This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

74616 

Vol. 77, No. 242 

Monday, December 17, 2012 

1For 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. 

DEPARTMENT OF ENERGY 

10 CFR Parts 430 and 431 

[Docket No. EERE–2012–BT–TP–0003] 

RIN 1904–AC70 

Amendments and Correction to 

Petitions for Waiver and Interim Waiver 

for Consumer Products and 

Commercial and Industrial Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Energy (‘‘DOE’’ or the ‘‘Department’’) 

proposes amendments and corrections 

to portions of its regulations governing 

petitions for waiver and interim waiver 

from DOE test procedures. In finalizing 

the March 7, 2011 final certification, 

compliance and enforcement rule for 

consumer products and commercial 

equipment, DOE inadvertently deleted 

language pertaining to petitions for 

waiver and interim waiver of DOE’s test 

procedure requirements for consumer 

products. This notice addresses that 

error by proposing to restore, with 

minor amendments, the omitted text. 

DOE also proposes a process by which, 

within 60 days after DOE grants a 

waiver for a product employing a 

particular technology, other 

manufacturers of that product 

employing a technology or characteristic 

that results in the same need for a 

waiver would submit a petition for 

waiver. This process would ensure that 

manufacturers of similar products test 

and rate those products in a comparable 

manner. The proposed rule also sets 

forth a process for manufacturers to 

request rescission or modification of a 

waiver if they determine that the waiver 

is no longer needed, or for other 

appropriate reasons. DOE also proposes 

to make other minor modifications to 

the waiver provisions for both consumer 

products and commercial equipment 

and to clarify certain aspects related to 

the submission and processing of a 

waiver petition. 

DATES: DOE will accept comments, data, 

and information regarding this notice of 

proposed rulemaking (NOPR) no later 

than January 16, 2013. See section V, 

‘‘Public Participation,’’ of this NOPR for 

details. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments, identified by docket 

number EERE–2010–BT–CE–0014, by 

any of the following methods: 

• Email: Amendments-Correction2012-TP-0003@ee.doe.gov. Include 

EERE–2012–BT–TP–0003 in the subject 

line of the message. 

• Mail: Ms. Brenda Edwards, U.S. 

Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

Revisions to Energy Efficiency 

Enforcement Regulations, EERE–2012– 

BT–TP–0003, 1000 Independence 

Avenue SW., Washington, DC 20585– 

0121. Phone: (202) 586–2945. Please 

submit one signed paper original. 

• Hand Delivery/Courier: Ms. Brenda 

Edwards, U.S. Department of Energy, 

Building Technologies Program, 6th 

Floor, 950 L’Enfant Plaza SW., 

Washington, DC 20024. Phone: (202) 

586–2945. Please submit one signed 

paper original. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this 

rulemaking. Note that all comments 

received will be posted without change, 

including any personal information 

provided. 

Docket: For access to the docket to 

read background documents, or 

comments received, go to the Federal 

eRulemaking Portal at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ashley Armstrong, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 586–6590. Email: 

Ashley.Armstrong@ee.doe.gov. 

Ms. Celia Sher, U.S. Department of 

Energy, Office of General Counsel, GC– 

71, 1000 Independence Avenue SW., 

Washington, DC 20585–0121. 

Telephone: (202) 287–6122. Email: 

Celia.Sher@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Authority 

Title III of the Energy Policy and 

Conservation Act of 1975, as amended, 

(‘‘EPCA’’ or the ‘‘Act’’) sets forth a 

variety of provisions designed to 

improve energy efficiency. Part A of 

Title III (42 U.S.C. 6291–6309) provides 

for the Energy Conservation Program for 

Consumer Products Other Than 

Automobiles. The National Energy 

Conservation Policy Act (NECPA), 

Public Law 95–619, amended EPCA to 

add Part A–1 of Title III, which 

established an energy conservation 

program for certain industrial 

equipment. (42 U.S.C. 6311–6317) 1

This proposed rule involves the 

regulatory provisions governing the 

submission and processing of test 

procedure waivers for both consumer 

products under Part A of EPCA and 

commercial equipment under Part A–1. 

EPCA directs DOE to prescribe test 

procedures that are reasonably designed 

to produce results reflecting the energy 

efficiency, energy use, and estimated 

annual operating costs for those 

products, and that are not unduly 

burdensome to conduct. 42 U.S.C. 

6293(b)(3), 6314(a)(2). DOE’s regulations 

in Title 10 of the Code of Federal 

Regulations (CFR), Section 430.27 

(consumer products) and Section 

431.401 (commercial equipment) 

contain provisions allowing a person to 

seek a waiver from the test procedure 

requirements if certain conditions are 

met. A waiver allows manufacturers to 

use an alternative test procedure in 

situations where the DOE test procedure 

cannot be used to test the products or 

equipment, or where use of the DOE test 

procedure would provide 

unrepresentative results. 

II. Background 

On March 7, 2011, DOE’s Office of 

Energy Efficiency and Renewable 

Energy (‘‘EERE’’) published a final rule 

titled ‘‘Energy Conservation Program: 

Certification, Compliance, and 

Enforcement for Consumer Products and 

Commercial and Industrial Equipment.’’ 

76 FR 12421. Among other things, the 


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rule added an electronic filing option 

for submitting petitions for waiver from 

the test procedure requirements for 

consumer products located at 10 CFR 

430.27. Since the publication of this 

rule, it has come to the Department’s 

attention that, due to a drafting 

oversight, certain parts of the existing 

regulatory text in 10 CFR 430.27 were 

inadvertently deleted by the rule. 

Consequently, the provisions formerly 

located at 10 CFR 430.27(b)(1)(i) 

through (iv), which address what must 

be included in a waiver petition for 

consumer products, no longer exist in 

the current regulatory text. This notice 

proposes to correct DOE’s existing 

regulations in 10 CFR 430.27 by 

reinstating paragraphs (b)(1)(i) through 

(iv) in 10 CFR 430.27, with minor 

amendments to paragraph (iii). DOE also 

proposes a process by which, within 60 

days after DOE grants a waiver for a 

product employing a particular 

technology, other manufacturers of that 

product employing a technology or 

characteristic that results in the same 

need for a waiver, as specified by DOE 

in the published petition for waiver in 

the Federal Register, would submit a 

petition for waiver. (Some recent 

examples of technologies or 

characteristics for which multiple 

manufacturers had the same need for a 

waiver include large-capacity clothes 

washers, refrigerator-freezers that 

employ multiple defrost cycles, and 

dishwashers with a water softener 

regeneration system.) This process 

would ensure that manufacturers of 

similar products test and rate those 

products in a comparable manner. The 

proposed rule also sets forth a process 

for manufacturers to request rescission 

or modification of a waiver if they 

determine that the waiver is no longer 

needed, or for other appropriate reasons. 

DOE also proposes to make other minor 

amendments to its waiver provisions in 

10 CFR parts 430 and 431, which 

include clarifying manufacturer 

responsibility under the rules and 

making clear that manufacturers of all 

types of covered commercial and 

industrial equipment are eligible to 

petition for waiver. The proposals are 

described in more detail in the 

following section. 

III. Discussion of Specific Revisions to 

Waiver Provisions 

In this proposed rule, DOE proposes 

to add an introductory paragraph to 

paragraphs 430.27(a) and 431.401(a) to 

clarify that obtaining a waiver or interim 

waiver does not exempt a manufacturer 

of consumer products or commercial 

equipment from compliance with any 

other applicable regulatory 

requirements contained in 10 CFR parts 

430 and 431, or the certification and 

compliance requirements of 10 CFR part 

429. DOE believes this new language 

will make clear that a waiver is solely 

an authorization to use an alternative 

test procedure method, and does not 

relieve the manufacturer from any other 

regulatory requirements. 

With regard to waiver applications for 

commercial equipment addressed in 

part 431, DOE is proposing to modify 

section 431.401(a)(1) to expand the 

waiver provisions to apply to 

manufacturers of all types of covered 

commercial and industrial equipment, 

rather than just the five types of 

equipment referenced in the current 

regulations (i.e., commercial warm air 

furnaces; commercial packaged boilers; 

small, large, and very large commercial 

package air conditioning and heating 

equipment; packaged terminal air 

conditioners and packaged terminal 

heat pumps; and commercial water 

heaters and hot water supply boilers 

(other than commercial heat pump 

water heaters)). This change will ensure 

that the waiver provisions are available 

to manufacturers of all commercial 

equipment types, not limited to only 

certain equipment types. As a related 

action, DOE is proposing to amend the 

definition of ‘‘private labeler’’ in section 

431.2 to reflect that the term applies to 

all products covered under part 431, 

and not only to commercial HVAC and 

WH products, as the definition currently 

states. Since this term could be 

applicable to persons who may submit 

petitions for waivers, or entities 

potentially affected by waivers issued 

under section 431.401, this change will 

ensure that the term is applied 

uniformly to all products. 

To clarify compliance obligations 

further, DOE proposes to make explicit 

in sections 430.27(a)(3) and 

431.401(a)(3) that, while any person 

may petition for waiver and interim 

waiver, the ultimate responsibility for 

complying with the waiver provisions 

lies with the manufacturer, which, by 

statutory definition, includes importers. 

DOE believes this additional language 

will make clear that the compliance 

burden is on the manufacturer, 

regardless of which entity submits the 

waiver. 

DOE also proposes to restore, with 

minor amendments, the inadvertently 

omitted provisions in section 

430.27(b)(1). These provisions would set 

forth information that must be included 

in a petition for waiver of the applicable 

test procedure requirements for 

consumer products. In particular, the 

provisions require petitioners to: (1) 

Specify the basic model(s) to which the 

waiver applies; (2) identify other 

manufacturers of similar products; (3) 

include any known alternate test 

procedures of the basic model, with the 

slight modification that any test 

procedures identified must be specific 

to the product type; (4) sign the petition, 

and (5) include any request for 

confidential treatment for any 

information deemed confidential. The 

reinstatement of these provisions would 

correct a drafting error and would not 

impose any new regulatory 

requirements on manufacturers, because 

these provisions had been part of this 

section prior to their removal. 

This document also proposes to 

amend sections 430.27(b)(1)(i) and 

431.401(b)(1)(i) to require waiver 

applicants to identify each brand name 

under which the basic model specified 

in the waiver will be distributed in 

commerce in the U.S. While this 

proposed amendment would not 

prohibit third party representatives such 

as original equipment manufacturers 

(‘‘OEMs’’) from submitting waiver 

applications on behalf of an importer, 

such OEMs would be required to 

include all brand names and applicable 

basic model numbers for which the 

waiver will apply. DOE believes this 

requirement would assist the 

Department in identifying the marketbased brand name of a basic model 

addressed by a waiver granted by DOE. 

This information should be identical to 

the information submitted in the 

certification report for a given basic 

model. 

DOE also proposes to amend sections 

430.27(c) and 431.401(c) to require 

petitioners to notify, on publication of 

the waiver or interim waiver, all other 

manufacturers that manufacture 

products in the same product class as 

the basic models for which the petition 

for waiver or interim waiver was 

requested. In addition, if the technology 

or characteristic at issue in the petition 

is known by the petitioner to be used in 

multiple product classes, notification 

must also be sent to manufacturers of 

products in those other product classes. 

In many cases, notification of all 

manufacturers of the same product type, 

as set forth in sections 322 and 325 of 

EPCA, leads to over-notification. 

Therefore, DOE proposes to limit 

manufacturer notification to those 

manufacturers who manufacture 

products in the same product class as 

the basic model(s) specified in the 

waiver petition, as well as in other 

product classes where the technology or 

feature at issue in the waiver is used. In 

addition, DOE proposes to require 

notification upon publication of the 

interim waiver. DOE is proposing this 


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requirement to address manufacturer 

concerns about being required to notify 

other manufacturers (who are also likely 

to be competitors of the petitioner) prior 

to the marketing of the basic model(s) 

specified in the petition. Once a 

manufacturer receives an interim 

waiver, the basic model(s) covered in 

the interim waiver may be distributed in 

commerce, so competitive concerns are 

less likely to be an issue. 

Additionally, DOE proposes to amend 

sections 430.27(e) and 431.401(e)(1) to 

state that, if administratively feasible, 

DOE will notify an applicant in writing 

of the disposition of the petition for 

interim waiver within 30 business days 

of receipt of the petition. While DOE 

will continue to notify applicants of its 

decisions on interim waivers as soon as 

possible, DOE’s experience has been 

that providing a response within 15 

business days is often not feasible. 

DOE would also amend sections 

430.27(h) and 431.401(e)(4) to specify 

that an interim waiver would expire 

within 1 year of issuance unless either 

of the following occurs first: (1) DOE 

publishes a final decision and order in 

the Federal Register; or (2) DOE 

publishes a new or amended test 

procedure that addresses the issues 

presented in the waiver, and 

manufacturers are required to use that 

test procedure to demonstrate 

compliance with the applicable 

standard. This amendment will obviate 

the need for manufacturers to request an 

extension of the interim waiver after 180 

days, while providing sufficient time for 

DOE to consider the issues presented in 

the petition and publish a decision and 

order or amend the test procedure to 

eliminate the continued need for the 

waiver. DOE further proposes to amend 

the existing 430.27(m) and 431.401(g) 

(which would be renumbered as 

430.27(p) and 431.401(j)) to provide 

that, as soon as is practicable after DOE 

grants a waiver, DOE will publish a 

proposed rule to amend the relevant test 

procedure regulation to eliminate the 

need for the continuation of the waiver. 

The waiver would then terminate on the 

date when use of the amended test 

procedure is required to be used by 

manufacturers to demonstrate 

compliance with the applicable energy 

or water conservation standard. 

Continuation of the waiver until the 

date when use of an amended test 

procedure is required to demonstrate 

compliance, rather than the effective 

date of that test procedure (i.e., the date 

on which that procedure officially 

becomes part of the Code of Federal 

Regulations), will prevent situations 

where a waiver has expired while the 

test procedure is effective but its use is 

not yet required. DOE will continue to 

update its test procedures in a timely 

manner to address issues presented in 

petitions for waiver. 

DOE notes that the metrics for 

measuring energy or, where appropriate, 

water consumption or efficiency are 

established either by EPCA or in DOE 

rulemakings to set energy conservation 

standards for a particular covered 

product or type of covered equipment. 

Therefore, while a test procedure waiver 

or interim waiver can provide an 

alternate test method for a particular 

basic model, it is inappropriate for a 

waiver to provide an alternative metric 

by which to certify compliance with an 

applicable standard or make 

representations as to the energy and 

water use of that basic model. As a 

result, DOE proposes to amend sections 

430.27(a) and 431.401(a) to clarify that 

a waiver or interim waiver cannot 

change the metric by which the energy 

use or efficiency of a basic model is 

described. 

DOE would also add new sections 

430.27(m) and 431.401(g) that would 

specify how manufacturers would 

certify basic models identified in a 

petition for an interim waiver and 

waiver if the test procedure prescribed 

in the interim waiver differs from the 

test procedure prescribed in the 

subsequent decision and order on the 

waiver. DOE proposes that a 

manufacturer who has already certified 

basic models using the procedure 

permitted in DOE’s grant of an interim 

test procedure waiver does not need to 

re-test and re-rate those basic models so 

long as certain criteria are met. The 

manufacturer would need to have used 

that alternative procedure after DOE 

granted the company’s interim waiver 

request, and changes must not have 

been made to those basic models that 

would cause them to use more energy or 

otherwise be less energy efficient. In 

addition, when DOE publishes a 

decision and order on a petition for 

waiver in the Federal Register, a 

manufacturer must use the test 

procedure contained in that decision 

and order to rate any basic models 

covered by the decision and order that 

have not yet been certified to DOE. 

Finally, the test procedure in a decision 

and order must be used for all future 

testing for any basic models covered by 

the decision and order. 

DOE also proposes to add new 

sections 430.27(n) and 431.401(h) to 

specify that once DOE has granted a 

petition for waiver for a product or type 

of equipment employing a particular 

technology, other manufacturers of that 

product or equipment employing a 

technology or characteristic that results 

in the same need for a waiver, as 

specified by DOE in the published 

petition for waiver in the Federal 

Register, must submit a petition for 

waiver within 60 days. (Some recent 

examples of technologies or 

characteristics for which multiple 

manufacturers had the same need for a 

waiver include large-capacity clothes 

washers, refrigerator-freezers that 

employ multiple defrost cycles, and 

dishwashers with a water softener 

regeneration system.) This proposal is 

intended to ensure that all products 

employing technologies that cannot be 

tested under DOE’s test procedure, or 

where testing products according to 

DOE’s test procedure would lead to 

unrepresentative results, are rated in a 

comparable manner. This change would 

minimize public confusion regarding 

manufacturer representations of energy 

efficiency and would improve DOE’s 

certification procedures for covered 

products and equipment. 

The proposed rule would also add 

new sections 430.27(o) and 431.401(i) to 

set forth a process for manufacturers to 

request rescission or modification of a 

waiver if they determine that the waiver 

is no longer needed, or for other 

appropriate reasons. The provision 

would set forth the process for DOE to 

consider and, as appropriate, grant the 

requested rescission or modification. 

Subsequent to the effective date of a 

rescission or modification, the 

manufacturer would be required to use 

the applicable DOE test procedure. DOE 

also proposes to add language that 

would clarify that DOE may revoke or 

modify a waiver or interim waiver if it 

determines that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic models’ 

true energy consumption characteristics. 

Additionally, the proposed rule allows 

for petitioners to request that DOE 

extend the scope of a waiver or interim 

waiver to include additional basic 

models employing the same technology 

as the basic models set forth in the 

original petition. Notice of any such 

extension would be published in the 

Federal Register. 

To keep the regulatory text current, 

DOE is also proposing to remove all 

references to the ‘‘Assistant Secretary 

for Conservation and Renewable 

Energy’’ in 10 CFR 430.27 and the 

‘‘Assistant Secretary for Energy 

Efficiency and Renewable Energy’’ in 10 

CFR 431.401 and replace these terms 

with ‘‘DOE.’’ 


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IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

Today’s regulatory action is not a 

‘‘significant regulatory action’’ under 

section 3(f) of Executive Order 12866. 

Accordingly, this action was not subject 

to review under that Executive Order by 

the Office of Information and Regulatory 

Affairs (OIRA) of the Office of 

Management and Budget (OMB). 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601, et seq.) requires preparation 

of an initial regulatory flexibility 

analysis (IRFA) for any rule that by law 

must be proposed for public comment, 

unless the agency certifies that the rule, 

if promulgated, will not have a 

significant economic impact on a 

substantial number of small entities. As 

required by E.O. 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s Web site, http://energy.gov/ 

gc/office-general-counsel. 

DOE reviewed the waiver 

requirements being proposed under the 

provisions of the Regulatory Flexibility 

Act and the procedures and policies 

published on February 19, 2003. DOE 

certifies that the proposed rule, if 

adopted, would not have a significant 

impact on a substantial number of small 

entities. The factual basis for this 

certification is set forth below. 

The proposed rule may affect small 

manufacturers of covered consumer 

products and commercial equipment. 

DOE does not, however, expect that the 

impact of the proposal would be 

significant. The regulatory provisions 

proposed would clarify the effect of the 

waiver (the waiver does not release a 

manufacturer from complying with the 

applicable standard and certification 

requirements) and the responsibility for 

compliance with the waiver provisions 

(the manufacturer is responsible for the 

compliance regardless of who submits 

the petition). The rule would also 

specify how manufacturers would 

certify basic models specified in a 

petition for an interim waiver and 

waiver if the test procedure prescribed 

in the interim waiver differs from the 

test procedure prescribed in the 

subsequent decision and order on the 

waiver. This proposed language clarifies 

existing regulatory requirements and 

does not add new regulatory burden. 

The reinstatement of the provisions of 

10 CFR 430.27(b)(1) that were 

inadvertently removed is also not 

expected to impose a significant 

regulatory burden. These provisions 

require petitioners to: specify the basic 

model(s) to which the waiver applies, 

identify other manufacturers of similar 

products, include any known alternate 

test procedures of the basic model, sign 

the petition, and include a request 

seeking confidential treatment for any 

information deemed confidential. 

Manufacturers have already been 

complying with these requirements 

since they were enacted on November 

26, 1986. 51 FR 42826. 

In addition, the new waiver 

requirements would require petitioners 

to specify the brand names under which 

a basic model would be sold and 

expand the eligibility for waivers to all 

types of commercial equipment. These 

requirements are not expected to result 

in a significant impact, as they are 

consistent with the purpose of the 

existing waiver process, which is to 

assist manufacturers in testing their 

equipment to demonstrate compliance 

with DOE standards. The new waiver 

requirements would also amend the 

timelines for the issuance of an interim 

waiver from 15 to 30 days, a provision 

that manufacturers can account for in 

their product development and 

marketing schedule without significant 

difficulty. The proposed requirements 

would also extend the time periods 

covered by an interim waiver or waiver, 

providing more certainty for 

manufacturers as they rate, certify and 

market their products. The new 

proposal to clarify that DOE would not 

change the established metric in a test 

procedure waiver is also not expected to 

result in a significant impact because 

the established metric is already 

required as a result of the applicable 

energy conservation standard. 

DOE also proposes to specify that 

once DOE has granted a petition for 

waiver for a product or type of 

equipment employing a particular 

technology, other manufacturers of that 

product or equipment employing a 

technology or characteristic that results 

in the same need for a waiver must 

submit a petition for waiver within 60 

days. DOE does not expect this 

requirement to impose significant 

additional burden because, given that 

the products or equipment produced by 

these manufacturers employ a 

technology that provides the same 

function that led DOE to grant a waiver 

in the first instance, these 

manufacturers would likely need to 

petition for waiver under DOE’s existing 

regulations. This provision indicates the 

timeframe in which this process must be 

completed. 

The proposed rule would also set 

forth a process for manufacturers to 

request rescission or modification of a 

waiver. This provision would allow 

manufacturers to notify DOE if they 

believe a previously granted waiver is 

no longer needed, or that rescission or 

modification is necessary for other 

appropriate reasons. The provision then 

sets forth the process for DOE to 

consider and, as appropriate, grant the 

request. The intent of this provision is 

to reduce manufacturer burden by 

providing a process for manufacturers to 

request rescission or modification of a 

waiver that they believe is inappropriate 

or unworkable. Similarly, the rule 

would provide a process by which DOE 

may revoke or modify a previously 

granted waiver if DOE determines that 

the factual basis underlying the petition 

for waiver or interim waiver is incorrect, 

or upon a determination that the results 

from the alternate test procedure are 

unrepresentative of the basic models’ 

true energy consumption characteristics. 

In such cases, the manufacturer would 

be required to test its products or 

equipment using the DOE test 

procedure. DOE does not believe that 

this provision would result in a 

significant impact on small 

manufacturers. Given that a revocation 

or modification is only issued if the 

factual basis underlying the original 

petition was not correct in the first 

instance, EPCA would already require 

the manufacturers to use the applicable 

DOE test procedure. 

For the reasons stated above, DOE 

certifies that this proposed rule, if 

adopted, would not result in a 

significant impact on a substantial 

number of small entities. Accordingly, 

DOE has not prepared an initial 

regulatory flexibility analysis for this 

rulemaking. DOE will transmit this 

certification to the Small Business 

Administration (SBA) as required by 5 

U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act 

This proposed rule contains a 

collection-of-information requirement 

subject to review and approval by OMB 

under the Paperwork Reduction Act 

(PRA). This requirement has been 

submitted to OMB for approval. Public 

reporting burden for the submission of 

a petition for waiver or interim waiver, 

or a request for rescission, is estimated 

to average 5 hours per response, 

including the time for reviewing 


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instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

Public comment is sought regarding: 

whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

the accuracy of the burden estimate; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to U.S. 

Department of Energy, Office of Energy 

Efficiency and Renewable Energy, 

Building Technologies Program, EE–2J, 

1000 Independence Avenue SW., 

Washington, DC 20585–0121 or 

Amendments-Correction-2012-TP0003@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 

DOE has determined that this 

proposed rule falls into a class of 

actions that are categorically excluded 

from review under the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321, et seq.) and DOE’s 

implementing regulations at 10 CFR part 

1021. Specifically, this proposed rule 

amends an existing rule without 

changing its environmental effect and, 

therefore, is covered by the Categorical 

Exclusion in 10 CFR part 1021, subpart 

D, paragraph A5. Accordingly, neither 

an environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

DOE reviewed this proposed rule 

pursuant to Executive Order 13132, 

‘‘Federalism,’’ 64 FR 43255 (August 4, 

1999), which imposes certain 

requirements on agencies formulating 

and implementing policies or 

regulations that preempt State law or 

that have federalism implications. In 

accordance with DOE’s statement of 

policy describing the intergovernmental 

consultation process it will follow in the 

development of regulations that have 

federalism implications, 65 FR 13735 

(March 14, 2000), DOE examined 

today’s proposed rule and determined 

that the rule would not have a 

substantial direct effect on the States, on 

the relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of Government. See 74 FR 61497. 

Therefore, DOE has taken no further 

action in today’s proposed rule with 

respect to Executive Order 13132. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4729 (February 7, 1996)) 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, the 

proposed regulations meet the relevant 

standards of Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4; 2 U.S.C. 1501, et seq.) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. For a proposed regulatory 

action likely to result in a rule that may 

cause the expenditure by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year 

(adjusted annually for inflation), section 

202 of UMRA requires a Federal agency 

to publish estimates of the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a),(b)) 

UMRA also requires a Federal agency to 

develop an effective process to permit 

timely input by elected officers of State, 

local, and Tribal governments on a 

proposed ‘‘significant intergovernmental 

mandate,’’ and requires an agency plan 

for giving notice and opportunity for 

timely input to potentially affected 

small governments before establishing 

any requirements that might 

significantly or uniquely affect such 

governments. On March 18, 1997, DOE 

published a statement of policy on its 

process for intergovernmental 

consultation under UMRA. 62 FR 

12820. (The policy is also available at 

http://energy.gov/gc/office-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 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 


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Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Proposed Rules 74621 

8452 (February 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (October 7, 2002). DOE has 

reviewed today’s proposed rule under 

OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OIRA a Statement 

of Energy Effects for any proposed 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates or is 

expected to lead to promulgation of a 

final rule, and that (1) is a significant 

regulatory action under Executive Order 

12866, or any successor order; and (2) 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy; or (3) is designated by the 

Administrator of OIRA as a significant 

energy action. For any proposed 

significant energy action, the agency 

must give a detailed statement of any 

adverse effects on energy supply, 

distribution, or use if the proposal is 

implemented, and of reasonable 

alternatives to the action and their 

expected benefits on energy supply, 

distribution, and use. Today’s proposed 

regulatory action, which proposes a 

correction and minor amendments to 

the Department’s waiver application 

procedures, is not a significant 

regulatory action under Executive Order 

12866, it would not have a significant 

adverse effect on the supply, 

distribution, or use of energy; and has 

not been designated by the 

Administrator of OIRA as a significant 

energy action. Therefore, it is not a 

significant energy action, and, 

accordingly, DOE has not prepared a 

Statement of Energy Effects. 

V. Public Participation 

A. Submission of Comments 

DOE will accept comments, data, and 

information regarding the proposed rule 

no later than the date provided at the 

beginning of this notice. Comments, 

data, and information submitted to 

DOE’s email address for this rulemaking 

should be provided in WordPerfect, 

Microsoft Word, PDF, or text (ASCII) file 

format. Interested parties should avoid 

the use of special characters or any form 

of encryption, and, wherever possible, 

comments should include the electronic 

signature of the author. Absent an 

electronic signature, comments 

submitted electronically must be 

followed and authenticated by 

submitting a signed original paper 

document to the address provided at the 

beginning of this notice. Comments, 

data, and information submitted to DOE 

via mail or hand delivery/courier 

should include one signed original 

paper copy. No telefacsimiles (faxes) 

will be accepted. 

According to 10 CFR 1004.11, any 

person submitting information that he 

or she believes to be confidential and 

exempt by law from public disclosure 

should submit two copies: one copy of 

the document including all the 

information believed to be confidential 

and one copy of the document with the 

information believed to be confidential 

deleted. DOE will make its own 

determination as to the confidential 

status of the information and treat it 

according to its determination. 

Factors of interest to DOE when 

evaluating requests to treat submitted 

information as confidential include (1) a 

description of the items, (2) whether 

and why such items are customarily 

treated as confidential within the 

industry, (3) whether the information is 

generally known by or available from 

other sources, (4) whether the 

information has previously been made 

available to others without obligation 

concerning its confidentiality, (5) an 

explanation of the competitive injury to 

the submitting person which would 

result from public disclosure, (6) a date 

upon which such information might 

lose its confidential nature due to the 

passage of time, and (7) why disclosure 

of the information would be contrary to 

the public interest. 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s NOPR. 

List of Subjects 

10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Intergovernmental relations, Small 

businesses. 

10 CFR Part 431 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Reporting and recordkeeping 

requirements. 

Issued in Washington, DC, on November 

21, 2012. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

For the reasons stated in the 

preamble, DOE is proposing to amend 

chapter II, subchapter D, of title 10 of 

the Code of Federal Regulations, to read 

as set forth below: 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

1. The authority citation for part 430 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6309; 28 U.S.C. 

2461 note. 

2. Section 430.27 is amended by: 

a. Revising the section heading; 

b. Adding introductory text to 

paragraph (a); 

c. Adding a paragraph (a)(3); 

d. Revising paragraphs (b), (c), (e), (g), 

(h), (i), (j) and (l); 

e. Redesignating paragraphs (m) and 

(n) as paragraphs (p) and (q); 

f. Adding paragraphs (m), (n) and (o); 

and 

g. Revising newly redesignated 

paragraphs (p) and (q). 

The addition and revisions read as 

follows: 

§ 430.27 Petitions for waiver and interim 

waiver. 

(a) This section provides a means for 

manufacturers of covered products to 

seek waivers of the test procedure 

requirements of this subpart for basic 

models that meet the requirements of 

paragraph (a)(1) of this section. In 

granting a waiver or interim waiver, 

DOE will not change the energy use or 

efficiency metric that the manufacturer 

must use to certify compliance with the 

applicable energy conservation standard 

or make representations about the 

energy use or efficiency of the covered 

product. The granting of a waiver or 

interim waiver by DOE requires the use 

of the specified alternative method for 

testing the basic models addressed in 

the waiver, and does not exempt such 

basic models from any other regulatory 

requirement contained in this part or 

the certification and compliance 

requirements of 10 CFR part 429. * * * 

* * * * * 

(3) Manufacturers of basic model(s) 

covered by a waiver or interim waiver 

are responsible for complying with the 

other requirements of this subpart and 

with the requirements of 10 CFR part 

429 regardless of the person that 

originally submitted the petition for 

waiver and/or interim waiver. 


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(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 20585–0121. Each 

petition for waiver shall: 

(i) Identify the particular basic 

model(s) for which a waiver is 

requested, each brand name under 

which the identified basic model(s) will 

be distributed in commerce, design 

characteristic(s) constituting the 

grounds for the petition, and the 

specific requirements sought to be 

waived and shall discuss in detail the 

need for the requested waiver; 

(ii) Identify manufacturers of all other 

basic models distributed in commerce 

in the United States and known to the 

petitioner to incorporate similar design 

characteristic(s); 

(iii) Include any alternate test 

procedures known to the petitioner to 

evaluate the performance of the product 

type in a manner representative of the 

energy consumption characteristics, or 

water consumption characteristics of the 

basic model; and 

(iv) Be signed by the petitioner or by 

an authorized representative. In 

accordance with the provisions set forth 

in 10 CFR 1004.11, any request for 

confidential treatment of any 

information contained in a petition for 

waiver or in supporting documentation 

must be accompanied by a copy of the 

petition, application or supporting 

documentation from which the 

information claimed to be confidential 

has been deleted. DOE shall publish in 

the Federal Register the petition and 

supporting documents from which 

confidential information, as determined 

by DOE, has been deleted in accordance 

with 10 CFR 1004.11 and shall solicit 

comments, data and information with 

respect to the determination of the 

petition. Any person submitting written 

comments to DOE with respect to a 

Petition for Waiver shall also send a 

copy of such comments to the 

petitioner. In accordance with 

paragraph (i) of this section, a petitioner 

may submit a rebuttal statement to DOE. 

(2) A petition for interim waiver shall 

be submitted either electronically to 

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 EE–2J, 

Washington, DC 20585–0121. Each 

petition for interim waiver shall 

reference the related petition for waiver 

by identifying the particular basic 

model(s) for which a waiver is being 

sought. Each petition for interim waiver 

shall demonstrate likely success of the 

petition for waiver. Each petition for 

interim waiver shall be signed by the 

applicant or by an authorized 

representative. 

(c)(1) Each petitioner for interim 

waiver shall, upon publication of a grant 

of an interim waiver in the Federal 

Register, notify in writing all known 

manufacturers of domestically marketed 

basic models of the same product class 

(as specified in 10 CFR 430.32) and of 

other product classes known to the 

petitioner to use the technology or have 

the characteristic at issue in the waiver. 

The notice shall include a statement 

that DOE has published the interim 

waiver and petition for waiver in the 

Federal Register and the date the 

petition for waiver was published. The 

notice must also include a statement 

that DOE will receive and consider 

timely written comments on the petition 

for waiver. Within five working days, 

each petitioner shall file with DOE a 

statement certifying the names and 

addresses of each person to whom a 

notice of the petition for waiver has 

been sent. 

(2) If a petitioner does not request an 

interim waiver and notification has not 

been provided pursuant to paragraph 

(c)(1), each petitioner, after filing a 

petition for waiver with DOE, and after 

the petition for waiver has been 

published in the Federal Register, shall, 

within five working days of such 

publication, notify in writing all known 

manufacturers of domestically marketed 

units of the same product class (as listed 

in 10 CFR 430.32) and of other product 

classes known to petitioner to use the 

technology or have the characteristic at 

issue in the waiver. The notice shall 

include a statement that DOE has 

published the petition in the Federal 

Register and the date the petition for 

waiver was published. Within five 

working days of the publication of the 

petition in the Federal Register, each 

petitioner shall file with DOE a 

statement certifying the names and 

addresses of each person to whom a 

notice of the petition for waiver has 

been sent. 

* * * * * 

(e) If administratively feasible, a 

petitioner shall be notified in writing of 

the disposition of the petition for 

interim waiver within 30 business days 

of receipt of the petition. Notice of 

DOE’s determination on the petition for 

interim waiver shall be published in the 

Federal Register. 

* * * * * 

(g) An interim waiver from the test 

procedure requirements will be granted 

by DOE if it appears likely that the 

petition for waiver will be granted, and/ 

or DOE determines that it would be 

desirable for public policy reasons to 

grant immediate relief pending a 

determination on the petition for 

waiver. 

(h)(1) An interim waiver will 

terminate one year after publication in 

the Federal Register unless either of the 

following occurs first: 

(i) DOE publishes in the Federal 

Register a determination on the petition 

for waiver; or 

(ii) DOE publishes in the Federal 

Register a new or amended test 

procedure that addresses the issues 

presented in the waiver, and 

manufacturers are required to use that 

test procedure to demonstrate 

compliance with the applicable 

standard. 

(2) DOE may extend the scope of an 

interim waiver upon request of the 

petitioner to include additional basic 

models employing the same technology 

as the basic models set forth in the 

original petition. DOE shall publish any 

such extension in the Federal Register. 

(i) Following publication of the 

petition for waiver in the Federal 

Register, a petitioner may, within 10 

working days of receipt of a copy of a 

comment submitted in accordance with 

paragraph (b)(1) of this section, submit 

a rebuttal statement to DOE. A 

petitioner may rebut more than one 

response in a single rebuttal statement. 

(j) The petitioner shall be notified in 

writing as soon as practicable of the 

disposition of each petition for waiver. 

DOE shall issue a decision on the 

petition as soon as is practicable 

following receipt and review of the 

Petition for Waiver and other applicable 

documents, including, but not limited 

to, comments and rebuttal statements. 

* * * * * 

(l) Waivers will be granted by DOE if 

it is determined either that the basic 

model(s) for which the waiver was 

requested contains a design 

characteristic that prevents testing of the 

basic model according to the prescribed 

test procedures, or that the prescribed 

test procedures may evaluate the basic 

model in a manner so unrepresentative 

of its true energy or water consumption 

characteristics as to provide materially 

inaccurate comparative data. Waivers 

may be granted subject to conditions, 

which may include adherence to 

alternate test procedures specified by 

DOE. DOE shall consult with the 

Federal Trade Commission prior to 

granting any waiver, and shall promptly 


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publish in the Federal Register notice of 

each waiver granted or denied, and any 

limiting conditions of each waiver 

granted. DOE may extend the scope of 

a waiver upon request of the petitioner 

to include additional basic models 

employing the same technology as the 

basic models set forth in the original 

petition. Notification of such extension 

will be published in the Federal 

Register. 

(m)(1) If the alternate test procedure 

specified in the interim waiver differs 

from the alternate test procedure 

specified by DOE in a subsequent 

decision and order granting the petition 

for waiver, a manufacturer who has 

already certified basic models using the 

procedure permitted in DOE’s grant of 

an interim test procedure waiver does 

not need to re-test and re-rate those 

basic models so long as: 

(i) The manufacturer used that 

alternative procedure to certify the 

compliance of the basic model after 

DOE granted the company’s interim 

waiver request; 

(ii) Changes have not been made to 

those basic models that would cause 

them to use more energy or otherwise be 

less energy efficient; and 

(iii) The manufacturer does not 

modify the certified rating. 

(2) After DOE publishes a decision 

and order in the Federal Register, a 

manufacturer must use the test 

procedure contained in that notice to 

rate any basic models covered by the 

waiver that have not yet been certified 

to DOE and for any future testing in 

support of the certification for the basic 

model(s). 

(n) Not later than 60 days after DOE 

grants a petition for waiver for a product 

employing a particular technology or 

having a particular characteristic, any 

manufacturer of that product employing 

a technology or characteristic that 

results in the same need for a waiver, as 

specified by DOE in the published 

petition for waiver in the Federal 

Register, must submit a petition for 

waiver pursuant to the requirements of 

this section. Manufacturers may also 

submit a request for interim waiver 

pursuant to the requirements of this 

section. 

(o)(1) Waivers and interim waivers are 

conditioned upon the validity of 

statements, representations, and 

documents provided by the petitioner. 

DOE may revoke or modify a waiver or 

interim waiver at any time upon a 

determination that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic models’ 

true energy consumption characteristics. 

DOE will publish any proposed 

rescission or modification in the 

Federal Register for public comment. 

DOE will also publish its decision in the 

Federal Register. 

(2) Petitioners may request that DOE 

rescind or modify a waiver or interim 

waiver if the petitioner discovers an 

error in the information provided to 

DOE as part of its petition, determines 

that the waiver is no longer needed, or 

for other appropriate reasons. DOE will 

publish any request for rescission or 

modification in the Federal Register for 

public comment. DOE will also publish 

its decision on the request in the 

Federal Register. The decision shall be 

based on relevant information contained 

in the record and any comments 

received. Basic models tested 

subsequent to the effective date of a 

rescission must be tested using the 

applicable DOE test procedure in 10 

CFR part 430. 

(p) As soon as practicable after the 

granting of any waiver, DOE will 

publish in the Federal Register a notice 

of proposed rulemaking to amend its 

regulations so as to eliminate any need 

for the continuation of such waiver. As 

soon thereafter as practicable, DOE will 

publish in the Federal Register a final 

rule. Such waiver will terminate on the 

date on which use of the test procedure 

established in such final rule is required 

to demonstrate compliance with the 

applicable conservation standard. 

(q) In order to exhaust administrative 

remedies, any person aggrieved by an 

action under this section must file an 

appeal with the DOE’s Office of 

Hearings and Appeals as provided in 10 

CFR part 1003, subpart C. 

PART 431—ENERGY EFFICIENCY 

PROGRAM FOR CERTAIN 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

3. The authority citation for part 431 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6317. 

4. Section 431.2 is amended by 

revising the definition of ‘‘Private 

labeler’’ to read as follows: 

§ 431.2 Definitions. 

* * * * * 

Private labeler means, with respect to 

any product covered under this part, an 

owner of a brand or trademark on the 

label of a covered product which bears 

a private label. A covered product bears 

a private label if: 

(1) Such product (or its container) is 

labeled with the brand or trademark of 

a person other than a manufacturer of 

such product; 

(2) The person with whose brand or 

trademark such product (or container) is 

labeled has authorized or caused such 

product to be so labeled; and 

(3) The brand or trademark of a 

manufacturer of such product does not 

appear on such label. 

* * * * * 

5. Section 431.401 is amended by: 

a. Revising the section heading; 

b. Adding introductory text to 

paragraph (a); 

c. Revising paragraph (a)(1); 

d. Adding paragraph (a)(3); 

e. Revising paragraphs (b)(1) 

introductory text, (b)(1)(i), (b)(2), (c), 

(d)(2), (e)(1), (e)(3), and (e)(4); 

f. Adding paragraph (e)(5); 

g. Revising paragraphs (f)(1), (f)(2), 

and (f)(4); 

h. Adding paragraph (f)(5); 

i. Redesignating paragraph (g) as (j); 

j. Adding paragraphs (g), (h), and (i); 

k. Revising newly redesignated 

paragraph (j); and 

l. Adding a new paragraph (k). 

The additions and revisions read as 

follows: 

§ 431.401 Petitions for waiver and interim 

waiver. 

(a) General criteria. This section 

provides a means for manufacturers of 

covered equipment to seek waivers of 

the test procedure requirements of this 

part for basic models that meet the 

requirements of paragraph (a)(1) of this 

section. In granting a waiver or interim 

waiver, DOE will not change the energy 

use or efficiency metric that the 

manufacturer must use to certify 

compliance with the applicable energy 

conservation standard or make 

representations about the energy use or 

efficiency of the covered equipment. 

The granting of a waiver or interim 

waiver requires the use of the specified 

alternative method for testing the basic 

models addressed in the waiver, and 

does not exempt such basic models from 

any other regulatory requirement 

contained in this part or the certification 

and compliance requirements of 10 CFR 

part 429. 

(1) Any interested person may submit 

a petition to waive for a particular basic 

model the requirements of any uniform 

test method contained in this part, upon 

the grounds that either the basic model 

contains one or more design 

characteristics that prevent testing of the 

basic model according to the prescribed 

test procedures, or the prescribed test 

procedures may evaluate the basic 

model in a manner so unrepresentative 

of its true energy consumption 

characteristics as to provide materially 

inaccurate comparative data. 

* * * * * 


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(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 interim waiver must 

reference the petition for waiver by 

identifying the particular basic model(s) 

for which a waiver is being sought. Each 

petition for interim waiver must 

demonstrate likely success of the 

petition for waiver and address what 

economic hardship and/or competitive 

disadvantage is likely to result absent a 

favorable determination on the petition 

for interim waiver. Each petition for 

interim waiver shall be signed by the 

petitioner or an authorized 

representative. 

(c) Notification to other 

manufacturers. (1) Each petitioner for 

interim waiver shall, upon publication 

of a grant of an interim waiver in the 

Federal Register, notify in writing all 

known manufacturers of domestically 

marketed units of the same equipment 

class (as set forth in the relevant subpart 

of 10 CFR part 431), and of other 

equipment classes known to the 

petitioner to use the technology or 

characteristic at issue in the waiver. The 

notice must include a statement that 

DOE has published the interim waiver 

and petition for waiver in the Federal 

Register and the date the petition for 

waiver was published. The notice must 

also include a statement that DOE will 

receive and consider timely written 

comments on the petition for interim 

waiver. Within five working days, each 

petitioner must file with DOE a 

statement certifying the names and 

addresses of each person to whom a 

notice of the petition for waiver has 

been sent. 

(2) If a manufacturer does not request 

an interim waiver and notification has 

not been provided pursuant to 

paragraph (1), each petitioner, after 

filing a petition for waiver with DOE, 

and after the petition for waiver has 

been published in the Federal Register, 

shall, within five working days of such 

publication, notify in writing all known 

manufacturers of domestically marketed 

units of the same equipment class (as 

listed in the relevant subpart of 10 CFR 

part 431), and of other product classes 

known to the petitioner to use the 

technology or characteristic at issue in 

the waiver. The notice shall include a 

statement that DOE has published in the 

Federal Register on a certain date the 

petition for waiver and supporting 

documents from which confidential 

information, if any, as determined by 

DOE, has been deleted in accordance 

with 10 CFR 1004.11. Each petitioner 

shall file with DOE a statement 

certifying the names and addresses of 

each person to whom a notice of the 

petition for waiver has been sent. 

(d) * * * 

(2) Any person submitting written 

comments to DOE with the respect to a 

petition for waiver must also send a 

copy of such comments to the 

petitioner. In accordance with 

paragraph (b)(1) of this section, a 

petitioner may submit a rebuttal 

statement to DOE. 

(e) Provisions specific to interim 

waivers—(1) Disposition of application. 

If administratively feasible, DOE will 

notify the applicant in writing of the 

disposition of the petition for interim 

waiver within 30 business days of 

receipt of the application. Notice of 

DOE’s determination on the petition for 

interim waiver will be published in the 

Federal Register. 

* * * * * 

(3) Criteria for granting. DOE will 

grant an interim waiver from test 

procedure requirements if it appears 

likely that the petition for waiver will be 

granted, and/or if DOE determines that 

it would be desirable for public policy 

reasons to grant immediate relief 

pending a determination on the petition 

for waiver. 

(4) Duration. An interim waiver will 

terminate one year after publication in 

the Federal Register unless either of the 

following occurs first: 

(i) DOE publishes in the Federal 

Register a determination on the petition 

for waiver; or 

(ii) DOE publishes in the Federal 

Register a new or amended test 

procedure that addresses the issues 

presented in the waiver, and 

manufacturers are required to use that 

test procedure to demonstrate 

compliance with the applicable 

standard. 

(5) Extension to additional basic 

models. DOE may extend the scope of 

an interim waiver upon request of the 

petitioner to include additional basic 

models employing the same technology 

as the basic models set forth in the 

original petition. Notification of such 

extension will be published in the 

Federal Register. 

(f) * * * 

(1) Rebuttal by petitioner. Following 

publication of the petition for waiver in 

the Federal Register, a petitioner may, 

within 10 working days of receipt of a 

copy of any comments submitted in 

accordance with paragraph (b)(1) of this 

section, submit a rebuttal statement to 

DOE. A petitioner may rebut more than 

one response in a single rebuttal 

statement. 

(2) Disposition of petition. DOE will 

notify the petitioner in writing as soon 

as practicable of the disposition of each 

petition for waiver. DOE will issue a 

decision on the petition as soon as is 

practicable following receipt and review 

of the petition for waiver and other 

applicable documents, including, but 

not limited to, comments and rebuttal 

statements. 

* * * * * 

(4) Granting: criteria, conditions, and 

publication. DOE will grant a waiver if 

it determines that either the basic model 

for which the waiver was requested 

contains a design characteristic that 

prevents testing of the basic model 

according to the prescribed test 

procedures, or the prescribed test 

procedures may evaluate the basic 

model in a manner so unrepresentative 

of its true energy consumption 

characteristics as to provide materially 

inaccurate comparative data. DOE may 

grant a waiver subject to conditions, 

which may include adherence to 

alternate test procedures. DOE will 

promptly publish in the Federal 

Register notice of each waiver granted 

or denied, and any limiting conditions 

of each waiver granted. In granting a 

waiver, DOE will not change the energy 

use or efficiency metric that the 

manufacturer must use to certify 

compliance with the applicable energy 


pmangrum on DSK3VPTVN1PROD with 
Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Proposed Rules 74625 

conservation standard or make 

representations about the energy use or 

efficiency of the covered product. 

(5) Extension to additional basic 

models. DOE may extend the scope of a 

waiver upon request of the petitioner to 

include additional basic models 

employing the same technology as the 

basic models set forth in the original 

petition. Notification of such extension 

will be published in the Federal 

Register. 

(g) If the alternate test procedure 

specified in the interim waiver differs 

from the alternate test procedure 

specified by DOE in the subsequent 

decision and order granting the petition 

for waiver, a manufacturer who has 

already certified basic models using the 

procedure permitted in DOE’s grant of 

an interim test procedure waiver does 

not need to re-test and re-rate those 

basic models so long as: 

(1) The manufacturer used that 

alternative procedure after DOE granted 

the company’s interim waiver request; 

and 

(2) Changes have not been made to 

those basic models that would cause 

them to use more energy or otherwise be 

less energy efficient. 

(3) After DOE publishes a decision 

and order in the Federal Register, a 

manufacturer must use the test 

procedure contained in that notice to 

rate any basic models that have not yet 

been certified to DOE and for any future 

testing of any basic model(s) covered by 

the decision and order. 

(h) Not later than 60 days after DOE 

grants a petition for waiver for a type of 

equipment employing a particular 

technology or characteristic, any 

manufacturer of that equipment 

employing a technology or characteristic 

that results in the same need for a 

waiver, as specified by DOE in the 

published petition for waiver in the 

Federal Register, must submit a petition 

for waiver pursuant to the requirements 

of this section. Manufacturers may also 

submit a request for interim waiver 

pursuant to the requirements of this 

section. 

(i)(1) Waivers and interim waivers are 

conditioned upon the presumed validity 

of statements, representations, and 

documents provided by the petitioner. 

DOE may revoke or modify a waiver or 

interim waiver at any time upon a 

determination that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic models’ 

true energy consumption characteristics. 

DOE will publish any proposed 

rescission or modification in the 

Federal Register for public comment. 

DOE will also publish its decision in the 

Federal Register. 

(2) Petitioners may request that DOE 

rescind or modify a waiver or interim 

waiver if the petitioner discovers an 

error in the information provided to 

DOE as part of its petition, determines 

that the waiver is no longer needed, or 

for other appropriate reasons. DOE will 

publish any request for rescission or 

modification in the Federal Register for 

public comment. DOE will also publish 

its decision on the request in the 

Federal Register. The decision shall be 

based on relevant information contained 

in the record and any comments 

received. Basic models tested 

subsequent to the effective date of a 

rescission must be tested using the 

applicable DOE test procedure. 

(j) Revision of regulation. As soon as 

practicable after the granting of any 

waiver, DOE will publish in the Federal 

Register a notice of proposed 

rulemaking to amend its regulations so 

as to eliminate any need for the 

continuation of such waiver. As soon 

thereafter as practicable, DOE will 

publish in the Federal Register a final 

rule. Such waiver will terminate on the 

date on which use of the test procedure 

established in such final rule is required 

to demonstrate compliance with the 

applicable conservation standard. 

(k) In order to exhaust administrative 

remedies, any person aggrieved by an 

action under this section must file an 

appeal with the DOE’s Office of 

Hearings and Appeals as provided in 10 

CFR part 1003, subpart C. 

[FR Doc. 2012–30195 Filed 12–14–12; 8:45 am] 

BILLING CODE 6450–01–P 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Chapter X 

[Docket No. CFPB–2012–0046] 

Policy To Encourage Trial Disclosure 

Programs; Information Collection 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Notice of proposed policy and 

proposed information collection; 

request for comment. 

SUMMARY: The Bureau of Consumer 

Financial Protection (Bureau) invites the 

general public and other Federal 

agencies to take this opportunity to 

comment on its proposed Policy to 

Encourage Trial Disclosure Programs 

(Policy), which is intended to carry out 

the Bureau’s authority under Section 

1032(e) of the Dodd-Frank Wall Street 

Reform and Consumer Protection Act of 

2010 (Dodd-Frank Act), and also a 

proposed information collection 

associated with applications submitted 

by companies seeking Bureau approval 

to conduct trial disclosure programs 

under the proposed Policy as required 

by the Paperwork Reduction Act of 

1995. 

DATES: Written comments are 

encouraged and must be received on or 

before February 15, 2013 to be assured 

of consideration. 

ADDRESSES: Submit comments on the 

proposed Policy by any of the following 

methods: 

• Electronic: http:// 

www.regulations.gov. Follow the 

instructions on this site for submitting 

comments. 

• Mail/Hand Delivery/Courier: 

Monica Jackson, Office of the Executive 

Secretary, Consumer Financial 

Protection Bureau, 1700 G Street NW., 

Washington, DC 20552. 

Submit comments on the proposed 

information collection by any of the 

following methods: 

• Electronic: 

CFPB_Public_PRA@cfpb.gov. 

• Mail/Hand Delivery/Courier: Direct 

all written comments to Consumer 

Financial Protection Bureau (Attention: 

PRA Office), 1700 G Street NW., 

Washington, DC 20552. 

Instructions: Submissions should 

include agency name and the title 

‘‘Policy to Encourage Trial Disclosure 

Programs; Information Collection.’’ 

Comments will be available for public 

inspection and copying at 1700 G Street 

NW., Washington, DC 20552 on official 

business days between the hours of 10 

a.m. and 5 p.m. Eastern Time. You can 

make an appointment to inspect 

comments by telephoning (202) 435– 

7275. All comments, including any 

attachments and other supporting 

materials, will become part of the public 

record and subject to public disclosure. 

For this reason, please do not include in 

your comments information of a 

confidential nature, such as sensitive 

personal information or proprietary 

information. You should only submit 

information that you wish to make 

available publicly. 

FOR FURTHER INFORMATION CONTACT: For 

additional information about the 

proposed information collection, 

contact the Consumer Financial 

Protection Bureau, (Attention: PRA 

Office), 1700 G Street NW., Washington, 

DC 20552, (202) 435–9011, or through 

the Internet at 

CFPB_Public_PRA@cfpb.gov. For 

additional information about the 


pmangrum on DSK3VPTVN1PROD with