[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Proposed Rules]
[Pages 74616-74625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30195]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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  Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / 
Proposed Rules  

[[Page 74616]]



DEPARTMENT OF ENERGY

10 CFR Parts 430 and 431

[Docket No. EERE-2012-BT-TP-0003]
RIN 1904-AC70


Amendments and Correction to Petitions for Waiver and Interim 
Waiver for Consumer Products and Commercial and Industrial Equipment

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'') 
proposes amendments and corrections to portions of its regulations 
governing petitions for waiver and interim waiver from DOE test 
procedures. In finalizing the March 7, 2011 final certification, 
compliance and enforcement rule for consumer products and commercial 
equipment, DOE inadvertently deleted language pertaining to petitions 
for waiver and interim waiver of DOE's test procedure requirements for 
consumer products. This notice addresses that error by proposing to 
restore, with minor amendments, the omitted text. DOE also proposes a 
process by which, within 60 days after DOE grants a waiver for a 
product employing a particular technology, other manufacturers of that 
product employing a technology or characteristic that results in the 
same need for a waiver would submit a petition for waiver. This process 
would ensure that manufacturers of similar products test and rate those 
products in a comparable manner. The proposed rule also sets forth a 
process for manufacturers to request rescission or modification of a 
waiver if they determine that the waiver is no longer needed, or for 
other appropriate reasons. DOE also proposes to make other minor 
modifications to the waiver provisions for both consumer products and 
commercial equipment and to clarify certain aspects related to the 
submission and processing of a waiver petition.

DATES: DOE will accept comments, data, and information regarding this 
notice of proposed rulemaking (NOPR) no later than January 16, 2013. 
See section V, ``Public Participation,'' of this NOPR for details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at http://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments, identified by docket number EERE-2010-BT-
CE-0014, by any of the following methods:
     Email: [email protected]. 
Include EERE-2012-BT-TP-0003 in the subject line of the message.
     Mail: Ms. Brenda Edwards, U.S. Department of Energy, 
Building Technologies Program, Mailstop EE-2J, Revisions to Energy 
Efficiency Enforcement Regulations, EERE-2012-BT-TP-0003, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Phone: (202) 586-
2945. Please submit one signed paper original.
     Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy, Building Technologies Program, 6th Floor, 950 L'Enfant Plaza 
SW., Washington, DC 20024. Phone: (202) 586-2945. Please submit one 
signed paper original.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. Note that all comments 
received will be posted without change, including any personal 
information provided.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at 
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, 
DC 20585-0121. Telephone: (202) 586-6590. Email: 
[email protected].
    Ms. Celia Sher, U.S. Department of Energy, Office of General 
Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Telephone: (202) 287-6122. Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Authority

    Title III of the Energy Policy and Conservation Act of 1975, as 
amended, (``EPCA'' or the ``Act'') sets forth a variety of provisions 
designed to improve energy efficiency. Part A of Title III (42 U.S.C. 
6291-6309) provides for the Energy Conservation Program for Consumer 
Products Other Than Automobiles. The National Energy Conservation 
Policy Act (NECPA), Public Law 95-619, amended EPCA to add Part A-1 of 
Title III, which established an energy conservation program for certain 
industrial equipment. (42 U.S.C. 6311-6317) \1\
---------------------------------------------------------------------------

    \1\ For editorial reasons, Parts B (consumer products) and C 
(commercial equipment) of Title III of EPCA were re-designated as 
parts A and A-1, respectively, in the United States Code.
---------------------------------------------------------------------------

    This proposed rule involves the regulatory provisions governing the 
submission and processing of test procedure waivers for both consumer 
products under Part A of EPCA and commercial equipment under Part A-1. 
EPCA directs DOE to prescribe test procedures that are reasonably 
designed to produce results reflecting the energy efficiency, energy 
use, and estimated annual operating costs for those products, and that 
are not unduly burdensome to conduct. 42 U.S.C. 6293(b)(3), 6314(a)(2). 
DOE's regulations in Title 10 of the Code of Federal Regulations (CFR), 
Section 430.27 (consumer products) and Section 431.401 (commercial 
equipment) contain provisions allowing a person to seek a waiver from 
the test procedure requirements if certain conditions are met. A waiver 
allows manufacturers to use an alternative test procedure in situations 
where the DOE test procedure cannot be used to test the products or 
equipment, or where use of the DOE test procedure would provide 
unrepresentative results.

II. Background

    On March 7, 2011, DOE's Office of Energy Efficiency and Renewable 
Energy (``EERE'') published a final rule titled ``Energy Conservation 
Program: Certification, Compliance, and Enforcement for Consumer 
Products and Commercial and Industrial Equipment.'' 76 FR 12421. Among 
other things, the

[[Page 74617]]

rule added an electronic filing option for submitting petitions for 
waiver from the test procedure requirements for consumer products 
located at 10 CFR 430.27. Since the publication of this rule, it has 
come to the Department's attention that, due to a drafting oversight, 
certain parts of the existing regulatory text in 10 CFR 430.27 were 
inadvertently deleted by the rule. Consequently, the provisions 
formerly located at 10 CFR 430.27(b)(1)(i) through (iv), which address 
what must be included in a waiver petition for consumer products, no 
longer exist in the current regulatory text. This notice proposes to 
correct DOE's existing regulations in 10 CFR 430.27 by reinstating 
paragraphs (b)(1)(i) through (iv) in 10 CFR 430.27, with minor 
amendments to paragraph (iii). DOE also proposes a process by which, 
within 60 days after DOE grants a waiver for a product employing a 
particular technology, other manufacturers of that product employing a 
technology or characteristic that results in the same need for a 
waiver, as specified by DOE in the published petition for waiver in the 
Federal Register, would submit a petition for waiver. (Some recent 
examples of technologies or characteristics for which multiple 
manufacturers had the same need for a waiver include large-capacity 
clothes washers, refrigerator-freezers that employ multiple defrost 
cycles, and dishwashers with a water softener regeneration system.) 
This process would ensure that manufacturers of similar products test 
and rate those products in a comparable manner. The proposed rule also 
sets forth a process for manufacturers to request rescission or 
modification of a waiver if they determine that the waiver is no longer 
needed, or for other appropriate reasons. DOE also proposes to make 
other minor amendments to its waiver provisions in 10 CFR parts 430 and 
431, which include clarifying manufacturer responsibility under the 
rules and making clear that manufacturers of all types of covered 
commercial and industrial equipment are eligible to petition for 
waiver. The proposals are described in more detail in the following 
section.

III. Discussion of Specific Revisions to Waiver Provisions

    In this proposed rule, DOE proposes to add an introductory 
paragraph to paragraphs 430.27(a) and 431.401(a) to clarify that 
obtaining a waiver or interim waiver does not exempt a manufacturer of 
consumer products or commercial equipment from compliance with any 
other applicable regulatory requirements contained in 10 CFR parts 430 
and 431, or the certification and compliance requirements of 10 CFR 
part 429. DOE believes this new language will make clear that a waiver 
is solely an authorization to use an alternative test procedure method, 
and does not relieve the manufacturer from any other regulatory 
requirements.
    With regard to waiver applications for commercial equipment 
addressed in part 431, DOE is proposing to modify section 431.401(a)(1) 
to expand the waiver provisions to apply to manufacturers of all types 
of covered commercial and industrial equipment, rather than just the 
five types of equipment referenced in the current regulations (i.e., 
commercial warm air furnaces; commercial packaged boilers; small, 
large, and very large commercial package air conditioning and heating 
equipment; packaged terminal air conditioners and packaged terminal 
heat pumps; and commercial water heaters and hot water supply boilers 
(other than commercial heat pump water heaters)). This change will 
ensure that the waiver provisions are available to manufacturers of all 
commercial equipment types, not limited to only certain equipment 
types. As a related action, DOE is proposing to amend the definition of 
``private labeler'' in section 431.2 to reflect that the term applies 
to all products covered under part 431, and not only to commercial HVAC 
and WH products, as the definition currently states. Since this term 
could be applicable to persons who may submit petitions for waivers, or 
entities potentially affected by waivers issued under section 431.401, 
this change will ensure that the term is applied uniformly to all 
products.
    To clarify compliance obligations further, DOE proposes to make 
explicit in sections 430.27(a)(3) and 431.401(a)(3) that, while any 
person may petition for waiver and interim waiver, the ultimate 
responsibility for complying with the waiver provisions lies with the 
manufacturer, which, by statutory definition, includes importers. DOE 
believes this additional language will make clear that the compliance 
burden is on the manufacturer, regardless of which entity submits the 
waiver.
    DOE also proposes to restore, with minor amendments, the 
inadvertently omitted provisions in section 430.27(b)(1). These 
provisions would set forth information that must be included in a 
petition for waiver of the applicable test procedure requirements for 
consumer products. In particular, the provisions require petitioners 
to: (1) Specify the basic model(s) to which the waiver applies; (2) 
identify other manufacturers of similar products; (3) include any known 
alternate test procedures of the basic model, with the slight 
modification that any test procedures identified must be specific to 
the product type; (4) sign the petition, and (5) include any request 
for confidential treatment for any information deemed confidential. The 
reinstatement of these provisions would correct a drafting error and 
would not impose any new regulatory requirements on manufacturers, 
because these provisions had been part of this section prior to their 
removal.
    This document also proposes to amend sections 430.27(b)(1)(i) and 
431.401(b)(1)(i) to require waiver applicants to identify each brand 
name under which the basic model specified in the waiver will be 
distributed in commerce in the U.S. While this proposed amendment would 
not prohibit third party representatives such as original equipment 
manufacturers (``OEMs'') from submitting waiver applications on behalf 
of an importer, such OEMs would be required to include all brand names 
and applicable basic model numbers for which the waiver will apply. DOE 
believes this requirement would assist the Department in identifying 
the market-based brand name of a basic model addressed by a waiver 
granted by DOE. This information should be identical to the information 
submitted in the certification report for a given basic model.
    DOE also proposes to amend sections 430.27(c) and 431.401(c) to 
require petitioners to notify, on publication of the waiver or interim 
waiver, all other manufacturers that manufacture products in the same 
product class as the basic models for which the petition for waiver or 
interim waiver was requested. In addition, if the technology or 
characteristic at issue in the petition is known by the petitioner to 
be used in multiple product classes, notification must also be sent to 
manufacturers of products in those other product classes. In many 
cases, notification of all manufacturers of the same product type, as 
set forth in sections 322 and 325 of EPCA, leads to over-notification. 
Therefore, DOE proposes to limit manufacturer notification to those 
manufacturers who manufacture products in the same product class as the 
basic model(s) specified in the waiver petition, as well as in other 
product classes where the technology or feature at issue in the waiver 
is used. In addition, DOE proposes to require notification upon 
publication of the interim waiver. DOE is proposing this

[[Page 74618]]

requirement to address manufacturer concerns about being required to 
notify other manufacturers (who are also likely to be competitors of 
the petitioner) prior to the marketing of the basic model(s) specified 
in the petition. Once a manufacturer receives an interim waiver, the 
basic model(s) covered in the interim waiver may be distributed in 
commerce, so competitive concerns are less likely to be an issue.
    Additionally, DOE proposes to amend sections 430.27(e) and 
431.401(e)(1) to state that, if administratively feasible, DOE will 
notify an applicant in writing of the disposition of the petition for 
interim waiver within 30 business days of receipt of the petition. 
While DOE will continue to notify applicants of its decisions on 
interim waivers as soon as possible, DOE's experience has been that 
providing a response within 15 business days is often not feasible.
    DOE would also amend sections 430.27(h) and 431.401(e)(4) to 
specify that an interim waiver would expire within 1 year of issuance 
unless either of the following occurs first: (1) DOE publishes a final 
decision and order in the Federal Register; or (2) DOE publishes a new 
or amended test procedure that addresses the issues presented in the 
waiver, and manufacturers are required to use that test procedure to 
demonstrate compliance with the applicable standard. This amendment 
will obviate the need for manufacturers to request an extension of the 
interim waiver after 180 days, while providing sufficient time for DOE 
to consider the issues presented in the petition and publish a decision 
and order or amend the test procedure to eliminate the continued need 
for the waiver. DOE further proposes to amend the existing 430.27(m) 
and 431.401(g) (which would be renumbered as 430.27(p) and 431.401(j)) 
to provide that, as soon as is practicable after DOE grants a waiver, 
DOE will publish a proposed rule to amend the relevant test procedure 
regulation to eliminate the need for the continuation of the waiver. 
The waiver would then terminate on the date when use of the amended 
test procedure is required to be used by manufacturers to demonstrate 
compliance with the applicable energy or water conservation standard. 
Continuation of the waiver until the date when use of an amended test 
procedure is required to demonstrate compliance, rather than the 
effective date of that test procedure (i.e., the date on which that 
procedure officially becomes part of the Code of Federal Regulations), 
will prevent situations where a waiver has expired while the test 
procedure is effective but its use is not yet required. DOE will 
continue to update its test procedures in a timely manner to address 
issues presented in petitions for waiver.
    DOE notes that the metrics for measuring energy or, where 
appropriate, water consumption or efficiency are established either by 
EPCA or in DOE rulemakings to set energy conservation standards for a 
particular covered product or type of covered equipment. Therefore, 
while a test procedure waiver or interim waiver can provide an 
alternate test method for a particular basic model, it is inappropriate 
for a waiver to provide an alternative metric by which to certify 
compliance with an applicable standard or make representations as to 
the energy and water use of that basic model. As a result, DOE proposes 
to amend sections 430.27(a) and 431.401(a) to clarify that a waiver or 
interim waiver cannot change the metric by which the energy use or 
efficiency of a basic model is described.
    DOE would also add new sections 430.27(m) and 431.401(g) that would 
specify how manufacturers would certify basic models identified in a 
petition for an interim waiver and waiver if the test procedure 
prescribed in the interim waiver differs from the test procedure 
prescribed in the subsequent decision and order on the waiver. DOE 
proposes that a manufacturer who has already certified basic models 
using the procedure permitted in DOE's grant of an interim test 
procedure waiver does not need to re-test and re-rate those basic 
models so long as certain criteria are met. The manufacturer would need 
to have used that alternative procedure after DOE granted the company's 
interim waiver request, and changes must not have been made to those 
basic models that would cause them to use more energy or otherwise be 
less energy efficient. In addition, when DOE publishes a decision and 
order on a petition for waiver in the Federal Register, a manufacturer 
must use the test procedure contained in that decision and order to 
rate any basic models covered by the decision and order that have not 
yet been certified to DOE. Finally, the test procedure in a decision 
and order must be used for all future testing for any basic models 
covered by the decision and order.
    DOE also proposes to add new sections 430.27(n) and 431.401(h) to 
specify that once DOE has granted a petition for waiver for a product 
or type of equipment employing a particular technology, other 
manufacturers of that product or equipment employing a technology or 
characteristic that results in the same need for a waiver, as specified 
by DOE in the published petition for waiver in the Federal Register, 
must submit a petition for waiver within 60 days. (Some recent examples 
of technologies or characteristics for which multiple manufacturers had 
the same need for a waiver include large-capacity clothes washers, 
refrigerator-freezers that employ multiple defrost cycles, and 
dishwashers with a water softener regeneration system.) This proposal 
is intended to ensure that all products employing technologies that 
cannot be tested under DOE's test procedure, or where testing products 
according to DOE's test procedure would lead to unrepresentative 
results, are rated in a comparable manner. This change would minimize 
public confusion regarding manufacturer representations of energy 
efficiency and would improve DOE's certification procedures for covered 
products and equipment.
    The proposed rule would also add new sections 430.27(o) and 
431.401(i) to set forth a process for manufacturers to request 
rescission or modification of a waiver if they determine that the 
waiver is no longer needed, or for other appropriate reasons. The 
provision would set forth the process for DOE to consider and, as 
appropriate, grant the requested rescission or modification. Subsequent 
to the effective date of a rescission or modification, the manufacturer 
would be required to use the applicable DOE test procedure. DOE also 
proposes to add language that would clarify that DOE may revoke or 
modify a waiver or interim waiver if it determines that the factual 
basis underlying the petition for waiver or interim waiver is 
incorrect, or upon a determination that the results from the alternate 
test procedure are unrepresentative of the basic models' true energy 
consumption characteristics. Additionally, the proposed rule allows for 
petitioners to request that DOE extend the scope of a waiver or interim 
waiver to include additional basic models employing the same technology 
as the basic models set forth in the original petition. Notice of any 
such extension would be published in the Federal Register.
    To keep the regulatory text current, DOE is also proposing to 
remove all references to the ``Assistant Secretary for Conservation and 
Renewable Energy'' in 10 CFR 430.27 and the ``Assistant Secretary for 
Energy Efficiency and Renewable Energy'' in 10 CFR 431.401 and replace 
these terms with ``DOE.''

[[Page 74619]]

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    Today's regulatory action is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, this 
action was not subject to review under that Executive Order by the 
Office of Information and Regulatory Affairs (OIRA) of the Office of 
Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule that by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
As required by E.O. 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site, http://energy.gov/gc/office-general-counsel.
    DOE reviewed the waiver requirements being proposed under the 
provisions of the Regulatory Flexibility Act and the procedures and 
policies published on February 19, 2003. DOE certifies that the 
proposed rule, if adopted, would not have a significant impact on a 
substantial number of small entities. The factual basis for this 
certification is set forth below.
    The proposed rule may affect small manufacturers of covered 
consumer products and commercial equipment. DOE does not, however, 
expect that the impact of the proposal would be significant. The 
regulatory provisions proposed would clarify the effect of the waiver 
(the waiver does not release a manufacturer from complying with the 
applicable standard and certification requirements) and the 
responsibility for compliance with the waiver provisions (the 
manufacturer is responsible for the compliance regardless of who 
submits the petition). The rule would also specify how manufacturers 
would certify basic models specified in a petition for an interim 
waiver and waiver if the test procedure prescribed in the interim 
waiver differs from the test procedure prescribed in the subsequent 
decision and order on the waiver. This proposed language clarifies 
existing regulatory requirements and does not add new regulatory 
burden. The reinstatement of the provisions of 10 CFR 430.27(b)(1) that 
were inadvertently removed is also not expected to impose a significant 
regulatory burden. These provisions require petitioners to: specify the 
basic model(s) to which the waiver applies, identify other 
manufacturers of similar products, include any known alternate test 
procedures of the basic model, sign the petition, and include a request 
seeking confidential treatment for any information deemed confidential. 
Manufacturers have already been complying with these requirements since 
they were enacted on November 26, 1986. 51 FR 42826.
    In addition, the new waiver requirements would require petitioners 
to specify the brand names under which a basic model would be sold and 
expand the eligibility for waivers to all types of commercial 
equipment. These requirements are not expected to result in a 
significant impact, as they are consistent with the purpose of the 
existing waiver process, which is to assist manufacturers in testing 
their equipment to demonstrate compliance with DOE standards. The new 
waiver requirements would also amend the timelines for the issuance of 
an interim waiver from 15 to 30 days, a provision that manufacturers 
can account for in their product development and marketing schedule 
without significant difficulty. The proposed requirements would also 
extend the time periods covered by an interim waiver or waiver, 
providing more certainty for manufacturers as they rate, certify and 
market their products. The new proposal to clarify that DOE would not 
change the established metric in a test procedure waiver is also not 
expected to result in a significant impact because the established 
metric is already required as a result of the applicable energy 
conservation standard.
    DOE also proposes to specify that once DOE has granted a petition 
for waiver for a product or type of equipment employing a particular 
technology, other manufacturers of that product or equipment employing 
a technology or characteristic that results in the same need for a 
waiver must submit a petition for waiver within 60 days. DOE does not 
expect this requirement to impose significant additional burden 
because, given that the products or equipment produced by these 
manufacturers employ a technology that provides the same function that 
led DOE to grant a waiver in the first instance, these manufacturers 
would likely need to petition for waiver under DOE's existing 
regulations. This provision indicates the timeframe in which this 
process must be completed.
    The proposed rule would also set forth a process for manufacturers 
to request rescission or modification of a waiver. This provision would 
allow manufacturers to notify DOE if they believe a previously granted 
waiver is no longer needed, or that rescission or modification is 
necessary for other appropriate reasons. The provision then sets forth 
the process for DOE to consider and, as appropriate, grant the request. 
The intent of this provision is to reduce manufacturer burden by 
providing a process for manufacturers to request rescission or 
modification of a waiver that they believe is inappropriate or 
unworkable. Similarly, the rule would provide a process by which DOE 
may revoke or modify a previously granted waiver if DOE determines that 
the factual basis underlying the petition for waiver or interim waiver 
is incorrect, or upon a determination that the results from the 
alternate test procedure are unrepresentative of the basic models' true 
energy consumption characteristics. In such cases, the manufacturer 
would be required to test its products or equipment using the DOE test 
procedure. DOE does not believe that this provision would result in a 
significant impact on small manufacturers. Given that a revocation or 
modification is only issued if the factual basis underlying the 
original petition was not correct in the first instance, EPCA would 
already require the manufacturers to use the applicable DOE test 
procedure.
    For the reasons stated above, DOE certifies that this proposed 
rule, if adopted, would not result in a significant impact on a 
substantial number of small entities. Accordingly, DOE has not prepared 
an initial regulatory flexibility analysis for this rulemaking. DOE 
will transmit this certification to the Small Business Administration 
(SBA) as required by 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement has been submitted to OMB for approval. Public 
reporting burden for the submission of a petition for waiver or interim 
waiver, or a request for rescission, is estimated to average 5 hours 
per response, including the time for reviewing

[[Page 74620]]

instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Building Technologies Program, EE-2J, 1000 Independence Avenue SW., 
Washington, DC 20585-0121 or [email protected], and by email to [email protected].
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act

    DOE has determined that this proposed rule falls into a class of 
actions that are categorically excluded from review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and DOE's 
implementing regulations at 10 CFR part 1021. Specifically, this 
proposed rule amends an existing rule without changing its 
environmental effect and, therefore, is covered by the Categorical 
Exclusion in 10 CFR part 1021, subpart D, paragraph A5. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

E. Review Under Executive Order 13132

    DOE reviewed this proposed rule pursuant to Executive Order 13132, 
``Federalism,'' 64 FR 43255 (August 4, 1999), which imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. In accordance with DOE's statement of policy describing 
the intergovernmental consultation process it will follow in the 
development of regulations that have federalism implications, 65 FR 
13735 (March 14, 2000), DOE examined today's proposed rule and 
determined that the rule would not have a substantial direct effect on 
the States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of Government. See 74 FR 61497. Therefore, DOE has taken 
no further action in today's proposed rule with respect to Executive 
Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729 (February 7, 1996)) imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed regulations meet the relevant standards 
of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4; 2 U.S.C. 1501, et seq.) requires each Federal agency to 
assess the effects of Federal regulatory actions on State, local, and 
Tribal governments and the private sector. For a proposed regulatory 
action likely to result in a rule that may cause the expenditure by 
State, local, and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year (adjusted 
annually for inflation), section 202 of UMRA requires a Federal agency 
to publish estimates of the resulting costs, benefits, and other 
effects on the national economy. (2 U.S.C. 1532(a),(b)) UMRA also 
requires a Federal agency to develop an effective process to permit 
timely input by elected officers of State, local, and Tribal 
governments on a proposed ``significant intergovernmental mandate,'' 
and requires an agency plan for giving notice and opportunity for 
timely input to potentially affected small governments before 
establishing any requirements that might significantly or uniquely 
affect such governments. On March 18, 1997, DOE published a statement 
of policy on its process for intergovernmental consultation under UMRA. 
62 FR 12820. (The policy is also available at http://energy.gov/gc/office-general-counsel.) Today's proposed rule contains neither an 
intergovernmental mandate nor a mandate that may result in an 
expenditure of $100 million or more in any year, so these requirements 
do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
Today's proposed rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 12630

    DOE determined under Executive Order 12630, ``Governmental Actions 
and Interference with Constitutionally Protected Property Rights,'' 53 
FR 8859 (March 18, 1988), that today's proposed rule would not result 
in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution. See 74 FR 61497-98.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR

[[Page 74621]]

8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 
62446 (October 7, 2002). DOE has reviewed today's proposed rule under 
OMB and DOE guidelines and has concluded that it is consistent with 
applicable policies in those guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use if the proposal is implemented, and 
of reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use. Today's proposed regulatory 
action, which proposes a correction and minor amendments to the 
Department's waiver application procedures, is not a significant 
regulatory action under Executive Order 12866, it would not have a 
significant adverse effect on the supply, distribution, or use of 
energy; and has not been designated by the Administrator of OIRA as a 
significant energy action. Therefore, it is not a significant energy 
action, and, accordingly, DOE has not prepared a Statement of Energy 
Effects.

V. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding the 
proposed rule no later than the date provided at the beginning of this 
notice. Comments, data, and information submitted to DOE's email 
address for this rulemaking should be provided in WordPerfect, 
Microsoft Word, PDF, or text (ASCII) file format. Interested parties 
should avoid the use of special characters or any form of encryption, 
and, wherever possible, comments should include the electronic 
signature of the author. Absent an electronic signature, comments 
submitted electronically must be followed and authenticated by 
submitting a signed original paper document to the address provided at 
the beginning of this notice. Comments, data, and information submitted 
to DOE via mail or hand delivery/courier should include one signed 
original paper copy. No telefacsimiles (faxes) will be accepted.
    According to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit two copies: one copy of the document including 
all the information believed to be confidential and one copy of the 
document with the information believed to be confidential deleted. DOE 
will make its own determination as to the confidential status of the 
information and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include (1) a description of the 
items, (2) whether and why such items are customarily treated as 
confidential within the industry, (3) whether the information is 
generally known by or available from other sources, (4) whether the 
information has previously been made available to others without 
obligation concerning its confidentiality, (5) an explanation of the 
competitive injury to the submitting person which would result from 
public disclosure, (6) a date upon which such information might lose 
its confidential nature due to the passage of time, and (7) why 
disclosure of the information would be contrary to the public interest.

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's NOPR.

List of Subjects

10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Intergovernmental relations, Small businesses.

10 CFR Part 431

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on November 21, 2012.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    For the reasons stated in the preamble, DOE is proposing to amend 
chapter II, subchapter D, of title 10 of the Code of Federal 
Regulations, to read as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

    1. The authority citation for part 430 continues to read as 
follows:

    Authority:  42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

    2. Section 430.27 is amended by:
    a. Revising the section heading;
    b. Adding introductory text to paragraph (a);
    c. Adding a paragraph (a)(3);
    d. Revising paragraphs (b), (c), (e), (g), (h), (i), (j) and (l);
    e. Redesignating paragraphs (m) and (n) as paragraphs (p) and (q);
    f. Adding paragraphs (m), (n) and (o); and
    g. Revising newly redesignated paragraphs (p) and (q).
    The addition and revisions read as follows:


Sec.  430.27  Petitions for waiver and interim waiver.

    (a) This section provides a means for manufacturers of covered 
products to seek waivers of the test procedure requirements of this 
subpart for basic models that meet the requirements of paragraph (a)(1) 
of this section. In granting a waiver or interim waiver, DOE will not 
change the energy use or efficiency metric that the manufacturer must 
use to certify compliance with the applicable energy conservation 
standard or make representations about the energy use or efficiency of 
the covered product. The granting of a waiver or interim waiver by DOE 
requires the use of the specified alternative method for testing the 
basic models addressed in the waiver, and does not exempt such basic 
models from any other regulatory requirement contained in this part or 
the certification and compliance requirements of 10 CFR part 429. * * *
* * * * *
    (3) Manufacturers of basic model(s) covered by a waiver or interim 
waiver are responsible for complying with the other requirements of 
this subpart and with the requirements of 10 CFR part 429 regardless of 
the person that originally submitted the petition for waiver and/or 
interim waiver.

[[Page 74622]]

    (b)(1) A petition for waiver shall be submitted either 
electronically to [email protected] (preferred method of 
transmission) or by mail to U.S. Department of Energy, Building 
Technologies Program, Test Procedure Waiver, 1000 Independence Avenue 
SW., Mailstop EE-2J, Washington, DC 20585-0121. Each petition for 
waiver shall:
    (i) Identify the particular basic model(s) for which a waiver is 
requested, each brand name under which the identified basic model(s) 
will be distributed in commerce, design characteristic(s) constituting 
the grounds for the petition, and the specific requirements sought to 
be waived and shall discuss in detail the need for the requested 
waiver;
    (ii) Identify manufacturers of all other basic models distributed 
in commerce in the United States and known to the petitioner to 
incorporate similar design characteristic(s);
    (iii) Include any alternate test procedures known to the petitioner 
to evaluate the performance of the product type in a manner 
representative of the energy consumption characteristics, or water 
consumption characteristics of the basic model; and
    (iv) Be signed by the petitioner or by an authorized 
representative. In accordance with the provisions set forth in 10 CFR 
1004.11, any request for confidential treatment of any information 
contained in a petition for waiver or in supporting documentation must 
be accompanied by a copy of the petition, application or supporting 
documentation from which the information claimed to be confidential has 
been deleted. DOE shall publish in the Federal Register the petition 
and supporting documents from which confidential information, as 
determined by DOE, has been deleted in accordance with 10 CFR 1004.11 
and shall solicit comments, data and information with respect to the 
determination of the petition. Any person submitting written comments 
to DOE with respect to a Petition for Waiver shall also send a copy of 
such comments to the petitioner. In accordance with paragraph (i) of 
this section, a petitioner may submit a rebuttal statement to DOE.
    (2) A petition for interim waiver shall be submitted either 
electronically to [email protected] or by mail to U.S. 
Department of Energy, Building Technologies Program, Test Procedure 
Waiver, 1000 Independence Avenue SW., Mailstop EE-2J, Washington, DC 
20585-0121. Each petition for interim waiver shall reference the 
related petition for waiver by identifying the particular basic 
model(s) for which a waiver is being sought. Each petition for interim 
waiver shall demonstrate likely success of the petition for waiver. 
Each petition for interim waiver shall be signed by the applicant or by 
an authorized representative.
    (c)(1) Each petitioner for interim waiver shall, upon publication 
of a grant of an interim waiver in the Federal Register, notify in 
writing all known manufacturers of domestically marketed basic models 
of the same product class (as specified in 10 CFR 430.32) and of other 
product classes known to the petitioner to use the technology or have 
the characteristic at issue in the waiver. The notice shall include a 
statement that DOE has published the interim waiver and petition for 
waiver in the Federal Register and the date the petition for waiver was 
published. The notice must also include a statement that DOE will 
receive and consider timely written comments on the petition for 
waiver. Within five working days, each petitioner shall file with DOE a 
statement certifying the names and addresses of each person to whom a 
notice of the petition for waiver has been sent.
    (2) If a petitioner does not request an interim waiver and 
notification has not been provided pursuant to paragraph (c)(1), each 
petitioner, after filing a petition for waiver with DOE, and after the 
petition for waiver has been published in the Federal Register, shall, 
within five working days of such publication, notify in writing all 
known manufacturers of domestically marketed units of the same product 
class (as listed in 10 CFR 430.32) and of other product classes known 
to petitioner to use the technology or have the characteristic at issue 
in the waiver. The notice shall include a statement that DOE has 
published the petition in the Federal Register and the date the 
petition for waiver was published. Within five working days of the 
publication of the petition in the Federal Register, each petitioner 
shall file with DOE a statement certifying the names and addresses of 
each person to whom a notice of the petition for waiver has been sent.
* * * * *
    (e) If administratively feasible, a petitioner shall be notified in 
writing of the disposition of the petition for interim waiver within 30 
business days of receipt of the petition. Notice of DOE's determination 
on the petition for interim waiver shall be published in the Federal 
Register.
* * * * *
    (g) An interim waiver from the test procedure requirements will be 
granted by DOE if it appears likely that the petition for waiver will 
be granted, and/or DOE determines that it would be desirable for public 
policy reasons to grant immediate relief pending a determination on the 
petition for waiver.
    (h)(1) An interim waiver will terminate one year after publication 
in the Federal Register unless either of the following occurs first:
    (i) DOE publishes in the Federal Register a determination on the 
petition for waiver; or
    (ii) DOE publishes in the Federal Register a new or amended test 
procedure that addresses the issues presented in the waiver, and 
manufacturers are required to use that test procedure to demonstrate 
compliance with the applicable standard.
    (2) DOE may extend the scope of an interim waiver upon request of 
the petitioner to include additional basic models employing the same 
technology as the basic models set forth in the original petition. DOE 
shall publish any such extension in the Federal Register.
    (i) Following publication of the petition for waiver in the Federal 
Register, a petitioner may, within 10 working days of receipt of a copy 
of a comment submitted in accordance with paragraph (b)(1) of this 
section, submit a rebuttal statement to DOE. A petitioner may rebut 
more than one response in a single rebuttal statement.
    (j) The petitioner shall be notified in writing as soon as 
practicable of the disposition of each petition for waiver. DOE shall 
issue a decision on the petition as soon as is practicable following 
receipt and review of the Petition for Waiver and other applicable 
documents, including, but not limited to, comments and rebuttal 
statements.
* * * * *
    (l) Waivers will be granted by DOE if it is determined either that 
the basic model(s) for which the waiver was requested contains a design 
characteristic that prevents testing of the basic model according to 
the prescribed test procedures, or that the prescribed test procedures 
may evaluate the basic model in a manner so unrepresentative of its 
true energy or water consumption characteristics as to provide 
materially inaccurate comparative data. Waivers may be granted subject 
to conditions, which may include adherence to alternate test procedures 
specified by DOE. DOE shall consult with the Federal Trade Commission 
prior to granting any waiver, and shall promptly

[[Page 74623]]

publish in the Federal Register notice of each waiver granted or 
denied, and any limiting conditions of each waiver granted. DOE may 
extend the scope of a waiver upon request of the petitioner to include 
additional basic models employing the same technology as the basic 
models set forth in the original petition. Notification of such 
extension will be published in the Federal Register.
    (m)(1) If the alternate test procedure specified in the interim 
waiver differs from the alternate test procedure specified by DOE in a 
subsequent decision and order granting the petition for waiver, a 
manufacturer who has already certified basic models using the procedure 
permitted in DOE's grant of an interim test procedure waiver does not 
need to re-test and re-rate those basic models so long as:
    (i) The manufacturer used that alternative procedure to certify the 
compliance of the basic model after DOE granted the company's interim 
waiver request;
    (ii) Changes have not been made to those basic models that would 
cause them to use more energy or otherwise be less energy efficient; 
and
    (iii) The manufacturer does not modify the certified rating.
    (2) After DOE publishes a decision and order in the Federal 
Register, a manufacturer must use the test procedure contained in that 
notice to rate any basic models covered by the waiver that have not yet 
been certified to DOE and for any future testing in support of the 
certification for the basic model(s).
    (n) Not later than 60 days after DOE grants a petition for waiver 
for a product employing a particular technology or having a particular 
characteristic, any manufacturer of that product employing a technology 
or characteristic that results in the same need for a waiver, as 
specified by DOE in the published petition for waiver in the Federal 
Register, must submit a petition for waiver pursuant to the 
requirements of this section. Manufacturers may also submit a request 
for interim waiver pursuant to the requirements of this section.
    (o)(1) Waivers and interim waivers are conditioned upon the 
validity of statements, representations, and documents provided by the 
petitioner. DOE may revoke or modify a waiver or interim waiver at any 
time upon a determination that the factual basis underlying the 
petition for waiver or interim waiver is incorrect, or upon a 
determination that the results from the alternate test procedure are 
unrepresentative of the basic models' true energy consumption 
characteristics. DOE will publish any proposed rescission or 
modification in the Federal Register for public comment. DOE will also 
publish its decision in the Federal Register.
    (2) Petitioners may request that DOE rescind or modify a waiver or 
interim waiver if the petitioner discovers an error in the information 
provided to DOE as part of its petition, determines that the waiver is 
no longer needed, or for other appropriate reasons. DOE will publish 
any request for rescission or modification in the Federal Register for 
public comment. DOE will also publish its decision on the request in 
the Federal Register. The decision shall be based on relevant 
information contained in the record and any comments received. Basic 
models tested subsequent to the effective date of a rescission must be 
tested using the applicable DOE test procedure in 10 CFR part 430.
    (p) As soon as practicable after the granting of any waiver, DOE 
will publish in the Federal Register a notice of proposed rulemaking to 
amend its regulations so as to eliminate any need for the continuation 
of such waiver. As soon thereafter as practicable, DOE will publish in 
the Federal Register a final rule. Such waiver will terminate on the 
date on which use of the test procedure established in such final rule 
is required to demonstrate compliance with the applicable conservation 
standard.
    (q) In order to exhaust administrative remedies, any person 
aggrieved by an action under this section must file an appeal with the 
DOE's Office of Hearings and Appeals as provided in 10 CFR part 1003, 
subpart C.

PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND 
INDUSTRIAL EQUIPMENT

    3. The authority citation for part 431 continues to read as 
follows:

    Authority:  42 U.S.C. 6291-6317.

    4. Section 431.2 is amended by revising the definition of ``Private 
labeler'' to read as follows:


Sec.  431.2  Definitions.

* * * * *
    Private labeler means, with respect to any product covered under 
this part, an owner of a brand or trademark on the label of a covered 
product which bears a private label. A covered product bears a private 
label if:
    (1) Such product (or its container) is labeled with the brand or 
trademark of a person other than a manufacturer of such product;
    (2) The person with whose brand or trademark such product (or 
container) is labeled has authorized or caused such product to be so 
labeled; and
    (3) The brand or trademark of a manufacturer of such product does 
not appear on such label.
* * * * *
    5. Section 431.401 is amended by:
    a. Revising the section heading;
    b. Adding introductory text to paragraph (a);
    c. Revising paragraph (a)(1);
    d. Adding paragraph (a)(3);
    e. Revising paragraphs (b)(1) introductory text, (b)(1)(i), (b)(2), 
(c), (d)(2), (e)(1), (e)(3), and (e)(4);
    f. Adding paragraph (e)(5);
    g. Revising paragraphs (f)(1), (f)(2), and (f)(4);
    h. Adding paragraph (f)(5);
    i. Redesignating paragraph (g) as (j);
    j. Adding paragraphs (g), (h), and (i);
    k. Revising newly redesignated paragraph (j); and
    l. Adding a new paragraph (k).
    The additions and revisions read as follows:


Sec.  431.401  Petitions for waiver and interim waiver.

    (a) General criteria. This section provides a means for 
manufacturers of covered equipment to seek waivers of the test 
procedure requirements of this part for basic models that meet the 
requirements of paragraph (a)(1) of this section. In granting a waiver 
or interim waiver, DOE will not change the energy use or efficiency 
metric that the manufacturer must use to certify compliance with the 
applicable energy conservation standard or make representations about 
the energy use or efficiency of the covered equipment. The granting of 
a waiver or interim waiver requires the use of the specified 
alternative method for testing the basic models addressed in the 
waiver, and does not exempt such basic models from any other regulatory 
requirement contained in this part or the certification and compliance 
requirements of 10 CFR part 429.
    (1) Any interested person may submit a petition to waive for a 
particular basic model the requirements of any uniform test method 
contained in this part, upon the grounds that either the basic model 
contains one or more design characteristics that prevent testing of the 
basic model according to the prescribed test procedures, or the 
prescribed test procedures may evaluate the basic model in a manner so 
unrepresentative of its true energy consumption characteristics as to 
provide materially inaccurate comparative data.
* * * * *

[[Page 74624]]

    (3) Manufacturers of basic model(s) covered by a waiver or interim 
waiver are responsible for complying with the other requirements of 
this part and with the requirements of 10 CFR part 429 regardless of 
the person that originally submitted the petition for waiver and 
interim waiver.
    (b) Submission, content, and publication. (1) A petition for waiver 
shall be submitted either electronically to [email protected] (preferred method of transmission) or by mail to 
U.S. Department of Energy, Building Technologies Program, Test 
Procedure Waiver, 1000 Independence Avenue SW., Mailstop EE-2J, 
Washington, DC 20585-0121. Each petition for waiver shall:
    (i) Identify the particular basic model(s) for which a waiver is 
requested, each brand name under which the identified basic model(s) 
will be distributed in commerce, the design characteristic(s) 
constituting the grounds for the petition, and the specific 
requirements sought to be waived, and discuss in detail the need for 
the requested waiver;
* * * * *
    (2) Petitions for interim waiver shall be submitted by email to 
[email protected] or (preferred method of transmission), 
or by mail to U.S. Department of Energy, Building Technologies Program, 
Test Procedure Waiver, 1000 Independence Avenue SW., Mailstop EE-2J, 
Washington, DC 20585-0121. Each petition for interim waiver must 
reference the petition for waiver by identifying the particular basic 
model(s) for which a waiver is being sought. Each petition for interim 
waiver must demonstrate likely success of the petition for waiver and 
address what economic hardship and/or competitive disadvantage is 
likely to result absent a favorable determination on the petition for 
interim waiver. Each petition for interim waiver shall be signed by the 
petitioner or an authorized representative.
    (c) Notification to other manufacturers. (1) Each petitioner for 
interim waiver shall, upon publication of a grant of an interim waiver 
in the Federal Register, notify in writing all known manufacturers of 
domestically marketed units of the same equipment class (as set forth 
in the relevant subpart of 10 CFR part 431), and of other equipment 
classes known to the petitioner to use the technology or characteristic 
at issue in the waiver. The notice must include a statement that DOE 
has published the interim waiver and petition for waiver in the Federal 
Register and the date the petition for waiver was published. The notice 
must also include a statement that DOE will receive and consider timely 
written comments on the petition for interim waiver. Within five 
working days, each petitioner must file with DOE a statement certifying 
the names and addresses of each person to whom a notice of the petition 
for waiver has been sent.
    (2) If a manufacturer does not request an interim waiver and 
notification has not been provided pursuant to paragraph (1), each 
petitioner, after filing a petition for waiver with DOE, and after the 
petition for waiver has been published in the Federal Register, shall, 
within five working days of such publication, notify in writing all 
known manufacturers of domestically marketed units of the same 
equipment class (as listed in the relevant subpart of 10 CFR part 431), 
and of other product classes known to the petitioner to use the 
technology or characteristic at issue in the waiver. The notice shall 
include a statement that DOE has published in the Federal Register on a 
certain date the petition for waiver and supporting documents from 
which confidential information, if any, as determined by DOE, has been 
deleted in accordance with 10 CFR 1004.11. Each petitioner shall file 
with DOE a statement certifying the names and addresses of each person 
to whom a notice of the petition for waiver has been sent.
    (d) * * *
    (2) Any person submitting written comments to DOE with the respect 
to a petition for waiver must also send a copy of such comments to the 
petitioner. In accordance with paragraph (b)(1) of this section, a 
petitioner may submit a rebuttal statement to DOE.
    (e) Provisions specific to interim waivers--(1) Disposition of 
application. If administratively feasible, DOE will notify the 
applicant in writing of the disposition of the petition for interim 
waiver within 30 business days of receipt of the application. Notice of 
DOE's determination on the petition for interim waiver will be 
published in the Federal Register.
* * * * *
    (3) Criteria for granting. DOE will grant an interim waiver from 
test procedure requirements if it appears likely that the petition for 
waiver will be granted, and/or if DOE determines that it would be 
desirable for public policy reasons to grant immediate relief pending a 
determination on the petition for waiver.
    (4) Duration. An interim waiver will terminate one year after 
publication in the Federal Register unless either of the following 
occurs first:
    (i) DOE publishes in the Federal Register a determination on the 
petition for waiver; or
    (ii) DOE publishes in the Federal Register a new or amended test 
procedure that addresses the issues presented in the waiver, and 
manufacturers are required to use that test procedure to demonstrate 
compliance with the applicable standard.
    (5) Extension to additional basic models. DOE may extend the scope 
of an interim waiver upon request of the petitioner to include 
additional basic models employing the same technology as the basic 
models set forth in the original petition. Notification of such 
extension will be published in the Federal Register.
    (f) * * *
    (1) Rebuttal by petitioner. Following publication of the petition 
for waiver in the Federal Register, a petitioner may, within 10 working 
days of receipt of a copy of any comments submitted in accordance with 
paragraph (b)(1) of this section, submit a rebuttal statement to DOE. A 
petitioner may rebut more than one response in a single rebuttal 
statement.
    (2) Disposition of petition. DOE will notify the petitioner in 
writing as soon as practicable of the disposition of each petition for 
waiver. DOE will issue a decision on the petition as soon as is 
practicable following receipt and review of the petition for waiver and 
other applicable documents, including, but not limited to, comments and 
rebuttal statements.
* * * * *
    (4) Granting: criteria, conditions, and publication. DOE will grant 
a waiver if it determines that either the basic model for which the 
waiver was requested contains a design characteristic that prevents 
testing of the basic model according to the prescribed test procedures, 
or the prescribed test procedures may evaluate the basic model in a 
manner so unrepresentative of its true energy consumption 
characteristics as to provide materially inaccurate comparative data. 
DOE may grant a waiver subject to conditions, which may include 
adherence to alternate test procedures. DOE will promptly publish in 
the Federal Register notice of each waiver granted or denied, and any 
limiting conditions of each waiver granted. In granting a waiver, DOE 
will not change the energy use or efficiency metric that the 
manufacturer must use to certify compliance with the applicable energy

[[Page 74625]]

conservation standard or make representations about the energy use or 
efficiency of the covered product.
    (5) Extension to additional basic models. DOE may extend the scope 
of a waiver upon request of the petitioner to include additional basic 
models employing the same technology as the basic models set forth in 
the original petition. Notification of such extension will be published 
in the Federal Register.
    (g) If the alternate test procedure specified in the interim waiver 
differs from the alternate test procedure specified by DOE in the 
subsequent decision and order granting the petition for waiver, a 
manufacturer who has already certified basic models using the procedure 
permitted in DOE's grant of an interim test procedure waiver does not 
need to re-test and re-rate those basic models so long as:
    (1) The manufacturer used that alternative procedure after DOE 
granted the company's interim waiver request; and
    (2) Changes have not been made to those basic models that would 
cause them to use more energy or otherwise be less energy efficient.
    (3) After DOE publishes a decision and order in the Federal 
Register, a manufacturer must use the test procedure contained in that 
notice to rate any basic models that have not yet been certified to DOE 
and for any future testing of any basic model(s) covered by the 
decision and order.
    (h) Not later than 60 days after DOE grants a petition for waiver 
for a type of equipment employing a particular technology or 
characteristic, any manufacturer of that equipment employing a 
technology or characteristic that results in the same need for a 
waiver, as specified by DOE in the published petition for waiver in the 
Federal Register, must submit a petition for waiver pursuant to the 
requirements of this section. Manufacturers may also submit a request 
for interim waiver pursuant to the requirements of this section.
    (i)(1) Waivers and interim waivers are conditioned upon the 
presumed validity of statements, representations, and documents 
provided by the petitioner. DOE may revoke or modify a waiver or 
interim waiver at any time upon a determination that the factual basis 
underlying the petition for waiver or interim waiver is incorrect, or 
upon a determination that the results from the alternate test procedure 
are unrepresentative of the basic models' true energy consumption 
characteristics. DOE will publish any proposed rescission or 
modification in the Federal Register for public comment. DOE will also 
publish its decision in the Federal Register.
    (2) Petitioners may request that DOE rescind or modify a waiver or 
interim waiver if the petitioner discovers an error in the information 
provided to DOE as part of its petition, determines that the waiver is 
no longer needed, or for other appropriate reasons. DOE will publish 
any request for rescission or modification in the Federal Register for 
public comment. DOE will also publish its decision on the request in 
the Federal Register. The decision shall be based on relevant 
information contained in the record and any comments received. Basic 
models tested subsequent to the effective date of a rescission must be 
tested using the applicable DOE test procedure.
    (j) Revision of regulation. As soon as practicable after the 
granting of any waiver, DOE will publish in the Federal Register a 
notice of proposed rulemaking to amend its regulations so as to 
eliminate any need for the continuation of such waiver. As soon 
thereafter as practicable, DOE will publish in the Federal Register a 
final rule. Such waiver will terminate on the date on which use of the 
test procedure established in such final rule is required to 
demonstrate compliance with the applicable conservation standard.
    (k) In order to exhaust administrative remedies, any person 
aggrieved by an action under this section must file an appeal with the 
DOE's Office of Hearings and Appeals as provided in 10 CFR part 1003, 
subpart C.

[FR Doc. 2012-30195 Filed 12-14-12; 8:45 am]
BILLING CODE 6450-01-P