Energy Conservation Program: Decision and Order Granting a Waiver to CNA International, Inc. From the Department of Energy Dishwashers Test Procedure

AGENCY:

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

ACTION:

Notification of decision and order.

SUMMARY:

The U.S. Department of Energy (“DOE”) gives notice of a Decision and Order (Case Number 2020-008) that grants to CNA International, Inc. (“CNA”) a waiver from specified portions of the DOE test procedure for determining the energy and water consumption of specified dishwashers. Under the Decision and Order CNA is required to test and rate the specified basic model of its dishwasher in accordance with the alternate test procedure specified in the Decision and Order.

DATES:

The Decision and Order is effective on December 9, 2020. The Decision and Order will terminate upon the compliance date of any future amendment to the test procedure for dishwashers located at title 10 of the Code of Federal Regulations (“CFR”), part 430, subpart B, appendix C1 that addresses the issues presented in this waiver. At such time, CNA must use the relevant test procedure for this product for any testing to demonstrate compliance with the applicable standards, and any other representations of energy use.

FOR FURTHER INFORMATION CONTACT:

Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Email: AS_Waiver_Requests@ee.doe.gov.

Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-33, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585-0103. Telephone: (202) 586-7796. Email: Elizabeth.Kohl@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

By letter dated June 30, 2020, CNA filed a petition for waiver and a petition for interim waiver from the DOE test procedure applicable to dishwashers set forth in Appendix C1. CNA sought a waiver for a non-soil-sensing, compact (countertop) dishwasher because CNA asserted that the product contains a design characteristic that prevents testing according to the prescribed test procedure. In its petition for waiver, CNA stated that the subject dishwasher does not have a water hookup but that water is provided by manually pouring 5 liters of tap water into a built-in tank. CNA requested DOE waive sections of the dishwasher test procedure requiring water inflow and water pressure criteria based on a water hookup that allows automatic water inflow into the machine during the test cycle. Instead, CNA suggested an alternate test procedure in which the water tank is manually filled before the test is run and water consumption is stipulated.

On September 4, 2020, DOE published a notice that announced its receipt of the petition for waiver and granted CNA an interim waiver. 85 FR 55268 (“Notice of Petition for Waiver”). In the Notice of Petition for Waiver, DOE stated that, based on review of CNA's petition, certain requirements in Appendix C1 are not applicable to the basic model for which CNA sought a waiver and DOE granted CNA an interim waiver that specified an alternate test procedure that would be appropriate for testing the subject basic model. 85 FR 55268, 55270-55271.

In the Notice of Petition for Waiver, DOE also solicited comments from interested parties on all aspects of the petition and the specified alternate test procedure. 85 FR 55268. DOE received two comments in response to the Notice of Petition for Waiver, and an additional comment response on behalf of CNA.

After reviewing these comments, DOE has concluded that absent a waiver, the basic model identified by CNA in its petition cannot be tested and rated for energy and water consumption on a basis representative of its true energy and water consumption characteristics. DOE has determined that the alternate test procedure granted in the interim waiver, with additional clarifying modifications, will allow for the accurate measurement of the energy and water use of the product while alleviating the problems CNA identified regarding testing the specified basic model according to DOE's applicable dishwashers test procedure.

In accordance with Title 10 of the Code of Federal Regulations (10 CFR 430.27(f)(2)), DOE gives notice of the issuance of its Decision and Order as set forth below. The Decision and Order grants CNA a waiver from the applicable test procedure at 10 CFR part 430, subpart B, appendix C1 for a specified basic model of dishwashers, and provides that CNA must test and rate such products using the alternate test procedure specified in the Decision and Order. CNA's representations concerning the energy and water consumption of the specified basic models must be based on testing according to the provisions and restrictions in the alternate test procedure set forth in the Decision and Order, and the representations must fairly disclose the test results. Distributors, retailers, and private labelers are held to the same requirements when making representations regarding the energy and water consumption of these products. (42 U.S.C. 6293(c))

Consistent with 10 CFR 430.27(j), not later than February 8, 2021, any manufacturer currently distributing in commerce in the United States products employing a technology or characteristic that results in the same need for a waiver from the applicable test procedure must submit a petition for waiver. Manufacturers not currently distributing such products in commerce in the United States must petition for and be granted a waiver prior to the distribution in commerce of those products in the United States. 10 CFR 430.27(j). Manufacturers may also submit a request for interim waiver pursuant to the requirements of 10 CFR 430.27.

Signing Authority

This document of the Department of Energy was signed on December 4, 2020, by Daniel R Simmons, Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register.

Case #2020-008 Decision and Order

I. Background and Authority

The Energy Policy and Conservation Act, as amended (“EPCA”), authorizes the U.S. Department of Energy (“DOE”) to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency for certain types of consumer products. These products include dishwashers, the focus of this document. (42 U.S.C. 6292(a)(6))

The energy conservation program under EPCA consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that product (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the product complies with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C.6293(b)(3)) The test procedure for dishwashers is contained at 10 CFR part 430, subpart B, appendix C1, “Uniform Test Method for Measuring the Energy Consumption of Dishwashers” (“Appendix C1”).

Any interested person may submit a petition for waiver from DOE's test procedure requirements. 10 CFR 430.27(a)(1). DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(f)(2). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures. Id.

II. CNA's Petition for Waiver: Assertions and Determinations

By letter dated June 30, 2020, CNA filed a petition for waiver and a petition for interim waiver from the DOE test procedure applicable to dishwashers set forth in Appendix C1. CNA sought a waiver for a non-soil-sensing, compact (countertop) dishwasher because CNA asserted that the product contains a design characteristic that prevents testing according to the prescribed test procedure. In its petition for waiver, CNA stated that the subject dishwasher does not have a water hookup but that water is provided by manually pouring 5 liters of tap water into a built-in tank. CNA requested DOE waive sections of the dishwasher test procedure requiring water inflow and water pressure criteria based on a water hookup that allows automatic water inflow into the machine during the test cycle. Instead, CNA suggested an alternate test procedure in which the water tank is manually filled before the test is run and water consumption is stipulated.

On September 4, 2020, DOE published a notice that announced its receipt of the petition for waiver and granted CNA an interim waiver. 85 FR 55268 (“Notice of Petition for Waiver”). In the Notice of Petition for Waiver, DOE reviewed CNA's application for an interim waiver and the alternate test procedure requested by CNA. DOE stated that, based on review of CNA's petition, the requirements for automatic filling of water into the dishwasher tub that are currently specified in Appendix C1 are not applicable to the basic model for which CNA sought a waiver and instead specified requirements for manually filling the water. 85 FR 55268, 55270. In particular, DOE stated that the water pressure, water meter, water pressure gauge, and water consumption requirements specified in sections 2.4, 3.3, 3.4, and 4.1.3 of Appendix C1 are not applicable because these requirements are for automatic filling of water into the dishwasher. Id. Additionally, DOE prescribed an alternate test procedure specifying that for the basic model of compact dishwasher for which CNA sought a waiver, which does not have a direct water line, the built-in reservoir must be manually filled to the full 5-liter reservoir capacity stated by the manufacturer using water at a temperature in accordance with section 2.3.3 of Appendix C1. 85 FR 55268, 55271. DOE also specified modifications to the detergent requirements in section 2.9 and 2.10.2 of Appendix C1; for section 2.9 of Appendix C1, the alternate test procedure provides that the measurement of the prewash and main wash fill water volumes need not be taken, and for section 2.10.2 of Appendix C1, DOE specified that the main wash water volume for detergent dose measurement is 0.396 gallons. Id. Finally, in section 5.4.1 of Appendix C1, DOE specified that for the compact dishwasher basic model that is the subject of the waiver that does not have a direct water line, the water consumption is equal to 4.8 liters, which is the volume of water used in the test cycle. Id.

In the Notice of Petition for Waiver, DOE also solicited comments from interested parties on all aspects of the petition and the specified alternate test procedure. 85 FR 55268. DOE received comments in response to the Notice of Petition for Waiver, one from Whirlpool Corporation (“Whirlpool”) and one from Pacific Gas and Electric Company, San Diego Gas and Electric, and Southern California Edison, collectively known as the California Investor-Owned Utilities (“CA IOUs”).

Whirlpool questioned the specification in the Notice of Petition for Waiver to fill the built-in water reservoir to the full 5-liter reservoir capacity stated by the manufacturer. (Whirlpool, No. 0003, at p. 1). Instead, Whirlpool recommended that the alternate test procedure state, “manually fill the built-in water reservoir to the full reservoir capacity stated by the manufacturer.” Whirlpool commented that using the manufacturer-stated reservoir capacity (as opposed to the specific, 5-liter volume) would address any future variation in reservoir capacity and would also ensure that future manually filled dishwashers with reservoirs are not bound to a 5-liter capacity. Id. Whirlpool additionally commented that the Notice of Petition for Waiver should not stipulate that the water consumption is equal to 4.8 liters for manually filled compact dishwashers. (Whirlpool, No. 0003, at p. 2) Instead, Whirlpool recommended measuring the actual water consumption as the difference, in terms of water volume or weight, between water in the reservoir before the test cycle and after the test cycle. Id.

The CA IOUs commented that they generally agree with the alternate test procedure provided in the Notice of Petition for Waiver but that the test procedure would allow water in the tank to deviate from Appendix C1 temperature tolerances, possibly resulting in a more efficient measured wash cycle than would exist under standard test tolerances. (CA IOUs, No. 0004, at p. 1, 2) The CA IOUs further stated that the interim waiver test procedure only requires that water at 50 degrees Fahrenheit (“°F”) ± 2 °F be filled in the tank at the start of the test, but does not include any provisions to maintain the water temperature over the duration of the test. (CA IOUs, No. 0004, at p. 2) The CA IOUs commented that if the temperature is not maintained over the duration of the test, the worst-case scenario would be that the water in the built-in reservoir could warm up by potentially 20 °F, to the room temperature in the test lab. Id. The CA IOUs recommended using a direct water-cooling system to keep the water in the reservoir at 50 °F ± 2 °F for the duration of the test to ensure that the energy consumption results are comparable to those of other compact dishwashers and reflect the performance of the unit under the Appendix C1 test procedure conditions. Id. On October 15, 2020, Harris, Wiltshire & Grannis LLP submitted a letter to DOE providing CNA's response to the CA IOUs' comments. CNA noted that the proposed test procedure in the Notice of Petition for Waiver requires the supply water to be introduced and maintained at 50 °F ± 2 °F, in accordance with section 2.3.3 of Appendix C1. (CNA, No. 0005 at p. 1) CNA stated that the test procedure proposed in the Notice of Petition for Waiver would therefore not allow the manually filled water in the built-in reservoir to warm up to the extent that its temperature exceeds the prescribed tolerance of Appendix C1. Id. CNA did not describe the type of equipment or methods that would be used to maintain the temperature within the specified tolerance over the course of the test cycle.

In response to Whirlpool's comments, DOE notes that the waiver granted in this Decision and Order is for the specific basic model specified by CNA, which has a built-in reservoir capacity of 5 liters and consumes 4.8 liters during a test cycle. If there were to be any future variation in reservoir capacity, or if in the future other manually-filled dishwashers with reservoirs are available on the market, this Decision and Order would not be applicable to those basic models and a new waiver petition would need to be submitted to DOE. See 10 CFR 430.27(g) and (j). Therefore, DOE is maintaining the specific water volumes in this Decision and Order for the specific basic model to which this waiver is applicable, and clarifying that the manual fill volume applies to each preconditioning cycle as well as the test cycle. As soon as practicable after the granting of any waiver, DOE will publish in the Federal Register a notice of proposed rulemaking to amend its regulations so as to eliminate any need for the continuation of such waiver. 10 CFR 430.27(l). As soon thereafter as practicable, DOE will publish in the Federal Register a final rule. Id. At such time, DOE will consider specifying generally applicable requirements regarding water volume capacity.

Additionally, DOE is not requiring the measurement of the actual water consumption as suggested by Whirlpool, because a procedure to weigh the remaining water in the reservoir may be unduly burdensome. As indicated by the materials reviewed, the water reservoir of the basic model specified in CNA's petition is integrated into the dishwasher (i.e., it cannot be removed). DOE is unaware of a method to remove the remaining water completely without introducing potential variability between tests. The additional burden of removing the remaining water from the reservoir would not ensure any more accurate of a result than that specified in the Notice of Petition for Waiver and specified in this Decision and Order.

In response to the comments from the CA IOUs and CNA regarding maintaining water temperature over the duration of the test, the referenced test procedure provision requires maintaining the water temperature of the input water. See section 2.3.3. of Appendix C1. This test condition reflects the typical installation for dishwashers connected to a water source that remains at a constant temperature during operation. In the present case, as during actual consumer use, the water is introduced to the built-in reservoir at the supply temperature and then held briefly in the internal reservoir subject to ambient conditions prior to initiation of a usage cycle. Requiring during testing that the water in the reservoir maintain a constant temperature of 50° ±2 °F throughout the cycle would not be representative of the average use of the dishwasher in actual use.

While DOE does not have data to support any particular length of time during which the water in the reservoir would warm up beyond the ±2 °F specified in the test procedure, DOE notes that the user manual for this basic model provides a sequence of operations for initiating a wash cycle as follows:

(1) Press the power button;

(2) Open the tank lid on the top of the dishwasher and pour 5 liters of water into the water tank;

(3) Select the desired function using the Wash Mode buttons, and then push the Start/Pause button; if the [Start/Pause button] is not pressed, the unit will start the wash cycle automatically after 10 seconds.

NOTE:

If no buttons are pressed after the power is turned on, the unit will automatically go back to Standby mode after 2 minutes.

Given these user manual specifications, DOE is including in the alternate test procedure a 2-minute maximum duration for starting the test cycle after preparing the unit for testing, including filling the built-in reservoir. The specified 2-minute duration from powering on the dishwasher to reverting to standby mode shows that users would start a wash cycle within this time period during typical use. Starting a test cycle within this 2-minute period would produce results that are representative of actual use.

Therefore, the alternate test procedure specified in this Decision and Order requires that the test cycle must begin within two minutes after powering on the dishwasher, as specified in the manufacturer instructions. This time period includes filling water in the built-in reservoir, consistent with the manufacturer instructions.

For the reasons explained here and in the Notice of Petition for Waiver, absent a waiver the basic model identified by CNA in its petition cannot be tested and rated for energy and water consumption on a basis representative of its true energy and water consumption characteristics. DOE has reviewed the recommended procedure suggested by CNA and concludes that, as modified in this Decision and Order, it will allow for the accurate measurement of the energy and water use of the product, while alleviating the testing problems associated with CNA's implementation of DOE's applicable dishwashers test procedure for the specified basic model. DOE specifies a minor modification to CNA's recommended test procedure, which is to begin the test cycle within two minutes after powering on the dishwasher and filling water in the built-in reservoir. This update is expected to produce a representative measure of energy efficiency.

Thus, DOE is requiring that CNA test and rate the specified dishwasher basic model according to the alternate test procedure specified in this Decision and Order, which is similar to the procedure provided in the interim waiver, but includes minor modifications following consideration of stakeholder comments.

This Decision and Order is applicable only to the basic model listed and does not extend to any other basic models. DOE evaluates and grants waivers for only those basic models specifically set out in the petition, not future models that may be manufactured by the petitioner. CNA may request that DOE extend the scope of this waiver to include additional basic models that employ the same technology as those listed in this waiver. 10 CFR 430.27(g). CNA may also submit another petition for waiver from the test procedure for additional basic models that employ a different technology and meet the criteria for test procedure waivers. 10 CFR 430.27(a)(1).

DOE notes that it may modify or rescind the waiver at any time upon DOE's determination that the factual basis underlying the petition for waiver is incorrect, or upon a determination that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. 10 CFR 430.27(k)(1). Likewise, CNA may request that DOE rescind or modify the waiver if the company discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 430.27(k)(2).

As set forth above, the test procedure specified in this Decision and Order is not the same as the test procedure offered by CNA. If CNA believes that the alternate test method it suggested provides representative results and is less burdensome than the test method required by this Decision and Order, CNA may submit a request for modification under 10 CFR 430.27(k)(2)/431.401(k)(2) that addresses the concerns that DOE has specified with that procedure. CNA may also submit another less burdensome alternative test procedure not expressly considered in this notice under the same provision.

III. Consultations With Other Agencies

In accordance with 10 CFR 430.27(f)(2), DOE consulted with the Federal Trade Commission staff concerning the CNA petition for waiver.

IV. Order

After careful consideration of all the material that was submitted by CNA, and comments received, in this matter, it is ORDERED that:

(1) CNA must, as of the date of publication of this Order in the Federal Register, test and rate the following dishwasher basic model with the alternate test procedure as set forth in paragraph (2):

(2) The alternate test procedure for the CNA basic model listed in paragraph (1) of this Order is the test procedure for dishwashers prescribed by DOE at 10 CFR part 430, subpart B, appendix C1, with the modifications provided below. All other requirements of Appendix C1 and DOE's other relevant regulations remain applicable.

In section 2.4, Water pressure, add at the end of the section:

For compact dishwashers that do not have a direct water line, these water pressure conditions do not apply because the water will be added manually according to section 2.6.2.1.

Following section 2.6.2, Non-soil-sensing dishwashers to be tested at a nominal inlet temperature of 50 °F or 120 °F, add section 2.6.2.1 to read:

2.6.2.1 For compact dishwashers that do not have a direct water line, power on the dishwasher and then manually fill the built-in water reservoir to the full 5-liter reservoir capacity stated by the manufacturer, using water at a temperature in accordance with section 2.3.3 of this appendix. Begin the test cycle within two minutes after powering on the dishwasher, as specified in the manufacturer instructions.

In section 2.9, Preconditioning requirements, add at the end of the section:

For compact dishwashers that do not have a direct water line, for each preconditioning cycle as defined in section 1.15 of this appendix, manually fill the built-in water reservoir to the full 5-liter reservoir capacity stated by the manufacturer, using water at a temperature in accordance with section 2.3.3 of this appendix. Measurement of the prewash fill water volume, V_pw, if any, and measurement of the main wash fill water volume, V_mw, are not taken.

In section 2.10.2, Main Wash Detergent Dosing, add at the end of the section:

For compact dishwashers that do not have a direct water line, the V_mw is equal to 0.396 gallons (1.5 liters), which is the water capacity used in the main wash stage of the test cycle.

In section 3.3, Water meter, add at the end of the section:

For compact dishwashers that do not have a direct water line, these water meter conditions do not apply. Water is added manually pursuant to section 2.6.2.1 of this appendix.

In section 3.4, Water pressure gauge, add at the end of the section:

For compact dishwashers that do not have a direct water line, these water pressure gauge conditions do not apply. Water is added manually pursuant to section 2.6.2.1 of this appendix.

In section 4.1.3, Water consumption, add at the end of the section:

For compact dishwashers that do not have a direct water line, these water consumption measurement requirements do not apply. Water is added manually pursuant to section 2.6.2.1 of this appendix.

In section 5.4.1, Water consumption for non-soil-sensing electric dishwashers using electrically heated, gas-heated, or oil-heated water, add at the end of the section:

For compact dishwashers that do not have a direct water line, the water consumption is equal to 4.8 liters, which is the volume of water used in the test cycle.

(3) Representations. CNA may not make representations about the energy and water use of the basic model listed in paragraph (1) of this Order for compliance or marketing, unless the basic model has been tested in accordance with the provisions set forth above and such representations fairly disclose the results of such testing.

(4) This waiver shall remain in effect according to the provisions of 10 CFR 430.27.

(5) DOE issues this waiver on the condition that the statements, representations, and information provided by CNA are valid. If CNA makes any modifications to the controls or configurations of the basic model, such modifications will render the waiver invalid with respect to that basic model, and CNA will either be required to use the current Federal test method or submit a new application for a test procedure waiver. DOE may rescind or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of a basic model's true energy consumption characteristics. 10 CFR 430.27(k)(1). Likewise, CNA may request that DOE rescind or modify the waiver if CNA discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 430.27(k)(2).

(6) CNA remains obligated to fulfill any certification requirements set forth at 10 CFR part 429.