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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations 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.
9265o. 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 430.27e1iii and 10 CFR 431.401e1iii 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 DOEs 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. 13; Joint Attorneys General, No. 63
at pp. 12; 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,
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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 DOEs proposal to remove the provision that interim waivers will be automatically granted if DOE fails to respond to the request within 45business 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. 34; 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. 34
However, the Joint Commenters and AHRI stated that the current requirementthat the petition is deemed granted if DOE does not respond within 45 days of receipt of a complete notificationshould 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
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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. 34, AHRI, No. 70 at p. 2 AHRI stated that in these cases, DOE has already done the resourceand 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 45day 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
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