[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Proposed Rules]
[Pages 76952-76959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31392]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket Number EERE-BT-PET-0053]


Energy Conservation Program for Consumer Products: Association of 
Home Appliance Manufacturers Petition for Reconsideration

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

ACTION: Petition for Reconsideration; Request for Comments.

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SUMMARY: The Department of Energy (DOE) received a petition from the 
Association of Home Appliance Manufacturers (AHAM) requesting 
reconsideration of the U.S. Department of Energy's (DOE) final rule to 
amend the test procedures for residential dishwashers, dehumidifiers, 
and conventional cooking products, published on October 31, 2012, and 
DOE's direct final rule to amend energy conservation standards for 
dishwashers, published on May 30, 2012. Specifically, AHAM requested 
that DOE stay the effectiveness of the test procedure final rule and 
final standards rule until DOE either: Revises the standards in the 
final standards rule to account for the impact on measured energy 
resulting from test procedure amendments to measure fan-only mode and 
standby and off mode energy use; or delays requirements regarding 
measurement of fan-only mode and standby and off mode energy use until 
promulgation of a revised standard for dishwashers. DOE seeks comment 
on whether to grant the petition and proceed with a rulemaking on this 
matter.

DATES: Any comments must be received by DOE not later than January 30, 
2013.

ADDRESSES: Comments must be submitted, identified by docket number 
EERE-BT-PET-0053, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. Email: [email protected]. Include either the 
docket number EERE-BT-PET-0053, and/or ``AHAM Petition'' in the subject 
line of the message.
    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building

[[Page 76953]]

Technologies Program, Mailstop EE-2J, Room 1J-018, 1000 Independence 
Avenue SW., Washington, DC 20585-0121. Please submit one signed 
original paper copy.
    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Program, Room 1J-018, 1000 Independence 
Avenue SW., Washington, DC 20585-0121.
    5. Instructions: All submissions received must include the agency 
name and docket number for this proceeding.
    Docket: For access to the docket to read background documents, or 
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov. In addition, electronic copies of the Petition are 
available online at DOE's Web site at the following URL address: http://www.regulations.gov/#!docketDetail;D=EERE-2012-BT-PET-0053.

FOR FURTHER INFORMATION CONTACT: 

Steven 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, (202) 586-
7892, or email: [email protected].
Elizabeth Kohl, U.S. Department of Energy, Office of General Counsel, 
GC-71, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-
7796, email: [email protected].

SUPPLEMENTARY INFORMATION: The Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq., provides among other things that, ``[e]ach agency 
shall give an interested person the right to petition for the issuance, 
amendment, or repeal of a rule.'' (5 U.S.C. 553(e)). The Association of 
Home Appliance Manufacturers (AHAM) petitioned DOE for reconsideration 
of its final test procedure rule to amend the test procedures for 
dishwashers, dehumidifiers and conventional cooking products (77 FR 
65942 (Oct. 31, 2012)) and its direct final rule to amend the energy 
conservation standards applicable to dishwashers (77 FR 31918 (May 30, 
2012)). Specifically, AHAM requested that DOE stay the effectiveness of 
the test procedure final rule and final standards rule until DOE 
either: (1) Revises the standards in the final standards rule to 
account for the impact on measured energy resulting from test procedure 
amendments to measure fan-only mode and standby and off mode energy 
use; or (2) delays requirements regarding measurement of fan-only mode 
and standby and off mode energy use until promulgation of a revised 
standard for dishwashers. In promulgating this petition for public 
comment, DOE seeks views on whether to grant the petition and undertake 
a rulemaking to consider the proposals contained in the petition. By 
seeking such comment, DOE takes no position at this time on the merits 
of the suggested rulemaking.

    Issued in Washington, DC, on December 21, 2012.
Gregory H. Woods,
Office of General Counsel, U.S. Department of Energy.
    Set forth below is the full text of the AHAM petition.

Before the

United States Department of Energy

Office of Energy Efficiency and Renewable Energy

    In the Matter of: Docket No. EERE-2010-BT-TP-0039, RIN: 1904-
AC01, Energy Conservation Program: Test Procedures for Residential 
Dishwashers, Dehumidifiers, and Conventional Cooking Products and 
Docket No. EERE-2011-BT-STD-0060, RIN No. 1904-AC64, Energy 
Conservation Program: Energy Conservation Standards For Residential 
Dishwashers

10 CFR Parts 429 and 430

Petition for Reconsideration

    The Association of Home Appliance Manufacturers (AHAM) respectfully 
petitions the Department of Energy (DOE) for reconsideration of its 
final rule on Test Procedures for Residential Dishwashers, 
Dehumidifiers, and Conventional Cooking Products, Docket No. EERE-2010-
BT-TP-0039, RIN 1904-AC01, 77 FR 65942 (Oct. 31, 2012) (Test Procedure 
Final Rule) and its direct final rule on Energy Conservation Standards 
for Dishwashers, Docket No. EERE-2011-BT-STD-0060, RIN No. 1904-AC64, 
77 FR 31918 (May 30, 2012) (Direct Final Rule).
    AHAM believes that, overall, the amendments made to the residential 
dishwasher test procedure are critical amendments, many of which will 
enhance the repeatability and reproducibility of the test procedure. 
AHAM requested many of the amendments, and we thank DOE for acting 
quickly to address the issues we raised. But, despite DOE's conclusions 
that amendments to the residential dishwasher test procedure regarding 
fan-only mode and standby and off mode would impact measured energy and 
AHAM's comments to the same effect, DOE has ignored and violated its 
statutory obligations under 42 U.S.C. 6293(e) and 42 U.S.C. 
6295(gg)(2). These provisions require analysis of test procedure 
revisions to determine whether they affect the stringency of the 
underlying standard, and, if so, DOE must adjust the standards 
accordingly. This is to prevent ``back-door'' rulemakings that 
effectively decrease or increase the appliance standards. DOE's action 
is incompatible with and undermines the consensus agreement which 
underlies the amended residential dishwasher standard.
    AHAM thus requests an immediate stay of the effectiveness of both 
the Direct Final Rule and the Test Procedure Final Rule until DOE 
either (1) revises the standards in the Direct Final Rule to account 
for the impact on measured energy resulting from test procedure 
amendments regarding fan-only mode and standby and off mode energy; or 
(2) delays requirements regarding measurement of fan-only mode and the 
revised standby and off mode procedures until such time as a revised 
standard is promulgated for residential dishwashers.

Facts

    On July 30, 2010, AHAM and energy efficiency advocates submitted 
energy conservation standards proposals for residential dishwashers and 
other products that had been the subject of intensive negotiations 
(Joint Stakeholder Agreement). DOE encouraged these negotiations, 
supplied technical support to the parties, and considered the standards 
under the fast track consensus standards provision in 42 U.S.C. 
6295(p)(4). That agreement included agreed-to energy conservation 
standards levels and a compliance date for dishwashers which the 
parties to the agreement jointly submitted to DOE via petition dated 
September 25, 2010. Notably, the Joint Stakeholder Agreement expressly 
states that ``[t]he Joint Stakeholders have made no agreement 
concerning the appropriate levels for standby or off mode energy 
consumption and agree that stakeholders will comment to DOE as they 
view appropriate during DOE's rulemaking process for each of the 
affected products, as applicable.'' Joint Stakeholder Agreement, at ] 
4. And the Joint Stakeholders ``agree[d] that pending amendments to 
test procedures for the affected products should be completed by DOE, 
subject to input from all stakeholders and agree[d] to recommend that 
DOE translate the standards contained in this agreement to equivalent 
levels specified under revised test procedures.'' Id. at ] 5. In 
addition, the Joint Stakeholder Agreement provides, in proposed 
statutory language, that, if the residential dishwasher test procedure 
is amended prior to the compliance date of the proposed standards 
(2013), the

[[Page 76954]]

standards should be amended consistent with 42 U.S.C. 6293(e)(2). See 
Joint Stakeholder Agreement, at 7. On May 30, 2012, DOE published the 
Direct Final Rule and, as required by the Energy Policy and 
Conservation Act of 1975 (EPCA), as amended by the Energy Information 
and Security Act of 2007 (EISA), a Notice of Proposed Rulemaking. 77 FR 
31964 (May 30, 2012). The Direct Final Rule promulgated standards 
levels consistent with those the Joint Stakeholder Agreement and 
September 25, 2010 petition proposed. Compliance with those standards 
is mandatory on May 30, 2013.
    In a separate rulemaking, on December 2, 2010, DOE published a 
notice of proposed rulemaking in which it proposed amendments to the 
residential dishwasher test procedure, Appendix C to Subpart B of Part 
430 (Appendix C), to address standby and off mode, including 
incorporation by reference of IEC Standard 62301, First Edition. See 
Energy Conservation Program for Consumer Products: Test Procedures for 
Residential Dishwashers, Dehumidifiers, and Conventional Cooking 
Products (Standby Mode and Off Mode), Notice of Proposed Rulemaking and 
Announcement of Public Meeting, 75 FR 75290 (Dec. 2, 2010) [hereinafter 
December 2010 NOPR]. DOE also held a public meeting on December 17, 
2010. Appendix C already included measurement of standby mode, but the 
proposed amendments proposed some changes to the energy that would be 
measured. For example, DOE proposed to define an ``inactive mode'' as 
``a standby mode that facilitates the activation of active mode by 
remote switch (including remote control), internal sensor, or timer, or 
that provides continuous status display.'' December 2010 NOPR, at 
75298. DOE stated that proposed amendments would not apply to, and 
would have no impact on, existing standards. See December 2010 SNOPR, 
at 75316. DOE did not propose amendments to the dishwasher active mode 
test procedure. DOE next issued a supplemental notice of proposed 
rulemaking on September 20, 2011, in which it proposed to incorporate 
by reference IEC Standard 62301, Second Edition. See Energy 
Conservation Program: Test Procedures for Residential Dishwashers, 
Dehumidifiers, and Conventional Cooking Products (Standby Mode and Off 
Mode), Supplemental Notice of Proposed Rulemaking, 76 FR 58346 (Sept. 
20, 2011) [hereinafter September 2011 SNOPR]. DOE did not propose 
amendments to the dishwasher active mode test procedure. DOE did not 
expand upon or revise its December 2010 NOPR discussion about 
compliance dates. In response to the September 2011 SNOPR, AHAM 
commented that ``[a]lthough the dishwasher test procedure currently 
measures standby, the proposed amendments change what energy will be 
measured. For example, the end of cycle energy will now be measured, 
including cycle finished mode.'' AHAM Comments on the SNOPR for Test 
Procedures for Residential Dishwashers, Dehumidifiers, and Conventional 
Cooking Products 3 (Oct. 20, 2011) [hereinafter AHAM October 2011 
Comments]. In response to comments from AHAM and its members, DOE 
published a second supplemental notice of proposed rulemaking. See 
Energy Conservation Program: Test Procedures for Residential 
Dishwashers, Dehumidifiers, and Conventional Cooking Products (Standby 
Mode and Off Mode), Supplemental Notice of Proposed Rulemaking, 77 FR 
31444 (May 25, 2012) [hereinafter May 2012 SNOPR]. In the May 2012 
SNOPR, DOE proposed to amend the residential dishwasher test procedure 
to, among other things, include measures of energy consumption in fan-
only mode. This was the first time DOE proposed amendments to the 
active mode test procedure and the first time DOE proposed a procedure 
to measure fan-only mode.
    In its comments on the May 2012 SNOPR, AHAM commented that it was 
``somewhat unclear when compliance with the proposed revisions to the 
dishwasher test procedure would be required. Some of the proposals 
would impact measured energy (e.g., fan-only mode, water softener 
regeneration). Accordingly, if those amendments would be effective 
under the existing standards and/or the pending direct final rule, DOE 
would need to do a crosswalk to ensure that the stringency of those 
standards does not change. * * * Alternatively, DOE would need to 
address the changes in measured energy in a future standards 
rulemaking.'' AHAM Comments on the SNOPR for Test Procedures for 
Residential Dishwashers, Dehumidifiers, and Conventional Cooking 
Products 2 (June 25, 2012) [hereinafter AHAM June 2012 Comments] 
(emphasis in original). AHAM also proposed that DOE incorporate by 
reference ANSI/AHAM DW-1-2009 in Appendix C. See AHAM June 2012 
Comments, at 12-13.
    In response to comments it received from AHAM and others on the May 
2012 SNOPR, DOE published a third supplemental notice of proposed 
rulemaking on August 15, 2012. See Energy Conservation Program: Test 
Procedures for Residential Dishwashers and Cooking Products, 
Supplemental Notice of Proposed Rulemaking, 77 FR 49064 (Aug. 15, 2012) 
[hereinafter August 2012 SNOPR]. In the August 2012 SNOPR, DOE proposed 
to, among other things, revise the test procedure proposed in the May 
2012 SNOPR for measuring energy use in fan-only mode and update the 
referenced industry test method to ANSI/AHAM DW-1-2010 (AHAM DW-1-
2010). Except with regard to replacements proposed for obsolete 
dishware, flatware, and food items, DOE did not clarify or propose 
specific compliance dates in the August 2012 SNOPR preamble, including 
responding to AHAM's previous comment requesting clarification about 
compliance dates. DOE did, however, include language in the proposed 
regulatory text addressing the compliance date for fan-only mode and 
water softener energy consumption: ``The procedures and calculations 
that refer to the combined low-power mode, fan-only mode, and water 
softener energy consumption * * * need not be performed to determine 
compliance with energy conservation standards for dishwashers at this 
time.'' August 2012 SNOPR, at 49072.
    In response to the August 2012 SNOPR, AHAM commented ``that it is 
still somewhat unclear when compliance with some of the proposed 
revisions to the dishwasher test procedure would be required'' and 
requested ``that DOE clarify which amendments are to be effective at 
which time.'' AHAM Comments on the SNOPR for Test Procedures for 
Residential Dishwashers, Dehumidifiers, and Conventional Cooking 
Products 2 (Aug. 30, 2012) [hereinafter AHAM August 2012 Comments]. In 
addition, AHAM commented that, because some of the proposals would or 
could impact measured energy, DOE would need to ensure that the 
stringency of the standards does not change if it intended to require 
the amendments be used for compliance with existing or 2013 standards. 
See id. On October 31, 2012, DOE published the Test Procedure Final 
Rule in which it established a new test procedure for residential 
dishwashers, Appendix C1 to Subpart B of Part 430 (Appendix C1). 
Relevant to the instant petition, the Test Procedure Final Rule:
     Added provisions for measuring standby mode and off mode 
energy consumption, including incorporating specific sections of IEC 
Standard 62301, Second Edition by reference;

[[Page 76955]]

     Added a provision for measuring energy use in fan-only 
mode; and
     Updated the referenced industry test method to ANSI/AHAM 
DW-1-2010;
    DOE determined that ``the date upon which the use of new appendix 
C1 will be required will be May 30, 2013, the compliance date of the 
direct final rule published on May 30, 2012 * * *'' Test Procedure 
Final Rule, at 65947.
    DOE did not revise the standards promulgated in the Direct Final 
Rule to account for changes in measured energy as a result of 
amendments requiring measurement of fan-only mode. DOE reasoned that 
``energy use in [fan-only mode] is estimated to be less than 5 percent 
of the total energy use of standard dishwashers. Given that 65 percent 
of all standard dishwashers currently on the market meet or exceed the 
minimum energy conservation standards established in the direct final 
rule, inclusion of this small amount of energy use would not impact 
compliance with the revised standard. Therefore, DOE has determined 
that the energy use in fan-only mode is de minimus and insufficient to 
alter in a material manner the measured energy use of dishwashers.'' 
Test Procedure Final Rule, at 65947 (emphasis in original).
    Nor did DOE adjust the standards in the Direct Final Rule to 
account for the standby and off-mode test procedure amendments. See id. 
at 65961. DOE relied on its conclusion that ``the proposed amendments 
to the dishwasher test procedure regarding standby mode and off mode 
would not alter the measured efficiency of any covered product under 
the existing test procedure.'' Id. And, DOE concluded, because it was 
not presented with data showing otherwise, that the incorporation by 
reference of AHAM DW-1-2010 in the dishwasher test procedure would not 
impact measured energy. See id. at 65966.

Argument

    When DOE amends a test procedure, it must determine ``to what 
extent, if any, the proposed test procedure would alter the measured 
energy efficiency, measured energy use, or measured water use of any 
covered product as determined under the existing test procedure.'' 42 
U.S.C. 6293(e)(1). And, if DOE determines that the amended test 
procedure will alter measured energy or water use, DOE ``shall amend 
the applicable energy conservation standard during the rulemaking 
carried out with respect to such test procedure.'' 42 U.S.C. 
6293(e)(2). There is a specific procedure, involving evaluating 
minimally compliant products, set forth in the law for making that 
adjustment. See id. Furthermore, DOE was required to prescribe in a 
final rule, no later than March 31, 2011, test procedure amendments 
with regard to standby and off mode for residential dishwashers. 42 
U.S.C. 6295(gg)(2)(B). Those test procedure amendments ``shall not to 
be used to determine compliance with product standards established 
prior to the adoption of the amended test procedures.'' 42 U.S.C. 
6295(gg)(2)(C). DOE did not satisfy its statutory obligations with 
regard to the fan-only mode, standby and off-mode, and updated industry 
test procedure amendments.\1\
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    \1\ AHAM notes that it commented that the proposed amendments to 
measure water softener regeneration would also impact measured 
energy. See AHAM June 2012 Comments, at 2. Our understanding is that 
DOE determined that there would not be a change in measured energy 
as a result of the test procedure amendments to measure water 
softener regeneration because that energy is currently required to 
be included for compliance with the standards under existing 
waivers. See Final Test Procedure Rule, at 65946-97 (``In the test 
procedure waivers granted for water softening dishwashers, DOE has 
required that such models meet the current energy conservation 
standards with the additional energy and water use associated with 
water softener regeneration included in the annual energy use and 
per-cycle water consumption metrics. * * * In accordance with the 
approach specified in these waivers, DOE determines that the energy 
and water use must be included in the metrics used to demonstrate 
compliance with any amended dishwasher energy conservation 
standards, including those in the direct final rule.'').
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Amendments Regarding Fan-Only Mode on Measured Energy and Ensure That 
the Stringency of the Standard Does Not Change

    DOE determined, and, as discussed below, AHAM data confirms, that 
the fan-only mode amendments to the residential dishwasher test 
procedure impact measured energy. DOE stated that the impact would be 
``de minimus,'' but gives no justification, quantification, standard, 
or criteria for that determination. It is a textbook arbitrary and 
capricious determination. As discussed more fully below, AHAM disagrees 
with the de minimus determination and believes that such a 
determination violates DOE's statutory obligations under 42 U.S.C. 
6293(e). DOE should have accounted for the impact of the fan-only mode 
changes to the test procedure in the May 2013 standard or should not 
have required measurement of fan-only mode for compliance with those 
standards. AHAM thus requests that DOE adjust the May 2013 standards to 
account for the impact of the fan-only mode amendments on measured 
energy or not require measurement of fan-only mode until a later 
standard is promulgated that does account for that increase in measured 
energy.

A. DOE Concluded That the Fan-Only Mode Amendments Impact Measured 
Energy

    In the May 2012 SNOPR, when DOE first proposed amendments to the 
residential test procedure to measure fan-only mode, DOE found that the 
proposed measurement would increase measured energy. DOE calculated the 
range of annual energy consumption associated with an air circulation 
fan operating after the end of the active cycle, according to the 
proposed test procedure, to be from 0.4 to 17 kilowatt hours (kWh) per 
year. See May 2012 SNOPR, at 31448. DOE stated that the ``higher end of 
the range is greater than 5 percent of the maximum allowable annual 
energy consumption for a standard dishwasher (355 kWh).'' Id. DOE also 
stated that ``the energy use associated with this mode may in some 
cases represent a larger percentage of annual energy consumption than 
the energy use in the low-power modes'' and that, accordingly, ``[t]his 
energy consumption would be required to be included in the annual 
energy consumption metric upon the compliance date of any updated 
dishwasher energy conservation standards addressing standby and off 
mode energy use.'' Id. at 31451.
    AHAM, though it did not oppose measurement of fan-only mode, agreed 
that it would increase measured energy, and, thus, requested 
clarification as to when the measurement would be required for 
compliance with the energy conservation standards for dishwashers:
    DOE should also clarify when this measurement would be required for 
compliance with energy conservation standards for dishwashers. DOE 
stated that this would be ``required in the annual energy metric upon 
the compliance date of any updated dishwasher energy conservation 
standards addressing standby mode and off mode energy use.'' Especially 
because this measurement would impact measured energy, AHAM assumes 
that statement is referencing a future standard that has not yet been 
proposed and that the fan-only measurement would not be required for 
compliance with the standards in the current direct final rule for 
dishwashers, 77 FR 31918 (May 30, 2012). An express statement to that 
effect would provide clarity to regulated parties.
    AHAM June 2012 Comments, at 3. Importantly, AHAM specifically 
stated its assumption that DOE's statement regarding the compliance 
date did not

[[Page 76956]]

refer to the then-pending standards in the Direct Final Rule. See id.; 
see also id. at 2 (``AHAM notes that it is somewhat unclear when 
compliance with the proposed revisions to the dishwasher test procedure 
would be required. Some of the proposals would impact measured energy 
(e.g., fan-only mode, water softener regeneration). Accordingly, if 
those amendments would be effective under the existing standards and/or 
the pending direct final rule, DOE would need to do a crosswalk to 
ensure that the stringency of those standards does not change. * * * 
Alternatively, DOE would need to address the changes in measured energy 
in a future standards rulemaking. AHAM requests that DOE clarify which 
amendments are to be effective at which time.'') (emphasis in 
original).
    In the subsequent August 2012 SNOPR, in response to AHAM's 
comments, DOE proposed an alternative approach for measurement of fan-
only mode, but DOE did not alter its analysis regarding the impact of 
the amendments on measured energy or respond to AHAM's request for 
clarity regarding the compliance date for the proposed fan-only mode 
amendments. Thus, AHAM again requested clarity and argued that, because 
the proposed amendments to measure fan-only mode would impact measured 
energy, DOE would need to either amend the standards in the Direct 
Final Rule to ensure that the stringency of those standards did not 
change or not require measurement of fan-only mode for compliance with 
the current or May 2013 standards:
    AHAM notes that it is still somewhat unclear when compliance with 
some of the proposed revisions to the dishwasher test procedure would 
be required. Some of the proposals would or could impact measured 
energy. Accordingly, if those amendments would be effective under the 
existing standards and/or the pending direct final rule, DOE would need 
to do a crosswalk to ensure that the stringency of those standards does 
not change.\1\ Alternatively, DOE would need to address the changes in 
measured energy in a future standards rulemaking. AHAM requests that 
DOE clarify which amendments are to be effective at which time.\1\ 77 
FR 31918 (May 30, 2012). AHAM August 2012 Comments, at 2.
    Then, in the Test Procedure Final Rule, DOE adopted amendments to 
measure fan-only mode and confirmed its estimates of the upper end of 
the range of annual energy consumption associated with fan-only mode. 
See Test Procedure Final Rule, at 65959. Yet, despite the fact that it 
concluded that the amendments would impact measured energy, DOE 
determined that the amendments would be required for compliance with 
the May 2013 standards: DOE has determined that use of the test 
procedures to measure the energy use in fan-only mode on the compliance 
date of any amended standards is appropriate. * * * The energy use in 
these modes is estimated to be less than 5 percent of the total energy 
use of standard dishwashers. Given that 65 percent of all standard 
dishwashers currently on the market meet or exceed the minimum energy 
conservation standards established in the direct final rule, inclusion 
of this small amount of energy use would not impact compliance with the 
revised standard. * * * Therefore, DOE has determined that the energy 
use in fan-only mode is de minimus and insufficient to alter in a 
material manner the measured energy use of dishwashers. Therefore, DOE 
is not considering amending the standards set forth in the direct final 
rule.'' Test Procedure Final Rule, at 65947 (emphasis in original).

B. AHAM Data Show That the Fan-Only Mode Amendments Impact Measured 
Energy

    Based on data AHAM collected, the fan-only mode amendments to the 
residential dishwasher test procedure will add a shipment weighted 
average of 0.29 kWh per year in measured energy. That energy takes into 
account the market penetration of fan-only mode--it does not assume 
that all basic models have fan-only mode. In addition, the shipment 
weighted average number includes a wide range of impacts on 
manufacturers and individual models, some much greater than 0.29 kWh 
per year. AHAM thus encourages DOE to interview individual 
manufacturers about the impact based on different technologies. AHAM's 
data show that, the fan-only mode amendments could add up to two 
percent of the 2013 standard in measured energy for some models. For 
models with fan-only mode, this is a significant impact on measured 
energy, particularly for minimally compliant products, and could not 
only require manufacturers to re-certify some or all of their models, 
but could also impact compliance with the standards. DOE should adjust 
the May 2013 standard to account for this impact on measured energy or, 
alternatively delay the requirement to measure fan-only mode until the 
compliance date of a future standard (i.e., after the May 2013 
standards). AHAM's preference would be that DOE revise the standards 
with which compliance is required on May 30, 2013, to account for the 
impact on measured energy.

C. DOE Must Account for the Impact of the Fan-Only Mode Amendments on 
Measured Energy

    In making its determination not to adjust the May 2013 standards to 
account for the impact on measured energy resulting from the fan-only 
mode amendments, DOE seems to have relied upon (1) its estimation that 
energy use in fan-only mode is less than five percent of the total 
energy use of standard dishwashers; and (2) the fact that 65% of 
dishwashers currently on the market meet or exceed the energy 
conservation standards in the Direct Final Rule. See Test Procedure 
Final Rule, at 65947. But neither of these reasons is sufficient for 
not ensuring that the stringency of the May 2013 standards remains 
unchanged.
    DOE determined that its amendments to require measurement of fan-
only mode would impact measured energy. It must, therefore, amend the 
May 2013 standard to ensure that the stringency of those standards does 
not change. See 42 U.S.C. 6293(e). As noted, DOE cannot simply ignore 
its statutory obligations because it does not deem the impact of the 
test procedure amendments to be significant. DOE stated that it 
considers the energy use in fan-only mode to be ``de minimus and 
insufficient to alter in a material manner the energy use of 
dishwashers.'' Test Procedure Final Rule, at 65947. But DOE has not 
defined, justified, or quantified what it considers to be de minimus 
for these purposes. Nor did Congress provide a de minimus exception to 
the requirements in 42 U.S.C. 6293. DOE's determination that the energy 
use in fan-only mode is ``de minimus'' is a textbook arbitrary and 
capricious determination.
    Furthermore, DOE's statement that 65% of dishwashers currently on 
the market meet or exceed the May 2013 standards misses the point. 
First, even if it is true that most dishwashers already meet or exceed 
the upcoming standards, because fan-only mode impacts measured energy, 
manufacturers may need to re-certify and re-label models with fan-only 
mode, depending on the magnitude of the impact on each model and 
whether the manufacturer conservatively rated the product originally. 
The resources required to re-certify and re-label models is 
significant. And the result will be confusion to consumers. Second, 
DOE's own analysis itself is contradictory and belies its conclusions. 
That most products, but hardly all, already meet the new standards 
levels, leads to the conclusion that some do not

[[Page 76957]]

(i.e., 35%) and, further, that minimally compliant products might well 
be affected by a five percent change (if that is the right number) in 
the stringency of the standard.
    Nor is the fact that DOE is requiring measurement of fan-only mode 
for compliance with future standards sufficient to relieve DOE of its 
obligation to ensure that the stringency of those standards does not 
change. The standards in the Direct Final Rule did not contemplate 
measurement of fan-only mode, as evidenced by the facts that (1) the 
Joint Stakeholder Agreement on which the standards in the Direct Final 
Rule were based was finalized on July 30, 2010, over two years before 
the fan-only mode amendments were adopted; (2) the Direct Final Rule 
was published on May 30, 2012, only five days after DOE first proposed 
to require measurement of fan-only mode, and specifically stated that 
it was consistent with the proposed standards levels in the Joint 
Stakeholder Agreement; and (3) the Direct Final Rule became effective 
on September 27, 2012, a little over one month before publication of 
the Final Test Procedure Rule in the Federal Register.
    The Joint Stakeholder Agreement specifically contemplated just this 
situation by providing, in proposed statutory language, that, should 
the residential test procedure be amended prior to the compliance date 
of the agreed-to amended standards, the procedures of 42 U.S.C. 
6293(e)(2) must be followed. See Joint Stakeholder Agreement, at 7. And 
the Joint Stakeholders ``agree[d] that pending amendments to test 
procedures for the affected products should be completed by DOE, 
subject to input from all stakeholders and agree[d] to recommend that 
DOE translate the standards contained in this agreement to equivalent 
levels specified under revised test procedures.'' Id. at ] 5. But, 
because stakeholders did not know what action DOE would take with 
regard to fan-only mode, stakeholders could not have effectively or 
meaningfully commented to oppose application of the fan-only mode 
amendments for compliance with the May 2013 standards in comments on 
the Direct Final Rule.
    DOE authorized the Test Procedure Final Rule on September 17, 2012, 
which was the same date comments on the Direct Final Rule and 
accompanying Notice of Proposed Rulemaking were due to DOE. Notice of 
that authorization was not sent to stakeholders until 6:06 p.m. on 
September 17, 2012, thus not affording stakeholders sufficient time to 
be able to review and develop comments prior to the end of the comment 
period on the Direct Final Rule.
    Accordingly, AHAM requests that DOE either: (1) Revise the May 2013 
standards to account for the impact on measured energy resulting from 
the fan-only mode amendments; or (2) not require measurement of fan-
only mode until such time as a future revised standard is promulgated 
for residential dishwashers. AHAM's preference would be that DOE revise 
the standards with which compliance is required on May 30, 2013, to 
account for the impact on measured energy.

II. DOE Must Account for the Impact of Test Procedure Amendments 
Regarding Standby and Off Mode on Measured Energy

    DOE determined, and AHAM data confirms, that the standby and off 
mode amendments to the residential dishwasher test procedure impact 
measured energy. DOE determined that because the amendments would not 
be required to determine compliance with the current standards, it did 
not need to adjust the standards to account for the increase in 
measured energy. AHAM disagrees--DOE's decision not to adjust the 
standards violates DOE's statutory obligations under 42 U.S.C. 
6295(gg)(2) and 42 U.S.C. 6293(e). AHAM thus requests that DOE adjust 
the May 2013 standards to account for the impact of the standby and off 
mode amendments on measured energy or not require those amendments to 
determine compliance with the May 2013 standard.

A. DOE Concluded That the Standby and Off Mode Amendments Impact 
Measured Energy

    DOE determined that the amendments to the dishwasher test procedure 
regarding standby and off mode would impact measured energy and, thus, 
proposed that those amendments not be required until the compliance 
date of amended dishwasher standards that address standby mode and off 
mode energy use. See December 2010 SNOPR, at 75317; U.S. Department of 
Energy, Test Procedure for Dishwashers, Dehumidifiers, and Conventional 
Cooking Products, Notice of Proposed Rulemaking Public Meeting 71 (Dec. 
17, 2010) [hereinafter Public Meeting Presentation] (stating that 
``inactive, off, and cycle finished modes measured under the proposed 
test procedure may result in energy consumption levels slightly higher 
than the current test procedure. The proposed amendments would clarify 
that provisions related to the new measures of energy consumption in 
standby mode and off mode would not be required to be used by 
manufacturers until the compliance date of any amended dishwasher 
standards addressing standby mode and off mode energy use'') (emphasis 
added).
    Throughout the rulemaking, it seemed that DOE would, appropriately, 
use the standards-setting process to account for the increase in 
measured energy due to the standby and off mode test procedure 
amendments. For example, DOE stated ``that the standby mode and off 
mode energy use is of a magnitude that it would materially affect that 
standard-setting process without overwhelming the effects of differing 
levels of active mode energy use.'' Id. at 70 (emphasis added). And DOE 
further explained ``that the magnitude of standby and off-mode energy 
use is such that integrating it would be measurable in changes in 
standby power, it would produce a measureable difference in EAEU so, 
therefore, would factor into any standard setting process, but is not 
so great that it would overwhelm the effect of variations in active 
energy--active-mode energy use, how that would contribute to the 
EAEU.'' Public Meeting, Energy Conservation Standard NOPR for Test 
Procedure for Dishwashers, Dehumidifiers and Conventional Cooking 
Products, Transcript 111-12 (Dec. 17, 2010) (emphasis added). DOE did 
not, however, expect the estimated annual energy use (EAEU) and 
estimated annual energy cost (EAOC) for dishwashers to be significantly 
affected by its proposed amendments to the test procedure. See, e.g., 
Public Meeting Presentation, at 83.
    In the September 2011 SNOPR, DOE continued to conclude that no 
amendments to the existing energy conservation standards would be 
required because the ``proposed amendments would not measurably alter 
the existing energy efficiency and energy use metrics for residential 
dishwashers . * * * [and because] those proposed amendments would 
clarify that manufacturers would not be required to use the provisions 
relating to standby mode and off mode energy use until the compliance 
of new energy conservation standards addressing such energy use.'' 
September 2011 SNOPR, at 58355. AHAM commented that it did not agree 
with DOE's conclusion that there would be no change in measured energy 
resulting from the standby and off mode test procedure changes:
    AHAM does not agree, however, that there would be no change in 
measured energy resulting from the changes to the dishwasher test 
procedure. Although the dishwasher test procedure currently

[[Page 76958]]

measures standby, the proposed amendments change what energy will be 
measured. For example, the end of cycle energy will now be measured, 
including cycle finished mode. DOE should amend the reporting 
requirements, and standards, to account for this change.
    AHAM October 2011 Comments, at 3. Yet DOE did not change its 
position in the Test Procedure Final Rule. See Test Procedure Final 
Rule, at 65946-47.

B. AHAM Data Show That the Standby and Off Mode Amendments Impact 
Measured Energy

    Based on data AHAM collected, the standby and off mode amendments 
to the residential dishwasher test procedure will add a shipment 
weighted average of 1.10 kWh per year. This amount could be enough, 
especially combined with the increase in measured energy due to the 
fan-only mode amendments, to require a manufacturer to re-certify and 
re-label some or all of its dishwasher models. In addition, the 
shipment weighted average number includes a wide range of impacts on 
manufacturers and individual models, some much greater than 1.10 kWh 
per year. AHAM thus encourages DOE to interview individual 
manufacturers about the impact based on different technologies.

C. DOE Must Account for the Impact of the Standby and Off Mode 
Amendments on Measured Energy

    DOE did not address the impact of the standby or off mode as 
measured per Appendix C1 in the Direct Final Rule. Nor could it have 
because DOE adopted Appendix C1 on October 31, 2012, over a month after 
the Direct Final Rule became effective. Furthermore, the Joint 
Stakeholder Agreement did not contemplate the standby and off mode 
amendments to the test procedure and the Joint Stakeholders made no 
agreement regarding the proper standards for standby and off mode 
energy consumption. See Joint Stakeholder Agreement, at ] 4. In fact, 
the Joint Stakeholder Agreement included proposed statutory language 
for implementing the agreement which expressly stated that ``[a]ny 
final rule amending the dishwasher test procedure after July 9, 2010, 
and before January 1, 2013 shall also amend the standards contained in 
[the agreement] according to the procedures in section 323(e) [of the 
Energy Policy and Conservation Act]. Section 323(e)(3) shall not apply 
to these amended standards.'' Joint Stakeholder Agreement, at 7 
(emphasis added). It also stated, more generally, that the Joint 
Stakeholders ``agree[d] that pending amendments to test procedures for 
the affected products should be completed by DOE, subject to input from 
all stakeholders and agree to recommend that DOE translate the 
standards contained in this agreement to equivalent levels specified 
under revised test procedures.'' Id. at ] 5.
    Thus, in order to require use of the amendments for compliance with 
the May 2013 standards, DOE must account for the increase in measured 
energy due to the standby and off mode amendments. DOE followed this 
approach in its implementation of the Joint Stakeholder Agreement's 
recommendations for clothes dryers, room air conditioners, and clothes 
washer standards. See, e.g., Energy Conservation Program: Energy 
Conservation Standards for Residential Clothes Dryers and Room Air 
Conditioners, Final Rule, 76 FR 22454, 22477 (Apr. 21, 2011). And DOE 
should have done the same thing with regard to dishwashers. 
Accordingly, we respectfully request that DOE either do the same 
analysis here as it did for those products, or delay the compliance 
date of the standby and off mode amendments until the compliance date 
of a future standard that addresses standby and off mode. AHAM's 
preference would be that DOE revise the standards with which compliance 
is required on May 30, 2013, to account for the impact on measured 
energy.
    In the Test Procedure Final Rule, DOE concluded, based only on a 
lack of data to the contrary, that the incorporation by reference of 
AHAM DW-1-2010 would not impact measured energy. See Test Procedure 
Final Rule, at 65966. AHAM proposed that DOE should incorporate AHAM 
DW-1-2010 by reference in the dishwasher test procedure. AHAM also 
commented that to do so, ``DOE would need to determine whether this 
change would result in changes to measured energy (resulting from a 
change in dishware, for example) * * *'' AHAM June 2012 Comments, at 
12-13; see also AHAM August 2012 Comments, at 8. AHAM also volunteered 
to work together with DOE to make that determination. See AHAM August 
2012 Comments, at 8. DOE did seek data regarding the impact 
incorporating AHAM DW-1-2010 by reference would have on measured 
energy. AHAM indicated that it did not have data indicating what the 
effect on measured energy would be were DOE to incorporate AHAM DW-1-
2010 by reference, and DOE did not receive data from other stakeholders 
in response to its request. See AHAM August 2012 Comments, at 8; Test 
Procedure Final Rule, at 65966.
    In the Test Procedure Final Rule, DOE responded to the lack of data 
by identifying the differences between AHAM DW-1-1992 and AHAM DW-1-
2010 and stating that it had ``not been presented with any data or 
information that would show that these differences would impact the 
results from the DOE dishwasher test procedure for specific dishwasher 
models. DOE also notes the uniform support from commenters to reference 
the most recent version of industry standards in its test procedures 
and observes that some test laboratories are already conducting 
dishwasher testing according to ANSI/AHAM DW-1-2010. Further, these 
amendments will not be required until the compliance date of new 
standards, which will be May 30, 2013. * * * If manufacturers determine 
that the new DOE test procedure does not measure energy and water use 
that is representative for their products, they may submit to DOE a 
petition for waiver from the DOE test procedure to determine an 
appropriate method.'' Test Procedure Final Rule, at 65966.
    AHAM fully supports incorporation of AHAM DW-1-2010 by reference in 
Appendix C1 and thanks DOE for incorporating by reference the most 
recent industry test procedure. Like DOE, AHAM does not believe that 
the differences between AHAM DW-1-1992 and AHAM DW-1-2010 would 
noticeably impact measured energy. Accordingly, we are not asking DOE 
to reconsider its decision to incorporate AHAM DW-1-2010 by reference. 
Nevertheless, DOE should ensure in future rulemakings that it fulfills 
its duty under the law to investigate the impact on measured energy and 
should not act on its own non-empirical belief about the impact of a 
test procedure change on measured energy. If DOE does not get the data 
it requests, it must gather the data itself, continue seeking it from 
sources likely to have it, or accept that there is no available data on 
the point and thus, no rational, empirically based action can be taken.

Conclusion

    DOE concluded during the rulemaking process that amendments to the 
residential dishwasher test procedure regarding fan-only mode and 
standby and off mode impact measured energy. And, as discussed above, 
AHAM's data further quantifies that impact. Furthermore, the shipment 
weighted average of the impact of both the fan-only mode and standby 
and off mode amendments is 1.38 kWh per year. That energy takes into 
account the market penetration of fan-only mode--it does not assume 
that all basic models

[[Page 76959]]

have fan-only mode. Accordingly, we request that DOE either: (1) Revise 
the May 2013 standards to account for the impact on measured energy 
using the data AHAM presented in this petition or through comprehensive 
testing that compares total measured energy under Appendix C versus 
Appendix C1; or (2) not require measurement of fan-only mode or the 
revised standby and off mode procedures until such time as a revised 
standard is promulgated for residential dishwashers.
    AHAM believes that, overall, the amendments made to the test 
procedure, which reside in Appendix C1, are critical amendments, many 
of which will enhance the repeatability and reproducibility of the test 
procedure. And we thank DOE for making those amendments, many of which 
AHAM requested. Thus, AHAM's preference would be that DOE revise the 
standards with which compliance is required on May 30, 2013, to account 
for the impact on measured energy. AHAM would be glad to assist DOE in 
determining the appropriate amended energy conservation standard under 
42 U.S.C. 6293(e)(2). Pending resolution of the instant petition, AHAM 
requests that DOE stay compliance with the May 30, 2013, standards and 
Appendix C1.

Respectfully submitted,

Association of Home Appliance Manufacturers

By: /s/ Jennifer Cleary,

Director, Regulatory Affairs, 1111 19th St. NW., Suite 402, 
Washington, DC 20036, 202-872-5955 x314

Dated: November 30, 2012

[FR Doc. 2012-31392 Filed 12-28-12; 8:45 am]
BILLING CODE 6450-01-P