procedures for determining
compliance.
At the second workshop, commenters suggested that DOE consider the
following elements in the proposed rule:
After DOE initially approves a VICP, in accordance with
the specified criteria, a VICP should not require re-approval by DOE
unless there is a change within the program. In case of such a change,
the program would inform DOE promptly and apply for a re-approval.
Another suggestion was that DOE approve a VICP for a pre-determined
length of time (suggested time frame: 12 months to 5 years), during
which DOE could revoke approval at any time if warranted.
Participation in a VICP should be a basis for establishing
both (1) the validity of product efficiency representations, and (2)
compliance with minimum standards.
The ``obsoleting'' of a model should not automatically
follow its ``delisting'' from a VICP product directory, if the basic
model falls short of the certified efficiency but still meets the
minimum efficiency standards prescribed by EPCA.
A VICP should monitor the performance data and provide
this data to DOE.
For Non-Participants in VICP's, review of manufacturer
self-testing by a licensed Professional Engineer to assure compliance
and the accuracy of efficiency representations by itself is not
adequate. They should conduct performance testing or verify the testing
results by using a qualified independent laboratory.
DOE should approve alternative methods other than testing
for efficiency determinations, but the Department should guard against
public disclosure of proprietary methods, which could harm individual
manufacturers.
An alternative method for efficiency determination should
not require DOE approval in the case of VICP participants.
Certification provisions should afford manufacturers the
discretion to certify more conservative (i.e., lower) efficiency
ratings than the mean efficiency values predicted by the manufacturers'
tests or calculations.
Enforcement provisions should restrict the definition of
units available for testing to units which are available for commercial
distribution within the U.S.
Enforcement testing should require samples of no more than
two units initially, followed by up to two more units if the first two
fail.
The compliance statement for a basic model should be a
one-time report to DOE which either the manufacturer/private labeler or
a VICP acting on their behalf can submit.
Written comments underscored some of these observations and added
others. The Air-Conditioning & Refrigeration Institute (ARI) (October
13, 1998 Workshop, Written Comment #9) requested that the regulations
allow for the rerating of basic models that, when tested, fall short of
their certified efficiency but still meet the minimum efficiency
standards. ARI also requested that re-approval of a VICP should only be
required when there is a change in the program, or after five years,
whichever comes first. On the issue of enforcement testing, ARI
supported starting with two test samples instead of four. They
questioned the need for a compliance statement being submitted to DOE
for manufacturers who participate in a VICP, since the VICP will have
to be approved by DOE, and manufacturers' ratings will be verified
through the VICP.
Written comments from the Gas Appliance Manufacturers Association
(GAMA) (October 13, 1998 Workshop, Written Comment #10) also requested
that the rerating of a product which meets the energy efficiency
standard prescribed by EPCA, but tests lower than the rating submitted
by the manufacturer, be allowed. GAMA also felt that periodic re-
approval of a VICP should not be required, and that enforcement testing
should entail an initial sample of two units. GAMA also questioned the
need for a compliance statement for VICP participants.
Based upon the comments received during and after the public
workshops, the Department proposes requiring manufacturers to certify
compliance based on testing, and to either conduct
[[Page 69604]]
the testing under a DOE-prescribed sampling scheme, or participate in a
VICP approved by the Department. Each option would afford the
opportunity to utilize alternative efficiency determination methods. In
this way, the Department proposes to minimize additional testing
burdens on manufacturers of commercial equipment, while maintaining a
certification procedure which is fair to all manufacturers, and which
provides reasonable assurance that the established minimum performance
standards are being met. The proposed procedures, described in the
following sections, include a basic certification program, a provision
for VICP's, and an enforcement testing plan. The Department anticipates
that this proposal would not require any additional testing beyond what
manufacturers who are participating in industry certification programs
conduct already, and it would involve a similar level of testing by
manufacturers who elect not to participate in VICP's.
2. Proposed Certification and Enforcement Procedures
a. Certification Procedures. The Department proposes to require
each manufacturer to certify to the Department the efficiencies of
commercial equipment it manufactures, either directly or through a
VICP. This would be accomplished by submitting both a compliance
statement, a one-time submittal, and a certification statement for each
basic model of covered equipment. The manufacturer would be required to
maintain records of all test results and related analysis used in the
determination of the mean energy performance. Today's rule includes
possible formats for certifying efficiency to the Department.
b. Basis for Certification: Methods for Determining Efficiency.
Underlying each certification to the Department would be the
manufacturer's determination of a basic model's energy efficiency or
usage. The proposed rule would require a manufacturer to make such
determination either by testing the basic model, or by calculating its
energy efficiency or use through use of an alternative efficiency
determination method (AEDM). The specific requirements for testing and
AEDMs would differ, however, depending on whether a manufacturer's
covered products were included in a VICP approved by the Department.
An AEDM is an analytical procedure, such as a computer simulation
or other approach, that can determine the energy efficiency or use of a
product. The Department proposes to permit the use of AEDMs due to the
potentially large number of basic model variations, and the burden that
would result if the Department required that each basic model be tested
to determine its efficiency. But a manufacturer could use an AEDM to
establish the energy efficiency or use of covered equipment only if the
ADEM had been verified and validated with measured data, i.e., using
test results. Thus, although the Department proposes to permit the use
of AEDMs, and would not require the testing of every basic model, all
efficiency determinations would be based on testing.
The proposed requirements for testing would apply both to tests
used directly to determine the efficiency of a basic model, and to
tests used to validate an AEDM. All manufacturers would be required to
(1) perform testing in accordance with the applicable DOE test
procedure, (2) test randomly selected units representative of the basic
model, (3) have their testing and rating results meet industry
standards for accuracy for the equipment being rated, and (4) test a
sufficient number of units to produce an accurate estimate of the mean
efficiency of all units manufactured of the basic model. The proposed
rule allows VICP participants substantial discretion in this last
respect, by permitting them to use any valid statistical method to
determine the number of units to be tested and the mean efficiency. For
non-participants, the Department is proposing stricter, prescribed
sampling procedures, since their efficiency ratings will not be subject
to routine verification testing.
As to AEDMs, in addition to the general requirements stated above,
the Department would require any manufacturer employing an AEDM to
maintain written documentation of its validation of the AEDM. In
addition, if the equipment being rated is not listed with a VICP
approved by the Department, validation would require demonstration that
the results from using the AEDM are consistent with the results of
actual tests of at least three basic models, and the manufacturer would
be required to obtain advance approval of the AEDM by the Department.
The manufacturer would apply for such approval in writing and submit
all relevant information related to the calculations and calibration
procedures.
c. Voluntary Independent Certification Program. Participation in a
VICP would allow a manufacturer an alternative to (1) following the DOE
sampling plan, and (2) required DOE approval of an AEDM. A VICP
participant must still test its products and validate its AEDM, and
must file a compliance statement and certification report, either
directly to the Department, or via the VICP on the manufacturers'
behalf.
The Department proposes that it would approve VICP's that meet the
following requirements:
The VICP publishes in written form the procedures for the
operation of the certification program, and permits all manufacturers
of products covered by the program to participate so long as they
comply with requirements concerning operation of the program.
To participate in the VICP, a manufacturer would be
precluded from distributing any basic models of equipment covered by
the program unless it had reported to the VICP the energy efficiency or
usage, as applicable, of that basic model, based on measurement of the
basic model's performance.
The VICP publishes or otherwise makes available to the
general public and to the Department, these efficiency ratings.
The VICP conducts periodic verification testing on listed
equipment, such that the performance of each basic model is checked and
compared to its rated efficiency value at least once every five years.
The VICP testing personnel select units for verification
testing randomly from manufacturer's stock.
The VICP conducts its verification testing at an
independent laboratory, or under the supervision of independent
personnel, in accordance with the prescribed DOE test procedures.
The VICP verification testing meets industry standards for
the accuracy of testing and of rating results for the equipment being
tested, and the program satisfactorily describes how it meets these
standards.
The VICP has an appropriate standard for determining
whether the efficiency rating a manufacturer claims for a product is
valid.
The VICP provides to the manufacturer copies of all
records of completed verification testing performed on the
manufacturer's covered equipment.
The VICP requires that, if a basic model fails
verification testing conducted by the VICP, the manufacturer of the
basic model must remove it from production and sale if the verification
testing results show it is not in compliance with EPCA efficiency
standards, or correctly re-rate it if it complies with such standards.
The program must also provide that a participating manufacturer will be
expelled from the VICP if it does not
[[Page 69605]]
comply with such requirements, and that the VICP will report to the
Department verification test results that find the performance of a
basic model not to meet EPCA efficiency standards. (A basic model
``fails'' verification testing when the VICP has compared the basic
model's efficiency rating resulting from completion of that testing
with the efficiency rating claimed by the manufacturer, and has
determined that the rating claimed by the manufacturer is not valid.)
The VICP provides for penalties or other incentives to
encourage manufacturers to report accurate and reliable efficiency
ratings.
The VICP provides to the Department on an annual basis,
summary data that shows the results of verification testing on each
basic model, including the manufacturer's energy efficiency or use
rating for the model, the measured energy efficiency or use from the
verification testing , and either the energy conservation standard for
the tested basic model or a description of the model sufficient to
enable the Department to determine the standard that applies to the
basic model. (See discussion in section 3 below)
Voluntary Independent Certification Programs which meet the above
requirements could request the Department's approval by submitting
documentation substantiating their compliance directly to the
Department. Approval would remain in force for five years, unless
material changes occur in the program. In the event of changes, the
VICP administrator would be required to notify the Department, which
may at that time rescind the approval. At the end of any such five-year
period, the VICP could request re-approval.
The VICP could submit compliance and certification paperwork to the
Department on the behalf of participating manufacturers.
d. Manufacturers Not Participating in a VICP. As discussed above,
the Department proposes requiring manufacturers not participating in
VICP's to meet more specific criteria for testing and AEDMs. With
regard to testing, the sampling procedure referred to above would
require a manufacturer to select a sample of sufficient size to ensure
that:
Any represented value of energy efficiency is no greater
than the lower of the mean of the sample, or the lower 95 percent
confidence limit of the true mean divided by 0.95; and,
Any represented value of energy usage is no less than the
greater of the mean of the sample, or the upper 95 percent confidence
limit of the true mean divided by 1.05.
The Department also proposes that manufacturers of commercial
heating, air conditioning and water heating equipment who do not
participate in a VICP approved by the Department, must conduct all
performance testing of covered products at an independent laboratory,
or under the supervision of independent testing personnel. This
requirement would provide greater assurance of the accuracy and
reliability of such testing. It is also warranted by the lack of on-
going verification of the efficiency ratings of non-participants in
VICPs, and by DOE's proposal that verification testing by VICPs be
conducted by an independent facility or under independent supervision.
DOE is uncertain, however, as to whether sufficient numbers of
independent testing laboratories and personnel exist to enable
manufacturers to satisfy this requirement, and whether it would
otherwise impose undue burdens on manufacturers. Therefore, the
Department encourages interested parties to address these issues in
particular, including whether the Department should modify or omit this
requirement in the proposed rule.
e. Enforcement. The Department proposes that the enforcement
provisions for commercial heating, air conditioning and water heating
equipment would be for the most part virtually identical to those in 10
CFR Part 430, except for the sampling plan for enforcement testing. The
proposed sampling plan for enforcement testing would require a
manufacturer to provide to DOE an initial sample size of two units for
enforcement testing, with a manufacturer's option of testing an
additional two units, for a maximum sample size of four units. The
Department could allow an exception to the sample size for very large
units on a case-by-case basis, such that only a single unit would be
tested. Manufacturers would be permitted to request such an exception
from the Department.
Participation in a VICP would not affect a manufacturer's
obligations as described in the enforcement regulations.
3. Accommodation for Manufacturing Tolerances, Measurement Uncertainty
and Small Sample Sizes
As indicated above, VICP's conduct verification testing to
determine if a manufacturer's rating of a basic model is accurate. The
testing frequently consists of tests on a single unit, or at most two
units, of the model. Following the tenets of probability, the measured
energy efficiency or use derived from testing any small sample, such as
one or two units of a basic model, may be higher or lower than the
average for the basic model population as a whole. These variations may
be due to manufacturing tolerances and/or measurement uncertainty. As a
result, VICP's frequently employ a tolerance band by which a basic
model is deemed not to fail verification testing unless its performance
measured from the testing is below the manufacturer's rating for the
model by more than a set percentage, such as 5 percent. The
justification for this tolerance band is to avoid a false conclusion
that a basic model has been over-rated, based on test results for a
small sample.
The Department has generally required that compliance with the
energy conservation standards in EPCA be determined by whether the mean
performance of the entire population of a covered product meets the
minimum standard applicable to that product. Under this approach, an
individual unit of a product could have a measured efficiency less than
the applicable minimum standard, due for example to variations in
manufacturing and/or to measurement uncertainty, but the product would
be in compliance as long as the average efficiency of the basic model
population conforms to the minimum standard. Following once again the
tenets of probability, this means that if a sufficiently large number
of units of a basic model were tested, the mean energy efficiency would
meet the standard. To allow testing of small samples to establish
compliance, the appliance standard rules in 10 CFR Part 430 incorporate
specific statistical procedures for rating products for energy
efficiency and use. In this rulemaking, the Department proposes to
require use of such strict statistical procedures by manufacturers to
rate products not covered by a VICP. But it is not proposing them for
compliance determinations for products covered by VICP's, largely
because verification testing by a VICP helps insure accurate efficiency
ratings.
Although the Department recognizes that some accommodation by a
VICP is appropriate to allow for reasonable levels of manufacturing
variation and measurement uncertainty in covered products, it is
concerned that manufacturers might take advantage of a tolerance band
on verification testing results by consistently over-rating the energy
use or efficiencies of basic models. Such a problem might be indicated,
for example, if verification test results were consistently skewed on
the side of over-rating of basic models, rather than exhibiting a
normal distribution whereby the proportion of
[[Page 69606]]
the verification test results that were higher than the rating
submitted by the manufacturer was approximately equal to the proportion
that were lower. The Department is concerned both that non-complying
products might be rated as being in compliance and that complying
products might be over-rated.
To address these concerns, today's proposed rule contains
provisions to enable the Department to monitor the extent, if any, to
which the energy efficiency or use of products covered by VICP's may be
over-rated as a result of tolerance bands for verification testing
results. These provisions would require VICP's to submit to the
Department annually summary data on verification testing results.
Specifically, the proposed rule would require VICP's to report the
following for each verification test or round of verification tests on
a basic model: (1) The model's energy efficiency or use as measured by
the testing, (2) the energy efficiency or use rating submitted by the
manufacturer for that basic model (i.e., the rating that was evaluated
by the testing), and (3) either the energy conservation standard for
that basic model or a brief description of the basic model that would
enable the Department to determine the applicable standard. The data
would not include manufacturer identification. If it appeared to the
Department from this information that over-rating was occurring, the
Department would consider one or more of the following actions:
Pursue modification of all or part of the VICP's
provisions for verification testing;
Revoke the Department's certification of the VICP; or
Pursue enforcement procedures.
III. Procedural Requirements
A. Review Under the National Environmental Policy Act of 1969
EPCA prescribes energy efficiency standards and test procedures for
commercial equipment, and in today's rule, the Department proposes to
implement these requirements for commercial warm air furnaces and, to
some extent, commercial heating, air conditioning and water heating
equipment generally. The Department has reviewed the proposed rule
under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
Secs. 4321 et seq., the regulations of the Council on Environmental
Quality, 40 CFR parts 1500-1508, the Department's regulations for
compliance with NEPA, 10 CFR Part 1021, and the Secretarial Policy on
the National Environmental Policy Act (June 1994). Implementation of
the Proposed rule would not result in environmental impacts. The
Department has therefore determined that the proposed rule is covered
under the Categorical Exclusion found at paragraph A6 of appendix A to
subpart D of the Department's NEPA Regulations, which applies to
rulemakings that are strictly procedural. Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
B. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
Today's rule has been determined not to be a ``significant
regulatory action,'' as defined in section 3(f) of Executive Order
12866, ``Regulatory Planning and Review.'' 58 FR 51735 (October 4,
1993). Accordingly, this action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980, 5 U.S.C. Sec. 603, requires
the preparation of an initial regulatory flexibility analysis for every
rule which, by law, the agency must propose 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.
A regulatory flexibility analysis examines the impact of the rule on
small entities and considers alternative ways of reducing negative
impacts.
The Small Business Administration considers an entity to be a small
business if, together with its affiliates, it employs fewer than a
threshold number of workers specified in 13 CFR part 121. The estimated
number of affected small businesses are discussed below.
The threshold number of employees for SIC classification
3585, which includes warm-air furnaces, is 750. The Department
estimates that between 25 and 39 firms manufacture warm-air furnaces,
and of these the majority have fewer than 750 employees and are
considered small businesses. The number of these small businesses that
manufacture commercial warm-air furnaces covered by the EPACT standards
(with capacities of 225,000 Btu per hour and above) could be smaller.
The threshold number for SIC classification 3585, which
includes air conditioners and heat pumps, is also 750. The Department
estimates that approximately 31 firms manufacture covered commercial
air conditioners and heat pumps, and of these, 14 are considered small
businesses.
The threshold number for SIC classification 3433, which
includes commercial packaged boilers, and other non-electric heating
equipment, is 500. The Department estimates that no more than 29 firms
manufacture commercial packaged boilers, and of these, the majority are
considered small businesses. The number of small businesses that
manufacture commercial-sized packaged boilers covered by the EPACT
standards (with capacities of 300,000 Btu per hour and above) could be
smaller.
The threshold number for SIC classification 3589, which
includes commercial water heaters, along with other service industry
machinery not elsewhere classified, is also 500. The Department
estimates that approximately 25 firms manufacture water heaters and
unfired hot water storage tanks, and of these the majority are
considered small businesses. The number of small businesses that
manufacture commercial-sized equipment covered by the EPACT standards
could be smaller.
EPCA establishes efficiency standards for commercial heating, air
conditioning and water heating equipment and requires the Department to
prescribe test procedures that are accepted by industry and referenced
in ASHRAE/IES Standard 90.1. For the most part, EPCA specifies the
standards and test procedures incorporated in today's proposed rule.
Therefore, any costs of complying with them are imposed by EPCA and not
the rule. Moreover, today's proposed rule codifies testing procedures
that are already generally employed by manufacturers, both large and
small. The proposed rule also prescribes procedures for manufacturers
to certify compliance with the standards and test procedures legislated
by EPCA, using powers which were originally granted to the Secretary
under NAECA, and extended by EPACT to require manufacturers of covered
commercial equipment to submit information and reports for a variety of
purposes, including insuring compliance with requirements. These
certification requirements, as well as proposed enforcement provisions,
are new for manufacturers of commercial equipment and will affect both
small and large enterprises.
The Department has drafted the proposed rule to minimize the burden
of compliance for manufacturers, and the rule relies heavily on current
industry practice. Statistical sampling is permitted for testing, so as
to minimize the testing burden. Manufacturers that participate in
VICP's are also afforded considerable latitude in designing
[[Page 69607]]
sampling plans to suit their individual circumstances, consistent with
the requirement for reasonable degrees of reliability. To minimize
testing burden further, manufacturers are permitted to use analytical
procedures, such as computer simulation, to determine the efficiencies
of their products. Manufacturers are also given the option of
certifying their products to the Department independently or through
trade associations, which can minimize costs by reporting on large
numbers of individual products at one time. Finally, the certification
forms and enforcement procedures are similar to those already required
for consumer products, and several of the same manufacturers produce
both consumer products and commercial equipment.
The cost of establishing compliance will depend on the number of
basic models a manufacturer produces. The cost of completing the
compliance certification form should be negligible once testing has
occurred. Testing cost depends on unit size, but could amount to
several thousands of dollars per basic model. To the extent that
manufacturers must already test their products for efficiency to assure
that they meet the existing statutory efficiency standards, or for any
other reason, they will not incur new costs in complying with today's
proposed rule. The Department believes that any significant economic
impact will fall only on those firms which do not now routinely test
their products. The Department further believes that testing is a
widely accepted practice, and that companies that do not test are rare
and do not represent a substantial number of small entities.
The Department has limited discretion to apply different
requirements to small manufacturers. EPCA mandates uniform standards
and test procedures for commercial equipment. In this regard, it is
noteworthy that although EPCA contains a ``small manufacturer
exemption'' for consumer appliances (42 USC 6295 (t)), it includes no
such exemption for commercial and industrial equipment.
The Department invites public comment on its conclusion that the
incremental costs of complying with the proposed rule (not including
the cost of requirements that are directly imposed by EPCA, such as the
energy efficiency standards themselves) would not impose a significant
impact on a substantial number of small businesses.
D. Review Under Executive Order 13132
Executive Order 13132 (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. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. The proposed rule published today would not
regulate the States. The proposed rule would primarily codify energy
efficiency standards and test procedures already established in EPCA
for commercial equipment. DOE has determined that today's rule does not
have a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
No further action is required by Executive Order 13132.
E. Review Under Executive Order 12630, ``Governmental Actions and
Interference With Constitutionally Protected Property Rights''
The Department has determined under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 52 FR 8859 (March 18, 1988), that this regulation
would not result in any takings which might require compensation under
the Fifth Amendment to the United States Constitution.
F. Review Under the Paperwork Reduction Act
Today's notice of proposed rulemaking would impose information
maintenance and reporting requirements on manufacturers of commercial
heating, air conditioning and water heating equipment. An agency may
not conduct or sponsor a collection of information unless the
collection displays a currently valid OMB control number. (See 5 CFR
1320.5(b)).
The proposed rule will require manufacturers to maintain records
concerning their determinations of the energy consumption and
efficiency of covered commercial equipment. DOE believes that this
recordkeeping is necessary for implementing and monitoring compliance
with energy conservation standards and testing provisions mandated by
EPCA. The proposed rule would also require manufacturers to make a one-
time submission of a compliance statement, and to submit certification
reports for existing basic models of covered commercial equipment,
within 12 months after the publication of a final rule in the Federal
Register. A report covering a basic model need only be submitted once,
stating that the manufacturer has determined that the basic model meets
the applicable energy conservation standard. After the initial
submission, manufacturers will have to submit a certification report
for each new basic model before the model may be distributed in
commerce, or to certify compliance with a new or amended standard.
The proposed collections of information are necessary for
implementing and monitoring compliance with the efficiency standards
and testing requirements for commercial equipment mandated by EPCA. In
developing the proposed information collection requirements, DOE
considered the views of stakeholders that were received at two public
workshops held during April and October 1998, in written comments
solicited in the notice of those meetings, and in subsequent informal
contacts.
The following are the DOE estimates of the total annual reporting
and recordkeeping burden imposed on the affected manufacturing firms
for compliance with the proposed rule. The Department estimates that
the number of hours required to comply with the reporting and
recordkeeping requirements in the proposed rule is approximately 200 to
300 hours per year per firm.
For commercial warm-air furnaces, the estimated number of
covered manufacturing firms is between 25 and 39. The total annual
reporting and recordkeeping burden from compliance with the proposed
rule is expected to be from 5,000 to 11,700 hours (25 x 200 to 39 x 300
hours per year).
For small and large commercial air conditioners and heat
pumps, the estimated number of covered manufacturing firms is no more
than 31. The total annual reporting and recordkeeping burden from
compliance with the proposed rule is expected to be from 6,200 to 9,300
hours (31 x 200 to 31 x 300 hours per year).
For commercial packaged boilers, the estimated number of
covered manufacturing firms is no more than 29. The total annual
reporting and recordkeeping burden from compliance with the proposed
rule is expected to be from 5,800 to 8,700 hours (29 x 200 to 29 x 300
hours per year).
For commercial water heaters and unfired hot water storage
tanks, the estimated number of covered manufacturing firms is no more
than 25. The total annual reporting and recordkeeping burden from
compliance
[[Page 69608]]
with the proposed rule is expected to be from 5,000 to 7,500 hours
(25 x 200 to 25 x 300 hours per year).
The above estimates include time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing the collection of information.
In developing the burden estimates, DOE considered that each
manufacturer is required to comply with the statutory energy efficiency
standards for each type of commercial equipment it is manufacturing on
the effective date of the Act, and for each model it begins to
manufacture after that date. The required certification would contain
the type of information that many manufacturers already submit to
voluntary programs or develop for the design or marketing of energy
efficient commercial equipment. Those manufacturers should be able to
comply with the certification required by the proposed rule without
much additional burden. And, finally, the Department believes, based on
manufacturers' statements as to their determinations of product
performance, that they already maintain the records of efficiency
determinations that the proposed rule would require them to keep.
The Department has submitted these proposed information collection
and recordkeeping requirements to the Office of Management and Budget
for review and approval under the Paperwork Reduction Act, 44 U.S.C.
3501, et seq. The OMB previously approved Appendix A to Subpart F of
Part 430, ``Compliance Statement and Certification Report,'' and
assigned OMB control number 1910-1400. The proposed rule would revise
these forms to cover certification of commercial heating, air
conditioning and water heating equipment; facilitate the use of the
certification report by third party representatives of covered product
manufacturers; and in an attachment, specify forms similar to those
that manufacturers are currently required to submit to DOE by 10 CFR
Part 430.62(a)(2).
The Department considers the information collection and
recordkeeping called for in this proposed rule to be the least
burdensome possible for meeting the legal requirements of EPCA and
effectively enforcing the provisions of the law. However, the
Department encourages public comments concerning the anticipated
paperwork reporting burden. Send comments regarding recordkeeping or
reporting burdens, or any other aspect of information collection, to
the Department in accordance with the instructions in the DATES and
ADDRESSES sections of this notice, as well as in Section IV below. Send
a copy of the same comments to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, DC 20503, marked
``Attention: Desk Officer for DOE.''
G. Review Under Executive Order 12988, ``Civil Justice Reform''
With respect to the review of existing regulations and the
promulgation of new regulations, Section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by Section 3(a), Section 3(b) of the Executive Order
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) provide 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 the Executive Order requires agencies to
review regulations in light of applicable standards Section 3(a) and
Section 3(b) to determine whether they are met or it is unreasonable to
meet one or more of them.
The Department reviewed today's proposed rule under the standards
of Section 3 of the Executive Order and determined that, to the extent
permitted by law, it meets the requirements of those standards.
H. 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), the Department of Energy 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.
Section 32 provides in essence that, where a proposed rule contains or
involves use of commercial standards, the notice of proposed rulemaking
must inform the public of the use and background of such standards.
This rule proposed in this notice incorporates a several commercial
standards which EPCA requires to be used. These include testing
standards referenced by ASHRAE/IES Standard 90.1-1989 for the
measurement of steady state thermal efficiency of commercial warm air
furnaces. Because the Department has very limited discretion to depart
from the standards referenced in ASHRAE/IES 90.1, Section 32 of the
FEAA does not apply to them.
Two commercial standards incorporated in this rule are not
referenced by ASHRAE/IES Standard 90.1-1989, and are thus their use is
not required by EPCA. One is ASHRAE Standard 103-1993, `` Method of
Testing for Annual Fuel Utilization Efficiency of Residential Central
Furnaces and Boilers.'' The Department proposes to adopt portions of
this standard to obtain a suitable test procedure for condensing
furnaces, which are not covered by ASHRAE/IES Standard 90.1-1989. The
other is the Hydronics Institute (HI) Standard ``Testing and Rating
Standard for Heating Boilers,'' which specifies a flue loss calculation
procedure for oil-fired equipment, also not covered by ASHRAE/IES
Standard 90.1-1989. The Department has evaluated these two standards
and is unable to conclude whether they fully comply with the
requirements of section 32(b) of the Federal Energy Administration Act,
i.e., that they were developed in a manner that which fully provides
for public participation, comment and review.
As required by section 32(c) of the Federal Energy Administration
Act, the Department will consult with the Attorney General and the
Chairman of the Federal Trade Commission concerning the impact of these
two standards on competition, prior to prescribing a final rule.
I. Review Under Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') requires that the Department prepare a budgetary impact
statement before promulgating a rule that includes a Federal mandate
that may result in expenditure by state, local, and tribal governments,
in the aggregate, or by the private sector, of $100 million or more in
any one year. The budgetary impact statement must include: (i)
Identification of the Federal law under which the rule is promulgated;
(ii) a qualitative and
[[Page 69609]]
quantitative assessment of anticipated costs and benefits of the
Federal mandate and an analysis of the extent to which such costs to
state, local, and tribal governments may be paid with Federal financial
assistance; (iii) if feasible, estimates of the future compliance costs
and of any disproportionate budgetary effects the mandate has on
particular regions, communities, non-Federal units of government, or
sectors of the economy; (iv) if feasible, estimates of the effect on
the national economy; and (v) a description of the Department's prior
consultation with elected representatives of state, local, and tribal
governments and a summary and evaluation of the comments and concerns
presented.
The Department has determined that the action proposed today does
not include a Federal mandate that may result in estimated costs of
$100 million or more to state, local or to tribal governments in the
aggregate or to the private sector. Therefore, the requirements of
Sections 203 and 204 of the Unfunded Mandates Act do not apply to this
action.
J. Review Under the Plain Language Directives
The President's Memorandum on ``Plain Language in Government
Writing,'' 63 FR 31885 (June 10, 1998) directs each Federal agency to
write all published rulemaking documents in plain language. The
Memorandum includes general guidance on what constitutes ``plain
language.'' Plain language requirements will vary from one document to
another, depending on the intended audience, but all plain language
documents should be logically organized and clearly written.
DOE invites public comments on how to make this proposed rule
easier to understand. For example:
Are the requirements in the rule clearly stated?
Would a different organization better suit your needs?
Have we organized the material to suit your needs?
Does the rule contain jargon or unnecessary technical
language?
Can we improve the rule's format?
K. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. No. 105-277) requires federal agencies to issue a
Family Policymaking Assessment for any proposed rule or policy that may
affect family well-being. Today's proposal would not have any impact on
the autonomy or the integrity of the family as an institution.
Accordingly, DOE has concluded that it is not necessary to prepare a
Family Policymaking Assessment.
IV. Public Comment
A. Written Comment Procedures
The Department invites interested persons to participate in the
proposed rulemaking by submitting data, comments, or information with
respect to the issues set forth in today's rule to Mr. Cyrus Nasseri,
at the address indicated at the beginning of the notice. The Department
will consider all submittals received by the date specified at the
beginning of this notice in developing the final rule.
Under the provisions of Title 10 CFR 1004.11, any person submitting
information which he or she believes to be confidential and exempt by
law from public disclosure should submit one complete copy of the
document and ten (10) copies, if possible, from which the information
believed to be confidential has been deleted. The Department of Energy
will make its own determination with regard to the confidential status
of the information and treat it according to its determination.
Factors of interest to the Department when evaluating requests to
treat as confidential information that has been submitted include: (1)
A description of the items; (2) an indication as to whether and why
such items are customarily treated as confidential within the industry;
(3) whether the information is generally known by or available from
other sources; (4) whether the information has previously been made
available to others without obligation concerning its confidentiality;
(5) an explanation of the competitive injury to the submitting person
which would result from public disclosure; (6) an indication as to when
such information might lose its confidential character due to the
passage of time; and (7) why disclosure of the information would be
contrary to the public interest.
B. Public Hearing
1. Procedures for Submitting Requests To Speak
The beginning of this notice of proposed rulemaking indicates the
time and place of the public hearing. The Department invites any person
who has an interest in today's notice of proposed rulemaking, or who is
a representative of a group or class of persons that has an interest in
these proposed rules, to request an opportunity to make an oral
presentation. If you would like to attend the public hearing, please
notify Ms. Brenda Edwards-Jones at (202) 586-2945. You may also hand
deliver requests to speak to the address indicated at the beginning of
the notice between the hours of 8:00 a.m. and 4:00 p.m., Monday through
Friday, except Federal holidays.
The person making the request should briefly describe the interest
concerned and state why he or she, either individually or as a
representative of a group or class of persons that has such an
interest, is an appropriate spokesperson, and give a telephone number
for contact.
The Department requests each person selected to be heard to submit
an advance copy of his or her statement prior to the hearing as
indicated at the beginning of this notice. The Department, at its
discretion, may permit any person wishing to testify who cannot meet
this requirement, to testify if that person has made alternative
arrangements with the Office of Codes and Standards in advance. The
letter making a request to give an oral presentation must ask for such
alternative arrangements.
2. Conduct of Hearing
The Department will designate a Department official to preside at
the hearing. The hearing will not be a judicial or an evidentiary-type
hearing, but the Department will conduct it in accordance with 5 U.S.C.
553 and Section 336 of the Act. The Department of Energy reserves the
right to select the persons to be heard at the hearing, to schedule the
respective presentations, and to establish the procedures governing the
conduct of the hearing.
The Department will permit each participant to make a prepared
general statement, limited to five (5) minutes, prior to the discussion
of specific topics. The general statement should not address these
specific topics, but may cover any other issues pertinent to this
rulemaking. The Department will permit other participants to briefly
comment on any general statements. The Department will then divide the
hearing into segments, with each segment consisting of one or more
topics covered by this notice, as follows:
Test Procedures for Commercial Furnaces
ASHRAE Referenced Test Standards.
Definition of Thermal Efficiency.
Test Procedures for the Measurement of Energy Efficiency.
Other Test Standard Topics.
[[Page 69610]]
Certification and Enforcement Procedures for Commercial Heating, Air
Conditioning and Water Heating Equipment
Certification.
Alternative Methods for Determining Efficiency.
Voluntary Independent Certification Programs.
Non-Participating Manufacturers.
Other Certification and Enforcement Topics.
The Department will introduce each topic with a brief summary of
the relevant provisions of the proposed rule, and the significant
issues involved. The Department will then permit participants in the
hearing to make a prepared statement limited to five (5) minutes on
that topic. At the end of all prepared statements on a topic, the
Department will permit each participant to briefly clarify his or her
statement and comment on statements made by others. The Department is
particularly interested in having participants address in their
statements the specific issues set forth below in Section IV-C,
``Issues on which Comments are Requested,'' and participants should be
prepared to answer questions by the Department and other participants
at the public hearing concerning these issues. Representatives of the
Department may also ask questions of participants concerning other
matters relevant to the hearing. The total cumulative amount of time
allowed for each participant to make prepared statements must be 20
minutes.
The official conducting the hearing will accept additional comments
or questions from those attending, as time permits. The presiding
official will announce any further procedural rules, or modification of
the above procedures, needed for the proper conduct of the hearing.
The Department will arrange for a transcript of the hearing, and
will retain the entire record of this rulemaking, including the
transcript, and will make it available for inspection in the
Department's Freedom of Information Reading Room. Any person may
purchase a copy of the transcript from the transcribing reporter.
C. Issues on Which Comments Are Requested
The Department of Energy is interested in receiving comments and/or
data concerning the feasibility, workability and appropriateness of the
test procedures and certification and enforcement program proposed in
today's rulemaking. Also, the Department welcomes discussion on
improvements or alternatives to the proposed approaches. In particular,
the Department requests comments on whether it should require
manufacturers not participating in a VICP to have their equipment
tested by, or under the supervision of, independent laboratories or
personnel. And if such a requirement is retained in the final rule,
should the Department impose specific competency criteria or
qualification requirements to ensure accurate and reliable testing?
Such measures might include laboratory accreditation, professional
engineering registration or other similar demonstration of testing
competence.
List of Subjects in 10 CFR Part 431
Administrative practice and procedure, Energy conservation,
Incorporation by reference.
Issued in Washington, DC, on November 10, 1999.
Dan W. Reicher,
Assistant Secretary, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, Title 10, Part 431 of
the Code of Federal Regulations (CFR) is proposed to be amended as set
forth below:
PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND
INDUSTRIAL EQUIPMENT
1. The authority citation for part 431 continues to read as
follows:
Authority: 42 U.S.C. 6311-6316.
2. Subparts H and I are added to read as follows:
Subpart H--Definitions for Commercial HVAC & WH Products
Sec.
431.141 Definitions.
Subpart I--Commercial Warm Air Furnaces
431.151 Purpose and scope.
Test Procedures
431.161 Materials incorporated by reference.
Sec. 431.162 Uniform test method for the measurement of energy
efficiency of commercial warm air furnaces.
Energy Conservation Standards
431.171 Energy conservation standards and their effective dates.
Subpart H--Definitions for Commercial HVAC & WH Products
Sec. 431.141 Definitions.
For purposes of subparts I through P, words are defined as provided
for in section 340 of the Act and as follows--
Act or EPCA means the Energy Policy and Conservation Act, 42 U.S.C.
6291-6317.
Alternate efficiency determination method or AEDM means a method of
calculating the efficiency of a commercial HVAC & WH product, in terms
of the descriptor used in or under section 342 (a) of the Act to state
the energy conservation standard for that product.
Basic model means all units of a commercial HVAC & WH product
manufactured by one manufacturer which have the same primary energy
source and which do not have any differing electrical, physical, or
functional characteristics that affect energy consumption.
Batch means a collection of production units of a basic model from
which a test sample is selected.
Batch size means the number of units in a batch.
Btu means British thermal unit, which is the quantity of heat
required to raise the temperature of one pound of water one degree
Fahrenheit.
Commercial HVAC & WH product means any article of a type which
meets the statutory definition of ``covered equipment'' under section
340(1)(B)--(F) of the Act, and to which an energy conservation standard
is applicable under section 342(a) of the Act.
Commercial warm air furnace means a warm air furnace that is a
commercial HVAC & WH product.
Covered equipment means industrial equipment of a type specified in
section 340 of the Act.
DOE or the Department means the Department of Energy.
Flue loss means the sum of the sensible heat and latent heat above
room temperature of the flue gases leaving the appliance.
Independent laboratory means a laboratory or test facility not
controlled by, affiliated with, having financial ties with, or under
common control with the manufacturer or distributor of the covered
equipment being evaluated.
Independent testing personnel means an individual, or an employee
of an organization, not controlled by, affiliated with, having
financial ties with, or under common control with the manufacturer or
distributor of the covered equipment being evaluated.
Manufacturer's model number means the identifier used by a
manufacturer to uniquely identify the group of identical or essentially
identical commercial equipment to which a particular unit belongs. The
manufacturer's model number typically appears on equipment nameplates,
in equipment catalogs and in other product advertising literature.
[[Page 69611]]
Natural gas means natural gas as defined by the Federal Power
Commission.
Private labeler means an owner of a brand or trade mark on the
label of a commercial HVAC & WH product which bears a private label. A
commercial HVAC & WH product bears a private label if:
(1) Such product (or its container) is labeled with the brand or
trademark of a person other than a manufacturer of such product,
(2) The person with whose brand or trademark such product (or
container) is labeled has authorized or caused such product to be so
labeled, and
(3) The brand or trademark of a manufacturer of such product does
not appear on such label.
Secretary means the Secretary of the Department of Energy.
State means a State, the District of Columbia, Puerto Rico, or any
territory or possession of the United States.
State regulation means a law or regulation of a State or political
subdivision thereof.
Thermal efficiency means the efficiency descriptor for warm air
furnaces and equals 100 percent minus percent flue loss determined
using test procedures prescribed under Sec. 431.162.
Warm air furnace means a self-contained oil-fired or gas-fired
furnace designed to supply heated air through ducts to spaces that
require it and includes combination warm air furnace/electric air
conditioning units but does not include unit heaters and duct furnaces.
Subpart I--Commercial Warm Air Furnaces
Sec. 431.151 Purpose and scope.
This subpart contains energy conservation requirements for certain
commercial warm air furnaces, pursuant to Part C of Title III of the
Energy Policy and Conservation Act, as amended, 42 U.S.C 6311-6316.
Test Procedures
Sec. 431.161 Materials incorporated by reference.
(a) The Department incorporates by reference the following test
procedures which are not otherwise set forth in this part 431. The
Director of the Federal Register has approved the material listed in
paragraph (b) of this section for incorporation by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Any subsequent
amendment to this material by the standard-setting organization will
not affect the DOE test procedures unless and until DOE amends its test
procedures. The Department incorporates the material as it exists on
the date of the approval and a notice of any change in the material
will be published in the Federal Register.
(b) List of test procedures incorporated by reference.
(1) American National Standards Institute (ANSI) Standard Z21.47-
1993, ``Gas-Fired Central Furnaces.''
(2) Underwriters Laboratories (UL) Standard 727-1994, ``Standard
for Oil-Fired Central Furnaces.''
(3) Sections 8.2.2, 11.2, and 11.2.1, and accompanying Forms 715
and 721, of the Hydronics Institute (HI) Standard ``Testing and Rating
Standard for Heating Boilers,'' 6th Edition, 1989.
(4) Sections 7.2.2.4, 7.8, 9.2, and 11.3.7 of the American Society
of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE)
Standard 103-1993, `` Method of Testing for Annual Fuel Utilization
Efficiency of Residential Central Furnaces and Boilers.''
(c) Availability of references. (1) Inspection of test procedures.
The test procedures incorporated by reference are available for
inspection at:
(i) Office of the Federal Register 800 North Capitol Street, NW,
Suite 700, Washington, DC 20002.
(ii) U.S. Department of Energy, Office of Energy Efficiency and
Renewable Energy, Hearings and Dockets, ``Test Procedures and
Certification Requirements for Commercial Warm Air Furnaces,'' Docket
No. EE-RM/TP-99-450, 1000 Independence Avenue, SW, Washington, DC
20585.
(2) Obtaining copies of Standards. Anyone can obtain a copy of
standards incorporated by reference from the following sources:
(i) Request copies of the ASHRAE Standards from the American
Society of Heating, Refrigerating, and Air-Conditioning Engineers,
Inc., 1971 Tullie Circle, NE, Atlanta, GA 30329, or http://
www.ashrae.org/book/bookshop.htm.
(ii) Request copies of the ANSI Standards from Global Engineering
Documents, 15 Inverness Way East, Englewood, CO 80112, or http://
global.ihs.com/, or http://webstore.ansi.org/ansidocstore/.
(iii) Request copies of the UL Standards from Global Engineering
Documents, 15 Inverness Way East, Englewood, CO 80112, or http://
global.ihs.com/.
(iv) Request copies of the HI Standards from the Hydronics
Institute Inc., 35 Russo Place, Berkeley Heights, N.J. 07922.
Sec. 431.162 Uniform test method for the measurement of energy
efficiency of commercial warm air furnaces.
(a) This section covers the test procedures you must follow if,
pursuant to EPCA, you are measuring the steady state thermal efficiency
of a gas-fired commercial warm air furnace or any oil-fired commercial
warm air furnace, with capacity of 225,000 Btu/h or more. Where this
section prescribes use of ANSI standard Z21.47-1993 or UL standard 727-
1994, perform for purposes of this section only the procedures
pertinent to the measurement of steady-state efficiency.
(b) Test setup. (1) Test setup for Gas-Fired Commercial Warm Air
Furnaces. The test setup, including flue requirement, instrumentation,
test conditions, and measurements for determining the thermal
efficiency of gas-fired warm air furnaces with rated input of 225,000
Btu/h or more, is as specified in Sections 1.1 (Scope), 2.1 (General),
2.2 (Basic Test Arrangements), 2.3 (Test Ducts and Plenums), 2.4 (Test
Gases), 2.5 (Test Pressures and Burner Adjustments), 2.6 (Static
Pressure and Air Flow Adjustments), 2.37 (Thermal Efficiency), and
4.2.1 (Basic Test Arrangements for Direct Vent Control Furnaces) of the
American National Standards Institute (ANSI) Standard for Gas-Fired
Central Furnaces, ANSI Standard Z21.47-1993. The thermal efficiency
test must be conducted only at the normal inlet test pressure, as
specified in Section 2.5.1 of ANSI Z21.47-1993, and at the maximum
hourly Btu input rating specified by the manufacturer for the product
being tested.
(2) Test setup for Oil-Fired Commercial Warm Air Furnaces. The test
setup, including flue requirement, instrumentation, test condition, and
measurement for measuring the thermal efficiency of oil-fired warm air
furnaces with rated input of 225,000 Btu/h or more, is as specified in
sections 1 (Scope), 2 (Units of Measurement), 3 (Glossary), 37
(General), 38 and 39 (Test Installation), 40 (Instrumentation, except
40.4 and 40.6.2 through 40.6.7 which are not required for the thermal
efficiency test), 41 (Initial Test Conditions), 42 (Combustion Test--
Burner and Furnace), 43.2 (Operation Tests), 44 (Limit Control Cutout
Test), 45 (Continuity of Operation Test), and 46 (Air Flow, Downflow or
Horizontal Furnace Test), of the Underwriters Laboratories Standard for
Oil-Fired Central Furnaces, UL Standard 727-1994. A fuel oil analysis
for heating value, hydrogen content, carbon content, pounds per gallon,
and API gravity must be conducted as specified
[[Page 69612]]
in section 8.2.2 of the 1989 Hydronics Institute Testing and Rating
Standard for Heating Boilers. The steady-state combustion conditions,
specified in section 42.1 of UL 727-1994, are attained as evidenced by
variations in the measured flue gas temperature of not more than 5
deg.F for three consecutive readings taken 15 minutes apart.
(c) Additional test measurements. (1) Measurement of Flue CO2
(Carbon Dioxide) for Oil-Fired Furnaces. In addition to the flue
temperature measurement as specified in section 40.6.8 of UL Standard
727, you must locate one or two sampling tubes within six inches
downstream from the flue temperature probe (as indicated on Figure 40.3
of UL Standard 727). If you use an open end tube, it must project into
the flue one-third of the chimney connector diameter. If you use other
methods of sampling CO2, you must place the sampling tube so
as to obtain an average sample. There must be no air leak between the
temperature probe and the sampling tube location. You must collect the
flue gas sample at the same time the flue gas temperature is recorded.
The CO2 concentration of the flue gas must be as specified
by the manufacturer for the product being tested, with a tolerance of
0.1%. You must determine the flue CO2 with an
instrument providing a reading with an error no greater than
0.1%.
(2) Procedure for the Measurement of Condensate for a Gas-Fired
Condensing Furnace. The test procedure for the measurement of the
condensate from the flue gas under steady state operation must be
conducted as specified in sections 7.2.2.4, 7.8 and 9.2 of the American
Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc.
(ASHRAE) Standard 103-1993 under the maximum rated input conditions.
You must conduct this condensate measurement for an additional 30
minutes of steady state operation after the completion of the steady
state thermal efficiency test specified in paragraph (b) of this
section.
(d) Calculations of Thermal Efficiency. (1) Gas-Fired Commercial
Warm Air Furnaces. You must use the calculation procedure as specified
in section 2.37, Thermal Efficiency, of ANSI Standard Z21.47-1993.
(2) Oil-Fired Commercial Warm Air Furnaces. You must calculate the
percent flue loss and the steady state efficiency by following the
procedure specified in section 11.2 (Combustion Efficiency Test), and
Forms 715 and 721, of the 1989 Hydronics Institute (HI) Testing and
Heating Standard for Heating Boilers. The thermal efficiency must be
calculated as:
Thermal Efficiency (percent) = 100 percent--flue loss (percent).
(e) Procedure for the Calculation of the Additional Heat Gain and
Heat loss, and Adjustment to the Thermal Efficiency for a Condensing
Furnace. (1) You must calculate the latent heat gain from the
condensation of the water vapor in the flue gas, and calculate heat
loss due to the flue condensate down the drain, as specified in
sections 11.3.7.1 and 11.3.7.2 of ASHRAE Standard 103-1993, with the
exception that in the equation for the heat loss due to hot condensate
flowing down the drain in section 11.3.7.2, the assumed indoor
temperature of 70 deg.F and the temperature term TOA must
be replaced by the measured room temperature as specified in section
2.2.8 of ANSI Z21.47-1993.
(2) Adjustment to the Thermal Efficiency for Condensing Furnace.
You must adjust the thermal efficiency as calculated in paragraph
(d)(1) of this section by adding the latent gain from the condensation
of the water vapor in the flue gas and subtracting the heat loss (due
to the flue condensate down the drain) to obtain the thermal efficiency
of a condensing furnace.
Energy Conservation Standards
Sec. 431.171 Energy conservation standards and their effective dates.
Each commercial warm air furnace manufactured on or after January
1, 1994 must meet the following energy efficiency standard levels:
(a) For a gas-fired commercial warm air furnace with capacity of
225,000 Btu per hour or more, the thermal efficiency at the maximum
rated capacity must be not less than 80 percent.
(b) For an oil-fired commercial warm air furnace with capacity of
225,000 Btu per hour or more, the thermal efficiency at the maximum
rated capacity must be not less than 81 percent.
3. Subparts J, K, L and M are added to read as follows:
Subpart J--Commercial Air Conditioners and Heat Pumps [Reserved]
Subpart K--Commercial Packaged Boilers [Reserved]
Subpart L--Commercial Water Heaters and Unfired Hot Water Storage
Tanks [Reserved]
Subpart M--Methods of Determining Efficiency of Commercial HVAC & WH
Products.
Sec.
431.481 Requirements applicable to all manufacturers.
431.482 Additional requirements applicable to VICP participants.
431.483 Additional requirements applicable to non-VICP
participants.
431.484 Voluntary independent certification programs (VICP).
Subpart M--Methods of Determining Efficiency of Commercial HVAC &
WH Products.
Sec. 431.481 Requirements applicable to all manufacturers.
(a) General. A manufacturer of a commercial HVAC & WH product may
not distribute any basic model of such product in commerce unless the
manufacturer has determined the efficiency of the basic model either
from testing of the basic model or from application of an alternative
efficiency determination method (AEDM) to the basic model, in
accordance with the requirements of this section. (For purposes of this
subpart, the ``efficiency'' of a commercial HVAC & WH product means the
energy efficiency or energy use of that product, expressed in terms of
the descriptor that is used in or under Section 342(a) of the Act to
state the energy conservation standard for that product.)
(b) Testing. If you test a basic model pursuant to this section to
determine its efficiency or to validate an AEDM, you must:
(1) Select at random the unit(s) to be tested, which must be
representative of the basic model,
(2) Perform the testing in accordance with the applicable DOE test
procedure,
(3) Meet industry standards for the accuracy of testing and of
rating results for the equipment being tested, and
(4) Meet the requirements of either section 431.482(b) or section
431.483(a), whichever is applicable.
(c) Alternative efficiency determination methods.
(1) Criteria an AEDM must satisfy. You may not apply an AEDM to a
basic model to determine its efficiency pursuant to this subpart
unless,
[[Page 69613]]
(i) The AEDM is derived from a mathematical model that accurately
represents the energy consumption characteristics of the basic model,
and
(ii) The AEDM is based on engineering or statistical analysis,
computer simulation or modeling , or other analytic evaluation of
performance data.
(2) Subsequent verification of an AEDM. If you have used an AEDM
pursuant to this subpart,
(i) You must have available for inspection by the Department
records showing:
(A) The method or methods used;
(B) The mathematical model, the engineering or statistical
analysis, computer simulation or modeling, and other analytic
evaluation of performance data on which the AEDM is based, and
(C) Complete test data, product information, and related
information that you generated or acquired under paragraph (c)(1) of
this section and Secs. 431.482(c) or 431.483(b)(1), as applicable, and
(D) The calculations used to determine the average efficiency and
energy consumption of each basic model to which an AEDM was applied.
(ii) If requested by the Department, you must:
(A) Conduct simulations to predict the performance of particular
basic models of the commercial HVAC & WH product, or
(B) Provide analyses of previous simulations conducted by you, or
(C) Conduct sample testing of basic models selected by the
Department, or
(D) Conduct a combination of these.
Sec. 431.482 Additional requirements applicable to VICP participants.
(a) Description of VICP participant. For purposes of this subpart,
a manufacturer that participates in a Voluntary Independent
Certification Program (VICP) approved by the Department for a
commercial HVAC & WH product, as described in Sec. 431.484, and that
complies with all requirements imposed by that program, is a ``VICP
participant'' with respect to that product.
(b) Testing. A VICP participant that tests a basic model pursuant
to this subpart must use statistically valid and accurate methods to
arrive at the efficiency rating of such basic model.
(c) Alternative efficiency determination methods. Before using an
AEDM to determine the efficiency of a basic model pursuant to this
subpart, a VICP participant must apply the AEDM to one or more basic
models that have been tested in accordance with Secs. 431.481(b) and
431.482(b) of this subpart, and the predicted efficiency calculated for
each such basic model from application of the AEDM must be within five
percent of the efficiency determined from testing that basic model. In
addition, the predicted efficiency(ies) calculated for the tested basic
model(s) must on average be within one percent of the efficiency(ies)
determined from testing such basic model(s).
Sec. 431.483 Additional requirements applicable to non-VICP
participants.
If you are a manufacturer that is not a VICP participant with
respect to a particular commercial HVAC & WH product, you must meet the
following requirements as to that product.
(a) Testing. You must perform any testing of a basic model pursuant
to this subpart under the supervision of independent testing personnel,
or have such testing performed at an independent laboratory. In
addition, you must test a sufficient number of units of the basic
model, and the efficiency rating of the basic model must be determined,
such that,
(1) Any represented value of energy efficiency is no greater than
the lower of the mean of the sample, or the lower 95 percent confidence
limit of the true mean divided by 0.95, and,
(2) Any represented value of energy usage is no less than the
greater of the mean of the sample, or the upper 95 percent confidence
limit of the true mean divided by 1.05.
(b) Alternative efficiency determination methods. Before using an
AEDM to determine the efficiency of a basic model pursuant to this
subpart, you must first,
(1) Apply the AEDM to three or more basic models that have been
tested in accordance with Secs. 431.481(b) and 431.483(a) of this
subpart. The predicted efficiency calculated for each such basic model
from application of the AEDM must be within five percent of the
efficiency determined from testing that basic model, and the predicted
efficiencies calculated for the tested basic models must on average be
within one percent of the efficiencies determined from testing such
basic models; and
(2) Obtain from the Department approval of the AEDM. The Department
will provide such approval after receiving from you documentation which
establishes that the AEDM satisfies the requirements of
Secs. 431.481(c)(1) and 431.483(b)(1) of this subpart.
Sec. 431.484 Voluntary independent certification programs (VICP).
(a) The Department will approve a voluntary independent
certification program (VICP) for a commercial HVAC & WH product if the
VICP meets all of the following criteria:
(1) The program publishes its operating procedures in written form,
and permits participation by all manufacturers of products covered by
the program so long as they comply with the VICP's requirements
concerning operation of the program.
(2) The program requires each participant to report to the program
the efficiency of each basic model that the participant manufactures
and that is covered by the program. The participant must determine such
efficiency based on measurement of the basic model's performance.
(3) The program publishes the efficiency ratings received from each
participant, or otherwise makes the ratings readily available to the
general public and to the Department.
(4) The program conducts periodic verification testing on listed
equipment, by testing the efficiency of each basic model at least once
every five years and comparing its rated efficiency to the test
results.
(5) An independent laboratory conducts the tests, or independent
laboratory personnel supervise the tests.
(6) For verification testing, the testing personnel select units
randomly from the manufacturer's stock.
(7) The program uses efficiency testing in accordance with
applicable DOE test procedures.
(8) The program's verification testing meets industry standards for
the accuracy of testing and of rating results for the equipment being
tested, and the program satisfactorily describes how it meets these
standards.
(9) The program has an appropriate standard for determining whether
the efficiency rating a manufacturer claims for a product is valid.
(10) The program requires that, if a basic model fails verification
testing conducted by the VICP, the manufacturer of the basic model must
remove it from production and sale if the verification testing results
show it is not in compliance with EPCA efficiency standards, or
correctly re-rate it if it complies with such standards. The program
must also provide that a participating manufacturer will be expelled
from the VICP if it does not comply with such requirements, and that
the VICP will report to the Department verification test results that
find the performance of a basic model not to meet EPCA efficiency
standards.
[[Page 69614]]
(A basic model ``fails'' verification testing when the VICP has
compared the basic model's efficiency rating resulting from completion
of that testing with the efficiency rating claimed by the manufacturer,
and has determined that the rating claimed by the manufacturer is not
valid.)
(11) The program provides for penalties or other incentives to
encourage manufacturers to report accurate and reliable efficiency
ratings.
(12) The program provides to the manufacturer copies of all records
of completed verification testing performed on the manufacturer's
equipment covered by the program.
(13) The VICP provides to the Department annually data on the
results of its verification testing during the previous 12 months,
including the following for each basic model on which the VICP has
performed verification testing:
(i) The measured efficiency from the verification testing,
(ii) The manufacturer's efficiency rating, and
(iii) Either the applicable energy conservation standard or a
description of the model sufficient to enable the Department to
determine such standard.
(b) An organization seeking the Department's approval of its
voluntary independent certification program must submit to the
Department written information which demonstrates that the program
meets the requirements of paragraph (a) of this section. Approval will
remain in force for five years, unless material changes occur in the
program. In the event of changes, the VICP must promptly notify the
Department, which may then rescind or continue the approval. The
Department may at any time rescind its approval of a VICP upon
determining that the program does not meet the requirements of
paragraph (a) of this section.
4. Subparts N, O, and P are added to read as follows:
Subpart N--Labeling (Reserved)
Subpart O--Certification and Enforcement Provisions Applicable to
Commercial HVAC & WH Products
Sec.
431.501 Purpose and scope.
431.502 Prohibited acts.
431.503 Compliance certification; general requirements.
431.504 Compliance certification; compliance statement.
431.505 Compliance certification; certification report.
431.506 Enforcement.
431.507 Enforcement; compliance determination procedure.
431.508 Cessation of distribution of a basic model.
431.509 Remedies.
431.510 Hearings and appeals.
Subpart P--General Provisions for Commercial HVAC & WH Products.
431.601 Petitions for waiver, and applications for interim waiver,
of test procedure.
431.602 Preemption of state regulations for commercial HVAC & WH
products.
431.603 Maintenance of records.
431.604 Imported equipment.
431.605 Exported equipment.
431.606 Subpoena.
431.607 Confidentiality.
Subpart O--Certification and Enforcement Provisions Applicable to
Commercial HVAC & WH Products
Sec. 431.501 Purpose and scope.
This subpart sets out how manufacturers and private labelers can
certify that their commercial HVAC & WH products comply with the
applicable energy efficiency standards, and how the Department will
enforce the provisions of the Act and 10 CFR Part 431 applicable to
such products.
Sec. 431.502 Prohibited acts.
(a) Each of the following is a prohibited act under sections 332
and 345 of the Act:
(1) Failure to permit access to, or copying of records required to
be supplied under the Act and this part or failure to make reports or
provide other information required to be supplied under the Act and
this part;
(2) Failure of a manufacturer to supply at his expense a reasonable
number of units of a covered commercial equipment to a test laboratory
designated by the Secretary;
(3) Failure of a manufacturer to permit a representative designated
by the Secretary to observe any testing required by the Act and this
part, and to inspect the results of such testing; and
(4) Distribution in commerce by a manufacturer or private labeler
of any new covered equipment which is not in compliance with an
applicable energy efficiency standard prescribed under the Act and this
part.
(b) In accordance with sections 333 and 345 of the Act, any person
who knowingly violates any provision of paragraph (a) of this section
may be subject to assessment of a civil penalty of no more than $110
for each violation. Each violation of paragraph (a)(4) of this section
will constitute a separate violation with respect to each unit of
covered equipment, and each day of noncompliance with paragraphs (a)(1)
through (3) of this section will constitute a separate violation.
(c) For purposes of this section,
(1) The term ``new covered equipment'' means covered equipment the
title of which has not passed to a purchaser who buys such equipment
for purposes other than
(i) Reselling such equipment, or
(ii) Leasing such equipment for a period in excess of one year; and
(2) The term ``knowingly'' means
(i) Having actual knowledge, or
(ii) Presumed to have knowledge deemed to be possessed by a
reasonable person who acts in the circumstances, including knowledge
obtainable upon the exercise of due care.
Sec. 431.503 Compliance certification; general requirements.
(a) General. Beginning twelve months after the publication of the
applicable test procedures, if you are a manufacturer or private
labeler, you may not distribute in commerce any basic model of a
commercial HVAC & WH product subject to an energy conservation standard
under section 342(a) of the Act unless you have certified that the
basic model complies with the requirements of the applicable standards,
as follows:
(1) Submit to the Department a compliance statement, as described
in Sec. 431.504, and
(2) Submit to the Department, or have an authorized third party
(such as a trade association or VICP) submit to the Department, a
certification report as described in Sec. 431.505.
(b) New models. (1) Prior to or concurrent with distributing in
commerce any new model of a commercial HVAC & WH product, you must
submit all information required under paragraph (a)(2) of this section
for that model .
(2) Any change to an existing basic model which affects energy
consumption will constitute the addition of a new basic model. If such
a change neither alters compliance with the applicable energy
conservation standard for the new basic model, nor will be a basis for
giving the new basic model an efficiency rating that differs from the
rating of the existing basic model, then you need not measure the
efficiency of the new basic model. However, you must submit all
information required by Sec. 431.503(a)(2) for the new basic model.
(c) Discontinued models. (1) A model is discontinued when its
production has ceased and it is no longer being distributed.
(2) You (or an authorized representative) must report such models
to the Department at the address and in the manner described in
paragraph (e) of this section. In such a report, for each
[[Page 69615]]
model, you must list: equipment type, the manufacturer's name, the
private labeler name(s), if applicable, and the manufacturer's model
number(s).
(d) Amendment of information. If information in a compliance
statement or certification report previously submitted to the
Department under this section is found to be incorrect, you (or an
authorized representative) must submit the corrected information to the
Department at the address and in the manner described in paragraph (e)
of this section.
(e) Correspondence with the Department. Send any correspondence by
certified mail to: Department of Energy, Office of Energy Efficiency
and Renewable Energy, Office of Codes and Standards, 1000 Independence
Avenue, SW, Washington, DC 20585-0121.
(f) Notices designating a change of third party representative must
be sent to the Department at the address and in the manner described in
paragraph (e) of this section.
Sec. 431.504 Compliance certification; compliance statement.
(a) You must send your compliance statement to the Department in
the manner described in Sec. 431.503 (e) signed by a corporate officer,
and in the format set forth in the paragraph (b) of this section.
(b) Statement contents. Your compliance statement must certify
that:
(1) Each basic model you manufacture of the commercial HVAC & WH
product covered by the compliance statement complies with the
applicable energy conservation standards;
(2) All representations as to efficiency in your compliance
certification and certification report(s) are based on testing and/or
use of an AEDM in accordance with 10 CFR part 431;
(3) All information reported in your compliance statement and
certification report(s) is true, accurate and complete; and
(4) You are aware of the penalties associated with violations of
the Act and the regulations thereunder, and of 18 U.S.C. 1001 which
prohibits knowingly making false statements to the Federal Government.
(c) Statement format. You must use the following format for your
compliance statement:
Statement of Compliance With Energy Conservation Standards for
Commercial HVAC & WH Products
Product:---------------------------------------------------------------
Manufacturer's Name and Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
[Company name] submits this compliance statement under 10 CFR Part
431 (Energy Conservation Program for Commercial Equipment) and Part
C of the Energy Policy and Conservation Act (Pub. L. 94-163), and
amendments thereto. I am signing this on behalf of and as a
responsible official of the above named company. All basic models of
[the commercial HVAC & WH product covered by this statement] that
the company manufactures comply with the applicable energy
conservation standards. We have complied with the applicable testing
requirements (prescribed in 10 CFR Part 431) in making this
determination, and in determining the energy efficiency or energy
use that is set forth in the certification report for each of these
basic models. All information in that report and in this statement
is true, accurate, and complete. The company is aware of the
penalties associated with violations of the Act and the regulations
thereunder, and is also aware of the provisions contained in 18
U.S.C. 1001, which prohibits knowingly making false statement to the
Federal Government.
Signature of Company Official:
----------------------------------------------------------------------
Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
Firm or Organization:--------------------------------------------------
Date:------------------------------------------------------------------
Name of Person to Contact for Further Information:
Name:------------------------------------------------------------------
Address:---------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------
Third Party Representative:
If a third party organization, under the provisions of 10 CFR
Part 431, prepared any part of this Compliance Certification, or is
authorized to submit any certification report(s) for the company,
provide the following information for the company official who
authorized third party representations:
Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
Address:---------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------
The third party organization authorized to act as representative:
Third Party Organization:
----------------------------------------------------------------------
Name of Responsible Person at that Organization:
----------------------------------------------------------------------
Address:---------------------------------------------------------------
Telephone Number:------------------------------------------------------
Facsimile Number:------------------------------------------------------
Sec. 431.505 Compliance certification; certification report.
(a) You, or an authorized third party acting on your behalf, must
send your certification report(s) to the Department in the manner
specified in Sec. 431.503(e), signed by an official or your company or
the third party representative. The Department will also accept a
computer diskette which contains the certification report.
(b) Report contents. The certification report must include the
equipment type, manufacturer's name, private labeler name(s) (if
applicable), the manufacturer's model number(s), and
(1) For gas-fired and oil-fired commercial warm air furnaces (with
a capacity of 225,000 Btu per hour or more), the minimum thermal
efficiency at the maximum rated capacity.
(2) For gas-fired and oil-fired commercial packaged boilers, the
minimum combustion efficiency at the maximum rated capacity;
(3) For air-cooled three-phase electric central air conditioners
and central air conditioning heat pumps less than 65,000 Btu per hour
(cooling capacity), split systems or single package, the seasonal
energy efficiency ratio and the heating seasonal performance factor;
(4) For air-cooled central air conditioners and central air
conditioning heat pumps at or above 65,000 Btu per hour (cooling
capacity) and less than 135,000 Btu per hour (cooling capacity), the
energy efficiency ratio (at a temperature rating of 95 deg.F dry bulb
temperature) and the coefficient of performance in the heating mode (at
a temperature rating of 47 deg.F dry bulb temperature);
(5) For water-cooled, evaporatively-cooled and water-source central
air conditioners and central air conditioning heat pumps of less than
135,000 Btu per hour (cooling capacity), the energy efficiency ratio
(at a standard rating of 95 deg.F dry bulb temperature, for
evaporatively cooled equipment, and 85 deg.F entering water
temperature, for water-source and water-cooled equipment);
(6) For water-source heat pumps less than 135,000 Btu per hour
(cooling capacity), the coefficient of performance in the heating mode
(at a standard rating of 70 deg.F entering water temperature);
(7) For air-cooled central air conditioners and central air
conditioning heat pumps at or above 135,000 Btu per hour (cooling
capacity) and less than 240,000 Btu per hour (cooling capacity), the
energy efficiency ratio (at a standard rating of 95 deg.F dry bulb
temperature) and the coefficient of performance in the heating mode (at
a high temperature rating of 47 deg.F dry bulb temperature);
(8) For water- and evaporatively-cooled central air conditioners
and central air conditioning heat pumps at or above 135,000 Btu per
hour (cooling capacity) and less than 240,000 Btu per hour (cooling
capacity), the energy efficiency ratio (according to ARI Standard 340/
360-93);
(9) For packaged terminal air conditioners, the energy efficiency
ratio
[[Page 69616]]
(EER) in the cooling mode (at a temperature rating of 95 deg.F dry bulb
temperature);
(10) For packaged terminal heat pumps, the energy efficiency ratio
(EER) in the cooling mode (at a temperature rating of 95 deg.F dry bulb
temperature), and the coefficient of performance (COP) in the heating
mode (at a standard rating of 47 deg.F dry bulb temperature);
(11) For storage water heaters (except those having more than 140
gallon storage capacity, not having a standing pilot light, and having
the tank surface area thermally insulated to R-12.5) manufactured on or
after January 1, 1994, the maximum standby loss, in percent per hour;
(12) For instantaneous water heaters (except those having more than
140 gallon storage capacity, not having a standing pilot light, and
having the tank surface area thermally insulated to R-12.5), the
minimum thermal efficiency, and for storage volumes of 10 gallons or
more, the maximum standby loss, in percent per hour; and
(13) For unfired hot water storage tanks (except those having more
than 140 gallon storage capacity, and having the tank surface area
thermally insulated to R-12.5), the maximum heat loss in Btus per hour
square foot of nominal tank surface area.
(c) One possible format for a certification report is as follows:
Certification report for commercial equipment: (Insert the Name of
Equipment)
Dated:-----------------------------------------------------------------
Signature of Company Official or Third Party Representative:
----------------------------------------------------------------------
Equipment Type:--------------------------------------------------------
Manufacturer:----------------------------------------------------------
Private Labeler (if applicable):
----------------------------------------------------------------------
For New or Amended Basic Models:
(Provide specific equipment information including, for each
basic model, the manufacturer's model number(s) and the information
required in Sec. 431.505 (b)).
For Discontinued Basic Models:
(Provide manufacturer's model number(s)).
Sec. 431.506 Enforcement.
(a) Test notice. Upon receiving information in writing concerning
the energy performance of a particular commercial HVAC & WH product
sold by a manufacturer or private labeler which indicates that the
product may not be in compliance with the applicable energy performance
standard, the Secretary may conduct a review of test records. The
Secretary may then conduct enforcement testing of that equipment by
means of a test notice addressed to the manufacturer or private labeler
in accordance with the following requirements:
(1) The test notice procedure will only be followed after the
Secretary or his/her designated representative has examined the
underlying test data (or, where appropriate, data as to use of an
alternative efficiency determination method) provided by the
manufacturer, and after the manufacturer has been offered the
opportunity to meet with the Department to verify compliance with the
applicable efficiency standard. In addition, where compliance of a
basic model was certified based on an AEDM, the Department has the
discretion to pursue the provisions of Sec. 431.481(c)(2)(ii) prior to
invoking the test notice procedure. A representative designated by the
Secretary must be permitted to observe any reverification procedures
undertaken according to this subpart and to inspect the results of such
reverification.
(2) The test notice will be signed by the Secretary or his/her
designee and will be mailed or delivered by the Department to the plant
manager or other responsible official designated by the manufacturer.
(3) The test notice will specify the model or basic model to be
selected for testing, the number of units to be tested, the method for
selecting these units, the date and time at which testing is to begin,
the date by which testing is scheduled to be completed and the facility
at which testing will be conducted. The test notice may also provide
for situations in which the selected basic model is unavailable for
testing, and it may include alternative basic models.
(4) The Secretary may require in the test notice that the
manufacturer ship at his expense a reasonable number of units of a
basic model specified in the test notice to a testing laboratory
designated by the Secretary.
(5) Within five working days of the time the units are selected,
the manufacturer must ship the specified units of a basic model to the
designated testing laboratory.
(b) Testing Laboratory. Whenever the Department conducts
enforcement testing at a designated laboratory in accordance with a
test notice under this section, the resulting test data will constitute
official test data for that basic model. The Department will use such
test data to make a determination of compliance or noncompliance.
(c) Sampling. The Secretary will base the determination of whether
a manufacturer's basic model complies with the applicable energy
performance standard on the testing conducted in accordance with the
procedures set forth in this section and Sec. 431.507, and the
applicable test procedures specified in this part. Initially, the
Department will test two units, except as follows:
(1) If only one unit of a basic model is available for testing, the
Department will test that unit, and will base the compliance
determination on the results for that unit in a manner otherwise in
accordance with this section. Available units are those which are
available for commercial distribution within the United States.
(2) If a basic model is very large or has unusual testing
requirements, the Department may decide to base the determination of
compliance on the testing of one unit, if the manufacturer so requests
and provides sufficient justification for the request.
(d) Test unit selection. A DOE inspector will select a batch from
all available units, and a test sample (i.e., the units to be tested)
from the batch, in accordance with the provisions of this paragraph and
the conditions specified in the test notice.
(1) DOE may select the batch by utilizing criteria specified in the
test notice, e.g., date of manufacture, component-supplier, location of
manufacturing facility, or other criteria which may differentiate one
unit from another within a basic model.
(2) DOE will randomly select individual units to be tested,
comprising the test sample, from the batch. DOE will achieve random
selection by sequentially numbering all of the units in a batch and
then using a table of random numbers to select the units to be tested.
The manufacturer must keep on hand all units in the batch until such
time as the inspector determines the basic model to be in compliance or
noncompliance.
(e) Test unit preparation. (1) Prior to and during testing, no one
may prepare, modify, or adjust in any manner a test unit selected in
accordance with paragraph (d) of this section unless the applicable DOE
test procedure allows such preparation, modification, or adjustment.
DOE will conduct one test for each test unit in accordance with the
applicable test procedures.
(2) No one may perform any quality control, testing or assembly
procedures on a test unit, or any parts and subassemblies thereof, that
is not performed during the production and assembly of all other units
included in the basic model.
(3) A test unit is defective if such unit is inoperative or is
found to be in noncompliance due to failure of the unit to operate
according to the manufacturer's design and operating instructions.
Defective units, including those damaged due to shipping or handling,
must be reported immediately
[[Page 69617]]
to the Department. The Department will authorize testing of an
additional unit on a case-by-case basis.
(f) Testing at manufacturer's option. If the Department determines
a basic model to be in noncompliance with the applicable energy
performance standard at the conclusion of its initial enforcement
sampling plan testing, the manufacturer may request that the Department
conduct additional testing of up to two additional units of the basic
model at the manufacturer's expense. Testing under this paragraph must
be in accordance with the applicable test procedure specified in this
part, the provisions of paragraphs (d) and (e) of this section, and
Sec. 431.507(d).
Sec. 431.507 Enforcement; compliance determination procedure.
The Department will determine compliance for commercial HVAC & WH
equipment as follows:
(a) Make the computation in paragraph (b) of this section when the
first sample size (n1) is two units.
(b) Compute the mean (x1) of the measured energy
performance of the n1 units in the first sample as follows:
[GRAPHIC] [TIFF OMITTED] TP13DE99.000
where (xi) is the measured energy efficiency or energy
consumption of unit i.
(c) From the sample mean performance derived pursuant to paragraph
(b) of this section, or from the measured performance when compliance
is determined from testing one unit pursuant to Sec. 431.506(c),
determine one of the following:
(1) For an Energy Efficiency Standard, if the aforementioned sample
mean or measured performance is equal to or greater than 95 percent of
the applicable energy efficiency standard, the basic model is in
compliance and testing is at an end.
(2) For an Energy Consumption Standard, if the aforementioned
sample mean or measured performance is equal to or less than 105
percent of the applicable energy consumption standard, the basic model
is in compliance and testing is at an end.
(3) Otherwise, the basic model is not in compliance.
(d) Manufacturer-Option Testing. If the basic model is in non-
compliance pursuant to paragraph (c)(3) of this section, the
manufacturer may request additional testing, as follows.
(1) The manufacturer requests the testing of an additional number
of units, such that the total size of the combined sample tested does
not exceed 4.
(2) Compute the mean energy performance of the new combined sample
using the paragraph (b) of this section.
(3) From the mean performance of the new combined sample, determine
one of the following:
(i) For an Energy Efficiency Standard, if the new combined sample
mean is equal to or greater than 95 percent of the applicable energy
efficiency standard, the basic model is in compliance and testing is at
an end.
(ii) For an Energy Consumption Standard, if the new combined sample
mean is equal to or less than 105 percent of the applicable energy
consumption standard, the basic model is in compliance and testing is
at an end.
(iii) Otherwise, the basic model is in not in compliance.
Sec. 431.508 Cessation of distribution of a basic model.
(a) If you are a manufacturer or private labeler, and DOE
determines one of your models to be noncompliant, in accordance with
Sec. 431.506 and 431.507, or you determine that one of your models is
noncompliant, you must:
(1) Immediately cease distribution in commerce of all units of the
basic model in question;
(2) Give immediate written notification of the determination of
noncompliance, to all persons to whom you have distributed units of the
basic model manufactured since the date of the last determination of
compliance; and
(3) If a request is made by the Secretary, provide DOE within 30
days of the request, records, reports and other documentation
pertaining to the acquisition, ordering, storage, shipment, or sale of
a basic model determined to be noncompliant.
(b) The manufacturer may modify the noncompliant basic model in
such manner as to make it comply with the applicable performance
standard. You must treat such a modified basic model as a new basic
model and certify it in accordance with the provisions of this subpart;
except that in addition to satisfying all requirements of this subpart,
you must also maintain records that demonstrate that modifications have
been made to all units of the new basic model prior to its distribution
in commerce.
(c) If a manufacturer or private labeler has a basic model not
properly certified in accordance with the requirements of this subpart,
the Secretary may seek, among other remedies, injunctive action to
prohibit distribution in commerce of units of such a basic model.
Sec. 431.509 Remedies.
If the Secretary determines that a basic model of covered equipment
does not comply with an applicable energy conservation standard:
(a) The Secretary will notify the manufacturer, private labeler or
any other person as required, of this finding and of the Secretary's
intent to seek a judicial order restraining further distribution in
commerce of units of such a basic model unless the manufacturer,
private labeler or any other person as required, delivers to the
Secretary within 15 calendar days a statement, satisfactory to the
Secretary, of the steps he will take to insure that the noncompliant
basic model will no longer be distributed in commerce. The Secretary
will monitor the implementation of such statement.
(b) If the manufacturer, private labeler or any other person as
required, fails to stop distribution of the noncompliant basic model,
the Secretary may seek to restrain such violation in accordance with
sections 334 and 345 of the Act.
(c) The Secretary will determine whether the facts of the case
warrant the assessment of civil penalties for knowing violations in
accordance with sections 333 and 345 of the Act.
Sec. 431.510 Hearings and appeals.
(a) Under sections 333(d) and 345 of the Act, before issuing an
order assessing a civil penalty against any person, the Secretary must
provide to such a person a notice of the proposed penalty. Such notice
must inform the person that such person can choose (in writing within
30 days after receipt of the notice) to have the procedures of
paragraph (c) of this section (in lieu of those in paragraph (b) of
this section) apply with respect to such assessment.
(b)(1) Unless a person elects, within 30 calendar days after
receipt of a notice under paragraph (a) of this section, to have
paragraph (c) apply with respect to the civil penalty under paragraph
(a), the Secretary will assess the penalty, by order, after providing
an opportunity for an agency hearing under section 554 of title 5,
United States Code, and making a determination of violation on the
record before an administrative law judge appointed under section 3105
of such title 5. Such assessment order will include the administrative
law judge's findings and the basis for such assessment.
(2) Any person against whom the Secretary assesses a penalty under
this paragraph may, within 60 calendar days after the date of the order
assessing such penalty, initiate action in the United States Court of
Appeals for the appropriate judicial circuit for judicial
[[Page 69618]]
review of such order in accordance with chapter 7 of title 5, United
States Code. The court will have jurisdiction to enter a judgment
affirming, modifying, or setting aside in whole or in part, the order
of the Secretary, or the court may remand the proceeding to the
Secretary for such further action as the court may direct.
(c)(1) In the case of any civil penalty with respect to which the
procedures of this paragraph have been elected, the Secretary will
promptly assess such penalty, by order, after the date of the receipt
of the notice under paragraph (a) of this section of the proposed
penalty.
(2) If the person has not paid the civil penalty within 60 calendar
days after the assessment has been made under paragraph (c)(1) of this
section, the Secretary will institute an action in the appropriate
District Court of the United States for an order affirming the
assessment of the civil penalty. The court will have authority to
review de novo the law and the facts involved and jurisdiction to enter
a judgment enforcing, modifying, and enforcing as so modified, or
setting aside in whole or in part, such assessment.
(3) Any election to have this paragraph apply can only be revoked
with the consent of the Secretary.
(d) If any person fails to pay an assessment of a civil penalty
after it has become a final and unappealable order under paragraph (b)
of this section, or after the appropriate District Court has entered
final judgment in favor of the Secretary under paragraph (c) of this
section, the Secretary will institute an action to recover the amount
of such penalty in any appropriate District Court of the United States.
In such action, the validity and appropriateness of such final
assessment order or judgment will not be subject to review.
(e)(1) In accordance with the provisions of sections 333(d)(5)(A)
and 345 of the Act and notwithstanding the provisions of title 28,
United States Code, or section 502(c) of the Department of Energy
Organization Act, the General Counsel of the Department of Energy (or
any attorney or attorneys within DOE designated by the Secretary) will
represent the Secretary, and will supervise, conduct, and argue any
civil litigation to which paragraph (c) of this section applies
(including any related collection action under paragraph (d) of this
section) in a court of the United States or in any other court, except
the Supreme Court of the United States. However, the Secretary or the
General Counsel will consult with the Attorney General concerning such
litigation and the Attorney General will provide, on request, such
assistance in the conduct of such litigation as may be appropriate.
(2) In accordance with the provisions of sections 333(d)(5)(B) and
345 of the Act, and subject to the provisions of section 502(c) of the
Department of Energy Organization Act, the Secretary will be
represented by the Attorney General, or the Solicitor General, as
appropriate, in actions under this section, except to the extent
provided in paragraph (e)(1) of this section.
(3) In accordance with the provisions of section 333(d)(5)(C) and
345 of the Act, section 402(d) of the Department of Energy Organization
Act will not apply with respect to the function of the Secretary under
this section.
Subpart P--General Provisions for Commercial HVAC & WH Products
Sec. 431.601 Petitions for waiver, and applications for interim
waiver, of test procedure.
(a) General criteria. (1) Any interested person may submit a
petition to waive for a particular basic model any requirements of
Sec. 431.162, and of the provisions specifying the test methods for
other commercial HVAC & WH products, upon the grounds that either the
basic model contains one or more design characteristics which either
prevent testing of the basic model according to the prescribed test
procedures, or the prescribed test procedures may evaluate the basic
model in a manner so unrepresentative of its true energy consumption
characteristics as to provide materially inaccurate comparative data.
(2) If you have submitted a Petition for Waiver as provided in this
subpart, you may also file an Application for Interim Waiver of the
applicable test procedure requirements.
(b) Submission, content, and publication. (1) You must submit your
Petition for Waiver in triplicate, to the Assistant Secretary for
Energy Efficiency and Renewable Energy, United States Department of
Energy. Each Petition for Waiver must:
(i) Identify the particular basic model(s) for which a waiver is
requested, the design characteristic(s) constituting the grounds for
the petition, and the specific requirements sought to be waived, and
must discuss in detail the need for the requested waiver;
(ii) Identify manufacturers of all other basic models marketed in
the United States and known to the petitioner to incorporate similar
design characteristic(s);
(iii) Include any alternate test procedures known to the petitioner
to evaluate the characteristics of the basic model in a manner
representative of its energy consumption; and
(iv) Be signed by you or by an authorized representative. In
accordance with the provisions set forth in 10 CFR 1004.11, any request
for confidential treatment of any information contained in a Petition
for Waiver or in supporting documentation must be accompanied by a copy
of the petition, application or supporting documentation from which the
information claimed to be confidential has been deleted. DOE will
publish in the Federal Register the petition and supporting documents
from which confidential information, as determined by DOE, has been
deleted in accordance with 10 CFR 1004.11 and will solicit comments,
data and information with respect to the determination of the petition.
(2) You must submit any Application for Interim Waiver in
triplicate, with the required three copies of the Petition for Waiver,
to the Assistant Secretary for Energy Efficiency and Renewable Energy,
U.S. Department of Energy. Each Application for Interim Waiver must
reference the Petition for Waiver by identifying the particular basic
model(s) for which you seek a waiver and temporary exception. Each
Application for Interim Waiver must demonstrate likely success of the
Petition for Waiver and address what economic hardship and/or
competitive disadvantage is likely to result absent a favorable
determination on the Application for Interim Waiver. You or an
authorized representative must sign the Application for Interim Waiver.
(c) Notification to other manufacturers. (1) After filing a
Petition for Waiver with DOE, and after DOE has published the Petition
for Waiver in the Federal Register, you must, within five working days
of such publication, notify in writing all known manufacturers of
domestically marketed units of the same product type (as defined in
section 340(1) of the Act) and must include in the notice a statement
that DOE has published in the Federal Register on a certain date the
Petition for Waiver and supporting documents from which confidential
information, if any, as determined by DOE, has been deleted in
accordance with 10 CFR 1004.11. In complying with the requirements of
this paragraph, you must file with DOE a statement certifying the names
and addresses of each person to whom you have sent a notice of the
Petition for Waiver.
(2) If you apply for Interim Waiver, whether filing jointly with or
subsequent to your Petition for Waiver with DOE, you must concurrently
notify in writing all known manufacturers of
[[Page 69619]]
domestically marketed units of the same product type (as defined in
Section 340(1) of the Act), and must include in the notice a copy of
the Petition for Waiver and a copy of the Application for Interim
Waiver. In complying with this section, you must in the written
notification include a statement that the Assistant Secretary for
Energy Efficiency and Renewable Energy will receive and consider timely
written comments on the Application for Interim Waiver. Upon filing an
Application for Interim Waiver, you must in complying with the
requirements of this paragraph certify to DOE that a copy of these
documents has been sent to all known manufacturers of domestically
marked units of the same product type (as listed in section 340(1) of
the Act). Such certification must include the names and addresses of
such persons. You must comply with the provisions of paragraph (c)(1)
of this section with respect to the petition for waiver.
(d) Comments; responses to comments. (1) Any person submitting
written comments to DOE with respect to an Application for Interim
Waiver must also send a copy of the comments to the applicant.
(2) Any person submitting written comments to DOE with respect to a
Petition for Waiver must also send a copy of such comments to the
petitioner. In accordance with paragraph (b)(1) of this section, a
petitioner may submit a rebuttal statement to the Assistant Secretary
for Energy Efficiency and Renewable Energy.
(e) Provisions specific to interim waivers. (1) Disposition of
application. If administratively feasible, DOE will notify the
applicant in writing of the disposition of the Application for Interim
Waiver within 15 business days of receipt of the application. Notice of
DOE's determination on the Application for Interim Waiver will be
published in the Federal Register.
(2) Consequences of filing application. The filing of an
Application for Interim Waiver will not constitute grounds for
noncompliance with any requirements of this subpart, until an Interim
Waiver has been granted.
(3) Criteria for granting. The Assistant Secretary for Energy
Efficiency and Renewable Energy will grant an Interim Waiver from test
procedure requirements if he or she determines that the applicant will
experience economic hardship if the Application for Interim Waiver is
denied, if it appears likely that the Petition for Waiver will be
granted, and/or if the Assistant Secretary determines that it would be
desirable for public policy reasons to grant immediate relief pending a
determination on the Petition for Waiver.
(4) Duration. An interim waiver will terminate 180 days after
issuance or upon the determination on the Petition for Waiver,
whichever occurs first. DOE may extend an interim waiver for up to 180
days or modify its terms based on relevant information contained in the
record and any comments received subsequent to issuance of the interim
waiver. DOE will publish in the Federal Register notice of such
extension and/or any modification of the terms or duration of the
interim waiver.
(f) Provisions specific to waivers. (1) Rebuttal by petitioner.
Following publication of the Petition for Waiver in the Federal
Register, a petitioner may, within 10 working days of receipt of a copy
of any comments submitted in accordance with paragraph (b)(1) of this
section, submit a rebuttal statement to the Assistant Secretary for
Energy Efficiency and Renewable Energy. A petitioner may rebut more
than one response in a single rebuttal statement.
(2) Disposition of petition. DOE will notify the petitioner in
writing as soon as practicable of the disposition of each Petition for
Waiver. The Assistant Secretary for Energy Efficiency and Renewable
Energy will issue a decision on the petition as soon as is practicable
following receipt and review of the Petition for Waiver and other
applicable documents, including, but not limited to, comments and
rebuttal statements.
(3) Consequence of filing petition. The filing of a Petition for
Waiver will not constitute grounds for noncompliance with any
requirements of this subpart, until a waiver or interim waiver has been
granted.
(4) Granting: criteria, conditions, and publication. The Assistant
Secretary for Energy Efficiency and Renewable Energy will grant a
waiver, if he or she determines that the basic model for which the
waiver was requested contains a design characteristic which either
prevents testing of the basic model according to the prescribed test
procedures, or the prescribed test procedures may evaluate the basic
model in a manner so unrepresentative of its true energy consumption
characteristics as to provide materially inaccurate comparative data.
The Assistant Secretary for Energy Efficiency and Renewable Energy may
grant a waiver subject to conditions, which may include adherence to
alternate test procedures. DOE will promptly publish in the Federal
Register notice of each waiver granted or denied, and any limiting
conditions of each waiver granted.
(g) Revision of regulation. Within one year of the granting of any
waiver, the Department will publish in the Federal Register a notice of
proposed rulemaking to amend its regulations so as to eliminate any
need for the continuation of such waiver. As soon thereafter as
practicable, the Department will publish in the Federal Register a
final rule. Such waiver will terminate on the effective date of such
final rule.
(h) Exhaustion of remedies. In order to exhaust administrative
remedies, any person aggrieved by an action under this section must
file an appeal with the DOE's Office of Hearings and Appeals as
provided in 10 CFR Part 1003, subpart C.
Sec. 431.602 Preemption of state regulations for commercial HVAC & WH
products.
Beginning on the effective date of such standard, an energy
conservation standard set forth in this part for a commercial HVAC & WH
product supersedes any State or local regulation concerning the energy
efficiency or energy use of that product, except as provided for in
section 345(b)(2)(B)-(D) of the Act.
Sec. 431.603 Maintenance of records.
(a) If you are the manufacturer of any commercial HVAC & WH
product, you must establish, maintain and retain records of the
following:
(1) The test data for all testing conducted pursuant to 10 CFR part
431, including any testing conducted by a VICP; and
(2) The development, substantiation, application, and subsequent
verification of any AEDM.
(b) You must organize such records and index them so that they are
readily accessible for review. The records must include the supporting
test data associated with tests performed on any test units to satisfy
the requirements of this subpart (except tests performed by the
Department directly).
(c) You must retain all such records for a period of two years from
the date that production of all units of the commercial equipment for
the basic model has ceased. You must retain records in a form allowing
ready access to the Department upon request.
Sec. 431.604 Imported equipment.
(a) Under sections 331 and 345 of the Act, any person importing any
commercial HVAC & WH product into the United States must comply with
the provisions of the Act and of this part, and is subject to the
remedies of this part.
(b) Any commercial HVAC & WH product offered for importation in
[[Page 69620]]
violation of the Act and of this part will be refused admission into
the customs territory of the United States under rules issued by the
Secretary of the Treasury, except that the Secretary of the Treasury
may, by such rules, authorize the importation of such covered product
upon such terms and conditions (including the furnishing of a bond) as
may appear to the Secretary of Treasury appropriate to ensure that such
covered product will not violate the Act and this part, or will be
exported or abandoned to the United States.
Sec. 431.605 Exported equipment.
Under sections 330 and 345 of the Act, this part does not apply to
any commercial HVAC & WH product if:
(a) Such product is manufactured, sold, or held for sale for export
from the United States (or such product was imported for export),
unless such product is, in fact, distributed in commerce for use in the
United States, and
(b) Such product, when distributed in commerce, or any container in
which it is enclosed when so distributed, bears a stamp or label
stating that such covered product is intended for export.
Sec. 431.606 Subpoena.
Under sections 329(a) and 345 of the Act, for purposes of carrying
out this part, the Secretary or the Secretary's designee, may sign and
issue subpoenas for
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