This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

46793 

Vol. 86, No. 159 

Friday, August 20, 2021 

1Fact Sheet: List of Agency Actions for Review 

(Jan. 20, 2021), https://www.whitehouse.gov/ 

briefing-room/statements-releases/2021/01/20/factsheet-list-of-agency-actions-for-review/. 

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 (EERE), U.S. 

Department of Energy. 

ACTION: Notice of proposed rulemaking 

and request for comment. 

SUMMARY: The U.S. Department of 

Energy (‘‘DOE’’ or the ‘‘Department’’) 

proposes to revise the Department’s test 

procedure interim waiver process. The 

proposed revisions address areas of the 

test procedure interim waiver process 

regulations that may result in alternate 

test procedures that are inconsistent 

with the purpose and requirements of 

the Energy Policy and Conservation Act 

(‘‘EPCA’’), and that otherwise appear 

not to effectuate the statute properly. 

DATES: DOE will accept comments, data, 

and information regarding this notice of 

proposed rulemaking on or before 

September 20, 2021. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments, identified by ‘‘2021 

Test Procedure Interim Waiver Process 

NOPR’’ and docket number EERE–2019– 

BT–NOA–0011 and/or the regulatory 

information number (RIN) 1904–AE24, 

by any of the following methods: 

(1) Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

(2) Email: 

TPWaiverProcess2019NOA0011@

ee.doe.gov. Include ‘‘2021 Test 

Procedure Interim Waiver Process 

NOPR’’ and docket number EERE–2019– 

BT–NOA–0011 and/or RIN number 

1904–AE24 in the subject line of the 

message. Submit electronic comments 

in WordPerfect, Microsoft Word, PDF, 

or ASCII file format, and avoid the use 

of special characters or any form of 

encryption. 

Although DOE has routinely accepted 

public comment submissions through a 

variety of mechanisms, including postal 

mail and hand delivery/courier, the 

Department has found it necessary to 

make temporary modifications to the 

comment submission process in light of 

the ongoing Covid–19 pandemic. DOE is 

currently accepting only electronic 

submissions at this time. If a commenter 

finds that this change poses an undue 

hardship, please contact Appliance 

Standards Program staff at (202) 586– 

1445 to discuss the need for alternative 

arrangements. Once the Covid–19 

pandemic health emergency is resolved, 

DOE anticipates resuming all of its 

regular options for public comment 

submission, including postal mail and 

hand delivery/courier. 

No telefacsimiles (faxes) will be 

accepted. For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see section V (Public Participation) of 

this document. 

Docket: The docket for this 

rulemaking, which includes Federal 

Register notices, public meeting 

attendee lists and transcripts, 

comments, and other supporting 

documents/materials, is available for 

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

All documents in the docket are listed 

in the https://www.regulations.gov 

index. However, not all documents 

listed in the index may be publicly 

available, such as information that is 

exempt from public disclosure. 

The docket web page can be found at: 

https://www.regulations.gov/ 

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

The https://www.regulations.gov web 

page contains instructions on how to 

access all documents, including public 

comments, in the docket. 

FOR FURTHER INFORMATION CONTACT:

Ms. Sarah Butler, U.S. Department of 

Energy, Office of General Counsel, GC– 

33, 1000 Independence Avenue SW, 

Washington, DC 20585–0121. Email: 

Sarah.Butler@hq.doe.gov. 

Ms. Lucy deButts, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Office, EE–5B, 1000 

Independence Avenue SW, Washington, 

DC 20585–0121. Email: 

ApplianceStandardsQuestions@

ee.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of Proposal 

On December 11, 2020, DOE 

published a final rule (‘‘December 2020 

Final Rule’’) in the Federal Register that 

made significant revisions to its 

procedures for processing petitions for 

interim waivers from test procedures 

mandated pursuant to EPCA, found in 

10 CFR 430.27 and 10 CFR 431.401 (85 

FR 79802). 

Subsequently, on January 20, 2021, 

the White House issued Executive Order 

13990, ‘‘Protecting Public Health and 

the Environment and Restoring Science 

to Tackle the Climate Crisis.’’ 86 FR 

7037 (Jan. 25, 2021). Section 1 of that 

Order listed several policies related to 

the protection of public health and the 

environment, including reducing 

greenhouse gas emissions and bolstering 

the Nation’s resilience to climate 

change. Id. at 86 FR 7037, 7041. Section 

2 of the Order instructs all agencies to 

review ‘‘existing regulations, orders, 

guidance documents, policies, and any 

other similar agency actions (agency 

actions) promulgated, issued, or 

adopted between January 20, 2017, and 

January 20, 2021, that are or may be 

inconsistent with, or present obstacles 

to, [these policies].’’ Id. Agencies are 

then directed, as appropriate and 

consistent with applicable law, to 

consider suspending, revising, or 

rescinding these agency actions and to 

immediately commence work to 

confront the climate crisis. Id. In 

addition, the White House explicitly 

enumerated certain agency actions, 

including the December 2020 Final 

Rule, as actions that would be reviewed 

to determine consistency with Section 1 

of the Order.1 Executive Order 13990, 

Fact Sheet. 

While E.O. 13990 triggered the 

Department’s re-evaluation, DOE is 

relying on the analysis presented below, 

based upon EPCA, to revise its prior 

rule. In conducting its review of the 

December 2020 Final Rule, DOE has 

identified areas that do not meet DOE’s 

responsibilities under EPCA. The 

December 2020 Final Rule mandates a 

process that may result in alternate test 


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2All references to EPCA in this document refer 

to the statute as amended through the Energy Act 

of 2020, Public Law 116–260 (Dec. 27, 2020). 

3For editorial reasons, Part B was redesignated as 

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

4For editorial reasons, Part C was redesignated as 

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

procedures that are inconsistent with 

EPCA’s purpose and requirements. In 

addition, as discussed in greater detail 

in section III. of this document, upon 

reconsideration DOE believes provisions 

implemented by the December 2020 

Final Rule could weaken energy 

conservation standards by allowing 

manufacturers to place noncompliant 

products in the market. In furtherance of 

its duties under EPCA and in 

accordance with Executive Order 13990, 

DOE is proposing revisions to its 

procedures for processing interim 

waiver requests. 

In this document, DOE proposes to 

amend 10 CFR 430.27 and 10 CFR 

431.401 by: (1) Removing the 

provisions, adopted in the December 

2020 Final Rule, that interim waivers 

will be automatically granted if DOE 

fails to notify the petitioner of the 

disposition of the petition within 45 

business days of receipt of the petition, 

and instead specifying that DOE will 

make best efforts to process any interim 

waiver request within 90 days of 

receipt; (2) providing the requirements 

for a complete petition for interim 

waiver, and specifying that DOE would 

notify petitioners of incomplete 

petitions via email, and that DOE will 

post a petition for interim waiver on its 

website within five business days of 

receipt of a complete petition; (3) stating 

the information that must be provided 

in a request to extend a waiver to 

additional basic models; (4) revising the 

compliance certification and 

representations requirements; (5) 

specifying that interim waivers will 

automatically terminate on the 

compliance date of a new or amended 

test procedure; (6) harmonizing 10 CFR 

430.27(j) and 10 CFR 431.401(j) with 

enforcement requirements; and (7) 

allowing DOE to rescind or modify a 

waiver for appropriate reasons. 

II. Authority and Background 

A. Authority 

EPCA,2 Public Law 94–163 (42 U.S.C. 

6291–6317) authorizes DOE to regulate 

the energy efficiency of a number of 

consumer products and industrial 

equipment types. Title III, Part B3 of 

EPCA established the Energy 

Conservation Program for Consumer 

Products Other Than Automobiles. Title 

III, Part C 4 of EPCA established the 

Energy Conservation Program for 

Certain Industrial Equipment. The 

energy conservation program under 

EPCA consists essentially of four parts: 

(1) Testing, (2) labeling, (3) Federal 

energy conservation standards, and (4) 

certification and enforcement 

procedures. 

The Federal testing requirements 

consist of test procedures that 

manufacturers of covered products and 

equipment generally must use as the 

basis for: (1) Certifying to DOE that the 

product or equipment complies with the 

applicable energy conservation 

standards adopted pursuant to EPCA (42 

U.S.C. 6295(s); 42 U.S.C. 6316(a)), and 

(2) making representations about the 

efficiency of the 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 

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)) 

B. Background 

This Notice of Proposed Rulemaking 

(‘‘NOPR’’) involves the regulatory 

provisions governing the submission 

and processing of test procedure 

waivers for both consumer products 

under Part A of EPCA and industrial 

equipment under Part A–1. DOE’s 

regulations in Title 10 of the Code of 

Federal Regulations (CFR), § 430.27 

(consumer products) and § 431.401 

(commercial equipment) contain 

provisions allowing a person to seek a 

waiver from the test procedure 

requirements if certain conditions are 

met. DOE will grant a waiver from the 

test procedure requirements if DOE 

determines either that the basic model 

for which the waiver was requested 

contains a design characteristic that 

prevents testing of the basic model 

according to the prescribed test 

procedures, or that the prescribed test 

procedure evaluates the basic model in 

a manner so unrepresentative of its true 

energy consumption characteristics as to 

provide materially inaccurate 

comparative data. 10 CFR 430.27(a)(1) 

and 10 CFR 431.401(a)(1). DOE may 

grant the waiver subject to conditions, 

including adherence to alternate test 

procedures. In addition, the waiver 

process permits parties submitting a 

petition for waiver to also file an 

application for interim waiver from the 

applicable test procedure requirements. 

10 CFR 430.27(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). 

On May 1, 2019, DOE published a 

NOPR to amend the existing test 

procedure interim waiver process (the 

‘‘May 2019 NOPR’’). 84 FR 18414. After 

considering the comments received, 

DOE published the December 2020 

Final Rule, which significantly revised 

its procedures for test procedure interim 

waivers. 85 FR 79802. 

The December 2020 Final Rule 

adopted an approach to DOE’s test 

procedure interim waiver decisionmaking process that requires the 

Department to notify, in writing, an 

applicant for an interim waiver of the 

disposition of the request within 45 

business days of receipt of the 

application. 10 CFR 430.27(e)(ii) and 10 

CFR 431.401(e)(ii). Importantly, under 

the recent amendments, if DOE does not 

notify the applicant in writing of the 

disposition of the interim waiver within 

45 business days, the interim waiver is 

granted and the manufacturer is 

authorized to test subject products or 

equipment using the alternate test 

procedure proposed by the 

manufacturer in the petition. Id. If DOE 

denies the interim waiver petition, DOE 

is required to notify the petitioner 

within 45 business days and post the 

notice on the website as well as publish 

its determination in the Federal 

Register as soon as possible after such 

notification. Id. If DOE ultimately 

denies an associated petition for waiver 

or grants the petition with a test 

procedure that differs from the alternate 

test procedure specified in the interim 

waiver, manufacturers are allowed a 

180-day grace period before the 

manufacturer is required to use the DOE 

test procedure or the alternate test 

procedure specified in the decision and 

order to make representations regarding 

energy efficiency. 10 CFR 430.27(i)(1) 

and 10 CFR 431.401(i)(1). 

In the December 2020 Final Rule, 

DOE made a policy decision to place 

significant weight on reducing 

manufacturers’ burdens, providing 


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5This document can be found in the docket for 

this test procedure waiver under Document No. 

002. 6This document can be found in the docket for 

this test procedure waiver under Document No. 

003. 

greater certainty and transparency to 

manufacturers, and reducing delays in 

manufacturers’ ability to bring 

innovative product options to 

consumers. 85 FR 79816. To justify 

these changes to DOE’s interim waiver 

process, DOE noted that it intended to 

shift the burden of any delays in the 

review process onto the Department and 

allow for innovative products to be 

made available more quickly to 

consumers. 85 FR 79802, 79803 and 

79811. However, as discussed further in 

section III. of this document, in 

reconsideration of the December 2020 

Final Rule, DOE is weighing these 

policy considerations differently. DOE 

has tentatively determined that the 

changes under the December 2020 Final 

Rule may not allow DOE sufficient time 

to review an alternate test procedure, 

leading to increased risks to consumers 

of purchasing noncompliant products 

and decreased energy savings. Given 

EPCA’s goal of energy conservation and 

DOE’s statutory obligations under 

EPCA, DOE is placing greater weight on 

ensuring compliant test procedures, 

decreasing risks to consumers, and 

ensuring that DOE meets its statutory 

obligations. 

III. Discussion of Proposed Revisions 

DOE is reconsidering whether certain 

provisions implemented by the 

December 2020 Final Rule are 

appropriate or necessary. DOE 

acknowledges that its interim waiver 

process often involves a lengthy period 

following submission of interim waiver 

and waiver applications and imposes 

burdens on manufacturers who are 

unable to certify their products or 

equipment absent an interim waiver or 

waiver from DOE. The December 2020 

Final Rule, however, mandates a 

process that, by prioritizing the 

speeding up of the petition process, may 

result in alternate test procedures that 

are inconsistent with EPCA’s purpose 

and requirements and have adverse 

environmental impacts. 

As noted previously, DOE is required 

to develop test procedures to measure 

the energy efficiency, energy use, or 

estimated annual operating cost of each 

covered product and covered equipment 

during a representative average use 

cycle or period of use. (42 U.S.C. 6293; 

42 U.S.C. 6314) Manufacturers of 

covered products and covered 

equipment must use the prescribed DOE 

test procedure to certify that their 

products and equipment meet the 

applicable energy conservation 

standards adopted under EPCA, and 

also when making any other 

representations to the public regarding 

the energy use or efficiency of those 

products. (42 U.S.C. 6293(c), 6295(s), 42 

U.S.C. 6314(d) and 42 U.S.C. 6316(a)) In 

accordance with EPCA, manufacturers 

are prohibited from distributing a 

covered product without first 

demonstrating compliance with 

applicable standards through the use of 

DOE test procedures. (42 U.S.C. 

6302(a)(5), 42 U.S.C. 6295(s)) Under the 

interim waiver process established in 

the December 2020 Final Rule, an 

interim waiver granted by default after 

the 45-day period would lack DOE 

review and would not benefit from a 

determination that the alternate test 

procedure meets EPCA requirements. As 

demonstrated in the examples 

discussed, DOE often requires longer 

than 45 business days to adequately 

evaluate an alternate test procedure to 

make a determination that will 

accurately reflect the product’s energy 

consumption during an average use 

cycle. The default waiver process may 

result in test procedures later found to 

be inconsistent with EPCA which would 

allow manufacturers to distribute 

noncompliant products in commerce, 

resulting in additional costs (i.e., cost of 

energy use) to consumers. 

DOE noted in the December 2020 

Final Rule that some commenters stated 

that the amendments to the interim 

waiver process would weaken the 

energy conservation standards program 

because the automatic granting of 

interim waivers without review could 

place noncompliant products in the 

market and allow them to remain for an 

additional 180 days after DOE acts on 

the associated petition. 85 FR 79802, 

79806. In addition, some commenters 

noted that the amendments could 

indirectly allow for backsliding of 

energy conservation standards, noting 

that 42 U.S.C. 6295(o)(1) forbids DOE 

from prescribing an energy conservation 

standard that decreases the required 

energy efficiency of a product. 85 FR 

79802, 79813. These commenters argued 

that the amendments proposed in the 

May 2019 NOPR (and that were 

ultimately adopted in the December 

2020 Final Rule) would lead to the same 

loss of efficiency that EPCA’s antibacksliding provision was intended to 

prevent. Id. DOE’s decision under the 

December 2020 Final Rule reflected a 

policy choice to reject these comments 

raising concerns about the risks of noncompliant products in favor of greater 

certainty and transparency, and a less 

burdensome process for manufacturers. 

In support of the December 2020 Final 

Rule, DOE explained that the changes 

were in response to concerns that the 

current system for processing interim 

waiver petitions was not working as it 

should, and in DOE’s view, 

manufacturers should not be 

constrained from selling their products 

for significant periods while DOE 

reviews the interim waiver petition. 85 

FR 79802, 79807. 

Upon further consideration, DOE is 

weighing these factors differently in 

light of recent analysis of petitions 

suggesting that the number of noncompliant test procedures granted 

without sufficient time to review is 

higher than DOE estimated and 

considering DOE’s statutory obligations 

under EPCA. For example, on June 30, 

2021, DOE issued a notice denying the 

interim waiver application from General 

Electric Appliance (GEA) for certain 

miscellaneous refrigeration product 

(MREF) basic models. 86 FR 35766. The 

original petition for waiver and interim 

waiver from the test procedure for 

MREFs set forth at appendix A to 

subpart B of 10 CFR part 430 was 

received on April 9, 2021. (GEA, No. 1 

at p. 1) The original GEA petition did 

not contain sufficient information about 

the MREF basic models including 

necessary information about the use of 

these products, which is needed to 

determine an appropriate alternative 

method for testing. In response to the 

lack of information in the original 

petition, DOE sent GEA a number of 

technical questions, and GEA revised 

and supplemented its original petition 

twice. The revised alternate test 

procedure 5 included in the April 26, 

2021 petition lead DOE to ask further 

technical questions to understand how 

the basic models subject to the petition 

worked in the field, to which GEA 

provided additional correspondence on 

June 2, 2021.6 Based on these final 

clarifications, DOE was able to 

successfully evaluate the proposed 

interim wavier test procedure, which 

led DOE to deny the interim waiver 

because the alternative method 

proposed by GEA was not representative 

of an average use cycle for the basic 

models in question. 86 FR 35766. 

From the time that DOE received 

GEA’s original petition, to the time that 

the petition was denied, 55 business 

days passed. DOE was provided more 

than the 45-business day period in this 

case because GEA revised and 

supplemented its original petition in 

response to DOE’s technical questions. 

However, if DOE did not have sufficient 

time to gather the additional 

information about GEA’s MREF basic 


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models and how such models are 

applied in the field, an alternate test 

procedure could have erroneously been 

applied that did not meet the 

requirements in EPCA. DOE needed 

time to understand more about the 

product and the proposed alternate test 

procedure, and after several exchanges, 

came to understand that the GEA 

proposed alternate test procedure did 

not include all the energy consumption 

to represent an average use cycle and 

thus, the test procedure proposed by 

GEA was not representative. See 42 

U.S.C. 6293. If the alternate test 

procedure proposed by GEA was 

automatically granted, the basic models 

subject to the interim waiver would be 

using a test procedure that 

underestimates the energy consumption 

of the product. 

In another example on October 25, 

2016, AHT filed a petition for waiver 

and interim waiver from the DOE test 

procedure for commercial refrigeration 

equipment set forth in 10 CFR part 431, 

subpart C, appendix B. (EERE–2017– 

BT–WAV–0027–0009, AHT, No. 0001 at 

pp. 1–10 (3)) AHT petitioned for waiver 

for six model lines that are capable of 

multi-mode operation (i.e., as ice cream 

freezer and commercial refrigerator). In 

the petition, AHT stated that the DOE 

test procedure is not clear regarding 

how to test multi-mode equipment. 82 

FR 15345, 15349. To address multimode operation, AHT requested that 

their equipment be tested and rated only 

as ice cream freezers (with integrated 

average temperature of ¥15 °F +/¥ 

2.0 °F and use of total display area 

(TDA) to determine associated energy 

conservation standards). 82 FR 15345, 

15349–15350. 

In evaluating and adopting energy 

conservation standards, DOE generally 

divides covered equipment into classes 

by the type of energy used, or by 

capacity or other performance-related 

feature that justifies a different standard 

for equipment having such a feature. (42 

U.S.C. 6295(q) and 42 U.S.C. 6316(e)(1)) 

Commercial refrigeration equipment is 

divided into various equipment classes 

categorized by specific physical and 

design characteristics, such as operating 

temperatures. These equipment classes 

have characteristics that impact 

efficiency and have different 

corresponding energy conservation 

standards for refrigerators, freezers, and 

ice-cream freezers under the current 

DOE regulations. AHT’s proposed 

alternate test procedure would have 

rated its multi-mode basic models in a 

manner that was unrepresentative 

because it would have only accounted 

for ice-cream freezer mode operation 

and would not have accounted for 

freezer mode operation. As DOE 

explained in the notice of a petition for 

waiver, partial grant of an interim 

waiver, and request for public comment, 

DOE did not agree with AHT’s assertion 

that the multi-mode regulations for 

commercial refrigeration equipment 

were unclear. 82 FR 15345, 15347. DOE 

reiterated that in the most recent 

commercial refrigeration equipment test 

procedure final rule, self-contained 

equipment or remote condensing 

equipment with thermostats capable of 

operating at temperatures that span 

multiple equipment categories must be 

certified and comply with DOE’s 

regulations for each applicable 

equipment category. (Id.) 

After evaluating AHT’s petition and 

alternate test procedure, DOE partially 

granted AHT’s interim waiver. 82 FR 

15345. DOE required 102 business days 

for this review. If DOE did not have 

sufficient time to evaluate this test 

procedure waiver and AHT moved 

forward with its request without 

modification, AHT would not have been 

evaluating the multi-mode operation in 

a manner representative of field use in 

freezer mode and it may have resulted 

in equipment being distributed in 

commerce that may have otherwise been 

non-compliant with the energy 

conservation standards. 

DOE has tentatively determined that 

the December 2020 Final Rule did not 

place sufficient weight on the potential 

for alternate test procedures granted 

without sufficient DOE review to allow 

manufacturers to place products in the 

market that do not meet applicable 

energy conservation standards. To the 

extent that test procedure results are 

unrepresentative and do not provide 

comparative data, energy savings may 

not be realized, and consumers may not 

be able to make informed choices. As 

discussed previously, DOE has an 

obligation under EPCA to ensure that all 

test procedures authorized by the 

Department yield measurements of 

energy consumption that are 

representative of actual product or 

equipment performance. (42 U.S.C. 

6293) As commenters noted in the 

December 2020 Final Rule, a DOE test 

procedure that inaccurately measures 

energy use of a covered product or 

equipment could inadvertently allow for 

the backsliding of energy conservation 

measures in violation of 42 U.S.C. 

9265(o). As seen with the GEA and AHT 

petitions, DOE cannot appropriately 

determine whether an alternate test 

procedure will accurately measure 

energy use if there is insufficient time 

to understand a product and validate an 

alternate test procedure. Accordingly, 

DOE is proposing to remove the 

provision that interim waivers will be 

automatically granted if DOE fails to 

notify the petitioner of the disposition 

of the petition within 45 business days 

of receipt. DOE also proposes to remove 

the language at 10 CFR 430.27(e)(1)(iii) 

and 10 CFR 431.401(e)(1)(iii) specifying 

when a petition is considered 

‘‘received’’ by DOE. These provisions 

were added for purposes of determining 

the start of the 45 business day window 

and would serve no purpose if interim 

waivers are not automatically granted 

within a specified time period. 

DOE requests comments, information, 

and data on its proposal to remove the 

provision that interim waivers will be 

automatically granted if DOE fails to 

respond to the request within 45 

business days of receipt of the petition. 

In addition, after further reflection of 

the approach adopted in the December 

2020 Final Rule and considering DOE’s 

available resources, DOE is 

reconsidering whether the 45 business 

day review timeframe provides 

sufficient time for DOE to properly 

evaluate a proposed alternate test 

procedure. As discussed in the 

December 2020 Final Rule, DOE’s 

analysis of the processing time of 33 

interim waivers between 2016 and 2018 

showed long review periods between 

the receipt of the waiver application and 

issuance of an interim waiver. 85 FR 

79802, 79812–79813. Of those 33 

interim waiver requests, only four were 

granted within 45 business days of 

receipt. Id. On average, 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. Id. DOE noted in the 

December 2020 Final Rule that this data 

illustrated that there was a need for 

issuance of a timely interim waiver. 85 

FR 79802, 79813. 

After further consideration, DOE 

acknowledges that there is a need for 

improvement in its process to more 

timely address interim waivers but DOE 

believes the 45 business day timeframe 

implemented by the December 2020 

Final Rule is too brief and rigid. An 

inflexible rule can fail to take relevant 

circumstances into account. As seen 

with the GEA and AHT petitions, a 

longer time frame is often needed for 

DOE to understand the product, the 

proposed alternate test procedure, and 

whether that alternate test procedure 

will accurately reflect the product’s 

energy consumption during an average 

use cycle. As noted in DOE’s 2014 

rulemaking on the petitions for waiver 

and interim waiver regulations, many 

delays in processing waiver applications 

arise from iterative efforts by DOE to 

obtain sufficient information upon 


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which to base a decision to grant an 

interim waiver. Making a determination 

that an alternate test procedure 

complies with EPCA also requires 

careful analysis and sometimes requires 

testing by DOE. 79 FR 26591, 29593 

(May 9, 2014). DOE stated in the 

December 2020 Final Rule that a 

downside of this iterative process is the 

inability of interested stakeholders to 

participate in the development of an 

interim test procedure (85 FR 79802, 

79809); however, DOE believes the risk 

of non-compliant alternate test 

procedures outweighs early stakeholder 

input. Further, interested stakeholders 

will not lose the ability to provide 

comment on the alternate test 

procedures as the regulations require 

notification of a proposed alternated test 

procedure to affected manufacturers and 

opportunity for comment. 10 CFR 

430.24(b)(iv) and 10 CFR 431.401(b)(iv). 

DOE has a statutory obligation under 

EPCA to ensure that alternative test 

methods authorized by the Department 

yield measurements of energy 

consumption that are representative of 

actual performance. Providing a longer, 

flexible timeframe that better reflects 

DOE’s experience will allow DOE to 

complete the analysis required, while 

providing a realistic timeframe on 

which manufacturers can more 

reasonably rely. 

Accordingly, DOE proposes that DOE 

will make best efforts to respond to 

interim waiver requests within 90 

business days. Based on DOE’s 

experience, a period of 90 business days 

would still represent an improvement in 

response time, and in most cases would 

allow DOE sufficient time for proper 

analysis, review, and testing. 

Importantly, this proposal would ensure 

that DOE can fulfill its obligation under 

EPCA to ensure that alternative test 

methods yield results that are 

representative of the product’s true 

energy (or water) consumption 

characteristics so as to provide 

materially accurate comparative data, 

while still accounting for how 

circumstances may dictate a lengthier 

period for consideration of a particular 

request. 

DOE requests comments, information, 

and data on its proposal that DOE will 

make best efforts to respond to an 

interim waiver request within 90 

business days. 

To clarify the necessary contents of a 

petition for interim waiver, DOE is also 

proposing amendments to 10 CFR 

430.27(b) and 10 CFR 431.401(b). As 

noted previously, many of the delays in 

interim waiver processing arise from the 

back-and-forth between DOE and 

manufacturers to ensure that the 

manufacturer has submitted the 

necessary information to support its 

request. Before DOE can act on a request 

for interim waiver, DOE may correspond 

with a manufacturer several times to 

obtain all necessary information and 

ensure that the manufacturer has 

submitted a complete petition. In 

addition, to formalize the process by 

which DOE will respond to incomplete 

petitions, DOE is proposing to specify at 

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

431.401(e)(2) that a petition for interim 

waiver will be considered incomplete if 

it does not meet the content 

requirements of 10 CFR 430.27(b) or 10 

CFR 431.401(b), as applicable. In such a 

case, DOE will notify the petitioner of 

an incomplete petition via email. DOE 

will continue the iterative process by 

which DOE assists manufacturers in 

completing their petitions. DOE believes 

these amendments will provide clarity 

regarding the initial requirements for 

petition submissions. Consistent with 

these proposals, DOE also proposes to 

state at 10 CFR 430.27(e)(1) and 10 CFR 

431.401(e)(1) that DOE will post a 

petition for interim waiver on its 

website within five business days of 

receipt of a complete petition. 

DOE is similarly proposing 

amendments to 10 CFR 430.27(g) and 10 

CFR 431.401(g) to specify the 

information that must be provided in a 

request to extend a waiver to additional 

basic models. Specifically, DOE 

proposes that the petition for extension 

must identify the particular basic 

model(s) for which a waiver extension 

is requested, each brand name under 

which the identified basic model(s) will 

be distributed in commerce, and 

documentation supporting the claim 

that the additional basic models employ 

the same technology as the basic 

model(s) set forth in the original 

petition. DOE believes that including 

these requirements in the regulations 

will make clear to manufacturers the 

information required for an extension 

request and allow DOE to process such 

requests more expeditiously. 

DOE requests comments on its 

proposals to specify the contents of a 

complete petition for interim waiver, to 

formalize the process by which DOE 

will respond to incomplete petitions, 

and to specify the information that must 

be provided in a request to extend a 

waiver to additional basic models. 

DOE is also proposing amendments to 

10 CFR 430.27(h) and 10 CFR 

431.401(h). The current regulations 

provide that upon publication in the 

Federal Register of a new or amended 

test procedure that addresses the 

issue(s) presented in a waiver, an 

interim waiver will cease to be in effect. 

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

431.401(h)(1)(ii). Under this provision, a 

manufacturer can no longer rely on an 

interim waiver upon the publication 

date of a new or amended test 

procedure. In contrast, final waivers 

automatically terminate on the date on 

which use of such test procedure is 

required to demonstrate compliance. To 

ensure equitable treatment of final 

waivers and interim waivers that are in 

place at the time a test procedure final 

rule publishes, DOE is proposing to 

specify that final waivers and interim 

waivers both automatically terminate on 

the compliance date of the test 

procedure final rule. 

DOE requests comments on its 

proposal to specify that interim waivers 

in place at the time a test procedure 

final rule is published will 

automatically terminate on the 

compliance date of the test procedure 

final rule. 

DOE is also proposing amendments to 

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

to clearly state the transition period for 

compliance with a decision and order or 

test procedure final rule. DOE believes 

these amendments are necessary to 

make clear the transition periods for 

scenarios not previously addressed by 

these provisions. These provisions 

would apply to required certifications 

and any representations. DOE proposes 

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

CFR 431.401(i)(1) that manufacturers 

have 180 days (or up to 360 days, as 

applicable) to comply with a decision 

and order or test procedure 

methodology, unless otherwise 

specified by DOE in the decision and 

order. The existing language in these 

sections specifies that when basic 

models have already been certified 

using the test procedure permitted in 

DOE’s grant of an interim test procedure 

waiver, a manufacturer is not required 

to re-test and re-rate those basic models 

under certain circumstances. DOE 

intends to retain this flexibility, but 

simplify this provision by stating that 

DOE may specify in the decision and 

order when certification reports and any 

representations need not be based on 

the decision and order test procedure 

methodology. DOE also proposes to 

specify at 10 CFR 430.27(i)(1) and 10 

CFR 431.401(i)(1) that once a 

manufacturer uses the decision and 

order test procedure methodology in a 

certification report or any 

representation, all subsequent 

certification reports and any 

representations would be required to be 

made using the decision and order test 

procedure methodology while the 

waiver is valid. In addition, DOE is 

proposing similar amendments to clarify 


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7 Department of Energy, Enforcement Policy 

Statement—Pending Test Procedure Waiver 

Applications (Apr. 5. 2017), available at https://

www.energy.gov/sites/default/files/2017/04/f34/ 

Enforcement%20Policy%20-%20waivers.pdf. 

when certification reports and any 

representations are required to be based 

on a new or amended test procedure. 

Specifically, 10 CFR 430.27(i)(2) and 10 

CFR 431.401(i)(2) would provide that 

certification reports and any 

representations may be based on the 

testing methodology of an applicable 

final waiver or interim waiver, or the 

new or amended test procedure until 

the compliance date of the amended test 

procedure. Thereafter, certification 

reports and any representations must be 

based on the test procedure final rule 

methodology unless specified by DOE in 

the test procedure final rule. Consistent 

with this provision, as necessary, DOE 

would be able to specify in a test 

procedure final rule that a manufacturer 

need not recertify basic models where 

testing under the interim waiver or final 

waiver test procedure methodology, as 

compared to the amended test 

procedure methodology, does not result 

in a change in measured energy use. 

This section would also specify that 

once a manufacturer uses the test 

procedure final rule methodology in a 

certification report or any 

representation, all subsequent 

certification reports and any 

representations must be made using the 

test procedure final rule methodology. 

DOE requests comments on the 

proposed amendment to 10 CFR 

430.27(i) and 10 CFR 431.401(i). 

In addition, DOE is proposing 

amendments to 10 CFR 430.27(j) and 10 

CFR 431.401(j) for simplification and 

consistency with the enforcement 

requirements at 10 CFR part 429. Under 

10 CFR 430.27(j) and 10 CFR 431.401(j) 

manufacturers of products or equipment 

employing a technology or characteristic 

for which a waiver was granted for 

another basic model must also seek a 

waiver for basic models of their product 

or equipment. Under these provisions, 

manufacturers currently distributing 

such products in commerce have 60 

days to submit a waiver application and 

manufacturers of such products that are 

not currently distributing such products 

in commerce must petition for and be 

granted a waiver prior to distribution in 

commerce. When originally 

implemented, the intent of these 

provisions was to ensure that similar 

products are rated in a comparable 

manner. 77 FR 74616, 74618. DOE 

wishes to preserve this intent, but 

believes this language to be confusing 

when read in context with 10 CFR part 

429. Pursuant to 10 CFR 429.12, a basic 

model must be certified prior to 

distribution in commerce, and that 

certification must be based on testing 

conducted in conformance with the 

applicable test requirements prescribed 

in 10 CFR parts 429, 430 and 431, or in 

accordance with the terms of an 

applicable test procedure waiver. 

Manufacturers must comply with 10 

CFR part 429 prior to distributing their 

product in commerce (i.e., there is no 

grace period) and 10 CFR part 429 

draws no distinction between models 

currently being distributed and models 

that will be distributed in the future. To 

align with 10 CFR part 429, DOE 

proposes to remove the 60 day period 

and to make no distinction between 

models currently being distributed and 

models that will be distributed in the 

future. DOE believes the proposed 

amendments continue to achieve the 

original intent of paragraph (j) while 

better aligning with 10 CFR part 429. 

DOE requests comments on the 

proposed amendment to 10 CFR 

430.27(j) and 10 CFR 431.401(j). 

Finally, DOE is proposing an 

amendment to 10 CFR 430.27(k)(1) and 

10 CFR 431.401(k)(1). Currently those 

provisions provide that DOE may 

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 is incorrect or upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic model(s)’ 

true energy consumption characteristics. 

DOE envisions that there could be other 

circumstances, such as new 

methodology, that might necessitate 

modification of a waiver. As such, DOE 

proposes to add to this provision that 

DOE may rescind or modify a waiver for 

other appropriate reasons. 

DOE requests comments on the 

proposed amendment to 10 CFR 

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

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

The Office of Information and 

Regulatory Affairs (OIRA) in the Office 

of Management and Budget (OMB) 

waived Executive Order (‘‘E.O.’’) 12866, 

‘‘Regulatory Planning and Review’’ 

review of this proposed rule. 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996) requires 

preparation of an initial regulatory 

flexibility analysis (IRFA) for any rule 

that by law must be proposed for public 

comment and a final regulatory 

flexibility analysis (FRFA) for any such 

rule that an agency adopts as a final 

rule, unless the agency certifies that the 

rule, if promulgated, will not have a 

significant economic impact on a 

substantial number of small entities. A 

regulatory flexibility analysis examines 

the impact of the rule on small entities 

and considers alternative ways of 

reducing negative effects. Also, as 

required by Executive Order 13272, 

‘‘Proper Consideration of Small Entities 

in Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the DOE 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s website at: https://energy.gov/ 

gc/office-general-counsel. 

This proposed rule would not impose 

any new requirements on any 

manufacturers, including small 

businesses. This proposed rule removes 

the provision automatically granting 

interim waivers within 45 business days 

of receipt and proposes to add a new 

provision that DOE will make best 

efforts to process an interim waiver 

request within 90 days of receipt. While 

this proposal allows DOE a longer 

period to review interim waiver 

petitions, consistent with DOE’s current 

enforcement policy, manufacturers can 

sell products tested in accordance with 

a filed petition without fear of 

enforcement action.7 As such, DOE 

anticipates any additional review period 

will minimally impact manufacturers, 

including small businesses. Under this 

proposed rule, DOE is also specifying a 

number of requirements for complete 

petitions for interim waiver and 

petitions for an extension of a waiver. 

These proposals are not new 

requirements (i.e., petitions must 

currently include this information), but 

are proposed to be included in DOE’s 

regulations to make clear to 

manufacturers the information required 

for a petition or an extension request 

and allow DOE to process such requests 

more expeditiously. DOE is also 

proposing to eliminate the 60-day 

period from 10 CFR 430.27(j) and 10 

CFR 431.401(j) to align with 

enforcement requirements at 10 CFR 

part 429. DOE believes this amendment 

will minimally impact manufacturers, 

including small businesses, as they are 

already subject to the requirements at 10 

CFR part 429 which provides no grace 


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period. Finally, DOE believes its 

proposals to revise the compliance 

certification and representation 

requirements and to clarify the duration 

of interim waivers will provide clarity 

to manufacturers and do not increase 

the burden on manufacturers, including 

small businesses. DOE does not 

anticipate any impact on small 

businesses as a result of the proposed 

amendments to 10 CFR 430.27(k)(1) and 

10 CFR 431.401(k)(1). 

For these reasons, DOE certifies that 

this proposed rule, if promulgated, 

would 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 will be 

provided to the Chief Counsel of 

Advocacy of the SBA pursuant to 5 

U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

Manufacturers of covered products/ 

equipment must certify to DOE that 

their products comply with any 

applicable energy conservation 

standards. In certifying compliance, 

manufacturers must test their products 

according to the DOE test procedures for 

such products/equipment, including 

any amendments adopted for those test 

procedures, on the date that compliance 

is required. DOE has established 

regulations for the certification and 

recordkeeping requirements for all 

covered consumer products and 

commercial equipment. 76 FR 12422 

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

2015). The collection-of-information 

requirement for certification and 

recordkeeping is subject to review and 

approval by OMB under the Paperwork 

Reduction Act (PRA). This requirement 

has been approved by OMB under OMB 

control number 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. 

Specifically, this proposed rule, 

addressing revisions to DOE’s test 

procedure waiver process, does not 

contain any collection of information 

requirement that would trigger the PRA. 

D. Review Under the National 

Environmental Policy Act of 1969 

DOE is analyzing this proposed 

regulation in accordance with the 

National Environmental Policy Act 

(NEPA) and DOE’s NEPA implementing 

regulations (10 CFR part 1021). DOE’s 

regulations include a categorical 

exclusion for rulemakings interpreting 

or amending an existing rule or 

regulation that does not change the 

environmental effect of the rule or 

regulation being amended. 10 CFR part 

1021, subpart D, appendix A5. DOE 

anticipates that this rulemaking 

qualifies for categorical exclusion A5 

because it amends an existing rule and 

does not change the environmental 

effect of the rule and otherwise meets 

the requirements for application of a 

categorical exclusion. See 10 CFR 

1021.410. DOE will complete its NEPA 

review before issuing the final rule. 

E. 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 

proposed 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. 

F. Review Under Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 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; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) promote simplification 

and burden reduction. Regarding the 

review required by section 3(a), section 

3(b) of Executive Order 12988 

specifically requires that each Executive 

agency make every reasonable effort to 

ensure that when it issues a regulation, 

the regulation: (1) Clearly specifies the 

preemptive effect, if any; (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; (5) adequately 

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 sections 3(a) and 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and has determined that, to the 

extent permitted by law, the proposed 

rule meets the relevant standards of 

Executive Order 12988. 

G. 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. (Pub. L. 104–4, sec. 201 

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

proposed regulatory action 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 proposed ‘‘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 

https://www.energy.gov/gc/officegeneral-counsel under ‘‘Guidance & 

Opinions’’ (Rulemaking)) DOE 

examined the proposed rule according 

to UMRA and its statement of policy 

and has determined that the rule 

contains neither an intergovernmental 

mandate, nor a mandate that may result 


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in the expenditure by State, local, and 

Tribal governments, 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. 

H. 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 rule 

that may affect family well-being. This 

proposed rule would 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. 

I. Review Under Executive Order 12630 

Pursuant to Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 18, 1988), 

DOE has determined that this proposed 

rule would not result in any takings that 

might require compensation under the 

Fifth Amendment to the U.S. 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of 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 information quality 

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 proposed rule under the 

OMB and DOE guidelines and has 

concluded that it is consistent with the 

applicable policies in those guidelines. 

K. 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. 

L. Review Consistent With OMB’s 

Information Quality Bulletin for Peer 

Review 

On December 16, 2004, OMB, in 

consultation with the Office of Science 

and Technology Policy (OSTP), issued 

its Final Information Quality Bulletin 

for Peer Review (the Bulletin). 70 FR 

2664 (Jan. 14, 2005). The Bulletin 

establishes that certain scientific 

information shall be peer reviewed by 

qualified specialists before it is 

disseminated by the Federal 

Government, including influential 

scientific information related to agency 

regulatory actions. The purpose of the 

bulletin is to enhance the quality and 

credibility of the Government’s 

scientific information. Under the 

Bulletin, the energy conservation 

standards rulemaking analyses are 

‘‘influential scientific information,’’ 

which the Bulletin defines as ‘‘scientific 

information the agency reasonably can 

determine will have or does have a clear 

and substantial impact on important 

public policies or private sector 

decisions.’’ Id. at 70 FR 2667. 

In response to OMB’s Bulletin, DOE 

conducted formal in-progress peer 

reviews of the energy conservation 

standards development process and 

analyses and has prepared a Peer 

Review Report pertaining to the energy 

conservation standards rulemaking 

analyses. Generation of this report 

involved a rigorous, formal, and 

documented evaluation using objective 

criteria and qualified and independent 

reviewers to make a judgment as to the 

technical/scientific/business merit, the 

actual or anticipated results, and the 

productivity and management 

effectiveness of programs and/or 

projects. The ‘‘Energy Conservation 

Standards Rulemaking Peer Review 

Report,’’ dated February 2007, has been 

disseminated and is available at the 

following website: https://www1.eere.

energy.gov/buildings/appliance_

standards/peer_review.html. Because 

available data, models, and 

technological understanding have 

changed since 2007, DOE has engaged 

with the National Academy of Sciences 

to review DOE’s analytical 

methodologies to ascertain whether 

modifications are needed to improve the 

Department’s analyses. The results from 

that review are expected later in 2021. 

V. Public Participation 

A. Submission of Comments 

DOE will accept comments, data, and 

information regarding this proposed 

rule no later than the date provided in 

the DATES section at the beginning of 

this proposed rule. Interested parties 

may submit comments using any of the 

methods described in the ADDRESSES

section at the beginning of this 

document. 

Submitting comments via https://

www.regulations.gov. The https://

www.regulations.gov web page will 

require you to provide your name and 

contact information. Your contact 

information will be viewable to DOE 

Building Technologies staff only. Your 

contact information will not be publicly 

viewable except for your first and last 

names, organization name (if any), and 

submitter representative name (if any). 

If your comment is not processed 

properly because of technical 

difficulties, DOE will use this 

information to contact you. If DOE 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, DOE may not be 

able to consider your comment. 

However, your contact information 

will be publicly viewable if you include 

it in the comment or in any documents 

attached to your comment. Any 

information that you do not want to be 

publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Persons viewing comments will see only 

first and last names, organization 

names, correspondence containing 

comments, and any documents 

submitted with the comments. 

Do not submit to https://

www.regulations.gov information for 

which disclosure is restricted by statute, 

such as trade secrets and commercial or 

financial information (hereinafter 

referred to as Confidential Business 

Information (CBI)). Comments 

submitted through https://

www.regulations.gov cannot be claimed 

as CBI. Comments received through the 


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website will waive any CBI claims for 

the information submitted. For 

information on submitting CBI, see the 

Confidential Business Information 

section. 

DOE processes submissions made 

through https://www.regulations.gov 

before posting. Normally, comments 

will be posted within a few days of 

being submitted. However, if large 

volumes of comments are being 

processed simultaneously, your 

comment may not be viewable for up to 

several weeks. Please keep the comment 

tracking number that https://

www.regulations.gov provides after you 

have successfully uploaded your 

comment. 

Submitting comments via email. 

Comments and documents submitted 

via email will be posted to https://

www.regulations.gov. If you do not want 

your personal contact information to be 

publicly viewable, do not include it in 

your comment or any accompanying 

documents. Instead, provide your 

contact information in a cover letter. 

Include your first and last names, email 

address, telephone number, and 

optional mailing address. The cover 

letter will not be publicly viewable as 

long as it does not include any 

comments. 

Include contact information each time 

you submit comments, data, documents, 

and other information to DOE. No 

telefacsimiles (faxes) will be accepted. 

Comments, data, and other 

information submitted to DOE 

electronically should be provided in 

PDF (preferred), Microsoft Word or 

Excel, WordPerfect, or text (ASCII) file 

format. Provide documents that are not 

secured, written in English, and free of 

any defects or viruses. Documents 

should not contain special characters or 

any form of encryption, and, if possible, 

they should carry the electronic 

signature of the author. 

Campaign form letters. Please submit 

campaign form letters by the originating 

organization in batches of between 50 to 

500 form letters per PDF or as one form 

letter with a list of supporters’ names 

compiled into one or more PDFs. This 

reduces comment processing and 

posting time. 

Confidential Business Information. 

Pursuant to 10 CFR 1004.11, any person 

submitting information that he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit via email two well-marked 

copies: One copy of the document 

marked ‘‘confidential’’ including all the 

information believed to be confidential, 

and one copy of the document marked 

‘‘non-confidential’’ with the information 

believed to be confidential deleted. 

Submit these documents via email. DOE 

will make its own determination about 

the confidential status of the 

information and treat it according to its 

determination. 

It is DOE’s policy that all comments 

may be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this notice of proposed 

rulemaking. 

Signing Authority 

This document of the Department of 

Energy was signed on July 26, 2021, by 

Dr. Kathleen B. Hogan, Acting Under 

Secretary for Energy and Science, 

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. 

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. 

Signed in Washington, DC, on July 27, 

2021. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons stated in the 

preamble, DOE is proposing to amend 

parts 430, and 431 of chapter II of title 

10, 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 (b), (e), (g), (h), (i), 

(j), and (k)(1) to read as follows: 

§ 430.27 Petitions for waiver and interim 

waiver of the test procedure. 

* * * * * 

(b) Petition content and publication. 

(1) Each petition for interim waiver and 

waiver must: 

(i) Identify the particular basic 

model(s) for which a waiver is 

requested, each brand name under 

which the identified basic model(s) will 

be distributed in commerce, the design 

characteristic(s) constituting the 

grounds for the petition, and the 

specific requirements sought to be 

waived, and must discuss in detail the 

need for the requested waiver; 

(ii) Identify manufacturers of all other 

basic models distributed in commerce 

in the United States and known to the 

petitioner to incorporate design 

characteristic(s) similar to those found 

in the basic model that is the subject of 

the petition; 

(iii) Include any alternate test 

procedures known to the petitioner to 

evaluate the performance of the product 

type in a manner representative of the 

energy and/or water consumption 

characteristics of the basic model; and 

(iv) Be signed by the petitioner or an 

authorized representative. In accordance 

with the provisions set forth in 10 CFR 

1004.11, any request for confidential 

treatment of any information contained 

in a petition or in supporting 

documentation must be accompanied by 

a copy of the petition, application or 

supporting documentation from which 

the information claimed to be 

confidential has been deleted. DOE will 

publish in the Federal Register the 

petition and supporting documents from 

which confidential information, as 

determined by DOE, has been deleted in 

accordance with 10 CFR 1004.11 and 

will solicit comments, data and 

information with respect to the 

determination of the petition. 

(2) In addition to the requirements in 

paragraph (b)(1) of this section, each 

petition for interim waiver must 

reference the related petition for waiver, 

demonstrate likely success of the 

petition for waiver, and address what 

economic hardship and/or competitive 

disadvantage is likely to result absent a 


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46802 Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 

favorable determination on the petition 

for interim waiver. 

* * * * * 

(e) Provisions specific to interim 

waivers—(1) Disposition of petition. 

DOE will post a petition for interim 

waiver on its website within 5 business 

days of receipt of a complete petition. 

DOE will make best efforts to review a 

petition for interim waiver within 90 

business days of receipt of a complete 

petition. 

(2) Incomplete petitions. A petition 

for interim waiver that does not meet 

the content requirements of paragraph 

(b) of this section will be considered 

incomplete. DOE will notify the 

petitioner of an incomplete petition via 

email. 

(3) Criteria for granting. DOE will 

grant an interim waiver from the test 

procedure requirements if it appears 

likely that the petition for waiver will be 

granted and/or if DOE determines that it 

would be desirable for public policy 

reasons to grant immediate relief 

pending a determination on the petition 

for waiver. Notice of DOE’s 

determination on the petition for 

interim waiver will be published in the 

Federal Register. 

* * * * * 

(g) Extension to additional basic 

models. A petitioner may request that 

DOE extend the scope of a waiver or an 

interim waiver to include additional 

basic models employing the same 

technology as the basic model(s) set 

forth in the original petition. The 

petition for extension must identify the 

particular basic model(s) for which a 

waiver extension is requested, each 

brand name under which the identified 

basic model(s) will be distributed in 

commerce, and documentation 

supporting the claim that the additional 

basic models employ the same 

technology as the basic model(s) set 

forth in the original petition. DOE will 

publish any such extension in the 

Federal Register. 

(h) Duration. (1) Within one year of 

issuance of an interim waiver, DOE will 

either: 

(i) Publish in the Federal Register a 

determination on the petition for 

waiver; or 

(ii) Publish in the Federal Register a 

new or amended test procedure that 

addresses the issues presented in the 

waiver. 

(2) When DOE publishes a decision 

and order on a petition for waiver in the 

Federal Register pursuant to paragraph 

(f) of this section, the interim waiver 

will terminate 180 days after the 

publication date of the decision and 

order. 

(3) When DOE amends the test 

procedure to address the issues 

presented in a waiver, the waiver or 

interim waiver will automatically 

terminate on the compliance date of the 

amended test procedure. 

(i) Compliance certification and 

representations. If the interim waiver 

test procedure methodology is different 

than the decision and order test 

procedure methodology, certification 

reports to DOE required under 10 CFR 

429.12 and any representations may be 

based on either of the two 

methodologies until 180 days after the 

publication date of the decision and 

order. 

(j) Petition for waiver required of other 

manufactures. Any manufacturer of a 

basic model employing a technology or 

characteristic for which a waiver was 

granted for another basic model and that 

results in the need for a waiver (as 

specified by DOE in a published 

decision and order in the Federal 

Register) must petition for and be 

granted a waiver for that basic model. 

Manufacturers may also submit a 

request for interim waiver pursuant to 

the requirements of this section. 

(k) Rescission or modification. (1) 

DOE may 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 is incorrect, upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic model(s)’ 

true energy consumption characteristics, 

or for other appropriate reason. Waivers 

and interim waivers are conditioned 

upon the validity of statements, 

representations, and documents 

provided by the requestor; any evidence 

that the original grant of a waiver or 

interim waiver was based upon 

inaccurate information will weigh 

against continuation of the waiver. 

DOE’s decision will specify the basis for 

its determination and, in the case of a 

modification, will also specify the 

change to the authorized test procedure. 

* * * * * 

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 (b), (e), (g), (h), (i), 

(j), and (k)(1) to read as follows: 

§ 431.401 Petitions for waiver and interim 

waiver of the test procedure. 

* * * * * 

(b) Petition content and publication. 

(1) Each petition for interim waiver and 

waiver must: 

(i) Identify the particular basic 

model(s) for which a waiver is 

requested, each brand name under 

which the identified basic model(s) will 

be distributed in commerce, the design 

characteristic(s) constituting the 

grounds for the petition, and the 

specific requirements sought to be 

waived, and must discuss in detail the 

need for the requested waiver; 

(ii) Identify manufacturers of all other 

basic models distributed in commerce 

in the United States and known to the 

petitioner to incorporate design 

characteristic(s) similar to those found 

in the basic model that is the subject of 

the petition; 

(iii) Include any alternate test 

procedures known to the petitioner to 

evaluate the performance of the product 

type in a manner representative of the 

energy and/or water consumption 

characteristics of the basic model; and 

(iv) Be signed by the petitioner or an 

authorized representative. In accordance 

with the provisions set forth in 10 CFR 

1004.11, any request for confidential 

treatment of any information contained 

in a petition or in supporting 

documentation must be accompanied by 

a copy of the petition, application or 

supporting documentation from which 

the information claimed to be 

confidential has been deleted. DOE will 

publish in the Federal Register the 

petition and supporting documents from 

which confidential information, as 

determined by DOE, has been deleted in 

accordance with 10 CFR 1004.11 and 

will solicit comments, data and 

information with respect to the 

determination of the petition. 

(2) Each petition for interim waiver 

must reference the related petition for 

waiver, demonstrate likely success of 

the petition for waiver, and address 

what economic hardship and/or 

competitive disadvantage is likely to 

result absent a favorable determination 

on the petition for interim waiver. 

* * * * * 

(e) Provisions specific to interim 

waivers—(1) Disposition of petition. 

DOE will post a petition for interim 

waiver on its website within 5 business 

days of receipt of a complete petition. 

DOE will make best efforts to review a 

petition for interim waiver within 90 

business days of receipt of a complete 

petition. 

(2) Incomplete petitions. A petition 

for interim waiver that does not meet 


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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules 46803 

the content requirements of paragraph 

(b) of this section will be considered 

incomplete. DOE will notify the 

petitioner of an incomplete petition via 

email. 

(3) Criteria for granting. DOE will 

grant an interim waiver from the test 

procedure requirements if it appears 

likely that the petition for waiver will be 

granted and/or if DOE determines that it 

would be desirable for public policy 

reasons to grant immediate relief 

pending a determination on the petition 

for waiver. Notice of DOE’s 

determination on the petition for 

interim waiver will be published in the 

Federal Register. 

* * * * * 

(g) Extension to additional basic 

models. A petitioner may request that 

DOE extend the scope of a waiver or an 

interim waiver to include additional 

basic models employing the same 

technology as the basic model(s) set 

forth in the original petition. The 

petition for extension must identify the 

particular basic model(s) for which a 

waiver extension is requested, each 

brand name under which the identified 

basic model(s) will be distributed in 

commerce, and documentation 

supporting the claim that the additional 

basic models employ the same 

technology as the basic model(s) set 

forth in the original petition. DOE will 

publish any such extension in the 

Federal Register. 

(h) Duration. (1) Within one year of 

issuance of an interim waiver, DOE will 

either: 

(i) Publish in the Federal Register a 

final determination on the petition for 

waiver; or 

(ii) Publish in the Federal Register a 

new or amended test procedure that 

addresses the issues presented in the 

waiver. 

(2) When DOE publishes a decision 

and order on a petition for waiver in the 

Federal Register pursuant to paragraph 

(f) of this section, the interim waiver 

will 180 days after the publication date 

of the decision and order 

(3) When DOE amends the test 

procedure to address the issues 

presented in a waiver, the waiver or 

interim waiver will automatically 

terminate on the date on which use of 

that test procedure is required to 

demonstrate compliance. 

(i) Compliance certification and 

representations. (1) If the interim waiver 

test procedure methodology is different 

than the decision and order test 

procedure methodology, certification 

reports to DOE required under 10 CFR 

429.12 and any representations may be 

based on either of the two 

methodologies until 180–360 days after 

the publication date of the decision and 

order, as specified by DOE in the 

decision and order. Thereafter, 

certification reports and any 

representations must be based on the 

decision and order test procedure 

methodology unless otherwise specified 

by DOE. Once a manufacturer uses the 

decision and order test procedure 

methodology in a certification report or 

any representation, all subsequent 

certification reports and any 

representations must be made using the 

decision and order test procedure 

methodology while the waiver is valid. 

(2) When DOE publishes a new or 

amended test procedure, certification 

reports to DOE required under 10 CFR 

429.12 and any representations may be 

based on the testing methodology of an 

applicable waiver or interim waiver, or 

the new or amended test procedure 

until the date on which use of such test 

procedure is required to demonstrate 

compliance unless otherwise specified 

by DOE in the test procedure final rule. 

Thereafter, certification reports and any 

representations must be based on the 

test procedure final rule methodology. 

Once a manufacturer uses the test 

procedure final rule methodology in a 

certification report or any 

representation, all subsequent 

certification reports and any 

representations must be made using the 

test procedure final rule methodology. 

(j) Petition for waiver required of other 

manufactures. Any manufacturer of a 

basic model employing a technology or 

characteristic for which a waiver was 

granted for another basic model and that 

results in the need for a waiver (as 

specified by DOE in a published 

decision and order in the Federal 

Register) must petition for and be 

granted a waiver for that basic model. 

Manufacturers may also submit a 

request for interim waiver pursuant to 

the requirements of this section. 

(k) Rescission or modification. (1) 

DOE may 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 is incorrect, upon a 

determination that the results from the 

alternate test procedure are 

unrepresentative of the basic model(s)’ 

true energy consumption characteristics, 

or for other appropriate reason. Waivers 

and interim waivers are conditioned 

upon the validity of statements, 

representations, and documents 

provided by the requestor; any evidence 

that the original grant of a waiver or 

interim waiver was based upon 

inaccurate information will weigh 

against continuation of the waiver. 

DOE’s decision will specify the basis for 

its determination and, in the case of a 

modification, will also specify the 

change to the authorized test procedure. 

* * * * * 

[FR Doc. 2021–16341 Filed 8–19–21; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 73 

[Docket No. FDA–2021–C–0787] 

Piotrovska, PTY LTD.; Filing of Color 

Additive Petition 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Notification of petition. 

SUMMARY: The Food and Drug 

Administration (FDA or we) is 

announcing that we have filed a 

petition, submitted by Australian 

Laboratory Services, PTY LTD., on 

behalf of Piotrovska, PTY LTD., 

proposing that the color additive 

regulations be amended to expand the 

permitted uses of synthetic iron oxide as 

a color additive to include use in edible 

decorative paint. 

DATES: The color additive petition was 

filed on June 28, 2021. 

ADDRESSES: For access to the docket to 

read background documents or 

comments received, go to https://

www.regulations.gov and insert the 

docket number found in brackets in the 

heading of this document into the 

‘‘Search’’ box and follow the prompts, 

and/or go to the Dockets Management 

Staff, 5630 Fishers Lane, Rm. 1061, 

Rockville, MD 20852. 

FOR FURTHER INFORMATION CONTACT: 

Stephen DiFranco, Center for Food 

Safety and Applied Nutrition, Food and 

Drug Administration, 5001 Campus Dr., 

College Park, MD 20740, 240–402–2710; 

or Jessica Larkin, Office of Regulations 

and Policy (HFS–024), Center for Food 

Safety and Applied Nutrition, Food and 

Drug Administration, 5001 Campus Dr., 

College Park, MD 20740, 240–402–2378. 

SUPPLEMENTARY INFORMATION: Under the 

Federal Food, Drug, and Cosmetic Act 

(section 721(d)(1) (21 U.S.C. 

379e(d)(1))), we are giving notice that 

we have filed a color additive petition 

(CAP 1C0321), submitted by Australian 

Laboratory Services, PTY LTD., on 

behalf of Piotrovska, PTY LTD., 

Australian Laboratory Services, PTY 

LTD., 2–8 South Street Unit 10, 

Rydalmere, NSW, 2116, Australia. The 


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