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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Rules and Regulations
process that may result in alternate test procedures that are inconsistent with EPCAs purpose and requirements. In addition, as discussed in greater detail in section III of this document, upon reconsideration, DOE believes provisions implemented by the December 2020 Final Rule could weaken energy conservation standards by allowing manufacturers to place noncompliant products in the market. In furtherance of its duties under EPCA
and in accordance with Executive Order 13990, DOE is revising its procedures for processing interim waiver requests.
In this final rule, DOE amends 10 CFR
430.27 and 10 CFR 431.401 by: 1
Removing the provisions, adopted in the December 2020 Final Rule, 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 of the petition, and instead specifying that DOE will make best efforts to process any interim waiver request within 90 days of receipt; 2 providing the requirements for a complete petition for interim waiver, and specifying that DOE would notify petitioners of incomplete petitions via email and that DOE will post a complete petition for interim waiver on its website within five business days of receipt of the complete petition; 3 stating the information that must be provided in a request to extend a waiver to additional basic models; 4
revising the compliance certification and representation requirements; 5
specifying that interim waivers will automatically terminate on the compliance date of a new or amended test procedure; 6 harmonizing the consumer product and commercial equipment waiver provisions with enforcement requirements; and 7
allowing DOE to rescind or modify a waiver for appropriate reasons.
II. Authority and Background
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A. Authority EPCA,3 Public Law 94163 42 U.S.C.
62916317 authorizes DOE to regulate the energy efficiency of a number of consumer products and industrial equipment types. Title III, Part B 4 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. Title III, Part C 5 of EPCA established the Energy Conservation Program for 3 All references to EPCA in this document refer to the statute as amended through the Energy Act of 2020, Public Law 116260 Dec. 27, 2020.
4 For editorial reasons, Part B was redesignated as Part A upon codification in the U.S. Code.
5 For editorial reasons, Part C was redesignated as Part A1 upon codification in the U.S. Code.

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Certain Industrial Equipment. The energy conservation program under EPCA consists essentially of four parts:
1 Testing, 2 labeling, 3 Federal energy conservation standards, and 4
certification and enforcement procedures.
The Federal testing requirements consist of test procedures that manufacturers of covered products and equipment generally must use as the basis for: 1 Certifying to DOE that the product or equipment complies with the applicable energy conservation standards adopted pursuant to EPCA 42
U.S.C. 6295s; 42 U.S.C. 6316a, and 2 making representations about the efficiency of the products or equipment 42 U.S.C. 6293c; 42 U.S.C. 6314d.
Similarly, DOE must use these test procedures to determine whether the product or equipment complies with relevant standards promulgated under EPCA. 42 U.S.C. 6295s; 42 U.S.C.
6316a Under 42 U.S.C. 6293 and 42 U.S.C.
6314, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered products and equipment. Specifically, test procedures must be reasonably designed to produce test results that reflect energy efficiency, energy use or estimated annual operating cost of a covered product or covered equipment during a representative average use cycle or period of use, and must not be unduly burdensome to conduct. 42 U.S.C.
6293b3; 42 U.S.C. 6314a2
B. Background This final rule involves the regulatory provisions governing the submission and processing of test procedure waivers for both consumer products under Part A of EPCA and industrial equipment under Part A1. DOEs regulations in Title 10 of the Code of Federal Regulations CFR, 430.27
consumer products and 431.401
commercial equipment, contain provisions allowing a person to seek a waiver from the test procedure requirements if certain conditions are met. DOE will grant a waiver from the test procedure requirements if DOE
determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedure evaluates the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27a1
and 10 CFR 431.401a1. DOE may
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grant the waiver subject to conditions, including adherence to alternate test procedures. In addition, the waiver process permits parties submitting a petition for waiver to also file an application for interim waiver from the applicable test procedure requirements.
10 CFR 430.27a and 10 CFR
431.401a. DOE will grant an interim waiver if it appears likely that the petition for waiver will be granted and/
or if DOE determines that it would be desirable for public policy reasons to grant immediate relief pending a decision on the petition for waiver. 10
CFR 430.27e2 and 10 CFR
431.401e2.
On May 1, 2019, DOE published a NOPR to amend the existing test procedure interim waiver process May 2019 NOPR. 84 FR 18414. After considering the comments received, DOE published the December 2020
Final Rule, which significantly revised its procedures for test procedure interim waivers. 85 FR 79802.
The December 2020 Final Rule adopted an approach to DOEs test procedure interim waiver decisionmaking process that requires the Department to notify, in writing, an applicant for an interim waiver of the disposition of the request within 45
business days of receipt of the application. 10 CFR 430.27eii and 10
CFR 431.401eii. Importantly, under the recent amendments, if DOE does not notify the applicant in writing of the disposition of the interim waiver within 45 business days, the interim waiver is granted automatically and the manufacturer is authorized to test subject products or equipment using the alternate test procedure proposed by the manufacturer in the petition. Id. If DOE
denies the interim waiver petition, DOE
is required to notify the petitioner within 45 business days and post the notice on the Departments website as well as publish its determination in the Federal Register as soon as possible after such notification. Id. If DOE
ultimately denies an associated petition for waiver or grants the petition with a test procedure that differs from the alternate test procedure specified in the interim waiver, manufacturers are allowed a 180-day grace period before the manufacturer is required to use the DOE test procedure or the alternate test procedure specified in the decision and order to make representations regarding energy efficiency. 10 CFR 430.27i1
and 10 CFR 431.401i1.6
6 In proposing an amendment to 10 CFR 430.27i and 431.401i, DOE stated thatThe 180 day duration was proposed because that time frame is consistent with the EPCA provision that provides
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