Energy Conservation Program: Energy Conservation Standards for Residential Clothes Dryers and Room Air Conditioners

AGENCY:

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

ACTION:

Notice of effective date and compliance dates for direct final rule.

SUMMARY:

DOE published a direct final rule to establish amended energy conservation standards for residential clothes dryers and room air conditioners in the Federal Register on April 21, 2011. DOE has determined that the adverse comments received in response to the direct final rule do not provide a reasonable basis for withdrawing the direct final rule. Therefore, DOE provides this document confirming adoption of the energy conservation standards established in the direct final rule and announcing the effective date of those standards. DOE also published a proposed rule to amend the compliance dates set forth in the direct final rule on May 9, 2011. Elsewhere in today's Federal Register, DOE publishes a final rule which adopts the compliance dates set forth in its proposed rule published on May 9, 2011.

DATES:

The direct final rule published on April 21, 2011 (76 FR 22454) was effective on August 19, 2011. Pursuant to the document published elsewhere in today's Federal Register, compliance with the standards in the direct final rule will be required on June 1, 2014 for room air conditioners and on January 1, 2015 for clothes dryers.

ADDRESSES:

The docket is available for review at regulations.gov, including Federal Register notices, framework documents, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the regulations.gov index. Not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure. A link to the docket Web page can be found at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Stephen L. 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; telephone: (202) 586-7463; e-mail: Stephen.Witkowski@ee.doe.gov.

Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0121; telephone: (202) 586-7796; e-mail: Elizabeth.Kohl@hq.doe.gov.

For further information on how to submit or review public comments or view hard copies of the docket, contact Ms. Brenda Edwards at (202) 586-2945 or e-mail: Brenda.Edwards@ee.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Authority and Rulemaking Background

As amended by Energy Independence and Security Act of 2007 (EISA 2007; Pub. L. 110-140), the Energy Policy and Conservation Act authorizes DOE to issue a direct final rule establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary of Energy (Secretary), that contains recommendations with respect to an energy conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). A notice of proposed rulemaking (NOPR) that proposes an identical energy conservation standard must be published simultaneously with the final rule, and DOE must provide a public comment period of at least 110 days on the direct final rule. 42 U.S.C. 6295(p)(4). Not later than 120 days after issuance of the direct final rule, if one or more adverse comments or an alternative joint recommendation are received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously published NOPR. DOE must publish in the Federal Register the reasons why the direct final rule was withdrawn. Id.

During the rulemaking proceeding to consider amending energy conservation standards for residential clothes dryers and room air conditioners, DOE received the “Agreement on Minimum Federal Efficiency Standards, Smart Appliances, Federal Incentives and Related Matters for Specified Appliances” (the “Joint Petition” or “Consensus Agreement”), a comment submitted by groups representing manufacturers (the Association of Home Appliance Manufacturers (AHAM), Whirlpool Corporation (Whirlpool), General Electric Company (GE), Electrolux, LG Electronics, Inc. (LG), BSH Home Appliances (BSH), Alliance Laundry Systems (ALS), Viking Range, Sub-Zero Wolf, Friedrich A/C, U-Line, Samsung, Sharp Electronics, Miele, Heat Controller, AGA Marvel, Brown Stove, Haier, Fagor America, Airwell Group, Arcelik, Fisher & Paykel, Scotsman Ice, Indesit, Kuppersbusch, Kelon, and DeLonghi); energy and environmental advocates (American Council for an Energy Efficient Economy (ACEEE), Appliance Standards Awareness Project (ASAP), Natural Resources Defense Council (NRDC), Alliance to Save Energy (ASE), Alliance for Water Efficiency (AWE), Northwest Power and Conservation Council (NPCC), and Northeast Energy Efficiency Partnerships (NEEP)); and consumer groups (Consumer Federation of America (CFA) and the National Consumer Law Center (NCLC)) (collectively, the “Joint Petitioners”). This collective set of comments recommends specific energy conservation standards for residential clothes dryers and room air conditioners that, in the commenters' view, would satisfy the EPCA requirements at 42 U.S.C. 6295(o).

After careful consideration of the Consensus Agreement, the Secretary determined that it was submitted by interested persons who are fairly representative of relevant points of view on this matter. DOE noted in the direct final rule that Congress provided some guidance within the statute itself by specifying that representatives of manufacturers of covered products, States, and efficiency advocates are relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the Consensus Agreement was signed and submitted by a broad cross-section of the manufacturers who produce the subject products, their trade associations, and environmental, energy efficiency and consumer advocacy organizations. Although States were not signatories to the Consensus Agreement, they did not express any opposition to it from the time of its submission to DOE through the close of the comment period on the direct final rule. Moreover, DOE stated in the direct final rule that it does not interpret the statute as requiring absolute agreement among all interested parties before DOE may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness (i.e., “as determined by the Secretary”). Accordingly, DOE determined that the Consensus Agreement was made and submitted by interested persons fairly representative of relevant points of view.

Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly submitted recommendation for an energy or water conservation standard is in accordance with 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. As stated in the direct final rule, this determination is exactly the type of analysis DOE conducts whenever it considers potential energy conservation standards pursuant to EPCA. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that it adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in significant conservation of energy. Upon review, the Secretary determined that the Consensus Agreement submitted in the instant rulemaking comports with the standard-setting criteria set forth under 42 U.S.C. 6295(o). Accordingly, the Consensus Agreement levels, included as trial standard level (TSL) 4 for both clothes dryers and room air conditioners, were adopted as the amended standard levels in the direct final rule.

In sum, as the relevant statutory criteria were satisfied, the Secretary adopted the amended energy conservation standards for clothes dryers and room air conditioners set forth in the direct final rule. These standards are set forth in Table 1. The standards apply to all products listed in Table 1 that are manufactured in, or imported into, the United States on or after June 1, 2014 for room air conditioners and on or after January 1, 2015 for clothes dryers. These compliance dates were set forth in the proposed rule issued on May 9, 2011 (76 FR 19913) and are adopted in a final rule published elsewhere in today's Federal Register (see section V of this notice for further details.) For a detailed discussion of DOE's analysis of the benefits and burdens of the amended standards pursuant to the criteria set forth in EPCA, please see the direct final rule. (76 FR 22454 (April 21, 2011))

As required by EPCA, DOE also simultaneously published a NOPR proposing the identical standard levels contained in the direct final rule. As discussed in section II.A.4 of this notice, DOE considered whether any comment received during the 110-day comment period following the direct final rule was sufficiently “adverse” as to provide a reasonable basis for withdrawal of the direct final rule and continuation of this rulemaking under the NOPR. As noted in the direct final rule, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, DOE weighs the substance of any adverse comment(s) received against the anticipated benefits of the Consensus Agreement and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule.

II. Comments Requesting Withdrawal of the Direct Final Rule

A. General Comments

1. Joint Petition

Commenters stated that DOE did not consider the views of all relevant parties, including appliance installers and energy suppliers. Commenters also stated that DOE did not explain its process for determining whether the Joint Petition was submitted by relevant parties, including a determination of which parties are “not” relevant. (American Gas Association (AGA), No. 62 at pp. 4-5; AGL Resources (AGL), No. 63 at p. 8; American Public Gas Association (APGA), No. 61 at p. 2)

As explained above, EPCA authorizes DOE to issue a direct final rule establishing an energy conservation standard on receipt of a statement that, in relevant part, is submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary. While providing some guidance by specifying that representatives of manufacturers of covered products, States, and efficiency advocates are relevant parties to any consensus recommendation, EPCA affords DOE significant discretion in determining whether this requirement has been met. (42 U.S.C. 6295(p)(4)(A)) DOE notes that EPCA does not require that “all” relevant parties be parties to any consensus agreement. EPCA also does not require DOE to specify parties that it determines are not relevant to any consensus agreement.

In the direct final rule, DOE explained how the Consensus Agreement met the requirement that it be submitted jointly by interested persons that are fairly representative of relevant points of view. DOE noted that the Consensus Agreement was signed and submitted by a broad cross-section of the manufacturers who produce the subject products, their trade associations, and environmental, energy efficiency and consumer advocacy organizations. DOE further noted that although States were not signatories to the Consensus Agreement, they did not express any opposition to it. States also did not file any adverse comments during the comment period for the direct final rule.

Moreover, DOE stated in the direct final rule that it does not interpret the statute as requiring absolute agreement among all interested parties before DOE may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness (i.e., “as determined by the Secretary”). DOE acknowledges that appliance installers and energy suppliers may also be relevant parties within the meaning of 42 U.S.C. 6295(p)(4), but does not believe that the existence of other potentially relevant parties indicates that the Consensus Agreement was not submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates). In addition, DOE notes that it derived the installation costs for the clothes dryers from the 2010 RS Means Residential Cost Data, which is commonly used as an installation cost reference source by the installers for estimating the labor hours and regional labor cost. DOE also notes that the clothes dryer design that meets the new energy conservation standard does not require additional installation cost compared to the models that meet the existing energy conservation standard. Energy suppliers—Edison Electric Institute and California Utilities (gas and electric)—provided technology information that could improve the products' efficiency, and also recommended improvements to the existing test procedures in response to the framework document for this rulemaking, made available for comment on October 9, 2007, and the preliminary analysis document, made available for public comment on February 23, 2010.

For the reasons stated above, DOE affirms its conclusion in the direct final rule that the Joint Petition satisfies the requirement of 42 U.S.C. 6295(p)(4) that it be a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary.

2. Using Experience Curve To Forecast Product Prices

AGA objected to DOE's use of a learning curve to forecast product prices. (AGA, No. 62 at p. 3) APGA stated that learning curve price reductions should not be included in this direct final rule because DOE's most recent policy on this topic, set forth in DOE's notice of data availability (NODA) on Equipment Price Forecasting in Energy Conservation Standards Analysis (76 FR 9696, Feb. 22, 2011), has not been finalized. (APGA, No. 61 at p. 2)

APGA also presented as relevant to this rulemaking several issues that it had raised in its comments in response to the NODA. Summarizing these issues, AGA stated that DOE has not justified use of “learning curve” price effects with respect to the covered products, and that the price adjustment approach, based on a wide variety of products and not specific to the design options under consideration, is inconsistent with the approach of using engineering costs. (AGA, No. 62 at p. 3) Laclede Gas Company (Laclede Gas) stated that the “learning curve” is one of many assumptions made by DOE leading to a biased outcome. (Laclede Gas, No. 59 at p. 4)

In the NODA, DOE stated that when data are available to project potential cost reductions over time for a particular appliance or type of equipment, DOE plans to use these data as part of its analyses. 76 FR 9699 (Feb. 22, 2011). Therefore, use of the experience curve approach in the direct final rule, as described below, is appropriate.

For the direct final rule, DOE examined historical producer price indices for room air conditioners and household laundry equipment and found a long-term declining real price trend for both products. Consistent with the method proposed in the NODA, DOE used experience curve fits with the historical data on prices and cumulative production to forecast product costs. The experience curve approach captures a variety of factors that together shaped the observed historical trends, and is consistent with the costing approach in the engineering analysis, which estimated the incremental costs of considered design options in 2010. DOE did not attempt to forecast how those costs may change in the future because the available data did not permit DOE to estimate how only the incremental costs of design options may change.

3. Measure of Energy Consumption

Laclede Gas expressed concern that DOE has not implemented the National Academy of Sciences (NAS) conclusions that DOE's measurement of energy use should be based on full-fuel cycles, which takes into account the amount of energy consumed and lost from the fuel's production through the final point of use. (Laclede Gas, No. 59 at p. 4)

As discussed in the direct final rule, Section 1802 of the Energy Policy Act of 2005 directed DOE to contract a study with the National Academy of Science (NAS) to examine whether the goals of energy efficiency standards are best served by measurement of energy consumed, and efficiency improvements, at the actual point-of-use or through the use of the full-fuel-cycle, beginning at the source of energy production. (Pub. L. 109-58 (August 8, 2005)). NAS appointed a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” to conduct the study, which was completed in May 2009. The NAS committee noted that DOE uses what the committee referred to as “extended site” energy consumption to assess the impact of energy use on the economy, energy security, and environmental quality. The extended site measure of energy consumption includes the energy consumed during the generation, transmission, and distribution of electricity but, unlike the full-fuel-cycle measure, does not include the energy consumed in extracting, processing, and transporting primary fuels. A majority of the NAS committee concluded that extended site energy consumption understates the total energy consumed to make an appliance operational at the site. As a result, the NAS committee recommended that DOE consider shifting its analytical approach over time to use a full-fuel-cycle measure of energy consumption when assessing national and environmental impacts, especially with respect to the calculation of greenhouse gas emissions.

In response to the NAS committee recommendations, DOE issued a Notice of Proposed Policy proposing to incorporate a full-fuel cycle analysis into the methods it uses to estimate the likely impacts of energy conservation standards on energy use and emissions. 75 FR 51423 (August 20, 2010). Specifically, DOE proposed to use full-fuel-cycle (FFC) measures of energy and greenhouse gas (GHG) emissions, rather than the primary (extended site) energy measures it currently uses. DOE recently published a final policy statement on these subjects (76 FR 51281, August 18, 2011) and will take steps to begin implementing that policy in future rulemakings and other activities.

4. Adverse Impacts

Commenters stated that DOE did not consider the adverse comments consistent with 42 U.S.C. 6295(p)(4). Specifically, commenters asserted that DOE was required to weigh adverse comments independent of other aspects of the direct final rule, except where the comments conflict with DOE's analysis in the rule, to avoid what the commenters view as ad hoc and administratively inappropriate trade-offs. Commenters also asserted that weighing the adverse comments against the benefits of the direct final rule was not authorized by EPCA. (AGA, No. 62 at p. 4; APGA, No. 61 at p. 2)

EPCA, in relevant part, authorizes DOE to adopt in a direct final rule jointly recommended energy conservation standards that are in accordance with the provisions of 42 U.S.C. 6295(o). Not later than 120 days after issuance of the direct final rule, if one or more adverse comments or an alternative joint recommendation are received relating to the direct final rule, the Secretary is required to determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law.

In the discussion that follows, DOE first explains its rationale for establishing the standards set forth in the direct final rule. DOE then explains the process for determining whether adverse comments received may provide a reasonable basis for withdrawal of the direct final rule and addresses commenters' concerns about that process.

As stated in the direct final rule, DOE's determination as to whether the standards levels in a consensus agreement meet the requirements for adoption set forth in 42 U.S.C. 6295(o) is exactly the type of analysis DOE conducts whenever it considers potential energy conservation standards pursuant to EPCA. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that DOE adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in significant conservation of energy. This analysis includes a determination of whether the benefits of the standard outweigh its burdens, considering, to the maximum extent practicable, the seven criteria set forth in EPCA. These factors include the economic impact on manufacturers and consumers, operating cost savings compared to any increase costs, energy savings, any lessening of utility, the impact of any lessening of competition, the need for national energy and water savings, and any other factors that the Secretary considers appropriate. For the reasons stated in the direct final rule, DOE stated that it considered submission of the Consensus Agreement as another such factor. Upon review, and for the reasons set forth in the direct final rule, the Secretary determined that the Consensus Agreement submitted for residential clothes dryers and room air conditioners comports with the standard-setting criteria set forth under 42 U.S.C. 6295(o). Accordingly, the consensus agreement levels, included as TSL 4 for both clothes dryers and room air conditioners, were adopted as the amended standard levels in the direct final rule.

In considering whether any comment received on the direct final rule is sufficiently “adverse” such that it may provide a reasonable basis for withdrawal of the direct final rule and continuation of this rulemaking under the NOPR, DOE stated in the direct final rule that it is the substance, rather than the quantity, of comments that ultimately determines whether a direct final rule will be withdrawn. DOE also stated that it weighs the substance of any adverse comment(s) received against the anticipated benefits of the Consensus Agreement and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE noted that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. DOE does not agree that adverse comments must be weighed independently of the benefits of the standards in the direct final rule. DOE notes that EPCA affords the Secretary significant discretion in determining whether adverse comments may provide a reasonable basis for withdrawal of the direct final rule. EPCA requires DOE to make its decision whether to withdraw the direct final rule “based on the rulemaking record relating to the direct final rule.” In addition, DOE believes that weighing the substance of any adverse comments against the benefits of the standards adopted in the direct final rule is authorized by, and completely consistent with, EPCA because EPCA requires DOE to make these same types of determinations, weighing factors as varied as impacts to consumers and manufacturers and the need of the nation for energy savings, when deciding whether a standard is economically justified. DOE also believes that analysis of the substance of the adverse comments to determine whether further consideration would lead to a change in the results of the rulemaking, as well as the consideration of comments already addressed as insufficient to justify withdrawal, is an appropriate exercise of the Secretary's discretion and use of limited resources. DOE's analysis of the adverse comments received is provided throughout this section.

5. Comment Period

Commenters also suggested that DOE extend the comment period on the NOPR published simultaneous with the direct final rule. In the commenters' view, DOE needs to deliberate on the comments advocating withdrawal before closing the comment period on the NOPR so that stakeholders are aware of the rulemaking path DOE is pursuing. Commenters also noted that there is no requirement for the comment periods to have the same end date, and that withdrawal of the direct final rule may generate unique information for stakeholders to inform their comments on the NOPR. (AGA, No. 62 at p. 5; APGA, No. 61 at p. 3)

DOE is required by 42 U.S.C. 6295(p)(4) to publish a NOPR proposing standards identical to those set forth in the direct final rule simultaneously with the direct final rule. DOE published the direct final rule and corresponding NOPR on April 21, 2011. (76 FR 22324 (NOPR); 76 FR 22454 (direct final rule)) DOE is not required to provide for identical comments periods on the NOPR and direct final rule. DOE typically provides for a 60-day comment period on an energy conservation standards NOPR. For the NOPR proposing energy conservation standards for residential clothes dryers and room air conditioners, however, DOE provided for a longer comment period to match the 110-day comment period provided for the direct final rule. DOE believed that an earlier closing date could be confusing to commenters and was not warranted given that the direct final rule provided for a 110-day comment period. DOE does not believe that further extension of the comment period on the NOPR is necessary. The time provided for DOE to deliberate on whether to withdraw the direct final rule is specified in EPCA, which states that not later than 120 days after publication of the direct final rule in the Federal Register (i.e., 10 days after the close of the comment period), DOE must withdraw the direct final rule if it receives one or more adverse comments that may provide a reasonable basis for withdrawal. In addition, the standards proposed in the NOPR are identical to those set forth in the direct final rule, and in the event DOE determines that withdrawal is warranted, EPCA requires DOE to proceed with the simultaneously published NOPR. DOE's path in the event of withdrawal is therefore known when the direct final rule and NOPR are published—DOE considers the comments received and determines whether to issue amended standards in a final rule. Because the standards proposed in the NOPR, and the analyses by which those standards were developed, are identical to those in the direct final rule, DOE would not expect that withdrawal would generate unique information to inform stakeholders' comments on the NOPR.

B. Comments on Standards for Clothes Dryers

1. Consumer Benefits and Economic Justification

AGA, APGA, and AGL stated that the results of DOE's consumer impact analysis do not provide sufficient economic justification for TSL 4 for gas clothes dryers. They stated that the average life-cycle cost (LCC) benefit of $2 is highly questionable as a positive economic justification, and that at TSL 4 more consumers would experience a net cost than would experience an LCC benefit. They also stated that the mean payback period for TSL 4 is much longer than the median payback period reported in the direct final rule. (AGA, No. 62 at p. 2; AGL, No. 63 at p. 2; APGA, No. 61 at pp. 1-2)

DOE reports median payback period because it is a better indicator of consumer impacts than mean payback period, which can be skewed by a small number of consumers with a larger payback period. For gas clothes dryers at TSL 4, the average LCC savings are estimated at $2. Sixty-eight percent of consumers will experience either a net benefit or no cost (i.e., LCC decrease or no change in LCC) in 2014, while approximately one-third of consumers would experience a net cost (i.e., LCC increase) in 2014. DOE considered these LCC impacts in the direct final rule in its analysis of the seven factors that EPCA directs DOE to evaluate in determining whether a potential energy conservation standard is economically justified (42 U.S.C. 6295(o)(2)(B)(i)). In the direct final rule, DOE concluded that at TSL 4 for residential clothes dryers, the benefits of energy savings, generating capacity reductions, emission reductions and the estimated monetary value of the CO₂ emissions reductions, and positive NPV of consumer benefits outweigh the economic burden on some consumers due to the increases in product cost and the profit margin impacts that could result in a reduction in industry net present value for the manufacturers. Thus, the Secretary concluded that TSL 4 offers the maximum improvement in efficiency that is technologically feasible and economically justified, and will result in the significant conservation of energy.

AGA noted inconsistencies between DOE's LCC analysis and its recalculated values using the same analytical tools that would change the LCC savings into a cost. AGA stated that without any changes to the user inputs or other variables, it ran the simulation with the Crystal Ball software and calculated a $7 average LCC cost for gas dryers at TSL 4, making the adopted standard for gas dryers not economically justifiable. (AGA, No. 62 at pp. 1-2) In reviewing the LCC spreadsheet for gas clothes dryers, DOE consistently reproduced the results for the gas dryers at TSL 4 as reported in the technical support document (TSD) (i.e., an average savings of $2) using MS Excel 2007 and Crystal Ball software version 7.3.2. (2009). The different outcome from AGA's simulation runs could be due to different software versions, different initial settings for Crystal Ball, or other factors, though the information provided by AGA was insufficient for DOE to determine the cause of the differences.

2. Fuel Choice and Fuel Switching

Laclede Gas stated that because the direct final rule presents energy efficiency ratings for clothes dryers based on site energy, it misleads consumers into thinking that electric resistance heat is more efficient than the direct use of natural gas for clothes drying. (Laclede Gas, No. 59 at pp. 2-3) The units in which DOE expresses energy conservation standards for appliances are based on the definitions of “energy efficiency” and “energy use” provided by EPCA. The term “energy efficiency” means the ratio of the useful output of services from a consumer product to the energy use of such product, determined in accordance with applicable test procedures, and the term “energy use” means the quantity of energy directly consumed by a consumer product at point of use, determined in accordance with test procedures. (42 U.S.C. 6291(4-5)) DOE acknowledges that the energy conservation standards in the direct final rule are higher for standard vented electric dryers than for vented gas dryers (3.73 CEF vs. 3.30 CEF, respectively), but DOE does not find it credible that this fact would lead consumers to thereby prefer electric dryers. While clothes dryers do not have EnergyGuide labels, any such label would feature the estimated annual operating cost, not the energy efficiency rating. The estimated average annual operating cost of a gas dryer meeting the amended standard is less than the similar cost for an electric dryer meeting the amended standard, so it is implausible to expect that the standards would lead consumers to prefer electric dryers over gas dryers.

In a related comment, Laclede Gas stated that DOE ignored the potential for fuel switching from gas to electric clothes drying. (Laclede Gas, No. 59 at p. 4) DOE did not consider switching between gas and electric clothes dryers as a result of the standards because the average incremental cost of the standards for standard-size gas and electric clothes dryers is approximately the same ($13). Thus, DOE believes that the standards would be unlikely to induce fuel switching, particularly given the additional costs associated with such switching (e.g., the need to install a new dedicated electrical outlet).

3. Energy Price Forecast

AGA stated that DOE's use of the Annual Energy Outlook (AEO) 2010 Reference Case for energy prices under-accounts for the expansion of the U.S. natural gas resource base resulting from technological innovations for production of gas from tight shales. AGA recommended that DOE conduct its analysis using the AEO Low Growth price scenario. (AGA, No. 62 at p. 4) DOE traditionally uses the Reference Case forecast from the most recent AEO available at the time of the analysis for its default energy price forecast, and conducts sensitivity analysis using the Low Growth and High Growth Cases. For this rulemaking, the 2010 AEO was the most recent available forecast.

4. Employment Impacts

AGA, APGA, and Laclede Gas stated that DOE's estimated range of impacts under TSL 4 for direct domestic employment in the manufacture of gas dryers indicates that job loss is the more likely outcome of the standards. (AGA, No. 62 at pp. 2-3; APGA, No. 61 at p. 1; Laclede Gas, No. 59 at p. 4)

The results for clothes dryers under TSL 4 in the direct final rule show impacts ranging from a gain of 460 jobs to a potential loss of 3,962 jobs. The potential loss reflects a scenario in which all existing production would be moved outside of the United States. DOE believes that this outcome is unlikely for the reasons stated in the direct final rule. Specifically, at TSL 3 through TSL 5, DOE analyzed design options for the most common clothes dryer product classes that would add labor content to the final product. If manufacturers continue to produce these more complex products in-house, it is likely that employment would increase in response to the amended energy conservation standards. At TSL 3 through TSL 5, gains in domestic production employment are likely because, while requiring more labor, the necessary changes could be made within existing product platforms. The ability to make product changes within existing platforms mitigates some of the pressure to find lower labor costs, as relocating manufacturing facilities would disrupt production and add significant capital costs.

5. Scientific Integrity

Laclede Gas stated that the energy factors established for clothes dryers do not fulfill the scientific integrity objectives established by the President's Memorandum on scientific integrity, published on May 9, 2009, and that there is no scientific integrity in mandating standards that unfairly discriminate against the direct use of natural gas. (Laclede Gas, No. 59 at p. 2)

DOE notes that the President's memo requires the Director of the Office of Science and Technology Policy (OSTP) to develop recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch based on the principles enumerated in the memorandum. DOE further notes that OSTP issued a memorandum to the heads of executive departments and agencies on December 17, 2010 pursuant to the President's May 9, 2009 memorandum ( http://www.whitehouse.gov/sites/default/files/microsites/ostp/scientific-integrity-memo-12172010.pdf ). The memorandum provides guidance to agencies to implement the Administration's policies on scientific integrity. The OSTP memo stated that agencies should develop policies that, among other things, strengthen the actual and perceived credibility of Government research, which would include ensuring that data and research used to support policy decisions undergo independent peer review by qualified experts, where feasible and appropriate. Agency policies should also, among other things, establish principles for conveying scientific and technological information to the public.

As stated in the direct final rule, 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 Web site: http://www1.eere.energy.gov/buildings/appliance_standards/peer_review.html. DOE also makes its analyses and results available to the public in the TSD developed for its energy conservation standards rulemakings. The TSD for the direct final rule to establish energy conservation standards for residential clothes dryers and room air conditioners is available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/residential_clothes_dryers_room_ac_direct_final_rule_tsd.html.

DOE further notes that both memoranda state explicitly that they are not intended to create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, agents or any other person.

Lastly, DOE disagrees with the commenter's assertion that the amended standards for clothes dryers unfairly discriminate against the direct use of natural gas. As discussed in section II.B.2 of this notice, DOE finds no reason to expect that the standards will cause consumers to prefer electric dryers over gas clothes dryers.

III. Other Comments on the Direct Final Rule

A. Standby Power Levels

AHAM commented that the energy conservation standards for residential clothes dryers adopted in the direct final rule incorporate 0.08 Watts (W) of standby power for the vented clothes dryer product classes. AHAM stated that this standby power level is low and requested that DOE provide additional information on how that level was determined. AHAM indicated that approximately 1-2 W of standby power is required to power electronic controls and provide consumers with the usability they expect. AHAM provided the example of the product's central processing unit (CPU), which it stated must run while the product is not in active mode and that the touch pad must remain active. AHAM added that without those two elements a hard off switch would be required and, as a result, the consumer would be required to wait for the product to power up at the start of use. AHAM stated that consumers are not likely to accept such a wait time to turn on the product. (AHAM, No. 60 at p. 2)

As noted in chapter 5 of the direct final rule TSD, the standby power levels for clothes dryers (including the 0.08 W standby power level) were developed based on DOE testing and reversing engineering analysis of products in its test sample. The 0.08 W standby power level corresponds to a clothes dryer with electronic controls that uses a conventional linear power supply, along with a transformerless power supply that enables the CPU to remain on at all times while disabling the main linear power supply whenever the clothes dryer is “asleep” (after periods of user inactivity). This power supply design, incorporated with a “soft” power pushbutton and triac to control power through the transformer, would provide just enough power through the transformerless power supply to maintain the microcontroller chip while the clothes dryer is not powered on. The control logic monitors the clothes dryer for key-presses, door openings, etc., and when user activity is detected, the logic activates the main linear power supply to power the remainder of the control board. DOE notes that this design option and standby power level was observed in DOE's sample of units that were tested and reverse-engineered for the preliminary analyses. As a result, DOE believes that products incorporating this design option are currently available on the market and do not require a hard on/off switch. In addition, DOE is unaware of any differences in the time required to power up the controls using this power supply design versus a conventional linear power supply or switch mode power supply that also power down the display after a period of user inactivity. For these reasons, DOE believes that the standby power level analyzed and adopted in the direct final rule for vented dryer product classes is appropriate.

AHAM also commented that DOE did not indicate what standby power levels were incorporated into the energy conservation standards adopted in the direct final rule for room air conditioners. As a result, AHAM stated it was unable to comment on the appropriateness of the adopted standard levels. (AHAM, No. 60 at p. 2) DOE has provided additional information on the standby power levels incorporated into the standards adopted in the direct final rule for room air conditioners that can be found on the DOE Web site at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/room_ac_efficiency_level_standby_table.pdf.

B. Test Procedure

The same parties that submitted the Joint Petition also submitted a separate comment (Joint Comment) which supported the final adoption of the standards in the direct final rule, but also noted that DOE's revised clothes dryer test procedure that published in January 2011 did not incorporate their recommendations to amend the test procedure to better account for the effectiveness of automatic termination controls. 76 FR 972 (Jan. 6, 2011) As part of this recommendation, the Joint Comment stated that DOE should revise its test procedure to measure the energy use of automatic termination controls so that the procedure includes the entire cycle, including the cool-down period. The Joint Comment stated that it intends to submit new data gathered by manufacturers along with a petition requesting a revision to the DOE test procedure to account for the effectiveness of automatic termination controls and include the full cycle, including cool-down. The petition will also request a parallel revision to the energy conservation standard to reflect the test procedure change, as required by EPCA. The Joint Comment added that amending the test procedure to capture the energy use of the entire dryer cycle could save significant amounts of energy over 30 years and urged DOE to act upon their upcoming petition as soon as possible. (Joint Comment, No. 64 at p. 1)

As noted in the clothes dryer test procedure request for information (RFI) notice issued on August 9, 2011 and published in the Federal Register on August 12, 2011 (76 FR 50145-48), DOE has initiated a new test procedure rulemaking for clothes dryers to further investigate the effects of automatic cycle termination on the energy efficiency. In the RFI, DOE stated that it seeks information, data, and comments regarding methods for more accurately measuring the effects of automatic cycle termination in its clothes dryer test procedure. In particular, DOE seeks information, data, and comments on the following topics as they relate to automatic cycle termination: test load characteristics, accuracy of different automatic cycle termination sensors and controls, conditions of water used to wet the dryer test load, and automatic termination cycle settings to be tested.

C. Equipment Price Forecasting

AHAM expressed concern regarding the use of experience curves in equipment price forecasting. It stated that using experience curves (1) Does not make the analysis more accurate; (2) gives the appearance, but not the reality, of a more objective analysis; (3) hides the subjectivity in the data selection process rather than in the analysis itself; and (4) has no material effect on the ordering of the conclusions. (AHAM, No. 60 at p. 2) As discussed in section IV.F.1 of the direct final rule, DOE evaluated the above concerns (and those expressed by other commenters on the NODA) and determined that retaining the assumption-based approach of a constant real price trend was not consistent with the historical data for the products covered in this rule. Instead, consistent with the method proposed in the NODA, DOE used experience curve fits to forecast product costs. To evaluate the impact of the uncertainty of the price trend estimates, DOE performed price trend sensitivity calculations in the national impact analysis to examine the dependence of the analysis results on different analytical assumptions. DOE found that for the selected standard levels the benefits outweighed the burdens under all scenarios. DOE notes that it may modify its price trend forecasting methods as more data and information becomes available.

D. Indirect Environmental Impacts

AHAM stated that, to understand the total environmental impact, DOE's analysis should also consider indirect CO₂ emissions, such as increased carbon emissions required to manufacture a product at a given standard level, increased transportation and related emissions, and reduced carbon emissions from peak load reductions. (AHAM, No. 60 at p. 2) As discussed in section II.A.3, DOE is evaluating the full-fuel-cycle measure, which includes the energy consumed in extracting, processing, and transporting primary fuels. DOE's current accounting of primary energy savings and the full-fuel-cycle measure are directly linked to the energy used by appliances or equipment. DOE believes that energy used in the manufacture or transport of appliances or equipment falls outside the boundaries of “directly” as intended by EPCA. Thus, DOE did not consider such energy use in the national impact analysis. DOE did not include the emissions associated with such energy use for the same reason.

E. Other Comments

DOE received one comment from a private citizen generally supporting the standards in the direct final rule.

IV. Department of Justice Analysis of Competitive Impacts

EPCA directs DOE to consider any lessening of competition that is likely to result from new or amended standards. It also directs the Attorney General of the United States (Attorney General) to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii)) DOE published a NOPR containing energy conservation standards identical to those set forth the direct final rule and transmitted a copy of the direct final rule and the accompanying TSD to the Attorney General, requesting that the U.S. Department of Justice (DOJ) provide its determination on this issue. DOE has published DOJ's comments at the end of this notice.

DOJ reviewed the amended standards in the direct final rule and the final TSD provided by DOE, and also conducted interviews with industry members. As a result of its analysis, DOJ concluded that the amended standards issued in the direct final rule are unlikely to have a significant adverse impact on competition. DOJ further noted that the amended standards established in the direct final rule were the same as recommended standards submitted in the Joint Petition signed by industry participants who believed they could meet the standards (as well as other interested parties).

V. Amended Compliance Dates

In the direct final rule and corresponding NOPR published in the Federal Register on April 21, 2011, DOE provided for a compliance date for the amended energy conservation standards for residential clothes dryers and room air conditioners of 3 years after the date of publication, or April 21, 2014. The standards set forth in the direct final rule and NOPR were consistent with the Consensus Agreement that served as the basis for those rulemaking actions. The Consensus Agreement also provided specific compliance dates for both products—June 1, 2014 for room air conditioners and January 1, 2015 for clothes dryers. The compliance date of the direct final rule and NOPR did not correspond with the compliance dates specified in Consensus Agreement. As a result, DOE proposed to amend the compliance dates set forth in the direct final rule and corresponding NOPR to be consistent with the compliance dates set out in the consensus agreement. DOE received comments in support of the amended compliance dates and did not receive any comments objecting to those amended dates. In a final rule published elsewhere in today's Federal Register, DOE adopts the compliance dates for the standards established in the direct final specified in the Consensus Agreement—June 1, 2014 for room air conditioners and January 1, 2015 for clothes dryers.

VI. National Environmental Policy Act

Pursuant to the National Environmental Policy Act and the requirements of 42 U.S.C. 6295(o)(2)(B)(i)(VI), DOE prepared an environmental assessment (EA) of the impacts of the standards for clothes dryers and room air conditioners in the direct final rule, which was included as chapter 15 of the direct final rule TSD. DOE found that the environmental effects associated with the standards for clothes dryers and room air conditioners were not significant. Therefore, after consideration of the comments received on the direct final rule, DOE issued a Finding of No Significant Impact (FONSI) pursuant to NEPA, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and DOE's regulations for compliance with NEPA (10 CFR part 1021). The FONSI is available in the docket for this rulemaking and at: http://www.eere.energy.gov/buildings/appliance_standards/residential/pdfs/fonsi.pdf.

VII. Conclusion

In summary, based on the discussion above, DOE has determined that the comments received in response to the direct final rule for amended energy conservation standards for residential clothes dryers and room air conditioners do not provide a reasonable basis for withdrawal of the direct final rule. As a result, the amended energy conservation standards set forth in the direct final rule were effective on August 19, 2011. Pursuant to the document published elsewhere in today's Federal Register, compliance with these standards is required on June 1, 2014 for room air conditioners and on January 1, 2015 for clothes dryers.