Volume 42, Issue 3 - March 2007

the Rate Debate
NFRC Responds 
EPAct: The Mandates of EPAct Are Alive and Well
by Scott Meza, Esq.

Editor’s Note: The following is a rebuttal to the GANA Perspectives column which appeared in the January issue. 

In the January 2007 issue of USGlass magazine, an article authored by Kim Mann, general counsel for the Glass Association of North America (GANA) mistakenly stated “NFRC can no longer claim any legitimacy or ‘mandate’” under the amendments to the Energy Policy Act of 1992 (EPAct) because the relevant amendments are no longer published in the U.S. Code as of 1998. That article also erroneously characterized statements made at the Code Change Development Committee of the International Energy Conservation Code (IECC) as coming from a “spokesperson” for the National Fenestration Rating Counsel (NFRC). As NFRC’s legal counsel, I would like to set the record straight on both issues.

EPAct, signed into law by President George H. W. Bush in October 1992, authorized NFRC to develop an energy performance rating system for windows and window systems. It stated:

“The [(NFRC)] is initially directed to develop this voluntary rating program according to commonly accepted procedures for the development of national testing procedure and labeling programs … In addition, is intended that, should NFRC develop this program, its implementation and administration also will be in accordance with commonly accepted procedures. Such procedures must assure, at a minimum, that NFRC has sufficient oversight and authority to assure that accreditation and certification procedures result in compliance.”

The law also directed the U.S. Department of Energy (DOE) to monitor and evaluate NFRC’s activities to determine whether the organization had met the law’s requirements. The EPAct authorized the Secretary of Energy to make that determination within one year of the legislation’s enactment.

On September 23, 1994, Secretary Hazel O’Leary issued a determination that the NFRC’s window energy rating program satisfied the objectives of the EPAct. The determination noted favorably that “[w]idespread participation exists in the NFRC energy performance rating, certification and labeling program. This program, to ensure accuracy and credibility, includes a system of checks and balances embodied in its three key subprograms: laboratory accreditation, product certification and the certification agency program.”

Repeated Affirmations 
Since then, the DOE has repeatedly affirmed that NFRC continues to meet its obligations under the EPAct, even since 1998, which is when the GANA article suggests that authority was revoked. For example, in 2003, the deputy general counsel for the DOE Energy Policy issued a memorandum confirming that the DOE continued to find the NFRC had met the conditions imposed by DOE in its initial determination that NFRC’s program met the EPAct mandates.

The memorandum also stated that “DOE believes the NFRC program is performing well and is in full compliance with EPAct section 121 ...” It further noted that even if evidence was presented showing that NFRC was not meeting the EPAct requirements “DOE would need to make the determination specified in EPAct section 121(c) before it could take action to put an alternative system in place. Thus, for the related programs and cooperative work under its management and purview, DOE should continue to only recognize the energy ratings and labels for windows and window systems recognized by the NFRC program.” 

The continued efficacy of NFRC’s voluntary standards is also reflected in other DOE efforts. In October 2000, the DOE issued a final rule that established building energy efficiency standards, which incorporated the NFRC standards. In proposing the rule, DOE stated it “supports the NFRC’s efforts to establish a uniform, national rating, certification and labeling program through incorporation of the NFRC program in Federal, state and local government and national voluntary codes and standards.”

Interestingly, under the EPAct, had DOE determined that NFRC failed to develop an acceptable rating and labeling program, DOE was directed to develop test procedures for windows and window systems after consultation with the National Institute of Standards and Technology. The legislation also provided that the Federal Trade Commission would then be authorized to prescribe the labeling rules for those windows and window systems.

History has proven that DOE made the right choice. In place of a government-regulated and -administered fenestration rating and labeling program, the NFRC successfully promulgated a voluntary program that seeks input from many sources, including the fenestration industry, in developing its rating standards. Similarly, as a not-for-profit organization with a governing board comprised of representatives of all of the stakeholders with interests in the rating of fenestration products, the NFRC is best suited to provide a balanced, consensus-based program that serves the interests of the public. Therefore, notwithstanding claims to the contrary, NFRC’s mandate under federal law continues in force and NFRC continues to meet that mandate. 

Richard Karney, DOE’s program manager for the Energy Star Windows Program®, said that DOE continues to affirm that NFRC has met its obligations under the EPAct. 

“The U.S. Department of Energy has monitored NFRC’s activities since its inception in 1989, and the Department’s position is that NFRC has fulfilled and continues to fulfill its mission as set forth in the Energy Policy Act of 1992,” Karney said. “A DOE representative sits on the NFRC board of directors as an ex officio member, and the department will continue to fulfill its obligations under EPAct to monitor and support all of NFRC’s activities related to the certification and labeling of fenestration product energy performance.”

IECC Committee Decision 
The article in the January issue also alleged that at the September 2006 meeting of the Code Change Development Committee of the IECC, an “NFRC spokesperson” and board member urged the committee to reject the proposal for the AAMA 507-03 standard. The contention that any NFRC board member who participated in the hearing did so as an NFRC spokesperson is incorrect.

NFRC did not take an official position at the EC9 hearing, and did not direct or authorize any person to speak on behalf of NFRC at that hearing. Under NFRC’s governance rules, except for the chairperson, NFRC directors are expressly prohibited from taking public positions on behalf of NFRC. NFRC’s board members were free to participate in the IECC hearing to express their own views or the views of their employers. In fact, one NFRC board member testified at the hearing in support of AAMA 507-03.

In recent years, NFRC has been working to develop a new energy rating and certification program, especially designed for commercial fenestration products. This new program utilizes the information technology available in today’s high-tech world and will include third-party certification—critical for ensuring program credibility. 

the author Scott Meza, Esq. is a partner in the Northern Virginia office of Greenberg Traurig, a national law firm. Greenberg Traurig is general counsel for NFRC. Mr. Meza’s opinions are solely his own and not necessarily those of USGlass magazine.

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