This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

26591 

Vol. 79, No. 90 

Friday, May 9, 2014 

1All references to EPCA in this final rule refer to 

the statute as amended through the American 

Energy Manufacturing Technical Corrections Act 

(AEMTCA), Public Law 112–210 (Dec. 18, 2012). 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 946 

[Doc. No. AMS–FV–13–0067; FV13–946–2 

FIR] 

Irish Potatoes Grown in Washington; 

Temporary Change to the Handling 

Regulations and Reporting 

Requirements for Yellow Fleshed and 

White Types of Potatoes 

Correction 

In rule document 2014–10036, 

appearing on pages 24997 through 

24999 in the issue of Friday, May 2, 

2014, make the following correction: 

On page 24998, in the first column, in 

the DATES section, ‘‘May 5, 2013’’ 

should read ‘‘May 5, 2014’’. 

[FR Doc. C1–2014–10036 Filed 5–8–14; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 1005, 1006 and 1007 

[Doc. No. AMS–DA–07–0059; AO–388–A22, 

AO–356–A43 and AO–366–A51; DA–07–03] 

Milk in the Appalachian, Florida, and 

Southeast Marketing Areas; Order 

Amending the Orders 

Correction 

In rule document 2014–10037, 

appearing on pages 24999 through 

25002 in the issue of Friday, May 2, 

2014, make the following correction: 

On page 24999, in the third column, 

in the DATES section, ‘‘May 5, 2013’’ 

should read ‘‘May 5, 2014’’. 

[FR Doc. C1–2014–10037 Filed 5–8–14; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 1005 and 1007 

[Doc. No. AMS–DA–09–0001; AO–388–A17 

and AO–366–A46; DA–05–06–A] 

Milk in the Appalachian and Southeast 

Marketing Areas; Order Amending the 

Orders 

Correction 

In rule document 2014–10031, 

appearing on pages 25003 through 

25006 in the issue of Friday, May 2, 

2014, make the following correction: 

On page 25003, in the first column, in 

the DATES section, ‘‘May 5, 2013’’ 

should read ‘‘May 5, 2014’’. 

[FR Doc. C1–2014–10031 Filed 5–8–14; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF ENERGY 

10 CFR Parts 430 and 431 

[Docket No. EERE–2012–BT–TP–0003] 

RIN 1904–AC70 

Amendments and Correction to 

Petitions for Waiver and Interim Waiver 

for Consumer Products and 

Commercial and Industrial Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: In this final rule, DOE amends 

portions of its regulations governing 

petitions for waiver and interim waiver 

from DOE test procedures to restore, 

with minor amendments, text 

inadvertently omitted in the March 7, 

2011 certification, compliance, and 

enforcement final rule. Additionally, the 

rule adopts a process by which other 

manufacturers of a product employing a 

specific technology or characteristic, for 

which DOE has granted a waiver to 

another manufacturer for a product 

employing that particular technology, 

would be required to petition for a 

waiver. The rule also sets forth a process 

for manufacturers to request rescission 

or modification of a waiver if they 

determine that the waiver is no longer 

needed, or for other appropriate reasons; 

adopts other minor modifications to the 

waiver provisions for both consumer 

products and industrial equipment; and 

clarifies certain aspects related to the 

submission and processing of a waiver 

petition. 

DATES: The effective date of this rule is 

June 9, 2014. 

ADDRESSES: The docket, which includes 

Federal Register notices, comments, 

and other supporting documents/

materials, is available for review at 

regulations.gov. All documents in the 

docket are listed in the regulations.gov 

index. However, some documents listed 

in the index, such as those containing 

information that is exempt from public 

disclosure, may not be publicly 

available. 

A link to the docket Web page can be 

found at: http://www.regulations.gov/

#!docketDetail;D=EERE-2012-BT-TP0003. This Web page will contain a link 

to the docket for this notice on the 

regulations.gov site. The regulations.gov 

Web page will contain simple 

instructions on how to access all 

documents, including public comments, 

in the docket. 

For further information on how to 

review the docket, contact Ms. Brenda 

Edwards at (202) 586–2945 or by email: 

Brenda.Edwards@ee.doe.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Ashley Armstrong, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121. Phone: 

202–586–6590. Email: AS_Waiver_

Requests@ee.doe.gov. 

Ms. Elizabeth Kohl, U.S. Department 

of Energy, Office of the General Counsel, 

1000 Independence Avenue SW., 

Washington, DC 20585–0121. Phone: 

202–586–7796. Email: Elizabeth.Kohl@

hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Authority 

Title III of the Energy Policy and 

Conservation Act of 1975 (‘‘EPCA’’ or 

the ‘‘Act’’), Public Law 94–163 (42 

U.S.C. 6291 et seq.), as amended,1 sets 

forth a variety of provisions designed to 

improve energy efficiency. Part A of 

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


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26592 Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 

2For 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. 

for the Energy Conservation Program for 

Consumer Products Other Than 

Automobiles. The National Energy 

Conservation Policy Act (NECPA), 

Public Law 95–619, amended EPCA to 

add Part A–1 of Title III, which 

established an energy conservation 

program for certain industrial 

equipment. (42 U.S.C. 6311–6317) 2

This final rule involves the regulatory 

provisions governing the submission 

and processing of test procedure 

waivers for both consumer products 

under Part A of EPCA and industrial 

equipment under Part A–1. EPCA 

directs DOE to prescribe test procedures 

that are reasonably designed to produce 

results reflecting the energy efficiency, 

energy use, and estimated annual 

operating costs for those products, and 

that are not unduly burdensome to 

conduct. 42 U.S.C. 6293(b)(3), 

6314(a)(2). DOE’s regulations in Title 10 

of the Code of Federal Regulations 

(CFR), Section 430.27 (consumer 

products) and Section 431.401 

(commercial equipment) contain 

provisions allowing a person to seek a 

waiver from the test procedure 

requirements if certain conditions are 

met. A waiver allows manufacturers to 

use an alternative test procedure in 

situations where the DOE test procedure 

cannot be used to test the product or 

equipment, or where use of the DOE test 

procedure would generate 

unrepresentative results. 

II. Background 

On December 17, 2012, DOE 

published a notice of proposed 

rulemaking (NOPR) (77 FR 74616) to 

propose amendments and corrections to 

portions of its regulations governing 

petitions for waiver and interim waiver 

from DOE test procedures. The NOPR 

proposed to restore, with minor 

amendments, text inadvertently omitted 

during another rulemaking and 

proposed a process by which, after DOE 

grants a waiver for a product employing 

a particular technology, other 

manufacturers of that product 

employing a technology or characteristic 

that results in the same need for a 

waiver would submit a petition for 

waiver. The NOPR also set forth a 

process for manufacturers to request 

rescission or modification of a waiver if 

they determine that the waiver is no 

longer needed, or for other appropriate 

reasons. DOE also proposed to make 

other minor modifications to the waiver 

provisions for both consumer products 

and commercial equipment and to 

clarify certain aspects related to the 

submission and processing of a waiver 

petition. This final rule adopts, with 

minor modifications, those proposals. 

The amendments are described in more 

detail in Section III. 

III. Discussion of Specific Revisions to 

Waiver Provisions 

In this final rule, DOE is adding an 

introductory paragraph to 430.27(a) and 

431.401(a) to clarify that obtaining a 

waiver or interim waiver does not 

exempt a manufacturer of consumer 

products or commercial equipment from 

compliance with any other applicable 

regulatory requirements contained in 10 

CFR parts 430 and 431, or the 

certification and compliance 

requirements of 10 CFR part 429. While 

a test procedure waiver or interim 

waiver provides an alternate test 

method for a particular basic model, a 

waiver cannot provide an alternative 

metric by which to certify compliance 

with an applicable standard or make 

representations as to the energy and/or 

water use of that basic model. The 

modifications to sections 430.27(a) and 

431.401(a) clarify that a waiver or 

interim waiver cannot change the metric 

by which the energy use or efficiency of 

a basic model is described. This 

language affirms that a waiver is solely 

an authorization to use an alternative 

test method and does not relieve the 

manufacturer from any other regulatory 

requirements. The Association of Home 

Appliance Manufacturers (AHAM) 

commented that this clarification 

represents AHAM’s understanding of 

current practice and, thus, did not 

oppose adding the express statements to 

the regulations. (AHAM, No. 4 at p. 2) 

With regard to waiver applications for 

commercial equipment addressed in 

part 431, DOE is modifying section 

431.401(a)(1) to expand the waiver 

provisions to apply to manufacturers of 

all types of covered commercial 

equipment, rather than just the five 

types of equipment currently listed (i.e., 

commercial warm air furnaces; 

commercial packaged boilers; small, 

large, and very large commercial 

package air conditioning and heating 

equipment; packaged terminal air 

conditioners and packaged terminal 

heat pumps; and commercial water 

heaters and hot water supply boilers 

(other than commercial heat pump 

water heaters); collectively, commercial 

HVAC and WH equipment). As a related 

action, DOE is amending the definition 

of ‘‘private labeler’’ in section 431.2 to 

reflect that the term applies to all 

products covered under part 431, and 

not only to commercial HVAC and WH 

equipment, as the definition currently 

states. Because this term could be 

applicable to persons who may submit 

petitions for waivers, or entities 

potentially affected by waivers issued 

under section 431.401, this change will 

ensure that the term is applied 

uniformly to all products. AHAM 

supported DOE extending the ability to 

obtain waivers to manufacturers of other 

commercial equipment, such as 

commercial clothes washers. (AHAM, 

No. 4 at p. 7) AHAM also stated that it 

did not oppose DOE amending the 

definition of private labeler in part 431. 

(AHAM, No. 4 at p. 7) 

DOE has redesignated existing 

sections 430.27(f) and (k) into 

430.27(a)(2), and 431.401(e)(2) and 

431.401(f)(3) into 431.401(a)(2). To 

clarify compliance obligations further, 

DOE is amending sections 430.27(a)(2) 

and 431.401(a)(2) to specify that, while 

any person may petition for waiver and 

interim waiver, the ultimate 

responsibility for complying with the 

waiver provisions lies with the 

manufacturer, which, by statutory 

definition, includes importers. DOE 

believes this additional language 

clarifies that the compliance burden is 

on the manufacturer, regardless of 

which entity submits the waiver. AHAM 

commented that it supports the 

additional language, which reflects 

AHAM’s current understanding. 

(AHAM, No. 4 at p. 2) 

DOE is restoring, with minor 

amendments, provisions inadvertently 

omitted from section 430.27(b)(1) in a 

separate rulemaking process. On March 

7, 2011, DOE published a final rule 

titled ‘‘Energy Conservation Program: 

Certification, Compliance, and 

Enforcement for Consumer Products and 

Commercial and Industrial Equipment.’’ 

76 FR 12422. Among other things, the 

rule added an electronic filing option 

for submitting petitions for waiver from 

the test procedure requirements for 

consumer products located at 10 CFR 

430.27. Due to a drafting oversight, the 

provisions formerly located at 10 CFR 

430.27(b)(1)(i) through (iv), which 

address what must be included in a 

waiver petition for consumer products, 

were deleted from the current regulatory 

text. In particular, the provisions 

required petitioners to: (1) Specify the 

basic model(s) to which the waiver 

applies; (2) identify other manufacturers 

of similar products; (3) include any 

known alternate test procedures of the 

basic model (4) sign the petition, and (5) 

include any request for confidential 

treatment for any information deemed 

confidential. AHAM commented that it 

supports restoring the omitted language. 

(AHAM, No. 4 at p. 2) This final rule 


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adopts these provisions with a minor 

modification to item (3) to specify that 

the alternate TP(s) must be specific to 

the product type. 

This final rule also amends sections 

430.27(b)(1)(i) and 431.401(b)(1)(i) to 

require waiver applicants to identify 

each brand name under which the basic 

model specified in the waiver will be 

distributed in commerce in the U.S. 

This amendment does not prohibit third 

party representatives such as original 

equipment manufacturers (‘‘OEMs’’) 

from submitting waiver applications on 

behalf of an importer; however, such 

OEMs are required to include all brand 

names and applicable basic model 

numbers for which the waiver will 

apply. This requirement will assist the 

Department in identifying the marketbased brand name of a basic model 

addressed by a waiver granted by DOE. 

This information must be identical to 

the information submitted in the 

certification report for a given basic 

model. AHAM commented that it did 

not oppose the addition of brand 

information as part of a waiver petition. 

(AHAM, No. 4 at p. 2) 

In many cases, notification of all 

manufacturers of the same product type, 

as currently required, leads to overnotification. Therefore, DOE is 

modifying sections 430.27(c) and 

431.401(c) to require petitioners to 

notify, on publication of the waiver or 

interim waiver, all other manufacturers 

that manufacture products in the same 

product or equipment class as the basic 

model(s) for which the petition for 

waiver or interim waiver was requested. 

If the technology or characteristic at 

issue in the petition is known by the 

petitioner to be used in multiple 

product classes, notification must also 

be sent to manufacturers of products in 

those other product classes. This final 

rule requires notification upon 

publication of the interim waiver, which 

addresses manufacturer concerns about 

being required to notify other 

manufacturers (who are also likely to be 

competitors of the petitioner) prior to 

the marketing of the basic model(s) 

specified in the petition. Once a 

manufacturer receives an interim waiver 

and certifies compliance to DOE, the 

basic model(s) covered in the interim 

waiver may be distributed in commerce, 

so competitive concerns are less likely 

to be an issue. AHAM commented that 

it supports DOE’s proposal and agreed 

that the change to the manufacturer 

notification requirements should help 

alleviate manufacturer concerns about 

notifying competitors prior to the 

marketing of new basic models. (AHAM, 

No. 4 at p. 2) 

DOE has redesignated existing section 

430.27(i) into paragraph 430.27(d)(3), 

and 431.401(f)(1) into paragraph 

431.401(d)(3). DOE’s experience has 

been that providing written notification 

to a petitioner of DOE’s decision on a 

request for an interim waiver within 15 

business days of receiving the petition 

is often not feasible. Therefore, DOE 

proposed to amend sections 430.27(e)(1) 

and 431.401(e)(1) to state that, if 

administratively feasible, DOE will 

notify an applicant in writing of the 

disposition of the petition for interim 

waiver within 30 business days of 

receipt of the petition. AHAM opposed 

DOE lengthening the time for a decision 

on a petition for interim waiver. 

(AHAM, No. 4 at p. 3) AHAM 

commented that the waiver and interim 

waiver processes take too long and that 

DOE should attempt to shorten the 

process. (AHAM, No. 4 at p. 3) AHAM 

also commented that manufacturers 

seeking waivers need swift decisions to 

bring products to market and that 

further delay by DOE prevents timely 

introduction of products to market. 

(AHAM, No. 4 at p. 3) 

DOE recognizes the importance of 

timely processing of waiver applications 

and will continue to notify applicants of 

its decisions on interim waivers as soon 

as possible. Similarly, a manufacturer 

should petition for a waiver as soon as 

it realizes that a design (possibly a 

prototype) either cannot be tested under 

the DOE test procedure or that the test 

procedure yields results that are not 

representative of the model’s actual 

energy consumption. In addition, 

manufacturers may speed processing of 

their petitions by providing all of the 

required information, including 

proposing a complete, alternative test 

method at the time the initial 

application is submitted. Submission of 

any relevant test data would also be 

helpful. Manufacturers may also 

facilitate review by providing an 

explanation of why the proposed test 

method more accurately represents the 

energy consumption of the basic model. 

Many of the delays in processing arise 

from iterative efforts by the Department 

to obtain sufficient information upon 

which to base a decision to grant an 

interim waiver. More importantly, the 

Department has an obligation to ensure 

that alternative test methods authorized 

by the Department yield measurements 

of energy consumption that are 

representative of actual performance. 

Such a determination requires careful 

analysis and sometimes requires testing 

by DOE even if the manufacturer 

provides test data with their 

submission. DOE has found that 15 days 

is not typically sufficient to perform the 

necessary review and is amending the 

regulation to set forth a time frame that 

is more likely to be feasible. In addition, 

because manufacturers routinely 

represent that their product 

development cycles are often in excess 

of a year, DOE concludes that 30 

business days is a reasonable time frame 

for review of a petition for an alternative 

test method. Accordingly, DOE is 

amending sections 430.27(e)(1) and 

431.401(e)(1) to state that, if 

administratively feasible, DOE will 

notify an applicant in writing of the 

disposition of the petition for interim 

waiver within 30 business days of 

receipt of the petition. DOE encourages 

manufacturers to submit a petition early 

to avoid any impact on product release 

and expects that the modification to the 

notification requirements (discussed 

above) will facilitate early submittal of 

petitions to the Department by 

eliminating some of the concerns related 

to advance notification of competitors. 

In the NOPR, DOE proposed to amend 

existing sections 430.27(h) and 

431.401(e)(4) (which are now sections 

430.27(h)(1) and 431.401(h)(1)) to 

specify that an interim waiver expires 

within one (1) year of issuance unless 

either of the following occurs first: (1) 

DOE publishes a final decision and 

order in the Federal Register; or (2) DOE 

publishes a new or amended test 

procedure that addresses the issues 

presented in the waiver, and 

manufacturers are required to use that 

test procedure to demonstrate 

compliance with the applicable 

standard. 77 FR 74618. AHAM opposed 

the proposal to extend the expiration 

date of interim waivers. (AHAM, No. 4 

at p. 3) AHAM urged DOE to complete 

the waiver process in a more timely 

fashion to avoid delaying the time to 

market. (AHAM, No. 4 at p. 3) AHAM 

acknowledged that it could decrease 

manufacturer burden in cases where an 

extension of an interim waiver is 

necessary, but emphasized that keeping 

the timeline as short as possible is more 

important, saying that the best way to 

mitigate manufacturer burden is to make 

an extension of an interim waiver 

unnecessary by issuing a final decision 

and order. (AHAM, No. 4 at p. 3) 

DOE will continue to process 

petitions for waivers as quickly as 

possible and notes that the 1-year time 

period is not significantly different from 

the existing regulatory provisions 

specifying that an interim waiver is 

valid for 180 days but can be extended 

for an additional 180 days. As discussed 

below, DOE is clarifying in this rule that 

testing of a basic model conducted 

under an interim waiver is valid for 


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26594 Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 

certification of compliance, alleviating 

AHAM’s concern that any additional 

time needed for DOE to issue a final 

decision and order will impact the 

ability of a manufacturer to sell a 

product. This amendment obviates the 

need for manufacturers to request an 

extension of the interim waiver after 180 

days, while providing sufficient time for 

DOE to consider the issues presented in 

the petition and publish a decision and 

order or amend the test procedure to 

eliminate the continued need for the 

waiver. In response to AHAM’s 

comment, DOE is amending sections 

430.27(h)(1) and 431.401(h)(1) to 

provide that if DOE has not, within the 

1-year period, published a new or 

amended test procedure that addresses 

the issues presented in the waiver and 

that manufacturers are required to use to 

demonstrate compliance with the 

applicable standard, than DOE will 

issue a final decision and order on the 

petition. 

DOE is adding new paragraphs 

430.27(i) and 431.401(i) to specify the 

applicability of waivers (interim and 

final) with respect to determining and 

certifying compliance. The new 

paragraphs explain how manufacturers 

must determine the compliance of basic 

models subject to an interim waiver or 

waiver if the test procedure prescribed 

in the interim waiver differs from the 

test procedure prescribed in the 

subsequent decision and order on the 

waiver. A manufacturer who has already 

certified basic models using the 

procedure permitted in DOE’s grant of 

an interim test procedure waiver is not 

required to re-test those basic models so 

long as certain criteria are met. 

However, if specified by DOE in the 

decision and order, by the time of the 

next annual certification the 

manufacturer must re-test and re-certify 

compliance using the procedure 

specified by DOE in the decision and 

order. In addition, when DOE publishes 

a decision and order on a petition for 

waiver in the Federal Register, a 

manufacturer must use the test 

procedure contained in that decision 

and order to rate any basic models 

covered by the decision and order that 

have not yet been certified to DOE. 

Finally, the test procedure in a decision 

and order must be used for all future 

testing for any basic models covered by 

the decision and order. AHAM agreed 

that clarification of the certification 

process where interim waivers are 

involved is helpful and supported the 

process described above as an 

appropriate way to address the situation 

in which a subsequent decision and 

order differs from an interim waiver. 

(AHAM, No. 4 at p. 4) 

DOE is redesignating existing section 

430.27(j) as 430.27(f)(1). In the NOPR, 

DOE proposed to specify that once DOE 

has granted a petition for waiver for a 

type of product or equipment employing 

a particular technology, other 

manufacturers of that product or 

equipment employing a technology or 

characteristic that results in the same 

need for a waiver, as specified by DOE 

in the published petition for waiver in 

the Federal Register, must submit a 

petition for waiver within 60 days. 

(Some examples of technologies or 

characteristics for which multiple 

manufacturers have, in the past, had the 

same need for a waiver include largecapacity clothes washers, refrigeratorfreezers that employ multiple defrost 

cycles, and dishwashers with a water 

softener regeneration system.) 77 FR 

74618. 

AHAM commented that it did not 

believe that the new provision was 

needed. (AHAM, No. 4 at p.4) AHAM’s 

view is that, under the current 

regulations, when DOE grants a waiver, 

‘‘manufacturers are already obligated to 

file a petition for waiver before 

introducing products that employ a 

technology or characteristic that results 

in the same need for a waiver.’’ (AHAM, 

No. 4 at p.4) Thus, AHAM concluded 

that the regulatory text ‘‘introduces 

more confusion than clarity on what is 

already a well-understood concept.’’ 

(AHAM, No. 4 at p.4) The current reg 

text does not contain an affirmative 

requirement to petition for a waiver 

based on AHAM’s comment, however, 

DOE concludes that AHAM is not 

objecting to the concept, but to a lack of 

clarity in the proposed regulatory text. 

Thus, DOE is adopting the amendment, 

but is clarifying the regulatory text in 

sections 430.27(j) and 431.401(j) as 

discussed in more detail below to 

address AHAM’s concerns. 

AHAM questioned what DOE 

intended by ‘‘employ’’ in the proposed 

text: ‘‘. . . after DOE grants a petition 

for waiver for a product employing a 

particular technology or having a 

particular characteristic, any 

manufacturer of that product employing 

a technology. . . .’’ (AHAM, No. 4 at 

p.5) AHAM asked whether it 

encompasses technology that a 

manufacturer may use in another 

country and could bring to market in the 

U.S., whether it includes technologies 

about to be brought to market, or 

whether it encompasses only technology 

already on the market. (AHAM, No. 4 at 

p.5) 

AHAM also strongly opposed the 60- 

day limit for manufacturers to submit a 

petition for a waiver. (AHAM, No. 4 at 

p.5) AHAM raised a number of 

interpretive questions about how to 

apply the 60-day time limit. (AHAM, 

No. 4 at p.5) AHAM raised concerns 

that, although it did not interpret the 

proposed language to mean that a 

manufacturer could be precluded from 

ever employing the technology in the 

future if it failed to petition for a waiver 

during the 60-day period, AHAM was 

concerned that the language did not 

preclude that interpretation. (AHAM, 

No. 4 at p.5) AHAM also stated that it 

believed that a time limit was not 

necessary but that, if DOE retained a 

time limit, then DOE should adopt a 

longer time limit because 60 days may 

not be enough time for manufacturers to 

evaluate whether they have the same 

technology or characteristics at issue. 

(AHAM, No. 4 at p.5) AHAM proposed 

180 days as a potentially more realistic 

time frame. (AHAM, No. 4 at p.5) 

Much of the ambiguity in DOE’s 

proposed language, as identified by 

AHAM, seems to stem from the 60-day 

time limit and how that time limit is 

applied to products in development. 

Based on AHAM’s comment, DOE is 

modifying the regulatory text in sections 

430.27(j) and 431.401(j) to clarify that if, 

at the time DOE grants a petition for 

waiver to a particular manufacturer, 

other manufacturers are distributing in 

commerce in the United States products 

or equipment employing the same 

technologies or characteristics at issue 

in the waiver, those manufacturers have 

60 days to petition DOE for a waiver. If 

a manufacturer has not yet distributed 

in commerce in the United States 

products or equipment employing the 

same technologies or characteristics at 

issue in the waiver, such manufacturer 

must petition for and be granted a 

waiver prior to distributing the product 

or equipment in commerce in the 

United States. DOE encourages 

manufacturers to submit petitions for 

waiver in the early stages of 

development, to avoid delays in any 

future distribution of the product or 

equipment in commerce in the United 

States. 

Another of AHAM’s concerns was 

that DOE should ‘‘address situations in 

which it is not readily apparent . . . 

what technology or characteristic is at 

issue.’’ (AHAM, No. 4 at p.5) As part of 

this process, DOE will state in the 

Federal Register notice granting the 

waiver the specific technology or 

characteristic to which this provision 

would apply. 

DOE is redesignating existing section 

430.27(k) into paragraph 430.27(a)(2). In 

the NOPR, DOE also proposed to add 

new paragraphs (now 430.27(k) and 


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431.401(k)) to set forth a process for 

manufacturers to request rescission or 

modification of a waiver if they 

determine that the waiver is no longer 

needed, or for other appropriate reasons. 

The provision creates a process for DOE 

to consider and, as appropriate, grant 

the requested rescission or modification. 

Subsequent to the effective date of a 

rescission or modification, the 

manufacturer would be required to use 

the DOE test procedure in the CFR or an 

alternate test procedure specified in the 

order establishing the modification. 

DOE also proposed to add language to 

clarify that DOE may revoke or modify 

a waiver or interim waiver if it 

determines that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic models’ 

true energy consumption characteristics. 

77 FR 74618. 

AHAM commented that, while it did 

not oppose provisions regarding 

rescission or modification for waivers, 

DOE should provide a more detailed 

process. (AHAM, No. 4 at p.5) For 

petitioner-initiated rescission or 

modification, AHAM suggested that 

DOE should clarify who can request 

rescission or modification, how to 

request rescission or modification, that 

a request and grant for modification 

must explain the change, and what 

criteria DOE will use in making a 

decision. (AHAM, No. 4 at 6) AHAM 

stated that it understood the intent of 

the proposal to be that the only party 

who could request rescission or 

modification is the party who filed the 

original petition. (AHAM, No. 4 at 6) 

For DOE-initiated rescission or 

modification, AHAM suggested that 

DOE should clarify: the criteria DOE 

will evaluate when deciding whether to 

rescind or modify a waiver, that DOE 

will notify the petitioner regarding its 

intent to rescind or modify the waiver 

and allow the petitioner sufficient time 

to provide a response before publication 

in the Federal Register, that DOE will 

communicate a final decision to the 

petitioner prior to publication in the 

Federal Register, and an explanation of 

and basis for DOE’s action (modification 

or rescission). (AHAM, No. 4 at 6) 

DOE’s proposed language in the 

NOPR states that petitioners may seek 

modification or rescission. To ensure 

that this language is clear that the 

original petitioner may seek a change, 

DOE is adding ‘‘original’’ before 

‘‘petitioner’’ to the text. To address 

AHAM’s concern that the regulation is 

unclear regarding how to submit a 

request for rescission or modification, 

DOE is adopting slightly modified 

language in paragraph (a)(3) of sections 

430.27 and 431.401 to clarify that all 

correspondence regarding waivers, 

including requests for rescission or 

modification, should be directed to the 

same address(es) as petitions for waiver 

or interim waiver. DOE is also adopting 

slightly modified language in sections 

430.27(k)(1) and 431.401(k)(1) that will 

clarify that a petitioner must, in a 

request for rescission, provide a 

statement explaining why it is 

requesting rescission and, in a request 

for modification, explain the need for 

modification and detail the requested 

modifications and the impact on 

measured energy consumption. 

DOE’s proposal also provided that 

DOE’s determination would be based on 

a finding that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or that the 

results from the alternate test procedure 

are unrepresentative of the basic 

models’ true energy consumption 

characteristics. 77 FR 74618. The basis 

for a determination could be test data 

showing either that the information in 

the initial petition was incorrect or that 

the alternative test procedure does not, 

in fact, generate results that are 

representative of the basic models’ true 

energy consumption characteristics. In 

addition, the proposed language stated 

that DOE’s determination would 

consider the relevant information 

contained in the record and any 

comments received, ensuring that the 

basis for any determination will be 

public and that the petitioner’s views 

will be considered. 77 FR 74623. DOE 

is adopting slightly modified text in 

sections 430.27(k)(3) and 431.401(k)(3) 

to make clear that DOE will specify the 

basis for its determination and, in the 

case of a modification, will also specify 

the change to the authorized test 

procedure. 

With respect to DOE-initiated actions, 

AHAM’s comment also suggests that it 

is concerned that a manufacturer may 

not have an opportunity to respond 

prior to a determination to rescind or 

modify a waiver. The proposed text in 

the NOPR stated that DOE will publish 

any proposed rescission or modification 

in the Federal Register for public 

comment, which would provide the 

petitioner and any other interested 

parties an opportunity to respond prior 

to DOE making a decision. 77 FR 74623, 

74625. DOE proposed a process 

mirroring that of an initial petition for 

waiver and has revised the text in 

sections 430.27(k)(2) and 431.401(k)(2) 

to clarify that the petitioner will have an 

opportunity to rebut any comments. 

AHAM also suggested that the petitioner 

should receive notice of DOE’s decision 

prior to publication in the Federal 

Register; however, given the comment 

opportunity being provided, it is 

unclear what the purpose of such 

notification would be. 

Therefore, as described above, DOE is 

adopting the new paragraphs 430.27(k) 

and 431.401(k) to set forth a process for 

an original petitioner to request 

rescission or modification of a waiver if 

it determines that the waiver is no 

longer needed, or for other appropriate 

reasons. The provision creates a process 

for DOE to consider and, as appropriate, 

grant the requested rescission or 

modification. Subsequent to the 

effective date of a rescission or 

modification, the manufacturer must 

use the specified DOE test procedure. 

The process for rescission or 

modification in this final rule mirrors 

the process for petitioning for a waiver. 

Finally, in the NOPR, DOE proposed 

to create a simplified process to allow 

for petitioners to request that DOE 

extend the scope of a waiver or interim 

waiver to include additional basic 

models employing the same technology 

as the basic models set forth in the 

original petition. 77 FR 74618. AHAM 

commented that it supports the general 

principle but indicated that the 

regulation should provide more detail 

about the process. (AHAM, No. 4 at p. 

6) AHAM suggested that a manufacturer 

should simply need to submit a 

statement to DOE that the petition for 

waiver or interim waiver is being 

extended to include other specified 

models that employ the same 

technology or characteristic, and DOE 

should not need to make a decision. 

(AHAM, No. 4 at pp. 6–7) AHAM 

suggested that such a statement could be 

under penalty of perjury. (AHAM, No. 4 

at p. 6) AHAM agreed that the statement 

should be published in the Federal 

Register. (AHAM, No. 4 at pp. 6–7) 

AHAM also commented that such a 

process should be applied to both 

petitions for waiver and granted 

waivers. (AHAM, No. 4 at p. 7) 

AHAM’s suggested approach, where 

manufacturers would be permitted to 

extend a waiver to additional models 

unilaterally, would not allow DOE to 

fulfill its responsibility to ensure that an 

alternative test procedure is appropriate 

for the new basic model(s). Therefore, 

DOE is adopting the simplified process 

in sections 430.27(g) and 431.401(g). 

DOE expects that the simplified process 

will expedite the review where a 

manufacturer is using the same 

technology for a given covered product 

and applying the same methods in an 

already established waiver. DOE is 

modifying the language to clarify that 


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this process can be used to add models 

at any stage of the waiver process. 

Notice of any such extension would be 

published in the Federal Register. 

DOE is redesignating existing section 

430.27(l) as 430.27(f)(2), 430.27(m) as 

430.27(l), and 431.401(g) as 431.401(l). 

In the NOPR, DOE also proposed to 

amend the existing paragraphs 

430.27(m) and 431.401(g) to provide 

that, as soon as is practicable after DOE 

grants a waiver, DOE will publish a 

proposed rule to amend the relevant test 

procedure regulation to eliminate the 

need for the continuation of the waiver. 

77 FR 74618. AHAM opposed this 

proposal, stating that the current 

regulations require DOE to amend the 

test procedure within one year of 

granting a waiver. (AHAM, No. 4 at p. 

3) AHAM again emphasized the need 

for DOE to shorten the time for which 

waivers are necessary and to provide 

regulated parties with certainty by 

adhering to the one year timing 

requirement in the current regulations. 

(AHAM, No. 4 at p. 4) 

DOE agrees that providing regulatory 

certainty is important and is committed 

to updating its test procedures in a 

timely manner, particularly to address 

issues raised in waiver petitions. DOE 

also understands that a large number of 

separate test procedure rulemakings 

could tax manufacturer resources. 

Consolidating multiple waivers into one 

rulemaking is more efficient and less 

burdensome for DOE and regulated 

parties than opening multiple 

rulemakings on a staggered basis to meet 

an artificial one-year deadline. In 

addition, manufacturer certainty is 

maintained by the regulatory 

amendment stating that the decision 

and order remains in effect until a new 

test procedure addressing the waiver is 

published and its use is required. 

Therefore, DOE is amending the existing 

430.27(m) and 431.401(g) (which are 

renumbered as 430.27(l) and 431.401(l)) 

as proposed. 

As part of the modifications to 

430.27(m) and 431.401(g) (which are 

renumbered 430.27(l) and 431.401(l)) 

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

latter is renumbered as 431.401(h)(1), 

DOE proposed in the NOPR to clarify 

that a waiver (interim, if still in effect 

consistent with 430.27(h) and 

431.401(h)(1), or final) terminates on the 

date when use of the amended test 

procedure is required to be used by 

manufacturers to demonstrate 

compliance with the applicable energy 

or water conservation standard. 77 FR 

74618. Continuation of the waiver until 

the date when use of an amended test 

procedure is required to demonstrate 

compliance, rather than the effective 

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

on which that procedure officially 

becomes part of the Code of Federal 

Regulations), prevents situations where 

a waiver has expired while the amended 

test procedure is effective but its use is 

not yet required. DOE did not receive 

any comments on this issue and is 

adopting the amendment as proposed. 

To keep the regulatory text current, 

DOE is removing all references to the 

‘‘Assistant Secretary for Conservation 

and Renewable Energy’’ in 10 CFR 

430.27 and the ‘‘Assistant Secretary for 

Energy Efficiency and Renewable 

Energy’’ in 10 CFR 431.401 and is 

replacing these terms with ‘‘DOE.’’ 

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Orders 

12866 and 13563 

Test procedure rulemakings do not 

constitute ‘‘significant regulatory 

actions’’ under section 3(f) of Executive 

Order 12866, Regulatory Planning and 

Review, 58 FR 51735 (Oct. 4, 1993). 

Accordingly, this action was not subject 

to review by the Office of Information 

and Regulatory Affairs (OIRA) in the 

Office of Management and Budget 

(OMB). 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

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

of a regulatory flexibility analysis (RFA) 

for any rule that by law must be 

proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. As required by 

E.O. 13272, ‘‘Proper Consideration of 

Small Entities in Agency Rulemaking,’’ 

67 FR 53461 (August 16, 2002), DOE 

published procedures and policies on 

February 19, 2003, to ensure that the 

potential impacts of its rules on small 

entities are properly considered during 

the rulemaking process. 68 FR 7990. 

DOE has made its procedures and 

policies available on the Office of the 

General Counsel’s Web site, http://

www.energy.gov/gc/. 

DOE reviewed the waiver 

requirements being proposed under the 

provisions of the Regulatory Flexibility 

Act and the procedures and policies 

published on February 19, 2003. DOE 

certified that the proposed rule, if 

adopted, would not have a significant 

impact on a substantial number of small 

entities. The factual basis for this 

certification is set forth below. DOE 

received no comments on the 

certification. Comments on the potential 

economic impacts of the rule, and any 

changes made as a result of those 

comments, are discussed in section III. 

These changes did not result in a change 

to the factual basis for DOE’s 

certification. 

The rule may affect small 

manufacturers of covered consumer 

products and commercial equipment. 

DOE does not, however, expect that the 

impact of the rule would be significant. 

The regulatory provisions proposed 

would clarify the effect of the waiver 

(the waiver does not release a 

manufacturer from complying with the 

applicable standard and certification 

requirements) and the responsibility for 

compliance with the waiver provisions 

(the manufacturer is responsible for the 

compliance regardless of who submits 

the petition). The rule would also 

specify how manufacturers would 

certify basic models specified in a 

petition for an interim waiver and 

waiver if the test procedure prescribed 

in the interim waiver differs from the 

test procedure prescribed in the 

subsequent decision and order on the 

waiver. The rule clarifies existing 

regulatory requirements and does not 

add new regulatory burden. The 

reinstatement of the provisions of 10 

CFR 430.27(b)(1) that were 

inadvertently removed is also not 

expected to impose a significant 

regulatory burden. These provisions 

require petitioners to: Specify the basic 

model(s) to which the waiver applies, 

identify other manufacturers of similar 

products, include any known alternate 

test procedures of the basic model, sign 

the petition, and include a request 

seeking confidential treatment for any 

information deemed confidential. 

Manufacturers have already been 

complying with these requirements 

since they were enacted on November 

26, 1986. 51 FR 42826. 

In addition, the new waiver 

requirements would require petitioners 

to specify the brand names under which 

a basic model would be sold and 

expand the eligibility for waivers to all 

types of covered equipment subject to 

DOE’s test procedures. These 

requirements are not expected to result 

in a significant impact, as they are 

consistent with the purpose of the 

existing waiver process, which is to 

assist manufacturers in testing their 

equipment to demonstrate compliance 

with DOE standards. The new waiver 

requirements would also amend the 

timelines for the issuance of an interim 

waiver from 15 to 30 days, a provision 

that manufacturers can account for in 

their product development and 

marketing schedule without significant 

difficulty. The rule would also extend 


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the time periods covered by an interim 

waiver or waiver, providing more 

certainty for manufacturers as they rate, 

certify and market their products. The 

rule clarifies that DOE would not 

change the established metric in a test 

procedure waiver is also not expected to 

result in a significant impact because 

the established metric is already 

required as a result of the applicable 

energy conservation standard. 

DOE is also specifying that once DOE 

has granted a petition for waiver for a 

product or type of equipment employing 

a particular technology, other 

manufacturers of that product or 

equipment employing a technology or 

characteristic that results in the same 

need for a waiver must submit a petition 

for waiver within 60 days. DOE revised 

its proposal to clarify that the 

requirement applies only where 

manufacturers are distributing such 

product in commerce in the United 

States at the time the waiver is granted. 

Manufacturers who are not distributing 

such product in commerce in the United 

States at the time the waiver is granted 

must apply for and be granted a waiver 

prior to distribution in the United 

States, but there is no specified time 

requirement for the application. DOE 

does not expect this requirement to 

impose significant additional burden 

because, given that the products or 

equipment produced by these 

manufacturers employ a technology that 

provides the same function that led DOE 

to grant a waiver in the first instance, 

these manufacturers would likely need 

to petition for waiver under DOE’s 

existing regulations. This provision 

specifies the circumstances under 

which this process must be completed. 

The rule sets forth a process for 

manufacturers to request rescission or 

modification of a waiver. This provision 

would allow manufacturers to notify 

DOE if they believe a previously granted 

waiver is no longer needed, or that 

rescission or modification is necessary 

for other appropriate reasons. The 

provision then sets forth the process for 

DOE to consider and, as appropriate, 

grant the request. The intent of this 

provision is to reduce manufacturer 

burden by providing a process for 

manufacturers to request rescission or 

modification of a waiver that they 

believe is inappropriate or unworkable. 

Similarly, the rule would provide a 

process by which DOE may revoke or 

modify a previously granted waiver if 

DOE determines that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic models’ 

true energy consumption characteristics. 

In such cases, the manufacturer would 

be required to test its products or 

equipment using the DOE test 

procedure. DOE does not believe that 

this provision would result in a 

significant impact on small 

manufacturers. Given that a revocation 

or modification is only issued if the 

factual basis underlying the original 

petition was not correct in the first 

instance, EPCA would already require 

the manufacturers to use the applicable 

DOE test procedure. 

For the reasons stated above, DOE 

certifies that this final rule would not 

result in a significant impact on a 

substantial number of small entities. 

Accordingly, DOE has not prepared a 

regulatory flexibility analysis for this 

rulemaking. DOE transmitted its 

certification to the Small Business 

Administration (SBA) as required by 5 

U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

The final rule contains a collection-ofinformation requirement that is subject 

to review and approval by OMB under 

the Paperwork Reduction Act (PRA). 

DOE submitted this collection to OMB 

for approval, as part of DOE’s 

information collection approved under 

OMB Control No. 1910–1400. Public 

reporting burden for the submission of 

a petition for waiver or interim waiver, 

or a request for rescission, is estimated 

to average 5 hours per response, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

DOE continues to seek public 

comment regarding: Whether this 

proposed collection of information is 

necessary for the proper performance of 

the functions of the agency, including 

whether the information shall have 

practical utility; the accuracy of the 

burden estimate; ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and ways to 

minimize the burden of the collection of 

information, including through the use 

of automated collection techniques or 

other forms of information technology. 

Send comments on these or any other 

aspects of the collection of information 

to U.S. Department of Energy, Office of 

Energy Efficiency and Renewable 

Energy, Building Technologies Office, 

EE–5B, 1000 Independence Avenue 

SW., Washington, DC 20585–0121 or 

Amendments-Correction-2012-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 of 1969 

In this final rule, DOE amends its 

procedures for manufacturers to seek 

and for DOE to grant petitions for 

waivers of the DOE test procedures. 

DOE has determined that this rule falls 

into a class of actions that are 

categorically excluded from review 

under the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et 

seq.) and DOE’s implementing 

regulations at 10 CFR part 1021. 

Specifically, this rule amends an 

existing rule without affecting the 

amount, quality or distribution of 

energy usage, and, therefore, will not 

result in any environmental impacts. 

Thus, this rulemaking is covered by 

Categorical Exclusion A5 under 10 CFR 

part 1021, subpart D, which applies to 

any rulemaking that interprets or 

amends an existing rule without 

changing the environmental effect of 

that rule. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999) imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have Federalism implications. The 

Executive Order requires agencies to 

examine the constitutional and statutory 

authority supporting any action that 

would limit the policymaking discretion 

of the States and to carefully assess the 

necessity for such actions. The 

Executive Order also requires agencies 

to have an accountable process to 

ensure meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have Federalism implications. On 

March 14, 2000, DOE published a 

statement of policy describing the 

intergovernmental consultation process 

it will follow in the development of 

such regulations. 65 FR 13735. DOE 

examined this final rule and determined 

that it will not have a substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. EPCA 


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governs and prescribes Federal 

preemption of State regulations for 

energy conservation for the products 

that are the subject of today’s final rule. 

States can petition DOE for exemption 

from such preemption to the extent, and 

based on criteria, set forth in EPCA. (42 

U.S.C. 6297(d)) No further action is 

required by Executive Order 13132. 

F. Review Under Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in sections 3(a) and 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and determined that, to the 

extent permitted by law, this final rule 

meets the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. Pub. L. No. 104–4, sec. 

201 (codified at 2 U.S.C. 1531). For any 

proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

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

The UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency plan for giving notice 

and opportunity for timely input to 

potentially affected small governments 

before establishing any requirements 

that might significantly or uniquely 

affect small governments. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA. 62 FR 12820; also available at 

http://energy.gov/gc. DOE examined this 

rule according to UMRA and its 

statement of policy and determined that 

the rule contains neither an 

intergovernmental mandate, nor a 

mandate that may result in the 

expenditure of $100 million or more in 

any year, so these requirements do not 

apply. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

final rule will not have any impact on 

the autonomy or integrity of the family 

as an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

I. Review Under Executive Order 12630 

DOE has determined, under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights’’ 53 FR 8859 

(March 18, 1988), that this regulation 

will not result in any takings that might 

require compensation under the Fifth 

Amendment to the U.S. Constitution. 

J. Review Under Treasury and General 

Government Appropriations Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516 note) provides 

for agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

today’s final rule under the OMB and 

DOE guidelines and has concluded that 

it is consistent with applicable policies 

in those guidelines. 

K. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001), requires Federal agencies to 

prepare and submit to OMB, a 

Statement of Energy Effects for any 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgated or is 

expected to lead to promulgation of a 

final rule, and that: (1) Is a significant 

regulatory action under Executive Order 

12866, or any successor order; and (2) 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy; or (3) is designated by the 

Administrator of OIRA as a significant 

energy action. For any significant energy 

action, the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use if the 

regulation is implemented, and of 

reasonable alternatives to the action and 

their expected benefits on energy 

supply, distribution, and use. 

Today’s regulatory action is not a 

significant regulatory action under 

Executive Order 12866. Moreover, it 

will not have a significant adverse effect 

on the supply, distribution, or use of 

energy, nor has it been designated as a 

significant energy action by the 

Administrator of OIRA. Therefore, it is 

not a significant energy action, and, 

accordingly, DOE has not prepared a 

Statement of Energy Effects. 

L. Review Under Section 32 of the 

Federal Energy Administration Act of 

1974 

Under section 301 of the Department 

of Energy Organization Act (Pub. L. 95– 

91; 42 U.S.C. 7101), DOE must comply 

with section 32 of the Federal Energy 

Administration Act of 1974, as amended 

by the Federal Energy Administration 

Authorization Act of 1977. (15 U.S.C. 

788; FEAA) Section 32 essentially 

provides in relevant part that, where a 

proposed rule authorizes or requires use 

of commercial standards, the notice of 

proposed rulemaking must inform the 

public of the use and background of 

such standards. In addition, section 

32(c) requires DOE to consult with the 

Attorney General and the Chairman of 

the Federal Trade Commission (FTC) 

concerning the impact of the 

commercial or industry standards on 

competition. 


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Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 26599 

Today’s final rule does not authorize 

or require the use of any commercial 

standard. 

M. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of today’s rule before its effective date. 

The report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

N. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

List of Subjects 

10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Intergovernmental relations, Small 

businesses. 

10 CFR Part 431 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Intergovernmental relations, Small 

businesses. 

Issued in Washington, DC, on May 2, 2014. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

For the reasons stated in the 

preamble, DOE amends parts 430 and 

431 of Chapter II of Title 10, Code of 

Federal Regulations as set forth below: 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 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 revised to read as 

follows: 

§ 430.27 Petitions for waiver and interim 

waiver. 

(a) General information. This section 

provides a means for seeking waivers of 

the test procedure requirements of this 

subpart for basic models that meet the 

requirements of paragraph (a)(1) of this 

section. In granting a waiver or interim 

waiver, DOE will not change the energy 

use or efficiency metric that the 

manufacturer must use to certify 

compliance with the applicable energy 

conservation standard and to make 

representations about the energy use or 

efficiency of the covered product. The 

granting of a waiver or interim waiver 

by DOE does not exempt such basic 

models from any other regulatory 

requirement contained in this part or 

the certification and compliance 

requirements of 10 CFR part 429 and 

specifies an alternative method for 

testing the basic models addressed in 

the waiver. 

(1) Any interested person may submit 

a petition to waive for a particular basic 

model any requirements of § 430.23 or 

of any appendix to this subpart, upon 

the grounds that the basic model 

contains one or more design 

characteristics which either prevent 

testing of the basic model according to 

the prescribed test procedures or cause 

the prescribed test procedures to 

evaluate the basic model in a manner so 

unrepresentative of its true energy and/ 

or water consumption characteristics as 

to provide materially inaccurate 

comparative data. 

(2) Manufacturers of basic model(s) 

subject to a waiver or interim waiver are 

responsible for complying with the 

other requirements of this subpart and 

with the requirements of 10 CFR part 

429 regardless of the person that 

originally submitted the petition for 

waiver and/or interim waiver. The filing 

of a petition for waiver and/or interim 

waiver shall not constitute grounds for 

noncompliance with any requirements 

of this subpart. 

(3) All correspondence regarding 

waivers and interim waivers must be 

submitted to DOE either electronically 

to AS_Waiver_Requests@ee.doe.gov 

(preferred method of transmittal) or by 

mail to U.S. Department of Energy, 

Building Technologies Program, Test 

Procedure Waiver, 1000 Independence 

Avenue SW., Mailstop EE–5B, 

Washington, DC 20585–0121. 

(b) Petition content and publication. 

(1) Each petition for waiver must: 

(i) Identify the particular basic 

model(s) for which a waiver is 

requested, each brand name under 

which the identified basic model(s) will 

be distributed in commerce, the design 

characteristic(s) constituting the 

grounds for the petition, and the 

specific requirements sought to be 

waived, and must discuss in detail the 

need for the requested waiver; 

(ii) Identify manufacturers of all other 

basic models distributed in commerce 

in the United States and known to the 

petitioner to incorporate design 

characteristic(s) similar to those found 

in the basic model that is the subject of 

the petition; 

(iii) Include any alternate test 

procedures known to the petitioner to 

evaluate the performance of the product 

type in a manner representative of the 

energy and/or water consumption 

characteristics of the basic model; and 

(iv) Be signed by the petitioner or an 

authorized representative. In accordance 

with the provisions set forth in 10 CFR 

1004.11, any request for confidential 

treatment of any information contained 

in a petition for waiver or in supporting 

documentation must be accompanied by 

a copy of the petition, application or 

supporting documentation from which 

the information claimed to be 

confidential has been deleted. DOE will 

publish in the Federal Register the 

petition and supporting documents from 

which confidential information, as 

determined by DOE, has been deleted in 

accordance with 10 CFR 1004.11 and 

will solicit comments, data and 

information with respect to the 

determination of the petition. 

(2) Each petition for interim waiver 

must reference the related petition for 

waiver by identifying the particular 

basic model(s) for which a waiver is 

being sought. Each petition for interim 

waiver must demonstrate likely success 

of the petition for waiver and address 

what economic hardship and/or 

competitive disadvantage is likely to 

result absent a favorable determination 

on the petition for interim waiver. Each 

petition for interim waiver must be 

signed by the petitioner or an 

authorized representative. 

(c) Notification to other 

manufacturers. (1) Each petitioner for 

interim waiver must, upon publication 

of a grant of an interim waiver in the 

Federal Register, notify in writing all 

known manufacturers of domestically 

marketed basic models of the same 

product class (as specified in 10 CFR 

430.32) and of other product classes 

known to the petitioner to use the 

technology or have the characteristic at 

issue in the waiver. The notice must 

include a statement that DOE has 

published the interim waiver and 

petition for waiver in the Federal 

Register and the date the petition for 

waiver was published. The notice must 

also include a statement that DOE will 

receive and consider timely written 

comments on the petition for waiver. 

Within five working days, each 

petitioner must file with DOE a 

statement certifying the names and 

addresses of each person to whom a 

notice of the petition for waiver has 

been sent. 

(2) If a petitioner does not request an 

interim waiver and notification has not 

been provided pursuant to paragraph 

(c)(1) of this section, each petitioner, 

after filing a petition for waiver with 

DOE, and after the petition for waiver 

has been published in the Federal 


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26600 Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 

Register, must, within five working days 

of such publication, notify in writing all 

known manufacturers of domestically 

marketed units of the same product 

class (as listed in 10 CFR 430.32) and of 

other product classes known to the 

petitioner to use the technology or have 

the characteristic at issue in the waiver. 

The notice must include a statement 

that DOE has published the petition in 

the Federal Register and the date the 

petition for waiver was published. 

Within five working days of the 

publication of the petition in the 

Federal Register, each petitioner must 

file with DOE a statement certifying the 

names and addresses of each person to 

whom a notice of the petition for waiver 

has been sent. 

(d) Public comment and rebuttal. (1) 

Any person submitting written 

comments to DOE with respect to an 

interim waiver must also send a copy of 

the comments to the petitioner by the 

deadline specified in the notice. 

(2) Any person submitting written 

comments to DOE with respect to a 

petition for waiver must also send a 

copy of such comments to the 

petitioner. 

(3) A petitioner may, within 10 

working days of the close of the 

comment period specified in the 

Federal Register, submit a rebuttal 

statement to DOE. A petitioner may 

rebut more than one comment in a 

single rebuttal statement. 

(e) Provisions specific to interim 

waivers—(1) Disposition of application. 

If administratively feasible, DOE will 

notify the applicant in writing of the 

disposition of the petition for interim 

waiver within 30 business days of 

receipt of the application. Notice of 

DOE’s determination on the petition for 

interim waiver will be published in the 

Federal Register. 

(2) Criteria for granting. DOE will 

grant an interim waiver from the test 

procedure requirements if it appears 

likely that the petition for waiver will be 

granted and/or if DOE determines that it 

would be desirable for public policy 

reasons to grant immediate relief 

pending a determination on the petition 

for waiver. 

(f) Provisions specific to waivers—(1) 

Disposition of application. The 

petitioner shall be notified in writing as 

soon as practicable of the disposition of 

each petition for waiver. DOE shall 

issue a decision on the petition as soon 

as is practicable following receipt and 

review of the Petition for Waiver and 

other applicable documents, including, 

but not limited to, comments and 

rebuttal statements. 

(2) Criteria for granting. DOE will 

grant a waiver from the test procedure 

requirements if DOE determines either 

that the basic model(s) for which the 

waiver was requested contains a design 

characteristic that prevents testing of the 

basic model according to the prescribed 

test procedures, or that the prescribed 

test procedures evaluate the basic model 

in a manner so unrepresentative of its 

true energy or water consumption 

characteristics as to provide materially 

inaccurate comparative data. Waivers 

may be granted subject to conditions, 

which may include adherence to 

alternate test procedures specified by 

DOE. DOE will consult with the Federal 

Trade Commission prior to granting any 

waiver, and will promptly publish in 

the Federal Register notice of each 

waiver granted or denied, and any 

limiting conditions of each waiver 

granted. 

(g) Extension to additional basic 

models. A petitioner may request that 

DOE extend the scope of a waiver or an 

interim waiver to include additional 

basic models employing the same 

technology as the basic model(s) set 

forth in the original petition. DOE will 

publish any such extension in the 

Federal Register. 

(h) Duration. (1) Within one year of 

issuance of an interim waiver, DOE will 

either: 

(i) Publish in the Federal Register a 

determination on the petition for 

waiver; or 

(ii) Publish in the Federal Register a 

new or amended test procedure that 

addresses the issues presented in the 

waiver. 

(2) When DOE amends the test 

procedure to address the issues 

presented in a waiver, the waiver will 

automatically terminate on the date on 

which use of that test procedure is 

required to demonstrate compliance. 

(i) Compliance certification. (1) If the 

alternate test procedure specified in the 

interim waiver differs from the alternate 

test procedure specified by DOE in a 

subsequent decision and order granting 

the petition for waiver, a manufacturer 

who has already certified basic models 

using the procedure permitted in DOE’s 

grant of an interim test procedure 

waiver is not required to re-test and rerate those basic models so long as: The 

manufacturer used that alternative 

procedure to certify the compliance of 

the basic model after DOE granted the 

company’s interim waiver request; 

changes have not been made to those 

basic models that would cause them to 

use more energy or otherwise be less 

energy efficient; and the manufacturer 

does not modify the certified rating. 

However, if the alternate test procedure 

specified in the interim waiver differs 

from the alternate test procedure 

specified by DOE in a subsequent 

decision and order granting the petition 

for waiver and if specified by DOE in 

the decision and order, the 

manufacturer must re-test and re-certify 

compliance using the procedure 

specified by DOE in the decision and 

order by the time of the next annual 

certification. 

(2) After DOE publishes a decision 

and order in the Federal Register, a 

manufacturer must use the test 

procedure contained in that notice to 

rate any basic models covered by the 

waiver that have not yet been certified 

to DOE and for any future testing in 

support of the certification for the basic 

model(s) while the waiver is valid. 

(j) Petition for waiver required of other 

manufacturers. Within 60 days after 

DOE issues a waiver to a manufacturer 

for a product employing a particular 

technology or having a particular 

characteristic, any manufacturer 

currently distributing in commerce in 

the United States a product employing 

a technology or characteristic that 

results in the same need for a waiver (as 

specified by DOE in the published 

decision and order on the petition in the 

Federal Register) must submit a petition 

for waiver pursuant to the requirements 

of this section. Manufacturers not 

currently distributing such products in 

commerce in the United States must 

petition for and be granted a waiver 

prior to distribution in commerce in the 

United States. Manufacturers may also 

submit a request for interim waiver 

pursuant to the requirements of this 

section. 

(k) Rescission or modification. (1) 

DOE may rescind or modify a waiver or 

interim waiver at any time upon DOE’s 

determination that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic model(s)’ 

true energy consumption characteristics. 

Waivers and interim waivers are 

conditioned upon the validity of 

statements, representations, and 

documents provided by the requestor; 

any evidence that the original grant of 

a waiver or interim waiver was based 

upon inaccurate information will weigh 

against continuation of the waiver. 

DOE’s decision will specify the basis for 

its determination and, in the case of a 

modification, will also specify the 

change to the authorized test procedure. 

(2) A person may request that DOE 

rescind or modify a waiver or interim 

waiver issued to that person if the 

person discovers an error in the 

information provided to DOE as part of 

its petition, determines that the waiver 


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Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 26601 

is no longer needed, or for other 

appropriate reasons. In a request for 

rescission, the requestor must provide a 

statement explaining why it is 

requesting rescission. In a request for 

modification, the requestor must 

explain the need for modification to the 

authorized test procedure and detail the 

modifications needed and the 

corresponding impact on measured 

energy consumption. 

(3) DOE will publish a proposed 

rescission or modification (DOEinitiated or at the request of the original 

requestor) in the Federal Register for 

public comment. A requestor may, 

within 10 working days of the close of 

the comment period specified in the 

proposed rescission or modification 

published in the Federal Register, 

submit a rebuttal statement to DOE. A 

requestor may rebut more than one 

comment in a single rebuttal statement. 

(4) DOE will publish its decision in 

the Federal Register. DOE’s 

determination will be based on relevant 

information contained in the record and 

any comments received. 

(5) After the effective date of a 

rescission, any basic model(s) 

previously subject to a waiver must be 

tested and certified using the applicable 

DOE test procedure in 10 CFR part 430. 

(l) Revision of regulation. As soon as 

practicable after the granting of any 

waiver, DOE will publish in the Federal 

Register a notice of proposed 

rulemaking to amend its regulations so 

as to eliminate any need for the 

continuation of such waiver. As soon 

thereafter as practicable, DOE will 

publish in the Federal Register a final 

rule. 

(m) To exhaust administrative 

remedies, any person aggrieved by an 

action under this section must file an 

appeal with the DOE’s Office of 

Hearings and Appeals as provided in 10 

CFR part 1003, subpart C. 

PART 431—ENERGY EFFICIENCY 

PROGRAM FOR CERTAIN 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

■ 3. The authority citation for part 431 

continues to read as follows: 

Authority: 42 U.S.C. 6311–6317. 

■ 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 revised to read 

as follows: 

§ 431.401 Petitions for waiver and interim 

waiver. 

(a) General information. This section 

provides a means for seeking waivers of 

the test procedure requirements of this 

part for basic models that meet the 

requirements of paragraph (a)(1) of this 

section. In granting a waiver or interim 

waiver, DOE will not change the energy 

use or efficiency metric that the 

manufacturer must use to certify 

compliance with the applicable energy 

conservation standard and to make 

representations about the energy use or 

efficiency of the covered equipment. 

The granting of a waiver or interim 

waiver by DOE does not exempt such 

basic models from any other regulatory 

requirement contained in this part or 

the certification and compliance 

requirements of 10 CFR part 429 and 

specifies an alternative method for 

testing the basic model(s) addressed in 

the waiver. 

(1) Any interested person may submit 

a petition to waive for a particular basic 

model the requirements of any uniform 

test method contained in this part, upon 

the grounds that either the basic model 

contains one or more design 

characteristics that prevent testing of the 

basic model according to the prescribed 

test procedures or cause the prescribed 

test procedures to evaluate the basic 

model in a manner so unrepresentative 

of its true energy or water consumption 

characteristics as to provide materially 

inaccurate comparative data. 

(2) Manufacturers of basic model(s) 

subject to a waiver or interim waiver are 

responsible for complying with the 

other requirements of this part and with 

the requirements of 10 CFR part 429 

regardless of the person that originally 

submitted the petition for waiver and/or 

interim waiver. The filing of a petition 

for waiver and/or interim waiver shall 

not constitute grounds for 

noncompliance with any requirements 

of this part. 

(3) All correspondence regarding 

waivers and interim waivers must be 

submitted to DOE either electronically 

to AS_Waiver_Requests@ee.doe.gov 

(preferred method of transmittal) or by 

mail to U.S. Department of Energy, 

Building Technologies Program, Test 

Procedure Waiver, 1000 Independence 

Avenue SW., Mailstop EE–5B, 

Washington, DC 20585–0121. 

(b) Petition content and publication. 

(1) Each petition for waiver must: 

(i) Identify the particular basic 

model(s) for which a waiver is 

requested, each brand name under 

which the identified basic model(s) will 

be distributed in commerce, the design 

characteristic(s) constituting the 

grounds for the petition, and the 

specific requirements sought to be 

waived, and must discuss in detail the 

need for the requested waiver; 

(ii) Identify manufacturers of all other 

basic models distributed in commerce 

in the United States and known to the 

petitioner to incorporate design 

characteristic(s) similar to those found 

in the basic model that is the subject of 

the petition; 

(iii) Include any alternate test 

procedures known to the petitioner to 

evaluate the performance of the 

equipment type in a manner 

representative of the energy and/or 

water consumption characteristics of the 

basic model; and 

(iv) Be signed by the petitioner or an 

authorized representative. In accordance 

with the provisions set forth in 10 CFR 

1004.11, any request for confidential 

treatment of any information contained 

in a petition for waiver or in supporting 

documentation must be accompanied by 

a copy of the petition, application or 

supporting documentation from which 

the information claimed to be 

confidential has been deleted. DOE will 

publish in the Federal Register the 

petition and supporting documents from 

which confidential information, as 

determined by DOE, has been deleted in 

accordance with 10 CFR 1004.11 and 

will solicit comments, data and 

information with respect to the 

determination of the petition. 

(2) Each petition for interim waiver 

must reference the related petition for 

waiver by identifying the particular 

basic model(s) for which a waiver is 

being sought. Each petition for interim 

waiver must demonstrate likely success 

of the petition for waiver and address 

what economic hardship and/or 

competitive disadvantage is likely to 

result absent a favorable determination 

on the petition for interim waiver. Each 

petition for interim waiver must be 

signed by the petitioner or an 

authorized representative. 

(c) Notification to other 

manufacturers. (1) Each petitioner for 


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26602 Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 

interim waiver must, upon publication 

of a grant of an interim waiver in the 

Federal Register, notify in writing all 

known manufacturers of domestically 

marketed basic models of the same 

equipment class (as specified in the 

relevant subpart of 10 CFR part 431), 

and of other equipment classes known 

to the petitioner to use the technology 

or have the characteristic at issue in the 

waiver. The notice must include a 

statement that DOE has published the 

interim waiver and petition for waiver 

in the Federal Register and the date the 

petition for waiver was published. The 

notice must also include a statement 

that DOE will receive and consider 

timely written comments on the petition 

for waiver. Within five working days, 

each petitioner must file with DOE a 

statement certifying the names and 

addresses of each person to whom a 

notice of the petition for waiver has 

been sent. 

(2) If a petitioner does not request an 

interim waiver and notification has not 

been provided pursuant to paragraph 

(c)(1) of this section, each petitioner, 

after filing a petition for waiver with 

DOE, and after the petition for waiver 

has been published in the Federal 

Register, must, within five working days 

of such publication, notify in writing all 

known manufacturers of domestically 

marketed basic models of the same 

equipment class (as listed in the 

relevant subpart of 10 CFR part 431), 

and of other equipment classes known 

to the petitioner to use the technology 

or have the characteristic at issue in the 

waiver. The notice must include a 

statement that DOE has published the 

petition in the Federal Register and the 

date the petition for waiver was 

published. Within five working days of 

the publication of the petition in the 

Federal Register, each petitioner must 

file with DOE a statement certifying the 

names and addresses of each person to 

whom a notice of the petition for waiver 

has been sent. 

(d) Public comment and rebuttal. (1) 

Any person submitting written 

comments to DOE with respect to an 

interim waiver must also send a copy of 

the comments to the petitioner by the 

deadline specified in the notice. 

(2) Any person submitting written 

comments to DOE with respect to a 

petition for waiver must also send a 

copy of such comments to the 

petitioner. 

(3) A petitioner may, within 10 

working days of the close of the 

comment period specified in the 

Federal Register, submit a rebuttal 

statement to DOE. A petitioner may 

rebut more than one comment in a 

single rebuttal statement. 

(e) Provisions specific to interim 

waivers—(1) Disposition of application. 

If administratively feasible, DOE will 

notify the applicant in writing of the 

disposition of the petition for interim 

waiver within 30 business days of 

receipt of the application. Notice of 

DOE’s determination on the petition for 

interim waiver will be published in the 

Federal Register. 

(2) Criteria for granting. DOE will 

grant an interim waiver from the test 

procedure requirements if it appears 

likely that the petition for waiver will be 

granted and/or if DOE determines that it 

would be desirable for public policy 

reasons to grant immediate relief 

pending a determination on the petition 

for waiver. 

(f) Provisions specific to waivers—(1) 

Disposition of application. The 

petitioner shall be notified in writing as 

soon as practicable of the disposition of 

each petition for waiver. DOE shall 

issue a decision on the petition as soon 

as is practicable following receipt and 

review of the Petition for Waiver and 

other applicable documents, including, 

but not limited to, comments and 

rebuttal statements. 

(2) Criteria for granting. DOE will 

grant a waiver from the test procedure 

requirements if DOE determines either 

that the basic model(s) for which the 

waiver was requested contains a design 

characteristic that prevents testing of the 

basic model according to the prescribed 

test procedures, or that the prescribed 

test procedures evaluate the basic model 

in a manner so unrepresentative of its 

true energy or water consumption 

characteristics as to provide materially 

inaccurate comparative data. DOE may 

grant a waiver subject to conditions, 

which may include adherence to 

alternate test procedures specified by 

DOE. DOE will promptly publish in the 

Federal Register notice of each waiver 

granted or denied, and any limiting 

conditions of each waiver granted. 

(g) Extension to additional basic 

models. A petitioner may request that 

DOE extend the scope of a waiver or an 

interim waiver to include additional 

basic models employing the same 

technology as the basic model(s) set 

forth in the original petition. DOE will 

publish any such extension in the 

Federal Register. 

(h) Duration. (1) Within one year of 

issuance of an interim waiver, DOE will 

either: 

(i) Publish in the Federal Register a 

determination on the petition for 

waiver; or 

(ii) Publish in the Federal Register a 

new or amended test procedure that 

addresses the issues presented in the 

waiver. 

(2) When DOE amends the test 

procedure to address the issues 

presented in a waiver, the waiver will 

automatically terminate on the date on 

which use of that test procedure is 

required to demonstrate compliance. 

(i) Compliance Certification. (1) If the 

alternate test procedure specified in the 

interim waiver differs from the alternate 

test procedure specified by DOE in a 

subsequent decision and order granting 

the petition for waiver, a manufacturer 

who has already certified basic models 

using the procedure permitted in DOE’s 

grant of an interim test procedure 

waiver is not required to re-test and rerate those basic models so long as: The 

manufacturer used that alternative 

procedure to certify the compliance of 

the basic model after DOE granted the 

company’s interim waiver request; 

changes have not been made to those 

basic models that would cause them to 

use more energy or otherwise be less 

energy efficient; and the manufacturer 

does not modify the certified rating. 

However, if the alternate test procedure 

specified in the interim waiver differs 

from the alternate test procedure 

specified by DOE in a subsequent 

decision and order granting the petition 

for waiver and if specified by DOE in 

the decision and order, the 

manufacturer must re-test and re-certify 

compliance using the procedure 

specified by DOE in the decision and 

order by the time of the next annual 

certification. 

(2) After DOE publishes a decision 

and order in the Federal Register, a 

manufacturer must use the test 

procedure contained in that notice to 

rate any basic models covered by the 

waiver that have not yet been certified 

to DOE and for any future testing of any 

basic model(s) covered by the decision 

and order. 

(j) Petition for waiver required of other 

manufactures. Within 60 days after DOE 

issues a waiver to a manufacturer for 

equipment employing a particular 

technology or having a particular 

characteristic, any manufacturer 

currently distributing in commerce in 

the United States equipment employing 

a technology or characteristic that 

results in the same need for a waiver (as 

specified by DOE in the published 

decision and order on the petition in the 

Federal Register) must submit a petition 

for waiver pursuant to the requirements 

of this section. Manufacturers not 

currently distributing such equipment 

in commerce in the United States must 

petition for and be granted a waiver 

prior to distribution in commerce in the 

United States. Manufacturers may also 

submit a request for interim waiver 


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Federal Register / Vol. 79, No. 90 / Friday, May 9, 2014 / Rules and Regulations 26603 

pursuant to the requirements of this 

section. 

(k) Rescission or modification. (1) 

DOE may rescind or modify a waiver or 

interim waiver at any time upon DOE’s 

determination that the factual basis 

underlying the petition for waiver or 

interim waiver is incorrect, or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic model(s)’ 

true energy consumption characteristics. 

Waivers and interim waivers are 

conditioned upon the validity of 

statements, representations, and 

documents provided by the requestor; 

any evidence that the original grant of 

a waiver or interim waiver was based 

upon inaccurate information will weigh 

against continuation of the waiver. 

DOE’s decision will specify the basis for 

its determination and, in the case of a 

modification, will also specify the 

change to the authorized test procedure. 

(2) A person may request that DOE 

rescind or modify a waiver or interim 

waiver issued to that person if the 

person discovers an error in the 

information provided to DOE as part of 

its petition, determines that the waiver 

is no longer needed, or for other 

appropriate reasons. In a request for 

rescission, the requestor must provide a 

statement explaining why it is 

requesting rescission. In a request for 

modification, the requestor must 

explain the need for modification to the 

authorized test procedure and detail the 

modifications needed and the 

corresponding impact on measured 

energy consumption. 

(3) DOE will publish a proposed 

rescission or modification (DOEinitiated or at the request of the original 

requestor) in the Federal Register for 

public comment. A requestor may, 

within 10 working days of the close of 

the comment period specified in the 

proposed rescission or modification 

published in the Federal Register, 

submit a rebuttal statement to DOE. A 

requestor may rebut more than one 

comment in a single rebuttal statement. 

(4) DOE will publish its decision in 

the Federal Register. DOE’s 

determination will be based on relevant 

information contained in the record and 

any comments received. 

(5) After the effective date of a 

rescission, any basic model(s) 

previously subject to a waiver must be 

tested and certified using the applicable 

DOE test procedure in 10 CFR part 431. 

(l) Revision of regulation. As soon as 

practicable after the granting of any 

waiver, DOE will publish in the Federal 

Register a notice of proposed 

rulemaking to amend its regulations so 

as to eliminate any need for the 

continuation of such waiver. As soon 

thereafter as practicable, DOE will 

publish in the Federal Register a final 

rule. 

(m) To exhaust administrative 

remedies, any person aggrieved by an 

action under this section must file an 

appeal with the DOE’s Office of 

Hearings and Appeals as provided in 10 

CFR part 1003, subpart C. 

[FR Doc. 2014–10684 Filed 5–8–14; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2013–0967; Directorate 

Identifier 2013–CE–042–AD; Amendment 

39–17839; AD 2014–09–04] 

RIN 2120–AA64 

Airworthiness Directives; Piaggio Aero 

Industries S.p.A Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: We are superseding 

Airworthiness Directive (AD) 2009–21– 

08 R1 for Piaggio Aero Industries S.p.A 

Model P–180 airplanes. This AD results 

from mandatory continuing 

airworthiness information (MCAI) 

issued by an aviation authority of 

another country to identify and correct 

an unsafe condition on an aviation 

product. The MCAI describes the unsafe 

condition as cases of un-commanded 

operation of switched off nose-wheel 

steering system caused by internal 

leakage of a steering select/bypass valve. 

We are issuing this AD to require 

actions to address the unsafe condition 

on these products. 

DATES: This AD is effective June 13, 

2014. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain publications listed in this AD 

as of June 13, 2014. 

ADDRESSES: You may examine the AD 

docket on the Internet at http://

www.regulations.gov/

#!docketDetail;D=FAA-2013-0967; or in 

person at the Docket Management 

Facility, U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE., 

Washington, DC 20590. 

For service information identified in 

this AD, contact Piaggio Aero Industries 

S.p.A—Airworthiness Office, Via Luigi 

Cibrario, 4–16154 Genova-Italy; phone: 

+39 010 6481353; fax: +39 010 6481881; 

email: airworthiness@piaggioaero.it; 

Internet: http://www.piaggioaero.com/#/ 

en/aftersales/service-support. You may 

view this referenced service information 

at the FAA, Small Airplane Directorate, 

901 Locust, Kansas City, Missouri 

64106. For information on the 

availability of this material at the FAA, 

call (816) 329–4148. 

FOR FURTHER INFORMATION CONTACT: 

Mike Kiesov, Aerospace Engineer, FAA, 

Small Airplane Directorate, 901 Locust, 

Room 301, Kansas City, Missouri 64106; 

telephone: (816) 329–4144; fax: (816) 

329–4090; email: mike.kiesov@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Discussion 

We issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 to include an AD that would 

apply to certain PIAGGIO AERO 

INDUSTRIES S.p.A Model P–180 

airplanes. That NPRM was published in 

the Federal Register on November 20, 

2013 (78 FR 69597), and proposed to 

supersede AD 2009–21–08 R1, 

Amendment 39–16169 (75 FR 904, 

January 7, 2010). 

The NPRM proposed to correct an 

unsafe condition for the specified 

products. The MCAI states that: 

Cases of un-commanded operation of 

switched off nose-wheel steering system were 

reported. Internal leakage of a Steering 

Select/Bypass Valve, installed in the nose 

landing gear (NLG) Steering Manifold, was 

identified as a failure cause. 

This condition, if not detected and 

corrected, could lead to loss of directional 

control on ground during take-off or landing, 

possibly resulting in a runway excursion. 

To address this unsafe condition, EASA 

issued AD 2009–0129 to require repetitive 

functional checks of the Steering Manifold to 

verify internal leakage proofness and 

accomplishment of the functional check 

upon installation of a replacement Steering 

Manifold on an aeroplane. 

Since that AD was issued, PAI issued 

Service Bulletin (SB) 80–0249 at revision 3, 

providing improved testing procedures. 

For the reasons described above, this AD 

retains the requirements of EASA AD 2009– 

0129, which is superseded, but requires 

accomplishment of the functional checks in 

accordance with the improved procedures 

and additionally, before release to service of 

an aeroplane after installation of a 

replacement NLG. This AD also introduces 

an optional modification, which constitutes 

terminating action for the repetitive 

functional checks required by this AD. 

This AD is revised to introduce a relieving 

compliance time for aeroplanes earlier 

inspected in accordance with EASA AD 

2009–0129. 

The MCAI can be found in the AD 

docket on the Internet at http://


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