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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations
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Test Procedure Waiver Enforcement Policy, which provides that DOE will refrain from an enforcement action related to a specific basic model while a waiver request is pending.8
A. Automatic Granting of Interim Waiver After Prescribed Time Period Under the interim waiver process established in the December 2020 Final Rule, an interim waiver granted by default after the 45-day period would lack DOE review and would not benefit from a determination that the alternate test procedure meets EPCA
requirements. As demonstrated in the examples discussed in this section, DOE
often requires longer than 45 business days to adequately evaluate an alternate test procedure in order to determine whether the proposed test procedure accurately reflect the 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 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. 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 perceived greater certainty and 8 Department of Energy, Enforcement Policy StatementPending Test Procedure Waiver Applications Apr. 5. 2017, available at www.energy.gov/sites/default/files/2017/04/f34/
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transparency, and a less burdensome process for manufacturers. In support of the December 2020 Final Rule, DOE
explained that the changes were in response to concerns that the current system for processing interim waiver petitions was not working as it should, and in 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.
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 DOEs statutory obligations under EPCA.
One example illustrating DOEs 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. EERE2021
BTWAV0009, GEA, No. 1 at p. 1 As discussed in the August 2021 NOPR, 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 models and how such models are applied in the field, an alternate test procedure could have erroneously been applied that did not meet the requirements in EPCA. DOE
needed time to understand more about the product and the proposed alternate test procedure, and after several exchanges, came to understand that the GEA proposed alternate test procedure did not include all the energy consumption to represent an average use cycle and thus, the test procedure proposed by GEA was not representative. See 42 U.S.C. 6293. If the alternate test procedure proposed by GEA was automatically granted, the tested energy use of the basic models subject to the interim waiver would have been based on a test procedure that improperly underestimates the energy
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consumption of the product and would not have provided accurate information to the customers about the representative average use of the product.
In another example, on October 25, 2016, AHT Cooling Systems GmbH and AHT Cooling Systems USA, Inc.
AHT filed a petition for waiver and interim waiver from the DOE test procedure for commercial refrigeration equipment set forth in 10 CFR part 431, subpart C, appendix B. EERE2017
BTWAV0027, AHT, No. 1 at pp. 110
AHT petitioned for waiver for six model lines that are capable of multi-mode operation i.e., as ice cream freezer and commercial refrigerator. In the petition, AHT stated that the DOE test procedure is not clear regarding how to test multimode equipment. 82 FR 15345, 15349.
To address multi-mode operation, AHT
requested that their equipment be tested and rated only as ice cream freezers with integrated average temperature of 15 F +/2.0 F and use of total display area to determine associated energy conservation standards. 82 FR
15345, 1534915350. As discussed in the August 2021 NOPR, AHTs 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 AHTs petition and alternate test procedure, DOE
partially granted AHTs interim waiver.
82 FR 15345. DOE required 102
business days for this review. If DOE
had not had sufficient time to evaluate this test procedure waiver and AHT had moved forward with its request without modification, AHT would not have evaluated the multi-mode operation in a manner representative of field use in each applicable equipment category, which would have resulted in equipment being distributed in commerce that may have otherwise been non-compliant with the energy conservation standards.
DOE has determined that the December 2020 Final Rule did not place sufficient weight on the potential for alternate test procedures granted without sufficient DOE review to allow manufacturers to place products in the market that do not meet applicable energy conservation standards. To the extent that test procedure results are unrepresentative and do not provide comparative data, energy savings may not be realized, and consumers may not be able to make informed choices. As discussed previously, DOE has an
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