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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations 430.27i2 15 and 10 CFR 431.401i2
would provide that when DOE
publishes a new or amended test procedure, 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 such 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.
DOE also proposed to 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 requested comments on the proposed amendment to 10 CFR
430.27i and 10 CFR 431.401i.
Carrier, MIAQ and the Joint Commenters supported the proposed changes to 10 CFR 430.27i and 10 CFR
431.401i. Carrier, No. 66 at p. 3, MIAQ, No. 61 at p. 2, Joint Commenters, No. 69 at p. 5 Carrier stated that these amendments would add additional clarity to the transition period scenarios.
Carrier, No. 66 at p. 3 The Joint Commenters stated that the proposed changes would provide a consistent process, promote certainty, eliminate duplicative testing, and reduce unnecessary burden, and added that the 180-day period would provide manufacturers a reasonable timeline to retest and recertify. Joint Commenters, No. 69 at p. 5
The Joint Commenters stated that DOE should maintain the existing language in these sections specifying that when basic models have already been certified using the test procedure permitted following DOE grant of an interim test procedure waiver, a manufacturer is not required to re-test and re-rate those basic models under certain circumstances, rather than the simplified language that DOE proposed.
Joint Commenters, No. 69 at p. 5
Lennox noted that DOE appears to have 15 The proposed amendments to 10 CFR
430.27i2 were inadvertently omitted from the proposed amendments to the CFR regulatory text in the August 2021 NOPR.

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inadvertently left out transition provisions in 10 CFR 430.27i, with the preamble describing proposals to 10
CFR 430.27i1 and 2, which were not provided in the regulatory text.
Lennox supported the proposed language as described in the preamble for these sections. Lennox, No. 60 at p.
8 Regarding the suggestion from the Joint Commenters that manufacturers not be required to re-test and re-rate under certain circumstances, were DOE
to finalize in a decision and order an alternate test procedure that differs from the alternate test procedure specified in an interim waiver, or finalize an amended test procedure that differs from a granted alternate test procedure, any such change would be the result of a determination by DOE, supported by information and/or data, that the subsequent test procedure more appropriately provides representative results. However, the final rule also retains the flexibility for DOE to specify in the decision and order that a manufacturer is not required to re-test and re-rate basic models certified to an interim waiver under certain circumstances. As discussed above and as noted by commenters, the proposed amendments to the regulatory text at 10
CFR 430.27i inadvertently omitted language reflecting this intention in the context of consumer products. This final rule corrects this language and reflects the proposed amendments provided at 431.401i, consistent with the intent of the preamble discussion in the August 2021 NOPR. DOE is also adopting language at 10 CFR 430.27i3 and 10
CFR 431.401i3 to explicitly provide that a manufacturer would have 180
360 days following a modification to a decision and order to comply with any such modification.
F. Consistency With Enforcement Requirements DOE proposed amendments to 10 CFR
430.27j and 10 CFR 431.401j Petition for waiver required of other manufacturers 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
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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. As discussed in the August 2021 NOPR, DOE sought 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 in 10 CFR parts 429, 430 and 431, or in accordance with the terms of an applicable test procedure waiver. See 10
CFR 429.12c2. Manufacturers must comply with 10 CFR part 429 prior to distributing their product in commerce i.e., no grace period is provided, 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 proposed to remove the specification of a 60-day period and to make no distinction between models currently being distributed and models that will be distributed in the future. DOE stated in the August 2021 NOPR that it believes the proposed amendments would continue to achieve the original intent of paragraph j while better aligning with 10 CFR part 429.
DOE requested comments on the proposed amendment to 10 CFR
430.27j and 10 CFR 431.401j.
Carrier and MIAQ supported DOEs proposal to amend 10 CFR 430.27j and 10 CFR 431.401j for simplification and consistency with the enforcement requirements at 10 CFR part 429.
Carrier, No. 66 at p. 3; MIAQ, No. 61
at p. 3 Carrier supported removing the 60-day period given to any manufacturer currently distributing in commerce products or equipment employing a technology or characteristic for which a waiver was granted for another basic model. Carrier, No. 66 at p. 3
NAFEM opposed DOEs proposed elimination of the 60-day period from 10 CFR 430.27j and 10 CFR 431.401j, noting that small businesses trying to enter various market segments may need that small timing buffer to figure out and engage in the test procedure waiver process, and that there is only a small chance that a small business would actually introduce products to market within this short period, creating limited risk of compliance or enforcement issues. NAFEM, No. 62 at p. 4

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