In its March 2018 Petition, CEI presented dishwasher cycle time data compiled from annual Consumer Reports data. These data include the range of cycle times measured by Consumer Reports as well as an approximate market-average cycle time for each year. Based on the Consumer Reports data, CEI concluded that the historical increase in the average normal cycle time demonstrates that current standards have precluded manufacturers from offering products with short cycles as the normal cycle. 10 In particular, CEI noted that the average cycle time had not been about 1 hour since 1983, before any standards were adopted; average cycle time in 2018 was 2 hours and 20 minutes, and, according to CEI, had “more than doubled due to current energy standards.” CEI further asserted that “when a new energy standard is adopted by the DOE, the result is an increase in dishwasher cycle time.” CEI also asserted that dishwasher average cycle times of less than 1 hour had been eliminated from the marketplace.

Regarding CEI's conclusion that the historical increase in the average normal cycle time demonstrates that current standards have precluded manufacturers from offering products with short cycles as the normal cycle, DOE notes that market-average cycle time is not an appropriate indicator to demonstrate any causality with standards. Instead, the minimum available cycle time is a more appropriate indicator to assess any impact of standards on dishwasher cycle time, because the minimum available cycle time on the market can provide an indication of the technological feasibility of providing shorter cycle times while meeting more stringent standards. Trends in market-average cycle times have largely been driven by other factors, discussed in the following paragraphs.

Based on the data shared by CEI in its petition, minimum cycle times (as represented by the lowest cycle time measured by Consumer Reports each year) have generally increased only during periods when standards were not amended. For example, the minimum cycle time increased from 65 minutes in 1993 to 85 minutes in 2006, a period during which there were no changes to dishwasher standards. Furthermore, the minimum cycle time as measured by Consumer Reports has decreased over the past 15 years, even while standards became more stringent during that time period.

Additionally, the short-cycle feature currently available on the market has a cycle time (41 minutes) that is lower than the minimum cycle time measured by Consumer Reports in 1983 (55 minutes), prior to the introduction of any standards for dishwashers. This demonstrates that amended standards have not prevented the technological feasibility of providing a short-cycle feature even as dishwasher standards have become more stringent, and even as the market-weighted average cycle time has increased due to other factors ( see discussion in the following paragraphs regarding potential impact of dishwasher sound levels and detergent formulation on cycle time). In other words, Consumer Reports data (as well as the other data discussed elsewhere in this document) show that current standards are not precluding manufacturers from offering dishwashers with a short-cycle feature.

Consistent with DOE's observations, in response to the March 2024 RFI, ASAP et al. noted that the Consumer Reports data presented in CEI's March 2018 Petition show that the greatest cycle-time increase came during a period when no new standards were adopted. ASAP et al. asserted that the increase in cycle time was likely driven by other factors, such as consumer preference for quieter products and changes to detergent formulation. ASAP et al. cited Reviewed, 11 which stated that older dishwashers had sound levels around 60 decibels, while modern dishwashers average between 40 and 50 decibels. ASAP et al. also cited Reviewed to explain that “there are lots of ways to reduce noise, but most of them involve reducing the machine's cleaning power, and that in turn means lengthening cycle times to compensate.” (ASAP et al., No. 8 at p. 4)

ASAP et al. also stated that by 2010, many states had banned the sale of dishwasher detergents containing phosphates, which resulted in newer detergents that use enzymes. ASAP et al. cited information from Reviewed explaining that enzyme-based detergents require more time to work, lengthening cycle times. ( Id. )

In summary, the available data demonstrate that amended standards have not affected the technological feasibility of providing a short-cycle feature, even as dishwasher standards have become more stringent, and that current standards are not precluding manufacturers from offering dishwashers with a short-cycle feature. Rather, the data provided by CEI in its petition are reflective of the expanding range of product availability on the market since the early 2000s, corresponding to a proliferation of other distinguishing features on the market.

With regard to market competition and consumer preferences, the AGs of MT et al. referenced AHAM's comments from its Petition for Reconsideration of the October 2020 Final Rule  12 to state that consumers do not want what DOE and industry have offered historically and that distinct short-cycle product classes would increase competition and consumer choice. (AGs of MT et al., No. 9 at p. 5)

The AGs of MT et al. noted that CEI's survey included 2,200 individual public comments in support of the short-cycle product class, with only 16 opposed, which the AGs of MT et al. assert is evidence that consumers find it important to clean dishes using a short cycle. ( Id. )

Contrary to the claims made by the AGs of MT et al., the CA IOUs asserted that the absence of dishwasher products with a normal cycle of 60 minutes or less is due to lack of consumer demand. The CA IOUs cited an LBNL report that studied dishwasher consumer preferences based on a survey of 1,201 consumers, ranking from most to least important attributes affecting consumers' purchase decision, 13 and provided a figure illustrating its findings that dishwasher cycle time ranked 14 out of 18 attributes, well below average importance for consumers and significantly lower than energy efficiency, which was ranked fifth, and energy bill cost savings, which was ranked sixth. The CA IOUs stated that based on multiple stakeholders' comments, 14 15 consumers prioritize cleaning performance, dish rack features, drying performance, energy and water efficiency, and low noise levels. (CA IOUs, No. 6 at pp. 5-6)

In accordance with the comment from the CA IOUs regarding the importance of energy efficiency to consumers, ASAP et al. noted that the market penetration of ENERGY STAR®-qualified dishwashers ranged between 84 percent and 100 percent between 2010 and 2022, which ASAP et al. asserted provides an indication that consumers are choosing to buy highly efficient dishwashers. (ASAP et al., No. 8 at p. 4)

AHAM stated that manufacturers pay careful attention to consumer needs and desires for particular features and utilities. (AHAM, No. 5 at p. 4)

In addition to the data cited by commenters, DOE notes that according to the U.S. Energy Information Administration's (“EIA's”) 2020 Residential Energy Consumption Survey (“RECS”), 16 over 80 percent of consumers use normal cycles, as currently designed ( i.e., generally longer than 60 minutes) most of the time.

Based on the comments and data discussed in the preceding paragraphs, DOE tentatively concludes that consumers on the whole prioritize other attributes over cycle length, and product design is largely driven by these consumer preferences. To the extent that manufacturers prioritize other attributes of dishwasher performance over providing a short-cycle feature, such prioritization is a result of manufacturers targeting broad consumer preferences and not an indication that DOE's energy conservation standards are precluding manufacturers from offering a short-cycle feature.

The following sections apply DOE's authority under EPCA at 42 U.S.C. 6295(q) to determine whether a “short-cycle” feature for RCWs is a performance-related feature that justifies the establishment of separate product classes. DOE considers a short-cycle feature for top-loading RCWs to be a cycle that can completely wash a full load of normally soiled cotton clothing in less than 30 minutes, and for front-loading RCWs to be a cycle that can completely wash a full load of normally soiled cotton clothing in less than 45 minutes. 17 DOE first reiterates its prior determinations that cycle time is a performance-related feature of RCWs and details its specific consideration of the short-cycle feature ( see section II.B.1 of this document). As discussed in section II.B.2 of this document, DOE tentatively determines in this analysis that the short-cycle feature does not justify a different standard. Data and information from the Short-cycle Final Rules, the RCW direct final rule published on March 15, 2024 (“March 2024 RCW Direct Final Rule”; 89 FR 19026), and the March 2024 RFI show that RCWs currently available with a short normal cycle ( i.e., with a cycle time less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs) can meet the current energy conservation standards using the same design strategies as other RCWs of comparable efficiency without a short-cycle feature. Finally, in section II.B.3 of this document, DOE addresses other pertinent comments received in response to the March 2024 RFI that pertain to the RCW topics discussed in this document.

DOE first considered whether cycle time is a performance-related feature of RCWs in accordance with 42 U.S.C. 6295(q)(1)(B). Consistent with DOE's assessment in previous rulemakings, discussed as follows, DOE reiterates that cycle time is a performance-related feature of RCWs.

DOE has previously considered cycle time as a consumer utility for the purposes of establishing product classes for RCWs. In a direct final rule published on May 31, 2012, (“May 2012 Direct Final Rule”) DOE determined that the longer cycle times of front-loading RCWs versus cycle times for top-loading RCWs are likely to impact consumer utility. 77 FR 32308, 32319. Because the wash cycle times for front-loaders arise from the reduced mechanical action of agitation as compared to top-loaders, DOE stated that it believes that such longer cycles may be required to achieve the necessary cleaning, and thereby constitute a performance-related utility of front-loading versus top-loading RCWs pursuant to the meaning of 42 U.S.C. 6295(q). 77 FR 32308, 32319.

In a NOPR published on August 13, 2020 (“August 2020 NOPR”), DOE discussed that consumer use of RCWs is similar to that of dishwashers, in that the products provide consumer utility over discrete cycles with programmed cycle times, and consumers run these cycles multiple times per week on average. As such, the impact of cycle time on consumer utility identified by CEI in its petition regarding dishwashers is also relevant to RCWs. Based on these considerations, DOE concluded that cycle time for RCWs is a performance-related feature for the purposes of 42 U.S.C. 6295(q). 85 FR 49297, 49299.

DOE reiterated this conclusion in the December 2020 Final Rule. Specifically, DOE concluded in the December 2020 Final Rule that RCWs with a short normal cycle ( i.e., with a cycle time less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs) provide a distinct utility to consumers that other RCWs do not provide, and that consumers receive a utility from the short normal cycle feature to support the establishment of new product classes under 42 U.S.C. 6295(q)(1)(B). 85 FR 81359, 81363-81364. The “normal cycle” refers to the cycle recommended to the consumer for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing. In the January 2022 Final Rule, DOE did not question the validity of those prior determinations made that short cycles provide a performance-related feature. 87 FR 2673, 2682.

In response to the March 2024 RFI, AHAM stated that cycle time is an important consumer feature. (AHAM, No. 5 at p. 1). The AGs of MT et al. stated that consumers find distinct utility in appliances that are actually capable of washing clothes on a short cycle. (AGs of MT et al., No. 9 at p. 5).

The CA IOUs commented that short-cycle product classes for RCWs are unwarranted because they do not meet the requirements for a separate product class under EPCA. The CA IOUs stated that “cycle time” is not a “capacity or other performance-related feature” that justifies a higher or lower standard as specified under 42 U.S.C. 6295(q)(1). The CA IOUs further noted that under 42 U.S.C. 6295(o)(4), the types of features that are considered for establishing a higher or lower standard, and thus, separate product class, include reliability, size, capacity, volume, and similar attributes. The CA IOUs further asserted that cycle time, for the products at issue, is outside the scope of what EPCA permits DOE to consider in establishing or maintaining separate product classes. (CA IOUs, No. 6 at p. 8)

For the reasons stated in the May 2012 Direct Final Rule, August 2020 NOPR, and December 2020 Final Rule, DOE reconfirms in this proposed confirmation of withdrawal that cycle time is a performance-related feature of RCWs for the purposes of 42 U.S.C. 6295(q). In the sections that follow, DOE evaluates whether such a short-cycle feature justifies separate product classes in accordance with 42 U.S.C. 6295(q).

As discussed, EPCA authorizes DOE to prescribe a higher or lower standard than that which applies (or would apply) for such type (or class) for any group of covered products which have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE considers such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. ( Id. )

DOE stated in the August 2020 NOPR, and reiterated in the December 2020 Final Rule, that it presumed manufacturers were implementing the shortest possible cycle times that enabled a clothes washer to achieve satisfactory cleaning performance (and other aspects of clothes washer performance) while meeting the applicable energy and water conservation standards. 85 FR 81359, 81361. DOE stated its belief that the current energy conservation standards may have been precluding or discouraging manufacturers from introducing models to the market with substantially shorter cycle times. Id. DOE further stated in the December 2020 Final Rule that its actions ( i.e., establishing short-cycle product classes for top-loading and front-loading RCWs) were intended to incentivize manufacturers to provide consumers with new options when purchasing RCWs, asserting that creation of these new product classes would incentivize manufacturers to develop innovative products with short cycle times for those consumers that receive a value from the time saved washing and drying their clothing. Id. at 85 FR 81360-81361. DOE further stated its intent to determine the specific energy and water consumption limits for the new product classes in a separate rulemaking. Id.

DOE has conducted an analysis of the energy and water use of a short-cycle feature for RCWs to evaluate whether different ( i.e., comparatively less stringent) standards would be warranted for RCWs that provide a short-cycle feature. As discussed in the previous section of this document, DOE has determined that a normal cycle of less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs is a performance-related feature that provides consumer utility for the purpose of consideration of potential product class distinction under the provisions of 42 U.S.C. 6295(q). DOE next evaluated whether RCWs with a short-cycle feature necessitate more energy and water use than RCWs without such feature, which could justify a comparatively less stringent standard for RCWs that provide such a feature.

To evaluate the energy and water use of a short-cycle feature in comparison to the currently applicable energy and water standards, DOE considered all data available from recent rulemakings, including DOE's data from testing conducted in support of the December 2020 Final Rule and the March 2024 RCW Direct Final Rule and confidential data received from AHAM. 18 All RCW test data evaluated in this manner was based on testing of the Normal cycle as defined in section 1 of appendix J2, corresponding to the cycle recommended by the manufacturer for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing.

From among DOE's test samples, DOE identified 3 top-loading RCWs and 9 front-loading RCWs that provide a short-cycle feature. Specifically, these units have a normal cycle time of less than 30 minutes for the top-loading RCWs and less than 45 minutes for the front-loading RCWs.

From AHAM's test sample, DOE identified 1 top-loading standard-size RCW with a normal cycle time of less than 30 minutes and 4 front-loading RCWs with a normal cycle time of less than 45 minutes.

DOE then assessed the energy and water use of the short-cycle feature on these units in comparison to the currently applicable DOE standards. For all of these units, the short-cycle feature uses no more energy and water than the maximum allowable standard levels for standard-size RCWs, demonstrating that providing a short-cycle feature consistent with consumer expectations of a normal cycle ( i.e., a cycle that can completely wash a full load of normally soiled cotton clothing in less than 30 or 45 minutes for top-loading and front-loading RCWs respectively) does not necessitate using more energy and water than an RCW without such feature that meets the current standards. DOE further evaluated the technologies and design strategies used by these RCW models and has tentatively concluded that these units do not incorporate any proprietary technologies or design strategies and are designed no differently than other RCW models of comparable efficiency without a short-cycle feature.

DOE has tentatively concluded that the availability of this feature currently on the market—at energy and water levels that comply with the current standards—in units with no identifiable proprietary designs or control strategies demonstrates that an RCW with a short-cycle feature does not inherently use more energy and water than an RCW without such feature, and that the current RCW standards do not preclude manufacturers from offering a short-cycle feature ( i.e., a normal cycle time of less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs). On the basis that both top-loading and front-loading RCWs with short-cycle features are currently available on the market with no identifiable proprietary designs or control strategies, DOE has tentatively determined that a short-cycle feature is technologically feasible and that current standards do not prevent manufacturers from providing a short-cycle feature.

In response to the March 2024 RFI, DOE received the following comments regarding establishing separate short-cycle product classes for RCWs.

AHAM stated that new product classes to protect the short-cycle feature are not justified at this time under 42 U.S.C. 6295(q) for the following reasons: (1) consumers are satisfied with existing normal cycle times based on AHAM's 2021 Consumer Research, which found that 78 percent of respondents were satisfied with the length of the normal cycle of their laundry appliance; (2) most RCWs already provide consumers with short cycle time options; and, (3) data shows that standards are not expected to increase cycle time significantly. (AHAM, No. 5 at p. 5)

NEEA commented that short-cycle product classes for RCWs are unwarranted. NEEA stated that its comments build upon past NEEA letters submitted to DOE, which demonstrated that short-cycle product classes were not appropriate for these appliances. NEEA added that recent research clearly reinforces these conclusions. (NEEA, No. 4 at p. 2)

China commented that DOE should remove the short-cycle product classes. China commented that the short-cycle product class is not defined in the regulations and standards, which makes it difficult for manufacturers to clearly classify their products into this product class. (China, No. 11 at p. 2)

An individual commented expressing support for short-cycle product classes for RCWs and stated that products with a “short cycle” as the normal cycle should be subject to different standards than products without a “short cycle” as the normal cycle. The individual noted that such a rulemaking would save consumers money by lowering the cost of their electric bills. (McCray, No. 3 at p. 1)

LG commented that, after internal discussions and discussions with industry partners to evaluate market changes since the January 2022 Final Rule, LG is supportive of DOE's decision in the January 2022 Final Rule and opposes new product classes for short-cycle products. LG added that for appliances to satisfy cleaning and drying performance in a shorter amount of time while achieving the same performance, it would be inevitable that they would consume more energy—an outcome that contradicts DOE's objective to adopt standards that would result in more energy conservation. (LG, No. 7 at pp. 1-2)

As noted earlier in this section, both top-loading and front-loading RCWs with short-cycle features are currently available on the market with no identifiable proprietary designs or control strategies. That is, RCWs with shorter cycle times do not need to consume more energy than the current standard to provide the same performance.

Rep. Bice commented in opposition to multiple rulemakings recently published by DOE that add new regulations to consumer products. Rep. Bice asserted that the standards would increase costs for manufacturers and prices for consumers. Rep. Bice commented that regulation limits consumer choice and is onerous for American manufacturers, including many small businesses. (Rep. Bice, No. 2 at p. 1)

DOE notes that this proposed confirmation of withdrawal does not propose to add any new regulations for RCWs. Instead, this proposed confirmation of withdrawal reanalyzes the provisions of a previous rulemaking ( i.e., the January 2022 Final Rule) that withdrew short-cycle product classes.

In conclusion, based on the available test data—which demonstrate that it is feasible to design a short-cycle feature while meeting current standards—DOE has tentatively determined that (1) a short-cycle feature for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing is technologically feasible; (2) current standards do not prevent RCW manufacturers from providing such a short-cycle feature; and (3) multiple RCW models are currently available on the market that provide such a short-cycle feature that meet the currently applicable energy and water standards. For these reasons, DOE has tentatively determined that a short-cycle feature for RCWs does not justify separate product classes with separate standards under 42 U.S.C. 6295(q). DOE requests comment on these proposed determinations.

DOE received comments in response to the March 2024 RFI from stakeholders discussing the prevalence of quick cycles on current RCW models.

NEEA stated that consumers can already access quick cycles on current RCW models. NEEA stated that its review of the 58 best-selling models in the northwest United States  19 indicated that 94 percent of RCW models provided a quick-cycle program, noting that quick cycles are widely available in both top-loading and front-loading models. NEEA further commented that consumer-use data found that the quick cycle is used relatively infrequently in RCWs, citing their previous letter  20 showing that the quick cycle is selected 8 percent of the time. (NEEA, No. 4 at p. 3)

LG commented that that there are RCWs currently on the market that have default cycles comparable to DOE's definition of short cycles while also offering additional short cycles as an option and because such products are already prevalent, it would be counterproductive to establish new product classes, which would involve simply setting a short cycle as the default cycle. (LG, No. 7 at p. 1)

The CA IOUs commented that short-cycle product classes for RCWs are unwarranted, as other products of the same type are already available with quick cycles that meet current and future DOE energy conservation standards. (CA IOUs, No. 6 at p. 1) The CA IOUs also stated that they could not find substantial evidence that consumers largely prefer shorter cycle times. The CA IOUs presented results from a 2024 in-store survey, showing that consumers were satisfied with a 45- to 60-minute RCW cycle. The CA IOUs additionally stated that survey results showed that 57 percent of consumers favored an ENERGY STAR-qualified RCW, 27 percent preferred a quiet RCW, and only 16 percent preferred an RCW with a cycle time of 30 minutes or less. ( Id. at pp. 1-2)

Confidential data submitted to DOE by AHAM in response to the March 2024 RFI show that 91 percent of RCW models offer a quick cycle with cycle times ranging from 15 minutes to 59 minutes and the recommended soil level for the quick cycle is “normal” for 6 percent of these RCW models.

The prevalence and variety of quick-cycle offerings as reflected in these data presented by stakeholders support DOE's conclusions in section II.B.1 of this document that cycle time is a performance-related feature for the purposes of 42 U.S.C. 6295(q).

In consideration of the Fifth Circuit's opinion that DOE's prior reasoning in the January 2022 Final Rule improperly relied upon the prevalence of “quick” cycles that do not address the foundational concerns underlying the December 2020 Final Rule, DOE considered in this analysis only those cycles that are consistent with consumer expectations of a normal cycle ( i.e., a cycle for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing) and have a cycle time of less than 30 minutes for top-loading RCWs and less than 45 minutes for front-loading RCWs.

The following sections apply DOE's authority under EPCA at 42 U.S.C. 6295(q) to determine whether a “short-cycle” feature for consumer clothes dryers is a performance-related feature that justifies the establishment of a separate product class. DOE considers a short-cycle feature for consumer clothes dryers to be a normal cycle that offers cycle times of less than 30 minutes. DOE first reiterates its prior determinations that cycle time is a performance-related feature of consumer clothes dryers and details its specific consideration of the short-cycle feature ( see section II.C.1 of this document). As discussed in section II.C.2 of this document, DOE tentatively determines in this analysis that the short-cycle feature does not justify a different standard. Data and information from the Short-cycle Final Rules, the consumer clothes dryers direct final rule published on March 12, 2024 (“March 2024 Dryers Direct Final Rule”; 89 FR 18164), and the March 2024 RFI show that products with a normal cycle of less than 30 minutes can meet the current energy conservation standards using the same design strategies as other consumer clothes dryers of comparable efficiency without a short-cycle feature. Finally, in section II.C.3 of this document, DOE addresses other pertinent comments received in response to the March 2024 RFI that pertain to the consumer clothes dryer topics discussed in this document.

DOE first considered whether cycle time is a performance-related feature of consumer clothes dryers in accordance with 42 U.S.C. 6295(q)(1)(B). Consistent with DOE's assessment in previous rulemakings, discussed as follows, DOE reiterates that cycle time is a performance-related feature of consumer clothes dryers.

In the August 2020 NOPR, DOE discussed that consumer use of consumer clothes dryers is similar to that of dishwashers, in that the products provide consumer utility over discrete cycles with programmed cycle times, and consumers run these cycles multiple times per week on average. As such, the impact of cycle time on consumer utility identified by CEI in its petition regarding dishwashers is also relevant to consumer clothes dryers. Based on these considerations, DOE concluded that cycle time for consumer clothes dryers is a performance-related feature for the purposes of 42 U.S.C. 6295(q). 85 FR 49297, 49299.

DOE reiterated this conclusion in the December 2020 Final Rule. 85 FR 81359, 81363-81364. Specifically, DOE concluded in the December 2020 Final Rule that consumer clothes dryers with a short normal cycle ( i.e., with a cycle time of less than 30 minutes) provide a distinct utility to consumers that other consumer clothes dryers do not provide, and that consumers receive a utility from the short normal cycle feature to support the establishment of a new product class under 42 U.S.C. 6295(q)(1)(B). Id. at 85 FR 81363, 81364. The “normal cycle” refers to the cycle recommended by the manufacturer to the consumer for drying cotton or linen clothes, among other criteria. In the January 2022 Final Rule, DOE did not question the validity of those prior determinations made about whether that short cycles provide a performance-related feature. 87 FR 2673, 2682.

In response to the March 2024 RFI, AHAM stated that cycle time is an important consumer feature, (AHAM, No. 5 at p. 1).

The CA IOUs commented that short-cycle product classes for consumer clothes dryers are unwarranted because they do not meet the requirements for a separate product class under EPCA. The CA IOUs stated that “cycle time” is not a “capacity or other performance-related feature” that justifies a higher or lower standard as specified under 42 U.S.C. 6295(q)(1). The CA IOUs further noted that under 42 U.S.C. 6295(o)(4), the types of features that are considered for establishing a higher or lower standard, and thus, separate product class, include reliability, size, capacity, volume, and similar attributes. The CA IOUs further asserted that cycle time, for the products at issue, is outside the scope of what EPCA permits DOE to consider in establishing or maintaining separate product classes. (CA IOUs, No. 6 at p. 8). (CA IOUs, No. 6 at p. 8)

For the reasons stated in the August 2020 NOPR and December 2020 Final Rule, DOE reconfirms in this proposed confirmation of withdrawal its previous determinations that cycle time is a performance-related feature of consumer clothes dryers for the purposes of 42 U.S.C. 6295(q).

In the sections that follow, DOE evaluates whether such a short-cycle feature justifies separate product classes in accordance with 42 U.S.C. 6295(q).

As discussed, EPCA authorizes DOE to prescribe a higher or lower standard than that which applies (or would apply) for such type (or class) for any group of covered products which have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE considers such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. ( Id. )

DOE stated in the August 2020 NOPR, and reiterated in the December 2020 Final Rule, that vented electric standard-size and vented gas clothes dryers that comply with the current energy conservation standards exhibit cycle times of approximately 30 minutes or longer. 85 FR 81359, 81361. Based on a presumption that manufacturers were already implementing the shortest possible cycle times that enabled a clothes dryer to achieve satisfactory drying performance (and other aspects of clothes dryer performance) while meeting the applicable energy conservation standards, DOE asserted that the standards may have discouraged manufacturers from developing clothes dryers for consumers that provide the utility of 30-minute-or-less cycle times. Id. DOE further stated in the December 2020 Final Rule that its actions ( i.e., establishing short-cycle product classes for consumer clothes dryers) were intended to incentivize manufacturers to provide consumers with new options when purchasing clothes dryers, asserting that creation of this new product class would incentivize manufacturers to develop innovative products with short cycle times for those consumers that receive a value from the time saved washing and drying their clothing. Id. at 85 FR 81360-81361. DOE further stated its intent to determine the specific energy conservation standards of the new product classes in a separate rulemaking. Id.

DOE has conducted an analysis of the energy use of a short-cycle feature for consumer clothes dryers to evaluate whether different ( i.e., comparatively less stringent) standards would be warranted for consumer clothes dryers that provide a short-cycle feature. As discussed in the previous section of this document, DOE has determined that a short-cycle feature on a consumer clothes dryer is a performance-related feature that provides consumer utility for the purpose of consideration of potential product class distinction under the provisions of 42 U.S.C. 6295(q). DOE next evaluated whether consumer clothes dryers with a short-cycle feature necessitate more energy use than consumer clothes dryers without such feature, which could justify a comparatively less stringent standard for consumer clothes dryers that provide such a feature.

To evaluate the energy use of a short-cycle feature in comparison to the currently applicable energy standards, DOE considered all data available from recent rulemakings, including DOE's data from testing conducted in support of the December 2020 Final Rule, the March 2024 Dryers Direct Final Rule, and confidential data from AHAM. All consumer clothes dryer test data evaluated in this manner was based on testing of the Normal cycle as defined in section 3.3.2 of appendix D2, corresponding to the program labeled “normal” or, for clothes dryers that do not have a “normal” program, the cycle recommended by the manufacturer for drying cotton or linen clothes. In addition, all test data represent cycles that achieve a final moisture content of 2 percent or less, which DOE has determined to be representative of the consumer-acceptable dryness level after completion of a drying cycle.

None of the units in DOE's test sample had a normal cycle time less than 30 minutes. 21 However, from the confidential data received from AHAM, DOE identified 3 electric standard-size clothes dryers and 1 vented gas standard-size clothes dryer with normal cycle times of less than 30 minutes.

DOE then assessed the energy use of the short-cycle feature on these units in comparison to the current applicable DOE standards. For all of these units, the short-cycle feature uses no more energy than the maximum allowable standard levels for standard-size consumer clothes dryers, demonstrating that providing a short-cycle feature consistent with consumer expectations of a normal cycle ( i.e., cycle recommended by the manufacturer to the consumer for drying cotton or linen clothes in less than 30 minutes) does not necessitate using more energy than a consumer clothes dryer without such feature that meets the current standards. In the engineering analysis conducted for the March 2024 Dryers Direct Final Rule, DOE did not identify any proprietary technologies in use among clothes dryers currently on the market. 89 FR 18164, 18178-18179. Therefore, although AHAM's data set did not identify specific model numbers associated with each data point, DOE has no reason to believe that any proprietary technologies or design strategies are being used in those clothes dryer models with cycle times of less than 30 minutes.

DOE has tentatively concluded that the availability of a short-cycle feature currently on the market—at energy levels that comply with the current standards—in units with no identifiable proprietary designs or control strategies demonstrates that a consumer clothes dryer with a short-cycle feature does not inherently use more energy than a consumer clothes dryer without such a feature, and that the current consumer clothes dryer standards do not preclude manufacturers from offering a short-cycle feature ( i.e., a normal cycle time of less than 30 minutes). On the basis that both vented electric standard-size and vented gas clothes dryers with short-cycle features ( i.e., normal cycles less than 30 minutes) are currently available on the market with no identifiable proprietary designs or control strategies, DOE has tentatively determined that a short-cycle feature is technologically feasible and that current standards do not prevent manufacturers from providing a short-cycle feature.

In response to the March 2024 RFI, DOE received the following comments regarding establishing separate short-cycle product classes for consumer clothes dryers.

AHAM stated that new product classes to protect the short-cycle feature are not justified at this time under 42 U.S.C. 6295(q) for the following reasons: (1) consumers are satisfied with existing normal cycle times based on AHAM's 2021 Consumer Research, which found that 78 percent of respondents were satisfied with the length of the normal cycle of their laundry appliance; (2) most consumer clothes dryers already provide consumers with short cycle time options; and, (3) data shows that standards are not expected to increase cycle time significantly. (AHAM, No. 5 at p. 5)

NEEA commented that the short-cycle product class for consumer clothes dryers is unwarranted. NEEA stated that its comments build upon past NEEA letters submitted to DOE, which demonstrated that short-cycle product classes were not appropriate for these appliances. NEEA added that recent research clearly reinforces these conclusions. (NEEA, No. 4 at p. 2)

China commented that DOE should remove the short-cycle product classes. China commented that the short-cycle product class is not defined in the regulations and standards, which makes it difficult for manufacturers to clearly classify their products into this product class. (China, No. 11 at p. 2)

An individual commented expressing support for short-cycle product classes for consumer clothes dryers and stated that products with a “short cycle” as the normal cycle should be subject to different standards than products without a “short cycle” as the normal cycle. The individual noted that such a rulemaking would save consumers money by lowering the cost of their electric bills. (McCray, No. 3 at p. 1)

LG commented that, after internal discussions and discussions with industry partners to evaluate market changes since the January 2022 Final Rule, LG is supportive of DOE's decision in the January 2022 Final Rule and opposes new product classes for short-cycle products. LG added that for appliances to satisfy cleaning and drying performance in a shorter amount of time while achieving the same performance, it would be inevitable that they would consume more energy—an outcome that contradicts DOE's objective to adopt standards that would result in more energy conservation. (LG, No. 7 at pp. 1-2)

As noted earlier in this section, test data show that both vented electric standard-size and vented gas clothes dryers with short-cycle features ( i.e., normal cycles less than 30 minutes) are currently available on the market at energy levels that comply with the current standards with no identifiable proprietary designs or control strategies. That is, consumer clothes dryers with shorter cycle times do not need to consume more energy than the current standard to provide the same performance.

Rep. Bice commented in opposition to multiple rulemakings recently published by DOE that add new regulations to consumer products. Rep. Bice asserted that the standards would increase costs for manufacturers and prices for consumers. Rep. Bice commented that regulation limits consumer choice and is onerous for American manufacturers, including many small businesses. (Rep. Bice, No. 2 at p. 1)

DOE notes that this proposed confirmation of withdrawal does not propose to add any new regulations for consumer clothes dryers. Instead, this proposed confirmation of withdrawal reanalyzes the provisions of a previous rulemaking ( i.e., the January 2022 Final Rule) that withdrew short-cycle product classes.

In conclusion, based on the available test data—which demonstrate that it is feasible to design a short-cycle feature while meeting current standards—DOE has tentatively determined that (1) a short-cycle feature as the normal cycle for drying cotton or linen clothes is technologically feasible; (2) current standards do not prevent consumer clothes dryer manufacturers from providing such a short-cycle feature; and (3) multiple consumer clothes dryer models are currently available on the market that provide such a short-cycle feature that meet the currently applicable energy and water standards. For these reasons, DOE has tentatively determined that a short-cycle feature for consumer clothes dryers does not justify separate product classes with separate standards under 42 U.S.C. 6295(q). DOE requests comment on these proposed determinations.

DOE received comments in response to the March 2024 RFI from stakeholders discussing the prevalence of quick cycles on current consumer clothes dryer models.

NEEA stated that consumers can already access quick cycles on current consumer clothes dryer models. NEEA stated that its review of available products on Lowe's website indicated that 92 percent of standard-size clothes dryer models provided a quick cycle program. NEEA further commented that preliminary consumer clothes dryer field data from the 2024 NEEA Residential Building Stock Assessment Laundry Field Study revealed that the quick-dry program is used infrequently (1 percent of the time). NEEA also stated that consumers continue to be satisfied with existing products that provide the option of a quick cycle, and that consumers of one national retail chain highly rated more than 90 percent of consumer clothes dryer models with a quick cycle. NEEA asserted that selecting an available quick cycle by pressing a button or shifting a dial is not an unreasonable consumer burden when a faster cycle is preferred. (NEEA, No. 4 at p. 3) NEEA also commented that according to its market research, emerging combination washer-dryer models are gaining popularity, and according to NEEA data from its ENERGY STAR Residential Products Portfolio participation, one combination washer-dryer is among the top-selling models of RCWs and consumer clothes dryers on the market. NEEA commented that this option changes consumer views of cycle timing because it is no longer necessary to wait for a cycle to end to switch the load from the clothes washer into the clothes dryer. ( Id. at p. 4)

LG commented that there are consumer clothes dryers currently on the market that have default cycles comparable to DOE's definition of short cycle while also offering additional short cycles as an option, and since such products are already prevalent, it would be counterproductive to establish “new” product classes, which would involve simply setting a short cycle as the default cycle. (LG, No. 7 at p. 1)

The CA IOUs commented that short-cycle product classes for consumer clothes dryers are unwarranted, as other products of the same type are already available with quick cycles that meet current and future DOE energy conservation standards. (CA IOUs, No. 6 at p. 1)

Confidential data submitted to DOE by AHAM in response to the March 2024 RFI show that 78 percent of consumer clothes dryer models offer a quick cycle with cycle times ranging from 23 minutes to 77 minutes, of which, 81 percent of the models are recommended for small load sizes and for 19 percent of these consumer clothes dryer models, the manufacturer did not recommend any specific load size for the quick cycle.

The prevalence and variety of quick-cycle offerings as reflected in these data presented by stakeholders support DOE's conclusions in section II.C.1 of this document that cycle time is a performance-related feature for the purposes of 42 U.S.C. 6295(q).

In consideration of the Fifth Circuit's opinion that DOE's prior reasoning in the January 2022 Final Rule improperly relied upon the prevalence of “quick” cycles that do not address the foundational concerns underlying the December 2020 Final Rule, DOE considered in this analysis only those cycles that are consistent with consumer expectations of a normal cycle ( i.e., a normal cycle or the cycle recommended by the manufacturer for drying cotton or linen clothes if a “normal” cycle is not available).

China commented that the comment period for the March 2024 RFI was less than 60 days, but Article 6.3.1.8(a) of Agreement on Technical Barriers to Trade (Document No. G/TBT/1/Rev.15) specifies that “the normal time limit for comments on notifications should be 60 days.” Accordingly, China suggested extending the comment period for the March 2024 RFI. (China, No. 11 at p. 3)

In response, DOE notes that the time limits referenced in Article 6.3.1.8 of the Agreement on Technical Barriers to Trade apply to notified technical regulations and conformity assessment procedures and not to documents like the March 2024 RFI. DOE finds that the 30-day comment period in the March 2024 RFI was appropriate as stakeholders have already been afforded multiple opportunities to provide comments on this topic as part of the October 2020 Final Rule, the December 2020 Final Rule, and January 2022 Final Rule. 85 FR 68723; 85 FR 81359; 87 FR 2673.

NRDC and Earthjustice included as an attachment to their comments on the March 2024 RFI, their previous comments with ASAP et al. and commented that the creation of the short-cycle product classes violated numerous provisions of EPCA and standards of reasoned decision-making, including the statute's anti-backsliding provision, product class provision, and criteria for prescribing new or amended standards. NRDC and Earthjustice commented that if DOE were to attempt to unwind its revocation of the short-cycle product classes, DOE would be repeating these violations of the statute and compounding its unlawful prior actions. (NRDC and Earthjustice, No. 10 at p. 2)

The CA IOUs commented that the Short-cycle Final Rules reduced or removed efficiency standards for dishwashers, RCWs, and consumer clothes dryers, which conflicts with EPCA under 42 U.S.C. 6295(o)(1). (CA IOUs, No. 6 at p. 9)

As discussed elsewhere in this document, DOE applied EPCA's authority under 42 U.S.C. 6295(q) and has tentatively determined that separate product classes with separate standards are not justified for dishwashers, RCWs, and consumer clothes dryers that provide a short-cycle feature.

AHAM commented that while it remains opposed to new short-cycle product classes for dishwashers, RCWs, and consumer clothes dryers, AHAM questioned DOE's legal interpretation that the anti-backsliding provision in EPCA prohibits new product classes from having less-stringent standards. AHAM commented that Congress provided DOE the authority to develop separate classes that can have higher or lower standards and would not have included this provision if DOE could never use it. AHAM commented that the intent behind the creation of a new product class is to ensure features are protected and if standards threaten those features, DOE is authorized to create new product classes that have a less (or more) stringent standard than other products of that type. AHAM commented that if the anti-backsliding provision is interpreted to prohibit lower standards from being implemented, it would render this section of EPCA almost useless once initial product classes have been established, and that does not seem consistent with Congressional intent. (AHAM, No. 5 at pp. 6-7)

In the January 2022 Final Rule, DOE concluded that it did not adequately consider EPCA's requirements, including the anti-backsliding provision in 42 U.S.C. 6295(o)(1), when it finalized the Short-cycle Final Rules. 87 FR 2673, 2680. DOE did not provide a legal interpretation on the anti-backsliding provision beyond that it was not adequately considered in the Short-cycle Final Rules. In this proposed confirmation of withdrawal, DOE applied EPCA's authority under 42 U.S.C. 6295(q) and tentatively determined that a short-cycle feature does not justify a separate product class with separate standards under 42 U.S.C. 6295(q) for dishwashers, RCWs, and consumer clothes dryers. As a result, the anti-backsliding provision is not applicable because DOE is not proposing to establish a separate product class requiring different standards.

DOE also received a comment regarding pending litigation, which is outside of the scope of this proposed confirmation of withdrawal.

The AGs of MT et al. commented that increased energy efficiency tends to increase appliance complexity, which decreases mean time to failure and makes many appliances either not repairable in a cost-effective manner or not repairable at all. The AGs of MT et al. asserted that one method to increase reliability is to decrease time of continuous operation ( i.e., cycle time); another method is to operate components well short of their rated load—which would be less energy efficient but would be more reliable and last longer ( i.e., less downtime for repair and longer time before replacement), which would make overall costs lower. The AGs of MT et al. stated that a significant subset of consumers prefer, and find distinct utility in, more-functional and longer-lasting short-cycle appliances. The AGs of MT et al. asserted that the expected increased reliability and increased lifespan of short-cycle appliances likely aligns with lower life-cycle energy use vis-à-vis appliance models in the pre-existing classes. (AGs of MT et al., No. 9 at p. 6)

In response, to the extent that any technology option considered by DOE as the basis for achieving higher levels of efficiency could result in an increase in repair frequency or cost, DOE's rulemaking analysis incorporates such impacts into the life-cycle cost analysis, where supported by data. For example, in the life-cycle cost analysis conducted for the April 2024 Dishwashers Direct Final Rule, DOE accounted for slightly higher repair frequency for efficiency levels above baseline and doubled the estimated repair frequency for products at the maximum technologically feasible efficiency level due to the increased complexity and less mature technologies required at those levels, based on discussions with manufacturers. DOE also modeled repair costs as being proportional to the equipment cost, based on manufacturers' inputs. 89 FR 31398, 31424.

However, DOE has not found any evidence of average product lifetime being correlated with any specific higher-efficiency design options or efficiency levels and did not receive any comments on the NOPR preceding the April 2024 Dishwashers Direct Final Rule (88 FR 32514 (May 19, 2023)) regarding DOE's dishwasher lifetime assumptions. Among the dishwasher standards rulemakings conducted over the course of the last 30 years, the data sources that DOE uses to derive estimates of average product lifetime have not provided any indication of a substantial change in lifetime during this time period. In fact, the data suggest that current product lifetimes are actually longer than the lifetime estimates used in 1991. Specifically, DOE's estimates of average lifetime for dishwashers have been as follows: 12.6 years in the May 1991 Final Rule, 12.3 years in the 2007 Advance Notice of Proposed Rulemaking, 15.4 years in the May 2012 Direct Final Rule, 15.2 years in the December 2016 Final Determination, and 15.2 years in the April 2024 Dishwashers Direct Final Rule. 56 FR 22250, 22276 (May 14, 1991); 72 FR 64432, 64435 (Nov. 15, 2007); 77 FR 31918, 31933 (May 30, 2012); 81 FR 90072, 90088 (Dec. 13, 2016); 89 FR 31398, 31430.

Similarly, in the life-cycle cost analysis conducted for the March 2024 RCW Direct Final Rule, DOE accounted for slightly higher repair costs for ENERGY STAR-qualified RCWs due to the increased complexity and less mature technologies required at those levels, based on discussions with manufacturers.

However, DOE has not found any evidence of average product lifetime being correlated with any specific higher-efficiency design options or efficiency levels and did not receive any comments on the NOPR preceding the March 2024 RCW Direct Final Rule (“May 2023 RCW NOPR”; 88 FR 26511 (May 1, 2023)) objecting to DOE's RCW lifetime assumptions. Among the RCW standards rulemakings conducted over the course of the last 30 years, the data sources that DOE uses to derive estimates of average product lifetime have not provided any indication of a substantial change in lifetime during this time period. DOE's estimates of average lifetime for RCWs have been as follows: 14.1 years in the May 1991 and January 2001 Final Rules, 14.2 years in the December 2012 Direct Final Rule, and 13.4 years in the March 2024 RCW Direct Final Rule. 56 FR 22250, 22270 (May 14, 1991); 77 FR 32308, 32342 (May 31, 2012); 89 FR 19026, 19060.

Further, in the life-cycle cost analysis conducted for the March 2024 Dryers Direct Final Rule, DOE accounted for slightly higher repair frequency for ENERGY STAR-qualified consumer clothes dryers due to the increased complexity and less mature technologies required at those levels, based on discussions with manufacturers.

However, DOE has not found any evidence of average product lifetime being correlated with any specific higher-efficiency design options or efficiency levels and did not receive any comments on the NOPR preceding the March 2024 Dryers Direct Final Rule (87 FR 51734 (August 22, 2022)) objecting to DOE's consumer clothes dryer lifetime assumptions. Among the consumer clothes dryer standards rulemakings conducted over the course of the last 30 years, the data sources that DOE uses to derive estimates of average product lifetime have not provided any indication of a substantial change in lifetime during this time period. DOE's estimates of average lifetime for consumer clothes dryers have been as follows: 17.1 years in the May 1991 Final Rule, 16 years in the April 2011 Direct Final Rule, and 14 years in the March 2024 Dryers Direct Final Rule. 56 FR 22250, 22273 (May 14, 1991); 76 FR 22454, 22514 (April 21, 2011); 89 FR 18164, 18166.

In summary, the best available data—which have been vetted publicly through multiple rounds of standards rulemakings since 1991—indicate a very stable trend in dishwasher, RCW, and consumer clothes dryer lifetimes over the past 30 years even as improvements in energy and water efficiency have been achieved through those rulemakings over that time.

In its opinion, the Fifth Circuit stated that “[n]o part of [EPCA] indicates Congress gave DOE power to regulate water use for energy-using appliances (like dishwashers and [RCWs]),” and stated that it is unclear that DOE has any statutory authority to regulate water use in dishwashers and RCWs. See Louisiana, 90 F.4th at 470-471.

In response, DOE notes, as did the Fifth Circuit, that EPCA prescribed energy conservation standards with both energy and water use requirements for RCWs and dishwashers. (42 U.S.C. 6295(g)(9)(A) and (10)(A)). In establishing energy conservation standards with both energy and water use performance standards for RCWs and dishwashers, Congress also directed DOE to “determin[e] whether to amend” those standards. (42 U.S.C. 6295(g)(9)(B) and (10)(B)) Congress's directive, in section 6295(g)(9)(B), to consider whether “to amend the standards in effect for RCWs,” and in section 6295(g)(10)(B), to consider whether “to amend the standards for dishwashers,” refers to “the standards” established in the immediately preceding paragraphs, where Congress established energy conservation standards with both energy and water use performance standards for RCWs and dishwashers. Indeed, the energy and water use performance standards for RCWs (both top-loading and front-loading) are each contained within a single subparagraph, as are the energy and water use performance standards for dishwashers (both standard-size and compact-size). ( See id. ) Accordingly, DOE's authority, under 42 U.S.C. 6295(g)(9)(B) and (10)(B), includes consideration of amended energy and water use performance standards for RCWs and dishwashers, respectively.

Similarly, DOE's authority under 42 U.S.C. 6295(m) to amend “standards” for covered products includes amending both the energy and water use performance standards for RCWs and dishwashers. Neither section 6295(g)(9)(B) or (10)(B) nor section 6295(m) limit their application to “energy use standards.” Rather, they direct DOE to consider amending “the standards,” 42 U.S.C. 6295(g)(9)(B) and (10)(B), or simply “standards,” 42 U.S.C. 6295(m)(1)(B), which may include both energy and water use performance standards.

Accordingly, in conducting the analyses in this proposed confirmation of withdrawal, DOE has considered (where appropriate) whether the relevant short-cycle features justify both different water and energy standards.

The Fifth Circuit noted that DOE tests only some of the settings on dishwashers and “laundry machines” ( i.e., RCWs and consumer clothes dryers) and stated that DOE concluded in the January 2022 Final Rule that “manufacturers are free to deploy other, non-tested settings that use as much energy and water as necessary to actually clean consumers' things,” indicating that this could create a loophole for manufacturers to deploy unregulated cycles. Louisiana, 90 F.4th at 474.

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section be reasonably designed to produce test results which measure energy efficiency, energy use or water use (in the case of showerheads, faucets, water closets and urinals), or estimated annual operating cost of a covered product during a representative average use cycle or period of use, as determined by the Secretary, and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))

DOE has established test procedures for dishwashers, RCWs, and consumer clothes dryers in 10 CFR part 430, subpart B, appendices C1 and C2, J and J2, and D1 and D2, respectively. For each test procedure, DOE has determined through its rulemaking process, which included ample manufacturer input, that the tested cycle(s)— i.e., the normal cycle for dishwashers, RCWs, and consumer clothes dryers—produce representative measures of energy efficiency, energy use or water use, or estimated annual operating cost, as applicable for each product, without the undue burden that would be associated with requiring every available cycle to be tested.

To ensure that the normal cycle produces measures of energy use, efficiency, and estimated annual operating cost specifically for a representative average use cycle or period of use, DOE has developed definitions and testing instructions in each test procedure to guide the appropriate selection of cycles to be tested, which corresponds to a representative average use cycle of how such appliance are used by consumers in their households.

For dishwashers, the normal cycle is “[t]he cycle type, including washing and drying temperature options, recommended in the manufacturer's instructions for daily, regular, or typical use to completely wash a full load of normally soiled dishes including the power-dry feature. If no cycle or more than one cycle is recommended in the manufacturer's instructions for daily, regular, or typical use to completely wash a full load of normally soiled dishes, the most energy intensive of these cycles shall be considered the normal cycle. In the absence of a manufacturer recommendation on washing and drying temperature options, the highest energy consumption options must be selected.” Section 1 of 10 CFR part 430, subpart B, appendices C1 and C2.

In the January 2023 TP Final Rule, DOE noted that it was maintaining the dishwasher test cycle selections and cycle options to test on the normal cycle. DOE additionally added a cleaning performance requirement to validate that the tested cycle was representative of an average use cycle. 88 FR 3234, 3243. Prior to publishing this final rule, in a NOPR published on December 22, 2021, (“December 2021 TP NOPR”) DOE summarized and addressed stakeholder comments regarding the representative test cycle for dishwashers. Specifically, AHAM commented that consumers still most frequently select the normal cycle, and when consumers decide on a cycle selection, they typically use it for most of their cycles. Both GE Appliances and Whirlpool Corporation supported AHAM's comment that the normal cycle should remain the tested cycle. Both manufacturers submitted confidential data that supported the position that the manufacturer-designated normal cycle still represents consumer preference regarding cycle selection. These confidential data indicated, in the aggregate, that roughly 55 to 75 percent of all dishwasher cycles are conducted on the normal cycle. DOE further observed that among the other selected cycle types, some would be expected to be less energy-intensive than the normal cycle ( e.g., a glassware cycle type), while others would be expected to be more energy-intensive than the normal cycle ( e.g., a pots and pans cycle type). 86 FR 72738, 72757. The CA IOUs referenced PG&E's 2016 Home Energy Use Survey to support their claim that the tested normal cycle including any power-dry feature, in the current test procedure, is still the cycle most representative of how consumers operate dishwashers. In this survey, PG&E found that 75 percent of households use the normal cycle. The CA IOUs further stated that consumers would be less likely to switch from using the normal cycle if DOE were to incorporate cleaning performance in the test procedure, and recommended DOE investigate incorporating a cleaning performance test. Id. at 86 FR 72747. In that NOPR, DOE noted that absent data that reflects national use and frequency of use of other cycle types, DOE was not proposing changes to cycle selections for testing. Further, as noted in section II.A.3.c of this document, according to EIA's 2020 RECS, over 80 percent of consumers use normal cycles most of the time.

In the December 2021 TP NOPR, DOE noted that it was proposing a minimum cleaning index threshold for a test cycle to be considered valid. That is, if the normal cycle does not meet a specified threshold at any soil-load, DOE proposed that the most energy-intensive cycle be tested and used for certification purposes at that soil load. DOE noted that this alternative approach would better represent an average use cycle by capturing those consumers that may select other cycles for washing dishes if the cleaning performance of the normal cycle does not meet their expectations, because higher energy use provides increased thermal and mechanical action for removing soils, thus correlating generally with improved cleaning performance. Id. DOE adopted these proposals in the January 2023 TP Final Rule. 88 FR 3234, 3243.

Based on stakeholder comments, nationally representative survey data, and DOE's analyses, DOE concluded that the normal cycle is the representative average use cycle for dishwashers.

For RCWs, the normal cycle is “the cycle recommended by the manufacturer (considering manufacturer instructions, control panel labeling and other markings on the clothes washer) for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing. For machines where multiple cycle settings are recommended by the manufacturer for normal, regular, or typical use for washing up to a full load of normally soiled cotton clothing, then the Normal cycle is the cycle selection that results in the lowest [energy efficiency] value.” Section 1 of 10 CFR part 430, subpart B, appendices J and J2.

For the final rule that established appendix J1, which was a precursor to the current appendices J and J2, DOE reviewed Procter & Gamble data indicating that the normal cycle on a typical RCW is used approximately 75 percent of the time, and DOE noted that its test procedure uses the normal cycle to approximate typical use by consumers. 62 FR 45484, 45493 (Aug. 27, 1997). In a test procedure final rule published on August 5, 2015, DOE changed the draft language for the definition of the normal cycle from referencing “the most common consumer cycle” to referencing “the cycle recommended by the manufacturer [. . .] for normal, regular, or typical use,” noting that the updated phrasing represented the same intent. 80 FR 46730, 46742. In the most recently published test procedure for RCWs that established the current appendices J and J2 (“June 2022 TP Final Rule”), DOE noted that its test procedure identifies the “normal cycle” as the cycle representative of consumer use and requires testing using it. 87 FR 33316, 33351 (June 1, 2022).

For all consumer clothes dryers in the test procedure at 10 CFR part 430, subpart B, appendix D1 and for timer dryers in 10 CFR part 430, subpart B, appendix D2, the consumer clothes dryer is operated for the test cycle at the maximum temperature setting and, if equipped with a timer, at the maximum time setting. If the consumer clothes dryer does not have a separate temperature setting selection on the control panel, the maximum time settings is used for the drying test cycle. For automatic termination control dryers in the test procedure at 10 CFR part 430, subpart B, appendix D2, the “normal” program shall be selected for the test cycle. Automatic termination control dryers that do not have a “normal” program are tested using the cycle recommended by the manufacturer for drying cotton or linen clothes. Section 3.3 of 10 CFR part 430, subpart B, appendices D1 and D2.

In a NOPR published on January 2, 2013, DOE first proposed the use of the “normal” program for the drying test cycle in conjunction with test methods that would more accurately measure the energy use of automatic termination control dryers, which comprise the majority of consumer clothes dryer shipments. DOE determined this program to be most representative of consumer use based on data from NEEA's residential laundry field use study, which showed that the average household surveyed used the “normal” or an equivalent program cycle for nearly 60 percent of all drying. 78 FR 152, 170-171. DOE received comments from Samsung stating that the proposed test procedure would be representative of consumer use because it measures the energy use of the most commonly selected cycle (Normal/Cottons and Linens) for automatic termination control dryers. DOE adopted this proposal and established appendix D2 in a final rule published on August 14, 2013. 78 FR 49608, 49624.

DOE has thereby promulgated new and amended test procedures in accordance with EPCA's requirements to ensure that manufacturers are certifying dishwashers, RCWs, and clothes dryers that comply with the currently applicable energy conservation standards. As discussed in section II.E.3 of this document, DOE has also developed provisions within its test procedures for dishwashers, RCWs, and clothes dryers that ensure that the tested cycles maintain product utility that meets consumer expectations.

In its opinion, the Fifth Circuit stated that “Americans who want clean dishes or clothes may use more energy and more water to preclean, reclean, or handwash their stuff before, after, or in lieu of using DOE-regulated appliances,” and that DOE did not adequately respond to this potential for more energy and water use in the January 2022 Final Rule. Louisiana, 90 F.4th at 472-473. In the following sections, DOE addresses stakeholder concerns regarding preservation of product utility for each product type.

In addition to the Fifth Circuit's opinion on product utility, DOE also received stakeholder comments on this topic in response to the March 2024 RFI. The AGs of MT et al., commented that, according to survey results presented by CEI in response to the July 2019 NOPR, 22 over 85 percent of consumers hand-wash dishes at least sometimes “because the dishwasher takes too long”; roughly 33 percent of consumers reported that their dishwasher does not clean their dishes well; and 34 percent reported that they run their dishwasher multiple times to get their dishes clean. (AGs of MT et al., No. 9 at p. 5)

DOE notes that the data and conclusions presented by the AGs of MT et al., are contradicted by data and conclusions presented by other stakeholders in response to the March 2024 RFI.

With regard to handwashing dishes because the dishwasher takes too long, AHAM presented data  23 indicating that 81 percent of respondents were satisfied with the length of the normal cycle of their dishwashers. (AHAM, No. 5 at p. 3) AHAM also referenced a 2020 University of Michigan study  24 and commented that this study showed that recommended practices for dishwasher use are not always performed, with 67 percent of dishwasher owners typically prerinsing dishes before loading. However, AHAM stated that its member data do not indicate that consumers are choosing to wash their dishes by hand because of perceived longer cycle times. ( Id., at p. 5) AHAM further commented that consumers are satisfied with current cycle times, choosing to rely on their dishwashers regularly. ( Id., at p. 6)

In addition, DOE notes that the 2020 Michigan study cited by AHAM discussed the role of behavioral barriers in explaining why certain consumers may be reluctant to switch from handwashing to machine washing, as these consumers believe handwashing outperforms machine washing in terms of resource consumption and cleaning performance. Likewise, findings from the University of Bonn and the Impulse Reach national survey  25 26 also suggest that the primary factor contributing to consumers hand-washing dishes is not the dishwasher cycle duration, but rather a misconception by consumers that dishwashers require more energy and water than handwashing.

With regard to the portion of consumers who report their dishwasher does not clean well or they run the dishwasher multiple times to get dishes clean, DOE noted in January 2023 TP Final Rule that the cleaning performance at the completion of a dishwasher cycle influences how a consumer uses the product. DOE acknowledged that if the cleanliness of the dishware after completion of a cleaning cycle does not meet consumer expectations, consumers may alter their use of the dishwasher by selecting a different cycle type that consumes more energy and water, operating the selected cycle type multiple times, or prewashing the dishware items. DOE recognized the need to ensure that the cycle type tested in the DOE test procedure is representative of consumer use as the dishwasher market continuously evolves to higher levels of efficiency. DOE therefore established a new cleaning performance threshold in the newly established appendix C2 test procedure that represents what constitutes “completely washing” a full load of normally soiled dishes ( i.e., a threshold below which the dishwasher would not meet consumer expectations of cleanability). 88 FR 3234, 3250-3267. Under appendix C2, a dishwasher must meet the cleaning performance threshold, and thus consumer expectations of cleanability. To the extent that any individual dishwashers on the market have not met consumer expectations for cleanability, such historical performance issues should be remedied moving forward, as the test procedure at appendix C2 ensures that any dishwasher tested for certification will have a valid energy and water representation only if the dishwasher also meets or exceeds a minimum level of cleaning performance.

Finally, as discussed previously, DOE's data demonstrate that dishwashers with a short-cycle feature can meet the current standards. That is, dishwasher cycles that achieve the cleaning performance requirements specified in appendix C2 and are 60 minutes or less in duration are technologically feasible. As noted by ASAP et al., there are more than 400 dishwasher models on the current market that are certified to the current ENERGY STAR V. 7.0 specification—which DOE notes is more stringent than the current standards—and all ENERGY STAR-qualified products are required to meet a minimum cleaning index requirement. (See ASAP et al., No. 8 at p. 6)

In response to the March 2024 RFI, ASAP et al., commented that shorter cycle times would likely result in trade-offs with other aspects of dishwasher performance. ASAP et al., asserted that there are many product attributes of dishwashers that are important to consumers, such as cleaning/drying performance, noise, efficiency, and cycle time, and that manufacturers have to balance these attributes. ASAP et al., referenced DOE's dishwasher test data, noting that cycles with a cycle time of less than 60 minutes generally provided worse cleaning performance than the “normal” cycles on the same machines, in particular for the heavy and medium soil loads. ASAP et al., further asserted that in addition to sacrificing cleaning performance, quick cycles would likely be noisier, because one way of reducing cycle time is to increase mechanical action, which in turn increases noise levels. (ASAP et al., No. 8 at p. 6)

DOE recognizes that dishwasher manufacturers design dishwashers to achieve many different performance requirements ( e.g., cleaning performance, drying performance, noise, efficiency, cycle time). Manufacturers also provide multiple cycle types to meet different consumer needs ( e.g., normal, heavy, light, quick). However, DOE reiterates that 1 of the units in DOE's test sample meets the cleaning index threshold specified in appendix C2 while also having a cycle time of less than 60 minutes and meeting the current standards, demonstrating that current standards do not require manufacturers to trade off cleaning performance with cycle time.

Regarding ASAP et al., s comment on the potential trade-off between cycle time and noise, DOE notes that it did not collect noise data in its previous testing. Accordingly, DOE cannot independently corroborate the extent to which there may be a trade-off between noise and cycle time.

In sum, DOE tentatively concludes that any consumer handwashing or pre-washing is unlikely to have been the result of past or current standards. Further, the amended test procedure at appendix C2 requires test samples to meet a cleaning index threshold consistent with consumer expectations. Accordingly, DOE does not expect increased handwashing or pre-washing (above levels resulting from consumer preferences or misunderstandings) in the future.

In response to the March 2024 RFI, ASAP et al., commented that shorter cycle times would likely result in trade-offs with other aspects of RCW performance. ASAP et al., asserted that there are many product attributes of RCWs that are important to consumers, such as cleaning performance, noise, efficiency, and cycle time, and that manufacturers have to balance these attributes. ASAP et al., referenced AHAM's petition for reconsideration of the December 2020 Final Rule, 27 wherein AHAM noted that in order to reduce cycle time, “many manufacturers may elect to reduce clothes washer spin time.” ASAP et al., further noted that AHAM explained that reducing spin time would mean that clothes would come out of the clothes washer wetter, which would have the effect of increasing clothes dryer cycle time. (ASAP et al., No. 8 at p. 6)

DOE recognizes that RCW manufacturers design RCWs to achieve many different performance requirements ( e.g., cleaning performance, rinsing performance, noise, efficiency, cycle time). Manufacturers also provide multiple cycle types to meet different consumer needs ( e.g., normal, heavy, light, quick, delicates). However, DOE reiterates that multiple top-loading RCW models currently on the market provide a cycle time of less than 30 minutes, and multiple front-loading RCW models provide a cycle time of less than 45 minutes, all of which meet the current standards—demonstrating that current standards do not require manufacturers to trade off cycle time with energy and water use.

Although DOE's current RCW test procedures do not include a measure of cleaning performance, DOE does consider multiple aspects of clothes washer performance as it evaluates potential energy and water conservation standards for RCWs to ensure that no lessening of the utility or performance of the product is likely to result from an amended standard. For example, in support of the May 2023 RCW NOPR, DOE conducted extensive testing to evaluate any potential impacts of amended standards on of several performance characteristics including cycle time, hot wash water temperature, soil and stain removal, and mechanical action. 28 88 FR 26511.

Even though DOE's analyses conducted as part the standards rulemaking process have demonstrated that performance can be maintained under the current standards for RCWs, DOE has previously discussed, for example in the June 2022 TP Final Rule, that the cleaning performance at the completion of a wash cycle could influence how a consumer uses the product. If the cleanliness of the clothing after completion of a wash cycle were to not meet consumer expectations, consumers could be expected to alter their use of the clothes washer. For example, consumers could alter the use of the product by choosing cycle modifiers to enhance the performance of the selected cycle; selecting an alternate cycle that consumes more energy and water to provide a higher level of cleaning; operating the selected cycle multiple times; or pre-treating ( e.g., pre-soaking in water) clothing items before loading into the clothes washer to achieve an acceptable level of cleaning. 87 FR 33316, 33352.

As discussed, the dishwasher test procedure defines a cleaning performance threshold that represents what constitutes “completely washing” a full load of normally soiled dishes ( i.e., a threshold below which the dishwasher would not meet consumer expectations of cleanability). However, the current RCW test procedures do not define what constitutes “washing” up to a full load of normally soiled cotton clothing ( i.e., the cleaning performance). In the June 2022 TP Final Rule, DOE discussed its consideration of adding a cleaning performance metric to its RCW test procedures, but ultimately DOE was unable to make a determination whether existing test procedures for determining cleaning performance would produce results for DOE's purposes that are representative of an average use cycle, as required by EPCA. Furthermore, DOE was unable to assess whether the additional burden resulting from these additional tests would be outweighed by the benefits of incorporating these tests. Therefore, DOE did not include a measure of cleaning performance in the RCW test procedures in the June 2022 TP Final Rule. 87 FR 33316, 33352.

DOE continues, however, to evaluate the potential benefits and burdens of incorporating a measure of performance into its RCW test procedures, akin to the cleaning performance threshold incorporated into the appendix C2 test procedure for dishwashers. Any such amendments to the RCW test procedures would be considered in a separate rulemaking.

In response to the March 2024 RFI, ASAP et al., commented that shorter cycle times would likely result in trade-offs with other aspects of consumer clothes dryer performance. ASAP et al., asserted that there are many product attributes of consumer clothes dryers that are important to consumers, such as drying performance, noise, efficiency, and cycle time, and that manufacturers have to balance these attributes. ASAP et al., referenced AHAM's petition for reconsideration of the December 2020 Final Rule, 29 wherein AHAM noted that shorter cycle times than those available today would likely require higher heat levels and/or the use of high heat for longer periods of time, which could damage the clothes being dried. (ASAP et al., No. 8 at p. 6)

DOE recognizes that consumer clothes dryer manufacturers design consumer clothes dryers to achieve many different performance requirements ( e.g., drying performance, noise, efficiency, cycle time). Manufacturers also provide multiple cycle types to meet different consumer needs ( e.g., normal, heavy, light, quick, delicates). However, DOE reiterates that multiple clothes dryer models currently on the market provide a cycle time of less than 30 minutes, all of which meet the current standards—demonstrating that current standards do not require manufacturers to trade off cycle time with energy use.

Similar to dishwashers, for consumer clothes dryers DOE noted in the test procedure final rule published on October 8, 2021, that drying performance at the completion of a clothes dryer cycle may influence how a consumer uses the product. 86 FR 56608. DOE acknowledged that if the dryness of the clothes after completion of a during cycle does not meet consumer expectations, consumers may alter their use of their consumer clothes dryer by selecting a different cycle type that consumers more energy, or operating the selected cycle type multiple times. DOE recognized the need to ensure that the cycle type tested in the DOE test procedure is representative of consumer use as the consumer clothes dryer market continuously evolves to higher levels of efficiency. DOE therefore established a 2-percent final moisture content dryness threshold in the appendix D2 test procedure that was shown to be representative of the consumer-acceptable dryness level after completion of a drying cycle. 86 FR 56608, 56627-56628. Under appendix D2, a consumer clothes dryer must achieve this dryness threshold in order for the tested cycle to be considered valid for certifying compliance with the applicable standard.

To the extent that any individual consumer clothes dryers on the market have not met consumer expectations for dryness, such historical performance issues should be remedied moving forward, as the test procedure at appendix D2 ensures that any consumer clothes dryer tested for certification will have a valid energy and water representation only if the consumer clothes dryer meets or exceeds this threshold of dryness performance.

In conclusion, and for the reasons discussed in the preceding sections of this document, DOE has tentatively determined that a short-cycle feature does not justify separate product classes with separate standards under 42 U.S.C. 6295(q) for dishwashers, RCWs, and consumer clothes dryers. As a result, there is no basis for remedying the Short-cycle Final Rules by establishing a different standard level for short-cycle products. Therefore, products with short-cycle features remain subject to the currently applicable standards as specified in 10 CFR 430.32(f), (g), and (h), respectively.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the January 2022 Final Rule remain unchanged for this proposed confirmation of that rule. These determinations are set forth in the January 2022 Final Rule. 87 FR 2673, 2686-2688.

DOE will accept comments, data, and information regarding this proposed confirmation of withdrawal before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this document. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document.

Submitting comments via www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

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Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

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It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

The Secretary of Energy has approved publication of this proposed confirmation of withdrawal and request for comment.

This document of the Department of Energy was signed on October 30, 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 .

Rules in the SIP must be enforceable (see CAA section 110(a)(2)) and must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)). In addition, because these rules were submitted to satisfy the RACT requirement for sources covered by the CTGs listed in Table 2, these rules must establish RACT level controls for such sources.

Guidance and policy documents that the EPA used to evaluate enforceability, revision/relaxation, and rule stringency requirements for the applicable criteria pollutants include the following:

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

4. “Control of Volatile Organic Compound Leaks from Gasoline Tank Trucks and Vapor Collection Systems,” EPA-450/2-78-051, December 1978.

5. “Design Criteria for Stage I Vapor Control Systems-Gasoline Service Stations,” EPA-450/R-75-102, November 1975.

The EPA is proposing to conclude that the State met its commitment and that these revised rules have corrected the deficiencies previously identified in the earlier versions of the rules that were conditionally approved into the SIP. The TSD has more information on our evaluation, including descriptions of the individual deficiencies and the way that each was addressed in the current submitted version of the rules.

As described in the TSD, the submitted rules strengthen the SIP and generally establish RACT level controls. However, as discussed in the subsequent section, EPA is proposing to conclude that the submitted rules contain newly identified deficiencies that prevent full approval of the rules.

EPA is proposing to conclude that the following provisions in Rule 352 do not satisfy the requirements of section 110 and part D of title I of the Act and therefore prevent full approval of the SIP revision.

1. In addition to the annual certification test required by Section 301.1, Sections 502 and 503 of Rule 352 outline ongoing monitoring tests to perform to detect potential leaks. However, the rule does not identify any enforceable requirements to monitor using these tests on a periodic basis or any recordkeeping and reporting associated with this requirement. EPA is proposing to find that this undermines the enforceability of the rule, constitutes a SIP deficiency, and is inconsistent with the requirements of CAA Section 110.

2. Section 103.3(a) requires that an “owner or operator of a gasoline cargo tank provides documentation from the gasoline cargo tank testing company to the Control Officer that certifies that the gasoline cargo tank was tested and verified vapor tight using test methods at least as stringent as those in Section 501.1 (Maricopa County Vapor Tightness Test).” This provision allows the Control Officer authority to approve another test method, and without further specificity regarding how this authority will be exercised, could functionally allow for a revision of the SIP without complying with the process for SIP revisions required by the CAA. As a result, EPA is proposing to determine that this undermines the enforceability of the submission, constitutes a SIP deficiency, and is inconsistent with the requirements of CAA Section 110.

The EPA is proposing to conclude that the following provisions in Rule 353 do not satisfy the requirements of section 110 and part D of title I of the Act and prevent full approval of the SIP revision.

1. Rule 353 requires that control equipment or spill containment equipment at a stationary GDF or on a gasoline cargo tank be leak free and vapor tight, requiring weekly inspections. Rule 353 generally requires a facility to determine if there is a “potential vapor leak” prior to being required to conduct a more stringent vapor tightness determination. Section 501 of Rule 353 allows for four different options to identify potential vapor leaks. Section 501.1 allows for the “use of sight, sound, or smell” as an acceptable method for identifying potential vapor leaks. Although using sight, sound, or smell can play a role in identifying potential vapor leaks, allowing for that to potentially be the only method used could functionally allow for potential leak identification to be left solely left to the operator's discretion and sensory inputs. Therefore, without a provision to periodically utilize methods beyond sight, sound, or smell, EPA is proposing to determine that this provision undermines the enforceability of the rule's requirement for vapor tight compliance.

2. Section 500 of Rule 353 contains ongoing monitoring and recordkeeping requirements but does not specifically contain any requirements to report compliance information. However, reporting requirements are contained within Section 301 of the rule because it incorporates the applicable requirements from the National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities at 40 CFR part 63, subpart CCCCCC (“Subpart CCCCCC”), which includes reporting requirements. 3 However, Subpart CCCCCC is not applicable to the loading of aviation gasoline into storage tanks at airports, and the subsequent transfer of aviation gasoline within the airport. 4 Rule 353 does apply to loading of aviation gasoline at airports, but does not elsewhere require periodic reporting for these facilities. Given this framework, EPA is proposing to find that Rule 353 has a reporting gap, because there is no periodic compliance reporting required for loading of aviation gasoline at airports. Due to the lack of adequate reporting requirements (or some alternative means of ensuring enforceability) during loading of aviation gasoline into storage tanks, EPA is proposing to find that this provision undermines the enforceability of the rule's requirement for vapor tight compliance, constitutes a SIP deficiency, and is inconsistent with the requirements of CAA Section 110.

The TSDs include recommendations for the next time the MCAQD modifies these rules.

The EPA is proposing a limited approval and limited disapproval of the submitted rules. The EPA is proposing a limited approval because the EPA's analysis demonstrates that Rule 352 and Rule 353 would strengthen the SIP. The rules generally establish RACT level controls, and the MCAQD has fixed the deficiencies that were previously identified with the rules in the February 26, 2020, conditional approval. The EPA is proposing a simultaneous limited disapproval for Rule 352 and Rule 353 based on the enforceability issues identified in section II.C. of this notice and described in detail in their respective TSDs.

In addition, as authorized in section 110(k)(3) of the Act, the EPA is proposing a disapproval of the RACT demonstrations for the 2008 ozone National Ambient Air Quality Standards (NAAQS) for the sources covered by the CTGs associated with these rules, because the deficiencies for certain source categories as identified in the proposed limited disapproval preclude the EPA from proposing to approve this RACT demonstration as a whole. The EPA is also proposing to find that the State has met its commitment under the previous conditional approval of Rules 352 and 353 and the associated CTG source categories. If we finalize this limited approval and limited disapproval as proposed, we would replace the conditionally approved versions of the rules with the newly submitted versions in the SIP, and also remove the text associated with the conditional approval from 40 CFR 52.119(c)(1). We will accept comments from the public on this proposal until December 9, 2024. If finalized, this action would incorporate the submitted rules into the SIP, including those provisions identified as deficient. This approval is limited because the EPA is simultaneously proposing a limited disapproval. If we finalize this disapproval as proposed, CAA section 110(c) would require the EPA to promulgate a federal implementation plan within 24 months unless we approve subsequent SIP revisions that correct the deficiencies identified in our final action.

In addition, final disapproval would trigger the offset sanction in CAA section 179(b)(2) 18 months after the effective date of a final disapproval, and the highway funding sanction in CAA section 179(b)(1) six months after the offset sanction is imposed. A sanction would not be imposed if the EPA determines that a subsequent SIP submission corrects the deficiencies identified in our final action before the applicable deadline. The EPA intends to work with MCAQD to correct the deficiencies in a timely manner.

Note that the submitted rules have been adopted by MCAQD, and the EPA's final limited disapproval would not prevent the State from enforcing them. The limited disapproval also would not prevent any portion of the rules from being incorporated by reference into the federally enforceable SIP as discussed in a July 9, 1992 EPA memo found at: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference MCAQD Rule 352, “Gasoline Cargo Tank Testing and Use,” revised on November 18, 2020, which regulates VOC emissions during loading and unloading of gasoline to any gasoline cargo tank within Maricopa County. The EPA is also proposing to incorporate by reference MCAQD Rule 353, “Storage and Loading of Gasoline at a Gasoline Dispensing Facility,” revised on November 18, 2020, which regulates VOC emissions during storage and loading of gasoline at a gasoline dispensing facility. The EPA has made, and will continue to make, these materials available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to review state choices, and approve those choices if they meet the minimum criteria of the Act. Accordingly, this proposed action is proposing a limited approval and limited disapproval of state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. Therefore, this action is not subject to Executive Order 13045 because it is merely proposing a limited approval and limited disapproval of state law as meeting federal requirements. Furthermore, the EPA's Policy on Children's Health does not apply to this action.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving EJ for communities with EJ concerns.