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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
when certification reports and any representations are required to be based on a new or amended test procedure.
Specifically, 10 CFR 430.27i2 and 10
CFR 431.401i2 would provide that certification reports and any representations may be based on the testing methodology of an applicable final waiver or interim waiver, or the new or amended test procedure until the compliance date of the amended test procedure. Thereafter, certification reports and any representations must be based on the test procedure final rule methodology unless specified by DOE in the test procedure final rule. Consistent with this provision, as necessary, DOE
would be able to specify in a test procedure final rule that a manufacturer need not recertify basic models where testing under the interim waiver or final waiver test procedure methodology, as compared to the amended test procedure methodology, does not result in a change in measured energy use.
This section would also specify that once a manufacturer uses the test procedure final rule methodology in a certification report or any representation, all subsequent certification reports and any representations must be made using the test procedure final rule methodology.
DOE requests comments on the proposed amendment to 10 CFR
430.27i and 10 CFR 431.401i.
In addition, DOE is proposing amendments to 10 CFR 430.27j and 10
CFR 431.401j for simplification and consistency with the enforcement requirements at 10 CFR part 429. Under 10 CFR 430.27j and 10 CFR 431.401j manufacturers of products or equipment employing a technology or characteristic for which a waiver was granted for another basic model must also seek a waiver for basic models of their product or equipment. Under these provisions, manufacturers currently distributing such products in commerce have 60
days to submit a waiver application and manufacturers of such products that are not currently distributing such products in commerce must petition for and be granted a waiver prior to distribution in commerce. When originally implemented, the intent of these provisions was to ensure that similar products are rated in a comparable manner. 77 FR 74616, 74618. DOE
wishes to preserve this intent, but believes this language to be confusing when read in context with 10 CFR part 429. Pursuant to 10 CFR 429.12, a basic model must be certified prior to distribution in commerce, and that certification must be based on testing conducted in conformance with the applicable test requirements prescribed
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in 10 CFR parts 429, 430 and 431, or in accordance with the terms of an applicable test procedure waiver.
Manufacturers must comply with 10
CFR part 429 prior to distributing their product in commerce i.e., there is no grace period and 10 CFR part 429
draws no distinction between models currently being distributed and models that will be distributed in the future. To align with 10 CFR part 429, DOE
proposes to remove the 60 day period and to make no distinction between models currently being distributed and models that will be distributed in the future. DOE believes the proposed amendments continue to achieve the original intent of paragraph j while better aligning with 10 CFR part 429.
DOE requests comments on the proposed amendment to 10 CFR
430.27j and 10 CFR 431.401j.
Finally, DOE is proposing an amendment to 10 CFR 430.27k1 and 10 CFR 431.401k1. Currently those provisions provide that DOE may rescind or modify a waiver or interim waiver at any time upon DOEs determination that the factual basis underlying the petition for waiver or interim waiver is incorrect or upon a determination that the results from the alternate test procedure are unrepresentative of the basic models true energy consumption characteristics.
DOE envisions that there could be other circumstances, such as new methodology, that might necessitate modification of a waiver. As such, DOE
proposes to add to this provision that DOE may rescind or modify a waiver for other appropriate reasons.
DOE requests comments on the proposed amendment to 10 CFR
430.27k1 and 10 CFR 431.401k1.
IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866
The Office of Information and Regulatory Affairs OIRA in the Office of Management and Budget OMB
waived Executive Order E.O. 12866, Regulatory Planning and Review review of this proposed rule.
B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act 5
U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 requires preparation of an initial regulatory flexibility analysis IRFA for any rule that by law must be proposed for public comment and a final regulatory flexibility analysis FRFA for any such rule that an agency adopts as a final
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rule, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. A
regulatory flexibility analysis examines the impact of the rule on small entities and considers alternative ways of reducing negative effects. Also, as required by Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461
August 16, 2002, DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE
rulemaking process. 68 FR 7990. DOE
has made its procedures and policies available on the Office of the General Counsels website at: https energy.gov/
gc/office-general-counsel.
This proposed rule would not impose any new requirements on any manufacturers, including small businesses. This proposed rule removes the provision automatically granting interim waivers within 45 business days of receipt and proposes to add a new provision that DOE will make best efforts to process an interim waiver request within 90 days of receipt. While this proposal allows DOE a longer period to review interim waiver petitions, consistent with DOEs current enforcement policy, manufacturers can sell products tested in accordance with a filed petition without fear of enforcement action.7 As such, DOE
anticipates any additional review period will minimally impact manufacturers, including small businesses. Under this proposed rule, DOE is also specifying a number of requirements for complete petitions for interim waiver and petitions for an extension of a waiver.
These proposals are not new requirements i.e., petitions must currently include this information, but are proposed to be included in DOEs regulations to make clear to manufacturers the information required for a petition or an extension request and allow DOE to process such requests more expeditiously. DOE is also proposing to eliminate the 60-day period from 10 CFR 430.27j and 10
CFR 431.401j 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 7 Department of Energy, Enforcement Policy StatementPending Test Procedure Waiver Applications Apr. 5. 2017, available at https
www.energy.gov/sites/default/files/2017/04/f34/
Enforcement%20Policy%20-%20waivers.pdf.

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