Proposed Rule2021-16341
Test Procedure Interim Waiver Process
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 20, 2021
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy ("DOE" or the "Department") proposes to revise the Department's test procedure interim waiver process. The proposed 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 ("EPCA"), and that otherwise appear not to effectuate the statute properly.
Full Text
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[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
[Proposed Rules]
[Pages 46793-46803]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16341]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 /
Proposed Rules
[[Page 46793]]
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: Notice of proposed rulemaking and request for comment.
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SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'')
proposes to revise the Department's test procedure interim waiver
process. The proposed 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 (``EPCA''), and that otherwise
appear not to effectuate the statute properly.
DATES: DOE will accept comments, data, and information regarding this
notice of proposed rulemaking on or before September 20, 2021.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for submitting comments. Alternatively, interested
persons may submit comments, identified by ``2021 Test Procedure
Interim Waiver Process NOPR'' and docket number EERE-2019-BT-NOA-0011
and/or the regulatory information number (RIN) 1904-AE24, by any of the
following methods:
(1) Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for submitting comments.
(2) Email: <a href="/cdn-cgi/l/email-protection#a8fcf8ffc9c1decddaf8dac7cbcddbdb9a989991e6e7e998989999e8cdcd86ccc7cd86cfc7de"><span class="__cf_email__" data-cfemail="feaaaea99f97889b8cae8c919d9b8d8dcccecfc7b0b1bfcececfcfbe9b9bd09a919bd0999188">[email protected]</span></a>. Include ``2021
Test Procedure Interim Waiver Process NOPR'' and docket number EERE-
2019-BT-NOA-0011 and/or RIN number 1904-AE24 in the subject line of the
message. Submit electronic comments in WordPerfect, Microsoft Word,
PDF, or ASCII file format, and avoid the use of special characters or
any form of encryption.
Although DOE has routinely accepted public comment submissions
through a variety of mechanisms, including postal mail and hand
delivery/courier, the Department has found it necessary to make
temporary modifications to the comment submission process in light of
the ongoing Covid-19 pandemic. DOE is currently accepting only
electronic submissions at this time. If a commenter finds that this
change poses an undue hardship, please contact Appliance Standards
Program staff at (202) 586-1445 to discuss the need for alternative
arrangements. Once the Covid-19 pandemic health emergency is resolved,
DOE anticipates resuming all of its regular options for public comment
submission, including postal mail and hand delivery/courier.
No telefacsimiles (faxes) will be accepted. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see section V (Public Participation) of this
document.
Docket: 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. All documents in the docket are
listed in the <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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: <a href="https://www.regulations.gov/docket?D=EERE-2019-BT-NOA-0011">https://www.regulations.gov/docket?D=EERE-2019-BT-NOA-0011</a>. The <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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: <a href="/cdn-cgi/l/email-protection#a6f5c7d4c7ce88e4d3d2cac3d4e6ced788c2c9c388c1c9d0"><span class="__cf_email__" data-cfemail="aaf9cbd8cbc284e8dfdec6cfd8eac2db84cec5cf84cdc5dc">[email protected]</span></a>.
Ms. Lucy deButts, 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:
<a href="/cdn-cgi/l/email-protection#64251414080d050a07013710050a000516001735110117100d0b0a172401014a000b014a030b12"><span class="__cf_email__" data-cfemail="521322223e3b333c31370126333c363320362103273721263b3d3c211237377c363d377c353d24">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Summary of Proposal
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 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.
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\1\ Fact Sheet: List of Agency Actions for Review (Jan. 20,
2021), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</a>.
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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 process that may result
in alternate test
[[Page 46794]]
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 proposing revisions to its procedures for
processing interim waiver requests.
In this document, DOE proposes to amend 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 petition for interim waiver on its website
within five business days of receipt of a 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 representations requirements; (5) specifying that
interim waivers will automatically terminate on the compliance date of
a new or amended test procedure; (6) harmonizing 10 CFR 430.27(j) and
10 CFR 431.401(j) with enforcement requirements; and (7) allowing DOE
to rescind or modify a waiver for appropriate reasons.
II. Authority and Background
A. Authority
EPCA,\2\ 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 \3\ of EPCA established
the Energy Conservation Program for Consumer Products Other Than
Automobiles. Title III, Part C \4\ 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.
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\2\ 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).
\3\ For editorial reasons, Part B was redesignated as Part A
upon codification in the U.S. Code.
\4\ For editorial reasons, Part C was redesignated as Part A-1
upon codification in the U.S. Code.
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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 Notice of Proposed Rulemaking (``NOPR'') 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 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 (the ``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 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 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).
In the December 2020 Final Rule, DOE made a policy decision to
place significant weight on reducing manufacturers' burdens, providing
[[Page 46795]]
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. However, as discussed further in section
III. of this document, in reconsideration of the December 2020 Final
Rule, DOE is weighing these policy considerations differently. DOE has
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. Given EPCA's goal
of energy conservation and DOE's statutory obligations under EPCA, DOE
is placing greater weight on ensuring compliant test procedures,
decreasing risks to consumers, and ensuring that DOE meets its
statutory obligations.
III. Discussion of Proposed Revisions
DOE is reconsidering whether certain provisions implemented by the
December 2020 Final Rule are 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.
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)) 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, DOE often requires longer than 45 business days to
adequately evaluate an alternate test procedure to make a determination
that will 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.
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 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.
Upon further consideration, DOE is weighing these factors
differently in light of recent analysis of petitions suggesting that
the number of non-compliant test procedures granted without sufficient
time to review is higher than DOE estimated and considering DOE's
statutory obligations under EPCA. For example, 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. (GEA, No. 1 at p. 1) The original GEA petition did not contain
sufficient information about the MREF basic models including necessary
information about the use of these products, which is needed to
determine an appropriate alternative method for testing. In response to
the lack of information in the original petition, DOE sent GEA a number
of technical questions, and GEA revised and supplemented its original
petition twice. The revised alternate test procedure \5\ included in
the April 26, 2021 petition lead DOE to ask further technical questions
to understand how the basic models subject to the petition worked in
the field, to which GEA provided additional correspondence on June 2,
2021.\6\ Based on these final clarifications, DOE was able to
successfully evaluate the proposed interim wavier test procedure, which
led DOE to deny the interim waiver because the alternative method
proposed by GEA was not representative of an average use cycle for the
basic models in question. 86 FR 35766.
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\5\ This document can be found in the docket for this test
procedure waiver under Document No. 002.
\6\ This document can be found in the docket for this test
procedure waiver under Document No. 003.
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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
[[Page 46796]]
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 basic models subject to
the interim waiver would be using a test procedure that underestimates
the energy consumption of the product.
In another example on October 25, 2016, 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-0027-0009, AHT, No. 0001 at pp. 1-10 (3))
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 (TDA) to determine associated energy conservation
standards). 82 FR 15345, 15349-15350.
In evaluating and adopting energy conservation standards, DOE
generally divides covered equipment into classes by the type of energy
used, or by capacity or other performance-related feature that
justifies a different standard for equipment having such a feature. (42
U.S.C. 6295(q) and 42 U.S.C. 6316(e)(1)) Commercial refrigeration
equipment is divided into various equipment classes categorized by
specific physical and design characteristics, such as operating
temperatures. These equipment classes have characteristics that impact
efficiency and have different corresponding energy conservation
standards for refrigerators, freezers, and ice-cream freezers under the
current DOE regulations. 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 freezer mode
operation. As DOE explained in the notice of a petition for waiver,
partial grant of an interim waiver, and request for public comment, DOE
did not agree with AHT's assertion that the multi-mode regulations for
commercial refrigeration equipment were unclear. 82 FR 15345, 15347.
DOE reiterated that in the most recent commercial refrigeration
equipment test procedure final rule, self-contained equipment or remote
condensing equipment with thermostats capable of operating at
temperatures that span multiple equipment categories must be certified
and comply with DOE's regulations for each applicable equipment
category. (Id.)
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 did not have sufficient time to
evaluate this test procedure waiver and AHT moved forward with its
request without modification, AHT would not have been evaluating the
multi-mode operation in a manner representative of field use in freezer
mode and it may have resulted in equipment being distributed in
commerce that may have otherwise been non-compliant with the energy
conservation standards.
DOE has tentatively 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 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 is proposing to remove 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 proposes 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
would serve no purpose if interim waivers are not automatically granted
within a specified time period.
DOE requests 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.
In addition, after further reflection of the approach adopted in
the December 2020 Final Rule and considering DOE's available resources,
DOE is reconsidering whether the 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 long review periods between the receipt of the
waiver application and issuance of an interim waiver. 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 for issuance of a timely interim
waiver. 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 believes the 45 business day timeframe implemented by the
December 2020 Final Rule is 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 time frame 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. As noted in
DOE's 2014 rulemaking on the petitions for waiver and interim waiver
regulations, many delays in processing waiver applications arise from
iterative efforts by DOE to obtain sufficient information upon
[[Page 46797]]
which to base a decision to grant an interim waiver. Making a
determination that an alternate test procedure complies with EPCA also
requires careful analysis and sometimes requires testing by DOE. 79 FR
26591, 29593 (May 9, 2014). 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); however, DOE believes the risk of
non-compliant alternate test procedures outweighs early stakeholder
input. Further, interested stakeholders will not lose the ability to
provide comment on the alternate test procedures as the regulations
require notification of a proposed 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
complete the analysis required, while providing a realistic timeframe
on which manufacturers can more reasonably rely.
Accordingly, DOE proposes 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 proposal 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 how circumstances may dictate a lengthier
period for consideration of a particular request.
DOE requests comments, information, and data on its proposal that
DOE will make best efforts to respond to an interim waiver request
within 90 business days.
To clarify the necessary contents of a petition for interim waiver,
DOE is also proposing amendments to 10 CFR 430.27(b) and 10 CFR
431.401(b). 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 is proposing 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 will notify the petitioner of an
incomplete petition via email. DOE will continue the iterative process
by which DOE assists manufacturers in completing their petitions. DOE
believes these amendments will provide clarity regarding the initial
requirements for petition submissions. Consistent with these proposals,
DOE also proposes 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 is similarly proposing 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 proposes 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. DOE believes that
including these requirements in the regulations will make clear to
manufacturers the information required for an extension request and
allow DOE to process such requests more expeditiously.
DOE requests 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 is also proposing amendments to 10 CFR 430.27(h) and 10 CFR
431.401(h). 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. To
ensure equitable treatment of final waivers and interim waivers that
are in place at the time a test procedure final rule publishes, DOE is
proposing to specify that final waivers and interim waivers both
automatically terminate on the compliance date of the test procedure
final rule.
DOE requests 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 test
procedure final rule.
DOE is also proposing amendments to 10 CFR 430.27(i) and 10 CFR
431.401(i) to clearly state the transition period for compliance with a
decision and order or test procedure final rule. DOE believes these
amendments are necessary to make clear the transition periods for
scenarios not previously addressed by these provisions. These
provisions would apply to required certifications and any
representations. DOE proposes to specify at 10 CFR 430.27(i)(1) and 10
CFR 431.401(i)(1) that manufacturers have 180 days (or up to 360 days,
as applicable) to comply with a decision and order or test procedure
methodology, unless otherwise specified by DOE in the decision and
order. The existing language in these sections specifies that when
basic models have already been certified using the test procedure
permitted in DOE's grant of an interim test procedure waiver, a
manufacturer is not required to re-test and re-rate those basic models
under certain circumstances. DOE intends to retain this flexibility,
but simplify this provision by stating that DOE may specify in the
decision and order when certification reports and any representations
need not be based on the decision and order test procedure methodology.
DOE also proposes 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. In addition, DOE is proposing
similar amendments to clarify
[[Page 46798]]
when certification reports and any representations are required to be
based on a new or amended test procedure. Specifically, 10 CFR
430.27(i)(2) and 10 CFR 431.401(i)(2) would provide that 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 the amended 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. This section would also 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 requests comments on the proposed amendment to 10 CFR 430.27(i)
and 10 CFR 431.401(i).
In addition, DOE is proposing amendments to 10 CFR 430.27(j) and 10
CFR 431.401(j) 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. DOE
wishes 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. Manufacturers must comply with 10 CFR
part 429 prior to distributing their product in commerce (i.e., there
is no grace period) 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 proposes to remove
the 60 day period and to make no distinction between models currently
being distributed and models that will be distributed in the future.
DOE believes the proposed amendments continue to achieve the original
intent of paragraph (j) while better aligning with 10 CFR part 429.
DOE requests comments on the proposed amendment to 10 CFR 430.27(j)
and 10 CFR 431.401(j).
Finally, DOE is proposing 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. DOE envisions that
there could be other circumstances, such as new methodology, that might
necessitate modification of a waiver. As such, DOE proposes to add to
this provision that DOE may rescind or modify a waiver for other
appropriate reasons.
DOE requests comments on the proposed amendment to 10 CFR
430.27(k)(1) and 10 CFR 431.401(k)(1).
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 proposed rule.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996)
requires preparation of an initial regulatory flexibility analysis
(IRFA) for any rule that by law must be proposed for public comment and
a final regulatory flexibility analysis (FRFA) for any such rule that
an agency adopts as a final rule, unless the agency certifies that the
rule, if promulgated, will not have a significant economic impact on a
substantial number of small entities. A regulatory flexibility analysis
examines the impact of the rule on small entities and considers
alternative ways of reducing negative effects. Also, as required by
Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the DOE rulemaking process. 68 FR 7990. DOE has made
its procedures and policies available on the Office of the General
Counsel's website at: <a href="https://energy.gov/gc/office-general-counsel">https://energy.gov/gc/office-general-counsel</a>.
This proposed rule would not impose any new requirements on any
manufacturers, including small businesses. This proposed rule removes
the provision automatically granting interim waivers within 45 business
days of receipt and proposes to add 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, consistent with DOE's current enforcement
policy, manufacturers can sell products tested in accordance with a
filed petition without fear of enforcement action.\7\ As such, DOE
anticipates any additional review period will minimally impact
manufacturers, including small businesses. Under this proposed rule,
DOE is also specifying a number of requirements for complete petitions
for interim waiver and petitions for an extension of a waiver. These
proposals are not new requirements (i.e., petitions must currently
include this information), but are proposed to be included in DOE's
regulations to make clear to manufacturers the information required for
a petition or an extension request and allow DOE to process such
requests more expeditiously. DOE is also proposing to eliminate 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
[[Page 46799]]
period. Finally, DOE believes its proposals to revise the compliance
certification and representation requirements and to clarify the
duration of interim waivers will provide clarity to manufacturers and
do not increase the burden on manufacturers, including small
businesses. DOE does not anticipate any impact on small businesses as a
result of the proposed amendments to 10 CFR 430.27(k)(1) and 10 CFR
431.401(k)(1).
---------------------------------------------------------------------------
\7\ Department of Energy, Enforcement Policy Statement--Pending
Test Procedure Waiver Applications (Apr. 5. 2017), available at
<a href="https://www.energy.gov/sites/default/files/2017/04/f34/Enforcement%20Policy%20-%20waivers.pdf">https://www.energy.gov/sites/default/files/2017/04/f34/Enforcement%20Policy%20-%20waivers.pdf</a>.
---------------------------------------------------------------------------
For these reasons, DOE certifies that this proposed rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities, and therefore, no regulatory
flexibility analysis has been prepared. DOE's certification and
supporting statement of factual basis will be provided to the Chief
Counsel of Advocacy of the SBA pursuant to 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. In certifying compliance, manufacturers must test their
products according to the DOE test procedures for such products/
equipment, including any amendments adopted for those test procedures,
on the date that compliance is required. 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 proposed rule, addressing revisions to DOE's
test procedure waiver process, does not contain any collection of
information requirement that would trigger the PRA.
D. Review Under the National Environmental Policy Act of 1969
DOE is analyzing this proposed regulation in accordance with the
National Environmental Policy Act (NEPA) and DOE's NEPA implementing
regulations (10 CFR part 1021). DOE's regulations include a categorical
exclusion for rulemakings interpreting or amending an existing rule or
regulation that does not change the environmental effect of the rule or
regulation being amended. 10 CFR part 1021, subpart D, appendix A5. DOE
anticipates that this rulemaking qualifies for categorical exclusion A5
because it amends an existing rule and does not change the
environmental effect of the rule and otherwise meets the requirements
for application of a categorical exclusion. See 10 CFR 1021.410. DOE
will complete its NEPA review before issuing the final rule.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this proposed rule and has
determined that it would not preempt State law and would not have a
substantial direct effect on the States, the relationship between the
national government and the States, or the distribution of power and
responsibilities among the various levels of government. 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. Regarding the review required by section 3(a),
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, the proposed 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 them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA. (62 FR 12820) (This policy is also available at <a href="https://www.energy.gov/gc/office-general-counsel">https://www.energy.gov/gc/office-general-counsel</a> under ``Guidance & Opinions''
(Rulemaking)) DOE examined the proposed 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
[[Page 46800]]
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any
year. Accordingly, no further assessment or analysis is required under
UMRA.
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 proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 12630
Pursuant to Executive Order 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' 53 FR
8859 (March 18, 1988), DOE has determined that this proposed rule would
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 Federal agencies to review
most disseminations of information to the public under information
quality guidelines established by each agency pursuant to general
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446
(Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and
DOE guidelines and has concluded that it is consistent with the
applicable policies in those guidelines.
K. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001) requires Federal agencies to prepare and submit to OIRA
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1)(i) Is a significant regulatory action under
Executive Order 12866, or any successor order, and (ii) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (2) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. This regulatory
action would not have a significant adverse effect on the supply,
distribution, or use of energy, and it has not been designated by the
Administrator of OIRA as a significant energy action; it therefore is
not a significant energy action. 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: <a href="https://www1.eere.energy.gov/buildings/appliance_standards/peer_review.html">https://www1.eere.energy.gov/buildings/appliance_standards/peer_review.html</a>.
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.
V. Public Participation
A. Submission of Comments
DOE will accept comments, data, and information regarding this
proposed rule no later than the date provided in the DATES section at
the beginning of this proposed rule. Interested parties may submit
comments using any of the methods described in the ADDRESSES section at
the beginning of this document.
Submitting comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. The <a href="https://www.regulations.gov">https://www.regulations.gov</a> web page will require you to provide your name and
contact information. Your contact information will be viewable to DOE
Building Technologies staff only. Your contact information will not be
publicly viewable except for your first and last names, organization
name (if any), and submitter representative name (if any). If your
comment is not processed properly because of technical difficulties,
DOE will use this information to contact you. If DOE cannot read your
comment due to technical difficulties and cannot contact you for
clarification, DOE may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment or in any documents attached to your comment.
Any information that you do not want to be publicly viewable should not
be included in your comment, nor in any document attached to your
comment. Persons viewing comments will see only first and last names,
organization names, correspondence containing comments, and any
documents submitted with the comments.
Do not submit to <a href="https://www.regulations.gov">https://www.regulations.gov</a> information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (CBI)). Comments submitted through
<a href="https://www.regulations.gov">https://www.regulations.gov</a> cannot be claimed as CBI. Comments received
through the
[[Page 46801]]
website will waive any CBI claims for the information submitted. For
information on submitting CBI, see the Confidential Business
Information section.
DOE processes submissions made through <a href="https://www.regulations.gov">https://www.regulations.gov</a>
before posting. Normally, comments will be posted within a few days of
being submitted. However, if large volumes of comments are being
processed simultaneously, your comment may not be viewable for up to
several weeks. Please keep the comment tracking number that <a href="https://www.regulations.gov">https://www.regulations.gov</a> provides after you have successfully uploaded your
comment.
Submitting comments via email. Comments and documents submitted via
email will be posted to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. If you do not want
your personal contact information to be publicly viewable, do not
include it in your comment or any accompanying documents. Instead,
provide your contact information in a cover letter. Include your first
and last names, email address, telephone number, and optional mailing
address. The cover letter will not be publicly viewable as long as it
does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. No telefacsimiles (faxes) will
be accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, written in English, and free of any defects or
viruses. Documents should not contain special characters or any form of
encryption, and, if possible, they should carry the electronic
signature of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This reduces comment processing and posting
time.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email two well-marked copies: One copy of the document marked
``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
with the information believed to be confidential deleted. Submit these
documents via email. DOE will make its own determination about the
confidential status of the information and treat it according to its
determination.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking.
Signing Authority
This document of the Department of Energy was signed on July 26,
2021, by Dr. Kathleen B. Hogan, Acting Under Secretary for Energy and
Science, 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.
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, Test procedures, Incorporation by reference, Reporting and
recordkeeping requirements.
Signed in Washington, DC, on July 27, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE is proposing to amend
parts 430, and 431 of chapter II of title 10, Code of Federal
Regulations as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
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 economic hardship and/or competitive
disadvantage is likely to result absent a
[[Page 46802]]
favorable determination on the petition for interim waiver.
* * * * *
(e) Provisions specific to interim waivers--(1) Disposition of
petition. 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) Incomplete petitions. 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) Criteria for granting. DOE will grant an interim waiver from
the test procedure requirements if it appears likely that the petition
for waiver will be granted and/or if DOE determines that it would be
desirable for public policy reasons to grant immediate relief pending a
determination on the petition for waiver. 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 180 days after the
publication date of the decision and order.
(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 compliance date of the amended test procedure.
(i) Compliance certification and representations. 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 may be based on either of
the two methodologies until 180 days after the publication date of the
decision and order.
(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) Rescission or modification. (1) DOE may rescind or modify a
waiver or interim waiver at any time upon DOE's determination that the
factual basis underlying the petition for waiver or interim waiver is
incorrect, 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 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) 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) Disposition of
petition. 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) Incomplete petitions. A petition for interim waiver that does
not meet
[[Page 46803]]
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) Criteria for granting. DOE will grant an interim waiver from
the test procedure requirements if it appears likely that the petition
for waiver will be granted and/or if DOE determines that it would be
desirable for public policy reasons to grant immediate relief pending a
determination on the petition for waiver. 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 180 days after the publication date of
the decision and order
(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.
(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 may 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 may 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.
(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) Rescission or modification. (1) DOE may rescind or modify a
waiver or interim waiver at any time upon DOE's determination that the
factual basis underlying the petition for waiver or interim waiver is
incorrect, 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. 2021-16341 Filed 8-19-21; 8:45 am]
BILLING CODE 6450-01-P
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