Energy Conservation Program: Energy Conservation Standards for Dishwashers, Residential Clothes Washers, and Consumer Clothes Dryers

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

A. Authority

B. Background

II. Discussion

A. Dishwashers

1. Cycle Time as a Performance-Related Feature

2. Justification of Different Standards for Dishwashers With a Short-Cycle Feature

3. Response to Other Comments

B. Residential Clothes Washers

1. Cycle Time as a Performance-Related Feature

2. Justification of Different Standards for Residential Clothes Washers With a Short-Cycle Feature

3. Response to Other Comments

C. Consumer Clothes Dryers

1. Cycle Time as a Performance-Related Feature

2. Justification of Different Standards for Consumer Clothes Dryers With a Short-Cycle Feature

3. Response to Other Comments

D. Other Comments

1. Process

2. Legal

3. Impacts on Average Lifetime

E. Other Topics Addressed by the Fifth Circuit

1. Water Authority

2. Test Procedure Authority

3. Preservation of Product Utility

III. Conclusion

A. Review Under Executive Order 12866

IV. Public Participation

V. Approval of the Office of the Secretary

I. Introduction

The following sections briefly discuss the statutory authority underlying this proposed confirmation of withdrawal, as well as some of the historical background relevant to dishwashers, residential clothes washers (“RCWs”), and consumer clothes dryers.

A. Authority

The U.S. Department of Energy (“DOE”) must follow specific statutory criteria under the Energy Policy and Conservation Act, Public Law 94-163, as amended, (“EPCA”) for prescribing new or amended standards for covered products, including dishwashers, RCWs, and consumer clothes dryers. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary of Energy (“Secretary”) determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))

Moreover, DOE may not prescribe a standard if DOE determines by rule that the establishment of such standard will not result in significant conservation of energy (or, for certain products, water), or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(B)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceeds its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven statutory factors:

(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;

(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;

(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary considers relevant.

(42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))

EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))

Additionally, EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. A rule prescribing an energy conservation standard for a type (or class) of product must specify a different standard level for a type or class of products that has the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE considers such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. ( Id.) Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))

B. 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, the Competitive Enterprise Institute (“CEI”) petitioned DOE for the issuance of a rule establishing a new product class under 42 U.S.C. 6295(q) that would cover dishwashers with a cycle time of less than 60 minutes from washing through drying, asserting that it is not technologically feasible to create dishwashers that both meet the current standards and have cycle times of 60 minutes or less. On October 30, 2020, DOE published a final rule that established a product class for standard-size dishwashers with a cycle time for the normal cycle of 60 minutes or less. 85 FR 68723 (“October 2020 Final Rule”). Contrary to CEI's claim in its petition that it is not technologically feasible for a dishwasher with a cycle time of 60 minutes or less to meet the current standards, in the October 2020 Final Rule DOE identified several dishwashers that had cycles that were less than 60 minutes and met the current standards, but asserted that establishing a product class for dishwashers with a normal cycle of 60 minutes or less could spur manufacturer innovation to generate additional product offerings. Id. at 85 FR 68726. The October 2020 Final Rule additionally specified that the current standards for dishwashers no longer apply to short-cycle products and that DOE intended to conduct the necessary rulemaking to determine standards that would provide the maximum energy efficiency that is technologically feasible and economically justified, and would result in a significant conservation of energy. Id. at 85 FR 68733, 68741.

Following the October 2020 Final Rule, having determined that similarities exist between the consumer use of dishwashers, RCWs, and consumer clothes dryers ( i.e., that these products offer several cycles with varying times, and that consumers run these cycles multiple times per week on average), DOE published a final rule on December 16, 2020, that established product classes for top-loading RCWs and certain classes of consumer clothes dryers with a cycle time of less than 30 minutes, and front-loading RCWs with a cycle time of less than 45 minutes (“December 2020 Final Rule”). 85 FR 81359. Similar to the October 2020 Final Rule, the December 2020 Final Rule also specified that the current standards for RCWs and consumer clothes dryers no longer apply to short-cycle products. 85 FR 68723, 68742; 85 FR 81359, 81376.

On January 19, 2022, DOE published a final rule (“January 2022 Final Rule”) revoking the October 2020 Final Rule and the December 2020 Final Rule (collectively, “Short-cycle Final Rules”). In that rule, DOE noted that the appropriate time for establishing a new product class under 42 U.S.C. 6295(q) is during a rulemaking prescribing new or amended standards. 87 FR 2673, 2682. And, as the Short-cycle Final Rules stated that they were not applying the rulemaking analysis pursuant to the seven factors specified in 42 U.S.C. 6295(o) for the establishment of standards, DOE found that these rules were improperly promulgated. Id. at 87 FR 2673. The January 2022 Final Rule reinstated the prior product classes and applicable standards for these covered products. Id. at 87 FR 2686.

On March 17, 2022, various States filed a petition in the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) seeking review of the January 2022 Final Rule, which eliminated the short-cycle product classes and reinstated the applicable energy conservation standards. The petitioners argued that the January 2022 Final Rule withdrawing the Short-cycle Final Rules violated EPCA and was arbitrary and capricious. On January 8, 2024, the Fifth Circuit granted the petition for review and remanded the matter to DOE for further proceedings consistent with the Fifth Circuit's opinion. In remanding the January 2022 Final Rule for further consideration, the Court held that even if the Short-cycle Final Rules were invalid, DOE was obligated to consider other remedies short of withdrawal. See Louisiana, et al. v. United States Department of Energy, et al., 90 F.4th 461, 477 (5th Cir. 2024). Specifically, the Court noted that instead of withdrawing the Short-cycle Final Rules, DOE could have promulgated energy conservation standards for the short-cycle product classes. Id. at 476.

As a result, DOE is considering whether short-cycle product classes and standards can be established under the applicable statutory criteria. Under EPCA, DOE establishes product classes based on: (1) fuel type; or (2) performance-related features. (42 U.S.C. 6295(q)(1)) With regards to product classes based on performance-related features, the product must have a feature which other products within such type do not have and such feature must justify a different standard from that which applies to other products within such type. ( Id.). In the Short-cycle Final Rules, DOE found that cycle time was a performance-related feature and that some products had shorter cycle times than others. 85 FR 68723, 68726; 85 FR 81359, 81361. But the Short-cycle Final Rules did not determine whether cycle time justified different standards. Instead, the Short-cycle Final Rules stated DOE would determine specific standards in a separate rulemaking. Id. Therefore, to establish separate energy conservation standards for short-cycle product classes, DOE must first confirm the determination made in the Short-cycle Final Rules that cycle time is a performance-related feature for these three covered products. DOE must then determine that a different standard level is justified for short-cycle products as there is no basis for establishing a product class under 42 U.S.C. 6295(q) that would be subject to the same standard level. Finally, assuming DOE determines that cycle time is a performance-related feature and a different standard level is justified for short-cycle products, DOE must apply the criteria in 42 U.S.C. 6295(o) to prescribe energy conservation standards that, among other things, are technologically feasible and economically justified and would result in significant conservation of energy.

As part of this process, DOE published a request for information on March 11, 2024 (“March 2024 RFI”), seeking data and other information on, among other things, the presence of any short-cycle products in the market and any relationship between cycle time and performance. 89 FR 17338. DOE received comments in response to the March 2024 RFI from the interested parties listed in Table II.1.