[Federal Register Volume 89, Number 155 (Monday, August 12, 2024)]
[Rules and Regulations]
[Pages 65520-65534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17474]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2014-BT-STD-0005]
RIN 1904-AF57
Energy Conservation Program: Energy Conservation Standards for
Consumer Conventional Cooking Products
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Direct final rule; confirmation of effective and compliance
dates.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Energy (``DOE'') published a direct
final rule to establish new and amended energy conservation standards
for consumer conventional cooking products in the Federal Register on
February 14, 2024. DOE has determined that the comments received in
response to the direct final rule do not provide a reasonable basis for
withdrawing the direct final rule. Therefore, DOE provides this
document confirming the effective and compliance dates of those
standards.
DATES: The effective date of June 13, 2024, for the direct final rule
published on February 14, 2024 (89 FR 11434) is confirmed. Compliance
with the standards established in the direct final rule will be
required on January 31, 2028.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, public meeting
[[Page 65521]]
attendee lists and transcripts, comments, and other supporting
documents/materials, is available for review at www.regulations.gov.
All documents in the docket are listed in the www.regulations.gov
index. However, not all documents listed in the index may be publicly
available, such as information that is exempt from public disclosure.
The docket web page can be found at www.regulations.gov/docket/EERE-2014-BT-STD-0005. The docket web page contains instructions on how
to access all documents, including public comments, in the docket.
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].
FOR FURTHER INFORMATION CONTACT:
Dr. Carl Shapiro, 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) 287-5649. Email: [email protected].
Mr. Pete Cochran, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 586-4798. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority
II. Consumer Conventional Cooking Products Direct Final Rule
A. Background
III. Comments on the Direct Final Rule
A. General Comments
B. Anti-Backsliding
C. Economic Justification
D. Significant Conservation of Energy
E. Unavailability of Performance Characteristics
F. Stakeholder Representation
G. Responses to Previous Stakeholder Comments
H. Formal Rulemaking
I. Other Legal Concerns
IV. Impact of Any Lessening of Competition
V. Conclusion
I. Authority
The Energy Policy and Conservation Act, Public Law 94-163, as
amended (``EPCA''),\1\ authorizes DOE to issue a direct final rule
establishing an energy conservation standard for a product on receipt
of a statement submitted jointly by interested persons that are fairly
representative of relevant points of view (including representatives of
manufacturers of covered products, States, and efficiency advocates),
as determined by the Secretary of Energy (``Secretary''), that contains
recommendations with respect to an energy or water conservation
standard that are in accordance with the provisions of 42 U.S.C.
6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. (42 U.S.C.
6295(p)(4))
---------------------------------------------------------------------------
\1\ All references to EPCA in this document refer to the statute
as amended through the Energy Act of 2020, Public Law 116-260 (Dec.
27, 2020), which reflect the last statutory amendments that impact
Parts A and A-1 of EPCA.
---------------------------------------------------------------------------
The direct final rule must be published simultaneously with a
notice of proposed rulemaking (``NOPR'') that proposes an energy or
water conservation standard that is identical to the standard
established in the direct final rule, and DOE must provide a public
comment period of at least 110 days on this proposal. (42 U.S.C.
6295(p)(4)(A)-(B)) Not later than 120 days after issuance of the direct
final rule, DOE shall withdraw the direct final rule if: (1) DOE
receives one or more adverse public comments relating to the direct
final rule or any alternative joint recommendation; and (2) based on
the rulemaking record relating to the direct final rule, DOE determines
that such adverse public comments or alternative joint recommendation
may provide a reasonable basis for withdrawing the direct final rule.
(42 U.S.C. 6295(p)(4)(C)) If DOE makes such a determination, DOE must
proceed with the NOPR published simultaneously with the direct final
rule and publish in the Federal Register the reasons why the direct
final rule was withdrawn. (Id.)
After review of comments received, DOE has determined that it did
receive adverse comments on the direct final rule. However, based on
the rulemaking record, the comments did not provide a reasonable basis
for withdrawing the direct final rule under the provisions in 42 U.S.C.
6295(p)(4)(C). As such, DOE did not withdraw this direct final rule and
the DFR remains effective. Although not required under EPCA, where DOE
does not withdraw a direct final rule, DOE typically publishes a
summary of the comments received during the 110-day comment period and
its responses to those comments. This document contains such a summary,
as well as DOE's responses to the comments.
II. Consumer Conventional Cooking Products Direct Final Rule
A. Background
The National Appliance Energy Conservation Act of 1987 (``NAECA''),
Public Law 100-12, amended EPCA to establish prescriptive standards for
gas cooking products, requiring gas ranges and ovens with an electrical
supply cord that are manufactured on or after January 1, 1990, not to
be equipped with a constant burning pilot light. (42 U.S.C. 6295(h)(1))
NAECA also directed DOE to conduct two cycles of rulemakings to
determine if more stringent or additional standards were justified for
kitchen ranges and ovens. (42 U.S.C. 6295(h)(2))
DOE undertook the first cycle of these rulemakings and published a
final rule on September 8, 1998 (``September 1998 Final Rule''), which
found that no standards were justified for conventional electric
cooking products at that time. 63 FR 48038. In addition, partially due
to the difficulty of conclusively demonstrating at that time that
elimination of standing pilot lights for gas cooking products without
an electrical supply cord was economically justified, DOE did not
include amended standards for conventional gas cooking products in the
September 1998 Final Rule. 63 FR 48038, 48039-48040.
For the second cycle of rulemakings, DOE published a final rule on
April 8, 2009 (``April 2009 Final Rule'') amending the energy
conservation standards for consumer conventional cooking products to
prohibit constant burning pilot lights for all gas cooking products
(i.e., gas cooking products with or without an electrical supply cord)
manufactured on or after April 9, 2012. 74 FR 16040, 16085. The
prescriptive standards established by the April 2009 Final Rule remain
applicable currently.
On August 22, 2022, DOE published a final rule establishing a test
procedure for conventional cooking tops, at 10 CFR part 430, subpart B,
appendix I1, ``Uniform Test Method for the Measuring the Energy
Consumption of Conventional Cooking Products.'' On February 1, 2023,
DOE published a supplementary NOPR (``February 2023 SNOPR'') proposing
to establish new and amended standards for consumer conventional
cooking products, consisting of design requirements for conventional
ovens and a maximum integrated annual energy consumer (``IAEC'') levels
for electric and gas cooking tops, as measured according to the newly
established appendix I1 test procedure and expressed in kilowatt-hours
(``kWh'') per year for electric cooking tops and kilo-British thermal
[[Page 65522]]
units (``kBtu'') per year for gas cooking tops. 88 FR 6818. On February
28, 2023, DOE published a notification of data availability (``NODA'')
providing additional information to clarify the February 2023 SNOPR
analysis for gas cooking tops. 88 FR 12603. On August 2, 2023, DOE
published a second NODA updating its analysis for conventional gas
cooking tops based on the stakeholder data it received in response to
the February 2023 SNOPR. 88 FR 50810.
On September 25, 2023, DOE received a joint statement (``Joint
Agreement'') recommending standards for consumer conventional cooking
products that was submitted by groups representing manufacturers,
energy and environmental advocates, consumer groups, and a utility.\2\
In addition to the recommended standards for consumer conventional
cooking products, the Joint Agreement also included separate
recommendations for several other covered products.\3\ The Joint
Agreement recommended amended standard levels for consumer conventional
cooking products are presented in Table II.1. Details of the Joint
Agreement recommendations for other products are provided in the Joint
Agreement posted in the docket for this rulemaking.\4\
---------------------------------------------------------------------------
\2\ The signatories to the Joint Agreement include the
Association of Home Appliance Manufacturers (``AHAM''), American
Council for an Energy-Efficient Economy, Alliance for Water
Efficiency, Appliance Standards Awareness Project, Consumer
Federation of America, Consumer Reports, Earthjustice, National
Consumer Law Center, Natural Resources Defense Council, Northwest
Energy Efficiency Alliance, and Pacific Gas and Electric Company.
Members of AHAM's Major Appliance Division that make the affected
products include: Alliance Laundry Systems, LLC; Asko Appliances AB;
Beko US Inc.; Brown Stove Works, Inc.; BSH Home Appliances
Corporation; Danby Products, Ltd.; Electrolux Home Products, Inc.;
Elicamex S.A. de C.V.; Faber; Fotile America; GE Appliances, a Haier
Company; L'Atelier Paris Haute Design LLG; LG Electronics; Liebherr
USA, Co.; Midea America Corp.; Miele, Inc.; Panasonic Appliances
Refrigeration Systems (PAPRSA) Corporation of America; Perlick
Corporation; Samsung Electronics America, Inc.; Sharp Electronics
Corporation; Smeg S.p.A; Sub-Zero Group, Inc.; The Middleby
Corporation; U-Line Corporation; Viking Range, LLC; and Whirlpool
Corporation.
\3\ The Joint Agreement contained recommendations for six
covered products: refrigerators, refrigerator-freezers, and
freezers; clothes washers; clothes dryers; dishwashers; cooking
products; and miscellaneous refrigeration products.
\4\ The Joint Agreement is available in the docket at
www.regulations.gov/comment/EERE-2014-BT-STD-0005-12811.
Table II.1--Recommended New and Amended Energy Conservation Standards
for Consumer Conventional Cooking Products
------------------------------------------------------------------------
Product class Standard level Compliance date
------------------------------------------------------------------------
Electric Coil................... No standard....... January 31, 2028.
Propose new class: Electric 207 kWh/year...... ..................
smooth Cooktop *.
Propose new Class: Electric 207 kWh/year...... ..................
smooth range *.
Propose new class: Gas cooktop * 1,770 kBtu/year... ..................
Propose new class: Gas range *.. 1,770 kBtu/year... ..................
Ovens (Electric and Gas) *...... Electric: Baseline ..................
+ SMPS.
Gas: Baseline +
SMPS.
------------------------------------------------------------------------
* Excludes portable cooking products.
After carefully considering the recommended energy conservation
standards for consumer conventional cooking products in the Joint
Agreement, DOE determined that these recommendations were in accordance
with the statutory requirements of 42 U.S.C. 6295(p)(4) for the
issuance of a direct final rule and published a direct final rule on
February 14, 2024 (``February 2024 Direct Final Rule''). 89 FR 11434.
DOE evaluated whether the Joint Agreement satisfies 42 U.S.C. 6295(o),
as applicable, and found that the recommended standard levels would
result in significant energy savings and are technologically feasible
and economically justified. Id. at 89 FR 11534-11540. Accordingly, DOE
adopted the consensus-recommended efficiency levels for consumer
conventional cooking products as the new and amended standard levels in
the February 2024 Direct Final Rule. Id.
The standards adopted in the February 2024 Direct Final Rule apply
to product classes listed in Table II.2 and Table II.3 and that are
manufactured in, or imported into, the United States starting on
January 31, 2028. The February 2024 Direct Final Rule provides a
detailed discussion of DOE's analysis of the benefits and burdens of
the new and amended standards pursuant to the criteria set forth in
EPCA. Id. at 89 FR 11535-11540.
Table II.2--New and Amended Energy Conservation Standards for
Conventional Cooking Tops
[Compliance Starting January 31, 2028]
------------------------------------------------------------------------
Maximum integrated annual energy
Product class consumption (IAEC)
------------------------------------------------------------------------
Electric Open (Coil) Element Cooking No Standard
Tops.
Electric Smooth Element Standalone 207 kWh/year
Cooking Tops.
Electric Smooth Element Cooking Top 207 kWh/year
Component of a Combined Cooking
Product.
Gas Standalone Cooking Tops.......... 1,770 kBtu/year
Gas Cooking Top Component of a 1,770 kBtu/year
Combined Cooking Product.
------------------------------------------------------------------------
[[Page 65523]]
Table II.3--New and Amended Prescriptive Energy Conservation Standards
for Conventional Ovens
[Compliance Starting January 31, 2028]
------------------------------------------------------------------------
Maximum integrated annual energy
Product class consumption (IAEC)
------------------------------------------------------------------------
Electric Ovens................... Shall not be equipped with a control
system that uses a linear power
supply.\5\
Gas Ovens........................ The control system for gas ovens
shall:
(1) Not be equipped with a constant
burning pilot light; and
(2) Not be equipped with a linear
power supply.
------------------------------------------------------------------------
As required by EPCA, DOE also simultaneously published a NOPR
proposing the identical standard levels contained in the February 2024
Direct Final Rule. 89 FR 11548. DOE considered whether any adverse
comment received during the 110-day comment period following the
publication of the February 2024 Direct Final Rule provided a
reasonable basis for withdrawal of the direct final rule under the
provisions in 42 U.S.C. 6295(p)(4)(C).
---------------------------------------------------------------------------
\5\ A linear power supply produces unregulated as well as
regulated power. The unregulated portion of a linear power supply
typically consists of a transformer that steps alternating current
(``AC'') line voltage down, a voltage rectifier circuit for AC to
direct current conversion, and a capacitor to produce unregulated,
direct current output.
---------------------------------------------------------------------------
III. Comments on the Direct Final Rule
As discussed in section I of this document, not later than 120 days
after publication of a direct final rule, DOE shall withdraw the direct
final rule if: (1) DOE receives one or more adverse public comments
relating to the direct final rule or any alternative joint
recommendation; and (2) based on the rulemaking record relating to the
direct final rule, DOE determines that such adverse public comments or
alternative joint recommendation may provide a reasonable basis for
withdrawing the direct final rule. (42 U.S.C. 6295(p)(4)(C)(i))
DOE received comments in response to the February 2024 Direct Final
Rule from the interested parties listed in Table III.1.
Table III.1--List of Commenters With Written Submissions in Response to the February 2024 Direct Final Rule
----------------------------------------------------------------------------------------------------------------
Comment No. in
Commenter(s) Abbreviation the docket * Commenter type
----------------------------------------------------------------------------------------------------------------
The Attorneys General of the States of AGs of NE et al...... 12838 State Government
Nebraska, Florida, Tennessee, Alabama, Officials.
Arkansas, Georgia, Idaho, Indiana, Iowa,
Kansas, Kentucky, Louisiana, Mississippi,
Missouri, Montana, New Hampshire, Ohio,
Oklahoma, South Carolina, South Dakota, Texas,
Virginia, and West Virginia.
The Attorneys General of the States of Utah and AGs of UT and MT..... 12841 State Government
Montana. Officials.
Association of Home Appliance Manufacturers.... AHAM................. 12845 Trade Association.
Antonin Scalia Law School Administrative Law ALC.................. 12834 Law School.
Clinic.
American Public Gas Association................ APGA................. \6\ 12839, 12840 Trade Association.
WhoPoo App \7\................................. App.................. 12823 Individual.
Appliance Standards Awareness Project, American ASAP et al........... 12842 Advocacy
Council for an Energy-Efficient Economy, Organizations.
Consumer Federation of America, Consumer
Reports, Earthjustice, National Consumer Law
Center, Natural Resources Defense Council,
Northwest Energy Efficiency Alliance, and
Pacific Gas and Electric Company.
Arub Butt...................................... Butt................. 12837 Individual.
Competitive Enterprise Institute............... CEI.................. 12844 Advocacy
Organization.
Consumer Federation of America, Consumer CFA et al............ 12843 Advocacy
Reports, Green Energy Consumers Alliance, Organizations.
Green & Healthy Homes Initiative, National
Consumer Law Center, Philadelphia Solar Energy
Association, and U.S. PIRG.
National Propane Gas Association............... NPGA................. \8\ 12835, 12836 Trade Association.
Michael Ravnitzky.............................. Ravnitzky............ 12826 Individual.
Representative Stephanie Bice.................. Rep. Bice............ 12831 Federal Government
Official.
Rea Shimada.................................... Shimada.............. 12829 Individual.
----------------------------------------------------------------------------------------------------------------
* DOE also received four comments from individuals wishing to remain anonymous (No. 12827, 12828, 12830, and
12833).
A parenthetical reference at the end of a comment quotation or
paraphrase provides the location of the item in the public record.\9\
The following sections discuss the substantive comments DOE received on
the February 2024 Direct
[[Page 65524]]
Final Rule as well as DOE's determination that the comments do not
provide a reasonable basis for withdrawal of the direct final rule.
---------------------------------------------------------------------------
\6\ APGA comments No. 12839 and 12840 are identical. Therefore,
DOE only cites No. 12839 in this document.
\7\ App commented opposing a ban on gas stoves and did not
comment on the standard levels enacted in the February 2024 Direct
Final Rule. (App, No. 12823 at p. 1) The standards adopted by the
February 2024 Direct Final Rule do not ban the production or use of
gas cooking products, including gas cooking tops or stoves (i.e.,
gas ranges).
\8\ NPGA comments No. 12835 and 12836 are identical. Therefore,
DOE only cites No. 12835 in this document.
\9\ The parenthetical reference provides a reference for
information located in the docket of DOE's rulemaking to develop
energy conservation standards for consumer conventional cooking
products. (Docket No. EERE-2014-BT-STD-0005, which is maintained at:
www.regulations.gov). The references are arranged as follows:
(commenter name, comment docket ID number at page of that document).
---------------------------------------------------------------------------
A. General Comments
DOE received comments from individual commenters who expressed
support for the standards promulgated in the February 2024 Direct Final
Rule. (Ravnitzky, No. 12826 at p. 1; Anonymous, No. 12827 at p. 1;
Anonymous, No. 12828 at p. 1; Shimada, No. 12829 at p. 1; Anonymous,
No. 12830 at p. 1; Anonymous, No. 12833 at p. 1)
Butt commented that the new and amended standards represent a
critical step forward in advancing energy efficiency and environmental
sustainability. (Butt, No. 12837 at p. 10)
AHAM supported the February 2024 Direct Final Rule for consumer
conventional cooking products because it establishes standards that are
consistent with recommendations submitted in the Joint Agreement.
(AHAM, No. 12845 at pp. 1-2) ASAP et al. strongly supported the
standards in the February 2024 Direct Final Rule, as they reflect the
recommendation in the Joint Agreement submitted to DOE in September
2023 in conjunction with AHAM. (ASAP et al., No. 12842 at pp. 1-2)
NPGA also commented in support of the Joint Agreement that led to
the February 2024 Direct Final Rule and commended the parties for their
efforts to achieve it. (NPGA, No. 12835 at p. 2) APGA commented that it
is pleased the rulemaking ensures that consumers can continue to have
access to the vast majority of gas-fired cooking products currently
available on the market today. APGA also urged DOE to not use this
rulemaking as precedent for future energy conservation standards
rulemakings, as APGA had a few concerns regarding the underlying
analysis. (APGA, No. 12839 at p. 2)
CFA et al. strongly supported the February 2024 Direct Final Rule,
which it noted is one of many completed and pending efficiency
standards that will together significantly reduce consumer costs and
climate pollution, as well as reduce emissions of methane and nitrogen
oxides, which cause health issues. (CFA et al., No. 12843 at pp. 1-2)
Rep. Bice submitted a comment in opposition to the standards as
recommended by the Joint Agreement and adopted in the February 2024
Direct Final Rule. (Rep. Bice, No. 12831 at p. 1)
ALC opposed the new and amended standards on the basis that the
standards represent an aggressive Federal effort to micromanage the
lives of Americans and that DOE lacks the constitutional and statutory
authority to do so. (ALC, No. 12834 at pp. 1-2)
The AGs of NE et al. asserted that the February 2024 Direct Final
Rule over-regulates American kitchens and requested that DOE reconsider
it. (AGs of NE et al., No. 12838 at p. 1) The AGs of UT and MT
expressed agreement with the AGs of NE et al.'s comments. (AGs of UT
and MT, No. 12841 at p. 1)
CEI opposed the February 2024 Direct Final Rule and stated that it
should be withdrawn. (CEI, No. 12844 at p. 1)
Butt listed several alternative approaches to energy conservation
that might ease the burden on manufacturers and consumers while
fulfilling DOE's emission reduction goals. (Butt, No. 12837 at pp. 3,
5-6, 9-10)
As required by Executive Order (``E.O.'') 12866, as amended by E.O.
14094, DOE conducted a regulatory impact analysis (``RIA'') to identify
major alternatives to standards that represent feasible policy options
to reduce energy consumption of consumer conventional cooking products.
89 FR 11502. Notwithstanding the requirements of E.O. 12866, as
discussed, DOE is required by EPCA to establish or amend standards for
consumer conventional cooking products that are designed to achieve the
maximum improvement in energy efficiency that the Secretary determines
is technologically feasible and economically justified. (42 U.S.C.
6295(o)(2)(A))
B. Anti-Backsliding
EPCA, as codified, contains what is known as an ``anti-
backsliding'' provision, which prevents the Secretary from prescribing
any amended standard that either increases the maximum allowable energy
use or decreases the minimum required energy efficiency of a covered
product. (42 U.S.C. 6295(o)(1))
The AGs of UT and MT commented that the fact the Joint Agreement is
contingent upon other parts being implemented conflicts with the anti-
backsliding provision of EPCA.
DOE addressed this issue in the February 2024 Direct Final Rule. As
discussed there, the Joint Agreement was contingent upon DOE initiating
rulemaking processes to adopt all of the recommended standards. In
other words, DOE could not pick and choose which recommendations in the
Joint Agreement to implement. See 89 FR 11434, 11444. As described,
DOE's adoption of the recommended standards conforms with the anti-
backsliding provision in 42 U.S.C. 6295(o)(1). The AGs of UT and MT
stated that DOE must consider energy efficiency over the entire product
lifecycle. The AGs of UT and MT agreed with DOE's statement that
conscientious energy use is more complicated than increasing efficiency
alone, and they attached documents with quotes from DOE officials
testifying to this sentiment. The AGs of UT and MT commented that DOE's
use of a single lifespan in its analysis for this rulemaking was in
error, and given its statements about the energy consumed in raw
materials, manufacturing, etc., its efficiency standards may violate
anti-backsliding prohibitions in EPCA when shorter lifespans are
considered, especially if the full fuel cycle (``FFC'') costs of short
lifespans are accounted for. (AGs of UT and MT, No. 12841 at pp. 2-3)
As discussed previously, DOE may not prescribe an amended standard
that increases the maximum allowable energy use or decreases the energy
efficiency of a covered product. Further, EPCA defines the term
``energy use'' to mean the quantity of energy directly consumed by a
consumer product at point of use, determined in accordance with test
procedures under 42 U.S.C. 6293. (42 U.S.C. 6291(4)) EPCA similarly
defines ``energy efficiency'' to mean the ratio of the useful output of
services from a consumer product to the energy use [as that term is
defined] of such product, determined in accordance with test procedures
under 42 U.S.C. 6293. (42 U.S.C. 6291(5)) Neither the energy use nor
the energy efficiency of a product, as those terms are defined in EPCA,
is dependent upon the lifespan of the product. As a result, product
lifespan has no effect on whether an amended standard violates the
anti-backsliding provision in 42 U.S.C. 6295(o)(1).
As product lifespan does not affect energy use or energy efficiency
as defined in EPCA, DOE has determined that the comment provided by the
AGs of UT and MT does not provide a reasonable basis for withdrawal of
the February 2024 Direct Final Rule.
C. Economic Justification
DOE must follow specific statutory criteria for prescribing new or
amended standards for covered products, including consumer conventional
cooking products. Any new or amended standard for a covered product
must be designed to achieve the maximum improvement in energy
efficiency that the Secretary determines is technologically feasible
and economically justified. (42 U.S.C. 6295(o)(2)(A)) In deciding
whether a
[[Page 65525]]
proposed standard is economically justified, DOE must determine whether
the benefits of the standard exceed its burdens. (42 U.S.C.
6295(o)(2)(B)(i)) DOE must make this determination after receiving
comments on the proposed standard, and by considering, to the greatest
extent practicable, the following seven statutory factors:
(1) The economic impact of the standard on manufacturers and
consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average
life of the covered products in the type (or class) compared to any
increase in the price, initial charges, or maintenance expenses for the
covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water)
savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered
products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in
writing by the Attorney General, that is likely to result from the
standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary considers relevant.
(42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))
DOE received several comments on its determination of economic
justification under the statutory criteria.
Butt commented with a list of various manufacturer and consumer
impacts that the commenter asserted were not accounted for in the
February 2024 Direct Final Rule, including: price increases and
potential demand decreases, necessity and increased cost of
technological innovation, reduction in greenhouse gas emissions,
potential need for production and product offering adjustments, changes
in market competition, higher up-front costs for energy-efficient
consumer cooking products with the tradeoff of energy savings along
with food and cooking quality difference between gas and electric.
(Butt, No. 12837 at pp. 8-9)
Contrary to the commenter's assertion, DOE affirms that the
February 2024 Direct Final Rule accounted for the commenter's listed
impacts in its consideration of the seven statutory criteria as
required by EPCA. See section V.C of the February 2024 Direct Final
Rule for a full discussion of the benefits and burdens of the adopted
standards. 89 FR 11434, 11535-11540.
Rep. Bice asserted that increased standards will lead to increased
production costs for manufacturers, which will subsequently lead to
increased costs to consumers. Rep. Bice added that the adopted
standards will limit consumer choice, drive up prices, and impose
onerous regulations on American manufacturers, many of whom are small
businesses. (Rep. Bice, No. 12831 at p. 1)
The AGs of NE et al. commented that while they acknowledge that DOE
has reduced the stringency as compared to the previously proposed
standards, the February 2024 Direct Final Rule does not weigh heavily
enough the appliance cost increase that the rule will cause and that
will be borne by American consumers. (AGs of NE et al., No. 12838 at p.
1)
Butt commented that DOE's regulatory efforts may inadvertently lead
to sectoral overregulation, wherein certain industries face
disproportionate regulatory burdens. By focusing on specific sectors,
DOE runs the risk of imposing excessive regulatory requirements that
could stifle innovation, hinder economic growth, and impede market
competitiveness. (Butt, No. 12837 at p. 2)
In addition, Butt commented that the fraction of consumers
encountering a net life-cycle cost (``LCC'') is minimal, underscoring
the equitable distribution of economic benefits. However, Butt also
questioned the fairness of the rule given what the commenter
characterized as a disparate impact on low-income households and
households of color. (Id. at pp. 6-8)
DOE disagrees with the commenters' assessment of the impact of the
adopted standard in the February 2024 Direct Final Rule. DOE considered
the impacts to manufacturers, including cumulative regulatory burden
and the potential increase in manufacturing costs, in the manufacturing
impact analysis in the February 2024 Direct Final Rule. 89 FR 11434,
11489-11492, 11514-11522. At the adopted standard, DOE projects that 77
percent of electric smooth element cooking tops, 97 percent of gas
cooking tops, 95 percent of electric ovens, and 96 percent of gas ovens
will already meet or exceed the standards by the first year of
compliance and, hence, will not lead to significantly increased
production costs for manufacturers. Id. at 89 FR 11538. In the February
2024 Direct Final Rule, the LCC analysis calculated the distribution of
impacts across a nationally representative sample of US households. As
demonstrated by the LCC analysis, at the adopted standard, the LCC
savings for all consumer conventional cooking product consumers is
positive. The fraction of consumers experiencing a net LCC cost is 0
percent for electric smooth element cooking top product classes, 1
percent for gas cooking top product classes, 0 percent for electric
ovens, and 0 percent for gas ovens. Id.
AHAM stated given the finalized standards levels and the fact that
compliance timelines for cooking standards are no longer on the same
timeline as several other products AHAM members make, cumulative
regulatory burden is significantly reduced. AHAM further stated that
cost burdens to manufacturers, and ultimately consumers, have been
mitigated. (AHAM, No. 12845 at pp. 1-2)
AHAM commented that the recommended standards are economically
justified as required by 42 U.S.C. 6295(o)(2)(B)(i)(I) and will not
result in lessening of utility, reliability, performance or
availability of the cooking products considered under 42 U.S.C.
6295(o)(2)(B)(i)(IV). AHAM commented that under the standards adopted
in the February 2024 Direct Final Rule, less than 1 percent of
consumers will experience a net cost overall, and the percentage of
consumers experiencing a net cost due to standards for gas products
decreased compared to the previously proposed standards. In addition,
AHAM noted that manufacturer costs to comply with the final standard
are less under the February 2024 Direct Final Rule than under the
previously proposed standards. (Id. at p. 6-8)
CFA et al. commented that the standards adopted in the February
2024 Direct Final Rule will ensure that all new electric smooth element
cooking top models use at least 17 percent less energy annually than
the lowest-performing models sold today, and that 0 percent of low-
income consumers will incur a net cost with the standards for electric
smooth element cooking tops. CFA et al. further commented that the cost
to manufacturers to improve the efficiency of electric and gas cooking
tops and ovens to meet the new standards will be less than $3 for each
of the product types. (CFA et al., No. 12843 at p. 1)
The February 2024 Direct Final Rule did consider the economic
impact of the standard on the manufacturers and on the consumers of the
products subject to such standard (42 U.S.C. 4296(o)(2)(B)(i)(I)), and
DOE has determined that the comments provided by Butt, the AGs of NE et
al., and Rep. Bice do not provide a reasonable basis for withdrawal of
the February 2024 Direct Final Rule.
The AGs of UT and MT stated that DOE's reliance on 2022 data for
energy
[[Page 65526]]
prices and AEO2023 for pricing trends is faulty due to Federal
rulemakings being issued that will force existing generating capacity
offline, spike electricity demand, and decrease fossil fuel supply, as
illustrated with several documents attached to the comment. (AGs of UT
and MT, No. 12841 at p. 4)
DOE contends that AEO2023 remains the best available source for
projections of future energy price trends based on adopted energy
policies. DOE also performed sensitivity analyses using alternate
AEO2023 growth scenarios with low and high energy prices relative to
the reference scenario in the February 2024 Direct Final Rule to assess
the impact of alternative energy price projections. 89 FR 11434, 11477.
The results of these scenarios are available in appendix 8E of the
February 2024 Direct Final Rule TSD and show that consumers of consumer
conventional cooking products would still experience positive LCC
savings even when considering lower and higher energy prices.
Therefore, the February 2024 Direct Final Rule did take into
account energy price variability in its analysis, and DOE has
determined that the comment provided by the AGs of UT and MT does not
provide a reasonable basis for withdrawal of the February 2024 Direct
Final Rule.
The AGs of UT and MT stated that DOE acknowledges but disregards
consumer preference and assumes consumers are ignorant. The AGs of UT
and MT stated that DOE ignores the cost of transitioning to a different
energy source. The AGs of UT and MT attached studies demonstrating
consumer preference for product lifetime over energy consumption, and
the AGs of UT and MT commented that these longer-life appliances may
use less energy over the entire life cycle and be a lower cost to the
consumer, yet DOE did not address those issues. (AGs of UT and MT, No.
12841 at p. 2)
DOE did not disregard consumer preference but rather noted in the
February 2024 Direct Final Rule that the economics literature provides
a wide-ranging discussion of how consumers trade off up-front costs and
energy savings in the absence of government intervention. 89 FR 11434,
11534. Much of this literature attempts to explain why consumers appear
to undervalue energy efficiency improvements, as the AGs of UT and MT
alleged in their comment. There is evidence that consumers undervalue
future energy savings as a result of (1) a lack of information; (2) a
lack of sufficient salience of the long-term or aggregate benefits; (3)
a lack of sufficient savings to warrant delaying or altering purchases;
(4) excessive focus on the short term, in the form of inconsistent
weighting of future energy cost savings relative to available returns
on other investments; (5) computational or other difficulties
associated with the evaluation of relevant trade-offs; and (6) a
divergence in incentives (for example, between renters and owners, or
builders and purchasers). Id. Having less-than-perfect foresight and a
high degree of uncertainty about the future, consumers may trade off
these types of investments at a higher-than-expected rate between
current consumption and uncertain future energy cost savings. Id.
Potential changes in the benefits and costs associated with a
standard due to changes in consumer purchase decisions were included in
the analysis for the February 2024 Direct Final Rule in two ways. Id.
First, if consumers forgo the purchase of a product in the standards
case, as estimated based on price elasticity related to empirical data
on appliances, this decreases sales for product manufacturers, and the
impact on manufacturers attributed to lost revenue is included in the
manufacturer impact analysis. Id. Second, DOE accounts for energy
savings attributable only to products actually used by consumers in the
standards case; if a standard decreases the number of products
purchased by consumers, this decreases the potential energy savings
from an energy conservation standard.
Further, the AGs of UT and MT stated that the reliability of
products affected by the rulemaking will decrease due to complexity
increases, which the commenters asserted is supported by engineering
facts illustrated in a document attached to their comment, yet DOE does
not address this issue. The AGs of UT and MT also commented that
complexity increases will lead to less economic viability of repair,
which is not reflected in DOE's assumption that the rulemaking will
have no impact on lifespan. The AGs of UT and MT commented that DOE
disregards the fact that reliability can be increased by lightening the
electrical, mechanical, thermal, and other conditions of operation of
the components, which tends to decrease energy efficiency but results
in less repair downtime and longer times before replacement and,
therefore, decreased costs, as illustrated in attached documents. (AGs
of UT and MT, No. 12841 at pp. 3-4)
AHAM commented that the February 2024 Direct Final Rule addresses
AHAM's key concerns with the February 2023 SNOPR. AHAM stated that the
finalized energy conservation standards levels do not favor electric
over gas cooktops and the essential consumer utilities for gas (and
electric) cooktops are preserved. (AHAM, No. 12845 at pp. 1-2) AHAM
added that the technology options DOE identified for meeting the
standard levels in the February 2024 Direct Final Rule are established
technologies used in the market today and do not negatively impact
product reliability. (Id. at p. 7) ASAP et al. commented that they did
not expect the standards in the February 2024 Direct Final Rule to have
any impact on product reliability because the amended standards can be
met with simple design changes that have already been incorporated in
many models on the market today. (ASAP et al., No. 12842 at p. 2)
In contrast to the comment from the AGs of UT and MT and as noted
in the February 2024 Direct Final Rule, DOE did take into consideration
the cost of repair and included higher repair costs for more efficient
products when supported by available data. See 89 FR 11434, 11477. For
example, DOE included a higher repair cost for induction cooking tops
based on available data from Consumer Reports. Id. A review of cooking
product reliability information of most major brands provides no
indication that higher-efficiency products are less reliable at the
adopted standard levels relative to baseline products. Hence,
notwithstanding theoretical conjecture that higher-efficiency products
may have poor reliability based on simplified textbook models, no real-
world evidence or data related to the technologies used at the adopted
standard levels can be found clearly supporting such a correlation. The
AGs of UT and MT did not specify how the attached documents on network
node analysis and reliability theory correspond to the technologies
used at the adopted standard levels for cooking products. In the
absence of data specific to the technologies used in cooking products,
DOE has no practical basis to model the theoretical concern from the
AGs of UT and MT at the adopted standard levels. The assertion made by
the AGs of UT and MT also runs counter to comments from AHAM and ASAP
that support the February 2024 Direct Final Rule repair cost
methodology.
DOE further notes that the lifetime distribution used in the
February 2024 Direct Final Rule is based on feedback from
manufacturers. 89 FR 11434, 11477. DOE is unaware of data that suggests
a different lifetime associated with the technology options considered
in the February 2024 Direct Final Rule, and no such data was provided
by stakeholders. In response to the
[[Page 65527]]
February 2024 Direct Final Rule, AHAM commented that the adopted
standard will not impact the reliability of products, and hence
lifetime of the product, at the adopted level, and it further stated
that the standard levels are achievable by technology readily available
on the market. (AHAM, No. 12845 at pp. 7-8) As there is no data to
suggest different lifetime distributions for products at the adopted
standards level, the comment from the AGs of UT and MT does not provide
a reasonable basis for withdrawal of the February 2024 Direct Final
Rule.
As discussed in in the February 2024 Direct Final Rule, DOE did
take into account product reliability, lifetimes, and cost of repair
when considering the LCC of more efficient products when supported by
available data. See 89 FR 11434, 11477. Therefore, the February 2024
Direct Final Rule did take into account consumer purchase decisions in
its analysis, and DOE has determined that the comment provided by the
AGs of UT and MT does not provide a reasonable basis for withdrawal of
the February 2024 Direct Final Rule.
The AGs of UT and MT stated their belief that GHG emissions and
climate change impacts should not be part of EPCA rulemakings, but
given their inclusion, DOE must consider them throughout the entire
life cycle of the product, including manufacturing and potential
reductions in lifespan due to increased complexity. The AGs of UT and
MT commented that the February 2024 Direct Final Rule failed to
adequately address these full life cycle impacts. (AGs of UT and MT,
No. 12841 at p. 4)
As previously stated in section III.B of this document, the comment
from the AGs of UT and MT points to a statement made to the U.S. Senate
Subcommittee on Energy to indicate that 40 to 60 percent of the carbon
footprint for many consumer products can be attributed to the supply
chain.\10\ However, the McKinsey report, which is the primary source
for the statement made to the U.S. Subcommittee on Energy, is only
referring to the manufacturing company's energy and carbon footprint
that can reside upstream in its supply chain and does not include the
energy and emissions associated with the usage phase of the appliance
life cycle, which represents more than 90 percent of the total for
large appliances.\11\ As such, the energy and carbon footprint
associated with supply chain likely accounts for approximately 4 to 6
percent of the overall carbon footprint of a product. Furthermore,
there is no data suggesting that the supply chain carbon footprint
would be different between baseline units and units that meet the
adopted standard. In the February 2024 Direct Final Rule, DOE accounted
for the environmental and public health benefits associated with the
more efficient use of energy, including those connected to global
climate change, as they are important to take into account when
considering the need for national energy conservation under EPCA. (See
42 U.S.C. 6295(o)(2)(B)(i)(IV)) 89 FR 11434, 11531-11534. This analysis
focused on the estimated reduced emissions expected to result during
the lifetime of consumer conventional cooking products shipped during
the projection period. Id.
---------------------------------------------------------------------------
\10\ See www.energy.senate.gov/services/files/3D26FA56-F102-9E9F-BEA4-52BB0085B19A.
\11\ Gonzalez, A., A. Chase, and N. Horowitz. 2012. ``What We
Know and Don't Know about Embodied Energy and Greenhouse Gases for
Electronics, Appliances, and Light Bulbs.'' Energy Solutions and
Natural Resources Defense Council. ACEEE Summer Study on Energy
Efficiency in Buildings.
---------------------------------------------------------------------------
The AGs of UT and MT stated that the Interagency Working Group's
(``IWG's'') SC-GHG based on global impacts is inconsistent with EPCA's
requirements for standards to consider economic implications to U.S.
consumers. The AGs of UT and MT claimed that DOE erroneously appears to
assume that all the benefits accrue to U.S. citizens, despite using
global values. The AGs of UT and MT cited the case of Louisiana v.
Biden to demonstrate questions related to the accuracy of the IWG's SC-
GHG estimates. (AGs of UT and MT, No. 12841 at p. 4)
DOE reiterates its view that the environmental and public health
benefits associated with more efficient use of energy, including those
connected to global climate change, are important to take into account
when considering the need for national energy conservation. (See 42
U.S.C. 6295(o)(2)(B)(i)(IV)) In addition, Executive Order 13563, which
was reaffirmed on January 21, 2021, stated that each agency must, among
other things, ``select, in choosing among alternative regulatory
approaches, those approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity).'' Regarding the use of
global SC-GHG values, many climate impacts that affect the welfare of
U.S. citizens and residents are better reflected by global measures of
SC-GHG. In addition, assessing the benefits of U.S. GHG mitigation
activities requires consideration of how those actions may affect
mitigation activities by other countries, as those international
mitigation actions will provide a benefit to U.S. citizens and
residents by mitigating climate impacts that affect U.S. citizens and
residents.
The AGs of UT and MT stated the monetized GHG benefits largely
accrue centuries in the future, well beyond the rulemaking analysis
period. Furthermore, the AGs of UT and MT stated that DOE improperly
mixed discount rates in its cost-benefit analysis. (AGs of UT and MT,
No. 12841 at p. 4)
ALC stated similar concerns that IWG estimates for the SC-GHG are
based on ``flawed policy choices,'' relying on discount rates that have
a large influence on the present value of future damages far beyond the
rulemaking analysis period. (ALC, No. 12834 at p. 6)
DOE's February 2024 Direct Final Rule analysis considers the costs
and benefits associated with 30 years of shipments of a covered
product. Because a portion of products shipped within this 30-year
period continue to operate beyond 30 years, DOE accounts for energy
cost savings and reductions in emissions until all products shipped
within the 30-year period are retired. 89 FR 11434, 11499. In the case
of carbon dioxide emissions, which remain in the atmosphere and
contribute to climate change for many decades, the benefits of
reductions in emissions likewise occur over a lengthy period; to not
include such benefits would be inappropriate. Id.
With regards to discount rates used, the IWG found that the use of
the social rate of return on capital (7 percent under current Office of
Management and Budget Circular A-4 guidance) to discount the future
benefits of reducing GHG emissions inappropriately underestimates the
impacts of climate change for the purposes of estimating the SC-GHG.
Consistent with the findings of the National Academies and the economic
literature, the IWG continued to conclude that the consumption rate of
interest is the theoretically appropriate discount rate in an
intergenerational context and recommended that discount rate
uncertainty and relevant aspects of intergenerational ethical
considerations be accounted for in selecting future discount rates.
With regards to mixing discount rates, DOE consulted the National
Academies' 2017 recommendations on how SC-GHG estimates can ``be
combined in RIAs with other cost and benefits estimates that may use
different discount rates.'' The National Academies reviewed several
options, including ``presenting
[[Page 65528]]
all discount rate combinations of other costs and benefits with [SC-
GHG] estimates.'' 89 FR 11434, 11497.\12\
---------------------------------------------------------------------------
\12\ Following the issuance of this DFR, DOE issued a rulemaking
document in an unrelated matter in which it preliminarily determined
that new, updated SC-GHG estimates promulgated in 2023 by EPA (2023
SC-GHG estimates) represent a significant improvement in estimating
SC-GHG. See 89 FR 59692, 59700-59701. DOE preliminarily determined
that the updated 2023 SC-GHG estimates reflect the best available
scientific and analytical evidence and methodologies, are
accordingly the most appropriate for DOE analyses, and best
facilitate sound decision-making by substantially improving the
transparency of the estimates and representations of uncertainty
inherent in such estimates. Id. DOE welcomed comment on that
preliminary determination. Id.
Because it issued this DFR prior to making that preliminary
determination, DOE estimated the climate benefits of the standards
adopted in this rule using the IWG's SC-GHG estimates. As noted in
the text, DOE's decision to adopt the DFR's standards did not depend
on the cost of greenhouse gasses; nor would the decision change
based on a revised estimate of the cost of greenhouse gasses.
---------------------------------------------------------------------------
ALC commented that because DOE cannot conclude that the new
standards are economically justified under the statutory factors, DOE
instead relies on the non-statutory and discredited SC-GHG estimates
and thereby skews the economic analysis it is required to perform under
EPCA. ALC claimed that DOE's reliance on SC-GHG estimates based on
global damages conflicts with EPCA's statutory mandate to consider the
need for national energy conservation under 42 U.S.C. 6925
(o)(2)(B)(i)(II). ALC stated that according to the Trump
Administration, the actual social cost of carbon is seven times less
than the SC-GHG estimates. ALC commented that DOE should not be
permitted to use the IWG estimates in formulating new standards. (ALC,
No. 12834 at pp. 2, 5-6)
ALC commented that DOE cannot avoid judicial review by declaring
that it would reach the same conclusion presented in the rulemaking in
the absence of the SC-GHG; ALC further commented that this rulemaking
represents another attempt by the Biden Administration to avoid
judicial review by claiming that the estimates are not outcome
determinative. (Id. at pp. 7-8)
In response and as stated in the February 2024 Direct Final Rule,
DOE notes that it would have reached the same conclusion that the
adopted standard levels were economically justified without considering
the SC-GHG because the average LCC savings for all product classes is
positive, a shipment-weighted 0 percent of consumers would experience a
net cost, and the NPV for consumer benefits is positive using both the
3-percent and the 7-percent discount rate. 89 FR 11434, 11498, 11538.
D. Significant Conservation of Energy
Pursuant to EPCA, any new or amended standard must result in
significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
APGA urged DOE not to use this rulemaking as a precedent for future
energy conservation standards. APGA expressed concern with the cost-
saving justification for the final standards, commenting that DOE's
estimated savings are not sufficient to justify the rulemaking under
EPCA. APGA commented that, using DOE's calculations and the average
14.5-year lifetime of a gas-fired consumer conventional cooking
product, the average savings for customers would only be $3.09 over the
life of the appliance. APGA commented that such an insignificant amount
of savings over this timeframe does not seem to warrant a new standard
under EPCA, and APGA is concerned that DOE is using what APGA asserted
is miniscule savings to demonstrate a sufficient cost savings
justification for a new standard. (APGA, No. 12839 at pp. 2-3)
CEI commented that by addressing stakeholders' concerns about
reducing performance and choice, DOE has reduced the proposed rule's
already-modest energy savings. CEI commented that EPCA expressly
forbids promulgating efficiency standards that fail to result in
significant conservation of energy and, as a result, the proper course
of action would be for DOE to withdraw both the cooking products
February 2024 Direct Final Rule and proposed rule. (CEI, No. 12844 at
p. 3)
CEI commented that EPCA does not prioritize efficiency above all
else in the standards-setting process; rather, any rule is prohibited
if the Secretary determines said rule ``will not result in significant
conservation of energy.'' CEI added that the February 2024 Direct Final
Rule saves so little energy that it can be considered arbitrary and
capricious. CEI commented that, as a result of the less-stringent
standards in the February 2024 Direct Final Rule (compared to the
proposed rule), the savings are now estimated by DOE to be $3.09 over
the 14.5-year average lifespan of a gas cooktop, or 21 cents per year.
(Id. at pp. 3-5)
CEI commented that the February 2024 Direct Final Rule demonstrates
that the only way to avoid an energy efficiency standard that
compromises gas stove performance and features is to set one so weak
that the consumer savings become insignificant. CEI commented that EPCA
fully contemplates--and indeed requires--that some appliances would not
be subject to energy use limits, and this should include consumer
conventional cooking products. CEI commented that because energy
savings are trivial and regulatory overreach threatens to harm the
interests of consumers, the February 2024 Direct Final Rule should be
withdrawn. (Id. at p. 5)
Despite supporting the Joint Agreement, NPGA reiterated a previous
comment that this rulemaking does not satisfy the threshold for
significant energy savings at either the proposed or finalized
standards. (NPGA, No. 12835 at pp. 1-2)
Butt commented that the February 2024 Direct Final Rule is
projected to yield substantial energy savings. Butt subsequently stated
that the February 2024 Direct Final Rule amounts to a 2% reduction in
energy consumption relative to conventional product usage. Butt noted
that this minimal rate would not implicitly justify the need for a
reduction in energy consumption. Butt recommended that DOE consider
shifting regulation focus to other sectors that have higher relative
emissions such as refrigeration or heating, ventilation, and air
conditioning (``HVAC''). (Butt, No. 12837 at pp. 4-7)
AHAM commented that it finds DOE has satisfied all EPCA criteria
for issuing a February 2024 Direct Final Rule because the recommended
energy conservation standards were designed by the Joint Stakeholders
(including manufacturers of various sizes as well as consumer,
environmental, and efficiency advocacy groups; a utility; and some
States) to achieve the maximum improvement in energy efficiency that is
technologically feasible and economically justified in accordance with
the provisions of 42 U.S.C. 6295(o), and because DOE issued a February
2024 Direct Final Rule together with a proposed rule identical to the
standard established in the February 2024 Direct Final Rule and allowed
110 days for public comment, which is consistent with EPCA
requirements. (AHAM, No. 12845 at pp. 8-10)
As discussed, pursuant to EPCA, any new or amended energy
conservation standard must, among other criteria, be designed to
achieve the maximum improvement in energy efficiency that DOE
determines is technologically feasible and economically justified. (42
U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must
result in significant conservation of energy. (42 U.S.C.
6295(o)(3)(B)). As noted in Herrington, determining whether energy
savings are significant should be informed by the underlying policies
of the Appliance Standards Program. (See
[[Page 65529]]
NRDC v. Herrington, 768 F.2d 1355, 1376 (D.C. Cir. 1985)). DOE's
Appliance Standards Program was created in the 1970s in response to an
energy supply crisis. See EPCA (noting in the Act's description the
law's intention ``[t]o increase domestic energy supplies and
availability; to restrain energy demand; to prepare for energy
emergencies; and for other purposes.'') Congress expanded further on
the intended policies underlying the Appliance Standards Program in
subsequent amendments to EPCA. For example, the Energy Policy Act of
2005, Public Law 109-58 (Aug. 8, 2005), which, among other things,
amended EPCA to establish energy conservations standards for additional
consumer products, was enacted to ``ensure jobs for our future with
secure, affordable, and reliable energy.'' The Energy Independence and
Security Act of 2007, Public Law 110-140 (Dec. 19, 2007), which
similarly amended EPCA to establish new energy conservation standards
for consumer products and commercial equipment, was enacted to ``move
the United States toward greater energy independence and security, to
increase the production of clean renewable fuels, to protect consumers,
to increase the efficiency of products, buildings, and vehicles, to
promote research on and deploy greenhouse gas capture and storage
options, and to improve the energy performance of the Federal
Government, and for other purposes.'' Thus, DOE is guided by the
underlying policy objectives of EPCA, as amended, governing the
Appliance Standards Program when determining whether potential energy
savings are significant.
As discussed in the February 2024 Direct Final Rule, DOE's analyses
indicate that the adopted energy conservation standards for consumer
conventional cooking products would save a significant amount of
energy. 89 FR 11434, 11437-11441. Enhanced energy efficiency, where
economically justified, improves the Nation's energy security,
strengthens the economy, and reduces the environmental impacts (costs)
of energy production. Reduced electricity demand due to energy
conservation standards is also likely to reduce the cost of maintaining
the reliability of the electricity system, particularly during peak-
load periods.
Relative to the case without new and amended standards, the
lifetime, FFC energy savings for consumer conventional cooking products
purchased in the 30-year period that begins in the anticipated year of
compliance with the new and amended standards (2028-2057), amount to
0.22 quadrillion British thermal units (``Btu''), or quads. This is
equivalent to the primary annual energy use of 1.4 million homes.
Further, during the same analysis period, the adopted standards for
consumer conventional cooking products are projected to reduce
emissions by 3.99 million metric tons \13\ of carbon dioxide, 1.15
thousand tons of sulfur dioxide, 7.61 thousand tons of nitrogen oxides,
34.70 thousand tons of methane, 0.04 thousand tons of nitrous oxide,
and 0.01 tons of mercury. The estimated cumulative reduction in carbon
dioxide emissions through 2030 amounts to 0.06 Mt, which is equivalent
to the emissions resulting from the annual electricity use of more than
11 thousand homes. Id.
---------------------------------------------------------------------------
\13\ A metric ton is equivalent to 1.1 short tons. Results for
emissions other than carbon dioxide are presented in short tons.
---------------------------------------------------------------------------
DOE also estimates the cumulative monetary value of the climate
benefits from a reduction in greenhouse gases and the money value of
the health benefits from the reduction of sulfur dioxide and nitrogen
oxides emissions. The climate benefits associated with the average SC-
GHG at a 3-percent discount rate are estimated to be $0.22 billion. DOE
estimated the present value of the health benefits would be $0.16
billion using a 7-percent discount rate, and $0.42 billion using a 3-
percent discount rate. Id. at 89 FR 11437-11438.
Based on the amount of FFC savings, the corresponding reduction in
emissions, and the need to confront the global climate crisis, DOE
determined in the February 2024 Direct Final Rule that the energy
savings from the adopted standard levels are ``significant'' within the
meaning of 42 U.S.C. 6295(o)(3)(B). Id. at 89 FR 11447.
APGA expressed concern that the rulemaking does not appear to save
any more energy than a previous iteration of the rule for which DOE
deemed similarly minimal energy savings insufficient to dictate a new
ruling. APGA asserted that with the last iteration of this rule in
2009, DOE decided not to set a new standard, citing a lack of
significant conservation of energy for gas cooktops. APGA commented it
is therefore concerned that DOE is planning to set a new standard based
on the same minimal energy conservation that previously did not warrant
a new standard in 2009. (APGA, No. 12839 at p. 3)
DOE re-iterates that the significance of energy savings offered by
a new or amended energy conservation standard cannot be determined
without knowledge of the specific circumstances surrounding a given
rulemaking. Accordingly, DOE evaluates the significance of energy
savings on a case-by-case basis. 89 FR 11434, 11441. Contrary to APGA's
assertions, DOE did in fact amend the energy conservation standards in
the April 2009 Final Rule by prohibiting the use of constant burning
pilot lights for all gas cooking products manufactured on or after
April 9, 2012. 74 FR 16040. DOE further stated in the April 2009 Final
Rule that the estimated energy savings at each of the standard levels
considered for cooking products indicate that the energy savings each
would achieve are nontrivial, and therefore, DOE considered these
savings ``significant'' within the meaning of section 325 of EPCA. Id.
at 74 FR 16052. The prescriptive standards prohibiting constant burning
pilot lights for gas cooking products adopted in the April 2009 Final
Rule were projected to save 0.14 quads of energy. Id. at 74 FR 16084.
E. Unavailability of Performance Characteristics
EPCA specifies the Secretary may not prescribe an amended or new
standard if interested persons have established by a preponderance of
the evidence that the standard is likely to result in the
unavailability in the United States in 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 in the United States. (42 U.S.C.
6295(o)(4))
The AGs of NE et al. also stated that the February 2024 Direct
Final Rule does not account for the consumer preference that AHAM
identified through consumer research of safety, value, performance, and
cost at purchase over energy efficiency and cost to use over time. (AGs
of NE et al., No. 12838 at p. 3)
Rep. Bice asserted that the adopted standards will limit consumer
choice. (Rep. Bice, No. 12831 at p. 1)
ALC commented that, as noted by CEI, the new and amended standards
would unlawfully eliminate desired features that are on the market and
that DOE did not adequately respond to the core of CEI's argument
regarding desired features such as the maximum heat output of an HIR
burner. ALC commented that among the more troublesome aspects of the
rulemaking is the fact that DOE does not dispute that the new rule will
likely regulate gas stoves with multiple HIR burners out of existence,
and DOE does not attempt to show that any efficacious substitutes exist
on the market; ALC commented that DOE therefore does not fulfill its
statutory burden to carefully assess any
[[Page 65530]]
impact to decreased consumer utility or to avoid establishing a new
standard if it will result in the unlawful elimination of key features
from the market. (ALC, No. 12834 at pp. 3-4)
DOE determined that the February 2024 Direct Final Rule would not
result in the unavailability of products that are substantially the
same as those currently available in the United States. 89 FR 11434,
11524-11530. AHAM noted that the energy conservation standards adopted
in the February 2024 Direct Final Rule maintain important consumer
features and utilities. (AHAM, No. 12845 at pp. 6-8)
As discussed, DOE specifically addressed the ability of consumer
conventional cooking products to maintain certain features and
functionalities. DOE stated in the February 2024 Direct Final Rule that
the adopted standards would not preclude multiple HIR burners and
continuous cast-iron grates or any combination of features mentioned by
manufacturers, as demonstrated by products from multiple manufacturers
in DOE's test sample. 89 FR 11434, 11524, 11526. AHAM noted that the
energy conservation standards adopted in the February 2024 Direct Final
Rule maintain important consumer features and utilities. AHAM commented
that DOE expanded the number of models with the consumer utilities AHAM
identified in its testing, including 55 models of gas cooking tops with
continuous cast-iron grates, which demonstrates a greater care for the
features that consumers value. AHAM added that DOE's analysis shows
that 35 gas units with at least two HIR cooking zones, or where the
input rate is greater than or equal to 14,000 Btu/h, meet the finalized
standard, thus preserving that key consumer utility. (AHAM, No. 12845
at pp. 6-7)
In response to ALC's claim that the standards in the February 2024
Direct Final Rule would reduce an HIR burner's maximum heat
considerably, DOE reiterates that the highest input rate burners in its
test sample (up to 25,000 Btu/h) meet the efficiency threshold
corresponding to the finalized standard. 89 FR 11434, 11464.
The February 2024 Direct Final Rule evaluated whether the new and
amended standards would result in the unavailability of products that
are substantially the same as those currently available in the United
States, and DOE has determined that the comments provided by the AGs of
NE et al., Rep. Bice, and ALC do not provide a reasonable basis for
withdrawal of the February 2024 Direct Final Rule.
F. Stakeholder Representation
Under 42 U.S.C. 6295(p)(4), interested persons that are fairly
representative of relevant points of view (including representatives of
manufacturers of covered products, States, and efficiency advocates),
as determined by DOE, may submit a joint recommendation to DOE for new
or amended energy conservation standards.
The AGs of NE et al. questioned the expertise and relevancy of
several advocacy groups who contributed to the Joint Agreement (i.e.,
the Alliance for Water Efficiency, Earthjustice, the Northwest Energy
Efficiency Alliance, the Natural Resources Defense Council, and the
National Consumer Law Center). The AGs of NE et al. asserted that none
of the advocacy groups has expertise in setting energy efficiency
standards for kitchen appliances, and none of the advocacy groups
raised concerns related to consumer pricing, appliance functionality,
or economic implications. (AGs of NE et al., No. 12838 at p. 4)
The AGs of NE et al. commented that there were several other groups
that commented on the February 2023 SNOPR but did not appear in the
joint statement. The AGs of NE et al. stated that the joint agreement
did not include the National Apartment Association (``NAA'') and the
National Multifamily Housing Council (``NMHC''). NAA and NMHC
previously raised concerns about the effects of the rulemaking on mass-
appliance purchases, which will disproportionately affect low-income
individuals. The American Gas Association (``AGA''), APGA, and NPGA
also authored a comment opposing the February 2023 SNOPR and were not
part of the joint statement. (Id. at p. 5)
The AGs of NE et al. commented that while Massachusetts, New York,
and California support DOE's proposed rulemaking, 23 States caution DOE
about the February 2024 Direct Final Rule's effects on consumer
welfare; the AGs of NE et al. asserted that EPCA requires DOE to
receive the concurrence of States across the ideological spectrum in
order to proceed with a direct final rule rather than acknowledge only
the few opinions in favor without receiving the support of a majority
of States. The AGs of NE et al. commented that many States also
previously raised legal concerns with DOE's proposed rule, which they
stated were not resolved in the February 2024 Direct Final Rule. The
AGs of NE et al. commented that States have a direct interest in
protecting consumers and are also directly affected by the rule because
so many State entities purchase conventional kitchen appliances. (Id.
at p. 6)
The AGs of UT and MT agreed with the AGs of NE et al.'s concerns
over the participants in the Joint Agreement underlying the February
2024 Direct Final Rule, along with their concerns that the group does
not comply with EPCA. (AGs of UT and MT, No. 12841 at p. 1)
The AGs of NE et al. stated their concern that DOE engaged in
``administrative arm-twisting'' and indicated that AHAM's change of
approach from opposing to supporting the energy efficiency standards in
question reflects a subtle example of the effect of DOE's arm-twisting
on AHAM. (AGs of NE et al., No. 12838 at p. 5)
In response to the comments regarding whether the Joint Agreement
was submitted by persons fairly representative of relevant points of
view, DOE reiterates that 42 U.S.C. 6295(p)(4) states that if the
criteria in 42 U.S.C. 6295(o) are met, the Secretary may issue a final
rule that establishes an energy conservation standard ``[o]n receipt of
a statement that is submitted jointly by interested persons that are
fairly representative of relevant points of view (including
representatives of manufacturers of covered products, States, and
efficiency advocates), as determined by the Secretary.'' (42 U.S.C.
6295(p))
As stated in the February 2024 Direct Final Rule, DOE determined
that this requirement was met. 89 FR 11434, 11446. The Joint Agreement
included a trade association, AHAM, which represents 19 manufacturers
of the subject covered products--consumer conventional cooking
products. Id. The Joint Agreement also included environmental and
energy-efficiency advocacy organizations, consumer advocacy
organizations, and a gas and electric utility company. Id.
Additionally, DOE received a letter in support of the Joint Agreement
from the States of New York, California, and Massachusetts (see comment
No. 12812). Id. DOE also received a letter in support of the Joint
Agreement from the gas and electric utility, San Diego Gas and
Electric, and the electric utility, Southern California Edison (see
comment No. 12813). Id. Representatives from each of the relevant
points of view described in 42 U.S.C. 6295(p)(4) supported the Joint
Agreement.
DOE has ample authority to accept a joint statement in these
circumstances. EPCA does not require that the Joint Agreement be
representative of every point of view. Nor does it require that a
statement be submitted by all
[[Page 65531]]
interested persons. Rather, it requires a statement from a sufficient
number and diversity of ``interested persons'' such that the statement
is ``fairly representative of relevant points of view.'' The Joint
Agreement presented here is such a statement, as the Secretary
determined.
Contrary to the commenters' suggestion, EPCA does not include any
requirement that ``relevant points of view'' must include politically
opposite points of view. Rather, EPCA ensures a diversity of opinions
and interests by requiring that parties that provide a joint agreement
must be fairly representative of relevant points of view (including
representatives of manufacturers of covered products, States, and
efficiency advocates), as determined by the Secretary. (42 U.S.C.
6295(p)(4)(A))
Moreover, regardless of whether amended energy conservation
standards are recommended as part of a joint agreement or proposed by
DOE, the standards have to satisfy the same criteria in 42 U.S.C.
6295(o). Thus, once DOE has determined that a joint agreement was
submitted by interested persons that are fairly representative of
relevant points of view, DOE then determines whether the joint
agreement satisfies the relevant statutory criteria. As a result, in
evaluating whether comments provide a reasonable basis for withdrawing
a direct final rule, it is the substance of the comments, not the
number of stakeholders that submit statements in favor of, or opposed
to, the joint agreement, that determines whether a rule should be
withdrawn.
DOE also finds meritless the contention that the Joint Agreement
parties are not competent to present a statement for the purposes of
section 6295(p). Contrary to the characterizations by the AGs of NE et
al., the parties to the Joint Agreement have an established historical
record of participation in DOE rulemakings and have submitted detailed
comments in the past that demonstrate a thorough understanding of the
technical, legal, and economic aspects of appliance standards
rulemakings, including factors affecting specific groups such as low-
income households.
In a follow-up letter from the parties to the Joint Agreement, each
organization provided a brief description of its background. American
Council for an Energy-Efficient Economy is a nonprofit research
organization and its independent analysis advances investments,
programs, and behaviors that use energy more effectively and help build
an equitable clean energy future. Alliance for Water Efficiency is a
nonprofit dedicated to efficiency and sustainable use of water that
provides a forum for collaboration around policy, information sharing,
research, education, and stakeholder engagement. ASAP organizes and
leads a broad-based coalition effort that works to advance new
appliance, equipment, and lighting standards that cut emissions that
contribute to climate change and other environmental and public health
harms, save water, and reduce economic and environmental burdens for
low- and moderate-income households. AHAM represents more than 150
member companies that manufacture 90 percent of the major portable and
floor care appliances shipped for sale in the United States. CFA is an
association of more than 250 non-profit consumer and cooperative groups
that advances the consumer interest through research, advocacy, and
education. Consumer Reports is a mission-driven, independent, nonprofit
member organization that empowers and informs consumers, incentivizes
corporations to act responsibly, and helps policymakers prioritize the
rights and interests of consumers in order to shape a truly consumer-
driven marketplace. Earthjustice is a nonprofit public interest
environmental law organization advocating to advance clean energy and
combat climate change. National Consumer Law Center supports consumer
justice and economic security for low-income and other disadvantaged
people in the United States through its expertise in policy analysis
and advocacy, publications, litigation, expert witness services, and
training. National Resources Defense Council is an international
nonprofit environmental organization with expertise from lawyers,
scientists, and other environmental specialists. Northwest Energy
Efficiency Alliance is a collaboration of 140 utilities and efficiency
organizations working together to advance energy efficiency in the
Northwest on behalf of more than 13 million consumers. Pacific Gas and
Electric Company represents one of the largest combined gas and
electric utilities in the Western United States, serving over 16
million customers across northern and central California.\14\
---------------------------------------------------------------------------
\14\ This document is available in the docket at:
www.regulations.gov/comment/EERE-2014-BT-STD-0005-12814.
---------------------------------------------------------------------------
Finally, DOE notes that it had no role in requesting that the
parties to the Joint Agreement submit the Joint Agreement or in
negotiating the terms of the Joint Agreement. As noted in the Joint
Agreement itself, the parties accepted the agreement based on the
totality of the agreement. DOE's participation was limited to
evaluating the joint submission under the criteria set forth in 42
U.S.C. 6295(p).
Therefore, DOE reaffirms its determination that the Joint Agreement
was submitted by interested persons that are fairly representative of
relevant points of view.
G. Responses to Previous Stakeholder Comments
The AGs of NE et al. commented that there were many comments made
by AHAM, Whirlpool, and Sub-Zero Group Inc. in previous rounds of the
rulemaking that the AGs of NE et al. found were not adequately
addressed in the February 2024 Direct Final Rule. For example, the AGs
of NE et al. stated that the February 2024 Direct Final Rule does not
address Whirlpool's concern that DOE did not conduct a North American
integrated supply-chain analysis. The AGs of NE et al. commented that
the February 2024 Direct Final Rule neglects to address AHAM's previous
concern cooking products will not be able to maintain certain features
and functionalities and households at or near the poverty line would be
negatively affected by having to purchase new cooking appliances. The
AGs of NE et al. commented that although AHAM later authored a joint
agreement in favor of the February 2024 Direct Final Rule, DOE did not
adequately address the concerns listed in AHAM's earlier comment and
therefore does not assuage concerns that the new energy efficiency
standards will raise prices for conventional stoves and ovens with
disproportionate harm to low-income households. (AGs of NE et al., No.
12838 at pp. 2-4)
In response to the comments from the AGs of NE et al. that DOE did
not respond in the February 2024 Direct Final Rule to the comments
submitted by signatories to the Joint Agreement and other stakeholders
in response to the February 2023 SNOPR, DOE notes that the commenters
misunderstand DOE's direct final rule authority under EPCA. As
discussed in the February 2024 Direct Final Rule, DOE was already
conducting a rulemaking to consider amending the standards for consumer
conventional cooking products when the Joint Agreement was submitted.
89 FR 11434, 11444. After receiving the Joint Agreement, DOE initiated
a separate rulemaking action and subsequently issued the February 2024
Direct Final Rule after determining that the recommendations contained
in the Joint Agreement were compliant with 42 U.S.C. 6295(o). Id. The
February
[[Page 65532]]
2024 Direct Final Rule is a separate rulemaking, conducted under a
different statutory authority from DOE's prior rulemaking in the
February 2023 SNOPR, and DOE has no obligation to consider comments
submitted in response to that prior rulemaking in a different
rulemaking. Further, both the efficiency levels and compliance periods
proposed in the February 2023 SNOPR are different from those adopted in
the February 2024 Direct Final Rule.
Even though DOE was not required to consider comments from the
February 2023 SNOPR, DOE did in fact consider relevant comments, data,
and information obtained through the February 2023 SNOPR. This included
the issues that the AGs of NE et al. asserted DOE ignored in the
February 2024 Direct Final Rule.
In response to concerns about manufacturer supply chain, DOE noted
in the February 2024 Direct Final Rule that 77 percent of electric
smooth element cooking tops, 97 percent of gas cooking tops, 95 percent
of electric ovens, and 96 percent of gas ovens will already meet or
exceed the standards by the first year of compliance. 89 FR 11434,
11516. Given that a significant portion of the market already meets or
exceeds the adopted standard, it is very unlikely that the adopted
standard will impact the cooking product supply chain.
Additionally, in the February 2024 Direct Final Rule, DOE
specifically addressed the ability of consumer conventional cooking
products to maintain certain features and functionalities. 89 FR 11434,
11524. For example, DOE determined that the adopted standards would not
preclude any combination of features mentioned by manufacturers, can be
achieved by both standalone cooking tops and the cooking top portion of
combined cooking products (e.g., ranges), do not preclude the use of
extra-high input rate burners or multiple high-input rate (``HIR'')
burners \15\ on a cooking top and would therefore not impact cooking
times, do not preclude the use of low-input rate burners, and can be
achieved by gas cooking tops with continuous cast iron grates. Id. at
89 FR 11526, 11529-11530. Furthermore, DOE emphasizes that the adopted
standard will not impact the utility or performance of consumer
conventional cooking products and consumers are not likely to switch
fuel types as a result of the adopted standard. AHAM commented that the
energy conservation standards adopted in the February 2024 Direct Final
Rule fully addressed those concerns and maintain important consumer
features and utilities. AHAM commented that DOE's expanded test sample
shows that both electric and gas ranges can meet the adopted standards
while preserving important consumer features. (AHAM, No. 12845 at pp.
6-7)
---------------------------------------------------------------------------
\15\ In the February 2024 Direct Final Rule, DOE defined an HIR
burner as a burner rated at or above 14,000 Btu per hour.
---------------------------------------------------------------------------
In the February 2024 Direct Final Rule, DOE considered the impact
on low-income households by performing a LCC subgroup analysis for low-
income households. 89 FR 11434, 11488-11489. Notably, consistent with
Joint Agreement, in the February 2024 Direct Final Rule DOE adopted a
lower standard level for gas cooking tops than the level proposed in
the February 2023 SNOPR. DOE estimated that the lower standard level
would result in 1 percent of low-income households experiencing a net
cost due to the standard, compared with 18 percent at the proposed
level in the February 2023 SNOPR. The adopted standard level for gas
cooking tops in the February 2024 Direct Final Rule also reduced the
estimated incremental increase in purchase price to $2.24, compared
with $18.27 at the proposed standard level in the February 2023 SNOPR.
Furthermore, in response to concerns that the adopted standard will
impact housing costs, DOE notes that the estimated installed cost
increase associated with the adopted standards is less than one percent
relative to the cost of a baseline unit for all product classes and is
unlikely to impact housing production or affordability.
H. Formal Rulemaking
The AGs of NE et al. recommended that before enacting these
stringent new standards for consumer conventional cooking products, DOE
return to formal rulemaking or, at a minimum, to proceed with informal
notice-and-comment rulemaking to allow States and other relevant
parties to participate in rulemaking processes that affect nearly every
household appliance and also ensure a minimal level of political
accountability by giving visibility to internal agency deliberations.
The AGs of NE et al. further commented that the lack of a formal
process does not allow people the opportunity to comment on rules that
touch the lives of nearly all Americans. (AGs of NE et al., No. 12838
at pp. 1-2, 7-8, 9-10) The AGs of UT and MT similarly recommended DOE
halt the rulemaking. (AGs of UT and MT, No. 12841 at p. 5)
ALC recommended that the rulemaking be reviewed in accordance with
the Administrative Procedure Act (``APA'')'s requirements; ALC added
that the Administration's attempt to shield its regulations from review
seeks to undermine that principle. ALC recommended that DOE reconsider
the use of the standards and present rationale for its standards that
satisfies the APA and respects the important role of judicial review.
(ALC, No. 12834 at pp. 7-8) Similarly, the AGs of UT and MT expressed
concerns about pretext and circumvention of the APA, and regarding
DOE's conduct in this rulemaking and in recent litigation. (AGs of UT
and MT, No. 12841 at pp. 1-2)
Butt commented that DOE's limited engagement with stakeholders
raises concerns about transparency, accountability, and inclusivity in
the regulatory process. (Butt, No. 12837 at p. 2)
AHAM stated that interested parties have had ample opportunity to
comment through the proposed and supplemental proposed rules, two
notifications of data availability, and the February 2024 Direct Final
Rule. AHAM noted that, in fact, the February 2024 Direct Final Rule
process provided an extra 110 days for interested parties to review
DOE's final rule and submit comments--which met EPCA requirements.
(AHAM, No. 12845 at p. 5)
In response, DOE notes that Congress granted DOE the authority to
issue energy conservation standards as direct final rules subject to
certain conditions and procedural requirements. As discussed in the
February 2024 Direct Final Rule, DOE determined that the Joint
Agreement was submitted jointly by interested persons that are fairly
representative of relevant points of view and the adopted energy
conservation standards as recommended in the Joint Agreement would
result in significant energy savings and are technologically feasible
and economically justified as required under 42 U.S.C. 6295(o) and
provided supporting analysis. 89 FR 11434, 11446. DOE did not
contribute to the development of the Joint Agreement. Rather, as
provided in EPCA, DOE's role was to evaluate what was submitted and
determine if meets the criteria for issuing a DFR. DOE strongly
disagrees with the assertions that its actions here violate the APA or
are otherwise improper.
Additionally, DOE notes it followed the procedures in 42 U.S.C.
6295(p)(4) to publish a direct final rule in the Federal Register
simultaneously with a NOPR proposing identical standards and allowed
110 days for public comment. See 89 FR 11434 and 89 FR 11548. Regarding
the comment about formal rulemaking, DOE has met all of its statutory
requirements under its
[[Page 65533]]
direct rule authority, which does not require formal rulemaking.\16\
Finally, regarding the comments about the APA, EPCA mandates the
substance and process by which DOE establishes energy conservation
standards and develops direct final rules. While the APA provides DOE
direction in areas in which EPCA is silent, EPCA is a comprehensive
statutory mechanism for the development, implementation, and
enforcement of energy conservation standards.
---------------------------------------------------------------------------
\16\ DOE notes that outside of its direct rulemaking authority,
DOE utilizes informal or legislative rulemaking (i.e., notice and
comment rulemaking under the Administrative Procedure Act, 5 U.S.C.
553) when it promulgates rules under EPCA, not formal rulemaking.
---------------------------------------------------------------------------
I. Other Legal Concerns
ALC commented that Congress may only regulate intrastate activity
under the Commerce Clause when the activity substantially affects
interstate commerce. ALC commented that in order to properly regulate
the intrastate market for covered products, DOE must demonstrate that
the intrastate activity substantially affects the interstate market for
the covered appliances, which ALC asserted DOE has not done. Further,
ALC disputes DOE's response to the Commerce Clause concerns in the
February 2024 Direct Final Rule. ALC states that Department's
understanding of the Commerce Clause deviates from the Clause's
original meaning and does so without addressing more recent Supreme
Court decisions questioning such an expansive interpretation of the
Commerce Clause. ALC argues that DOE overreads Raich and places it in
serious tension with precedents such as Lopez, United States v.
Morrison, Solid Waste Agency of Northern Cook County v. Army Corps of
Engineers, Sackett v. EPA, and West Virginia v. EPA. ALC states as an
example in West Virginia, the Court held that Congress did not grant
the Environmental Protection Agency ``authority to devise carbon
emissions caps'' via the Clean Power Plan because courts must ``greet
assertions of `extravagant statutory power over the national economy'
with `skepticism.''' See West Virginia v. EPA, 597 U.S. 697, 724 (2022)
(citing Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). (ALC,
No. 12834 at pp. 8-9)
As noted by ALC, DOE addressed Commerce Clause concerns in the
February 2024 Direct Final Rule. Intrastate commerce involving a
fungible commodity for which there is an established national market,
such as consumer conventional cooking products, substantially affects
interstate commerce. And, as the Supreme Court noted in Gonzales v.
Raich, 545 U.S. 1 (2005), the Commerce Clause case law ``firmly
establishes Congress' power to regulate purely local activities that
are part of an economic `class of activities' that have a substantial
effect on interstate commerce.'' Id. at 17. The Court concluded that to
leave intrastate goods unregulated where there is an established
interstate market for the commodity would have a substantial impact on
the market and could undermine the very purpose of the regulatory
scheme. See Id. at 18-19. There is an established interstate market for
conventional cooking products as the majority of these products are
sold through large, national retailers. DOE therefore affirms its view
that Congress' intent in EPCA was to provide it with authority to
regulate all consumer conventional cooking products distributed in
commerce.
ALC commented that the February 2024 Direct Final Rule raises
questions under the major questions doctrines. ALC asserted that the
February 2024 Direct Final Rule imposes comprehensive design
requirements that drastically affect consumer use and enjoyment and
without a clear statement of authority the Department cannot exercise
such control over ``a significant portion of the American economy.''
West Virginia, 597 U.S. at 722 (citing Util. Air Regul. Grp., 573 U.S.
at 324). (ALC, No. 12834 at p. 9)
DOE reiterates that it determined the February 2024 Direct Final
Rule would not result in the unavailability of products that are
substantially the same as those currently available in the United
States. As discussed, DOE specifically addressed the ability of
consumer conventional cooking products to maintain certain features and
functionalities. DOE stated in the February 2024 Direct Final Rule that
the adopted standards would not preclude multiple HIR burners and
continuous cast-iron grates or any combination of features mentioned by
manufacturers, as demonstrated by products from multiple manufacturers
in DOE's test sample. 89 FR 11434, 11524, 11526. Further, contrary to
ALC's assertion, DOE has very clear authority under EPCA to establish
energy conservation standards for consumer conventional cooking
products. See 42 U.S.C. 6292(a)(10). Under EPCA, as amended, DOE has
been directed by Congress to establish or implement energy conservation
standards for consumer products for over 40 years.
ALC commented that the February 2024 Direct Final Rule raises
questions under the nondelegation doctrine because DOE employs the
social cost of greenhouse gases (``SC-GHG'') to justify the final rule
yet cites no clear congressional statement of authority to rely on such
a factor. Further the rule is legislative in nature because it
formulates generally applicable rules of private conduct--an inherently
legislative function. (ALC, No. 12834 at pp. 9-10)
First, as stated in the February 2024 Direct Final Rule, DOE
determined that the rule was economically justified without accounting
for the social cost of greenhouse gases. 89 FR 11434, 11498. DOE,
however, continues to believe that the environmental and public health
benefits associated with more efficient use of energy, including those
connected to global climate change, are important factors to evaluate
when considering the need for national energy conservation. Id. As for
ALC's comment about the nondelegation doctrine, ``a delegation is
constitutional so long as Congress sets out an intelligible principle
to guide the delegee's exercise of authority.'' Gundy v. United States,
588 U.S. 128, 130 (2019). Further, ``the standards for that principle
are not demanding.'' Id. In EPCA, Congress lists criteria that must be
met before DOE can issue a new or amended standard. See 42 U.S.C.
6295(o) (``[c]riteria for prescribing new or amended standards'').
Congress, among other things, directs DOE to establish energy
conservation standards that represent the maximum improvement in energy
efficiency that is technologically feasible and economically justified.
(42 U.S.C. 6295(o)(2)(A)) Congress further specifies the factors DOE
has to consider when determining whether an energy conservation
standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(I)-
(VII)) Congress also specifies that a new or amended standard has to
result in significant conservation of energy (42 U.S.C. 6295(o)(3)(B))
and cannot result in the unavailability of performance characteristics,
features, sizes, capacities, and volumes that are substantially the
same as those generally available in the market (42 U.S.C. 6295(o)(4)).
In EPCA, Congress has clearly indicated a general policy for DOE to
follow in prescribing energy conservation standards and the boundaries
of that authority. See American Power & Light, 329 U.S. 90, 105 (1946).
ALC commented that the February 2024 Direct Final Rule raises
serious Federalism questions because it forecloses States from
exercising their own judgment in an area traditionally reserved to
their discretion, which upsets the balance between Federal and State
powers. ALC commented that
[[Page 65534]]
because of the rule's significance and the constitutional questions it
raises, the standards must be authorized by clear authority. (ALC, No.
12834 at p. 10)
As discussed in section II.A of the February 2024 Direct Final
Rule, DOE has clear authority to establish energy conservation
standards for cooking products. 89 FR 11434, 11441-11443. Further, the
preemptive effect of Federal energy conservation standards on State
laws is clearly described in EPCA. See 42 U.S.C. 6297.
IV. Impact of Any Lessening of Competition
EPCA directs DOE to consider any lessening of competition that is
likely to result from new or amended standards. (42 U.S.C.
629(p)(4)(A)(i) and (C)(i)(II); 42 U.S.C. 6295(o)(2)(B)(i)(V)) It also
directs the Attorney General of the United States (``Attorney
General'') to determine the impact, if any, of any lessening of
competition likely to result from a proposed standard and to transmit
such determination to the Secretary within 60 days of the publication
of a proposed rule, together with an analysis of the nature and extent
of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) To assist
the Attorney General in making this determination, DOE provided the
Department of Justice (``DOJ'') with copies of the February 2024 Direct
Final Rule, the corresponding NOPR, and the February 2024 Direct Final
Rule TSD for review. DOE has published DOJ's comments at the end of
this document.
In its letter responding to DOE, DOJ concluded that, based on its
review, the direct final rule standards for consumer conventional
cooking products are unlikely to have a significant adverse impact on
competition.
V. Conclusion
In summary, based on the previous discussion, DOE has determined
that the comments received in response to the direct final rule for new
and amended energy conservation standards for consumer conventional
cooking products do not provide a reasonable basis for withdrawal of
the direct final rule. As a result, the energy conservation standards
set forth in the direct final rule became effective on June 13, 2024.
Compliance with these standards is required on and after January 31,
2028.
Signing Authority
This document of the Department of Energy was signed on August 2,
2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for
Energy Efficiency and Renewable Energy, pursuant to delegated authority
from the Secretary of Energy. That document with the original signature
and date is maintained by DOE. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of the Department of Energy. This administrative
process in no way alters the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on August 2, 2024.
Treena V. Garrett,
Federal Register Liaison Officer,U.S. Department of Energy.
[FR Doc. 2024-17474 Filed 8-9-24; 8:45 am]
BILLING CODE 6450-01-P