Amendments and Correction to Petitions for Waiver and Interim Waiver for Consumer Products and Commercial and Industrial Equipment, 26591-26603 [2014-10684]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 79, Number 90 (Friday, May 9, 2014)]
[Rules and Regulations]
[Pages 26591-26603]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10684]


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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: Final rule.

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SUMMARY: In this final rule, DOE amends portions of its regulations 
governing petitions for waiver and interim waiver from DOE test 
procedures to restore, with minor amendments, text inadvertently 
omitted in the March 7, 2011 certification, compliance, and enforcement 
final rule. Additionally, the rule adopts a process by which other 
manufacturers of a product employing a specific technology or 
characteristic, for which DOE has granted a waiver to another 
manufacturer for a product employing that particular technology, would 
be required to petition for a waiver. The 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; adopts other minor modifications to the 
waiver provisions for both consumer products and industrial equipment; 
and clarifies certain aspects related to the submission and processing 
of a waiver petition.

DATES: The effective date of this rule is June 9, 2014.

ADDRESSES: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at regulations.gov. All documents in the docket are listed in 
the regulations.gov index. However, some documents listed in the index, 
such as those containing information that is exempt from public 
disclosure, may not be publicly available.
    A link to the docket Web page can be found at: https://www.regulations.gov/#!docketDetail;D=EERE-2012-BT-TP-0003. This Web 
page will contain a link to the docket for this notice on the 
regulations.gov site. The regulations.gov Web page will contain simple 
instructions on how to access all documents, including public comments, 
in the docket.
    For further information on how to review the docket, contact Ms. 
Brenda Edwards at (202) 586-2945 or by email: 
Brenda.Edwards@ee.doe.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. Phone: 202-586-6590. Email: AS_Waiver_Requests@ee.doe.gov.
    Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the 
General Counsel, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Phone: 202-586-7796. Email: Elizabeth.Kohl@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Authority

    Title III of the Energy Policy and Conservation Act of 1975 
(``EPCA'' or the ``Act''), Public Law 94-163 (42 U.S.C. 6291 et seq.), 
as amended,\1\ sets forth a variety of provisions designed to improve 
energy efficiency. Part A of Title III (42 U.S.C. 6291-6309) provides

[[Page 26592]]

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) \2\
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    \1\ All references to EPCA in this final rule refer to the 
statute as amended through the American Energy Manufacturing 
Technical Corrections Act (AEMTCA), Public Law 112-210 (Dec. 18, 
2012).
    \2\ 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.
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    This final rule involves the regulatory provisions governing the 
submission and processing of test procedure waivers for both consumer 
products under Part A of EPCA and industrial 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 product or 
equipment, or where use of the DOE test procedure would generate 
unrepresentative results.

II. Background

    On December 17, 2012, DOE published a notice of proposed rulemaking 
(NOPR) (77 FR 74616) to propose amendments and corrections to portions 
of its regulations governing petitions for waiver and interim waiver 
from DOE test procedures. The NOPR proposed to restore, with minor 
amendments, text inadvertently omitted during another rulemaking and 
proposed a process by which, 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. The NOPR also 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. DOE also proposed 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. This final rule adopts, 
with minor modifications, those proposals. The amendments are described 
in more detail in Section III.

III. Discussion of Specific Revisions to Waiver Provisions

    In this final rule, DOE is adding an introductory paragraph to 
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. While a 
test procedure waiver or interim waiver provides an alternate test 
method for a particular basic model, a waiver cannot provide an 
alternative metric by which to certify compliance with an applicable 
standard or make representations as to the energy and/or water use of 
that basic model. The modifications to sections 430.27(a) and 
431.401(a) clarify that a waiver or interim waiver cannot change the 
metric by which the energy use or efficiency of a basic model is 
described. This language affirms that a waiver is solely an 
authorization to use an alternative test method and does not relieve 
the manufacturer from any other regulatory requirements. The 
Association of Home Appliance Manufacturers (AHAM) commented that this 
clarification represents AHAM's understanding of current practice and, 
thus, did not oppose adding the express statements to the regulations. 
(AHAM, No. 4 at p. 2)
    With regard to waiver applications for commercial equipment 
addressed in part 431, DOE is modifying section 431.401(a)(1) to expand 
the waiver provisions to apply to manufacturers of all types of covered 
commercial equipment, rather than just the five types of equipment 
currently listed (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); 
collectively, commercial HVAC and WH equipment). As a related action, 
DOE is amending 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 equipment, as the 
definition currently states. Because 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. AHAM 
supported DOE extending the ability to obtain waivers to manufacturers 
of other commercial equipment, such as commercial clothes washers. 
(AHAM, No. 4 at p. 7) AHAM also stated that it did not oppose DOE 
amending the definition of private labeler in part 431. (AHAM, No. 4 at 
p. 7)
    DOE has redesignated existing sections 430.27(f) and (k) into 
430.27(a)(2), and 431.401(e)(2) and 431.401(f)(3) into 431.401(a)(2). 
To clarify compliance obligations further, DOE is amending sections 
430.27(a)(2) and 431.401(a)(2) to specify 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 clarifies that the compliance burden is on the 
manufacturer, regardless of which entity submits the waiver. AHAM 
commented that it supports the additional language, which reflects 
AHAM's current understanding. (AHAM, No. 4 at p. 2)
    DOE is restoring, with minor amendments, provisions inadvertently 
omitted from section 430.27(b)(1) in a separate rulemaking process. On 
March 7, 2011, DOE published a final rule titled ``Energy Conservation 
Program: Certification, Compliance, and Enforcement for Consumer 
Products and Commercial and Industrial Equipment.'' 76 FR 12422. Among 
other things, the 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. Due to a drafting oversight, 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, were deleted from the current regulatory text. In particular, 
the provisions required 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 (4) sign the petition, and (5) include any request for 
confidential treatment for any information deemed confidential. AHAM 
commented that it supports restoring the omitted language. (AHAM, No. 4 
at p. 2) This final rule

[[Page 26593]]

adopts these provisions with a minor modification to item (3) to 
specify that the alternate TP(s) must be specific to the product type.
    This final rule also amends 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. This amendment does not prohibit 
third party representatives such as original equipment manufacturers 
(``OEMs'') from submitting waiver applications on behalf of an 
importer; however, such OEMs are required to include all brand names 
and applicable basic model numbers for which the waiver will apply. 
This requirement will assist the Department in identifying the market-
based brand name of a basic model addressed by a waiver granted by DOE. 
This information must be identical to the information submitted in the 
certification report for a given basic model. AHAM commented that it 
did not oppose the addition of brand information as part of a waiver 
petition. (AHAM, No. 4 at p. 2)
    In many cases, notification of all manufacturers of the same 
product type, as currently required, leads to over-notification. 
Therefore, DOE is modifying 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 or equipment class as the basic model(s) for which the petition 
for waiver or interim waiver was requested. 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. This final 
rule requires notification upon publication of the interim waiver, 
which addresses 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 and 
certifies compliance to DOE, the basic model(s) covered in the interim 
waiver may be distributed in commerce, so competitive concerns are less 
likely to be an issue. AHAM commented that it supports DOE's proposal 
and agreed that the change to the manufacturer notification 
requirements should help alleviate manufacturer concerns about 
notifying competitors prior to the marketing of new basic models. 
(AHAM, No. 4 at p. 2)
    DOE has redesignated existing section 430.27(i) into paragraph 
430.27(d)(3), and 431.401(f)(1) into paragraph 431.401(d)(3). DOE's 
experience has been that providing written notification to a petitioner 
of DOE's decision on a request for an interim waiver within 15 business 
days of receiving the petition is often not feasible. Therefore, DOE 
proposed to amend sections 430.27(e)(1) 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. AHAM opposed DOE lengthening 
the time for a decision on a petition for interim waiver. (AHAM, No. 4 
at p. 3) AHAM commented that the waiver and interim waiver processes 
take too long and that DOE should attempt to shorten the process. 
(AHAM, No. 4 at p. 3) AHAM also commented that manufacturers seeking 
waivers need swift decisions to bring products to market and that 
further delay by DOE prevents timely introduction of products to 
market. (AHAM, No. 4 at p. 3)
    DOE recognizes the importance of timely processing of waiver 
applications and will continue to notify applicants of its decisions on 
interim waivers as soon as possible. Similarly, a manufacturer should 
petition for a waiver as soon as it realizes that a design (possibly a 
prototype) either cannot be tested under the DOE test procedure or that 
the test procedure yields results that are not representative of the 
model's actual energy consumption. In addition, manufacturers may speed 
processing of their petitions by providing all of the required 
information, including proposing a complete, alternative test method at 
the time the initial application is submitted. Submission of any 
relevant test data would also be helpful. Manufacturers may also 
facilitate review by providing an explanation of why the proposed test 
method more accurately represents the energy consumption of the basic 
model. Many of the delays in processing arise from iterative efforts by 
the Department to obtain sufficient information upon which to base a 
decision to grant an interim waiver. More importantly, the Department 
has an obligation to ensure that alternative test methods authorized by 
the Department yield measurements of energy consumption that are 
representative of actual performance. Such a determination requires 
careful analysis and sometimes requires testing by DOE even if the 
manufacturer provides test data with their submission. DOE has found 
that 15 days is not typically sufficient to perform the necessary 
review and is amending the regulation to set forth a time frame that is 
more likely to be feasible. In addition, because manufacturers 
routinely represent that their product development cycles are often in 
excess of a year, DOE concludes that 30 business days is a reasonable 
time frame for review of a petition for an alternative test method. 
Accordingly, DOE is amending sections 430.27(e)(1) 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. DOE encourages 
manufacturers to submit a petition early to avoid any impact on product 
release and expects that the modification to the notification 
requirements (discussed above) will facilitate early submittal of 
petitions to the Department by eliminating some of the concerns related 
to advance notification of competitors.
    In the NOPR, DOE proposed to amend existing sections 430.27(h) and 
431.401(e)(4) (which are now sections 430.27(h)(1) and 431.401(h)(1)) 
to specify that an interim waiver expires within one (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. 
77 FR 74618. AHAM opposed the proposal to extend the expiration date of 
interim waivers. (AHAM, No. 4 at p. 3) AHAM urged DOE to complete the 
waiver process in a more timely fashion to avoid delaying the time to 
market. (AHAM, No. 4 at p. 3) AHAM acknowledged that it could decrease 
manufacturer burden in cases where an extension of an interim waiver is 
necessary, but emphasized that keeping the timeline as short as 
possible is more important, saying that the best way to mitigate 
manufacturer burden is to make an extension of an interim waiver 
unnecessary by issuing a final decision and order. (AHAM, No. 4 at p. 
3)
    DOE will continue to process petitions for waivers as quickly as 
possible and notes that the 1-year time period is not significantly 
different from the existing regulatory provisions specifying that an 
interim waiver is valid for 180 days but can be extended for an 
additional 180 days. As discussed below, DOE is clarifying in this rule 
that testing of a basic model conducted under an interim waiver is 
valid for

[[Page 26594]]

certification of compliance, alleviating AHAM's concern that any 
additional time needed for DOE to issue a final decision and order will 
impact the ability of a manufacturer to sell a product. This amendment 
obviates 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. In response to AHAM's comment, DOE is amending sections 
430.27(h)(1) and 431.401(h)(1) to provide that if DOE has not, within 
the 1-year period, published a new or amended test procedure that 
addresses the issues presented in the waiver and that manufacturers are 
required to use to demonstrate compliance with the applicable standard, 
than DOE will issue a final decision and order on the petition.
    DOE is adding new paragraphs 430.27(i) and 431.401(i) to specify 
the applicability of waivers (interim and final) with respect to 
determining and certifying compliance. The new paragraphs explain how 
manufacturers must determine the compliance of basic models subject to 
an interim waiver or 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. A manufacturer who has 
already certified basic models using the procedure permitted in DOE's 
grant of an interim test procedure waiver is not required to re-test 
those basic models so long as certain criteria are met. However, if 
specified by DOE in the decision and order, by the time of the next 
annual certification the manufacturer must re-test and re-certify 
compliance using the procedure specified by DOE in the decision and 
order. 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. AHAM agreed that clarification of the certification 
process where interim waivers are involved is helpful and supported the 
process described above as an appropriate way to address the situation 
in which a subsequent decision and order differs from an interim 
waiver. (AHAM, No. 4 at p. 4)
    DOE is redesignating existing section 430.27(j) as 430.27(f)(1). In 
the NOPR, DOE proposed to specify that once DOE has granted a petition 
for waiver for a type of product or 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 examples of technologies or characteristics for which multiple 
manufacturers have, in the past, 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.) 77 FR 74618.
    AHAM commented that it did not believe that the new provision was 
needed. (AHAM, No. 4 at p.4) AHAM's view is that, under the current 
regulations, when DOE grants a waiver, ``manufacturers are already 
obligated to file a petition for waiver before introducing products 
that employ a technology or characteristic that results in the same 
need for a waiver.'' (AHAM, No. 4 at p.4) Thus, AHAM concluded that the 
regulatory text ``introduces more confusion than clarity on what is 
already a well-understood concept.'' (AHAM, No. 4 at p.4) The current 
reg text does not contain an affirmative requirement to petition for a 
waiver based on AHAM's comment, however, DOE concludes that AHAM is not 
objecting to the concept, but to a lack of clarity in the proposed 
regulatory text. Thus, DOE is adopting the amendment, but is clarifying 
the regulatory text in sections 430.27(j) and 431.401(j) as discussed 
in more detail below to address AHAM's concerns.
    AHAM questioned what DOE intended by ``employ'' in the proposed 
text: ``. . . 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. . . .'' (AHAM, No. 4 at p.5) AHAM asked whether it 
encompasses technology that a manufacturer may use in another country 
and could bring to market in the U.S., whether it includes technologies 
about to be brought to market, or whether it encompasses only 
technology already on the market. (AHAM, No. 4 at p.5)
    AHAM also strongly opposed the 60-day limit for manufacturers to 
submit a petition for a waiver. (AHAM, No. 4 at p.5) AHAM raised a 
number of interpretive questions about how to apply the 60-day time 
limit. (AHAM, No. 4 at p.5) AHAM raised concerns that, although it did 
not interpret the proposed language to mean that a manufacturer could 
be precluded from ever employing the technology in the future if it 
failed to petition for a waiver during the 60-day period, AHAM was 
concerned that the language did not preclude that interpretation. 
(AHAM, No. 4 at p.5) AHAM also stated that it believed that a time 
limit was not necessary but that, if DOE retained a time limit, then 
DOE should adopt a longer time limit because 60 days may not be enough 
time for manufacturers to evaluate whether they have the same 
technology or characteristics at issue. (AHAM, No. 4 at p.5) AHAM 
proposed 180 days as a potentially more realistic time frame. (AHAM, 
No. 4 at p.5)
    Much of the ambiguity in DOE's proposed language, as identified by 
AHAM, seems to stem from the 60-day time limit and how that time limit 
is applied to products in development. Based on AHAM's comment, DOE is 
modifying the regulatory text in sections 430.27(j) and 431.401(j) to 
clarify that if, at the time DOE grants a petition for waiver to a 
particular manufacturer, other manufacturers are distributing in 
commerce in the United States products or equipment employing the same 
technologies or characteristics at issue in the waiver, those 
manufacturers have 60 days to petition DOE for a waiver. If a 
manufacturer has not yet distributed in commerce in the United States 
products or equipment employing the same technologies or 
characteristics at issue in the waiver, such manufacturer must petition 
for and be granted a waiver prior to distributing the product or 
equipment in commerce in the United States. DOE encourages 
manufacturers to submit petitions for waiver in the early stages of 
development, to avoid delays in any future distribution of the product 
or equipment in commerce in the United States.
    Another of AHAM's concerns was that DOE should ``address situations 
in which it is not readily apparent . . . what technology or 
characteristic is at issue.'' (AHAM, No. 4 at p.5) As part of this 
process, DOE will state in the Federal Register notice granting the 
waiver the specific technology or characteristic to which this 
provision would apply.
    DOE is redesignating existing section 430.27(k) into paragraph 
430.27(a)(2). In the NOPR, DOE also proposed to add new paragraphs (now 
430.27(k) and

[[Page 26595]]

431.401(k)) 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 creates a 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 DOE test procedure in the CFR or an alternate 
test procedure specified in the order establishing the modification. 
DOE also proposed to add language to 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. 77 FR 74618.
    AHAM commented that, while it did not oppose provisions regarding 
rescission or modification for waivers, DOE should provide a more 
detailed process. (AHAM, No. 4 at p.5) For petitioner-initiated 
rescission or modification, AHAM suggested that DOE should clarify who 
can request rescission or modification, how to request rescission or 
modification, that a request and grant for modification must explain 
the change, and what criteria DOE will use in making a decision. (AHAM, 
No. 4 at 6) AHAM stated that it understood the intent of the proposal 
to be that the only party who could request rescission or modification 
is the party who filed the original petition. (AHAM, No. 4 at 6) For 
DOE-initiated rescission or modification, AHAM suggested that DOE 
should clarify: the criteria DOE will evaluate when deciding whether to 
rescind or modify a waiver, that DOE will notify the petitioner 
regarding its intent to rescind or modify the waiver and allow the 
petitioner sufficient time to provide a response before publication in 
the Federal Register, that DOE will communicate a final decision to the 
petitioner prior to publication in the Federal Register, and an 
explanation of and basis for DOE's action (modification or rescission). 
(AHAM, No. 4 at 6)
    DOE's proposed language in the NOPR states that petitioners may 
seek modification or rescission. To ensure that this language is clear 
that the original petitioner may seek a change, DOE is adding 
``original'' before ``petitioner'' to the text. To address AHAM's 
concern that the regulation is unclear regarding how to submit a 
request for rescission or modification, DOE is adopting slightly 
modified language in paragraph (a)(3) of sections 430.27 and 431.401 to 
clarify that all correspondence regarding waivers, including requests 
for rescission or modification, should be directed to the same 
address(es) as petitions for waiver or interim waiver. DOE is also 
adopting slightly modified language in sections 430.27(k)(1) and 
431.401(k)(1) that will clarify that a petitioner must, in a request 
for rescission, provide a statement explaining why it is requesting 
rescission and, in a request for modification, explain the need for 
modification and detail the requested modifications and the impact on 
measured energy consumption.
    DOE's proposal also provided that DOE's determination would be 
based on a finding that the factual basis underlying the petition for 
waiver or interim waiver is incorrect, or that the results from the 
alternate test procedure are unrepresentative of the basic models' true 
energy consumption characteristics. 77 FR 74618. The basis for a 
determination could be test data showing either that the information in 
the initial petition was incorrect or that the alternative test 
procedure does not, in fact, generate results that are representative 
of the basic models' true energy consumption characteristics. In 
addition, the proposed language stated that DOE's determination would 
consider the relevant information contained in the record and any 
comments received, ensuring that the basis for any determination will 
be public and that the petitioner's views will be considered. 77 FR 
74623. DOE is adopting slightly modified text in sections 430.27(k)(3) 
and 431.401(k)(3) to make clear that DOE will specify the basis for its 
determination and, in the case of a modification, will also specify the 
change to the authorized test procedure.
    With respect to DOE-initiated actions, AHAM's comment also suggests 
that it is concerned that a manufacturer may not have an opportunity to 
respond prior to a determination to rescind or modify a waiver. The 
proposed text in the NOPR stated that DOE will publish any proposed 
rescission or modification in the Federal Register for public comment, 
which would provide the petitioner and any other interested parties an 
opportunity to respond prior to DOE making a decision. 77 FR 74623, 
74625. DOE proposed a process mirroring that of an initial petition for 
waiver and has revised the text in sections 430.27(k)(2) and 
431.401(k)(2) to clarify that the petitioner will have an opportunity 
to rebut any comments. AHAM also suggested that the petitioner should 
receive notice of DOE's decision prior to publication in the Federal 
Register; however, given the comment opportunity being provided, it is 
unclear what the purpose of such notification would be.
    Therefore, as described above, DOE is adopting the new paragraphs 
430.27(k) and 431.401(k) to set forth a process for an original 
petitioner to request rescission or modification of a waiver if it 
determines that the waiver is no longer needed, or for other 
appropriate reasons. The provision creates a 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 must use the specified DOE test 
procedure. The process for rescission or modification in this final 
rule mirrors the process for petitioning for a waiver.
    Finally, in the NOPR, DOE proposed to create a simplified process 
to allow 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. 77 FR 74618. AHAM commented that it supports the general 
principle but indicated that the regulation should provide more detail 
about the process. (AHAM, No. 4 at p. 6) AHAM suggested that a 
manufacturer should simply need to submit a statement to DOE that the 
petition for waiver or interim waiver is being extended to include 
other specified models that employ the same technology or 
characteristic, and DOE should not need to make a decision. (AHAM, No. 
4 at pp. 6-7) AHAM suggested that such a statement could be under 
penalty of perjury. (AHAM, No. 4 at p. 6) AHAM agreed that the 
statement should be published in the Federal Register. (AHAM, No. 4 at 
pp. 6-7) AHAM also commented that such a process should be applied to 
both petitions for waiver and granted waivers. (AHAM, No. 4 at p. 7)
    AHAM's suggested approach, where manufacturers would be permitted 
to extend a waiver to additional models unilaterally, would not allow 
DOE to fulfill its responsibility to ensure that an alternative test 
procedure is appropriate for the new basic model(s). Therefore, DOE is 
adopting the simplified process in sections 430.27(g) and 431.401(g). 
DOE expects that the simplified process will expedite the review where 
a manufacturer is using the same technology for a given covered product 
and applying the same methods in an already established waiver. DOE is 
modifying the language to clarify that

[[Page 26596]]

this process can be used to add models at any stage of the waiver 
process. Notice of any such extension would be published in the Federal 
Register.
    DOE is redesignating existing section 430.27(l) as 430.27(f)(2), 
430.27(m) as 430.27(l), and 431.401(g) as 431.401(l). In the NOPR, DOE 
also proposed to amend the existing paragraphs 430.27(m) and 431.401(g) 
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. 77 
FR 74618. AHAM opposed this proposal, stating that the current 
regulations require DOE to amend the test procedure within one year of 
granting a waiver. (AHAM, No. 4 at p. 3) AHAM again emphasized the need 
for DOE to shorten the time for which waivers are necessary and to 
provide regulated parties with certainty by adhering to the one year 
timing requirement in the current regulations. (AHAM, No. 4 at p. 4)
    DOE agrees that providing regulatory certainty is important and is 
committed to updating its test procedures in a timely manner, 
particularly to address issues raised in waiver petitions. DOE also 
understands that a large number of separate test procedure rulemakings 
could tax manufacturer resources. Consolidating multiple waivers into 
one rulemaking is more efficient and less burdensome for DOE and 
regulated parties than opening multiple rulemakings on a staggered 
basis to meet an artificial one-year deadline. In addition, 
manufacturer certainty is maintained by the regulatory amendment 
stating that the decision and order remains in effect until a new test 
procedure addressing the waiver is published and its use is required. 
Therefore, DOE is amending the existing 430.27(m) and 431.401(g) (which 
are renumbered as 430.27(l) and 431.401(l)) as proposed.
    As part of the modifications to 430.27(m) and 431.401(g) (which are 
renumbered 430.27(l) and 431.401(l)) and to 430.27(h) and 431.401(e)(4) 
(the latter is renumbered as 431.401(h)(1), DOE proposed in the NOPR to 
clarify that a waiver (interim, if still in effect consistent with 
430.27(h) and 431.401(h)(1), or final) terminates 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. 77 FR 74618. 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), prevents situations where a 
waiver has expired while the amended test procedure is effective but 
its use is not yet required. DOE did not receive any comments on this 
issue and is adopting the amendment as proposed.
    To keep the regulatory text current, DOE is removing 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 is replacing these terms with 
``DOE.''

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866 and 13563

    Test procedure rulemakings do not constitute ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). 
Accordingly, this action was not subject to review by the Office of 
Information and Regulatory Affairs (OIRA) in 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 a regulatory flexibility analysis (RFA) 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, 
https://www.energy.gov/gc/.
    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 certified 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. DOE received no comments on the 
certification. Comments on the potential economic impacts of the rule, 
and any changes made as a result of those comments, are discussed in 
section III. These changes did not result in a change to the factual 
basis for DOE's certification.
    The rule may affect small manufacturers of covered consumer 
products and commercial equipment. DOE does not, however, expect that 
the impact of the rule 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. The rule 
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 covered equipment 
subject to DOE's test procedures. 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 
rule would also extend

[[Page 26597]]

the time periods covered by an interim waiver or waiver, providing more 
certainty for manufacturers as they rate, certify and market their 
products. The rule clarifies 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 is also specifying 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 revised 
its proposal to clarify that the requirement applies only where 
manufacturers are distributing such product in commerce in the United 
States at the time the waiver is granted. Manufacturers who are not 
distributing such product in commerce in the United States at the time 
the waiver is granted must apply for and be granted a waiver prior to 
distribution in the United States, but there is no specified time 
requirement for the application. 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 
specifies the circumstances under which this process must be completed.
    The rule sets 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 final rule 
would not result in a significant impact on a substantial number of 
small entities. Accordingly, DOE has not prepared a regulatory 
flexibility analysis for this rulemaking. DOE transmitted its 
certification to the Small Business Administration (SBA) as required by 
5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    The final rule contains a collection-of-information requirement 
that is subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA). DOE submitted this collection to OMB for approval, 
as part of DOE's information collection approved under OMB Control No. 
1910-1400. 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 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    DOE continues to seek public comment 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 Office, EE-5B, 1000 Independence Avenue 
SW., Washington, DC 20585-0121 or Amendments-Correction-2012-TP-0003@ee.doe.gov, and by email to OIRA_Submission@omb.eop.gov.
    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 of 1969

    In this final rule, DOE amends its procedures for manufacturers to 
seek and for DOE to grant petitions for waivers of the DOE test 
procedures. DOE has determined that this 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 rule 
amends an existing rule without affecting the amount, quality or 
distribution of energy usage, and, therefore, will not result in any 
environmental impacts. Thus, this rulemaking is covered by Categorical 
Exclusion A5 under 10 CFR part 1021, subpart D, which applies to any 
rulemaking that interprets or amends an existing rule without changing 
the environmental effect of that rule. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have Federalism 
implications. The Executive Order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE examined this final rule and determined 
that it will 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. EPCA

[[Page 26598]]

governs and prescribes Federal preemption of State regulations for 
energy conservation for the products that are the subject of today's 
final rule. States can petition DOE for exemption from such preemption 
to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 
6297(d)) No further action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 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; (3) provide a clear legal standard for affected 
conduct rather than a general standard; and (4) 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 
sections 3(a) and 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, 
this final rule meets 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) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Pub. L. No. 104-4, sec. 201 (codified at 2 U.S.C. 
1531). For any 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 a written statement that estimates 
the resulting costs, benefits, and other effects on the national 
economy. (2 U.S.C. 1532(a), (b)) The 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 small governments. On March 18, 
1997, DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820; also available 
at https://energy.gov/gc. DOE examined this rule according to UMRA and 
its statement of policy and determined that the rule contains neither 
an intergovernmental mandate, nor a mandate that may result in the 
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. 
This final rule will 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 has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this regulation will not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under 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 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed today's final rule under the 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 OMB, 
a Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgated 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 significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use if the regulation is implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    Today's regulatory action is not a significant regulatory action 
under Executive Order 12866. Moreover, it will not have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as a significant energy action by the Administrator 
of OIRA. Therefore, it is not a significant energy action, and, 
accordingly, DOE has not prepared a Statement of Energy Effects.

L. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the 
Federal Energy Administration Act of 1974, as amended by the Federal 
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) 
Section 32 essentially provides in relevant part that, where a proposed 
rule authorizes or requires use of commercial standards, the notice of 
proposed rulemaking must inform the public of the use and background of 
such standards. In addition, section 32(c) requires DOE to consult with 
the Attorney General and the Chairman of the Federal Trade Commission 
(FTC) concerning the impact of the commercial or industry standards on 
competition.

[[Page 26599]]

    Today's final rule does not authorize or require the use of any 
commercial standard.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

N. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

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, Household appliances, Imports, 
Intergovernmental relations, Small businesses.

    Issued in Washington, DC, on May 2, 2014.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    For the reasons stated in the preamble, DOE amends parts 430 and 
431 of Chapter II of Title 10, Code of Federal Regulations as set forth 
below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
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.


0
2. Section 430.27 is revised to read as follows:


Sec.  430.27  Petitions for waiver and interim waiver.

    (a) General information. This section provides a means for seeking 
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 and to make 
representations about the energy use or efficiency of the covered 
product. The granting of a waiver or interim waiver by DOE 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 and specifies an alternative method for testing the 
basic models addressed in the waiver.
    (1) Any interested person may submit a petition to waive for a 
particular basic model any requirements of Sec.  430.23 or of any 
appendix to this subpart, upon the grounds that the basic model 
contains one or more design characteristics which either prevent 
testing of the basic model according to the prescribed test procedures 
or cause the prescribed test procedures to evaluate the basic model in 
a manner so unrepresentative of its true energy and/or water 
consumption characteristics as to provide materially inaccurate 
comparative data.
    (2) Manufacturers of basic model(s) subject to 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. The filing of a petition for waiver and/or interim 
waiver shall not constitute grounds for noncompliance with any 
requirements of this subpart.
    (3) All correspondence regarding waivers and interim waivers must 
be submitted to DOE either electronically to AS_Waiver_Requests@ee.doe.gov (preferred method of transmittal) or by mail to 
U.S. Department of Energy, Building Technologies Program, Test 
Procedure Waiver, 1000 Independence Avenue SW., Mailstop EE-5B, 
Washington, DC 20585-0121.
    (b) Petition content and publication. (1) Each petition for waiver 
must:
    (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 must 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 design characteristic(s) similar to those found in the 
basic model that is the subject of the petition;
    (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 and/or water consumption characteristics 
of the basic model; and
    (iv) Be signed by the petitioner or 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 
will 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 will solicit 
comments, data and information with respect to the determination of the 
petition.
    (2) Each petition for interim waiver must 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 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 must be signed by the petitioner or an 
authorized representative.
    (c) Notification to other manufacturers. (1) Each petitioner for 
interim waiver must, 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 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 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 petitioner does not request an interim waiver and 
notification has not been provided pursuant to paragraph (c)(1) of this 
section, each petitioner, after filing a petition for waiver with DOE, 
and after the petition for waiver has been published in the Federal

[[Page 26600]]

Register, must, 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 the petitioner to use the technology or have the 
characteristic at issue in the waiver. The notice must 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 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.
    (d) Public comment and rebuttal. (1) Any person submitting written 
comments to DOE with respect to an interim waiver must also send a copy 
of the comments to the petitioner by the deadline specified in the 
notice.
    (2) Any person submitting written comments to DOE with respect to a 
petition for waiver must also send a copy of such comments to the 
petitioner.
    (3) A petitioner may, within 10 working days of the close of the 
comment period specified in the Federal Register, submit a rebuttal 
statement to DOE. A petitioner may rebut more than one comment in a 
single rebuttal statement.
    (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.
    (2) Criteria for granting. DOE will grant an interim waiver from 
the 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.
    (f) Provisions specific to waivers--(1) Disposition of application. 
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.
    (2) Criteria for granting. DOE will grant a waiver from the test 
procedure requirements if DOE determines 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 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 will consult with the Federal Trade Commission prior to granting 
any waiver, and will promptly publish in the Federal Register notice of 
each waiver granted or denied, and any limiting conditions of each 
waiver granted.
    (g) Extension to additional basic models. A petitioner may request 
that DOE extend the scope of a waiver or an interim waiver to include 
additional basic models employing the same technology as the basic 
model(s) set forth in the original petition. DOE will publish any such 
extension in the Federal Register.
    (h) Duration. (1) Within one year of issuance of an interim waiver, 
DOE will either:
    (i) Publish in the Federal Register a determination on the petition 
for waiver; or
    (ii) Publish in the Federal Register a new or amended test 
procedure that addresses the issues presented in the waiver.
    (2) When DOE amends the test procedure to address the issues 
presented in a waiver, the waiver will automatically terminate on the 
date on which use of that test procedure is required to demonstrate 
compliance.
    (i) Compliance certification. (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 is not required to re-test and re-rate those basic 
models so long as: The manufacturer used that alternative procedure to 
certify the compliance of the basic model after DOE granted the 
company's interim waiver request; changes have not been made to those 
basic models that would cause them to use more energy or otherwise be 
less energy efficient; and the manufacturer does not modify the 
certified rating. However, 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 and if specified by DOE in the decision and order, the 
manufacturer must re-test and re-certify compliance using the procedure 
specified by DOE in the decision and order by the time of the next 
annual certification.
    (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) while the waiver is valid.
    (j) Petition for waiver required of other manufacturers. Within 60 
days after DOE issues a waiver to a manufacturer for a product 
employing a particular technology or having a particular 
characteristic, any manufacturer currently distributing in commerce in 
the United States a product employing a technology or characteristic 
that results in the same need for a waiver (as specified by DOE in the 
published decision and order on the petition in the Federal Register) 
must submit a petition for waiver pursuant to the requirements of this 
section. Manufacturers not currently distributing such products in 
commerce in the United States must petition for and be granted a waiver 
prior to distribution in commerce in the United States. Manufacturers 
may also submit a request for interim waiver pursuant to the 
requirements of this section.
    (k) Rescission or modification. (1) DOE may rescind or modify a 
waiver or interim waiver at any time upon DOE's 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 model(s)' true energy 
consumption characteristics. Waivers and interim waivers are 
conditioned upon the validity of statements, representations, and 
documents provided by the requestor; any evidence that the original 
grant of a waiver or interim waiver was based upon inaccurate 
information will weigh against continuation of the waiver. DOE's 
decision will specify the basis for its determination and, in the case 
of a modification, will also specify the change to the authorized test 
procedure.
    (2) A person may request that DOE rescind or modify a waiver or 
interim waiver issued to that person if the person discovers an error 
in the information provided to DOE as part of its petition, determines 
that the waiver

[[Page 26601]]

is no longer needed, or for other appropriate reasons. In a request for 
rescission, the requestor must provide a statement explaining why it is 
requesting rescission. In a request for modification, the requestor 
must explain the need for modification to the authorized test procedure 
and detail the modifications needed and the corresponding impact on 
measured energy consumption.
    (3) DOE will publish a proposed rescission or modification (DOE-
initiated or at the request of the original requestor) in the Federal 
Register for public comment. A requestor may, within 10 working days of 
the close of the comment period specified in the proposed rescission or 
modification published in the Federal Register, submit a rebuttal 
statement to DOE. A requestor may rebut more than one comment in a 
single rebuttal statement.
    (4) DOE will publish its decision in the Federal Register. DOE's 
determination will be based on relevant information contained in the 
record and any comments received.
    (5) After the effective date of a rescission, any basic model(s) 
previously subject to a waiver must be tested and certified using the 
applicable DOE test procedure in 10 CFR part 430.
    (l) 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.
    (m) 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

0
3. The authority citation for part 431 continues to read as follows:

    Authority:  42 U.S.C. 6311-6317.


0
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.
* * * * *

0
5. Section 431.401 is revised to read as follows:


Sec.  431.401  Petitions for waiver and interim waiver.

    (a) General information. This section provides a means for seeking 
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 and to make 
representations about the energy use or efficiency of the covered 
equipment. The granting of a waiver or interim waiver by DOE 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 and specifies an alternative method for testing the 
basic model(s) addressed in the waiver.
    (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 cause the 
prescribed test procedures to evaluate the basic model in a manner so 
unrepresentative of its true energy or water consumption 
characteristics as to provide materially inaccurate comparative data.
    (2) Manufacturers of basic model(s) subject to 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/or 
interim waiver. The filing of a petition for waiver and/or interim 
waiver shall not constitute grounds for noncompliance with any 
requirements of this part.
    (3) All correspondence regarding waivers and interim waivers must 
be submitted to DOE either electronically to AS_Waiver_Requests@ee.doe.gov (preferred method of transmittal) or by mail to 
U.S. Department of Energy, Building Technologies Program, Test 
Procedure Waiver, 1000 Independence Avenue SW., Mailstop EE-5B, 
Washington, DC 20585-0121.
    (b) Petition content and publication. (1) Each petition for waiver 
must:
    (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 must 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 design characteristic(s) similar to those found in the 
basic model that is the subject of the petition;
    (iii) Include any alternate test procedures known to the petitioner 
to evaluate the performance of the equipment type in a manner 
representative of the energy and/or water consumption characteristics 
of the basic model; and
    (iv) Be signed by the petitioner or 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 
will 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 will solicit 
comments, data and information with respect to the determination of the 
petition.
    (2) Each petition for interim waiver must 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 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 must be signed by the petitioner or an 
authorized representative.
    (c) Notification to other manufacturers. (1) Each petitioner for

[[Page 26602]]

interim waiver must, 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 equipment class (as 
specified in the relevant subpart of 10 CFR part 431), and of other 
equipment classes known to the petitioner to use the technology or have 
the 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 
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 petitioner does not request an interim waiver and 
notification has not been provided pursuant to paragraph (c)(1) of this 
section, each petitioner, after filing a petition for waiver with DOE, 
and after the petition for waiver has been published in the Federal 
Register, must, within five working days of such publication, notify in 
writing all known manufacturers of domestically marketed basic models 
of the same equipment class (as listed in the relevant subpart of 10 
CFR part 431), and of other equipment classes known to the petitioner 
to use the technology or have the characteristic at issue in the 
waiver. The notice must 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 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.
    (d) Public comment and rebuttal. (1) Any person submitting written 
comments to DOE with respect to an interim waiver must also send a copy 
of the comments to the petitioner by the deadline specified in the 
notice.
    (2) Any person submitting written comments to DOE with respect to a 
petition for waiver must also send a copy of such comments to the 
petitioner.
    (3) A petitioner may, within 10 working days of the close of the 
comment period specified in the Federal Register, submit a rebuttal 
statement to DOE. A petitioner may rebut more than one comment in a 
single rebuttal statement.
    (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.
    (2) Criteria for granting. DOE will grant an interim waiver from 
the 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.
    (f) Provisions specific to waivers--(1) Disposition of application. 
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.
    (2) Criteria for granting. DOE will grant a waiver from the test 
procedure requirements if DOE determines 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 evaluate the 
basic model in a manner so unrepresentative of its true energy or water 
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 specified by DOE. 
DOE will promptly publish in the Federal Register notice of each waiver 
granted or denied, and any limiting conditions of each waiver granted.
    (g) Extension to additional basic models. A petitioner may request 
that DOE extend the scope of a waiver or an interim waiver to include 
additional basic models employing the same technology as the basic 
model(s) set forth in the original petition. DOE will publish any such 
extension in the Federal Register.
    (h) Duration. (1) Within one year of issuance of an interim waiver, 
DOE will either:
    (i) Publish in the Federal Register a determination on the petition 
for waiver; or
    (ii) Publish in the Federal Register a new or amended test 
procedure that addresses the issues presented in the waiver.
    (2) When DOE amends the test procedure to address the issues 
presented in a waiver, the waiver will automatically terminate on the 
date on which use of that test procedure is required to demonstrate 
compliance.
    (i) Compliance Certification. (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 is not required to re-test and re-rate those basic 
models so long as: The manufacturer used that alternative procedure to 
certify the compliance of the basic model after DOE granted the 
company's interim waiver request; changes have not been made to those 
basic models that would cause them to use more energy or otherwise be 
less energy efficient; and the manufacturer does not modify the 
certified rating. However, 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 and if specified by DOE in the decision and order, the 
manufacturer must re-test and re-certify compliance using the procedure 
specified by DOE in the decision and order by the time of the next 
annual certification.
    (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 of any basic model(s) 
covered by the decision and order.
    (j) Petition for waiver required of other manufactures. Within 60 
days after DOE issues a waiver to a manufacturer for equipment 
employing a particular technology or having a particular 
characteristic, any manufacturer currently distributing in commerce in 
the United States equipment employing a technology or characteristic 
that results in the same need for a waiver (as specified by DOE in the 
published decision and order on the petition in the Federal Register) 
must submit a petition for waiver pursuant to the requirements of this 
section. Manufacturers not currently distributing such equipment in 
commerce in the United States must petition for and be granted a waiver 
prior to distribution in commerce in the United States. Manufacturers 
may also submit a request for interim waiver

[[Page 26603]]

pursuant to the requirements of this section.
    (k) Rescission or modification. (1) DOE may rescind or modify a 
waiver or interim waiver at any time upon DOE's 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 model(s)' true energy 
consumption characteristics. Waivers and interim waivers are 
conditioned upon the validity of statements, representations, and 
documents provided by the requestor; any evidence that the original 
grant of a waiver or interim waiver was based upon inaccurate 
information will weigh against continuation of the waiver. DOE's 
decision will specify the basis for its determination and, in the case 
of a modification, will also specify the change to the authorized test 
procedure.
    (2) A person may request that DOE rescind or modify a waiver or 
interim waiver issued to that person if the person 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. 
In a request for rescission, the requestor must provide a statement 
explaining why it is requesting rescission. In a request for 
modification, the requestor must explain the need for modification to 
the authorized test procedure and detail the modifications needed and 
the corresponding impact on measured energy consumption.
    (3) DOE will publish a proposed rescission or modification (DOE-
initiated or at the request of the original requestor) in the Federal 
Register for public comment. A requestor may, within 10 working days of 
the close of the comment period specified in the proposed rescission or 
modification published in the Federal Register, submit a rebuttal 
statement to DOE. A requestor may rebut more than one comment in a 
single rebuttal statement.
    (4) DOE will publish its decision in the Federal Register. DOE's 
determination will be based on relevant information contained in the 
record and any comments received.
    (5) After the effective date of a rescission, any basic model(s) 
previously subject to a waiver must be tested and certified using the 
applicable DOE test procedure in 10 CFR part 431.
    (l) 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.
    (m) 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. 2014-10684 Filed 5-8-14; 8:45 am]
BILLING CODE 6450-01-P