[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Proposed Rules]
[Pages 74616-74625]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30195]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 /
Proposed Rules
[[Page 74616]]
DEPARTMENT OF ENERGY
10 CFR Parts 430 and 431
[Docket No. EERE-2012-BT-TP-0003]
RIN 1904-AC70
Amendments and Correction to Petitions for Waiver and Interim
Waiver for Consumer Products and Commercial and Industrial Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'')
proposes amendments and corrections to portions of its regulations
governing petitions for waiver and interim waiver from DOE test
procedures. In finalizing the March 7, 2011 final certification,
compliance and enforcement rule for consumer products and commercial
equipment, DOE inadvertently deleted language pertaining to petitions
for waiver and interim waiver of DOE's test procedure requirements for
consumer products. This notice addresses that error by proposing to
restore, with minor amendments, the omitted text. DOE also proposes a
process by which, within 60 days after DOE grants a waiver for a
product employing a particular technology, other manufacturers of that
product employing a technology or characteristic that results in the
same need for a waiver would submit a petition for waiver. This process
would ensure that manufacturers of similar products test and rate those
products in a comparable manner. The proposed rule also sets forth a
process for manufacturers to request rescission or modification of a
waiver if they determine that the waiver is no longer needed, or for
other appropriate reasons. DOE also proposes to make other minor
modifications to the waiver provisions for both consumer products and
commercial equipment and to clarify certain aspects related to the
submission and processing of a waiver petition.
DATES: DOE will accept comments, data, and information regarding this
notice of proposed rulemaking (NOPR) no later than January 16, 2013.
See section V, ``Public Participation,'' of this NOPR for details.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at http://www.regulations.gov. Follow
the instructions for submitting comments. Alternatively, interested
persons may submit comments, identified by docket number EERE-2010-BT-
CE-0014, by any of the following methods:
Email: Amendments-Correction-2012-TP-0003@ee.doe.gov.
Include EERE-2012-BT-TP-0003 in the subject line of the message.
Mail: Ms. Brenda Edwards, U.S. Department of Energy,
Building Technologies Program, Mailstop EE-2J, Revisions to Energy
Efficiency Enforcement Regulations, EERE-2012-BT-TP-0003, 1000
Independence Avenue SW., Washington, DC 20585-0121. Phone: (202) 586-
2945. Please submit one signed paper original.
Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department
of Energy, Building Technologies Program, 6th Floor, 950 L'Enfant Plaza
SW., Washington, DC 20024. Phone: (202) 586-2945. Please submit one
signed paper original.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. Note that all comments
received will be posted without change, including any personal
information provided.
Docket: For access to the docket to read background documents, or
comments received, go to the Federal eRulemaking Portal at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Ashley Armstrong, U.S. Department
of Energy, Office of Energy Efficiency and Renewable Energy, Building
Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington,
DC 20585-0121. Telephone: (202) 586-6590. Email:
Ashley.Armstrong@ee.doe.gov.
Ms. Celia Sher, U.S. Department of Energy, Office of General
Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Telephone: (202) 287-6122. Email: Celia.Sher@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Authority
Title III of the Energy Policy and Conservation Act of 1975, as
amended, (``EPCA'' or the ``Act'') sets forth a variety of provisions
designed to improve energy efficiency. Part A of Title III (42 U.S.C.
6291-6309) provides for the Energy Conservation Program for Consumer
Products Other Than Automobiles. The National Energy Conservation
Policy Act (NECPA), Public Law 95-619, amended EPCA to add Part A-1 of
Title III, which established an energy conservation program for certain
industrial equipment. (42 U.S.C. 6311-6317) \1\
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\1\ For editorial reasons, Parts B (consumer products) and C
(commercial equipment) of Title III of EPCA were re-designated as
parts A and A-1, respectively, in the United States Code.
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This proposed rule involves the regulatory provisions governing the
submission and processing of test procedure waivers for both consumer
products under Part A of EPCA and commercial equipment under Part A-1.
EPCA directs DOE to prescribe test procedures that are reasonably
designed to produce results reflecting the energy efficiency, energy
use, and estimated annual operating costs for those products, and that
are not unduly burdensome to conduct. 42 U.S.C. 6293(b)(3), 6314(a)(2).
DOE's regulations in Title 10 of the Code of Federal Regulations (CFR),
Section 430.27 (consumer products) and Section 431.401 (commercial
equipment) contain provisions allowing a person to seek a waiver from
the test procedure requirements if certain conditions are met. A waiver
allows manufacturers to use an alternative test procedure in situations
where the DOE test procedure cannot be used to test the products or
equipment, or where use of the DOE test procedure would provide
unrepresentative results.
II. Background
On March 7, 2011, DOE's Office of Energy Efficiency and Renewable
Energy (``EERE'') published a final rule titled ``Energy Conservation
Program: Certification, Compliance, and Enforcement for Consumer
Products and Commercial and Industrial Equipment.'' 76 FR 12421. Among
other things, the
[[Page 74617]]
rule added an electronic filing option for submitting petitions for
waiver from the test procedure requirements for consumer products
located at 10 CFR 430.27. Since the publication of this rule, it has
come to the Department's attention that, due to a drafting oversight,
certain parts of the existing regulatory text in 10 CFR 430.27 were
inadvertently deleted by the rule. Consequently, the provisions
formerly located at 10 CFR 430.27(b)(1)(i) through (iv), which address
what must be included in a waiver petition for consumer products, no
longer exist in the current regulatory text. This notice proposes to
correct DOE's existing regulations in 10 CFR 430.27 by reinstating
paragraphs (b)(1)(i) through (iv) in 10 CFR 430.27, with minor
amendments to paragraph (iii). DOE also proposes a process by which,
within 60 days after DOE grants a waiver for a product employing a
particular technology, other manufacturers of that product employing a
technology or characteristic that results in the same need for a
waiver, as specified by DOE in the published petition for waiver in the
Federal Register, would submit a petition for waiver. (Some recent
examples of technologies or characteristics for which multiple
manufacturers had the same need for a waiver include large-capacity
clothes washers, refrigerator-freezers that employ multiple defrost
cycles, and dishwashers with a water softener regeneration system.)
This process would ensure that manufacturers of similar products test
and rate those products in a comparable manner. The proposed rule also
sets forth a process for manufacturers to request rescission or
modification of a waiver if they determine that the waiver is no longer
needed, or for other appropriate reasons. DOE also proposes to make
other minor amendments to its waiver provisions in 10 CFR parts 430 and
431, which include clarifying manufacturer responsibility under the
rules and making clear that manufacturers of all types of covered
commercial and industrial equipment are eligible to petition for
waiver. The proposals are described in more detail in the following
section.
III. Discussion of Specific Revisions to Waiver Provisions
In this proposed rule, DOE proposes to add an introductory
paragraph to paragraphs 430.27(a) and 431.401(a) to clarify that
obtaining a waiver or interim waiver does not exempt a manufacturer of
consumer products or commercial equipment from compliance with any
other applicable regulatory requirements contained in 10 CFR parts 430
and 431, or the certification and compliance requirements of 10 CFR
part 429. DOE believes this new language will make clear that a waiver
is solely an authorization to use an alternative test procedure method,
and does not relieve the manufacturer from any other regulatory
requirements.
With regard to waiver applications for commercial equipment
addressed in part 431, DOE is proposing to modify section 431.401(a)(1)
to expand the waiver provisions to apply to manufacturers of all types
of covered commercial and industrial equipment, rather than just the
five types of equipment referenced in the current regulations (i.e.,
commercial warm air furnaces; commercial packaged boilers; small,
large, and very large commercial package air conditioning and heating
equipment; packaged terminal air conditioners and packaged terminal
heat pumps; and commercial water heaters and hot water supply boilers
(other than commercial heat pump water heaters)). This change will
ensure that the waiver provisions are available to manufacturers of all
commercial equipment types, not limited to only certain equipment
types. As a related action, DOE is proposing to amend the definition of
``private labeler'' in section 431.2 to reflect that the term applies
to all products covered under part 431, and not only to commercial HVAC
and WH products, as the definition currently states. Since this term
could be applicable to persons who may submit petitions for waivers, or
entities potentially affected by waivers issued under section 431.401,
this change will ensure that the term is applied uniformly to all
products.
To clarify compliance obligations further, DOE proposes to make
explicit in sections 430.27(a)(3) and 431.401(a)(3) that, while any
person may petition for waiver and interim waiver, the ultimate
responsibility for complying with the waiver provisions lies with the
manufacturer, which, by statutory definition, includes importers. DOE
believes this additional language will make clear that the compliance
burden is on the manufacturer, regardless of which entity submits the
waiver.
DOE also proposes to restore, with minor amendments, the
inadvertently omitted provisions in section 430.27(b)(1). These
provisions would set forth information that must be included in a
petition for waiver of the applicable test procedure requirements for
consumer products. In particular, the provisions require petitioners
to: (1) Specify the basic model(s) to which the waiver applies; (2)
identify other manufacturers of similar products; (3) include any known
alternate test procedures of the basic model, with the slight
modification that any test procedures identified must be specific to
the product type; (4) sign the petition, and (5) include any request
for confidential treatment for any information deemed confidential. The
reinstatement of these provisions would correct a drafting error and
would not impose any new regulatory requirements on manufacturers,
because these provisions had been part of this section prior to their
removal.
This document also proposes to amend sections 430.27(b)(1)(i) and
431.401(b)(1)(i) to require waiver applicants to identify each brand
name under which the basic model specified in the waiver will be
distributed in commerce in the U.S. While this proposed amendment would
not prohibit third party representatives such as original equipment
manufacturers (``OEMs'') from submitting waiver applications on behalf
of an importer, such OEMs would be required to include all brand names
and applicable basic model numbers for which the waiver will apply. DOE
believes this requirement would assist the Department in identifying
the market-based brand name of a basic model addressed by a waiver
granted by DOE. This information should be identical to the information
submitted in the certification report for a given basic model.
DOE also proposes to amend sections 430.27(c) and 431.401(c) to
require petitioners to notify, on publication of the waiver or interim
waiver, all other manufacturers that manufacture products in the same
product class as the basic models for which the petition for waiver or
interim waiver was requested. In addition, if the technology or
characteristic at issue in the petition is known by the petitioner to
be used in multiple product classes, notification must also be sent to
manufacturers of products in those other product classes. In many
cases, notification of all manufacturers of the same product type, as
set forth in sections 322 and 325 of EPCA, leads to over-notification.
Therefore, DOE proposes to limit manufacturer notification to those
manufacturers who manufacture products in the same product class as the
basic model(s) specified in the waiver petition, as well as in other
product classes where the technology or feature at issue in the waiver
is used. In addition, DOE proposes to require notification upon
publication of the interim waiver. DOE is proposing this
[[Page 74618]]
requirement to address manufacturer concerns about being required to
notify other manufacturers (who are also likely to be competitors of
the petitioner) prior to the marketing of the basic model(s) specified
in the petition. Once a manufacturer receives an interim waiver, the
basic model(s) covered in the interim waiver may be distributed in
commerce, so competitive concerns are less likely to be an issue.
Additionally, DOE proposes to amend sections 430.27(e) and
431.401(e)(1) to state that, if administratively feasible, DOE will
notify an applicant in writing of the disposition of the petition for
interim waiver within 30 business days of receipt of the petition.
While DOE will continue to notify applicants of its decisions on
interim waivers as soon as possible, DOE's experience has been that
providing a response within 15 business days is often not feasible.
DOE would also amend sections 430.27(h) and 431.401(e)(4) to
specify that an interim waiver would expire within 1 year of issuance
unless either of the following occurs first: (1) DOE publishes a final
decision and order in the Federal Register; or (2) DOE publishes a new
or amended test procedure that addresses the issues presented in the
waiver, and manufacturers are required to use that test procedure to
demonstrate compliance with the applicable standard. This amendment
will obviate the need for manufacturers to request an extension of the
interim waiver after 180 days, while providing sufficient time for DOE
to consider the issues presented in the petition and publish a decision
and order or amend the test procedure to eliminate the continued need
for the waiver. DOE further proposes to amend the existing 430.27(m)
and 431.401(g) (which would be renumbered as 430.27(p) and 431.401(j))
to provide that, as soon as is practicable after DOE grants a waiver,
DOE will publish a proposed rule to amend the relevant test procedure
regulation to eliminate the need for the continuation of the waiver.
The waiver would then terminate on the date when use of the amended
test procedure is required to be used by manufacturers to demonstrate
compliance with the applicable energy or water conservation standard.
Continuation of the waiver until the date when use of an amended test
procedure is required to demonstrate compliance, rather than the
effective date of that test procedure (i.e., the date on which that
procedure officially becomes part of the Code of Federal Regulations),
will prevent situations where a waiver has expired while the test
procedure is effective but its use is not yet required. DOE will
continue to update its test procedures in a timely manner to address
issues presented in petitions for waiver.
DOE notes that the metrics for measuring energy or, where
appropriate, water consumption or efficiency are established either by
EPCA or in DOE rulemakings to set energy conservation standards for a
particular covered product or type of covered equipment. Therefore,
while a test procedure waiver or interim waiver can provide an
alternate test method for a particular basic model, it is inappropriate
for a waiver to provide an alternative metric by which to certify
compliance with an applicable standard or make representations as to
the energy and water use of that basic model. As a result, DOE proposes
to amend sections 430.27(a) and 431.401(a) to clarify that a waiver or
interim waiver cannot change the metric by which the energy use or
efficiency of a basic model is described.
DOE would also add new sections 430.27(m) and 431.401(g) that would
specify how manufacturers would certify basic models identified in a
petition for an interim waiver and waiver if the test procedure
prescribed in the interim waiver differs from the test procedure
prescribed in the subsequent decision and order on the waiver. DOE
proposes that a manufacturer who has already certified basic models
using the procedure permitted in DOE's grant of an interim test
procedure waiver does not need to re-test and re-rate those basic
models so long as certain criteria are met. The manufacturer would need
to have used that alternative procedure after DOE granted the company's
interim waiver request, and changes must not have been made to those
basic models that would cause them to use more energy or otherwise be
less energy efficient. In addition, when DOE publishes a decision and
order on a petition for waiver in the Federal Register, a manufacturer
must use the test procedure contained in that decision and order to
rate any basic models covered by the decision and order that have not
yet been certified to DOE. Finally, the test procedure in a decision
and order must be used for all future testing for any basic models
covered by the decision and order.
DOE also proposes to add new sections 430.27(n) and 431.401(h) to
specify that once DOE has granted a petition for waiver for a product
or type of equipment employing a particular technology, other
manufacturers of that product or equipment employing a technology or
characteristic that results in the same need for a waiver, as specified
by DOE in the published petition for waiver in the Federal Register,
must submit a petition for waiver within 60 days. (Some recent examples
of technologies or characteristics for which multiple manufacturers had
the same need for a waiver include large-capacity clothes washers,
refrigerator-freezers that employ multiple defrost cycles, and
dishwashers with a water softener regeneration system.) This proposal
is intended to ensure that all products employing technologies that
cannot be tested under DOE's test procedure, or where testing products
according to DOE's test procedure would lead to unrepresentative
results, are rated in a comparable manner. This change would minimize
public confusion regarding manufacturer representations of energy
efficiency and would improve DOE's certification procedures for covered
products and equipment.
The proposed rule would also add new sections 430.27(o) and
431.401(i) to set forth a process for manufacturers to request
rescission or modification of a waiver if they determine that the
waiver is no longer needed, or for other appropriate reasons. The
provision would set forth the process for DOE to consider and, as
appropriate, grant the requested rescission or modification. Subsequent
to the effective date of a rescission or modification, the manufacturer
would be required to use the applicable DOE test procedure. DOE also
proposes to add language that would clarify that DOE may revoke or
modify a waiver or interim waiver if it determines that the factual
basis underlying the petition for waiver or interim waiver is
incorrect, or upon a determination that the results from the alternate
test procedure are unrepresentative of the basic models' true energy
consumption characteristics. Additionally, the proposed rule allows for
petitioners to request that DOE extend the scope of a waiver or interim
waiver to include additional basic models employing the same technology
as the basic models set forth in the original petition. Notice of any
such extension would be published in the Federal Register.
To keep the regulatory text current, DOE is also proposing to
remove all references to the ``Assistant Secretary for Conservation and
Renewable Energy'' in 10 CFR 430.27 and the ``Assistant Secretary for
Energy Efficiency and Renewable Energy'' in 10 CFR 431.401 and replace
these terms with ``DOE.''
[[Page 74619]]
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
Today's regulatory action is not a ``significant regulatory
action'' under section 3(f) of Executive Order 12866. Accordingly, this
action was not subject to review under that Executive Order by the
Office of Information and Regulatory Affairs (OIRA) of the Office of
Management and Budget (OMB).
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires
preparation of an initial regulatory flexibility analysis (IRFA) for
any rule that by law must be proposed for public comment, unless the
agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
As required by E.O. 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site, http://energy.gov/gc/office-general-counsel.
DOE reviewed the waiver requirements being proposed under the
provisions of the Regulatory Flexibility Act and the procedures and
policies published on February 19, 2003. DOE certifies that the
proposed rule, if adopted, would not have a significant impact on a
substantial number of small entities. The factual basis for this
certification is set forth below.
The proposed rule may affect small manufacturers of covered
consumer products and commercial equipment. DOE does not, however,
expect that the impact of the proposal would be significant. The
regulatory provisions proposed would clarify the effect of the waiver
(the waiver does not release a manufacturer from complying with the
applicable standard and certification requirements) and the
responsibility for compliance with the waiver provisions (the
manufacturer is responsible for the compliance regardless of who
submits the petition). The rule would also specify how manufacturers
would certify basic models specified in a petition for an interim
waiver and waiver if the test procedure prescribed in the interim
waiver differs from the test procedure prescribed in the subsequent
decision and order on the waiver. This proposed language clarifies
existing regulatory requirements and does not add new regulatory
burden. The reinstatement of the provisions of 10 CFR 430.27(b)(1) that
were inadvertently removed is also not expected to impose a significant
regulatory burden. These provisions require petitioners to: specify the
basic model(s) to which the waiver applies, identify other
manufacturers of similar products, include any known alternate test
procedures of the basic model, sign the petition, and include a request
seeking confidential treatment for any information deemed confidential.
Manufacturers have already been complying with these requirements since
they were enacted on November 26, 1986. 51 FR 42826.
In addition, the new waiver requirements would require petitioners
to specify the brand names under which a basic model would be sold and
expand the eligibility for waivers to all types of commercial
equipment. These requirements are not expected to result in a
significant impact, as they are consistent with the purpose of the
existing waiver process, which is to assist manufacturers in testing
their equipment to demonstrate compliance with DOE standards. The new
waiver requirements would also amend the timelines for the issuance of
an interim waiver from 15 to 30 days, a provision that manufacturers
can account for in their product development and marketing schedule
without significant difficulty. The proposed requirements would also
extend the time periods covered by an interim waiver or waiver,
providing more certainty for manufacturers as they rate, certify and
market their products. The new proposal to clarify that DOE would not
change the established metric in a test procedure waiver is also not
expected to result in a significant impact because the established
metric is already required as a result of the applicable energy
conservation standard.
DOE also proposes to specify that once DOE has granted a petition
for waiver for a product or type of equipment employing a particular
technology, other manufacturers of that product or equipment employing
a technology or characteristic that results in the same need for a
waiver must submit a petition for waiver within 60 days. DOE does not
expect this requirement to impose significant additional burden
because, given that the products or equipment produced by these
manufacturers employ a technology that provides the same function that
led DOE to grant a waiver in the first instance, these manufacturers
would likely need to petition for waiver under DOE's existing
regulations. This provision indicates the timeframe in which this
process must be completed.
The proposed rule would also set forth a process for manufacturers
to request rescission or modification of a waiver. This provision would
allow manufacturers to notify DOE if they believe a previously granted
waiver is no longer needed, or that rescission or modification is
necessary for other appropriate reasons. The provision then sets forth
the process for DOE to consider and, as appropriate, grant the request.
The intent of this provision is to reduce manufacturer burden by
providing a process for manufacturers to request rescission or
modification of a waiver that they believe is inappropriate or
unworkable. Similarly, the rule would provide a process by which DOE
may revoke or modify a previously granted waiver if DOE determines that
the factual basis underlying the petition for waiver or interim waiver
is incorrect, or upon a determination that the results from the
alternate test procedure are unrepresentative of the basic models' true
energy consumption characteristics. In such cases, the manufacturer
would be required to test its products or equipment using the DOE test
procedure. DOE does not believe that this provision would result in a
significant impact on small manufacturers. Given that a revocation or
modification is only issued if the factual basis underlying the
original petition was not correct in the first instance, EPCA would
already require the manufacturers to use the applicable DOE test
procedure.
For the reasons stated above, DOE certifies that this proposed
rule, if adopted, would not result in a significant impact on a
substantial number of small entities. Accordingly, DOE has not prepared
an initial regulatory flexibility analysis for this rulemaking. DOE
will transmit this certification to the Small Business Administration
(SBA) as required by 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been submitted to OMB for approval. Public
reporting burden for the submission of a petition for waiver or interim
waiver, or a request for rescission, is estimated to average 5 hours
per response, including the time for reviewing
[[Page 74620]]
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collection of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collection of information to U.S.
Department of Energy, Office of Energy Efficiency and Renewable Energy,
Building Technologies Program, EE-2J, 1000 Independence Avenue SW.,
Washington, DC 20585-0121 or Amendments-Correction-2012-TP-0003@ee.doe.gov, and by email to OIRA_Submission@omb.eop.gov.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
D. Review Under the National Environmental Policy Act
DOE has determined that this proposed rule falls into a class of
actions that are categorically excluded from review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.) and DOE's
implementing regulations at 10 CFR part 1021. Specifically, this
proposed rule amends an existing rule without changing its
environmental effect and, therefore, is covered by the Categorical
Exclusion in 10 CFR part 1021, subpart D, paragraph A5. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
E. Review Under Executive Order 13132
DOE reviewed this proposed rule pursuant to Executive Order 13132,
``Federalism,'' 64 FR 43255 (August 4, 1999), which imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. In accordance with DOE's statement of policy describing
the intergovernmental consultation process it will follow in the
development of regulations that have federalism implications, 65 FR
13735 (March 14, 2000), DOE examined today's proposed rule and
determined that the rule would not have a substantial direct effect on
the States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of Government. See 74 FR 61497. Therefore, DOE has taken
no further action in today's proposed rule with respect to Executive
Order 13132.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform'' (61 FR 4729 (February 7, 1996)) imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, the proposed regulations meet the relevant standards
of Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4; 2 U.S.C. 1501, et seq.) requires each Federal agency to
assess the effects of Federal regulatory actions on State, local, and
Tribal governments and the private sector. For a proposed regulatory
action likely to result in a rule that may cause the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year (adjusted
annually for inflation), section 202 of UMRA requires a Federal agency
to publish estimates of the resulting costs, benefits, and other
effects on the national economy. (2 U.S.C. 1532(a),(b)) UMRA also
requires a Federal agency to develop an effective process to permit
timely input by elected officers of State, local, and Tribal
governments on a proposed ``significant intergovernmental mandate,''
and requires an agency plan for giving notice and opportunity for
timely input to potentially affected small governments before
establishing any requirements that might significantly or uniquely
affect such governments. On March 18, 1997, DOE published a statement
of policy on its process for intergovernmental consultation under UMRA.
62 FR 12820. (The policy is also available at http://energy.gov/gc/office-general-counsel.) Today's proposed rule contains neither an
intergovernmental mandate nor a mandate that may result in an
expenditure of $100 million or more in any year, so these requirements
do not apply.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
Today's proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 12630
DOE determined under Executive Order 12630, ``Governmental Actions
and Interference with Constitutionally Protected Property Rights,'' 53
FR 8859 (March 18, 1988), that today's proposed rule would not result
in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution. See 74 FR 61497-98.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR
[[Page 74621]]
8452 (February 22, 2002), and DOE's guidelines were published at 67 FR
62446 (October 7, 2002). DOE has reviewed today's proposed rule under
OMB and DOE guidelines and has concluded that it is consistent with
applicable policies in those guidelines.
K. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgates or is expected to lead to promulgation of a
final rule, and that (1) is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use if the proposal is implemented, and
of reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use. Today's proposed regulatory
action, which proposes a correction and minor amendments to the
Department's waiver application procedures, is not a significant
regulatory action under Executive Order 12866, it would not have a
significant adverse effect on the supply, distribution, or use of
energy; and has not been designated by the Administrator of OIRA as a
significant energy action. Therefore, it is not a significant energy
action, and, accordingly, DOE has not prepared a Statement of Energy
Effects.
V. Public Participation
A. Submission of Comments
DOE will accept comments, data, and information regarding the
proposed rule no later than the date provided at the beginning of this
notice. Comments, data, and information submitted to DOE's email
address for this rulemaking should be provided in WordPerfect,
Microsoft Word, PDF, or text (ASCII) file format. Interested parties
should avoid the use of special characters or any form of encryption,
and, wherever possible, comments should include the electronic
signature of the author. Absent an electronic signature, comments
submitted electronically must be followed and authenticated by
submitting a signed original paper document to the address provided at
the beginning of this notice. Comments, data, and information submitted
to DOE via mail or hand delivery/courier should include one signed
original paper copy. No telefacsimiles (faxes) will be accepted.
According to 10 CFR 1004.11, any person submitting information that
he or she believes to be confidential and exempt by law from public
disclosure should submit two copies: one copy of the document including
all the information believed to be confidential and one copy of the
document with the information believed to be confidential deleted. DOE
will make its own determination as to the confidential status of the
information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat
submitted information as confidential include (1) a description of the
items, (2) whether and why such items are customarily treated as
confidential within the industry, (3) whether the information is
generally known by or available from other sources, (4) whether the
information has previously been made available to others without
obligation concerning its confidentiality, (5) an explanation of the
competitive injury to the submitting person which would result from
public disclosure, (6) a date upon which such information might lose
its confidential nature due to the passage of time, and (7) why
disclosure of the information would be contrary to the public interest.
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's NOPR.
List of Subjects
10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Imports,
Intergovernmental relations, Small businesses.
10 CFR Part 431
Administrative practice and procedure, Confidential business
information, Energy conservation, Reporting and recordkeeping
requirements.
Issued in Washington, DC, on November 21, 2012.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and
Renewable Energy.
For the reasons stated in the preamble, DOE is proposing to amend
chapter II, subchapter D, of title 10 of the Code of Federal
Regulations, to read as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
1. The authority citation for part 430 continues to read as
follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
2. Section 430.27 is amended by:
a. Revising the section heading;
b. Adding introductory text to paragraph (a);
c. Adding a paragraph (a)(3);
d. Revising paragraphs (b), (c), (e), (g), (h), (i), (j) and (l);
e. Redesignating paragraphs (m) and (n) as paragraphs (p) and (q);
f. Adding paragraphs (m), (n) and (o); and
g. Revising newly redesignated paragraphs (p) and (q).
The addition and revisions read as follows:
Sec. 430.27 Petitions for waiver and interim waiver.
(a) This section provides a means for manufacturers of covered
products to seek waivers of the test procedure requirements of this
subpart for basic models that meet the requirements of paragraph (a)(1)
of this section. In granting a waiver or interim waiver, DOE will not
change the energy use or efficiency metric that the manufacturer must
use to certify compliance with the applicable energy conservation
standard or make representations about the energy use or efficiency of
the covered product. The granting of a waiver or interim waiver by DOE
requires the use of the specified alternative method for testing the
basic models addressed in the waiver, and does not exempt such basic
models from any other regulatory requirement contained in this part or
the certification and compliance requirements of 10 CFR part 429. * * *
* * * * *
(3) Manufacturers of basic model(s) covered by a waiver or interim
waiver are responsible for complying with the other requirements of
this subpart and with the requirements of 10 CFR part 429 regardless of
the person that originally submitted the petition for waiver and/or
interim waiver.
[[Page 74622]]
(b)(1) A petition for waiver shall be submitted either
electronically to AS_Waiver_Requests@ee.doe.gov (preferred method of
transmission) or by mail to U.S. Department of Energy, Building
Technologies Program, Test Procedure Waiver, 1000 Independence Avenue
SW., Mailstop EE-2J, Washington, DC 20585-0121. Each petition for
waiver shall:
(i) Identify the particular basic model(s) for which a waiver is
requested, each brand name under which the identified basic model(s)
will be distributed in commerce, design characteristic(s) constituting
the grounds for the petition, and the specific requirements sought to
be waived and shall discuss in detail the need for the requested
waiver;
(ii) Identify manufacturers of all other basic models distributed
in commerce in the United States and known to the petitioner to
incorporate similar design characteristic(s);
(iii) Include any alternate test procedures known to the petitioner
to evaluate the performance of the product type in a manner
representative of the energy consumption characteristics, or water
consumption characteristics of the basic model; and
(iv) Be signed by the petitioner or by an authorized
representative. In accordance with the provisions set forth in 10 CFR
1004.11, any request for confidential treatment of any information
contained in a petition for waiver or in supporting documentation must
be accompanied by a copy of the petition, application or supporting
documentation from which the information claimed to be confidential has
been deleted. DOE shall publish in the Federal Register the petition
and supporting documents from which confidential information, as
determined by DOE, has been deleted in accordance with 10 CFR 1004.11
and shall solicit comments, data and information with respect to the
determination of the petition. Any person submitting written comments
to DOE with respect to a Petition for Waiver shall also send a copy of
such comments to the petitioner. In accordance with paragraph (i) of
this section, a petitioner may submit a rebuttal statement to DOE.
(2) A petition for interim waiver shall be submitted either
electronically to AS_Waiver_Requests@ee.doe.gov or by mail to U.S.
Department of Energy, Building Technologies Program, Test Procedure
Waiver, 1000 Independence Avenue SW., Mailstop EE-2J, Washington, DC
20585-0121. Each petition for interim waiver shall reference the
related petition for waiver by identifying the particular basic
model(s) for which a waiver is being sought. Each petition for interim
waiver shall demonstrate likely success of the petition for waiver.
Each petition for interim waiver shall be signed by the applicant or by
an authorized representative.
(c)(1) Each petitioner for interim waiver shall, upon publication
of a grant of an interim waiver in the Federal Register, notify in
writing all known manufacturers of domestically marketed basic models
of the same product class (as specified in 10 CFR 430.32) and of other
product classes known to the petitioner to use the technology or have
the characteristic at issue in the waiver. The notice shall include a
statement that DOE has published the interim waiver and petition for
waiver in the Federal Register and the date the petition for waiver was
published. The notice must also include a statement that DOE will
receive and consider timely written comments on the petition for
waiver. Within five working days, each petitioner shall file with DOE a
statement certifying the names and addresses of each person to whom a
notice of the petition for waiver has been sent.
(2) If a petitioner does not request an interim waiver and
notification has not been provided pursuant to paragraph (c)(1), each
petitioner, after filing a petition for waiver with DOE, and after the
petition for waiver has been published in the Federal Register, shall,
within five working days of such publication, notify in writing all
known manufacturers of domestically marketed units of the same product
class (as listed in 10 CFR 430.32) and of other product classes known
to petitioner to use the technology or have the characteristic at issue
in the waiver. The notice shall include a statement that DOE has
published the petition in the Federal Register and the date the
petition for waiver was published. Within five working days of the
publication of the petition in the Federal Register, each petitioner
shall file with DOE a statement certifying the names and addresses of
each person to whom a notice of the petition for waiver has been sent.
* * * * *
(e) If administratively feasible, a petitioner shall be notified in
writing of the disposition of the petition for interim waiver within 30
business days of receipt of the petition. Notice of DOE's determination
on the petition for interim waiver shall be published in the Federal
Register.
* * * * *
(g) An interim waiver from the test procedure requirements will be
granted by DOE if it appears likely that the petition for waiver will
be granted, and/or DOE determines that it would be desirable for public
policy reasons to grant immediate relief pending a determination on the
petition for waiver.
(h)(1) An interim waiver will terminate one year after publication
in the Federal Register unless either of the following occurs first:
(i) DOE publishes in the Federal Register a determination on the
petition for waiver; or
(ii) DOE publishes in the Federal Register a new or amended test
procedure that addresses the issues presented in the waiver, and
manufacturers are required to use that test procedure to demonstrate
compliance with the applicable standard.
(2) DOE may extend the scope of an interim waiver upon request of
the petitioner to include additional basic models employing the same
technology as the basic models set forth in the original petition. DOE
shall publish any such extension in the Federal Register.
(i) Following publication of the petition for waiver in the Federal
Register, a petitioner may, within 10 working days of receipt of a copy
of a comment submitted in accordance with paragraph (b)(1) of this
section, submit a rebuttal statement to DOE. A petitioner may rebut
more than one response in a single rebuttal statement.
(j) The petitioner shall be notified in writing as soon as
practicable of the disposition of each petition for waiver. DOE shall
issue a decision on the petition as soon as is practicable following
receipt and review of the Petition for Waiver and other applicable
documents, including, but not limited to, comments and rebuttal
statements.
* * * * *
(l) Waivers will be granted by DOE if it is determined either that
the basic model(s) for which the waiver was requested contains a design
characteristic that prevents testing of the basic model according to
the prescribed test procedures, or that the prescribed test procedures
may evaluate the basic model in a manner so unrepresentative of its
true energy or water consumption characteristics as to provide
materially inaccurate comparative data. Waivers may be granted subject
to conditions, which may include adherence to alternate test procedures
specified by DOE. DOE shall consult with the Federal Trade Commission
prior to granting any waiver, and shall promptly
[[Page 74623]]
publish in the Federal Register notice of each waiver granted or
denied, and any limiting conditions of each waiver granted. DOE may
extend the scope of a waiver upon request of the petitioner to include
additional basic models employing the same technology as the basic
models set forth in the original petition. Notification of such
extension will be published in the Federal Register.
(m)(1) If the alternate test procedure specified in the interim
waiver differs from the alternate test procedure specified by DOE in a
subsequent decision and order granting the petition for waiver, a
manufacturer who has already certified basic models using the procedure
permitted in DOE's grant of an interim test procedure waiver does not
need to re-test and re-rate those basic models so long as:
(i) The manufacturer used that alternative procedure to certify the
compliance of the basic model after DOE granted the company's interim
waiver request;
(ii) Changes have not been made to those basic models that would
cause them to use more energy or otherwise be less energy efficient;
and
(iii) The manufacturer does not modify the certified rating.
(2) After DOE publishes a decision and order in the Federal
Register, a manufacturer must use the test procedure contained in that
notice to rate any basic models covered by the waiver that have not yet
been certified to DOE and for any future testing in support of the
certification for the basic model(s).
(n) Not later than 60 days after DOE grants a petition for waiver
for a product employing a particular technology or having a particular
characteristic, any manufacturer of that product employing a technology
or characteristic that results in the same need for a waiver, as
specified by DOE in the published petition for waiver in the Federal
Register, must submit a petition for waiver pursuant to the
requirements of this section. Manufacturers may also submit a request
for interim waiver pursuant to the requirements of this section.
(o)(1) Waivers and interim waivers are conditioned upon the
validity of statements, representations, and documents provided by the
petitioner. DOE may revoke or modify a waiver or interim waiver at any
time upon a determination that the factual basis underlying the
petition for waiver or interim waiver is incorrect, or upon a
determination that the results from the alternate test procedure are
unrepresentative of the basic models' true energy consumption
characteristics. DOE will publish any proposed rescission or
modification in the Federal Register for public comment. DOE will also
publish its decision in the Federal Register.
(2) Petitioners may request that DOE rescind or modify a waiver or
interim waiver if the petitioner discovers an error in the information
provided to DOE as part of its petition, determines that the waiver is
no longer needed, or for other appropriate reasons. DOE will publish
any request for rescission or modification in the Federal Register for
public comment. DOE will also publish its decision on the request in
the Federal Register. The decision shall be based on relevant
information contained in the record and any comments received. Basic
models tested subsequent to the effective date of a rescission must be
tested using the applicable DOE test procedure in 10 CFR part 430.
(p) As soon as practicable after the granting of any waiver, DOE
will publish in the Federal Register a notice of proposed rulemaking to
amend its regulations so as to eliminate any need for the continuation
of such waiver. As soon thereafter as practicable, DOE will publish in
the Federal Register a final rule. Such waiver will terminate on the
date on which use of the test procedure established in such final rule
is required to demonstrate compliance with the applicable conservation
standard.
(q) In order to exhaust administrative remedies, any person
aggrieved by an action under this section must file an appeal with the
DOE's Office of Hearings and Appeals as provided in 10 CFR part 1003,
subpart C.
PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND
INDUSTRIAL EQUIPMENT
3. The authority citation for part 431 continues to read as
follows:
Authority: 42 U.S.C. 6291-6317.
4. Section 431.2 is amended by revising the definition of ``Private
labeler'' to read as follows:
Sec. 431.2 Definitions.
* * * * *
Private labeler means, with respect to any product covered under
this part, an owner of a brand or trademark on the label of a covered
product which bears a private label. A covered product bears a private
label if:
(1) Such product (or its container) is labeled with the brand or
trademark of a person other than a manufacturer of such product;
(2) The person with whose brand or trademark such product (or
container) is labeled has authorized or caused such product to be so
labeled; and
(3) The brand or trademark of a manufacturer of such product does
not appear on such label.
* * * * *
5. Section 431.401 is amended by:
a. Revising the section heading;
b. Adding introductory text to paragraph (a);
c. Revising paragraph (a)(1);
d. Adding paragraph (a)(3);
e. Revising paragraphs (b)(1) introductory text, (b)(1)(i), (b)(2),
(c), (d)(2), (e)(1), (e)(3), and (e)(4);
f. Adding paragraph (e)(5);
g. Revising paragraphs (f)(1), (f)(2), and (f)(4);
h. Adding paragraph (f)(5);
i. Redesignating paragraph (g) as (j);
j. Adding paragraphs (g), (h), and (i);
k. Revising newly redesignated paragraph (j); and
l. Adding a new paragraph (k).
The additions and revisions read as follows:
Sec. 431.401 Petitions for waiver and interim waiver.
(a) General criteria. This section provides a means for
manufacturers of covered equipment to seek waivers of the test
procedure requirements of this part for basic models that meet the
requirements of paragraph (a)(1) of this section. In granting a waiver
or interim waiver, DOE will not change the energy use or efficiency
metric that the manufacturer must use to certify compliance with the
applicable energy conservation standard or make representations about
the energy use or efficiency of the covered equipment. The granting of
a waiver or interim waiver requires the use of the specified
alternative method for testing the basic models addressed in the
waiver, and does not exempt such basic models from any other regulatory
requirement contained in this part or the certification and compliance
requirements of 10 CFR part 429.
(1) Any interested person may submit a petition to waive for a
particular basic model the requirements of any uniform test method
contained in this part, upon the grounds that either the basic model
contains one or more design characteristics that prevent testing of the
basic model according to the prescribed test procedures, or the
prescribed test procedures may evaluate the basic model in a manner so
unrepresentative of its true energy consumption characteristics as to
provide materially inaccurate comparative data.
* * * * *
[[Page 74624]]
(3) Manufacturers of basic model(s) covered by a waiver or interim
waiver are responsible for complying with the other requirements of
this part and with the requirements of 10 CFR part 429 regardless of
the person that originally submitted the petition for waiver and
interim waiver.
(b) Submission, content, and publication. (1) A petition for waiver
shall be submitted either electronically to AS_Waiver_Requests@ee.doe.gov (preferred method of transmission) or by mail to
U.S. Department of Energy, Building Technologies Program, Test
Procedure Waiver, 1000 Independence Avenue SW., Mailstop EE-2J,
Washington, DC 20585-0121. Each petition for waiver shall:
(i) Identify the particular basic model(s) for which a waiver is
requested, each brand name under which the identified basic model(s)
will be distributed in commerce, the design characteristic(s)
constituting the grounds for the petition, and the specific
requirements sought to be waived, and discuss in detail the need for
the requested waiver;
* * * * *
(2) Petitions for interim waiver shall be submitted by email to
AS_Waiver_Requests@ee.doe.gov or (preferred method of transmission),
or by mail to U.S. Department of Energy, Building Technologies Program,
Test Procedure Waiver, 1000 Independence Avenue SW., Mailstop EE-2J,
Washington, DC 20585-0121. Each petition for interim waiver must
reference the petition for waiver by identifying the particular basic
model(s) for which a waiver is being sought. Each petition for interim
waiver must demonstrate likely success of the petition for waiver and
address what economic hardship and/or competitive disadvantage is
likely to result absent a favorable determination on the petition for
interim waiver. Each petition for interim waiver shall be signed by the
petitioner or an authorized representative.
(c) Notification to other manufacturers. (1) Each petitioner for
interim waiver shall, upon publication of a grant of an interim waiver
in the Federal Register, notify in writing all known manufacturers of
domestically marketed units of the same equipment class (as set forth
in the relevant subpart of 10 CFR part 431), and of other equipment
classes known to the petitioner to use the technology or characteristic
at issue in the waiver. The notice must include a statement that DOE
has published the interim waiver and petition for waiver in the Federal
Register and the date the petition for waiver was published. The notice
must also include a statement that DOE will receive and consider timely
written comments on the petition for interim waiver. Within five
working days, each petitioner must file with DOE a statement certifying
the names and addresses of each person to whom a notice of the petition
for waiver has been sent.
(2) If a manufacturer does not request an interim waiver and
notification has not been provided pursuant to paragraph (1), each
petitioner, after filing a petition for waiver with DOE, and after the
petition for waiver has been published in the Federal Register, shall,
within five working days of such publication, notify in writing all
known manufacturers of domestically marketed units of the same
equipment class (as listed in the relevant subpart of 10 CFR part 431),
and of other product classes known to the petitioner to use the
technology or characteristic at issue in the waiver. The notice shall
include a statement that DOE has published in the Federal Register on a
certain date the petition for waiver and supporting documents from
which confidential information, if any, as determined by DOE, has been
deleted in accordance with 10 CFR 1004.11. Each petitioner shall file
with DOE a statement certifying the names and addresses of each person
to whom a notice of the petition for waiver has been sent.
(d) * * *
(2) Any person submitting written comments to DOE with the respect
to a petition for waiver must also send a copy of such comments to the
petitioner. In accordance with paragraph (b)(1) of this section, a
petitioner may submit a rebuttal statement to DOE.
(e) Provisions specific to interim waivers--(1) Disposition of
application. If administratively feasible, DOE will notify the
applicant in writing of the disposition of the petition for interim
waiver within 30 business days of receipt of the application. Notice of
DOE's determination on the petition for interim waiver will be
published in the Federal Register.
* * * * *
(3) Criteria for granting. DOE will grant an interim waiver from
test procedure requirements if it appears likely that the petition for
waiver will be granted, and/or if DOE determines that it would be
desirable for public policy reasons to grant immediate relief pending a
determination on the petition for waiver.
(4) Duration. An interim waiver will terminate one year after
publication in the Federal Register unless either of the following
occurs first:
(i) DOE publishes in the Federal Register a determination on the
petition for waiver; or
(ii) DOE publishes in the Federal Register a new or amended test
procedure that addresses the issues presented in the waiver, and
manufacturers are required to use that test procedure to demonstrate
compliance with the applicable standard.
(5) Extension to additional basic models. DOE may extend the scope
of an interim waiver upon request of the petitioner to include
additional basic models employing the same technology as the basic
models set forth in the original petition. Notification of such
extension will be published in the Federal Register.
(f) * * *
(1) Rebuttal by petitioner. Following publication of the petition
for waiver in the Federal Register, a petitioner may, within 10 working
days of receipt of a copy of any comments submitted in accordance with
paragraph (b)(1) of this section, submit a rebuttal statement to DOE. A
petitioner may rebut more than one response in a single rebuttal
statement.
(2) Disposition of petition. DOE will notify the petitioner in
writing as soon as practicable of the disposition of each petition for
waiver. DOE will issue a decision on the petition as soon as is
practicable following receipt and review of the petition for waiver and
other applicable documents, including, but not limited to, comments and
rebuttal statements.
* * * * *
(4) Granting: criteria, conditions, and publication. DOE will grant
a waiver if it determines that either the basic model for which the
waiver was requested contains a design characteristic that prevents
testing of the basic model according to the prescribed test procedures,
or the prescribed test procedures may evaluate the basic model in a
manner so unrepresentative of its true energy consumption
characteristics as to provide materially inaccurate comparative data.
DOE may grant a waiver subject to conditions, which may include
adherence to alternate test procedures. DOE will promptly publish in
the Federal Register notice of each waiver granted or denied, and any
limiting conditions of each waiver granted. In granting a waiver, DOE
will not change the energy use or efficiency metric that the
manufacturer must use to certify compliance with the applicable energy
[[Page 74625]]
conservation standard or make representations about the energy use or
efficiency of the covered product.
(5) Extension to additional basic models. DOE may extend the scope
of a waiver upon request of the petitioner to include additional basic
models employing the same technology as the basic models set forth in
the original petition. Notification of such extension will be published
in the Federal Register.
(g) If the alternate test procedure specified in the interim waiver
differs from the alternate test procedure specified by DOE in the
subsequent decision and order granting the petition for waiver, a
manufacturer who has already certified basic models using the procedure
permitted in DOE's grant of an interim test procedure waiver does not
need to re-test and re-rate those basic models so long as:
(1) The manufacturer used that alternative procedure after DOE
granted the company's interim waiver request; and
(2) Changes have not been made to those basic models that would
cause them to use more energy or otherwise be less energy efficient.
(3) After DOE publishes a decision and order in the Federal
Register, a manufacturer must use the test procedure contained in that
notice to rate any basic models that have not yet been certified to DOE
and for any future testing of any basic model(s) covered by the
decision and order.
(h) Not later than 60 days after DOE grants a petition for waiver
for a type of equipment employing a particular technology or
characteristic, any manufacturer of that equipment employing a
technology or characteristic that results in the same need for a
waiver, as specified by DOE in the published petition for waiver in the
Federal Register, must submit a petition for waiver pursuant to the
requirements of this section. Manufacturers may also submit a request
for interim waiver pursuant to the requirements of this section.
(i)(1) Waivers and interim waivers are conditioned upon the
presumed validity of statements, representations, and documents
provided by the petitioner. DOE may revoke or modify a waiver or
interim waiver at any time upon a determination that the factual basis
underlying the petition for waiver or interim waiver is incorrect, or
upon a determination that the results from the alternate test procedure
are unrepresentative of the basic models' true energy consumption
characteristics. DOE will publish any proposed rescission or
modification in the Federal Register for public comment. DOE will also
publish its decision in the Federal Register.
(2) Petitioners may request that DOE rescind or modify a waiver or
interim waiver if the petitioner discovers an error in the information
provided to DOE as part of its petition, determines that the waiver is
no longer needed, or for other appropriate reasons. DOE will publish
any request for rescission or modification in the Federal Register for
public comment. DOE will also publish its decision on the request in
the Federal Register. The decision shall be based on relevant
information contained in the record and any comments received. Basic
models tested subsequent to the effective date of a rescission must be
tested using the applicable DOE test procedure.
(j) Revision of regulation. As soon as practicable after the
granting of any waiver, DOE will publish in the Federal Register a
notice of proposed rulemaking to amend its regulations so as to
eliminate any need for the continuation of such waiver. As soon
thereafter as practicable, DOE will publish in the Federal Register a
final rule. Such waiver will terminate on the date on which use of the
test procedure established in such final rule is required to
demonstrate compliance with the applicable conservation standard.
(k) In order to exhaust administrative remedies, any person
aggrieved by an action under this section must file an appeal with the
DOE's Office of Hearings and Appeals as provided in 10 CFR part 1003,
subpart C.
[FR Doc. 2012-30195 Filed 12-14-12; 8:45 am]
BILLING CODE 6450-01-P