E9-29356. Grace Period From Enforcement of Energy-Efficiency Certification for Residential Products

AGENCY:

Office of the General Counsel, U.S. Department of Energy.

ACTION:

Notice.

SUMMARY:

This notice announces the Department of Energy's (DOE) intent to allow manufacturers subject to certain certification requirements to remedy deficiencies in their certification submissions and/or to certify covered products. DOE will refrain from initiating an enforcement action for any violations of 10 CFR 430.62 that are remedied prior to 30 days from the date of this Notice.

DATES:

This Notice is effective December 9, 2009.

FOR FURTHER INFORMATION CONTACT:

Ms. Laura Barhydt at 202-287-5772.

SUPPLEMENTARY INFORMATION:

The Energy Policy and Conservation Act of 1974, as amended, (EPCA or the “Act”) authorizes the Department of Energy (DOE or the “Department”) to enforce compliance with the energy conservation standards established for certain consumer products. 42 U.S.C. 6299-6304. To ensure that all covered products distributed in the United States comply with DOE's energy conservation standards, the Department has promulgated enforcement regulations, which include specific certification requirements. See 10 CFR part 430, subpart F. Specifically, the Department's rules require manufacturers of covered consumer products to “certify by means of a compliance statement and a certification report that each basic model(s) meets the applicable energy conservation standard,” before distributing it in commerce within the United States. 10 CFR 430.62.

On October 14, 2009, DOE issued guidance setting forth the Department's interpretation of its enforcement regulations. (74 FR 52793) The guidance clarified that a failure to certify covered products in accordance with DOE's rules is an independent violation of EPCA and DOE's implementing regulations and may be subject to enforcement action, including the imposition of civil penalties. The guidance also announced the Department's intent to exercise its enforcement authority more rigorously in the future, beginning with a compliance review of certification reports for products and equipment covered by DOE regulations.

DOE has initiated the compliance review announced in the October 14, 2009 Federal Register notice. We recognize, however, that DOE's clarification regarding certification obligations combined with its intent to enforce all regulatory obligations much more vigorously were not anticipated by the market. Moreover, some manufacturers previously have been given, on an ad hoc basis, a thirty day grace period to cure defective certifications.

DOE's goal is threefold: (1) To ensure compliance with its regulations; (2) to sanction those who fail to comply with those regulations; and (3) to treat all those subject to the regulations fairly and equally. To accomplish this goal, DOE therefore believes that a one-time grace period of very limited duration and scope is warranted to allow manufacturers to immediately review previously submitted certification reports and compliance statements for accuracy and completeness. The grace period will also allow any manufacturers who have not previously submitted the required information to come into compliance.

We hereby notify all manufacturers of covered products that for 30 days from this Notice DOE will refrain from initiating enforcement actions for violations of the certification regulations set forth in 10 CFR 430.62. We strongly encourage manufacturers to take advantage of this limited window to review, correct, and file certification reports and compliance statements as needed to come into compliance with our rules. Any violations of DOE's certification rules not remedied by January 8, 2010 will be subject to enforcement action, including the imposition of a civil penalty in accordance with 10 CFR 430.74.

DOE's determination to refrain from initiating enforcement actions for 30 days is limited to violations of the certification requirements specified in 10 CFR 430.62. This grace period does not apply to violations of the energy efficiency or water conservation standards or any other requirements set forth in EPCA or DOE's implementing regulations. DOE intends to pursue immediately and aggressively all violations of the Department's energy efficiency and water conservation standards.

We have prepared a page of Frequently Asked Questions (FAQ) related to this certification grace period, which is available at http://www.gc.doe.gov/​documents/​Frequently_​Asked_​Questions.pdf.

In response to this notice, manufacturers may file required certification reports and compliance statements either by mail or electronic filing.

Electronic filing is preferred. To file electronically, go to our FAQ at http://www.gc.doe.gov/​documents/​Frequently_​Asked_​Questions.pdf for instructions.

Paper filings should be submitted to: Appliance Standards Program (EE-2J), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0121.

Issued in Washington, DC, on December 4, 2009.

Scott Blake Harris,

General Counsel.