Energy Conservation Program: Establishment of a New Product Class for Residential Dishwashers, 68723-68742 [2020-23765]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 85, Number 211 (Friday, October 30, 2020)]
[Rules and Regulations]
[Pages 68723-68742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23765]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2018-BT-STD-0005]
RIN 1904-AE35


Energy Conservation Program: Establishment of a New Product Class 
for Residential Dishwashers

AGENCY: Office of Energy Efficiency and Renewable Energy (EERE), 
Department of Energy.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE) received a petition from 
the Competitive Enterprise Institute (CEI) to define a new product 
class under the Energy Policy and Conservation Act, as amended (EPCA), 
for standard residential dishwashers with a cycle time for the normal 
cycle of less than one hour from washing through drying. Based upon its 
evaluation of the petition and careful consideration of the public 
comments, DOE granted CEI's petition and proposed a dishwasher product 
class with a cycle time for the normal cycle of less than one hour. In 
this final rule, DOE establishes a new product class for standard 
residential dishwashers with a cycle time for the normal cycle of one 
hour (60 minutes) or less from washing through drying. DOE's decision 
to establish the new product class is based on its evaluation of CEI's 
petition, the comments the Department received in response to the 
petition and the proposed rule to establish the new product class, as 
well as additional testing and evaluation conducted by the Department. 
This rulemaking only sets out the basis for the new product class. DOE 
intends to determine the specific energy and water consumption limits 
for the product class in a separate rulemaking.

DATES: The effective date of this rule is November 30, 2020. The 
incorporation by reference of a certain publication in this final rule 
is approved by the Director of the Office of the Federal Register as of 
November 30, 2020.

ADDRESSES: The docket for this rulemaking, which includes Federal 
Register notices, comments, and other supporting documents/materials, 
is available for review at https://www.regulations.gov. All documents 
in the docket are listed in the https://www.regulations.gov index. 
However, not all documents listed in the index may be publicly 
available, such as information that is exempt from public disclosure.
    The docket web page can be found at: https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0005. The docket web page contains 
instructions on how to access all documents, including public comments, 
in the docket.

FOR FURTHER INFORMATION CONTACT: Ms. Kathryn McIntosh, U.S. Department 
of Energy, Office of the General Counsel, GC-33, 1000 Independence 
Avenue SW, Washington, DC 20585. Telephone: (202) 586-2002. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: DOE incorporates by reference the following 
industry standard into 10 CFR part 430: ANSI/AHAM DW-1-2010, Household 
Electric Dishwashers, (ANSI approved September 18, 2010).
    A copy of ANSI/AHAM DW-2010 is available at: Association of Home 
Appliance Manufacturers, 1111 19th Street NW, Suite 402, Washington, DC 
20036, 202-872-5955, or go to https://www.aham.org.
    For a further discussion of this standard, see section V.N.

I. Summary of the Final Rule
II. Introduction
    A. Background
    B. DOE Testing and Analysis of Results
III. Discussion
    A. Establishment of a Short-Cycle Product Class for Standard 
Residential Dishwashers, 42 U.S.C. 6295(q)
    B. Anti-Backsliding Considerations, 42. U.S.C. 6295(o)
    C. Other Comments
IV. Conclusion
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under Executive Orders 13771 and 13777
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act of 1995
    E. Review Under the National Environmental Policy Act of 1969
    F. Review Under Executive Order 13132
    G. Review Under Executive Order 12988
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under the Treasury and General Government 
Appropriations Act, 1999
    J. Review Under Executive Order 12630, ``Governmental Actions 
and Interference With Constitutionally Protected Property Rights''
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001
    L. Review Under Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, 
or Use''
    M. Review Consistent With OMB's Information Quality Bulletin for 
Peer Review
    N. Description of Materials Incorporated by Reference
VI. Approval of the Office of the Secretary

I. Summary of the Final Rule

    In this final rule, DOE establishes a product class for standard 
residential dishwashers with a cycle time for the normal cycle of one 
hour or less from washing through drying. DOE believes that the new 
product class will offer greater consumer choice within DOE's existing 
energy and water conservation standards for residential dishwashers and 
will spur innovation in the design of dishwashers.
    Since receipt of the petition, DOE conducted additional testing of 
dishwasher cycle times, as described in section II.B. of this final 
rule. As explained in Section II.B., the data show that a dishwasher 
with a ``Normal'' cycle time of 60 minutes or less is achievable, and 
that establishing a product class where the ``Normal'' cycle is 60 
minutes or less could spur manufacturer innovation to generate 
additional product offerings to fill the market gap that exists for 
these products.
    In establishing a product class with a ``Normal'' cycle of 60 
minutes or less, DOE is creating an opportunity to introduce additional 
consumer choice in the dishwasher market. Specifically, DOE would be 
providing consumers the

[[Page 68724]]

added option to purchase a standard residential dishwasher with a 
``Normal'' cycle of one hour or less for the dishwasher to complete its 
operation from washing through drying. Consumers would still be able to 
purchase a dishwasher from the original dishwasher product class that 
is characterized by a longer ``Normal'' cycle, which often offers a 
``Quick'' cycle (often recommended by the manufacturer for washing 
lightly soiled dishes) that may wash dishes even more quickly but 
potentially uses more energy or water than the ``Normal'' cycle. The 
distinction DOE has created through the introduction of this shorter 
one-hour ``Normal'' cycle product class and the original product class 
for standard dishwashers rests on the length of the cycle that 
manufacturers identify as the ``Normal'' cycle.
    DOE's decision to establish the one hour ``Normal'' cycle product 
class is supported by the Department's test data, which indicate that 
the mean and median energy and water use values of the tested ``Quick'' 
cycles could meet the current DOE standards and had a mean and median 
duration of 1.3 hours (80 minutes). Further, ten of those quick cycles 
had a cycle time of less than one hour. The units selected for testing 
represent over 95 percent of dishwasher manufacturers and were a 
representative sample of the current dishwasher market. Based on these 
results, DOE is confident that, given the opportunity to do so, 
industry could feasibly develop and produce a standard dishwasher with 
the capabilities to meet the criteria of this new one hour product 
class. DOE intends to determine the specific energy and water 
conservation standards for the new product class, with a ``Normal'' 
cycle of one hour or less, in a separate rulemaking.

II. Introduction

A. Background

    The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 
provides among other things, that ``[e]ach agency shall give an 
interested person the right to petition for the issuance, amendment, or 
repeal of a rule.'' (5 U.S.C. 553(e)) Pursuant to this provision of the 
APA, CEI petitioned DOE for the issuance of rule establishing a new 
product class under 42 U.S.C. 6295(q) that would cover dishwashers with 
a cycle time of less than one hour from washing through drying. (CEI 
Petition, No. 0006 at p. 1) \1\ CEI stated that dishwasher cycle times 
have become dramatically longer under existing DOE energy conservation 
standards, and that consumer satisfaction and utility have dropped as a 
result of these longer cycle times. CEI also provided data regarding 
the increase in dishwasher cycle time, including data that, according 
to CEI, correlated increased cycle time with DOE's adoption of amended 
efficiency standards for dishwashers. (Id., at pp. 2-3)
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    \1\ A notation in this form provides a reference for information 
that is in the docket of this rulemaking (Docket No. EERE-2015-BT-
STD-0005). https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0005. This notation indicates that the statement preceding the 
reference is included in document number 6 in the docket at page 1.
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    CEI requested that dishwasher product classes be further divided 
based on cycle time. CEI asserted that given the significant amount of 
consumer dissatisfaction with increased dishwasher cycle time, cycle 
time is a ``performance-related feature'' that provides substantial 
consumer utility, as required by EPCA for the establishment of a 
product class with a higher or lower energy use or efficiency standard 
than the standards applicable to other dishwasher product classes. (CEI 
Petition, No. 0006 at p. 5) CEI did not specify whether it requested 
the additional distinction apply to either the standard and compact 
classes or just the standard class.
    CEI also cited 42 U.S.C. 6295(o)(4), which prohibits DOE from 
prescribing a standard that interested persons have established by a 
preponderance of the evidence would likely result in the unavailability 
in the United States in any covered product type (or class) of 
performance characteristics, features, sizes, capacities, and volumes 
that are substantially the same as those generally available in the 
United States at the time of DOE's finding. (Id., at p. 4) CEI stated 
that despite this prohibition, it appears that dishwasher cycle times 
have been impaired by the DOE standards and that many machines that 
offered shorter cycle times are no longer available. (Id.)
    In its petition, CEI suggested a cycle time of one hour or less as 
the defining characteristic for the new product class for standard 
dishwashers, because one hour is substantially below the cycle times 
for all current products on the market. (Id., at p. 5) CEI stated that 
energy efficiency standards for current products would remain unchanged 
by the addition of the new product class, and that no backsliding would 
occur for the energy standards already in place. (Id.) Specifically, 42 
U.S.C. 6295(o)(1) (``anti-backsliding provision'') prohibits DOE from 
prescribing a standard that increases the maximum allowable energy use, 
or in the case of showerheads, faucets, water closets or urinals, water 
use, or decreases the minimum required energy efficiency, of a covered 
product. CEI's petition did not suggest specific energy and water use 
requirements for the new product class, stating that the standards 
could be determined during the course of the rulemaking. (CEI Petition, 
No. 0006 at p. 1)
    On April 24, 2018, DOE published a notice of receipt of CEI's 
petition for rulemaking. 83 FR 17768 (April 2018 Notification of 
Petition for Rulemaking). DOE requested comments on the petition, as 
well as any data or information that could be used to assist DOE's 
determination whether to proceed with the petition to create a new 
product class for standard residential dishwashers. In response to that 
request, the Department received a wide range of comments in favor of 
and opposing the creation of a new product class. Upon consideration of 
those comments, DOE granted CEI's petition and proposed to create a new 
product class for standard residential dishwashers with a cycle time of 
one hour or less for the normal cycle. 84 FR 33869 (July 16, 2019) 
(July 2019 NOPR). DOE addressed the comments received in response to 
publication of the petition in its July 2019 NOPR. DOE assumed that 
CEI's request, which did not specify whether it was requesting the 
additional product class distinction be applied to both standard and 
compact classes, would apply only to the standard dishwasher class 
because that class represents the vast majority of dishwasher 
shipments. Id. at 84 FR 33870. In response to the July 2019 NOPR, DOE 
received comments from industry and dishwasher manufacturers, state 
agencies and state officials, consumer organizations, utilities, energy 
efficiency advocates, and individuals. DOE discusses and responds to 
these comments in section III of this final rule.
    In consideration of the comments received during this rulemaking, 
and supported by its own testing and evaluation, DOE establishes a new 
product class for standard residential dishwashers with a ``Normal'' 
cycle of one hour or less for washing through drying. DOE has 
determined that a cycle duration of this length provides for additional 
consumer choice in the dishwasher market. Specifically, in this final 
rule, DOE concludes that a product class of standard residential 
dishwasher with a ``Normal'' cycle of one hour or less would allow 
manufacturers to provide consumers with the option to purchase a 
dishwasher that maximizes the consumer utility of a short cycle time to 
wash and dry dishes. While the

[[Page 68725]]

short cycle product class will enable the development of products that 
can provide consumers with dishwashers that offer a shorter ``Normal'' 
cycle, creation of this product class will in no way limit or prevent 
consumers that prioritize energy efficiency from continuing to purchase 
dishwasher models that offer more energy efficient cycles that exceed 
the current standard or meet ENERGY STAR ratings. Introduction of this 
product class expands the options available to consumers, particularly 
those who prioritize cycle time for the ``Normal'' cycle, when 
considering the purchase of a new dishwasher.

B. DOE Testing and Analysis of Results

    DOE testing and analysis included a review of normal and quick 
cycles available for a range of standard dishwashers currently 
available on the market. In conducting the testing, DOE analyzed the 
water and energy use, cycle duration, and cleaning performance of the 
``Normal'' cycle and the shortest available cycle(s), as specified in 
the dishwasher's user manual.\2\ The testing enabled DOE to determine 
whether it was feasible to manufacture a dishwasher with a cycle time 
of 60 minutes or less that could clean a full load of normally-soiled 
dishes, or whether a new product class for dishwashers with a 
``Normal'' cycle of 60 minutes or less could be created to incentivize 
manufacturers to fill that gap in the market.
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    \2\ Short cycles that the manufacturer's instructions indicated 
were intended to only rinse the dishware or to wash only certain 
types of ware, such as plastics, were not considered.
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    DOE tested 31 standard dishwasher models that encompassed various 
brands, features, and cycle options for different soil loads and 
durations. Test units were selected on the basis of different water and 
energy use, cycle durations, and features (e.g., capacity, inlet water 
temperature requirement, soil sensors) with an emphasis on including a 
wide range of short-cycle options. The testing primarily examined short 
cycles with a duration of one hour or less. However, because many 
dishwasher units did not have cycles with such a short duration, cycles 
shorter in duration than the ``Normal'' cycle'' for the given test unit 
but longer than one hour were also considered.
    Each unit was tested according to the DOE dishwasher test procedure 
at 10 CFR, part 430, subpart B, appendix C1 (appendix C1) for the 
``Normal'' cycle, and then the appendix C1 methodology was repeated for 
the short cycle(s) to compare water and energy use among the cycles. 
The duration of each test cycle from washing through drying was also 
measured and recorded. Additionally, though DOE does not regulate 
cleaning performance under EPCA, for purposes of this analysis, DOE 
used the ENERGY STAR Test Method for Determining Residential Dishwasher 
Cleaning Performance (Cleaning Performance Test Method) to determine 
the cleaning scores, expressed in terms of a per-cycle Cleaning Index, 
of the tested units on each of the three soiled cycles (heavy, medium, 
and light soil loads) that are run for appendix C1 for soil-sensing 
dishwashers.\3\
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    \3\ Although appendix C1 specifies a single cycle with a clean 
test load for non-soil-sensing dishwashers to minimize testing 
burden, for this purpose of this investigation, DOE conducted the 
three cycles with soiled test loads to obtain cleaning performance 
results for both soil-sensing and non-soil-sensing dishwashers.
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    The data summarizing the results of the testing, including 31 
``Normal'' cycles and 34 ``Quick'' cycles conducted on the 31 test 
units, may be reviewed in the docket for this rulemaking.\4\ Parameters 
outlined include the per-cycle machine energy consumption, water 
consumption and associated water heating energy consumption, power dry 
energy consumption (if any), total energy consumption, duration, and 
Cleaning Index for each of the three soil load test cycles required 
under appendix C1. To determine the overall per-cycle values of energy 
and water consumption and cycle duration, for each ``Normal'' and 
``Quick'' cycle, DOE applied the same weighting factors to the results 
from each soil load as specified in appendix C1. From these, along with 
the combined low-power mode energy consumption for each unit, an 
Estimated Annual Energy se (EAEU) for each ``Normal'' and ``Quick'' 
cycle was calculated, using the equations provided in 10 CFR 
430.23(c)(2).
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    \4\ Dishwasher NODA Test Data (5-21-20), https://www.regulations.gov/document?D=EERE-2018-BT-STD-0005-3213.
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    The results of DOE's analysis for ``Quick'' cycles are specified in 
Table II-1. While all of DOE's test results are included in the docket 
for this rulemaking, DOE presents the values for only the ``Quick'' 
cycle in Table II-1 because none of the ``Normal'' cycles on the units 
tested had a duration of less than 60 minutes.

  Table II-1--Mean and Median Values of Water Consumption, EAEU, and Cycle Time for the Tested ``Quick'' Cycles
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                                                                                                    Current DOE
                                                                       Mean           Median         standard
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Water (gal/cycle)...............................................             4.5             4.8             5.0
EAEU (kWh/year).................................................             300             292             307
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As shown in Table II-1, DOE calculated that the mean and median values 
of the EAEU for the tested ``Quick'' cycles are 292 and 300 kilowatt-
hours per year (kWh/year), respectively, both of which are less than 
the current standard of 307 kWh/year. The corresponding mean and median 
values of the water consumption are 4.5 and 4.8 gallons/cycle, both of 
which are less than the current standard of 5.0 gallons per cycle (gal/
cycle). See 10 CFR 430.32(f)(1)(i).
    As noted previously, each unit was tested according to the DOE 
dishwasher test procedure at 10 CFR, part 430, subpart B, appendix C1 
(appendix C1) for the ``Normal'' cycle, and then the appendix C1 
methodology was repeated for the short cycle(s) to compare water and 
energy use among the cycles. The results of this testing demonstrated 
that ten of the units tested already complete a ``Quick'' cycle in 60 
minutes or less. Of these ten ``Quick'' cycles tested with a time of 
less than one hour using the same soil loads specified by the DOE test 
procedure for testing the ``Normal'' cycle, 90% of those cycles would 
meet the DOE standard for energy consumption that is based on the 
normal cycle of a standard-size dishwasher, 90% would meet the DOE 
standard for water consumption that is based on the normal cycle of a 
standard-size dishwasher, and 80% would meet both. DOE notes, however, 
that while five of these units had a weighted-average cleaning score 
greater than or

[[Page 68726]]

equal to 70 \5\, only one of these units had a cleaning score of 
greater than or equal to 70 for all three soil loads tested, and only 
one of the units is recommended by the manufacturer for a full load of 
normally soiled dishware--that single unit had a weighted-average 
cleaning score of only 63. Based on these results, DOE finds that a 
dishwasher with a ``Normal'' cycle time of 60 minutes or less is 
achievable and that establishing a product class where the ``Normal'' 
cycle is 60 minutes or less could spur manufacturer innovation to 
generate additional product offerings to fill the market gap that 
exists for these products (i.e., ability to clean a load of normally-
soiled dishes in under 60 minutes). Building upon existing dishwasher 
capabilities and the results of this testing as a foundation for future 
development of dishwasher models, and recognizing the potential for 
innovation within the industry for this specific product, this final 
rule establishes a product class where a one hour or less cycle from 
washing through drying represents the ``Normal'' cycle.
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    \5\ Although DOE does not have information relating weighted-
average cleaning scores to minimum consumer acceptance of cleaning 
performance, the ENERGY STAR program has established criteria for 
its 2020 ENERGY STAR Most Efficient dishwasher program of a minimum 
per-cycle Cleaning Index of 70 for each soil load.
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III. Discussion

    Based on the evaluation of the petition and careful consideration 
of comments submitted during both comment periods provided for this 
rulemaking action, the Department of Energy establishes a new 
dishwasher product class for standard residential dishwashers with a 
``Normal'' wash cycle that would completely wash and dry a full load of 
normally soiled dishes in one hour (60 minutes) or less. DOE intends to 
conduct a separate rulemaking to determine the applicable test 
procedure and energy conservation standards \6\ for the new product 
class that provide the maximum energy efficiency that is 
technologically feasible and economically justified, and will result in 
a significant conservation of energy, 42 U.S.C. 6295(o)(2)(A). 84 FR 
33869, 33873 (July 16, 2019).
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    \6\ DOE will determine whether any updates to the test procedure 
are necessary prior to publication of any proposed energy 
conservation standard for the new product class. 10 CFR part 430, 
subpart C, appendix A, sec. 5(c).
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    In evaluating CEI's petition and establishing a separate product 
class for dishwashers that wash and dry dishes in less than an hour 
during the ``Normal'' cycle, DOE has determined that under 42 U.S.C. 
6295(q), dishwashers with a ``Normal'' cycle time of one hour or less 
have a performance-related feature that other dishwashers lack that 
justifies a separate product class subject to a higher or lower 
standard than the standards currently applicable to the existing 
product classes of dishwashers. Testing conducted by DOE demonstrates 
that because many dishwashers currently offer a 60 to 90 minute 
``Quick'' cycle wash that, on average, could meet the current DOE 
energy and water conservation standards, and a number of the units 
tested completed a ``Quick'' cycle in less than 60 minutes, that the 
potential exists for industry to develop a dishwasher that can complete 
a ``Normal'' cycle within one hour or less. Based on the test results 
described in Section II.B. of this final rule, the development of such 
a product will require effort on the part of industry product 
designers, and DOE establishes a product class to facilitate the 
development of a standard dishwasher where such values represent the 
``Normal'' cycle through finalizing this rule.

A. Establishment of a Short-Cycle Product Class for Standard 
Residential Dishwashers, 42 U.S.C. 6295(q)

    CEI petitioned DOE to establish a separate product class for 
dishwashers that have a cycle time of less than one hour from washing 
through drying. (CEI Petition, No. 0006 at p. 1) Under the current test 
procedure and energy conservation standards, dishwashers are tested and 
evaluated for compliance when operated on the ``normal cycle.'' 
Appendix C1, sections 2.6.1, 2.6.2, 2.6.3. ``Normal cycle'' is the 
cycle, including washing and drying temperature options, recommended in 
the manufacturer's instructions for daily, regular, or typical use to 
completely wash a full load of normally soiled dishes, including the 
power-dry setting. Appendix C1, section 1.12. Manufacturers may add 
additional cycles to dishwashers, but those additional cycles are not 
tested nor considered the ``Normal cycle''. Although CEI's initial 
petition did not specify the cycle that would be limited to one hour 
under the separate product class, CEI provided information supplemental 
to its petition clarifying the request for a new product class for 
dishwashers for which the normal cycle is less than one hour.\7\ In 
this final rule, based on evaluation of comments and the test data and 
analysis described in section II.B. DOE establishes a separate product 
class for dishwashers that have a normal cycle time of one hour or less 
from washing through drying.
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    \7\ See document ID EERE-2018-BT-STD-0005-0007 available on 
https://www.regulations.gov.
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    EPCA directs that when prescribing an energy conservation standard 
for a type (or class) of a covered product DOE must specify a level of 
energy use or efficiency higher or lower than that which applies (or 
would apply) for such type (or class) for any group of covered products 
which have the same function or intended use, if DOE determines that 
covered products within such a group:
     Consume a different kind of energy from that consumed by 
other covered products within such type (or class); or
     have a capacity or other such performance-related feature 
which other products within such type (or class) do not have and such 
feature justifies a higher or lower standard from that which applies 
(or will apply) to other products within such type.

In making a determination concerning whether a performance-related 
feature justifies the establishment of a higher or lower standard, DOE 
must consider such factors as the utility to the consumer of such a 
feature, and such other factors as DOE deems appropriate. (42 U.S.C. 
6295(q)(1))
    DOE has concluded that it has the legal authority to establish a 
separate short cycle product class for standard residential dishwashers 
with the manufacturer recommended ``Normal'' cycle of one hour or less, 
pursuant to the Department's authority under 42 U.S.C. 6295(q). 
Dishwashers with a short ``Normal'' cycle have a performance-related 
feature that other dishwashers currently on the market lack, which 
justifies the establishment of a separate product class subject to a 
higher or lower standard than that currently applicable to dishwashers. 
84 FR 33869, 33871 (July 16, 2019). Consumers that prioritize energy 
efficiency will still be able to purchase models characterized by a 
longer ``Normal Cycle'' while consumers who place a greater value on 
cycle time will now have the opportunity to select a model with a 
shorter ``Normal cycle''. Creation of a new product class will allow 
the development of new offerings that will expand the market for 
standard residential dishwashers and provide consumers additional 
options when selecting the product that best meets their needs and 
differing preferences. As described in Section II.B., while many 
dishwashers on the market currently offer a ``Quick cycle'' option, 
these cycles are often not intended for normal loads, and the creation 
of a new product class will enable manufacturers to optimize their 
offerings to meet demand for short cycle products intended to

[[Page 68727]]

clean a full load of normally soiled dishes.
    DOE received comments from the Attorneys General of California, 
Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, New 
Jersey, New York, Oregon, Vermont, Washington, the District of 
Columbia, and the City of New York (State AGs and NYC); Sierra Club, 
Natural Resources Defense Council, and Earthjustice (the Joint 
Commenters); the Association of Home Appliance Manufacturers (AHAM); 
Appliance Standards Awareness Project (ASAP), along with the Consumer 
Federation of America (CFA), National Consumer Law Center on (NCLC), 
and Natural Resources Defense Council (collectively referred to as 
ASAP); and others challenging the Department's proposal that a one hour 
or less normal cycle was a performance-related feature that justifies 
the establishment of a new product class for standard residential 
dishwashers.
    Comments submitted by the State AGs and NYC argued that the 
proposal does not qualify as ``a performance-related feature'' under 42 
U.S.C. 6295(q) and that the consumer utility of a dishwasher is to 
clean dishes and other cookware. According to the commenters, while 
shorter cycles may provide clean dishes in less time, they do not 
provide an additional distinct dishwasher utility beyond the purpose of 
washing and drying dishes. The fundamental utility of a dishwasher, 
regardless of cycle length, is to clean dishes. A reduced cycle time is 
not a ``performance-related feature'' that would justify the creation 
of its own separate product class. (State AGs and NYC, No. 3136, pp. 5-
8) Commenters cite DOE's prior rulemakings to conclude that the 
Department was acting inconsistently in proposing to establish a new 
product class for short cycle dishwashers under 42 U.S.C. 6295(q)(1). 
These commenters relied on the Department's cooking products 
rulemaking, where DOE determined that self-cleaning ovens justified a 
separate product class because the self-cleaning function was a 
distinct feature that standard ovens did not provide, as an example for 
when a separate product class was justified based on the existence of a 
performance-related feature. (Id., pp. 7-8; 73 FR 62034, 62047 (Oct. 
17, 2008)) Commenters distinguished self-cleaning ovens from DOE's 
water heaters rulemaking, where DOE determined water heaters that 
utilized heat pumps or electric resistance technology were still of the 
same utility (i.e., providing hot water), and did not justify the 
creation of a new product class. Commenters argued that this dishwasher 
rulemaking was similar to the Department's water heaters rulemaking 
because dishwashers with a normal cycle exceeding one hour provided the 
same utility as a dishwasher with a normal cycle of one hour or less--
both cycles provide clean dishes. Commenters' claim DOE provided 
insufficient justification as to why shorter cycle time deserves its 
own product class while a wide variety of other consumer options from 
speed to efficiency remain consumer preferences. (California Investor 
Owned Utilities (CA IOUs), No. 3142, p. 3)
    Related comments also argued that if DOE were to establish ``a 
separate standard for every appliance having a detectable difference in 
feature, no matter how slight . . . then hundreds of standards might 
result,'' and that such actions would be contrary to the intent of 
Congress. (State AGs and NYC, No. 3136, p. 6 referencing H. Conf. Rep. 
No. 95-1751, at 115 (1978); Joint Commenters, No. 3145, p. 4 
referencing H. Conf. Rep. No. 95-1751, at 115-116 (1978))
    In response, DOE disagrees with the assertion that it is acting 
inconsistently with prior rulemakings by establishing a product class 
for dishwashers with a ``Normal'' cycle of one hour or less. DOE has 
previously determined that refrigerator-freezer configurations, oven 
door windows, and top loading clothes washer configurations all offer 
performance-related features that justified the creation of new product 
classes, including relying on cycle time as a feature with respect to 
commercial clothes washers. 84 FR 33869, 33872 (July 16, 2019). DOE 
maintains that a short cycle product class, the feature at issue in 
this rulemaking, is no different. In these prior rulemakings DOE 
recognized that the value consumers received from the feature, i.e., 
refrigerator-freezer configurations, oven door window and time, 
justified the establishment of the product class under 42 U.S.C. 
6295(q)(1).
    DOE has taken the view that utility is an aspect of the product 
that is accessible to the layperson and based on user operation, rather 
than performing a theoretical function. DOE's discussion of its prior 
rulemakings and what it has determined is a ``utility'' pursuant to 
this principle is described at length in the July 2019 NOPR. 84 FR 
33869, 33872 (July 16, 2019). These commenters appear to be suggesting 
a very different principle--that DOE can determine that a product 
attribute is a feature only if it adds a performance characteristic or 
utility beyond the primary purpose of the product (here a performance 
characteristic or utility beyond a dishwasher's primary purpose of 
cleaning dishes). Following the logic of this comment would mean a 
refrigerator-freezer's primary utility is to store and preserve fresh 
food, and that the configuration of the refrigerator-freezer does not 
provide a consumer with the utility of different ways to access its 
contents. The principle described in the comment would also mean that 
an oven's primary utility is to cook food, which would not allow for 
DOE to accommodate the utility provided by the ability to see the food 
cooking through a window. An oven door with a window uses more energy 
than an oven door without a window, but it allows the user to see the 
oven's contents without opening the oven door. DOE recognized that the 
oven door window offered a distinct consumer utility even though an 
oven door window did not go beyond the oven's primary function of 
cooking food. The commenter's argument does not explain why an oven 
door window justifies a product class when it does not add to the 
oven's primary purpose of cooking food. The food would come out cooked 
from an oven without a door window just as the dishes would come out 
clean from a dishwasher without a shorter ``Normal'' cycle. DOE has 
determined that in both cases, however, the oven door window and a 
shorter ``Normal'' cycle on a dishwasher are ``features'' that provide 
consumer utility and justify a separate product class.
    The approach commenters suggest is contrary to the approach that 
DOE has taken in prior rulemakings, in which DOE recognized that the 
features for which consumers express a preference indicate that the 
feature provides some utility to the consumer, even if it is not the 
primary purpose of the product. For example, in a rulemaking to amend 
standards applicable to commercial clothes washers, DOE determined that 
the ``axis of loading'' constituted a feature that justified separate 
product classes for top-loading and front-loading clothes washers. DOE 
also determined that ``the longer average cycle time of front-loading 
machines warrants consideration of separate [product] classes.'' 79 FR 
74492, 74498 (Sept. 15, 2014). DOE stated that a split in preference 
between top-loaders and front-loaders would not indicate consumer 
indifference to the axis of loading, but rather that a certain 
percentage of the market expresses a preference for (i.e., derives 
utility from) the top-loading configuration. Similarly, the location of 
the freezer compartment for residential refrigerator-freezers (e.g.,

[[Page 68728]]

top mounted, side-mounted, and bottom-mounted) on these products 
provides no additional performance-related utility other than consumer 
preference. In other words, the location of access itself provides 
distinct consumer utility that does not add to the food storage purpose 
of the refrigerator-freezer. Id., at 79 FR 74499.
    Additionally, DOE maintains that the approach taken in this final 
rule and prior rulemakings is consistent with the rulemaking history 
that the commenters reference. In DOE's view, establishing a product 
class based on a top mounted freezer and bottom mounted freezer, for 
example, is no different than identifying a one hour or less ``Normal'' 
cycle for dishwashers as a performance-related feature that justifies a 
separate product class. In both cases, DOE has identified a feature 
that provides utility to the consumer and established a product class 
on the basis of that utility. It would be unreasonable to adopt the 
position these commenters assert, that features offering a distinct 
utility to consumers would not merit a separate product class, because 
they are a preference that is unrelated to the primary purpose of the 
product.
    DOE's prior rulemakings also illustrate the value DOE has 
recognized in evaluating consumer preferences. As noted above, DOE 
determined the consumer value in seeing inside the oven, as opposed to 
opening the door and releasing the heat, was a feature that justified a 
separate product class. 63 FR 48038, 48041 (Sept. 8, 1998). Applying 
the same logic, DOE determined that the configuration of a 
refrigerator-freezer, which provided consumers with a value based on 
access to the bottom-mounted freezer compartment, was also a feature. 
75 FR 59469, 59488 (Sept. 27, 2010). Under the commenters' proposed 
approach, neither feature would have justified the creation of a 
separate product class. DOE remains committed to recognizing the 
features that provide a utility for which consumers express a 
preference and that expand consumer choice.
    Similarly, in the 2012 clothes washers' rulemaking, the Department 
received comments stating that consumer preference supported 
maintaining clothes washer product class distinction by method of 
access. 77 FR 32307, 32318 (May 31, 2012). In addition to noting that 
consumers preferred not to stoop or bend while loading clothes 
(something not required for top-loading washers), one manufacture 
estimated that top loading washers accounted for about 65 percent of 
the market. Consumer preference noticeably impacted the market and 
established the method of loading as a utility that ultimately 
supported the retention of the top-loader product class. DOE also 
specifically recognized cycle time as a feature pursuant to 42 U.S.C. 
6295(q). Id., at 77 FR 32319. In this final rule, DOE concludes that 
EPCA authorizes the Department to establish a product class for 
dishwashers with a ``Normal'' cycle of one hour or less. See 42 U.S.C. 
6295(q).
    If DOE were to follow these contrary comments to their logical 
conclusion, DOE would then lack the ability to establish product 
classes for features that, in the commenters' view, do not add to or go 
beyond the primary purpose of a product even if consumers received a 
recognized utility from those features as specified in 42 U.S.C. 
6295(q). The Department's authority to establish product classes based 
on capacity and fuel type cast doubt on the appropriateness of the 
commenters' suggested guiding principle. Congress included other 
criteria in EPCA for DOE to consider when using its discretion to 
identify the utility of a feature that justified the creation of a new 
product class--criteria that do not ``add to'' the primary purpose of 
the product--specifically, capacity and fuel use. Protecting consumer 
utility, at the cost of potential increased energy use, clearly has a 
role to play while supporting consumer choice. Therefore, DOE has 
determined that it would be unreasonable to limit the authority granted 
in EPCA in 42 U.S.C. 6295(q) to prohibit the creation of product 
classes if the ``feature'' at issue does not somehow go beyond the 
primary purpose of a product. Like its prior rulemakings, DOE also 
finds here that consumers would receive a utility from a dishwasher 
cycle that can completely wash and dry normally soiled dishes in one 
hour or less, which justifies the creation of a product class on that 
basis.
    Additionally, 42 U.S.C. 6295(q) cannot be read to prevent DOE from 
recognizing features that provide energy savings or other technological 
innovations that could yield consumer utility. When DOE determined that 
the window in an oven door was a ``feature'' justifying a different 
standard, DOE recognized that if the window were removed from the oven 
door that it may cause users to open the door more frequently. Such 
activity has the potential to result in an increase in energy usage 
even though some heat escapes through the window itself. While 
retaining the oven door window caused some loss of heat and therefore 
energy efficiency, DOE determined that the elimination of the oven door 
window would reduce the utility consumers received from being able to 
see inside and cause a greater increase of energy use. 63 FR 48038, 
48041 (Sept. 8, 1998).
    Also, as mentioned in the July 2019 NOPR, DOE is exploring the 
energy use of network connectivity for covered products, a relatively 
new technology that is becoming a feature offered in updated models of 
covered products and is already considered a utility to consumers. 84 
FR 33869, 33873 (July 16, 2019). While this feature requires some 
attendant energy use, consumers are interested in the benefits provided 
through the connectivity of appliances that allow for remote control 
access, automatic supply replenishment, and intelligent energy 
consumption. 83 FR 46886, 46887 (Sept. 17, 2018). The innovation that 
network connectivity provides is certainly a feature of increasingly 
great utility that many consumers may come to prefer.
    The Joint Commenters also argued that DOE cannot justify this final 
rule by referencing the history of dishwasher standards. First, Joint 
Commenters stated that because Congress established tighter dishwasher 
standards in 2007 in the Energy Independence and Security Act (EISA), 
section 311(a)(2), DOE cannot now establish this product class because 
the Congress amended the statute to further increase the standards 
after most of the alleged increases in cycle length occurred. Joint 
Commenters contended that because Congress chose not to relax 
dishwasher standards then, DOE cannot use the product class provision 
to establish a feature that would lessen standards now. In response, 
DOE notes that this rulemaking does not alter any existing energy or 
water conservation standards for dishwashers; rather, this final rule 
creates a new product class for dishwashers with a short ``Normal'' 
cycle time of one hour or less. In addition, DOE emphasizes that 
Congressional action to establish new standards for dishwashers does 
not negate the authority Congress granted to DOE in 42 U.S.C. 6295(q) 
to establish product classes based on size, capacity, fuel use or other 
features after considering the utility of the feature to the consumer. 
The Joint Commenters also stated that DOE found that if it adopted 
stronger standards it would have required substantially longer cycle 
times to maintain cleaning performance and relied on this determination 
as a factor when rejecting stronger standards in 2012. (Joint 
Commenters, No. 3145, p. 5 referencing 77 FR 31918, 31956-31957 (May 
30, 2012)) DOE notes that in issuing its ``no new standard'' 
determination for dishwashers in 2016

[[Page 68729]]

(81 FR 90072 (Dec. 13, 2016)), DOE determined that a substantially 
longer cycle time would be needed to maintain the cleaning performance 
of standards more stringent than those in place. 81 FR 90072, 90073 and 
90116 (Dec. 13, 2016). There, DOE determined the existing standards 
were sufficient and rejected more stringent requirements that would 
have required longer cycle times. In addition, DOE clarifies that this 
final rule addresses an issue not addressed in that rulemaking, i.e., 
whether a one hour or less ``Normal'' cycle provides a consumer 
performance-related feature or utility.
    The Joint Commenters also sought support for their position by 
arguing that when DOE surveyed the utility or performance-related 
features of dishwashers in 1991 that affect energy efficiency and 
determined that establishing capacity-based product classes was the 
only action needed to minimize the impact on consumer utility. (No. 
3145 at p. 5 referencing 56 FR 22250, 22254, 22275 (May 14, 1991)). 
Their reliance on this rulemaking is misplaced. The standards and 
product offerings today are significantly different from what was 
considered available and offered nearly three decades ago in 1991, and 
such comparison of performance related features is not relevant for 
this final rule.
    Some commenters expressed a concern that if DOE relies only on 
consumer preference there would be a plethora of product classes 
created. (Id., at p. 4) However, in the product types DOE describes 
herein (e.g., ovens, refrigerator-freezers, clothes washers, etc.), in 
which the Department developed a product class based on consumer 
preference, DOE has not seen the concern manifested. CEI's petition and 
the comments DOE received in response to the petition and its July 2019 
proposed rule indicate that a significant number of consumers expressed 
various levels of dissatisfaction with the amount of time and energy 
necessary to run their dishwasher to clean a load of normally soiled 
dishes. The Committee for a Constructive Tomorrow (CFACT) cited a 
General Electric Appliances (GEA) survey of roughly 11,000 dishwasher 
owners that reported the long wait times for clean dishes as a major 
consumer annoyance. (CFACT, No. 2941 at p. 1) These comments express 
the utility consumers would receive from owning a dishwasher that could 
clean normally soiled dishes using a ``short-cycle'' dishwasher. 
(Attorneys General of Arizona, Indiana, Louisiana, Oklahoma, and South 
Carolina, and the then-Governor of Mississippi, Phil Bryant (Attorneys 
General and Governor Bryant), No. 3131, pp. 1-2) CEI's 2019 survey 
determined a majority of surveyed consumers would choose to own a 
faster dishwasher even if it cost more to operate. (No. 3137, p. 4)
    Relying on their 2019 survey, CEI also considered the utility 
customers would receive from shorter cycle durations and faster 
dishwashers. (Id., at pp. 2-3) The survey determined that 81% of 
participants believed a dishwasher that could clean and dry dishes in 
an hour or less would be useful and 92% of participants favored cycles 
with a duration of one hour or less. The survey polled consumers' 
thoughts regarding washing dishes by hand and nearly half of those 
surveyed considered washing their dishes by hand because the cycle was 
too long with about 50% stating that they often or always wash dishes 
by hand due to the long cycle time. (Id., at pp. 3-4) Because 
handwashing is often times more water intensive than using the 
dishwasher, the survey results indicated that faster cycles could 
substantially reduce energy and water consumption by reducing the 
amount of handwashing. (Id.) Targeting respondents who mostly run their 
dishwashers when they go to bed, CEI's survey also asked respondents if 
they would run their dishwasher at some other time if the dishwasher 
was faster. The survey showed 77.7% of respondents said yes, indicating 
that even if all dishwashing was conducted overnight, there is evidence 
that households may do so as a result of long cycle times. (Id., at 4)
    The Joint Commenters remarked that if there are no dishwashers 
currently capable of meeting the proposal's cycle duration limit and 
cleaning performance goals while operating in the normal cycle, EPCA's 
product class provision does not provide DOE the authority to 
facilitate that capability. The Joint Commenters challenged DOE's 
interpretation of the product class provision as providing the 
Department the discretion to determine that some covered products 
should have a capacity or other performance-related feature they 
presently do not have. (No. 3145, p. 4; 84 FR 33869, 33872-33873 (July 
16, 2019)) The Joint Commenters contend that the provision was written 
in the present tense, meaning that a performance-related feature may 
trigger an action only when there are covered products with that 
feature already part of an existing product class. Joint Commenters 
referenced certain provisions in EPCA (e.g., 42 U.S.C. 6295(bb) 
(establishing performance specifications for compact fluorescent lamps 
and authorizing DOE updates), 42 U.S.C. 6295(i)(1), (3)-(5) 
(prescribing minimum color rendering index values for general service 
fluorescent lamps and authorizing DOE updates) to support their 
position. They argue that if there is no dishwasher currently capable 
of operating in the normal cycle in one hour or less, then the product 
class provision does not provide DOE the authority to make such a 
product available. Only in situations where the feature is already 
available does the product class provision provide DOE the authority to 
act. (Joint Commenters, pp. 4-5)
    The Joint Commenters misunderstand the effect of DOE's product 
class rule. DOE is not requiring manufacturers to make dishwashers with 
a normal cycle one hour or less; rather, this rule is establishing a 
product class based on that criterion. Manufacturers can choose to 
develop such products if they want to do so, but they are not forced to 
take such action. As a result, the provisions cited in EPCA that 
establish performance specifications for fluorescent lamps and color 
rendering index values and authorize DOE to update those requirements 
cited by the commenter are inapplicable to this final rule establishing 
a new product class for dishwashers.
    Additionally, while the commenter is correct that DOE does not 
regulate in a vacuum, the testing described by DOE in section II.B. of 
this final rule indicates that dishwashers already exist on the market 
that can wash dishes in a designated ``Quick'' cycle in 60 to 90 minute 
time periods. In this final rule, DOE is establishing a product class 
for dishwashers where the one hour or less time period denotes the 
``Normal'' cycle. EPCA does not specify how prevalent a specific 
feature must be on the market (i.e., the commenter specifies that DOE 
can act only when there are covered products with that feature already 
part of an existing product class). For example, as noted in the July 
2019 NOPR and DOE's 2018 RFI on ``smart products'' (83 FR 46886 (Sept. 
18, 2018)), DOE is just beginning to explore the energy use of the 
network connectivity of covered products. Network connectivity is a 
technology that has only recently begun to appear on the market. 
Moreover, it clearly has a desirable consumer utility and is a fast 
growing feature of new models of covered products. Network 
connectivity, however, comes with attendant energy use. EPCA's product 
class provision cannot be read to prohibit DOE from establishing 
product classes for products that have network mode connectivity simply 
because that

[[Page 68730]]

feature is not currently common on the market.\8\ Similarly, for 
dishwashers, 42 U.S.C. 6295(q) authorizes DOE to establish standards 
for product features that provide consumer utility, such as shorter 
cycle times.
---------------------------------------------------------------------------

    \8\ As discussed in section III. B, EPCA's anti-backsliding 
provision also cannot be used to prohibit the development of product 
classes that allow for covered products to be connected to a network 
simply because standards for those products were established prior 
to the time that network connectivity was even contemplated, and 
thereby eliminating the ability to implement this consumer desired 
option.
---------------------------------------------------------------------------

    DOE acknowledges that it has previously established product classes 
based on features that have been in the market for a significant period 
of time. For example, ventless clothes dryers had been on the market 
for at least 25 years when the Department established separate energy 
conservation standards for ventless clothes dryers.\9\ In that 
rulemaking, DOE reasoned that ventless clothes dryers provided a unique 
utility to consumers because these products could be installed in areas 
where vents were otherwise impossible to install. 76 FR 22454, 22485 
(Apr. 21, 2011). In that situation, however, manufacturers of those 
products had been operating for many years under a waiver from DOE's 
test procedure. It is important to note that a test procedure waiver is 
not a waiver from the standard. Those manufacturers were potentially at 
risk because their product met the definition of a clothes dryer but 
could not meet the standards applicable to clothes dryers even when 
using a modified test procedure. DOE established a test procedure and 
standards for ventless clothes dryers--standards that were lower than 
the standards currently applicable to other clothes dryers on the 
market--in 2011 (76 FR 22454, 22469-22471 (Apr. 21, 2011)), but early 
DOE action would provide manufacturers with certainty earlier in the 
process of product development as to the test procedure and standards 
applicable to their products. As noted in the previous paragraph, DOE 
is applying this reasoning to new technology and is exploring the 
energy use of network connectivity of covered products as the 
technology becomes more available. Similarly, the development of a new 
product class for dishwashers with a ``Normal'' cycle of one hour or 
less would initiate the development of innovative technologies that 
could achieve normal wash performance within a shorter cycle time.
---------------------------------------------------------------------------

    \9\ On February 17, 1995, DOE issued a decision and order 
granting a waiver from the clothes dryer test procedures to Miele 
Appliances Inc., (60 FR 9330), DOE later granted similar waivers to 
LG Electronics, (73 FR 6641, Nov. 10, 2008) and BSH Home Appliances 
Corporation, (78 FR 53448, Aug. 28, 2013).
---------------------------------------------------------------------------

    DOE also received comments asserting that the proposal was 
unnecessary given that dishwashers on the market already offered a 
quick cycle and that there was no consumer utility to a short cycle to 
justify a new product class. ASAP and other commenters argued that 
because such quick cycles were already widely available, the utility of 
a short cycle already existed, making the creation of a separate 
product class unwarranted. (No. 3139. p. 2; Alliance to Save Energy 
(ASE), No. 3185, p. 2) Similarly, the Joint Commenters stated that 
because there are products currently capable of a quick wash, EPCA does 
not provide DOE the authority to mandate that the normal cycle should 
be one hour or less. (No. 3145, p. 4) The California Energy Commission 
(CEC) explained that EPCA's product class provision requires DOE to 
show that the new product class has a feature that other products in 
the class lack, not that the feature exists but is not offered as the 
normal cycle. CEC continued that with such quick cycle dishwashers 
already on the market, this situation fails to justify creating a new 
product category that would operate with a higher or lower standard 
under 42 U.S.C. 6295(q)(1)(B). (CEC, No. 3132, p. 6) Similarly, ASE 
commented that a new product class is not necessary, as demonstrated by 
AHAM's data, because dishwashers with cycle durations of about an hour 
are available. (No. 3185, p. 2) Arguing further that the proposal was 
unnecessary, the State AGs and NYC contended that cycle times have 
limited importance to consumers and that DOE's position does not meet 
the burden for explanation for the new product class. (No. 3136, p. 11) 
Electrolux Home Products (EHP) also noted that a specific short cycle 
dishwasher product was not a high priority for consumers and that short 
cycles consistently ranked low as the feature most wanted by consumers. 
(No. 3134, p. 1) Relying on the data provided from its members 
surveyed, AHAM similarly noted that, when selecting a dishwasher, cycle 
time was ranked lowest in importance among the features available to 
consumers whereas cleaning performance, loading, and dish rack features 
were considered much more important to consumers. AHAM indicated that 
this meant there was limited demand for such products. (No. 3188, pp. 
4-5)
    In contrast, other commenters noted in support of DOE's rule that 
the public will ultimately receive a significant benefit from the 
creation of such products. The Attorneys General and Governor Bryant 
commented that the new product class would provide a product that will 
clean and dry dishes within the hour that meet consumers' needs while 
reducing the total energy used and saving money as consumers will no 
longer need to run their dishwashers multiple times. (No. 3131, p. 3) 
Further, a new product class would increase the number of available 
dishwashers on the market and provide consumers with more freedom to 
select a product that best meets their needs. (Id., pp. 4-5)
    DOE maintains that while there may be dishwashers that offer a 
''Quick'' wash cycle in 60 to 90 minute intervals, these cycles are not 
tested nor considered the ``Normal'' wash cycle for purposes of 
demonstrating compliance with existing energy and water conservation 
standards. The existence of these products in the market does not 
prevent the establishment of the product class DOE is creating with 
this rulemaking. Manufacturers' compliance with existing dishwasher 
standards requires testing be conducted on the ``Normal cycle'', which 
is defined as the ``the cycle type recommended by the manufacturer for 
completely washing a full load of normally soiled dishes including the 
power dry feature.'' See 10 CFR part 430, subpart B, appendix C1. 
Commenters note that current dishwasher models offer a variety of cycle 
options or settings such as normal, heavy, light, eco, quick, pots, and 
pans, china, and so on that include a quick wash cycle. These cycles do 
not meet DOE's regulatory definition of the ``Normal cycle'' and are 
not subject to the Department's established dishwasher test procedure 
that is used when determining compliance with energy conservation 
standards. DOE intends to conduct a rulemaking to establish standards 
for the new product class for standard residential dishwashers based on 
the one hour or less ``Normal'' cycle. This would provide consumers 
with a means to compare products across the product class and make an 
informed decision when deciding to purchase a product that emphasizes 
cycle time or a different product attribute subject to the applicable 
minimum standards. Contrary to the commenters' assertions, a new 
product class does not inevitably mean a loss of existing energy 
savings. DOE will consider the appropriate standards for the new 
product class in a separate rulemaking, where it will complete its 
rulemaking analysis pursuant to the seven factors specified in 42 
U.S.C. 6295(o) for the establishment of standards.

[[Page 68731]]

    AHAM and others commenters argued that most dishwashers available 
today already offer consumers cycle options that clean dishes in less 
time than the normal cycle, i.e., quick cycle. AHAM based this 
statement on a recent survey that claimed 86.7% of reported 2017 
dishwasher shipments provided consumers a cycle option that could wash 
and dry a load in just over an hour. (AHAM, No. 3188, p. 2; ASE, No. 
3185, pp. 2-3; and ASAP, No. 3139, p. 1) Ceres BICEP, relying on 
Consumer Reports' 2017 Spring Dishwashers Survey, also remarked that 
nearly every dishwasher today offers a quick cycle mode and that the 
majority of consumers surveyed either did not view the cycle length as 
an issue, or used a quick cycle to address concerns about cycle length. 
(No. 2746, pp. 2-3)
    In response to these comments, DOE acknowledges that quick or fast 
cycles are available. CEI provided evidence that these quick cycles do 
not satisfy consumers' needs as these cycles are not designed and 
intended for normal use. (No. 3137, pp. 4-5) CEI identified various 
models that offered a quick wash cycle for lightly soiled recently used 
dishes or lightly soiled dishes with no dried-on food.\10\ These cycles 
are not considered for testing purposes to determine compliance with 
DOE's energy conservation standards. DOE recognizes ASE's comment that, 
for a substantial percentage (just under half) of dishwashers with 
short cycles, manufacturers do not discourage consumers from using 
these cycles to wash normally soiled loads. Some even recommend using 
short cycles for normally soiled dishes. (No. 3185, p. 3) The fact that 
dishwashers have separate ``Normal'' and ``Quick'' cycles, however, 
indicates that these cycles provide a separate utility and that the 
consumer recognize that there is a difference between using the 
``Normal'' versus the ``Quick'' cycle. The fact that manufacturers ``do 
not discourage'' use of the ``Quick'' cycle for a full load of normally 
soiled dishes also does not equate to the manufacturer-recommended 
cycle for doing so.
---------------------------------------------------------------------------

    \10\ CEI, p. 5 (LG, LD-12AS1/LD-12AW2, https://www.lg.com/au/support/products/documents/LD-12AS1.pdf (``This program is for that 
quick wash of lightly soiled recently used dishes and cutlery.''); 
Samsung, DW60J99X0 Series, https://www.appliancesonline.com.au/public/manuals/Samsung-WaterWall-Dishwasher-DW60H9970US-User-Manual.pdf (``Lightly soiled with very short cycle time.''); 
Whirlpool, ADP 502, https://docs.whirlpool.eu/_doc/19513945500.pdf (1 
hour cycle, ``For lightly soiled loads that need a quick basic 
drying,'' quick cycle ``Fast cycle to be used for slightly dirty 
dishes, with no dried-on food.'')).
---------------------------------------------------------------------------

    Based on the manufacturer descriptions of the intended use of these 
quick cycles, DOE reiterates that the ``Quick'' cycles available on 
current dishwasher models do not provide the same utility as the 
Department's new one hour or less short cycle product class. The new 
product class would be suited for cleaning normally soiled dishes and 
be subject to applicable energy and water conservation standards and 
testing like product classes for all covered products, pursuant to the 
outcome of separate rulemaking(s) to address these requirements.
    Furthermore, while AHAM argued that existing quick wash cycles 
satisfy consumer needs, CEI's 2019 survey provided different consumer 
feedback. Consumer responses determined that 46.1% of consumers did not 
have a quick or express cycle available and only 13.5% of those 
surveyed said they used such a cycle more often than the manufacturer 
recommended normal cycle. Additionally, 84.6% of those consumers with a 
quick or express cycle stated that they would find a one-hour normal 
cycle useful. Of those consumers with a quick or express cycle, 87.6% 
said they would use such a cycle more if it cleaned their dishes 
better. (CEI, No. 3137, p. 5) Additionally, commenters supporting the 
new product class explained that the quick cycles identified by AHAM 
tend to include disclaimers with time additions that ultimately result 
in cycle durations that are comparable to the normal wash cycle. There 
is clearly a demand for such a product based on these results and the 
comments DOE received in response to its publication of the petition 
and the July 2019 NOPR. DOE reiterates that consumers, by expressing a 
preference, have identified a consumer utility that provides the basis 
for creating a product class based on cycle duration.
    The CA IOUs commented that while manufactures do not always 
recommend quick cycles for daily use, DOE offered no evidence 
demonstrating that these cycles were less effective at cleaning. The CA 
IOUs called for DOE to conduct its own analysis regarding the cleaning 
adequacy for these quick cycles. (No. 3142 p. 2) The CEC called the 
proposed one hour cycle time arbitrary based on the fact that the cycle 
proposed is less time than current normal cycles. CEC argued that the 
rule relied on limited data that did not reach the conclusion that 
there is a consumer preference for this short cycle duration or that 
the cycle time would result in cleaner dishes. CEC concluded that DOE 
and CEI failed to demonstrate that a one-hour cycle time could not meet 
the existing standard, and that DOE made this presumption with no 
evidence provided as needed to justify the creation of a new product 
class. (No. 3132 p. 4)
    In response, DOE emphasizes that EPCA does not authorize DOE to 
establish test procedures and standards that require manufacturers to 
evaluate or meet a certain level of cleaning performance. DOE test 
methods and standards pertain to the measurement of and establishment 
of minimum levels of energy use (and, for some products, water use) or 
maximum levels of energy efficiency. See 42 U.S.C. 6293 and 42 U.S.C. 
6295. DOE has also previously addressed the argument concerning the 
consumer utility provided by a dishwasher with a faster manufacturer 
identified normal cycle in the preceding paragraphs of this section.
    In establishing this product class, the Department conducted a 
comprehensive review assessing a range of dishwashers with additional 
cycles shorter than the manufacturers' recommended normal cycle, i.e., 
the cycle subject to DOE testing and compliance with efficiency 
standards. Based on this review, DOE determined that it was feasible to 
manufacture a dishwasher with a ``Normal'' cycle time of 60 minutes or 
less and that establishing a product class where the ``Normal'' cycle 
is 60 minutes or less could spur manufacturer innovation to generate 
additional product offerings to fill the market gap that exists for 
these products (i.e., ability to clean a load of normally-soiled dishes 
in under 60 minutes).
    DOE determined that ten of the 34 cycles tested offered a ``Quick'' 
cycle of less than one hour. Of those models with a ``Quick'' cycle of 
less than one hour using the same soil loads specified by the DOE test 
procedure for testing the ``Normal'' cycle, 90% could meet the current 
DOE energy consumption standard that is based on the normal cycle of a 
standard-size dishwasher, 90% would meet the water consumption standard 
that is based on the ``Normal'' cycle of a standard-size dishwasher, 
and 80% could meet both standards.\11\ The ``Quick'' cycles of less 
than one hour were identified as offering lesser mean and median per-
cycle cleaning indices (i.e., the mean and median Cleaning Index for 
the heavy, medium, and light soil loads)

[[Page 68732]]

than those for the ``Normal'' cycle and all ``Quick'' cycles including 
other slightly longer ``Quick'' cycles.
---------------------------------------------------------------------------

    \11\ While DOE does not have legal authority under EPCA to 
establish a test for cleaning performance or a standard that 
requires a certain level of cleaning performance, DOE does consider 
cleaning performance in screening available technologies to ensure 
that the program does not consider as a dishwasher a device that 
cannot clean dishes.

                  Table II-2--Mean and Median Values of Cleaning Index for Each Soil Load of the Tested ``Normal'' and ``Quick'' Cycles
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Normal cycle                   All quick cycles               Quick cycle <1 hour
                                                      --------------------------------------------------------------------------------------------------
               Per-cycle cleaning index                  Heavy      Medium     Light      Heavy      Medium     Light      Heavy      Medium     Light
                                                       soil load  soil load  soil load  soil load  soil load  soil load  soil load  soil load  soil load
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mean.................................................       63.1       67.9       78.0       68.2       73.4       82.1       49.5       57.9       75.9
Median...............................................       68.4       72.5       80.8       73.1       78.4       84.6       53.8       60.4       76.2
--------------------------------------------------------------------------------------------------------------------------------------------------------

    This indicates that the currently available 60 minute or less 
``Quick'' cycles, on average, are less effective at cleaning dishes 
when compared to the ``Normal'' and other slightly longer ``Quick'' 
cycle options. As described in Section II.B., while DOE realizes that 
these ``Quick'' cycles are not necessarily intended to clean normally 
soiled dishes, at least some of these cycles appear to be capable of 
cleaning dishes at this soil level. DOE sees this as an opportunity for 
industry to develop a dishwasher that is characterized by a ``Normal'' 
cycle of one hour or less that manufacturers would recommend to clean 
normally soiled dishes. Based on this assessment and in consideration 
of comments received, DOE maintains the position taken in the July 2019 
NOPR and characterizes the new short cycle product class for standard 
dishwashers on the one hour or less cycle for the manufacturer tested 
``Normal'' wash.
    Commenters also identified the prevalence of ENERGY STAR rated 
models, many offering ``Quick'' cycle models, as indicating that 
``Quick'' cycles operate within in the existing standards. These 
commenters argued that a new class of dishwashers and accompanying 
different standards were not necessary to establish quicker cycles. 
This was because existing models already had the capability to provide 
``Quick'' cycles while operating within the existing standard, 
therefore, the record failed to support the creation of a new product 
class. (State AGs and NYC, No. 3136, p. 10)
    DOE cannot conclude that the existence of dishwashers with an 
ENERGY STAR rating that also offer ``Quick'' cycles is an indication 
that ``Quick'' cycles operate within the confines of current energy and 
water consumption standards. As stated previously, dishwasher energy 
and water efficiency is tested during the ``Normal'' wash cycle, not 
the ``Quick'' setting. The manufacturer's identified ``Normal'' wash is 
the cycle subject to energy and water consumption use testing and 
standards. While DOE test data indicated that the ten ``Quick'' cycles 
of less than 60 minutes duration met the current DOE standards, and 
five of the units had a weighted-average cleaning score of greater than 
70, only one of these units had a cleaning score of greater than or 
equal to 70 for all three soil loads tested, and only one of the units 
is recommended by the manufacturer for a full load of normally soiled 
dishware--that single unit had a weighted-average cleaning score of 
only 63. This demonstrates that manufacturer innovation within the new 
product class could lead to dishwashers with a ``Normal'' cycle of 60 
minutes or less and cleaning performance acceptable to consumers.
    To excuse some dissatisfaction customers expressed with cycle time, 
AHAM noted many consumers were unaware that other options, such as a 
``Quick'' cycle wash, were available on their dishwasher models. AHAM 
suggested such consumers should educate themselves about their 
dishwashers as opposed to having DOE issue new regulations. (AHAM, p. 
5) DOE acknowledges AHAM's position that some consumers may not be 
aware of these cycle options, but DOE cannot rely on such a presumption 
in determining whether to establish the one hour or less ``Normal'' 
cycle product class in this final rule. This rulemaking is premised on 
consumers expressing their comments and views on cycle time and the 
appropriateness of a product class for ``Normal'' cycle dishwashers 
with a cycle time of one hour or less, rather than a discounting of 
consumer understanding of product user manuals.
    Commenters supporting the new product class noted that the existing 
regulations were counterproductive to the goal of increasing energy 
efficiency of dishwashers as many consumers end up running their 
dishwasher multiple times to get dishes clean. (CEI, No. 3137, pp. 3-4; 
CFAST, No. 2941, p. 2) This was because the current standards do not 
take into account pre-washing or multiple wash cycles of the same load, 
which can increase the water and energy use associated with washing 
dishes. (Attorneys General and Governor Bryant, No. 3131, p. 3; CFACT, 
No. 2941, p. 1) These commenters acknowledged that DOE's rulemaking 
would remedy the problems of redundant or prewashing and the 
unaccounted energy and water use by establishing a new product class 
specifically for residential dishwashers that allow ``a `normal' wash 
to accomplish'' the task of cleaning dishes in an amount of time that 
meets consumer needs. (Attorneys General and Governor Bryant, No. 3131, 
p. 3)
    DOE reiterates that the creation of a new product class would 
provide a utility to consumers based on consumers expressing their 
interest in a shorter cycle duration for the ``Normal'' cycle. Similar 
to the product class for oven doors with windows, a product class for 
dishwashers with a shorter ``Normal'' cycle could save energy and water 
by preventing the handwashing of dishes or the running of a dishwasher 
multiple times for the same load. CEI also responded directly to 
commenters who argued that cycle length was unimportant because 
consumers mostly run their dishwashers at bedtime or at night. Relying 
on data collected during a 2019 survey, CEI determined that 50% of 
Americans do not run their dishwasher at night. And, when consumers 
were asked whether they would run their dishwasher at some other time 
if the dishwasher cycle was faster, 77.7% of respondents said they 
would. From this information, CEI determined that ``even if all 
dishwashing was done at bedtime, this would just be evidence that it is 
long dishwasher cycles that lead to much of the bedtime dishwasher 
use.'' (No. 3137, p. 4) DOE concludes that even if the majority of 
consumers ran their dishwasher at night, this still indicates that 
consumers consider cycle time important. 84 FR 33869, 33874 (July 16, 
2019).
    CEI also responded to AHAM's arguments that there was no demand for

[[Page 68733]]

a faster dishwasher, but that consumers were more interested in 
features such as quieter machines. (No. 3137, p. 4) CEI's survey asked 
consumers ``[i]f you could choose between today's dishwasher models, or 
a model that is faster but costs slightly more to run, which would you 
choose?'' The results found 59.4% would choose the faster model even if 
it cost slightly more to run. (CEI, p. 4) The survey provided evidence 
that consumer demand for faster dishwashers does exist even in light of 
increased expenses. DOE also notes that even if attributes such as 
noise level or detergent formulation lead to increases in cycle time, 
these factors do not undercut DOE's establishment of a shorter product 
class for the ``Normal'' cycle. Manufacturers can continue to determine 
desired trade-offs for cycle time, noise level, and other factors in 
developing their product offerings.
    DOE received comments arguing that the Department's proposal 
violated EPCA's product class provision because the 2019 NOPR failed to 
include accompanying efficiency standards for the newly created product 
class for short cycle dishwashers. These commenters specified that when 
exercising its authority under 42 U.S.C. 6295(q), DOE is required to 
promulgate energy efficiency standards for any class created 
thereunder, in accordance with the other requirements of 42 U.S.C. 
6295, including EPCA's anti-backsliding provision, and the economic 
justification and technological feasibility analyses. Commenters 
contend that DOE improperly bifurcated the product class rulemaking by 
separating the creation of the product class from the promulgation of 
applicable standards. (State AG and NYC, No. 3136, pp. 8-9; Joint 
Commenters, No. 3145, p. 7)
    The Joint Commenters and ASAP continued to argue that DOE cannot 
avoid complying with an existing standard through the creation of a 
product class that lacks an accompanying standard. The establishment of 
a new product class is to accompany the establishment of a standard. 
DOE cannot delay evaluating whether a new standard would meet the anti-
backsliding provision in a separate rulemaking because such actions 
must be considered together. (Joint Commenters, No. 3145 pp. 7-8; ASAP, 
No. 3139, p. 3)
    DOE addresses commenters' concerns regarding anti-backsliding in 
section III.B. of this final rule. In response to the comments arguing 
a purported EPCA requirement to establish standards whenever a product 
class is established exists, DOE emphasizes that EPCA does not contain 
such requirement. Section 325(q) of EPCA states that, ``[a] rule 
prescribing an energy conservation standard for a type (or class) of 
covered products shall specify a level of energy use or efficiency 
higher or lower than that which applies (or would apply) for such type 
(or class) for any group of covered products which have the same 
function or intended use[.]'' This provision does not specify any 
requirements for the timing of product class designation in regards to 
a parallel establishment of a standard. The language of the statute 
accommodates pre-designation of a product class prior to the 
designation and establishment of applicable standards, as well as the 
simultaneous designation envisioned by commenters.
    DOE's 2009 beverage vending machines (BVM) energy conservation 
standard rulemaking offers an example of a rulemaking where DOE 
designated a product class prior to the designation and establishment 
of an applicable standard for that product or equipment. When DOE 
initially considered energy conservation standards for BVMs, DOE did 
not consider combination vending machines as a separate equipment 
class, but considered that equipment with all other Class A and Class B 
BVMs. Based in part on the comments received concerning the proposed 
rule, DOE recognized that combination vending machines had a distinct 
utility, and concluded that combination vending machines were a class 
of BVMs. However, DOE was unable to determine whether energy 
conservation standards for combination vending machines were 
economically justified and would result in significant energy savings 
and subsequently decided to not set standards for the equipment class 
at that time. Instead, DOE reserved standards for combination vending 
machines and modified the definition of Class A and Class B BVMs to 
accommodate a definition for combination vending machines. 74 FR 44914, 
44920 (Aug. 31, 2009). This action thereby reserved a place for the 
development of future standards for combination vending machines that 
DOE then established in 2016. 81 FR 1028, 1035 (Jan. 08, 2016).\12\
---------------------------------------------------------------------------

    \12\ In 2016, DOE amended the definition of combination vending 
machine, created two classes of combination vending machine 
equipment, and promulgated standards for those classes. 81 FR 1028, 
1036 (Jan. 08, 2016).
---------------------------------------------------------------------------

    The energy conservation standards rulemaking for distribution 
transformers in 2007 offers another example of this type of activity by 
the Department. There, DOE clarified that although it believed that 
underground mining distribution transformers were within the scope of 
coverage, it recognized that mining transformers were subject to unique 
and extreme dimensional constraints that impacted their efficiency and 
performance capabilities and decided to not establish energy 
conservation standards for underground mining transformers. In the 
final rule DOE established a separate equipment class for mining 
transformers and reserved a section with the intent to develop the 
analysis needed to establish an appropriate energy conservation 
standard in the future. 72 FR 58190, 58197 (Oct. 12, 2007). DOE later 
reached a similar conclusion in 2013 when it decided to again not set 
standards for mining distribution transformers. 78 FR 23336, 23353 
(Apr. 18, 2013).
    Both of these examples highlight prior instances where the 
Department established a new product class without simultaneously 
ascribing an associated energy conservation standard. DOE is simply 
doing the same by finalizing this rulemaking for a new product class 
for dishwashers with a one hour or less normal cycle.
    In the July 2019 NOPR, DOE granted CEI's petition for a new product 
class for standard residential dishwashers with a short ``Normal'' 
cycle of one hour or less and finalizes the creation of such a product 
class through this final rule. This rulemaking considers the parameters 
of the new class of dishwashers through the identification of a 
performance-related feature pursuant to EPCA, 42 U.S.C. 6295(q)(1)(B). 
EPCA does not require DOE to simultaneously establish energy 
conservation standards in the same rulemaking as the determination of a 
new product. In fact, this action is similar to situations where DOE 
has finalized a determination and a covered product exists without an 
applicable standard until the Department completes a test procedure 
rulemaking and a standards rulemaking for that product. See 42 U.S.C. 
6292(b).
    Following issuance of this final rule, DOE intends to conduct the 
necessary rulemaking to consider and evaluate the energy and water 
consumption limits for the new product class to determine the standards 
that provide the maximum energy efficiency that is technologically 
feasible and economically justified, and will result in a significant 
conservation of energy, 42 U.S.C. 6295(o)(2)(A). DOE will provide 
interested members of the public an opportunity to comment on any 
preliminary rulemaking documents and proposed energy conservation 
standards for this product class during that rulemaking proceeding. 84 
FR 33869, 33874 (July 16, 2019).

[[Page 68734]]

    In response to CEI's claim that longer cycles are the product of 
Federal regulation, some commenters countered that longer cycles are 
actually a product of growing consumer preference for quieter 
dishwashers and mandated environmentally friendly detergents. (State 
AGs and NYC, No. 3136, p. 10; CA IOUs, No. 3142, p. 1; CEC, No. 3132, 
p. 4) ASE noted that changes in detergent over the past decade have 
lengthened dishwasher cycle times because of the change in using 
phosphates to enzyme-based detergents, which has also increased 
consumer interests in owning quieter dishwashers. This commenter argued 
that the creation of a new product class for dishwashers with a normal 
cycle time of less than one hour will not solve the residual problems 
of noise or associated heat damage--one or both of which will have to 
increase to insure adequate performance without phosphate detergents. 
(ASE, No. 3185, pp. 4-5)
    DOE recognizes that consumers' interest in dishwasher attributes 
may extend beyond cycle duration. Consumers may be interested in 
environmentally friendly and energy efficient products, as well as 
products that produce less noise. DOE maintains that these interests 
are not mutually exclusive. The Department's creation of a new product 
class provides manufacturers the opportunity to invest in innovation to 
address the many aspects of product performance valued by consumers.

B. Anti-Backsliding Considerations, 42 U.S.C. 6295(o)

    When establishing a new product class, DOE must consider EPCA's 
general prohibition against prescribing ``any amended standard which 
increases the maximum allowable energy use, or, in the case of 
showerheads, faucets, water closets, or urinals, water use, or 
decreases the minimum required energy efficiency, of a covered 
product'' in any rulemaking to establish standards for a separate 
product class. 42 U.S.C. 6295(o)(1). DOE recognizes that this provision 
must be read in conjunction with the authority provided to DOE in 42 
U.S.C. 6295(q) to specify ``a level of energy use or efficiency higher 
or lower than that which applies (or would apply) for such type or 
class . . .'' if the Secretary determines that covered products within 
such group consume a different type of energy or have a capacity or 
other performance-related feature that justifies ``a higher or lower 
standard from that which applies (or will apply) to other products 
within such type (or class).'' 42 U.S.C. 6295(q) (emphasis added). 
Therefore, EPCA explicitly acknowledges that product features may arise 
that require the designation of a product class with a standard lower 
than that applicable to other product classes for that covered product. 
84 FR 33869, 33872 (July 16, 2019).
    Opponents of the new product class argued that the finalization of 
the class would result in a weakening of efficiency standards for 
residential dishwashers and challenged that DOE cannot use the 
establishment of performance-related feature as a workaround for 
complying with EPCA's anti-backsliding provision, 42 U.S.C. 6295(o)(1).
    Specifically, the State AGs and NYC commented that the proposal 
aimed to add a third product class without an applicable efficiency 
standard, thereby establishing a dishwasher subclass that could consume 
unlimited amounts of energy and water, violating the anti-backsliding 
provision. (No. 3136, p. 3, referencing 84 FR 33869, 33873 and 33880 
(July 16, 2019)) These commenters disagreed with DOE's argument in the 
2019 NOPR that the anti-backsliding prohibition of 42 U.S.C. 6295(o)(1) 
was conditioned by 42 U.S.C. 6295(q) because the latter subsection uses 
the present and future tense: DOE ``shall specify a level of energy use 
or efficiency higher or lower than that which applies (or will apply) 
for such type (or class) for any group of covered products which have 
the same function or intended use.'' 42 U.S.C. 6295(q) (emphasis 
added); (State AGs and NYC, No. 3136, p. 4 referencing 84 FR 33869, 
33872-73 (July 16, 2019)). Commenters continued that DOE misconstrued 
the meaning of section 6295(q)'s reference to a standard not yet 
applicable as intending to account for situations where a basic product 
class and standards have not been established or yet to go into effect. 
The Department's reading, the commenters conclude, effectively repeals 
the anti-backsliding provision in product class designations. These 
commenters argue that while 42 U.S.C. 6295(q) acknowledges that 
differences in energy consumption, capacity or other performance-
related features among products within a product group may justify the 
application of different standards, the provision cannot be construed 
to allow DOE to prospectively establish product classes as a means of 
evading EPCA's prohibition against backsliding. (State AGs and NYC, No. 
3136, p. 4)
    DOE received similar comments arguing that even if it had the 
authority to create a new product class based on a shorter cycle time 
qualifying as a performance-related feature, the anti-backsliding 
provision prevents the standard that applies to that class from being 
less stringent than the current standard applicable to all dishwashers 
regardless of cycle duration. (Joint Commenters, No. 3145, p. 1-2; CEC, 
No. 3132, pp. 6-7)) EPCA's anti-backsliding provision prohibits DOE 
from prescribing ``any amended standard which increases the maximum 
allowable energy use, or, in the case of showerheads, faucets, water 
closets, or urinals, water use, or decreases the minimum required 
energy efficiency, of a covered product.'' Therefore, even if DOE could 
lawfully create a new product class for dishwashers based on cycle 
duration, these commenters assert that any new standard established 
cannot ``decrease the minimum required energy efficiency'' of the 
dishwashers in that new class. 42 U.S.C. 6295(o)(1); (Joint Commenters, 
No. 3145, p. 1-2; Ceres BICEP, No. 2746, p. 1).
    As an initial matter, DOE has yet to determine the standards that 
would be applicable to this new product class. Such standards will be 
established through DOE's standards-setting rulemaking process that 
includes opportunities for public comment. In the absence of such a 
rulemaking, neither DOE nor commenters can conclude that the 
potentially applicable standards for this new product class will be 
lower than the standards currently applicable to dishwashers. Data 
developed by DOE through the testing described in section II.B. of this 
final rule offer suggestions for what may be possible based on the 
existing dishwasher models evaluated against the current dishwasher 
standards as part of the Department's assessment of CEI's petition for 
a new product class of short cycle dishwashers. The current standards 
require standard residential dishwashers to not exceed 307 kWh/year and 
5.0 gallons per cycle. 10 CFR 430.32(f)(1)(i). DOE's test data indicate 
that a short cycle product class characterized by a one hour or less 
cycle could, in theory, operate within the scope of the existing 
standards. Even with these considerations, DOE emphasizes that EPCA 
does not prohibit the establishment of a standard for dishwashers in 
the new product class that is ultimately lower than the standards 
currently applicable to residential dishwashers.
    While some commenters expressed their disagreement with the overall 
application of the anti-backsliding provision to DOE's activities, DOE 
maintains that these concerns are too broad and ignore the limitations 
that EPCA itself places on the scope of the anti-backsliding provision, 
42 U.S.C.

[[Page 68735]]

6295(o)(1). As stated in the NOPR, ``EPCA's anti-backsliding provision 
is limited in its applicability with regard to water use to four 
specified products, i.e., showerheads, faucets, water closets, or 
urinals. DOE's existing energy conservation standard for dishwashers is 
comprised of both energy and water use components. As dishwashers are 
not one of the products listed in anti-backsliding provision with 
respect to water use, there is no prohibition on DOE specifying a 
maximum amount of water use for dishwashers that is greater than the 
existing standard without regard to whether DOE were to establish a 
separate product class for dishwashers as proposed in this proposed 
rule.'' 84 FR 33869, 33873 (July 16, 2019); see 42 U.S.C. 6295(o)(1).
    DOE also found the comments challenging the Department's reading of 
42 U.S.C 6295(q) as avoiding 42 U.S.C. 6295(o)(1)'s anti-backsliding 
provision and evading EPCA's prohibition against backsliding 
unpersuasive because the statute does not contain such limitations. As 
DOE explained in the July 2019 NOPR, the term ``which applies'' 
included in the text of the product class provision undercuts the 
argument that DOE may only use this provision when there is no standard 
yet established. By using the present tense, ``a higher or lower 
standard than that which applies,'' EPCA authorizes DOE to reduce the 
stringency of the standard currently applicable to the products covered 
under the newly established separate product class. The applicability 
of this provision to current standards is further evidenced by the 
additional reference to standards that are not yet applicable (i.e., 
standards that ``would apply''). If 42 U.S.C. 6295(q)(1) were only to 
operate in instances in which standards have not yet been established, 
there would be no need to separately indicate the applicability to 
future standards. Nor would there be any purpose to calling out the 
potential for higher or lower standards since there would not be any 
standards against which to measure that potential. In this manner, 42 
U.S.C. 6295(q) authorizes DOE to reduce the stringency of a currently 
applicable standard upon making the determinations required by 42 
U.S.C. 6295(q).
    Additionally, the term ``will apply'' is not by its term limited to 
the interim period between when the Department establishes a standard 
for a covered product and when compliance with that standard is 
required. This time limitation is nowhere expressly stated or implied 
in EPCA and is nonsensical because the Department would not be taking 
any further action with regard to the establishment of standards 
between the time it ``applies'' the standard through rulemaking and 
when compliance with that standard is required. As noted in the July 
2019 NOPR, 42 U.S.C. 6295(q) of EPCA cannot be read to prohibit DOE 
from establishing standards that allow for technological advances or 
product features that could yield significant consumer benefits while 
providing additional functionality (i.e., consumer utility) to the 
consumer. DOE relied on this concept when, in 2011, DOE established 
separate energy conservation standards for ventless clothes dryers, 
reasoning that the ``unique utility'' presented by the ability to have 
a clothes dryer in a living area where vents are impossible to install 
(i.e., a high-rise apartment) merited the establishment of a separate 
product class. 76 FR 22454, 22485 (Apr. 21, 2011). Another example of 
this that DOE is just beginning to explore, as explained further in the 
July 2019 NOPR, is network connectivity of covered products. See also 
DOE's Smart Products RFI at 83 FR 46886 (Sept. 18, 2018).
    In contrast, DOE's interpretation of 42 U.S.C. 6295(q) recognizes 
the potential for technological innovation and the development of 
product features like network mode (which was not contemplated at the 
time dishwasher standards were initially established) that result in 
the short term increase in energy consumption but have the potential in 
the long term to significantly improve energy efficiency overall. 84 FR 
33869, 33872 (July 16, 2019). DOE does not think a reasonable reading 
of the statute would conclude that technology must be held constant to 
a single point in time.
    DOE also stated in the July 2019 NOPR that this interpretation is 
consistent with DOE's previous recognition of the importance of 
technological advances that could yield significant consumer benefits 
in the form of lower energy costs while providing the same 
functionality to the consumer. In the proposed and supplemental 
proposed rule to establish standards for residential furnaces, 80 FR 
13120, 13138 (Mar. 12, 2015); 81 FR 65720, 65752 (Sept. 23, 2016), DOE 
stated that tying the concept of a feature to a specific technology 
would effectively ``lock-in'' the currently existing technology as the 
ceiling for product efficiency and eliminate DOE's ability to address 
such technological advances. 81 FR 65720, 65752 (Sept. 23, 2016). The 
Department finds it unrealistic to set limitations that would 
ultimately prevent the manufacturing of innovative products sought by 
consumers.
    The State AGs and NYC additionally argued that EPCA allows the 
exercise of 42 U.S.C. 6295(q)'s authority within the bounds of 42 
U.S.C. 6295(o)(1), which means DOE may designate separate product 
classes when justified under subsection 6295(q) but must do so within 
the limits of 42 U.S.C.6295(o)(1) by not weakening existing standards. 
(State AGs and NYC, No. 3136, p. 4) State AGs and NYC explained that if 
the two sections are in conflict, the newer provision would control. 
Here the anti-backsliding provision was enacted after the product class 
provision; therefore, 42 U.S.C. 6295(o)(1)'s prohibition against 
retreating to less stringent standards limits the exercise of 42 U.S.C. 
6295(q)'s product class provision. (Id., pp. 5-6, referencing Watt, 451 
U.S. at 267; Hines, Inc. v. United States, 551 F.2d 717, 725 (6th Cir. 
1977)) This in turn means DOE must accommodate technological innovation 
within the same limitations. The commenters cite the creation of the 
ventless clothes dryer product class as, in their view, an example of 
DOE working within the limits of EPCA's anti-backsliding prohibition. 
Commenters asserted that DOE did not establish less stringent standards 
for this product class because no energy efficiency standards were 
``lowered in the creation of that product class as ventless clothes 
dryers were not previously subject to standards.'' (State AGs and NYC, 
No. 3136, pp. 5-6 referencing 76 FR 22454, 22485 (Apr. 21, 2011))
    DOE does not read these provisions in conflict as these comments 
suggest. In 2011 DOE determined that ventless clothes dryers offered a 
unique utility because they provided a means of including a dryer into 
a living area where traditional vents were impossible to install due to 
the configuration of high rise apartments. The Department recognized 
this feature as a unique utility that justified the creation of a 
separate product class and associated standard for ventless clothes 
dryers. 76 FR 22454, 22485 (Apr. 21, 2011). What commenters overlook 
when referencing this rulemaking is that prior to the establishment of 
the ventless clothes dryers product class, ventless clothes dryers were 
subject to the standards set for the product class as a whole. However, 
as these dryers could not at the time be tested using the applicable 
test procedure, ventless clothes dryers subsequently sought and 
received waivers from test procedure requirements from the Department. 
76 FR 33271 (June 8, 2011).

[[Page 68736]]

    The very fact that DOE issued waivers to the DOE test procedure for 
these products means that these products were subject to DOE testing 
and standards compliance requirements. As DOE noted in a waiver granted 
to LG in 2008 (73 FR 66641 (Nov. 10, 2008)), commenting stakeholders 
(AHAM, Miele, and Whirlpool) all stated that ventless clothes dryers 
cannot meet the DOE efficiency standard and recommended a separate 
product class and efficiency standard for ventless clothes dryers. DOE 
responded by acknowledging the commenters' experience in working with 
this type of product, but noted DOE had not been able to find data as 
to whether ventless clothes dryers can meet the existing DOE clothes 
dryer energy conservation standard. DOE further stated that if this 
type of clothes dryer is indeed unable to meet the standard, DOE 
cannot, in a waiver, establish a separate product class and associated 
efficiency level. These actions must be taken in the context of a 
standards rulemaking. DOE did indeed issue a final rule that included 
standards for ventless clothes dryers in 2011. 76 FR 22454 (Apr. 21, 
2011).
    DOE stated in the LG waiver that although it would be feasible to 
provide LG with an alternative test procedure, that the problem is 
likely more fundamental than one limited to a needed test procedure 
change; instead, in spite of technological developments, it was 
expected (though not definitively known at the time the waiver was 
issued) that ventless clothes dryers would not meet the DOE energy 
conservation standard, and that a separate clothes dryer class (with a 
separate efficiency standard) would have to be established for ventless 
clothes dryers. Otherwise, a type of product with unique consumer 
utility could be driven from the market. However, the establishment of 
product classes cannot be done in a waiver, but only in a standards 
rulemaking.
    DOE therefore, consistent with the long-standing waiver granted to 
Miele, granted a similar waiver to LG from testing of its ventless 
clothes dryers. 73 FR 66641, 66642 (Nov. 10, 2008).\13\
---------------------------------------------------------------------------

    \13\ DOE stated in the 1995 Miele waiver that the standard ``did 
not apply'' to ventless clothes dryers. See 60 FR 9330 (Feb. 17, 
1995). While the exact meaning of that statement is not precisely 
clear, DOE interprets it to mean that DOE would not subject Miele to 
enforcement action for noncompliance. As DOE correctly points out in 
the 2008 LG waiver, determining that a product is or is not subject 
to standards is not a decision that can be made in a test procedure 
waiver.
---------------------------------------------------------------------------

    Commenters are incorrect that ventless clothes dryers were not 
subject to any standard. As in the case of ventless clothes dryers, 
which were subject to standards prior to the creation of a separate 
product class and separate (less-stringent) standard, DOE continues to 
read EPCA's provisions together to authorize the establishment of 
future standards for short cycle dishwasher product class at a level 
different from the existing standard if necessary.
    Moreover, the current standard requires standard residential 
dishwashers to not exceed 307 kWh/year and 5.0 gallons per cycle for 
the ``Normal'' cycle. 10 CFR 430.32(f)(1)(i). Consistent with the 
results of the Department's evaluation of dishwashers offering a 60 to 
90 minute ``Quick'' cycle, DOE's has identified an innovative 
opportunity for the further development of a dishwasher model offering 
a ``Normal'' cycle of one hour or less. In this final rule, DOE 
establishes a product class characterized by a cycle of one hour or 
less for the manufacturer-identified ``Normal'' cycle. Because DOE has 
not yet considered the appropriate standards for the new product class, 
the commenters are assuming an outcome of an action DOE has yet to 
take. As stated above, DOE will consider the appropriate energy use 
standards for the short cycle product class in a separate rulemaking.
    Some commenters turned to case law to support the notion that 
EPCA's anti-backsliding provision prevents DOE from establishing a new 
product class. Citing to NRDC v. Abraham, 355 F.3d 179, 197 (2d Cir. 
2004), these commenters claimed that the anti-backsliding provision 
must be interpreted in light of ``the appliance program's goal of 
steadily increasing the energy efficiency of covered products'' and 
Congress's intent to provide a ``sense of certainty on the part of 
manufacturers as to the required energy efficiency standards.'' (Joint 
Commenters, No. 3145, p. 2) The State AGs and NYC also argue, based on 
existing case law, that amendments to EPCA's anti-backsliding provision 
have steadily increased energy efficiency standards over time. 
Therefore, DOE may not render the anti-backsliding provision 
inoperative as it would counter case law and thwart the intent of 
Congress to maintain stability for future standards. (State AGs and 
NYC, No. 3136, p. 5; Joint Commenters, No. 3145, p. 2)
    Congress crafted EPCA using both present and future-tense language 
to provide for the creation of new product classes with a level of 
energy use higher or lower than the product class as a whole that would 
be justified where the facts supported a differing standard. 42 U.S.C. 
6295(q)(1)(B). The product class provision itself demonstrates that 
other factors such as capacity can be considered when setting a 
different standard for a new product and that energy efficiency at all 
cost was not the intent of EPCA. The Attorneys General and Governor 
Bryant suggest that the one hour or less dishwasher cycle is ``plainly 
an essential performance characteristic of great utility to 
consumers.'' (No. 3131, pp. 5-6) Looking to the facts surrounding CEI's 
petition, as referenced above, and the consumer utility evidenced by a 
short cycle product class, EPCA authorizes the Secretary to create such 
a product class, notwithstanding EPCA's anti-backsliding provision.
    The State AGs and NYC also contend that EPCA's prohibition against 
backsliding bars DOE from retroactively asserting that cycle time is a 
performance feature under 42 U.S.C. 6295(o)(4). (No. 3136, p. 5) Under 
42 U.S.C. 6295(o)(4) commenters assert that DOE may not prescribe 
standards that result in the elimination of ``performance 
characteristics'' or ``features'' and may designate and prescribe 
different standards for classes of a covered product if necessary to 
maintain a ``performance-related feature'' under section 6295(q). These 
commenters assert that because DOE never previously determined that 
cycle time was a distinct performance characteristic, the Department 
cannot make such a determination now that a dishwasher with a cycle of 
one hour or less is no longer available. (Id., at p. 4) CEC also argued 
that even if cycle time was a utility and the one hour cycle was not 
arbitrary, the record does not demonstrate that the existing standards 
have prevented manufactures from offering consumers a dishwasher with a 
one-hour cycle, thereby causing the unavailability of such products, 42 
U.S.C. 6295(o)(4). This means, according to the commenters, that DOE 
lacks the statutory authority to create new product features and 
classes in order to retroactively establish features that CEI 
speculates may have become unavailable due to decades of lawful 
standard setting. (CEC, No. 3132, p. 5)
    In this final rule, the Department is establishing a product class 
based on the utility consumers would receive from having a dishwasher 
characterized by having a ``Normal'' cycle of one hour or less. The 
Department is not establishing a standard that would result in the 
unavailability of a feature, which 42 U.S.C. 6295(o)(4) prohibits. 
Instead, DOE is creating a product class that incentivizes 
manufacturers to develop a product that can meet consumers' interests 
by manufacturing a

[[Page 68737]]

dishwasher defined by a one hour or less ``Normal'' cycle that would be 
subject to energy conservation standards. Whether DOE has previously 
defined cycle time as a feature for residential dishwashers is 
irrelevant. DOE has recognized the loss of the short cycle time feature 
as a result of the increased length of the manufacturer's identified 
``Normal'' cycle.
    In its initial petition, CEI voiced concern that Federal standards 
impaired dishwasher cycle times and that dishwashers with shorter 
``Normal'' cycle times were no longer available on the market. (CEI 
Petition, No. 0006 at p. 4) EPCA prohibits DOE from prescribing 
efficiency standards that would result in the unavailability of any 
covered product (or class) of performance characteristics (including 
reliability), features, sizes, capacities and volumes that are 
substantially the same as those generally available at the time of the 
Secretary's finding. 42 U.S.C. 6295(o)(4).
    Commenters contend that DOE cannot claim that the 42 U.S.C. 
6295(o)(4) unavailability provision authorizes DOE to establish the new 
product class. These commenters assert that the 42 U.S.C. 6295(o)(4) 
unavailability provision does not authorize DOE to reanimate a feature 
not currently on the market. (Joint Commenters, No. 3145, p. 8 
referencing 84 FR 33869, 33873 (July 16, 2019)) Commenters argue that 
using this as a justification for creation of a new product class is 
contrary to the anti-backsliding provision and lacks support in the 
text of the product class provision. (Id.)
    DOE is not relying on 42 U.S.C. 6295(o)(4) of EPCA to authorize the 
creation of a new product class of dishwashers or to establish weaker 
conservation standards through this rulemaking. EPCA provides that DOE 
may set standards for different product classes based on features that 
provide a consumer utility. 42 U.S.C. 6295(q). As stated previously, 
DOE has determined that the facts supporting a performance-related 
feature justifying a different standard may change depending on the 
technology and the utility provided to the consumer, and that consumer 
demand may cause certain products to disappear from or reappear in the 
market. DOE has also previously determined that the value consumers 
receive from a feature is to be determined based on a case-by-case 
assessment of its own research and information provided through public 
comment. 80 FR 13120, 13138 (Mar. 12, 2015). Lastly, DOE confirms that 
once the Department recognizes an attribute of a product as a feature, 
DOE cannot reasonably set standards that would cause the elimination of 
that feature. DOE notes that its test data also indicate that some 
dishwashers are available with a quick cycle that meets these 
performance characteristics. Establishing the product class 
characterized by a ``Normal'' cycle of one hour or less will provide 
manufacturers an opportunity for innovation. By finalizing this 
rulemaking, DOE will have responded to a gap in the market by 
establishing a new product class for a short cycle dishwashers. 84 FR 
33869, 33873 (July 16, 2019).

C. Other Comments

    Some commenters contend that DOE has failed to conduct a proper 
analysis of the data provided by commenters that justifies the creation 
of a new product class of dishwashers with a short cycle time. These 
commenters looked to the data provided by energy efficiency advocates 
and manufactures to claim that CEI's petition was based on insufficient 
analyses and relied on anecdotal information, and DOE's reliance on 
such information could compromise the integrity of the appliance 
standard and rulemaking process. (CA IOUs, No. 3142, p. 1) DOE also 
received comments asserting that the proposal failed to consider 
alternative cycle durations such as 50 or 70 minutes. (State AGs and 
NYC, No. 3136, p. 11) Throughout this rulemaking, DOE has requested 
comments from members of the public and has considered the comments 
received and conducted its own testing and analysis in determining how 
to proceed in this final rule. Based on its testing data, DOE has 
recognized that a dishwasher with a short cycle of one hour or less for 
the ``Normal'' cycle would provide a consumer utility not currently 
available. While DOE has identified some dishwashers offering ``Quick'' 
cycles that can accomplish a full cycle of cleaning and drying dishes 
in 60 to 90 minutes with energy and water use comparable to the 
existing conservation standards, DOE believes industry can develop a 
dishwasher with a ``Normal'' cycle to meet the criteria of the new 
product class.
    Other commenters argued that by categorically excluding this 
proposed action from environmental review, the Department has also 
violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321, 
et seq., first by failing to follow the applicable regulations and 
second for applying an inapplicable categorical exclusion. (State AGs 
and NYC, No. 3136, p. 12) Commenters argue that DOE misplaces its 
reliance on the proposed categorical exclusion because finalizing the 
product class would in fact result in a significant impact to the 
environment and qualify as a major federal action. (Joint Commenters, 
No. 3145, p. 9; State AGs and NYC, No. 3136 p. 13) Commenters assert 
that DOE's decision to apply the A5 categorical exclusion, rather than 
conduct the environmental review required for major federal actions, is 
arbitrary and capricious for three reasons: (1) There is no standard 
for the new class of dishwashers, (2) DOE failed to consider 
circumstances related to the rulemaking that may affect the 
significance of the environmental effects of the action, and (3) DOE 
failed to account for the reasonably foreseeable connected and 
cumulative actions between the creation of a new product class and 
future rulemakings setting standards for the product class. (State AGs 
and NYC, No. 3136, pp. 14-16)
    DOE maintains that this rulemaking, once finalized, will only 
establish a new product class for dishwashers with a ''Normal'' cycle 
of one hour or less from washing through drying. Finalization of the 
rule will not result in adverse environmental impacts and is covered by 
Categorical Exclusion A5 under 10 CFR part 1021, subpart D. This 
categorical exclusion applies to any rulemaking that interprets or 
amends an existing rule without changing the environmental effect of 
that rule. DOE maintains that establishing a new product class for 
covered products will not result in a change to the environmental 
effect of the existing dishwasher product classes.
    DOE will determine a standard for the product class established in 
this final rule that provides for the maximum improvement in energy 
efficiency that is technologically feasible and economically justified, 
and will result in a significant conservation of energy. 42 U.S.C. 
6295(o)(2)(A). That standard will be developed in a separate 
rulemaking. This action, which only establishes a product class for 
dishwashers with a ``Normal'' cycle of one hour or less, therefore 
falls within the scope of the A5 Categorical Exclusion.
    Additionally, commenters stated that DOE also violated the 
Administrative Procedure Act (APA), 5 U.S.C. 551, et seq., by failing 
to provide a satisfactory explanation and articulate a rational 
connection between the facts found and decision made in the NOPR. 
(State AGs and NYC, No. 3136, p. 9) Commenters argued that the proposal 
departs from DOE's previous determinations that only standard and 
compact dishwasher classes were appropriate, meaning DOE must explain 
why a quick cycle

[[Page 68738]]

function is a performance-related feature to meet the burden of such a 
change. Commenters explain that changing a policy position, which they 
contend DOE is doing here, also requires good reasons for the reversal 
and that the new policy is permissible under the statute (Fox, 556 U.S. 
at 515), and an unexplained inconsistency between agency actions is a 
reason for holding an interpretation to be an arbitrary and capricious 
change. Nat'l Cable & Telecomms. Ass'n v. Brand X internet Servs., 545 
U.S. 967, 981 (2005). Commenters conclude that based on the limited 
explanation provided in the record that DOE has failed to meet this 
burden. (State AGs and NYC, No. 3136, pp. 10-11)
    The Department maintains that it has met the APA's requirements for 
issuing a final rule and explained its reasoning for establishing a new 
product class for the one hour or less ``Normal'' cycle dishwasher 
sufficiently in the notice of proposed rulemaking and this final rule. 
DOE has responded to the information submitted through the public 
comment process and concluded that the public would derive a utility 
from the introduction of dishwasher that can clean normally soiled 
dishes in a shorter period of time than is presently available. The 
comments submitted identify a recognizable gap in the market for such a 
product and many consumers expressed a preference for such a product. 
(CEI, No. 3137, pp. 2-3)
    Some commenters argued that if DOE created a new, less efficient 
product class for residential dishwashers that such actions would 
result in significant uncertainty on the part of manufactures, 
businesses, and consumers. (Ceres BICEP, No. 2746, pp. 3-4) Commenters 
continued that a new product class would likely result in stranded 
investments, because manufacturers have already invested heavily in 
meeting existing conservation standards and responding to consumers' 
energy and water efficiency interests, and manufactures would 
essentially be required to abandon these innovations. (AHAM, No. 3188, 
pp. 1-2, 6; GEA, No. 3189, p. 2; Public Interest Advocacy Collaborative 
(PIAC), No. 3132, p. 1) Some commenters argued that the new product 
class would also require manufactures to operate two research and 
development cycles at significant expense while providing no real 
benefit to consumers. (ASE, No. 3185, p. 5) These commenters conclude 
that the costs of such activity also remain unknown as DOE has not 
proposed any accompanying efficiency standards to the new product class 
and that this deregulation will increase the market uncertainty for 
manufactures. (AHAM, No. 3188, p. 6; PIAC, No. 3132, p. 3; Whirlpool, 
No. 3180, p. 1)
    DOE emphasizes that manufactures seeking to push innovation in 
efficiency will not be forced to abandon their efforts as some 
commenters claim. This is because no current product would be 
prohibited as a result of the new product class characterized by the 
one hour or less ``Normal'' cycle. (CEI, No. 3137, p. 5) Additionally, 
if consumers do place a higher value on efficiency over cycle duration 
as some manufacturers claim, manufacturers will continue to have a 
viable market as those consumers will continue to purchase existing 
efficient products. Investments only become stranded if consumers value 
faster products over current models. (Id., pp. 5-6) Understandably, 
manufacturers that choose to enter this new market will incur expenses 
in order to satisfy the potential demand created as a result of 
finalizing the creation of this new product class, but that is a 
business decision manufacturers will make based on an evaluation of 
whether doing so would be a worthwhile investment. No company will be 
forced to enter this market as a result of the new product class. (Id., 
p. 6)

IV. Conclusion

    DOE has concluded that it has the legal authority to establish a 
separate product class as suggested by CEI pursuant to 42 U.S.C. 
6295(q). DOE has created a separate product class for dishwashers 
characterized by a ``Normal'' cycle of one hour or less as identified 
by the dishwasher manufacturer for daily, regular, or typical use to 
completely wash and dry a full load of normally soiled dishes. DOE will 
consider energy conservation standards and test procedures for this 
product class in a separate rulemaking.
    DOE also proposed to update the table specifying currently 
applicable dishwasher standards in 10 CFR 430.32(f) in the 2019 NOPR. 
The current requirement includes a table that specifies the obsolete 
energy factor requirements for standard and compact dishwashers. This 
table was intended to be removed in a final rule for dishwasher energy 
conservation standards published on December 13, 2016, but was 
inadvertently retained by the amendatory instructions for paragraph 
(f). 81 FR 90072, 90120. DOE will now remove this table and add a new 
paragraph (f)(1)(iii) that specifies standard dishwashers with a normal 
cycle of 60 minutes or less are not currently subject to energy or 
water conservation standards. Additionally, DOE amends paragraphs 
(f)(1)(i) through (iii) to clarify the terms ``standard'' and 
``compact'' and to include reference to the ANSI/AHAM DW-1-2010 
standard, which is the current industry standard referenced in the 
dishwasher test procedure at 10 CFR part 430, subpart B, appendix C1.

V. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866 and 13563

    This regulatory action is a ``significant regulatory action'' under 
the criteria set out in section 3(f) of Executive Order 12866, 
``Regulatory Planning and Review.'' (58 FR 51735 (Oct. 4, 1993)). 
Accordingly, this regulatory action was subject to review under the 
Executive order by the Office of Information and Regulatory Affairs 
(OIRA) in the Office of Management and Budget (OMB). As previously 
discussed in this preamble, DOE does not anticipate that the creation 
of a new product class will, in and of itself, result in any 
quantifiable costs or benefits. Rather, those costs or benefits would 
derive from the applicable test procedures and energy conservation 
standards, which the Department will prescribe in separate rulemakings.

B. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued Executive Order (E.O.) 
13771, ``Reducing Regulation and Controlling Regulatory Costs.'' (82 FR 
9339 (Jan. 30, 2017)). More specifically, the order provides that it is 
essential to manage the costs associated with the governmental 
imposition of requirements necessitating private expenditures of funds 
required to comply with Federal regulations. In addition, on February 
24, 2017, the President issued Executive Order 13777, ``Enforcing the 
Regulatory Reform Agenda.'' (82 FR 12285 (March 1, 2017)). The order 
requires the head of each agency to designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO is tasked with overseeing the 
implementation of regulatory reform initiatives and policies to ensure 
that individual agencies effectively carry out regulatory reforms, 
consistent with applicable law. Further, E.O. 13777 requires the 
establishment of a regulatory task force at each agency. The regulatory 
task force is required to make recommendations to the agency head 
regarding the repeal, replacement, or modification of existing

[[Page 68739]]

regulations, consistent with applicable law.
    DOE has determined that this final rule is consistent with these 
Executive orders. The proposed rule granted a petition submitted to DOE 
by the Competitive Enterprise Institute requesting that DOE establish a 
product class for dishwashers with ``normal cycle'' times of one hour 
or less from washing through drying. In this final rule, DOE has 
established a product class for dishwashers with ``Normal'' cycle time 
of one hour or less from washing through drying. DOE has designated 
this rulemaking as ``deregulatory'' under E.O 13771 because it is an 
enabling regulation pursuant to OMB memo M-17-21. DOE will make a 
determination of the appropriate standard levels for the product class 
in a subsequent rulemaking.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996) 
requires preparation of an initial regulatory flexibility analysis 
(IRFA) for any rule that by law must be proposed for public comment and 
a final regulatory flexibility analysis (FRFA) for any such rule that 
an agency adopts as a final rule, unless the agency certifies that the 
rule, if promulgated, will not have a significant economic impact on a 
substantial number of small entities. A regulatory flexibility analysis 
examines the impact of the rule on small entities and considers 
alternative ways of reducing negative effects. Also, as required by 
Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the DOE rulemaking process. (68 FR 7990). DOE has 
made its procedures and policies available on the Office of the General 
Counsel's website at: https://energy.gov/gc/office-general-counsel.
    DOE reviewed this rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. DOE has concluded that this rule will not have a significant 
impact on a substantial number of small entities. The factual basis for 
this determination is as follows:
    The Small Business Administration (SBA) considers a business entity 
to be a small business, if, together with its affiliates, it employs 
less than a threshold number of workers or earns less than the average 
annual receipts specified in 13 CFR part 121. The threshold values set 
forth in these regulations use size standards and codes established by 
the North American Industry Classification System (NAICS) that are 
available at: https://www.sba.gov/document/support--table-size-standards. The threshold number for NAICS classification code 335220, 
``Major Household Appliance Manufacturing,'' which includes dishwasher 
manufacturers, is 1,500 employees.
    Most of the companies that manufacture dishwashers are large 
multinational corporations. DOE collected data from DOE's compliance 
certification database \14\ and surveyed the AHAM member directory to 
identify potential manufacturers of dishwashers. DOE then consulted 
publicly-available data, such as Dun and Bradstreet, to determine if 
those manufacturers meet the SBA's definition of a ``small business.'' 
Based on this analysis, DOE identified two potential small businesses, 
but determined that this rule does not impose any compliance or other 
requirements on any manufacturers, including small businesses. This 
rulemaking establishes a product class for dishwashers with a 
``Normal'' cycle of one hour or less from washing through drying as 
described in the preamble. The rulemaking does not establish or impose 
energy conservation standards for the new product class of residential 
dishwashers that manufacturers will now be required to follow. Such 
requirements will be established in separate rulemakings where DOE will 
determine the appropriate standard levels and associated testing 
procedures. This rule will not result in any subsequent costs to any 
dishwasher manufacturer. Therefore, DOE concludes that the impacts of 
this final rule would not have a ``significant economic impact on a 
substantial number of small entities,'' and that the preparation of a 
FRFA is not warranted. DOE will transmit the certification and 
supporting statement of factual basis to the Chief Counsel for Advocacy 
of the Small Business Administration pursuant to 5 U.S.C. 605(b).
---------------------------------------------------------------------------

    \14\ https://www.regulations.doe.gov/certification-data (Last 
accessed May 22, 2020).
---------------------------------------------------------------------------

D. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of covered products/equipment generally must certify 
to DOE that their products comply with any applicable energy 
conservation standards. In certifying compliance, manufacturers must 
test their products according to the DOE test procedures for such 
products/equipment, including any amendments adopted for those test 
procedures, on the date that compliance is required. DOE has 
established regulations for the certification and recordkeeping 
requirements for all covered consumer products and commercial 
equipment. 76 FR 12422 (March 7, 2011); 80 FR 5099 (Jan. 30, 2015). The 
collection-of-information requirement for certification and 
recordkeeping is subject to review and approval by OMB under the 
Paperwork Reduction Act (PRA). This requirement has been approved by 
OMB under OMB control number 1910-1400. Public reporting burden for the 
certification is estimated to average 30 hours per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    This rule establishes a product class for dishwashers with a 
``Normal'' cycle of one hour or less from washing through drying but 
does not set conservation standards or establish testing requirements 
for such dishwashers, and thereby imposes no new information or record 
keeping requirements. Accordingly, Office of Management and Budget 
clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 
3501 et seq.)
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Review Under the National Environmental Policy Act of 1969

    Pursuant to the National Environmental Policy Act (NEPA) of 1996, 
DOE has analyzed this action in accordance with NEPA and DOE's NEPA 
implementing regulations (10 CFR part 1021). DOE has determined that 
this rule qualifies for categorical exclusion under 10 CFR part 1021, 
subpart D, appendix A5 because it is an interpretive rulemaking that 
does not change the environmental effect of the rule and meets the 
requirements for application of a categorical exclusion. See 10 CFR 
1021.410. Therefore, DOE has determined that promulgation of this rule 
is not a major Federal action significantly affecting the quality of 
the human environment within the meaning

[[Page 68740]]

of NEPA, and does not require an environmental assessment or 
environmental impact statement.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), 
imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. The Executive order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. (65 FR 13735). EPCA governs and 
prescribes Federal preemption of State regulations that are the subject 
of DOE's regulations adopted pursuant to the statute. In such cases, 
States can petition DOE for exemption from such preemption to the 
extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) 
Therefore, Executive Order 13132 requires no further action.

G. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal 
agencies the general duty to adhere to the following requirements: (1) 
Eliminate drafting errors and ambiguity; (2) write regulations to 
minimize litigation; (3) provide a clear legal standard for affected 
conduct rather than a general standard; and (4) promote simplification 
and burden reduction. Regarding the review required by section 3(a), 
section 3(b) of Executive Order 12988 specifically requires that each 
Executive agency make every reasonable effort to ensure that when it 
issues a regulation, the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires executive 
agencies to review regulations in light of applicable standards in 
sections 3(a) and 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. DOE has completed the 
required review and has determined that, to the extent permitted by 
law, the rule meets the relevant standards of Executive Order 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)) 
For a proposed regulatory action likely to result in a rule that may 
cause the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. (62 FR 12820) (This policy is also available at https://www.energy.gov/gc/office-general-counsel under ``Guidance & Opinions'' 
(Rulemaking)) DOE examined the rule according to UMRA and its statement 
of policy and has determined that the rule contains neither an 
intergovernmental mandate, nor a mandate that may result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any year. 
Accordingly, no further assessment or analysis is required under UMRA.

I. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule will not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

J. Review Under Executive Order 12630, ``Governmental Actions and 
Interference With Constitutionally Protected Property Rights''

    Pursuant to Executive Order 12630, ``Governmental Actions and 
Interference with Constitutionally Protected Property Rights,'' 53 FR 
8859 (March 18, 1988), DOE has determined that this rule will not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

K. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review 
most disseminations of information to the public under information 
quality guidelines established by each agency pursuant to general 
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 
(Oct. 7, 2002). DOE has reviewed this rule under the OMB and DOE 
guidelines and has concluded that it is consistent with the applicable 
policies in those guidelines.

L. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB, a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgates or is expected to lead to promulgation of 
a final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the

[[Page 68741]]

supply, distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use.
    DOE has concluded that the regulatory action in this document, the 
establishment of a new product class for dishwashers with a ``Normal'' 
cycle of one hour or less from washing through drying, is not a 
significant energy action because it would not have a significant 
adverse effect on the supply, distribution, or use of energy, nor has 
it been designated as a significant energy action by the Administrator 
of OIRA. Therefore, it is not a significant energy action, and, 
accordingly, DOE has not prepared a Statement of Energy Effects for 
this rule.

M. Review Consistent With OMB's Information Quality Bulletin for Peer 
Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (OSTP), issued its Final Information 
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 
2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the bulletin is to enhance the quality and credibility of 
the Government's scientific information. Under the Bulletin, the energy 
conservation standards rulemaking analyses are ``influential scientific 
information,'' which the Bulletin defines as ``scientific information 
the agency reasonably can determine will have or does have a clear and 
substantial impact on important public policies or private sector 
decisions.'' Id. at 70 FR 2667 (Jan. 14, 2005).
    In response to OMB's Bulletin, DOE conducted formal in-progress 
peer reviews of the energy conservation standards development process 
and analyses and has prepared a Peer Review Report pertaining to the 
energy conservation standards rulemaking analyses. Generation of this 
report involved a rigorous, formal, and documented evaluation using 
objective criteria and qualified and independent reviewers to make a 
judgment as to the technical/scientific/business merit, the actual or 
anticipated results, and the productivity and management effectiveness 
of programs and/or projects. The ``Energy Conservation Standards 
Rulemaking Peer Review Report,'' dated February 2007, has been 
disseminated and is available at the following website: https://www1.eere.energy.gov/buildings/appliance_standards/peer_review.html. 
Because available data, models, and technological understanding have 
changed since 2007, DOE has engaged in a new peer review of its 
analytical methodologies.

N. Description of Materials Incorporated by Reference

    In this document, DOE incorporates by reference the industry 
standard published by ANSI/AHAM, titled ``Household Electric 
Dishwashers,'' ANSI/AHAM DW-1-2010. ANSI/AHAM DW-1-2010 is an industry-
accepted standard to measure the energy and water consumption of 
residential dishwashers and is already incorporated by reference for 
the current dishwasher test procedure at 10 CFR part 430, subpart B, 
appendix C1. DOE incorporates by reference this industry consensus 
standard at 10 CFR 430.32(f), which specifies the energy conservation 
standards for compact and standard dishwashers, for the purpose of 
distinguishing the standard and compact product classes pursuant to the 
industry standard.
    Copies of ANSI/AHAM DW-1-2010 may be purchased from AHAM at 1111 
19th Street NW, Suite 402, Washington, DC 20036, 202-872-5955, or by 
going to https://www.aham.org.

O. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Incorporation by reference, Intergovernmental relations, Small 
businesses, Test procedures.

Signing Authority

    This document of the Department of Energy was signed on October 19, 
2020, by Daniel R. Simmons, Assistant Secretary for Energy Efficiency 
and Renewable Energy, pursuant to delegated authority from the 
Secretary of Energy. That document with the original signature and date 
is maintained by DOE. For administrative purposes only, and in 
compliance with requirements of the Office of the Federal Register, the 
undersigned DOE Federal Register Liaison Officer has been authorized to 
sign and submit the document in electronic format for publication, as 
an official document of the Department of Energy. This administrative 
process in no way alters the legal effect of this document upon 
publication in the Federal Register.

    Signed in Washington, DC, on October 22, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set forth in the preamble, DOE amends part 430 of 
title 10 of the Code of Federal Regulations as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority:  42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.


Sec.  430.3   [Amended]

0
2. Section 430.3(i)(2) is amended by adding ``Sec.  430.32 and'' 
immediately before ``appendix C1''.

0
3. Section 430.32 is amended by revising paragraph (f) to read as 
follows:


Sec.  430.32   Energy and water conservation standards and their 
compliance dates.

* * * * *
    (f) Dishwashers. (1) All dishwashers manufactured on or after May 
30, 2013, shall meet the following standard--
    (i) Standard size dishwashers shall not exceed 307 kwh/year and 5.0 
gallons per cycle. Standard size dishwashers have a capacity equal to 
or greater than eight place settings plus six serving pieces as 
specified in ANSI/AHAM DW-1-2010 (incorporated by reference, see Sec.  
430.3) using the test load specified in section 2.7 of appendix C1 in 
subpart B of this part.
    (ii) Compact size dishwashers shall not exceed 222 kwh/year and 3.5 
gallons per cycle. Compact size dishwashers have a capacity less than 
eight place settings plus six serving pieces as specified in ANSI/AHAM 
DW-1-2010 (incorporated by reference, see Sec.  430.3) using the test 
load specified

[[Page 68742]]

in section 2.7 of appendix C1 in subpart B of this part.
    (iii) Standard size dishwashers with a ``normal cycle'', as defined 
in section 1.12 of appendix C1 in subpart B of this part, of 60 minutes 
or less are not currently subject to energy or water conservation 
standards. Standard size dishwashers have a capacity equal to or 
greater than eight place settings plus six serving pieces as specified 
in ANSI/AHAM DW-1-2010 (incorporated by reference, see Sec.  430.3) 
using the test load specified in section 2.7 of appendix C1 in subpart 
B of this part.
    (2) [Reserved]
* * * * *
[FR Doc. 2020-23765 Filed 10-29-20; 8:45 am]
BILLING CODE 6450-01-P