[Federal Register Volume 78, Number 69 (Wednesday, April 10, 2013)]
[Rules and Regulations]
[Pages 21215-21218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08350]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 /
Rules and Regulations
[[Page 21215]]
DEPARTMENT OF ENERGY
10 CFR Part 430
[Docket No. EERE-BT-PET-0053]
Energy Conservation Program for Consumer Products: Association of
Home Appliance Manufacturers Petition for Reconsideration
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of denial of petition for reconsideration.
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SUMMARY: This document announces the U.S. Department of Energy's (DOE)
denial of a petition from the Association of Home Appliance
Manufacturers (AHAM) requesting reconsideration of DOE's final rule to
amend the test procedures for residential dishwashers, dehumidifiers,
and conventional cooking products, as well as the direct final rule to
amend energy conservation standards for dishwashers.
DATES: This denial is effective April 10, 2013.
ADDRESSES: Docket: For access to the docket to read the petition or
comments received thereon, go to the Federal eRulemaking Portal at
http://www.regulations.gov/#!docketDetail;D=EERE-2012-BT-PET-0053. In
addition, electronic copies of the Petition are available online at
DOE's Web site at http://www1.eere.energy.gov/buildings/appliance_standards/current_rulemakings-notices.html. For access to the docket
for DOE's direct final rule to amend energy conservation standards for
dishwashers, go to the Federal eRulemaking Portal at http://www.regulations.gov/#!documentDetail;D=EERE-2011-BT-STD-0060-0005. For
access to the docket for the final rule to amend the test procedures
for residential dishwashers, dehumidifiers, and conventional cooking
products, go to the Federal eRulemaking Portal at http://www.regulations.gov/#!documentDetail;D=EERE-2010-BT-TP-0039-0040.
FOR FURTHER INFORMATION CONTACT:
Stephen Witkowski, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Program, EE-2J,
1000 Independence Avenue SW., Washington, DC 20585-0121, (202) 586-
7892, or email: [email protected].
Elizabeth Kohl, U.S. Department of Energy, Office of General Counsel,
GC-71, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-
7796, email: [email protected].
SUPPLEMENTARY INFORMATION: This notice involves a petition by AHAM for
reconsideration of DOE's final test procedure rule to amend the test
procedures for dishwashers, dehumidifiers, and conventional cooking
products (77 FR 65942, Oct. 31, 2012) and its direct final rule to
amend the energy conservation standards applicable to dishwashers (77
FR 31918, May 30, 2012; 77 FR 59712, Oct. 1, 2012).\1\ Specifically,
AHAM requested that DOE stay the effectiveness of the test procedure
final rule and final standards rule until DOE either: (1) Revises the
standards in the final standards rule to account for the impact on
measured energy resulting from test procedure amendments to measure
fan-only mode and standby and off mode energy use; or (2) delays
requirements regarding measurement of fan-only mode and standby and off
mode energy use until promulgation of a revised standard for
dishwashers. After carefully considering AHAM's request and the
comments submitted in response to publication of the petition for
comment, DOE declines to grant the request.
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\1\ DOE Docket No. EERE-2010-BT-TP-0039, 11/30/12, http://www.regulations.gov/#!docketDetail;D=EERE-2012-BT-PET-0053.
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I. AHAM Petition Summary
In support of its request, AHAM asserts that the test procedure
amendments for fan-only mode and standby and off mode energy use impact
the measured energy use of dishwashers. As a result, AHAM states that
the Energy Policy and Conservation Act of 1975 (EPCA), as amended,
requires DOE to adjust the stringency of the energy conservation
standards in the direct final rule accordingly or delay compliance with
those test procedure amendments until a subsequent amended standard is
promulgated for dishwashers. AHAM acknowledges that the standards
established in the direct final rule were submitted to DOE in a
consensus agreement to which it was a party and adopted pursuant to
DOE's authority at 42 U.S.C. 6295(p)(4).
A. Fan-Only Mode
In support of AHAM's contention that the fan-only mode test
procedure revisions require an adjustment of the standard, AHAM cited
DOE's conclusion that measurement of fan-only mode energy use would
increase the measured energy use of the dishwasher by 0.4-17 kilowatt-
hours per year (kWh/year). In addition, AHAM cited a statement from a
supplemental notice of proposed rulemaking (SNOPR) that the higher end
of the range is greater than 5 percent of the maximum allowable annual
energy consumption for a standard dishwasher. (77 FR 31444, May 25,
2012) (May 2012 SNOPR). (DOE notes that the percentage cited in the May
2012 SNOPR references the 355 kWh per year standard applicable to
standard dishwashers until May 30, 2013. The statement should therefore
read ``less'' than 5 percent because 17 kWh/year represents 4.8 percent
of 355 kWh/year.) \2\ AHAM stated that this conclusion was unchanged
when DOE proposed a less burdensome method to measure the energy use in
fan-only mode in response to public comment (77 FR 49064, Aug. 15,
2012) (August 2012 SNOPR). AHAM also stated that it collected data
showing that measuring fan-only mode energy use would add a shipment-
weighted average of 0.29 kWh per year in measured energy. According to
AHAM, this increase in energy use could add up to 2 percent of the 2013
standard in measured energy for some models.
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\2\ In addition, DOE emphasizes, as discussed in Section III of
this notice, that adjustments, if any, required under 42 U.S.C.
6293(e)(2) would be made based on the average change in measured
energy use. According to AHAM's data, this shipment adjusted average
would be only a 0.29 kWh per year change, or 0.1 percent of the
energy use for standard dishwashers allowed under the standards
established in the direct final rule.
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AHAM asserted that notwithstanding DOE's arguments that the energy
use in
[[Page 21216]]
fan-only mode is de minimis--the fan-only mode energy use is estimated
to be less than 5 percent of the total energy use of standard
dishwashers, and 65 percent of dishwashers currently on the market meet
the amended energy conservation standards adopted in the direct final
rule--DOE is still required to ensure that the stringency of the
amended standards adopted in the direct final rule remains unchanged.
AHAM argued that DOE has not explained what it considers to be de
minimis, and that Congress did not provide a de minimis exception to
the standards amendment requirements in 42 U.S.C. 6293. AHAM also
pointed out that the stakeholders to the consensus agreement, upon
which the standards in the direct final rule were based, stated that if
DOE amended the test procedure prior to the compliance date of the
agreed-to standards, the stakeholders would recommend that DOE
translate the standards to equivalent levels specified under revised
test procedures, as specified in 42 U.S.C. 6293(e).
B. Standby and Off Mode
In support of AHAM's contention that the standby and off mode test
procedure revisions require an adjustment of the standard, AHAM noted
DOE's conclusion that while DOE did not expect the estimated annual
energy use (EAEU) or estimated annual energy cost to be significantly
affected by the proposed amendments to measure standby and off mode
energy use, integrating such energy use into the overall efficiency
metric would produce a measureable difference in EAEU (Public Meeting
Transcript, Dec. 17, 2010).\3\ AHAM also disagreed with DOE's
conclusion, reiterated in the September 2011 SNOPR, that the proposed
standby and off mode amendments would not measurably alter the existing
energy efficiency and energy use metrics for dishwashers (76 FR 58346,
58355, Sept. 20, 2011). AHAM stated that because the proposed
amendments change what energy will be measured (i.e., the end of cycle
energy, including cycle finished mode, would be measured under the
proposed revisions), DOE should amend the standards to account for this
change. AHAM also stated that it collected data showing that measuring
standby and off mode energy use would add a shipment-weighted average
of 1.10 kWh per year. In addition, because the 1.10 kWh is an average,
AHAM stated that some manufacturers will be more significantly
affected.
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\3\ DOE held the public meeting to discuss its notice of
proposed rulemaking to amend the test procedure for dishwashers,
dehumidifiers and conventional cooking products (75 FR 75920, Dec.
2, 2010) (December 2010 NOPR).
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As with fan-only mode, AHAM pointed out that the stakeholders to
the consensus agreement, upon which the standards in the direct final
rule were based, agreed that if the test procedure were amended, the
stakeholders would recommend that DOE translate the standards to
equivalent levels specified under revised test procedures, as specified
in 42 U.S.C. 6293(e). In addition, AHAM asserted that DOE took this
approach in establishing revised standards for room air-conditioners
and clothes dryers in its direct final rule establishing amended energy
conservation standards (76 FR 22454, Apr. 21, 2011; 76 FR 52854, Aug.
24, 2011).
II. Discussion of Comments Received
DOE published AHAM's petition for comment on December 31, 2012 (77
FR 76952). DOE received five comments on the petition. These comments
and DOE's responses are set forth in the paragraphs that follow.
BSH Home Appliances Corporation (BSH) \4\ and General Electric
Appliances (GE) \5\ supported AHAM's petition and stated that DOE
should determine the impacts on measured energy use resulting from the
test procedure and adjust the applicable standards levels accordingly.
BSH commented further that the impacts of the new standby power
measurement ranged from 0-21 kWh/year for the BSH models tested, which
BSH stated was not ``de minimis''.\6\ BSH also stated that DOE should
recognize: (1) Any reduction in energy consumption will have an
influence on cleaning performance; (2) Changes in product ratings are
expensive, difficult to manage on sales floors and cause confusion to
the consumer and to rebate programs; (3) The changes could cause some
units to fall off of the ``Energy Star'' list, which may result in
discontinuing production of the impacted models and increased cost.
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\4\ DOE Docket No. EERE-2012-BT-PET-0053, Comment 3, January 30,
2013.
\5\ DOE Docket No. EERE-2012-BT-PET-0053, Comment 7, January 31,
2013.
\6\ BSH also commented regarding the test procedure provisions
for measuring the energy used during water softener regeneration. As
stated in DOE's final test procedure rule, manufacturers have been
required to measure this energy (and water) use to demonstrate
compliance with existing standards. 77 FR 65942, 65946-47 (Oct. 31,
2012). As a result, such energy and water use would not be
considered in determining whether standards adjustments may be
required under 42 U.S.C. 6293(e).
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Further analysis of DOE's de minimis conclusion in light of the
data submitted by AHAM and BSH, as well as DOE's analysis concerning
the appropriateness of adjusting the energy conservation standard
levels established in the direct final rule is set forth in Section III
of this notice. In the paragraphs that follow, DOE provides information
developed during the test procedure rulemaking in support of the de
minimis conclusion and responds to the related comments offered by BSH.
For standby and off mode energy use, DOE proposed to measure such
energy use in the December 2010 proposed test procedure amendments
using IEC Standard 62301 ``Household electrical appliances--Measurement
of standby power,'' First Edition 2005-06 (IEC 62301). 75 FR 75290
(Dec. 2, 2010). In the September 2011 SNOPR, DOE proposed to measure
such energy use using the Second Edition of IEC 62301, as recommended
by commenters. 76 FR 58346 (Sept. 20, 2011). DOE analyzed the change in
measured energy use, if any, that would occur as a result of these
proposed changes and concluded that these amendments would not
measurably alter the energy use of dishwashers. 75 FR 75290, 75316-17;
76 FR 58346, 58355 (Dec. 2, 2010).
For fan-only mode energy use, DOE proposed a method to measure such
energy use in the May 2012 SNOPR (71 FR 31444, 31447) and proposed an
alternative method to measure such energy use in the August 2012 SNOPR
based on comments received from interested parties, including
manufacturers (77 FR 49064, 49067). DOE determined that the energy use
measured in fan-only mode would represent less than 5 percent of the
total energy use of standard dishwashers. Given that 65 percent of all
standard dishwashers currently on the market meet or exceed the minimum
energy conservation standards established in the direct final rule,
inclusion of this small amount of energy use would have virtually no
impact on compliance with the revised standard. As a result, DOE
determined that the energy use in fan-only mode is de minimis and
insufficient to alter in a material manner the measured energy use of
dishwashers. 77 FR 65942, 65947 (Oct. 31, 2012).
In response to BSH's other comments, DOE considered impacts to
consumer utility in adopting the standards established in the direct
final rule and concluded that the standards adopted in that rule would
not impact product utility. 77 FR 31918, 31956-57 (May 30, 2012). In
addition, DOE takes no position on the business or marketing decisions
made by manufacturers in response to amendments to applicable
[[Page 21217]]
DOE regulations, including whether to discontinue models that no longer
meet ENERGY STAR standards. DOE further notes that changes to the
ENERGY STAR compliance of certain models can occur with any amendment
of DOE's energy conservation standards and are not specific to DOE's
amendments to the standards for dishwashers in the direct final rule.
The California IOUs (Pacific Gas and Electric Company, Southern
California Gas Company, San Diego Gas and Electric, and Southern
California Edison) and a number of energy efficiency advocates and
consumer groups (Appliance Standards Awareness Project, American
Council for an Energy Efficient Economy, Alliance to Save Energy,
Consumer Federation of America, Natural Resources Defense Council,
Northwest Energy Efficiency Alliance, Northwest Power and Conservation
Council, and Earthjustice, hereinafter referred to as the ``Joint
Commenters'') opposed staying the effective date of the direct final
rule. These commenters also stated that if manufacturers provide data
documenting non-compliance with the standard as a result of the test
procedure changes, DOE could stay those portions of the test procedure
specified in AHAM's petition.
The Joint Commenters also stated that AHAM has not shown that DOE
was incorrect in concluding that any impact on measured energy
consumption would be de minimis. Based on AHAM's data, the Joint
Commenters concluded that the change in measured energy use as a result
of the disputed test procedure provisions would only be one-half of one
percent of the new standard levels, rather than the two percent noted
by AHAM. In addition, because any adjustment to the standard pursuant
to 42 U.S.C. 6293(e) would be made based on averages, the Joint
Commenters concluded that any products that fall out of compliance with
the new standards due to their significantly above-average
fan[hyphen]only and standby and off mode energy use would still be
non[hyphen]compliant even if DOE adjusted the standards. The Joint
Commenters also offered that EPCA, as amended, does not authorize DOE
to amend the standards in response to AHAM's petition because the test
procedure rulemaking had concluded.
As explained in Section III of this notice, DOE declines to grant
AHAM's request to stay the effective date of the standards established
in the direct final rule until DOE: (1) Revises the standards in the
final standards rule to account for the impact on measured energy
resulting from test procedure amendments to measure fan-only mode and
standby and off mode energy use; or (2) delays requirements regarding
measurement of fan-only mode and standby and off mode energy use until
promulgation of a revised standard for dishwashers. As part of this
determination, DOE maintains its conclusion that the energy use in fan-
only and standby and off mode is de minimis. DOE welcomes data on
dishwasher performance under the amended test procedure at any time.
Given DOE's conclusions, DOE does not reach the Joint Commenter's
argument concerning compliance with 42 U.S.C. 6293(e) once a test
procedure rulemaking has been completed.
DOE also received a comment from a private citizen asserting the
need for energy efficient appliances as soon as possible at a
reasonable cost. The commenter recommended that the Federal government
provide incentives to the American manufacturers to produce these
products. This comment is outside the scope of DOE's response to the
AHAM petition.
III. Legal Analysis and Decision
EPCA requires DOE to determine to what extent, if any, proposed
test procedure amendments would alter the measured energy efficiency,
energy use, or water use of any covered product as determined under the
existing test procedure. 42 U.S.C. 6293(e)(1). If DOE determines that
the amended test procedure will alter the measured energy efficiency,
energy use, or water use of a covered product, DOE must amend the
applicable energy conservation standard. The amended standard is
calculated as the average of the energy efficiency, energy use, or
water use determined by testing a representative sample of products
that minimally comply with the existing standard using the amended test
procedure. 42 U.S.C. 6293(e)(2).\7\ DOE's authority to amend energy
conservation standards does not affect DOE's obligation to issue final
rules as described in 42 U.S.C. 6295. 42 U.S.C. 6293(e)(4).
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\7\ EPCA also states that models of covered products in use
before the date on which the amended standard becomes effective (or
revisions of such models that have the same energy efficiency,
energy use, or water use characteristics) that comply with the
energy standard applicable to those products are deemed to comply
with the amended standard. 42 U.S.C. 6293(e)(3). Because DOE
determined that amended standards were not warranted, this provision
does not apply in this case.
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In applying these provisions to the energy conservation standards
adopted in the direct final rule for dishwashers, DOE determined that
no adjustment to the standard levels was warranted because the changes
in measured energy use resulting from the test procedure amendments for
the measurement of fan-only mode and standby and off mode energy use
were de minimis and, therefore, the extent of change in measured energy
use, if any, would not materially alter the standard levels.
AHAM argues in its petition that DOE must grant the requested
relief, either adjusting the standard levels established in the direct
final rule or delaying compliance with the test procedure provisions
for measuring energy use in fan-only mode and standby and off mode,
because Congress did not provide a de minimis exception to the
requirements of 42 U.S.C. 6293(e)(2). In response, DOE emphasizes that
42 U.S.C. 6293(e)(1) requires DOE to determine ``to what extent, if
any'' the proposed test procedure would alter the measured energy
efficiency or energy or water use of a covered product. This provision,
requiring DOE to determine ``the extent'', if any, of any alteration in
measured energy use, means the provision must apply only beyond some
minimum amount. That is, there would be no reason for the Secretary to
determine ``the extent'' of the change if any alteration in measured
energy use would trigger the requirements of 42 U.S.C. 6293(e)(2).
Thus, DOE has the discretion to determine that the amount of change in
measured energy use is so insignificant that the standard would not be
materially altered. As such, when DOE determines the change in measured
energy use is de minimis, amendment of the standard under 42 U.S.C.
6293(e)(2) would serve no purpose and would therefore not be required.
As noted in Section II of this notice, DOE analyzed the change in
measured energy use, if any, that would occur as a result of the
proposed changes to the measurement of standby mode and off mode energy
use, and fan-only mode energy use. As discussed in the paragraphs that
follow, DOE determined that the data submitted by manufacturer
commenters does not change the conclusion that measurement of the
energy use in fan-only mode and standby and off mode is insufficient to
materially alter the measured energy use of dishwashers and therefore
does not require an adjustment of the energy conservation standards
established in the direct final rule.
DOE estimated fan-only mode energy use at 0.4-17 kWh per year,
which even at the high end of the range is less than 5 percent of the
energy use of standard dishwashers. DOE emphasizes, and agrees with the
point made by the Joint Commenters, that a standards
[[Page 21218]]
adjustment required by 42 U.S.C. 6293(e)(2) would be based on the
average change in measured efficiency, which would be less than the
high end of the range estimated by DOE. In fact, based on the data AHAM
collected, fan-only mode energy use would represent an estimated 0.29
kWh per year for a shipment-weighted average, which is less than the
lower end of the range calculated by DOE and represents roughly only
0.1 percent of the energy use for standard dishwashers allowed under
the standards established in the direct final rule. DOE assumes that
the 2 percent increase in energy use cited by AHAM in its petition
refers to units that used more than the shipment-weighted average
energy use in fan-only mode. As noted, if any adjustment to an energy
conservation standard were determined necessary under 42 U.S.C.
6293(e)(2), the adjustment would be based on the average change in
measured efficiency, or the 0.1 percent figure. The data submitted by
AHAM are therefore insufficient to change DOE's conclusion that the
energy use in fan-only mode is de minimis.
DOE estimates standby and off mode energy use at 2 percent of total
energy use of a standard dishwasher. As noted in the test procedure
rulemaking and in Section II of this notice, DOE further estimated that
the test procedure amendments made for appendix C1 would not materially
alter that measured energy use. AHAM collected data showing that the
updated test procedure for measuring standby and off mode energy use in
Appendix C1 would add a shipment-weighted average of 1.10 kWh per year.
BSH submitted data indicating that standby and off mode energy use
could add up to 21 kWh per year for the BSH models tested. AHAM's
figure of 1.10 kWh/year is only 0.4 percent of the May 2013 standard
level for standard dishwashers. DOE notes that the BSH estimate of an
additional 21 kWh per year of standby and off mode energy use would
represent an increase in low-power mode consumption of 2 to 3 Watts
compared to the standby power measured according to Appendix C, which
is at least three times the maximum inactive or off mode power
consumption that DOE measured in its sample of 14 dishwashers tested
for the December 2010 proposed test procedure amendments. DOE also
notes that its statement about a measurable difference in EAEU at the
public meeting, noted in Section II of this notice, was meant to convey
that integration of the standby and off mode energy use into the
overall efficiency metric pursuant to 42 U.S.C. 6295(gg)(3) would still
allow for calculation of this energy use, even though the energy use
measurement was very small. After considering the data submitted by
commenters, DOE maintains its conclusion that the amendments to measure
standby and off mode energy use would not measurably alter the energy
use of dishwashers.
AHAM also argues in its petition that DOE must adjust the standard
levels established in the direct final rule or delay compliance with
the test procedure provisions for measuring energy use in fan-only mode
and standby and off mode because it has not provided a definition of de
minimis. DOE does not believe that it is necessary or appropriate to,
for example, specify an amount or percentage of energy use that would
be de minimis. Such a concept necessarily depends on factors such as
the product at issue, the total amount of energy used by the product,
and the test procedure change at issue.
DOE has determined in at least one instance that adjustment of the
standard levels based on test procedure amendments was warranted. As
AHAM noted, in the direct final rule establishing energy conservation
standards for clothes dryers and room air conditioners, DOE adjusted
the standard for clothes dryers based on its estimate of the increase
in average energy factor that would result from use of the amended test
procedure, which ranged from 10.3-22.5 percent (77 FR 22454, 22477,
Apr. 21, 2011). This range is significantly larger than the percentage
increase DOE estimated for the dishwasher rule and the average
percentage increase that AHAM estimated--0.29 kWh/year for fan-only
mode and 1.10 kWh/year for standby and off mode, which represent in
total approximately 0.45 percent of the May 2013 standards for
dishwashers.
Regarding DOE's statement that 65 percent of standard dishwashers
on the market would meet the standards established in the direct final
rule, DOE intended to convey that the standard adopted in the direct
final rule, which represented the maximum improvement in energy
efficiency that was technologically feasible and economically
justified, was not so stringent that only a very small percentage of
dishwashers would comply. In such a case, DOE might consider whether a
smaller change in measured energy use could trigger the requirements of
42 U.S.C. 6293(e)(2).
Even if DOE had determined that the change in measured energy use
as a result of test procedure provisions for the measurement of standby
and off mode energy use were not de minimis, DOE could not adjust the
standard to account for the increase in measured energy use, which
would result in lowering the current standard by a corresponding
amount. Such an adjustment would be prohibited by EPCA's anti-
backsliding provision, set forth in 42 U.S.C. 6295(o)(1). DOE's
authority to amend energy conservation standards in 42 U.S.C. 6293(e)
specifically does not affect DOE's obligation to issue any final rules
as described in 42 U.S.C. 6295, including adherence to the anti-
backsliding provision in 6295(o)(1). 42 U.S.C. 6293(e)(4).\8\
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\8\ DOE notes that if a test procedure amendment would account
for less energy use, thus raising the standard by some amount that
DOE determined was not de minimis, 42 U.S.C. 6293(e)(3) would
``grandfather'' existing models in use on or before the date on
which the amended energy conversation standard becomes effective (or
revisions of such models that have the same energy efficiency,
energy use or water use characteristics) that complied with the
standard prior to the test procedure amendments that raised the
standard.
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As a result of the above analysis, and in consideration of AHAM's
petition and the comments received thereon, DOE declines to grant the
petition.
Issued in Washington, DC on April 4, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and
Renewable Energy.
[FR Doc. 2013-08350 Filed 4-9-13; 8:45 am]
BILLING CODE 6450-01-P