59712 Federal Register / Vol. 77, No. 190 / Monday, October 1, 2012 / Rules and Regulations 

3EPA and State and local environmental 

authorities may restrict the use of methyl bromide 

on certain articles. 

include American Samoa, the Northern 

Mariana Islands, and all of one and 

portions of another additional county in 

California. Likewise, the list of 

quarantined areas for citrus greening is 

being updated to include portions of 

one county in Texas and an area 

comprising portions of two counties in 

California. The analysis that 

accompanies this rule considers the 

economic effects of the regulations on 

the current quarantined area and the 

benefits of imposing the quarantine. 

Expected benefits and costs are 

examined, in accordance with Executive 

Orders 12866 and 13563, including 

expected economic impacts for small 

entities as required by the Regulatory 

Flexibility Act. 

In the interim rule, APHIS imposed 

measures to prevent the spread of citrus 

greening and ACP to other commercial 

citrus-producing areas by prohibiting or 

restricting the movement of host 

material outside of areas quarantined for 

the pest or the disease. Although the 

majority of affected establishments in 

the quarantined areas are small entities, 

the effects of the interim rule on these 

businesses were minor. Affected entities 

were nursery operations and other 

production sites in Alabama, California, 

Florida, Georgia, Guam, Hawaii, 

Louisiana, Mississippi, Puerto Rico, 

South Carolina, Texas, and the U.S. 

Virgin Islands that produce citrus trees, 

orange jasmine, curryleaf, and other 

articles regulated by the rule. 

This final rule designates American 

Samoa and the Northern Mariana 

Islands as quarantined areas for ACP, 

and extends the boundaries of the 

quarantine area for ACP in California to 

include all of one county (Ventura 

County) and portions of another 

additional county (Santa Barbara 

County). Producers in these areas that 

have relied on markets in commercial 

citrus-producing areas that are not 

currently quarantined for ACP or citrus 

greening will suffer the loss of those 

markets. However, it is unlikely that 

producers of citrus nursery stock in 

these areas currently produce citrus 

nursery stock intended for markets 

outside of the quarantine area. The 

effort to mitigate the further spread of 

ACP and citrus greening will serve to 

benefit to other citrus producing areas. 

List of Subjects in 7 CFR Part 301 

Agricultural commodities, Plant 

diseases and pests, Quarantine, 

Reporting and recordkeeping 

requirements, Transportation. 

Accordingly, the interim rule 

amending 7 CFR parts 301 and 305 that 

was published at 75 FR 34322 on June 

10, 2011, is adopted as a final rule, with 

the following changes: 

PART 301—DOMESTIC QUARANTINE 

NOTICES 

■ 1. The authority citation for part 301 

continues to read as follows: 

Authority: 7 U.S.C. 7701–7772 and 7781– 

7786; 7 CFR 2.22, 2.80, and 371.3. 

Section 301.75–15 issued under Sec. 204, 

Title II, Public Law 106–113, 113 Stat. 

1501A–293; sections 301.75–15 and 301.75– 

16 issued under Sec. 203, Title II, Public Law 

106–224, 114 Stat. 400 (7 U.S.C. 1421 note). 

■ 2. In § 301.76–1, the definition of 

citrus greening is revised to read as 

follows: 

§ 301.76–1 Definitions. 

* * * * * 

Citrus greening. A plant disease, also 

commonly referred to as Huanglongbing 

disease of citrus, that is caused by 

several strains of the uncultured, 

phloem-limited bacterial pathogen 

‘‘Candidatus Liberibacter asiaticus’’. 

* * * * * 

§§ 301.76–6, 301.76–7, 301.76–8, and 

301.76–9 [Amended] 

■ 3. In §§ 301.76–6, 301.76–7, 301.76–8, 

and 301.76–9, footnotes 3 through 7 are 

redesignated as footnotes 4 through 8, 

respectively. 

■ 4. Section 301.76–6 is amended as 

follows: 

■ a. In paragraph (a)(1), by adding a 

footnote 3; and 

■ b. In paragraph (c)(1)(iv), by removing 

the words ‘‘Northern Mariana Islands 

or’’. 

The addition reads as follows: 

§ 301.76–6 Additional conditions for 

issuance of certificates and limited permits 

for regulated articles moved interstate from 

areas quarantined for Asian citrus psyllid, 

but not for citrus greening. 

(a) * * * 

(1) The article is treated with methyl 

bromide 3 in accordance with 7 CFR part 

305 of this chapter. 

* * * * * 

§ 301.76–7 [Amended] 

■ 5. In § 301.76–7, paragraph (b)(1) is 

amended by removing the words ‘‘or 

irradiation’’. 

Done in Washington, DC, this 26th day of 

September 2012. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2012–24112 Filed 9–28–12; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF ENERGY 

10 CFR Parts 429 and 430 

[Docket Number EERE–2011–BT–STD– 

0060] 

RIN 1904–AC64 

Energy Conservation Program: Energy 

Conservation Standards for 

Dishwashers 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of effective date and 

compliance dates for direct final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE) published a direct final 

rule to establish amended energy 

conservation standards for dishwashers 

in the Federal Register on May 30, 

2012. DOE has determined that the 

adverse comments received in response 

to the direct final rule were not 

sufficiently ‘‘adverse’’ as to 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. 

DATES: The September 27, 2012, 

effective date for the direct final rule 

published on May 30, 2012 (77 FR 

31918) is confirmed. Compliance with 

the standards in the direct final rule will 

be required on May 30, 2013. 

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. 

The docket web page can be found at 

http://www.regulations.gov/#!docket

Detail;dct=FR%252BPR%252BN

%252BO%252BSR;rpp=25;po=0;D=

EERE-2011-BT-STD-0060. 

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 email: Brenda.Edwards@ee.doe.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: 

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Federal Register / Vol. 77, No. 190 / Monday, October 1, 2012 / Rules and Regulations 59713 

1 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 1. 2The Joint Petitioners submitted a second 

petition amending the recommended compliance 

dates for new dishwasher standards. DOE Docket 

No. EERE–2011–BT–STD–0060, Comment 4. 

(202) 586–7463; email: 

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; email: 

Elizabeth.Kohl@hq.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 (EPCA) 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 dishwashers, 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 comments1 2

recommends specific energy 

conservation standards for dishwashers 

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 standardsetting criteria set forth under 42 U.S.C. 

6295(o). Accordingly, the Consensus 

Agreement levels, included as trial 

standard level (TSL) 2, 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 dishwashers 

set forth in the direct final rule. These 

standards are set forth in TABLE 1— 

AMENDED ENERGY CONSERVATION 

STANDARDS FOR RESIDENTIAL 

DISHWASHERS 

The standards apply to all products 

listed in TABLE 1—AMENDED 

ENERGY CONSERVATION 

STANDARDS FOR RESIDENTIAL 

DISHWASHERS that are manufactured 

in, or imported into, the United States 

on or after May 30, 2013. 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. (77 FR 31918 (May 30, 2012)). 

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–B 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 

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59714 Federal Register / Vol. 77, No. 190 / Monday, October 1, 2012 / Rules and Regulations 

3 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 13. 4 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 19. 5 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 18. 6 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 14. 7 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 15. 8 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 16. 

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. 

TABLE 1—AMENDED ENERGY CONSERVATION STANDARDS FOR RESIDENTIAL DISHWASHERS

Product class 

Compliance date: May 30, 2013 

Minimum annual 

energy use* 

kWh/year 

Maximum per-cycle 

water consumption 

gallons/cycle 

1. Standard (≥8 place settings plus 6 serving pieces) .................................................................... 307 5.0 

2. Compact (<8 place settings plus 6 serving pieces) .................................................................... 222 3.5

* Annual energy use, expressed in kilowatt-hours (kWh) per year, is calculated as: The sum of the annual standby electrical energy in kWh and 

the product of (1) the representative average dishwasher use cycles per year and (2) the sum of machine electrical energy consumption per 

cycle in kWh, the total water energy consumption per cycle in kWh, and, for dishwashers having a truncated normal cycle, the drying energy 

consumption divided by 2 in kWh. A truncated normal cycle is defined as the normal cycle interrupted to eliminate the power-dry feature after the 

termination of the last rinse option. 

II. Comments Received on the Direct 

Final Rule 

A. Comments Received in Support of the 

Direct Final Rule 

Pacific Gas and Electric Company 

(PG&E), Southern California Gas 

Company (SCGC), San Diego Gas and 

Electric (SDG&E), and Southern 

California Edison (SCE) (collectively, 

the ‘‘California Utilities’’) expressed 

support for DOE’s adoption of the 

standard levels proposed in the Joint 

Petition,3 as did AHAM.4 Additionally, 

ASAP, ASE, ACEEE, CFA, NCLC, 

NRDC, and NEEP commented in 

support of the standard levels in the 

direct final rule.5

B. Adverse Comments Received on the 

Direct Final Rule 

DOE received several adverse 

comments from private citizens. To 

make the comment summary and 

response easier to follow, the 

commenters are identified by their 

comment number. 678

Comment 15 stated that DOE should 

withdraw the direct final rule and move 

to a proposed rule because it failed to 

analyze several important factors. It 

stated that: (1) DOE did not examine the 

effects on two important demographics 

(wholesalers and retailers); (2) DOE did 

not adequately assess the significance of 

market and public institution failures 

that the rule attempts to correct; and (3) 

the life-cycle-cost savings for each 

individual dishwasher are so small that 

deviations from the agency’s 

assumption of dishwashing habits or 

other mistakes could eliminate those 

savings. 

Regarding the impacts of the 

standards on wholesalers and retailers, 

DOE estimated that the standards would 

likely cause a slight reduction in 

dishwasher unit sales. Because the 

standards are expected to result in a 

small increase in price, however, the net 

effect on revenue of wholesalers and 

retailers should be negligible. 

Regarding failures of private markets 

or public institutions, Section 1(b)(1) of 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ 58 FR 51735 

(Oct. 4, 1993), requires each agency to 

identify the problem that it intends to 

address, including, where applicable, 

the failures of private markets or public 

institutions that warrant new agency 

action. DOE addressed this requirement 

in section VI.A of the direct final rule. 

In addition, in section V.C of the direct 

final rule, DOE discussed some of the 

reasons why consumers appear to 

undervalue energy efficiency 

improvements. 

DOE acknowledges that there is 

uncertainty regarding the estimated cost 

savings. The methods and assumptions 

used by DOE, however, have been 

extensively reviewed and subject to 

public comment not only in the direct 

final rule to establish amended 

standards for dishwashers, but in other 

DOE rulemakings as well. The 

commenter did not provide any specific 

concerns with the assumptions used by 

DOE or offer any alternative 

assumptions for use in DOE’s analysis. 

Two of the private citizens questioned 

the estimated payback period in the 

direct final rule. Comment 14 notes that 

DOE estimates a median payback period 

of 11.8 years for a new dishwasher, and 

that the Consortium for Energy 

Efficiency lists the average life of a 

residential dishwasher at 11 years, 

which is shorter than the estimated 

payback period. Comment 16 notes that 

external sources estimate dishwasher 

lifetime at 9–12 years. Because the basis 

for published dishwasher lifetime 

estimates is uncertain, DOE conducted 

an analysis of residential dishwasher 

lifetimes in the field. As described in 

chapter 8 of the direct final rule 

technical support document (TSD), the 

analysis yielded an estimate of mean age 

for residential dishwashers of 

approximately 15 years, longer than the 

median payback period for the adopted 

energy conservation standards for 

standard-size dishwashers. 

Comment 14 noted that the benefits 

attributed to emissions reductions 

represent between 17 and 35 percent of 

the total benefits from the new standard, 

and because the long-term effects of 

carbon dioxide (CO2) emissions are 

unclear, DOE should not justify the 

standards using benefits from emissions 

reductions. DOE used a wide range of 

estimates of the value of avoiding a ton 

of CO2 emissions that had been 

prepared by an interagency process that 

included a thorough review of the 

relevant literature (see appendix 16–A 

of the direct final rule TSD for 

discussion). Furthermore, the benefits 

from emissions reductions are only one 

of a number of factors that DOE 

considers in assessing whether a 

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Federal Register / Vol. 77, No. 190 / Monday, October 1, 2012 / Rules and Regulations 59715 

9 DOE Docket No. EERE–2011–BT–STD–0060, 

Comment 19. 

standard is economically justified. In 

the direct final rule, the Secretary 

concluded that at trial standard level 

(TSL) 2 for residential dishwashers 

(which represents the standards 

adopted), the benefits of energy savings, 

water savings, positive net present value 

(NPV) of consumer benefits, emission 

reductions, and the estimated monetary 

value of the CO2 emissions reductions 

would outweigh the impacts on 

manufacturers. 

Comment 16 notes that the benefits 

attributed to emissions reductions 

represent a global, not a domestic, 

value. The interagency process that 

developed the Social Cost of Carbon 

(SCC) estimates used by DOE focused on 

a global measure of SCC because of the 

distinctive nature of the climate change 

problem. Under current Office of 

Management and Budget (OMB) 

guidance in OMB Circular A–4, agencies 

must analyze economically significant 

proposed and final regulations from the 

domestic perspective, and analysis from 

the international perspective is 

conducted as appropriate. A global 

measure of SCC is used in DOE 

rulemakings because climate change 

involves a global externality: Emissions 

of most greenhouse gases (GHG) 

contribute to damages around the world 

even when they are emitted in the 

United States. Consequently, to address 

the global nature of the problem, the 

SCC must incorporate the full (global) 

damages caused by GHG emissions. 

Comment 14 stated that the new 

standards may not represent a 

significant conservation of energy due to 

the presence of other energy efficiency 

programs, most notably the ENERGY 

STAR program. Comment 14 notes that 

the majority of dishwashers sold in the 

United States meet the ENERGY STAR 

specifications, which are more stringent 

than the new DOE energy conservation 

standards. DOE’s analysis measures 

energy savings relative to a base case 

that includes the projected impacts of 

other energy efficiency programs. 

Although the term ‘‘significant’’ is not 

defined in EPCA, the U.S. Court of 

Appeals, in Natural Resources Defense 

Council v. Herrington, 768 F.2d 1355, 

1373 (DC Cir. 1985), indicated that 

Congress intended ‘‘significant’’ energy 

savings in this context to be savings that 

were not ‘‘genuinely trivial.’’ DOE 

estimates that the new standards will 

save 0.07 quads of energy over the 

period from 2013 through 2047. DOE 

considers these to be significant 

reductions. 

Comments 14 and 16 stated that due 

to the increased cost of a dishwasher 

under the new standards, some 

consumers will opt not to purchase a 

new dishwasher and will continue to 

use older less-efficient models or to 

hand wash, which would negatively 

impact the water and energy savings 

attributed to the new standard. DOE’s 

analysis accounted for the possibility 

that some consumers may opt not to 

purchase new energy efficient 

dishwashers, and the estimated savings 

reflect this possibility. 

C. Other Comments on the Direct Final 

Rule 

Although AHAM expressed support 

for the direct final rule, AHAM raised 

several points that it clarified were not 

intended as adverse comments.9

First, AHAM noted that the 

compliance date for the amended 

dishwasher standards represents an 

unusual case in which less lead time 

than usual is acceptable because 

manufacturers agreed to the shorter lead 

time as part of the consensus agreement. 

AHAM noted that ordinarily, and going 

forward, the statutory lead time of 3 

years from the date of publication of a 

final rule adopting new or amended 

standards is necessary for manufacturers 

to design and produce products that 

comply with the new or amended 

standards. DOE acknowledges AHAM’s 

comment. 

Regarding DOE’s estimate of typical 

dishwasher cycle time, AHAM does not 

object to the 1-hour cycle time estimate 

for purposes of the direct final rule, but 

notes that it may need to be studied in 

the future and that the average cycle 

time could be longer than 1 hour. DOE 

acknowledges AHAM’s comment. 

Regarding dishwasher performance, 

AHAM agrees that the efficiency levels 

in the direct final rule are not likely to 

adversely impact performance, but 

states that more stringent levels could 

adversely impact performance. AHAM 

stated that, as efficiency and water 

standards levels become more stringent, 

it may be necessary to evaluate 

performance in DOE’s analysis. DOE 

acknowledges AHAM’s comment. 

AHAM opposed DOE’s use of the 

Residential Energy Consumption Survey 

(RECS) and similar data for its energy 

and water use analysis. DOE 

acknowledges AHAM’s comment. DOE 

uses RECS data for the energy and water 

use for the reasons explained in the 

direct final rule. 77 FR 31918, 31931 

(May 30, 2012). 

AHAM stated that the burden 

associated with reporting for 

certification is substantially more than 

20 hours. It expressed hope that DOE 

will amend its certification, compliance, 

and enforcement rule to conform the 

scope of its annual report to the Federal 

Trade Commission report. DOE 

acknowledges AHAM’s comment. 

AHAM continues to oppose the use of 

experience curves in the projection of 

consumer product prices. DOE used 

experience curves to project product 

prices for dishwashers for the reasons 

stated in the direct final rule. 77 FR 

31918, 31933 (May 30, 2012). 

AHAM stated that any CO2 analysis 

should include CO2 emissions caused 

indirectly, as well as directly, from a 

standards change, such as increased 

carbon emissions required to 

manufacture a product at a given 

standard level. DOE has begun to 

include CO2 emissions that occur in the 

full fuel cycle, which includes 

emissions that occur in production and 

transportation of fuels. DOE continues 

to believe that it is inappropriate to 

include emissions that occur in 

manufacturing or transport of 

appliances. EPCA directs DOE to 

consider the total projected amount of 

energy savings likely to result directly 

from a standard, and DOE interprets this 

to include only energy consumed at the 

point of use and in the production, 

processing and transportation of fuels 

used by appliances or equipment. 

III. 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 in 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. 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 

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59716 Federal Register / Vol. 77, No. 190 / Monday, October 1, 2012 / Rules and Regulations 

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). 

IV. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA, 

5 U.S.C. 601 et seq.) requires 

preparation of a regulatory flexibility 

analysis for any rule that by law must 

be proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. As required by 

Executive Order 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(Aug. 16, 2002), DOE published 

procedures and policies on February 19, 

2003, to ensure that the potential 

impacts of its rules on small entities are 

properly considered during the 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s Web site (www.gc.doe.gov). 

DOE reviewed the direct final rule 

and corresponding NOPR pursuant to 

the RFA and the policies and 

procedures discussed above. DOE 

certifies that the standards in the direct 

final rule will not have a significant 

impact on a substantial number of small 

entities. The factual basis for this 

certification is set forth below. DOE has 

considered the comments received on 

the economic impacts of the rule in 

adopting the standards set forth in the 

direct final rule; responses to these 

comments are provided in section II. 

For manufacturers of residential 

dishwashers, the Small Business 

Administration (SBA) has set a size 

threshold, which defines those entities 

classified as ‘‘small businesses’’ for the 

purposes of the statute. DOE used the 

SBA’s small business size standards to 

determine whether any small entities 

would be subject to the requirements of 

the rule. 65 FR 30836, 30848 (May 15, 

2000), as amended at 65 FR 53533, 

53544 (Sept. 5, 2000) and codified at 13 

CFR part 121.The size standards are 

listed by North American Industry 

Classification System (NAICS) code and 

industry description and are available 

at: http://www.sba.gov/sites/default/ 

files/files/Size_Standards_Table.pdf. 

Residential dishwasher manufacturing 

is classified under NAICS 335228, 

‘‘Other Major Household Appliance 

Manufacturing.’’ The SBA sets a 

threshold of 500 employees or less for 

an entity to be considered as a small 

business for this category. 

To estimate the number of small 

businesses which could be impacted by 

the amended energy conservation 

standards, DOE conducted a market 

survey using all available public 

information to identify potential small 

manufacturers. DOE’s research included 

the AHAM membership directory, 

product databases (Consortium for 

Energy Efficiency (CEE), California 

Energy Commission (CEC), and 

ENERGY STAR databases) and 

individual company Web sites to find 

potential small business manufacturers. 

DOE also asked interested parties and 

industry representatives if they were 

aware of any other small business 

manufacturers during manufacturer 

interviews and at previous DOE public 

meetings. DOE reviewed all publicly 

available data and contacted various 

companies, as necessary, to determine 

whether they met the SBA’s definition 

of a small business manufacturer of 

covered residential dishwashers. DOE 

screened out companies that did not 

offer products covered by this 

rulemaking, did not meet the definition 

of a ‘‘small business,’’ or are foreign 

owned and operated. 

Almost half of residential 

dishwashers are currently manufactured 

in the United States by one corporation 

that accounts for approximately 49 

percent of the total market. Together, 

this manufacturer and three other 

manufacturers that do not meet the 

definition of a small business 

manufacturer comprise 99 percent of the 

residential dishwasher market. The 

small portion of the remaining 

residential dishwasher market 

(approximately 57,000 shipments) is 

supplied by a combination of 

approximately 15 international and 

domestic companies, all of which have 

small market shares. These companies 

are either foreign owned and operated 

or exceed the SBA’s employment 

threshold for consideration as a small 

business under the appropriate NAICS 

code. Therefore, DOE did not identify 

any small business manufacturers of 

dishwashers. DOE received no 

comments on its estimate and retains 

this estimate for the certification. 

Based on the discussion above, DOE 

continues to certify that the standards 

for residential dishwashers set forth in 

today’s rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, DOE has not prepared a 

regulatory flexibility analysis for this 

rulemaking. DOE transmitted the 

certification to the SBA as required by 

5 U.S.C. 605(b). 

V. National Environmental Policy Act 

Pursuant to the National 

Environmental Policy Act (NEPA) of 

1969, DOE has determined that the 

direct final rule fits within the category 

of actions included in Categorical 

Exclusion (CX) B5.1 and otherwise 

meets the requirements for application 

of a CX. See 10 CFR Part 1021, App. B, 

B5.1(b); 1021.410(b) and Appendix B, 

B(1)–(5). The rule fits within the 

category of actions because it is a 

rulemaking that establishes energy 

conservation standards for consumer 

products or industrial equipment, and 

for which none of the exceptions 

identified in CX B5.1(b) apply. 

Therefore, DOE has made a CX 

determination for this rulemaking, and 

DOE does not need to prepare an 

Environmental Assessment or 

Environmental Impact Statement for 

this rule. DOE’s CX determination or 

this direct final rule is available at 

http://cxnepa.energy.gov. 

VI. 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 dishwashers 

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 

September 27, 2012. Compliance with 

these standards is required on May 30, 

2013. 

Issued in Washington, DC, on September 

25, 2012. 

David Danielson, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

Note: The following will not appear in the 

Code of Federal Regulations: 

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[FR Doc. 2012–23953 Filed 9–28–12; 8:45 am] 

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