Test Procedure Interim Waiver Process, 70945-70962 [2021-26756]
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Rules and Regulations
Federal Register
Vol. 86, No. 237
Tuesday, December 14, 2021
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.
DEPARTMENT OF ENERGY
SUPPLEMENTARY INFORMATION:
10 CFR Parts 430 and 431
Table of Contents
[EERE–2019–BT–NOA–0011]
I. Summary of Final Rule
II. Authority and Background
A. Authority
B. Background
III. Discussion
A. Automatic Granting of Interim Waiver
After Prescribed Time Period
B. Timeframe for Review of Interim
Waivers
C. Clarification of Necessary Contents of
Interim Waiver
D. Duration of Applicability of Interim
Waivers and Waivers
E. Transition Period for Compliance With
Decision and Order or Amended Test
Procedure
F. Consistency With Enforcement
Requirements
G. Reasons for Rescinding or Modifying
Waiver or Interim Waiver
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility
Act
C. Review Under the Paperwork Reduction
Act of 1995
D. Review Under the National
Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates
Reform Act of 1995
H. Review Under the Treasury and General
Government Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under Treasury and General
Government Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Review Consistent With OMB’s
Information Quality Bulletin for Peer
Review
M. Congressional Notification
VI. Approval of the Office of the Secretary
RIN 1904–AE24
Test Procedure Interim Waiver Process
Office of Energy Efficiency and
Renewable Energy (EERE), U.S.
Department of Energy.
ACTION: Final rule.
AGENCY:
The U.S. Department of
Energy (‘‘DOE’’ or the ‘‘Department’’) is
revising the Department’s test procedure
interim waiver process. The revisions
address areas of the test procedure
interim waiver process regulations that
may result in alternate test procedures
that are inconsistent with the purpose
and requirements of the Energy Policy
and Conservation Act, and that
otherwise appear not to effectuate the
statute properly.
DATES: This rule is effective February
14, 2022.
ADDRESSES: The docket for this
rulemaking, which includes Federal
Register notices, public meeting
attendee lists and transcripts,
comments, and other supporting
documents/materials, is available for
review at www.regulations.gov. All
documents in the docket are listed in
the www.regulations.gov index.
However, not all documents listed in
the index may be publicly available,
such as information that is exempt from
public disclosure.
The docket web page can be found at:
www.regulations.gov/docket?D=EERE2019-BT-NOA-0011. The
www.regulations.gov web page contains
instructions on how to access all
documents, including public comments,
in the docket.
FOR FURTHER INFORMATION CONTACT:
Ms. Sarah Butler, U.S. Department of
Energy, Office of General Counsel, GC–
33, 1000 Independence Avenue SW,
SUMMARY:
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Washington, DC 20585–0121. Email:
Sarah.Butler@hq.doe.gov.
Ms. Julia Hegarty, 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. Email:
ApplianceStandardsQuestions@
ee.doe.gov.
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I. Summary of Final Rule
On December 11, 2020, DOE
published a final rule (‘‘December 2020
Final Rule’’) in the Federal Register that
made significant revisions to its
procedures for processing petitions for
interim waivers from test procedures
mandated pursuant to the Energy Policy
and Conservation Act (‘‘EPCA’’), found
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in 10 CFR 430.27 and 10 CFR 431.401.
85 FR 79802.
Subsequently, on January 20, 2021,
the White House issued Executive Order
13990, ‘‘Protecting Public Health and
the Environment and Restoring Science
to Tackle the Climate Crisis.’’ 86 FR
7037 (Jan. 25, 2021). Section 1 of that
Order listed several policies related to
the protection of public health and the
environment, including reducing
greenhouse gas emissions and bolstering
the Nation’s resilience to climate
change. Id. at 86 FR 7037, 7041. Section
2 of the Order instructs all agencies to
review ‘‘existing regulations, orders,
guidance documents, policies, and any
other similar agency actions (agency
actions) promulgated, issued, or
adopted between January 20, 2017, and
January 20, 2021, that are or may be
inconsistent with, or present obstacles
to, [these policies].’’ Id. Agencies are
then directed, as appropriate and
consistent with applicable law, to
consider suspending, revising, or
rescinding these agency actions and to
immediately commence work to
confront the climate crisis. Id. In
addition, the White House explicitly
enumerated certain agency actions,
including the December 2020 Final
Rule, as actions that would be reviewed
to determine consistency with Section 1
of the Order.1 Executive Order 13990,
Fact Sheet.2
DOE proposed revisions to its
procedures for processing petitions for
interim waivers from test procedures
mandated pursuant to EPCA in a notice
of proposed rulemaking (‘‘NOPR’’) that
was published on August 19, 2021
(‘‘August 2021 NOPR’’). 86 FR 46793.
While E.O. 13990 triggered the
Department’s re-evaluation, DOE is
relying on the analysis presented below,
based upon EPCA, to revise its prior
rule. In conducting its review of the
December 2020 Final Rule, DOE has
identified areas that do not meet DOE’s
responsibilities under EPCA. The
December 2020 Final Rule mandates a
1 Fact Sheet: List of Agency Actions for Review
(Jan. 20, 2021), https://www.whitehouse.gov/
briefing-room/statements-releases/2021/01/20/factsheet-list-of-agency-actions-for-review/.
2 The Joint Advocates, Sierra Club and
Earthjustice, and DEEP (as identified in Table II.1
of this document) urged DOE to comply with the
deadline for final action on this proposal contained
in Executive Order 13990. (Joint Advocates, No. 65
at p. 2; Sierra Club and Earthjustice, No. 67 at p.
1; DEEP, No. 59 at p. 2)
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process that may result in alternate test
procedures that are inconsistent with
EPCA’s purpose and requirements. In
addition, as discussed in greater detail
in section III of this document, upon
reconsideration, DOE believes
provisions implemented by the
December 2020 Final Rule could
weaken energy conservation standards
by allowing manufacturers to place
noncompliant products in the market. In
furtherance of its duties under EPCA
and in accordance with Executive Order
13990, DOE is revising its procedures
for processing interim waiver requests.
In this final rule, DOE amends 10 CFR
430.27 and 10 CFR 431.401 by: (1)
Removing the provisions, adopted in the
December 2020 Final Rule, that interim
waivers will be automatically granted if
DOE fails to notify the petitioner of the
disposition of the petition within 45
business days of receipt of the petition,
and instead specifying that DOE will
make best efforts to process any interim
waiver request within 90 days of
receipt; (2) providing the requirements
for a complete petition for interim
waiver, and specifying that DOE would
notify petitioners of incomplete
petitions via email and that DOE will
post a complete petition for interim
waiver on its website within five
business days of receipt of the complete
petition; (3) stating the information that
must be provided in a request to extend
a waiver to additional basic models; (4)
revising the compliance certification
and representation requirements; (5)
specifying that interim waivers will
automatically terminate on the
compliance date of a new or amended
test procedure; (6) harmonizing the
consumer product and commercial
equipment waiver provisions with
enforcement requirements; and (7)
allowing DOE to rescind or modify a
waiver for appropriate reasons.
II. Authority and Background
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A. Authority
EPCA,3 Public Law 94–163 (42 U.S.C.
6291–6317) authorizes DOE to regulate
the energy efficiency of a number of
consumer products and industrial
equipment types. Title III, Part B 4 of
EPCA established the Energy
Conservation Program for Consumer
Products Other Than Automobiles. Title
III, Part C 5 of EPCA established the
Energy Conservation Program for
3 All references to EPCA in this document refer
to the statute as amended through the Energy Act
of 2020, Public Law 116–260 (Dec. 27, 2020).
4 For editorial reasons, Part B was redesignated as
Part A upon codification in the U.S. Code.
5 For editorial reasons, Part C was redesignated as
Part A–1 upon codification in the U.S. Code.
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Certain Industrial Equipment. The
energy conservation program under
EPCA consists essentially of four parts:
(1) Testing, (2) labeling, (3) Federal
energy conservation standards, and (4)
certification and enforcement
procedures.
The Federal testing requirements
consist of test procedures that
manufacturers of covered products and
equipment generally must use as the
basis for: (1) Certifying to DOE that the
product or equipment complies with the
applicable energy conservation
standards adopted pursuant to EPCA (42
U.S.C. 6295(s); 42 U.S.C. 6316(a)), and
(2) making representations about the
efficiency of the products or equipment
(42 U.S.C. 6293(c); 42 U.S.C. 6314(d)).
Similarly, DOE must use these test
procedures to determine whether the
product or equipment complies with
relevant standards promulgated under
EPCA. (42 U.S.C. 6295(s); 42 U.S.C.
6316(a))
Under 42 U.S.C. 6293 and 42 U.S.C.
6314, EPCA sets forth the criteria and
procedures DOE is required to follow
when prescribing or amending test
procedures for covered products and
equipment. Specifically, test procedures
must be reasonably designed to produce
test results that reflect energy efficiency,
energy use or estimated annual
operating cost of a covered product or
covered equipment during a
representative average use cycle or
period of use, and must not be unduly
burdensome to conduct. (42 U.S.C.
6293(b)(3); 42 U.S.C. 6314(a)(2))
B. Background
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. DOE’s
regulations in Title 10 of the Code of
Federal Regulations (‘‘CFR’’), § 430.27
(consumer products) and § 431.401
(commercial equipment), contain
provisions allowing a person to seek a
waiver from the test procedure
requirements if certain conditions are
met. DOE will grant a waiver from the
test procedure requirements if DOE
determines either that 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 that the prescribed test
procedure evaluates the basic model in
a manner so unrepresentative of its true
energy consumption characteristics as to
provide materially inaccurate
comparative data. 10 CFR 430.27(a)(1)
and 10 CFR 431.401(a)(1). DOE may
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grant the waiver subject to conditions,
including adherence to alternate test
procedures. In addition, the waiver
process permits parties submitting a
petition for waiver to also file an
application for interim waiver from the
applicable test procedure requirements.
10 CFR 430.27(a) and 10 CFR
431.401(a). DOE will grant an interim
waiver 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
decision on the petition for waiver. 10
CFR 430.27(e)(2) and 10 CFR
431.401(e)(2).
On May 1, 2019, DOE published a
NOPR to amend the existing test
procedure interim waiver process (‘‘May
2019 NOPR’’). 84 FR 18414. After
considering the comments received,
DOE published the December 2020
Final Rule, which significantly revised
its procedures for test procedure interim
waivers. 85 FR 79802.
The December 2020 Final Rule
adopted an approach to DOE’s test
procedure interim waiver decisionmaking process that requires the
Department to notify, in writing, an
applicant for an interim waiver of the
disposition of the request within 45
business days of receipt of the
application. 10 CFR 430.27(e)(ii) and 10
CFR 431.401(e)(ii). Importantly, under
the recent amendments, if DOE does not
notify the applicant in writing of the
disposition of the interim waiver within
45 business days, the interim waiver is
granted automatically and the
manufacturer is authorized to test
subject products or equipment using the
alternate test procedure proposed by the
manufacturer in the petition. Id. If DOE
denies the interim waiver petition, DOE
is required to notify the petitioner
within 45 business days and post the
notice on the Department’s website as
well as publish its determination in the
Federal Register as soon as possible
after such notification. Id. If DOE
ultimately denies an associated petition
for waiver or grants the petition with a
test procedure that differs from the
alternate test procedure specified in the
interim waiver, manufacturers are
allowed a 180-day grace period before
the manufacturer is required to use the
DOE test procedure or the alternate test
procedure specified in the decision and
order to make representations regarding
energy efficiency. 10 CFR 430.27(i)(1)
and 10 CFR 431.401(i)(1).6
6 In proposing an amendment to 10 CFR 430.27(i)
and 431.401(i), DOE stated that—‘‘The 180 day
duration was proposed because that time frame is
consistent with the EPCA provision that provides
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In the December 2020 Final Rule,
DOE made a policy decision to place
significant weight on reducing
manufacturers’ burdens, providing
greater certainty and transparency to
manufacturers, and reducing delays in
manufacturers’ ability to bring
innovative product options to
consumers. 85 FR 79816. To justify
these changes to DOE’s interim waiver
process, DOE noted that it intended to
shift the burden of any delays in the
review process onto the Department and
allow for innovative products to be
made available more quickly to
consumers. 85 FR 79802, 79803 and
79811.
In the August 2021 NOPR, DOE stated
that in reconsideration of the December
2020 Final Rule, DOE is weighing these
policy considerations differently. DOE
tentatively determined that the changes
under the December 2020 Final Rule
may not allow DOE sufficient time to
review an alternate test procedure,
leading to increased risks to consumers
of purchasing noncompliant products,
decreased energy savings, and an unfair
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playing field for competing
manufacturers in the market. Given
EPCA’s goal of energy conservation and
DOE’s statutory obligations under
EPCA, in this final rule DOE places
greater weight on ensuring compliant
test procedures, decreasing risks to
consumers and manufacturers, and
ensuring that DOE meets its statutory
obligations. 86 FR 46793, 46795.
In response to the August 2021 NOPR,
DOE received comments from the
interested parties listed in Table II.1.
TABLE II.1—WRITTEN COMMENTS RECEIVED IN RESPONSE TO AUGUST 2021 NOPR
Commenter(s)
Reference in this final rule
Appliance Standards Awareness Project, American Council for an Energy-Efficient Economy, Consumer Federation of America, National Consumer Law
Center (on behalf of its low-income clients), and Natural Resources Defense Council.
Sierra Club and Earthjustice ...............................................................................
Attorneys General of New York, Colorado, Connecticut, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon,
Vermont, Washington, the Commonwealths of Massachusetts And Pennsylvania, the District Of Columbia and the City Of New York.
Connecticut Department of Energy and Environmental Protection ....................
California Investor-Owned Utilities (Pacific Gas and Electric, San Diego Gas
and Electric, and Southern California Edison).
Madison Indoor Air Quality ..................................................................................
North American Association of Food Equipment Manufacturers ........................
Air-Conditioning, Heating, and Refrigeration Institute .........................................
Air-Conditioning, Heating, and Refrigeration Institute, Association of Home Appliance Manufacturers, and National Electrical Manufacturers Association.
Carrier Corporation ..............................................................................................
Bradford White Corporation ................................................................................
Lennox International Inc ......................................................................................
Joint Advocates .......................
Efficiency Organizations.
Sierra Club and Earthjustice ...
Joint Attorneys General ...........
Efficiency Organizations.
State and Local Governments.
DEEP .......................................
CA IOUs ..................................
State.
Utility.
MIAQ .......................................
NAFEM ....................................
AHRI ........................................
Joint Commenters ...................
Manufacturer.
Trade Association.
Trade Association.
Trade Associations.
Carrier ......................................
BWC ........................................
Lennox .....................................
Manufacturer.
Manufacturer.
Manufacturer.
As noted previously, DOE is required
to develop test procedures to measure
the energy efficiency, energy use, or
estimated annual operating cost of each
covered product and covered equipment
during a representative average use
cycle or period of use. (42 U.S.C. 6293;
42 U.S.C. 6314) Manufacturers of
covered products and covered
equipment must use the prescribed DOE
test procedure to certify that their
products and equipment meet the
applicable energy conservation
standards adopted under EPCA, and
also when making any other
representations to the public regarding
the energy use or efficiency of those
products. (42 U.S.C. 6293(c), 6295(s), 42
U.S.C. 6314(d) and 42 U.S.C. 6316(a)) In
accordance with EPCA, manufacturers
are prohibited from distributing a
covered product without first
demonstrating compliance with
applicable standards through the use of
DOE test procedures. (42 U.S.C.
6302(a)(5), 42 U.S.C. 6295(s))
DOE has determined that, upon
weighing the aforementioned policy
considerations differently, certain
provisions implemented by the
December 2020 Final Rule are not
appropriate or necessary. DOE
acknowledges that its interim waiver
process often involves a lengthy period
following submission of interim waiver
and waiver applications and imposes
burdens on manufacturers who are
unable to certify their products or
equipment absent an interim waiver or
waiver from DOE. The December 2020
Final Rule, however, mandates a
process that, by prioritizing the
speeding up of the petition process, may
result in alternate test procedures that
are inconsistent with EPCA’s purpose
and requirements and have adverse
environmental impacts. Further, to
encourage waivers and prevent the
Department’s administrative waiver
process from delaying or deterring the
introduction of novel, innovative
products into the marketplace, the
Department has a long-stated
Enforcement Policy Statement—Pending
Test Procedure Waiver Applications
manufacturers 180 days from issuance of a new or
amended test procedure to begin using that test
procedure for representation of energy efficiency.’’
84 FR 18414, 18416; (See 42 U.S.C. 6293(c)(2)). In
the December 2020 Final Rule, DOE stated that it
was maintaining the 180-day grace period as
proposed. 85 FR 79802, 79813. As such, under 10
CFR 430.27(i) and 431.401(i) as finalized in the
December 2020 Final Rule, were a Decision and
Order issued with an alternate test procedure that
differed from that required under the interim
waiver, beginning 180 days following publication of
the Decision and Order any representations made
by the petitioner must fairly disclose the results of
testing in accordance with the alternate test
procedure specified by the final Order and the
applicable requirements of 10 CFR part 429.
7 The parenthetical reference provides a reference
for information located in the docket of DOE’s
rulemaking to amend the test procedure interim
waiver process. (Docket NO. EERE–2019–BT–NOA–
0011, which is maintained at www.regulations.gov).
The references are arranged as follows: (Commenter
name, comment docket ID number, page of that
document).
A parenthetical reference at the end of
a comment quotation or paraphrase
provides the location of the item in the
public record.7
Other comments pertaining to specific
proposals are discussed in section III.
III. Discussion
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Commenter type
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(‘‘Test Procedure Waiver Enforcement
Policy’’), which provides that DOE will
refrain from an enforcement action
related to a specific basic model while
a waiver request is pending.8
A. Automatic Granting of Interim
Waiver After Prescribed Time Period
Under the interim waiver process
established in the December 2020 Final
Rule, an interim waiver granted by
default after the 45-day period would
lack DOE review and would not benefit
from a determination that the alternate
test procedure meets EPCA
requirements. As demonstrated in the
examples discussed in this section, DOE
often requires longer than 45 business
days to adequately evaluate an alternate
test procedure in order to determine
whether the proposed test procedure
accurately reflect the product’s energy
consumption during an average use
cycle. The default waiver process may
result in test procedures later found to
be inconsistent with EPCA, which
would allow manufacturers to distribute
noncompliant products in commerce,
resulting in additional costs (i.e., cost of
energy use) to consumers and materially
inaccurate information to the
marketplace.
DOE noted in the December 2020
Final Rule that some commenters stated
that the amendments to the interim
waiver process would weaken the
energy conservation standards program
because the automatic granting of
interim waivers without review could
place noncompliant products in the
market and allow them to remain for an
additional 180 days after DOE acts on
the associated petition. 85 FR 79802,
79806. In addition, some commenters
noted that the amendments could
indirectly allow for backsliding of
energy conservation standards, noting
that 42 U.S.C. 6295(o)(1) forbids DOE
from prescribing an energy conservation
standard that decreases the required
energy efficiency of a product. 85 FR
79802, 79813. These commenters argued
that the amendments proposed in the
May 2019 NOPR (and that were
ultimately adopted in the December
2020 Final Rule) would lead to the same
loss of efficiency that EPCA’s antibacksliding provision was intended to
prevent. Id. DOE’s decision under the
December 2020 Final Rule reflected a
policy choice to reject these comments
raising concerns about the risks of noncompliant products in favor of
perceived greater certainty and
8 Department of Energy, Enforcement Policy
Statement—Pending Test Procedure Waiver
Applications (Apr. 5. 2017), available at
www.energy.gov/sites/default/files/2017/04/f34/
Enforcement%20Policy%20-%20waivers.pdf.
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transparency, and a less burdensome
process for manufacturers. In support of
the December 2020 Final Rule, DOE
explained that the changes were in
response to concerns that the current
system for processing interim waiver
petitions was not working as it should,
and in DOE’s view, manufacturers
should not be constrained from selling
their products for significant periods
while DOE reviews the interim waiver
petition. 85 FR 79802, 79807.
Analyses of recent petitions indicate
that, based on the time required to
review appropriately and respond
properly to interim waiver requests, the
number of noncompliant test
procedures granted without sufficient
time to review would be higher than
DOE estimated previously. As noted,
allowing any test procedure that does
not provide an accurate, representative
result runs counter to DOE’s statutory
obligations under EPCA.
One example illustrating DOE’s
concerns is as follows. On June 30,
2021, DOE issued a notice denying the
interim waiver application from General
Electric Appliance (‘‘GEA’’) for certain
miscellaneous refrigeration product
(‘‘MREF’’) basic models. 86 FR 35766.
The original petition for waiver and
interim waiver from the test procedure
for MREFs set forth at appendix A to
subpart B of 10 CFR part 430 was
received on April 9, 2021. (EERE–2021–
BT–WAV–0009, GEA, No. 1 at p. 1) As
discussed in the August 2021 NOPR,
from the time that DOE received GEA’s
original petition, to the time that the
petition was denied, 55 business days
passed. DOE was provided more than
the 45-business day period in this case
because GEA revised and supplemented
its original petition in response to DOE’s
technical questions. However, if DOE
did not have sufficient time to gather
the additional information about GEA’s
MREF basic models and how such
models are applied in the field, an
alternate test procedure could have
erroneously been applied that did not
meet the requirements in EPCA. DOE
needed time to understand more about
the product and the proposed alternate
test procedure, and after several
exchanges, came to understand that the
GEA proposed alternate test procedure
did not include all the energy
consumption to represent an average
use cycle and thus, the test procedure
proposed by GEA was not
representative. See 42 U.S.C. 6293. If the
alternate test procedure proposed by
GEA was automatically granted, the
tested energy use of the basic models
subject to the interim waiver would
have been based on a test procedure that
improperly underestimates the energy
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consumption of the product and would
not have provided accurate information
to the customers about the
representative average use of the
product.
In another example, on October 25,
2016, AHT Cooling Systems GmbH and
AHT Cooling Systems USA, Inc.
(‘‘AHT’’) filed a petition for waiver and
interim waiver from the DOE test
procedure for commercial refrigeration
equipment set forth in 10 CFR part 431,
subpart C, appendix B. (EERE–2017–
BT–WAV–0027, AHT, No. 1 at pp. 1–10)
AHT petitioned for waiver for six model
lines that are capable of multi-mode
operation (i.e., as ice cream freezer and
commercial refrigerator). In the petition,
AHT stated that the DOE test procedure
is not clear regarding how to test multimode equipment. 82 FR 15345, 15349.
To address multi-mode operation, AHT
requested that their equipment be tested
and rated only as ice cream freezers
(with integrated average temperature of
¥15 °F +/¥2.0 °F and use of total
display area to determine associated
energy conservation standards). 82 FR
15345, 15349–15350. As discussed in
the August 2021 NOPR, AHT’s proposed
alternate test procedure would have
rated its multi-mode basic models in a
manner that was unrepresentative
because it would have only accounted
for ice-cream freezer mode operation
and would not have accounted for
operation in the other applicable
equipment categories. 82 FR 15345,
15347. After evaluating AHT’s petition
and alternate test procedure, DOE
partially granted AHT’s interim waiver.
82 FR 15345. DOE required 102
business days for this review. If DOE
had not had sufficient time to evaluate
this test procedure waiver and AHT had
moved forward with its request without
modification, AHT would not have
evaluated the multi-mode operation in a
manner representative of field use in
each applicable equipment category,
which would have resulted in
equipment being distributed in
commerce that may have otherwise been
non-compliant with the energy
conservation standards.
DOE has determined that the
December 2020 Final Rule did not place
sufficient weight on the potential for
alternate test procedures granted
without sufficient DOE review to allow
manufacturers to place products in the
market that do not meet applicable
energy conservation standards. To the
extent that test procedure results are
unrepresentative and do not provide
comparative data, energy savings may
not be realized, and consumers may not
be able to make informed choices. As
discussed previously, DOE has an
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obligation under EPCA to ensure that all
test procedures authorized by the
Department yield measurements of
energy consumption that are
representative of actual product or
equipment performance. (42 U.S.C.
6293) As commenters noted in the
December 2020 Final Rule, a DOE test
procedure that inaccurately measures
energy use of a covered product or
equipment could inadvertently allow for
the backsliding of energy conservation
measures in violation of 42 U.S.C.
9265(o). As seen with the GEA and AHT
petitions, DOE cannot appropriately
determine whether an alternate test
procedure will accurately measure
energy use if there is insufficient time
to understand a product and validate an
alternate test procedure. Accordingly,
DOE proposed removing the provision
that interim waivers will be
automatically granted if DOE fails to
notify the petitioner of the disposition
of the petition within 45 business days
of receipt. DOE also proposed to remove
the language at 10 CFR 430.27(e)(1)(iii)
and 10 CFR 431.401(e)(1)(iii) specifying
when a petition is considered
‘‘received’’ by DOE. These provisions
were added for purposes of determining
the start of the 45-business day window
and serve no purpose upon removing
the provision to automatically grant an
interim waiver within a specified time
period.
DOE requested comments,
information, and data on its proposal to
remove the provision that interim
waivers will be automatically granted if
DOE fails to respond to the request
within 45 business days of receipt of the
petition.
DOE received comments expressing
support for DOE’s proposal to remove
the provision that interim waivers will
be automatically granted if DOE fails to
respond to the request within 45
business days of receipt of the petition.
(DEEP, No. 59 at p. 1; Lennox, No 60 at
p. 1–3; Joint Attorneys General, No. 63
at pp. 1–2; CA IOUs, No. 64 at p. 1; Joint
Advocates, No. 65 at p. 1; Carrier, No.
66 at p. 1; Sierra Club and Earthjustice,
No. 67 at p. 1) Sierra Club and
Earthjustice stated that the changes DOE
adopted to the test procedure waiver
process in December 2020 are unlawful,
and stated that in proposing to discard
this provision, DOE will close a
loophole for manufacturers to offer
noncompliant products that increase air
pollutant emissions and impose higher
energy costs on end-users. (Sierra Club
and Earthjustice, No. 67 at p. 1) Joint
Advocates noted a similar elimination
of a pathway for noncompliant products
to be brought into the market. (Joint
Advocates, No. 65 at p. 1) Similarly,
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Carrier stated that DOE rightly
identified the risk that the default
waiver process may result in
manufacturers distributing products in
commerce that result in additional costs
to consumers, and that automatically
granting petitions increases the risk that
a level marketplace is not maintained
for all competitors. (Carrier, No. 66 at p.
1) Lennox agreed that a ‘‘granted by
default’’ approach would weaken the
energy conservation standards program
by placing noncompliant products on
the market. (Lennox, No. 60 at p. 2) The
Joint Attorneys General stated that the
proposal to eliminate automatic waivers
would restore a process that affords
DOE the necessary time and discretion
to properly review waiver requests to
ensure that alternate test procedures
meet EPCA requirements. (Joint
Attorneys General, No. 63 at p. 2)
Several interested parties expressed
qualified support and/or alternatives for
DOE’s proposal to remove the provision
that interim waivers will be
automatically granted if DOE fails to
respond to the request within 45business days of receipt of the petition.
MIAQ stated that a passive grant of an
interim test procedure waiver assures
timeliness but does not protect against
potential for gamesmanship or ensure
transparency, and that DOE should
undertake an affirmative completeness
assessment prior to granting an interim
waiver. (MIAQ, No. 61 at p. 1) For most
petitions for interim waivers, the Joint
Commenters and AHRI expressed
support to remove the requirement that
an interim waiver is automatically
granted after 45 days. (Joint
Commenters, No. 69 at pp. 3–4; AHRI,
No. 70 at p. 2) AHRI stated that while
interim test procedures are temporary
and the impact of harm would be
limited, a fraudulently gained interim
test procedure waiver could result in
unfair market impacts. (AHRI, No. 70 at
p. 2) AHRI advocated for affirmative
intervention by DOE before an interim
waiver is granted. (Id.) The Joint
Commenters stated that they recognize
DOE and manufacturers’ interest in
ensuring interim waivers are fair and
accurate and a good predictor of the
ultimate final test procedure waiver.
(Joint Commenters, No. 69 at pp. 3–4)
However, the Joint Commenters and
AHRI stated that the current
requirement—that the petition is
deemed granted if DOE does not
respond within 45 days of receipt of a
complete notification—should continue
to apply in two cases, specifically: (1)
Waivers in which a petitioner seeks an
interim waiver and waiver identical to
one already granted to another company
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70949
for models with similar technology (i.e.,
‘‘same-technology waiver petitions’’);
and (2) waiver petitions that seek to
extend alternate test methods granted in
existing interim or final waivers to
additional models (i.e., ‘‘waiver
extension petitions’’). (Joint
Commenters, No. 69 at pp. 3–4, AHRI,
No. 70 at p. 2) AHRI stated that in these
cases, DOE has already done the
resource- and time-intensive work of
reviewing the alternate method of test,
and in this case need only decide that
the petition includes models that should
be tested in the same way. (AHRI, No.
70 at p. 2) The Joint Commenters stated
that these waivers do not require the
same level of review, should be
prioritized, and when combined with
the proposal to make clear the criteria
for the petition to extend a waiver to
additional basic models, should reduce
the back-and-forth needed. (Joint
Commenters, No. 69 at p. 4)
Similarly, Carrier stated that in cases
when the petitioner provides sufficient
data to demonstrate that a request is the
same as, or an extension of, a previously
granted waiver petition, DOE should
make a determination within 45 days.
(Carrier, No. 66 at p. 2) Lennox stated
that it does not oppose the ‘‘granted by
default’’ approach staying in place when
it involves a manufacturer simply
adding additional models to an existing
waiver or another manufacturer seeking
the same relief that is already granted to
a different company; however, Lennox
noted that in these cases, DOE should
affirmatively determine that the
applications are administratively
complete, publish receipt of application
for such waivers on its website, and also
publish notice of these waivers being
granted both on its website and in the
Federal Register. (Lennox, No. 60 at p.
7)
DOE received a comment objecting to
its proposal from NAFEM. NAFEM
stated that DOE should precisely define
the information needed in a petition,
but that as soon as a company submits
a ‘‘complete petition,’’ DOE should
make decisions within the existing 45day process set forth in the December
2020 final rule. In addition, NAFEM
recognized that there are times when a
manufacturer submits a completely new
and different waiver petition and DOE
must initiate its review from scratch. In
such cases, NAFEM stated that it would
support, as a compromise alternative,
DOE being allowed to request an
additional 45 days (for a total of 90
days) for its review and response on
new waiver petitions. (NAFEM, No. 62
at p. 3)
BWC noted that DOE is reversing
course based on ‘‘increased risk to
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consumers of purchasing noncompliant
products and decreased energy savings’’
and requested that DOE expand on what
data supports that the delayed energy
savings from utilizing a test procedure
waiver would be less than from
potential noncompliant products on the
market. (BWC, No. 68 at p. 1)
DOE has considered the suggestions
by multiple commenters to maintain the
automatic granting of interim waivers
after 45 days for same-technology
waiver petitions or waiver extension
petitions. Contrary to assertions by
commenters, DOE applies the same
level of rigor and scrutiny during its
review of same-technology waiver
petitions and waiver extension petitions
as it does for the initial interim waiver
petitions. DOE reviews the details of
each same-technology waiver petition to
ensure that the alternate test procedure
specified in the initial interim waiver
would yield results that accurately
reflect the product’s energy
consumption during an average use
cycle so as to provide materially
accurate comparative data. Despite
employing the same or similar
technology as a previously granted
waiver, each manufacturer that petitions
for a same-technology waiver may have
unique product designs that require a
similar timeframe for evaluation by DOE
as the basic model subject to the original
waiver, which as described, may require
more than 45 business days. Similarly
for waiver extension petitions, DOE
must be afforded sufficient opportunity
to review a waiver extension request to
confirm not only that the additional
basic models employ the same
technology as the basic model set forth
in the original petition, but that the
alternate test procedure specified for the
original basic model would evaluate the
performance of the additional basic
models in a manner representative of
the energy and/or water consumption
characteristics of the additional basic
models.
The comment from BWC refers to
DOE’s statement in the August 2021
NOPR that DOE had tentatively
determined that the changes under the
December 2020 Final Rule may not
allow DOE sufficient time to review an
alternate test procedure, leading to
increased risks to consumers of
purchasing noncompliant products and
decreased energy savings. 86 FR 46793,
46795. By this, DOE meant that the
current process—in which an interim
waiver will be automatically granted if
DOE fails to respond to the request
within 45 business days of receipt of the
petition—increases the risk (with
respect to the previous interim waiver
process prior to the December 2020
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Final Rule) that a manufacturer could
place a product into the market for
which the results of the suggested test
procedure are not representative and
therefore not appropriate for
determining compliance with the
applicable energy conservation
standard. This risks the product not
being complaint with the applicable
standard when tested according to a test
procedure that is not representative of
average energy use. Placing a noncompliant product into the market
would result in increased energy use
(i.e., decreased energy savings) by
consumers.
DOE agrees with other commenters
that any interim waiver granted should
be the result of an affirmative
determination by DOE. DOE has an
obligation under EPCA to ensure that all
test procedures authorized by the
Department yield measurements of
energy consumption that are
representative of actual product or
equipment performance. (42 U.S.C.
6293) A DOE test procedure that
inaccurately measures energy use of a
covered product or equipment could
place noncompliant products in the
market and/or inadvertently allow for
the backsliding of energy conservation
measures in violation of 42 U.S.C.
9265(o).
DOE also considered the suggestion
that DOE be allowed to request an
additional 45 days (for a total of 90
days) for its review and response on
new waiver petitions. Despite the longer
suggested timeframe for review, this
approach would maintain the
possibility of an interim waiver being
automatically granted after 90 days,
presenting the same risks to consumers
as the current process, as described
above.
Therefore, for the reasons discussed,
DOE is removing the provision that
interim waivers will be automatically
granted if DOE fails to respond to the
request within 45 business days of
receipt of the petition.
B. Timeframe for Review of Interim
Waivers
Separately from DOE’s consideration
of and determination not to
automatically grant an interim waiver if
DOE fails to respond to the request
within 45 business days of receipt of the
petition, DOE reconsidered whether a
45-business-day review timeframe
provides sufficient time for DOE to
properly evaluate a proposed alternate
test procedure. As discussed in the
December 2020 Final Rule, DOE’s
analysis of the processing time of 33
interim waivers between 2016 and 2018
showed review periods between the
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receipt of the waiver application and
issuance of an interim waiver
significantly longer than 45 business
days. 85 FR 79802, 79812–79813. Of
those 33 interim waiver requests, only
four were granted within 45 business
days of receipt. Id. On average, interim
waiver requests received in 2016 took
162 days to resolve, those received in
2017 took 202 days, and those received
in 2018 took 208 days. Id. DOE noted in
the December 2020 Final Rule that this
data illustrated that there was a need to
issue decisions on interim waiver
requests in a more timely manner. 85 FR
79802, 79813.
After further consideration, DOE
acknowledges that there is a need for
improvement in its process to more
timely address interim waivers, but DOE
has determined that the 45-business day
timeframe implemented by the
December 2020 Final Rule is often too
brief and rigid. An inflexible rule can
fail to take relevant circumstances into
account. As seen with the GEA and
AHT petitions, a longer timeframe is
often needed for DOE to understand the
product, the proposed alternate test
procedure, and whether that alternate
test procedure will accurately reflect the
product’s energy consumption during
an average use cycle. Many delays in
processing waiver and interim waiver
petitions arise from iterative efforts by
DOE to obtain sufficient information
upon which to base a decision to grant
an interim waiver. Determining that an
alternate test procedure complies with
EPCA also requires careful analysis and
sometimes requires testing by DOE. DOE
stated in the December 2020 Final Rule
that a downside of this iterative process
is the inability of interested
stakeholders to participate in the
development of an interim test
procedure. 85 FR 79802, 79809. The
amendments adopted in this final rule
maintain transparency provided through
posting of a complete petition within
five days of its receipt and afford the
development, as necessary, of the
alternate test procedure on which
stakeholders will have the opportunity
to comment. Further, the regulations
continue to require notification of a
requested alternated test procedure to
affected manufacturers and opportunity
for comment. 10 CFR 430.24(b)(iv) and
10 CFR 431.401(b)(iv). DOE has a
statutory obligation under EPCA to
ensure that alternative test methods
authorized by the Department yield
measurements of energy consumption
that are representative of actual
performance. Providing a longer,
flexible timeframe that better reflects
DOE’s experience will allow DOE to
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complete the analysis required, while
providing a realistic timeframe on
which manufacturers can more
reasonably rely.
Accordingly, DOE proposed in the
August 2021 NOPR that DOE will make
best efforts to respond to interim waiver
requests within 90 business days. Based
on DOE’s experience, a period of 90
business days would still represent an
improvement in response time, and in
most cases would allow DOE sufficient
time for proper analysis, review, and
testing. Importantly, this longer
timeframe would ensure that DOE can
fulfill its obligation under EPCA to
ensure that alternative test methods
yield results that are representative of
the product’s true energy (or water)
consumption characteristics so as to
provide materially accurate comparative
data, while still accounting for
circumstances that dictate a lengthier
period than the current 45-day
requirement for consideration of a
particular request.
DOE requested comments,
information, and data on its proposal
that DOE will make best efforts to
respond to an interim waiver request
within 90 business days.
DOE received comments expressing
support for its proposal that DOE will
make best efforts to respond to an
interim waiver request within 90
business days from the Joint Attorneys
General, DEEP, CA IOUs, and Joint
Advocates. (Joint Attorney Generals, No.
63 at pp. 1–2,; DEEP, No. 59 at p. 1–2;
CA IOUs, No. 64 at p. 1; Joint
Advocates, No. 65 at p. 1) The Joint
Advocates stated that DOE has proposed
a balanced approach that recognizes the
complexity of many waiver applications
and the time that can be required for
review, yet still provides applicants a
prompt response. (Joint Advocates, No.
65 at p. 1) The CA IOUs stated that the
proposal strikes the proper balance
between making the interim waiver
process quicker and more predictable,
and ensuring DOE compliance with
EPCA. (CA IOUs, No. 64 at p. 1) DEEP
stated that this proposal should give
DOE a more realistic amount of time to
thoroughly review the request and to
meet its obligations under EPCA. (DEEP,
No. 59 at p. 2) The Joint Attorneys
General stated that these changes are
critically important to balance DOE’s
statutory obligations under EPCA and
manufacturers’ desire for timely review
of their waiver applications; allowing
DOE to obtain sufficient information
from manufacturers, understand the
product, validate the alternate test
procedure, and complete the analysis
required. (Joint Attorneys General, No.
63 at p. 2)
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Carrier expressed qualified support of
the proposal that DOE will make best
efforts to respond to an interim waiver
request within 90 business days,
suggesting that DOE consider modifying
the proposal to make an exception for
certain cases noted previously, in which
45 days should be required. (Carrier, No.
66 at p. 2)
DOE received comments opposing
DOE’s proposal that it make its best
efforts to respond within 90 days from
the Joint Commenters, BWC, MIAQ,
AHRI, Lennox, and NAFEM. (Joint
Commenters, No. 69 at p. 3; BWC, No.
68 at p. 1; MIAQ, No. 61 at p. 2; AHRI;
No. 70 at p. 2; Lennox, No. 60 at p. 4;
NAFEM; No. 62 at p. 3) As stated
previously, NAFEM supported the
requirement to make a decision in 45
days or in certain circumstances a
maximum of 90 days. (NAFEM, No. 62
at p. 3) BWC stated that, in
acknowledgment that not all waiver
requests are equal nor are submitted
correctly the first time, it would prefer
that DOE designate a longer, guaranteed
time to respond to the waiver request
versus a shorter, uncertain time, and
that the timeline should be measured
from when the test procedure was
received. BWC did not identify a
specific alternative timeline. (BWC, No.
68 at p. 1) The Joint Commenters
asserted that it was unlikely that the 90day timeline would be met by DOE and
that there would be no incentive
pushing DOE to meet that goal. Instead,
the Joint Commenters proposed that
DOE be required to complete review of
the petition for interim and final waiver
within 120 days. The Joint Commenters
noted that this is longer than the 90
days that DOE proposed and would help
to ensure that the stricter timeline can
be met even under exigent
circumstances. The Joint Commenters
further asserted that a strict timeline is
necessary to balance the sometimes
competing needs for thoroughly vetted
alternate procedures that are approved
and finalized relatively quickly. (Joint
Commenters, No. 69 at pp. 1–3)
Similarly, MIAQ and Lennox stated
that DOE should be required to make a
decision within a defined deadline.
(MIAQ, No. 61 at p. 2; Lennox, No. 60
at p. 4) Lennox stated that DOE should
have to respond within 90 to 120 days,
measured from when DOE receives a
complete petition (Lennox, No. 60 at p.
3). Lennox stated that DOE must
promulgate an orderly, predictable,
reasonably expeditious process for
processing interim test procedure
waivers, while also providing for
transparency and stakeholder comment
before issuing an interim waiver.
Toward that end, Lennox said that DOE
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70951
should (1) post to its public website an
interim waiver petition immediately
upon receipt (consistent with current
regulations), and not wait to make such
a posting until DOE deems those
materials administratively ‘‘complete;’’
(2) within 30 days of receipt of a
petition, if the request includes a
technically feasible test procedure and
appears administratively complete, DOE
should make a preliminary finding in
that regard and post a subsequent
update to the website when DOE deems
the petition complete and submit the
petition and supporting documentation
to the Federal Register for expedited
publication for a 30 day public
comment period; or if the request is not
yet complete, notify the petitioner
within that 30 day period; and (3) if
stakeholders do not identify any
problems during the comment period,
DOE should render a decision within 30
days after the comment period close, or
if problems are identified, DOE should
either: (a) Afford itself an additional 30
days for review; or (b) deny or grant the
waiver, potentially with modifications.
(Lennox, No. 60 at pp. 4–6) Lennox also
opposed removal of the language
specifying when a petition is considered
‘‘received’’ by DOE, stating that some
regulatory indication of this is
appropriate for triggering obligations
and timelines. (Lennox, No. 60 at p. 4)
Lennox recommended that DOE seek
comment before granting an interim
waiver. (Lennox, No. 60 at p. 7)
MIAQ stated that DOE should be
permitted no more than 120 days to
process the interim waiver from the
time that it is filed. This would include
30 days to review for completeness and
publish in the Federal Register and on
DOE’s website, a 30-day comment
period, a 30-day period for DOE to
review comments and determine
whether to grant or deny the waiver,
and an additional 30-day optional
review period. (MIAQ, No. 61 at p. 2)
AHRI similarly stated that DOE
should be permitted no more than 120
days to process an interim waiver
application from the time that it is filed.
AHRI stated that DOE should afford
stakeholders a thirty-day comment
period after a proposal is published. It
stated that: (1) If stakeholders and DOE
do not identify any problems, DOE
should be obligated to issue the interim
waiver thirty days after the comment
period closes; and (2) if DOE or other
commenters note problems with the
waiver application, DOE can elect to
either afford itself an additional thirty
days for investigation and review, or
deny or grant the waiver, potentially
with modifications. (AHRI, No. 70 at p.
2)
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DOE has considered the suggestions
by some commenters to implement a
timeline that is longer than proposed
90-day target (e.g., 120 days), but that
would be mandatory. Although it is
likely that 120 days would be sufficient
for the vast majority of waiver and
interim waiver petitions, any mandatory
timeline that would result in the
automatic granting of an interim waiver
would introduce the previously
described risks of an alternate test
procedure being used that produces
results that are unrepresentative, does
not provide accurate comparative
results, and/or allows a manufacturer to
place a product in the market that does
not meet applicable energy conservation
standards.
Regarding the appropriateness of the
proposed 90-day target, DOE’s
evaluation of waiver and interim waiver
petitions since the December 2020 Final
Rule indicates that a 90-day period of
evaluation is achievable in most cases.
Those cases that required longer than 90
days since the submission of the initial
petition have been cases where DOE
determined that initial petition to be
invalid, or where additional time has
been required for DOE to actively
engage with the manufacturer to provide
additional technical information
necessary for DOE to evaluate the merits
of the petition.
DOE also surmises that maintaining a
mandatory timeline may increase the
likelihood of an interim waiver denial
in the event that there is insufficient
time for DOE to resolve outstanding
questions regarding the petition;
whereas, affording a longer time period
within which to actively engage the
manufacturer could result in a petition
being granted that would have
otherwise been denied under a
mandatory timeline scenario.
Regarding the timing of when DOE
posts a waiver or interim waiver
application to its website, DOE
disagrees with commenters that
suggested that DOE post an interim
waiver petition on its public website
immediately upon receipt, rather than
waiting until DOE deems the petition to
be complete. Most notably, DOE has
received multiple interim waiver
petitions containing requests for
confidential treatment of information 9
9 Pursuant to 10 CFR 430.27(b)(1)(iv) and 10 CFR
431.401(b)(1)(iv), 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
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without a corresponding copy from
which the information claimed to be
confidential has been properly deleted
consistent with the request.10 In such
cases, DOE engages with the
manufacturer to resubmit the petition
with the information for which
confidential treatment is requested
properly redacted before posting to
DOE’s website. This is one of several
‘‘checks’’ that DOE performs on every
waiver and interim waiver petition to
determine whether an application is
complete. Were DOE to be required to
post a waiver or interim waiver petition
to its website before determining that
the petition is complete, CBI could be
disclosed inadvertently, among other
risks.
Once complete, a petition is posted to
DOE’s website providing interested
parties notification that DOE is
evaluating a request for an interim
waiver along with the substance of that
petition. The regulations continue to
require petitioners to notify potentially
interested manufacturers. 10 CFR
430.27(c)(1) and 10 CFR 431.401(c)(1).
DOE notes that neither the process
established under the December 2020
Final Rule, nor the process adopted in
this final rule provide for a formal
comment process for petitions posted to
DOE’s website. The amendments
adopted today continue to provide for
publication in the Federal Register
notification of receipt of a petition and
grant or denial of an interim waiver. Id.
DOE considered the potential benefits
and risks of allowing the opportunity for
public comment before granting a
decision on an interim waiver petition.
However, introducing a comment period
before rendering a decision on an
interim waiver petition would prolong
the review process, outweighing the
benefit of early stakeholder input. As
discussed, the current process affords
interested parties the ability to comment
on the alternate test procedure granted
in an interim waiver before DOE makes
a determination whether to grant a
waiver.
After carefully considering the
comments received on this topic, DOE
has decided to implement a 90-day
target for reviewing interim waiver
petitions, which would not be
mandatory, and which would provide a
more realistic and appropriate timeline
for evaluating interim waiver petitions
than the current mandatory 45-day
1004.11 and will solicit comments, data, and
information with respect to the determination of the
petition.
10 For example, in one such case, the redacted
information could be discerned by copying and
‘‘pasting’’ the blacked-out text from the PDF
document into a new document.
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period. As discussed, DOE’s recent
experience indicates that a 90-day
timeline should be sufficient for the vast
majority of interim waiver petitions; and
the flexibility to extend beyond 90 days
as needed will afford additional time for
those petitions for which a longer
timeframe is necessary. This final rule
implements the 90-day target as
proposed in the August 2021 NOPR.
C. Clarification of Necessary Contents of
Interim Waiver
To clarify the necessary contents of a
petition for interim waiver, DOE
proposed amendments to 10 CFR
430.27(b) and 10 CFR 431.401(b), which
specify the requirements for petition
content and publication. As noted
previously, many of the delays in
interim waiver processing arise from the
back-and-forth between DOE and
manufacturers to ensure that the
manufacturer has submitted the
necessary information to support its
request. Before DOE can act on a request
for interim waiver, DOE may correspond
with a manufacturer several times to
obtain all necessary information and
ensure that the manufacturer has
submitted a complete petition. In
addition, to formalize the process by
which DOE will respond to incomplete
petitions, DOE proposed to specify at 10
CFR 430.27(e)(2) and 10 CFR
431.401(e)(2) that a petition for interim
waiver will be considered incomplete if
it does not meet the content
requirements of 10 CFR 430.27(b) or 10
CFR 431.401(b), as applicable. In such a
case, DOE would notify the petitioner of
an incomplete petition via email. DOE
would continue the iterative process by
which DOE assists manufacturers in
completing their petitions. Consistent
with these proposals, DOE also
proposed to state at 10 CFR 430.27(e)(1)
and 10 CFR 431.401(e)(1) that DOE will
post a petition for interim waiver on its
website within five business days of
receipt of a complete petition.
DOE similarly proposed amendments
to 10 CFR 430.27(g) and 10 CFR
431.401(g) to specify the information
that must be provided in a request to
extend a waiver to additional basic
models. Specifically, DOE proposed that
the petition for extension must identify
the particular basic model(s) for which
a waiver extension is requested, each
brand name under which the identified
basic model(s) will be distributed in
commerce, and documentation
supporting the claim that the additional
basic models employ the same
technology as the basic model(s) set
forth in the original petition. Including
these requirements in the regulations
would make clear to manufacturers the
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information required for an extension
request and allow DOE to process such
requests more expeditiously.
DOE requested comments on its
proposals to specify the contents of a
complete petition for interim waiver, to
formalize the process by which DOE
will respond to incomplete petitions,
and to specify the information that must
be provided in a request to extend a
waiver to additional basic models.
DOE received comments expressing
support for these proposals from
multiple interested parties. The Joint
Advocates stated that DOE has made
clear in the proposed rule what
constitutes a complete application.
(Joint Advocates, No. 65 at p. 1–2) The
CA IOUs stated that they appreciate
DOE’s efforts to clarify its data needs for
waiver evaluation and anticipate that
this will limit confusion and
unnecessary delays so that DOE can
more easily strive towards the new
proposed evaluation period. (CA IOUs,
No. 64 at p. 1) DEEP stated that these
proposed amendments will help
increase clarity and transparency on the
requirements for a complete interim
waiver request and that these changes
will benefit both the manufacturer(s)
submitting the request and competitors
subject to the same test procedure. DEEP
also supported allowing iterative
communication and assistance between
DOE and a petitioner. (DEEP, No. 59 at
p. 2)
The Joint Commenters, Carrier, and
Lennox supported DOE’s proposals to
establish criteria for determining when
an interim test procedure waiver
application is complete. (Joint
Commenters, No. 69 at p. 4; Carrier, No.
66 at p. 2; Lennox, No. 60 at p. 3) The
Joint Commenters supported DOE
reviewing each application to ensure
completeness. (Joint Commenters, No.
69 at p. 4) Lennox added that the
regulations should affirmatively require
that an interim waiver application
include an appropriate alternate test
method before being deemed
administratively complete. (Lennox, No.
60 at p. 3)
NAFEM stated that to maintain the
45-day review, NAFEM could support
better guidance and clarity regarding
what constitutes a ‘‘complete petition’’
to ensure that DOE received all of the
necessary information for its decisionmaking process upfront. (NAFEM, No.
62 at p. 3)
The Joint Commenters and MIAQ
supported a clearly articulated process
by which DOE will respond to
incomplete petitions. (Joint
Commenters, No. 69 at p. 4; MIAQ, No.
61 at p. 2) BWC supported DOE’s
proposal to conduct communication
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with a manufacturer to clarify a waiver
request via email versus formal letters.
(BWC, No. 68 at p. 1)
DOE also received comments
requesting additions to the proposal.
BWC recommended that DOE provide a
template or example of what
information would ensure a proper
submittal instead of just including it as
text in the Code of Federal Regulations.
(BWC, No. 68 at p. 1) The Joint
Commenters and Carrier requested that
DOE include a requirement that DOE
respond to the petitioner within 10
business days regarding the
completeness of their petition. (Carrier,
No. 66 at p. 2; Joint Commenters, No. 69
at p. 4) Carrier requested that DOE
consider including language to clearly
articulate the iterative process by which
DOE will assist manufacturers in
completing their petitions. (Carrier, No.
66 at p. 2)
The Joint Commenters, Carrier, and
MIAQ supported DOE’s proposal to
state at 10 CFR 430.27(e)(1) and 10 CFR
431.401(e)(1) that DOE will post a
petition for interim waiver on its
website within five business days of
receipt of a complete petition. (Carrier,
No. 66 at p. 2, Joint Commenters, No. 69
at p. 4; MIAQ, No. 61 at p. 2) Joint
Advocates also supported this proposal,
stating that posting complete
applications in 5 days will improve
transparency, providing notice to
competitors and others that an
application is under consideration.
(Joint Advocates, No. 65 at p. 1–2) The
Joint Commenters and MIAQ suggested
DOE promote transparency by sending
an email to the appropriate mailing lists
to announce posting of a complete
waiver petition. (Joint Commenter, No.
69 at p. 4; MIAQ, No. 61 at p.2)
Joint Commenters, Carrier, and MIAQ
supported DOE’s proposed amendments
to 10 CFR 430.27(g) and 10 CFR
431.401(g) to specify the information
that must be provided in a request to
extend a waiver to additional basic
models. (Carrier, No. 66 at p. 2; Joint
Commenters, No. 69 at p. 4; MIAQ, No.
61 at p.2) NAFEM stated that there must
be a clear and precise mechanism for
extending waivers to additional basic
models, noting that waivers must allow
for manufacturers that are continuing to
improve the products subject to the
waiver, which then become similar but
not identical products that should also
be covered by the waiver. (NAFEM, No.
62 at p. 3)
DOE appreciates the suggestion by
BWC regarding the usefulness of a
template that would clearly outline the
information required to ensure a
complete waiver or interim waiver
petition, which manufacturers could
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70953
reference when drafting a petition. DOE
will consider developing such a
template or an example submission that
could be made available on the
Department’s waiver website 11
following the effective date of this final
rule.
Regarding the suggestion to require
that DOE respond to the petitioner
within 10 business days regarding
completeness of petition—as a regular
course of action, DOE typically notifies
a manufacturer regarding the
completeness of a petition within 5
business days of submission (as part of
its obligation to satisfy the current
requirements at 10 CFR 430.27(e)(1)(i)
and 431.401(e)(1)(i) to post a petition for
an interim waiver on its website within
5 business days of receipt). DOE
believes that its current practice in this
regard is working well and that an
additional regulatory requirement
regarding notification of completeness is
not needed at this time.
Regarding the suggestion for DOE to
clearly articulate in the waiver
regulations the iterative process by
which DOE will assist manufacturers in
completing their petitions—in DOE’s
experience, in cases where DOE has
determined that a submitted petition is
incomplete, DOE notifies the
manufacturer within 5 business days
and explains how the petition is
incomplete. The manufacturer then
makes the required corrections and
resubmits the petition. DOE reviews the
revised petition and communicates any
deficiencies to the manufacturer via
email, as necessary, or proceeds with
processing the petition if the revised
petition meets the content requirements
of 10 CFR 430.27(b) or 10 CFR
431.401(b). DOE believes that specifying
the content requirements of a complete
petition for interim waiver and the
method by which DOE will
communicate with manufacturers is
sufficiently detailed and that an
additional regulatory requirement
regarding the process by which DOE
assists manufacturers in submitting a
complete petition is not needed at this
time.
Regarding the suggestion by multiple
commenters that DOE send an email to
the appropriate mailing lists to
announce posting of a complete waiver
petition—DOE appreciates the
suggestion and will consider
incorporating this approach into its
general practices moving forward. DOE
notes that it already uses this
communication approach for most
11 DOE’s waiver website is available at
www.energy.gov/eere/buildings/current-testprocedure-waivers.
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regulatory actions such as issuance of a
test procedure rulemaking notice. DOE
further notes that 10 CFR 430.27(c)(1)
and 10 CFR 431.401(c)(1) require each
petitioner for interim waiver, 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 or equipment class (as
specified in 10 CFR 430.32 or the
relevant subpart of 10 CFR part 431) and
of other product or equipment classes
known to the petitioner to use the
technology or have the characteristic at
issue in the waiver.12 The notification
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 notification
must also include a statement that DOE
will receive and consider timely written
comments on the petition for waiver.
In this final rule, DOE finalizes the
amendments as proposed in the August
2021 NOPR to specify the contents of a
complete petition for interim waiver, to
formalize the process by which DOE
will respond to incomplete petitions,
and to specify the information that must
be provided in a request to extend a
waiver to additional basic models.
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D. Duration of Applicability of Interim
Waivers and Waivers
DOE proposed amendments to 10 CFR
430.27(h) and 10 CFR 431.401(h), which
specify the duration of applicability of
interim waivers and waivers. The
current regulations provide that upon
publication in the Federal Register of a
new or amended test procedure that
addresses the issue(s) presented in a
waiver, an interim waiver will cease to
be in effect. 10 CFR 430.27(h)(1)(ii) and
10 CFR 431.401(h)(1)(ii). Under this
provision, a manufacturer can no longer
rely on an interim waiver upon the
publication date of a new or amended
test procedure. In contrast, final waivers
automatically terminate on the date on
which use of such test procedure is
12 Similarly, 10 CFR 430.27(c)(2) and 10 CFR
431.401(c)(2) require that 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, must, within five
working days of such publication, notify in writing
all known manufacturers of domestically marketed
units of the same product or equipment class (as
listed in 10 CFR 430.32 or the relevant subpart of
10 CFR part 431) and of other product or equipment
classes known to the petitioner to use the
technology or have the characteristic at issue in the
waiver. The notification must include a statement
that DOE has published the petition in the Federal
Register and the date the petition for waiver was
published.
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required to demonstrate compliance
(i.e., a certain amount of time after the
date of publication in the Federal
Register). To ensure equitable treatment
of final waivers and interim waivers that
are in place at the time a test procedure
final rule publishes, DOE proposed to
specify that final waivers and interim
waivers both automatically terminate on
the compliance date of the amended test
procedure that addresses the issues
presented in a waiver or interim waiver.
DOE requested comments on its
proposal to specify that interim waivers
in place at the time a test procedure
final rule is published will
automatically terminate on the
compliance date of the amended test
procedure.
Joint Commenters, Carrier, and MIAQ
supported DOE’s proposal to specify
that final waivers and interim waivers
both automatically terminate on the
compliance date of the amended test
procedure, stating that this would
ensure equitable treatment of
manufacturers complying under both
final waivers and interim waivers.
(Carrier, No. 66 at p. 3; MIAQ, No. 61
at p. 3; Joint Commenters, No. 69 at p.
4) BWC supported waivers and interim
waivers terminating when the new or
revised test procedure becomes
effective, rather than when it is
published. (BWC, No. 68 at p. 2)
NAFEM stated that a blanket rule on
terminating interim waivers is improper
and that only waivers that were clearly
addressed by the new test procedure can
be terminated, but that others not
addressed should be allowed to stand,
as appropriate. (NAFEM, No. 62 at p. 4)
Lennox noted that the proposed
regulatory text for the commercial
provisions at 10 CFR 431.401(h)(2) is
missing the word ‘‘terminate.’’ (Lennox,
No. 60 at p. 8)
The proposed provisions specified
that when DOE amends the test
procedure to address the issues
presented in a waiver [emphasis added],
the waiver or interim waiver would
automatically terminate on the
compliance date of the amended test
procedure. Were DOE to publish an
amended test procedure that did not
address the issues presented in a
particular waiver or interim waiver (e.g.,
an amended test procedure was
necessary to make limited and specific
corrections, or the timing of a test
procedure final rule did not afford full
consideration of a granted waiver or
interim waiver), such waiver or interim
waiver would continue to apply until
such time as DOE amends the test
procedure to address the issues
presented in such waiver or interim
waiver.
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This final rule finalizes the
amendments as proposed in the August
2021 NOPR to specify that when DOE
amends a test procedure to address the
issues presented in a waiver, the waiver
or interim waiver will automatically
terminate on the compliance date of the
amended test procedure. This final rule
also adds the word ‘‘terminate’’ at 10
CFR 431.401(h)(2), which was missing
in the proposed regulatory text of the
August 2021 NOPR. In addition, DOE is
also adopting language at 10 CFR
430.27(h)(4) and 10 CFR 431.401(h)(4)
to specify when an existing waiver
terminates following the issuance of a
modified waiver.
E. Transition Period for Compliance
With Decision and Order or Amended
Test Procedure
DOE proposed amendments to 10 CFR
430.27(i) and 10 CFR 431.401(i)
(Compliance Certification) to clearly
state the transition period for
compliance with a decision and order or
test procedure final rule. These
amendments are necessary to make clear
the transition periods for scenarios not
previously addressed by these
provisions. As proposed, these
provisions would apply to required
certifications and any representations.
DOE proposed to specify at 10 CFR
430.27(i)(1) 13 and 10 CFR 431.401(i)(1)
that manufacturers have 180 days (or up
to 360 days, as applicable for
commercial equipment and as specified
by DOE in the final decision and order)
to comply with a decision and order or
test procedure methodology, unless
otherwise specified by DOE in the
decision and order. DOE also proposed
to specify at 10 CFR 430.27(i)(1) and 10
CFR 431.401(i)(1) that once a
manufacturer uses the decision and
order test procedure methodology in a
certification report or any
representation, all subsequent
certification reports and any
representations would be required to be
made using the decision and order test
procedure methodology while the
waiver is valid.14
In addition, DOE proposed similar
amendments to clarify when
certification reports and any
representations are required to be based
on a new or amended test procedure.
Specifically, DOE proposed that 10 CFR
13 In the August 2021 NOPR, these proposed
amendments were inadvertently included in the
proposed regulatory text at 10 CFR 430.27(i) rather
than at 10 CFR 430.27(i)(1) as indicated by the
preamble discussion.
14 This aspect of the proposal was included in the
proposed regulatory amendments at 10 CFR
431.401(i)(1) but was inadvertently omitted from
the proposed amendments to 10 CFR 430.27(i)(1).
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430.27(i)(2) 15 and 10 CFR 431.401(i)(2)
would provide that when DOE
publishes a new or amended test
procedure, certification reports and any
representations may be based on the
testing methodology of an applicable
final waiver or interim waiver, or the
new or amended test procedure until
the compliance date of such test
procedure. Thereafter, certification
reports and any representations must be
based on the test procedure final rule
methodology unless specified by DOE in
the test procedure final rule. Consistent
with this provision, as necessary, DOE
would be able to specify in a test
procedure final rule that a manufacturer
need not recertify basic models where
testing under the interim waiver or final
waiver test procedure methodology, as
compared to the amended test
procedure methodology, does not result
in a change in measured energy use.
DOE also proposed to specify that once
a manufacturer uses the test procedure
final rule methodology in a certification
report or any representation, all
subsequent certification reports and any
representations must be made using the
test procedure final rule methodology.
DOE requested comments on the
proposed amendment to 10 CFR
430.27(i) and 10 CFR 431.401(i).
Carrier, MIAQ and the Joint
Commenters supported the proposed
changes to 10 CFR 430.27(i) and 10 CFR
431.401(i). (Carrier, No. 66 at p. 3,
MIAQ, No. 61 at p. 2, Joint Commenters,
No. 69 at p. 5) Carrier stated that these
amendments would add additional
clarity to the transition period scenarios.
(Carrier, No. 66 at p. 3) The Joint
Commenters stated that the proposed
changes would provide a consistent
process, promote certainty, eliminate
duplicative testing, and reduce
unnecessary burden, and added that the
180-day period would provide
manufacturers a reasonable timeline to
retest and recertify. (Joint Commenters,
No. 69 at p. 5)
The Joint Commenters stated that
DOE should maintain the existing
language in these sections specifying
that when basic models have already
been certified using the test procedure
permitted following DOE grant of an
interim test procedure waiver, a
manufacturer is not required to re-test
and re-rate those basic models under
certain circumstances, rather than the
simplified language that DOE proposed.
(Joint Commenters, No. 69 at p. 5)
Lennox noted that DOE appears to have
15 The proposed amendments to 10 CFR
430.27(i)(2) were inadvertently omitted from the
proposed amendments to the CFR regulatory text in
the August 2021 NOPR.
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inadvertently left out transition
provisions in 10 CFR 430.27(i), with the
preamble describing proposals to 10
CFR 430.27(i)(1) and (2), which were
not provided in the regulatory text.
Lennox supported the proposed
language as described in the preamble
for these sections. (Lennox, No. 60 at p.
8)
Regarding the suggestion from the
Joint Commenters that manufacturers
not be required to re-test and re-rate
under certain circumstances, were DOE
to finalize in a decision and order an
alternate test procedure that differs from
the alternate test procedure specified in
an interim waiver, or finalize an
amended test procedure that differs
from a granted alternate test procedure,
any such change would be the result of
a determination by DOE, supported by
information and/or data, that the
subsequent test procedure more
appropriately provides representative
results. However, the final rule also
retains the flexibility for DOE to specify
in the decision and order that a
manufacturer is not required to re-test
and re-rate basic models certified to an
interim waiver under certain
circumstances. As discussed above and
as noted by commenters, the proposed
amendments to the regulatory text at 10
CFR 430.27(i) inadvertently omitted
language reflecting this intention in the
context of consumer products. This final
rule corrects this language and reflects
the proposed amendments provided at
431.401(i), consistent with the intent of
the preamble discussion in the August
2021 NOPR. DOE is also adopting
language at 10 CFR 430.27(i)(3) and 10
CFR 431.401(i)(3) to explicitly provide
that a manufacturer would have 180–
360 days following a modification to a
decision and order to comply with any
such modification.
F. Consistency With Enforcement
Requirements
DOE proposed amendments to 10 CFR
430.27(j) and 10 CFR 431.401(j) (Petition
for waiver required of other
manufacturers) for simplification and
consistency with the enforcement
requirements at 10 CFR part 429. Under
10 CFR 430.27(j) and 10 CFR 431.401(j)
manufacturers of products or equipment
employing a technology or characteristic
for which a waiver was granted for
another basic model must also seek a
waiver for basic models of their product
or equipment. Under these provisions,
manufacturers currently distributing
such products in commerce have 60
days to submit a waiver application, and
manufacturers of such products that are
not currently distributing such products
in commerce must petition for and be
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70955
granted a waiver prior to distribution in
commerce. When originally
implemented, the intent of these
provisions was to ensure that similar
products are rated in a comparable
manner. 77 FR 74616, 74618. As
discussed in the August 2021 NOPR,
DOE sought to preserve this intent, but
believes this language to be confusing
when read in context with 10 CFR part
429. Pursuant to 10 CFR 429.12, a basic
model must be certified prior to
distribution in commerce, and that
certification must be based on testing
conducted in conformance with the
applicable test requirements prescribed
in 10 CFR parts 429, 430 and 431, or in
accordance with the terms of an
applicable test procedure waiver. See 10
CFR 429.12(c)(2). Manufacturers must
comply with 10 CFR part 429 prior to
distributing their product in commerce
(i.e., no grace period is provided), and
10 CFR part 429 draws no distinction
between models currently being
distributed and models that will be
distributed in the future. To align with
10 CFR part 429, DOE proposed to
remove the specification of a 60-day
period and to make no distinction
between models currently being
distributed and models that will be
distributed in the future. DOE stated in
the August 2021 NOPR that it believes
the proposed amendments would
continue to achieve the original intent
of paragraph (j) while better aligning
with 10 CFR part 429.
DOE requested comments on the
proposed amendment to 10 CFR
430.27(j) and 10 CFR 431.401(j).
Carrier and MIAQ supported DOE’s
proposal to amend 10 CFR 430.27(j) and
10 CFR 431.401(j) for simplification and
consistency with the enforcement
requirements at 10 CFR part 429.
(Carrier, No. 66 at p. 3; MIAQ, No. 61
at p. 3) Carrier supported removing the
60-day period given to any
manufacturer currently distributing in
commerce products or equipment
employing a technology or characteristic
for which a waiver was granted for
another basic model. (Carrier, No. 66 at
p. 3)
NAFEM opposed DOE’s proposed
elimination of the 60-day period from
10 CFR 430.27(j) and 10 CFR 431.401(j),
noting that small businesses trying to
enter various market segments may need
that small timing buffer to figure out
and engage in the test procedure waiver
process, and that there is only a small
chance that a small business would
actually introduce products to market
within this short period, creating
limited risk of compliance or
enforcement issues. (NAFEM, No. 62 at
p. 4)
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In response to NAFEM’s comments
regarding small businesses trying to
enter market segments, DOE notes that
the 60-day time period currently applies
only to manufacturers already
distributing in commerce in the United
States a product employing a technology
or characteristic that results in the same
need for a waiver. The amendments that
DOE is promulgating with this final rule
(for example, more clearly specifying
the requirements for submitting a valid
waiver or interim waiver petition)
would provide greater clarity and
support for any small business seeking
a test procedure waiver. In this final
rule, DOE amends 10 CFR 430.27(j) and
10 CFR 431.401(j) consistent with the
proposal from the August 2021 NOPR.
G. Reasons for Rescinding or Modifying
Waiver or Interim Waiver
Finally, DOE proposed an amendment
to 10 CFR 430.27(k)(1) and 10 CFR
431.401(k)(1). Currently those
provisions provide that 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.
As described in the August 2021 NOPR,
DOE envisions that there could be other
circumstances, such as new
methodology, that might necessitate
modification of a waiver. As such, DOE
proposed to add to this provision that
DOE may rescind or modify a waiver for
other appropriate reasons.
DOE requested comments on the
proposed amendment to 10 CFR
430.27(k)(1) and 10 CFR 431.401(k)(1).
The Joint Advocates expressed
support for clarifying DOE’s authority to
rescind or modify a waiver for
appropriate reasons such as the
availability of a new testing
methodology. (Joint Advocates, No. 65
at p. 2)
Joint Commenters, Carrier, Lennox,
and NAFEM opposed DOE’s proposal to
allow DOE to rescind or modify a
waiver for ‘‘other appropriate reasons.’’
(Joint Commenters, No. 69 at p. 6;
Carrier, No. 66 at p. 4; Lennox, No. 60
at p. 7; NAFEM, No. 62 at p.3) Carrier
stated that this would create
unnecessary ambiguity and urged DOE
not to modify the current provisions at
10 CFR 430.27(k)(1) and 10 CFR
431.401(k)(1). (Carrier, No. 66 at p. 4)
Joint Commenters and Carrier stated
that if DOE wants to modify the
alternate test procedure granted in a
waiver, it should do so through
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amendments to the test procedure and
not through revisions to already-granted
waivers. (Joint Commenters, No. 69 at p.
6; Carrier, No. 66 at p. 4) Lennox stated
that it is unclear what DOE means by
‘‘new methodology,’’ and that if a
defined category of circumstances exist
where DOE may need to rescind an
interim waiver, the regulations should
state those circumstances specifically.
Lennox asserted that the ‘‘other
appropriate reason’’ language is
insufficiently supported in the August
2021 NOPR. (Lennox, No. 60 at p. 7)
NAFEM noted that this proposal would
return the waiver process to the
completely discretionary realm that,
according to NAFEM, caused industry
and DOE to revisit this process over the
past several years of rulemakings.
(NAFEM, No. 62 at p. 3)
Joint Commenters, MIAQ, and Lennox
recommended that if DOE makes a
determination to rescind a waiver based
on false or inaccurate information, then
the 180-day transition timeline should
be discretionary. (Joint Commenters, No.
69 at p. 5; MIAQ, No. 61 at p.3; Lennox,
No. 60 at p. 7)
DOE notes that the current provisions
at 10 CFR 430.27(k)(1) and 10 CFR
431.401(k)(1) already provide DOE with
authority to modify the alternate test
procedure granted in a waiver under
certain circumstances. In describing in
the August 2021 NOPR a ‘‘new
methodology’’ as one example of a
circumstance that might necessitate
modification of a waiver, DOE was
referring to the possibility of a new or
improved alternate test procedure (i.e.,
methodology) that would provide
results that are more representative than
the alternate test procedure specified in
a previously granted waiver. Another
appropriate reason that might
necessitate modification of a waiver is
DOE being made aware of additional
data that would suggest a more
representative alternate test procedure
than the alternate test procedure
specified in a previously granted waiver
(e.g., data used as the basis for
specifying a particular test condition or
weighting factor). In such cases, DOE
may determine that it is necessary to
modify a previous waiver or interim
waiver sooner than would be possible
through the test procedure rulemaking
process (e.g., products such as consumer
electronics with rapidly-changing
markets; products such as room air
conditioners with highly seasonal
markets, in which new products are
typically brought to market annually
during a relative short period of time).
DOE notes that the current regulations
at 10 CFR 430.27(k)(3) and 10 CFR
431.401(k)(3) require that any waiver
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recission or modification be subject to
public comment, which provides
interested parties an opportunity to
comment on DOE’s proposed recission
or modification before DOE publishes a
final decision. DOE did not propose any
amendments to those sections of the
CFR and any proposal by DOE to
rescind or modify a waiver, for any
reason, will be subject to those
provisions.
In reference to comments regarding
the transition timeline, if DOE were to
make a determination to rescind a
waiver based on false or inaccurate
information, the provisions at 10 CFR
430.27(k)(5) and 10 CFR 431.401(k)(5)
specify that 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
or part 431, as applicable. The
manufacturer would thus be required to
certify compliance using the applicable
DOE test procedure no later than the
effective date of the rescission. To
further clarify the compliance
requirements when a waiver is
modified, DOE is adding provisions at
10 CFR 430.27(i)(3) and 10 CFR
431.401(i)(3) to specify the applicable
grace periods. Similarly, 10 CFR
430.27(h)(4) and 10 CFR 431.401(h)(4)
specify when an existing waiver
terminates following the issuance of a
modified waiver.
This final rule amends 10 CFR
430.27(k)(1) and 10 CFR 431.401(k)(1)
consistent with the proposal in the
September 2021 NOPR.
IV. Procedural Issues and Regulatory
Review
A. Review Under Executive Order 12866
The Office of Information and
Regulatory Affairs (‘‘OIRA’’) in the
Office of Management and Budget
(‘‘OMB’’) waived Executive Order
(‘‘E.O.’’) 12866, ‘‘Regulatory Planning
and Review’’ review of this rule.
B. Review Under the Regulatory
Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires preparation
of a final regulatory flexibility analysis
(‘‘FRFA’’) for any final rule where the
agency was first required by law to
publish a proposed rule for public
comment, unless the agency certifies
that the rule 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 (Aug. 16, 2002), DOE
published procedures and policies on
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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 website
(www.energy.gov/gc/office-generalcounsel).
This final rule would not impose any
new requirements on any
manufacturers, including small
businesses. This final rule removes the
provision automatically granting interim
waivers within 45 business days of
receipt and adds a new provision that
DOE will make best efforts to process an
interim waiver request within 90 days of
receipt. While this proposal allows DOE
a longer period to review interim waiver
petitions, in light of DOE’s Test
Procedure Waiver Enforcement Policy
regarding models that are the subject of
a pending test procedure waiver
application, DOE expects that many
manufacturers will choose to sell
products tested in accordance with a
filed petition while awaiting DOE’s
decision. As such, DOE anticipates any
additional review period will minimally
impact manufacturers, including small
businesses.
Lennox stated that any enforcement
guidance protections, whereby DOE
refrains from enforcement for products
while a waiver request is pending with
DOE, should not arise until at least
when DOE has deemed the relevant
interim waiver petition administratively
complete and submitted it for public
comment in the Federal Register, in
order to avoid manufacturers seeking
unwarranted protection under such
enforcement guidance merely by
submitting an incomplete interim
waiver application that has no chance of
being approved as submitted. Lennox
stated that a small delay of 30 days for
DOE to determine completeness should
not materially adversely impact
manufacturers given lengthy product
development cycles and should
significantly increase consumer
protections against non-compliant
products. (Lennox, No. 60 at p. 8)
As discussed in section III.C, current
practice is for DOE to notify a
manufacturer regarding the
completeness of a petition within 5
business days of submission. As such, it
is highly unlikely that manufacturers
would use this short period between
submission and notification to
introduce noncompliant products to the
market. DOE has seen no evidence to
suggest that a manufacturer would
submit an incomplete interim waiver
petition as a strategy for bringing a noncompliant unit to the market. Further,
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DOE’s Test Procedure Waiver
Enforcement Policy does not provide
boundless enforcement protection for
any manufacturer who has submitted a
petition. If the waiver request is denied,
DOE would still employ its enforcement
discretion to determine whether to
pursue enforcement action against a
manufacturer for units sold while the
(ultimately denied) application was
pending.
Under this final rule, DOE is also
specifying a number of requirements for
complete petitions for interim waiver
and petitions for an extension of a
waiver. These are not new requirements
(i.e., petitions must currently include
this information), but are being included
in DOE’s regulations to make clearer to
manufacturers the information required
for a petition or an extension request
and to allow DOE to process such
requests more expeditiously. DOE
expects that these clarifications will
decrease burden on manufactures by
reducing instances of manufacturers
submitting incomplete petitions, which
will reduce administrative burden (i.e.,
avoid the need to re-submit a petition)
and allow manufactures to bring new
products to the market more quickly.
DOE is also eliminating the 60-day
period from 10 CFR 430.27(j) and 10
CFR 431.401(j) to align with
enforcement requirements at 10 CFR
part 429. DOE believes this amendment
will minimally impact manufacturers,
including small businesses, as they are
already subject to the requirements at 10
CFR part 429, which provides no grace
period. Finally, DOE believes its
revisions to the compliance certification
and representation requirements and
clarification of the duration of interim
waivers will provide clarity to
manufacturers and does not increase the
burden on manufacturers, including
small businesses. DOE does not
anticipate any impact on small
businesses as a result of the
amendments to 10 CFR 430.27(k)(1) and
10 CFR 431.401(k)(1).
For these reasons, DOE concludes that
this final rule will not have a
‘‘significant economic impact on a
substantial number of small entities,’’
and that the preparation of a FRFA is
not warranted. DOE has submitted a
certification and supporting statement
of factual basis to the Chief Counsel for
Advocacy of the Small Business
Administration for review under 5
U.S.C. 605(b).
C. Review Under the Paperwork
Reduction Act of 1995
Manufacturers of covered products/
equipment must certify to DOE that
their products comply with any
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applicable energy conservation
standards. To certify compliance,
manufacturers must first obtain test data
for their products according to the DOE
test procedures, including any
amendments adopted for those test
procedures. DOE has established
regulations for the certification and
recordkeeping requirements for all
covered consumer products and
commercial equipment. 76 FR 12422
(March 7, 2011); 80 FR 5099 (Jan. 30,
2015). The collection-of-information
requirement for certification and
recordkeeping is subject to review and
approval by OMB under the Paperwork
Reduction Act (‘‘PRA’’). This
requirement has been approved by OMB
under OMB control number 1910–1400.
Public reporting burden for the
certification is estimated to average 35
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.
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.
Specifically, this final rule,
addressing revisions to DOE’s test
procedure waiver process, does not
increase the burden hours or the
number of entities that are subject to
reporting under OMB control number
1910–1400.
D. Review Under the National
Environmental Policy Act of 1969
Pursuant to the National
Environmental Policy Act (NEPA) of
1969, DOE has analyzed this proposed
action in accordance with NEPA and
DOE’s NEPA implementing regulations
(10 CFR part 1021). DOE has determined
that this rule qualifies for categorical
exclusion under 10 CFR part 1021,
subpart D, appendix A5 because it is an
interpretive rulemaking that does not
change the environmental effect of the
rule and meets the requirements for
application of a CX. See 10 CFR
1021.410. Therefore, DOE has
determined that promulgation of this
rule is not a major Federal action
significantly affecting the quality of the
human environment within the meaning
of NEPA, and does not require an EA or
EIS.
E. Review Under Executive Order 13132
Executive Order 13132, ‘‘Federalism,’’
64 FR 43255 (August 4, 1999), imposes
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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 governs and
prescribes Federal preemption of State
regulations as to energy conservation for
the products that are the subject of this
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 each executive agency
make every reasonable effort to ensure
that when it issues a regulation, 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
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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 has 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. 104–4, sec. 201
(codified at 2 U.S.C. 1531)) 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 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
www.energy.gov/gc/office-generalcounsel. DOE examined this final rule
according to UMRA and its statement of
policy and has 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
under the Unfunded Mandates Reform
Act 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
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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 the Treasury and
General Government Appropriations
Act, 2001
Section 515 of the Treasury and
General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides
for agencies to review most
disseminations of information to the
public under guidelines established by
each agency pursuant to general
guidelines issued by OMB. OMB’s
guidelines were published at 67 FR
8452 (Feb. 22, 2002), and DOE’s
guidelines were published at 67 FR
62446 (Oct. 7, 2002). Pursuant to OMB
Memorandum M–19–15, Improving
Implementation of the Information
Quality Act (April 24, 2019), DOE
published updated guidelines which are
available at www.energy.gov/sites/prod/
files/2019/12/f70/DOE
%20Final%20Updated%20IQA
%20Guidelines%20Dec%202019.pdf.
DOE has reviewed this 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
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their expected benefits on energy
supply, distribution, and use.
This regulatory action is not a
significant regulatory action under
Executive Order 12866. Moreover, it
would 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 Consistent With OMB’s
Information Quality Bulletin for Peer
Review
On December 16, 2004, OMB, in
consultation with the Office of Science
and Technology Policy (OSTP), issued
its Final Information Quality Bulletin
for Peer Review (the Bulletin). 70 FR
2664 (Jan. 14, 2005). The Bulletin
establishes that certain scientific
information shall be peer reviewed by
qualified specialists before it is
disseminated by the Federal
Government, including influential
scientific information related to agency
regulatory actions. The purpose of the
bulletin is to enhance the quality and
credibility of the Government’s
scientific information. Under the
Bulletin, the energy conservation
standards rulemaking analyses are
‘‘influential scientific information,’’
which the Bulletin defines as ‘‘scientific
information the agency reasonably can
determine will have or does have a clear
and substantial impact on important
public policies or private sector
decisions.’’ Id. at 70 FR 2667.
In response to OMB’s Bulletin, DOE
conducted formal in-progress peer
reviews of the energy conservation
standards development process and
analyses and has prepared a Peer
Review Report pertaining to the energy
conservation standards rulemaking
analyses. Generation of this report
involved a rigorous, formal, and
documented evaluation using objective
criteria and qualified and independent
reviewers to make a judgment as to the
technical/scientific/business merit, the
actual or anticipated results, and the
productivity and management
effectiveness of programs and/or
projects. The ‘‘Energy Conservation
Standards Rulemaking Peer Review
Report,’’ dated February 2007, has been
disseminated and is available at the
following website:
www1.eere.energy.gov/buildings/
appliance_standards/peer_review.html.
Because available data, models, and
technological understanding have
changed since 2007, DOE has engaged
with the National Academy of Sciences
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to review DOE’s analytical
methodologies to ascertain whether
modifications are needed to improve the
Department’s analyses. The results from
that review are expected later in 2021 or
early in 2022.
10 of the Code of Federal Regulations,
as set forth below:
M. Congressional Notification
■
As required by 5 U.S.C. 801, DOE will
report to Congress on the promulgation
of this 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).
VI. 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,
Incorporation by reference,
Intergovernmental relations, Small
businesses.
10 CFR Part 431
Administrative practice and
procedure, Confidential business
information, Energy conservation test
procedures, Incorporation by reference,
and Reporting and recordkeeping
requirements.
Signing Authority
This document of the Department of
Energy was signed on December 3, 2021,
by Kelly J. Speakes-Backman, Principal
Deputy Assistant Secretary for Energy
Efficiency and Renewable Energy,
pursuant to delegated authority from the
Secretary of Energy. That document
with the original signature and date is
maintained by DOE. For administrative
purposes only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned DOE Federal
Register Liaison Officer has been
authorized to sign and submit the
document in electronic format for
publication, as an official document of
the Department of Energy. This
administrative process in no way alters
the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on December 7,
2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
For the reasons stated in the
preamble, DOE amends parts 430 and
431 of chapter II, subchapter D, of title
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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
revising paragraphs (b), (e), (g), (h), (i),
(j), and (k)(1) to read as follows:
■
§ 430.27 Petitions for waiver and interim
waiver of the test procedure.
*
*
*
*
*
(b) Petition content and publication.
(1) Each petition for interim waiver and
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 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) In addition to the requirements in
paragraph (b)(1) of this section, each
petition for interim waiver must
reference the related petition for waiver,
demonstrate likely success of the
petition for waiver, and address what
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economic hardship and/or competitive
disadvantage is likely to result absent a
favorable determination on the petition
for interim waiver.
*
*
*
*
*
(e) Provisions specific to interim
waivers—(1) DOE will post a petition for
interim waiver on its website within 5
business days of receipt of a complete
petition. DOE will make best efforts to
review a petition for interim waiver
within 90 business days of receipt of a
complete petition.
(2) A petition for interim waiver that
does not meet the content requirements
of paragraph (b) of this section will be
considered incomplete. DOE will notify
the petitioner of an incomplete petition
via email.
(3) 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. Notice of DOE’s determination
on the petition for interim waiver will
be published in the Federal Register.
*
*
*
*
*
(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. The
petition for extension must identify the
particular basic model(s) for which a
waiver extension is requested, each
brand name under which the identified
basic model(s) will be distributed in
commerce, and documentation
supporting the claim that the additional
basic models employ 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 publishes a decision
and order on a petition for waiver in the
Federal Register pursuant to paragraph
(f) of this section, the interim waiver
will terminate upon the data specified
in the decision and order, in accordance
with paragraph (i) of this section.
(3) When DOE amends the test
procedure to address the issues
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presented in a waiver, the waiver or
interim waiver will automatically
terminate on the date on which use of
that test procedure is required to
demonstrate compliance.
(4) When DOE publishes a decision
and order in the Federal Register to
modify a waiver pursuant to paragraph
(k) of this section, the existing waiver
will terminate 180 days after the
publication date of the decision and
order.
(i) Compliance certification and
representations. (1) If the interim waiver
test procedure methodology is different
than the decision and order test
procedure methodology, certification
reports to DOE required under 10 CFR
429.12 and any representations must be
based on either of the two
methodologies until 180 days after the
publication date of the decision and
order. Thereafter, certification reports
and any representations must be based
on the decision and order test procedure
methodology, unless otherwise
specified by DOE. Once a manufacturer
uses the decision and order test
procedure methodology in a
certification report or any
representation, all subsequent
certification reports and any
representations must be made using the
decision and order test procedure
methodology while the waiver is valid.
(2) When DOE publishes a new or
amended test procedure, certification
reports to DOE required under 10 CFR
429.12 and any representations must be
based on the testing methodology of an
applicable waiver or interim waiver, or
the new or amended test procedure
until the date on which use of such test
procedure is required to demonstrate
compliance, unless otherwise specified
by DOE in the test procedure final rule.
Thereafter, certification reports and any
representations must be based on the
test procedure final rule methodology.
Once a manufacturer uses the test
procedure final rule methodology in a
certification report or any
representation, all subsequent
certification reports and any
representations must be made using the
test procedure final rule methodology.
(3) If DOE publishes a decision and
order modifying an existing waiver,
certification reports to DOE required
under 10 CFR 429.12 and any
representations must be based on either
of the two methodologies until 180 days
after the publication date of the decision
and order modifying the waiver.
Thereafter, certification reports and any
representations must be based on the
modified test procedure methodology
unless otherwise specified by DOE.
Once a manufacturer uses the modified
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Fmt 4700
Sfmt 4700
test procedure methodology in a
certification report or any
representation, all subsequent
certification reports and any
representations must be made using the
modified test procedure methodology
while the modified waiver is valid.
(j) Petition for waiver required of other
manufactures. Any manufacturer of a
basic model employing a technology or
characteristic for which a waiver was
granted for another basic model and that
results in the need for a waiver (as
specified by DOE in a published
decision and order in the Federal
Register) must petition for and be
granted a waiver for that basic model.
Manufacturers may also submit a
request for interim waiver pursuant to
the requirements of this section.
(k) * * * (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,
upon a determination that the results
from the alternate test procedure are
unrepresentative of the basic model(s)’
true energy consumption characteristics,
or for other appropriate reason. 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.
*
*
*
*
*
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; 28 U.S.C.
2461 note.
4. Section 431.401 is amended by
revising paragraphs (b), (e), (g), (h), (i),
(j), and (k)(1) to read as follows:
■
§ 431.401 Petitions for waiver and interim
waiver of the test procedure.
*
*
*
*
*
(b) Petition content and publication.
(1) Each petition for interim waiver and
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
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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations
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 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) In addition to the requirements in
paragraph (b)(1) of this section, each
petition for interim waiver must
reference the related petition for waiver,
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.
*
*
*
*
*
(e) Provisions specific to interim
waivers. (1) DOE will post a petition for
interim waiver on its website within 5
business days of receipt of a complete
petition. DOE will make best efforts to
review a petition for interim waiver
within 90 business days of receipt of a
complete petition.
(2) A petition for interim waiver that
does not meet the content requirements
of paragraph (b) of this section will be
considered incomplete. DOE will notify
the petitioner of an incomplete petition
via email.
(3) 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
VerDate Sep<11>2014
16:20 Dec 13, 2021
Jkt 256001
immediate relief pending a
determination on the petition for
waiver. Notice of DOE’s determination
on the petition for interim waiver will
be published in the Federal Register.
*
*
*
*
*
(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. The
petition for extension must identify the
particular basic model(s) for which a
waiver extension is requested, each
brand name under which the identified
basic model(s) will be distributed in
commerce, and documentation
supporting the claim that the additional
basic models employ 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
final 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 publishes a decision
and order on a petition for waiver in the
Federal Register pursuant to paragraph
(f) of this section, the interim waiver
will terminate upon the date specified
in the decision and order, in accordance
with paragraph (i) of this section.
(3) When DOE amends the test
procedure to address the issues
presented in a waiver, the waiver or
interim waiver will automatically
terminate on the date on which use of
that test procedure is required to
demonstrate compliance.
(4) When DOE publishes a decision
and order in the Federal Register to
modify a waiver pursuant to paragraph
(k) of this section, the existing waiver
will terminate upon the date specified
in the decision and order, in accordance
with paragraph (i) of this section.
(i) Compliance certification and
representations. (1) If the interim waiver
test procedure methodology is different
than the decision and order test
procedure methodology, certification
reports to DOE required under 10 CFR
429.12 and any representations must be
based on either of the two
methodologies until 180–360 days after
the publication date of the decision and
order, as specified by DOE in the
decision and order. Thereafter,
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
70961
certification reports and any
representations must be based on the
decision and order test procedure
methodology, unless otherwise
specified by DOE. Once a manufacturer
uses the decision and order test
procedure methodology in a
certification report or any
representation, all subsequent
certification reports and any
representations must be made using the
decision and order test procedure
methodology while the waiver is valid.
(2) When DOE publishes a new or
amended test procedure, certification
reports to DOE required under 10 CFR
429.12 and any representations must be
based on the testing methodology of an
applicable waiver or interim waiver, or
the new or amended test procedure
until the date on which use of such test
procedure is required to demonstrate
compliance, unless otherwise specified
by DOE in the test procedure final rule.
Thereafter, certification reports and any
representations must be based on the
test procedure final rule methodology.
Once a manufacturer uses the test
procedure final rule methodology in a
certification report or any
representation, all subsequent
certification reports and any
representations must be made using the
test procedure final rule methodology.
(3) If DOE publishes a decision and
order modifying an existing waiver,
certification reports to DOE required
under 10 CFR 429.12 and any
representations must be based on either
of the two methodologies until 180–360
days after the publication date of the
decision and order modifying the
waiver, as specified by DOE in the
decision and order. Thereafter,
certification reports and any
representations must be based on the
modified test procedure methodology
unless otherwise specified by DOE.
Once a manufacturer uses the modified
test procedure methodology in a
certification report or any
representation, all subsequent
certification reports and any
representations must be made using the
modified test procedure methodology
while the modified waiver is valid.
(j) Petition for waiver required of other
manufactures. Any manufacturer of a
basic model employing a technology or
characteristic for which a waiver was
granted for another basic model and that
results in the need for a waiver (as
specified by DOE in a published
decision and order in the Federal
Register) must petition for and be
granted a waiver for that basic model.
Manufacturers may also submit a
request for interim waiver pursuant to
the requirements of this section.
E:\FR\FM\14DER1.SGM
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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations
(k) * * * (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,
upon a determination that the results
from the alternate test procedure are
unrepresentative of the basic model(s)’
true energy consumption characteristics,
or for other appropriate reason. 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.
*
*
*
*
*
[FR Doc. 2021–26756 Filed 12–13–21; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2021–0795; Project
Identifier 2019–CE–054–AD; Amendment
39–21837; AD 2021–24–16]
RIN 2120–AA64
Airworthiness Directives; Daher
Aerospace (Type Certificate Previously
Held by SOCATA) Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
jspears on DSK121TN23PROD with RULES1
This AD is effective January 18,
2022.
The Director of the Federal Register
approved the incorporation by reference
DATES:
16:20 Dec 13, 2021
Examining the AD Docket
You may examine the AD docket at
https://www.regulations.gov by
searching for and locating Docket No.
FAA–2021–0795; or in person at Docket
Operations between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays. The AD docket contains this
final rule, the MCAI, any comments
received, and other information. The
address for Docket Operations is 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 FURTHER INFORMATION CONTACT:
Gregory Johnson, Aviation Safety
Engineer, FAA, General Aviation &
Rotorcraft Section, International
Validation Branch, 901 Locust, Room
301, Kansas City, MO 64106; phone:
(720) 626–5462; fax: (816) 329–4090;
email: gregory.johnson@faa.gov.
SUPPLEMENTARY INFORMATION:
Discussion
The FAA is adopting a new
airworthiness directive (AD) for all
Daher Aerospace (type certificate
previously held by SOCATA) Model TB
20 and TB 21 airplanes. This AD was
prompted by mandatory continuing
airworthiness information (MCAI)
originated 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 cracks on the main landing
gear (MLG) legs. This AD requires
repetitively inspecting the MLG and
performing all applicable corrective
actions. The FAA is issuing this AD to
address the unsafe condition on these
products.
SUMMARY:
VerDate Sep<11>2014
of a certain publication listed in this AD
as of January 18, 2022.
ADDRESSES: For service information
identified in this final rule, contact
Daher Aircraft Inc., Pompano Beach
Airpark, 601 NE 10 Street, Pompano
Beach, FL 33060; phone: (954) 893–
1400; website: www.tbm.aero. You may
view this service information at the
FAA, Airworthiness Products Section,
Operational Safety Branch, 901 Locust,
Kansas City, MO 64106. For information
on the availability of this material at the
FAA, call (816) 329–4148. It is also
available at https://www.regulations.gov
by searching for and locating Docket No.
FAA–2021–0795.
Jkt 256001
The FAA issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would
apply to all Daher Aerospace (type
certificate previously held by SOCATA)
Model TB 20 and TB 21 airplanes. The
NPRM published in the Federal
Register on September 17, 2021 (86 FR
51840). The NPRM was prompted by
MCAI originated by the European Union
Aviation Safety Agency (EASA), which
is the Technical Agent for the Member
States of the European Union. EASA
issued AD 2019–0274, dated November
6, 2019 (referred to after this as ‘‘the
MCAI’’), to address an unsafe condition
on all Daher Aerospace (formerly
SOCATA) Model TB 20 and TB 21
airplanes. The MCAI states:
Occurrences have been reported of finding
cracks on MLG legs of TB 20 and TB 21
aeroplanes.
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Sfmt 4700
This condition, if not detected and
corrected, could lead to structural failure of
an MLG leg and consequent MLG collapse,
possibly resulting in damage to the aeroplane
and injury to occupants.
To address this potential unsafe condition,
DAHER Aerospace issued the [service
bulletin] SB to provide inspection
instructions.
For the reasons described above, this
[EASA] AD requires repetitive special
detailed inspections (SDI) using magnetic
particle method of the affected MLG area,
and, depending on findings, accomplishment
of applicable corrective action(s).
You may examine the MCAI in the
AD docket at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2021–
0795.
Comments
The FAA received no comments on
the NPRM or on the determination of
the costs.
Conclusion
This product has been approved by
the aviation authority of another
country and is approved for operation in
the United States. Pursuant to the FAA’s
bilateral agreement with this State of
Design Authority, it has notified the
FAA of the unsafe condition described
in the MCAI and service information
referenced above. The FAA reviewed
the relevant data and determined that
air safety requires adopting this AD as
proposed. Accordingly, the FAA is
issuing this AD to address the unsafe
condition on these products. This AD is
adopted as proposed in the NPRM.
Related Service Information Under 1
CFR Part 51
The FAA reviewed Daher Aerospace
Service Bulletin SB 10–154–32, dated
September 2019. The service
information contains procedures for
repetitively inspecting the MLG area for
cracks and performing any rework and
repair. This service information is
reasonably available because the
interested parties have access to it
through their normal course of business
or by the means identified in the
ADDRESSES section.
Costs of Compliance
The FAA estimates that this AD
affects 52 airplanes of U.S. registry. The
FAA also estimates that it would take
about 8 work-hours per airplane to
perform the magnetic particle
inspection required by this AD. The
average labor rate is $85 per work-hour.
Based on these figures, the FAA
estimates the inspection cost of this AD
on U.S. operators to be $35,360, or $680
per airplane, per inspection cycle.
E:\FR\FM\14DER1.SGM
14DER1
]]>Agencies
[Federal Register Volume 86, Number 237 (Tuesday, December 14, 2021)]
[Rules and Regulations]
[Pages 70945-70962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26756]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
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.
========================================================================
Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 /
Rules and Regulations
[[Page 70945]]
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Parts 430 and 431
[EERE-2019-BT-NOA-0011]
RIN 1904-AE24
Test Procedure Interim Waiver Process
AGENCY: Office of Energy Efficiency and Renewable Energy (EERE), U.S.
Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'')
is revising the Department's test procedure interim waiver process. The
revisions address areas of the test procedure interim waiver process
regulations that may result in alternate test procedures that are
inconsistent with the purpose and requirements of the Energy Policy and
Conservation Act, and that otherwise appear not to effectuate the
statute properly.
DATES: This rule is effective February 14, 2022.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, public meeting attendee lists and transcripts,
comments, and other supporting documents/materials, is available for
review at www.regulations.gov. All documents in the docket are listed
in the www.regulations.gov index. However, not all documents listed in
the index may be publicly available, such as information that is exempt
from public disclosure.
The docket web page can be found at: www.regulations.gov/docket?D=EERE-2019-BT-NOA-0011. The www.regulations.gov web page
contains instructions on how to access all documents, including public
comments, in the docket.
FOR FURTHER INFORMATION CONTACT:
Ms. Sarah Butler, U.S. Department of Energy, Office of General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Email: [email protected].
Ms. Julia Hegarty, 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. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of Final Rule
II. Authority and Background
A. Authority
B. Background
III. Discussion
A. Automatic Granting of Interim Waiver After Prescribed Time
Period
B. Timeframe for Review of Interim Waivers
C. Clarification of Necessary Contents of Interim Waiver
D. Duration of Applicability of Interim Waivers and Waivers
E. Transition Period for Compliance With Decision and Order or
Amended Test Procedure
F. Consistency With Enforcement Requirements
G. Reasons for Rescinding or Modifying Waiver or Interim Waiver
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act of 1995
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under Treasury and General Government Appropriations
Act, 2001
K. Review Under Executive Order 13211
L. Review Consistent With OMB's Information Quality Bulletin for
Peer Review
M. Congressional Notification
VI. Approval of the Office of the Secretary
I. Summary of Final Rule
On December 11, 2020, DOE published a final rule (``December 2020
Final Rule'') in the Federal Register that made significant revisions
to its procedures for processing petitions for interim waivers from
test procedures mandated pursuant to the Energy Policy and Conservation
Act (``EPCA''), found in 10 CFR 430.27 and 10 CFR 431.401. 85 FR 79802.
Subsequently, on January 20, 2021, the White House issued Executive
Order 13990, ``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25,
2021). Section 1 of that Order listed several policies related to the
protection of public health and the environment, including reducing
greenhouse gas emissions and bolstering the Nation's resilience to
climate change. Id. at 86 FR 7037, 7041. Section 2 of the Order
instructs all agencies to review ``existing regulations, orders,
guidance documents, policies, and any other similar agency actions
(agency actions) promulgated, issued, or adopted between January 20,
2017, and January 20, 2021, that are or may be inconsistent with, or
present obstacles to, [these policies].'' Id. Agencies are then
directed, as appropriate and consistent with applicable law, to
consider suspending, revising, or rescinding these agency actions and
to immediately commence work to confront the climate crisis. Id. In
addition, the White House explicitly enumerated certain agency actions,
including the December 2020 Final Rule, as actions that would be
reviewed to determine consistency with Section 1 of the Order.\1\
Executive Order 13990, Fact Sheet.\2\
---------------------------------------------------------------------------
\1\ Fact Sheet: List of Agency Actions for Review (Jan. 20,
2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
\2\ The Joint Advocates, Sierra Club and Earthjustice, and DEEP
(as identified in Table II.1 of this document) urged DOE to comply
with the deadline for final action on this proposal contained in
Executive Order 13990. (Joint Advocates, No. 65 at p. 2; Sierra Club
and Earthjustice, No. 67 at p. 1; DEEP, No. 59 at p. 2)
---------------------------------------------------------------------------
DOE proposed revisions to its procedures for processing petitions
for interim waivers from test procedures mandated pursuant to EPCA in a
notice of proposed rulemaking (``NOPR'') that was published on August
19, 2021 (``August 2021 NOPR''). 86 FR 46793.
While E.O. 13990 triggered the Department's re-evaluation, DOE is
relying on the analysis presented below, based upon EPCA, to revise its
prior rule. In conducting its review of the December 2020 Final Rule,
DOE has identified areas that do not meet DOE's responsibilities under
EPCA. The December 2020 Final Rule mandates a
[[Page 70946]]
process that may result in alternate test procedures that are
inconsistent with EPCA's purpose and requirements. In addition, as
discussed in greater detail in section III of this document, upon
reconsideration, DOE believes provisions implemented by the December
2020 Final Rule could weaken energy conservation standards by allowing
manufacturers to place noncompliant products in the market. In
furtherance of its duties under EPCA and in accordance with Executive
Order 13990, DOE is revising its procedures for processing interim
waiver requests.
In this final rule, DOE amends 10 CFR 430.27 and 10 CFR 431.401 by:
(1) Removing the provisions, adopted in the December 2020 Final Rule,
that interim waivers will be automatically granted if DOE fails to
notify the petitioner of the disposition of the petition within 45
business days of receipt of the petition, and instead specifying that
DOE will make best efforts to process any interim waiver request within
90 days of receipt; (2) providing the requirements for a complete
petition for interim waiver, and specifying that DOE would notify
petitioners of incomplete petitions via email and that DOE will post a
complete petition for interim waiver on its website within five
business days of receipt of the complete petition; (3) stating the
information that must be provided in a request to extend a waiver to
additional basic models; (4) revising the compliance certification and
representation requirements; (5) specifying that interim waivers will
automatically terminate on the compliance date of a new or amended test
procedure; (6) harmonizing the consumer product and commercial
equipment waiver provisions with enforcement requirements; and (7)
allowing DOE to rescind or modify a waiver for appropriate reasons.
II. Authority and Background
A. Authority
EPCA,\3\ Public Law 94-163 (42 U.S.C. 6291-6317) authorizes DOE to
regulate the energy efficiency of a number of consumer products and
industrial equipment types. Title III, Part B \4\ of EPCA established
the Energy Conservation Program for Consumer Products Other Than
Automobiles. Title III, Part C \5\ of EPCA established the Energy
Conservation Program for Certain Industrial Equipment. The energy
conservation program under EPCA consists essentially of four parts: (1)
Testing, (2) labeling, (3) Federal energy conservation standards, and
(4) certification and enforcement procedures.
---------------------------------------------------------------------------
\3\ All references to EPCA in this document refer to the statute
as amended through the Energy Act of 2020, Public Law 116-260 (Dec.
27, 2020).
\4\ For editorial reasons, Part B was redesignated as Part A
upon codification in the U.S. Code.
\5\ For editorial reasons, Part C was redesignated as Part A-1
upon codification in the U.S. Code.
---------------------------------------------------------------------------
The Federal testing requirements consist of test procedures that
manufacturers of covered products and equipment generally must use as
the basis for: (1) Certifying to DOE that the product or equipment
complies with the applicable energy conservation standards adopted
pursuant to EPCA (42 U.S.C. 6295(s); 42 U.S.C. 6316(a)), and (2) making
representations about the efficiency of the products or equipment (42
U.S.C. 6293(c); 42 U.S.C. 6314(d)). Similarly, DOE must use these test
procedures to determine whether the product or equipment complies with
relevant standards promulgated under EPCA. (42 U.S.C. 6295(s); 42
U.S.C. 6316(a))
Under 42 U.S.C. 6293 and 42 U.S.C. 6314, EPCA sets forth the
criteria and procedures DOE is required to follow when prescribing or
amending test procedures for covered products and equipment.
Specifically, test procedures must be reasonably designed to produce
test results that reflect energy efficiency, energy use or estimated
annual operating cost of a covered product or covered equipment during
a representative average use cycle or period of use, and must not be
unduly burdensome to conduct. (42 U.S.C. 6293(b)(3); 42 U.S.C.
6314(a)(2))
B. Background
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.
DOE's regulations in Title 10 of the Code of Federal Regulations
(``CFR''), Sec. 430.27 (consumer products) and Sec. 431.401
(commercial equipment), contain provisions allowing a person to seek a
waiver from the test procedure requirements if certain conditions are
met. DOE will grant a waiver from the test procedure requirements if
DOE determines either that 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 that the
prescribed test procedure evaluates the basic model in a manner so
unrepresentative of its true energy consumption characteristics as to
provide materially inaccurate comparative data. 10 CFR 430.27(a)(1) and
10 CFR 431.401(a)(1). DOE may grant the waiver subject to conditions,
including adherence to alternate test procedures. In addition, the
waiver process permits parties submitting a petition for waiver to also
file an application for interim waiver from the applicable test
procedure requirements. 10 CFR 430.27(a) and 10 CFR 431.401(a). DOE
will grant an interim waiver 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
decision on the petition for waiver. 10 CFR 430.27(e)(2) and 10 CFR
431.401(e)(2).
On May 1, 2019, DOE published a NOPR to amend the existing test
procedure interim waiver process (``May 2019 NOPR''). 84 FR 18414.
After considering the comments received, DOE published the December
2020 Final Rule, which significantly revised its procedures for test
procedure interim waivers. 85 FR 79802.
The December 2020 Final Rule adopted an approach to DOE's test
procedure interim waiver decision-making process that requires the
Department to notify, in writing, an applicant for an interim waiver of
the disposition of the request within 45 business days of receipt of
the application. 10 CFR 430.27(e)(ii) and 10 CFR 431.401(e)(ii).
Importantly, under the recent amendments, if DOE does not notify the
applicant in writing of the disposition of the interim waiver within 45
business days, the interim waiver is granted automatically and the
manufacturer is authorized to test subject products or equipment using
the alternate test procedure proposed by the manufacturer in the
petition. Id. If DOE denies the interim waiver petition, DOE is
required to notify the petitioner within 45 business days and post the
notice on the Department's website as well as publish its determination
in the Federal Register as soon as possible after such notification.
Id. If DOE ultimately denies an associated petition for waiver or
grants the petition with a test procedure that differs from the
alternate test procedure specified in the interim waiver, manufacturers
are allowed a 180-day grace period before the manufacturer is required
to use the DOE test procedure or the alternate test procedure specified
in the decision and order to make representations regarding energy
efficiency. 10 CFR 430.27(i)(1) and 10 CFR 431.401(i)(1).\6\
---------------------------------------------------------------------------
\6\ In proposing an amendment to 10 CFR 430.27(i) and
431.401(i), DOE stated that--``The 180 day duration was proposed
because that time frame is consistent with the EPCA provision that
provides manufacturers 180 days from issuance of a new or amended
test procedure to begin using that test procedure for representation
of energy efficiency.'' 84 FR 18414, 18416; (See 42 U.S.C.
6293(c)(2)). In the December 2020 Final Rule, DOE stated that it was
maintaining the 180-day grace period as proposed. 85 FR 79802,
79813. As such, under 10 CFR 430.27(i) and 431.401(i) as finalized
in the December 2020 Final Rule, were a Decision and Order issued
with an alternate test procedure that differed from that required
under the interim waiver, beginning 180 days following publication
of the Decision and Order any representations made by the petitioner
must fairly disclose the results of testing in accordance with the
alternate test procedure specified by the final Order and the
applicable requirements of 10 CFR part 429.
---------------------------------------------------------------------------
[[Page 70947]]
In the December 2020 Final Rule, DOE made a policy decision to
place significant weight on reducing manufacturers' burdens, providing
greater certainty and transparency to manufacturers, and reducing
delays in manufacturers' ability to bring innovative product options to
consumers. 85 FR 79816. To justify these changes to DOE's interim
waiver process, DOE noted that it intended to shift the burden of any
delays in the review process onto the Department and allow for
innovative products to be made available more quickly to consumers. 85
FR 79802, 79803 and 79811.
In the August 2021 NOPR, DOE stated that in reconsideration of the
December 2020 Final Rule, DOE is weighing these policy considerations
differently. DOE tentatively determined that the changes under the
December 2020 Final Rule may not allow DOE sufficient time to review an
alternate test procedure, leading to increased risks to consumers of
purchasing noncompliant products, decreased energy savings, and an
unfair playing field for competing manufacturers in the market. Given
EPCA's goal of energy conservation and DOE's statutory obligations
under EPCA, in this final rule DOE places greater weight on ensuring
compliant test procedures, decreasing risks to consumers and
manufacturers, and ensuring that DOE meets its statutory obligations.
86 FR 46793, 46795.
In response to the August 2021 NOPR, DOE received comments from the
interested parties listed in Table II.1.
Table II.1--Written Comments Received in Response to August 2021 NOPR
------------------------------------------------------------------------
Reference in this
Commenter(s) final rule Commenter type
------------------------------------------------------------------------
Appliance Standards Awareness Joint Advocates... Efficiency
Project, American Council for an Organizations.
Energy-Efficient Economy,
Consumer Federation of America,
National Consumer Law Center (on
behalf of its low-income
clients), and Natural Resources
Defense Council.
Sierra Club and Earthjustice..... Sierra Club and Efficiency
Earthjustice. Organizations.
Attorneys General of New York, Joint Attorneys State and Local
Colorado, Connecticut, Illinois, General. Governments.
Maine, Maryland, Michigan,
Minnesota, Nevada, New Jersey,
New Mexico, Oregon, Vermont,
Washington, the Commonwealths of
Massachusetts And Pennsylvania,
the District Of Columbia and the
City Of New York.
Connecticut Department of Energy DEEP.............. State.
and Environmental Protection.
California Investor-Owned CA IOUs........... Utility.
Utilities (Pacific Gas and
Electric, San Diego Gas and
Electric, and Southern
California Edison).
Madison Indoor Air Quality....... MIAQ.............. Manufacturer.
North American Association of NAFEM............. Trade
Food Equipment Manufacturers. Association.
Air-Conditioning, Heating, and AHRI.............. Trade
Refrigeration Institute. Association.
Air-Conditioning, Heating, and Joint Commenters.. Trade
Refrigeration Institute, Associations.
Association of Home Appliance
Manufacturers, and National
Electrical Manufacturers
Association.
Carrier Corporation.............. Carrier........... Manufacturer.
Bradford White Corporation....... BWC............... Manufacturer.
Lennox International Inc......... Lennox............ Manufacturer.
------------------------------------------------------------------------
A parenthetical reference at the end of a comment quotation or
paraphrase provides the location of the item in the public record.\7\
---------------------------------------------------------------------------
\7\ The parenthetical reference provides a reference for
information located in the docket of DOE's rulemaking to amend the
test procedure interim waiver process. (Docket NO. EERE-2019-BT-NOA-
0011, which is maintained at www.regulations.gov). The references
are arranged as follows: (Commenter name, comment docket ID number,
page of that document).
---------------------------------------------------------------------------
Other comments pertaining to specific proposals are discussed in
section III.
III. Discussion
As noted previously, DOE is required to develop test procedures to
measure the energy efficiency, energy use, or estimated annual
operating cost of each covered product and covered equipment during a
representative average use cycle or period of use. (42 U.S.C. 6293; 42
U.S.C. 6314) Manufacturers of covered products and covered equipment
must use the prescribed DOE test procedure to certify that their
products and equipment meet the applicable energy conservation
standards adopted under EPCA, and also when making any other
representations to the public regarding the energy use or efficiency of
those products. (42 U.S.C. 6293(c), 6295(s), 42 U.S.C. 6314(d) and 42
U.S.C. 6316(a)) In accordance with EPCA, manufacturers are prohibited
from distributing a covered product without first demonstrating
compliance with applicable standards through the use of DOE test
procedures. (42 U.S.C. 6302(a)(5), 42 U.S.C. 6295(s))
DOE has determined that, upon weighing the aforementioned policy
considerations differently, certain provisions implemented by the
December 2020 Final Rule are not appropriate or necessary. DOE
acknowledges that its interim waiver process often involves a lengthy
period following submission of interim waiver and waiver applications
and imposes burdens on manufacturers who are unable to certify their
products or equipment absent an interim waiver or waiver from DOE. The
December 2020 Final Rule, however, mandates a process that, by
prioritizing the speeding up of the petition process, may result in
alternate test procedures that are inconsistent with EPCA's purpose and
requirements and have adverse environmental impacts. Further, to
encourage waivers and prevent the Department's administrative waiver
process from delaying or deterring the introduction of novel,
innovative products into the marketplace, the Department has a long-
stated Enforcement Policy Statement--Pending Test Procedure Waiver
Applications
[[Page 70948]]
(``Test Procedure Waiver Enforcement Policy''), which provides that DOE
will refrain from an enforcement action related to a specific basic
model while a waiver request is pending.\8\
---------------------------------------------------------------------------
\8\ Department of Energy, Enforcement Policy Statement--Pending
Test Procedure Waiver Applications (Apr. 5. 2017), available at
www.energy.gov/sites/default/files/2017/04/f34/Enforcement%20Policy%20-%20waivers.pdf.
---------------------------------------------------------------------------
A. Automatic Granting of Interim Waiver After Prescribed Time Period
Under the interim waiver process established in the December 2020
Final Rule, an interim waiver granted by default after the 45-day
period would lack DOE review and would not benefit from a determination
that the alternate test procedure meets EPCA requirements. As
demonstrated in the examples discussed in this section, DOE often
requires longer than 45 business days to adequately evaluate an
alternate test procedure in order to determine whether the proposed
test procedure accurately reflect the product's energy consumption
during an average use cycle. The default waiver process may result in
test procedures later found to be inconsistent with EPCA, which would
allow manufacturers to distribute noncompliant products in commerce,
resulting in additional costs (i.e., cost of energy use) to consumers
and materially inaccurate information to the marketplace.
DOE noted in the December 2020 Final Rule that some commenters
stated that the amendments to the interim waiver process would weaken
the energy conservation standards program because the automatic
granting of interim waivers without review could place noncompliant
products in the market and allow them to remain for an additional 180
days after DOE acts on the associated petition. 85 FR 79802, 79806. In
addition, some commenters noted that the amendments could indirectly
allow for backsliding of energy conservation standards, noting that 42
U.S.C. 6295(o)(1) forbids DOE from prescribing an energy conservation
standard that decreases the required energy efficiency of a product. 85
FR 79802, 79813. These commenters argued that the amendments proposed
in the May 2019 NOPR (and that were ultimately adopted in the December
2020 Final Rule) would lead to the same loss of efficiency that EPCA's
anti-backsliding provision was intended to prevent. Id. DOE's decision
under the December 2020 Final Rule reflected a policy choice to reject
these comments raising concerns about the risks of non-compliant
products in favor of perceived greater certainty and transparency, and
a less burdensome process for manufacturers. In support of the December
2020 Final Rule, DOE explained that the changes were in response to
concerns that the current system for processing interim waiver
petitions was not working as it should, and in DOE's view,
manufacturers should not be constrained from selling their products for
significant periods while DOE reviews the interim waiver petition. 85
FR 79802, 79807.
Analyses of recent petitions indicate that, based on the time
required to review appropriately and respond properly to interim waiver
requests, the number of noncompliant test procedures granted without
sufficient time to review would be higher than DOE estimated
previously. As noted, allowing any test procedure that does not provide
an accurate, representative result runs counter to DOE's statutory
obligations under EPCA.
One example illustrating DOE's concerns is as follows. On June 30,
2021, DOE issued a notice denying the interim waiver application from
General Electric Appliance (``GEA'') for certain miscellaneous
refrigeration product (``MREF'') basic models. 86 FR 35766. The
original petition for waiver and interim waiver from the test procedure
for MREFs set forth at appendix A to subpart B of 10 CFR part 430 was
received on April 9, 2021. (EERE-2021-BT-WAV-0009, GEA, No. 1 at p. 1)
As discussed in the August 2021 NOPR, from the time that DOE received
GEA's original petition, to the time that the petition was denied, 55
business days passed. DOE was provided more than the 45-business day
period in this case because GEA revised and supplemented its original
petition in response to DOE's technical questions. However, if DOE did
not have sufficient time to gather the additional information about
GEA's MREF basic models and how such models are applied in the field,
an alternate test procedure could have erroneously been applied that
did not meet the requirements in EPCA. DOE needed time to understand
more about the product and the proposed alternate test procedure, and
after several exchanges, came to understand that the GEA proposed
alternate test procedure did not include all the energy consumption to
represent an average use cycle and thus, the test procedure proposed by
GEA was not representative. See 42 U.S.C. 6293. If the alternate test
procedure proposed by GEA was automatically granted, the tested energy
use of the basic models subject to the interim waiver would have been
based on a test procedure that improperly underestimates the energy
consumption of the product and would not have provided accurate
information to the customers about the representative average use of
the product.
In another example, on October 25, 2016, AHT Cooling Systems GmbH
and AHT Cooling Systems USA, Inc. (``AHT'') filed a petition for waiver
and interim waiver from the DOE test procedure for commercial
refrigeration equipment set forth in 10 CFR part 431, subpart C,
appendix B. (EERE-2017-BT-WAV-0027, AHT, No. 1 at pp. 1-10) AHT
petitioned for waiver for six model lines that are capable of multi-
mode operation (i.e., as ice cream freezer and commercial
refrigerator). In the petition, AHT stated that the DOE test procedure
is not clear regarding how to test multi-mode equipment. 82 FR 15345,
15349. To address multi-mode operation, AHT requested that their
equipment be tested and rated only as ice cream freezers (with
integrated average temperature of -15 [deg]F +/-2.0 [deg]F and use of
total display area to determine associated energy conservation
standards). 82 FR 15345, 15349-15350. As discussed in the August 2021
NOPR, AHT's proposed alternate test procedure would have rated its
multi-mode basic models in a manner that was unrepresentative because
it would have only accounted for ice-cream freezer mode operation and
would not have accounted for operation in the other applicable
equipment categories. 82 FR 15345, 15347. After evaluating AHT's
petition and alternate test procedure, DOE partially granted AHT's
interim waiver. 82 FR 15345. DOE required 102 business days for this
review. If DOE had not had sufficient time to evaluate this test
procedure waiver and AHT had moved forward with its request without
modification, AHT would not have evaluated the multi-mode operation in
a manner representative of field use in each applicable equipment
category, which would have resulted in equipment being distributed in
commerce that may have otherwise been non-compliant with the energy
conservation standards.
DOE has determined that the December 2020 Final Rule did not place
sufficient weight on the potential for alternate test procedures
granted without sufficient DOE review to allow manufacturers to place
products in the market that do not meet applicable energy conservation
standards. To the extent that test procedure results are
unrepresentative and do not provide comparative data, energy savings
may not be realized, and consumers may not be able to make informed
choices. As discussed previously, DOE has an
[[Page 70949]]
obligation under EPCA to ensure that all test procedures authorized by
the Department yield measurements of energy consumption that are
representative of actual product or equipment performance. (42 U.S.C.
6293) As commenters noted in the December 2020 Final Rule, a DOE test
procedure that inaccurately measures energy use of a covered product or
equipment could inadvertently allow for the backsliding of energy
conservation measures in violation of 42 U.S.C. 9265(o). As seen with
the GEA and AHT petitions, DOE cannot appropriately determine whether
an alternate test procedure will accurately measure energy use if there
is insufficient time to understand a product and validate an alternate
test procedure. Accordingly, DOE proposed removing the provision that
interim waivers will be automatically granted if DOE fails to notify
the petitioner of the disposition of the petition within 45 business
days of receipt. DOE also proposed to remove the language at 10 CFR
430.27(e)(1)(iii) and 10 CFR 431.401(e)(1)(iii) specifying when a
petition is considered ``received'' by DOE. These provisions were added
for purposes of determining the start of the 45-business day window and
serve no purpose upon removing the provision to automatically grant an
interim waiver within a specified time period.
DOE requested comments, information, and data on its proposal to
remove the provision that interim waivers will be automatically granted
if DOE fails to respond to the request within 45 business days of
receipt of the petition.
DOE received comments expressing support for DOE's proposal to
remove the provision that interim waivers will be automatically granted
if DOE fails to respond to the request within 45 business days of
receipt of the petition. (DEEP, No. 59 at p. 1; Lennox, No 60 at p. 1-
3; Joint Attorneys General, No. 63 at pp. 1-2; CA IOUs, No. 64 at p. 1;
Joint Advocates, No. 65 at p. 1; Carrier, No. 66 at p. 1; Sierra Club
and Earthjustice, No. 67 at p. 1) Sierra Club and Earthjustice stated
that the changes DOE adopted to the test procedure waiver process in
December 2020 are unlawful, and stated that in proposing to discard
this provision, DOE will close a loophole for manufacturers to offer
noncompliant products that increase air pollutant emissions and impose
higher energy costs on end-users. (Sierra Club and Earthjustice, No. 67
at p. 1) Joint Advocates noted a similar elimination of a pathway for
noncompliant products to be brought into the market. (Joint Advocates,
No. 65 at p. 1) Similarly, Carrier stated that DOE rightly identified
the risk that the default waiver process may result in manufacturers
distributing products in commerce that result in additional costs to
consumers, and that automatically granting petitions increases the risk
that a level marketplace is not maintained for all competitors.
(Carrier, No. 66 at p. 1) Lennox agreed that a ``granted by default''
approach would weaken the energy conservation standards program by
placing noncompliant products on the market. (Lennox, No. 60 at p. 2)
The Joint Attorneys General stated that the proposal to eliminate
automatic waivers would restore a process that affords DOE the
necessary time and discretion to properly review waiver requests to
ensure that alternate test procedures meet EPCA requirements. (Joint
Attorneys General, No. 63 at p. 2)
Several interested parties expressed qualified support and/or
alternatives for DOE's proposal to remove the provision that interim
waivers will be automatically granted if DOE fails to respond to the
request within 45-business days of receipt of the petition. MIAQ stated
that a passive grant of an interim test procedure waiver assures
timeliness but does not protect against potential for gamesmanship or
ensure transparency, and that DOE should undertake an affirmative
completeness assessment prior to granting an interim waiver. (MIAQ, No.
61 at p. 1) For most petitions for interim waivers, the Joint
Commenters and AHRI expressed support to remove the requirement that an
interim waiver is automatically granted after 45 days. (Joint
Commenters, No. 69 at pp. 3-4; AHRI, No. 70 at p. 2) AHRI stated that
while interim test procedures are temporary and the impact of harm
would be limited, a fraudulently gained interim test procedure waiver
could result in unfair market impacts. (AHRI, No. 70 at p. 2) AHRI
advocated for affirmative intervention by DOE before an interim waiver
is granted. (Id.) The Joint Commenters stated that they recognize DOE
and manufacturers' interest in ensuring interim waivers are fair and
accurate and a good predictor of the ultimate final test procedure
waiver. (Joint Commenters, No. 69 at pp. 3-4) However, the Joint
Commenters and AHRI stated that the current requirement--that the
petition is deemed granted if DOE does not respond within 45 days of
receipt of a complete notification--should continue to apply in two
cases, specifically: (1) Waivers in which a petitioner seeks an interim
waiver and waiver identical to one already granted to another company
for models with similar technology (i.e., ``same-technology waiver
petitions''); and (2) waiver petitions that seek to extend alternate
test methods granted in existing interim or final waivers to additional
models (i.e., ``waiver extension petitions''). (Joint Commenters, No.
69 at pp. 3-4, AHRI, No. 70 at p. 2) AHRI stated that in these cases,
DOE has already done the resource- and time-intensive work of reviewing
the alternate method of test, and in this case need only decide that
the petition includes models that should be tested in the same way.
(AHRI, No. 70 at p. 2) The Joint Commenters stated that these waivers
do not require the same level of review, should be prioritized, and
when combined with the proposal to make clear the criteria for the
petition to extend a waiver to additional basic models, should reduce
the back-and-forth needed. (Joint Commenters, No. 69 at p. 4)
Similarly, Carrier stated that in cases when the petitioner
provides sufficient data to demonstrate that a request is the same as,
or an extension of, a previously granted waiver petition, DOE should
make a determination within 45 days. (Carrier, No. 66 at p. 2) Lennox
stated that it does not oppose the ``granted by default'' approach
staying in place when it involves a manufacturer simply adding
additional models to an existing waiver or another manufacturer seeking
the same relief that is already granted to a different company;
however, Lennox noted that in these cases, DOE should affirmatively
determine that the applications are administratively complete, publish
receipt of application for such waivers on its website, and also
publish notice of these waivers being granted both on its website and
in the Federal Register. (Lennox, No. 60 at p. 7)
DOE received a comment objecting to its proposal from NAFEM. NAFEM
stated that DOE should precisely define the information needed in a
petition, but that as soon as a company submits a ``complete
petition,'' DOE should make decisions within the existing 45-day
process set forth in the December 2020 final rule. In addition, NAFEM
recognized that there are times when a manufacturer submits a
completely new and different waiver petition and DOE must initiate its
review from scratch. In such cases, NAFEM stated that it would support,
as a compromise alternative, DOE being allowed to request an additional
45 days (for a total of 90 days) for its review and response on new
waiver petitions. (NAFEM, No. 62 at p. 3)
BWC noted that DOE is reversing course based on ``increased risk to
[[Page 70950]]
consumers of purchasing noncompliant products and decreased energy
savings'' and requested that DOE expand on what data supports that the
delayed energy savings from utilizing a test procedure waiver would be
less than from potential noncompliant products on the market. (BWC, No.
68 at p. 1)
DOE has considered the suggestions by multiple commenters to
maintain the automatic granting of interim waivers after 45 days for
same-technology waiver petitions or waiver extension petitions.
Contrary to assertions by commenters, DOE applies the same level of
rigor and scrutiny during its review of same-technology waiver
petitions and waiver extension petitions as it does for the initial
interim waiver petitions. DOE reviews the details of each same-
technology waiver petition to ensure that the alternate test procedure
specified in the initial interim waiver would yield results that
accurately reflect the product's energy consumption during an average
use cycle so as to provide materially accurate comparative data.
Despite employing the same or similar technology as a previously
granted waiver, each manufacturer that petitions for a same-technology
waiver may have unique product designs that require a similar timeframe
for evaluation by DOE as the basic model subject to the original
waiver, which as described, may require more than 45 business days.
Similarly for waiver extension petitions, DOE must be afforded
sufficient opportunity to review a waiver extension request to confirm
not only that the additional basic models employ the same technology as
the basic model set forth in the original petition, but that the
alternate test procedure specified for the original basic model would
evaluate the performance of the additional basic models in a manner
representative of the energy and/or water consumption characteristics
of the additional basic models.
The comment from BWC refers to DOE's statement in the August 2021
NOPR that DOE had tentatively determined that the changes under the
December 2020 Final Rule may not allow DOE sufficient time to review an
alternate test procedure, leading to increased risks to consumers of
purchasing noncompliant products and decreased energy savings. 86 FR
46793, 46795. By this, DOE meant that the current process--in which an
interim waiver will be automatically granted if DOE fails to respond to
the request within 45 business days of receipt of the petition--
increases the risk (with respect to the previous interim waiver process
prior to the December 2020 Final Rule) that a manufacturer could place
a product into the market for which the results of the suggested test
procedure are not representative and therefore not appropriate for
determining compliance with the applicable energy conservation
standard. This risks the product not being complaint with the
applicable standard when tested according to a test procedure that is
not representative of average energy use. Placing a non-compliant
product into the market would result in increased energy use (i.e.,
decreased energy savings) by consumers.
DOE agrees with other commenters that any interim waiver granted
should be the result of an affirmative determination by DOE. DOE has an
obligation under EPCA to ensure that all test procedures authorized by
the Department yield measurements of energy consumption that are
representative of actual product or equipment performance. (42 U.S.C.
6293) A DOE test procedure that inaccurately measures energy use of a
covered product or equipment could place noncompliant products in the
market and/or inadvertently allow for the backsliding of energy
conservation measures in violation of 42 U.S.C. 9265(o).
DOE also considered the suggestion that DOE be allowed to request
an additional 45 days (for a total of 90 days) for its review and
response on new waiver petitions. Despite the longer suggested
timeframe for review, this approach would maintain the possibility of
an interim waiver being automatically granted after 90 days, presenting
the same risks to consumers as the current process, as described above.
Therefore, for the reasons discussed, DOE is removing the provision
that interim waivers will be automatically granted if DOE fails to
respond to the request within 45 business days of receipt of the
petition.
B. Timeframe for Review of Interim Waivers
Separately from DOE's consideration of and determination not to
automatically grant an interim waiver if DOE fails to respond to the
request within 45 business days of receipt of the petition, DOE
reconsidered whether a 45-business-day review timeframe provides
sufficient time for DOE to properly evaluate a proposed alternate test
procedure. As discussed in the December 2020 Final Rule, DOE's analysis
of the processing time of 33 interim waivers between 2016 and 2018
showed review periods between the receipt of the waiver application and
issuance of an interim waiver significantly longer than 45 business
days. 85 FR 79802, 79812-79813. Of those 33 interim waiver requests,
only four were granted within 45 business days of receipt. Id. On
average, interim waiver requests received in 2016 took 162 days to
resolve, those received in 2017 took 202 days, and those received in
2018 took 208 days. Id. DOE noted in the December 2020 Final Rule that
this data illustrated that there was a need to issue decisions on
interim waiver requests in a more timely manner. 85 FR 79802, 79813.
After further consideration, DOE acknowledges that there is a need
for improvement in its process to more timely address interim waivers,
but DOE has determined that the 45-business day timeframe implemented
by the December 2020 Final Rule is often too brief and rigid. An
inflexible rule can fail to take relevant circumstances into account.
As seen with the GEA and AHT petitions, a longer timeframe is often
needed for DOE to understand the product, the proposed alternate test
procedure, and whether that alternate test procedure will accurately
reflect the product's energy consumption during an average use cycle.
Many delays in processing waiver and interim waiver petitions arise
from iterative efforts by DOE to obtain sufficient information upon
which to base a decision to grant an interim waiver. Determining that
an alternate test procedure complies with EPCA also requires careful
analysis and sometimes requires testing by DOE. DOE stated in the
December 2020 Final Rule that a downside of this iterative process is
the inability of interested stakeholders to participate in the
development of an interim test procedure. 85 FR 79802, 79809. The
amendments adopted in this final rule maintain transparency provided
through posting of a complete petition within five days of its receipt
and afford the development, as necessary, of the alternate test
procedure on which stakeholders will have the opportunity to comment.
Further, the regulations continue to require notification of a
requested alternated test procedure to affected manufacturers and
opportunity for comment. 10 CFR 430.24(b)(iv) and 10 CFR
431.401(b)(iv). DOE has a statutory obligation under EPCA to ensure
that alternative test methods authorized by the Department yield
measurements of energy consumption that are representative of actual
performance. Providing a longer, flexible timeframe that better
reflects DOE's experience will allow DOE to
[[Page 70951]]
complete the analysis required, while providing a realistic timeframe
on which manufacturers can more reasonably rely.
Accordingly, DOE proposed in the August 2021 NOPR that DOE will
make best efforts to respond to interim waiver requests within 90
business days. Based on DOE's experience, a period of 90 business days
would still represent an improvement in response time, and in most
cases would allow DOE sufficient time for proper analysis, review, and
testing. Importantly, this longer timeframe would ensure that DOE can
fulfill its obligation under EPCA to ensure that alternative test
methods yield results that are representative of the product's true
energy (or water) consumption characteristics so as to provide
materially accurate comparative data, while still accounting for
circumstances that dictate a lengthier period than the current 45-day
requirement for consideration of a particular request.
DOE requested comments, information, and data on its proposal that
DOE will make best efforts to respond to an interim waiver request
within 90 business days.
DOE received comments expressing support for its proposal that DOE
will make best efforts to respond to an interim waiver request within
90 business days from the Joint Attorneys General, DEEP, CA IOUs, and
Joint Advocates. (Joint Attorney Generals, No. 63 at pp. 1-2,; DEEP,
No. 59 at p. 1-2; CA IOUs, No. 64 at p. 1; Joint Advocates, No. 65 at
p. 1) The Joint Advocates stated that DOE has proposed a balanced
approach that recognizes the complexity of many waiver applications and
the time that can be required for review, yet still provides applicants
a prompt response. (Joint Advocates, No. 65 at p. 1) The CA IOUs stated
that the proposal strikes the proper balance between making the interim
waiver process quicker and more predictable, and ensuring DOE
compliance with EPCA. (CA IOUs, No. 64 at p. 1) DEEP stated that this
proposal should give DOE a more realistic amount of time to thoroughly
review the request and to meet its obligations under EPCA. (DEEP, No.
59 at p. 2) The Joint Attorneys General stated that these changes are
critically important to balance DOE's statutory obligations under EPCA
and manufacturers' desire for timely review of their waiver
applications; allowing DOE to obtain sufficient information from
manufacturers, understand the product, validate the alternate test
procedure, and complete the analysis required. (Joint Attorneys
General, No. 63 at p. 2)
Carrier expressed qualified support of the proposal that DOE will
make best efforts to respond to an interim waiver request within 90
business days, suggesting that DOE consider modifying the proposal to
make an exception for certain cases noted previously, in which 45 days
should be required. (Carrier, No. 66 at p. 2)
DOE received comments opposing DOE's proposal that it make its best
efforts to respond within 90 days from the Joint Commenters, BWC, MIAQ,
AHRI, Lennox, and NAFEM. (Joint Commenters, No. 69 at p. 3; BWC, No. 68
at p. 1; MIAQ, No. 61 at p. 2; AHRI; No. 70 at p. 2; Lennox, No. 60 at
p. 4; NAFEM; No. 62 at p. 3) As stated previously, NAFEM supported the
requirement to make a decision in 45 days or in certain circumstances a
maximum of 90 days. (NAFEM, No. 62 at p. 3) BWC stated that, in
acknowledgment that not all waiver requests are equal nor are submitted
correctly the first time, it would prefer that DOE designate a longer,
guaranteed time to respond to the waiver request versus a shorter,
uncertain time, and that the timeline should be measured from when the
test procedure was received. BWC did not identify a specific
alternative timeline. (BWC, No. 68 at p. 1) The Joint Commenters
asserted that it was unlikely that the 90-day timeline would be met by
DOE and that there would be no incentive pushing DOE to meet that goal.
Instead, the Joint Commenters proposed that DOE be required to complete
review of the petition for interim and final waiver within 120 days.
The Joint Commenters noted that this is longer than the 90 days that
DOE proposed and would help to ensure that the stricter timeline can be
met even under exigent circumstances. The Joint Commenters further
asserted that a strict timeline is necessary to balance the sometimes
competing needs for thoroughly vetted alternate procedures that are
approved and finalized relatively quickly. (Joint Commenters, No. 69 at
pp. 1-3)
Similarly, MIAQ and Lennox stated that DOE should be required to
make a decision within a defined deadline. (MIAQ, No. 61 at p. 2;
Lennox, No. 60 at p. 4) Lennox stated that DOE should have to respond
within 90 to 120 days, measured from when DOE receives a complete
petition (Lennox, No. 60 at p. 3). Lennox stated that DOE must
promulgate an orderly, predictable, reasonably expeditious process for
processing interim test procedure waivers, while also providing for
transparency and stakeholder comment before issuing an interim waiver.
Toward that end, Lennox said that DOE should (1) post to its public
website an interim waiver petition immediately upon receipt (consistent
with current regulations), and not wait to make such a posting until
DOE deems those materials administratively ``complete;'' (2) within 30
days of receipt of a petition, if the request includes a technically
feasible test procedure and appears administratively complete, DOE
should make a preliminary finding in that regard and post a subsequent
update to the website when DOE deems the petition complete and submit
the petition and supporting documentation to the Federal Register for
expedited publication for a 30 day public comment period; or if the
request is not yet complete, notify the petitioner within that 30 day
period; and (3) if stakeholders do not identify any problems during the
comment period, DOE should render a decision within 30 days after the
comment period close, or if problems are identified, DOE should either:
(a) Afford itself an additional 30 days for review; or (b) deny or
grant the waiver, potentially with modifications. (Lennox, No. 60 at
pp. 4-6) Lennox also opposed removal of the language specifying when a
petition is considered ``received'' by DOE, stating that some
regulatory indication of this is appropriate for triggering obligations
and timelines. (Lennox, No. 60 at p. 4) Lennox recommended that DOE
seek comment before granting an interim waiver. (Lennox, No. 60 at p.
7)
MIAQ stated that DOE should be permitted no more than 120 days to
process the interim waiver from the time that it is filed. This would
include 30 days to review for completeness and publish in the Federal
Register and on DOE's website, a 30-day comment period, a 30-day period
for DOE to review comments and determine whether to grant or deny the
waiver, and an additional 30-day optional review period. (MIAQ, No. 61
at p. 2)
AHRI similarly stated that DOE should be permitted no more than 120
days to process an interim waiver application from the time that it is
filed. AHRI stated that DOE should afford stakeholders a thirty-day
comment period after a proposal is published. It stated that: (1) If
stakeholders and DOE do not identify any problems, DOE should be
obligated to issue the interim waiver thirty days after the comment
period closes; and (2) if DOE or other commenters note problems with
the waiver application, DOE can elect to either afford itself an
additional thirty days for investigation and review, or deny or grant
the waiver, potentially with modifications. (AHRI, No. 70 at p. 2)
[[Page 70952]]
DOE has considered the suggestions by some commenters to implement
a timeline that is longer than proposed 90-day target (e.g., 120 days),
but that would be mandatory. Although it is likely that 120 days would
be sufficient for the vast majority of waiver and interim waiver
petitions, any mandatory timeline that would result in the automatic
granting of an interim waiver would introduce the previously described
risks of an alternate test procedure being used that produces results
that are unrepresentative, does not provide accurate comparative
results, and/or allows a manufacturer to place a product in the market
that does not meet applicable energy conservation standards.
Regarding the appropriateness of the proposed 90-day target, DOE's
evaluation of waiver and interim waiver petitions since the December
2020 Final Rule indicates that a 90-day period of evaluation is
achievable in most cases. Those cases that required longer than 90 days
since the submission of the initial petition have been cases where DOE
determined that initial petition to be invalid, or where additional
time has been required for DOE to actively engage with the manufacturer
to provide additional technical information necessary for DOE to
evaluate the merits of the petition.
DOE also surmises that maintaining a mandatory timeline may
increase the likelihood of an interim waiver denial in the event that
there is insufficient time for DOE to resolve outstanding questions
regarding the petition; whereas, affording a longer time period within
which to actively engage the manufacturer could result in a petition
being granted that would have otherwise been denied under a mandatory
timeline scenario.
Regarding the timing of when DOE posts a waiver or interim waiver
application to its website, DOE disagrees with commenters that
suggested that DOE post an interim waiver petition on its public
website immediately upon receipt, rather than waiting until DOE deems
the petition to be complete. Most notably, DOE has received multiple
interim waiver petitions containing requests for confidential treatment
of information \9\ without a corresponding copy from which the
information claimed to be confidential has been properly deleted
consistent with the request.\10\ In such cases, DOE engages with the
manufacturer to resubmit the petition with the information for which
confidential treatment is requested properly redacted before posting to
DOE's website. This is one of several ``checks'' that DOE performs on
every waiver and interim waiver petition to determine whether an
application is complete. Were DOE to be required to post a waiver or
interim waiver petition to its website before determining that the
petition is complete, CBI could be disclosed inadvertently, among other
risks.
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\9\ Pursuant to 10 CFR 430.27(b)(1)(iv) and 10 CFR
431.401(b)(1)(iv), 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.
\10\ For example, in one such case, the redacted information
could be discerned by copying and ``pasting'' the blacked-out text
from the PDF document into a new document.
---------------------------------------------------------------------------
Once complete, a petition is posted to DOE's website providing
interested parties notification that DOE is evaluating a request for an
interim waiver along with the substance of that petition. The
regulations continue to require petitioners to notify potentially
interested manufacturers. 10 CFR 430.27(c)(1) and 10 CFR 431.401(c)(1).
DOE notes that neither the process established under the December 2020
Final Rule, nor the process adopted in this final rule provide for a
formal comment process for petitions posted to DOE's website. The
amendments adopted today continue to provide for publication in the
Federal Register notification of receipt of a petition and grant or
denial of an interim waiver. Id.
DOE considered the potential benefits and risks of allowing the
opportunity for public comment before granting a decision on an interim
waiver petition. However, introducing a comment period before rendering
a decision on an interim waiver petition would prolong the review
process, outweighing the benefit of early stakeholder input. As
discussed, the current process affords interested parties the ability
to comment on the alternate test procedure granted in an interim waiver
before DOE makes a determination whether to grant a waiver.
After carefully considering the comments received on this topic,
DOE has decided to implement a 90-day target for reviewing interim
waiver petitions, which would not be mandatory, and which would provide
a more realistic and appropriate timeline for evaluating interim waiver
petitions than the current mandatory 45-day period. As discussed, DOE's
recent experience indicates that a 90-day timeline should be sufficient
for the vast majority of interim waiver petitions; and the flexibility
to extend beyond 90 days as needed will afford additional time for
those petitions for which a longer timeframe is necessary. This final
rule implements the 90-day target as proposed in the August 2021 NOPR.
C. Clarification of Necessary Contents of Interim Waiver
To clarify the necessary contents of a petition for interim waiver,
DOE proposed amendments to 10 CFR 430.27(b) and 10 CFR 431.401(b),
which specify the requirements for petition content and publication. As
noted previously, many of the delays in interim waiver processing arise
from the back-and-forth between DOE and manufacturers to ensure that
the manufacturer has submitted the necessary information to support its
request. Before DOE can act on a request for interim waiver, DOE may
correspond with a manufacturer several times to obtain all necessary
information and ensure that the manufacturer has submitted a complete
petition. In addition, to formalize the process by which DOE will
respond to incomplete petitions, DOE proposed to specify at 10 CFR
430.27(e)(2) and 10 CFR 431.401(e)(2) that a petition for interim
waiver will be considered incomplete if it does not meet the content
requirements of 10 CFR 430.27(b) or 10 CFR 431.401(b), as applicable.
In such a case, DOE would notify the petitioner of an incomplete
petition via email. DOE would continue the iterative process by which
DOE assists manufacturers in completing their petitions. Consistent
with these proposals, DOE also proposed to state at 10 CFR 430.27(e)(1)
and 10 CFR 431.401(e)(1) that DOE will post a petition for interim
waiver on its website within five business days of receipt of a
complete petition.
DOE similarly proposed amendments to 10 CFR 430.27(g) and 10 CFR
431.401(g) to specify the information that must be provided in a
request to extend a waiver to additional basic models. Specifically,
DOE proposed that the petition for extension must identify the
particular basic model(s) for which a waiver extension is requested,
each brand name under which the identified basic model(s) will be
distributed in commerce, and documentation supporting the claim that
the additional basic models employ the same technology as the basic
model(s) set forth in the original petition. Including these
requirements in the regulations would make clear to manufacturers the
[[Page 70953]]
information required for an extension request and allow DOE to process
such requests more expeditiously.
DOE requested comments on its proposals to specify the contents of
a complete petition for interim waiver, to formalize the process by
which DOE will respond to incomplete petitions, and to specify the
information that must be provided in a request to extend a waiver to
additional basic models.
DOE received comments expressing support for these proposals from
multiple interested parties. The Joint Advocates stated that DOE has
made clear in the proposed rule what constitutes a complete
application. (Joint Advocates, No. 65 at p. 1-2) The CA IOUs stated
that they appreciate DOE's efforts to clarify its data needs for waiver
evaluation and anticipate that this will limit confusion and
unnecessary delays so that DOE can more easily strive towards the new
proposed evaluation period. (CA IOUs, No. 64 at p. 1) DEEP stated that
these proposed amendments will help increase clarity and transparency
on the requirements for a complete interim waiver request and that
these changes will benefit both the manufacturer(s) submitting the
request and competitors subject to the same test procedure. DEEP also
supported allowing iterative communication and assistance between DOE
and a petitioner. (DEEP, No. 59 at p. 2)
The Joint Commenters, Carrier, and Lennox supported DOE's proposals
to establish criteria for determining when an interim test procedure
waiver application is complete. (Joint Commenters, No. 69 at p. 4;
Carrier, No. 66 at p. 2; Lennox, No. 60 at p. 3) The Joint Commenters
supported DOE reviewing each application to ensure completeness. (Joint
Commenters, No. 69 at p. 4) Lennox added that the regulations should
affirmatively require that an interim waiver application include an
appropriate alternate test method before being deemed administratively
complete. (Lennox, No. 60 at p. 3)
NAFEM stated that to maintain the 45-day review, NAFEM could
support better guidance and clarity regarding what constitutes a
``complete petition'' to ensure that DOE received all of the necessary
information for its decision-making process upfront. (NAFEM, No. 62 at
p. 3)
The Joint Commenters and MIAQ supported a clearly articulated
process by which DOE will respond to incomplete petitions. (Joint
Commenters, No. 69 at p. 4; MIAQ, No. 61 at p. 2) BWC supported DOE's
proposal to conduct communication with a manufacturer to clarify a
waiver request via email versus formal letters. (BWC, No. 68 at p. 1)
DOE also received comments requesting additions to the proposal.
BWC recommended that DOE provide a template or example of what
information would ensure a proper submittal instead of just including
it as text in the Code of Federal Regulations. (BWC, No. 68 at p. 1)
The Joint Commenters and Carrier requested that DOE include a
requirement that DOE respond to the petitioner within 10 business days
regarding the completeness of their petition. (Carrier, No. 66 at p. 2;
Joint Commenters, No. 69 at p. 4) Carrier requested that DOE consider
including language to clearly articulate the iterative process by which
DOE will assist manufacturers in completing their petitions. (Carrier,
No. 66 at p. 2)
The Joint Commenters, Carrier, and MIAQ supported DOE's proposal to
state at 10 CFR 430.27(e)(1) and 10 CFR 431.401(e)(1) that DOE will
post a petition for interim waiver on its website within five business
days of receipt of a complete petition. (Carrier, No. 66 at p. 2, Joint
Commenters, No. 69 at p. 4; MIAQ, No. 61 at p. 2) Joint Advocates also
supported this proposal, stating that posting complete applications in
5 days will improve transparency, providing notice to competitors and
others that an application is under consideration. (Joint Advocates,
No. 65 at p. 1-2) The Joint Commenters and MIAQ suggested DOE promote
transparency by sending an email to the appropriate mailing lists to
announce posting of a complete waiver petition. (Joint Commenter, No.
69 at p. 4; MIAQ, No. 61 at p.2)
Joint Commenters, Carrier, and MIAQ supported DOE's proposed
amendments to 10 CFR 430.27(g) and 10 CFR 431.401(g) to specify the
information that must be provided in a request to extend a waiver to
additional basic models. (Carrier, No. 66 at p. 2; Joint Commenters,
No. 69 at p. 4; MIAQ, No. 61 at p.2) NAFEM stated that there must be a
clear and precise mechanism for extending waivers to additional basic
models, noting that waivers must allow for manufacturers that are
continuing to improve the products subject to the waiver, which then
become similar but not identical products that should also be covered
by the waiver. (NAFEM, No. 62 at p. 3)
DOE appreciates the suggestion by BWC regarding the usefulness of a
template that would clearly outline the information required to ensure
a complete waiver or interim waiver petition, which manufacturers could
reference when drafting a petition. DOE will consider developing such a
template or an example submission that could be made available on the
Department's waiver website \11\ following the effective date of this
final rule.
---------------------------------------------------------------------------
\11\ DOE's waiver website is available at www.energy.gov/eere/buildings/current-test-procedure-waivers.
---------------------------------------------------------------------------
Regarding the suggestion to require that DOE respond to the
petitioner within 10 business days regarding completeness of petition--
as a regular course of action, DOE typically notifies a manufacturer
regarding the completeness of a petition within 5 business days of
submission (as part of its obligation to satisfy the current
requirements at 10 CFR 430.27(e)(1)(i) and 431.401(e)(1)(i) to post a
petition for an interim waiver on its website within 5 business days of
receipt). DOE believes that its current practice in this regard is
working well and that an additional regulatory requirement regarding
notification of completeness is not needed at this time.
Regarding the suggestion for DOE to clearly articulate in the
waiver regulations the iterative process by which DOE will assist
manufacturers in completing their petitions--in DOE's experience, in
cases where DOE has determined that a submitted petition is incomplete,
DOE notifies the manufacturer within 5 business days and explains how
the petition is incomplete. The manufacturer then makes the required
corrections and resubmits the petition. DOE reviews the revised
petition and communicates any deficiencies to the manufacturer via
email, as necessary, or proceeds with processing the petition if the
revised petition meets the content requirements of 10 CFR 430.27(b) or
10 CFR 431.401(b). DOE believes that specifying the content
requirements of a complete petition for interim waiver and the method
by which DOE will communicate with manufacturers is sufficiently
detailed and that an additional regulatory requirement regarding the
process by which DOE assists manufacturers in submitting a complete
petition is not needed at this time.
Regarding the suggestion by multiple commenters that DOE send an
email to the appropriate mailing lists to announce posting of a
complete waiver petition--DOE appreciates the suggestion and will
consider incorporating this approach into its general practices moving
forward. DOE notes that it already uses this communication approach for
most
[[Page 70954]]
regulatory actions such as issuance of a test procedure rulemaking
notice. DOE further notes that 10 CFR 430.27(c)(1) and 10 CFR
431.401(c)(1) require each petitioner for interim waiver, 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 or equipment class (as specified in 10
CFR 430.32 or the relevant subpart of 10 CFR part 431) and of other
product or equipment classes known to the petitioner to use the
technology or have the characteristic at issue in the waiver.\12\ The
notification 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 notification must also
include a statement that DOE will receive and consider timely written
comments on the petition for waiver.
---------------------------------------------------------------------------
\12\ Similarly, 10 CFR 430.27(c)(2) and 10 CFR 431.401(c)(2)
require that 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, must, within five working days of such publication, notify
in writing all known manufacturers of domestically marketed units of
the same product or equipment class (as listed in 10 CFR 430.32 or
the relevant subpart of 10 CFR part 431) and of other product or
equipment classes known to the petitioner to use the technology or
have the characteristic at issue in the waiver. The notification
must include a statement that DOE has published the petition in the
Federal Register and the date the petition for waiver was published.
---------------------------------------------------------------------------
In this final rule, DOE finalizes the amendments as proposed in the
August 2021 NOPR to specify the contents of a complete petition for
interim waiver, to formalize the process by which DOE will respond to
incomplete petitions, and to specify the information that must be
provided in a request to extend a waiver to additional basic models.
D. Duration of Applicability of Interim Waivers and Waivers
DOE proposed amendments to 10 CFR 430.27(h) and 10 CFR 431.401(h),
which specify the duration of applicability of interim waivers and
waivers. The current regulations provide that upon publication in the
Federal Register of a new or amended test procedure that addresses the
issue(s) presented in a waiver, an interim waiver will cease to be in
effect. 10 CFR 430.27(h)(1)(ii) and 10 CFR 431.401(h)(1)(ii). Under
this provision, a manufacturer can no longer rely on an interim waiver
upon the publication date of a new or amended test procedure. In
contrast, final waivers automatically terminate on the date on which
use of such test procedure is required to demonstrate compliance (i.e.,
a certain amount of time after the date of publication in the Federal
Register). To ensure equitable treatment of final waivers and interim
waivers that are in place at the time a test procedure final rule
publishes, DOE proposed to specify that final waivers and interim
waivers both automatically terminate on the compliance date of the
amended test procedure that addresses the issues presented in a waiver
or interim waiver.
DOE requested comments on its proposal to specify that interim
waivers in place at the time a test procedure final rule is published
will automatically terminate on the compliance date of the amended test
procedure.
Joint Commenters, Carrier, and MIAQ supported DOE's proposal to
specify that final waivers and interim waivers both automatically
terminate on the compliance date of the amended test procedure, stating
that this would ensure equitable treatment of manufacturers complying
under both final waivers and interim waivers. (Carrier, No. 66 at p. 3;
MIAQ, No. 61 at p. 3; Joint Commenters, No. 69 at p. 4) BWC supported
waivers and interim waivers terminating when the new or revised test
procedure becomes effective, rather than when it is published. (BWC,
No. 68 at p. 2)
NAFEM stated that a blanket rule on terminating interim waivers is
improper and that only waivers that were clearly addressed by the new
test procedure can be terminated, but that others not addressed should
be allowed to stand, as appropriate. (NAFEM, No. 62 at p. 4)
Lennox noted that the proposed regulatory text for the commercial
provisions at 10 CFR 431.401(h)(2) is missing the word ``terminate.''
(Lennox, No. 60 at p. 8)
The proposed provisions specified that when DOE amends the test
procedure to address the issues presented in a waiver [emphasis added],
the waiver or interim waiver would automatically terminate on the
compliance date of the amended test procedure. Were DOE to publish an
amended test procedure that did not address the issues presented in a
particular waiver or interim waiver (e.g., an amended test procedure
was necessary to make limited and specific corrections, or the timing
of a test procedure final rule did not afford full consideration of a
granted waiver or interim waiver), such waiver or interim waiver would
continue to apply until such time as DOE amends the test procedure to
address the issues presented in such waiver or interim waiver.
This final rule finalizes the amendments as proposed in the August
2021 NOPR to specify that when DOE amends a test procedure to address
the issues presented in a waiver, the waiver or interim waiver will
automatically terminate on the compliance date of the amended test
procedure. This final rule also adds the word ``terminate'' at 10 CFR
431.401(h)(2), which was missing in the proposed regulatory text of the
August 2021 NOPR. In addition, DOE is also adopting language at 10 CFR
430.27(h)(4) and 10 CFR 431.401(h)(4) to specify when an existing
waiver terminates following the issuance of a modified waiver.
E. Transition Period for Compliance With Decision and Order or Amended
Test Procedure
DOE proposed amendments to 10 CFR 430.27(i) and 10 CFR 431.401(i)
(Compliance Certification) to clearly state the transition period for
compliance with a decision and order or test procedure final rule.
These amendments are necessary to make clear the transition periods for
scenarios not previously addressed by these provisions. As proposed,
these provisions would apply to required certifications and any
representations. DOE proposed to specify at 10 CFR 430.27(i)(1) \13\
and 10 CFR 431.401(i)(1) that manufacturers have 180 days (or up to 360
days, as applicable for commercial equipment and as specified by DOE in
the final decision and order) to comply with a decision and order or
test procedure methodology, unless otherwise specified by DOE in the
decision and order. DOE also proposed to specify at 10 CFR 430.27(i)(1)
and 10 CFR 431.401(i)(1) that once a manufacturer uses the decision and
order test procedure methodology in a certification report or any
representation, all subsequent certification reports and any
representations would be required to be made using the decision and
order test procedure methodology while the waiver is valid.\14\
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\13\ In the August 2021 NOPR, these proposed amendments were
inadvertently included in the proposed regulatory text at 10 CFR
430.27(i) rather than at 10 CFR 430.27(i)(1) as indicated by the
preamble discussion.
\14\ This aspect of the proposal was included in the proposed
regulatory amendments at 10 CFR 431.401(i)(1) but was inadvertently
omitted from the proposed amendments to 10 CFR 430.27(i)(1).
---------------------------------------------------------------------------
In addition, DOE proposed similar amendments to clarify when
certification reports and any representations are required to be based
on a new or amended test procedure. Specifically, DOE proposed that 10
CFR
[[Page 70955]]
430.27(i)(2) \15\ and 10 CFR 431.401(i)(2) would provide that when DOE
publishes a new or amended test procedure, certification reports and
any representations may be based on the testing methodology of an
applicable final waiver or interim waiver, or the new or amended test
procedure until the compliance date of such test procedure. Thereafter,
certification reports and any representations must be based on the test
procedure final rule methodology unless specified by DOE in the test
procedure final rule. Consistent with this provision, as necessary, DOE
would be able to specify in a test procedure final rule that a
manufacturer need not recertify basic models where testing under the
interim waiver or final waiver test procedure methodology, as compared
to the amended test procedure methodology, does not result in a change
in measured energy use. DOE also proposed to specify that once a
manufacturer uses the test procedure final rule methodology in a
certification report or any representation, all subsequent
certification reports and any representations must be made using the
test procedure final rule methodology.
---------------------------------------------------------------------------
\15\ The proposed amendments to 10 CFR 430.27(i)(2) were
inadvertently omitted from the proposed amendments to the CFR
regulatory text in the August 2021 NOPR.
---------------------------------------------------------------------------
DOE requested comments on the proposed amendment to 10 CFR
430.27(i) and 10 CFR 431.401(i).
Carrier, MIAQ and the Joint Commenters supported the proposed
changes to 10 CFR 430.27(i) and 10 CFR 431.401(i). (Carrier, No. 66 at
p. 3, MIAQ, No. 61 at p. 2, Joint Commenters, No. 69 at p. 5) Carrier
stated that these amendments would add additional clarity to the
transition period scenarios. (Carrier, No. 66 at p. 3) The Joint
Commenters stated that the proposed changes would provide a consistent
process, promote certainty, eliminate duplicative testing, and reduce
unnecessary burden, and added that the 180-day period would provide
manufacturers a reasonable timeline to retest and recertify. (Joint
Commenters, No. 69 at p. 5)
The Joint Commenters stated that DOE should maintain the existing
language in these sections specifying that when basic models have
already been certified using the test procedure permitted following DOE
grant of an interim test procedure waiver, a manufacturer is not
required to re-test and re-rate those basic models under certain
circumstances, rather than the simplified language that DOE proposed.
(Joint Commenters, No. 69 at p. 5) Lennox noted that DOE appears to
have inadvertently left out transition provisions in 10 CFR 430.27(i),
with the preamble describing proposals to 10 CFR 430.27(i)(1) and (2),
which were not provided in the regulatory text. Lennox supported the
proposed language as described in the preamble for these sections.
(Lennox, No. 60 at p. 8)
Regarding the suggestion from the Joint Commenters that
manufacturers not be required to re-test and re-rate under certain
circumstances, were DOE to finalize in a decision and order an
alternate test procedure that differs from the alternate test procedure
specified in an interim waiver, or finalize an amended test procedure
that differs from a granted alternate test procedure, any such change
would be the result of a determination by DOE, supported by information
and/or data, that the subsequent test procedure more appropriately
provides representative results. However, the final rule also retains
the flexibility for DOE to specify in the decision and order that a
manufacturer is not required to re-test and re-rate basic models
certified to an interim waiver under certain circumstances. As
discussed above and as noted by commenters, the proposed amendments to
the regulatory text at 10 CFR 430.27(i) inadvertently omitted language
reflecting this intention in the context of consumer products. This
final rule corrects this language and reflects the proposed amendments
provided at 431.401(i), consistent with the intent of the preamble
discussion in the August 2021 NOPR. DOE is also adopting language at 10
CFR 430.27(i)(3) and 10 CFR 431.401(i)(3) to explicitly provide that a
manufacturer would have 180-360 days following a modification to a
decision and order to comply with any such modification.
F. Consistency With Enforcement Requirements
DOE proposed amendments to 10 CFR 430.27(j) and 10 CFR 431.401(j)
(Petition for waiver required of other manufacturers) for
simplification and consistency with the enforcement requirements at 10
CFR part 429. Under 10 CFR 430.27(j) and 10 CFR 431.401(j)
manufacturers of products or equipment employing a technology or
characteristic for which a waiver was granted for another basic model
must also seek a waiver for basic models of their product or equipment.
Under these provisions, manufacturers currently distributing such
products in commerce have 60 days to submit a waiver application, and
manufacturers of such products that are not currently distributing such
products in commerce must petition for and be granted a waiver prior to
distribution in commerce. When originally implemented, the intent of
these provisions was to ensure that similar products are rated in a
comparable manner. 77 FR 74616, 74618. As discussed in the August 2021
NOPR, DOE sought to preserve this intent, but believes this language to
be confusing when read in context with 10 CFR part 429. Pursuant to 10
CFR 429.12, a basic model must be certified prior to distribution in
commerce, and that certification must be based on testing conducted in
conformance with the applicable test requirements prescribed in 10 CFR
parts 429, 430 and 431, or in accordance with the terms of an
applicable test procedure waiver. See 10 CFR 429.12(c)(2).
Manufacturers must comply with 10 CFR part 429 prior to distributing
their product in commerce (i.e., no grace period is provided), and 10
CFR part 429 draws no distinction between models currently being
distributed and models that will be distributed in the future. To align
with 10 CFR part 429, DOE proposed to remove the specification of a 60-
day period and to make no distinction between models currently being
distributed and models that will be distributed in the future. DOE
stated in the August 2021 NOPR that it believes the proposed amendments
would continue to achieve the original intent of paragraph (j) while
better aligning with 10 CFR part 429.
DOE requested comments on the proposed amendment to 10 CFR
430.27(j) and 10 CFR 431.401(j).
Carrier and MIAQ supported DOE's proposal to amend 10 CFR 430.27(j)
and 10 CFR 431.401(j) for simplification and consistency with the
enforcement requirements at 10 CFR part 429. (Carrier, No. 66 at p. 3;
MIAQ, No. 61 at p. 3) Carrier supported removing the 60-day period
given to any manufacturer currently distributing in commerce products
or equipment employing a technology or characteristic for which a
waiver was granted for another basic model. (Carrier, No. 66 at p. 3)
NAFEM opposed DOE's proposed elimination of the 60-day period from
10 CFR 430.27(j) and 10 CFR 431.401(j), noting that small businesses
trying to enter various market segments may need that small timing
buffer to figure out and engage in the test procedure waiver process,
and that there is only a small chance that a small business would
actually introduce products to market within this short period,
creating limited risk of compliance or enforcement issues. (NAFEM, No.
62 at p. 4)
[[Page 70956]]
In response to NAFEM's comments regarding small businesses trying
to enter market segments, DOE notes that the 60-day time period
currently applies only to manufacturers already distributing in
commerce in the United States a product employing a technology or
characteristic that results in the same need for a waiver. The
amendments that DOE is promulgating with this final rule (for example,
more clearly specifying the requirements for submitting a valid waiver
or interim waiver petition) would provide greater clarity and support
for any small business seeking a test procedure waiver. In this final
rule, DOE amends 10 CFR 430.27(j) and 10 CFR 431.401(j) consistent with
the proposal from the August 2021 NOPR.
G. Reasons for Rescinding or Modifying Waiver or Interim Waiver
Finally, DOE proposed an amendment to 10 CFR 430.27(k)(1) and 10
CFR 431.401(k)(1). Currently those provisions provide that 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. As described in the
August 2021 NOPR, DOE envisions that there could be other
circumstances, such as new methodology, that might necessitate
modification of a waiver. As such, DOE proposed to add to this
provision that DOE may rescind or modify a waiver for other appropriate
reasons.
DOE requested comments on the proposed amendment to 10 CFR
430.27(k)(1) and 10 CFR 431.401(k)(1).
The Joint Advocates expressed support for clarifying DOE's
authority to rescind or modify a waiver for appropriate reasons such as
the availability of a new testing methodology. (Joint Advocates, No. 65
at p. 2)
Joint Commenters, Carrier, Lennox, and NAFEM opposed DOE's proposal
to allow DOE to rescind or modify a waiver for ``other appropriate
reasons.'' (Joint Commenters, No. 69 at p. 6; Carrier, No. 66 at p. 4;
Lennox, No. 60 at p. 7; NAFEM, No. 62 at p.3) Carrier stated that this
would create unnecessary ambiguity and urged DOE not to modify the
current provisions at 10 CFR 430.27(k)(1) and 10 CFR 431.401(k)(1).
(Carrier, No. 66 at p. 4) Joint Commenters and Carrier stated that if
DOE wants to modify the alternate test procedure granted in a waiver,
it should do so through amendments to the test procedure and not
through revisions to already-granted waivers. (Joint Commenters, No. 69
at p. 6; Carrier, No. 66 at p. 4) Lennox stated that it is unclear what
DOE means by ``new methodology,'' and that if a defined category of
circumstances exist where DOE may need to rescind an interim waiver,
the regulations should state those circumstances specifically. Lennox
asserted that the ``other appropriate reason'' language is
insufficiently supported in the August 2021 NOPR. (Lennox, No. 60 at p.
7) NAFEM noted that this proposal would return the waiver process to
the completely discretionary realm that, according to NAFEM, caused
industry and DOE to revisit this process over the past several years of
rulemakings. (NAFEM, No. 62 at p. 3)
Joint Commenters, MIAQ, and Lennox recommended that if DOE makes a
determination to rescind a waiver based on false or inaccurate
information, then the 180-day transition timeline should be
discretionary. (Joint Commenters, No. 69 at p. 5; MIAQ, No. 61 at p.3;
Lennox, No. 60 at p. 7)
DOE notes that the current provisions at 10 CFR 430.27(k)(1) and 10
CFR 431.401(k)(1) already provide DOE with authority to modify the
alternate test procedure granted in a waiver under certain
circumstances. In describing in the August 2021 NOPR a ``new
methodology'' as one example of a circumstance that might necessitate
modification of a waiver, DOE was referring to the possibility of a new
or improved alternate test procedure (i.e., methodology) that would
provide results that are more representative than the alternate test
procedure specified in a previously granted waiver. Another appropriate
reason that might necessitate modification of a waiver is DOE being
made aware of additional data that would suggest a more representative
alternate test procedure than the alternate test procedure specified in
a previously granted waiver (e.g., data used as the basis for
specifying a particular test condition or weighting factor). In such
cases, DOE may determine that it is necessary to modify a previous
waiver or interim waiver sooner than would be possible through the test
procedure rulemaking process (e.g., products such as consumer
electronics with rapidly-changing markets; products such as room air
conditioners with highly seasonal markets, in which new products are
typically brought to market annually during a relative short period of
time).
DOE notes that the current regulations at 10 CFR 430.27(k)(3) and
10 CFR 431.401(k)(3) require that any waiver recission or modification
be subject to public comment, which provides interested parties an
opportunity to comment on DOE's proposed recission or modification
before DOE publishes a final decision. DOE did not propose any
amendments to those sections of the CFR and any proposal by DOE to
rescind or modify a waiver, for any reason, will be subject to those
provisions.
In reference to comments regarding the transition timeline, if DOE
were to make a determination to rescind a waiver based on false or
inaccurate information, the provisions at 10 CFR 430.27(k)(5) and 10
CFR 431.401(k)(5) specify that 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 or part 431, as applicable. The manufacturer would thus be
required to certify compliance using the applicable DOE test procedure
no later than the effective date of the rescission. To further clarify
the compliance requirements when a waiver is modified, DOE is adding
provisions at 10 CFR 430.27(i)(3) and 10 CFR 431.401(i)(3) to specify
the applicable grace periods. Similarly, 10 CFR 430.27(h)(4) and 10 CFR
431.401(h)(4) specify when an existing waiver terminates following the
issuance of a modified waiver.
This final rule amends 10 CFR 430.27(k)(1) and 10 CFR 431.401(k)(1)
consistent with the proposal in the September 2021 NOPR.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
The Office of Information and Regulatory Affairs (``OIRA'') in the
Office of Management and Budget (``OMB'') waived Executive Order
(``E.O.'') 12866, ``Regulatory Planning and Review'' review of this
rule.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of a final regulatory flexibility analysis (``FRFA'') for
any final rule where the agency was first required by law to publish a
proposed rule for public comment, unless the agency certifies that the
rule 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
(Aug. 16, 2002), DOE published procedures and policies on
[[Page 70957]]
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 website (www.energy.gov/gc/office-general-counsel).
This final rule would not impose any new requirements on any
manufacturers, including small businesses. This final rule removes the
provision automatically granting interim waivers within 45 business
days of receipt and adds a new provision that DOE will make best
efforts to process an interim waiver request within 90 days of receipt.
While this proposal allows DOE a longer period to review interim waiver
petitions, in light of DOE's Test Procedure Waiver Enforcement Policy
regarding models that are the subject of a pending test procedure
waiver application, DOE expects that many manufacturers will choose to
sell products tested in accordance with a filed petition while awaiting
DOE's decision. As such, DOE anticipates any additional review period
will minimally impact manufacturers, including small businesses.
Lennox stated that any enforcement guidance protections, whereby
DOE refrains from enforcement for products while a waiver request is
pending with DOE, should not arise until at least when DOE has deemed
the relevant interim waiver petition administratively complete and
submitted it for public comment in the Federal Register, in order to
avoid manufacturers seeking unwarranted protection under such
enforcement guidance merely by submitting an incomplete interim waiver
application that has no chance of being approved as submitted. Lennox
stated that a small delay of 30 days for DOE to determine completeness
should not materially adversely impact manufacturers given lengthy
product development cycles and should significantly increase consumer
protections against non-compliant products. (Lennox, No. 60 at p. 8)
As discussed in section III.C, current practice is for DOE to
notify a manufacturer regarding the completeness of a petition within 5
business days of submission. As such, it is highly unlikely that
manufacturers would use this short period between submission and
notification to introduce noncompliant products to the market. DOE has
seen no evidence to suggest that a manufacturer would submit an
incomplete interim waiver petition as a strategy for bringing a non-
compliant unit to the market. Further, DOE's Test Procedure Waiver
Enforcement Policy does not provide boundless enforcement protection
for any manufacturer who has submitted a petition. If the waiver
request is denied, DOE would still employ its enforcement discretion to
determine whether to pursue enforcement action against a manufacturer
for units sold while the (ultimately denied) application was pending.
Under this final rule, DOE is also specifying a number of
requirements for complete petitions for interim waiver and petitions
for an extension of a waiver. These are not new requirements (i.e.,
petitions must currently include this information), but are being
included in DOE's regulations to make clearer to manufacturers the
information required for a petition or an extension request and to
allow DOE to process such requests more expeditiously. DOE expects that
these clarifications will decrease burden on manufactures by reducing
instances of manufacturers submitting incomplete petitions, which will
reduce administrative burden (i.e., avoid the need to re-submit a
petition) and allow manufactures to bring new products to the market
more quickly.
DOE is also eliminating the 60-day period from 10 CFR 430.27(j) and
10 CFR 431.401(j) to align with enforcement requirements at 10 CFR part
429. DOE believes this amendment will minimally impact manufacturers,
including small businesses, as they are already subject to the
requirements at 10 CFR part 429, which provides no grace period.
Finally, DOE believes its revisions to the compliance certification and
representation requirements and clarification of the duration of
interim waivers will provide clarity to manufacturers and does not
increase the burden on manufacturers, including small businesses. DOE
does not anticipate any impact on small businesses as a result of the
amendments to 10 CFR 430.27(k)(1) and 10 CFR 431.401(k)(1).
For these reasons, DOE concludes that this final rule will not have
a ``significant economic impact on a substantial number of small
entities,'' and that the preparation of a FRFA is not warranted. DOE
has submitted a certification and supporting statement of factual basis
to the Chief Counsel for Advocacy of the Small Business Administration
for review under 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act of 1995
Manufacturers of covered products/equipment must certify to DOE
that their products comply with any applicable energy conservation
standards. To certify compliance, manufacturers must first obtain test
data for their products according to the DOE test procedures, including
any amendments adopted for those test procedures. DOE has established
regulations for the certification and recordkeeping requirements for
all covered consumer products and commercial equipment. 76 FR 12422
(March 7, 2011); 80 FR 5099 (Jan. 30, 2015). The collection-of-
information requirement for certification and recordkeeping is subject
to review and approval by OMB under the Paperwork Reduction Act
(``PRA''). This requirement has been approved by OMB under OMB control
number 1910-1400. Public reporting burden for the certification is
estimated to average 35 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.
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.
Specifically, this final rule, addressing revisions to DOE's test
procedure waiver process, does not increase the burden hours or the
number of entities that are subject to reporting under OMB control
number 1910-1400.
D. Review Under the National Environmental Policy Act of 1969
Pursuant to the National Environmental Policy Act (NEPA) of 1969,
DOE has analyzed this proposed action in accordance with NEPA and DOE's
NEPA implementing regulations (10 CFR part 1021). DOE has determined
that this rule qualifies for categorical exclusion under 10 CFR part
1021, subpart D, appendix A5 because it is an interpretive rulemaking
that does not change the environmental effect of the rule and meets the
requirements for application of a CX. See 10 CFR 1021.410. Therefore,
DOE has determined that promulgation of this rule is not a major
Federal action significantly affecting the quality of the human
environment within the meaning of NEPA, and does not require an EA or
EIS.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes
[[Page 70958]]
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 governs and prescribes Federal preemption of State
regulations as to energy conservation for the products that are the
subject of this 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 each executive agency make every reasonable
effort to ensure that when it issues a regulation, 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 has 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. 104-4, sec. 201 (codified at 2 U.S.C. 1531))
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 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 www.energy.gov/gc/office-general-counsel. DOE examined this final
rule according to UMRA and its statement of policy and has 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 under the Unfunded Mandates Reform Act
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 the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant
to OMB Memorandum M-19-15, Improving Implementation of the Information
Quality Act (April 24, 2019), DOE published updated guidelines which
are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has
reviewed this 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
[[Page 70959]]
their expected benefits on energy supply, distribution, and use.
This regulatory action is not a significant regulatory action under
Executive Order 12866. Moreover, it would 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 Consistent With OMB's Information Quality Bulletin for Peer
Review
On December 16, 2004, OMB, in consultation with the Office of
Science and Technology Policy (OSTP), issued its Final Information
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14,
2005). The Bulletin establishes that certain scientific information
shall be peer reviewed by qualified specialists before it is
disseminated by the Federal Government, including influential
scientific information related to agency regulatory actions. The
purpose of the bulletin is to enhance the quality and credibility of
the Government's scientific information. Under the Bulletin, the energy
conservation standards rulemaking analyses are ``influential scientific
information,'' which the Bulletin defines as ``scientific information
the agency reasonably can determine will have or does have a clear and
substantial impact on important public policies or private sector
decisions.'' Id. at 70 FR 2667.
In response to OMB's Bulletin, DOE conducted formal in-progress
peer reviews of the energy conservation standards development process
and analyses and has prepared a Peer Review Report pertaining to the
energy conservation standards rulemaking analyses. Generation of this
report involved a rigorous, formal, and documented evaluation using
objective criteria and qualified and independent reviewers to make a
judgment as to the technical/scientific/business merit, the actual or
anticipated results, and the productivity and management effectiveness
of programs and/or projects. The ``Energy Conservation Standards
Rulemaking Peer Review Report,'' dated February 2007, has been
disseminated and is available at the following website:
www1.eere.energy.gov/buildings/appliance_standards/peer_review.html.
Because available data, models, and technological understanding have
changed since 2007, DOE has engaged with the National Academy of
Sciences to review DOE's analytical methodologies to ascertain whether
modifications are needed to improve the Department's analyses. The
results from that review are expected later in 2021 or early in 2022.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this 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).
VI. 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,
Incorporation by reference, Intergovernmental relations, Small
businesses.
10 CFR Part 431
Administrative practice and procedure, Confidential business
information, Energy conservation test procedures, Incorporation by
reference, and Reporting and recordkeeping requirements.
Signing Authority
This document of the Department of Energy was signed on December 3,
2021, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary
for Energy Efficiency and Renewable Energy, pursuant to delegated
authority from the Secretary of Energy. That document with the original
signature and date is maintained by DOE. For administrative purposes
only, and in compliance with requirements of the Office of the Federal
Register, the undersigned DOE Federal Register Liaison Officer has been
authorized to sign and submit the document in electronic format for
publication, as an official document of the Department of Energy. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Signed in Washington, DC, on December 7, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends parts 430 and
431 of chapter II, subchapter D, of title 10 of the Code of Federal
Regulations, as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
0
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.
0
2. Section 430.27 is amended by revising paragraphs (b), (e), (g), (h),
(i), (j), and (k)(1) to read as follows:
Sec. 430.27 Petitions for waiver and interim waiver of the test
procedure.
* * * * *
(b) Petition content and publication. (1) Each petition for interim
waiver and 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 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) In addition to the requirements in paragraph (b)(1) of this
section, each petition for interim waiver must reference the related
petition for waiver, demonstrate likely success of the petition for
waiver, and address what
[[Page 70960]]
economic hardship and/or competitive disadvantage is likely to result
absent a favorable determination on the petition for interim waiver.
* * * * *
(e) Provisions specific to interim waivers--(1) DOE will post a
petition for interim waiver on its website within 5 business days of
receipt of a complete petition. DOE will make best efforts to review a
petition for interim waiver within 90 business days of receipt of a
complete petition.
(2) A petition for interim waiver that does not meet the content
requirements of paragraph (b) of this section will be considered
incomplete. DOE will notify the petitioner of an incomplete petition
via email.
(3) 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. Notice of DOE's determination on the petition for
interim waiver will be published in the Federal Register.
* * * * *
(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. The petition for extension
must identify the particular basic model(s) for which a waiver
extension is requested, each brand name under which the identified
basic model(s) will be distributed in commerce, and documentation
supporting the claim that the additional basic models employ 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 publishes a decision and order on a petition for
waiver in the Federal Register pursuant to paragraph (f) of this
section, the interim waiver will terminate upon the data specified in
the decision and order, in accordance with paragraph (i) of this
section.
(3) When DOE amends the test procedure to address the issues
presented in a waiver, the waiver or interim waiver will automatically
terminate on the date on which use of that test procedure is required
to demonstrate compliance.
(4) When DOE publishes a decision and order in the Federal Register
to modify a waiver pursuant to paragraph (k) of this section, the
existing waiver will terminate 180 days after the publication date of
the decision and order.
(i) Compliance certification and representations. (1) If the
interim waiver test procedure methodology is different than the
decision and order test procedure methodology, certification reports to
DOE required under 10 CFR 429.12 and any representations must be based
on either of the two methodologies until 180 days after the publication
date of the decision and order. Thereafter, certification reports and
any representations must be based on the decision and order test
procedure methodology, unless otherwise specified by DOE. Once a
manufacturer uses the decision and order test procedure methodology in
a certification report or any representation, all subsequent
certification reports and any representations must be made using the
decision and order test procedure methodology while the waiver is
valid.
(2) When DOE publishes a new or amended test procedure,
certification reports to DOE required under 10 CFR 429.12 and any
representations must be based on the testing methodology of an
applicable waiver or interim waiver, or the new or amended test
procedure until the date on which use of such test procedure is
required to demonstrate compliance, unless otherwise specified by DOE
in the test procedure final rule. Thereafter, certification reports and
any representations must be based on the test procedure final rule
methodology. Once a manufacturer uses the test procedure final rule
methodology in a certification report or any representation, all
subsequent certification reports and any representations must be made
using the test procedure final rule methodology.
(3) If DOE publishes a decision and order modifying an existing
waiver, certification reports to DOE required under 10 CFR 429.12 and
any representations must be based on either of the two methodologies
until 180 days after the publication date of the decision and order
modifying the waiver. Thereafter, certification reports and any
representations must be based on the modified test procedure
methodology unless otherwise specified by DOE. Once a manufacturer uses
the modified test procedure methodology in a certification report or
any representation, all subsequent certification reports and any
representations must be made using the modified test procedure
methodology while the modified waiver is valid.
(j) Petition for waiver required of other manufactures. Any
manufacturer of a basic model employing a technology or characteristic
for which a waiver was granted for another basic model and that results
in the need for a waiver (as specified by DOE in a published decision
and order in the Federal Register) must petition for and be granted a
waiver for that basic model. Manufacturers may also submit a request
for interim waiver pursuant to the requirements of this section.
(k) * * * (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, upon a
determination that the results from the alternate test procedure are
unrepresentative of the basic model(s)' true energy consumption
characteristics, or for other appropriate reason. 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.
* * * * *
PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND
INDUSTRIAL EQUIPMENT
0
3. The authority citation for part 431 continues to read as follows:
Authority: 42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
0
4. Section 431.401 is amended by revising paragraphs (b), (e), (g),
(h), (i), (j), and (k)(1) to read as follows:
Sec. 431.401 Petitions for waiver and interim waiver of the test
procedure.
* * * * *
(b) Petition content and publication. (1) Each petition for interim
waiver and 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
[[Page 70961]]
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 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) In addition to the requirements in paragraph (b)(1) of this
section, each petition for interim waiver must reference the related
petition for waiver, 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.
* * * * *
(e) Provisions specific to interim waivers. (1) DOE will post a
petition for interim waiver on its website within 5 business days of
receipt of a complete petition. DOE will make best efforts to review a
petition for interim waiver within 90 business days of receipt of a
complete petition.
(2) A petition for interim waiver that does not meet the content
requirements of paragraph (b) of this section will be considered
incomplete. DOE will notify the petitioner of an incomplete petition
via email.
(3) 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. Notice of DOE's determination on the petition for
interim waiver will be published in the Federal Register.
* * * * *
(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. The petition for extension
must identify the particular basic model(s) for which a waiver
extension is requested, each brand name under which the identified
basic model(s) will be distributed in commerce, and documentation
supporting the claim that the additional basic models employ 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 final 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 publishes a decision and order on a petition for
waiver in the Federal Register pursuant to paragraph (f) of this
section, the interim waiver will terminate upon the date specified in
the decision and order, in accordance with paragraph (i) of this
section.
(3) When DOE amends the test procedure to address the issues
presented in a waiver, the waiver or interim waiver will automatically
terminate on the date on which use of that test procedure is required
to demonstrate compliance.
(4) When DOE publishes a decision and order in the Federal Register
to modify a waiver pursuant to paragraph (k) of this section, the
existing waiver will terminate upon the date specified in the decision
and order, in accordance with paragraph (i) of this section.
(i) Compliance certification and representations. (1) If the
interim waiver test procedure methodology is different than the
decision and order test procedure methodology, certification reports to
DOE required under 10 CFR 429.12 and any representations must be based
on either of the two methodologies until 180-360 days after the
publication date of the decision and order, as specified by DOE in the
decision and order. Thereafter, certification reports and any
representations must be based on the decision and order test procedure
methodology, unless otherwise specified by DOE. Once a manufacturer
uses the decision and order test procedure methodology in a
certification report or any representation, all subsequent
certification reports and any representations must be made using the
decision and order test procedure methodology while the waiver is
valid.
(2) When DOE publishes a new or amended test procedure,
certification reports to DOE required under 10 CFR 429.12 and any
representations must be based on the testing methodology of an
applicable waiver or interim waiver, or the new or amended test
procedure until the date on which use of such test procedure is
required to demonstrate compliance, unless otherwise specified by DOE
in the test procedure final rule. Thereafter, certification reports and
any representations must be based on the test procedure final rule
methodology. Once a manufacturer uses the test procedure final rule
methodology in a certification report or any representation, all
subsequent certification reports and any representations must be made
using the test procedure final rule methodology.
(3) If DOE publishes a decision and order modifying an existing
waiver, certification reports to DOE required under 10 CFR 429.12 and
any representations must be based on either of the two methodologies
until 180-360 days after the publication date of the decision and order
modifying the waiver, as specified by DOE in the decision and order.
Thereafter, certification reports and any representations must be based
on the modified test procedure methodology unless otherwise specified
by DOE. Once a manufacturer uses the modified test procedure
methodology in a certification report or any representation, all
subsequent certification reports and any representations must be made
using the modified test procedure methodology while the modified waiver
is valid.
(j) Petition for waiver required of other manufactures. Any
manufacturer of a basic model employing a technology or characteristic
for which a waiver was granted for another basic model and that results
in the need for a waiver (as specified by DOE in a published decision
and order in the Federal Register) must petition for and be granted a
waiver for that basic model. Manufacturers may also submit a request
for interim waiver pursuant to the requirements of this section.
[[Page 70962]]
(k) * * * (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, upon a
determination that the results from the alternate test procedure are
unrepresentative of the basic model(s)' true energy consumption
characteristics, or for other appropriate reason. 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.
* * * * *
[FR Doc. 2021-26756 Filed 12-13-21; 8:45 am]
BILLING CODE 6450-01-P
