[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Proposed Rules]
[Pages 62472-62488]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24351]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 78, No. 204 / Tuesday, October 22, 2013 / 
Proposed Rules

[[Page 62472]]



DEPARTMENT OF ENERGY

10 CFR Parts 429 and 431

[Docket No. EERE-2011-BT-TP-0024]
RIN 1904-AC46


Energy Conservation Program: Alternative Efficiency Determination 
Methods, Basic Model Definition, and Compliance for Commercial HVAC, 
Refrigeration, and WH Equipment

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

ACTION: Supplemental Notice of Proposed Rulemaking (SNOPR).

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) is proposing to revise and 
expand its existing regulations governing the use of particular methods 
as alternatives to testing for the purposes of certifying compliance 
with the applicable energy conservation standards and the reporting of 
related ratings for commercial and industrial equipment covered by 
EPCA. The proposals contained in this supplemental notice arose from a 
negotiated rulemaking effort on issues regarding certification of 
commercial heating, ventilating, air-conditioning (HVAC), water heating 
(WH), and refrigeration equipment. In addition, DOE is proposing to 
amend the compliance dates for the initial certification of commercial 
HVAC, WH, and refrigeration equipment.

DATES: DOE will accept comments, data, and information regarding this 
supplemental notice of proposed rulemaking (SNOPR) no later than 
November 21, 2013. See section VI, ``Public Participation,'' of this 
SNOPR for details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at http://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments, identified by docket number EERE-2011-BT-
TP-0024, by any of the following methods:
     Email: to AEDM/ARM-2011-TP-0024@ee.doe.gov. Include EERE-
2011-BT-TP-0024 in the subject line of the message.
     Mail: Ms. Brenda Edwards, U.S. Department of Energy, 
Building Technologies Office, Mailstop EE-2J, Alternative Efficiency 
Determination Methods, Basic Model Definition, and Compliance for 
Commercial HVAC, Refrigeration, and WH Equipment, EERE-2011-BT-TP-0024, 
1000 Independence Avenue SW., Washington, DC 20585- 0121. Phone: (202) 
586-2945. Please submit one signed paper original.
     Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy, Building Technologies Office, 6th Floor, 950 L'Enfant Plaza 
SW., Washington, DC 20024. Phone: (202) 586-2945. Please submit one 
signed paper original.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, 
DC 20585-0121. Email: Ashley.Armstrong@ee.doe.gov; and Ms. Laura 
Barhydt, U.S. Department of Energy, Office of the General Counsel, 
Forrestal Building, GC-32, 1000 Independence Avenue SW., Washington, DC 
20585. Email: Laura.Barhydt@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Authority and Background
    A. Authority
    B. Background
II. Discussion of Specific Revisions to DOE's Regulations for 
Alternative Efficiency Determination Methods and Alternative Rating 
Methods
    A. General Issues
    1. Pre-Approval
    2. Applicable Equipment
    B. Validation
    1. Number of Tested Units Required for Validation
    2. Tolerances
    3. Certified Ratings
    C. DOE Verification
    1. Witness Testing
    2. Verification Process
    3. Verification Lab Requirements
    4. Verification Tolerances
    5. Invalid Rating Process
    6. Consequences of an Invalid Rating
    7. Regaining the Use of AEDMs
III. Basic Model Definitions
IV. Discussion of Specific Revisions to the Compliance Date for 
Certification of Commercial HVAC, WH, and Refrigeration Equipment
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under Section 32 of the Federal Energy Administration 
Act of 1974
VI. Public Participation
    A. Submission of Comments
    B. Issues on Which DOE Seeks Comment
VII. Approval of the Office of the Secretary

I. Authority and Background

A. Authority

    Title III of the Energy Policy and Conservation Act of 1975, as 
amended (``EPCA'' or, in context, ``the Act'') sets forth a variety of 
provisions designed to improve energy efficiency. Part A of Title III 
(42 U.S.C. 6291-6309) provides for the Energy Conservation Program for 
Consumer Products Other Than Automobiles. The National Energy 
Conservation Policy Act (NECPA), Public Law 95-619, amended EPCA to add 
Part A-1 of Title III, which established an energy conservation program 
for certain industrial equipment. (42 U.S.C. 6311-6317) \1\ The 
Department of Energy (``DOE'') is charged with implementing these 
provisions.
---------------------------------------------------------------------------

    \1\ For editorial reasons, Parts B (consumer products) and C 
(commercial equipment) of Title III of EPCA were re-designated as 
parts A and A-1, respectively, in the United States Code.
---------------------------------------------------------------------------

    Under EPCA, this program consists essentially of four parts: (1) 
Testing; (2) labeling; (3) Federal energy conservation

[[Page 62473]]

standards; and (4) certification and enforcement procedures. The 
Federal Trade Commission (FTC) is primarily responsible for labeling of 
consumer products, and DOE implements the remainder of the program. The 
testing requirements consist of test procedures that manufacturers of 
covered products and equipment must use (1) as the basis for certifying 
to DOE that their products comply with the applicable energy 
conservation standards adopted under EPCA, and (2) for making 
representations about the efficiency of those products and equipment. 
Similarly, DOE must use these test requirements to determine whether 
the products comply with any relevant standards promulgated under EPCA. 
For certain consumer products and commercial equipment, DOE's existing 
testing regulations allow the use of an alternative efficiency 
determination method (AEDM) or an alternative rating method (ARM), in 
lieu of actual testing, to simulate the energy consumption or 
efficiency of certain basic models of covered products under DOE's test 
procedure conditions.
    In addition, sections 6299-6305, and 6316 of EPCA authorize DOE to 
enforce compliance with the energy and water conservation standards 
(all non-product specific references herein referring to energy use and 
consumption include water use and consumption; all references to energy 
efficiency include water efficiency) established for certain consumer 
products and commercial equipment. (42 U.S.C. 6299-6305 (consumer 
products), 6316 (commercial equipment)) DOE has promulgated enforcement 
regulations that include specific certification and compliance 
requirements. See 10 CFR part 429; 10 CFR part 431, subparts B, U, and 
V.

B. Background

    On March 7, 2011, DOE published a final rule in the Federal 
Register that, among other things, modified the requirements regarding 
manufacturer submission of compliance statements and certification 
reports to DOE (hereafter referred to as the March 2011 Final Rule). 76 
FR 12421. This rule, among other things, imposed new or revised 
reporting requirements for some types of covered products and 
equipment, including a requirement that manufacturers submit annual 
reports to the Department certifying compliance of their basic models 
with applicable standards. See 76 FR 12428-12429 for more information.
    In response to the initial deadline for certifying compliance 
imposed on commercial heating, ventilation, and air conditioning 
(HVAC), water heater (WH), and commercial refrigeration equipment (CRE) 
manufacturers by the March 2011 Final Rule, certain manufacturers of 
particular types of commercial and industrial equipment stated that, 
for a variety of reasons, they would be unable to meet that deadline. 
DOE initially extended the deadline for certifications for commercial 
HVAC, WH, and refrigeration equipment in a final rule published June 
30, 2011 (hereafter referred to as the June 2011 Final Rule). 76 FR 
38287 (June 30, 2011). DOE subsequently extended the compliance date 
for certification by an additional 12 months to December 31, 2013, for 
these types of equipment (December 2012 Final Rule) to allow, among 
other things, the Department to explore the negotiated rulemaking 
process for this equipment. 77 FR 72763.
    In the summer of 2012, DOE had an independent convener evaluate the 
likelihood of success, analyzing the feasibility of developing 
certification requirements for commercial HVAC, WH, and CRE (not 
including walk-in coolers and freezers) through consensus-based 
negotiations among affected parties. In October 2012, the convener 
issued his report based on a confidential interview process involving 
forty (40) parties from a wide range of commercial HVAC, WH, and 
refrigeration equipment interests. Ultimately, the convener recommended 
that, with the proper scope of issues on the table surrounding 
commercial HVAC, WH, and refrigeration equipment certification, a 
negotiated rulemaking appeared to have a reasonable likelihood of 
achieving consensus based on the factors set forth in the Negotiated 
Rulemaking Act because the interviewed parties believed the negotiated 
rulemaking was superior to notice and comment rulemaking for 
certification-related issues. Additional details of the report can be 
found at https://www1.eere.energy.gov/buildings/appliance_standards/pdfs/convening_report_hvac_cre_1.pdf.
    On February 26, 2013, members of the Appliance Standards and 
Rulemaking Federal Advisory Committee (ASRAC) unanimously decided to 
form a working group to engage in a negotiated rulemaking effort on the 
certification of HVAC, WH, and commercial refrigeration equipment. A 
notice of intent to form the Commercial Certification Working Group was 
published in the Federal Register on March 12, 2013, to which DOE 
received 35 nominations. 78 FR 15653. On April 16, 2013, the Department 
published a notice of open meeting that announced the first meeting and 
listed the 22 nominations that were selected to serve as members of the 
Working Group, in addition to two members from ASRAC, and one DOE 
representative. 78 FR 22431. The members of the Working Group were 
selected to ensure a broad and balanced array of stakeholder interests 
and expertise, and included efficiency advocates, manufacturers, a 
utility representative, and third party laboratory representatives.
    AEDMs are computer modeling or mathematical tools that predict the 
performance of non-tested basic models. They are derived from 
mathematical models and engineering principles that govern the energy 
efficiency and energy consumption characteristics of a type of covered 
equipment. These computer modeling and mathematical tools, when 
properly developed, can provide a relatively straight-forward and 
reasonably accurate means to predict the energy usage or efficiency 
characteristics of a basic model of a given covered product or 
equipment and reduce the burden and cost associated with testing.
    Where authorized by regulation, AEDMs enable manufacturers to rate 
and certify their basic models by using the projected energy use or 
energy efficiency results derived from these simulation models in lieu 
of testing. DOE has authorized the use of AEDMs for certain covered 
products and equipment that are difficult or expensive to test in an 
effort to reduce the testing burden faced by manufacturers of expensive 
or highly customized basic models. DOE's regulations currently permit 
manufacturers of commercial HVAC, WHs, distribution transformers, 
electric motors, and small electric motors to use AEDMs to rate their 
non-tested combinations provided they meet the Department's regulations 
governing such use.
    Initially, DOE undertook a conventional rulemaking to consider 
expanding and revising its regulations for AEDMs. On April 18, 2011, 
DOE published a Request for Information (hereafter referred to as the 
April 2011 RFI). 76 FR 21673. The April 2011 RFI requested suggestions, 
comments, and information relating to the Department's intent to expand 
and revise its existing AEDM and ARM requirements. In response to 
comments it received on the April 2011 RFI, DOE published a Notice of 
Proposed Rulemaking (NOPR) in the Federal Register on May 31, 2012 
(hereafter referred to as the May 2012 NOPR). 77 FR 32038. DOE proposed 
to permit AEDM-based ratings and certifications for additional types of 
equipment, such as commercial

[[Page 62474]]

refrigeration equipment (CRE), automatic commercial ice makers (ACIMs), 
beverage vending machines (BVMs), and walk-in cooler and freezer (WICF) 
refrigeration systems. 77 FR 32055. Furthermore, DOE proposed a number 
of requirements that manufacturers would need to meet in order to use 
an AEDM. DOE also proposed a method that it would employ to determine 
if an AEDM had been used appropriately by a manufacturer along with the 
consequences if it had not been. 77 FR 32055-32056.
    During the Working Group's first meeting, Working Group members 
voted to expand the scope of the negotiated rulemaking efforts to 
include developing methods of estimating equipment performance based on 
AEDM simulations. The issues discussed by the the various participants 
during the negotiations with DOE were those raised by the commenters in 
response to the May 2012 NOPR. The discussion of those issues in the 
negotiated rulemaking and the consensus reached as proposed in this 
supplemental NOPR are summarized in two documents included in the 
docket of this proposal and constitute DOE's response to the comments 
on the May 2012 NOPR. The documents discuss the particular elements 
that the AEDM simulations for each equipment should address and other 
related considerations of note, including potential basic model 
definitions, test procedure issues, the treatment of certain features, 
and certification of these equipment. See http://www.regulations.gov/#!docketBrowser;rpp=25;po=0;dct=SR;D=EERE-2013-BT-NOC-0023.
    As required, the Working Group submitted an interim report to ASRAC 
on June 26, 2013, summarizing the group's recommendations 
regarding AEDMs for commercial HVAC, WH, and refrigeration equipment. 
The interim report to ASRAC can be found at http://www.regulations.gov/#!documentDetail;D=EERE-2013-BT-NOC-0023-0046. ASRAC subsequently voted 
unanimously to approve the recommendations in the interim report for 
AEDMs. Subsequently, the Working Group submitted a final report on 
August 30, 2013, summarizing the Working Group's recommendations for 
model grouping, certification requirements and deadlines, and features 
to be excluded from certification, verification, and enforcement 
testing as long as specific conditions were met. ASRAC voted 
unanimously to approve the recommendations in the final report. In this 
notice of proposed rulemaking, DOE is proposing to adopt the Working 
Group's recommendations, without modification, for AEDMs, basic model 
definitions, and the initial compliance date for certification. DOE 
will be addressing the remaining Working Group's recommendations for 
certification requirements, and for the treatment of specific features 
when testing, in a separate rulemaking or guidance document.

II. Discussion of Specific Revisions to DOE's Regulations for 
Alternative Efficiency Determination Methods and Alternative Rating 
Methods

    On May 14-15, 2013, the Commercial Certification Working Group held 
a two-day meeting at the U.S. Department of Energy's headquarters in 
Washington, DC. 69 interested parties, including members of the Working 
Group, attended. The Working Group's recommendations are presented in 
this notice of proposed rulemaking. A more detailed discussion of the 
discussions and recommendations can be found in the Commercial 
Certification Working Group meeting transcripts, which are located at 
http://www.regulations.gov/#!docketDetail;D=EERE-2013-BT-NOC-0023.

A. General Issues

1. Pre-Approval
    The Commercial Certification Working Group unanimously recommended 
that DOE not require pre-approval for AEDMs for commercial HVAC, WH, or 
refrigeration equipment. This recommendation is consistent with DOE's 
proposal in the May 21, 2012, notice of proposed rulemaking amending 
AEDM requirements. 77 FR 32038. Thus, DOE is not proposing to adopt a 
pre-approval process for AEDMs for the aforementioned equipment.
2. Applicable Equipment
    The Commercial Certification Working Group unanimously recommended 
the following types of covered equipment be allowed to use AEDMs.
 Commercial HVAC Equipment
    [cir] Commercial packaged air-conditioning and heating equipment 
(air-cooled, water-cooled, evaporatively-cooled, and water-source)
    [cir] Packaged terminal air conditioners and heat pumps
    [cir] Computer room air conditioners
    [cir] Single package vertical air conditioners and heat pumps
    [cir] Variable refrigerant flow systems
    [cir] Commercial packaged boilers
    [cir] Commercial warm-air furnaces
 Commercial WH Equipment
    [cir] Commercial electric storage water heaters
    [cir] Commercial gas-fired and oil-fired storage water heaters
    [cir] Commercial gas-fired and oil-fired instantaneous water 
heaters greater than or equal to 10 gallons
    [cir] Commercial gas-fired and oil-fired hot water supply boilers 
greater than or equal to 10 gallons
    [cir] Commercial gas-fired and oil-fired instantaneous water 
heaters less than 10 gallons
    [cir] Commercial gas-fired and oil-fired hot water supply boilers 
less than 10 gallons
    [cir] Commercial unfired hot water storage tanks
 Commercial Refrigeration Equipment
    DOE currently allows the use of AEDMs for commercial HVAC equipment 
and water heating equipment. In this notice of proposed rulemaking, DOE 
proposes, in alignment with the Working Group's recommendation, to also 
permit manufacturers to use AEDMs when certifying CRE.

B. Validation

    Prior to use for certifying the energy efficiency or energy use of 
a basic model, DOE generally requires AEDMs to be validated. The 
Commercial Certification Working Group recommended the following 
validation process for AEDMs, which DOE proposes to adopt in today's 
notice.
1. Number of Tested Units Required for Validation
    To validate an AEDM, a manufacturer must select the minimum number 
of basic models, specified in Table II.1 through Table II.5, for each 
of the validation classes to which the AEDM is going to apply. Each 
selection represents a single test conducted in accordance with the DOE 
test procedure (TP) or applicable DOE TP waiver at a manufacturer's 
testing facility or a third-party testing facility, whose test result 
is directly compared to the result for that model from the AEDM.

[[Page 62475]]



             Table II.1--Commercial HVAC Validation Classes
------------------------------------------------------------------------
                                    Minimum number of basic models that
         Validation class                 must be tested per AEDM
------------------------------------------------------------------------
Air-Cooled, Split and Packaged     2 Basic Models.
 Air Conditioners (ACs) and Heat
 Pumps (HPs) less than 65,000 Btu/
 h Cooling Capacity (3-Phase).
Air-Cooled, Split and Packaged     2 Basic Models.
 ACs and HPs greater than or
 equal to 65,000 Btu/h Cooling
 Capacity and Less than 760,000
 Btu/h Cooling Capacity.
Water-Cooled, Split and Packaged   2 Basic Models.
 ACs and HPs, All Cooling
 Capacities.
Evaporatively-Cooled, Split and    2 Basic Models.
 Packaged ACs and HPs, All
 Capacities.
Water-Source HPs, All Capacities.  2 Basic Models.
Single Package Vertical ACs and    2 Basic Models.
 HPs.
Packaged Terminal ACs and HPs....  2 Basic Models.
Air-Cooled, Variable Refrigerant   2 Basic Models.
 Flow ACs and HPs.
Water-Cooled, Variable             2 Basic Models.
 Refrigerant Flow ACs and HPs.
Computer Room Air Conditioners,    2 Basic Models.
 Air Cooled.
Computer Room Air Conditioners,    2 Basic Models.
 Water-Cooled.
------------------------------------------------------------------------


         Table II.2--Commercial Water Heaters Validation Classes
------------------------------------------------------------------------
                                    Minimum number of basic models that
         Validation class                      must be tested
------------------------------------------------------------------------
Gas-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Less than
 10 Gallons.
Gas-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Greater
 than or Equal to 10 Gallons.
Oil-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Less than
 10 Gallons.
Oil-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Greater
 than or Equal to 10 Gallons.
Electric Water Heaters...........  2 Basic Models.
Heat Pump Water Heaters..........  2 Basic Models.
Unfired Hot Water Storage Tanks..  2 Basic Models.
------------------------------------------------------------------------


       Table II.3--Commercial Packaged Boilers Validation Classes
------------------------------------------------------------------------
                                    Minimum number of basic models that
         Validation class                      must be tested
------------------------------------------------------------------------
Gas-fired, Hot Water Only          2 Basic Models.
 Commercial Packaged Boilers.
Gas-fired, Steam Only Commercial   2 Basic Models.
 Packaged Boilers.
Gas-fired Hot Water/Steam          2 Basic Models.
 Commercial Packaged Boilers.
Oil-fired, Hot Water Only          2 Basic Models.
 Commercial Packaged Boilers.
Oil-fired, Steam Only Commercial   2 Basic Models.
 Packaged Boilers.
Oil-fired Hot Water/Steam          2 Basic Models.
 Commercial Packaged Boilers.
------------------------------------------------------------------------


           Table II.4--Commercial Furnaces Validation Classes
------------------------------------------------------------------------
                                    Minimum number of basic models that
         Validation class                      must be tested
------------------------------------------------------------------------
Gas-fired Furnaces...............  2 Basic Models.
Oil-fired Furnaces...............  2 Basic Models.
------------------------------------------------------------------------


    Table II.5--Commercial Refrigeration Equipment Validation Classes
------------------------------------------------------------------------
                                    Minimum number of basic models that
        Validation class*                      must be tested
------------------------------------------------------------------------
Self-Contained Open Refrigerators  2 Basic Models.
Self-Contained Open Freezers.....  2 Basic Models.
Remote Condensing Open             2 Basic Models.
 Refrigerators.
Remote Condensing Open Freezers..  2 Basic Models.
Self-Contained Closed              2 Basic Models.
 Refrigerators.
Self-Contained Closed Freezers...  2 Basic Models.
Remote Condensing Closed           2 Basic Models.
 Refrigerators.
Remote Condensing Closed Freezers  2 Basic Models.
------------------------------------------------------------------------
* The minimum number of tests indicated above must be comprised of a
  transparent model, a solid model, a vertical model, a semi-vertical
  model, a horizontal model, and a service-over-the counter model, as
  applicable based on the equipment offering. However, manufacturers do
  not need to include all types of these models if it will increase the
  minimum number of tests that need to be conducted.


[[Page 62476]]

    A manufacturer may elect to develop multiple AEDMs per validation 
class and each AEDM may span multiple validation classes; however, the 
minimum number of tests must be maintained per validation class for 
each AEDM a manufacturer chooses to develop and use. An AEDM may be 
applied to any individual model within the applicable validation 
classes at the manufacturer's discretion. All documentation of test 
results for the models used to validate each AEDM, the AEDM results, 
and the subsequent comparisons to the AEDM must be maintained as part 
of both the test data underlying the certified rating and the AEDM 
validation package pursuant to 10 CFR 429.71. DOE requests comment on 
the minimum number of tests proposed for each validation class.
2. Tolerances
    To validate the AEDM, the test results from each model required per 
the validation requirements described in the previous section must be 
compared to the simulated results from the applicable AEDM. The 
Commercial Certification Working Group recommended that for energy 
consumption metrics, the AEDM result for a model must be greater than 
or equal to 95 percent of the tested results for that same model. For 
energy efficiency metrics, the AEDM results for a model must be less 
than or equal to 105 percent of the tested results for that same model. 
DOE is proposing this one-sided 5 percent tolerance for AEDM validation 
for all commercial HVAC, WH, and refrigeration equipment. DOE requests 
comment on the proposed tolerances on the AEDM results as compared to 
the tested results for a given model.
3. Certified Ratings
    For each basic model of commercial HVAC, WH, and refrigeration 
equipment distributed in commerce, manufacturers must determine the 
certified rating based on testing or use of a validated AEDM. DOE's 
current regulations provide manufacturers with some flexibility in 
rating each basic model by allowing the manufacturer the discretion to 
rate conservatively. The Working Group recommended that for energy 
consumption metrics each model's certified rating must be less than or 
equal to the applicable Federal standard and greater than or equal to 
the model's AEDM result. For energy efficiency metrics, each model's 
certified rating must be less than or equal to the model's AEDM result 
and greater than or equal to the applicable Federal standard. DOE is 
proposing to retain the flexibility provided by its current regulatory 
approach and is proposing the Working Group's recommendation without 
modification. DOE requests comment on this method of rating.

C. DOE Verification

    Once a basic model has been distributed in commerce, DOE may select 
any model and verify the equipment's performance at any time. 10 CFR 
429.104. The Commercial Certification Working Group recommended the 
following process described in section II.C.1 through II.C.7 for DOE 
verification of certified ratings determined by an AEDM. In today's 
notice, DOE proposes to adopt these recommendations.
1. Witness Testing
    Currently, DOE's regulations do not require a manufacturer to be 
present for DOE-initiated testing to verify equipment performance of a 
given basic model. The Working Group considered two options for witness 
testing when certifying a basic model. A manufacturer may elect to have 
a DOE representative and a manufacturer's representative on-site for 
the initial verification test for up to 10 percent of the 
manufacturer's certified basic models rated with an AEDM. The 10 
percent requirement applies to all of the basic models certified by a 
given manufacturer no matter how many AEDMs a manufacturer has used to 
develop its ratings. Manufacturers who elect to select 10 percent of 
their basic models must include this information as part of their 
certification prior to the unit being selected for verification 
testing. In general, DOE will perform testing without a manufacturer's 
representative present for all basic models DOE selects for assessment 
testing as long as the two following conditions are met: (1) A 
manufacturer has not elected a given basic model as part of its 10 
percent election allowed for witness testing; and (2) the manufacturer 
does not require the basic model to be started only by a factory-
trained installer per the installation manual instructions. For the 
basic models for which a manufacturer elected to have the initial 
verification test witnessed, the manufacturer cannot request the unit 
be retested. The results from this initial test would be used to make a 
definitive determination regarding the validity of the basic model's 
rating. For those basic models that are initially tested without the 
manufacturer present, a manufacturer is automatically eligible to 
request a retest for those basic models where the initial results 
indicate a potential rating issue. DOE requests comment on the proposal 
for witness testing.
2. Verification Process
    The Working Group negotiated the process that DOE would use to 
assess a unit's performance through third party testing. Under this 
approach, DOE would begin the verification process by selecting a 
single unit of a given basic model for testing either from retail or by 
obtaining a sample from the manufacturer. DOE will select a third-party 
testing laboratory at its discretion to test the unit selected. The lab 
will adhere to the requirements recommended by the Commercial 
Certification Working Group described in section II.C.3 below. DOE will 
conduct the test in accordance with the witness testing arrangements 
discussed above. In the cases where a factory-trained installer is 
required per the installation manual instructions or the model is a 
variable refrigerant flow commercial HVAC system, the manufacturer's 
representative and DOE will only be on-site for test set up. In all 
cases, the Department will be responsible for the logistics of 
arranging a witnessed test, and the laboratory is not allowed to 
communicate directly with the manufacturer.
    The manufacturer will provide any additional information needed 
regarding test set up or testing to DOE through the certification 
process in pdf format. (This provision will be addressed in a separate 
rulemaking.) DOE will provide this information to the test facility as 
long as the additional instructions are not in conflict with the DOE 
test procedure or applicable DOE test procedure waiver. The test 
facility may not use any additional information during the testing 
process that has not been approved by DOE or shipped in the packaging 
of the unit. If needed, the test facility may request from DOE 
additional information on test set up, installation, or testing. Upon 
receiving a request from the test facility for additional information, 
DOE may hold and coordinate a meeting with the manufacturer and the 
test facility to discuss the additional details needed for testing. 
Additional instructions may be given to the test facility as agreed 
upon by DOE and the manufacturer. At no time may the test facility 
discuss DOE verification testing with the manufacturer without the 
Department present.
    If a unit is tested and determined to be outside the rating 
tolerances described in section II.C.4, DOE will notify the 
manufacturer. The manufacturer will receive all

[[Page 62477]]

documentation related to the test set up, test conditions, and test 
results for the unit if the unit falls outside the rating tolerances. 
At that time, a manufacturer may present all claims regarding any 
issues directly associated with the test and initiate a discussion 
regarding retesting. If the manufacturer was not on-site for the 
initial test, the manufacturer may request a retest of the same unit, 
and DOE and the manufacturer can be present for the retest. DOE will 
not retest a different unit of the same basic model unless DOE and the 
manufacturer determine it is necessary based on the test results, 
claims presented, and DOE regulations. DOE requests comment on this 
proposal.
3. Verification Lab Requirements
    The Commercial Certification Working Group recommended that all 
AEDM verification tests should be conducted in a third-party testing 
facility of DOE's choice. Commercial equipment that cannot be tested at 
an independent third-party facility may be tested at a manufacturer's 
facility upon DOE's request. DOE requests comment on this proposal.
4. Verification Tolerances
    To verify the certified rating of a given model, the test results 
from a single unit test of the model will be compared to the certified 
rating in accordance with the tolerances set forth below. For energy 
consumption metrics, the Commercial Certification Working Group 
recommended:

Test Result <= Certified Rating x (1 + Applicable Tolerance)

    For energy efficiency metrics, the Commercial Certification Working 
Group recommended:

Test Result >= Certified Rating x (1 - Applicable Tolerance)

    DOE requests comment on the proposed tolerances.

                      Table II.6--Rating Tolerances
------------------------------------------------------------------------
                                                            Applicable
             Equipment                     Metric            tolerance
------------------------------------------------------------------------
Commercial Packaged Boilers.......  Combustion                 5% (0.05)
                                     Efficiency.
                                    Thermal Efficiency..       5% (0.05)
Commercial Water Heaters or Hot     Thermal Efficiency..       5% (0.05)
 Water Supply Boilers.
                                    Standby Loss........       10% (0.1)
Unfired Storage Tanks.............  R-Value.............       10% (0.1)
Air-Cooled, Split and Packaged ACs  Seasonal Energy-           5% (0.05)
 and HPs less than 65,000 Btu/h      Efficiency Ratio.
 Cooling Capacity (3-Phase).
                                    Heating Season             5% (0.05)
                                     Performance Factor.
                                    Energy Efficiency          10% (0.1)
                                     Ratio.
Air-Cooled, Split and Packaged ACs  Energy Efficiency          5% (0.05)
 and HPs greater than or equal to    Ratio.
 65,000 Btu/h Cooling Capacity and
 Less than 760,000 Btu/h Cooling
 Capacity.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Water-Cooled, Split and Packaged    Energy Efficiency          5% (0.05)
 ACs and HPs, All Cooling            Ratio.
 Capacities.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Evaporatively-Cooled, Split and     Energy Efficiency          5% (0.05)
 Packaged ACs and HPs, All           Ratio.
 Capacities.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Water-Source HPs, All Capacities..  Energy Efficiency          5% (0.05)
                                     Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Single Package Vertical ACs and     Energy Efficiency          5% (0.05)
 HPs.                                Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.
Packaged Terminal ACs and HPs.....  Energy Efficiency          5% (0.05)
                                     Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.
Variable Refrigerant Flow ACs and   Energy Efficiency          5% (0.05)
 HPs.                                Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Computer Room Air Conditioners....  Sensible Coefficient       5% (0.05)
                                     of Performance.
Commercial Warm-Air Furnaces......  Thermal Efficiency..       5% (0.05)
Commercial Refrigeration Equipment  Daily Energy               5% (0.05)
                                     Consumption.
------------------------------------------------------------------------

5. Invalid Rating Process
    Once DOE has determined that a basic model is outside of the 
tolerances based on the verification process described in sections 
II.C.1 through II.C.4, the Commercial Working Group negotiated the 
following process for remedying the invalid rating. First, DOE will 
notify the manufacturer and the manufacturer would have 15 days to 
select and report one of the following pathways: (1) Conservatively 
rerate and recertify the model based on the DOE test data only, (2) 
discontinue the model through the certification process, or (3) conduct 
additional testing, rerate, and recertify the model using all 
additional manufacturer test data and the DOE test data. The 
manufacturer and DOE will determine the specific date by which the 
manufacturer must complete the process for correcting the invalid 
rating, but the process shall not take more than 180 days to complete. 
DOE requests comment on the proposed options for addressing invalid 
ratings.
6. Consequences of an Invalid Rating
    The Commercial Working Group negotiated the consequences of DOE 
determining that a rating is invalid for a given basic model based on 
assessment testing. If the Department finds that within 24 rolling 
months a manufacturer has more than one basic model with an invalid 
rating whose results were derived from the same AEDM, then the 
manufacturer will be subject to the requirements listed in Table II.7. 
In general, to continue using the AEDM, if a manufacturer has

[[Page 62478]]

between two and seven basic models with invalid ratings that were 
derived from the same AEDM, then the manufacturer must re-validate the 
AEDM according to the requirements in Table II.7 by conducting new 
testing of different basic models. If the manufacturer has eight or 
more basic models with invalid ratings from the same AEDM, then all the 
models to which the AEDM applied must be re-rated with physical testing 
in accordance with the applicable sampling plans in part 429. 10 CFR 
429.11. DOE requests comment on these proposed consequences that would 
flow from an invalid rating.

              Table II.7--Consequences for Invalid Ratings
------------------------------------------------------------------------
  Number of invalid certified ratings
 from the same AEDM** within a rolling    Required manufacturer actions
       24 month  period [dagger]
------------------------------------------------------------------------
2.....................................  Submit different test data and
                                         reports from testing to
                                         validate that AEDM within the
                                         validation classes to which it
                                         is applied.* Adjust the rating
                                         as appropriate.
4.....................................  Conduct double the minimum
                                         number of validation tests for
                                         the validation classes to which
                                         the AEDM is applied. Note, the
                                         tests required under subsection
                                         (c)(5)(H)(1) must be different
                                         tests on different models than
                                         the original tests required
                                         under subsection (c)(2).
6.....................................  Conduct the minimum number of
                                         validation tests for the
                                         validation classes to which the
                                         AEDM is applied; And
                                        Conduct addition testing, which
                                         is equal to \1/2\ the minimum
                                         number of validation tests for
                                         the validation classes to which
                                         the AEDM is applied, at either
                                         the manufacturer's facility or
                                         a third-party test facility, at
                                         the manufacturer's discretion.
                                        Note, the tests required under
                                         subsection (c)(5)(H)(1) must be
                                         different tests on different
                                         models than the original tests
                                         required under subsection
                                         (c)(2).
>=8...................................  Manufacturer has lost privilege
                                         to use AEDM. All ratings for
                                         models within the validation
                                         classes to which the AEDM
                                         applied should be rated via
                                         testing. Distribution cannot
                                         continue until certification(s)
                                         are corrected to reflect actual
                                         test data.
------------------------------------------------------------------------
* A manufacturer may discuss with DOE's Office of Enforcement whether
  existing test data on different basic models within the validation
  classes to which that specific AEDM was applied may be used to meet
  this requirement.
** Where the same AEDM means a computer simulation or mathematical model
  that is identified by the manufacturer at the time of certification as
  having been used to rate a model or group of models.
[dagger] The twenty-four month period begins with a DOE determination
  that a rating is invalid through the process outlined above.
  Additional invalid ratings apply for the purposes of determining the
  appropriate consequences if the subsequent determination(s) is based
  on selection of a unit for testing within the twenty-four month period
  (i.e., subsequent determinations need not be made within 24 months).

7. Regaining the Use of AEDMs
    If, as a result of eight or more invalid ratings, a manufacturer 
has lost the privilege of using an AEDM for rating purposes, the 
manufacturer may regain the ability to use an AEDM by (1) Investigating 
the cause(s) for the failures, (2) identifying the root cause(s) for 
the failures, (3) taking corrective action to address the root 
cause(s), (4) validating the AEDM by performing six new tests per 
validation class with a minimum of two of the tests performed at a 
third-party test facility, and (5) obtaining DOE authorization to 
resume the use of the AEDM. At its discretion, DOE may reduce or waive 
these requirements, in which case DOE will provide public notice and a 
written explanation of the grounds for reducing or waiving the 
requirements. DOE requests comment on the proposed method for regaining 
the use of AEDMs.

III. Basic Model Definitions

    The Working Group recommended amended basic model definitions for 
commercial refrigeration equipment; commercial warm air furnaces; 
commercial packaged boilers; and commercial water heaters. 
Additionally, the Working Group recommended distinct basic model 
definitions for each type of commercial HVAC equipment, such as 
packaged terminal air conditioners (PTACs) and heat pumps (PTHPs); 
small, large, and very large air-cooled commercial package air 
conditioning and heating equipment; small, large, and very large water-
cooled, evaporatively-cooled, and water source commercial package air 
conditioning and heating equipment; single package vertical air 
conditioners and heat pumps (SPVUs); computer room air conditioner; and 
variable refrigerant flow multi-split air conditioner and heat pump 
with capacities greater than 65,000 Btu/h. DOE is proposing the basic 
model definitions by covered equipment type that were development by 
the Working Group except DOE has included several clarifications to 
harmonize the wording of the definitions for consistency purposes, but 
did not change the meaning of the definitions as agreed upon by the 
Working Group.

IV. Discussion of Specific Revisions to the Compliance Date for 
Certification of Commercial HVAC, WH, and Refrigeration Equipment

    The Working Group recommended that certification reports must be 
initially submitted for all basic models distributed in commerce 
according to the schedule shown in Table IV.1. After the initial 
certification date, DOE's existing regulations require that 
manufacturers certify: (1) New basic models before distribution in 
commerce; (2) existing basic models, whose certified rating remains 
valid, annually; (3) existing basic models, whose design is altered 
resulting in a change in rating that is more consumptive or less 
efficient, at the time the design change is made; and (4) previously 
certified basic models that have been discontinued annually.

[[Page 62479]]



          Table IV.1--Initial Certification Compliance Schedule
------------------------------------------------------------------------
 The initial certification date is the
number of months shown below after the
  AEMD final rule is published in the            Equipment type
           Federal Register
------------------------------------------------------------------------
6.....................................  Commercial Warm Air Furnaces,
                                         PTACs and PTHPs.
9.....................................  Commercial gas-fired and oil-
                                         fired instantaneous water
                                         heaters less than 10 gallons.
                                        Commercial gas-fired and oil-
                                         fired hot water supply boilers
                                         less than 10 gallons.
12....................................  Commercial water heaters (all
                                         others types).
                                        Small commercial packaged
                                         boilers (<= 2.5 million Btu/h).
                                        Self-Contained CRE with solid or
                                         transparent doors.
15....................................  VRFs.
18....................................  Small, large and very large air,
                                         water, and evaporatively-cooled
                                         and water source commercial
                                         packaged ACs and HPs.
                                        SPVUs.
                                        CRACs.
                                        Large packaged boilers (> 2.5
                                         million Btu/h).
                                        CRE (all other types).
------------------------------------------------------------------------

    The Working Group also agreed to the following caveats on the 
schedule proposed above. If, in the separate, certification rulemaking, 
DOE adopts regulations that are significantly different from the 
remainder of the Working Group recommendations, then the initial 
certification compliance dates will be based on the final rule date for 
the separate rulemaking effort. The Working Group agreed that in no 
instance should the initial certification compliance date be less than 
two months after the issuance of the final rule adopting the remainder 
of the Working Group's recommendations. Additionally, the Working Group 
recommended that DOE allow a six-month grace period following each 
certification date during which DOE will not pursue civil penalties for 
certification violations. The Working Group emphasized that a grace 
period would allow manufacturers time to gain familiarity with the 
certification process and remedy any problems. DOE proposes to adopt 
this compliance schedule in its entirety and requests comment on this 
approach to establishing compliance deadlines.

V. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget has determined that test 
procedure rulemakings do not constitute ``significant regulatory 
actions'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this 
action was not subject to review under the Executive Order by the 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires the 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule that by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
As required by Executive Order 13272, ``Proper Consideration of Small 
Entities in Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE 
published procedures and policies on February 19, 2003, to ensure that 
the potential impacts of its rules on small entities are properly 
considered during the DOE rulemaking process. 68 FR 7990. DOE has made 
its procedures and policies available on the Office of the General 
Counsel's Web site: www.gc.doe.gov. DOE reviewed the test procedures 
considered in today's SNOPR under the provisions of the Regulatory 
Flexibility Act (RFA) and the policies and procedures published on 
February 19, 2003.
    DOE reviewed the AEDM requirements being proposed under the 
provisions of the Regulatory Flexibility Act and the procedures and 
policies published on February 19, 2003. As discussed in more detail 
below, DOE found that because the provisions of this rule will not 
result in increased testing and/or reporting burden for manufacturers 
already eligible to use an AEDM and will extend AEDM use to a number of 
manufacturers, thus reducing their testing burden, manufacturers will 
not experience increased financial burden as a result of this rule.
    Today's proposal, which presents voluntary methods for certifying 
compliance in lieu of conducting actual physical testing, would not 
increase the testing or reporting burden of manufacturers who currently 
use, or are eligible to use, an AEDM to certify their products. 
Furthermore, proposed requirements for validation of an AEDM do not 
require more testing than that required by the AEDM provisions included 
in the March 7, 2011 Certification, Compliance and Enforcement Final 
Rule (76 FR 12422) (``March 2011 Final Rule''), and would relax 
tolerances that tested products are required to meet in order to 
substantiate the AEDM.
    DOE has also clarified in today's proposal how it intends to 
exercise its authority to validate AEDM performance and verify the 
performance of products certified using an AEDM. DOE negotiated the 
process with industry resulting in the proposal in today's proposed 
rule. Since any testing falling under this category would be DOE-
initiated testing and DOE is outlining the process to determine an 
invalid rating in today's proposal which includes manufacturer 
involvement throughout, DOE does not believe that this will 
verification of ratings resulting from an AEDM will have a substantial 
impact on small businesses.
    This notice of proposed rulemaking also proposes to permit the 
manufacturer of many other covered products who are currently not 
permitted to use an AEDM to certify or rate their products to have the 
option of doing so. Manufacturers not eligible to use AEDMs must 
currently test at least two units of every basic model that they 
produce in order to certify compliance to the Department pursuant to 
the March 2011 Final Rule. Today's proposal would reduce a 
manufacturer's testing burden by enabling these manufacturers to 
simulate testing based

[[Page 62480]]

on testing data derived from a reduced number of units. While the 
Department believes that permitting greater use of AEDMs will reduce 
the affected manufacturer's test burden, their use is at the 
manufacturer's discretion. If, as a result of any of the proposals 
herein, a manufacturer believes that use of an AEDM would increase 
rather than decrease their financial burden, the manufacturer may 
choose not to employ the method. Should a manufacturer choose to 
abstain from using an AEDM, this proposed provision would not apply and 
the manufacturer would continue to remain subject to the requirements 
of any DOE test procedure that applies to that product, which would 
result in no change in burden from that which is required currently.
    Finally, DOE is proposing two aspects of regarding certification of 
commercial HVAC, WH, and refrigeration equipment, which should further 
decrease the burden of existing DOE regulations. First, DOE is 
proposing basic model definition that allows a manufacturer to group 
its individual models based on certain characteristics. The basic model 
definition provides the manufacturer with flexibility in making these 
groupings and was negotiated as part of the Working Group's meeting. 
Lastly, DOE is proposing to extend the initial compliance date for 
certification of commercial HVAC, WH, and refrigeration equipment from 
6 months to 18 months from publication of this final rule as compared 
to the current date of December 31, 2013. This will allow manufacturer 
time to implement the proposals agreed to by the Working Group, if they 
are ultimately promulgated, prior to initially certifying their basic 
models.
    For the reasons enumerated above, DOE is certifying that the 
proposed rule, if promulgated, would not have a significant impact on a 
substantial number of small entities.

C. Review Under the Paperwork Reduction Act

    Manufacturers of the covered products addressed in today's SNOPR 
must certify to DOE that their equipment comply with any applicable 
energy conservation standards. In certifying compliance, manufacturers 
must test their equipment according to the applicable DOE test 
procedures for the given equipment type, including any amendments 
adopted for those test procedures, or use the AEDMs to develop the 
certified ratings of the basic models. DOE has established regulations 
for the certification and recordkeeping requirements for all covered 
consumer products and commercial equipment, including the equipment at 
issue in this SNOPR. (76 FR 12422 (March 7, 2011)). The collection-of-
information requirement for these certification and recordkeeping 
provisions is subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA). This requirement has been approved by OMB under 
OMB Control Number 1910-1400. Public reporting burden for the 
certification is estimated to average 20 hours per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act

    DOE has determined that this rule falls into a class of actions 
that are categorically excluded from review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and DOE's 
implementing regulations at 10 CFR part 1021. Specifically, this 
proposed rule would adopt changes for certifying certain covered 
products and equipment, so it would not affect the amount, quality or 
distribution of energy usage, and, therefore, would not result in any 
environmental impacts. Thus, this rulemaking is covered by Categorical 
Exclusion A6 under 10 CFR part 1021, subpart D. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have Federalism 
implications. The Executive Order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this proposed rule and has 
determined that it would not have a substantial direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. EPCA governs and prescribes Federal 
preemption of State regulations as to energy conservation for the 
products that are the subject of today's proposed rule. States can 
petition DOE for exemption from such preemption to the extent, and 
based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further 
action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal 
agencies the general duty to adhere to the following requirements: (1) 
Eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigation; (3) provide a clear legal standard for affected 
conduct rather than a general standard; and (4) promote simplification 
and burden reduction. Section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
sections 3(a) and 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the proposed rule meets the relevant standards of Executive Order 
12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects

[[Page 62481]]

of Federal regulatory actions on State, local, and Tribal governments 
and the private sector. Public Law 104-4, sec. 201 (codified at 2 
U.S.C. 1531). For a proposed regulatory action likely to result in a 
rule that may cause the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a 
Federal agency to develop an effective process to permit timely input 
by elected officers of State, local, and Tribal governments on a 
proposed ``significant intergovernmental mandate,'' and requires an 
agency plan for giving notice and opportunity for timely input to 
potentially affected small governments before establishing any 
requirements that might significantly or uniquely affect small 
governments. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA. 62 FR 12820; 
also available at www.gc.doe.gov. DOE examined today's proposed rule 
according to UMRA and its statement of policy and determined that the 
rule contains neither an intergovernmental mandate, nor a mandate that 
may result in the expenditure of $100 million or more in any year, so 
these requirements do not apply.

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

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This proposal would not have any impact on the autonomy or integrity of 
the family as an institution. Accordingly, DOE has concluded that it is 
not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this proposed regulation 
would not result in any takings that might require compensation under 
the Fifth Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed today's proposed rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB, 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    Today's proposal to establish alternate certification requirements 
for certain covered equipment is not a significant regulatory action 
under Executive Order 12866. Moreover, it would not have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as a significant energy action by the Administrator 
of OIRA. Therefore, it is not a significant energy action, and, 
accordingly, DOE has not prepared a Statement of Energy Effects.

L. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the 
Federal Energy Administration Act of 1974, as amended by the Federal 
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) 
Section 32 essentially provides in relevant part that, where a proposed 
rule authorizes or requires use of commercial standards, the notice of 
proposed rulemaking must inform the public of the use and background of 
such standards. In addition, section 32(c) requires DOE to consult with 
the Attorney General and the Chairman of the Federal Trade Commission 
(FTC) concerning the impact of the commercial or industry standards on 
competition. Today's proposal to amend regulations relating to AEDMs 
does not propose the use of any commercial standards.

VI. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding the 
proposed rule no later than the date provided at the beginning of this 
notice of proposed rulemaking. Comments, data, and information 
submitted to DOE's email address for this rulemaking should be provided 
in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format. 
Interested parties should avoid the use of special characters or any 
form of encryption, and wherever possible, comments should include the 
electronic signature of the author. Absent an electronic signature, 
comments submitted electronically must be followed and authenticated by 
submitting a signed original paper document to the address provided at 
the beginning of this notice of proposed rulemaking. Comments, data, 
and information submitted to DOE via mail or hand delivery/courier 
should include one signed original paper copy. No telefacsimiles 
(faxes) will be accepted.
    According to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit two copies: One copy of the document including 
all the information believed to be confidential and one copy of the 
document with the information believed to be confidential deleted. DOE 
will make its own determination as to the confidential status of the 
information and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include (1) A description of the 
items, (2) whether and why such items are customarily treated as 
confidential within the industry, (3) whether the information is 
generally known by or available from

[[Page 62482]]

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) a date upon which such 
information might lose its confidential nature due to the passage of 
time, and (7) why disclosure of the information would be contrary to 
the public interest.

B. Issues on Which DOE Seeks Comment

    Although DOE welcomes comments on any aspect of this proposal, DOE 
is particularly interested in receiving comments and views of 
interested parties concerning the following issues:
    1. DOE requests comment on its proposal to require manufacturers to 
test a minimum number of models, specified in Table II.1 through Table 
II.5, from each validation class to which the AEDM is going to apply in 
order to substantiate each AEDM.
    2. DOE requests comment on its proposed tolerances on AEDM results 
as compared to the test results for a given model.
    3. DOE requests comment on its proposal to certify models rated 
with an AEDM between the AEDM result and the Federal standard.
    4. DOE requests comment on its proposal to allow manufacturers to 
witness the testing of a maximum of 10 percent of their certified basic 
models. If a basic model is not witness tested then it can be retested 
at the discretion of the manufacturer according to the process outlined 
in section II.C.1.
    5. DOE requests comment on the proposed process for validation 
test. This process outlines when a model can be witness tested, how 
additional test information can be communicated to the test lab, and 
how a manufacturer can request a retest.
    6. DOE requests comment on its proposal that verification testing 
should take place a third-party test lab unless the equipment is unable 
to be tested at a third-party facility in which case testing may occur 
the manufacturer's facility.
    7. DOE requests comment on the tolerances proposed in Table II.6.
    8. DOE requests comment on the proposed options manufacturers may 
select from in order to address an invalid rating.
    9. DOE requests comment on the consequences listed in Table II.7 
for manufacturers found to have invalid ratings.
    10. DOE requests comment on the proposed process for regaining the 
use of AEDMs.

VII. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's SNOPR.

List of Subjects

10 CFR Part 429

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Reporting and recordkeeping 
requirements.

10 CFR Part 431

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on September 30, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    For the reasons set forth in the preamble, DOE proposes to amend 
parts 429 and 431 of chapter II, subchapter D, of title 10 of the Code 
of Federal Regulations, as set forth below:

PART 429--CERTIFICATION, COMPLIANCE AND ENFORCEMENT FOR CONSUMER 
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT

0
1. The authority citation for part 429 continues to read as follows:

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

0
2. Revise Sec.  429.12 paragraph (i) to read as follows:


Sec.  429.12  General requirements applicable to certification reports.

* * * * *
    (i) Compliance dates. For any product subject to an applicable 
energy conservation standard for which the compliance date has not yet 
occurred, a certification report must be submitted not later than the 
compliance date for the applicable energy conservation standard. The 
covered products enumerated below are subject to the stated compliance 
dates for initial certification:
    (1) Commercial warm air furnaces, packaged terminal air 
conditioners, and packaged terminal heat pumps, [date 6 months after 
date of publication of the final rule in the Federal Register];
    (2) Commercial gas-fired and oil-fired instantaneous water heaters 
less than 10 gallons and commercial gas-fired and oil-fired hot water 
supply boilers less than 10 gallons, [date 9 months after date of 
publication of the final rule in the Federal Register];
    (3) All other types of covered commercial water heaters except 
those specified in paragraph (i)(2) of this section, commercial 
packaged boilers with input capacities less than or equal to 2.5 
million Btu/h, and self-contained commercial refrigeration equipment 
with solid or transparent doors, [date 12 months after date of 
publication of the final rule in the Federal Register];
    (4) Variable refrigerant flow air conditioners and heat pumps, 
[date 15 months after date of publication of the final rule in the 
Federal Register];
    (5) Small, large, or very large air-cooled, water-cooled, 
evaporatively-cooled, and water-source commercial air conditioning and 
heating equipment, single package vertical units, computer room air 
conditioners, commercial packaged boilers with input capacities greater 
than 2.5 million Btu/h, and all other types of commercial refrigeration 
equipment except those specified in paragraph (i)(3) of this section, 
[date 18 months after date of publication of the final rule in the 
Federal Register].
0
3. Section 429.42 is amended by revising paragraph (a) to read as 
follows:


Sec.  429.42  Commercial refrigerators, freezers, and refrigerator-
freezers.

    (a) Determination of represented value. Manufacturers must 
determine the represented value, which includes the certified rating, 
for each basic model of commercial refrigerator, freezer, or 
refrigerator-freezer either by testing, in conjunction with the 
applicable sampling provisions, or by applying a validated AEDM.
    (1) Units to be tested. (i) If the represented value for a given 
basic model is determined through testing, the general requirements of 
Sec.  429.11 are applicable; and
    (ii) For each basic model selected for testing, a sample of 
sufficient size shall be randomly selected and tested to ensure that--
    (A) Any represented value of energy consumption or other measure of 
energy use of a basic model for which consumers would favor lower 
values shall be greater than or equal to the higher of:
    (1) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TP22OC13.020
    

and x is the sample mean; n is the number of samples; and xi 
is the i\th\ sample; or,
    (2) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.10, where:

[[Page 62483]]

[GRAPHIC] [TIFF OMITTED] TP22OC13.021


and x is the sample mean; s is the sample standard deviation; n is the 
number of samples; and t0.95 is the t statistic for a 95% 
one-tailed confidence interval with n-1 degrees of freedom (from 
Appendix A to subpart B of this part); and,
    (B) Any represented value of the energy efficiency or other measure 
of energy consumption of a basic model for which consumers would favor 
higher values shall be less than or equal to the lower of:
    (1) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TP22OC13.022
    

and, x is the sample mean; n is the number of samples; and 
xi is the i\th\ sample; or,
    (2) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.90, where:
[GRAPHIC] [TIFF OMITTED] TP22OC13.023


and x is the sample mean; s is the sample standard deviation; n is the 
number of samples; and t0.95 is the t statistic for a 95% 
one-tailed confidence interval with n-1 degrees of freedom (from 
Appendix A to subpart B of this part).
    (2) Alternative efficiency determination methods. In lieu of 
testing, a represented value of efficiency or consumption for a basic 
model of commercial refrigerator, freezer or refrigerator-freezer must 
be determined through the application of an AEDM pursuant to the 
requirements of Sec.  429.70 and the provisions of this section, where:
    (i) Any represented value of energy consumption or other measure of 
energy use of a basic model for which consumers would favor lower 
values shall be greater than or equal to the output of the AEDM and 
less than or equal to the Federal standard for that basic model; and
    (ii) Any represented value of energy efficiency or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be less than or equal to the output of the AEDM and 
greater than or equal to the Federal standard for that basic model.
* * * * *
0
4. Section 429.43 is amended by revising paragraph (a) to read as 
follows:


Sec.  429.43  Commercial heating, ventilating, air conditioning (HVAC) 
equipment.

    (a) Determination of represented value. Manufacturers can determine 
the represented value, which includes the certified rating, for each 
basic model of commercial HVAC equipment either by testing, in 
conjunction with the applicable sampling provisions, or by applying a 
validated AEDM.
    (1) Units to be tested. (i) If the represented value is determined 
through testing, the general requirements of Sec.  429.11 are 
applicable; and
    (ii) For each basic model selected for testing, a sample of 
sufficient size shall be randomly selected and tested to ensure that--
    (A) Any represented value of energy consumption or other measure of 
energy use of a basic model for which consumers would favor lower 
values shall be greater than or equal to the higher of:
    (1) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TP22OC13.024
    

and, x is the sample mean; n is the number of samples; and 
xi is the i\th\ sample; Or,
    (2) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TP22OC13.025


and x is the sample mean; s is the sample standard deviation; n is the 
number of samples; and t0.95 is the t statistic for a 95% 
one-tailed confidence interval with n-1 degrees of freedom (from 
Appendix A to subpart B of this part); and,
    (B) Any represented value of energy efficiency or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be less than or equal to the lower of:
    (1) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TP22OC13.026
    

and, x is the sample mean; n is the number of samples; and 
xi is the i\th\ sample; Or,
    (2) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TP22OC13.027


and x is the sample mean; s is the sample standard deviation; n is the 
number of samples; and t0.95 is the t statistic for a 95% 
one-tailed confidence interval with n-1 degrees of freedom (from 
Appendix A to subpart B of this part).
    (2) Alternative efficiency determination methods. In lieu of 
testing, a represented value of efficiency or consumption for a basic 
model of commercial HVAC equipment must be determined through the 
application of an AEDM pursuant to the requirements of Sec.  429.70 and 
the provisions of this section, where:
    (i) Any represented value of energy consumption or other measure of 
energy use of a basic model for which consumers would favor lower 
values shall be greater than or equal to the output of the AEDM and 
less than or equal to the Federal standard for that basic model; and
    (ii) Any represented value of energy efficiency or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be less than or equal to the output of the AEDM and 
greater than or equal to the Federal standard for that basic model.
* * * * *
0
5. Section 429.44 is amended by revising paragraph (a) to read as 
follows:


Sec.  429.44  Commercial water heating equipment.

    (a) Determination of represented value. Manufacturers can determine 
the represented value, which includes the certified rating, for each 
basic model of commercial water heating equipment, either by testing, 
in conjunction with the applicable sampling provisions, or by applying 
a validated AEDM.
    (1) Units to be tested. (i) If the represented value for a given 
basic model is determined through testing, the general requirements of 
Sec.  429.11 are applicable; and
    (ii) For each basic model selected for testing, a sample of 
sufficient size shall be randomly selected and tested to ensure that--
    (A) Any represented value of energy consumption or other measure of 
energy use of a basic model for which consumers would favor lower 
values shall be greater than or equal to the higher of:
    (1) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TP22OC13.028
    

and, x is the sample mean; n is the number of samples; and 
xi is the i\th\ sample; Or,

[[Page 62484]]

    (2) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TP22OC13.029


and x is the sample mean; s is the sample standard deviation; n is the 
number of samples; and t0.95 is the t statistic for a 95% 
one-tailed confidence interval with n-1 degrees of freedom (from 
Appendix A to subpart B of this part); and,
    (B) Any represented value of energy efficiency or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be less than or equal to the lower of:
    (1) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TP22OC13.030
    

and, x is the sample mean; n is the number of samples; and 
xi is the ith sample; or,
    (2) The lower 95 percent confidence limit (LCL) of the true mean 
divided by 0.95, where:
[GRAPHIC] [TIFF OMITTED] TP22OC13.031


and x is the sample mean; s is the sample standard deviation; n is the 
number of samples; and t0.95 is the t statistic for a 95% 
one-tailed confidence interval with n-1 degrees of freedom (from 
Appendix A to subpart B of this part).
    (2) Alternative efficiency determination methods. In lieu of 
testing, a represented value of efficiency or consumption for a basic 
model of commercial water heating equipment must be determined through 
the application of an AEDM pursuant to the requirements of Sec.  429.70 
and the provisions of this section, where:
    (i) Any represented value of energy consumption or other measure of 
energy use of a basic model for which consumers would favor lower 
values shall be greater than or equal to the output of the AEDM and 
less than or equal to the Federal standard for that basic model; and
    (ii) Any represented value of energy efficiency or other measure of 
energy consumption of a basic model for which consumers would favor 
higher values shall be less than or equal to the output of the AEDM and 
greater than or equal to the Federal standard for that basic model.
* * * * *
0
6. Section 429.70 is amended by revising paragraphs (a) and (c) to read 
as follows:


Sec.  429.70  Alternative methods for determining energy efficiency and 
energy use.

    (a) General applicability of an AEDM. A manufacturer of covered 
products or covered equipment explicitly authorized to use an AEDM in 
Sec. Sec.  429.14 through 429.54 of this subpart may not distribute any 
basic model of such equipment in commerce unless the manufacturer has 
determined the energy efficiency of the basic model, either from 
testing the basic model in conjunction with DOE's certification 
sampling plans and statistics or from applying an alternative method 
for determining energy efficiency or energy use (AEDM) of the basic 
model, in accordance with the requirements of this section. In 
instances where a manufacturer has tested a basic model to validate the 
alternative method the manufacturer may not knowingly use an AEDM to 
overrate the efficiency (or underrate the consumption) of a basic 
model.
* * * * *
    (c) Alternative efficiency determination method (AEDM) for 
Commercial HVAC, WH, and Refrigeration Equipment--(1) Criteria an AEDM 
must satisfy. A manufacturer may not apply an AEDM to a basic model to 
determine its efficiency pursuant to this section unless:
    (i) The AEDM is derived from a mathematical model that estimates 
the energy efficiency or energy consumption characteristics of the 
basic model as measured by the applicable DOE test procedure;
    (ii) The AEDM is based on engineering or statistical analysis, 
computer simulation or modeling, or other analytic evaluation of 
performance data; and
    (iii) The manufacturer has validated the AEDM, in accordance with 
paragraph (c)(2) of this section.
    (2) Validation of an AEDM. Before using an AEDM, the manufacturer 
must validate the AEDM's accuracy and reliability as follows:
    (i) For each identified validation class specified in paragraph 
(c)(2)(iv) of this section to which the particular AEDM applies, the 
minimum number of basic models must be tested as specified in paragraph 
(c)(2)(iv) of this section. Using the AEDM, calculate the energy use or 
efficiency for each of the selected basic models. Test a single unit of 
each selected basic model in accordance with paragraph (c)(2)(iii) of 
this section. Compare the results from the single unit test and the 
AEDM energy use or efficiency output according to paragraph (c)(2)(ii) 
of this section.
    (ii) Individual model tolerances. (A) For those covered products 
with an energy-efficiency metric, the predicted efficiency for each 
model calculated by applying the AEDM may not be more than five percent 
greater than the efficiency determined from the corresponding test of 
the model.
    (B) For those covered products with an energy-consumption metric, 
the predicted energy consumption for each model, calculated by applying 
the AEDM, may not be more than five percent less than the energy 
consumption determined from the corresponding test of the model.
    (iii) Additional test unit requirements. (A) Each AEDM must be 
supported by test data obtained from physical tests of current models; 
and
    (B) Test results used to validate the AEDM must meet or exceed 
current, applicable Federal standards as specified in part 431 of this 
chapter; and
    (C) Each test must have been performed in accordance with the DOE 
test procedure specified in parts 430 or 431 of this chapter or test 
procedure waiver for which compliance is required at the time the basic 
model is distributed in commerce.
    (iv) Validation classes. (A) Commercial HVAC validation classes:

------------------------------------------------------------------------
                                     Minimum number of distinct models
         Validation class               that must be tested per AEDM
------------------------------------------------------------------------
Air-Cooled, Split and Packaged     2 Basic Models.
 Air Conditioners (ACs) and Heat
 Pumps (HPs) less than 65,000 Btu/
 h Cooling Capacity (3-Phase).
Air-Cooled, Split and Packaged     2 Basic Models.
 ACs and HPs greater than or
 equal to 65,000 Btu/h Cooling
 Capacity and Less than 760,000
 Btu/h Cooling Capacity.
Water-Cooled, Split and Packaged   2 Basic Models.
 ACs and HPs, All Cooling
 Capacities.
Evaporatively-Cooled, Split and    2 Basic Models.
 Packaged ACs and HPs, All
 Capacities.

[[Page 62485]]

 
Water-Source HPs, All Capacities.  2 Basic Models.
Single Package Vertical ACs and    2 Basic Models.
 HPs.
Packaged Terminal ACs and HPs....  2 Basic Models.
Air-Cooled, Variable Refrigerant   2 Basic Models.
 Flow ACs and HPs.
Water-Cooled, Variable             2 Basic Models.
 Refrigerant Flow ACs and HPs.
Computer Room Air Conditioners,    2 Basic Models.
 Air Cooled.
Computer Room Air Conditioners,    2 Basic Models.
 Water-Cooled.
------------------------------------------------------------------------

    (B) Commercial water heater validation classes:

------------------------------------------------------------------------
                                     Minimum number of distinct models
         Validation class                   that must be tested
------------------------------------------------------------------------
Gas-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Less than
 10 Gallons.
Gas-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Greater
 than or Equal to 10 Gallons.
Oil-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Less than
 10 Gallons.
Oil-fired Water Heaters and Hot    2 Basic Models.
 Water Supply Boilers Greater
 than or Equal to 10 Gallons.
Electric Water Heaters...........  2 Basic Models.
Heat Pump Water Heaters..........  2 Basic Models.
Unfired Hot Water Storage Tanks..  2 Basic Models.
------------------------------------------------------------------------

    (C) Commercial packaged boilers validation classes:

------------------------------------------------------------------------
                                     Minimum number of distinct models
         Validation class                   that must be tested
------------------------------------------------------------------------
Gas-fired, Hot Water Only          2 Basic Models.
 Commercial Packaged Boilers.
Gas-fired, Steam Only Commercial   2 Basic Models.
 Packaged Boilers.
Gas-fired Hot Water/Steam          2 Basic Models.
 Commercial Packaged Boilers.
Oil-fired, Hot Water Only          2 Basic Models.
 Commercial Packaged Boilers.
Oil-fired, Steam Only Commercial   2 Basic Models.
 Packaged Boilers.
Oil-fired Hot Water/Steam          2 Basic Models.
 Commercial Packaged Boilers.
------------------------------------------------------------------------

    (D) Commercial furnace validation classes:

------------------------------------------------------------------------
                                     Minimum number of distinct models
         Validation class                   that must be tested
------------------------------------------------------------------------
Gas-fired Furnaces...............  2 Basic Models.
Oil-fired Furnaces...............  2 Basic Models.
------------------------------------------------------------------------

    (E) Commercial refrigeration equipment validation classes:

------------------------------------------------------------------------
                                     Minimum number of distinct models
       Validation class \1\                 that must be tested
------------------------------------------------------------------------
Self-Contained Open Refrigerators  2 Basic Models.
Self-Contained Open Freezers.....  2 Basic Models.
Remote Condensing Open             2 Basic Models.
 Refrigerators.
Remote Condensing Open Freezers..  2 Basic Models.
Self-Contained Closed              2 Basic Models.
 Refrigerators.
Self-Contained Closed Freezers...  2 Basic Models.
Remote Condensing Closed           2 Basic Models.
 Refrigerators.
Remote Condensing Closed Freezers  2 Basic Models.
------------------------------------------------------------------------
\1\ The minimum number of tests indicated above must be comprised of a
  transparent model, a solid model, a vertical model, a semi-vertical
  model, a horizontal model, and a service-over-the counter model, as
  applicable based on the equipment offering. However, manufacturers do
  not need to include all types of these models if it will increase the
  minimum number of tests that need to be conducted.


[[Page 62486]]

    (4) AEDM records retention requirements. (i) If a manufacturer has 
used an AEDM to determine representative values pursuant to this 
section, the manufacturer must have available upon request for 
inspection by the Department records showing:
    (A) The AEDM, including the mathematical model, the engineering or 
statistical analysis, and/or computer simulation or modeling that is 
the basis of the AEDM;
    (B) Product information, complete test data, AEDM calculations, and 
the statistical comparisons from the units tested that were used to 
validate the AEDM pursuant to paragraph (c)(2) of this section; and
    (C) Product information and AEDM calculations for each basic model 
to which the AEDM has been applied.
    (5) Additional AEDM requirements. (i) If requested by the 
Department and at DOE's discretion, the manufacturer must perform at 
least one of the following:
    (A) Conduct simulations before representatives of the Department to 
predict the performance of particular basic models of the product to 
which the AEDM was applied;
    (B) Provide analyses of previous simulations conducted by the 
manufacturer; or
    (C) Conduct certification testing of basic models selected by the 
Department.
    (6) AEDM verification testing. DOE may use the test data for a 
given individual model generated pursuant to Sec.  429.104 to verify 
the certified rating determined by an AEDM as long as the following 
process is followed:
    (i) Selection of units. DOE will obtain units for test from retail, 
where available. If units cannot be obtained from retail, DOE will 
request that a unit be provided by the manufacturer;
    (ii) Lab requirements. DOE will conduct testing at an independent, 
third-party testing facility of its choosing. In cases where no third-
party laboratory is capable of testing the equipment, it may be tested 
at a manufacturer's facility upon DOE's request.
    (iii) Manufacturer participation: Testing will be performed without 
DOE or manufacturer representatives on-site, unless:
    (A) The model is specifically required to be started only by a 
factory-trained installer per the installation manual instructions, in 
which case DOE and the manufacturer representative will only be on-site 
for the test set-up; or
    (B) The manufacturer has elected, as part of their certification of 
that model, to witness testing. A manufacturer may elect to have a DOE 
representative and a manufacturer's representative on-site for the 
initial verification test for up to 10 percent of the manufacturer's 
certified basic models rated with an AEDM. The 10 percent requirement 
applies to all of the basic models certified by a given manufacturer no 
matter how many AEDMs a manufacturer has used to develop its ratings. 
Manufacturers who elect to select 10 percent of their basic models must 
include this information as part of their certification prior to the 
unit being selected for verification testing.; or
    (C) The model is a variable refrigerant flow system, in which case 
DOE and the manufacturer representative will only be on-site for the 
test set-up.
    (iv) Testing. All verification testing will be conducted in 
accordance with the applicable DOE test procedure, as well as each of 
the following to the extent that they apply:
    (A) Any active test procedure waivers that have been granted for 
the basic model;
    (B) Any test procedure guidance that has been issued by DOE;
    (C) The installation and operations manual that is shipped with the 
unit;
    (D) Any additional information that was provided by the 
manufacturer in the pdf at the time of certification; and
    (E) If during test set-up or testing, the lab indicates to DOE that 
it needs additional information regarding a given basic model in order 
to test in accordance with the applicable DOE test procedure, DOE may 
organize a meeting between DOE, the manufacturer and the lab to provide 
such information. At no time during the process may the lab communicate 
directly with the manufacturer without DOE present.
    (v) Failure to meet certified rating. If a model tests worse than 
its certified rating by an amount exceeding the tolerance prescribed in 
paragraph (c)(4)(iii)(F) of this section, DOE will notify the 
manufacturer. Within the timeframe allotted by DOE, the manufacturer 
may then:
    (A) Present all claims regarding testing validity; and
    (B) If the manufacturer was not on site for the initial test, may 
request a retest of the previously tested unit with manufacturer and 
DOE representatives on-site. DOE will not retest a different unit of 
the same basic model unless DOE and the manufacturer determine it is 
necessary based on the test results, claims presented, and DOE 
regulations.
    (vi) Tolerances. (A) For consumption metrics, the result from a DOE 
verification test must be less than or equal to the certified rating x 
(1 + the applicable tolerance).
    (B) For efficiency metrics, the result from a DOE verification test 
must be greater than or equal to the certified rating x (1--the 
applicable tolerance).

------------------------------------------------------------------------
                                                            Applicable
             Equipment                     Metric            tolerance
------------------------------------------------------------------------
Commercial Packaged Boilers.......  Combustion                 5% (0.05)
                                     Efficiency.
                                    Thermal Efficiency..       5% (0.05)
Commercial Water Heaters or Hot     Thermal Efficiency..       5% (0.05)
 Water Supply Boilers.
                                    Standby Loss........       10% (0.1)
Unfired Storage Tanks.............  R-Value.............       10% (0.1)
Air-Cooled, Split and Packaged ACs  Seasonal Energy-           5% (0.05)
 and HPs less than 65,000 Btu/h      Efficiency Ratio.         5% (0.05)
 Cooling Capacity (3-Phase).        Heating Season             10% (0.1)
                                     Performance Factor.
                                    Energy Efficiency
                                     Ratio.
Air-Cooled, Split and Packaged ACs  Energy Efficiency          5% (0.05)
 and HPs greater than or equal to    Ratio.                    5% (0.05)
 65,000 Btu/h Cooling Capacity and  Coefficient of             10% (0.1)
 Less than 760,000 Btu/h Cooling     Performance.
 Capacity.                          Integrated Energy
                                     Efficiency Ratio.
Water-Cooled, Split and Packaged    Energy Efficiency          5% (0.05)
 ACs and HPs, All Cooling            Ratio.
 Capacities.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Evaporatively-Cooled, Split and     Energy Efficiency          5% (0.05)
 Packaged ACs and HPs, All           Ratio.
 Capacities.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Water-Source HPs, All Capacities..  Energy Efficiency          5% (0.05)
                                     Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.

[[Page 62487]]

 
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Single Package Vertical ACs and     Energy Efficiency          5% (0.05)
 HPs.                                Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.
Packaged Terminal ACs and HPs.....  Energy Efficiency          5% (0.05)
                                     Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.
Variable Refrigerant Flow ACs and   Energy Efficiency          5% (0.05)
 HPs.                                Ratio.
                                    Coefficient of             5% (0.05)
                                     Performance.
                                    Integrated Energy          10% (0.1)
                                     Efficiency Ratio.
Computer Room Air Conditioners....  Sensible Coefficient       5% (0.05)
                                     of Performance.
Commercial Warm-Air Furnaces......  Thermal Efficiency..       5% (0.05)
Commercial Refrigeration Equipment  Daily Energy               5% (0.05)
                                     Consumption.
------------------------------------------------------------------------

    (vii) Invalid rating. If, following discussions with the 
manufacturer and a retest where applicable, DOE determines that the 
testing was conducted appropriately in accordance with the DOE test 
procedure, the rating for the model will be considered invalid. The 
manufacturer must elect, within 15 days, one of the following to be 
completed in a time frame specified by DOE, which is never to exceed 
180 days:
    (A) Re-rate and re-certify the model based on DOE's test data 
alone; or
    (B) Discontinue the model through the certification process; or
    (C) Conduct additional testing and re-rate and re-certify the basic 
model based on all test data collected, including DOE's test data.
    (viii) AEDM use. (A) If DOE has determined that a manufacturer made 
invalid ratings on two or more models rated using the same AEDM within 
a 24 month period, the manufacturer must take the action listed in the 
table corresponding to the number of invalid certified ratings. The 
twenty-four month period begins with a DOE determination that a rating 
is invalid through the process outlined above. Additional invalid 
ratings apply for the purposes of determining the appropriate 
consequences if the subsequent determination(s) is based on selection 
of a unit for testing within the twenty-four month period (i.e., 
subsequent determinations need not be made within 24 months).

------------------------------------------------------------------------
  Number of invalid certified ratings
    from the same AEDM \2\ within a       Required manufacturer actions
        rolling 24 month period
------------------------------------------------------------------------
2.....................................  Submit different test data and
                                         reports from testing to
                                         validate that AEDM within the
                                         validation classes to which it
                                         is applied.\1\ Adjust the
                                         rating as appropriate.
4.....................................  Conduct double the minimum
                                         number of validation tests for
                                         the validation classes to which
                                         the AEDM is applied. Note, the
                                         tests required under subsection
                                         (c)(5)(H)(1) must be different
                                         tests on different models than
                                         the original tests required
                                         under subsection (c)(2).
6.....................................  Conduct the minimum number of
                                         validation tests for the
                                         validation classes to which the
                                         AEDM is applied; And
                                        Conduct addition testing, which
                                         is equal to \1/2\ the minimum
                                         number of validation tests for
                                         the validation classes to which
                                         the AEDM is applied, at either
                                         the manufacturer's facility or
                                         a third-party test facility, at
                                         the manufacturer's discretion.
                                        Note, the tests required under
                                         subsection (c)(5)(H)(1) must be
                                         different tests on different
                                         models than the original tests
                                         required under subsection
                                         (c)(2).
>=8...................................  Manufacturer has lost privilege
                                         to use AEDM. All ratings for
                                         models within the validation
                                         classes to which the AEDM
                                         applied should be rated via
                                         testing. Distribution cannot
                                         continue until certification(s)
                                         are corrected to reflect actual
                                         test data.
------------------------------------------------------------------------
\1\ A manufacturer may discuss with DOE's Office of Enforcement whether
  existing test data on different basic models within the validation
  classes to which that specific AEDM was applied may be used to meet
  this requirement.
\2\ Where the same AEDM means a computer simulation or mathematical
  model that is identified by the manufacturer at the time of
  certification as having been used to rate a model or group of models.

    (B) If, as a result of eight or more invalid ratings, a 
manufacturer has lost the privilege of using an AEDM for rating, the 
manufacturer may regain the ability to use an AEDM by:
    (1) Investigating and identifying cause(s) for failures;
    (2) Taking corrective action to address cause(s);
    (3) Performing six new tests per validation class, a minimum of two 
of which must be performed by an independent, third party laboratory to 
validate the AEDM;
    (4) Obtaining DOE authorization to resume use of the AEDM.
* * * * *

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

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

    Authority: 42 U.S.C. 6291-6317.
0
8. Section 431.62 is amended by revising the definition of ``basic 
model'' to read as follows:


Sec.  431.62  Definitions concerning commercial refrigerators, freezers 
and refrigerator-freezers.

* * * * *
    Basic model means all commercial refrigeration equipment 
manufactured by one manufacturer within a single equipment class, 
having the same primary energy source, and that have essentially 
identical electrical, physical, and functional characteristics that 
affect energy consumption.
* * * * *
0
9. Section 431.72 is amended by revising the definition of ``basic 
model'' to read as follows:

[[Page 62488]]

Sec.  431.72  Definitions concerning commercial warm air furnaces.

* * * * *
    Basic model means all commercial warm air furnaces manufactured by 
one manufacturer within a single equipment class, that have the same 
nominal input rating and the same primary energy source (e.g. gas or 
oil) and that do not have any differing physical or functional 
characteristics that affect energy efficiency.
* * * * *
0
10. Section 431.82 is amended by revising the definition of ``basic 
model'' to read as follows:


Sec.  431.82  Definitions concerning commercial packaged boilers.

* * * * *
    Basic model means all commercial packaged boilers manufactured by 
one manufacturer within a single equipment class having the same 
primary energy source (e.g., gas or oil) and that have essentially 
identical electrical, physical and functional characteristics that 
affect energy efficiency.
* * * * *
0
11. Section 431.92 is amended by revising the definition of ``basic 
model'' to read as follows:


Sec.  431.92  Definitions concerning commercial air conditioners and 
heat pumps.

* * * * *
    Basic model includes:
    (1) Packaged terminal air conditioner (PTAC) or packaged terminal 
heat pump (PTHP) means all units manufactured by one manufacturer 
within a single equipment class, having the same primary energy source 
(e.g., electric or gas), and which have the same or comparable 
compressors, same or comparable heat exchangers, and same or comparable 
air moving systems that have a cooling capacity within 300 Btu/h of one 
another.
    (2) Small, large, and very large air-cooled or water-cooled 
commercial package air conditioning and heating equipment means all 
units manufactured by one manufacturer within a single equipment class, 
having the same or comparably performing compressor(s), heat 
exchangers, and air moving system(s) that have a common ``nominal'' 
cooling capacity.
    (3) Single package vertical units means all units manufactured by 
one manufacturer within a single equipment class, having the same 
primary energy source (e.g., electric or gas), and which have the same 
or comparably performing compressor(s), heat exchangers, and air moving 
system(s) that have a rated cooling capacity within 1500 Btu/h of one 
another.
    (4) Computer room air conditioners means all units manufactured by 
one manufacturer within a single equipment class, having the same 
primary energy source (e.g., electric or gas), and which have the same 
or comparably performing compressor(s), heat exchangers, and air moving 
system(s) that have a common ``nominal'' cooling capacity.
    (5) Variable refrigerant flow systems means all units manufactured 
by one manufacturer within a single equipment class, having the same 
primary energy source (e.g., electric or gas), and which have the same 
or comparably performing compressor(s) that have a common ``nominal'' 
cooling capacity and the same heat rejection medium (e.g., air or 
water) (includes VRF water source heat pumps).
    (6) Small, large, and very large water source heat pump means all 
units manufactured by one manufacturer within a single equipment class, 
having the same primary energy source (e.g., electric or gas), and 
which have the same or comparable compressors, same or comparable heat 
exchangers, and same or comparable ``nominal'' capacity.
* * * * *
0
12. Section 431.102 is amended by revising the definition of ``basic 
model'' to read as follows:


Sec.  431.102  Definitions concerning commercial water heaters, hot 
water supply boilers, and unfired hot water storage tanks.

* * * * *
    Basic model means all water heaters, hot water supply boilers, or 
unfired hot water storage tanks manufactured by one manufacturer within 
a single equipment class, having the same primary energy source (e.g., 
gas or oil) and that have essentially identical electrical, physical 
and functional characteristics that affect energy efficiency.
* * * * *
[FR Doc. 2013-24351 Filed 10-21-13; 8:45 am]
BILLING CODE 6450-01-P