CCLME.ORG - 10 CFR PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
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(b) The denial of a petition will be reconsidered only where it is alleged and demonstrated that the denial was based on error in law or fact and that evidence of the error is found in the record of the proceedings.

(c) If the Secretary fails to take action on the request for reconsideration within 30 days, the request is deemed denied, and the petitioner may seek such judicial review as may be appropriate and available.

(d) A petitioner has not exhausted other administrative remedies until a request for reconsideration has been filed and acted upon or deemed denied.

§ 430.49 Finality of decision.
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(a) A decision to prescribe a rule that a State energy conservation standard, water conservation standard (in the case of faucets, showerheads, water closets, and urinals) or other requirement not be preempted is final on the date the rule is issued, i.e., signed by the Secretary. A decision to prescribe such a rule has no effect on other regulations of a covered product of any other State.

(b) A decision to prescribe a rule withdrawing a rule exempting a State standard or other requirement is final on the date the rule is issued, i.e., signed by the Secretary. A decision to deny such a petition is final on the day a denial of a request for reconsideration is issued, i.e., signed by the Secretary.

[54 FR 6078, Feb. 7, 1989, as amended at 63 FR 13319, Mar. 18, 1998]

Subpart E—Small Business Exemptions
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Source: 54 FR 6080, Feb. 7, 1989, unless otherwise noted.

§ 430.50 Purpose and scope.
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(a) This subpart establishes procedures for the submission and disposition of applications filed by manufacturers of covered consumer products with annual gross revenues that do not exceed $8 million to exempt them temporarily from all or part of energy conservation standards or water conservation standards (in the case of faucets, showerheads, water closets, and urinals) established by this part.

(b) The purpose of this subpart is to provide content and format requirements for manufacturers of covered consumer products with low annual gross revenues who desire to apply for temporary exemptions from applicable energy conservation standards or water conservation standards (in the case of faucets, showerheads, water closets, and urinals) .

[54 FR 6080, Feb. 7, 1989, as amended at 63 FR 13319, Mar. 18, 1998]

§ 430.51 Eligibility.
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Any manufacturer of a covered product with annual gross revenues that do not exceed $8,000,000 from all its operations (including the manufacture and sale of covered products) for the 12-month period preceding the date of application may apply for an exemption. In determining the annual gross revenues of any manufacturer under this subpart, the annual gross revenue of any other person who controls, is controlled, by, or is under common control with, such manufacturer shall be taken into account.

§ 430.52 Requirements for applications.
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(a) Each application filed under this subpart shall be submitted in triplicate to: U.S. Department of Energy, Small Business Exemptions, Appliance Efficiency Standards, Assistant Secretary for Conservation and Renewable Energy, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.

(b) An application shall be in writing and shall include the following:

(1) Name and mailing address of applicant;

(2) Whether the applicant controls, is controlled by, or is under common control with another manufacturer, and if so, the nature of that control relationship;

(3) The text or substance of the standard or portion thereof for which the exemption is sought and the length of time desired for the exemption;

(4) Information showing the annual gross revenue of the applicant for the preceding 12-month period from all of its operations (including the manufacture and sale of covered products):

(5) Information to show that failure to grant an exemption is likely to result in a lessening of competition;

(6) Such other information, if any, believed to be pertinent by the petitioner; and

(7) Such other information as the Secretary may require.

§ 430.53 Processing of applications.
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(a) The applicant shall serve a copy of the application, all supporting documents and all subsequent submissions, or a copy from which confidential information has been deleted pursuant to 10 CFR 1004.11, to the Secretary, which may be made available for public review.

(b) Within fifteen (15) days of the receipt of an application, the Secretary will either accept it for filing or reject it, and the applicant will be so notified in writing. Only such applications which conform to the requirements of this subpart and which contain sufficient information for the purposes of a substantive decision will be accepted for filing. Applications which do not so conform will be rejected and an explanation provided to the applicant in writing.

(c) For the purpose of this subpart, an application is deemed to be filed on the date it is accepted for filing.

(d) Promptly after receipt of an application and its acceptance for filing, notice of such application shall be published in the Federal Register. The notice shall set forth the availability for public review of data and information available, and shall solicit comments, data and information with respect to the determination on the application. Except as may otherwise be specified, the period for public comment shall be 60 days after the notice appears in the Federal Register.

(e) The Secretary on his own initiative may convene a hearing if, in his discretion, he considers such hearing will advance his evaluation of the application.

§ 430.54 Referral to the Attorney General.
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Notice of the application for exemption under this subpart shall be transmitted to the Attorney General by the Secretary and shall contain (a) a statement of the facts and of the reasons for the exemption, and (b) copies of all documents submitted.

§ 430.55 Evaluation of application.
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The Secretary shall grant an application for exemption submitted under this subpart if the Secretary finds, after obtaining the written views of the Attorney General, that a failure to allow an exemption would likely result in a lessening of competition.

§ 430.56 Decision and order.
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(a) Upon consideration of the application and other relevant information received or obtained, the Secretary shall issue an order granting or denying the application.

(b) The order shall include a written statement setting forth the relevant facts and the legal basis of the order.

(c) The Secretary shall serve a copy of the order upon the applicant and upon any other person readily identifiable by the Secretary as one who is interested in or aggrieved by such order. The Secretary also shall publish in the Federal Register a notice of the grant or denial of the order and the reason therefor.

§ 430.57 Duration of temporary exemption.
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A temporary exemption terminates according to its terms but not later than twenty-four months after the affective date of the rule for which the exemption is allowed.

Subpart F—Certification and Enforcement
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Source: 54 FR 6081, Feb. 7, 1989, unless otherwise noted.

§ 430.60 Purpose and scope.
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This subpart sets forth the procedures to be followed for certification and enforcement testing to determine whether a basic model of a covered product complies with the applicable energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals) set forth in subpart C of this part. Energy conservation standards and water conservation standards (in the case of faucets, showerheads, water closets, and urinals) include minimum levels of efficiency and maximum levels of consumption (also referred to as performance standards), and prescriptive energy design requirements (also referred to as design standards).

[63 FR 13319, Mar. 18, 1998]

§ 430.61 Prohibited acts.
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(a) Each of the following is a prohibited act pursuant to section 332 of the Act:

(1) Failure to permit access to, or copying of records required to be supplied under the Act and this rule or failure to make reports or provide other information required to be supplied under this Act and this rule;

(2) Failure of a manufacturer to supply at his expense a reasonable number of covered products to a test laboratory designated by the Secretary;

(3) Failure of a manufacturer to permit a representative designated by the Secretary to observe any testing required by the Act and this rule and inspect the results of such testing; and

(4) Distribution in commerce by a manufacturer or private labeler of any new covered product which is not in compliance with an applicable energy efficiency standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals) prescribed under the Act and this rule.

(b) In accordance with section 333 of the Act, any person who knowingly violates any provision of paragraph (a) of this section may be subject to assessment of a civil penalty of no more than $110 for each violation. Each violation of paragraph (a) of this section shall constitute a separate violation with respect to each covered product, and each day of noncompliance with paragraphs (a) (1) through (3) of this section shall constitute a separate violation.

[54 FR 6081, Feb. 7, 1989, as amended at 62 FR 46183, Sept. 2, 1997; 63 FR 13319, Mar. 18, 1998]

§ 430.62 Submission of data.
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(a) Certification. (1) Except as provided in paragraph (a)(2) of this section, each manufacturer or private labeler before distributing in commerce any basic model of a covered product subject to the applicable energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals) set forth in subpart C of this part shall certify by means of a compliance statement and a certification report that each basic model(s) meets the applicable energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals) as prescribed in section 325 of the Act. The compliance statement, signed by the company official submitting the statement, and the certification report(s) shall be sent by certified mail to: Department of Energy, Office of Energy Efficiency and Renewable Energy, Office of Codes and Standards, Forrestal Building, 1000 Independence Avenue, SW, Washington, DC 20585–0121.

(2) Each manufacturer or private labeler of a basic model of a covered clothes washer, clothes dryer, dishwasher, faucet, showerhead, water closet, or urinal shall file a compliance statement and a certification report to DOE before [date 1 year after publication of the Final Rule].

(3) The compliance statement shall include all information specified in the format set forth in appendix A of this subpart and shall certify that:

(i) The basic model(s) complies with the applicable energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals);

(ii) All required testing has been conducted in conformance with the applicable test requirements prescribed in subpart B of this part;

(iii) All information reported in the certification report(s) is true, accurate, and complete; and

(iv) The manufacturer or private labeler is aware of the penalties associated with violations of the Act, the regulations thereunder, and 18 U.S.C. 1001 which prohibits knowingly making false statements to the Federal Government.

(4) A certification report for all basic models of a covered product (a suggested format is set forth in appendix A of this subpart) shall be submitted to DOE. The certification report shall include for each basic model the product type, product class (as denoted in §430.32), manufacturer's name, private labeler's name(s) (if applicable), the manufacturer's model number(s), and for:

(i) Central air conditioners, the seasonal energy efficiency ratio.

(ii) Central air conditioning heat pumps, the seasonal energy efficiency ratio and heating seasonal performance factor.

(iii) Clothes washers, the energy factor in ft 3 /kWh/cycle and capacity in ft 3 .

(iv) Clothes dryers, the energy factor in lbs/kWh, capacity in ft 3 , and voltage.

(v) Direct heating equipment, the annual fuel utilization efficiency in percent and capacity in Btu/hour.

(vi) Dishwashers, the energy factor expressed in cycles per kilowatt-hour.

(vii) Faucets, the maximum water use in gpm (L/min) or gal/cycle (L/cycle) for each faucet; or the maximum water use in gpm (L/min) or gal/cycle (L/cycle) for each flow control mechanism, with a listing of accompanied faucets by manufacturer's model numbers.

(viii) Furnaces, the annual fuel utilization efficiency in percent.

(ix) General service fluorescent lamps, the testing laboratory's National Voluntary Laboratory Accreditation Program (NVLAP) identification number or other NVLAP-approved accreditation identification, production date codes (and accompanying decoding scheme), the 12-month average lamp efficacy in lumens per watt, lamp wattage, and the 12-month average Color Rendering Index.

(x) Incandescent reflector lamps, the laboratory's National Voluntary Accreditation Program (NVLAP) identification number or other NVLAP-approved accreditation identification, production date codes (and accompanying decoding scheme), the 12-month average lamp efficacy in lumens per watt, and lamp wattage.

(xi) Pool heaters, the thermal efficiency in percent.

(xii) Refrigerators, refrigerator-freezers, and freezers, the annual energy use in kWh/yr and total adjusted volume in ft 3 .

(xiii) Room air conditioners, the energy efficiency ratio and capacity in Btu/hour.

(xiv) Showerheads, the maximum water use in gpm (L/min) with a listing of accompanied showerheads by manufacturer's model numbers.

(xv) Urinals, the maximum water use in gpf (Lpf).

(xvi) Water closets, the maximum water use in gpf (Lpf).

(xvii) Water heaters, the energy factor and rated storage volume in gallons.

(5) Copies of reports to the Federal Trade Commission which include the information specified in paragraph (a)(4) could serve in lieu of the certification report.

(b) Model Modifications. (1) Any change to a basic model which affects energy consumption or water consumption (in the case of faucets, showerheads, water closets, and urinals) constitutes the addition of a new basic model. If such change reduces consumption, the new model shall be considered in compliance with the standard without any additional testing. If, however, such change increases consumption while still meeting the standard, all information required by paragraph (a)(4) of this section for the new basic model must be submitted, by certified mail, to: Department of Energy, Office of Energy Efficiency and Renewable Energy, Office of Codes and Standards, Forrestal Building, 1000 Independence Avenue, SW, Washington, DC 20585–0121.

(2) Prior to or concurrent with the distribution of a new model of general service fluorescent lamp or incandescent reflector lamp, each manufacturer and private labeler shall submit a statement signed by a company official stating how the manufacturer or private labeler determined that the lamp meets or exceeds the energy conservation standards, including a description of any testing or analysis the manufacturer or private labeler performed. This statement shall also list the model number or descriptor, lamp wattage and date of commencement of manufacture. Manufacturers and private labelers of general service fluorescent lamps and incandescent reflector lamps shall submit the certification report required by paragraph (a)(4) of this section within one year after the date manufacture of that new model commences.

(c) Discontinued model. When production of a basic model has ceased and it is no longer being distributed, this shall be reported, by certified mail, to: Department of Energy, Office of Energy Efficiency and Renewable Energy, Office of Codes and Standards, Forrestal Building, 1000 Independence Avenue, SW, Washington, DC 20585–0121. For each basic model, the report shall include: product type, product class, the manufacturer's name, the private labeler name(s), if applicable, and the manufacturer's model number. If the reporting of discontinued models coincides with the submittal of a certification report, such information can be included in the certification report.

(d) Maintenance of records. The manufacturer or private labeler of any covered product subject to any of the energy performance standards, water performance standards (in the case of faucets, showerheads, water closets, and urinals), or procedures prescribed in this part shall establish, maintain, and retain the records of the underlying test data for all certification testing. Such records shall be organized and indexed in a fashion which makes them readily accessible for review by DOE upon request. The records shall include the supporting test data associated with tests performed on any test units to satisfy the requirements of this subpart. The records shall be retained by the manufacturer (private labeler) for a period of two years from the date that production of the applicable model has ceased.

(e) Third party representation. A manufacturer or private labeler may elect to use a third party to submit the certification report to DOE (for example a trade association or other authorized representative). Such certification reports shall include all the information specified in paragraph (a)(4) of this section. Third parties submitting certification reports shall include the names of the manufacturers or private labelers who authorized the submittal of the certification reports to DOE on their behalf. The third party representative also may submit discontinued model information on behalf of an authorizing manufacturer.

[63 FR 13319, Mar. 18, 1998, as amended at 68 FR 51903, Aug. 29, 2003]

§ 430.63 Sampling.
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(a) For purposes of a certification of compliance, the determination that a basic model complies with the applicable energy performance standard or water performance standard (in the case of faucets, showerheads, water closets, and urinals) shall be based upon the sampling procedures set forth in §430.24 of this part. For purposes of a certification of compliance, the determination that a basic model complies with the applicable design standard shall be based upon the incorporation of specific design requirements for clothes dryers, dishwashers, clothes washers and kitchen ranges and ovens specified in section 325 of the Act.

(b) A basic model which meets the following requirements may qualify as an “other than tested model” for purposes of the certification testing and sampling requirements:

(1) Central air conditioners: The condenser-evaporator coil combinations manufactured by the condensing unit manufacturer other than the combination likely to have the largest volume of retail sales or the condenser-coil combinations manufactured in part by a component manufacturer using the same condensing unit.

(2) For purposes of certification of “other than tested models,” as defined in paragraph (b)(1) of this section, a manufacturer may certify the basic model on the basis of computer simulation or engineering analysis as set forth in §430.23(m) of this part.

[54 FR 6081, Feb. 7, 1989, as amended at 63 FR 13321, Mar. 18, 1998]

§ 430.64 Imported products.
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(a) Pursuant to section 331 of the Act, any person importing any covered product into the United States shall comply with the provisions of the Act and of this part, and is subject to the remedies of this part.

(b) Any covered product offered for importation in violation of the Act and of this part shall be refused admission into the customs territory of the United States under rules issued by the Secretary of the Treasury, except that the Secretary of the Treasury may, by such rules, authorize the importation of such covered product upon such terms and conditions (including the furnishing of a bond) as may appear to the Secretary of Treasury appropriate to ensure that such covered product will not violate the Act and this part, or will be exported or abandoned to the United States.

§ 430.65 Exported products.
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Pursuant to section 330 of the Act, this part shall not apply to any covered product if (a) such covered product is manufactured, sold, or held for sale for export from the United States (or such product was imported for export), unless such product is, in fact, distributed in commerce for use in the United States, and (b) such covered product, when distributed in commerce, or any container in which it is enclosed when so distributed, bears a stamp or label stating that such covered product is intended for export.

§ 430.70 Enforcement.
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(a) Performance standard—(1) Test notice. Upon receiving information in writing concerning the energy performance or water performance (in the case of faucets, showerheads, water closets, and urinals) of a particular covered product of a particular manufacturer or private labeler which indicates that the covered product may not be in compliance with the applicable energy performance standard or water performance standard (in the case of faucets, showerheads, water closets, and urinals), the Secretary may conduct testing of that covered product under this subpart by means of a test notice addressed to the manufacturer in accordance with the following requirements:

(i) Such a procedure will only be followed after the Secretary or his designated representative has examined the underlying test data provided by the manufacturer and after the manufacturer has been offered the opportunity to meet with DOE to verify compliance with the applicable performance standard. A representative designated by the Secretary shall be permitted to observe any reverification procedures by this subpart, and to inspect the results of such reverification.

(ii) The test notice will be signed by the Secretary or his designee. The test notice will be mailed or delivered by DOE to the plant manager or other responsible official, as designated by the manufacturer.

(iii) The test notice will specify the model or basic model to be selected for testing, the method of selecting the test sample, the time at which testing shall be initiated, the date by which testing is scheduled to be completed and the facility at which testing will be conducted. The test notice may also provide for situations in which the selected basic model is unavailable for testing, and may include alternative basic models.

(iv) The Secretary may require in the test notice that the manufacturer of a covered product shall ship at his expense a reasonable number of units of a basic model specified in such test notice to a testing laboratory designated by the Secretary. The number of units of a basic model specified in a test notice shall not exceed twenty (20).

(v) Within 5 working days of the time units are selected, the manufacturer shall ship the specified test units of a basic model to the testing laboratory.

(2) Testing Laboratory. Whenever DOE conducts enforcement testing at a designated laboratory in accordance with a test notice under this section, the resulting test data shall constitute official test data for that basic model. Such test data will be used by DOE to make a determination of compliance or noncompliance if a sufficient number of tests have been conducted to satisfy the requirements of appendix B of this subpart.

(3) Sampling. The determination that a manufacturer's basic model complies with the applicable energy performance standard or water performance standard (in the case of faucets, showerheads, water closets, and urinals) shall be based on the testing conducted in accordance with the statistical sampling procedures set forth in appendix B of this subpart and the test procedures set forth in subpart B of this part.

(4) Test unit selection. A DOE inspector shall select a batch, a batch sample, and test units from the batch sample in accordance with the provisions of this paragraph and the conditions specified in the test notice.

(i) The batch may be subdivided by DOE utilizing criteria specified in the test notice, e.g., date of manufacture, component-supplier, location of manufacturing facility, or other criteria which may differentiate one unit from another within a basic model.

(ii) A batch sample of up to 20 units will then be randomly selected from one or more subdivided groups within the batch. The manufacturer shall keep on hand all units in the batch sample until such time as the basic model is determined to be in compliance or noncompliance.

(iii) Individual test units comprising the test sample shall be randomly selected from the batch sample.

(iv) All random selection shall be achieved by sequentially numbering all of the units in a batch sample and then using a table of random numbers to select the units to be tested.

(5) Test unit preparation. (i) Prior to and during testing, a test unit selected in accordance with paragraph (a)(4) of this section shall not be prepared, modified, or adjusted in any manner unless such preparation, modification, or adjustment is allowed by the applicable DOE test procedure. One test shall be conducted for each test unit in accordance with the applicable test procedures prescribed in subpart B.

(ii) No quality control, testing or assembly procedures shall be performed on a test unit, or any parts and subassemblies thereof, that is not performed during the production and assembly of all other units included in the basic model.

(iii) A test unit shall be considered defective if such unit is inoperative or is found to be in noncompliance due to failure of the unit to operate according to the manufacturer's design and operating instructions. Defective units, including those damaged due to shipping or handling, shall be reported immediately to DOE. DOE shall authorize testing of an additional unit on a case-by-case basis.

(6) Testing at manufacturer's option. (i) If a manufacturer's basic model is determined to be in noncompliance with the applicable energy performance standard or water performance standard (in the case of faucets, showerheads, water closets, and urinals) at the conclusion of DOE testing in accordance with the double sampling plan specified in appendix B of this subpart, the manufacturer may request that DOE conduct additional testing of the model according to procedures set forth in appendix B of this subpart.

(ii) All units tested under paragraph (a)(6) of this section shall be selected and tested in accordance with the provisions given in paragraphs (a) (1) through (5) of this section.

(iii) The manufacturer shall bear the cost of all testing conducted under paragraph (a)(6) of this section.

(iv) The manufacturer shall cease distribution of the basic model being tested under the provisions of paragraph (a)(6) of this section from the time the manufacturer elects to exercise the option provided in this paragraph until the basic model is determined to be in compliance. DOE may seek civil penalties for all units distributed during such period.

(v) If the additional testing results in a determination of compliance, a notice of allowance to resume distribution shall be issued by the Department.

(b) Design standard. In the case of a design standard, a model is determined noncompliant by DOE after the Secretary or his designated representative has examined the underlying design information provided by the manufacturer and after the manufacturer has been offered the opportunity to verify compliance with the applicable design standard.

[54 FR 6080, Feb. 7, 1989, as amended at 63 FR 13321, Mar. 18, 1998]

§ 430.71 Cessation of distribution of a basic model.
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(a) In the event that a model is determined noncompliant by DOE in accordance with §430.70 of this part or if a manufacturer or private labeler determines a model to be in noncompliance, then the manufacturer or private labeler shall:

(1) Immediately cease distribution in commerce of the basic model;

(2) Give immediate written notification of the determination of noncompliance, to all persons to whom the manufacturer has distributed units of the basic model manufactured since the date of the last determination of compliance.

(3) Pursuant to a request made by the Secretary, provide DOE within 30 days of the request, records, reports and other documentation pertaining to the acquisition, ordering, storage, shipment, or sale of a basic model determined to be in noncompliance.

(4) The manufacturer may modify the noncompliant basic model in such manner as to make it comply with the applicable performance standard. Such modified basic model shall then be treated as a new basic model and must be certified in accordance with the provisions of this subpart; except that in addition satisfying all requirements of this subpart, the manufacturer shall also maintain records that demonstrate that modifications have been made to all units of the new basic model prior to distribution in commerce.

(b) If a basic model is not properly certified in accordance with the requirements of this subpart, the Secretary may seek, among other remedies, injunctive action to prohibit distribution in commerce of such basic model.

§ 430.72 Subpoena.
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Pursuant to section 329(a) of the Act, for purposes of carrying out this part, the Secretary or the Secretary's designee, may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant books, records, papers, and other documents, and administer the oaths. Witnesses summoned under the provisions of this section shall be paid the same fees and mileage as are paid to witnesses in the courts of the United States. In case of contumacy by, or refusal to obey a subpoena served, upon any persons subject to this part, the Secretary may seek an order from the District Court of the United States for any District in which such person is found or resides or transacts business requiring such person to appear and give testimony, or to appear and produce documents. Failure to obey such order is punishable by such court as a contempt thereof.

§ 430.73 Remedies.
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If DOE determines that a basic model of a covered product does not comply with an applicable energy conservation standard or water conservation standard (in the case of faucets, showerheads, water closets, and urinals):

(a) DOE will notify the manufacturer, private labeler or any other person as required, of this finding and of the Secretary's intent to seek a judicial order restraining further distribution in commerce of such basic model unless the manufacturer, private labeler or any other person as required, delivers to DOE within 15 calendar days a statement, satisfactory to DOE, of the steps he will take to insure that the noncompliant model will no longer be distributed in commerce. DOE will monitor the implementation of such statement.

(b) If the manufacturer, private labeler or any other person as required, fails to stop distribution of the noncompliant model, the Secretary may seek to restrain such violation in accordance with section 334 of the Act.

(c) The Secretary shall determine whether the facts of the case warrant the assessment of civil penalties for knowing violations in accordance with section 333 of the Act.

[54 FR 6081, Feb. 7, 1989, as amended at 63 FR 13321, Mar. 18, 1998]

§ 430.74 Hearings and appeals.
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(a) Pursuant to section 333(d) of the Act, before issuing an order assessing a civil penalty against any person under this section, the Secretary shall provide to such person notice of the proposed penalty. Such notice shall inform such person of that person's opportunity to elect in writing within 30 days after the date of receipt of such notice to have the procedures of paragraph (c) of this section (in lieu of those in paragraph (b) of this section) apply with respect to such assessment.

(b)(1) Unless an election is made within 30 calendar days after receipt of notice under paragraph (a) of this section to have paragraph (c) of this section apply with respect to such penalty, the Secretary shall assess the penalty, by order, after a determination of violation has been made on the record after an opportunity for an agency hearing pursuant to section 554 of title 5, United States Code, before an administrative law judge appointed under section 3105 of such title 5. Such assessment order shall include the administrative law judge's findings and the basis for such assessment.

(2) Any person against whom a penalty is assessed under this section may, within 60 calendar days after the date of the order of the Secretary assessing such penalty, institute an action in the United States Court of Appeals for the appropriate judicial circuit for judicial review of such order in accordance with chapter 7 of title 5, United States Code. The court shall have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in part, the order of the Secretary, or the court may remand the proceeding to the Secretary for such further action as the court may direct.

(c)(1) In the case of any civil penalty with respect to which the procedures of this section have been elected, the Secretary shall promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (a) of this section of the proposed penalty.

(2) If the civil penalty has not been paid within 60 calendar days after the assessment has been made under paragraph (c)(1) of this section, the Secretary shall institute an action in the appropriate District Court of the United States for an order affirming the assessment of the civil penalty. The court shall have authority to review de novo the law and the facts involved and shall have jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, such assessment.

(3) Any election to have this paragraph apply may not be revoked except with the consent of the Secretary.

(d) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (b) of this section, or after the appropriate District Court has entered final judgment in favor of the Secretary under paragraph (c) of this section, the Secretary shall institute an action to recover the amount of such penalty in any appropriate District Court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment shall not be subject to review.

(e)(1) In accordance with the provisions of section 333(d)(5)(A) of the Act and notwithstanding the provisions of title 28, United States Code, or section 502(c) of the Department of Energy Organization Act, the Secretary shall be represented by the General Counsel of the Department of Energy (or any attorney or attorneys within DOE designated by the Secretary) who shall supervise, conduct, and argue any civil litigation to which paragraph (c) of this section applies including any related collection action under paragraph (d) of this section in a court of the United States or in any other court, except the Supreme Court of the United States. However, the Secretary or the General Counsel shall consult with the Attorney General concerning such litigation and the Attorney General shall provide, on request, such assistance in the conduct of such litigation as may be appropriate.

(2) In accordance with the provisions of section 333(d)(5)(B) of the Act, and subject to the provisions of section 502(c) of the Department of Energy Organization Act, the Secretary shall be represented by the Attorney General, or the Solicitor General, as appropriate, in actions under this section, except to the extent provided in paragraph (e)(1) of this section.

(3) In accordance with the provisions of section 333(d)(5)(C) of the Act, section 402(d) of the Department of Energy Organization Act shall not apply with respect to the function of the Secretary under this section.

§ 430.75 Confidentiality.
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Pursuant to the provisions of 10 CFR 1004.11, any person submitting information or data which the person believes to be confidential and exempt law from public disclosure should submit one complete copy, and fifteen copies from which the information believed to be confidential has been deleted. In accordance with the procedures established at 10 CFR 1004.11, DOE shall make its own determination with regard to any claim that information submitted be exempt from public disclosure.


OMB Control No. 1910–1400


Appendix A to Subpart F of Part 430—Compliance Statement and Certification Report
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COMPLIANCE STATEMENT

Product:____________________

Manufacturer's or Private Labeler's Name and Address:

____________________
____________________
____________________

This compliance statement and all certification reports submitted are in accordance with 10 CFR Part 430 (Energy or Water Conservation Program for Consumer Products) and the Energy Policy and Conservation Act, as amended. The compliance statement is signed by a responsible official of the above named company. The basic model(s) listed in certification reports comply with the applicable energy conservation standard or water (in the case of faucets, showerheads, water closets, and urinals) conservation standard. All testing on which the certification reports are based was conducted in conformance with applicable test requirements prescribed in 10 CFR part 430 subpart B. All information reported in the certification report(s) is true, accurate, and complete. The company is aware of the penalties associated with violations of the Act, the regulations thereunder, and is also aware of the provisions contained in 18 U.S.C. 1001, which prohibits knowingly making false statements to the Federal Government.

Name of Company Official:____________________
Signature:____________________
Title:____________________
Firm or Organization:____________________
Address:____________________
Telephone Number:____________________
Facsimile Number:____________________
Date:____________________

Third Party Representation (if applicable)

For certification reports prepared and submitted by a third party organization under the provisions of §430.62 of 10 CFR part 430, the company official who authorized said third party representation is:

Name:____________________
Title:____________________
Address:____________________
Telephone Number:____________________
Facsimile Number:____________________

The third party organization submitting the certification report on behalf of the company is:

Third Party Organization:____________________
Address:____________________
Telephone Number:____________________
Facsimile Number:____________________

CERTIFICATION REPORT

Date:____________________
Product Type:____________________
Product Class:____________________
Manufacturer:____________________
Private Labeler (if applicable):____________________
Name:____________________
Title:____________________
Address:____________________
Telephone Number:____________________
Facsimile Number:____________________

For Existing, New, or Modified Models 1 :

1 Provide specific product information including, for each basic model, the manufacturer's model numbers and the information required in §430.62(a)(4)(i) through (a)(4)(xvii)).

For Discontinued Models 2 :

2 Provide manufacturer's model number.

[63 FR 13321, Mar. 18, 1998]

Appendix B to Subpart F of Part 430—Sampling Plan For Enforcement Testing
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Double Sampling

Step 1. The first sample size (n1) must be four or more units.

Step 2. Compute the mean (x 1) of the measured energy performance or water performance (in the case of faucets, showerheads, water closets, and urinals) of the n1 units in the first sample as follows:


where (x 1) is the measured energy efficiency, energy or water (in the case of faucets, showerheads, water closets, and urinals) consumption of unit I.

Step 3. Compute the standard deviation (s1) of the measured energy or water performance of the (n1) units in the first sample as follows:


Step 4. Compute the standard error (SX 1) of the measured energy or water performance of the n1 units in the first sample as follows:


Step 5. Compute the upper control limit (UCL1) and lower control limit (LCL1) for the mean of the first sample using the applicable DOE energy or water performance standard (EPS) as the desired mean and a probability level of 95 percent (two-tailed test) as follows:


where t is a statistic based on a 95 percent two-tailed probability level and a sample size of n1.

Step 6(a). For an Energy Efficiency Standard, compare the mean of the first sample (x 1) with the upper and lower control limits (UCL1 and LCL1) to determine one of the following:

(1) If the mean of the first sample is below the lower control limit, then the basic model is in noncompliance and testing is at an end. (Do not go on to any of the steps below.)

(2) If the mean of the first sample is equal to or greater than the upper control limit, then the basic model is in compliance and testing is at an end. (Do not go on to any of the steps below.)

(3) If the sample mean is equal to or greater than the lower control limit but less than the upper control limit, then no determination of compliance or noncompliance can be made and a second sample size is determined by Step 7(a).

Step 6(b). For an Energy or Water Consumption Standard, compare the mean of the first sample (x 1) with the upper and lower control limits (UCL1 and LCL1) to determine one of the following:

(1) If the mean of the first sample is above the upper control limit, then the basic model is in noncompliance and testing is at an end. (Do not go on to any of the steps below.)

(2) If the mean of the first sample is equal to or less than the lower control limit, then the basic model is in compliance and testing is at an end. (Do not go on to any of the steps below.)

(3) If the sample mean is equal to or less than the upper control limit but greater than the lower control limit, then no determination of compliance or noncompliance can be made and a second sample size is determined by Step 7(b).

Step 7(a). For an Energy Efficiency Standard, determine the second sample size (n2) as follows:


where s1 and t have the values used in Steps 4 and 5, respectively. The term “0.05 EPS” is the difference between the applicable energy efficiency standard and 95 percent of the standard, where 95 percent of the standard is taken as the lower control limit. This procedure yields a sufficient combined sample size (n1+n2) to give an estimated 97.5 percent probability of obtaining a determination of compliance when the true mean efficiency is equal to the applicable standard. Given the solution value of n2, determine one of the following:

(1) If the value of n2 is less than or equal to zero and if the mean energy efficiency of the first sample (x 1) is either equal to or greater than the lower control limit (LCL1) or equal to or greater than 95 percent of the applicable energy efficiency standard (EES), whichever is greater, i.e., if n2 = 0 and x 1 = max (LCL1, 0.95 EES), the basic model is in compliance and testing is at an end.

(2) If the value of n2 is less than or equal to zero and the mean energy efficiency of the first sample (x 1) is less than the lower control limit (LCL1) or less than 95 percent of the applicable energy efficiency standard (EES), whichever is greater, i.e., if n2 = 0 and x 1 = max (LCL1, 0.95 EES), the basic model is in noncompliance and testing is at an end.

(3) If the value of n2 is greater than zero, then value of the second sample size is determined to be the smallest integer equal to or greater than the solution value of n2 for equation (6a). If the value of n2 so calculated is greater than 20-n1, set n2 equal to 20-n1.

Step 7(b). For an Energy or Water Consumption Standard, determine the second sample size (n2) as follows:


where s1 and t have the values used in Steps 4 and 5, respectively. The term “0.05 EPS” is the difference between the applicable energy or water consumption standard and 105 percent of the standard, where 105 percent of the standard is taken as the upper control limit. This procedure yields a sufficient combined sample size (n1+n2) to give an estimated 97.5 percent probability of obtaining a determination of compliance when the true mean consumption is equal to the applicable standard. Given the solution value of n2, determine one of the following:

(1) If the value of n2 is less than or equal to zero and if the mean energy or water consumption of the first sample (x 1) is either equal to or less than the upper control limit (UCL1) or equal to or less than 105 percent of the applicable energy or water performance standard (EPS), whichever is less, i.e., if n2 = 0 and x 1 = min (UCL1, 1.05 EPS), the basic model is in compliance and testing is at an end.

(2) If the value of n2 is less than or equal to zero and the mean energy or water consumption of the first sample (x 1) is greater than the upper control limit (UCL1) or more than 105 percent of the applicable energy or water performance standard (EPS), whichever is less, i.e., if n2 = 0 and x 1 > min (UCL1, 1.05 EPS), the basic model is in noncompliance and testing is at an end.

(3) If the value of n2 is greater than zero, then the value of the second sample size is determined to be the smallest integer equal to or greater than the solution value of n2 for equation (6b). If the value of n2 so calculated is greater than 20-n1, set n2 equal to 20-n1.

Step 8. Compute the combined mean (x 2) of the measured energy or water performance of the n1 and n2 units of the combined first and second samples as follows:


Step 9. Compute the standard error (Sx1) of the measured energy or water performance of the n1 and n2 units in the combined first and second samples as follows:


Note: s1 is the value obtained in Step 3.

Step 10(a). For an Energy Efficiency Standard, compute the lower control limit (LCL2) for the mean of the combined first and second samples using the DOE energy efficiency standard (EES) as the desired mean and a one-tailed probability level of 97.5 percent (equivalent to the two-tailed probability level of 95 percent used in Step 5) as follows:


where the t-statistic has the value obtained in Step 5.

Step 10(b). For an Energy or Water Consumption Standard, compute the upper control limit (UCL2) for the mean of the combined first and second samples using the DOE energy or water performance standard (EPS) as the desired mean and a one-tailed probability level of 102.5 percent (equivalent to the two-tailed probability level of 95 percent used in Step 5) as follows:


where the t-statistic has the value obtained in Step 5.

Step 11(a). For an Energy Efficiency Standard, compare the combined sample mean (x 2) to the lower control limit (LCL2) to find one of the following:

(1) If the mean of the combined sample (x 2) is less than the lower control limit (LCL2) or 95 percent of the applicable energy efficiency standard (EES), whichever is greater, i.e., if x 2 < max (LCL2, 0.95 EES), the basic model is in noncompliance and testing is at an end.

(2) If the mean of the combined sample (x 2) is equal to or greater than the lower control limit (LCL2) or 95 percent of the applicable energy efficiency standard (EES), whichever is greater, i.e., if x 2 = max (LCL2, 0.95 EES), the basic model is in compliance and testing is at an end.

Step 11(b). For an Energy or Water Consumption Standard, compare the combined sample mean (x 2) to the upper control limit (UCL2) to find one of the following:

(1) If the mean of the combined sample (x 2) is greater than the upper control limit (UCL2) or 105 percent of the applicable energy or water performance standard (EPS), whichever is less, i.e., if x 2 > min (UCL2, 1.05 EPS), the basic model is in noncompliance and testing is at an end.

(2) If the mean of the combined sample (x 2) is equal to or less than the upper control limit (UCL2) or 105 percent of the applicable energy or water performance standard (EPS), whichever is less, i.e., if x 2 = min (UCL2, 1.05 EPS), the basic model is in compliance and testing is at an end.

Manufacturer-Option Testing

If a determination of non-compliance is made in Steps 6, 7 or 11, the manufacturer may request that additional testing be conducted, in accordance with the following procedures.

Step A. The manufacturer requests that an additional number, n3, of units be tested, with n3 chosen such that n1+n2+n3 does not exceed 20.

Step B. Compute the mean energy or water performance, standard error, and lower or upper control limit of the new combined sample in accordance with the procedures prescribed in Steps 8, 9, and 10, above.

Step C. Compare the mean performance of the new combined sample to the revised lower or upper control limit to determine one of the following:

a.1. For an Energy Efficiency Standard, if the new combined sample mean is equal to or greater than the lower control limit or 95 percent of the applicable energy efficiency standard, whichever is greater, the basic model is in compliance and testing is at an end.

a.2. For an Energy or Water Consumption Standard, if the new combined sample mean is equal to or less than the upper control limit or 105 percent of the applicable energy or water consumption standard, whichever is less, the basic model is in compliance and testing is at an end. (continued)