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Federal Register / Vol. 86, No. 152 / Wednesday, August 11, 2021 / Proposed Rules
68723, 68733; 85 FR 81361, 81368. In the 2007 distribution transformers rulemaking, DOE established a separate equipment class for underground mining distribution transformers without establishing associated energy conservation standards. 72 FR 58190
Oct. 12, 2007. Similarly, in the 2009
BVM rulemaking, DOE established a separate equipment class for combination BVMs without establishing associated energy conservation standards. 74 FR 44914 Aug. 31, 2009.
But the October 2020 and December 2020 Final Rules failed to note the key distinction between these examples and the short-cycle product class rulemakings. Both the 2007 and 2009
rulemakings were the first instance of energy conservation standards being promulgated for distribution transformers and BVMs. As such, not setting standards for those equipment classes simply maintained the status quothat is, underground mining distribution transformers and combination BVMs were not subject to energy use or efficiency restrictions either before or after those rulemakings.
As a result, DOE was not required to satisfy any of the criteria in EPCA for amending a standard for these equipment classes.
In contrast, short-cycle residential dishwashers, residential clothes washers, and consumer clothes dryers were all subject to energy conservation standards prior to the October 2020 and December 2020 Final Rules. By stating that short-cycle products were no longer subject to energy or water conservation standards, the October 2020 and December 2020 Final Rules changed the status quo in a direction that would allow for unlimited energy and water use by these short-cycle products. Thus, DOE was required to satisfy the requirements in EPCA for issuing an amended standard.
In addition, DOE has made a policy judgment that EPCAs express purposes of energy and water conservation 42
U.S.C. 62014, 5, 8 would be thwarted if DOE could avoid restrictions on amending existing standards by nominally characterizing a regulatory change in the energy conservation standards applicable to a covered product as something other than an amendment. The October 2020 and December 2020 Final Rules contravened EPCA by failing to consider these criteria when they amended the existing standards for short-cycle products in the 2020 Final Rules.
This review is also consistent with the direction provided in Executive Order 13990 of January 20, 2021, Protecting Public Health and the Environment and
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Restoring Science to Tackle the Climate Crisis. 86 FR 7037 Jan. 25, 2021.
While E.O. 13990 triggered the Departments re-evaluation, DOE is relying on the analysis presented in this NOPR, based upon EPCA, to re-examine the October and December 2020 Final Rules.
IV. Conclusion After careful consideration, DOE
proposes to revoke the October 2020
and December 2020 Final Rules that improperly amended standards and to reinstate the prior product classes and applicable standards for these covered products. DOE acknowledges that these rules will remain in effect while the Department considers whether to revoke the earlier rulemakings through notice and comment.
V. Procedural Issues and Regulatory Review A. Review Under Executive Orders 12866
The Office of Information and Regulatory Affairs OIRA in the Office of Management and Budget OMB has waived review of this rule pursuant to Executive Order E.O.
12866, Regulatory Planning and Review.
B. Review Under the Regulatory Flexibility Act The Regulatory Flexibility Act 5
U.S.C. 601 et seq. requires preparation of an initial regulatory flexibility analysis IRFA for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
As required by E.O. 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461
Aug. 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 rulemaking process. 68 FR 7990. DOE
has made its procedures and policies available on the Office of the General Counsels website https energy.gov/
gc/office-general-counsel. DOE has prepared the following IRFA for the products that are the subject of this rulemaking.
DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE has initially concluded that this rule, if made final, would not have a significant impact on a substantial
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number of small entities. The factual basis for this determination is as follows:
The Small Business Administration SBA considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers or earns less than the average annual receipts specified in 13 CFR part 121. The threshold values set forth in these regulations use size standards and codes established by the North American Industry Classification System NAICS that are available at https
www.sba.gov/document/supporttablesize-standards. The threshold number for NAICS classification code 335220, Major Household Appliance Manufacturing, which includes residential dishwasher, residential clothes washer, and consumer clothes dryer manufacturers, is 1,500
employees.
Most of the companies that manufacture residential dishwashers are large multinational corporations. Most of the manufacturers supplying residential clothes washers and consumer clothes dryers into the United States are large multinational corporations. DOE collected data from DOEs compliance certification database 8 to identify potential manufacturers of residential dishwashers, residential clothes washers, and consumer clothes dryers.
DOE then consulted publicly available data, such as Dun and Bradstreet, to determine whether they meet the SBAs definition of a small business manufacturer and have their manufacturing facilities located within the United States.
Based on this analysis, DOE identified two manufacturers of residential dishwashers that are potential small businesses, but initially determined that this proposed rule would not impose any compliance or other requirements on any manufacturers of residential dishwashers, including small businesses. This rulemaking would eliminate the separate product class for residential dishwashers with a normal cycle of 60 minutes or less from washing through drying as described in the preamble. As discussed, DOE did not identify any residential dishwashers on the market let alone any manufactured by small businessesthat offer a normal cycle of less than 60 minutes from washing through drying.
DOE did not identify any small businesses that manufacture residential 8 https www.regulations.doe.gov/
certificationdata.

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