[Federal Register Volume 76, Number 164 (Wednesday, August 24, 2011)]
[Rules and Regulations]
[Pages 52854-52862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21640]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket Number EERE-2007-BT-STD-0010]
RIN 1904-AA89


Energy Conservation Program: Energy Conservation Standards for 
Residential Clothes Dryers and Room Air Conditioners

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Notice of effective date and compliance dates for direct final 
rule.

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SUMMARY: DOE published a direct final rule to establish amended energy 
conservation standards for residential clothes dryers and room air 
conditioners in the Federal Register on April 21, 2011. DOE has 
determined that the adverse comments received in response to the direct 
final rule do not provide a reasonable basis for withdrawing the direct 
final rule. Therefore, DOE provides this document confirming adoption 
of the energy conservation standards established in the direct final 
rule and announcing the effective date of those standards. DOE also 
published a proposed rule to amend the compliance dates set forth in 
the direct final rule on May 9, 2011. Elsewhere in today's Federal 
Register, DOE publishes a final rule which adopts the compliance dates 
set forth in its proposed rule published on May 9, 2011.

DATES: The direct final rule published on April 21, 2011 (76 FR 22454) 
was effective on August 19, 2011. Pursuant to the document published 
elsewhere in today's Federal Register, compliance with the standards in 
the direct final rule will be required on June 1, 2014 for room air 
conditioners and on January 1, 2015 for clothes dryers.

ADDRESSES: The docket is available for review at regulations.gov, 
including Federal Register notices, framework documents, public meeting 
attendee lists and transcripts, comments, and other supporting 
documents/materials. All documents in the docket are listed in the 
regulations.gov index. Not all documents listed in the index may be 
publicly available, such as information that is exempt from public 
disclosure. A link to the docket Web page can be found at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen L. Witkowski, U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121; telephone: (202) 586-7463; e-mail: 
[email protected].
    Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the 
General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC 
20585-0121; telephone: (202) 586-7796; e-mail: 
[email protected].
    For further information on how to submit or review public comments 
or view hard copies of the docket, contact Ms. Brenda Edwards at (202) 
586-2945 or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Authority and Rulemaking Background

    As amended by Energy Independence and Security Act of 2007 (EISA 
2007; Pub. L. 110-140), the Energy Policy and Conservation Act 
authorizes DOE to issue a direct final rule establishing an energy 
conservation standard on receipt of a statement submitted jointly by 
interested persons that are fairly representative of relevant points of 
view (including representatives of manufacturers of covered products, 
States, and efficiency advocates) as determined by the Secretary of 
Energy (Secretary), that contains recommendations with respect to an 
energy conservation standard that are in accordance with the provisions 
of 42 U.S.C. 6295(o). A notice of proposed rulemaking (NOPR) that 
proposes an identical energy conservation standard must be published 
simultaneously with the final rule, and DOE must provide a public 
comment period of at least 110 days on the direct final rule. 42 U.S.C. 
6295(p)(4). Not later than 120 days after issuance of the direct final 
rule, if one or more adverse comments or an alternative joint 
recommendation are received relating to the direct final rule, the 
Secretary must determine whether the comments or alternative 
recommendation may provide a reasonable basis for withdrawal under 42 
U.S.C. 6295(o) or other applicable

[[Page 52855]]

law. If the Secretary makes such a determination, DOE must withdraw the 
direct final rule and proceed with the simultaneously published NOPR. 
DOE must publish in the Federal Register the reasons why the direct 
final rule was withdrawn. Id.
    During the rulemaking proceeding to consider amending energy 
conservation standards for residential clothes dryers and room air 
conditioners, DOE received the ``Agreement on Minimum Federal 
Efficiency Standards, Smart Appliances, Federal Incentives and Related 
Matters for Specified Appliances'' (the ``Joint Petition'' or 
``Consensus Agreement''), a comment submitted by groups representing 
manufacturers (the Association of Home Appliance Manufacturers (AHAM), 
Whirlpool Corporation (Whirlpool), General Electric Company (GE), 
Electrolux, LG Electronics, Inc. (LG), BSH Home Appliances (BSH), 
Alliance Laundry Systems (ALS), Viking Range, Sub-Zero Wolf, Friedrich 
A/C, U-Line, Samsung, Sharp Electronics, Miele, Heat Controller, AGA 
Marvel, Brown Stove, Haier, Fagor America, Airwell Group, Arcelik, 
Fisher & Paykel, Scotsman Ice, Indesit, Kuppersbusch, Kelon, and 
DeLonghi); energy and environmental advocates (American Council for an 
Energy Efficient Economy (ACEEE), Appliance Standards Awareness Project 
(ASAP), Natural Resources Defense Council (NRDC), Alliance to Save 
Energy (ASE), Alliance for Water Efficiency (AWE), Northwest Power and 
Conservation Council (NPCC), and Northeast Energy Efficiency 
Partnerships (NEEP)); and consumer groups (Consumer Federation of 
America (CFA) and the National Consumer Law Center (NCLC)) 
(collectively, the ``Joint Petitioners''). This collective set of 
comments \1\ recommends specific energy conservation standards for 
residential clothes dryers and room air conditioners that, in the 
commenters' view, would satisfy the EPCA requirements at 42 U.S.C. 
6295(o).
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    \1\ DOE Docket No. EERE-2007-BT-STD-0010, Comment 35.
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    After careful consideration of the Consensus Agreement, the 
Secretary determined that it was submitted by interested persons who 
are fairly representative of relevant points of view on this matter. 
DOE noted in the direct final rule that Congress provided some guidance 
within the statute itself by specifying that representatives of 
manufacturers of covered products, States, and efficiency advocates are 
relevant parties to any consensus recommendation. (42 U.S.C. 
6295(p)(4)(A)) As delineated above, the Consensus Agreement was signed 
and submitted by a broad cross-section of the manufacturers who produce 
the subject products, their trade associations, and environmental, 
energy efficiency and consumer advocacy organizations. Although States 
were not signatories to the Consensus Agreement, they did not express 
any opposition to it from the time of its submission to DOE through the 
close of the comment period on the direct final rule. Moreover, DOE 
stated in the direct final rule that it does not interpret the statute 
as requiring absolute agreement among all interested parties before DOE 
may proceed with issuance of a direct final rule. By explicit language 
of the statute, the Secretary has discretion to determine when a joint 
recommendation for an energy or water conservation standard has met the 
requirement for representativeness (i.e., ``as determined by the 
Secretary''). Accordingly, DOE determined that the Consensus Agreement 
was made and submitted by interested persons fairly representative of 
relevant points of view.
    Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine 
whether a jointly submitted recommendation for an energy or water 
conservation standard is in accordance with 42 U.S.C. 6295(o) or 42 
U.S.C. 6313(a)(6)(B), as applicable. As stated in the direct final 
rule, this determination is exactly the type of analysis DOE conducts 
whenever it considers potential energy conservation standards pursuant 
to EPCA. DOE applies the same principles to any consensus 
recommendations it may receive to satisfy its statutory obligation to 
ensure that any energy conservation standard that it adopts achieves 
the maximum improvement in energy efficiency that is technologically 
feasible and economically justified and will result in significant 
conservation of energy. Upon review, the Secretary determined that the 
Consensus Agreement submitted in the instant rulemaking comports with 
the standard-setting criteria set forth under 42 U.S.C. 6295(o). 
Accordingly, the Consensus Agreement levels, included as trial standard 
level (TSL) 4 for both clothes dryers and room air conditioners, were 
adopted as the amended standard levels in the direct final rule.
    In sum, as the relevant statutory criteria were satisfied, the 
Secretary adopted the amended energy conservation standards for clothes 
dryers and room air conditioners set forth in the direct final rule. 
These standards are set forth in Table 1. The standards apply to all 
products listed in Table 1 that are manufactured in, or imported into, 
the United States on or after June 1, 2014 for room air conditioners 
and on or after January 1, 2015 for clothes dryers. These compliance 
dates were set forth in the proposed rule issued on May 9, 2011 (76 FR 
19913) and are adopted in a final rule published elsewhere in today's 
Federal Register (see section V of this notice for further details.) 
For a detailed discussion of DOE's analysis of the benefits and burdens 
of the amended standards pursuant to the criteria set forth in EPCA, 
please see the direct final rule. (76 FR 22454 (April 21, 2011))
    As required by EPCA, DOE also simultaneously published a NOPR 
proposing the identical standard levels contained in the direct final 
rule. As discussed in section II.A.4 of this notice, DOE considered 
whether any comment received during the 110-day comment period 
following the direct final rule was sufficiently ``adverse'' as to 
provide a reasonable basis for withdrawal of the direct final rule and 
continuation of this rulemaking under the NOPR. As noted in the direct 
final rule, it is the substance, rather than the quantity, of comments 
that will ultimately determine whether a direct final rule will be 
withdrawn. To this end, DOE weighs the substance of any adverse 
comment(s) received against the anticipated benefits of the Consensus 
Agreement and the likelihood that further consideration of the 
comment(s) would change the results of the rulemaking. DOE notes that 
to the extent an adverse comment had been previously raised and 
addressed in the rulemaking proceeding, such a submission will not 
typically provide a basis for withdrawal of a direct final rule.

[[Page 52856]]



 Table 1--Amended Energy Conservation Standards for Residential Clothes
                    Dryers and Room Air Conditioners
------------------------------------------------------------------------
                                                                Minimum
                                                                  CEF
                        Product class                           levels *
                                                                 lb/kWh
------------------------------------------------------------------------
                       Residential Clothes Dryers
------------------------------------------------------------------------
1. Vented Electric, Standard (4.4 ft\3\ or greater capacity).       3.73
2. Vented Electric, Compact (120 V) (less than 4.4 ft\3\            3.61
 capacity)...................................................
3. Vented Electric, Compact (240 V) (less than 4.4 ft\3\            3.27
 capacity)...................................................
4. Vented Gas................................................       3.30
5. Ventless Electric, Compact (240 V) (less than 4.4 ft\3\          2.55
 capacity)...................................................
6. Ventless Electric Combination Washer/Dryer................       2.08
------------------------------------------------------------------------


 
                                                     Minimum CEER levels
                   Product class                          ** Btu/Wh
------------------------------------------------------------------------
                          Room Air Conditioners
------------------------------------------------------------------------
1. Without reverse cycle, with louvered sides, and                  11.0
 less than 6,000 Btu/h.............................
2. Without reverse cycle, with louvered sides, and                  11.0
 6,000 to 7,999 Btu/h..............................
3. Without reverse cycle, with louvered sides, and                  10.9
 8,000 to 13,999 Btu/h.............................
4. Without reverse cycle, with louvered sides, and                  10.7
 14,000 to 19,999 Btu/h............................
5a. Without reverse cycle, with louvered sides, and                  9.4
 20,000 to 24,999 Btu/h............................
5b. Without reverse cycle, with louvered sides, and                  9.0
 25,000 Btu/h or more..............................
6. Without reverse cycle, without louvered sides,                   10.0
 and less than 6,000 Btu/h.........................
7. Without reverse cycle, without louvered sides,                   10.0
 and 6,000 to 7,999 Btu/h..........................
8a. Without reverse cycle, without louvered sides,                   9.6
 and 8,000 to 10,999 Btu/h.........................
8b. Without reverse cycle, without louvered sides,                   9.5
 and 11,000 to 13,999 Btu/h........................
9. Without reverse cycle, without louvered sides,                    9.3
 and 14,000 to 19,999 Btu/h........................
10. Without reverse cycle, without louvered sides,                   9.4
 and 20,000 Btu/h or more..........................
11. With reverse cycle, with louvered sides, and                     9.8
 less than 20,000 Btu/h............................
12. With reverse cycle, without louvered sides, and                  9.3
 less than 14,000 Btu/h............................
13. With reverse cycle, with louvered sides, and                     9.3
 20,000 Btu/h or more..............................
14. With reverse cycle, without louvered sides, and                  8.7
 14,000 Btu/h or more..............................
15. Casement-only..................................                  9.5
16. Casement-slider................................                 10.4
------------------------------------------------------------------------
\*\ CEF (Combined Energy Factor) is calculated as the clothes dryer test
  load weight in pounds divided by the sum of ``active mode'' per-cycle
  energy use and ``inactive mode'' per-cycle energy use in kWh.
\**\ CEER (Combined Energy Efficiency Ratio) is calculated as capacity
  times active mode hours (equal to 750) divided by the sum of active
  mode annual energy use and inactive mode.

II. Comments Requesting Withdrawal of the Direct Final Rule

A. General Comments

1. Joint Petition
    Commenters stated that DOE did not consider the views of all 
relevant parties, including appliance installers and energy suppliers. 
Commenters also stated that DOE did not explain its process for 
determining whether the Joint Petition was submitted by relevant 
parties, including a determination of which parties are ``not'' 
relevant. (American Gas Association (AGA), No. 62 at pp. 4-5; \2\ AGL 
Resources (AGL), No. 63 at p. 8; American Public Gas Association 
(APGA), No. 61 at p. 2)
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    \2\ A notation in the form ``AGA, No. 62 at pp. 4-5'' identifies 
a written comment (1) Made by the American Gas Association (AGA), 
(2) recorded in document number 62 that is filed in the docket of 
this rulemaking, and (3) which appears on pages 4-5 of document 
number 62.
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    As explained above, EPCA authorizes DOE to issue a direct final 
rule establishing an energy conservation standard on receipt of a 
statement that, in relevant part, is submitted jointly by interested 
persons that are fairly representative of relevant points of view 
(including representatives of manufacturers of covered products, 
States, and efficiency advocates) as determined by the Secretary. While 
providing some guidance by specifying that representatives of 
manufacturers of covered products, States, and efficiency advocates are 
relevant parties to any consensus recommendation, EPCA affords DOE 
significant discretion in determining whether this requirement has been 
met. (42 U.S.C. 6295(p)(4)(A)) DOE notes that EPCA does not require 
that ``all'' relevant parties be parties to any consensus agreement. 
EPCA also does not require DOE to specify parties that it determines 
are not relevant to any consensus agreement.
    In the direct final rule, DOE explained how the Consensus Agreement 
met the requirement that it be submitted jointly by interested persons 
that are fairly representative of relevant points of view. DOE noted 
that the Consensus Agreement was signed and submitted by a broad cross-
section of the manufacturers who produce the subject products, their 
trade associations, and environmental, energy efficiency and consumer 
advocacy organizations. DOE further noted that although States were not 
signatories to the Consensus Agreement, they did not express any 
opposition to it. States also did not file any adverse comments during 
the comment period for the direct final rule.
    Moreover, DOE stated in the direct final rule that it does not 
interpret the statute as requiring absolute agreement among all 
interested parties before DOE may proceed with issuance of a direct 
final rule. By explicit language of the statute, the Secretary has 
discretion to determine when a joint recommendation for an energy or 
water conservation standard has met the requirement for 
representativeness (i.e.,

[[Page 52857]]

``as determined by the Secretary''). DOE acknowledges that appliance 
installers and energy suppliers may also be relevant parties within the 
meaning of 42 U.S.C. 6295(p)(4), but does not believe that the 
existence of other potentially relevant parties indicates that the 
Consensus Agreement was not submitted jointly by interested persons 
that are fairly representative of relevant points of view (including 
representatives of manufacturers of covered products, States, and 
efficiency advocates). In addition, DOE notes that it derived the 
installation costs for the clothes dryers from the 2010 RS Means 
Residential Cost Data, which is commonly used as an installation cost 
reference source by the installers for estimating the labor hours and 
regional labor cost. DOE also notes that the clothes dryer design that 
meets the new energy conservation standard does not require additional 
installation cost compared to the models that meet the existing energy 
conservation standard. Energy suppliers--Edison Electric Institute and 
California Utilities (gas and electric)--provided technology 
information that could improve the products' efficiency, and also 
recommended improvements to the existing test procedures in response to 
the framework document for this rulemaking, made available for comment 
on October 9, 2007, and the preliminary analysis document, made 
available for public comment on February 23, 2010.\3\
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    \3\ A notice of availability (NOA) of the framework document was 
published in the Federal Register on October 9, 2007. (72 FR 57254). 
A NOA of the preliminary analysis was published in the Federal 
Register on Feb. 23, 2010. (75 FR 7987).
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    For the reasons stated above, DOE affirms its conclusion in the 
direct final rule that the Joint Petition satisfies the requirement of 
42 U.S.C. 6295(p)(4) that it be a statement submitted jointly by 
interested persons that are fairly representative of relevant points of 
view (including representatives of manufacturers of covered products, 
States, and efficiency advocates) as determined by the Secretary.
2. Using Experience Curve To Forecast Product Prices
    AGA objected to DOE's use of a learning curve to forecast product 
prices. (AGA, No. 62 at p. 3) APGA stated that learning curve price 
reductions should not be included in this direct final rule because 
DOE's most recent policy on this topic, set forth in DOE's notice of 
data availability (NODA) on Equipment Price Forecasting in Energy 
Conservation Standards Analysis (76 FR 9696, Feb. 22, 2011), has not 
been finalized. (APGA, No. 61 at p. 2)
    APGA also presented as relevant to this rulemaking several issues 
that it had raised in its comments in response to the NODA. Summarizing 
these issues, AGA stated that DOE has not justified use of ``learning 
curve'' price effects with respect to the covered products, and that 
the price adjustment approach, based on a wide variety of products and 
not specific to the design options under consideration, is inconsistent 
with the approach of using engineering costs. (AGA, No. 62 at p. 3) 
Laclede Gas Company (Laclede Gas) stated that the ``learning curve'' is 
one of many assumptions made by DOE leading to a biased outcome. 
(Laclede Gas, No. 59 at p. 4)
    In the NODA, DOE stated that when data are available to project 
potential cost reductions over time for a particular appliance or type 
of equipment, DOE plans to use these data as part of its analyses. 76 
FR 9699 (Feb. 22, 2011). Therefore, use of the experience curve 
approach in the direct final rule, as described below, is appropriate.
    For the direct final rule, DOE examined historical producer price 
indices for room air conditioners and household laundry equipment and 
found a long-term declining real price trend for both products. 
Consistent with the method proposed in the NODA, DOE used experience 
curve fits with the historical data on prices and cumulative production 
to forecast product costs. The experience curve approach captures a 
variety of factors that together shaped the observed historical trends, 
and is consistent with the costing approach in the engineering 
analysis, which estimated the incremental costs of considered design 
options in 2010. DOE did not attempt to forecast how those costs may 
change in the future because the available data did not permit DOE to 
estimate how only the incremental costs of design options may change.
3. Measure of Energy Consumption
    Laclede Gas expressed concern that DOE has not implemented the 
National Academy of Sciences (NAS) conclusions that DOE's measurement 
of energy use should be based on full-fuel cycles, which takes into 
account the amount of energy consumed and lost from the fuel's 
production through the final point of use. (Laclede Gas, No. 59 at p. 
4)
    As discussed in the direct final rule, Section 1802 of the Energy 
Policy Act of 2005 directed DOE to contract a study with the National 
Academy of Science (NAS) to examine whether the goals of energy 
efficiency standards are best served by measurement of energy consumed, 
and efficiency improvements, at the actual point-of-use or through the 
use of the full-fuel-cycle, beginning at the source of energy 
production. (Pub. L. 109-58 (August 8, 2005)). NAS appointed a 
committee on ``Point-of-Use and Full-Fuel-Cycle Measurement Approaches 
to Energy Efficiency Standards'' to conduct the study, which was 
completed in May 2009. The NAS committee noted that DOE uses what the 
committee referred to as ``extended site'' energy consumption to assess 
the impact of energy use on the economy, energy security, and 
environmental quality. The extended site measure of energy consumption 
includes the energy consumed during the generation, transmission, and 
distribution of electricity but, unlike the full-fuel-cycle measure, 
does not include the energy consumed in extracting, processing, and 
transporting primary fuels. A majority of the NAS committee concluded 
that extended site energy consumption understates the total energy 
consumed to make an appliance operational at the site. As a result, the 
NAS committee recommended that DOE consider shifting its analytical 
approach over time to use a full-fuel-cycle measure of energy 
consumption when assessing national and environmental impacts, 
especially with respect to the calculation of greenhouse gas emissions.
    In response to the NAS committee recommendations, DOE issued a 
Notice of Proposed Policy proposing to incorporate a full-fuel cycle 
analysis into the methods it uses to estimate the likely impacts of 
energy conservation standards on energy use and emissions. 75 FR 51423 
(August 20, 2010). Specifically, DOE proposed to use full-fuel-cycle 
(FFC) measures of energy and greenhouse gas (GHG) emissions, rather 
than the primary (extended site) energy measures it currently uses. DOE 
recently published a final policy statement on these subjects (76 FR 
51281, August 18, 2011) and will take steps to begin implementing that 
policy in future rulemakings and other activities.
4. Adverse Impacts
    Commenters stated that DOE did not consider the adverse comments 
consistent with 42 U.S.C. 6295(p)(4). Specifically, commenters asserted 
that DOE was required to weigh adverse comments independent of other 
aspects of the direct final rule, except where the comments conflict 
with DOE's analysis in the rule, to avoid what the commenters view as 
ad hoc and administratively inappropriate trade-offs. Commenters also 
asserted that

[[Page 52858]]

weighing the adverse comments against the benefits of the direct final 
rule was not authorized by EPCA. (AGA, No. 62 at p. 4; APGA, No. 61 at 
p. 2)
    EPCA, in relevant part, authorizes DOE to adopt in a direct final 
rule jointly recommended energy conservation standards that are in 
accordance with the provisions of 42 U.S.C. 6295(o). Not later than 120 
days after issuance of the direct final rule, if one or more adverse 
comments or an alternative joint recommendation are received relating 
to the direct final rule, the Secretary is required to determine 
whether the comments or alternative recommendation may provide a 
reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other 
applicable law.
    In the discussion that follows, DOE first explains its rationale 
for establishing the standards set forth in the direct final rule. DOE 
then explains the process for determining whether adverse comments 
received may provide a reasonable basis for withdrawal of the direct 
final rule and addresses commenters' concerns about that process.
    As stated in the direct final rule, DOE's determination as to 
whether the standards levels in a consensus agreement meet the 
requirements for adoption set forth in 42 U.S.C. 6295(o) is exactly the 
type of analysis DOE conducts whenever it considers potential energy 
conservation standards pursuant to EPCA. DOE applies the same 
principles to any consensus recommendations it may receive to satisfy 
its statutory obligation to ensure that any energy conservation 
standard that DOE adopts achieves the maximum improvement in energy 
efficiency that is technologically feasible and economically justified 
and will result in significant conservation of energy. This analysis 
includes a determination of whether the benefits of the standard 
outweigh its burdens, considering, to the maximum extent practicable, 
the seven criteria set forth in EPCA. These factors include the 
economic impact on manufacturers and consumers, operating cost savings 
compared to any increase costs, energy savings, any lessening of 
utility, the impact of any lessening of competition, the need for 
national energy and water savings, and any other factors that the 
Secretary considers appropriate. For the reasons stated in the direct 
final rule, DOE stated that it considered submission of the Consensus 
Agreement as another such factor. Upon review, and for the reasons set 
forth in the direct final rule, the Secretary determined that the 
Consensus Agreement submitted for residential clothes dryers and room 
air conditioners comports with the standard-setting criteria set forth 
under 42 U.S.C. 6295(o). Accordingly, the consensus agreement levels, 
included as TSL 4 for both clothes dryers and room air conditioners, 
were adopted as the amended standard levels in the direct final rule.
    In considering whether any comment received on the direct final 
rule is sufficiently ``adverse'' such that it may provide a reasonable 
basis for withdrawal of the direct final rule and continuation of this 
rulemaking under the NOPR, DOE stated in the direct final rule that it 
is the substance, rather than the quantity, of comments that ultimately 
determines whether a direct final rule will be withdrawn. DOE also 
stated that it weighs the substance of any adverse comment(s) received 
against the anticipated benefits of the Consensus Agreement and the 
likelihood that further consideration of the comment(s) would change 
the results of the rulemaking. DOE noted that to the extent an adverse 
comment had been previously raised and addressed in the rulemaking 
proceeding, such a submission will not typically provide a basis for 
withdrawal of a direct final rule. DOE does not agree that adverse 
comments must be weighed independently of the benefits of the standards 
in the direct final rule. DOE notes that EPCA affords the Secretary 
significant discretion in determining whether adverse comments may 
provide a reasonable basis for withdrawal of the direct final rule. 
EPCA requires DOE to make its decision whether to withdraw the direct 
final rule ``based on the rulemaking record relating to the direct 
final rule.'' In addition, DOE believes that weighing the substance of 
any adverse comments against the benefits of the standards adopted in 
the direct final rule is authorized by, and completely consistent with, 
EPCA because EPCA requires DOE to make these same types of 
determinations, weighing factors as varied as impacts to consumers and 
manufacturers and the need of the nation for energy savings, when 
deciding whether a standard is economically justified. DOE also 
believes that analysis of the substance of the adverse comments to 
determine whether further consideration would lead to a change in the 
results of the rulemaking, as well as the consideration of comments 
already addressed as insufficient to justify withdrawal, is an 
appropriate exercise of the Secretary's discretion and use of limited 
resources. DOE's analysis of the adverse comments received is provided 
throughout this section.
5. Comment Period
    Commenters also suggested that DOE extend the comment period on the 
NOPR published simultaneous with the direct final rule. In the 
commenters' view, DOE needs to deliberate on the comments advocating 
withdrawal before closing the comment period on the NOPR so that 
stakeholders are aware of the rulemaking path DOE is pursuing. 
Commenters also noted that there is no requirement for the comment 
periods to have the same end date, and that withdrawal of the direct 
final rule may generate unique information for stakeholders to inform 
their comments on the NOPR. (AGA, No. 62 at p. 5; APGA, No. 61 at p. 3)
    DOE is required by 42 U.S.C. 6295(p)(4) to publish a NOPR proposing 
standards identical to those set forth in the direct final rule 
simultaneously with the direct final rule. DOE published the direct 
final rule and corresponding NOPR on April 21, 2011. (76 FR 22324 
(NOPR); 76 FR 22454 (direct final rule)) DOE is not required to provide 
for identical comments periods on the NOPR and direct final rule. DOE 
typically provides for a 60-day comment period on an energy 
conservation standards NOPR. For the NOPR proposing energy conservation 
standards for residential clothes dryers and room air conditioners, 
however, DOE provided for a longer comment period to match the 110-day 
comment period provided for the direct final rule. DOE believed that an 
earlier closing date could be confusing to commenters and was not 
warranted given that the direct final rule provided for a 110-day 
comment period. DOE does not believe that further extension of the 
comment period on the NOPR is necessary. The time provided for DOE to 
deliberate on whether to withdraw the direct final rule is specified in 
EPCA, which states that not later than 120 days after publication of 
the direct final rule in the Federal Register (i.e., 10 days after the 
close of the comment period), DOE must withdraw the direct final rule 
if it receives one or more adverse comments that may provide a 
reasonable basis for withdrawal. In addition, the standards proposed in 
the NOPR are identical to those set forth in the direct final rule, and 
in the event DOE determines that withdrawal is warranted, EPCA requires 
DOE to proceed with the simultaneously published NOPR. DOE's path in 
the event of withdrawal is therefore known when the direct final rule 
and NOPR are published--DOE considers the comments received and 
determines

[[Page 52859]]

whether to issue amended standards in a final rule. Because the 
standards proposed in the NOPR, and the analyses by which those 
standards were developed, are identical to those in the direct final 
rule, DOE would not expect that withdrawal would generate unique 
information to inform stakeholders' comments on the NOPR.

B. Comments on Standards for Clothes Dryers

1. Consumer Benefits and Economic Justification
    AGA, APGA, and AGL stated that the results of DOE's consumer impact 
analysis do not provide sufficient economic justification for TSL 4 for 
gas clothes dryers. They stated that the average life-cycle cost (LCC) 
benefit of $2 is highly questionable as a positive economic 
justification, and that at TSL 4 more consumers would experience a net 
cost than would experience an LCC benefit. They also stated that the 
mean payback period for TSL 4 is much longer than the median payback 
period reported in the direct final rule. (AGA, No. 62 at p. 2; AGL, 
No. 63 at p. 2; APGA, No. 61 at pp. 1-2)
    DOE reports median payback period because it is a better indicator 
of consumer impacts than mean payback period, which can be skewed by a 
small number of consumers with a larger payback period. For gas clothes 
dryers at TSL 4, the average LCC savings are estimated at $2. Sixty-
eight percent of consumers will experience either a net benefit or no 
cost (i.e., LCC decrease or no change in LCC) in 2014, while 
approximately one-third of consumers would experience a net cost (i.e., 
LCC increase) in 2014. DOE considered these LCC impacts in the direct 
final rule in its analysis of the seven factors that EPCA directs DOE 
to evaluate in determining whether a potential energy conservation 
standard is economically justified (42 U.S.C. 6295(o)(2)(B)(i)). In the 
direct final rule, DOE concluded that at TSL 4 for residential clothes 
dryers, the benefits of energy savings, generating capacity reductions, 
emission reductions and the estimated monetary value of the 
CO2 emissions reductions, and positive NPV of consumer 
benefits outweigh the economic burden on some consumers due to the 
increases in product cost and the profit margin impacts that could 
result in a reduction in industry net present value for the 
manufacturers. Thus, the Secretary concluded that TSL 4 offers the 
maximum improvement in efficiency that is technologically feasible and 
economically justified, and will result in the significant conservation 
of energy.
    AGA noted inconsistencies between DOE's LCC analysis and its 
recalculated values using the same analytical tools that would change 
the LCC savings into a cost. AGA stated that without any changes to the 
user inputs or other variables, it ran the simulation with the Crystal 
Ball software and calculated a $7 average LCC cost for gas dryers at 
TSL 4, making the adopted standard for gas dryers not economically 
justifiable. (AGA, No. 62 at pp. 1-2) In reviewing the LCC spreadsheet 
for gas clothes dryers, DOE consistently reproduced the results for the 
gas dryers at TSL 4 as reported in the technical support document (TSD) 
(i.e., an average savings of $2) using MS Excel 2007 and Crystal Ball 
software version 7.3.2. (2009). The different outcome from AGA's 
simulation runs could be due to different software versions, different 
initial settings for Crystal Ball, or other factors, though the 
information provided by AGA was insufficient for DOE to determine the 
cause of the differences.
2. Fuel Choice and Fuel Switching
    Laclede Gas stated that because the direct final rule presents 
energy efficiency ratings for clothes dryers based on site energy, it 
misleads consumers into thinking that electric resistance heat is more 
efficient than the direct use of natural gas for clothes drying. 
(Laclede Gas, No. 59 at pp. 2-3) The units in which DOE expresses 
energy conservation standards for appliances are based on the 
definitions of ``energy efficiency'' and ``energy use'' provided by 
EPCA. The term ``energy efficiency'' means the ratio of the useful 
output of services from a consumer product to the energy use of such 
product, determined in accordance with applicable test procedures, and 
the term ``energy use'' means the quantity of energy directly consumed 
by a consumer product at point of use, determined in accordance with 
test procedures. (42 U.S.C. 6291(4-5)) DOE acknowledges that the energy 
conservation standards in the direct final rule are higher for standard 
vented electric dryers than for vented gas dryers (3.73 CEF vs. 3.30 
CEF, respectively), but DOE does not find it credible that this fact 
would lead consumers to thereby prefer electric dryers. While clothes 
dryers do not have EnergyGuide labels, any such label would feature the 
estimated annual operating cost, not the energy efficiency rating. The 
estimated average annual operating cost of a gas dryer meeting the 
amended standard is less than the similar cost for an electric dryer 
meeting the amended standard, so it is implausible to expect that the 
standards would lead consumers to prefer electric dryers over gas 
dryers.
    In a related comment, Laclede Gas stated that DOE ignored the 
potential for fuel switching from gas to electric clothes drying. 
(Laclede Gas, No. 59 at p. 4) DOE did not consider switching between 
gas and electric clothes dryers as a result of the standards because 
the average incremental cost of the standards for standard-size gas and 
electric clothes dryers is approximately the same ($13). Thus, DOE 
believes that the standards would be unlikely to induce fuel switching, 
particularly given the additional costs associated with such switching 
(e.g., the need to install a new dedicated electrical outlet).
3. Energy Price Forecast
    AGA stated that DOE's use of the Annual Energy Outlook (AEO) 2010 
Reference Case for energy prices under-accounts for the expansion of 
the U.S. natural gas resource base resulting from technological 
innovations for production of gas from tight shales. AGA recommended 
that DOE conduct its analysis using the AEO Low Growth price scenario. 
(AGA, No. 62 at p. 4) DOE traditionally uses the Reference Case 
forecast from the most recent AEO available at the time of the analysis 
for its default energy price forecast, and conducts sensitivity 
analysis using the Low Growth and High Growth Cases. For this 
rulemaking, the 2010 AEO was the most recent available forecast.
4. Employment Impacts
    AGA, APGA, and Laclede Gas stated that DOE's estimated range of 
impacts under TSL 4 for direct domestic employment in the manufacture 
of gas dryers indicates that job loss is the more likely outcome of the 
standards. (AGA, No. 62 at pp. 2-3; APGA, No. 61 at p. 1; Laclede Gas, 
No. 59 at p. 4)
    The results for clothes dryers under TSL 4 in the direct final rule 
show impacts ranging from a gain of 460 jobs to a potential loss of 
3,962 jobs. The potential loss reflects a scenario in which all 
existing production would be moved outside of the United States. DOE 
believes that this outcome is unlikely for the reasons stated in the 
direct final rule. Specifically, at TSL 3 through TSL 5, DOE analyzed 
design options for the most common clothes dryer product classes that 
would add labor content to the final product. If manufacturers continue 
to produce these more complex products in-house, it is likely that 
employment would

[[Page 52860]]

increase in response to the amended energy conservation standards. At 
TSL 3 through TSL 5, gains in domestic production employment are likely 
because, while requiring more labor, the necessary changes could be 
made within existing product platforms. The ability to make product 
changes within existing platforms mitigates some of the pressure to 
find lower labor costs, as relocating manufacturing facilities would 
disrupt production and add significant capital costs.
5. Scientific Integrity
    Laclede Gas stated that the energy factors established for clothes 
dryers do not fulfill the scientific integrity objectives established 
by the President's Memorandum on scientific integrity, published on May 
9, 2009,\4\ and that there is no scientific integrity in mandating 
standards that unfairly discriminate against the direct use of natural 
gas. (Laclede Gas, No. 59 at p. 2)
---------------------------------------------------------------------------

    \4\ http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-3-9-09/.
---------------------------------------------------------------------------

    DOE notes that the President's memo requires the Director of the 
Office of Science and Technology Policy (OSTP) to develop 
recommendations for Presidential action designed to guarantee 
scientific integrity throughout the executive branch based on the 
principles enumerated in the memorandum. DOE further notes that OSTP 
issued a memorandum to the heads of executive departments and agencies 
on December 17, 2010 pursuant to the President's May 9, 2009 memorandum 
(http://www.whitehouse.gov/sites/default/files/microsites/ostp/scientific-integrity-memo-12172010.pdf). The memorandum provides 
guidance to agencies to implement the Administration's policies on 
scientific integrity. The OSTP memo stated that agencies should develop 
policies \5\ that, among other things, strengthen the actual and 
perceived credibility of Government research, which would include 
ensuring that data and research used to support policy decisions 
undergo independent peer review by qualified experts, where feasible 
and appropriate. Agency policies should also, among other things, 
establish principles for conveying scientific and technological 
information to the public.
---------------------------------------------------------------------------

    \5\ DOE has submitted its draft policy to OSTP. See http://www.whitehouse.gov/blog/2011/08/11/scientific-integrity-policies-submitted-ostp.
---------------------------------------------------------------------------

    As stated in the direct final rule, 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 Web site: http://www1.eere.energy.gov/buildings/appliance_standards/peer_review.html. 
DOE also makes its analyses and results available to the public in the 
TSD developed for its energy conservation standards rulemakings. The 
TSD for the direct final rule to establish energy conservation 
standards for residential clothes dryers and room air conditioners is 
available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/residential_clothes_dryers_room_ac_direct_final_rule_tsd.html.
    DOE further notes that both memoranda state explicitly that they 
are not intended to create any right or benefit, substantive or 
procedural, enforceable at law or in equity, by any party against the 
United States, its departments, agencies, or entities, its officers, 
employees, agents or any other person.
    Lastly, DOE disagrees with the commenter's assertion that the 
amended standards for clothes dryers unfairly discriminate against the 
direct use of natural gas. As discussed in section II.B.2 of this 
notice, DOE finds no reason to expect that the standards will cause 
consumers to prefer electric dryers over gas clothes dryers.

III. Other Comments on the Direct Final Rule

A. Standby Power Levels

    AHAM commented that the energy conservation standards for 
residential clothes dryers adopted in the direct final rule incorporate 
0.08 Watts (W) of standby power for the vented clothes dryer product 
classes. AHAM stated that this standby power level is low and requested 
that DOE provide additional information on how that level was 
determined. AHAM indicated that approximately 1-2 W of standby power is 
required to power electronic controls and provide consumers with the 
usability they expect. AHAM provided the example of the product's 
central processing unit (CPU), which it stated must run while the 
product is not in active mode and that the touch pad must remain 
active. AHAM added that without those two elements a hard off switch 
would be required and, as a result, the consumer would be required to 
wait for the product to power up at the start of use. AHAM stated that 
consumers are not likely to accept such a wait time to turn on the 
product. (AHAM, No. 60 at p. 2)
    As noted in chapter 5 of the direct final rule TSD, the standby 
power levels for clothes dryers (including the 0.08 W standby power 
level) were developed based on DOE testing and reversing engineering 
analysis of products in its test sample. The 0.08 W standby power level 
corresponds to a clothes dryer with electronic controls that uses a 
conventional linear power supply, along with a transformerless power 
supply that enables the CPU to remain on at all times while disabling 
the main linear power supply whenever the clothes dryer is ``asleep'' 
(after periods of user inactivity). This power supply design, 
incorporated with a ``soft'' power pushbutton and triac to control 
power through the transformer, would provide just enough power through 
the transformerless power supply to maintain the microcontroller chip 
while the clothes dryer is not powered on. The control logic monitors 
the clothes dryer for key-presses, door openings, etc., and when user 
activity is detected, the logic activates the main linear power supply 
to power the remainder of the control board. DOE notes that this design 
option and standby power level was observed in DOE's sample of units 
that were tested and reverse-engineered for the preliminary analyses. 
As a result, DOE believes that products incorporating this design 
option are currently available on the market and do not require a hard 
on/off switch. In addition, DOE is unaware of any differences in the 
time required to power up the controls using this power supply design 
versus a conventional linear power supply or switch mode power supply 
that also power down the display after a period of user inactivity. For 
these reasons, DOE believes that the standby power level analyzed and 
adopted in the direct final rule for vented dryer product classes is 
appropriate.
    AHAM also commented that DOE did not indicate what standby power 
levels were incorporated into the energy conservation standards adopted 
in the direct final rule for room air conditioners. As a result, AHAM 
stated it was unable to comment on the appropriateness of the adopted 
standard levels. (AHAM, No. 60 at p. 2) DOE has

[[Page 52861]]

provided additional information on the standby power levels 
incorporated into the standards adopted in the direct final rule for 
room air conditioners that can be found on the DOE Web site at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/room_ac_efficiency_level_standby_table.pdf.

B. Test Procedure

    The same parties that submitted the Joint Petition also submitted a 
separate comment (Joint Comment) which supported the final adoption of 
the standards in the direct final rule, but also noted that DOE's 
revised clothes dryer test procedure that published in January 2011 did 
not incorporate their recommendations to amend the test procedure to 
better account for the effectiveness of automatic termination controls. 
76 FR 972 (Jan. 6, 2011) As part of this recommendation, the Joint 
Comment stated that DOE should revise its test procedure to measure the 
energy use of automatic termination controls so that the procedure 
includes the entire cycle, including the cool-down period. The Joint 
Comment stated that it intends to submit new data gathered by 
manufacturers along with a petition requesting a revision to the DOE 
test procedure to account for the effectiveness of automatic 
termination controls and include the full cycle, including cool-down. 
The petition will also request a parallel revision to the energy 
conservation standard to reflect the test procedure change, as required 
by EPCA. The Joint Comment added that amending the test procedure to 
capture the energy use of the entire dryer cycle could save significant 
amounts of energy over 30 years and urged DOE to act upon their 
upcoming petition as soon as possible. (Joint Comment, No. 64 at p. 1)
    As noted in the clothes dryer test procedure request for 
information (RFI) notice issued on August 9, 2011 and published in the 
Federal Register on August 12, 2011 (76 FR 50145-48), DOE has initiated 
a new test procedure rulemaking for clothes dryers to further 
investigate the effects of automatic cycle termination on the energy 
efficiency. In the RFI, DOE stated that it seeks information, data, and 
comments regarding methods for more accurately measuring the effects of 
automatic cycle termination in its clothes dryer test procedure. In 
particular, DOE seeks information, data, and comments on the following 
topics as they relate to automatic cycle termination: test load 
characteristics, accuracy of different automatic cycle termination 
sensors and controls, conditions of water used to wet the dryer test 
load, and automatic termination cycle settings to be tested.

C. Equipment Price Forecasting

    AHAM expressed concern regarding the use of experience curves in 
equipment price forecasting. It stated that using experience curves (1) 
Does not make the analysis more accurate; (2) gives the appearance, but 
not the reality, of a more objective analysis; (3) hides the 
subjectivity in the data selection process rather than in the analysis 
itself; and (4) has no material effect on the ordering of the 
conclusions. (AHAM, No. 60 at p. 2) As discussed in section IV.F.1 of 
the direct final rule, DOE evaluated the above concerns (and those 
expressed by other commenters on the NODA) and determined that 
retaining the assumption-based approach of a constant real price trend 
was not consistent with the historical data for the products covered in 
this rule. Instead, consistent with the method proposed in the NODA, 
DOE used experience curve fits to forecast product costs. To evaluate 
the impact of the uncertainty of the price trend estimates, DOE 
performed price trend sensitivity calculations in the national impact 
analysis to examine the dependence of the analysis results on different 
analytical assumptions. DOE found that for the selected standard levels 
the benefits outweighed the burdens under all scenarios. DOE notes that 
it may modify its price trend forecasting methods as more data and 
information becomes available.

D. Indirect Environmental Impacts

    AHAM stated that, to understand the total environmental impact, 
DOE's analysis should also consider indirect CO2 emissions, 
such as increased carbon emissions required to manufacture a product at 
a given standard level, increased transportation and related emissions, 
and reduced carbon emissions from peak load reductions. (AHAM, No. 60 
at p. 2) As discussed in section II.A.3, DOE is evaluating the full-
fuel-cycle measure, which includes the energy consumed in extracting, 
processing, and transporting primary fuels. DOE's current accounting of 
primary energy savings and the full-fuel-cycle measure are directly 
linked to the energy used by appliances or equipment. DOE believes that 
energy used in the manufacture or transport of appliances or equipment 
falls outside the boundaries of ``directly'' as intended by EPCA. Thus, 
DOE did not consider such energy use in the national impact analysis. 
DOE did not include the emissions associated with such energy use for 
the same reason.

E. Other Comments

    DOE received one comment from a private citizen generally 
supporting the standards in the direct final rule.

IV. Department of Justice Analysis of Competitive Impacts

    EPCA directs DOE to consider any lessening of competition that is 
likely to result from new or amended standards. It also directs the 
Attorney General of the United States (Attorney General) to determine 
the impact, if any, of any lessening of competition likely to result 
from a proposed standard and to transmit such determination to the 
Secretary within 60 days of the publication of a proposed rule, 
together with an analysis of the nature and extent of the impact. (42 
U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) DOE published a NOPR containing 
energy conservation standards identical to those set forth the direct 
final rule and transmitted a copy of the direct final rule and the 
accompanying TSD to the Attorney General, requesting that the U.S. 
Department of Justice (DOJ) provide its determination on this issue. 
DOE has published DOJ's comments at the end of this notice.
    DOJ reviewed the amended standards in the direct final rule and the 
final TSD provided by DOE, and also conducted interviews with industry 
members. As a result of its analysis, DOJ concluded that the amended 
standards issued in the direct final rule are unlikely to have a 
significant adverse impact on competition. DOJ further noted that the 
amended standards established in the direct final rule were the same as 
recommended standards submitted in the Joint Petition signed by 
industry participants who believed they could meet the standards (as 
well as other interested parties).

V. Amended Compliance Dates

    In the direct final rule and corresponding NOPR published in the 
Federal Register on April 21, 2011, DOE provided for a compliance date 
for the amended energy conservation standards for residential clothes 
dryers and room air conditioners of 3 years after the date of 
publication, or April 21, 2014. The standards set forth in the direct 
final rule and NOPR were consistent with the Consensus Agreement that 
served as the basis for those rulemaking actions. The Consensus 
Agreement also provided specific compliance dates for both products--
June 1, 2014 for room air conditioners and January 1, 2015 for clothes 
dryers. The compliance date of the direct final rule and NOPR did not 
correspond with the compliance dates

[[Page 52862]]

specified in Consensus Agreement. As a result, DOE proposed to amend 
the compliance dates set forth in the direct final rule and 
corresponding NOPR to be consistent with the compliance dates set out 
in the consensus agreement. DOE received comments in support of the 
amended compliance dates and did not receive any comments objecting to 
those amended dates. In a final rule published elsewhere in today's 
Federal Register, DOE adopts the compliance dates for the standards 
established in the direct final specified in the Consensus Agreement--
June 1, 2014 for room air conditioners and January 1, 2015 for clothes 
dryers.

VI. National Environmental Policy Act

    Pursuant to the National Environmental Policy Act and the 
requirements of 42 U.S.C. 6295(o)(2)(B)(i)(VI), DOE prepared an 
environmental assessment (EA) of the impacts of the standards for 
clothes dryers and room air conditioners in the direct final rule, 
which was included as chapter 15 of the direct final rule TSD. DOE 
found that the environmental effects associated with the standards for 
clothes dryers and room air conditioners were not significant. 
Therefore, after consideration of the comments received on the direct 
final rule, DOE issued a Finding of No Significant Impact (FONSI) 
pursuant to NEPA, the regulations of the Council on Environmental 
Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance 
with NEPA (10 CFR part 1021). The FONSI is available in the docket for 
this rulemaking and at: http://www.eere.energy.gov/buildings/appliance_standards/residential/pdfs/fonsi.pdf.\6\
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    \6\ DOE stated erroneously in the direct final rule published on 
April 21, 2011 that the FONSI had been issued at that time. This 
document corrects that statement.
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VII. Conclusion

    In summary, based on the discussion above, DOE has determined that 
the comments received in response to the direct final rule for amended 
energy conservation standards for residential clothes dryers and room 
air conditioners do not provide a reasonable basis for withdrawal of 
the direct final rule. As a result, the amended energy conservation 
standards set forth in the direct final rule were effective on August 
19, 2011. Pursuant to the document published elsewhere in today's 
Federal Register, compliance with these standards is required on June 
1, 2014 for room air conditioners and on January 1, 2015 for clothes 
dryers.

    Issued in Washington, DC, on August 18, 2011.
Timothy Unruh,
Program Manager, Federal Energy Management Program, Energy Efficiency 
and Renewable Energy.
[FR Doc. 2011-21640 Filed 8-23-11; 8:45 am]
BILLING CODE 6450-01-P