[Federal Register Volume 84, Number 136 (Tuesday, July 16, 2019)]
[Proposed Rules]
[Pages 33869-33880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14545]
[[Page 33869]]
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DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2018-BT-STD-0005]
RIN 1904-AE35
Energy Conservation Program: Energy Conservation Standards for
Dishwashers, Grant of Petition for Rulemaking
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Proposed rule.
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SUMMARY: The U.S. Department of Energy (DOE) received a petition from
the Competitive Enterprise Institute (CEI) to define a new product
class under the Energy Policy and Conservation Act, as amended (EPCA),
for residential dishwashers. The new product class would cover
dishwashers with a cycle time for the normal cycle of less than one
hour from washing through drying. DOE published this petition and
request for comments in the Federal Register on April 24, 2018. Based
upon its evaluation of the petition and careful consideration of the
public comments, DOE has decided to grant this petition for rulemaking
and propose a dishwasher product class with a cycle time for the normal
cycle of less than one hour. DOE intends to consider appropriate energy
and water use limits for such a product class, if adopted, in a
separate rulemaking.
DATES: Written comments and information are requested on or before and
will be accepted on or before September 16, 2019.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at http://www.regulations.gov. Follow
the instructions for submitting comments. Alternatively, interested
persons may submit comments, identified by docket number EERE-2018-BT-
STD-0005, by any of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
2. Email: [email protected]. Include the docket
number EERE-2018-BT-STD-0005 in the subject line of the message.
3. Postal Mail: Appliance and Equipment Standards Program, U.S.
Department of Energy, Building Technologies Office, Mailstop EE-5B,
1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone:
(202) 287-1445. If possible, please submit all items on a compact disc
(``CD''), in which case it is not necessary to include printed copies.
4. Hand Delivery/Courier: Appliance and Equipment Standards
Program, U.S. Department of Energy, Building Technologies Office, 950
L'Enfant Plaza SW, 6th Floor, Washington, DC 20024. Telephone: (202)
287-1445. If possible, please submit all items on a CD, in which case
it is not necessary to include printed copies.
No telefacsimilies (faxes) will be accepted. For detailed
instructions on submitting comments and additional information on this
process, see section VI of this document.
Docket: The docket for this activity, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at http://www.regulations.gov. All documents in
the docket are listed in the http://www.regulations.gov index. However,
some documents listed in the index, such as those containing
information that is exempt from public disclosure, may not be publicly
available.
The docket web page can be found at https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0005. The docket web page contains
instructions on how to access all documents, including public comments,
in the docket. See section VI for information on how to submit comments
through http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Bryan Berringer, U.S. Department
of Energy, Office of Energy Efficiency and Renewable Energy, Building
Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC
20585-0121. Telephone: (202) 586-0371. Email:
[email protected].
Mrs. Elizabeth Kohl, U.S. Department of Energy, Office of the
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC
20585-0121. Telephone: (202) 586-7796. Email:
[email protected].
For further information on how to submit a comment or review other
public comments and the docket contact the Appliance and Equipment
Standards Program staff at (202) 287-1445 or by email:
[email protected].
SUPPLEMENTARY INFORMATION: DOE proposes to incorporate by reference the
following industry standard into 10 CFR part 430: ANSI/AHAM DW-1-2010,
Household Electric Dishwashers, (ANSI approved September 18, 2010).
A copy of ANSI/AHAM DW-2010 is available at: Association of Home
Appliance Manufacturers, 1111 19th Street NW, Suite 402, Washington, DC
20036, 202-872-5955, or go to http://www.aham.org.
For a further discussion of this standard, see section VII.M.
Table of Contents
I. Introduction
A. Background
B. Summary of Public Comments
II. Authority To Establish a Separate Class of Dishwashers
A. Separate Product Class--One-Hour Normal Cycle
B. EPCA's Anti-Backsliding Provision
III. Conclusion
IV. Rulemaking Overview and Response to Comments
A. Rulemaking Overview
B. Response to Comments
V. Request for Comments, Data and Information
VI. Submission of Comments
VII. Procedural Requirements
A. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
B. Review Under Executive Orders 13771 and 13777
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act of 1995
E. Review Under the National Environmental Policy Act of 1969
F. Review Under Executive Order 13132, ``Federalism''
G. Review Under Executive Order 12988, ``Civil Justice Reform''
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under the Treasury and General Government
Appropriations Act, 1999
J. Review Under Executive Order 12630, ``Governmental Actions
and Interference With Constitutionally Protected Property Rights''
K. Review Under the Treasury and General Government
Appropriations Act, 2001
L. Review Under Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution,
or Use''
M. Description of Materials Incorporated by Reference
VIII. Approval of the Office of the Secretary
I. Introduction
A. Background
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)) Pursuant to this provision of the
APA, CEI petitioned DOE for the issuance of rule establishing a new
product class under 42 U.S.C. 6295(q) that would cover dishwashers with
a cycle time of less than one hour from washing
[[Page 33870]]
through drying. (CEI Petition, No. 0006 at p. 1) \1\
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\1\ A notation in this form provides a reference for information
that is in the docket of this rulemaking (Docket No. EERE-2015-BT-
STD-0005). https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0005. This notation indicates that the statement preceding the
reference is included in document number 6 in the docket at page 1.
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CEI stated that dishwasher cycle times have become dramatically
longer under existing DOE energy conservation standards, and that
consumer satisfaction/utility has dropped as a result of these longer
cycle times. CEI also provided data regarding the increase in
dishwasher cycle time, including data that, according to CEI,
correlated increased cycle time with DOE's adoption of amended
efficiency standards for dishwashers. (CEI Petition, No. 0006 at pp. 2-
3)
CEI cited to 42 U.S.C. 6295(q) as the authority for DOE to
undertake the requested rulemaking. (CEI Petition, No. 0006 at pp. 4-5)
Section 6295(q) requires that for a rule prescribing an energy
conservation standard for a type (or class) of covered products, DOE
specify a level of energy use or efficiency higher or lower than the
level that applies (or would apply) to such type (or class) for any
group of covered products that have the same function or intended use,
if DOE determines that covered products within such group either: (1)
Consume a different kind of energy from that consumed by other covered
products within such type (or class); or (2) have a capacity or other
performance-related feature that other products within such type (or
class) do not have, and such feature justifies a higher or lower
standard from that which applies (or will apply) to other products
within such type (or class). (42 U.S.C. 6295(q)(1)) In determining
whether a performance related feature justifies a higher or lower
standard, DOE must consider such factors as the utility to the consumer
of the feature, and other appropriate factors. (Id.) In any rule
prescribing a higher or lower level of energy use or efficiency, DOE
must explain the basis on which the higher or lower level was
established. (42 U.S.C. 6295(q)(2))
The current energy conservation standards distinguish between
standard dishwashers and compact dishwashers. 10 CFR 430.32(f). In
general, a standard dishwasher is a dishwasher that has a capacity
equal to or greater than eight place settings plus six serving pieces.
See, 10 CFR part 430 subpart B appendix C1 (``Appendix C1''), section
1.20. A compact dishwasher is, in general, a dishwasher that has a
capacity of less than eight place settings plus six serving pieces.
Appendix C1, section 1.4.
CEI requested that dishwashers be further divided based on cycle
time. CEI asserted that given the significant amount of consumer
dissatisfaction with increased dishwasher cycle time, cycle time is a
``performance-related feature'' that provides substantial consumer
utility, as required by EPCA for the establishment of a product class
with a higher or lower energy use or efficiency standard than the
standards applicable to other dishwasher product classes. (CEI
Petition, No. 0006 at p. 5) CEI did not specify whether it was
requesting the additional distinction be applied to both the standard
and compact classes or just the standard class. For purposes of this
proposal, DOE assumes that CEI requests the distinction only for the
standard class, which represents a much larger percentage of dishwasher
shipments. DOE seeks comment, however, on whether the one hour product
class distinction should apply to both standard and compact
dishwashers.
CEI also cited to 42 U.S.C. 6295(o)(4), which prohibits DOE from
prescribing a standard that interested person have established by a
preponderance of the evidence would likely result in the unavailability
in the United States in any covered product type (or class) of
performance characteristics, features, sizes, capacities, and volumes
that are substantially the same as those generally available in the
United States at the time of DOE's finding. (CEI Petition, No. 0006 at
p. 4) CEI stated that despite this prohibition, it appears that
dishwasher cycle times have been impaired by the DOE standards and that
many machines with shorter cycle times are no longer available. (Id.)
In its petition, CEI suggested a cycle time of one hour as the
defining characteristic for the suggested new product class, because
one hour is substantially below the cycle times for all current
products on the market. (CEI Petition, No. 0006 at p. 5) CEI stated
that energy efficiency standards for current products would therefore
not change with the addition of the new product class, and that no
backsliding would occur for the energy standards already in place.
(Id.) Specifically, 42 U.S.C. 6295(o)(1) (commonly referred to as the
``anti-backsliding provision'') prohibits DOE from prescribing a
standard that increases the maximum allowable energy use, or in the
case of showerheads, faucets, water closets or urinals, water use, or
decreases the minimum required energy efficiency, of a covered product.
CEI did not suggest specific energy and water requirements for this new
product class, stating that these details could be determined during
the course of the rulemaking. (CEI Petition, No. 0006 at p. 1)
On April 24, 2018, DOE published a notice of receipt of CEI's
petition for rulemaking. 83 FR 17768 (April 2018 Notice of Petition for
Rulemaking). DOE requested comments on the petition, as well as any
data or information that could be used in DOE's determination whether
to proceed with the petition.
B. Summary of Public Comments
In response to the April 2018 Notice of Petition for Rulemaking,
DOE received a wide range of comments, including comments from an
industry association and dishwasher manufacturers, a state agency and
state officials, consumer organizations, utilities, energy efficiency
advocates, and individuals. Comments both favored and opposed granting
CEI's petition for rulemaking.
The Association of Home Appliance Manufacturers (AHAM) stated that
at this time, a separate product class is not justified, because
consumers already have access to shorter cycles, and that a new product
class with less stringent standards would cause stranded investments
and additional costs for manufacturers. (AHAM, No. 2233 at p. 1) AHAM
indicated, however, that lengthening cycle time is a ``critical
consumer welfare and policy issue . . . of enormous significance for
future, possible DOE dishwasher energy conservation standards
rulemakings.'' (AHAM, No. 2233 at p. 2) Danby, Sub-Zero, and GE
Appliances expressed support for AHAM's comments. (Danby, No. 1785 at
p. 2; Sub-Zero, No. 2235 at p. 1; GE Appliances, No. 1801 at p. 1)
The California Energy Commission (CEC) opposes the CEI petition,
commenting that a short-cycle dishwasher does not meet the statutory
requirements for establishing a separate product class and additionally
that the anti-backsliding provision would prohibit establishing a less
stringent standard for any such product class. (CEC, No. 2247 at p. 1)
CEC commented that cycle times already exceeded one hour prior to the
establishment of an energy conservation standard by Congress and that
information provided by CEI does not demonstrate any causal
relationship between cycle time and energy conservation standards.
(CEC, No. 2247 at pp. 6-7) The State Attorneys General from Arizona,
Arkansas, Louisiana, Oklahoma, and South Carolina (State Attorneys
General) commented in support of the petition stating that it would
provide improved
[[Page 33871]]
consumer choice. (State Attorneys General, No. 2238 at p. 1)
The California Investor Owned Utilities \2\ (CA IOUs) recommended
DOE reject the petition, commenting that a separate product class for
dishwashers with a shorter cycle is not permissible under statute and
that longer cycle time is not being driven by energy conservation
standards. (CA IOUs, No. 1800 at pp. 1 and 3)
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\2\ The CA IOUs are the Pacific Gas and Electric Company,
Southern California Gas Company, San Diego Gas and Electric, and
Southern California Edison.
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The Consumers Union recommended that DOE deny the CEI petition for
rulemaking, stating that there is no need for a separate product class
and such a product class would risk undermining the current energy
efficiency standard. (Consumers Union, No. 2250 at p. 1) The Sixty Plus
Association supports the CEI petition to reduce the cycle time of
dishwashers to reduce the costs associated with the time and
electricity it takes to perform the current dishwasher cycles.\3\
(Sixty Plus, No. 2230 at p. 1)
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\3\ Sixty Plus Association also discussed the approved
collection of information under Paperwork Reduction Act for the DOE
Appliance Standards Program (OMB Control Number 1910-1400), which
includes reporting requirements for manufacturers of dishwashers for
the purpose of certifying compliance with the applicable standards.
(Sixty Plus, No. 2230 at pp. 1-2) To the extent that establishment
of a new product class for dishwashers would require a change in the
current burden hours associated with compliance with the dishwasher
energy conservation standards, DOE would address such change in a
separate notice and provide additional opportunity for comment.
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The Northwest Energy Efficiency Alliance (NEEA) stated that based
on the data it submitted, DOE cannot conclude that even a small number
of households would place any value on a dishwasher that can wash
dishes in an hour or less. (NEEA, No. 1789-1 at p. 2) The Appliance
Standards Awareness Project, Consumer Federation of America, Natural
Resources Defense Council, and Northeast Energy Efficiency Partnerships
(Joint Commenters); Earthjustice and Sierra Club; and the Northwest
Power and Conservation Council (NPCC) recommended that DOE deny the CEI
petition, stating that a product class for such dishwashers is not
justified under 43 U.S.C. 6295(q) and would violate EPCA's anti-
backsliding provision. (Joint Commenters, No. 2237 at p. 1;
Earthjustice and Sierra Club, No. 2245 at pp. 1-2; NPCC, No. 2232 at p.
1) NPCC stated that a separate product class as requested by CEI would
increase uncertainty in utility resource planning. (NPCC, No. 2232 at
p. 1) The Joint Commenters stated that the energy conservation
standards have not been the main driver in increased cycle times,
noting that based on the data submitted by CEI, the greatest increase
in cycle time occurred during a long period when no new standards were
adopted. (Joint Commenters, No. 2237 at p. 3) The Joint Commenters
added that the increase in cycle time was likely the result of
manufacturer design choices intended to improve washing performance,
detergent changes, and consumer demand for quiet and efficient
machines. (Joint Commenters, No. 2237 at p. 3)
DOE also received numerous comments from individuals that addressed
a wide range of issues.\4\ Some of the comments explicitly supported
CEI's petition for rulemaking. Other comments expressed general
disapproval with energy efficiency standards for appliances,
dissatisfaction with the current cycle times and cleaning performance
of dishwashers as compared to previously available models, as well as
support for energy efficient dishwashers. One individual stated that
the petition has not demonstrated that cycle time is a utility feature
that warrants a separate product class. The commenter stated that a
review of manufacturer literature shows that at least eight appliance
manufacturers offer consumer-selected cycles with a duration of less
than one hour and that having the option to select at least one cycle
with a duration of an hour or less would seem to satisfy the
petitioner's request. The commenter also expressed the view that
standards for the product class requested by the petitioner would need
to meet or exceed currently applicable dishwasher standards to satisfy
EPCA's anti-backsliding provision. (McCabe, No. 0004 at 1-2)
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\4\ Comments are available at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=EERE-2018-BT-STD-0005.
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II. Authority To Establish a Separate Class of Dishwashers
In evaluating CEI's petition and proposing to establish a separate
product class for dishwashers that wash and dry dishes in less than an
hour, DOE has determined that under 42 U.S.C. 6295(q), dishwashers with
a ``normal cycle'' time of less than one hour as described by CEI have
a performance-related feature that other dishwashers do not have and
that justifies a separate product class subject to a higher or lower
standard than that currently applicable to dishwashers. In any
rulemaking to establish energy conservation standards for such a
product class, DOE would be required to consider EPCA's anti-
backsliding provision at 42 U.S.C. 6295(o)(1). DOE addresses these
issues below.
A. Separate Product Class--One-Hour Normal Cycle
CEI petitioned DOE to establish a separate product class for
dishwashers that have a cycle time of less than one hour from washing
through drying. (CEI Petition, No. 0006 at p. 1) Under the current test
procedure and energy conservation standards, dishwashers are tested and
evaluated for compliance when operated on the ``normal cycle.''
Appendix C1, sections 2.6.1, 2.6.2, 2.6.3. ``Normal cycle'' is the
cycle, including washing and drying temperature options, recommended in
the manufacturer's instructions for daily, regular, or typical use to
completely wash a full load of normally soiled dishes, including the
power-dry setting. Appendix C1, section 1.12. Manufacturers may add
additional cycles to dishwashers, but those additional cycles are not
tested. Although CEI's initial petition did not specify the cycle that
would be limited to one hour under the separate product class, CEI
provided information supplemental to its petition clarifying the
request for a new product class for dishwashers for which the normal
cycle is less than one hour.\5\
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\5\ See document ID EERE-2018-BT-STD-0005-0007 available on
http://www.regulations.gov.
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EPCA directs that when prescribing an energy conservation standard
for a type (or class) of a covered product DOE must specify--
[A] level of energy use or efficiency higher or lower than that
which applies (or would apply) for such type (or class) for any group
of covered products which have the same function or intended use, if
DOE determines that covered products within such a group--
(A) consume a different kind of energy from that consumed by other
covered products within such type (or class); or
(B) have a capacity or other such performance-related feature which
other products within such type (or class) do not have and such feature
justifies a higher or lower standard from that which applies (or will
apply) to other products within such type.
In making a determination concerning whether a performance-related
feature justifies the establishment of a higher or lower standard, DOE
must consider such factors as the utility to the consumer of such a
feature, and such other factors as DOE deems appropriate.
[[Page 33872]]
(42 U.S.C. 6295(q)(1))
In prior rulemakings, DOE has taken the view that utility is an
aspect of the product that is accessible to the layperson and based on
user operation, rather than performing a theoretical function. This
interpretation has been implemented in DOE's previous determinations of
utility through the value the particular feature brings to the
consumer, rather than through analyzing more complicated design
features or costs that anyone, including the consumer, manufacturer,
installer, or utility companies may bear. DOE has determined that this
approach is consistent with EPCA requiring a separate and extensive
analysis of economic justification for the adoption of any new or
amended energy conservation standard. 80 FR 13120, 13137 (Mar. 12,
2015); 81 FR 65720, 65752-65755 (Sept, 23, 2016). Under this approach,
DOE determined that the window in an oven door was a ``feature''
justifying a different standard.\6\ Similarly, DOE also determined that
consumers may value other features such as the ability to self-
clean,\7\ size,\8\ and configuration.\9\ In contrast, DOE determined
that water heaters using electric resistance technology did not merit a
product class separate from water heaters using heat pump
technology.\10\ In both heat-pump and electric storage water heaters,
the same utility (hot water) was provided by units using different
technology.
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\6\ 63 FR 48038, 48041 (Sept. 8, 1998).
\7\ 73 FR 62034, 62048 (Oct. 17, 2008) (separating standard and
self-cleaning ovens into different product classes).
\8\ 77 FR 32037, 32319 (May 31, 2012) (creating a separate
product class for compact front-loading residential clothes
washers).
\9\ 75 FR 59469 (Sept. 27, 2010) (creating a separate product
class for refrigerators with bottom-mounted freezers).
\10\ 74 FR 65852, 65871 (Dec. 11, 2009).
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In a rulemaking to amend standards applicable to commercial clothes
washers, DOE determined that the ``axis of loading'' constituted a
feature that justified separate product classes for top loading and
front loading clothes washers. DOE also determined that ``the longer
average cycle time of front-loading machines warrants consideration of
separate [product] classes,''. 79 FR 74492, 74498 (Sept. 15, 2014). DOE
stated that a split in preference between top loaders and front loaders
would not indicate consumer indifference to the axis of loading, but
rather that a certain percentage of the market expresses a preference
for (i.e., derives utility from) the top-loading configuration. DOE
further noted that separation of clothes washer equipment classes by
location of access is similar in nature to the equipment classes for
residential refrigerator-freezers, which include separate product
classes based on the access of location of the freezer compartment
(e.g., top mounted, side-mounted, and bottom-mounted). The location of
the freezer compartment on these products provides no additional
performance-related utility other than consumer preference. In other
words, the location of access itself provides distinct consumer
utility. Id. at 79 FR 74499. DOE also reasoned that top-loading
residential clothes washers are available with the same efficiency
levels, control panel features, and price points as front-loading
residential clothes washers, and that given these equivalencies,
purchase of top loaders indicates a preference among certain consumers
for the top-loading configuration, i.e., the top-loading configuration
provides utility to those customers preferring one configuration over
another, with all other product attributes being equal. Id.
DOE acknowledged that its determination of what constitutes a
performance-related feature justifying a different standard could
change depending on the technology and the consumer, and that as a
result, certain products may disappear from the market entirely due to
shifting consumer demand. DOE determines such value on a case-by-case
basis through its own research as well as public comments received, the
same approach that DOE employs in all other parts of its energy
conservation standards rulemaking. (80 FR 13120, 13138, Mar. 12, 2015).
DOE applies this same approach to dishwashers in this proposed
rule. Specifically, data provided by CEI indicate that dishwasher cycle
times have increased significantly, from an average cycle time of 69
minutes in 1983 (the first year data was submitted) to 140 minutes in
2018. (CEI Petition, No. 0006, supporting data). In addition, while
some consumers commented that they were not concerned with a shorter
cycle time, a significant number of consumers expressed dissatisfaction
with the amount of time necessary to run their dishwashers. (See docket
for this rulemaking at https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0005). The data and comments from dissatisfied consumers
indicate that for many consumers, there is a utility in shorter cycle
times to clean a normally-soiled load of dishes. Based on all of the
comments, data and information received, DOE concludes, similar to its
conclusion with respect to clothes washers, that cycle time for
dishwashers is a performance-related feature for purposes of 6295(q)
that justifies a higher or lower standard than that applicable to other
dishwasher product classes. The average cycle time of 69 minutes
specified in CEI's data for 1983 is just slightly longer than the 60
minutes offered in its petition, supporting DOE's proposal to establish
a product class for dishwashers with a normal cycle of less than 1
hour. DOE seeks comment, however, on whether the one hour timeframe
should be adjusted to avoid inadvertently eliminating dishwashers with
short cycle times of, for example, 70-75 minutes or some other
timeframe shorter than the current 140 minute average cycle time
represented in CEI's data for 2018, so that DOE may consider whether a
different cycle time is appropriate in the final rule.
B. EPCA's Anti-Backsliding Provision
In any rulemaking to establish standards for a separate product
class as described in CEI's petition, DOE must consider EPCA's general
prohibition against prescribing ``any amended standard which increases
the maximum allowable energy use, or, in the case of showerheads,
faucets, water closets, or urinals, water use, or decreases the minimum
required energy efficiency, of a covered product.'' (42 U.S.C.
6295(o)(1); the ``anti-backsliding provision'') The anti-backsliding
provision must be read in conjunction with the authority provided to
DOE in 42 U.S.C. 6295(q) to specify ``a level of energy use or
efficiency higher or lower than that which applies (or would apply) for
such type or class . . .'' if the Secretary determines that covered
products within such group consume a different type of energy or have a
capacity or other performance-related feature that justifies ``a higher
or lower standard from that which applies (or will apply) to other
products within such type (or class).'' 42 U.S.C. 6295(q) (emphasis
added). EPCA explicitly acknowledges, therefore, that product features
may arise that require designation of a product class with a standard
lower than that applicable to other product classes for that covered
product.
Specifically, by using the present tense, ``a higher or lower
standard than that which applies,'' EPCA authorizes DOE to reduce the
stringency of the standard currently applicable to the products covered
under the newly established separate product class. The applicability
of this provision to current standards is further evidenced by the
additional reference to standards that are not yet applicable (i.e.,
standards
[[Page 33873]]
that ``would apply.'') If 42 U.S.C. 6295(q)(1) were only to operate in
instances in which standards have not yet been established, there would
be no need to separately indicate the applicability to future
standards. Nor would there be any purpose to calling out the potential
for higher or lower standards since there would not be any standards
against which to measure that potential. In this manner, 42 U.S.C.
6295(q) authorizes DOE to reduce the stringency of a currently
applicable standard upon making the determinations required by 42
U.S.C. 6295(q).
This reading of the statutory text recognizes that section 6295(q)
of EPCA cannot be read to prohibit DOE from establishing standards that
allow for technological advances or product features that could yield
significant consumer benefits while providing additional functionality
(i.e., consumer utility) to the consumer. DOE relied on this concept
when, in 2011, DOE established separate energy conservation standards
for ventless clothes dryers, reasoning that the ``unique utility''
presented by the ability to have a clothes dryer in a living area where
vents are impossible to install (i.e., a high-rise apartment) merited
the establishment of a separate product class. 76 FR 22454, 22485 (Apr.
21, 2011). Another example of this that DOE is just beginning to
explore is network connectivity of covered products. See DOE's Smart
Products RFI at 83 FR 46886 (Sept. 18, 2018). Network connectivity is a
technology that has only recently begun to appear on the market.
Moreover, it clearly has a desirable consumer utility and is a fast-
growing feature of new models of covered products. However, network
connectivity comes with attendant energy use. EPCA's anti-backsliding
provision cannot be read to prohibit DOE from establishing standards
that allow for covered products to be connected to a network simply
because standards for those products were established prior to the time
that network connectivity was even contemplated, and thereby
eliminating the ability to implement this consumer-desired option.
Similarly, for dishwashers, 42 U.S.C. 6295(q) authorizes DOE to
establish standards for product features that provide consumer utility,
such as shorter cycle times.
This interpretation is consistent with DOE's previous recognition
of the importance of technological advances that could yield
significant consumer benefits in the form of lower energy costs while
providing the same functionality to the consumer. 80 FR 13120, 13138
(Mar. 12, 2015); 81 FR 65720, 65752 (Sept. 23, 2016). In the proposed
and supplemental proposed rule to establish standards for residential
furnaces, DOE stated that tying the concept of feature to a specific
technology would effectively ``lock-in'' the currently existing
technology as the ceiling for product efficiency and eliminate DOE's
ability to address such technological advances. Id.
Further, EPCA's anti-backsliding provision is limited in its
applicability with regard to water use to four specified products,
i.e., showerheads, faucets, water closets, or urinals. DOE's existing
energy conservation standard for dishwashers is comprised of both
energy and water use components. As dishwashers are not one of the
products listed in anti-backsliding provision with respect to water
use, there is no prohibition on DOE specifying a maximum amount of
water use for dishwashers that is greater than the existing standard
without regard to whether DOE were to establish a separate product
class for dishwashers as proposed in this proposed rule.
Finally, DOE recognizes that 42 U.S.C. 6295(o)(4) prohibits DOE
from establishing standards that would result in the unavailability of
any covered product type (or class) of performance characteristics
(including reliability), features, sizes, capacities and volumes that
are substantially the same as those generally available at the time of
the Secretary's finding. CEI makes the point that despite this
prohibition, it appears that dishwasher cycle times have been impaired
by the DOE standards and that many machines with shorter cycle times
are no longer available. (CEI Petition, No. 0006 at p. 4) Section
6295(q) of EPCA authorizes DOE to set standards that recognize new
technologies and product features, or in this case, features that are
no longer available in the market. This reading of the statute is
consistent with DOE's previous acknowledgement that its determination
of what constitutes a performance-related feature justifying a
different standard could change depending on the technology and the
consumer utility, and that as a result, certain products may disappear
from (or in the case of dishwashers, reappear in) the market entirely
due to shifting consumer demand. This reading is also consistent with
DOE's statements that DOE determines this value on a case-by-case basis
through its own research as well as public comments received. (80 FR
13120, 13138, Mar. 12, 2015). In addition, once DOE makes a
determination that a certain product attribute is a feature, DOE cannot
later set a standard that would eliminate that feature.
III. Conclusion
After reviewing CEI's petition and comments received on the
petition, DOE has concluded it has legal authority to establish a
separate product class as suggested by CEI pursuant to 42 U.S.C.
6295(q). DOE proposes to establish a separate product class for
dishwashers with a cycle time of the cycle recommended by the
dishwasher manufacturer for daily, regular, or typical use to
completely wash and dry a full load of normally soiled dishes (i.e.,
the normal cycle time) of less than one hour. DOE will consider energy
conservation standards in a separate rulemaking, should such a product
class (or classes) be established.
DOE also proposes to update the requirements for the dishwasher
standards in 10 CFR 430.32(f). The current requirement includes a table
that specifies the obsolete energy factor requirements for standard and
compact dishwashers. This table was intended to be removed in a final
rule for dishwasher energy conservation standards published on December
13, 2016, but was inadvertently retained by the amendatory instructions
for paragraph (f). 81 FR 90072, 90120. DOE proposes to remove this
table and add a new paragraph (f)(1)(iii) that specifies standard
dishwashers with a normal cycle of 60 minutes or less are not currently
subject to energy or water conservation standards. Additionally, DOE
proposes to amend paragraphs (f)(1)(i) and (f)(1)(ii) to clarify the
terms ``standard'' and ``compact'' and to include reference to the
ANSI/AHAM DW-1-2010 standard, which is the current industry standard
referenced in the dishwasher test procedure at 10 CFR part 430, subpart
B, appendix C1.
IV. Rulemaking Overview and Response to Comments
A. Rulemaking Overview
DOE proposes to establish a separate product class or classes
pursuant to 42 U.S.C. 6295(q)(1) for dishwashers with a cycle time of
the cycle recommended by the dishwasher manufacturer for daily,
regular, or typical use to completely wash and dry a full load of
normally soiled dishes (i.e., the normal cycle time) of less than one
hour. DOE seeks comment on other potential time limits or utilities to
delineate the separate product class. DOE also seeks comment on whether
a short-cycle product class should be established for standard
[[Page 33874]]
dishwashers, compact dishwashers, or both.
Should DOE finalize a separate product class, DOE would then
evaluate energy and water consumption limits to determine a standard
for the product class that provides for the maximum energy efficiency
that is technologically feasible and economically justified, and will
result in a significant conservation of energy. (42 U.S.C.
6295(o)(2)(A)) DOE will provide additional opportunity for comment on
any proposed energy conservation standard for short-cycle dishwashers.
B. Response to Comments
AHAM commented that while it did not currently support a separate
product class for dishwashers with cycle times of one hour or less, CEI
raised a ``critical consumer welfare and policy issue'' that is of
``enormous significance for future, possible DOE dishwasher energy
conservation standards rulemakings. AHAM noted that AHAM had raised
lengthening cycle times for the normal cycle as a concern in a previous
dishwasher rulemaking. (AHAM, No. 2333 at p. 2-4) Earthjustice and
Sierra Club commented that DOE has already considered the utility of
cycle time in prior rulemakings, finding that the current energy
conservation standards do not impermissibly impact utility.
(Earthjustice and Sierra Club, No. 2245 at p. 3)
AHAM cited U.S. Energy Information Administration's (EIA)
Residential Energy Conservation Survey (RECS) 2015 data, that show over
80 percent of U.S. households use the normal cycle. (AHAM, No. 2333 at
p. 3) Consumers Union cited its Consumer Reports' 2017 Spring
Dishwashers Survey of 74,880 Consumer Reports members who purchased a
new dishwasher between 2007 and 2017, in which it found: 87 percent of
survey respondents reported that their most frequently used cycle was
the either the ``Normal/Regular'' or ``Auto/Smart'' cycle, and 66
percent of respondents reported using the ``Normal/Regular'' cycle more
than 50 percent of the time; only 6 percent of survey respondents
reported that their most frequently used cycle was the ``Quick/Express/
1-hour'' cycle; 27 percent of survey respondents reported using the
``Quick/Express/1-hour'' cycle at least some of the time, and the
reported usage of the ``Quick/Express/1-hour'' cycle was similar to
reported usage of other non-normal cycles such as ``Heavy Duty'' or
``Pots & Pans.'' (Consumers Union, No. 2250 at p. 2) In response to an
inquiry from CEI, Consumers Union stated that it had not yet decided
whether to publish the survey results and underlying methodology on
which these numbers are based.
The Joint Commenters and NEEA cited data from the Residential
Building Stock Assessment showing that there are two peaks in daily
dishwasher use, one around breakfast time and a larger one around
dinner time. (Joint Commenters, No. 2237 at p. 2; NEEA, No. 1789-2 at
p. 2) Similarly, the CA IOUs stated that 55 percent of dishwashers were
run after 5 p.m., 28 percent between 9 a.m. and 5 p.m., and 17 percent
before 9 a.m., suggesting that cycle time does not have a significant
impact on consumer utility. (CA IOUs, No. 1800 at p. 5) GE Appliances
stated that data based on its Wi-Fi enabled dishwashers indicate that
most consumers run the dishwasher in the evening after dinner time and
that the average consumer waits approximately eight hours after the
cycle is complete to unload the dishes, indicating that cycle time is
not a primary concern for many consumers. (GE Appliances, No. 1801 at
p. 2) Both NEEA and CA IOUs further stated that there did not appear to
be any cases where multiple, consecutive loads were run, indicating
that multiple loads are a relatively rare event and do not need to be
accounted for. (NEEA, No. 1789-2 at p. 4; CA IOUs, No. 1800 at p. 5)
The Joint Commenters stated that if cycle time was highly valued by
consumers, it would be expected that most dishwashers would consume as
much energy and water as is allowed by the minimum standards in order
to reduce cycle time as much as possible, but that data show that
almost all dishwasher sales meet ENERGY STAR requirements. (Joint
Commenters, No. 2237 at p. 6) Earthjustice and Sierra Club commented
that in DOE's prior analyses, it identified technologies that could
provide improved cycle times while still enabling the dishwasher to
meet the energy conservation standard (e.g., soil sensors and
alternative drying technologies), and that if consumers were demanding
shorter cycle times, such technologies would be widely adopted.
(Earthjustice and Sierra Club, No. 2245 at pp. 3-4)
A significant number of consumers, by contrast, indicated
dissatisfaction with the length of time the dishwasher took to clean
dishes. (See docket for this rulemaking at https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0005.) Approximately a third of the more than
2,000 commenters responding to the RFI referenced the extensive length
of time required for the dishwasher to run a normal cycle. One
commenter stated that their ``new dishwasher takes 219 minutes to
complete a cycle . . . far too long and the dishes don't seem to be as
clean as with the old unit.'' (Ballard, No. 1827 p. 1) A number of
commenters stated that they choose not to use their dishwasher because
of the length of time it takes to clean dishes. One individual noted
that they no longer own a dishwasher, and instead prefer to wash dishes
by hand as it is ``faster than waiting the 2 to 4 hours for the washing
cycle to complete,'' (Harvey, No. 2227 p. 1)), another commenter noted
that they have ``resort[ed] to disposable plates and utensils due to
current dishwasher specs'' including a ``run cycle [of] four hours,''
(Weingrad, No. 85 p. 1), while a third commenter stated that they
stopped using their dishwasher because ``it takes so long . . . to do
the job . . . and . . . raised the utilities so much that we can't
afford to use them,'' (Cravens, No. 54 p. 1).
In response to commenters, DOE refers to its discussion in section
II.A. on the utility of cycle time. As described, data provided by CEI
indicates that dishwasher cycle times have increased significantly,
from an average cycle time of 69 minutes in 1983 (the first year data
was submitted) to 140 minutes in 2018. (CEI Petition, No. 0006,
supporting data). In addition, while some consumers commented that they
were not concerned with a shorter cycle time, a significant number of
consumers commented to express dissatisfaction with the amount of time
necessary to run their dishwashers. (See docket for this rulemaking at
https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0005.) Contrary
to the assertions of some commenters that the available data on when
dishwashers are run (i.e., typically after breakfast or in the evening)
suggest that cycle time is of little utility, a different
interpretation could be that consumers already know that their
dishwasher will take a long time to run, and therefore decide to wait
and run it before bed and empty it in the morning, regardless of
whether they would prefer to run it at a different time. The data and
numerous comments from consumers dissatisfied with the length of time
it takes to run their dishwasher indicate that for some significant
percentage of consumers, there is a utility in shorter cycle times to
clean a normally-soiled load of dishes.
Additionally, the data referenced by Consumers Union and AHAM do
not indicate if and to what extent a segment of consumers relies on a
reduced-time cycle for their typical dishwasher usage, or what
percentage of consumers would rely on a reduced-time cycle if it were
available in the ``normal cycle''. The
[[Page 33875]]
data submitted by Consumers Union nonetheless indicate that there is a
segment of dishwasher consumers that rely on a reduced-time cycle as
the ``most frequently used'' cycle and as the cycle used ``some of the
time,'' suggesting that some portion of consumers finds utility in a
reduced cycle time. What is not clear from the data is whether an even
larger percentage of consumers would find such utility if the reduced
cycle time were offered in the normal cycle.
The time-of-day data submitted by CA IOUs and NEEA do not indicate
the cycle being chosen by consumers and do not indicate whether a
segment of consumers chooses to operate dishwashers on reduced-time
cycles. While commenters interpret the time-of-day data to show that a
percentage of dishwasher use occurs when consumers may not be concerned
with the length of the cycle, data also show that a percentage of
dishwasher use occurs when length of cycle may be a concern (e.g., use
in late afternoon prior to dinner). In addition, the data may also
suggest a different interpretation than that offered by commenters--
i.e., that the reason the time-of-day data show dishwasher use after
breakfast or dinnertime is because consumers who might otherwise wash
their dishes at a more convenient time are choosing to start the cycle
early in the day, or wait until late in the day, because they already
know their dishwasher will take a long time to operate.
Additionally, DOE does not find data indicating lack of consecutive
dishwasher runs informative to its decision to propose a product class
for short cycle dishwashers. The lack of consecutive runs does not
indicate whether some consumers find utility in having a single load of
dishes washed and dried in a shorter period of time. It also does not
capture those consumers that may be unable to perform consecutive
dishwasher runs because of the length of time it takes to perform a
single run, requiring these consumers to rely on alternatives (e.g.,
washing dishes by hand).
Commenters stated that in addition to the normal cycle, numerous
dishwashers have a cycle that has a shorter cycle time. Consumers Union
noted that the DOE test procedure requires testing of the normal cycle
to meet the standards, but stated that manufacturers are free to add
additional cycles that are not limited in energy and water consumption.
(Consumers Union, No. 2250 at p. 2) The Joint Commenters pointed to
several dishwashers on the market that advertise ``1-Hour,'' ``Turbo,''
and ``Short Wash'' cycles. (Joint Commenters, No. 2237 at pp. 1-2) AHAM
commented that 86.7 percent of reported 2017 dishwasher shipments in a
recent AHAM survey provided consumers with a cycle that can wash and
dry the load in just over one hour. (AHAM, No. 2233 at p. 2) AHAM
further commented that 96.5 percent of the reported shipments offering
shorter cycles are ENERGY STAR-qualified, offering consumers energy and
water efficiency on the normal cycle and the option to use a shorter
cycle. (AHAM, No. 2233 at p. 3)
While dishwashers may offer reduced-time cycles, such cycles are
not the normal cycle; these cycles are not recommended, as DOE
currently defines the normal cycle, by the manufacturer for daily,
regular, or typical use to completely wash a full load of normally
soiled dishes including the power-dry feature. CEI stated that, based
on a review of user manuals, manufacturers intend the quick cycles to
be for lightly soiled dishes rather than normally soiled loads. For
example, CEI reports that the GE model PDT846SSJSS dishwasher has an
express cycle that, according to its manual, ``will quickly wash
lightly soiled dishes.'' The model's normal cycle ``is meant for daily,
regular, or typical use to completely wash a full load of normally
soiled dishes. . . .'' The Frigidaire model FGCD2456QF1B has a Quick
Wash cycle which is ``for lightly soiled dishes and silverware.'' The
manuals for other models also describe their express cycles as not
suitable for normally soiled dishes, and none of these models
reportedly have cycles for everyday use for normally soiled dishes that
take only an hour to run (drying time included). CEI, Supplemental
Information Regarding CEI's Petition for Rulemaking on a New Product
Class of Fast Dishwashers (March 28, 2018) (citations omitted). The CEI
petition therefore requested that DOE establish a product class that
would cover dishwashers with a cycle time, for the cleaning of a full
load of normally soiled dishes, of less than one hour from washing
through drying.
Consumer comment and survey results submitted by CEI indicate that
some percentage of the market finds utility in a dishwasher that
completely washes a full load of normally soiled dishes in a period of
time less than that provided by the normal cycle of products currently
offered. For these consumers, the utility of the dishwasher is not just
the ability to have dishes cleaned in a short period of time, but that
operation of the dishwasher as recommended by the manufacturer would
provide such function. One commenter noted that their dishwasher
``takes about two and a half hrs [sic] at the quickest cycle'' and does
not ``clean as well as [she] would like.'' (Buchter, No. 0295 at p. 1)
Similarly, one commenter indicated that ``[t]here is the option to
cycle [the dishwasher] for 1 hour but that's not the recommended or
best cycle,'' (Zahorchak, No. 1028 at p. 1), and another added that
while their dishwasher ``has shorter cycles . . . [of] 2\1/2\ hours,''
these cycles ``do not get the dishes clean,'' (Bowen, No. 2191 at p.
1).
V. Request for Comments, Data and Information
In this rulemaking, DOE proposes to establish a separate product
class for dishwashers with a cycle time of the cycle recommended by the
dishwasher manufacturer for daily, regular, or typical use to
completely wash and dry a full load of normally soiled dishes (i.e.,
the normal cycle time) of less than one hour. To inform its
consideration of the proposal and any future energy conservation
standards for such dishwashers, DOE requests additional data, including
shipments data, on the cycle time of the normal cycle of dishwashers
(both standard dishwashers and compact dishwashers) currently on the
market. DOE also requests data on the cycle time of reduced-time cycles
currently offered on standard and compact dishwashers and corresponding
shipments data, as well as the energy and water use of the reduced-time
cycles. DOE requests comment on whether any current technologies could
provide a ``normal'' wash and dry cycle in less than one hour and that
would allow a dishwasher to comply with the current energy conservation
standards, and whether such technologies are available for standard and
compact dishwashers.
In its petition, CEI requested use of a one-hour limit on the cycle
time to define the new product class of dishwashers. (CEI, No. 0006 at
p. 5) CEI stated that it was requesting one hour as the defining
characteristic for a new dishwasher class because this cycle time is
substantially below the normal cycle time for all current products on
the market. Id. DOE seeks comment on whether the 60 minutes offered by
CEI in its petition or some other length of time is appropriate to
delineate the short cycle product class.
To better understand the extent of the utility a short cycle would
potentially provide consumers, DOE requests comment and data for each
current product class on consumer use of reduced-time cycles as a
percentage of individual consumer dishwasher use, the cycle time of the
reduced-time
[[Page 33876]]
cycles selected, and the cycle time of the normal cycle of that
dishwasher. DOE also requests information on the operating demands that
may favor shorter cycle times. DOE also asks for data and information
on how dishwashers with express or quick wash cycles operate and how
those cycles compare to a ``normal cycle'' with regard to cleaning
dishes.
If DOE were to establish a separate product class (or classes) for
dishwashers with a cycle time of the cycle recommended by the
dishwasher manufacturer for daily, regular, or typical use to
completely wash and dry a full load of normally soiled dishes (i.e.,
the normal cycle time) of less than one hour, DOE would then determine
the maximum improvement in energy or water efficiency that is
technologically feasible and economically justified, and would result
in a significant conservation of energy, in order to establish an
energy conservation standard for such dishwashers. (42 U.S.C. 6295(o))
In analyzing the feasibility of potential energy conservation
standards, DOE uses information about existing and past technology
options and prototype designs to help identify technologies that
manufacturers could use to meet and/or exceed a given set of energy
conservation standards under consideration.
DOE seeks information on technologies currently used or that could
be used to achieve cycles with reduced time. DOE is interested in
information regarding their market adoption, costs, and any concerns
with incorporating them into products (e.g., impacts on consumer
utility, potential safety concerns, manufacturing/production/
implementation issues, etc.). DOE also seeks information on the range
of efficiencies or performance characteristics that are associated with
each technology option.
DOE also seeks input on the costs associated with incorporating
particular technologies and/or design options. DOE requests information
on the investments necessary to incorporate specific technologies and
design options, including, but not limited to, costs related to new or
modified tooling (if any), materials, engineering and development
efforts to implement each design option, and manufacturing/production
impacts.
DOE has identified a variety of issues on which it seeks input in
this rulemaking to establish a separate product class or classes and
the appropriate energy conservation standard for such a product class
(or classes) should it be established. Additionally, DOE welcomes
comments on other issues relevant to the conduct of this rulemaking
that may not specifically be identified in this document. In
particular, DOE notes that under Executive Order 13771, ``Reducing
Regulation and Controlling Regulatory Costs,'' Executive Branch
agencies such as DOE are directed to manage the costs associated with
the imposition of expenditures required to comply with Federal
regulations. See 82 FR 9339 (Feb. 3, 2017). Consistent with that
Executive Order, DOE encourages the public to provide input on measures
DOE could take to lower the cost of its energy conservation standards
rulemakings, recordkeeping and reporting requirements, and compliance
and certification requirements applicable to dishwashers while
remaining consistent with the requirements of EPCA.
VI. Submission of Comments
DOE invites all interested parties to submit in writing by
September 16, 2019, comments and information on matters addressed in
this notice and on other matters relevant to DOE's consideration of a
separate product class or classes for dishwashers with a cycle time of
the cycle recommended by the dishwasher manufacturer for daily,
regular, or typical use to completely wash and dry a full load of
normally soiled dishes (i.e., the normal cycle time) of less than one
hour. DOE also seeks comment on potential energy conservations
standards for such a class of dishwashers should one be established.
After the close of the comment period, DOE will review the public
comments received and begin collecting data and conducting the analyses
necessary to consider appropriate energy conservation standard levels.
Submitting comments via http://www.regulations.gov. The http://www.regulations.gov web page requires you to provide your name and
contact information. Your contact information will be viewable to DOE
Building Technologies Office staff only. Your contact information will
not be publicly viewable except for your first and last names,
organization name (if any), and submitter representative name (if any).
If your comment is not processed properly because of technical
difficulties, DOE will use this information to contact you. If DOE
cannot read your comment due to technical difficulties and cannot
contact you for clarification, DOE may not be able to consider your
comment.
However, your contact information will be publicly viewable if you
include it in the comment or in any documents attached to your comment.
Any information that you do not want to be publicly viewable should not
be included in your comment, nor in any document attached to your
comment. Persons viewing comments will see only first and last names,
organization names, correspondence containing comments, and any
documents submitted with the comments.
Do not submit to http://www.regulations.gov information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (CBI)). Comments submitted through
http://www.regulations.gov cannot be claimed as CBI. Comments received
through the website will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
DOE processes submissions made through http://www.regulations.gov
before posting. Normally, comments will be posted within a few days of
being submitted. However, if large volumes of comments are being
processed simultaneously, your comment may not be viewable for up to
several weeks. Please keep the comment tracking number that http://www.regulations.gov provides after you have successfully uploaded your
comment.
Submitting comments via email, hand delivery, or postal mail.
Comments and documents submitted via email, hand delivery, or postal
mail also will be posted to http://www.regulations.gov. If you do not
want your personal contact information to be publicly viewable, do not
include it in your comment or any accompanying documents. Instead,
provide your contact information on a cover letter. Include your first
and last names, email address, telephone number, and optional mailing
address. The cover letter will not be publicly viewable as long as it
does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. If you submit via mail or hand
delivery, please provide all items on a CD, if feasible. It is not
necessary to submit printed copies. No telefacsimiles (faxes) will be
accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not
[[Page 33877]]
secured, written in English and free of any defects or viruses.
Documents should not contain special characters or any form of
encryption and, if possible, they should carry the electronic signature
of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This reduces comment processing and posting
time.
Confidential Business Information. According to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email, postal mail, or hand delivery two well-marked copies: One copy
of the document marked confidential including all the information
believed to be confidential, and one copy of the document marked ``non-
confidential'' with the information believed to be confidential
deleted. Submit these documents via email to
[email protected] or on a CD, if feasible. DOE will
make its own determination about the confidential status of the
information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat
submitted information as confidential include: (1) A description of the
items, (2) whether and why such items are customarily treated as
confidential within the industry, (3) whether the information is
generally known by or available from other sources, (4) whether the
information has previously been made available to others without
obligation concerning its confidentiality, (5) an explanation of the
competitive injury to the submitting person which would result from
public disclosure, (6) when such information might lose its
confidential character due to the passage of time, and (7) why
disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
DOE considers public participation to be a very important part of
the process for developing energy conservation standards. DOE actively
encourages the participation and interaction of the public during the
comment period in each stage of the rulemaking process. Interactions
with and between members of the public provide a balanced discussion of
the issues and assist DOE in the rulemaking process. Anyone who wishes
to be added to the DOE mailing list to receive future notices and
information about this process or would like to request a public
meeting should contact Appliance and Equipment Standards Program staff
at (202) 287-1445 or via email at
[email protected].
VII. Procedural Requirements
A. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
This proposed rule is not a ``significant regulatory action'' under
any of the criteria set out in section 3(f) of Executive Order 12866,
``Regulatory Planning and Review.'' 58 FR 51735 (October 4, 1993).
Accordingly, this action was not subject to review by the Office of
Information and Regulatory Affairs (``OIRA'') in the Office of
Management and Budget (``OMB'').
B. Review Under Executive Orders 13771 and 13777
On January 30, 2017, the President issued Executive Order 13771,
``Reducing Regulation and Controlling Regulatory Costs.'' That Order
stated the policy of the executive branch is to be prudent and
financially responsible in the expenditure of funds, from both public
and private sources. The Order stated it is essential to manage the
costs associated with the governmental imposition of private
expenditures required to comply with Federal regulations.
Additionally, on February 24, 2017, the President issued Executive
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order
required the head of each agency designate an agency official as its
Regulatory Reform Officer (RRO). Each RRO oversees the implementation
of regulatory reform initiatives and policies to ensure that agencies
effectively carry out regulatory reforms, consistent with applicable
law. Further, E.O. 13777 requires the establishment of a regulatory
task force at each agency. The regulatory task force is required to
make recommendations to the agency head regarding the repeal,
replacement, or modification of existing regulations, consistent with
applicable law. At a minimum, each regulatory reform task force must
attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) Are outdated, unnecessary, or ineffective;
(iii) Impose costs that exceed benefits;
(iv) Create a serious inconsistency or otherwise interfere with
regulatory reform initiatives and policies;
(v) Are inconsistent with the requirements of Information Quality
Act, or the guidance issued pursuant to that Act, in particular those
regulations that rely in whole or in part on data, information, or
methods that are not publicly available or that are insufficiently
transparent to meet the standard for reproducibility; or
(vi) Derive from or implement Executive Orders or other
Presidential directives that have been subsequently rescinded or
substantially modified.
DOE has determined that this proposed rule is consistent with these
Executive Orders. The proposed rule grants a petition submitted to DOE
by the Competitive Enterprise Institute requesting that DOE establish a
product class for dishwashers with ``normal cycle'' times of one hour
or less from washing through drying. CEI asserted in its petition that
``dishwasher cycle times have become dramatically worse under DOE
standards, and consumer satisfaction has dropped as a result.'' (CEI,
No. 6 at p. 1) This proposed rule, if adopted, would establish the
product class requested by CEI. DOE also seeks data to assist its
determination of the appropriate standard levels for such product class
in a subsequent rulemaking.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process. 68 FR 7990. The Department
has made its procedures and policies available on the Office of General
Counsel's website: http://energy.gov/gc/office-general-counsel. This
proposed rule revises the Code of Federal Regulations to incorporate,
without substantive change, statutorily-imposed definitional changes
affecting coverage under current energy conservation standards,
applicable timelines related to certain rulemaking
[[Page 33878]]
requirements, and related provisions prescribed by Public Law 115-78
and Public Law 115-115, along with a separate correction to reflect the
current language found in the statute. This rulemaking grants a
petition from CEI to establish a product class for dishwashers with a
``normal cycle'' of less than one hour from washing through drying.
Appropriate standard levels would be established in a subsequent
rulemaking. As a result, no economic impact is expected from the
rulemaking.
D. Review Under the Paperwork Reduction Act of 1995
This rulemaking, which proposes to establish a product class for
dishwashers with a ``normal cycle'' of less than one hour from washing
through drying but does not set standards or establish testing
requirements for such dishwashers, imposes no new information or record
keeping requirements. Accordingly, Office of Management and Budget
clearance is not required under the Paperwork Reduction Act. (44 U.S.C.
3501 et seq.)
Manufacturers of covered products generally must certify to DOE
that their products comply with any applicable energy conservation
standards. To certify compliance, manufacturers must first obtain test
data for their products according to the DOE test procedures, including
any amendments adopted for those test procedures. DOE has established
regulations for the certification and recordkeeping requirements for
all covered consumer products and commercial equipment, including
ceiling fans. (See generally 10 CFR part 429.) The collection-of-
information requirement for the certification and recordkeeping is
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been approved by OMB under OMB control
number 1910-1400. Public reporting burden for the certification is
estimated to average 30 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
E. Review Under the National Environmental Policy Act of 1969
In this proposed rule, DOE proposes to establish a product class
for dishwashers with a ``normal cycle'' of one hour or less from
washing through drying. DOE has determined that this rule falls into a
class of actions that are categorically excluded from review under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
DOE's implementing regulations at 10 CFR part 1021. Specifically, this
proposed rule would only establish a new product class for dishwashers,
and, therefore, would not result in any environmental impacts. Thus,
this rulemaking is covered by Categorical Exclusion A5 under 10 CFR
part 1021, subpart D, which applies to any rulemaking that interprets
or amends an existing rule without changing the environmental effect of
that rule. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
F. Review Under Executive Order 13132, ``Federalism''
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. The Executive Order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. The Executive Order
also requires agencies to have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
On March 14, 2000, DOE published a statement of policy describing the
intergovernmental consultation process it will follow in the
development of such regulations. 65 FR 13735. EPCA governs and
prescribes Federal preemption of State regulations as to energy
conservation for the products that are the subject of this proposed
rule. States can petition DOE for exemption from such preemption to the
extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No
further action is required by Executive Order 13132.
G. Review Under Executive Order 12988, ``Civil Justice Reform''
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a proposed regulatory action likely to result in a rule that may
cause the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year (adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely
[[Page 33879]]
affect small governments. On March 18, 1997, DOE published a statement
of policy on its process for intergovernmental consultation under UMRA
(62 FR 12820) (also available at http://www.gc.doe.gov). This proposed
rule contains neither an intergovernmental mandate nor a mandate that
may result in the expenditure of $100 million or more in any year, so
these requirements under the Unfunded Mandates Reform Act do not apply.
I. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This proposed rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
J. Review Under Executive Order 12630, ``Governmental Actions and
Interference With Constitutionally Protected Property Rights''
The Department has determined, under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 53 FR 8859 (March 18, 1988), that this rule would
not result in any takings which might require compensation under the
Fifth Amendment to the United States Constitution.
K. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed this proposed rule under the OMB and DOE guidelines
and has concluded that it is consistent with applicable policies in
those guidelines.
L. Review Under Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use''
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
This proposed rule, which would establish a product class for
dishwashers with a ``normal cycle'' of one hour or less from washing
through drying, would not have a significant adverse effect on the
supply, distribution, or use of energy and, therefore, is not a
significant energy action. Accordingly, DOE has not prepared a
Statement of Energy Effects.
M. Description of Materials Incorporated by Reference
In this document, DOE proposes to incorporate by reference the
industry standard published by ANSI/AHAM, titled ``Household Electric
Dishwashers,'' ANSI/AHAM DW-1-2010. ANSI/AHAM DW-1-2010 is an industry-
accepted standard to measure the energy and water consumption of
residential dishwashers and is already incorporated by reference for
the current dishwasher test procedure at 10 CFR part 430, subpart B,
appendix C1. In this document, DOE proposes to incorporate by reference
this industry consensus standard at 10 CFR 430.32(f), which specifies
the energy conservation standards for compact and standard dishwashers,
for the purpose of distinguishing the standard and compact product
classes pursuant to the industry standard.
Copies of ANSI/AHAM DW-1-2010 may be purchased from AHAM at 1111
19th Street NW, Suite 402, Washington, DC 20036, 202-872-5955, or by
going to http://www.aham.org.
VIII. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this proposed
rule.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Incorporation
by reference, and Small businesses.
Signed in Washington, DC, on June 28, 2019.
Daniel R Simmons,
Assistant Secretary, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, DOE proposes to amend
part 430 of title 10 of the Code of Federal Regulations as set forth
below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
0
1. The authority citation for part 430 continues to read as follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
Sec. 430.3 [Amended]
0
2. Section 430.3 paragraph (i)(2) is amended by adding the words
``Sec. 430.32 and'' immediately before the words ``appendix C1''.
0
3. Section 430.32 is amended by revising paragraph (f) to read as
follows:
Sec. 430.32 Energy and water conservation standards and their
compliance dates.
* * * * *
(f) Dishwashers. (1) All dishwashers manufactured on or after May
30, 2013, shall meet the following standard--
(i) Standard size dishwashers (capacity equal to or greater than
eight place settings plus six serving pieces as specified in ANSI/AHAM
DW-1-2010 (incorporated by reference, see Sec. 430.3) using the test
load specified in section 2.7 of appendix C1 in subpart B of this part)
shall not exceed 307 kwh/year and 5.0 gallons per cycle.
(ii) Compact size dishwashers (capacity less than eight place
settings plus six serving pieces as specified in ANSI/AHAM DW-1-2010
(incorporated by reference, see Sec. 430.3) using the test load
specified in section 2.7 of appendix C1 in subpart B of this part)
shall not exceed 222 kwh/year and 3.5 gallons per cycle.
[[Page 33880]]
(iii) Standard size dishwashers with a ``normal cycle'', as defined
in section 1.12 of appendix C1 in subpart B of this part, of 60 minutes
or less are not currently subject to energy or water conservation
standards.
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(2) [Reserved].
* * * * *
[FR Doc. 2019-14545 Filed 7-15-19; 8:45 am]
BILLING CODE 6450-01-P