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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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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 DOEs interim waiver process, DOE noted that it intended to shift the burden of any delays in the review process onto the Department and allow for innovative products to be made available more quickly to consumers. 85 FR 79802, 79803 and 79811. However, as discussed further in section III. of this document, in reconsideration of the December 2020
Final Rule, DOE is weighing these policy considerations differently. DOE
has tentatively determined that the changes under the December 2020 Final Rule may not allow DOE sufficient time to review an alternate test procedure, leading to increased risks to consumers of purchasing noncompliant products and decreased energy savings. Given EPCAs goal of energy conservation and DOEs statutory obligations under EPCA, DOE is placing greater weight on ensuring compliant test procedures, decreasing risks to consumers, and ensuring that DOE meets its statutory obligations.
III. Discussion of Proposed Revisions DOE is reconsidering whether certain provisions implemented by the December 2020 Final Rule are appropriate or necessary. DOE
acknowledges that its interim waiver process often involves a lengthy period following submission of interim waiver and waiver applications and imposes burdens on manufacturers who are unable to certify their products or equipment absent an interim waiver or waiver from DOE. The December 2020
Final Rule, however, mandates a process that, by prioritizing the speeding up of the petition process, may result in alternate test procedures that are inconsistent with EPCAs purpose and requirements and have adverse environmental impacts.
As noted previously, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product and covered equipment during a representative average use cycle or period of use. 42 U.S.C. 6293;
42 U.S.C. 6314 Manufacturers of covered products and covered equipment must use the prescribed DOE
test procedure to certify that their products and equipment meet the applicable energy conservation standards adopted under EPCA, and also when making any other representations to the public regarding the energy use or efficiency of those
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products. 42 U.S.C. 6293c, 6295s, 42
U.S.C. 6314d and 42 U.S.C. 6316a 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.
6302a5, 42 U.S.C. 6295s Under the interim waiver process established in the December 2020 Final Rule, an interim waiver granted by default after the 45-day period would lack DOE
review and would not benefit from a determination that the alternate test procedure meets EPCA requirements. As demonstrated in the examples discussed, DOE often requires longer than 45 business days to adequately evaluate an alternate test procedure to make a determination that will accurately reflect the products energy consumption during an average use cycle. The default waiver process may result in test procedures later found to be inconsistent with EPCA which would allow manufacturers to distribute noncompliant products in commerce, resulting in additional costs i.e., cost of energy use to consumers.
DOE noted in the December 2020
Final Rule that some commenters stated that the amendments to the interim waiver process would weaken the energy conservation standards program because the automatic granting of interim waivers without review could place noncompliant products in the market and allow them to remain for an additional 180 days after DOE acts on the associated petition. 85 FR 79802, 79806. In addition, some commenters noted that the amendments could indirectly allow for backsliding of energy conservation standards, noting that 42 U.S.C. 6295o1 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 EPCAs antibacksliding provision was intended to prevent. Id. DOEs decision under the December 2020 Final Rule reflected a policy choice to reject these comments raising concerns about the risks of noncompliant products in favor of 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
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should, and in DOEs view, manufacturers should not be constrained from selling their products for significant periods while DOE
reviews the interim waiver petition. 85
FR 79802, 79807.
Upon further consideration, DOE is weighing these factors differently in light of recent analysis of petitions suggesting that the number of noncompliant test procedures granted without sufficient time to review is higher than DOE estimated and considering DOEs statutory obligations under EPCA. For example, on June 30, 2021, DOE issued a notice denying the interim waiver application from General Electric Appliance GEA for certain miscellaneous refrigeration product MREF basic models. 86 FR 35766. The original petition for waiver and interim waiver from the test procedure for MREFs set forth at appendix A to subpart B of 10 CFR part 430 was received on April 9, 2021. GEA, No. 1
at p. 1 The original GEA petition did not contain sufficient information about the MREF basic models including necessary information about the use of these products, which is needed to determine an appropriate alternative method for testing. In response to the lack of information in the original petition, DOE sent GEA a number of technical questions, and GEA revised and supplemented its original petition twice. The revised alternate test procedure 5 included in the April 26, 2021 petition lead DOE to ask further technical questions to understand how the basic models subject to the petition worked in the field, to which GEA
provided additional correspondence on June 2, 2021.6 Based on these final clarifications, DOE was able to successfully evaluate the proposed interim wavier test procedure, which led DOE to deny the interim waiver because the alternative method proposed by GEA was not representative of an average use cycle for the basic models in question. 86 FR 35766.
From the time that DOE received GEAs 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 DOEs technical questions.
However, if DOE did not have sufficient time to gather the additional information about GEAs MREF basic 5 This document can be found in the docket for this test procedure waiver under Document No.
002.
6 This document can be found in the docket for this test procedure waiver under Document No.
003.

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