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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations 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 DOEs 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 products 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. 12,; DEEP, No. 59 at p. 12;
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 DOEs 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

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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 DOEs 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 90day 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. 13
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

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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. 46 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 DOEs 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.
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