[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]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / 
Rules and Regulations  

[[Page 70945]]


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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.

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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\
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    \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)
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    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.
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    \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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    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\
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    \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.

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[[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\
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    \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).
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    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\
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    \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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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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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