10 C.F.R. Subpart U—Enforcement
Title 10 - Energy
Source: 69 FR 61941, Oct. 21, 2004, unless otherwise noted. Redesignated at 70 FR 60416, Oct. 18, 2005.
This subpart describes violations of EPCA's energy conservation requirements, specific procedures we will follow in pursuing alleged non-compliance of an electric motor with an applicable energy conservation standard or labeling requirement, and general procedures for enforcement action, largely drawn directly from EPCA, that apply to both electric motors and commercial HVAC & WH products. (a) Each of the following is a prohibited act under sections 332 and 345 of the Act: (1) Distribution in commerce by a manufacturer or private labeler of any “new covered equipment” which is not labeled in accordance with an applicable labeling rule prescribed in accordance with Section 344 of the Act, and in this part; (2) Removal from any “new covered equipment” or rendering illegible, by a manufacturer, distributor, retailer, or private labeler, of any label required under this Part to be provided with such covered equipment; (3) Failure to permit access to, or copying of records required to be supplied under the Act and this part, or failure to make reports or provide other information required to be supplied under the Act and this part; (4) Advertisement of an electric motor or motors, by a manufacturer, distributor, retailer, or private labeler, in a catalog from which the equipment may be purchased, without including in the catalog all information as required by §431.31(b)(1), provided, however, that this shall not apply to an advertisement of an electric motor in a catalog if distribution of the catalog began before the effective date of the labeling rule applicable to that motor; (5) Failure of a manufacturer to supply at his expense a reasonable number of units of covered equipment to a test laboratory designated by the Secretary; (6) Failure of a manufacturer to permit a representative designated by the Secretary to observe any testing required by the Act and this part, and to inspect the results of such testing; and (7) Distribution in commerce by a manufacturer or private labeler of any new covered equipment which is not in compliance with an applicable energy efficiency standard prescribed under the Act and this part. (b) In accordance with sections 333 and 345 of the Act, any person who knowingly violates any provision of paragraph (a) of this section may be subject to assessment of a civil penalty of no more than $110 for each violation. Each violation of paragraphs (a)(1), (2), and (7) of this section shall constitute a separate violation with respect to each unit of any covered equipment, and each day of noncompliance with paragraphs (a)(3) through (6) of this section shall constitute a separate violation. (c) For purposes of this section: (1) The term “new covered equipment” means covered equipment the title of which has not passed to a purchaser who buys such product for purposes other than: (i) Reselling it; or (ii) Leasing it for a period in excess of one year; and (2) The term “knowingly” means: (i) Having actual knowledge; or (ii) Presumed to have knowledge deemed to be possessed by a reasonable person who acts in the circumstances, including knowledge obtainable upon the exercise of due care. (a) Test notice. Upon receiving information in writing, concerning the energy performance of a particular electric motor sold by a particular manufacturer or private labeler, which indicates that the electric motor may not be in compliance with the applicable energy efficiency standard, or upon undertaking to ascertain the accuracy of the efficiency rating on the nameplate or in marketing materials for an electric motor, disclosed pursuant to subpart B of this part, the Secretary may conduct testing of that electric motor under this subpart by means of a test notice addressed to the manufacturer in accordance with the following requirements: (1) The test notice procedure will only be followed after the Secretary or his/her designated representative has examined the underlying test data (or, where appropriate, data as to use of an alternative efficiency determination method) provided by the manufacturer and after the manufacturer has been offered the opportunity to meet with the Department to verify, as applicable, compliance with the applicable efficiency standard, or the accuracy of labeling information, or both. In addition, where compliance of a basic model was certified based on an AEDM, the Department shall have the discretion to pursue the provisions of §431.17(a)(4)(iii) prior to invoking the test notice procedure. A representative designated by the Secretary shall be permitted to observe any re-verification procedures undertaken pursuant to this subpart, and to inspect the results of such reverification. (2) The test notice will be signed by the Secretary or his/her designee. The test notice will be mailed or delivered by the Department to the plant manager or other responsible official, as designated by the manufacturer. (3) The test notice will specify the model or basic model to be selected for testing, the method of selecting the test sample, the date and 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 specified basic model is unavailable for testing, and may include alternative basic models. (4) The Secretary may require in the test notice that the manufacturer of an electric motor 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 20. (5) Within five working days of the time the units are selected, the manufacturer shall ship the specified test units of a basic model to the testing laboratory. (b) Testing laboratory. Whenever the Department conducts enforcement testing at a designated laboratory in accordance with a test notice under this section, the resulting test data shall constitute official test data for that basic model. Such test data will be used by the Department to make a determination of compliance or noncompliance if a sufficient number of tests have been conducted to satisfy the requirements of appendix A of this subpart. (c) Sampling. The determination that a manufacturer's basic model complies with its labeled efficiency, or the applicable energy efficiency standard, shall be based on the testing conducted in accordance with the statistical sampling procedures set forth in appendix A of this subpart and the test procedures set forth in appendix B to subpart B of this part. (d) Test unit selection. A Department 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. (1) The batch may be subdivided by the Department utilizing criteria specified in the test notice. (2) 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 non-compliance. (3) Individual test units comprising the test sample shall be randomly selected from the batch sample. (4) 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. (e) Test unit preparation. (1) Prior to and during the testing, a test unit selected in accordance with paragraph (d) of this section shall not be prepared, modified, or adjusted in any manner unless such preparation, modification, or adjustment is allowed by the applicable Department of Energy test procedure. One test shall be conducted for each test unit in accordance with the applicable test procedures prescribed in appendix B to subpart B of this part. (2) No quality control, testing, or assembly procedures shall be performed on a test unit, or any parts and sub-assemblies thereof, that is not performed during the production and assembly of all other units included in the basic model. (3) 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 the Department. The Department shall authorize testing of an additional unit on a case-by-case basis. (f) Testing at manufacturer's option. (1) If a manufacturer's basic model is determined to be in noncompliance with the applicable energy performance standard at the conclusion of Department testing in accordance with the sampling plan specified in appendix A of this subpart, the manufacturer may request that the Department conduct additional testing of the basic model according to procedures set forth in appendix A of this subpart. (2) All units tested under this paragraph shall be selected and tested in accordance with the provisions given in paragraphs (a) through (e) of this section. (3) The manufacturer shall bear the cost of all testing conducted under this paragraph. (4) The manufacturer shall cease distribution of the basic model tested under the provisions of this paragraph from the time the manufacturer elects to exercise the option provided in this paragraph until the basic model is determined to be in compliance. The Department may seek civil penalties for all units distributed during such period. (5) If the additional testing results in a determination of compliance, a notice of allowance to resume distribution shall be issued by the Department.
Title 10: Energy
PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT
Subpart U—Enforcement
§ 431.381 Purpose and scope.
§ 431.382 Prohibited acts.
§ 431.383 Enforcement process for electric motors.
§ 431.384 [Reserved]
§ 431.385 Cessation of distribution of a basic model of an electric motor.
(a) In the event that a model of an electric motor is determined non-compliant by the Department in accordance with §431.192 or if a manufacturer or private labeler determines a model of an electric motor 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 the Department 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 non-compliant 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 to 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.
§ 431.386 Remedies.
If the Secretary determines that a basic model of any covered equipment does not comply with an applicable energy conservation standard:
(a) The Secretary will notify the manufacturer, private labeler, or any other person as required, of this finding and of the Secretary's intent to seek a judicial order restraining further distribution in commerce of units of such a basic model unless the manufacturer, private labeler or other person as required, delivers, within 15 calendar days, a satisfactory statement to the Secretary, of the steps the manufacturer, private labeler or other person will take to insure that the noncompliant basic model will no longer be distributed in commerce. The Secretary will monitor the implementation of such statement.
(b) If the manufacturer, private labeler or any other person as required, fails to stop distribution of the noncompliant basic model, the Secretary may seek to restrain such violation in accordance with sections 334 and 345 of the Act.
(c) The Secretary will determine whether the facts of the case warrant the assessment of civil penalties for knowing violations in accordance with sections 333 and 345 of the Act.
§ 431.387 Hearings and appeals.
(a) Under sections 333(d) and 345 of the Act, before issuing an order assessing a civil penalty against any person, the Secretary must provide to such a person a notice of the proposed penalty. Such notice must inform the person that such person can choose (in writing within 30 days after receipt of the notice) to have the procedures of paragraph (c) of this section (in lieu of those in paragraph (b) of this section) apply with respect to such assessment.
(b)(1) Unless a person elects, within 30 calendar days after receipt of a notice under paragraph (a) of this section, to have paragraph (c) of this section apply with respect to the civil penalty under paragraph (a), the Secretary will assess the penalty, by order, after providing an opportunity for an agency hearing under 5 U.S.C. 554, before an administrative law judge appointed under 5 U.S.C. 3105, and making a determination of violation on the record. Such assessment order will include the administrative law judge's findings and the basis for such assessment.
(2) Any person against whom the Secretary assesses a penalty under this paragraph may, within 60 calendar days after the date of the order assessing such penalty, initiate action in the United States Court of Appeals for the appropriate judicial circuit for judicial review of such order in accordance with 5 U.S.C. chapter 7. The court will have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in part, the order of the Secretary, or the court may remand the proceeding to the Secretary for such further action as the court may direct.
(c)(1) In the case of any civil penalty with respect to which the procedures of this paragraph have been elected, the Secretary will promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (a) of this section of the proposed penalty.
(2) If the person has not paid the civil penalty within 60 calendar days after the assessment has been made under paragraph (c)(1) of this section, the Secretary will institute an action in the appropriate District Court of the United States for an order affirming the assessment of the civil penalty. The court will have authority to review de novo the law and the facts involved and jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, such assessment.
(3) Any election to have this paragraph apply can only be revoked with the consent of the Secretary.
(d) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (b) of this section, or after the appropriate District Court has entered final judgment in favor of the Secretary under paragraph (c) of this section, the Secretary will institute an action to recover the amount of such penalty in any appropriate District Court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment will not be subject to review.
(e)(1) In accordance with the provisions of sections 333(d)(5)(A) and 345 of the Act and notwithstanding the provisions of title 28, United States Code, or Section 502(c) of the Department of Energy Organization Act, the General Counsel of the Department of Energy (or any attorney or attorneys within DOE designated by the Secretary) will represent the Secretary, and will supervise, conduct, and argue any civil litigation to which paragraph (c) of this section applies (including any related collection action under paragraph (d) of this section) in a court of the United States or in any other court, except the Supreme Court of the United States. However, the Secretary or the General Counsel will consult with the Attorney General concerning such litigation and the Attorney General will provide, on request, such assistance in the conduct of such litigation as may be appropriate.
(2) In accordance with the provisions of sections 333(d)(5)(B) and 345 of the Act, and subject to the provisions of Section 502(c) of the Department of Energy Organization Act, the Secretary will be represented by the Attorney General, or the Solicitor General, as appropriate, in actions under this section, except to the extent provided in paragraph (e)(1) of this section.
(3) In accordance with the provisions of Section 333(d)(5)(c) and 345 of the Act, Section 402(d) of the Department of Energy Organization Act will not apply with respect to the function of the Secretary under this section.
Appendix A to Subpart U of Part 431—Sampling Plan for Enforcement Testing of Electric Motors
Step 1. The first sample size (n1) must be five or more units.
Step 2. Compute the mean (X
where Xi is the measured full-load efficiency of unit i.
Step 3. Compute the sample standard deviation (S1) of the measured full-load efficiency of the n1 units in the first sample as follows:
Step 4. Compute the standard error (SE(X
Step 5. Compute the lower control limit (LCL1) for the mean of the first sample using RE as the desired mean as follows:
where: RE is the applicable EPCA nominal full-load efficiency when the test is to determine compliance with the applicable statutory standard, or is the labeled nominal full-load efficiency when the test is to determine compliance with the labeled efficiency value, and t is the 2.5th percentile of a t-distribution for a sample size of n1, which yields a 97.5 percent confidence level for a one-tailed t-test.
Step 6. Compare the mean of the first sample (X
(i) If the mean of the first sample is below the lower control limit, then the basic model is in non-compliance and testing is at an end.
(ii) If the mean is equal to or greater than the lower control limit, no final determination of compliance or non-compliance can be made; proceed to Step 7.
Step 7. Determine the recommended sample size (n) as follows:
where S1, RE and t have the values used in Steps 3 and 5, respectively. The factor
is based on a 20 percent tolerance in the total power loss at full-load and fixed output power.
Given the value of n, determine one of the following:
(i) If the value of n is less than or equal to n1 and if the mean energy efficiency of the first sample (X
(ii) If the value of n is greater than n1, the basic model is in non-compliance. The size of a second sample n2 is determined to be the smallest integer equal to or greater than the difference n−n1. If the value of n2 so calculated is greater than 20−n1, set n2 equal to 20−n1.
Step 8. Compute the combined (X
Step 9. Compute the standard error (SE(X
(Note that S1 is the value obtained above in Step 3.)
Step 10. Set the lower control limit (LCL2) to,
where t has the value obtained in Step 5, and compare the combined sample mean (X
(i) If the mean of the combined sample (X
(ii) If the mean of the combined sample (X
Manufacturer-Option Testing
If a determination of non-compliance is made in Steps 6, 7 or 10, of this appendix A, 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 full-load efficiency, standard error, and lower control limit of the new combined sample in accordance with the procedures prescribed in Steps 8, 9, and 10, of this appendix A.
Step C. Compare the mean performance of the new combined sample to the lower control limit (LCL2) to determine one of the following:
(a) If the new combined sample mean is equal to or greater than the lower control limit, the basic model is in compliance and testing is at an end.
(b) If the new combined sample mean is less than the lower control limit and the value of n1 + n2 + n3 is less than 20, the manufacturer may request that additional units be tested. The total of all units tested may not exceed 20. Steps A, B, and C are then repeated.
(c) Otherwise, the basic model is determined to be in non-compliance.
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