(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 [email protected] (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 Register, must, within five working days of such publication, notify in writing all known manufacturers of domestically marketed units of the same product class (as listed in 10 CFR 430.32) and of other product classes known to the petitioner to use the technology or have the characteristic at issue in the waiver. The notice must include a statement that DOE has published the petition in the Federal Register and the date the petition for waiver was published. Within five working days of the publication of the petition in the Federal Register, each petitioner must file with DOE a statement certifying the names and addresses of each person to whom a notice of the petition for waiver has been sent.

(d) Public comment and rebuttal.

(1) Any person submitting written comments to DOE with respect to an interim waiver must also send a copy of the comments to the petitioner by the deadline specified in the notice.

(2) Any person submitting written comments to DOE with respect to a petition for waiver must also send a copy of such comments to the petitioner.

(3) A petitioner may, within 10 working days of the close of the comment period specified in the Federal Register, submit a rebuttal statement to DOE. A petitioner may rebut more than one comment in a single rebuttal statement.

(e) Provisions specific to interim waivers—(1) Disposition of application. If administratively feasible, DOE will notify the applicant in writing of the disposition of the petition for interim waiver within 30 business days of receipt of the application. Notice of DOE's determination on the petition for interim waiver will be published in the Federal Register.

(2) Criteria for granting. DOE will grant an interim waiver from the test procedure requirements if it appears likely that the petition for waiver will be granted and/or if DOE determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the petition for waiver.

(f) Provisions specific to waivers—(1) Disposition of application. The petitioner shall be notified in writing as soon as practicable of the disposition of each petition for waiver. DOE shall issue a decision on the petition as soon as is practicable following receipt and review of the Petition for Waiver and other applicable documents, including, but not limited to, comments and rebuttal statements.

(2) Criteria for granting. DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model(s) for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy or water consumption characteristics as to provide materially inaccurate comparative data. Waivers may be granted subject to conditions, which may include adherence to alternate test procedures specified by DOE. DOE will consult with the Federal Trade Commission prior to granting any waiver, and will promptly publish in the Federal Register notice of each waiver granted or denied, and any limiting conditions of each waiver granted.

(g) Extension to additional basic models. A petitioner may request that DOE extend the scope of a waiver or an interim waiver to include additional basic models employing the same technology as the basic model(s) set forth in the original petition. DOE will publish any such extension in the Federal Register.

(h) Duration.

(1) Within one year of issuance of an interim waiver, DOE will either:

(i) Publish in the Federal Register a determination on the petition for waiver; or

(ii) Publish in the Federal Register a new or amended test procedure that addresses the issues presented in the waiver.

(2) When DOE amends the test procedure to address the issues presented in a waiver, the waiver will automatically terminate on the date on which use of that test procedure is required to demonstrate compliance.

(i) Compliance certification.

(1) If the alternate test procedure specified in the interim waiver differs from the alternate test procedure specified by DOE in a subsequent decision and order granting the petition for waiver, a manufacturer who has already certified basic models using the procedure permitted in DOE's grant of an interim test procedure waiver is not required to re-test and re-rate those basic models so long as: The manufacturer used that alternative procedure to certify the compliance of the basic model after DOE granted the company's interim waiver request; changes have not been made to those basic models that would cause them to use more energy or otherwise be less energy efficient; and the manufacturer does not modify the certified rating. However, if the alternate test procedure specified in the interim waiver differs from the alternate test procedure specified by DOE in a subsequent decision and order granting the petition for waiver and if specified by DOE in the decision and order, the manufacturer must re-test and re-certify compliance using the procedure specified by DOE in the decision and order by the time of the next annual certification.

(2) After DOE publishes a decision and order in the Federal Register, a manufacturer must use the test procedure contained in that notice to rate any basic models covered by the waiver that have not yet been certified to DOE and for any future testing in support of the certification for the basic model(s) while the waiver is valid.

(j) Petition for waiver required of other manufacturers. Within 60 days after DOE issues a waiver to a manufacturer for a product employing a particular technology or having a particular characteristic, any manufacturer currently distributing in commerce in the United States a product employing a technology or characteristic that results in the same need for a waiver (as specified by DOE in the published decision and order on the petition in the Federal Register) must submit a petition for waiver pursuant to the requirements of this section. Manufacturers not currently distributing such products in commerce in the United States must petition for and be granted a waiver prior to distribution in commerce in the United States. Manufacturers may also submit a request for interim waiver pursuant to the requirements of this section.

(k) Rescission or modification.

(1) DOE may rescind or modify a waiver or interim waiver at any time upon DOE's determination that the factual basis underlying the petition for waiver or interim waiver is incorrect, or upon a determination that the results from the alternate test procedure are unrepresentative of the basic model(s)' true energy consumption characteristics. Waivers and interim waivers are conditioned upon the validity of statements, representations, and documents provided by the requestor; any evidence that the original grant of a waiver or interim waiver was based upon inaccurate information will weigh against continuation of the waiver. DOE's decision will specify the basis for its determination and, in the case of a modification, will also specify the change to the authorized test procedure.

(2) A person may request that DOE rescind or modify a waiver or interim waiver issued to that person if the person discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. In a request for rescission, the requestor must provide a statement explaining why it is requesting rescission. In a request for modification, the requestor must explain the need for modification to the authorized test procedure and detail the modifications needed and the corresponding impact on measured energy consumption.

(3) DOE will publish a proposed rescission or modification (DOE-initiated or at the request of the original requestor) in the Federal Register for public comment. A requestor may, within 10 working days of the close of the comment period specified in the proposed rescission or modification published in the Federal Register, submit a rebuttal statement to DOE. A requestor may rebut more than one comment in a single rebuttal statement.

(4) DOE will publish its decision in the Federal Register. DOE's determination will be based on relevant information contained in the record and any comments received.

(5) After the effective date of a rescission, any basic model(s) previously subject to a waiver must be tested and certified using the applicable DOE test procedure in 10 CFR part 430.

(l) Revision of regulation. As soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver. As soon thereafter as practicable, DOE will publish in the Federal Register a final rule.

(m) To exhaust administrative remedies, any person aggrieved by an action under this section must file an appeal with the DOE's Office of Hearings and Appeals as provided in 10 CFR part 1003, subpart C.

[79 FR 26599, May 9, 2014]