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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Proposed Rules New York filed a petition for review of the December 2020 Final Rule in the Second Circuit. California v. U.S. Dept of Energy, No. 21108 2d Cir.. Shortly thereafter, two other groups of petitioners filed petitions for review of the December 2020 Final Rule. The Alliance for Water Efficiency, the U.S.
Public Interest Research Group, and Environment America collectively, AWE filed a petition for review of that final rule in the Seventh Circuit on January 17, 2021, and the Sierra Club filed a petition for review of that final rule in the Ninth Circuit on February 12, 2021. Alliance for Water Efficiency v.
U.S. Dept of Energy, No. 21428 2d Cir.; Sierra Club v. U.S. Dept of Energy, No. 21564 2nd Cir.. After transfer of the Seventh and Ninth Circuit petitions for review, all three cases were consolidated in the Second Circuit. In its court filings, AWE has raised the following issues with the December 2020 Final Rule: that DOE lacks authority to exempt a product group from water conservation standards; DOE
failed to comply with the requirements for a section 325q rule; DOE violated EPCAs anti-backsliding provision; and DOE violated the National Environmental Policy Act. Briefing on the merits is currently stayed through October 1, 2021, while DOE reviews the December 2020 Final Rule.
On April 2, 2021, AHAM further petitioned DOE to reconsider the December 2020 Final Rule that established and amended standards for short-cycle residential clothes washers and dryers. AHAM petition for reconsideration-2; Docket EERE2021
BTSTD0002, No. 002 at 2.7 AHAM
argued that the short-cycle product classes were neither justified nor needed for three reasons. First, AHAM
stated that many clothes washers and clothes dryers already offer cycles that are within the December 2020 Final Rules cycle time goal and that meet the existing standards. Id. at 78, 12.
Second, AHAM argued that the cycle times in the December 2020 Final Rule were arbitrary because DOE lacked the data necessary to demonstrate a consumer desire for the times adopted.
Id. at 13. Third, AHAM specified that establishing the separate product classes would likely cause negative, unintended consequences such as strand manufacturer investments; create new regulation; introduce manufacturer uncertainty until standards for the new 7 As with its first petition, AHAM submitted its second petition pursuant to the APA. The AHAM
petition for reconsideration-2 is available in the docket to this rulemaking, EERE2021BTSTD
0002, at https www.regulations.gov.

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product classes are developed; increase test burden; and potentially cause disharmony in North America for clothes washer and clothes dryer standards. Id. at 89, 1618. For these reasons, AHAM requested that DOE
withdraw the December 2020 Final Rule. Id. at 19.
Like its petition regarding the shortcycle product class for residential dishwashers, AHAM requested that, while DOE considers its petition, DOE
stay the effectiveness of the final rule as it allows for unlimited energy and water use by these products and issue a statement to the market that these new product classes cannot reliably be used as the basis for new products. Id. at 2.
III. Discussion In issuing the October 2020 and December 2020 Final Rules, DOE relied on its authority under EPCA to establish product classes with higher or lower levels of energy use or efficiency when prescribing, by rule, an energy conservation standard. 42 U.S.C.
6295q. In so doing, the October 2020
and December 2020 Final Rules also amended the energy conservation standards for short-cycle products by stating they were no longer subject to energy and water conservation standards. 85 FR 68733; 85 FR 81366.
But the 2020 Final Rules did not address any of EPCAs requirements for amending an energy conservation standard, including an analysis of whether the amended standards are designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. 42 U.S.C.
6295o2A; see 85 FR 81361. DOE
also did not, among other things, adequately consider whether the amended standards violated EPCAs prohibition against prescribing an amended standard that increases the maximum allowable energy use or decreases the energy efficiency of a covered product. 42 U.S.C. 6295o1.
Because the October 2020 and December 2020 Final Rules were contrary to EPCA, DOE proposes to revoke them through this rulemaking.
As an initial matter, as support for establishing product classes without associated energy conservation standards, the October 2020 and December 2020 Final Rules asserted that those rules were simply deferring the issuance of new conservation standards.
85 FR 68723, 68733; 85 FR 81359, 81368. EPCA does not, however, allow DOE to simply defer the establishment of new energy conservation standards for regulated products or equipment that already have energy conservation
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standards. Even if EPCA authorized deferrals in some instances, any creation of the new product classes here would have needed to follow the requirements of 42 U.S.C. 6295q, which frames the development of a product class within the context of an energy conservation standard rulemaking. But the October 2020 and December 2020 Final Rules did not develop the new product classes in the context of an energy conservation standard rulemaking. Instead, by stating that the new product classes were not subject to any energy conservation standards without following 42 U.S.C.
6295q, the October 2020 and December 2020 Final Rules were an amendment in violation of EPCA.
EPCA requires, as stated previously, that an amended conservation standard must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. 42
U.S.C. 6295o2A. The plain meaning of the statutory term amend is to alter formally by adding, deleting or rephrasing. American Heritage Dictionary for the English Language 42
1981. As explained above, the 2020
Final Rules altered the existing energy and water conservation standards for the short cycle products by removing the standards applicable to those products to allow for unlimited energy and water use. This activity clearly fits within this scope of the definition of amend because DOE deleted the applicable standards altogether.
Even assuming that EPCA were ambiguous in this regard, DOEs positionthat the 2020 Final Rules improperly amended the energy and water conservation standards for the short-cycle productsis the better understanding of the statute. Prior to the 2020 Final Rules, the short-cycle products belonged to product classes subject to specific energy and/or water conservation standards. The 2020 Final Rules separated the products that met the classification for the new short-cycle product classes from their regulated counterparts to establish product classes not subject to any standard and that could operate with unlimited energy and water use. Those products now do not have any applicable standard, which effectively amended the prior energy or water conservation standards for those products to zero. But the 2020 Final Rules did so without considering any of EPCAs requirements for such action.
Relatedly, the October 2020 and December 2020 Final Rules inaccurately cited DOEs 2007 distribution transformer and 2009 beverage vending machine BVM energy conservation standards rulemakings as support. 85 FR

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