This document, concerning Amendments and Correction to Petitions for Waiver and Interim 

Waiver for Consumer Products and Commercial and Industrial Equipment, is a rulemaking 

action issued by the Department of Energy. Though it is not intended or expected, should any 

discrepancy occur between the document posted here and the document published in the Federal 

Register, the Federal Register publication controls. This document is being made available 

through the Internet solely as a means to facilitate the public's access to this document.

Scheduled publication: December 17, 2012 
1

[6450-01-P]

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 
2

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: 

E-mail: Amendments-Correction-2012-TP-0003@ee.doe.gov. Include EERE-2012-BTTP-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, D.C. 20585–0121. Phone: 

(202) 586–2945. Please submit one signed paper original. 
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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, D.C. 20585-0121. Telephone: (202) 586-6590. E-mail: 

Ashley.Armstrong@ee.doe.gov. 

Ms. Celia Sher, U.S. Department of Energy, Office of General Counsel, GC-71, 1000 

Independence Avenue SW., Washington, D.C. 20585-0121. Telephone: (202) 287-6122. E-mail: 

Celia.Sher@hq.doe.gov
4

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), 

Pub. L. 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

 

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). DO E’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 DO E test procedure cannot be 

used to test the products or equipment, or where use of the DO E test procedure would 

provide unrepresentative results. 

 

1

 For editorial reasons, Parts B (consumer products) and C (commercial equipment) of Title III of EPCA were redesignated as parts A and A-1, respectively, in the United States Code. 
5

II. Background 

O n March 7, 2011, DO E’s O ffice 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 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 DO E’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). DO E also proposes a process by 

which, within 60 days after DO E 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 DO E 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 
6

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. DO E 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; 
7

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 
8

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 
9

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 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 
10

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 
11

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 
12

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. 
13

 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.” 

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 
14

website, 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 
15

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 
16

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 
17

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 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, D.C. 20585-0121 or Amendments-Correction-2012-TP-0003@ee.doe.gov, and by 

e-mail to OIRA_Submission@omb.eop.gov. 
18

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 
19

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 
20

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-generalcounsel.) 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 
21

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 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 
22

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 e-mail 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 
23

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. 
24

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 
25

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: 

§ 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 
26

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. 

 (b)(1) A petition for waiver shall be submitted either electronically to 

AS_Waiver_Requests@ee.doe.gov (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 -012 1. 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); 
27

 (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. DO E shall publish in 

the Federal Register the petition and supporting documents from which confidential 

information, as determined by DO E, has been deleted in accordance with 10 CFR 

1004.1 1 and shall solicit comments, data and information with respect to the 

determination of the petition. Any person submitting written comments to DO E 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 DO E. 

 (2) A petition for interim waiver shall be submitted either electronically to 

AS_Waiver_Requests@ee.doe.gov or by mail to U.S. Department of Energy, Building 

Technologies Program, Test Procedure Waiver, 1000 Independence Avenue, SW, Mailstop EE2J, 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 
28

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) 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, 

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. 
29

* * * * * 

(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. 
30

 (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 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: 
31

 (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. 
32

 (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. 
33

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

§ 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); 
34

 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: 

§ 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 
35

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. 

 * * * * *

 (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 AS_Waiver_Requests@ee.doe.gov (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 

AS_Waiver_Requests@ee.doe.gov 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 
36

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 
37

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 
38

(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 
39

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 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. 
40

 (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 
41

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.