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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations
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than 30 minutes, and for front-loading residential clothes washers that offer cycle times for a normal cycle of less than 45 minutes. 85 FR 81359. This document responds to comments unintentionally omitted from the final rule.
Correction DOE received a submission from the Pacific Gas and Electric Company PG&E, San Diego Gas and Electric SDG&E, and Southern California Edison SCE collectively referred to as the CA IOUs in response to the notice of proposed rulemaking to establish separate product classes for consumer clothes washers and consumer clothes dryers, 85 FR 49297
Aug. 13, 2020. Through an unintentional oversight, DOE did not make specific reference to the CA IOUs comments submitted in response to the notice of proposed rulemaking in the final rule. DOE considered the comments and determined that many of the substantive issues the CA IOUs comment brought to DOEs attention were also raised by the other commenters and addressed by DOE in the final rule.
Like other commenters, CA IOUs opposed the rulemaking and expressed various arguments regarding DOEs determination that cycle time was a performance related feature under the Energy Policy and Conservation Act EPCA, 42 U.S.C. 6295q, that justified the creation of the new product classes. Like other commenters, the CA
IOUs also argued that, if finalized, the product classes would result in illegal backsliding of the applicable energy conservation standards under 42 U.S.C.
6295o1. No. 0036, pp. 68
Commenters, including the CA IOUs, stated that the notice of proposed rulemaking NOPR, 85 FR 68724
Oct. 30, 2020, failed to provide evidence that the current energy and water conservation standards were precluding the shorter normal cycle products from being made available.
No. 0036, p. 1 Like other commenters, CA IOUs also noted that DOEs data implied that multiple clothes washers on the market already met the proposed requirements for the new product classes while also meeting the current energy and water conservation standards. No. 0036, at p. 3; see also NEEA, No. 0044, pp. 25 Commenters, including the CA IOUs, also challenged DOEs determination regarding the environmental impact of the new product classes and urged DOE to conduct and publicly release the analysis to confirm that the proposed product classes should be granted an A5

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Categorical Exclusion under the National Environmental Policy Act NEPA of 1969. No. 0036, p. 11 Like other commenters, CA IOUs also opposed establishing the new product classes without accompanying test procedures and standards, explaining that the new product classes introduce potential market uncertainties and distortions. They continue that because cycle time is not a factor recorded in the current test procedure for either product and the NOPR lacked reference to reporting requirements, DOE should delay finalizing the rule until greater clarity is provided. No. 0036, p. 5
DOE responded to these concerns in the December 2020 final rule, concluding that cycle time was a performance related feature and that the establishment of the new product classes would not result in a violation of EPCAs anti-backsliding provision, see 85 FR 81359, 8136281368, 81368
81370. DOE maintains that the concerns raised by commenters regarding the overall applicability of EPCAs antibacksliding provision to clothes washers is too broad and ignores the limitations that EPCA itself places on the scope of the anti-backsliding provision, 42 U.S.C.
6295o1. 85 FR 8136981370.
DOE responded to those comments discussing the necessity of the new product classes in the final rule. 85 FR
81359, 8136581366. DOE concluded that even if products with comparable cycle times were already on the market, products under the new product classes would be distinguishable because they are specifically characterized as offering short normal cycles and would be subject to manufacturer testing.
Additionally, DOE stated in the December 2020 final rule that the rulemaking, once finalized, would only establish new product classes, and would not cause adverse environmental impacts, therefore, leaving the rulemaking within the scope of the A5
Categorical Exclusion. 85 FR 81359, 81370.
DOE explained in the final rule that the product class provision under EPCA, 42 U.S.C. 6295q1B, does not require the Department to simultaneously establish energy conservation standards in the same rulemaking as the determination of a new product class. The establishment of a new product class is functionally equivalent to the finalization of a coverage determination where a covered product would then exist without an applicable standard until the Department completes a test procedure rulemaking for that product. 42 U.S.C.
6292b; 85 FR 81359, 81367.

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Here, DOE is not acting inconsistently with past practices by establishing the new product classes without accompanying test procedures or standards. Commenters can look to the Departments 2009 beverage vending machines energy conservations standard rulemaking and the 2007 distribution transformer energy conservation standards rulemaking as examples of prior instances where DOE established a new product class without simultaneously prescribing an associated conservation standard. 81 FR
44914, 44920 Aug. 31, 2009; 72 FR
58190, 58197 Oct. 12, 2007. See 85 FR
81359, 8136781368. DOE intends, as these commenters requested, to conduct the necessary rulemakings to consider and evaluate the energy and water consumption limits for the new product classes and determine the applicable standards that provide the maximum energy efficiency that is technologically feasible and economically justified, and will result in a significant conservation of energy, 42 U.S.C. 6295o2A. DOE
will conduct these rulemakings following EPCAs requirements and the procedures set out in the Process Rule,1
which will provide the clarity these commenters requested regarding the implementation of this rulemaking. 85
FR 81359, 81368, 81372.
In addition to these shared concerns, the CA IOUs also raised unique comments that DOE addresses in the following paragraphs.
The CA IOUs, in challenging the validity of the short cycle thresholds, noted that DOE tested the 14 consumer clothes dryers for which data was presented according to the Appendix D2
test procedure, which is the optional test procedure for those products. The CA IOUs argued that Appendix D1, which is available for product certification, allows for shorter cycle times while maintaining compliance with the energy efficiency standard according to data produced through DOE-sponsored research at the Oak Ridge National Laboratory. To support their assertion of the unreasonableness of cycle thresholds proposed, CA IOUs continued that this research demonstrated that five products tested under Appendix D1 already offered a cycle time of less than 30 minutes high temperature setting while meeting the 1 Procedures for Use in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/Industrial Equipment Process Rule, 85 FR 8626 Feb. 14, 2020; Appendix A to Subpart C of Part 430
Procedures, Interpretations and Policies for Consideration of New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Certain Commercial/
Industrial Equipment.

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