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Federal Register / Vol. 86, No. 127 / Wednesday, July 7, 2021 / Proposed Rules B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Review Consistent With OMBs Information Quality Bulletin for Peer Review V. Public Participation A. Participation in the Webinar B. Procedure for Submitting Prepared General Statements for Distribution C. Conduct of the Webinar D. Submission of Comments VI. Approval of the Office of the Secretary
khammond on DSKJM1Z7X2PROD with PROPOSALS

I. Summary of Proposal On February 14, 2020, the United States Department of Energy DOE or the Department published a final rule February 2020 Final Rule in the Federal Register that made significant revisions to its Procedures, Interpretations, and Policies for Consideration of New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Certain Commercial/Industrial Equipment Process Rule found in 10 CFR part 430, subpart C, appendix A.
85 FR 8626. DOE also published a companion final rule on August 19, 2020 August 2020 Final Rule, that clarified how DOE would conduct a comparative analysis across all trial standard levels when determining whether a particular trial standard level was economically justified. See 85 FR
50937. These rules collectively modified the Process Rule that DOE had originally issued on July 15, 1996
1996 Process Rule into its current form. See 61 FR 36974 and 10 CFR part 430, subpart C, appendix A 2021.
While the 1996 Process Rule acknowledged that it would not be applicable to every rulemaking and that the circumstances of a particular rulemaking should dictate application of these generally applicable practices,1
the revisions made in the February 2020
Final Rule sought to create a standardized rulemaking process that was binding on the Department. 85 FR
8626, 8634. In creating this one-size-fitsall approach, the February 2020 Final Rule and the August 2020 Final Rule also added additional steps to the 1 Id.

61 FR 36979.

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rulemaking process that are not required by any applicable statute.
Subsequent events have caused DOE
to reconsider the merits of a one-sizefits-all rulemaking approach to establishing and amending energy conservations standards and test procedures. Two of these events are particularly salient. First, on October 30, 2020, a coalition of non-governmental organizations filed suit under EPCA
alleging that DOE has failed to meet rulemaking deadlines for 25 different consumer products and commercial equipment.2 On November 9, 2020, a coalition of States filed a virtually identical lawsuit.3 In response to these lawsuits, DOE has had to reconsider whether the benefits of a one-size-fits-all rulemaking approach outweigh the increased difficulty such an approach poses in meeting DOEs statutory deadlines and obligations under EPCA.
As mentioned previously, the 1996
Process Rule allowed for case-specific deviations and modifications of the generally applicable rule. 61 FR 36974, 36979. This allowed DOE to tailor rulemaking procedures to fit the specific circumstances of a particular rulemaking. For example, under the 1996 Process Rule, minor modifications to a test procedure would not automatically result in a 180-day delay before DOE could issue a notice of proposed energy conservation standards. Eliminating these unnecessary delays would better enable DOE to meet its obligations and deadlines under EPCA. Further, the sooner new or amended energy conservation standards eliminate lessefficient covered products and equipment from the market, the greater the resulting energy savings and environmental benefits.
Second, on January 20, 2021, the White House issued Executive Order E.O. 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 lists a number of policies related to the protection of public health and the environment, including reducing greenhouse gas emissions and bolstering the Nations resilience to the impacts of climate change. 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 2 Natural Resources Defense Council v. DOE, Case No. 20cv9127 S.D.N.Y. 2020.
3 State of New York v. DOE, Case No. 20cv9362
S.D.N.Y. 2020.

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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. 86 FR 7037, 7041.
Agencies are 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. 86 FR 7037, 7041. For certain explicitly enumerated agency actions, including the February 2020 and the August 2020 Final Rules, the Order directs agencies to consider publishing for notice and comment a proposed rule suspending, revising, or rescinding the agency action within a specific time frame. 86 FR 7037, 7037
7038. Under this mandate, DOE is directed to propose any major revisions to these two rules by March 2021, with any remaining revisions to be proposed by June 2021. 86 FR 7037, 7038.
In light of these events, DOE has identified several aspects of the February 2020 and the August 2020
Final Rules together, representing the current Process Rule that present obstacles to DOEs ability to meet its obligations under EPCA. In accordance with E.O. 13990, DOE proposed major revisions to the current Process Rule in a notice of proposed rulemaking NOPR
that was published on April 12, 2021
April 2021 NOPR. 86 FR 18901. The comment period on the April 2021
NOPR ended on May 27, 2021.
In this document, DOE proposes additional revisions that would: Further revise the process for coverage determination rulemakings; provide additional flexibility for DOE during the pre-NOPR stages of energy conservation standard and test procedure rulemakings, while preserving opportunities for stakeholders to provide early input in the rulemaking process; provide clarification on EPCAs rulemaking process for ASHRAE
equipment; and revise the sections on DOEs analytical methods to reflect current rulemaking practices. These revisions are summarized in the following table. Note that for ease of use and clarity, the proposed regulatory text in this document contains both the proposed regulatory text in the April 2021 NOPR and the new text being proposed in this document. DOE is currently only soliciting comments on the new, additional regulatory text proposed in this NOPR.

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