79802 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 

1All references to EPCA in this document refer 

to the statute as amended through the America’s 

Water Infrastructure Act of 2018, Public Law 115– 

270 (October 23, 2018). 

2For editorial reasons, Part B was redesignated as 

Part A upon codification in the U.S. Code. 

3For editorial reasons, Part C was redesignated as 

Part A–1 upon codification in the U.S. Code. 

requirements, Stockyards, Surety bonds, 

Trade practices. 

For the reasons set forth in the 

preamble, USDA amends 9 CFR part 201 

as follows: 

PART 201—REGULATIONS UNDER 

THE PACKERS AND STOCKYARDS 

ACT 

■ 1. The authority citation for part 201 

continues to read as follows: 

Authority: 7 U.S.C. 181—229c. 

■ 2. Section 201.211 is added to read as 

follows: 

§ 201.211 Undue or unreasonable 

preferences or advantages. 

The Secretary will consider the 

following criteria, and may consider 

additional criteria, when determining 

whether a packer, swine contractor, or 

live poultry dealer has made or given 

any undue or unreasonable preference 

or advantage to any particular person or 

locality in any respect in violation of 

section 202(b) of the Act. The criteria 

include whether the preference or 

advantage under consideration: 

(a) Cannot be justified on the basis of 

a cost savings related to dealing with 

different producers, sellers, or growers; 

(b) Cannot be justified on the basis of 

meeting a competitor’s prices; 

(c) Cannot be justified on the basis of 

meeting other terms offered by a 

competitor; and 

(d) Cannot be justified as a reasonable 

business decision. 

Bruce Summers, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2020–27117 Filed 12–10–20; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF ENERGY 

10 CFR Parts 430 and 431 

[EERE–2019–BT–NOA–0011] 

RIN 1904–AE24 

Test Procedure Interim Waiver Process 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, U.S. Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: In this final rule, the U.S. 

Department of Energy (‘‘DOE’’) has 

adopted a streamlined approach to its 

test procedure waiver decision-making 

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. An interim 

waiver will remain in effect until a final 

waiver decision is published in the 

Federal Register or until DOE publishes 

a new or amended test procedure that 

addresses the issues presented in the 

application, whichever is earlier. DOE’s 

regulations continue to specify that DOE 

will take either of these actions within 

1 year of issuance of an interim waiver. 

This final rule addresses delays in 

DOE’s current process for considering 

requests for interim waivers and waivers 

from the DOE test method, which in 

turn can result in significant delays for 

manufacturers in bringing new and 

innovative products to market. This 

final rule requires the Department to 

process interim waiver requests within 

the 45 business day window and 

clarifies the process by which interested 

stakeholders provide input into the 

development of an appropriate test 

procedure waiver. 

DATES: The effective date of this rule is 

January 11, 2021. 

ADDRESSES: The docket, which includes 

Federal Register notices, public meeting 

attendee lists and transcripts, 

comments, and other supporting 

documents/materials, is available for 

review at http://www.regulations.gov. 

All documents in the docket are listed 

in the http://www.regulations.gov index. 

However, some documents listed in the 

index, such as those containing 

information that is exempt from public 

disclosure, may not be publicly 

available. 

A link to the docket web page can be 

found at: http://www.regulations.gov/ 

docket?D=EERE-2019-BT-NOA-0011. 

The http://www.regulations.gov web 

page contains instructions on how to 

access all documents, including public 

comments, in the docket. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Francine Pinto, U.S. Department of 

Energy, Office of the General Counsel, 

GC–33, 1000 Independence Avenue SW, 

Washington, DC 20585–0121. 

Telephone: (202) 287–7432. Email: 

Francine.Pinto@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Legal Authority and Background 

A. Legal Authority 

B. Background 

II. Discussion of Amendments 

III. Response to Comments Received 

IV. Procedural Requirements 

A. Review Under Executive Order 12866 

and 13563 

B. Review Under Executive Orders 13771 

and 13777 

i. National Cost Savings and Forgone 

Benefits 

C. Review Under the Regulatory Flexibility 

Act 

D. Review Under the Paperwork Reduction 

Act 

E. Review Under the National 

Environmental Policy Act 

F. Review Under Executive Order 12988 

G. Review Under Executive Order 13132 

H. Review Under Executive Order 13175 

I. Review Under the Unfunded Mandates 

Reform Act of 1995 

J. Review Under Executive Order 13211 

K. Review Under the Treasury and General 

Government Appropriations Act, 1999 

L. Review Under the Treasury and General 

Government Appropriations Act, 2001 

M. Congressional Notification 

V. Approval of the Office of the Secretary 

I. Legal Authority and Background 

A. Legal Authority 

The Energy Policy and Conservation 

Act (‘‘EPCA’’ or ‘‘the Act’’),1 Public Law 

94–163 (42 U.S.C. 6291–6317) 

authorizes the United States Department 

of Energy (DOE or, in context, the 

Department) to regulate the energy 

efficiency of a number of consumer 

products and industrial equipment 

types. Title III, Part B2 of EPCA 

established the Energy Conservation 

Program for Consumer Products Other 

Than Automobiles. Title III, Part C3 of 

EPCA established the Energy 

Conservation Program for Certain 

Industrial Equipment. Under EPCA, 

DOE’s energy conservation program 

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 must use as the basis for: (1) 

Certifying to DOE that their products or 

equipment complies with the applicable 

energy conservation standards adopted 

pursuant to EPCA (42 U.S.C. 6295(s); 42 

U.S.C. 6316(a)), and (2) making 

representations about the efficiency of 

those products or equipment (42 U.S.C. 

6293(c); 42 U.S.C. 6314(d)). 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. 6295(s); 42 U.S.C. 6316 (a)) 

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 


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4Transcript of the webinar is available on the 

docket, https://www.regulations.gov/ 

document?D=EERE-2019-BT-NOA-0011-0031. 

5See, e.g., https://energy.gov/sites/prod/files/ 

2018/01/f46/NAFEM%20Regulatory%20

Reform%20Roundtable%20Meeting%20Notes%20- 

%2010.31.17.pdf. 

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. 

6293(b)(3); 42 U.S.C. 6314(a)(2)). As a 

waiver is the issuance of a test 

procedure applicable to certain 

products, these same requirements are 

applicable to any alternate test 

procedure that DOE may specify in an 

interim waiver or waiver. Subsequent to 

issuance of an interim waiver or waiver, 

DOE conducts a rulemaking to amend 

the generally applicable test procedure 

to address the issue that gave rise to the 

creation of a new test procedure for the 

requesting party. 

DOE’s regulations provide that upon 

receipt of a petition, 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 430.27(a)(1) 

and 10 CFR 431.401(f)(2). DOE may 

grant the waiver subject to conditions, 

including adherence to alternate test 

procedures. DOE regulations also 

provide that in addition to the full 

waiver (‘‘decision and order’’) described 

previously, the waiver process permits 

parties to also file an application for 

interim waiver from the applicable test 

procedure requirements. 10 CFR 

430.27(a) and 10 CFR 431.401(a). DOE 

will grant an interim waiver if it appears 

likely that the petition for waiver will be 

granted 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 430.27(e)(2) and 10 CFR 

431.401(e)(2). 

B. Background 

In May of 2019, DOE proposed to 

streamline its existing interim waiver 

process by amending its regulations to 

require that the Department would make 

a determination on an interim waiver 

request within 30 business days of 

receipt. Under that proposal, should 

DOE fail to notify the applicant in 

writing of the determination within 30 

business days, the request for interim 

waiver would be granted based on the 

criteria set forth in DOE regulations. 84 

FR 18414 (May 1, 2019). The petitioner 

would be authorized to use the alternate 

test procedure specified in the request 

for interim waiver. Id. 

DOE specified in the 2019 notice of 

proposed rulemaking (‘‘NOPR’’) that an 

interim waiver would remain in effect 

until a waiver decision is published or 

until DOE publishes a new or amended 

test procedure that addresses the issues 

presented in the application, whichever 

is earlier. If the alternate test procedure 

ultimately required by DOE differed 

from what was specified in the interim 

waiver, manufacturers would then have 

a 180-day grace period to begin using 

the alternate test procedure specified in 

the decision and order. If DOE denied 

the waiver request, the 180-day grace 

period would apply to the use of the test 

procedure specified in DOE’s 

regulations. The proposal was intended 

to address delays in DOE’s current 

process for considering requests for 

interim waivers from the DOE test 

method that ultimately imposed costs 

on manufacturers because they could 

not certify and distribute their products 

while awaiting a response to their 

petitions. 84 FR 18414 (May 1, 2019). 

The NOPR provided for the submissions 

of comments by July 1, 2019. 

During the comment period, DOE 

received several requests to hold a 

public meeting and to extend the 

NOPR’s comment period after the 

meeting so that the public could engage 

in the rulemaking process. 84 FR 30047, 

30047 (June 26, 2019). To address these 

requests, the Department held a webinar 

on July 11, 2019, and extended the 

comment period until July 15, 2019.4

DOE held the webinar to discuss the 

proposal and answer questions 

regarding the changes proposed to the 

existing process. (July 2019 Webinar, 

No. 31 at p. 5) DOE explained that the 

proposal was intended to improve 

public participation and decrease 

uncertainty in a long standing process, 

which provided manufactures of new 

and innovative products an alternative 

means of testing those products while 

the Department made a final 

adjudication on the waiver petition. (Id. 

at pp. 5–8) DOE continued that the 

proposal would streamline this process 

by removing the language ‘‘if 

administratively feasible’’ from the 

Department’s regulations and thereby 

require the Department to issue 

decisions on interim waiver 

applications within 30-business days 

that would remain in effect until the 

waiver decision and order was 

published, or until DOE published a 

new or amended test procedure. (Id. at 

pp. 9–10) If a petition was ultimately 

denied or granted with a different 

alternative test procedure than specified 

in the interim waiver, then the 

manufacturer would have 180-days to 

begin using that new test procedure. 

DOE stated that its intent in issuing the 

proposal was to improve the waiver 

process for regulated entities by making 

it more transparent and participatory as 

well as addressing the financial burden 

manufacturers have experienced in the 

past. The proposal was intended to shift 

the burden of any delays in the review 

process onto the Department, rather 

than the requester. (Id. at p. 11; 23) 

Following the webinar, DOE received 

additional requests to extend the 

comment period, which DOE granted 

and extended the comment period until 

August 6, 2019. 84 FR 35040 (July 22, 

2019). 

II. Discussion of Amendments 

In this final rule, DOE is amending its 

regulations to address stakeholder 

concerns regarding lengthy waiting 

times following submission of interim 

waiver and waiver applications, and the 

burden that lengthy processing time 

imposes on manufacturers, who are 

unable sell their products or equipment 

absent an interim waiver or waiver from 

DOE.5 Specifically, this rule amends 

Parts 430 and 431 of Chapter II, 

Subchapter D, of Title 10 of the Code of 

Federal Regulations as set forth at the 

end of this document in a way that is 

intended to provide the public and 

industry with greater clarity and 

transparency to the existing waiver 

process, and to address specific 

administrative delays that have 

prevented innovative and new products 

from reaching the market. 

In this final rule, DOE has amended 

the current regulations to require that 

the Department make a determination 

on an interim waiver request within 45 

business days of receiving a complete 

petition. DOE extended this time period 

from the 30 business days specified in 

the NOPR in response to comments 

suggesting that the Department may 

need additional time to review the 

interim waiver prior to issuing its 

decision. The Department believes that 

45 business days provides the 

Department sufficient time to review an 

interim waiver request and make a 

determination on the interim waiver 

based on the regulatory criteria 

applicable at that step of the process, 

i.e., that the petition for waiver is likely 


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79804 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 

to be granted, or it is desirable for public 

policy to grant immediate relief pending 

a decision on the waiver petition. 10 

CFR 430.27(e)(2) and 10 CFR 

431.401(e)(2). Extending the 

Department’s review time will still 

reduce manufacturers’ burdens relative 

to the baseline and retains the certainty 

for manufacturers that DOE will reach a 

decision on the interim waiver within a 

specified time period. DOE emphasizes 

that the grant or denial of an interim 

waiver is an intermediate step in DOE’s 

consideration of the waiver petition, 

and that DOE will continue to provide, 

as it does now under the current 

regulations, opportunity for public 

input and further consideration by the 

Department prior to issuance of a 

decision and order on the waiver 

petition. 

10 CFR 430.27 and 10 CFR 431.401 

are amended by revising paragraph (e), 

which now requires the Department to 

post online a petition for an interim 

waiver within five business days of 

receiving an application and, as 

discussed in the preceding paragraph, 

will provide a decision on that petition 

for an interim waiver within 45 business 

days of receipt. 10 CFR 430.27(e)(1) and 

10 CFR 431.401(e)(1). DOE added the 

requirement for posting the interim 

waiver in response to comments 

expressing concern that interested 

parties will be unaware that the 

Department received a petition for 

interim waiver. While DOE currently 

posts waiver and interim waiver 

requests on its website at https:// 

www.energy.gov/eere/buildings/currenttest-procedure-waivers, posting upon 

receipt is now specified in DOE’s 

regulations to enhance public awareness 

of when DOE receives a request for 

interim waiver for processing pursuant 

to these amended regulations. 

The Department may reach a decision 

on the petition at any point during the 

45 business day window. The 

regulations also specify that the 

Department will post on its website a 

notice of the determination regarding a 

petition for interim waiver within five 

business days and will publish a notice 

of the decision in the Federal Register 

as soon as possible thereafter. 10 CFR 

430.27(e)(1)(ii) and 10 CFR 

431.401(e)(1)(ii). The Department 

updated these notification provisions 

from the NOPR for the same reasons of 

increased transparency and notice that 

it added the posting requirement for 

receipt of an interim waiver. 

For purposes of determining the start 

of the 45 business day window, DOE 

considers a waiver and interim test 

procedure waiver petition received 

when the application request is 

accepted in the email box for receipt of 

waiver petition or if delivered by mail, 

on the date the petition is stamped as 

received by the Department. 10 CFR 

430.27(e)(1)(iii) and 10 CFR 

431.401(e)(1)(iii). DOE updated the 

NOPR to specify that failure to satisfy 

the criteria set forth in 10 CFR 

430.27(b)(2) and 10 CFR 431.401(b)(2) 

would result in denial of the interim 

waiver. (See 10 CFR 430.27(e)(1)(ii) and 

10 CFR 430.401(e)(1)(ii) of this final 

rule.) This change is consistent with the 

current regulatory requirements for 

submission of an interim waiver 

(identification of related petition and 

basic models, as well as information on 

the likely success of the petition and 

information on the economic hardship 

or competitive disadvantage that is 

likely to result absent a favorable 

determination and an authorized 

signature). This change is also 

consistent with the criteria for grant of 

an interim waiver, which require the 

applicant to show that the petition for 

waiver will likely be granted and/or that 

it is desirable for public policy reasons 

to grant immediate relief pending a 

decision on the petition for waiver. 10 

CFR 430.27(e)(2) and 10 CFR 

430.401(e)(2). DOE also considers this 

change consistent with the provision in 

its regulations, which remains 

unchanged by these amendments, 

specifying that a petitioner must submit 

an alternative test procedure to the 

extent that one is known with the 

waiver petition. 10 CFR 430.27(b)(1)(iii) 

and 10 CFR 431.401(b)(1)(iii). While 

DOE will not grant an interim waiver 

absent an alternate test procedure 

specified by the petitioner, and the 

information required by 10 CFR 

430.27(b)(2) and 10 CFR 431.401(b)(2), 

DOE will continue to process the waiver 

request and work with the petitioner to 

develop an appropriate alternate test 

procedure and provide additional 

information as necessary to process the 

waiver. 

Revised paragraph (h) clarifies the 

duration of interim waivers by stating 

that an interim waiver remains in effect 

until the Department publishes a 

decision and order on the petition for 

waiver in the Federal Register or, 

publishes in the Federal Register a new 

or amended test procedure that 

addresses the issue(s) covered in the 

waiver, whichever is earlier. 10 CFR 

430.27(h)(1) and 10 CFR 431.401(h)(1). 

In response to comments on the NOPR, 

DOE retains the requirement that DOE 

will complete either of these actions 

within one year of the issuance of an 

interim waiver. 10 CFR 430.27(h)(2) and 

10 CFR 431.401(h)(2). DOE did not 

amend the current regulatory 

requirement that a waiver or interim 

waiver will automatically terminate on 

the date by which use of an amended 

test procedure that addresses the issue 

presented in the waiver is required to 

demonstrate compliance. 10 CFR 

430.27(h)(3) and 10 CFR 431.401(h)(3). 

The Department also revised 10 CFR 

430.27(i)(1) and 10 CFR 431.401(i)(1) to 

provide manufacturers with a 180-day 

grace period for compliance with a 

specified test procedure in this final 

rule. In the event DOE ultimately denies 

the petition for waiver or the alternate 

test procedure specified in the interim 

waiver differs from the alternate test 

procedure specified by DOE in a 

subsequent decision and order granting 

the petition, the affected manufacturers 

will have 180-days to come into 

compliance. The duration of this grace 

period mirrors the amount of time the 

Department provides manufactures to 

come into compliance when a new test 

procedure is prescribed under 42 U.S.C. 

6293(e). This provision was specified in 

the 2019 NOPR regulatory text as 10 

CFR 430.27(e)(1)(iii) and 10 CFR 

431.401(e)(1)(iii), but has been relocated 

to 10 CFR 430.27(i)(1) and 10 CFR 

431.401(i)(1) in response to comments 

that 10 CFR 430.27(i) and 10 CFR 

431.401(i) already specified the outcome 

if DOE denies a waiver petition after 

granting an interim waiver, or specifies 

an alternate test procedure in the waiver 

decision than in the interim waiver, and 

so the addition of the originally 

included 10 CFR 430.27(e)(1)(iii) and 10 

CFR 431.401(e)(1)(iii) in the NOPR was 

confusing. 

III. Response to Comments Received 

Commenters Affiliation Acronym, identifier 

A.O. Smith Corporation ........................................................................... Manufacturer .................................. A.O. Smith. 

Acuity Brands .......................................................................................... Manufacturer .................................. Acuity. 

Air-Conditioning, Heating, and Refrigeration Institute ............................. Manufacturer Trade Group ............ AHRI. 

Alliance to Save Energy .......................................................................... Advocacy Group ............................ ASE. 

American Council for an Energy Efficient Economy ............................... Advocacy Group ............................ ACEEE.


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Commenters Affiliation Acronym, identifier 

American Lighting Association ................................................................ Manufacturer .................................. ALA. 

American Lighting Association (ALA), the Association of Home Appliance Manufacturers (AHAM), the National Automatic Merchandising 

Association (NAMA), and Plumbing Manufacturers International 

(PMI).

Manufacturer .................................. Joint Industry Commenters. 

Anonymous Anonymous ......................................................................... Member of the Public .................... Anonymous 1. 

Anonymous Anonymous ......................................................................... Member of the Public .................... Anonymous 2. 

Appliance Standards Awareness Project with American Council for an 

Energy-Efficient Economy, Consumer Federation of America, National Consumer Law Center on behalf of its low-income clients, 

Northeast Energy Efficiency Partnerships, and Northwest Energy Efficiency Alliance.

Advocacy Group ............................ ASAP, et al. 

Appliance Standards Awareness Project, Alliance to Save Energy, 

American Council for an Energy-Efficient Economy, California Energy Commission, Consumer Federation of America, National Consumer Law Center, Natural Resources Defense Council, Northeast 

Energy Efficiency Partnerships, Northwest Energy Efficiency Alliance, Pacific Gas and Electric.

Advocacy Group and Utilities ........ ASAP, et al. 2. 

Association of Home Appliance Manufacturers ...................................... Manufacturer .................................. AHAM. 

Attorneys General of California, Colorado, Connecticut, Illinois, Maine, 

Maryland, Michigan, Minnesota, New York, North Carolina, Oregon, 

Vermont, Washington, the Commonwealth of Massachusetts, the 

District of Columbia, and the City of New York..

State, Local Governments ............. AG Joint Commenters. 

Better Climate Research and Policy Analysis ........................................ Advocacy Group ............................ Better Climate Research and Policy Analysis. 

BSH Home Appliances Corporation ........................................................ Manufacturer .................................. BSH. 

California Energy Commission ................................................................ State .............................................. CEC. 

Carrier Corporation .................................................................................. Industry .......................................... Carrier. 

Connecticut Department of Energy and Environmental Protection ........ State .............................................. DEEP. 

Consumer Federation of America ........................................................... Advocacy Group ............................ CFA. 

Consumer Federation of America and National Consumer Law Center Advocacy Group ............................ Consumer Groups. 

Earthjustice .............................................................................................. Advocacy Group ............................ Earthjustice. 

Felix Storch, Inc. ..................................................................................... Manufacturer .................................. FSI. 

Franke, Rebecca ..................................................................................... Member of the Public .................... Franke. 

Goodman Manufacturing Company ........................................................ Manufacturer .................................. Goodman. 

Gould, Kyle .............................................................................................. Member of the Public .................... Gould. 

Hamdi, Ahmed ......................................................................................... Member of the Public .................... Hamdi. 

Hardin-Levine, Carolyn ............................................................................ Member of the Public .................... Hardin-Levine. 

Information Technology Industry Council ................................................ Industry .......................................... ITI. 

Ingersoll Rand ......................................................................................... Manufacturer .................................. Ingersoll Rand. 

Lennox International Inc. ......................................................................... Manufacturer .................................. Lennox. 

Lutron ...................................................................................................... Manufacturer .................................. Lutron. 

National Association of State Energy Officials ....................................... State .............................................. NASEO. 

National Automatic Merchandising Association ...................................... Manufacturer .................................. NAMA. 

National Consumer Law Center .............................................................. Advocacy Group ............................ NCLC. 

National Electrical Manufacturers Association ........................................ Manufacturer .................................. NEMA. 

Natural Resources Defense Council ....................................................... Advocacy Group ............................ NRDC. 

Nortek Global HVAC ............................................................................... ........................................................ Nortek. 

North American Association of Food Equipment Manufacturers ............ Manufacturer Trade Group ............ NAFEM. 

Northeast Energy Efficiency Partnerships .............................................. Advocacy Group ............................ NEEP. 

Northwest Energy Efficiency Alliance ..................................................... Advocacy Group ............................ NEEA. 

Northwest Power and Conservation Council .......................................... Interstate Compact ........................ NPCC. 

Pacific Gas and Electric .......................................................................... Utility .............................................. PG&E. 

Pacific Gas and Electric Company, San Diego Gas and Electric, and 

Southern California Edison.

Utilities ........................................... CA IOUs. 

Plumbing Manufacturers International .................................................... Manufacturer .................................. PMI. 

Regal Beloit Corporation ......................................................................... Advocacy Group ............................ RBC. 

Sachs, Harvey ......................................................................................... Member of the Public .................... Sachs. 

San Diego Gas and Electric .................................................................... Utility .............................................. SDG&E. 

Sierra Club .............................................................................................. Advocacy Group ............................ Sierra Club. 

Sierra Club & Earthjustice ....................................................................... Advocacy Group ............................ Earthjustice. 

Small Business Association—Office of Advocacy .................................. Industry .......................................... SBA. 

Southern California Edison ..................................................................... Utility .............................................. SCE. 

Stewart, Jim ............................................................................................. Member of the Public .................... Stewart. 

Traulsen, A Division of ITW Food Equipment Group, LLC .................... Industry .......................................... Traulsen. 

State of Washington Department of Commerce, Washington State Energy Office.State .............................................. WA State Energy Office. 

Weikel, Wendy ........................................................................................ Member of the Public .................... Weikel. 

Whirlpool Corporation .............................................................................. Manufacturer .................................. Whirlpool. 


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The 2019 NOPR proposed that ‘‘an 

application for interim waiver would be 

deemed granted, thereby permitting use 

of the alternate test procedure suggested 

by the applicant in its application, if 

DOE fails to notify the applicant in 

writing of the disposition of an 

application within 30 business days of 

receipt of the application.’’ 85 FR 18414, 

18415 (May 1, 2019). During the 

comment period several stakeholders 

supported DOE’s proposed approach. 

FSI believed that the current delays in 

the interim waiver process lead to 

substantial direct and indirect costs to 

both businesses and to consumers by 

not allowing innovative and energy 

saving appliances to come to market in 

a timely manner. (FSI, No. 16 at p. 1) 

This commenter further stated that it is 

an unfair economic penalty to all 

manufacturers, but especially 

burdensome to smaller manufacturers, 

where the investment of time and 

development is held in limbo. (Id. at p. 

2) FSI asserted that the proposal creates 

a reasonable incentive for DOE to 

respond to petitions and that the 

requirement for a speedy waiver process 

is not the equivalent of self-regulation as 

some commenters claimed. In addition, 

FSI stated that the current regulations 

already contained language protecting 

against manufacturers abusing the 

process, with penalties provided for 

doing so. (Id. at p. 2) Also, one 

commenter stated general agreement 

with DOE’s proposal. (Hamdi, No. 34, at 

p. 1) 

ITI agreed that DOE’s proposal met 

the goal of addressing delays in DOE’s 

current process for considering requests 

for interim waivers, which can result in 

significant delays for manufacturers in 

bringing new and innovative products 

to market. (ITI, No. 20 at p. 1). 

In DOE’s request for comments 

concerning the Department’s 

prioritization of rulemakings, 85 FR 

20886 (April 15, 2020) rulemaking, 

AHAM commented in support of 

amending the existing test procedure 

interim waiver process and prioritizing 

this action. AHAM agreed that the 

Department’s efforts to streamline the 

waiver process would mitigate the 

burden for manufacturers associated 

with waiting for DOE to respond to 

interim waiver requests and allow DOE 

to instead focus its attention on the 

merits of granting a final test waiver. 

Based on the Fall 2019 Unified Agenda 

of Regulatory and Deregulatory Actions, 

AHAM anticipated that the finalization 

of the rule would not require the 

expenditure of significant resources and 

urged DOE to finalize the rule 

immediately. (AHAM, EERE–2020–BT– 

STD–0004, No. 10 at p. 3) 

NAFEM fully supported the initial 30- 

day review deadline before petitions for 

interim waivers were deemed granted. 

This commenter stated that the proposal 

would greatly reduce the uncertainty 

and risk associated with the waiver 

process. (NAFEM, No. 26 at p. 3) The 

Joint Industry Commenters also agreed 

with DOE’s determination that it is 

desirable for public policy reasons, 

including burden reduction on 

regulated parties and administrative 

efficiency, to grant immediate relief on 

each petition for interim waiver if DOE 

does not notify petitioner of its interim 

waiver decision within the 30 business 

days. (No. 52 at p. 2) This commenter 

stated that DOE’s proposal will lead to 

the following benefits: (1) It will allow 

manufacturers to more swiftly provide 

innovative, energy saving products to 

consumers; (2) It will provide certainty 

to regulated entities; (3) It creates a 

compliance pathway for innovative 

products being introduced on the 

market for which the current test 

procedures do not apply; and (4) DOE’s 

proposal provides a clear, transparent 

process so that regulated parties and 

other stakeholders know how DOE will 

operate. (Id. at pp. 2–5) While 

supporting the DOE proposal, the Joint 

Industry Commenters also 

recommended that DOE add to the final 

rule a provision indicating that, in cases 

where interim test procedures are 

deemed granted by the passage of time, 

DOE will publish the interim test 

procedure waiver (and the petition for 

test procedure waiver) in the Federal 

Register immediately. It stated that this 

would be consistent with DOE’s current 

practice to publish its decisions on 

interim waivers together with the notice 

and request for comment on the test 

procedure waiver petition. (Id. at p. 4) 

This commenter expects that if DOE 

receives a petition that is incomplete, it 

will notify the petitioner and that such 

a petition could not be considered 

granted by the passage of time because 

it is not complete. (Id.) 

Moreover, while NEMA stated its 

support for DOE’s ‘‘deemed granted’’ 

approach, it would modify the proposal 

to provide for some action by DOE 

before an interim waiver is granted. 

NEMA suggested that the final rule 

provide that DOE will publish the 

interim test procedure application after 

the application is deemed complete by 

the Department. Then, it suggested a 

short comment period of 10 days to 

provide stakeholders the opportunity to 

raise red flags. If stakeholders and DOE 

do not identify any significant 

substantive problems with the petition 

for waiver, then 30 days after the 

interim test procedure application is 

published in the Federal Register the 

application should be deemed granted, 

unless DOE informs the manufacturer 

otherwise in writing. NEMA also 

believed that if significant and 

substantive concerns with the interim 

waiver are raised during the comment 

period or discovered by DOE in its 

preliminary review of the petition, DOE 

should be able to take another 30 days 

to review the petition before 

determining if the interim waiver is 

granted as-is, granted with 

modifications, or denied. (No. 55 at pp. 

4–5) NEMA stated that these 

modifications will address the 

possibility of competitive 

gamesmanship and increase 

transparency. 

The Office of Advocacy for the Small 

Business Association (SBA) fully 

supported DOE’s proposal to streamline 

the test procedure interim waiver 

process so that small manufacturers 

have more regulatory certainty in the 

interim waiver process. According to 

the SBA, the delays have a significant 

impact on small businesses that sell 

product at much lower volumes and 

that are unable to sell their product for 

a significant amount of time, thus 

reducing their income flow. Therefore, 

these delays have the potential to put 

some small manufacturers out of 

business. (SBA, No. 23 at p. 1, 3, 4) It 

stated that abuse of the process is not a 

concern because the proposal only 

eliminates a bottleneck in the process by 

requiring DOE to meet the 30-day 

decision-making requirement. Even if 

the interim waiver is granted, the 

application is still required to go 

through a full review as the process 

remains unchanged. (SBA, No. 23 at p. 

4) 

On the other hand, many other 

commenters’ objected to DOE’s 

‘‘deemed granted’’ approach. For 

example, Earthjustice argued that the 

proposal would weaken the energy 

conservation standards program by 

allowing manufacturers to abuse the 

process by placing noncompliant 

products in the market given the 30-day 

‘‘deemed granted’’ requirement and the 

grace period after DOE revoked such 

waivers. This result could occur without 

any notice to either competitors or 

stakeholders and with no opportunity to 

object. (Earthjustice, No. 49 at p. 1 See 

also Hardin-Levine, No. 2 at p. 1; 

Stewart, No. 7, at p. 1; Lennox, No. 11 

at p. 1; RBC, No. 12 at 1; Gould, No. 13 

at p. 1; Anonymous 1, No. 17 at p. 1; 

NPCC, No. 21 at p. 1; WA State Energy 

Office, No. 22 at p. 1; Better Climate 

Research and Policy Analysis, No. 24 at 

p. 1; Traulsen, No. 25 at pp. 2–3; Sachs, 


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6Of the 21 concluded interim waiver petitions 

that DOE had granted as of issuance of DOE’s 

NOPR, the Department had granted 18 in full and 

granted the remaining 3 with modifications such as 

one was granted in part, one with minor 

modifications, and one with a different test 

procedure than proposed. 84 FR 18414, 18419 (May 

1, 2019). 

No. 29 at p. 2; Consumer Groups, No. 33 

at p. 2; DEEP, No. 35 at p. 1; Carrier, No. 

36 at p. 2; CA IOUs, No. 37 at p. 1; 

Nortek, No. 38 at p. 3; Ingersoll Rand, 

No. 39 at p. 1; CEC, No. 40 at p. 1; AHRI, 

No. 42 at p. 2; ASE. No. 43 at p. 3; A.O. 

Smith, No. 44 at p. 1–2; NASEO, No. 45 

at p. 1; ASAP et al., No. 46, at pp. 1, 8; 

NRDC, No. 47, at p. 1–2, 5–6; Lennox, 

No. 48 at p. 1, 4; AG Joint Commenters, 

No. 51 at p. 2, 5; and Goodman, No. 54 

at p. 1) 

Many commenters, while ultimately 

objecting to the proposed automatic 

approval as noted in the preceding 

paragraph, commented that DOE should 

nonetheless be held to a timeline when 

processing interim waiver requests. 

Various commenters proposed 

alternative scenarios, such as 

maintaining the status quo, the 30- 

business day time limit proposed by 

DOE, and increasing the time limit to 

120 days, with specific milestones along 

the way. (Franke, No. 8 at p. 1 for 

maintaining 30 days; BSH, No. 41 at 5, 

for maintaining 30 days, with notice and 

comment if application is deemed 

granted; Acuity, No. 14 at p. 2, for 

maintaining the 30 days but not more 

than 90; Lutron, No. 53 at p. 2, with 

providing stakeholders a brief 

opportunity for comment during the 30 

business day window; FSI, No. 16 at p. 

2, for maintaining 30 days; Anonymous 

1, No. 17 at p. 1, if the proposal is 

finalized, use 60 to 90 days before 

granting; NAFEM, No. 26 at p. 2, 

supporting 30-day review process; 

Traulsen, No. 25 at p. 3, supporting a 60 

business day review process; Carrier, 

No. 36 at p. 2, suggesting a review 

process that is not more than 120 days 

to conduct a review of the interim 

waiver application, public comment 

period, review of comments received, 

and additional communication with the 

petitioner; AHRI, No. 42 at pp. 2–3, 

supports a maximum of 120 days to 

review and process an interim waiver 

application; Sachs, No. 29 at p. 2, 

recommends creating time limits for 

each step of the process; CA IOUs, No. 

37 at p. 2–3, suggesting a 6-month 

review process; Nortek, No. 38 at pp. 

2–3, suggesting a maximum of 120 days; 

CEC, No. 40 at p. 9–10, suggesting an 

additional step for completion check 

and comment period and providing an 

automatic grant only if no adverse 

comments are received; ASE, No. 43, at 

p. 4, stating that a comment period is 

needed; A.O. Smith, No. 44 at p. 4–5, 

recommending an alternative process 

allowing 135 days, including 

stakeholder comment and a full 

technical review; ASAP et al., No. 46 at 

pp. 7–8, providing for a 90-day review 

period, including notice and comment 

but not replacing comment period after 

publication of interim waiver; Lennox, 

No. 48 at pp. 2–3, suggests setting a 

reasonable deadline with an expedited 

comment period of 30 days; and 

Goodman, No. 54 at pp. 1–2, 4, 

suggesting 90-day time period with 

opportunity for comment) 

In response to these arguments, DOE’s 

reiterates that these changes are being 

adopted in response to concerns that the 

current system for processing interim 

waiver petitions is not working as it 

should. In DOE’s view, manufacturers 

should not be constrained from selling 

their products for significant periods of 

time while DOE undertakes a lengthy 

review of a temporary measure (the 

interim waiver) or applies its limited 

resources to other priorities, such as 

rulemakings subject to a statutory 

deadline. DOE also does not believe that 

manufacturers should be limited in their 

ability to sell their products while DOE 

works extensively, and without the 

benefit of public comment, to determine 

what the alternate test procedure should 

be in response to the interim waiver 

request. 

As DOE explained in its modernized 

Process Rule, DOE should be held 

accountable for complying with its own 

procedures so that the public will have 

confidence in the transparency, 

predictability, clarity, and fairness of 

DOE’s regulatory process. Procedures 

for Use in New or Revised Energy 

Conservation Standards and Test 

Procedures for Consumer Products and 

Commercial/Industrial Equipment 

(‘‘Process Rule’’), 85 FR 8626, 8632, 

8634 (February 14, 2020). Under the 

procedures adopted in this final rule, 

DOE places the burden of delay on DOE 

rather than the manufacturer. If DOE 

does not notify the applicant in writing 

of the disposition of the interim waiver 

within 45 business days, the 

manufacturer would be authorized to 

test subject products under an interim 

waiver using the alternate test 

procedure submitted by the 

manufacturer while DOE processes the 

waiver request, including obtaining the 

benefit of comment from other 

manufacturers and stakeholders. 

In consideration of the comments 

received suggesting a longer review 

period, however, DOE has determined 

that a 45 business day period will 

provide the Department with a small 

amount of additional time to review the 

interim waiver request while still 

providing certainty to the manufacturer 

that if DOE does not act within the 

prescribed time period, the interim 

waiver will be granted pursuant to 

DOE’s existing regulatory criteria for the 

grant of interim waiver requests at 10 

CFR 430.27(e)(2) and 10 CFR 

431.401(e)(2). 

Accordingly, after taking all 

comments into account concerning the 

adequacy of the 30 business day time 

period for consideration of interim 

waiver petitions, DOE is modifying this 

requirement to provide the Department 

45 business days to review completed 

interim waiver petitions based on the 

criteria in its current regulations, 10 

CFR 430.27(e)(2) or 10 CFR 

431.401(e)(2). These are the same 

criteria that have been applied to every 

interim waiver petition acted upon by 

DOE and are not changed by this final 

rule. Because an interim waiver is 

meant to be a temporary measure to 

hold a requester harmless while a final 

decision on a waiver is processed, the 

criteria for granting an interim waiver 

are straightforward and intended to 

facilitate a quick review process. For 

example, if DOE has seen a particular 

technological issue in prior waivers that 

have been granted, it should quickly 

become apparent that it is likely that the 

petitions for waiver based on the same 

technological issue would be granted. In 

addition, the criterion that it is desirable 

for public policy reasons to grant 

‘‘immediate relief pending a 

determination on the petition for 

waiver’’ in particular indicates that 

DOE’s decision for interim waiver is 

intended to be a quick process to grant 

‘‘immediate’’ relief rather than serve as 

the culmination of DOE’s decisionmaking process on the petition for 

waiver. As a result, it is not intended to 

encompass a detailed review to 

determine all of the complex particulars 

of the alternate test procedure that may 

ultimately be granted as part of the 

decision and order on the waiver 

petition. DOE emphasizes that, as in the 

current regulations, it remains required 

to affirmatively make a decision as to 

whether to grant or deny the interim 

waiver petition. If DOE denies the 

interim waiver petition, it is required to 

notify the petitioner within the 45 

business day time period and post the 

notice on the website as well as publish 

its determination in the Federal 

Register as soon as possible after such 

notification. Moreover, in DOE’s past 

experience, the majority of interim 

waiver petitions were granted.6 As a 


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result, this final rule also states that if 

petitioner has not received notification 

of the disposition of the petition for 

interim waiver within 45 business days, 

the interim waiver petition is granted 

based on the criteria in DOE’s 

regulations at 10 CFR 430.27(e)(2) and 

10 CFR 431.401(e)(2)—specifically, that 

it is desirable for public policy reasons 

to grant immediate relief pending a 

determination on the petition for waiver 

or, such as in cases where DOE has 

granted waivers to other manufacturers 

for the same technology using the same 

or a similar alternate test procedure, that 

it is likely that the petition for waiver 

will be granted. The manufacturer may 

test and certify its products using the 

alternative test procedure included in 

the petition, and compliant products 

may be distributed in commerce. DOE 

will publish the grant or denial of the 

interim waiver in the Federal Register 

after its determination is made and 

posted online. 10 CFR 430.27(e)(1)(ii) 

and 10 CFR 431.401(e)(1)(ii). 

In response to comments suggesting 

that DOE provide for a ‘‘completeness 

check’’ or ‘‘full technical review’’, it is 

DOE’s intent to review the interim 

waiver request within the 45 business 

day time period. DOE notes the new 

provision in the final rule that for an 

interim waiver to be granted, the 

petitioner must submit an alternate test 

procedure. DOE reiterates that unless it 

acts to grant or deny the interim waiver 

within the 45 day period, the interim 

waiver will be granted at the end of the 

45 days according to the criteria in 

DOE’s regulations at 10 CFR 430.27(e)(2) 

and 10 CFR 431.401(e)(2), and DOE will 

then publish the grant of interim waiver 

and alternate procedure for public 

comment. During this time, DOE will 

conduct any necessary technical review, 

working with the manufacturer as 

necessary—and with the benefit of input 

from the public, including other 

manufacturers—to ensure that the 

alternate test procedure ultimately 

adopted upon the grant of any petition 

for waiver is appropriate. The benefit to 

the new process is that when DOE 

publishes a decision on the interim 

waiver and request for comment, DOE 

does not expect to have made significant 

changes to the alternate test procedure 

submitted with the interim waiver. If 

there are significant ‘‘red flags’’, as 

indicated in NEMA’s comment, DOE 

would deny the request for interim 

waiver and continue to process the 

petition for waiver. As a result, 

interested stakeholders will be able to 

provide input on the alternate test 

procedure as it was submitted by the 

petitioner, rather than an alternate test 

procedure to which DOE may have 

made substantial changes without the 

benefit of public input. DOE intends for 

the changes finalized in this rule to 

increase transparency and the use of 

stakeholder input in the waiver process. 

This approach is also intended to 

facilitate the introduction of innovative 

products to market and ensure that the 

burden to act promptly is on DOE. 

NEMA recommended that the final 

rule should include a short comment 

period of 10 days to provide 

stakeholders the opportunity to raise red 

flags if necessary before DOE finalized 

a petition for interim waiver and DOE 

agrees the process needs greater 

transparency. (NEMA, No. 55 at p. 4) 

Current regulations lack the 

transparency to provide manufacturers 

and concerned stakeholders notice of 

DOE activities when making changes to 

waivers petitions submitted by a 

manufacturer and an opportunity to 

engage in the process. This final rule 

seeks to increase transparency and 

provide a means of including 

stakeholder input in the Department’s 

review process. The final rule provides 

that members of the public will receive 

notice of interim waiver petitions 

through posting on the DOE website and 

publication of its decision in the 

Federal Register, 10 CFR 430.27(e)(1) 

and 10 CFR 431.401(e)(1). Stakeholders 

and other manufacturers will be made 

aware of the Department’s ongoing 

review and decision through these 

amendments to the existing regulation 

and can raise concerns during the 

processing of the interim waiver. 

DOE believes that this final rule 

directly addresses the concern 

expressed by commenters that the 

‘‘deemed granted’’ language included in 

the proposal would result in situations 

where DOE did not exercise its statutory 

responsibility to apply the regulatory 

requirements to all interim waiver 

petitions in an affirmative manner. (CA 

IOUs, No. 37 at p. 7) Some commenters 

argued that DOE’s proposed approach 

results in an abdication of the 

Department’s decision-making authority 

and does not meet DOE’s obligation to 

consumers nor does it promote a fair 

and level playing field among 

manufacturers. (A.O. Smith, No. 44 at p. 

1–3, concerned that the automatic 

granting of an interim waiver is an 

abdication of responsibility; NRDC, No. 

47 at p. 2–3, the Department must 

affirmatively review the request and 

decide that it is technically and 

procedurally appropriate to grant the 

interim waiver; Lennox, No. 48 at p. 4, 

pp. 5–6; and AG Joint Commenters, No. 

51 at p. 5, EPCA requires that DOE must 

make an affirmative determination) 

In response, DOE maintains that the 

language included in this final rule 

continues to require that DOE engage in 

a decision-making process for each 

interim waiver petition and provide 

notice of that decision to petitioners and 

the public. DOE will continue to fulfill 

its statutory obligations with respect to 

all waiver petitions it receives. Interim 

waivers to which DOE does not respond 

within the 45 business day period are 

granted pursuant to the criteria in DOE 

regulations at 10 CFR 430.27(e)(2) and 

10 CFR 431.401(e)(2)—specifically, that 

it is within the public interest to grant 

immediate relief pending a 

determination on the petition for 

waiver. The grant of an interim waiver 

ensures that the manufacturer subject to 

the interim waiver (and to any 

subsequent waiver) is testing and 

certifying its products pursuant to a 

DOE test procedure, as required by 

EPCA. DOE will then continue to review 

the petition for waiver and issue a 

decision and order on that petition after 

any further technical review and 

consideration of public input. By 

finalizing this rulemaking, DOE does 

not cede its authority to review interim 

waiver petitions or otherwise abdicate 

its decision-making responsibilities 

with regard to requests for waiver from 

the test procedure set forth in DOE’s 

regulations. 

In addition, as a result of the ‘‘deemed 

granted’’ language, commenters 

proposed revised notice and comment 

scenarios for consideration as part of the 

interim waiver process. Those 

commenters asserted that the proposal 

fails to require notice of a waiver be 

given to consumers and competitors, 

that consumers will lack the 

information needed to make informed 

decisions about appliances, and that the 

Department should provide prompt 

notice of approved petitions. 

(Anonymous 1, No. 17 at p. 1; Consumer 

Groups, No. 33 at p. 3; and DEEP, No. 

35 at p. 2) Supporting the proposal, BSH 

recommended adding in the final rule a 

provision regarding interim test 

procedure waivers deemed granted by 

the passage of time that the Department 

shall publish the waiver in the Federal 

Register immediately to ensure 

adequate notice to the public is 

provided. (No. 41 at p. 4) Additionally, 

Goodman notes that the existing process 

under 10 CFR 430.27(c)(1), which 

requires that notification of an interim 

test procedure waiver is only given to 

competitors in the same product class 

and after publication in the Federal 

Register, should be expanded. This 

commenter suggests that other 

manufacturers of the same product class 


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should also receive notification and an 

opportunity to comment. Such action 

would provide manufacturers of a given 

product class greater certainty of notice 

and opportunity to respond before a 

product is introduced into commerce. 

(Goodman, No. 54 at p. 2–4). 

In response to these comments, DOE 

agrees that public input is critical to 

DOE’s consideration of petitions for 

waiver of the DOE test procedure. DOE 

values input from stakeholders because 

such comments contribute to a better 

work product and help to resolve 

complicated technical issues. In this 

final rule, DOE has provided that all 

determinations made in response to 

interim waiver petitions will be 

published in the Federal Register after 

such decisions are made, taking into 

account the 45 business day deadline. In 

addition, to promote transparency, the 

regulations will require DOE to continue 

its current practice of posting waiver 

petitions online when they are received, 

so that the public and other 

manufacturers are aware that a petition 

for waiver and interim waiver has been 

submitted. The regulations also add a 

requirement for DOE to post decisions 

on interim waivers when those 

decisions are made. Posting of both 

receipt of a petition for interim waiver 

and DOE’s decision on an interim 

waiver will be made within 5 business 

days. 10 CFR 430.27(e)(1)(ii) and 10 CFR 

431.401(e)(1)(ii). 

DOE emphasizes that under the 

current regulatory requirements, the 

stakeholder comment period is triggered 

by DOE’s granting of an interim waiver. 

10 CFR 430.27(c) and (d) and 10 CFR 

431.401(c) and (d). This final rule does 

not change those requirements. 

Accordingly, DOE is not taking away 

any previous opportunity stakeholders 

had for comment prior to the grant of an 

interim waiver. To the contrary, DOE is 

facilitating additional transparency 

through issuance of this final rule. 

Previously, DOE in many cases 

conducted significant discussions with 

the manufacturer and made changes to 

the alternate test procedure submitted 

by the manufacturer without the benefit 

of input from the public, including 

other manufacturers and stakeholders in 

the process, as well as any other 

interested parties. Under this final rule, 

all of these interested groups will be 

afforded input at the very beginning of 

DOE’s process of considering an 

alternate test procedure. 

This rule is intended to expedite the 

review process and increase the 

transparency of the Department’s review 

of interim test procedure waivers. Under 

the amended requirements of this final 

rule, stakeholders will have the 

opportunity for comment on the waiver 

process as under the current regulations, 

with the added benefit of earlier 

engagement with the Department as it 

considers an alternate test procedure. 

DOE will leave in place its current 

comment procedure, seeking comment 

upon the grant or denial of any interim 

waiver request. DOE will continue to 

invite a robust discussion of technical 

and other issues during that comment 

period. 

Some commenters questioned 

whether the Department can meet the 

proposed ‘‘deemed granted’’ 30 business 

day deadline given that DOE’s data 

indicate that it has only met the 30-day 

deadline on one occasion. (NPCC, No. 

21 at p. 2) Comments submitted by 

NRDC note that such a timeframe is 

unwarranted given that the Department 

has failed to respond to interim waiver 

requests in that timeline in the past. 

Further, commenters contend that it is 

unlikely DOE will meet this deadline 

because the NOPR does not include a 

rational explanation for meeting the 

proposed 30 business day time period. 

(NRDC, No. 47 at p. 4–5). 

Upon further review of the proposed 

timeframe, DOE has decided to extend 

the internal review period from the 30 

business days referenced in the NOPR to 

45 business days in this final rule. DOE 

notes that its dataset includes an 

additional three interim waivers were 

granted during this 45-business day 

timeframe as opposed to the 30-business 

day timeline, further supporting that 

DOE is able to consider interim waivers 

during the 45-business day time period 

adopted in this final rule. As with the 

modernized Process Rule referred to 

above, DOE views its examination of the 

interim test procedure waiver process as 

an opportunity to improve how the 

Department administers its programs. 

As was mentioned earlier in this 

document, much of DOE’s delay in 

responding to a request for an interim 

waiver involved lengthy, private 

technical discussions with the requester 

attempting to re-design an alternate test 

procedure before seeking public input. 

Under this final rule, DOE will ensure 

that it acts expeditiously on requests for 

interim waiver and that any in-depth 

technical review will take place with 

the benefit of public comment, during 

DOE’s decision-making process on the 

petition for waiver. This final rule will 

increase the transparency of the process 

and ensure that the manufacturer can 

distribute its products in commerce 

under an interim waiver while DOE 

processes the waiver request. 

Many commenters expressed their 

concern that if DOE codified its original 

proposal, the system for interim waivers 

would institutionalize a process that 

would allow for abuse. Commenters 

who took this position believe that the 

‘‘deemed granted’’ language would 

allow manufacturers with ill-intent to 

abuse the process by submitting waiver 

applications with faulty alternate test 

procedures or perhaps no alternate test 

procedures at all and nevertheless have 

their interim waivers granted within the 

proposed 30-business day period. These 

commenters stated that manufacturers 

who play by the rules and are producing 

compliant products or equipment would 

be harmed. In addition, they argued that 

foreign importers would receive a 

competitive advantage to the detriment 

of American manufacturers. (HardinLevine, No. 2 at p. 1; Stewart, No. 7 at 

p. 1; Franke, No. 8 at p. 1; Gould, No. 

13 at p. 1; Anonymous 1, No. 17 at p. 

1–2; NPCC, No. 21 at pp. 1–2; Traulsen 

No. 25, at p. 3; Sachs, No. 29 at p. 2; 

Consumer Groups, No. 33 at p. 2; 

Carrier, No. 36 at p. 2; CA IOUs, No. 37 

at pp. 1–2; Nortek, No. 38 at p. 3; CEC, 

No. 40 at p. 4; AHRI, No. 42 at p. 2; ASE 

No. 43 at p. 3; A.O. Smith, No. 44 at pp. 

1–3, 5; NASEO, No. 45 at p. 1; ASAP et 

al., No. 46 at pg. 3, 5; Lennox, No. 48 

at pp. 3–4; Earthjustice, No. 49 at p. 1, 

4; and AG Joint Commenters, No. 51 at 

p. 2, 8). Commenters voiced their 

concerns that the proposal ‘‘[c]ould 

open the floodgates for a deluge of 

substandard foreign products to enter 

U.S. markets to the detriment of U.S. 

manufacturers,’’ therefore DOE should 

not finalize a ‘‘deemed granted’’ interim 

waiver approach if the Department does 

not act in 30 days. (Lennox, No. 48 at 

p. 3–4) 

Other commenters did not believe 

that the proposed process would allow 

for abuse. Acuity disagreed with these 

arguments and counted that through 

stakeholder engagement conducted 

throughout the test procedure 

rulemaking process that interim waivers 

are likely to be used infrequently and 

will not become a general opt out 

mechanism. (No. 14 at p. 3) Some 

commenters argued against these 

concerns by highlighting that there is 

language in the proposal that protects 

against an abuse of the process and that 

there are penalties if a manufacturer 

breaks the law also in place. (FSI, No. 

16 at p. 2) The SBA also commented 

that the concern regarding possible 

abuse of the process was unfounded 

because the proposal only eliminated a 

bottleneck in the review process by 

requiring DOE to meet a time limit and 

even if an interim waiver is 

automatically granted that the 

application for the full waiver will still 

undergo a review by the Department. 


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(No. 23 at p. 4) Lastly, some commenters 

noted that even if abuse were to happen, 

DOE’s regulation already includes a 

remedy and nothing in the proposal 

removes this authority. Commenters 

cited 10 CFR 430.27(k), which provides 

DOE the authority to rescind or modify 

a waiver or interim waiver at any time 

if DOE determines that the underlying 

factual basis is incorrect or determines 

that the results from an alternative test 

procedure are unrepresentative of the 

true energy consumption. (Joint 

Industry Commenters, No. 52, at p. 5) 

DOE emphasizes that if DOE has not 

notified the petitioner of the disposition 

of an interim waiver within the 45 

business day period, that interim waiver 

is granted according to the existing 

criteria in 10 CFR 430.27(e)(2) and 10 

CFR 431.401(e)(2)—specifically, that it 

is desirable for public policy reasons to 

grant immediate relief pending a 

determination on the petition for waiver 

or, such as in cases where DOE has 

granted waivers to other manufacturers 

for the same technology using the same 

or a similar alternate test procedure, that 

it is likely that the petition for waiver 

will be granted. DOE therefore no longer 

uses the term ‘‘deemed granted’’ in this 

rulemaking. DOE again notes a change 

to its regulatory text in response to these 

comments—specifically, if no alternate 

test procedure is submitted, DOE will 

not grant an interim waiver but will 

publish the denial of interim waiver and 

request for comment on the petition for 

public comment, so that it can process 

the waiver petition with the benefit of 

public comment on what the alternate 

test procedure should be. 

DOE is not persuaded by commenters’ 

concern regarding the likelihood of 

abuse of process by U.S. and foreign 

manufacturers. DOE finds the fear of 

speculative abuse unlikely as there is no 

evidence of such abuse and little reason 

to expect that the proposal would open 

the door to abuse by manufactures. 

(Joint Industry Commenters, No. 52 at p. 

4) In DOE’s experience over many years, 

the Department has not seen the waiver 

process abused as some commenters 

suggest. DOE believes that it is highly 

unlikely that a manufacturer would 

spend the time, effort, and funds to 

submit a faulty application on the hope 

that it might slip through and the risk 

that the requester might be alerting DOE 

to non-compliant products. As many 

commenters pointed out, manufacturers 

are incentivized to get their interim test 

procedure waivers right the first time. 

Commenters identified the following 

reasons as justification for why it is in 

the best interest of petitioners to ensure 

that the alternate test procedure is 

correct the first time around are as 

follows: Brand reputation, competitors 

will highlight any unfair procedures 

engaged in by others, the creation of 

significant marketing costs, and the fact 

that there are significant costs to 

conducting test procedures so 

manufacturers prefer not to retest if it 

can be avoided. (BSH, No. 41 at p. 4; 

and NEMA, No. 55 at p. 6) Commenters’ 

concern overlooks the reality that DOE 

continues to review interim waiver 

petitions and waiver petitions and 

would find these abuses if they did 

exist. 

Moreover, several commenters stated, 

and common sense suggests, that it is 

highly unlikely that stakeholders want 

to attract negative attention and incur 

the risk of DOE enforcement. While it is 

always possible that some stakeholder 

on some occasion will attempt to abuse 

any process, DOE believes this is a rare 

situation, if it were to happen at all. 

DOE agrees with the Joint Industry 

Commenters who reasonably point out 

that it would be ‘‘odd that a 

manufacturer intent on abusing the 

system would notify DOE and the 

public by petitioning for a test 

procedure waiver’’ using a faulty or 

fraudulent test procedure. (No. 52 at p. 

4) Similarly, Lutron noted that the 

Department should not let the ‘‘fear of 

a bad actor’’ prevent this regulatory 

process from working for everyone else. 

(No. 53 at p. 3) 

The Department does not base its 

decision-making process upon 

speculative behavior of alleged 

manufacturers who might act in bad 

faith. Further, DOE believes that if a 

manufacturer engaged in this behavior, 

it would likely be (as noted by 

commenters) detrimental to the 

reputation of the manufacturer. In 

addition, DOE’s existing regulations 

already provide a remedy for abuse of 

the test procedure interim waiver and 

waiver process. 10 CFR 430.27(k) 

provides DOE with the authority to 

‘‘rescind or modify a waiver or interim 

waiver at any time upon DOE’s 

determination that the factual basis 

underlying the petition for waiver or 

interim waiver incorrect, or upon a 

determination that the results from an 

alternative test procedure are 

unrepresentative of the basic model(s) 

true energy consumption 

characteristics.’’ Nothing in this final 

rule removes this authority from the 

Department. 

In their challenge to the NOPR as 

allowing for the sale of non-compliant 

products to enter the market, ASAP et 

al. remarked that incomplete interim 

waivers petitions would be ‘‘deemed 

granted’’ after 30 days. A manufacturer 

could circumvent the energy 

conservation standard by submitting a 

petition lacking an alternative test 

procedure, they argued, and therefore be 

able to sell a product without 

conducting any testing. (ASAP. et al., 

No. 46 at p. 3) Other commenters also 

expressed their concern about what 

DOE would do when an alternative test 

procedure is not included in the 

submission. (Lennox, No. 48 at pp. 4– 

5) Commenters suggested that DOE 

should reject all incomplete interim 

waiver and waiver applications, 

including those without a valid test 

method included, so that applicants can 

then revise and resubmit the petition. 

(A.O. Smith, No. 44 at p. 3) 

In response to these questions 

concerning an interim test procedure 

petition submitted without the required 

alternate test procedure, DOE wants to 

make very clear that, in reality, this 

scenario does not happen. That is, 

petitions for interim waiver and waiver 

submitted to the Department do include 

an alternative test procedure. However, 

in the exceedingly rare case that a 

requestor may not include an alternate 

test procedure, DOE has added language 

to the regulatory text stating that, if a 

petition is submitted without an 

alternative test procedure, DOE will 

deny the petition for an interim waiver 

and move to consideration of the waiver 

request. Commenters agree that 

manufacturers must have a viable way 

to test a covered product in the situation 

where the current DOE test procedure is 

inadequate to properly test specific 

basic models with specific design 

characteristics. Because the denial of 

interim waiver is published for public 

comment, the alternate test procedure 

ultimately developed as part of any 

grant of a waiver petition will benefit 

from input from other manufacturers, 

stakeholders, and interested parties. 

DOE received comments arguing that 

DOE had not taken the impact on 

consumers from this proposal into 

consideration. Commenters asserted that 

the Department’s ‘‘deemed granted’’ 

approach would allow noncompliant 

products into the marketplace for an 

indefinite period of time thereby 

harming consumers who would 

unknowingly purchase a product that 

does not meet DOE energy conservation 

standards, thereby resulting in higher 

energy costs to consumers. (Stewart, No. 

7 at p. 1; Anonymous 1, No. 17 at p. 1– 

2; NPCC, No. 21 at p. 2; WA State 

Energy Office, No. 22 at p. 1; Better 

Research Climate and Policy Analysis, 

No. 24 at pp. 1–2; Consumer Groups, 

No. 33 at p. 2–3; CA IOUs, No. 37 at p. 

1; Ingersoll Rand, No. 39 at p. 2; CEC, 

No. 40 at p. 4–6, 8; ASE, No. 43 at pp. 

2–3; A.O. Smith, No. 44 at p. 1, pp. 2– 


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3; NASEO, No. 45 at p. 1; ASAP et al., 

No. 46 at pg. 3, 5; Lennox, No. 48 at pp. 

3–4; Earthjustice, No. 49 at pp. 1–2; AG 

Joint Commenters, No. 51 at p. 2, 8; and 

Goodman, No. 54 at p. 2) 

This final rule requires DOE to make 

decisions on all interim waiver requests 

within 45 business days. Because DOE 

publishes the decision on the interim 

waiver (and, at the same time seeks 

comment on the waiver petition), during 

or as soon as possible after the 

conclusion of this time period, 

consumers will be situated in a better 

position under this final rule than under 

DOE’s previous procedures. The 

alternate test procedure will be 

published for comment as part of the 

grant or denial of any interim waiver, 

and consumers will benefit from being 

able to see comments provided on the 

alternate test procedure, including those 

from other manufacturers, which will be 

publicly available on http://

www.regulations.gov. Moreover, as 

stated previously, DOE reaffirms that it 

is extremely doubtful that a 

manufacturer would go to the time and 

expense of submitting a fraudulent 

waiver petition in the hope of getting a 

small period of time to sell 

noncompliant products that would 

cause adverse impacts to consumers. 

Instead, DOE maintains that consumers 

will likely benefit from this rulemaking 

as innovative products will be made 

available more quickly and expand 

consumer choice when selecting a 

product to best meets consumers’ needs. 

In challenging the validity of the 

NOPR, several commenters argued that 

DOE lacks the statutory authority to 

create and amend the waiver process. 

Earthjustice argued specifically that 

EPCA does not explicitly authorize a 

waiver process pursuant to which 

manufacturers can avoid applying 

DOE’s test procedures to their products, 

but provides only an authorization to 

DOE to amend a test procedure in 

response to petitions submitted by 

interested persons, under 42 U.S.C. 

6293(b)(2). (No. 49 at p. 2) These 

commenters argue the NOPR has 

violated the APA’s requirement to 

reference the legal authority under 

which a rule is proposed. (Earthjustice, 

No. 49, at p. 2 citing 5 U.S.C. 553(b)(2); 

see also AG Joint Commenters, No. 51 

at p. 4–5; and Lennox, No. 48 at p. 5) 

Stakeholders also commented that it is 

DOE’s responsibility to provide a path 

to compliance for all manufacturers that 

sell covered product because they are 

legally subject to DOE standards 

regulation. (Joint Industry Commenters, 

No. 52 at p. 1). 

Section 393 of EPCA (42 U.S.C. 6293) 

provides the Department with the 

authority to adopt new test procedures 

and to amend existing test procedures 

for covered products when such test 

procedures would more accurately or 

fully comply with the requirement that 

the test procedure be reasonably 

designed to produce results that 

measure energy efficiency, energy use, 

water use, or estimated annual operating 

costs of a representative average use 

cycle or period of use. DOE first adopted 

regulations implementing waiver 

procedures in 1980, and has updated 

the regulations three times in 1986, 

1995, and most recently in 2014 with no 

concerns raised. 45 FR 64109 

(September 26, 1980); 51 FR 42823 

(November 26, 1986); 60 FR 15004 

(March 21, 1995); and 79 FR 26591 (May 

9, 2014). DOE emphasizes that the 

alternate test procedure specified in a 

waiver or interim waiver is a DOE test 

procedure, adopted by the Department. 

Manufacturers are authorized to use this 

alternate DOE test procedure through 

the decision and order issued by DOE 

upon consideration of the waiver 

petition. DOE further notes that 

alternate test procedures authorized 

through DOE decision and orders are 

used by DOE in developing appropriate 

test procedure amendments pursuant to 

42 U.S.C. 6293. As the Department has 

done for decades under the existing 

‘‘waiver’’ rules, the Department is 

simply issuing a test procedure under 

EPCA applicable to certain technologies 

not considered in the existing codified 

test procedure. 

The waiver process, both interim and 

final, is the process codified in DOE’s 

regulations by which DOE addresses 

new and emerging technologies as they 

come on the market between test 

procedure rulemakings. Without it, 

affected manufacturers would be 

excluded from the market and would 

have no recourse until DOE engages in 

future rulemaking. DOE does not read 

EPCA to prohibit manufacturers with 

new and innovative products from being 

able to test and certify their products for 

consumer use until DOE were to engage 

in a future rulemaking. DOE also does 

not believe that stakeholders are 

advocating for the elimination of the 

waiver process. There was 

overwhelming support for having such 

a process in place for those instances 

when products fall outside the scope of 

the applicable, codified test procedure 

requirements. Manufacturers, interested 

stakeholders, and consumers rely on 

DOE’s ability to consider amendments 

to the test procedure to more fully or 

accurately comply with EPCA’s 

requirement to measure the energy use 

of a representative average use cycle or 

period of use that authorizes the waiver 

process so that potential amendments to 

the test procedure can be considered in 

fact-specific circumstances. To read 

EPCA otherwise would likely place a 

barrier on the availability of future 

innovative and potentially energy 

conserving products. 

Several commenters argued that the 

economic analysis included in the 

NOPR is based on faulty assumptions 

and that many of those assumptions 

assessing the impact of the NOPR 

resulted in a significant overestimation 

of the costs of the interim waiver 

process on manufacturers. (Better 

Climate Research and Policy Analysis, 

No. 24 at pp. 1–2; CEC, No. 40 at pp. 

7–9; ASE, No. 43 at pp 4–5; ASAP et al., 

No. 46 at p. 6–7; NRDC, No. 47 at p. 5; 

and Goodman, No. 54 at p. 5) Some 

commenters stated that DOE severely 

underestimated the costs of allowing 

non-compliant products onto the 

marketplace through the proposed 

‘‘deemed granted’’ approach. The CA 

IOUs argued that many of these 

assumptions used to assess the impact 

of the NOPR resulted in a significant 

overestimation of the monetary impacts 

facing manufacturers, while 

understating impacts to customers, 

competitors and the environment, 

including the potential abuse from 

allowing the introduction of 

noncompliant and less efficient product 

into the market for a period of time. 

These and other commenters seek 

additional information from DOE on the 

economic and environmental costs and 

benefits of the proposed rule and a full 

assessment of negative impacts of the 

rulemaking. (CA IOU’s, No. 37 at pp. 

3–7; and AG Joint Commenters, No. 51 

at p. 8). 

On the other hand, NAFEM 

commented that the proposal correctly 

identifies many of the real costs and 

impacts to companies from the current 

process that unreasonably delays 

decisions on interim waiver requests. 

The current process prohibits 

companies from bringing valuable 

products to the marketplace while 

waiver requests are reviewed and 

interim waiver decisions are delayed. 

Commenters assert that such delays are 

unreasonable, given the specificity of 

the regulatory requirements for grant of 

an interim waiver, and supported the 

changes proposed in the NOPR. 

(NAFEM, No. 26 at p. 3). 

As discussed in section III of the 

NOPR, DOE reviewed the time lags 

between the receipt of the waiver 

application and issuance of an interim 

waiver, and considered the anticipated 

cost savings that could result from 

waivers granted following the proposal’s 


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7Of these, two waivers were withdrawn and one 

waiver was delayed pending ongoing litigation. 84 

FR 18414, 18416 (May 1, 2019). 

deemed granted approach. DOE relied 

on the 40 waiver applications submitted 

between 2016 and 2018, 33 7 of which 

included interim waiver requests, to 

note that only one interim waiver 

request was granted within 30 business 

days of receipt of the application and 

one-fifth of the requests were resolved 

in under 100 days. On average, the 

Department determined, interim waiver 

requests received in 2016 took 162 days 

to resolve, those received in 2017 took 

202 days, and those received in 2018 

took 208 days. DOE’s data illustrated 

that there was a need for issuance of a 

timely interim waiver while the full 

waiver was under review because the 

primary anticipated cost savings 

considered resulted by reducing the 

number of days by which a 

manufacturers revenues were delayed. 

84 FR 18414, 18416–18417, 18418 (May 

1, 2019). Setting mandatory timelines 

within the Department’s review process 

will help prevent the financial impacts 

manufacturers currently experience as a 

result of delays in the processing of 

interim waiver requests. 

In response to these concerns about 

the economic analysis conducted, DOE 

does not believe that the rule will allow 

noncompliant products onto the market 

for an indefinite period of time. To the 

contrary, the regulations allow 

manufacturers to test their product 

according to a DOE test procedure under 

an interim waiver while DOE considers 

public comment and other information 

in determining whether changes are 

warranted to the test procedure 

ultimately specified in the decision and 

order on the waiver petition. At all 

times, manufacturers will test and 

certify according to a DOE test 

procedure and will distribute in 

commerce only products that are 

compliant with the DOE standard. 

Several commenters objected to DOE’s 

proposal as unnecessary given that DOE 

already has an enforcement policy that 

addresses the underlying basis of the 

rule, that manufacturers with innovative 

products that cannot be tested under 

existing DOE test procedures will be 

harmed because delays in processing 

interim waivers prevent them from 

selling their product. These commenters 

point out that the current DOE 

enforcement policy addresses this issue. 

(ASAP et al., No. 46 at p. 5; Lennox, No. 

48 at p. 10; and Earthjustice, No. 49 at 

p. 5–6) These commenters argue that 

under DOE’s enforcement policy, as 

long as a petition for waiver has been 

filed, such products can be sold without 

fear of enforcement action. Accordingly, 

they state that because of the 

enforcement policy there is no reason 

that the existing interim waiver process 

should result in any delays concerning 

the introduction of innovative products. 

Hence, the NOPR cannot result in cost 

savings based on such delays and is 

therefore is unnecessary. (ASAP et al., 

No. 46 at p. 6; and A.O. Smith, No. 44 

at p. 4) Some commenters noted that the 

Department’s existing policy should 

remain the mechanism for dealing with 

the market introduction of truly 

innovative and ‘‘first of its kind’’ 

products while test procedure waiver 

applications are pending. (A.O. Smith, 

No. 44 at p. 4) Additionally, other 

commenters argued that DOE has failed 

to explain why its proposal is necessary 

given this non-enforcement policy. (AG 

Joint Commenters, No. 51 at p. 7) One 

commenter called the proposal a 

practical status quo that is consistent 

with the Department’s 2010 

enforcement policy. 

NEMA supported the proposal 

because interim waivers provide a 

necessary pathway for manufactures to 

introduce innovative products into the 

market that would otherwise be barred 

as being noncompliant. NEMA 

continued that the Department’s policy, 

in which DOE will not seek civil 

penalties for noncompliant products 

that have test procedure waiver 

application under review, reflects the 

realization that because waiver petitions 

require dedicated resources and 

significant time to evaluate that 

manufactures can be unfairly excluded 

from the market during delays. (No. 55 

at pp. 3–4) 

In response to commenters opposed to 

the proposed rule because they believe 

it would allow non-compliant products 

on the market, DOE views the nonenforcement policy as creating the same 

extremely low risk. As a practical 

matter, based on its experience, DOE 

believes that the enforcement policy 

alone is insufficient to address 

manufacturer concerns with the ability 

to sell products that they cannot test 

and certify pursuant to a DOE test 

procedure. Manufacturers argued that 

their business is protected from the 

possibility of an adverse DOE action 

only if DOE has granted either an 

interim waiver or final waiver under 

which they can operate. As ASE pointed 

out, the interim waiver process is 

worthy of revision to provide 

manufacturers with greater 

predictability and improve transparency 

so that the public can have confidence 

in the energy efficiency of a given 

product. Further, due to the long delays 

in making a decision on an interim 

waiver and publishing for comment a 

petition for waiver, the current practice 

of non-enforcement pending a decision 

from the Department allows 

manufacturers an extended period to 

sell into the market without 

competitors, consumers, or other 

interested stakeholders being made 

aware of a pending waiver decision. 

(ASE, No. 43 at pp. 2–3) DOE stating a 

position that it will not take 

enforcement action while a waiver 

request is pending also does nothing to 

provide the manufacturer with a means 

to test a product to show compliance. A 

non-enforcement policy is of little value 

if the product cannot be sold due to a 

manufacturer’s inability to demonstrate 

to its customer that the product is 

legally compliant with the applicable 

energy conservation standard. A more 

efficient interim waiver process, as set 

forth in this final rule, is the best means 

of providing a clear, transparent path for 

a manufacturer to achieve compliance 

while their final waiver is under review 

or while DOE completes a rulemaking 

for a new or amended test procedure to 

address the issues raised in the waiver. 

The NOPR included a provision 

providing that if DOE ultimately denies 

a petition for waiver or grants the 

petition with a different alternate test 

procedure than specified in the interim 

waiver, DOE would provide a grace 

period of 180-days for the manufacturer 

to use the test procedure specified in the 

DOE Decision and Order to make 

representations of energy efficiency. 84 

FR 18414, 18416 (May 1, 2019). 

Comments identified several viewpoints 

on the Department’s proposed revision. 

Some commenters voiced their support 

for the addition of the 180 day grace 

period. (AHRI, No. 42 p. 4; and Joint 

Industry Commenters, No. 52 at p. 5) 

Some commenters noted that the grace 

period provides manufacturers certainty 

and permits time to retest and recertify 

equipment accordingly, and 

recommended that this timeline should 

be discretionary as well. (NEMA, No. 55 

at pg. 6; and Nortek, No. 38 at p. 2) 

Commenters also noted that without the 

inclusion of a grace period 

manufacturers would be less likely to 

use the waiver process, which would 

ultimately result in less innovative 

products being introduced to the 

market. (Lutron, No. 53 at p. 3). 

Other commenters argued that the 

NOPR’s proposed grace period was too 

long and should be reduced, from 30– 

60 days or capped at 60 days. 

(Anonymous 1, No. 17 at p. 1; and 

Carrier, No. 36, at p. 3) Reducing the 

compliance period to 60 days would 

limit the time a noncompliant product 

would be on the market. Some 


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commenters believed that 

manufacturers who are granted waivers 

with a modified test procedure should 

receive less than 180 days, based upon 

the magnitude of changes between the 

prescribed test procedure and the one 

originally proposed by the 

manufacturer, to comply with the order. 

Alternatively, one commenter suggested 

that the final rule should include a 

longer grace period because product 

design changes and supply chain recertifications needed to meet regulatory 

approvals are a complicated and lengthy 

process, but did not specify a specific 

alternative duration. (ITI, No. 20 at p. 

1–2). 

Still other commenters objected to the 

180-day grace period and want it 

removed from the final rule. Generally, 

such commenters believe that 

manufacturers who are denied a waiver 

should be compelled to start testing 

immediately so they cannot sell noncompliant products for an extended 

period of time. (Sachs, No. 29 at p. 2; 

CA IOUs, No. 37 at p. 3; CEC, No. 40. 

at pp. 4–5; and ASE, No. 43, at p. 4) 

Commenters suggested that in the event 

information submitted by an applicant 

was grossly or intentionally inaccurate, 

unrepresentative or misleading, the 

grace period should be eliminated. 

(Lennox, No. 48 at pp. 8–9) Others 

argued that if DOE grants a waiver based 

on an alternate test procedure that DOE 

modified from the one proposed by the 

manufacturer, the existing regulations at 

10 CFR 430.27(i) already provide a 

sufficient grace period, relieving a 

manufacturer of the burden of re-testing 

and re-rating when an alternate test 

procedure is directed by DOE in the 

final waiver. (CEC, No. 40 at p. 5). 

As DOE explained in the NOPR, the 

grace period offers manufacturers a safe 

harbor in the event that a waiver is 

denied or revisions to an interim waiver 

are required. The Department recognizes 

that manufacturers need time to comply 

with a new test procedure. The 180 day 

duration was proposed because that 

time frame is consistent with the EPCA 

provision that provides manufacturers 

180 days from issuance of a new or 

amended test procedure to begin using 

that test procedure for representation of 

energy efficiency. 84 FR 18414, 18416 

(May 1, 2019); See 42 U.S.C. 6293(c)(2). 

The Department understands that less 

than 180 days may be needed if any 

changes to the alternate test procedure 

specified in an interim waiver are minor 

and emphasizes that nothing in DOE’s 

waiver regulations prohibits a 

manufacturer from commencing use of 

the new alternate test procedure in less 

than 180 days. In the event that 

information submitted by the applicant 

was inaccurate or unrepresentative, 

DOE retains the ability under its 

regulations to rescind or modify a 

waiver at any time. After considering all 

of the many viewpoints on the 180 day 

grace period provision, the Department 

has decided that it is necessary to 

provide manufacturers time to comply 

before enforcement measures can be 

initiated. Because the waiver process 

concerns the issuance or amendment of 

a test procedure in light of the specific 

circumstances that gave rise to the need 

for a waiver, the waiver process is no 

different than the rulemaking process 

for the issuance or amendment of a test 

procedure. As a result, DOE maintains 

the 180 day grace period consistent with 

the time period provided in 42 U.S.C. 

6293(c) and 42 U.S.C. 6314(d) in this 

final rule. 

Additionally, in response to the 

comment indicating that the existing 

regulation already includes a grace 

period in 10 CFR 430.27(i) and 10 CFR 

431.401(i) that makes the 2019 NOPR’s 

inclusion of an grace period in the 

initially proposed 10 CFR 

430.27(e)(1)(iii) and 10 CFR 

431.401(e)(1)(iii) duplicative, DOE has 

relocated the 180-day grace period to 10 

CFR 430.27(i)(1) and 10 CFR 

431.401(i)(1) in this final rule. 

Some commenters stated that 

finalizing this proposal could indirectly 

allow for backsliding of energy 

conservation standards. These 

commenters argued that if changes to 

the test procedure would impact 

measured efficiency, the efficiency 

standard must then be amended so that 

products minimally compliant under 

the original procedure will remain 

compliant under the new procedure. 

(NRDC, No. 47 at p. 3–4 referencing 42 

U.S.C. 323(e)) Commenters continued 

by stating that if DOE amends a test 

procedure and that test procedure 

changes the measured efficiency such 

that the efficiency standard must be 

amended, DOE cannot pick a new 

efficiency threshold that is lower than 

the old efficiency standard. This 

proposal enables DOE to indirectly do 

what EPCA clearly forbids under its 

anti-backsliding provision, 42 U.S.C. 

6295(o)(1). (NRDC, No. 47 at p. 4) 

Similarly, other commenters argued that 

the proposal amounted to a ‘‘more 

tailored approach’’ to rolling back test 

procedures and efficiency standards, 

which lead to the same loss of efficiency 

EPCA’s anti-backsliding provision was 

intended to prevent. (AG Joint 

Commenters, No. 51 at p. 9). 

In response to these concerns, DOE 

notes that the commenters’ concern 

appears equally applicable to a grant of 

interim waiver or waiver pursuant to 

DOE’s waiver regulations generally, 

irrespective of this final rule. DOE 

maintains that the issuance of a waiver 

or interim waiver pursuant to DOE’s 

waiver regulations, including the 

amendments in this final rule, will not 

violate EPCA’s prohibition against 

backsliding at 42 U.S.C. 6295(o)(1). As 

explained above, a test procedure 

waiver (decision and order) and interim 

waiver are a test procedure prescribed 

by the Department. Under 42 U.S.C. 

6293 and 42 U.S.C. 6314, EPCA sets 

forth the criteria and procedures that 

DOE is required to follow when 

prescribing or amending test 

procedures. This final rule does not roll 

back energy conservation standards. 

This final rule provides clear direction 

on how manufacturers can test their 

product to determine compliance with 

energy conservation standards when 

they have manufactured a new and 

innovative product that cannot 

adequately be tested for compliance 

with the existing standard using the 

existing test procedure. 

DOE also received comments 

challenging the Department’s position 

in the NOPR, at Footnote 5, stating that 

granting an interim waiver application 

is not a final agency action as 

contemplated by the APA, which 

defines an ‘‘agency action’’ as including 

‘‘the whole or a part of an agency rule, 

order, license, sanction, relief, or the 

equivalent or denial thereof, or failure to 

act.’’ 84 FR 18414, 18416 (May 1, 2019) 

referencing 5 U.S.C. 551(13). 

Commenters argued that the ‘‘deemed 

granted’’ interim waiver would 

constitute final agency action and that 

the Department’s position overlooks the 

reality that an interim waiver 

application is a separate process that is 

distinct from the request for a decision 

and order granting a test procedure 

waiver. Commenters continued by 

stating that the finality of the interim 

waiver ensures that DOE cannot 

withhold judicial review indefinitely 

through prolonged inaction while an 

interim waiver is in effect; the separate 

process of issuing an interim waiver 

from the test procedure makes it a final 

decision. (Earthjustice, No. 49 at p. 

7–8) Commenters continued that the 

finality of the interim waiver ensures 

that DOE cannot withhold judicial 

review indefinitely through prolonged 

inaction while an interim waiver is in 

effect and to find otherwise would lead 

to an absurd result. (AG Joint 

Commenters, No. 51 at p. 9). 

While DOE recognizes that courts are 

responsible for determining whether 

judicial review is available under the 

APA for a particular agency action, DOE 

reiterates that interim waivers do not 


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represent the consummation of the 

Department’s decision-making process. 

As noted in the NOPR, the Supreme 

Court has explained to be ‘‘final,’’ an 

agency action must ‘‘mark the 

consummation of the agency’s decisionmaking process, and must either 

determine rights or obligations or 

occasion legal consequences.’’ Alaska 

Dep’t of Envtl. Conservation v. EPA, 540 

U.S. 461, 482 (2004) (quotation 

omitted); see Bennett v. Spear, 520 U.S. 

154, 178 (1997). While manufacturers 

would be able to test and distribute their 

products or equipment in commerce if 

granted an interim waiver under the 

proposal, continued distribution is 

dependent upon DOE’s decision on the 

petition for waiver. DOE regulations 

contemplate further process on the 

waiver request after issuance of an 

interim waiver decision, including 

publication of the interim waiver for 

comment, further indication that DOE’s 

decision-making process on the waiver 

is not complete. DOE will consider any 

comments received, as well as any 

additional information provided by the 

petitioner or developed by the 

Department, in issuing a final decision 

on the associated petition for waiver, or 

a final rule amending the test procedure. 

Either of these actions could have rights 

or obligations, or consequences, that 

differ from those provided temporarily 

under an interim waiver. 84 FR 18414, 

18416 (May 1, 2019), footnote 5. 

Commenters argued that establishing 

a timeframe for final waiver 

determinations would encourage timely 

responses and communication during 

the process would ultimately provide 

certainty for the market. (Acuity, No. 14 

at p. 2) Commenters also objected to the 

removal from the regulations in the 

proposal of the one year deadline for 

DOE to either grant or deny a waiver or, 

to complete a test procedure to address 

the issues raised by the waiver petition. 

(ITI, No. 20 at p. 1; Traulsen, No. 25 at 

1; NAFEM, No. 26 at pp. 3–4; and 

Carrier, No. 36 at p. 2). 

Lennox stated that interim waivers 

must not be allowed to continue 

indefinitely, but argued that if DOE fails 

to act within one year of issuing an 

interim waiver, the interim waiver 

should continue to remain in effect until 

DOE takes action. These commenters 

condition this extension by clarifying 

that petitioners or other stakeholders 

should not be able to bring judicial 

action to compel DOE to render a final 

determination. (Lennox, No. 48 at p. 8) 

Other commenters took a similar stance 

in that they supported the notice that 

interim waivers were to remain in effect 

until a decision was published in the 

Federal Register on the waiver petition 

or, an amended test procedure was 

published. (NEMA, No. 55 at p. 6). 

In response, DOE understands the 

commenters’ concerns about an interim 

waiver persisting indefinitely and 

retains the language at 10 CFR 430.27 

and 10 CFR 431.401 in this final rule 

that DOE will issue a decision and order 

or amend the test procedure to address 

the issue(s) presented in the waiver 

petition within 1 year of issuance of an 

interim waiver. 

DOE also received comments 

asserting that the Department’s NOPR 

may not withstand the scrutiny of the 

APA because the Department has failed 

to provide satisfactory explanations for 

its proposed action and is proposing to 

forego independent judgment on this 

matter by deferring to private parties. 

The commenters suggest that if the 

Department will not withdraw the 

NOPR then it should consider issuing a 

Supplemental Notice of Proposed 

Rulemaking (SNOPR) to address the 

issues raised during the comment 

period. (CA IOUs, No. 37 at p. 8–9). 

In response, DOE notes that the 

comment period was extended on 

multiple occasions to allow commenters 

to provide additional feedback on the 

NOPR. In both the NOPR and this final 

rule, DOE has provided detailed 

explanations regarding its decisionmaking process. DOE has explained its 

reasons for undertaking this action and 

considered the comments received by 

members of the public and industry 

when making the decision to move 

forward with this final rule. DOE has 

also determined that the minor changes 

DOE is making from the NOPR (e.g., 

extending the time period from 30 to 45 

business days) are the logical outgrowth 

of the issues raised in the proposed rule 

and the comments submitted by 

interested parties. As a result, DOE has 

determined that an SNOPR is 

unnecessary. 

Some commenters argued that DOE 

has unlawfully changed its 

interpretation of its test procedure 

waiver regulations by failing to provide 

a reasoned explanation for allowing an 

interim waiver to be ‘‘deemed granted’’ 

if the Department fails to provide notice 

within 30-business days of receipt of the 

petition. (Earthjustice, No. 49 at p. 4 

referencing FCC v. Fox Television 

Stations, 556 U.S. 502, 515–16 (2009); 

AG Joint Commenters, No. 51 at p. 6) 

Commenters look to the Department’s 

2014 amendments to the test procedure 

waiver regulations, noting that DOE did 

not in that rulemaking allow 

manufacturers to extend previously 

granted waivers to additional models 

with the same technology or 

characteristics because DOE would be 

unable to fulfill its responsibility to 

ensure that an alternative test procedure 

was appropriate for the new basic 

models. (Earthjustice, No. 49 at p. 4 

referencing 79 FR 26591, 26593 (May 9, 

2014)) These commenters argued that 

DOE failed to provide a reasoned 

explanation for why DOE proposed to 

allow manufacturers to ‘‘write their own 

test procedures’’ through the proposed 

‘‘deemed granted’’ approach, thus 

removing the Department’s oversight of 

the test procedure process. 

Other commenters argued DOE failed 

to provide any justification for 

dispensing of public notice as to when 

an interim waiver is granted. 

Commenters note that under the 

proposal DOE need never make a formal 

determination before an interim waiver 

request is ‘‘deemed granted,’’ therefore 

the public notice requirement may 

never be triggered. These commenters 

asserted that the Department must also 

provide a reasoned explanation for this 

disparity otherwise the rulemaking is 

arbitrary and capricious. (AG Joint 

Commenters, No. 51 at p. 6). 

Contrary to these commenters’ 

assertions, this final rule does not 

change the Department’s prior 

interpretation of its obligations under 

EPCA by offering manufacturers the 

possibility of writing their own test 

procedures absent DOE oversight. In the 

2014 final rule, DOE responded to 

commenters suggesting that DOE allow 

manufacturers who had received a 

waiver for a particular basic model or 

group of basic models to extend that 

waiver to additional basic models 

without requesting a waiver extension 

from DOE. DOE determined in that case 

that DOE would need to make an 

independent waiver determination for 

those basic models. DOE is not changing 

this requirement in this final rule. This 

rule, as noted previously, affects DOE’s 

process for a decision on an interim 

waiver, not a waiver petition. The rule 

specifies that if DOE does not notify a 

manufacturer within 45 business days of 

submitting an interim waiver, the 

interim waiver is granted and the 

manufacturer may test and certify its 

product while DOE processes the waiver 

petition. DOE also provides that DOE 

will not grant an interim waiver if the 

application does not include an 

alternative test procedure. Applicants 

will be made aware of the denial and 

can submit a petition including an 

alternate test procedure or work with 

DOE in a public process to develop an 

appropriate test procedure as DOE 

processes the petition for waiver. 

DOE has also not eliminated its prior 

responsibility to provide public notice 

of granted interim waivers. Prior to the 


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issuance of this final rule, other 

manufacturers, stakeholders and 

interested parties were given an 

opportunity to comment on the interim 

waiver when DOE published the grant 

or denial of interim waiver in the 

Federal Register. That comment 

opportunity is unchanged by this final 

rule. The amended 10 CFR 

430.27(e)(1)(i) and 10 CFR 

431.401(e)(1)(i) provide members of the 

public with two specific opportunities 

to receive notice of a potential interim 

waiver. First, the Department specifies 

in its regulations that it will post a 

petition for an interim test procedure 

waiver on its website within five 

business days of receipt. While DOE 

currently posts waiver requests on its 

website, posting is now codified in DOE 

regulations as a requirement, and the 

posting is required to be done 

expeditiously. DOE will also provide 

notice of a decision regarding an interim 

waiver petition by posting the decision 

to the DOE website no later than 5 

business days after the end of the 45 

business day review period. 

Determinations regarding petitions for 

interim waivers will also be submitted 

for publication in the Federal Register 

as soon as possible after the 

determination is made. With this final 

rule, DOE continues to ensure the 

public remains notified and informed of 

waiver requests and has the ability to 

comment on them. The public also 

continues to receive timely notification 

of DOE’s decision on any particular 

waiver request. 

Commenters argued that by 

categorically excluding this proposed 

action from environmental review, the 

Department has violated the National 

Environmental Policy Act (NEPA), 42 

U.S.C. 4321, et seq., for applying an 

inapplicable categorical exclusion. 

Commenters assert that the Department 

has failed to meet the burden of proof 

for this claim by failing to determine, as 

required by DOE regulations, whether 

extraordinary circumstances exist that 

could ‘‘affect the significance of the 

environmental effects of the proposal’’. 

Commenters continued that DOE cannot 

simply conclude that the rulemaking 

will have no impact on environmental 

factors without providing an analysis 

into such factors. (CA IOUs, No. 37 at 

p. 8). 

As stated in the NOPR, this rule 

amends existing regulations without 

changing the environmental effect of the 

regulations being amended. The 

Department reasonably asserted that the 

proposal was covered under the A5 

Categorical Exclusion, 10 CFR part 

1021, subpart D., and that neither an 

environmental assessment nor an 

environmental impact statement was 

required. 84 FR 18414, 18420 (May 1, 

2019). DOE maintains that this final rule 

provides greater clarity and 

transparency throughout the interim test 

procedure waiver process. The 

rulemaking does not extend to setting 

energy conservation standards, but 

relates to the test procedures 

manufacturers may use to demonstrate 

compliance. DOE concludes in this final 

rule that the A5 categorical exclusion 

still applies. For these same reasons, 

because the rule only provides for 

manufacturers to use, on an interim 

basis, the test procedure specified in the 

interim waiver if DOE fails to act within 

a reasonable time period, no 

extraordinary circumstances exist that 

could affect the significance of the 

environmental effects of the proposal. 

Commenters have also asserted that 

DOE should devote more resources 

towards reviewing test procedure 

waivers using the existing regulatory 

framework. (Earthjustice, No. 49 at p. 1, 

6; and ASAP et al., No. 46 at p. 7) 

Commenters noted that the current 

delays in the test procedure waiver 

process are problems of efficiency and 

could be improved through the 

additional allocation of resources. (CEC, 

No. 40 at p. 7). 

It is the Department’s intent that by 

finalizing its test procedure waiver 

decision-making process in this 

rulemaking that it will increase 

response time and reduce 

manufacturers’ burdens associated with 

the interim waiver application process, 

provide greater certainty and 

transparency it its administrative 

process, and reduce delays in 

manufacturers’ availability to bring 

innovative product options to 

consumers. 84 FR 18414, 18415 (May 1, 

2019). 

Some commenters disagreed with 

DOE’s use of public policy reasons as a 

basis for granting interim waivers. (CEC, 

No. 40 at p. 10) These commenters call 

DOE’s action contrary to the intent of 

EPCA because the statute establishes 

clear criteria for any test procedure 

authorized by the Department under 42 

U.S.C. 6293(b)(3). DOE, therefore, 

cannot permit a manufacturer to use an 

alternative test procedure without first 

finding that the alternative satisfies 

these statutory criteria. (Earthjustice, 

No. 49 at pp. 4–5). 

In response, the Department is not 

changing the longstanding regulatory 

criteria for the grant of waiver that have 

existed since 1980, 45 FR 64109 

(September 26, 1980), and were retained 

and extended to include interim waivers 

in amendments to the procedures in 

1986, 51 FR 42823 (November 26, 1986). 

The Department’s procedures were 

revised in 1995, 60 FR 15004 (March 21, 

1995), and again in 2014, 79 FR 26591 

(May 9, 2014). Under this final rule, for 

an interim waiver and waiver 

application to be granted, applicants are 

required to provide an application that 

includes an alternative test procedure. 

The Department’s review of the 

application includes a review of the 

proposed alternative test procedure, and 

as noted previously, DOE is well aware 

of the EPCA requirements for the 

issuance or amendment of a test 

procedure at 42 U.S.C. 6293 and 42 

U.S.C. 6314. If DOE does not otherwise 

act to affirmatively grant or deny the 

interim waiver within 45 business days, 

the waiver is granted based on the 

regulatory criterion that it is desirable 

for public policy reasons to grant 

immediate relief pending a 

determination on the petition for 

waiver. 10 CFR 430.27(e)(2) and 10 CFR 

431.401(e)(2). DOE continues to believe 

that it is desirable for public policy 

reasons to allow manufacturers to test 

and certify their products using to the 

test procedure specified in the waiver 

petition, pursuant to an interim waiver, 

while DOE receives comment on the 

petition for waiver and works with the 

petitioner, and with the benefit of 

public input, to determine whether any 

changes to that test procedure are 

warranted. 

Some commenters expressed 

confusion regarding what triggers the 

30-day clock for granting an interim 

waiver. (ASE, No. 43 at p. 4; and Acuity, 

No. 14 at p. 2) Other commenters argued 

that the clock for review should only 

start once DOE has received all of the 

necessary information. (Earthjustice, No. 

49 at p. 7). 

DOE notes that the 30-day deadline of 

the proposed rule has been amended to 

45 business days, which equates to 

approximately two months. To clarify 

when DOE considers a petition received 

and starts the clock, DOE notes that the 

45 business day clock does not begin 

until an applicant submits a petition for 

an interim waiver that includes the 

information specified in 10 CFR 

430.27(b)(2) or 10 CFR 431.401(b)(2) 

under 10 CFR 430.27(e)(1)(iii) and 10 

CFR 431.401(e)(1)(iii) of this final rule. 

Inclusion of an alternate test procedure 

is necessary to allow DOE to consider 

the likelihood of success of the petition 

for waiver and is required for DOE to 

grant an interim waiver. 

As a means of further streamlining the 

interim waiver process, DOE received 

comments suggesting the use of group 

waiver applications from trade 

associations or similar industry groups 

if they produce like or similar products. 


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8All three interim waivers were granted for more 

efficient models of external power supplies, which 

could already test and certify compliance in the 

absence of the grant of interim waiver. As a result, 

speeding the grant of these interim waivers would 

not increase manufacturer revenues in either the 

NOPR analysis or final rule analysis. 

Commenters asserted that this grouped 

approach would conserve 

manufacturers’ compliance resources 

and save the Department resources from 

having to review repetitive applications. 

(Acuity, No. 14 at pp. 2–3) 

Because each waiver submission is 

dependent on the specifics of each 

product that is the subject of any 

particular waiver request, DOE does not 

plan to implement such a practice 

through this final rule. To conserve 

resources, the Department suggests that 

manufacturers look to existing test 

procedure waivers for similar products 

as a means of identifying relevant 

alternative test procedures that can be 

included in their own, individual 

petitions for a waiver, see https:// 

www.energy.gov/eere/buildings/currenttest-procedure-waivers. 

IV. Procedural Requirements 

A. Review Under Executive Order 12866 

and 13563 

This regulatory action has been 

determined to be ‘‘significant’’ under 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ (58 FR 51735, 

October 4, 1993). Accordingly, this 

action was subject to review under that 

Executive Order by the Office of 

Information and Regulatory Affairs 

(OIRA) of the Office of Management and 

Budget (OMB). 

DOE has also reviewed this final 

regulation pursuant to Executive Order 

13563, issued on January 18, 2011 (76 

FR 3281, Jan. 21, 2011). E.O. 13563 is 

supplemental to and explicitly reaffirms 

the principles, structures, and 

definitions governing regulatory review 

established in Executive Order 12866. 

To the extent permitted by law, agencies 

are required by Executive Order 13563 

to: (1) Propose or adopt a regulation 

only upon a reasoned determination 

that its benefits justify its costs 

(recognizing that some benefits and 

costs are difficult to quantify); (2) tailor 

regulations to impose the least burden 

on society, consistent with obtaining 

regulatory objectives, taking into 

account, among other things, and to the 

extent practicable, the costs of 

cumulative regulations; (3) select, in 

choosing among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity); (4) to the extent feasible, specify 

performance objectives, rather than 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 

regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. DOE concludes that 

this final rule is consistent with these 

principles. The amendments to DOE’s 

regulations are intended to expedite 

DOE’s processing of test procedure 

interim waiver applications, thereby 

reducing financial and administrative 

burdens for all manufacturers; as such, 

the final rule satisfies the criteria in 

Executive Order 13563. 

B. Review Under Executive Orders 

13771 and 13777 

On January 30, 2017, the President 

issued Executive Order 13771, 

‘‘Reducing Regulation and Controlling 

Regulatory Costs.’’ That Order stated the 

policy of the executive branch is to be 

prudent and financially responsible in 

the expenditure of funds, from both 

public and private sources. The Order 

stated that it is essential to manage the 

costs associated with the governmental 

imposition of private expenditures 

required to comply with Federal 

regulations. DOE considers this final 

rule to be an E.O. 13771 deregulatory 

action, resulting in expected cost 

savings to manufacturers. 

Additionally, on February 24, 2017, 

the President issued Executive Order 

13777, ‘‘Enforcing the Regulatory 

Reform Agenda.’’ The Order required 

the head of each agency designate an 

agency official as its Regulatory Reform 

Officer (RRO). Each RRO shall oversee 

the implementation of regulatory reform 

initiatives and policies to ensure that 

agencies effectively carry out regulatory 

reforms, consistent with applicable law. 

Further, E.O. 13777 requires the 

establishment of a regulatory task force 

at each agency. The regulatory task force 

will make recommendations to the 

agency head regarding the repeal, 

replacement, or modification of existing 

regulations, consistent with applicable 

law. At a minimum, each regulatory 

reform task force shall attempt to 

identify regulations that: 

(i) Eliminate jobs, or inhibit job 

creation; 

(ii) Are outdated, unnecessary, or 

ineffective; 

(iii) Impose costs that exceed benefits; 

(iv) Create a serious inconsistency or 

otherwise interfere with regulatory 

reform initiatives and policies; 

(v) Are inconsistent with the 

requirements of Information Quality 

Act, or the guidance issued pursuant to 

that Act, in particular those regulations 

that rely in whole or in part on data, 

information, or methods that are not 

publicly available or that are 

insufficiently transparent to meet the 

standard for reproducibility; or 

(vi) Derive from or implement 

Executive Orders or other Presidential 

directives that have been subsequently 

rescinded or substantially modified. 

As noted, this final rule is 

deregulatory, and is expected to reduce 

both financial and administrative 

burdens on regulated parties. 

Specifically, the amendments to DOE’s 

regulations discussed in this final rule 

should improve upon current waiver 

regulations, which potentially are 

inhibiting job creation; are ineffective in 

creating certainty for manufacturers 

with respect to business decisions; and 

impose costs that exceed benefits. 

Specifically, the length of time 

manufacturers have previously waited 

for DOE to provide notification of the 

disposition of applications for interim 

waiver (or final decisions on waiver 

petitions), made possible by the openended nature of the current regulations, 

will be significantly shortened. The cost 

savings and other benefits 

manufacturers should realize by waiting 

no more than 45 business days for an 

interim waiver determination should 

create cost savings, as manufacturers 

have a decision whether they could 

introduce their products and equipment 

into commerce in a timely fashion. 

These cost savings may lead to 

increased job creation, and create other 

potentially significant economic 

benefits. 

i. National Cost Savings and Forgone 

Benefits 

The primary anticipated cost saving is 

from reducing the number of days by 

which manufacturer revenues are 

delayed for affected products. DOE 

monetized this value for the NOPR 

using the interest that a manufacturer 

might have earned on product revenue 

if an interim waiver were approved 

within 45 business days. Between the 

proposed rule and the final rule, DOE 

has adjusted this time period from 30 

business days to 45 business days. 

There are three interim waivers in this 

dataset that were granted after more 

than 30 business days but in fewer than 

45 business days; however, those 

interim waivers did not cause any 

change in manufacturer revenues.8 On 

average, between 2016 and 2018, DOE 

concluded interim waivers after 185 


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9 ‘‘The 7 percent rate is an estimate of the average 

before-tax rate of return to private capital in the 

U.S. economy. It is a broad measure that reflects the 

returns to real estate and small business capital as 

well as corporate capital.’’ https:// 

www.whitehouse.gov/sites/whitehouse.gov/files/ 

omb/circulars/A4/a-4.pdf. 

10https://www.regulations.doe.gov/certificationdata/#q=Product_Group_s%3A*. 11Walk-in Coolers and Freezers (WICF) are 

counted as a single affected product. However, 

Table IV.B.1. breaks out which petitions concerned 

which WICF components, as their annual 

shipments and prices vary accordingly. 

12Average price is generally the base case average 

MSP of equipment from the life-cycle cost year in 

the most recently published technical support 

document. This represents a shipment-weighted 

average across efficiency distribution and across all 

product classes. 

days, or 118 days beyond the 45 

business days specified in this final 

rule. Using a threshold of 45 business 

days rather than 30 business days 

changes the magnitude, though not the 

direction, of DOE’s anticipated cost 

savings from this final rule. DOE uses 

7% interest per the Office of 

Management and Budget’s Circular 

A–4,9 and calculates the forgone interest 

that could have accrued for each 

affected product during the 118 day 

delay period. 

DOE monetized the scope of delay 

using average prices for products in 

interim waiver petitions and the 

proportion of affected shipments, based 

on the proportion of basic models listed 

in interim waiver petitions relative to 

the total number of basic models within 

each product category. A full list of 

petitions for interim waiver can be 

accessed at https://www.energy.gov/ 

eere/buildings/current-test-procedurewaivers. This list indicates how many 

interim waiver petitions were received 

for each product category. Each petition 

for interim waiver also lists the number 

of affected basic models, which DOE 

used to assess the proportion of 

shipments affected by each petition. 

Total numbers of basic models per 

product category are accessible via the 

DOE’s Compliance Certification 

Database.10

Between 2016 and 2018, 5,322 basic 

models of 12 residential and 

commercial products were affected by 

interim waiver delays, totaling 1.31 

million in estimated annual shipments 

and $1.76 billion in annual sales. The 

affected products are outlined in Table 

IV.B.1 below.11 While all affected 

shipments are represented in Table 

IV.B.1 below, DOE monetized the cost of 

delay only for those basic models for 

which manufacturers would be unable 

to test or certify absent an interim 

waiver. For one petition, the 

manufacturer was unable to test or 

certify half of the basic models 

requested absent a waiver; the estimated 

cost of delay is proportionate to those 

models. DOE calculated the interest that 

could have been earned on this revenue 

over the 118-day average delay period 

and multiplied the average cost of delay 

per petition by 11, the average number 

of interim waiver requests received per 

year, to reach an annual cost of delay. 

In undiscounted terms, DOE expects 

that this proposal will result in $14 

million in annual cost savings. DOE 

assumes that these sales are delayed 

rather than forgone. 

TABLE IV.B.1—SHIPMENTS AND AVERAGE PRICES OF PRODUCTS/EQUIPMENT AFFECTED BY INTERIM WAIVER DELAYS

[2016–2018] 

Product/equipment Affected 

shipments 

Average price 

(2016$) 12

Estimated 

product sales Cost of delay 

Residential: 

Battery Chargers ...................................................................... 74,694 $7.92 $591,738 $13,391 

Ceiling Fans .............................................................................. 48,397 110.43 5,344,688 120,951 

Central Air Conditioners & Heat Pumps ................................... 481,200 3,086.07 1,371,615,829 31,039,854 

Clothes Washers ...................................................................... 31,780 700.24 22,253,510 503,600 

Dishwashers ............................................................................. 24,912 301.92 7,521,486 170,212 

Refrigerators ............................................................................. 40,968 655.30 26,846,375 607,537 

Commercial: 

Commercial Refrigeration Equipment ....................................... 22,036 3,902.71 85,998,189 1,946,151 

Walk-in Coolers & Freezers—Doors ........................................ 190,950 585.60 111,821,271 2,503,440 

Walk-in Coolers & Freezers—Systems .................................... 700 2,681.82 1,876,011 42,454 

Total ................................................................................... ............................ ............................ ............................ 36,947,591 

Average Cost of Delay per Petition (29 petitions total) .................................................................................................... 1,274,055 

Average Cost of Delay per Year (11 petitions/year) ......................................................................................................... 14,014,604 

Note that totals may not add due to rounding. 

Forgone Benefits 

To the extent that this policy would 

cause DOE to grant interim waiver 

requests that it would not have granted 

in the status quo, this proposal may 

result in forgone benefits to consumers 

or the environment. Based on historical 

data, these effects are anticipated to be 

relatively small. Of 21 concluded 

interim waiver petitions, DOE granted 

18 in full and granted the remaining 3 

with modifications. Of the modified 

interim waivers, one was granted in 

part, one was granted with minor 

modifications, and one was granted 

with a different alternative test measure 

than proposed. DOE estimated the 

forgone environmental benefits and 

energy savings of granting the petitions 

as received, rather than as modified by 

the Department. 

All forgone benefits and savings are 

annual, rather than one-time, and are 

projected in the table below using a 

perpetual time horizon and discounted 

to 2016. DOE expects these changes to 

result in $359 million or $163 million 

in total cost savings, discounted at 3% 

and 7%, respectively. In annualized 

terms, DOE expects $10.8 million in net 

cost savings, discounted at 3%, or $11.4 

million in net cost savings discounted at 

7%. 


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TABLE IV.B.2—COST IMPACT OF PROPOSED INTERIM WAIVER RULE

[2016$] 

Costs or 

(savings) 

Costs or 

(savings) 

millions 

Annual Cost Savings of Reduced Delay ......................................................................................................... ($14,014,604) ($14.01) 

Annual Forgone Energy Savings ..................................................................................................................... 164,000 0.16 

Annualized Carbon Emissions (SCC), 3% † ................................................................................................... 1,764,000 1.76 

Annualized Carbon Emissions (SCC), 7% † ................................................................................................... 827,000 0.83 

Net Present Value at 3% ................................................................................................................................. (358,927,345) (358.93) 

Net Present Value at 7% ................................................................................................................................. (163,068,216) (163.07) 

Annualized Costs or (Savings) at 3% ............................................................................................................. (10,767,820) (10.77) 

Annualized Costs or (Savings) at 7% ............................................................................................................. (11,414,775) (11.41) 

† Undiscounted annual SCC values are not available for comparison. 

C. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires that a 

Federal agency prepare a final 

regulatory flexibility analysis (FRFA) for 

any final rule for which a general notice 

of proposed rulemaking is required, 

unless the agency certifies that the rule, 

if promulgated, will not have a 

significant economic impact on a 

substantial number of small entities (5 

U.S.C. 605(b)). 

This final rule would impose a 

requirement on the Department that it 

must make a decision on interim waiver 

applications within 45 business days 

after receipt of a petition. An interim 

waiver would remain in effect until a 

waiver decision is published or until 

DOE publishes a new or amended test 

procedure that addresses the issues 

presented in the waiver, whichever is 

earlier. 

The final rule does not impose any 

new requirements on any 

manufacturers, including small 

businesses. DOE’s economic analysis, 

presented in section IV.B. of this final 

rule, analyzed interim waiver requests 

submitted by 21 different 

manufacturers. Assuming that all of 

these manufacturers were small entities, 

because the final rule does not impose 

any new requirements on any small 

entity, the economic impact on small 

entities will be zero. Therefore, there 

will be no significant economic impact 

to affected small entities. The final rule 

provides greater certainty to 

manufacturers applying for interim 

waivers that their petitions would be 

considered and adjudicated promptly, 

allowing them, upon DOE grant of an 

interim waiver, to distribute their 

products or equipment in commerce 

while the Department considered its 

final decision on the petition for waiver. 

This may be especially true of any small 

manufacturers who may only sell one or 

two specialty products and rely on this 

as their sole stream of revenue. This 

rulemaking would allow such 

manufacturers to continue selling their 

product while the Department considers 

a final decision on the petition for 

waiver. The potential benefits of the 

rule to manufacturers, including small 

manufacturers, are as discussed in 

Section IV. B. of this final rule. No 

additional requirements with respect to 

the waiver application process would be 

imposed. DOE did not receive 

comments on this certification, and no 

commenters provided information that 

the rule would impose any economic 

impacts on small entities. 

For these reasons, DOE certifies that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities, and therefore, 

no regulatory flexibility analysis has 

been prepared. DOE’s certification and 

supporting statement of factual basis has 

been provided to the Chief Counsel of 

Advocacy of the SBA pursuant to 5 

U.S.C. 605(b). 

D. Review Under the Paperwork 

Reduction Act 

Manufacturers of covered products 

and equipment must certify to DOE that 

their products or equipment comply 

with any applicable energy conservation 

standards. In certifying compliance, 

manufacturers must test their products 

and equipment 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 

(Mar. 7, 2011); 80 FR 5099 (Jan. 30, 

2015). The collection-of-information 

requirement for the certification and 

recordkeeping is subject to review and 

approval by OMB under the Paperwork 

Reduction Act (PRA). This requirement 

has been approved under OMB control 

number 1910–1400. 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. 

E. Review Under the National 

Environmental Policy Act 

Pursuant to the National 

Environmental Policy Act (NEPA) of 

1969, DOE has analyzed this proposed 

action in accordance with NEPA and 

DOE’s 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 

interruptive rulemaking that does not 

change the environmental effect of the 

rule and meets the requires for 

application of a categorical exclusion. 

See 10 CFR 1021.410. Therefore, DOE 

has determined that the 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 

environmental assessment or an 

environmental impact statement. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4729, February 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 


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Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 79819 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b)(2) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any, to be given to 

the regulation; (2) clearly specifies any 

effect on existing Federal law or 

regulation; (3) provides a clear legal 

standard for affected conduct while 

promoting simplification and burden 

reduction; (4) specifies the retroactive 

effect, if any, to be given to the 

regulation; (5) defines key terms; and (6) 

addresses other important issues 

affecting clarity and general 

draftsmanship under any guidelines 

issued by the Attorney General. Section 

3(c) of Executive Order 12988 requires 

Executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of the 

standards. DOE has completed the 

required review and determined that, to 

the extent permitted by law, this final 

rule meets the relevant standards of 

Executive Order 12988. 

G. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. DOE has examined this 

final rule and has determined that it 

would not preempt State law and would 

not have a substantial direct effect on 

the States, the relationship between the 

national government and the States, or 

the distribution of power and 

responsibilities among the various 

levels of government. No further action 

is required by Executive Order 13132. 

H. Review Under Executive Order 13175 

Under Executive Order 13175 (65 FR 

67249, November 6, 2000) on 

‘‘Consultation and Coordination with 

Indian Tribal Governments,’’ DOE may 

not issue a discretionary rule that has 

‘‘tribal’’ implications and imposes 

substantial direct compliance costs on 

Indian tribal governments. DOE has 

determined that the final rule would not 

have such effects and concluded that 

Executive Order 13175 does not apply 

to this final rule. 

I. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. Public Law 104–4, sec. 

201 (codified at 2 U.S.C. 1531). For 

regulatory actions likely to result in a 

rule that may cause the expenditure by 

State, local, and Tribal governments, in 

the aggregate, or by the private sector of 

$100 million or more in any one year 

(adjusted annually for inflation), section 

202 of UMRA requires a Federal agency 

to publish a written statement that 

estimates the resulting costs, benefits, 

and other effects on the national 

economy. (2 U.S.C. 1532(a), (b)) The 

UMRA also requires a Federal agency to 

develop an effective process to permit 

timely input by elected officers of State, 

local, and Tribal governments on a 

‘‘significant intergovernmental 

mandate,’’ and requires an agency plan 

for giving notice and opportunity for 

timely input to potentially affected 

small governments before establishing 

any requirements that might 

significantly or uniquely affect them. On 

March 18, 1997, DOE published a 

statement of policy on its process for 

intergovernmental consultation under 

UMRA. 62 FR 12820. (This policy is 

also available at http://energy.gov/gc/ 

office-general-counsel.) DOE examined 

this final rule according to UMRA and 

its statement of policy and has 

tentatively determined that the rule 

contains neither an intergovernmental 

mandate, nor a mandate that may result 

in the expenditure by State, local, and 

Tribal government, in the aggregate, or 

by the private sector, of $100 million or 

more in any year. Accordingly, no 

further assessment or analysis is 

required under UMRA. 

J. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001) requires Federal agencies to 

prepare and submit to OIRA a Statement 

of Energy Effects for any proposed 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgated or is 

expected to lead to promulgation of a 

final rule, and that: (1)(i) Is a significant 

regulatory action under Executive Order 

12866, or any successor order, and (ii) 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy; or (2) is designated by the 

Administrator of OIRA as a significant 

energy action. For any proposed 

significant energy action, the agency 

must give a detailed statement of any 

adverse effects on energy supply, 

distribution, or use should the proposal 

be implemented, and of reasonable 

alternatives to the action and their 

expected benefits on energy supply, 

distribution, and use. This regulatory 

action would not have a significant 

adverse effect on the supply, 

distribution, or use of energy, and it has 

not been designated by the 

Administrator of OIRA as a significant 

energy action; it therefore is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects. 

K. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any 

proposed rule that may affect family 

well-being. This rule will not have any 

impact on the autonomy or integrity of 

the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

L. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516 note) provides for 

Federal agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. 

OMB’s guidelines were published at 

67 FR 8452 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

this rule under the OMB and DOE 

guidelines and has concluded that it is 

consistent with applicable policies in 

those guidelines. 

M. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule before its effective date. The 

report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

V. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 


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79820 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 

List of Subjects 

10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Incorporation by reference, 

Intergovernmental relations, Small 

businesses. 

10 CFR Part 431 

Administrative practice and 

procedure, Confidential business 

information, Test procedures, 

Incorporation by reference, Reporting 

and recordkeeping requirements. 

Signing Authority 

This document of the Department of 

Energy was signed on November 6, 

2020, by Daniel R. Simmons, Assistant 

Secretary for Energy Efficiency and 

Renewable Energy, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on November 

24, 2020. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons set forth in the 

preamble, the Department of Energy is 

amending parts 430 and 431 of chapter 

II, subchapter D, of title 10 of the Code 

of Federal Regulations, as set forth 

below: 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 1. The authority citation for part 430 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6309; 28 U.S.C. 

2461 note. 

■ 2. Section 430.27 is amended by 

revising paragraphs (e)(1), (h), and (i)(1) 

to read as follows: 

§ 430.27 Petitions for waiver and interim 

waiver. 

* * * * * 

(e) Provisions specific to interim 

waiver—(1) Disposition of petition. (i) 

Within 5 business days of receipt of a 

petition for an interim waiver, DOE will 

post that petition for an interim waiver 

on its website. 

(ii) In those cases where DOE receives 

a petition for an interim waiver in 

conjunction with a petition for waiver, 

DOE will review the petition for interim 

waiver within 45 business days of 

receipt of the petition. Where the 

manufacturer does not specify any 

alternate test procedure, or otherwise 

fails to satisfy the other required criteria 

specified under paragraph (b)(2) of this 

section, DOE will deny the petition for 

interim waiver. In such case, DOE will 

notify the applicant of the denial within 

the 45-day review period and process 

the request for waiver in accordance 

with this section. If DOE does not notify 

the applicant of the disposition of the 

petition for interim waiver, in writing, 

within 45 business days of receipt of the 

petition, the interim waiver is granted 

utilizing the alternate test procedure 

requested in the petition. Notice of 

DOE’s determination on the petition for 

interim waiver will be posted on the 

Department’s website not later than 5 

business days after the end of the review 

period. Such determination will also be 

submitted for publication in the Federal 

Register. 

(iii) A petition submitted under this 

paragraph (whether for an interim 

waiver or waiver) is considered 

‘‘received’’ on the date it is received by 

the Department through the 

Department’s established email box for 

receipt of waiver petitions or, if 

delivered by mail, on the date the 

waiver petition is stamped as received 

by the Department. 

* * * * * 

(h) Duration. (1) Interim waivers 

remain in effect until the earlier of the 

following: 

(i) DOE publishes a decision and 

order on a petition for waiver in the 

Federal Register pursuant to paragraph 

(f) of this section; or 

(ii) DOE publishes in the Federal 

Register a new or amended test 

procedure that addresses the issue(s) 

presented in the waiver. 

(2) Within one year of a determination 

to grant an interim waiver, DOE will 

complete either paragraph (h)(1)(i) or (ii) 

of this section as specified in this 

section. 

(3) When DOE amends the test 

procedure to address the issues 

presented in a waiver, the waiver will 

automatically terminate on the date on 

which use of that test procedure is 

required to demonstrate compliance. 

(i) Compliance certification. (1) If the 

alternate test procedure specified in the 

interim waiver differs from the alternate 

test procedure specified by DOE in a 

subsequent decision and order granting 

the petition for waiver, a manufacturer 

who has already certified basic models 

using the procedure permitted in DOE’s 

grant of an interim test procedure 

waiver is not required to re-test and rerate those basic models so long as: The 

manufacturer used that alternative 

procedure to certify the compliance of 

the basic model after DOE granted the 

company’s interim waiver request; 

changes have not been made to those 

basic models that would cause them to 

use more energy or otherwise be less 

energy efficient; and the manufacturer 

does not modify the certified rating. 

However, if DOE ultimately denies the 

petition of waiver or the alternate test 

procedure specified in the interim 

waiver differs from the alternate test 

procedure specified by DOE in a 

subsequent decision and order granting 

the petition for waiver, DOE will 

provide a period of 180 days 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 of energy 

efficiency. 

* * * * * 

PART 431—ENERGY EFFICIENCY 

PROGRAM FOR CERTAIN 

COMMERCIAL AND INDUSTRIAL 

EQUIPMENT 

■ 3. The authority citation for part 431 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6317; 28 U.S.C. 

2461 note. 

■ 4. Section 431.401 is amended by 

revising paragraphs (e)(1), (h), and (i)(1) 

to read as follows: 

§ 431.401 Petitions for waiver and interim 

waiver. 

* * * * * 

(e) Provisions specific to interim 

waivers—(1) Disposition of petition. (i) 

Within 5 business days of receipt of a 

petition for an interim waiver, DOE will 

post that petition for an interim waiver 

on its website. 

(ii) In those cases where DOE receives 

a petition for an interim waiver in 

conjunction with a petition for waiver, 

DOE will review the petition for interim 

waiver within 45 business days of 

receipt of the petition. Where the 

manufacturer does not specify any 

alternate test procedure, or otherwise 

fails to satisfy any of the other required 

criteria specified under paragraph (b)(2) 

of this section, DOE will deny the 

petition for interim waiver. In such case, 

DOE will notify the applicant of the 

denial within the 45-day review period 

and process the request for waiver in 


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Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Rules and Regulations 79821 

accordance with this section. If DOE 

does not notify the applicant of the 

disposition of the petition for interim 

waiver, in writing, within 45 business 

days of receipt of the petition, the 

interim waiver is granted utilizing the 

alternate test procedure requested in the 

petition. Notice of DOE’s determination 

on the petition for interim waiver will 

be posted on the Department’s website 

not later than 5 business days after the 

end of the review period. Such 

determination will also be submitted for 

publication in the Federal Register. 

(iii) A petition submitted under this 

paragraph (whether for an interim 

waiver or waiver) is considered 

‘‘received’’ on the date it is received by 

the Department through the 

Department’s established email box for 

receipt of waiver petitions or, if 

delivered by mail, on the date the 

waiver petition is stamped as received 

by the Department. 

* * * * * 

(h) Duration. (1) Interim waivers 

remain in effect until the earlier of the 

following: 

(i) DOE publishes a decision and 

order on a petition for waiver pursuant 

to paragraph (f) of this section in the 

Federal Register; or 

(ii) DOE publishes in the Federal 

Register a new or amended test 

procedure that addresses the issues 

presented in the waiver. 

(2) Within one year of a determination 

to grant an interim waiver, DOE will 

complete either paragraph (h)(1)(i) or (ii) 

of this section as specified in this 

section. 

(3) When DOE amends the test 

procedure to address the issues 

presented in a waiver, the waiver will 

automatically terminate on the date on 

which use of that test procedure is 

required to demonstrate compliance. 

(i) Compliance certification. (1) If the 

alternate test procedure specified in the 

interim waiver differs from the alternate 

test procedure specified by DOE in a 

subsequent decision and order granting 

the petition for waiver, a manufacturer 

who has already certified basic models 

using the procedure permitted in DOE’s 

grant of an interim test procedure 

waiver is not required to re-test and rerate those basic models so long as: The 

manufacturer used that alternative 

procedure to certify the compliance of 

the basic model after DOE granted the 

company’s interim waiver request; 

changes have not been made to those 

basic models that would cause them to 

use more energy or otherwise be less 

energy efficient; and the manufacturer 

does not modify the certified rating. 

However, if DOE ultimately denies the 

petition for waiver, or if the alternate 

test procedure specified in the interim 

waiver differs from the alternate test 

procedure specified by DOE in a 

subsequent decision and order, DOE 

will provide a period of 180 days 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 of energy 

efficiency. 

* * * * * 

[FR Doc. 2020–26321 Filed 12–10–20; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 204 

[Regulation D; Docket No. R–1733] 

RIN 7100–AG 03 

Reserve Requirements of Depository 

Institutions 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: The Board is amending 

Regulation D, Reserve Requirements of 

Depository Institutions, to reflect the 

annual indexing of the reserve 

requirement exemption amount and the 

low reserve tranche for 2021. The 

annual indexation of these amounts is 

required notwithstanding the Board’s 

action in March 2020 setting all reserve 

requirement ratios to zero. The 

Regulation D amendments set the 

reserve requirement exemption amount 

for 2021 at $21.1 million of reservable 

liabilities (up from 16.9 million in 

2020). The Regulation D amendments 

also set the amount of net transaction 

accounts at each depository institution 

(over the reserve requirement exemption 

amount) that could be subject to a 

reserve requirement ratio of not more 

than 3 percent (and which may be zero) 

in 2021 at $182.9 million (up from 

$127.5 million in 2020). This amount is 

known as the low reserve tranche. The 

adjustments to both of these amounts 

are derived using statutory formulas 

specified in the Federal Reserve Act (the 

‘‘Act’’). The annual indexation of the 

reserve requirement exemption amount 

and low reserve tranche, though 

required by statute, will not affect 

depository institutions’ reserve 

requirements, which will remain zero. 

The Board is also announcing changes 

in two other amounts, the nonexempt 

deposit cutoff level and the reduced 

reporting limit, that are used to 

determine the frequency at which 

depository institutions must submit 

deposit reports. 

DATES: Effective date: January 11, 2021. 

Compliance dates: The new low 

reserve tranche and reserve requirement 

exemption amount will apply to the 

fourteen-day reserve maintenance 

period that begins January 14, 2021. For 

depository institutions that report 

deposit data weekly, this maintenance 

period corresponds to the fourteen-day 

computation period that begins 

December 15, 2020. For depository 

institutions that report deposit data 

quarterly, this maintenance period 

corresponds to the seven-day 

computation period that begins 

December 15, 2020. The new values of 

the nonexempt deposit cutoff level, the 

reserve requirement exemption amount, 

and the reduced reporting limit will be 

used to determine the frequency at 

which a depository institution submits 

deposit reports effective in either June 

or September 2021. 

FOR FURTHER INFORMATION CONTACT: 

Sophia H. Allison, Senior Special 

Counsel (202–452–3565), or Justyna 

Bolter, Senior Attorney (202/452–2686), 

Legal Division, or Kristen Payne, Senior 

Financial Institution and Policy Analyst 

(202–452–2872), or Francis A. Martinez, 

Lead Financial Institution and Policy 

Analyst (202–245–4217), Division of 

Monetary Affairs; for users of 

Telecommunications Device for the Deaf 

(TDD) only, contact (202–263–4869); 

Board of Governors of the Federal 

Reserve System, 20th and C Streets NW, 

Washington, DC 20551. 

SUPPLEMENTARY INFORMATION: Section 

19(b)(2) of the Act (12 U.S.C. 461(b)(2)) 

requires each depository institution to 

maintain reserves against its transaction 

accounts and nonpersonal time 

deposits, as prescribed by Board 

regulations, for the purpose of 

implementing monetary policy. Section 

11(a)(2) of the Act (12 U.S.C. 248(a)(2)) 

authorizes the Board to require reports 

of liabilities and assets from depository 

institutions to enable the Board to 

conduct monetary policy. The Board’s 

actions with respect to each of these 

provisions are discussed in turn below. 

I. Reserve Requirements 

Section 19(b) of the Act authorizes 

different ranges of reserve requirement 

ratios depending on the amount of 

transaction account balances at a 

depository institution. Section 

19(b)(11)(A) of the Act (12 U.S.C. 

461(b)(11)(A)) provides that a zero 

percent reserve requirement ratio shall 

apply at each depository institution to 

total reservable liabilities that do not 

exceed a certain amount, known as the 


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