2018-08521. Energy Conservation Program: Energy Conservation Standards for Dishwashers, Notification of Petition for Rulemaking

AGENCY:

Office of Energy Efficiency and Renewable Energy, Department of Energy.

ACTION:

Notification of petition for rulemaking; request for comment.

SUMMARY:

On March 21, 2018, the 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 (EPCA) for residential dishwashers. The new product class would cover dishwashers with a cycle time of less than one hour from washing through drying. Through this notification, DOE seeks comment on the petition, as well as any data or information that could be used in DOE's determination whether to proceed with the petition.

DATES:

Written comments and information are requested on or before June 25, 2018.

ADDRESSES:

Interested persons are encouraged to submit comments, identified by “Dishwasher Petition,” by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW, Suite 600, Washington, DC 20024. Telephone: [phone]. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

Docket: For access to the docket to read background documents, or comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW, Washington, DC 20585. Email: [e-mail]; 202-586-7796.

SUPPLEMENTARY INFORMATION:

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., provides among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) Pursuant to this provision of the APA, CEI petitioned DOE for the issuance of a new rule, as described in this notification and set forth below, verbatim.^[1] In promulgating this petition for public comment, the Department of Energy is seeking views on whether it should grant the petition and undertake a rulemaking to consider the proposal contained in the petition. By seeking comment on whether to grant this petition, the Department of Energy takes no position at this time regarding the merits of the suggested rulemaking.

On March 21, 2018, CEI petitioned DOE to initiate a rulemaking to define a new product class under 42 U.S.C. 6295(q) for residential dishwashers. (The petition is presented at the end of this document.) The new product class would cover dishwashers with a cycle time of less than one hour from washing through drying. CEI did not suggest specific energy and water requirements for this new product class, stating that these details could be determined during the course of the rulemaking. CEI stated that dishwasher cycle times have become dramatically longer under existing DOE energy conservation standards, and that consumer satisfaction/utility has dropped as a result of these longer cycle times. CEI also provided data regarding the increase in dishwasher cycle time, including data that correlated increased cycle time with DOE's adoption of amended efficiency standards for dishwashers.

CEI cites to section 6295(q) of EPCA as the authority for DOE to undertake the requested rulemaking. Section 6295(q) requires that DOE, for a rule prescribing an energy conservation standard for a type (or class) of covered products, specify a level of energy use or efficiency higher or lower than the level that applies (or would apply) to such type (or class) for any group of covered products that have the same function or intended use, if DOE determines that covered products within such group either: (1) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (2) have a capacity or other performance-related feature that 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 (or class). In making a determination under paragraph (q) concerning whether a performance-related feature justifies a higher or lower standard, DOE must consider such factors as the utility to the consumer of the feature, and other appropriate factors. In any rule prescribing a higher or lower level of energy use or efficiency, DOE must explain the basis on which the higher or lower level was established. CEI asserts 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 that the standard applicable to other dishwasher product classes.

CEI also cites to 42 U.S.C. 6295(o)(4), which prohibits DOE from prescribing a standard that interested person 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. CEI states that despite this prohibition, it appears that dishwasher cycle time have been impaired by the DOE standards and that many machines with shorter cycle times are no longer available.

In its petition, CEI proposes a cycle time of 1 hour as the defining characteristic for the suggested new product class, because 1 hour is substantially below all current products on the market. CEI states that energy efficiency standards for current products would therefore not change with the addition of the new product class, and that no backsliding would occur for the energy standards already in place. Specifically, 42 U.S.C. 6295(o)(1) 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.

Submission of Comments

DOE invites all interested partied to submit in writing by June 25, 2018 comments and information regarding this petition.

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

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

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

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

Submitting comments via hand delivery, or mail. Comments and documents submitted via hand delivery or mail also will be posted to http://www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information in your cover letter each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

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

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.

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

DOE considers public participation to be a very important part of its process for considering rulemaking petitions. DOE actively encourages the participation and interaction of the public during the comment period. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in determining how to proceed with a petition. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this petition should contact Appliance and Equipment Standards Program staff at [phone] or via email at [e-mail].

Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this notification of petition for rulemaking.

Issued in Washington, DC, on April 18, 2018.

Daniel R. Simmons,

Principal Deputy Assistant Secretary, Energy Efficiency and Renewable Energy.

Footnotes

1.  Attachments and data submitted by CEI with its petition for rulemaking are available in the docket at http://www.regulations.gov.