Understanding NFRC's Independent Verification Program

Paul R. Gary
May 21, 2012
COLUMN : Legal | Management

The Energy Star program, as jointly managed by the Department of Energy and the Environmental Protection Agency, is a long-time benefactor of incentives and tax breaks. It is a success story hailed as reportedly saving American $28 billion in 2008 alone.

With Energy Star’s subsidized popularity and resulting influence in the market, window manufacturers have had little choice but to participate and get their products Energy Star qualified. They did so in droves.

That hearty response has enabled the government to make the Energy Star windows, doors and skylight criteria continually more aggressive, constantly challenging existing technology and manufacturing techniques. The process continues; there is currently a new version of the Energy Star criteria for windows under development. I doubt that the criteria will become any easier, as the government’s stated goal has been to limit Energy Star to the top 20 percent of the window/sliding glass door market. To do this, some of the manufacturers who enjoy Energy Star qualification will not be “partners” in the future.

Why the IVP?
Looking beyond windows and doors, the overall Energy Star program, despite its success, has encountered some bumps. In March 2010, the Government Accounting Office released a report strikingly critical of the management of the Energy Star program. The release was not only critical, but also embarrassing. Acting under fictitious company names, the GAO received certification of a number of imaginary products, including a “gas-powered alarm clock.” Yes, a gas-powered alarm clock.

And, according to the GAO release, the product description indicated the clock was the size of a small generator and was powered by gasoline. It was approved by Energy Star without a review of the fictitious's company's website or questions of the claimed efficiencies.

With embarrassment in Washington comes change. EPA has effectively taken over the entire Energy Star program and mandatory independent verification programs (IVPs) are now being rigorously enforced.

Windows, though late to the IVP game, are not to be excluded. The National Fenestration Rating Council has been required to design, fund and implement a retail selection and testing program. The NFRC IVP has been through a pilot phase and is scheduled for implementation in January 2013. At its core, the IVP for windows and doors is built upon the selection and blind retail purchase of a sample of Energy Star qualified products selected for testing by an accredited lab of the values within the NFRC protocol, including gas retention. The manufacturer is not notified. It is among the blind.

Should a test yield greater than a 10 percent variance from an NFRC certification value, a retest protocol at the manufacturer’s cost is available. If the product fails within the retest process, ultimately product certification is taken away. Due to a variance in minimum program criteria, the loss could be of Energy Star qualification alone or both NFRC certification and Energy Star qualification. The ramifications, intended and unintended, are serious.

Most directly, a loss of certification means that the manufacturer can no longer sell the product as “Energy Star qualified” or perhaps also “NFRC certified.” The fallout would be dramatic for that company. What about the products that are in the pipeline? Would the distribution chain need to be informed? If so, sales would plummet not only on the product in question, but most likely across the board. Would pending orders be subject to rescission?

There will also be an existing population of installed windows sold with the NFRC certified rating. How will the owners of those windows and doors react to the news that there products are no longer Energy Star? If a mistake is made, how can a manufacturer regain its footing in the market?

The independent verification program is important, but EPA needs to recognize its significance to the Energy Star partners that have invested over the years to keep up with the best regarding energy performance. I think the IVP process should be as transparent as possible for the manufacturer. It starts with selection of product to be tested in the IVP.

NFRC makes product selections and has a complicated algorithm by which it makes product selections for testing (it’s too complicated to understand and is therefore unbiased). But, EPA can also designate products that it wants tested based upon its own market criteria and sources of information in the field. That part gives some pause.

The “blind purchase” aspect is understandable to assure that the product tested was not made for the test chamber, but I do not see why a manufacturer is not informed of the selection of its product for testing. There is nothing the manufacturer could do to improperly influence the selection or the test. At a minimum, if a manufacturer is given notice and an opportunity to inspect the product before testing it may avoid costly selection mistakes and the potential for testing of a damaged or simply “irregular” product. Upon notice that a product was tested and failed, what are the rights of the manufacturer to examine the test protocol, reports and calibration of test equipment?

These details of the NFRC IVP are important and the fact that no process can be run without error should be seriously considered. I understand that the comment period on NFRC 713 remains open. If I managed a window company, I’d think about my strategy for NFRC IVP before it is upon me.


Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.