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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990.
DOE has made its procedures and policies available on the Office of the General Counsels website www.energy.gov/gc/office-generalcounsel.
This final rule would not impose any new requirements on any manufacturers, including small businesses. This final rule removes the provision automatically granting interim waivers within 45 business days of receipt and adds a new provision that DOE will make best efforts to process an interim waiver request within 90 days of receipt. While this proposal allows DOE
a longer period to review interim waiver petitions, in light of DOEs Test Procedure Waiver Enforcement Policy regarding models that are the subject of a pending test procedure waiver application, DOE expects that many manufacturers will choose to sell products tested in accordance with a filed petition while awaiting DOEs decision. As such, DOE anticipates any additional review period will minimally impact manufacturers, including small businesses.
Lennox stated that any enforcement guidance protections, whereby DOE
refrains from enforcement for products while a waiver request is pending with DOE, should not arise until at least when DOE has deemed the relevant interim waiver petition administratively complete and submitted it for public comment in the Federal Register, in order to avoid manufacturers seeking unwarranted protection under such enforcement guidance merely by submitting an incomplete interim waiver application that has no chance of being approved as submitted. Lennox stated that a small delay of 30 days for DOE to determine completeness should not materially adversely impact manufacturers given lengthy product development cycles and should significantly increase consumer protections against non-compliant products. Lennox, No. 60 at p. 8
As discussed in section III.C, current practice is for DOE to notify a manufacturer regarding the completeness of a petition within 5
business days of submission. As such, it is highly unlikely that manufacturers would use this short period between submission and notification to introduce noncompliant products to the market. DOE has seen no evidence to suggest that a manufacturer would submit an incomplete interim waiver petition as a strategy for bringing a noncompliant unit to the market. Further,
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DOEs Test Procedure Waiver Enforcement Policy does not provide boundless enforcement protection for any manufacturer who has submitted a petition. If the waiver request is denied, DOE would still employ its enforcement discretion to determine whether to pursue enforcement action against a manufacturer for units sold while the ultimately denied application was pending.
Under this final rule, DOE is also specifying a number of requirements for complete petitions for interim waiver and petitions for an extension of a waiver. These are not new requirements i.e., petitions must currently include this information, but are being included in DOEs regulations to make clearer to manufacturers the information required for a petition or an extension request and to allow DOE to process such requests more expeditiously. DOE
expects that these clarifications will decrease burden on manufactures by reducing instances of manufacturers submitting incomplete petitions, which will reduce administrative burden i.e., avoid the need to re-submit a petition and allow manufactures to bring new products to the market more quickly.
DOE is also eliminating the 60-day period from 10 CFR 430.27j and 10
CFR 431.401j to align with enforcement requirements at 10 CFR
part 429. DOE believes this amendment will minimally impact manufacturers, including small businesses, as they are already subject to the requirements at 10
CFR part 429, which provides no grace period. Finally, DOE believes its revisions to the compliance certification and representation requirements and clarification of the duration of interim waivers will provide clarity to manufacturers and does not increase the burden on manufacturers, including small businesses. DOE does not anticipate any impact on small businesses as a result of the amendments to 10 CFR 430.27k1 and 10 CFR 431.401k1.
For these reasons, DOE concludes that this final rule will not have a significant economic impact on a substantial number of small entities, and that the preparation of a FRFA is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5
U.S.C. 605b.
C. Review Under the Paperwork Reduction Act of 1995
Manufacturers of covered products/
equipment must certify to DOE that their products comply with any
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applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE
test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment. 76 FR 12422
March 7, 2011; 80 FR 5099 Jan. 30, 2015. The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act PRA. This requirement has been approved by OMB
under OMB control number 19101400.
Public reporting burden for the certification is estimated to average 35
hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Specifically, this final rule, addressing revisions to DOEs test procedure waiver process, does not increase the burden hours or the number of entities that are subject to reporting under OMB control number 19101400.
D. Review Under the National Environmental Policy Act of 1969
Pursuant to the National Environmental Policy Act NEPA of 1969, DOE has analyzed this proposed action in accordance with NEPA and DOEs NEPA implementing regulations 10 CFR part 1021. DOE has determined that this rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix A5 because it is an interpretive rulemaking that does not change the environmental effect of the rule and meets the requirements for application of a CX. See 10 CFR
1021.410. Therefore, DOE has determined that promulgation of this rule is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an EA or EIS.
E. Review Under Executive Order 13132
Executive Order 13132, Federalism, 64 FR 43255 August 4, 1999, imposes
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