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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations
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In response to NAFEMs comments regarding small businesses trying to enter market segments, DOE notes that the 60-day time period currently applies only to manufacturers already distributing in commerce in the United States a product employing a technology or characteristic that results in the same need for a waiver. The amendments that DOE is promulgating with this final rule for example, more clearly specifying the requirements for submitting a valid waiver or interim waiver petition would provide greater clarity and support for any small business seeking a test procedure waiver. In this final rule, DOE amends 10 CFR 430.27j and 10 CFR 431.401j consistent with the proposal from the August 2021 NOPR.
G. Reasons for Rescinding or Modifying Waiver or Interim Waiver Finally, DOE proposed an amendment to 10 CFR 430.27k1 and 10 CFR
431.401k1. Currently those provisions provide that DOE may rescind or modify a waiver or interim waiver at any time upon DOEs determination that the factual basis underlying the petition for waiver or interim waiver is incorrect or upon a determination that the results from the alternate test procedure are unrepresentative of the basic models true energy consumption characteristics.
As described in the August 2021 NOPR, DOE envisions that there could be other circumstances, such as new methodology, that might necessitate modification of a waiver. As such, DOE
proposed to add to this provision that DOE may rescind or modify a waiver for other appropriate reasons.
DOE requested comments on the proposed amendment to 10 CFR
430.27k1 and 10 CFR 431.401k1.
The Joint Advocates expressed support for clarifying DOEs authority to rescind or modify a waiver for appropriate reasons such as the availability of a new testing methodology. Joint Advocates, No. 65
at p. 2
Joint Commenters, Carrier, Lennox, and NAFEM opposed DOEs proposal to allow DOE to rescind or modify a waiver for other appropriate reasons.
Joint Commenters, No. 69 at p. 6;
Carrier, No. 66 at p. 4; Lennox, No. 60
at p. 7; NAFEM, No. 62 at p.3 Carrier stated that this would create unnecessary ambiguity and urged DOE
not to modify the current provisions at 10 CFR 430.27k1 and 10 CFR
431.401k1. Carrier, No. 66 at p. 4
Joint Commenters and Carrier stated that if DOE wants to modify the alternate test procedure granted in a waiver, it should do so through
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amendments to the test procedure and not through revisions to already-granted waivers. Joint Commenters, No. 69 at p.
6; Carrier, No. 66 at p. 4 Lennox stated that it is unclear what DOE means by new methodology, and that if a defined category of circumstances exist where DOE may need to rescind an interim waiver, the regulations should state those circumstances specifically.
Lennox asserted that the other appropriate reason language is insufficiently supported in the August 2021 NOPR. Lennox, No. 60 at p. 7
NAFEM noted that this proposal would return the waiver process to the completely discretionary realm that, according to NAFEM, caused industry and DOE to revisit this process over the past several years of rulemakings.
NAFEM, No. 62 at p. 3
Joint Commenters, MIAQ, and Lennox recommended that if DOE makes a determination to rescind a waiver based on false or inaccurate information, then the 180-day transition timeline should be discretionary. Joint Commenters, No.
69 at p. 5; MIAQ, No. 61 at p.3; Lennox, No. 60 at p. 7
DOE notes that the current provisions at 10 CFR 430.27k1 and 10 CFR
431.401k1 already provide DOE with authority to modify the alternate test procedure granted in a waiver under certain circumstances. In describing in the August 2021 NOPR a new methodology as one example of a circumstance that might necessitate modification of a waiver, DOE was referring to the possibility of a new or improved alternate test procedure i.e., methodology that would provide results that are more representative than the alternate test procedure specified in a previously granted waiver. Another appropriate reason that might necessitate modification of a waiver is DOE being made aware of additional data that would suggest a more representative alternate test procedure than the alternate test procedure specified in a previously granted waiver e.g., data used as the basis for specifying a particular test condition or weighting factor. In such cases, DOE
may determine that it is necessary to modify a previous waiver or interim waiver sooner than would be possible through the test procedure rulemaking process e.g., products such as consumer electronics with rapidly-changing markets; products such as room air conditioners with highly seasonal markets, in which new products are typically brought to market annually during a relative short period of time.
DOE notes that the current regulations at 10 CFR 430.27k3 and 10 CFR
431.401k3 require that any waiver
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recission or modification be subject to public comment, which provides interested parties an opportunity to comment on DOEs proposed recission or modification before DOE publishes a final decision. DOE did not propose any amendments to those sections of the CFR and any proposal by DOE to rescind or modify a waiver, for any reason, will be subject to those provisions.
In reference to comments regarding the transition timeline, if DOE were to make a determination to rescind a waiver based on false or inaccurate information, the provisions at 10 CFR
430.27k5 and 10 CFR 431.401k5
specify that after the effective date of a rescission, any basic models previously subject to a waiver must be tested and certified using the applicable DOE test procedure in 10 CFR part 430
or part 431, as applicable. The manufacturer would thus be required to certify compliance using the applicable DOE test procedure no later than the effective date of the rescission. To further clarify the compliance requirements when a waiver is modified, DOE is adding provisions at 10 CFR 430.27i3 and 10 CFR
431.401i3 to specify the applicable grace periods. Similarly, 10 CFR
430.27h4 and 10 CFR 431.401h4
specify when an existing waiver terminates following the issuance of a modified waiver.
This final rule amends 10 CFR
430.27k1 and 10 CFR 431.401k1
consistent with the proposal in the September 2021 NOPR.
IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866
The Office of Information and Regulatory Affairs OIRA in the Office of Management and Budget OMB waived Executive Order E.O. 12866, Regulatory Planning and Review review of this rule.
B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act 5
U.S.C. 601 et seq. requires preparation of a final regulatory flexibility analysis FRFA for any final rule where the agency was first required by law to publish a proposed rule for public comment, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. As required by E.O. 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 Aug. 16, 2002, DOE
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