Energy Conservation Program for Consumer Products: Association of Home Appliance Manufacturers Petition for Reconsideration, 76952-76959 [2012-31392]
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Proposed Rules
Federal Register
Vol. 77, No. 250
Monday, December 31, 2012
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[FR Doc. 2012–31132 Filed 12–28–12; 8:45 am]
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DEPARTMENT OF ENERGY
10 CFR Part 430
[Docket Number EERE–BT–PET–0053]
Energy Conservation Program for
Consumer Products: Association of
Home Appliance Manufacturers
Petition for Reconsideration
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Petition for Reconsideration;
Request for Comments.
AGENCY:
The Department of Energy
(DOE) received a petition from the
Association of Home Appliance
Manufacturers (AHAM) requesting
reconsideration of the U.S. Department
of Energy’s (DOE) final rule to amend
the test procedures for residential
dishwashers, dehumidifiers, and
conventional cooking products,
published on October 31, 2012, and
DOE’s direct final rule to amend energy
conservation standards for dishwashers,
published on May 30, 2012.
Specifically, AHAM requested that DOE
stay the effectiveness of the test
procedure final rule and final standards
rule until DOE either: Revises the
standards in the final standards rule to
account for the impact on measured
energy resulting from test procedure
amendments to measure fan-only mode
and standby and off mode energy use;
or delays requirements regarding
measurement of fan-only mode and
standby and off mode energy use until
promulgation of a revised standard for
dishwashers. DOE seeks comment on
whether to grant the petition and
proceed with a rulemaking on this
matter.
SUMMARY:
Any comments must be received
by DOE not later than January 30, 2013.
ADDRESSES: Comments must be
submitted, identified by docket number
EERE–BT–PET–0053, by one of the
following methods:
1. Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
2. Email: AHAMPetition2012PET0053
@ee.doe.gov. Include either the docket
number EERE–BT–PET–0053, and/or
‘‘AHAM Petition’’ in the subject line of
the message.
3. Mail: Ms. Brenda Edwards, U.S.
Department of Energy, Building
DATES:
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Technologies Program, Mailstop EE–2J,
Room 1J–018, 1000 Independence
Avenue SW., Washington, DC 20585–
0121. Please submit one signed original
paper copy.
4. Hand Delivery/Courier: Ms. Brenda
Edwards, U.S. Department of Energy,
Building Technologies Program, Room
1J–018, 1000 Independence Avenue
SW., Washington, DC 20585–0121.
5. Instructions: All submissions
received must include the agency name
and docket number for this proceeding.
Docket: For access to the docket to
read background documents, or
comments received, go to the Federal
eRulemaking Portal at https://
www.regulations.gov. In addition,
electronic copies of the Petition are
available online at DOE’s Web site at the
following URL address: https://
www.regulations.gov/#!docketDetail;D=
EERE-2012-BT-PET-0053.
FOR FURTHER INFORMATION CONTACT:
Steven Witkowski, U.S. Department of
Energy, Office of Energy Efficiency
and Renewable Energy, Building
Technologies Program, EE–2J, 1000
Independence Avenue SW.,
Washington, DC 20585–0121, (202)
586–7892, or email: Steven.Witkowski
@ee.doe.gov.
Elizabeth Kohl, U.S. Department of
Energy, Office of General Counsel,
GC–71, 1000 Independence Avenue
SW., Washington, DC 20585, (202)
586–7796, email: Elizabeth.Kohl@hq.
doe.gov.
SUPPLEMENTARY INFORMATION: The
Administrative Procedure Act (APA), 5
U.S.C. 551 et seq., provides among other
things that, ‘‘[e]ach agency shall give an
interested person the right to petition
for the issuance, amendment, or repeal
of a rule.’’ (5 U.S.C. 553(e)). The
Association of Home Appliance
Manufacturers (AHAM) petitioned DOE
for reconsideration of its final test
procedure rule to amend the test
procedures for dishwashers,
dehumidifiers and conventional cooking
products (77 FR 65942 (Oct. 31, 2012))
and its direct final rule to amend the
energy conservation standards
applicable to dishwashers (77 FR 31918
(May 30, 2012)). Specifically, AHAM
requested that DOE stay the
effectiveness of the test procedure final
rule and final standards rule until DOE
either: (1) Revises the standards in the
final standards rule to account for the
impact on measured energy resulting
from test procedure amendments to
measure fan-only mode and standby and
off mode energy use; or (2) delays
requirements regarding measurement of
fan-only mode and standby and off
mode energy use until promulgation of
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a revised standard for dishwashers. In
promulgating this petition for public
comment, DOE seeks views on whether
to grant the petition and undertake a
rulemaking to consider the proposals
contained in the petition. By seeking
such comment, DOE takes no position at
this time on the merits of the suggested
rulemaking.
Issued in Washington, DC, on December
21, 2012.
Gregory H. Woods,
Office of General Counsel, U.S. Department
of Energy.
Set forth below is the full text of the
AHAM petition.
Before the
United States Department of Energy
Office of Energy Efficiency and Renewable
Energy
In the Matter of: Docket No. EERE–2010–
BT–TP–0039, RIN: 1904–AC01, Energy
Conservation Program: Test Procedures for
Residential Dishwashers, Dehumidifiers, and
Conventional Cooking Products and Docket
No. EERE–2011–BT–STD–0060, RIN No.
1904–AC64, Energy Conservation Program:
Energy Conservation Standards For
Residential Dishwashers
10 CFR Parts 429 and 430
Petition for Reconsideration
The Association of Home Appliance
Manufacturers (AHAM) respectfully
petitions the Department of Energy
(DOE) for reconsideration of its final
rule on Test Procedures for Residential
Dishwashers, Dehumidifiers, and
Conventional Cooking Products, Docket
No. EERE–2010–BT–TP–0039, RIN
1904–AC01, 77 FR 65942 (Oct. 31, 2012)
(Test Procedure Final Rule) and its
direct final rule on Energy Conservation
Standards for Dishwashers, Docket No.
EERE–2011–BT–STD–0060, RIN No.
1904–AC64, 77 FR 31918 (May 30,
2012) (Direct Final Rule).
AHAM believes that, overall, the
amendments made to the residential
dishwasher test procedure are critical
amendments, many of which will
enhance the repeatability and
reproducibility of the test procedure.
AHAM requested many of the
amendments, and we thank DOE for
acting quickly to address the issues we
raised. But, despite DOE’s conclusions
that amendments to the residential
dishwasher test procedure regarding
fan-only mode and standby and off
mode would impact measured energy
and AHAM’s comments to the same
effect, DOE has ignored and violated its
statutory obligations under 42 U.S.C.
6293(e) and 42 U.S.C. 6295(gg)(2). These
provisions require analysis of test
procedure revisions to determine
whether they affect the stringency of the
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underlying standard, and, if so, DOE
must adjust the standards accordingly.
This is to prevent ‘‘back-door’’
rulemakings that effectively decrease or
increase the appliance standards. DOE’s
action is incompatible with and
undermines the consensus agreement
which underlies the amended
residential dishwasher standard.
AHAM thus requests an immediate
stay of the effectiveness of both the
Direct Final Rule and the Test
Procedure Final Rule until DOE either
(1) revises the standards in the Direct
Final Rule to account for the impact on
measured energy resulting from test
procedure amendments regarding fanonly mode and standby and off mode
energy; or (2) delays requirements
regarding measurement of fan-only
mode and the revised standby and off
mode procedures until such time as a
revised standard is promulgated for
residential dishwashers.
Facts
On July 30, 2010, AHAM and energy
efficiency advocates submitted energy
conservation standards proposals for
residential dishwashers and other
products that had been the subject of
intensive negotiations (Joint Stakeholder
Agreement). DOE encouraged these
negotiations, supplied technical support
to the parties, and considered the
standards under the fast track consensus
standards provision in 42 U.S.C.
6295(p)(4). That agreement included
agreed-to energy conservation standards
levels and a compliance date for
dishwashers which the parties to the
agreement jointly submitted to DOE via
petition dated September 25, 2010.
Notably, the Joint Stakeholder
Agreement expressly states that ‘‘[t]he
Joint Stakeholders have made no
agreement concerning the appropriate
levels for standby or off mode energy
consumption and agree that
stakeholders will comment to DOE as
they view appropriate during DOE’s
rulemaking process for each of the
affected products, as applicable.’’ Joint
Stakeholder Agreement, at ¶ 4. And the
Joint Stakeholders ‘‘agree[d] that
pending amendments to test procedures
for the affected products should be
completed by DOE, subject to input
from all stakeholders and agree[d] to
recommend that DOE translate the
standards contained in this agreement to
equivalent levels specified under
revised test procedures.’’ Id. at ¶ 5. In
addition, the Joint Stakeholder
Agreement provides, in proposed
statutory language, that, if the
residential dishwasher test procedure is
amended prior to the compliance date of
the proposed standards (2013), the
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standards should be amended consistent
with 42 U.S.C. 6293(e)(2). See Joint
Stakeholder Agreement, at 7. On May
30, 2012, DOE published the Direct
Final Rule and, as required by the
Energy Policy and Conservation Act of
1975 (EPCA), as amended by the Energy
Information and Security Act of 2007
(EISA), a Notice of Proposed
Rulemaking. 77 FR 31964 (May 30,
2012). The Direct Final Rule
promulgated standards levels consistent
with those the Joint Stakeholder
Agreement and September 25, 2010
petition proposed. Compliance with
those standards is mandatory on May
30, 2013.
In a separate rulemaking, on
December 2, 2010, DOE published a
notice of proposed rulemaking in which
it proposed amendments to the
residential dishwasher test procedure,
Appendix C to Subpart B of Part 430
(Appendix C), to address standby and
off mode, including incorporation by
reference of IEC Standard 62301, First
Edition. See Energy Conservation
Program for Consumer Products: Test
Procedures for Residential Dishwashers,
Dehumidifiers, and Conventional
Cooking Products (Standby Mode and
Off Mode), Notice of Proposed
Rulemaking and Announcement of
Public Meeting, 75 FR 75290 (Dec. 2,
2010) [hereinafter December 2010
NOPR]. DOE also held a public meeting
on December 17, 2010. Appendix C
already included measurement of
standby mode, but the proposed
amendments proposed some changes to
the energy that would be measured. For
example, DOE proposed to define an
‘‘inactive mode’’ as ‘‘a standby mode
that facilitates the activation of active
mode by remote switch (including
remote control), internal sensor, or
timer, or that provides continuous status
display.’’ December 2010 NOPR, at
75298. DOE stated that proposed
amendments would not apply to, and
would have no impact on, existing
standards. See December 2010 SNOPR,
at 75316. DOE did not propose
amendments to the dishwasher active
mode test procedure. DOE next issued a
supplemental notice of proposed
rulemaking on September 20, 2011, in
which it proposed to incorporate by
reference IEC Standard 62301, Second
Edition. See Energy Conservation
Program: Test Procedures for
Residential Dishwashers,
Dehumidifiers, and Conventional
Cooking Products (Standby Mode and
Off Mode), Supplemental Notice of
Proposed Rulemaking, 76 FR 58346
(Sept. 20, 2011) [hereinafter September
2011 SNOPR]. DOE did not propose
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amendments to the dishwasher active
mode test procedure. DOE did not
expand upon or revise its December
2010 NOPR discussion about
compliance dates. In response to the
September 2011 SNOPR, AHAM
commented that ‘‘[a]lthough the
dishwasher test procedure currently
measures standby, the proposed
amendments change what energy will
be measured. For example, the end of
cycle energy will now be measured,
including cycle finished mode.’’ AHAM
Comments on the SNOPR for Test
Procedures for Residential Dishwashers,
Dehumidifiers, and Conventional
Cooking Products 3 (Oct. 20, 2011)
[hereinafter AHAM October 2011
Comments]. In response to comments
from AHAM and its members, DOE
published a second supplemental notice
of proposed rulemaking. See Energy
Conservation Program: Test Procedures
for Residential Dishwashers,
Dehumidifiers, and Conventional
Cooking Products (Standby Mode and
Off Mode), Supplemental Notice of
Proposed Rulemaking, 77 FR 31444
(May 25, 2012) [hereinafter May 2012
SNOPR]. In the May 2012 SNOPR, DOE
proposed to amend the residential
dishwasher test procedure to, among
other things, include measures of energy
consumption in fan-only mode. This
was the first time DOE proposed
amendments to the active mode test
procedure and the first time DOE
proposed a procedure to measure fanonly mode.
In its comments on the May 2012
SNOPR, AHAM commented that it was
‘‘somewhat unclear when compliance
with the proposed revisions to the
dishwasher test procedure would be
required. Some of the proposals would
impact measured energy (e.g., fan-only
mode, water softener regeneration).
Accordingly, if those amendments
would be effective under the existing
standards and/or the pending direct
final rule, DOE would need to do a
crosswalk to ensure that the stringency
of those standards does not change.
* * * Alternatively, DOE would need to
address the changes in measured energy
in a future standards rulemaking.’’
AHAM Comments on the SNOPR for
Test Procedures for Residential
Dishwashers, Dehumidifiers, and
Conventional Cooking Products 2 (June
25, 2012) [hereinafter AHAM June 2012
Comments] (emphasis in original).
AHAM also proposed that DOE
incorporate by reference ANSI/AHAM
DW–1–2009 in Appendix C. See AHAM
June 2012 Comments, at 12–13.
In response to comments it received
from AHAM and others on the May
2012 SNOPR, DOE published a third
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supplemental notice of proposed
rulemaking on August 15, 2012. See
Energy Conservation Program: Test
Procedures for Residential Dishwashers
and Cooking Products, Supplemental
Notice of Proposed Rulemaking, 77 FR
49064 (Aug. 15, 2012) [hereinafter
August 2012 SNOPR]. In the August
2012 SNOPR, DOE proposed to, among
other things, revise the test procedure
proposed in the May 2012 SNOPR for
measuring energy use in fan-only mode
and update the referenced industry test
method to ANSI/AHAM DW–1–2010
(AHAM DW–1–2010). Except with
regard to replacements proposed for
obsolete dishware, flatware, and food
items, DOE did not clarify or propose
specific compliance dates in the August
2012 SNOPR preamble, including
responding to AHAM’s previous
comment requesting clarification about
compliance dates. DOE did, however,
include language in the proposed
regulatory text addressing the
compliance date for fan-only mode and
water softener energy consumption:
‘‘The procedures and calculations that
refer to the combined low-power mode,
fan-only mode, and water softener
energy consumption * * * need not be
performed to determine compliance
with energy conservation standards for
dishwashers at this time.’’ August 2012
SNOPR, at 49072.
In response to the August 2012
SNOPR, AHAM commented ‘‘that it is
still somewhat unclear when
compliance with some of the proposed
revisions to the dishwasher test
procedure would be required’’ and
requested ‘‘that DOE clarify which
amendments are to be effective at which
time.’’ AHAM Comments on the SNOPR
for Test Procedures for Residential
Dishwashers, Dehumidifiers, and
Conventional Cooking Products 2 (Aug.
30, 2012) [hereinafter AHAM August
2012 Comments]. In addition, AHAM
commented that, because some of the
proposals would or could impact
measured energy, DOE would need to
ensure that the stringency of the
standards does not change if it intended
to require the amendments be used for
compliance with existing or 2013
standards. See id. On October 31, 2012,
DOE published the Test Procedure Final
Rule in which it established a new test
procedure for residential dishwashers,
Appendix C1 to Subpart B of Part 430
(Appendix C1). Relevant to the instant
petition, the Test Procedure Final Rule:
• Added provisions for measuring
standby mode and off mode energy
consumption, including incorporating
specific sections of IEC Standard 62301,
Second Edition by reference;
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• Added a provision for measuring
energy use in fan-only mode; and
• Updated the referenced industry
test method to ANSI/AHAM DW–1–
2010;
DOE determined that ‘‘the date upon
which the use of new appendix C1 will
be required will be May 30, 2013, the
compliance date of the direct final rule
published on May 30, 2012 * * *’’ Test
Procedure Final Rule, at 65947.
DOE did not revise the standards
promulgated in the Direct Final Rule to
account for changes in measured energy
as a result of amendments requiring
measurement of fan-only mode. DOE
reasoned that ‘‘energy use in [fan-only
mode] is estimated to be less than 5
percent of the total energy use of
standard dishwashers. Given that 65
percent of all standard dishwashers
currently on the market meet or exceed
the minimum energy conservation
standards established in the direct final
rule, inclusion of this small amount of
energy use would not impact
compliance with the revised standard.
Therefore, DOE has determined that the
energy use in fan-only mode is de
minimus and insufficient to alter in a
material manner the measured energy
use of dishwashers.’’ Test Procedure
Final Rule, at 65947 (emphasis in
original).
Nor did DOE adjust the standards in
the Direct Final Rule to account for the
standby and off-mode test procedure
amendments. See id. at 65961. DOE
relied on its conclusion that ‘‘the
proposed amendments to the
dishwasher test procedure regarding
standby mode and off mode would not
alter the measured efficiency of any
covered product under the existing test
procedure.’’ Id. And, DOE concluded,
because it was not presented with data
showing otherwise, that the
incorporation by reference of AHAM
DW–1–2010 in the dishwasher test
procedure would not impact measured
energy. See id. at 65966.
Argument
When DOE amends a test procedure,
it must determine ‘‘to what extent, if
any, the proposed test procedure would
alter the measured energy efficiency,
measured energy use, or measured water
use of any covered product as
determined under the existing test
procedure.’’ 42 U.S.C. 6293(e)(1). And,
if DOE determines that the amended test
procedure will alter measured energy or
water use, DOE ‘‘shall amend the
applicable energy conservation standard
during the rulemaking carried out with
respect to such test procedure.’’ 42
U.S.C. 6293(e)(2). There is a specific
procedure, involving evaluating
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minimally compliant products, set forth
in the law for making that adjustment.
See id. Furthermore, DOE was required
to prescribe in a final rule, no later than
March 31, 2011, test procedure
amendments with regard to standby and
off mode for residential dishwashers. 42
U.S.C. 6295(gg)(2)(B). Those test
procedure amendments ‘‘shall not to be
used to determine compliance with
product standards established prior to
the adoption of the amended test
procedures.’’ 42 U.S.C. 6295(gg)(2)(C).
DOE did not satisfy its statutory
obligations with regard to the fan-only
mode, standby and off-mode, and
updated industry test procedure
amendments.1
Amendments Regarding Fan-Only
Mode on Measured Energy and Ensure
That the Stringency of the Standard
Does Not Change
DOE determined, and, as discussed
below, AHAM data confirms, that the
fan-only mode amendments to the
residential dishwasher test procedure
impact measured energy. DOE stated
that the impact would be ‘‘de minimus,’’
but gives no justification, quantification,
standard, or criteria for that
determination. It is a textbook arbitrary
and capricious determination. As
discussed more fully below, AHAM
disagrees with the de minimus
determination and believes that such a
determination violates DOE’s statutory
obligations under 42 U.S.C. 6293(e).
DOE should have accounted for the
impact of the fan-only mode changes to
the test procedure in the May 2013
standard or should not have required
measurement of fan-only mode for
compliance with those standards.
AHAM thus requests that DOE adjust
the May 2013 standards to account for
the impact of the fan-only mode
amendments on measured energy or not
require measurement of fan-only mode
1 AHAM notes that it commented that the
proposed amendments to measure water softener
regeneration would also impact measured energy.
See AHAM June 2012 Comments, at 2. Our
understanding is that DOE determined that there
would not be a change in measured energy as a
result of the test procedure amendments to measure
water softener regeneration because that energy is
currently required to be included for compliance
with the standards under existing waivers. See
Final Test Procedure Rule, at 65946–97 (‘‘In the test
procedure waivers granted for water softening
dishwashers, DOE has required that such models
meet the current energy conservation standards
with the additional energy and water use associated
with water softener regeneration included in the
annual energy use and per-cycle water consumption
metrics. * * * In accordance with the approach
specified in these waivers, DOE determines that the
energy and water use must be included in the
metrics used to demonstrate compliance with any
amended dishwasher energy conservation
standards, including those in the direct final rule.’’).
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until a later standard is promulgated
that does account for that increase in
measured energy.
A. DOE Concluded That the Fan-Only
Mode Amendments Impact Measured
Energy
In the May 2012 SNOPR, when DOE
first proposed amendments to the
residential test procedure to measure
fan-only mode, DOE found that the
proposed measurement would increase
measured energy. DOE calculated the
range of annual energy consumption
associated with an air circulation fan
operating after the end of the active
cycle, according to the proposed test
procedure, to be from 0.4 to 17 kilowatt
hours (kWh) per year. See May 2012
SNOPR, at 31448. DOE stated that the
‘‘higher end of the range is greater than
5 percent of the maximum allowable
annual energy consumption for a
standard dishwasher (355 kWh).’’ Id.
DOE also stated that ‘‘the energy use
associated with this mode may in some
cases represent a larger percentage of
annual energy consumption than the
energy use in the low-power modes’’
and that, accordingly, ‘‘[t]his energy
consumption would be required to be
included in the annual energy
consumption metric upon the
compliance date of any updated
dishwasher energy conservation
standards addressing standby and off
mode energy use.’’ Id. at 31451.
AHAM, though it did not oppose
measurement of fan-only mode, agreed
that it would increase measured energy,
and, thus, requested clarification as to
when the measurement would be
required for compliance with the energy
conservation standards for dishwashers:
DOE should also clarify when this
measurement would be required for
compliance with energy conservation
standards for dishwashers. DOE stated
that this would be ‘‘required in the
annual energy metric upon the
compliance date of any updated
dishwasher energy conservation
standards addressing standby mode and
off mode energy use.’’ Especially
because this measurement would
impact measured energy, AHAM
assumes that statement is referencing a
future standard that has not yet been
proposed and that the fan-only
measurement would not be required for
compliance with the standards in the
current direct final rule for dishwashers,
77 FR 31918 (May 30, 2012). An express
statement to that effect would provide
clarity to regulated parties.
AHAM June 2012 Comments, at 3.
Importantly, AHAM specifically stated
its assumption that DOE’s statement
regarding the compliance date did not
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refer to the then-pending standards in
the Direct Final Rule. See id.; see also
id. at 2 (‘‘AHAM notes that it is
somewhat unclear when compliance
with the proposed revisions to the
dishwasher test procedure would be
required. Some of the proposals would
impact measured energy (e.g., fan-only
mode, water softener regeneration).
Accordingly, if those amendments
would be effective under the existing
standards and/or the pending direct
final rule, DOE would need to do a
crosswalk to ensure that the stringency
of those standards does not change.
* * * Alternatively, DOE would need to
address the changes in measured energy
in a future standards rulemaking.
AHAM requests that DOE clarify which
amendments are to be effective at which
time.’’) (emphasis in original).
In the subsequent August 2012
SNOPR, in response to AHAM’s
comments, DOE proposed an alternative
approach for measurement of fan-only
mode, but DOE did not alter its analysis
regarding the impact of the amendments
on measured energy or respond to
AHAM’s request for clarity regarding
the compliance date for the proposed
fan-only mode amendments. Thus,
AHAM again requested clarity and
argued that, because the proposed
amendments to measure fan-only mode
would impact measured energy, DOE
would need to either amend the
standards in the Direct Final Rule to
ensure that the stringency of those
standards did not change or not require
measurement of fan-only mode for
compliance with the current or May
2013 standards:
AHAM notes that it is still somewhat
unclear when compliance with some of
the proposed revisions to the
dishwasher test procedure would be
required. Some of the proposals would
or could impact measured energy.
Accordingly, if those amendments
would be effective under the existing
standards and/or the pending direct
final rule, DOE would need to do a
crosswalk to ensure that the stringency
of those standards does not change.1
Alternatively, DOE would need to
address the changes in measured energy
in a future standards rulemaking.
AHAM requests that DOE clarify which
amendments are to be effective at which
time.1 77 FR 31918 (May 30, 2012).
AHAM August 2012 Comments, at 2.
Then, in the Test Procedure Final
Rule, DOE adopted amendments to
measure fan-only mode and confirmed
its estimates of the upper end of the
range of annual energy consumption
associated with fan-only mode. See Test
Procedure Final Rule, at 65959. Yet,
despite the fact that it concluded that
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the amendments would impact
measured energy, DOE determined that
the amendments would be required for
compliance with the May 2013
standards: DOE has determined that use
of the test procedures to measure the
energy use in fan-only mode on the
compliance date of any amended
standards is appropriate. * * * The
energy use in these modes is estimated
to be less than 5 percent of the total
energy use of standard dishwashers.
Given that 65 percent of all standard
dishwashers currently on the market
meet or exceed the minimum energy
conservation standards established in
the direct final rule, inclusion of this
small amount of energy use would not
impact compliance with the revised
standard. * * * Therefore, DOE has
determined that the energy use in fanonly mode is de minimus and
insufficient to alter in a material manner
the measured energy use of
dishwashers. Therefore, DOE is not
considering amending the standards set
forth in the direct final rule.’’ Test
Procedure Final Rule, at 65947
(emphasis in original).
B. AHAM Data Show That the Fan-Only
Mode Amendments Impact Measured
Energy
Based on data AHAM collected, the
fan-only mode amendments to the
residential dishwasher test procedure
will add a shipment weighted average of
0.29 kWh per year in measured energy.
That energy takes into account the
market penetration of fan-only mode—
it does not assume that all basic models
have fan-only mode. In addition, the
shipment weighted average number
includes a wide range of impacts on
manufacturers and individual models,
some much greater than 0.29 kWh per
year. AHAM thus encourages DOE to
interview individual manufacturers
about the impact based on different
technologies. AHAM’s data show that,
the fan-only mode amendments could
add up to two percent of the 2013
standard in measured energy for some
models. For models with fan-only mode,
this is a significant impact on measured
energy, particularly for minimally
compliant products, and could not only
require manufacturers to re-certify some
or all of their models, but could also
impact compliance with the standards.
DOE should adjust the May 2013
standard to account for this impact on
measured energy or, alternatively delay
the requirement to measure fan-only
mode until the compliance date of a
future standard (i.e., after the May 2013
standards). AHAM’s preference would
be that DOE revise the standards with
which compliance is required on May
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30, 2013, to account for the impact on
measured energy.
C. DOE Must Account for the Impact of
the Fan-Only Mode Amendments on
Measured Energy
In making its determination not to
adjust the May 2013 standards to
account for the impact on measured
energy resulting from the fan-only mode
amendments, DOE seems to have relied
upon (1) its estimation that energy use
in fan-only mode is less than five
percent of the total energy use of
standard dishwashers; and (2) the fact
that 65% of dishwashers currently on
the market meet or exceed the energy
conservation standards in the Direct
Final Rule. See Test Procedure Final
Rule, at 65947. But neither of these
reasons is sufficient for not ensuring
that the stringency of the May 2013
standards remains unchanged.
DOE determined that its amendments
to require measurement of fan-only
mode would impact measured energy. It
must, therefore, amend the May 2013
standard to ensure that the stringency of
those standards does not change. See 42
U.S.C. 6293(e). As noted, DOE cannot
simply ignore its statutory obligations
because it does not deem the impact of
the test procedure amendments to be
significant. DOE stated that it considers
the energy use in fan-only mode to be
‘‘de minimus and insufficient to alter in
a material manner the energy use of
dishwashers.’’ Test Procedure Final
Rule, at 65947. But DOE has not
defined, justified, or quantified what it
considers to be de minimus for these
purposes. Nor did Congress provide a de
minimus exception to the requirements
in 42 U.S.C. 6293. DOE’s determination
that the energy use in fan-only mode is
‘‘de minimus’’ is a textbook arbitrary
and capricious determination.
Furthermore, DOE’s statement that
65% of dishwashers currently on the
market meet or exceed the May 2013
standards misses the point. First, even
if it is true that most dishwashers
already meet or exceed the upcoming
standards, because fan-only mode
impacts measured energy,
manufacturers may need to re-certify
and re-label models with fan-only mode,
depending on the magnitude of the
impact on each model and whether the
manufacturer conservatively rated the
product originally. The resources
required to re-certify and re-label
models is significant. And the result
will be confusion to consumers. Second,
DOE’s own analysis itself is
contradictory and belies its conclusions.
That most products, but hardly all,
already meet the new standards levels,
leads to the conclusion that some do not
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(i.e., 35%) and, further, that minimally
compliant products might well be
affected by a five percent change (if that
is the right number) in the stringency of
the standard.
Nor is the fact that DOE is requiring
measurement of fan-only mode for
compliance with future standards
sufficient to relieve DOE of its
obligation to ensure that the stringency
of those standards does not change. The
standards in the Direct Final Rule did
not contemplate measurement of fanonly mode, as evidenced by the facts
that (1) the Joint Stakeholder Agreement
on which the standards in the Direct
Final Rule were based was finalized on
July 30, 2010, over two years before the
fan-only mode amendments were
adopted; (2) the Direct Final Rule was
published on May 30, 2012, only five
days after DOE first proposed to require
measurement of fan-only mode, and
specifically stated that it was consistent
with the proposed standards levels in
the Joint Stakeholder Agreement; and
(3) the Direct Final Rule became
effective on September 27, 2012, a little
over one month before publication of
the Final Test Procedure Rule in the
Federal Register.
The Joint Stakeholder Agreement
specifically contemplated just this
situation by providing, in proposed
statutory language, that, should the
residential test procedure be amended
prior to the compliance date of the
agreed-to amended standards, the
procedures of 42 U.S.C. 6293(e)(2) must
be followed. See Joint Stakeholder
Agreement, at 7. And the Joint
Stakeholders ‘‘agree[d] that pending
amendments to test procedures for the
affected products should be completed
by DOE, subject to input from all
stakeholders and agree[d] to recommend
that DOE translate the standards
contained in this agreement to
equivalent levels specified under
revised test procedures.’’ Id. at ¶ 5. But,
because stakeholders did not know what
action DOE would take with regard to
fan-only mode, stakeholders could not
have effectively or meaningfully
commented to oppose application of the
fan-only mode amendments for
compliance with the May 2013
standards in comments on the Direct
Final Rule.
DOE authorized the Test Procedure
Final Rule on September 17, 2012,
which was the same date comments on
the Direct Final Rule and accompanying
Notice of Proposed Rulemaking were
due to DOE. Notice of that authorization
was not sent to stakeholders until 6:06
p.m. on September 17, 2012, thus not
affording stakeholders sufficient time to
be able to review and develop
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comments prior to the end of the
comment period on the Direct Final
Rule.
Accordingly, AHAM requests that
DOE either: (1) Revise the May 2013
standards to account for the impact on
measured energy resulting from the fanonly mode amendments; or (2) not
require measurement of fan-only mode
until such time as a future revised
standard is promulgated for residential
dishwashers. AHAM’s preference would
be that DOE revise the standards with
which compliance is required on May
30, 2013, to account for the impact on
measured energy.
II. DOE Must Account for the Impact of
Test Procedure Amendments Regarding
Standby and Off Mode on Measured
Energy
DOE determined, and AHAM data
confirms, that the standby and off mode
amendments to the residential
dishwasher test procedure impact
measured energy. DOE determined that
because the amendments would not be
required to determine compliance with
the current standards, it did not need to
adjust the standards to account for the
increase in measured energy. AHAM
disagrees—DOE’s decision not to adjust
the standards violates DOE’s statutory
obligations under 42 U.S.C. 6295(gg)(2)
and 42 U.S.C. 6293(e). AHAM thus
requests that DOE adjust the May 2013
standards to account for the impact of
the standby and off mode amendments
on measured energy or not require those
amendments to determine compliance
with the May 2013 standard.
A. DOE Concluded That the Standby
and Off Mode Amendments Impact
Measured Energy
DOE determined that the amendments
to the dishwasher test procedure
regarding standby and off mode would
impact measured energy and, thus,
proposed that those amendments not be
required until the compliance date of
amended dishwasher standards that
address standby mode and off mode
energy use. See December 2010 SNOPR,
at 75317; U.S. Department of Energy,
Test Procedure for Dishwashers,
Dehumidifiers, and Conventional
Cooking Products, Notice of Proposed
Rulemaking Public Meeting 71 (Dec. 17,
2010) [hereinafter Public Meeting
Presentation] (stating that ‘‘inactive, off,
and cycle finished modes measured
under the proposed test procedure may
result in energy consumption levels
slightly higher than the current test
procedure. The proposed amendments
would clarify that provisions related to
the new measures of energy
consumption in standby mode and off
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76957
mode would not be required to be used
by manufacturers until the compliance
date of any amended dishwasher
standards addressing standby mode and
off mode energy use’’) (emphasis
added).
Throughout the rulemaking, it seemed
that DOE would, appropriately, use the
standards-setting process to account for
the increase in measured energy due to
the standby and off mode test procedure
amendments. For example, DOE stated
‘‘that the standby mode and off mode
energy use is of a magnitude that it
would materially affect that standardsetting process without overwhelming
the effects of differing levels of active
mode energy use.’’ Id. at 70 (emphasis
added). And DOE further explained
‘‘that the magnitude of standby and offmode energy use is such that integrating
it would be measurable in changes in
standby power, it would produce a
measureable difference in EAEU so,
therefore, would factor into any
standard setting process, but is not so
great that it would overwhelm the effect
of variations in active energy—activemode energy use, how that would
contribute to the EAEU.’’ Public
Meeting, Energy Conservation Standard
NOPR for Test Procedure for
Dishwashers, Dehumidifiers and
Conventional Cooking Products,
Transcript 111–12 (Dec. 17, 2010)
(emphasis added). DOE did not,
however, expect the estimated annual
energy use (EAEU) and estimated
annual energy cost (EAOC) for
dishwashers to be significantly affected
by its proposed amendments to the test
procedure. See, e.g., Public Meeting
Presentation, at 83.
In the September 2011 SNOPR, DOE
continued to conclude that no
amendments to the existing energy
conservation standards would be
required because the ‘‘proposed
amendments would not measurably
alter the existing energy efficiency and
energy use metrics for residential
dishwashers . * * * [and because] those
proposed amendments would clarify
that manufacturers would not be
required to use the provisions relating to
standby mode and off mode energy use
until the compliance of new energy
conservation standards addressing such
energy use.’’ September 2011 SNOPR, at
58355. AHAM commented that it did
not agree with DOE’s conclusion that
there would be no change in measured
energy resulting from the standby and
off mode test procedure changes:
AHAM does not agree, however, that
there would be no change in measured
energy resulting from the changes to the
dishwasher test procedure. Although
the dishwasher test procedure currently
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measures standby, the proposed
amendments change what energy will
be measured. For example, the end of
cycle energy will now be measured,
including cycle finished mode. DOE
should amend the reporting
requirements, and standards, to account
for this change.
AHAM October 2011 Comments, at 3.
Yet DOE did not change its position in
the Test Procedure Final Rule. See Test
Procedure Final Rule, at 65946–47.
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B. AHAM Data Show That the Standby
and Off Mode Amendments Impact
Measured Energy
Based on data AHAM collected, the
standby and off mode amendments to
the residential dishwasher test
procedure will add a shipment weighted
average of 1.10 kWh per year. This
amount could be enough, especially
combined with the increase in measured
energy due to the fan-only mode
amendments, to require a manufacturer
to re-certify and re-label some or all of
its dishwasher models. In addition, the
shipment weighted average number
includes a wide range of impacts on
manufacturers and individual models,
some much greater than 1.10 kWh per
year. AHAM thus encourages DOE to
interview individual manufacturers
about the impact based on different
technologies.
C. DOE Must Account for the Impact of
the Standby and Off Mode Amendments
on Measured Energy
DOE did not address the impact of the
standby or off mode as measured per
Appendix C1 in the Direct Final Rule.
Nor could it have because DOE adopted
Appendix C1 on October 31, 2012, over
a month after the Direct Final Rule
became effective. Furthermore, the Joint
Stakeholder Agreement did not
contemplate the standby and off mode
amendments to the test procedure and
the Joint Stakeholders made no
agreement regarding the proper
standards for standby and off mode
energy consumption. See Joint
Stakeholder Agreement, at ¶ 4. In fact,
the Joint Stakeholder Agreement
included proposed statutory language
for implementing the agreement which
expressly stated that ‘‘[a]ny final rule
amending the dishwasher test procedure
after July 9, 2010, and before January 1,
2013 shall also amend the standards
contained in [the agreement] according
to the procedures in section 323(e) [of
the Energy Policy and Conservation
Act]. Section 323(e)(3) shall not apply to
these amended standards.’’ Joint
Stakeholder Agreement, at 7 (emphasis
added). It also stated, more generally,
that the Joint Stakeholders ‘‘agree[d]
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that pending amendments to test
procedures for the affected products
should be completed by DOE, subject to
input from all stakeholders and agree to
recommend that DOE translate the
standards contained in this agreement to
equivalent levels specified under
revised test procedures.’’ Id. at ¶ 5.
Thus, in order to require use of the
amendments for compliance with the
May 2013 standards, DOE must account
for the increase in measured energy due
to the standby and off mode
amendments. DOE followed this
approach in its implementation of the
Joint Stakeholder Agreement’s
recommendations for clothes dryers,
room air conditioners, and clothes
washer standards. See, e.g., Energy
Conservation Program: Energy
Conservation Standards for Residential
Clothes Dryers and Room Air
Conditioners, Final Rule, 76 FR 22454,
22477 (Apr. 21, 2011). And DOE should
have done the same thing with regard to
dishwashers. Accordingly, we
respectfully request that DOE either do
the same analysis here as it did for those
products, or delay the compliance date
of the standby and off mode
amendments until the compliance date
of a future standard that addresses
standby and off mode. AHAM’s
preference would be that DOE revise the
standards with which compliance is
required on May 30, 2013, to account for
the impact on measured energy.
In the Test Procedure Final Rule, DOE
concluded, based only on a lack of data
to the contrary, that the incorporation
by reference of AHAM DW–1–2010
would not impact measured energy. See
Test Procedure Final Rule, at 65966.
AHAM proposed that DOE should
incorporate AHAM DW–1–2010 by
reference in the dishwasher test
procedure. AHAM also commented that
to do so, ‘‘DOE would need to determine
whether this change would result in
changes to measured energy (resulting
from a change in dishware, for example)
* * *’’ AHAM June 2012 Comments, at
12–13; see also AHAM August 2012
Comments, at 8. AHAM also
volunteered to work together with DOE
to make that determination. See AHAM
August 2012 Comments, at 8. DOE did
seek data regarding the impact
incorporating AHAM DW–1–2010 by
reference would have on measured
energy. AHAM indicated that it did not
have data indicating what the effect on
measured energy would be were DOE to
incorporate AHAM DW–1–2010 by
reference, and DOE did not receive data
from other stakeholders in response to
its request. See AHAM August 2012
Comments, at 8; Test Procedure Final
Rule, at 65966.
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In the Test Procedure Final Rule, DOE
responded to the lack of data by
identifying the differences between
AHAM DW–1–1992 and AHAM DW–1–
2010 and stating that it had ‘‘not been
presented with any data or information
that would show that these differences
would impact the results from the DOE
dishwasher test procedure for specific
dishwasher models. DOE also notes the
uniform support from commenters to
reference the most recent version of
industry standards in its test procedures
and observes that some test laboratories
are already conducting dishwasher
testing according to ANSI/AHAM DW–
1–2010. Further, these amendments will
not be required until the compliance
date of new standards, which will be
May 30, 2013. * * * If manufacturers
determine that the new DOE test
procedure does not measure energy and
water use that is representative for their
products, they may submit to DOE a
petition for waiver from the DOE test
procedure to determine an appropriate
method.’’ Test Procedure Final Rule, at
65966.
AHAM fully supports incorporation
of AHAM DW–1–2010 by reference in
Appendix C1 and thanks DOE for
incorporating by reference the most
recent industry test procedure. Like
DOE, AHAM does not believe that the
differences between AHAM DW–1–1992
and AHAM DW–1–2010 would
noticeably impact measured energy.
Accordingly, we are not asking DOE to
reconsider its decision to incorporate
AHAM DW–1–2010 by reference.
Nevertheless, DOE should ensure in
future rulemakings that it fulfills its
duty under the law to investigate the
impact on measured energy and should
not act on its own non-empirical belief
about the impact of a test procedure
change on measured energy. If DOE
does not get the data it requests, it must
gather the data itself, continue seeking
it from sources likely to have it, or
accept that there is no available data on
the point and thus, no rational,
empirically based action can be taken.
Conclusion
DOE concluded during the
rulemaking process that amendments to
the residential dishwasher test
procedure regarding fan-only mode and
standby and off mode impact measured
energy. And, as discussed above,
AHAM’s data further quantifies that
impact. Furthermore, the shipment
weighted average of the impact of both
the fan-only mode and standby and off
mode amendments is 1.38 kWh per
year. That energy takes into account the
market penetration of fan-only mode—
it does not assume that all basic models
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including incandescent reflector lamps
(IRLs). The U.S. Department of Energy
(DOE) received a petition from the
National Electrical Manufacturers
Association requesting the initiation of
a rulemaking to exclude from coverage
under EPCA standards a certain type of
IRL marketed for use in pool and spa
applications. Specifically, the lamp at
issue is a 100-watt R20 short (having a
maximum overall length of 3 and 5⁄8 or
3.625 inches) IRL (‘‘R20 short lamp’’).
DOE published this petition and a
request for comment in the Federal
Register on December 23, 2010. From its
evaluation of the petition and careful
consideration of the public comments,
DOE decided to grant the petition for
rulemaking. DOE published a request
for information in the Federal Register
on September 8, 2011. Based on the
comments received and additional data
gathered by DOE, DOE proposes to
exclude R20 short lamps from coverage
under the EPCA energy conservation
standards.
DATES: DOE will accept comments, data,
and information regarding this NOPR no
later than March 1, 2013. See section 0
Public Participation for details.
ADDRESSES: Any comments submitted
must identify the NOPR for Energy
Conservation Standards for R20 Short
Respectfully submitted,
Lamps, and provide docket number
Association of Home Appliance
EERE–2010–BT–PET–0047 and/or
Manufacturers
regulatory information number (RIN)
By: /s/ Jennifer Cleary,
number 1904–AC57. Comments may be
Director, Regulatory Affairs, 1111 19th St.
submitted using any of the following
NW., Suite 402, Washington, DC 20036, 202–
methods:
872–5955 x314
1. Federal eRulemaking Portal:
Dated: November 30, 2012
www.regulations.gov. Follow the
instructions for submitting comments.
[FR Doc. 2012–31392 Filed 12–28–12; 8:45 am]
2. Email: ShortLampsPetition-2010BILLING CODE 6450–01–P
PET-0047@ee.doe.gov. Include the
docket number and/or RIN in the
subject line of the message.
DEPARTMENT OF ENERGY
3. Mail: Ms. Brenda Edwards, U.S.
10 CFR Part 430
Department of Energy, Building
[Docket Number EERE–2010–BT–PET–0047] Technologies Program, Mailstop EE–2J,
1000 Independence Avenue SW.,
RIN 1904–AC57
Washington, DC 20585–0121. If
possible, please submit all items on a
Energy Conservation Program:
CD. It is not necessary to include
Request for Exclusion of 100 Watt R20 printed copies.
Short Incandescent Reflector Lamp
4. Hand Delivery/Courier: Ms. Brenda
From Energy Conservation Standards
Edwards, U.S. Department of Energy,
Building Technologies Program, 950
AGENCY: Office of Energy Efficiency and
L’Enfant Plaza SW., Suite 600,
Renewable Energy, Department of
Washington, DC 20024. Telephone:
Energy.
(202) 586–2945. If possible, please
ACTION: Notice of proposed rulemaking
submit all items on a CD, in which case
(NOPR).
it is not necessary to include printed
SUMMARY: The Energy Policy and
copies.
Written comments regarding the
Conservation Act of 1975 (EPCA), as
burden-hour estimates or other aspects
amended, prescribes energy
of collection-of-information
conservation standards for various
requirements may be submitted to
consumer products and certain
Office of Energy Efficiency and
commercial and industrial equipment,
srobinson on DSK4SPTVN1PROD with
have fan-only mode. Accordingly, we
request that DOE either: (1) Revise the
May 2013 standards to account for the
impact on measured energy using the
data AHAM presented in this petition or
through comprehensive testing that
compares total measured energy under
Appendix C versus Appendix C1; or (2)
not require measurement of fan-only
mode or the revised standby and off
mode procedures until such time as a
revised standard is promulgated for
residential dishwashers.
AHAM believes that, overall, the
amendments made to the test procedure,
which reside in Appendix C1, are
critical amendments, many of which
will enhance the repeatability and
reproducibility of the test procedure.
And we thank DOE for making those
amendments, many of which AHAM
requested. Thus, AHAM’s preference
would be that DOE revise the standards
with which compliance is required on
May 30, 2013, to account for the impact
on measured energy. AHAM would be
glad to assist DOE in determining the
appropriate amended energy
conservation standard under 42 U.S.C.
6293(e)(2). Pending resolution of the
instant petition, AHAM requests that
DOE stay compliance with the May 30,
2013, standards and Appendix C1.
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76959
Renewable Energy through the methods
listed above and by email to
Chad_S_Whiteman@omb.eop.gov.
For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see section 0 of this document (Public
Participation).
Docket: The docket is available for
review at www.regulations.gov,
including Federal Register notices,
comments, and other supporting
documents/materials. All documents in
the docket are listed in the
www.regulations.gov index. However,
not all documents listed in the index
may be publicly available, such as
information that is exempt from public
disclosure.
The regulations.gov Web page will
contain simple instructions on how to
access all documents, including public
comments, in the docket. See section 0
for more information on how to submit
comments through
www.regulations.gov.
For further information on how to
submit a comment or review other
public comments and the docket,
contact Ms. Brenda Edwards at (202)
586–2945 or by email:
brenda.edwards@ee.doe.gov.
FOR FURTHER INFORMATION CONTACT: Ms.
Lucy deButts, U.S. Department of
Energy, Office of Energy Efficiency and
Renewable Energy, Building
Technologies Program, EE–2J, 1000
Independence Avenue SW.,
Washington, DC 20585–0121.
Telephone: (202) 287–1604. Email:
lucy.debutts@ee.doe.gov.
Ms. Celia Sher, U.S. Department of
Energy, Office of the General Counsel,
GC–71, 1000 Independence Avenue
SW., Washington, DC 20585–0121.
Telephone: (202) 287–6122. Email:
celia.sher@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Rulemaking
II. Introduction
A. Authority
B. Background
III. Determination of R20 Short Lamp
Exclusion
A. Authority
B. R20 Short Lamp Special Application
Design and Impact on Energy Savings
1. Special Application of R20 Short Lamps
2. Impact on Energy Savings
C. Availability of R20 Short Lamp Special
Characteristics in Substitutes
1. Special Characteristics of R20 Short
Lamps
2. Reasonable Substitutes with R20 Short
Lamp Special Characteristics
D. Conclusion
E. Options for Conditional Exclusions
IV. Procedural Issues and Regulatory Review
E:\FR\FM\31DEP1.SGM
31DEP1
]]>Agencies
[Federal Register Volume 77, Number 250 (Monday, December 31, 2012)]
[Proposed Rules]
[Pages 76952-76959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31392]
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 430
[Docket Number EERE-BT-PET-0053]
Energy Conservation Program for Consumer Products: Association of
Home Appliance Manufacturers Petition for Reconsideration
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Petition for Reconsideration; Request for Comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) received a petition from the
Association of Home Appliance Manufacturers (AHAM) requesting
reconsideration of the U.S. Department of Energy's (DOE) final rule to
amend the test procedures for residential dishwashers, dehumidifiers,
and conventional cooking products, published on October 31, 2012, and
DOE's direct final rule to amend energy conservation standards for
dishwashers, published on May 30, 2012. Specifically, AHAM requested
that DOE stay the effectiveness of the test procedure final rule and
final standards rule until DOE either: Revises the standards in the
final standards rule to account for the impact on measured energy
resulting from test procedure amendments to measure fan-only mode and
standby and off mode energy use; or delays requirements regarding
measurement of fan-only mode and standby and off mode energy use until
promulgation of a revised standard for dishwashers. DOE seeks comment
on whether to grant the petition and proceed with a rulemaking on this
matter.
DATES: Any comments must be received by DOE not later than January 30,
2013.
ADDRESSES: Comments must be submitted, identified by docket number
EERE-BT-PET-0053, by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the instructions for submitting comments.
2. Email: AHAMPetition2012PET0053@ee.doe.gov. Include either the
docket number EERE-BT-PET-0053, and/or ``AHAM Petition'' in the subject
line of the message.
3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building
[[Page 76953]]
Technologies Program, Mailstop EE-2J, Room 1J-018, 1000 Independence
Avenue SW., Washington, DC 20585-0121. Please submit one signed
original paper copy.
4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of
Energy, Building Technologies Program, Room 1J-018, 1000 Independence
Avenue SW., Washington, DC 20585-0121.
5. Instructions: All submissions received must include the agency
name and docket number for this proceeding.
Docket: For access to the docket to read background documents, or
comments received, go to the Federal eRulemaking Portal at https://www.regulations.gov. In addition, electronic copies of the Petition are
available online at DOE's Web site at the following URL address: https://www.regulations.gov/#!docketDetail;D=EERE-2012-BT-PET-0053.
FOR FURTHER INFORMATION CONTACT:
Steven Witkowski, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Program, EE-2J,
1000 Independence Avenue SW., Washington, DC 20585-0121, (202) 586-
7892, or email: Steven.Witkowski@ee.doe.gov.
Elizabeth Kohl, U.S. Department of Energy, Office of General Counsel,
GC-71, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-
7796, email: Elizabeth.Kohl@hq.doe.gov.
SUPPLEMENTARY INFORMATION: The Administrative Procedure Act (APA), 5
U.S.C. 551 et seq., provides among other things that, ``[e]ach agency
shall give an interested person the right to petition for the issuance,
amendment, or repeal of a rule.'' (5 U.S.C. 553(e)). The Association of
Home Appliance Manufacturers (AHAM) petitioned DOE for reconsideration
of its final test procedure rule to amend the test procedures for
dishwashers, dehumidifiers and conventional cooking products (77 FR
65942 (Oct. 31, 2012)) and its direct final rule to amend the energy
conservation standards applicable to dishwashers (77 FR 31918 (May 30,
2012)). Specifically, AHAM requested that DOE stay the effectiveness of
the test procedure final rule and final standards rule until DOE
either: (1) Revises the standards in the final standards rule to
account for the impact on measured energy resulting from test procedure
amendments to measure fan-only mode and standby and off mode energy
use; or (2) delays requirements regarding measurement of fan-only mode
and standby and off mode energy use until promulgation of a revised
standard for dishwashers. In promulgating this petition for public
comment, DOE seeks views on whether to grant the petition and undertake
a rulemaking to consider the proposals contained in the petition. By
seeking such comment, DOE takes no position at this time on the merits
of the suggested rulemaking.
Issued in Washington, DC, on December 21, 2012.
Gregory H. Woods,
Office of General Counsel, U.S. Department of Energy.
Set forth below is the full text of the AHAM petition.
Before the
United States Department of Energy
Office of Energy Efficiency and Renewable Energy
In the Matter of: Docket No. EERE-2010-BT-TP-0039, RIN: 1904-
AC01, Energy Conservation Program: Test Procedures for Residential
Dishwashers, Dehumidifiers, and Conventional Cooking Products and
Docket No. EERE-2011-BT-STD-0060, RIN No. 1904-AC64, Energy
Conservation Program: Energy Conservation Standards For Residential
Dishwashers
10 CFR Parts 429 and 430
Petition for Reconsideration
The Association of Home Appliance Manufacturers (AHAM) respectfully
petitions the Department of Energy (DOE) for reconsideration of its
final rule on Test Procedures for Residential Dishwashers,
Dehumidifiers, and Conventional Cooking Products, Docket No. EERE-2010-
BT-TP-0039, RIN 1904-AC01, 77 FR 65942 (Oct. 31, 2012) (Test Procedure
Final Rule) and its direct final rule on Energy Conservation Standards
for Dishwashers, Docket No. EERE-2011-BT-STD-0060, RIN No. 1904-AC64,
77 FR 31918 (May 30, 2012) (Direct Final Rule).
AHAM believes that, overall, the amendments made to the residential
dishwasher test procedure are critical amendments, many of which will
enhance the repeatability and reproducibility of the test procedure.
AHAM requested many of the amendments, and we thank DOE for acting
quickly to address the issues we raised. But, despite DOE's conclusions
that amendments to the residential dishwasher test procedure regarding
fan-only mode and standby and off mode would impact measured energy and
AHAM's comments to the same effect, DOE has ignored and violated its
statutory obligations under 42 U.S.C. 6293(e) and 42 U.S.C.
6295(gg)(2). These provisions require analysis of test procedure
revisions to determine whether they affect the stringency of the
underlying standard, and, if so, DOE must adjust the standards
accordingly. This is to prevent ``back-door'' rulemakings that
effectively decrease or increase the appliance standards. DOE's action
is incompatible with and undermines the consensus agreement which
underlies the amended residential dishwasher standard.
AHAM thus requests an immediate stay of the effectiveness of both
the Direct Final Rule and the Test Procedure Final Rule until DOE
either (1) revises the standards in the Direct Final Rule to account
for the impact on measured energy resulting from test procedure
amendments regarding fan-only mode and standby and off mode energy; or
(2) delays requirements regarding measurement of fan-only mode and the
revised standby and off mode procedures until such time as a revised
standard is promulgated for residential dishwashers.
Facts
On July 30, 2010, AHAM and energy efficiency advocates submitted
energy conservation standards proposals for residential dishwashers and
other products that had been the subject of intensive negotiations
(Joint Stakeholder Agreement). DOE encouraged these negotiations,
supplied technical support to the parties, and considered the standards
under the fast track consensus standards provision in 42 U.S.C.
6295(p)(4). That agreement included agreed-to energy conservation
standards levels and a compliance date for dishwashers which the
parties to the agreement jointly submitted to DOE via petition dated
September 25, 2010. Notably, the Joint Stakeholder Agreement expressly
states that ``[t]he Joint Stakeholders have made no agreement
concerning the appropriate levels for standby or off mode energy
consumption and agree that stakeholders will comment to DOE as they
view appropriate during DOE's rulemaking process for each of the
affected products, as applicable.'' Joint Stakeholder Agreement, at ]
4. And the Joint Stakeholders ``agree[d] that pending amendments to
test procedures for the affected products should be completed by DOE,
subject to input from all stakeholders and agree[d] to recommend that
DOE translate the standards contained in this agreement to equivalent
levels specified under revised test procedures.'' Id. at ] 5. In
addition, the Joint Stakeholder Agreement provides, in proposed
statutory language, that, if the residential dishwasher test procedure
is amended prior to the compliance date of the proposed standards
(2013), the
[[Page 76954]]
standards should be amended consistent with 42 U.S.C. 6293(e)(2). See
Joint Stakeholder Agreement, at 7. On May 30, 2012, DOE published the
Direct Final Rule and, as required by the Energy Policy and
Conservation Act of 1975 (EPCA), as amended by the Energy Information
and Security Act of 2007 (EISA), a Notice of Proposed Rulemaking. 77 FR
31964 (May 30, 2012). The Direct Final Rule promulgated standards
levels consistent with those the Joint Stakeholder Agreement and
September 25, 2010 petition proposed. Compliance with those standards
is mandatory on May 30, 2013.
In a separate rulemaking, on December 2, 2010, DOE published a
notice of proposed rulemaking in which it proposed amendments to the
residential dishwasher test procedure, Appendix C to Subpart B of Part
430 (Appendix C), to address standby and off mode, including
incorporation by reference of IEC Standard 62301, First Edition. See
Energy Conservation Program for Consumer Products: Test Procedures for
Residential Dishwashers, Dehumidifiers, and Conventional Cooking
Products (Standby Mode and Off Mode), Notice of Proposed Rulemaking and
Announcement of Public Meeting, 75 FR 75290 (Dec. 2, 2010) [hereinafter
December 2010 NOPR]. DOE also held a public meeting on December 17,
2010. Appendix C already included measurement of standby mode, but the
proposed amendments proposed some changes to the energy that would be
measured. For example, DOE proposed to define an ``inactive mode'' as
``a standby mode that facilitates the activation of active mode by
remote switch (including remote control), internal sensor, or timer, or
that provides continuous status display.'' December 2010 NOPR, at
75298. DOE stated that proposed amendments would not apply to, and
would have no impact on, existing standards. See December 2010 SNOPR,
at 75316. DOE did not propose amendments to the dishwasher active mode
test procedure. DOE next issued a supplemental notice of proposed
rulemaking on September 20, 2011, in which it proposed to incorporate
by reference IEC Standard 62301, Second Edition. See Energy
Conservation Program: Test Procedures for Residential Dishwashers,
Dehumidifiers, and Conventional Cooking Products (Standby Mode and Off
Mode), Supplemental Notice of Proposed Rulemaking, 76 FR 58346 (Sept.
20, 2011) [hereinafter September 2011 SNOPR]. DOE did not propose
amendments to the dishwasher active mode test procedure. DOE did not
expand upon or revise its December 2010 NOPR discussion about
compliance dates. In response to the September 2011 SNOPR, AHAM
commented that ``[a]lthough the dishwasher test procedure currently
measures standby, the proposed amendments change what energy will be
measured. For example, the end of cycle energy will now be measured,
including cycle finished mode.'' AHAM Comments on the SNOPR for Test
Procedures for Residential Dishwashers, Dehumidifiers, and Conventional
Cooking Products 3 (Oct. 20, 2011) [hereinafter AHAM October 2011
Comments]. In response to comments from AHAM and its members, DOE
published a second supplemental notice of proposed rulemaking. See
Energy Conservation Program: Test Procedures for Residential
Dishwashers, Dehumidifiers, and Conventional Cooking Products (Standby
Mode and Off Mode), Supplemental Notice of Proposed Rulemaking, 77 FR
31444 (May 25, 2012) [hereinafter May 2012 SNOPR]. In the May 2012
SNOPR, DOE proposed to amend the residential dishwasher test procedure
to, among other things, include measures of energy consumption in fan-
only mode. This was the first time DOE proposed amendments to the
active mode test procedure and the first time DOE proposed a procedure
to measure fan-only mode.
In its comments on the May 2012 SNOPR, AHAM commented that it was
``somewhat unclear when compliance with the proposed revisions to the
dishwasher test procedure would be required. Some of the proposals
would impact measured energy (e.g., fan-only mode, water softener
regeneration). Accordingly, if those amendments would be effective
under the existing standards and/or the pending direct final rule, DOE
would need to do a crosswalk to ensure that the stringency of those
standards does not change. * * * Alternatively, DOE would need to
address the changes in measured energy in a future standards
rulemaking.'' AHAM Comments on the SNOPR for Test Procedures for
Residential Dishwashers, Dehumidifiers, and Conventional Cooking
Products 2 (June 25, 2012) [hereinafter AHAM June 2012 Comments]
(emphasis in original). AHAM also proposed that DOE incorporate by
reference ANSI/AHAM DW-1-2009 in Appendix C. See AHAM June 2012
Comments, at 12-13.
In response to comments it received from AHAM and others on the May
2012 SNOPR, DOE published a third supplemental notice of proposed
rulemaking on August 15, 2012. See Energy Conservation Program: Test
Procedures for Residential Dishwashers and Cooking Products,
Supplemental Notice of Proposed Rulemaking, 77 FR 49064 (Aug. 15, 2012)
[hereinafter August 2012 SNOPR]. In the August 2012 SNOPR, DOE proposed
to, among other things, revise the test procedure proposed in the May
2012 SNOPR for measuring energy use in fan-only mode and update the
referenced industry test method to ANSI/AHAM DW-1-2010 (AHAM DW-1-
2010). Except with regard to replacements proposed for obsolete
dishware, flatware, and food items, DOE did not clarify or propose
specific compliance dates in the August 2012 SNOPR preamble, including
responding to AHAM's previous comment requesting clarification about
compliance dates. DOE did, however, include language in the proposed
regulatory text addressing the compliance date for fan-only mode and
water softener energy consumption: ``The procedures and calculations
that refer to the combined low-power mode, fan-only mode, and water
softener energy consumption * * * need not be performed to determine
compliance with energy conservation standards for dishwashers at this
time.'' August 2012 SNOPR, at 49072.
In response to the August 2012 SNOPR, AHAM commented ``that it is
still somewhat unclear when compliance with some of the proposed
revisions to the dishwasher test procedure would be required'' and
requested ``that DOE clarify which amendments are to be effective at
which time.'' AHAM Comments on the SNOPR for Test Procedures for
Residential Dishwashers, Dehumidifiers, and Conventional Cooking
Products 2 (Aug. 30, 2012) [hereinafter AHAM August 2012 Comments]. In
addition, AHAM commented that, because some of the proposals would or
could impact measured energy, DOE would need to ensure that the
stringency of the standards does not change if it intended to require
the amendments be used for compliance with existing or 2013 standards.
See id. On October 31, 2012, DOE published the Test Procedure Final
Rule in which it established a new test procedure for residential
dishwashers, Appendix C1 to Subpart B of Part 430 (Appendix C1).
Relevant to the instant petition, the Test Procedure Final Rule:
Added provisions for measuring standby mode and off mode
energy consumption, including incorporating specific sections of IEC
Standard 62301, Second Edition by reference;
[[Page 76955]]
Added a provision for measuring energy use in fan-only
mode; and
Updated the referenced industry test method to ANSI/AHAM
DW-1-2010;
DOE determined that ``the date upon which the use of new appendix
C1 will be required will be May 30, 2013, the compliance date of the
direct final rule published on May 30, 2012 * * *'' Test Procedure
Final Rule, at 65947.
DOE did not revise the standards promulgated in the Direct Final
Rule to account for changes in measured energy as a result of
amendments requiring measurement of fan-only mode. DOE reasoned that
``energy use in [fan-only mode] is estimated to be less than 5 percent
of the total energy use of standard dishwashers. Given that 65 percent
of all standard dishwashers currently on the market meet or exceed the
minimum energy conservation standards established in the direct final
rule, inclusion of this small amount of energy use would not impact
compliance with the revised standard. Therefore, DOE has determined
that the energy use in fan-only mode is de minimus and insufficient to
alter in a material manner the measured energy use of dishwashers.''
Test Procedure Final Rule, at 65947 (emphasis in original).
Nor did DOE adjust the standards in the Direct Final Rule to
account for the standby and off-mode test procedure amendments. See id.
at 65961. DOE relied on its conclusion that ``the proposed amendments
to the dishwasher test procedure regarding standby mode and off mode
would not alter the measured efficiency of any covered product under
the existing test procedure.'' Id. And, DOE concluded, because it was
not presented with data showing otherwise, that the incorporation by
reference of AHAM DW-1-2010 in the dishwasher test procedure would not
impact measured energy. See id. at 65966.
Argument
When DOE amends a test procedure, it must determine ``to what
extent, if any, the proposed test procedure would alter the measured
energy efficiency, measured energy use, or measured water use of any
covered product as determined under the existing test procedure.'' 42
U.S.C. 6293(e)(1). And, if DOE determines that the amended test
procedure will alter measured energy or water use, DOE ``shall amend
the applicable energy conservation standard during the rulemaking
carried out with respect to such test procedure.'' 42 U.S.C.
6293(e)(2). There is a specific procedure, involving evaluating
minimally compliant products, set forth in the law for making that
adjustment. See id. Furthermore, DOE was required to prescribe in a
final rule, no later than March 31, 2011, test procedure amendments
with regard to standby and off mode for residential dishwashers. 42
U.S.C. 6295(gg)(2)(B). Those test procedure amendments ``shall not to
be used to determine compliance with product standards established
prior to the adoption of the amended test procedures.'' 42 U.S.C.
6295(gg)(2)(C). DOE did not satisfy its statutory obligations with
regard to the fan-only mode, standby and off-mode, and updated industry
test procedure amendments.\1\
---------------------------------------------------------------------------
\1\ AHAM notes that it commented that the proposed amendments to
measure water softener regeneration would also impact measured
energy. See AHAM June 2012 Comments, at 2. Our understanding is that
DOE determined that there would not be a change in measured energy
as a result of the test procedure amendments to measure water
softener regeneration because that energy is currently required to
be included for compliance with the standards under existing
waivers. See Final Test Procedure Rule, at 65946-97 (``In the test
procedure waivers granted for water softening dishwashers, DOE has
required that such models meet the current energy conservation
standards with the additional energy and water use associated with
water softener regeneration included in the annual energy use and
per-cycle water consumption metrics. * * * In accordance with the
approach specified in these waivers, DOE determines that the energy
and water use must be included in the metrics used to demonstrate
compliance with any amended dishwasher energy conservation
standards, including those in the direct final rule.'').
---------------------------------------------------------------------------
Amendments Regarding Fan-Only Mode on Measured Energy and Ensure That
the Stringency of the Standard Does Not Change
DOE determined, and, as discussed below, AHAM data confirms, that
the fan-only mode amendments to the residential dishwasher test
procedure impact measured energy. DOE stated that the impact would be
``de minimus,'' but gives no justification, quantification, standard,
or criteria for that determination. It is a textbook arbitrary and
capricious determination. As discussed more fully below, AHAM disagrees
with the de minimus determination and believes that such a
determination violates DOE's statutory obligations under 42 U.S.C.
6293(e). DOE should have accounted for the impact of the fan-only mode
changes to the test procedure in the May 2013 standard or should not
have required measurement of fan-only mode for compliance with those
standards. AHAM thus requests that DOE adjust the May 2013 standards to
account for the impact of the fan-only mode amendments on measured
energy or not require measurement of fan-only mode until a later
standard is promulgated that does account for that increase in measured
energy.
A. DOE Concluded That the Fan-Only Mode Amendments Impact Measured
Energy
In the May 2012 SNOPR, when DOE first proposed amendments to the
residential test procedure to measure fan-only mode, DOE found that the
proposed measurement would increase measured energy. DOE calculated the
range of annual energy consumption associated with an air circulation
fan operating after the end of the active cycle, according to the
proposed test procedure, to be from 0.4 to 17 kilowatt hours (kWh) per
year. See May 2012 SNOPR, at 31448. DOE stated that the ``higher end of
the range is greater than 5 percent of the maximum allowable annual
energy consumption for a standard dishwasher (355 kWh).'' Id. DOE also
stated that ``the energy use associated with this mode may in some
cases represent a larger percentage of annual energy consumption than
the energy use in the low-power modes'' and that, accordingly, ``[t]his
energy consumption would be required to be included in the annual
energy consumption metric upon the compliance date of any updated
dishwasher energy conservation standards addressing standby and off
mode energy use.'' Id. at 31451.
AHAM, though it did not oppose measurement of fan-only mode, agreed
that it would increase measured energy, and, thus, requested
clarification as to when the measurement would be required for
compliance with the energy conservation standards for dishwashers:
DOE should also clarify when this measurement would be required for
compliance with energy conservation standards for dishwashers. DOE
stated that this would be ``required in the annual energy metric upon
the compliance date of any updated dishwasher energy conservation
standards addressing standby mode and off mode energy use.'' Especially
because this measurement would impact measured energy, AHAM assumes
that statement is referencing a future standard that has not yet been
proposed and that the fan-only measurement would not be required for
compliance with the standards in the current direct final rule for
dishwashers, 77 FR 31918 (May 30, 2012). An express statement to that
effect would provide clarity to regulated parties.
AHAM June 2012 Comments, at 3. Importantly, AHAM specifically
stated its assumption that DOE's statement regarding the compliance
date did not
[[Page 76956]]
refer to the then-pending standards in the Direct Final Rule. See id.;
see also id. at 2 (``AHAM notes that it is somewhat unclear when
compliance with the proposed revisions to the dishwasher test procedure
would be required. Some of the proposals would impact measured energy
(e.g., fan-only mode, water softener regeneration). Accordingly, if
those amendments would be effective under the existing standards and/or
the pending direct final rule, DOE would need to do a crosswalk to
ensure that the stringency of those standards does not change. * * *
Alternatively, DOE would need to address the changes in measured energy
in a future standards rulemaking. AHAM requests that DOE clarify which
amendments are to be effective at which time.'') (emphasis in
original).
In the subsequent August 2012 SNOPR, in response to AHAM's
comments, DOE proposed an alternative approach for measurement of fan-
only mode, but DOE did not alter its analysis regarding the impact of
the amendments on measured energy or respond to AHAM's request for
clarity regarding the compliance date for the proposed fan-only mode
amendments. Thus, AHAM again requested clarity and argued that, because
the proposed amendments to measure fan-only mode would impact measured
energy, DOE would need to either amend the standards in the Direct
Final Rule to ensure that the stringency of those standards did not
change or not require measurement of fan-only mode for compliance with
the current or May 2013 standards:
AHAM notes that it is still somewhat unclear when compliance with
some of the proposed revisions to the dishwasher test procedure would
be required. Some of the proposals would or could impact measured
energy. Accordingly, if those amendments would be effective under the
existing standards and/or the pending direct final rule, DOE would need
to do a crosswalk to ensure that the stringency of those standards does
not change.\1\ Alternatively, DOE would need to address the changes in
measured energy in a future standards rulemaking. AHAM requests that
DOE clarify which amendments are to be effective at which time.\1\ 77
FR 31918 (May 30, 2012). AHAM August 2012 Comments, at 2.
Then, in the Test Procedure Final Rule, DOE adopted amendments to
measure fan-only mode and confirmed its estimates of the upper end of
the range of annual energy consumption associated with fan-only mode.
See Test Procedure Final Rule, at 65959. Yet, despite the fact that it
concluded that the amendments would impact measured energy, DOE
determined that the amendments would be required for compliance with
the May 2013 standards: DOE has determined that use of the test
procedures to measure the energy use in fan-only mode on the compliance
date of any amended standards is appropriate. * * * The energy use in
these modes is estimated to be less than 5 percent of the total energy
use of standard dishwashers. Given that 65 percent of all standard
dishwashers currently on the market meet or exceed the minimum energy
conservation standards established in the direct final rule, inclusion
of this small amount of energy use would not impact compliance with the
revised standard. * * * Therefore, DOE has determined that the energy
use in fan-only mode is de minimus and insufficient to alter in a
material manner the measured energy use of dishwashers. Therefore, DOE
is not considering amending the standards set forth in the direct final
rule.'' Test Procedure Final Rule, at 65947 (emphasis in original).
B. AHAM Data Show That the Fan-Only Mode Amendments Impact Measured
Energy
Based on data AHAM collected, the fan-only mode amendments to the
residential dishwasher test procedure will add a shipment weighted
average of 0.29 kWh per year in measured energy. That energy takes into
account the market penetration of fan-only mode--it does not assume
that all basic models have fan-only mode. In addition, the shipment
weighted average number includes a wide range of impacts on
manufacturers and individual models, some much greater than 0.29 kWh
per year. AHAM thus encourages DOE to interview individual
manufacturers about the impact based on different technologies. AHAM's
data show that, the fan-only mode amendments could add up to two
percent of the 2013 standard in measured energy for some models. For
models with fan-only mode, this is a significant impact on measured
energy, particularly for minimally compliant products, and could not
only require manufacturers to re-certify some or all of their models,
but could also impact compliance with the standards. DOE should adjust
the May 2013 standard to account for this impact on measured energy or,
alternatively delay the requirement to measure fan-only mode until the
compliance date of a future standard (i.e., after the May 2013
standards). AHAM's preference would be that DOE revise the standards
with which compliance is required on May 30, 2013, to account for the
impact on measured energy.
C. DOE Must Account for the Impact of the Fan-Only Mode Amendments on
Measured Energy
In making its determination not to adjust the May 2013 standards to
account for the impact on measured energy resulting from the fan-only
mode amendments, DOE seems to have relied upon (1) its estimation that
energy use in fan-only mode is less than five percent of the total
energy use of standard dishwashers; and (2) the fact that 65% of
dishwashers currently on the market meet or exceed the energy
conservation standards in the Direct Final Rule. See Test Procedure
Final Rule, at 65947. But neither of these reasons is sufficient for
not ensuring that the stringency of the May 2013 standards remains
unchanged.
DOE determined that its amendments to require measurement of fan-
only mode would impact measured energy. It must, therefore, amend the
May 2013 standard to ensure that the stringency of those standards does
not change. See 42 U.S.C. 6293(e). As noted, DOE cannot simply ignore
its statutory obligations because it does not deem the impact of the
test procedure amendments to be significant. DOE stated that it
considers the energy use in fan-only mode to be ``de minimus and
insufficient to alter in a material manner the energy use of
dishwashers.'' Test Procedure Final Rule, at 65947. But DOE has not
defined, justified, or quantified what it considers to be de minimus
for these purposes. Nor did Congress provide a de minimus exception to
the requirements in 42 U.S.C. 6293. DOE's determination that the energy
use in fan-only mode is ``de minimus'' is a textbook arbitrary and
capricious determination.
Furthermore, DOE's statement that 65% of dishwashers currently on
the market meet or exceed the May 2013 standards misses the point.
First, even if it is true that most dishwashers already meet or exceed
the upcoming standards, because fan-only mode impacts measured energy,
manufacturers may need to re-certify and re-label models with fan-only
mode, depending on the magnitude of the impact on each model and
whether the manufacturer conservatively rated the product originally.
The resources required to re-certify and re-label models is
significant. And the result will be confusion to consumers. Second,
DOE's own analysis itself is contradictory and belies its conclusions.
That most products, but hardly all, already meet the new standards
levels, leads to the conclusion that some do not
[[Page 76957]]
(i.e., 35%) and, further, that minimally compliant products might well
be affected by a five percent change (if that is the right number) in
the stringency of the standard.
Nor is the fact that DOE is requiring measurement of fan-only mode
for compliance with future standards sufficient to relieve DOE of its
obligation to ensure that the stringency of those standards does not
change. The standards in the Direct Final Rule did not contemplate
measurement of fan-only mode, as evidenced by the facts that (1) the
Joint Stakeholder Agreement on which the standards in the Direct Final
Rule were based was finalized on July 30, 2010, over two years before
the fan-only mode amendments were adopted; (2) the Direct Final Rule
was published on May 30, 2012, only five days after DOE first proposed
to require measurement of fan-only mode, and specifically stated that
it was consistent with the proposed standards levels in the Joint
Stakeholder Agreement; and (3) the Direct Final Rule became effective
on September 27, 2012, a little over one month before publication of
the Final Test Procedure Rule in the Federal Register.
The Joint Stakeholder Agreement specifically contemplated just this
situation by providing, in proposed statutory language, that, should
the residential test procedure be amended prior to the compliance date
of the agreed-to amended standards, the procedures of 42 U.S.C.
6293(e)(2) must be followed. See Joint Stakeholder Agreement, at 7. And
the Joint Stakeholders ``agree[d] that pending amendments to test
procedures for the affected products should be completed by DOE,
subject to input from all stakeholders and agree[d] to recommend that
DOE translate the standards contained in this agreement to equivalent
levels specified under revised test procedures.'' Id. at ] 5. But,
because stakeholders did not know what action DOE would take with
regard to fan-only mode, stakeholders could not have effectively or
meaningfully commented to oppose application of the fan-only mode
amendments for compliance with the May 2013 standards in comments on
the Direct Final Rule.
DOE authorized the Test Procedure Final Rule on September 17, 2012,
which was the same date comments on the Direct Final Rule and
accompanying Notice of Proposed Rulemaking were due to DOE. Notice of
that authorization was not sent to stakeholders until 6:06 p.m. on
September 17, 2012, thus not affording stakeholders sufficient time to
be able to review and develop comments prior to the end of the comment
period on the Direct Final Rule.
Accordingly, AHAM requests that DOE either: (1) Revise the May 2013
standards to account for the impact on measured energy resulting from
the fan-only mode amendments; or (2) not require measurement of fan-
only mode until such time as a future revised standard is promulgated
for residential dishwashers. AHAM's preference would be that DOE revise
the standards with which compliance is required on May 30, 2013, to
account for the impact on measured energy.
II. DOE Must Account for the Impact of Test Procedure Amendments
Regarding Standby and Off Mode on Measured Energy
DOE determined, and AHAM data confirms, that the standby and off
mode amendments to the residential dishwasher test procedure impact
measured energy. DOE determined that because the amendments would not
be required to determine compliance with the current standards, it did
not need to adjust the standards to account for the increase in
measured energy. AHAM disagrees--DOE's decision not to adjust the
standards violates DOE's statutory obligations under 42 U.S.C.
6295(gg)(2) and 42 U.S.C. 6293(e). AHAM thus requests that DOE adjust
the May 2013 standards to account for the impact of the standby and off
mode amendments on measured energy or not require those amendments to
determine compliance with the May 2013 standard.
A. DOE Concluded That the Standby and Off Mode Amendments Impact
Measured Energy
DOE determined that the amendments to the dishwasher test procedure
regarding standby and off mode would impact measured energy and, thus,
proposed that those amendments not be required until the compliance
date of amended dishwasher standards that address standby mode and off
mode energy use. See December 2010 SNOPR, at 75317; U.S. Department of
Energy, Test Procedure for Dishwashers, Dehumidifiers, and Conventional
Cooking Products, Notice of Proposed Rulemaking Public Meeting 71 (Dec.
17, 2010) [hereinafter Public Meeting Presentation] (stating that
``inactive, off, and cycle finished modes measured under the proposed
test procedure may result in energy consumption levels slightly higher
than the current test procedure. The proposed amendments would clarify
that provisions related to the new measures of energy consumption in
standby mode and off mode would not be required to be used by
manufacturers until the compliance date of any amended dishwasher
standards addressing standby mode and off mode energy use'') (emphasis
added).
Throughout the rulemaking, it seemed that DOE would, appropriately,
use the standards-setting process to account for the increase in
measured energy due to the standby and off mode test procedure
amendments. For example, DOE stated ``that the standby mode and off
mode energy use is of a magnitude that it would materially affect that
standard-setting process without overwhelming the effects of differing
levels of active mode energy use.'' Id. at 70 (emphasis added). And DOE
further explained ``that the magnitude of standby and off-mode energy
use is such that integrating it would be measurable in changes in
standby power, it would produce a measureable difference in EAEU so,
therefore, would factor into any standard setting process, but is not
so great that it would overwhelm the effect of variations in active
energy--active-mode energy use, how that would contribute to the
EAEU.'' Public Meeting, Energy Conservation Standard NOPR for Test
Procedure for Dishwashers, Dehumidifiers and Conventional Cooking
Products, Transcript 111-12 (Dec. 17, 2010) (emphasis added). DOE did
not, however, expect the estimated annual energy use (EAEU) and
estimated annual energy cost (EAOC) for dishwashers to be significantly
affected by its proposed amendments to the test procedure. See, e.g.,
Public Meeting Presentation, at 83.
In the September 2011 SNOPR, DOE continued to conclude that no
amendments to the existing energy conservation standards would be
required because the ``proposed amendments would not measurably alter
the existing energy efficiency and energy use metrics for residential
dishwashers . * * * [and because] those proposed amendments would
clarify that manufacturers would not be required to use the provisions
relating to standby mode and off mode energy use until the compliance
of new energy conservation standards addressing such energy use.''
September 2011 SNOPR, at 58355. AHAM commented that it did not agree
with DOE's conclusion that there would be no change in measured energy
resulting from the standby and off mode test procedure changes:
AHAM does not agree, however, that there would be no change in
measured energy resulting from the changes to the dishwasher test
procedure. Although the dishwasher test procedure currently
[[Page 76958]]
measures standby, the proposed amendments change what energy will be
measured. For example, the end of cycle energy will now be measured,
including cycle finished mode. DOE should amend the reporting
requirements, and standards, to account for this change.
AHAM October 2011 Comments, at 3. Yet DOE did not change its
position in the Test Procedure Final Rule. See Test Procedure Final
Rule, at 65946-47.
B. AHAM Data Show That the Standby and Off Mode Amendments Impact
Measured Energy
Based on data AHAM collected, the standby and off mode amendments
to the residential dishwasher test procedure will add a shipment
weighted average of 1.10 kWh per year. This amount could be enough,
especially combined with the increase in measured energy due to the
fan-only mode amendments, to require a manufacturer to re-certify and
re-label some or all of its dishwasher models. In addition, the
shipment weighted average number includes a wide range of impacts on
manufacturers and individual models, some much greater than 1.10 kWh
per year. AHAM thus encourages DOE to interview individual
manufacturers about the impact based on different technologies.
C. DOE Must Account for the Impact of the Standby and Off Mode
Amendments on Measured Energy
DOE did not address the impact of the standby or off mode as
measured per Appendix C1 in the Direct Final Rule. Nor could it have
because DOE adopted Appendix C1 on October 31, 2012, over a month after
the Direct Final Rule became effective. Furthermore, the Joint
Stakeholder Agreement did not contemplate the standby and off mode
amendments to the test procedure and the Joint Stakeholders made no
agreement regarding the proper standards for standby and off mode
energy consumption. See Joint Stakeholder Agreement, at ] 4. In fact,
the Joint Stakeholder Agreement included proposed statutory language
for implementing the agreement which expressly stated that ``[a]ny
final rule amending the dishwasher test procedure after July 9, 2010,
and before January 1, 2013 shall also amend the standards contained in
[the agreement] according to the procedures in section 323(e) [of the
Energy Policy and Conservation Act]. Section 323(e)(3) shall not apply
to these amended standards.'' Joint Stakeholder Agreement, at 7
(emphasis added). It also stated, more generally, that the Joint
Stakeholders ``agree[d] that pending amendments to test procedures for
the affected products should be completed by DOE, subject to input from
all stakeholders and agree to recommend that DOE translate the
standards contained in this agreement to equivalent levels specified
under revised test procedures.'' Id. at ] 5.
Thus, in order to require use of the amendments for compliance with
the May 2013 standards, DOE must account for the increase in measured
energy due to the standby and off mode amendments. DOE followed this
approach in its implementation of the Joint Stakeholder Agreement's
recommendations for clothes dryers, room air conditioners, and clothes
washer standards. See, e.g., Energy Conservation Program: Energy
Conservation Standards for Residential Clothes Dryers and Room Air
Conditioners, Final Rule, 76 FR 22454, 22477 (Apr. 21, 2011). And DOE
should have done the same thing with regard to dishwashers.
Accordingly, we respectfully request that DOE either do the same
analysis here as it did for those products, or delay the compliance
date of the standby and off mode amendments until the compliance date
of a future standard that addresses standby and off mode. AHAM's
preference would be that DOE revise the standards with which compliance
is required on May 30, 2013, to account for the impact on measured
energy.
In the Test Procedure Final Rule, DOE concluded, based only on a
lack of data to the contrary, that the incorporation by reference of
AHAM DW-1-2010 would not impact measured energy. See Test Procedure
Final Rule, at 65966. AHAM proposed that DOE should incorporate AHAM
DW-1-2010 by reference in the dishwasher test procedure. AHAM also
commented that to do so, ``DOE would need to determine whether this
change would result in changes to measured energy (resulting from a
change in dishware, for example) * * *'' AHAM June 2012 Comments, at
12-13; see also AHAM August 2012 Comments, at 8. AHAM also volunteered
to work together with DOE to make that determination. See AHAM August
2012 Comments, at 8. DOE did seek data regarding the impact
incorporating AHAM DW-1-2010 by reference would have on measured
energy. AHAM indicated that it did not have data indicating what the
effect on measured energy would be were DOE to incorporate AHAM DW-1-
2010 by reference, and DOE did not receive data from other stakeholders
in response to its request. See AHAM August 2012 Comments, at 8; Test
Procedure Final Rule, at 65966.
In the Test Procedure Final Rule, DOE responded to the lack of data
by identifying the differences between AHAM DW-1-1992 and AHAM DW-1-
2010 and stating that it had ``not been presented with any data or
information that would show that these differences would impact the
results from the DOE dishwasher test procedure for specific dishwasher
models. DOE also notes the uniform support from commenters to reference
the most recent version of industry standards in its test procedures
and observes that some test laboratories are already conducting
dishwasher testing according to ANSI/AHAM DW-1-2010. Further, these
amendments will not be required until the compliance date of new
standards, which will be May 30, 2013. * * * If manufacturers determine
that the new DOE test procedure does not measure energy and water use
that is representative for their products, they may submit to DOE a
petition for waiver from the DOE test procedure to determine an
appropriate method.'' Test Procedure Final Rule, at 65966.
AHAM fully supports incorporation of AHAM DW-1-2010 by reference in
Appendix C1 and thanks DOE for incorporating by reference the most
recent industry test procedure. Like DOE, AHAM does not believe that
the differences between AHAM DW-1-1992 and AHAM DW-1-2010 would
noticeably impact measured energy. Accordingly, we are not asking DOE
to reconsider its decision to incorporate AHAM DW-1-2010 by reference.
Nevertheless, DOE should ensure in future rulemakings that it fulfills
its duty under the law to investigate the impact on measured energy and
should not act on its own non-empirical belief about the impact of a
test procedure change on measured energy. If DOE does not get the data
it requests, it must gather the data itself, continue seeking it from
sources likely to have it, or accept that there is no available data on
the point and thus, no rational, empirically based action can be taken.
Conclusion
DOE concluded during the rulemaking process that amendments to the
residential dishwasher test procedure regarding fan-only mode and
standby and off mode impact measured energy. And, as discussed above,
AHAM's data further quantifies that impact. Furthermore, the shipment
weighted average of the impact of both the fan-only mode and standby
and off mode amendments is 1.38 kWh per year. That energy takes into
account the market penetration of fan-only mode--it does not assume
that all basic models
[[Page 76959]]
have fan-only mode. Accordingly, we request that DOE either: (1) Revise
the May 2013 standards to account for the impact on measured energy
using the data AHAM presented in this petition or through comprehensive
testing that compares total measured energy under Appendix C versus
Appendix C1; or (2) not require measurement of fan-only mode or the
revised standby and off mode procedures until such time as a revised
standard is promulgated for residential dishwashers.
AHAM believes that, overall, the amendments made to the test
procedure, which reside in Appendix C1, are critical amendments, many
of which will enhance the repeatability and reproducibility of the test
procedure. And we thank DOE for making those amendments, many of which
AHAM requested. Thus, AHAM's preference would be that DOE revise the
standards with which compliance is required on May 30, 2013, to account
for the impact on measured energy. AHAM would be glad to assist DOE in
determining the appropriate amended energy conservation standard under
42 U.S.C. 6293(e)(2). Pending resolution of the instant petition, AHAM
requests that DOE stay compliance with the May 30, 2013, standards and
Appendix C1.
Respectfully submitted,
Association of Home Appliance Manufacturers
By: /s/ Jennifer Cleary,
Director, Regulatory Affairs, 1111 19th St. NW., Suite 402,
Washington, DC 20036, 202-872-5955 x314
Dated: November 30, 2012
[FR Doc. 2012-31392 Filed 12-28-12; 8:45 am]
BILLING CODE 6450-01-P
