[Federal Register Volume 86, Number 93 (Monday, May 17, 2021)]
[Notices]
[Pages 26712-26715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10292]


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DEPARTMENT OF ENERGY

[Case Number 2020-020; EERE-2020-BT-WAV-0035]


Energy Conservation Program: Decision and Order Granting a Waiver 
to Ningbo FOTILE Kitchen Ware Co. Ltd. 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.

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SUMMARY: The U.S. Department of Energy (``DOE'') gives notice of a 
Decision and Order (Case Number 2020-020) that grants to Ningbo FOTILE 
Kitchen Ware Co. Ltd. (``FOTILE'') 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, FOTILE is 
required to test and rate the specified basic models of its dishwashers 
in accordance with the alternate test procedure set forth in the 
Decision and Order.

DATES: The Decision and Order is effective on May 17, 2021.

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: 
[email protected].
    Ms. Amelia Whiting, 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) 586-2588. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 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, FOTILE 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.
    In accordance with section 430.27(f)(2) of title 10 of the CFR, DOE 
hereby provides notice of the issuance of its Decision and Order as set 
forth below. The Decision and Order grants FOTILE a waiver from the 
applicable test procedure at 10 CFR part 430, subpart B, appendix C1 
for specified basic models of dishwashers, and provides that FOTILE 
must test and rate such products using the alternate test procedure 
specified in the Decision and Order. FOTILE'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 any such 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 July 16, 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

[[Page 26713]]

waiver. Manufacturers not currently distributing such products/
equipment in commerce in the United States must petition for and be 
granted a waiver prior to the distribution in commerce of those 
products/that equipment in the United States. Manufacturers may also 
submit a request for interim waiver pursuant to the requirements of 10 
CFR 430.27. 10 CFR 430.27(j).

Case #2020-020

Decision and Order

I. Background and Authority

    The Energy Policy and Conservation Act, as amended (``EPCA''),\1\ 
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 \2\ of 
EPCA, Public Law 94-163 (42 U.S.C. 6291-6309, as codified), 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))
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    \1\ All references to EPCA in this document refer to the statute 
as amended through the Energy Act of 2020, Public Law 116-260 (Dec. 
27, 2020).
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated as Part A.
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    Under EPCA, the energy conservation program 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 set forth 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.
    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 to that effect. 
Id. When DOE amends the test procedure to address the issues presented 
in a waiver, the waiver will automatically terminate on the date on 
which use of that test procedure is required to demonstrate compliance. 
10 CFR 430.27(h)(3).

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

    On October 15, 2020, DOE received from FOTILE a petition for waiver 
and a petition for interim waiver from the DOE test procedure 
applicable to dishwashers set forth in Appendix C1. In its petition for 
waiver, FOTILE stated that the subject dishwasher models, which FOTILE 
described as ``in-sink'' compact dishwashers, do not have a main 
detergent compartment and have different installation instructions than 
under-counter or under-sink dishwashers. FOTILE requested that DOE 
waive sections of the dishwasher test procedure pertaining to 
installation requirements and placement of the detergent. FOTILE 
suggested an alternate test procedure to install the dishwasher basic 
models from the top of a rectangular enclosure (as opposed to the 
front) and to specify placement of the detergent directly into the 
dishwasher chamber.
    DOE posted the petition on the DOE website, absent any information 
for which petitioner requested treatment as confidential business 
information, at: https://www.regulations.gov/docket?D=EERE-2020-BT-WAV-0035-0001. On February 8, 2021, DOE published a notification that 
announced its receipt of the petition for waiver and granted FOTILE an 
interim waiver. 86 FR 8548 (``Notification of Petition for Waiver''). 
In the Notification of Petition for Waiver, DOE reviewed FOTILE's 
application for an interim waiver and the alternate test procedure 
requested by FOTILE. DOE also reviewed manufacturer information 
available on-line, including the operation manual \3\ for the specified 
basic models. Based on the assertions in the petition and DOE's review, 
DOE initially determined that the installation and detergent placement 
characteristics of the subject basic models prevent testing of the 
basic models according to the prescribed test procedure. 86 FR 8548, 
8551. Also based on this review, DOE initially determined that the 
suggested alternate test procedure appeared to allow for the accurate 
measurement of the energy and water consumption of the specified basic 
models, while alleviating the testing problems associated with FOTILE's 
implementation of dishwasher testing for these basic models. Id. 
Consequently, DOE determined that FOTILE's petition for waiver likely 
would be granted. Id. Furthermore, DOE determined that it was desirable 
for public policy reasons to grant FOTILE immediate relief pending a 
determination of the petition for waiver. Id.
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    \3\ The operation manual is available in the docket at https://www.regulations.gov/document/EERE-2020-BT-WAV-0035-0002.
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    In the Notification of Petition for Waiver, DOE noted that FOTILE's 
alternate test procedure specified a test enclosure that differs from 
the installation instructions provided in the operation manual. 86 FR 
8548, 8549. Specifically, the alternate test procedure retained a 
requirement specified in Section 2.1 of Appendix C1 that the enclosure 
be brought into the closest contact with the appliance as allowed by 
the configuration of the dishwasher. In the case of FOTILE's basic 
model, this would include close contact

[[Page 26714]]

between the bottom of the enclosure and the underside of the in-sink 
dishwasher. The height of the product is 21\5/16\ inches (541 
millimeters (``mm'')). Bringing the bottom of the enclosure into the 
closest possible contact with the dishwasher (i.e., creating an 
enclosure height of around 21\5/16\ inches) would conflict with the 
installation instructions in the operation manual, which specify a 
minimum enclosure height of 35\7/16\ inches (900 mm). DOE stated that 
this difference in installation may potentially result in differing 
heat losses from the dishwasher during testing as compared to 
installation in the field that could impact energy consumption during 
the cycle. Id. DOE requested comment on any such potential impacts on 
energy consumption as a result of the test enclosure specifications in 
the alternate test procedure, and whether installation should be 
required in accordance with the operation manual to provide results 
that are more representative of average use. Id. DOE also solicited 
comments from interested parties on all other aspects of the petition 
and the specified alternate test procedure. Id. DOE received no 
comments in response to the Notification of Petition for Waiver.
    For the reasons explained here and in the Notification of Petition 
for Waiver, absent a waiver, the basic models identified by FOTILE in 
its petition cannot be tested and rated for energy and water 
consumption on a basis representative of their true energy consumption 
characteristics. DOE has reviewed the recommended procedure suggested 
by FOTILE and concludes that, with the modification discussed below, it 
will allow for the accurate measurement of the energy use of the 
product, while alleviating the testing problems associated with 
FOTILE's implementation of DOE's applicable dishwashers test procedure 
for the specified basic models. The alternate test procedure required 
under this Decision and Order modifies that specified in the Interim 
Waiver Order. In the alternate test procedure required under this 
Decision and Order, the height of the rectangular test enclosure must 
be the height that provides the minimum clearances as specified in the 
manufacturer's operation manual. While DOE did not receive any comments 
on this topic in response to the Notification of Petition for Waiver, 
installing compact in-sink dishwashers according to manufacturer's 
instructions is representative, particularly since the manufacturer's 
instructions explicitly provide a minimum height for the cabinetry in 
which the dishwasher is installed. Additionally, the alternate test 
procedure requirements in the Interim Waiver Order may result in 
varying placement of the enclosure bottom, given that the drain pipe at 
the bottom of the unit could be configured differently in different 
installations, resulting in different enclosure heights corresponding 
to the closest contact that the configuration of the dishwasher would 
allow. This could introduce variability in the measured energy 
consumption. The specification to install the subject basic models 
consistent with the installation instructions provided in the operation 
manual will ensure reproducibility of test results and further ensure 
the test procedure provides results that are representative of the 
average use cycle.
    As provided in 10 CFR 430.27(i), to the extent that FOTILE has 
already certified the subject basic models using the procedure 
permitted in DOE's grant of the interim test procedure waiver, FOTILE 
is not required to re-test and re-rate those basic models so long as: 
It used that alternative procedure to certify the compliance of the 
basic model after DOE granted the company's interim waiver request; 
changes have not been made to those basic models that would cause them 
to use more energy or otherwise be less energy efficient; and FOTILE 
does not modify the certified rating.
    For subsequent certification of the subject basic models, FOTILE 
must test and rate the specified dishwasher basic models according to 
the alternate test procedure specified in this Decision and Order.
    This Decision and Order is applicable only to the basic models 
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. 
FOTILE 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). FOTILE 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, 
FOTILE 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 FOTILE. If 
FOTILE 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, FOTILE may submit a request for 
modification under 10 CFR 430.27(k)(2) that addresses the concerns that 
DOE has specified with that procedure. FOTILE may also submit another 
less burdensome alternative test procedure not expressly considered in 
this notification 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 FOTILE petition for 
waiver.

IV. Order

    After careful consideration of all the material that was submitted 
by FOTILE and the various public-facing materials (e.g., marketing 
materials, product specification sheets, and installation manuals) for 
the units identified in the petition, in this matter, it is ordered 
that:
    (1) For certifications required on and after the date of 
publication of this Order in the Federal Register, FOTILE must test and 
rate the following dishwasher basic models with the alternate test 
procedure as set forth in paragraph (2):

------------------------------------------------------------------------
                   Brand                             Basic model
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FOTILE....................................  SD2F-P1X
FOTILE....................................  SD2F-P1XL
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    (2) The alternate test procedure for the FOTILE basic models 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 2.1, Installation, add at the end of the section:

    A compact in-sink dishwasher with a combination sink must be 
installed in a rectangular enclosure constructed of nominal

[[Page 26715]]

0.374 inch (9.5 mm) plywood painted black. The enclosure must 
consist of a front, a bottom, a back, and two sides. The front, 
back, and sides of the enclosure must be brought into the closest 
contact with the appliance that the configuration of the dishwasher 
will allow. The height of the rectangular test enclosure must be the 
height that provides the minimum clearances as specified in the 
manufacturer's operation manual. The dishwasher must be installed 
from the top and mounted to the edges of the enclosure.

    In section 2.10, Detergent, add at the end of the section:

    For compact in-sink dishwashers with a combination sink that 
have neither prewash program nor a main detergent compartment, 
determine the amount of main wash detergent (in grams) to be added 
directly into the washing chamber according to section 2.10.2 of 
this appendix.

    (3) Representations. FOTILE may not make representations about the 
energy and water use of a 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, test data, and information provided by FOTILE are 
valid. If FOTILE makes any modifications to the controls or 
configurations of these basic models, such modifications will render 
the waiver invalid with respect to that basic model, and FOTILE 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, FOTILE may 
request that DOE rescind or modify the waiver if FOTILE 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) FOTILE remains obligated to fulfill any applicable requirements 
set forth at 10 CFR part 429.

Signing Authority

    This document of the Department of Energy was signed on May 11, 
2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary 
and Acting 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.

    Signed in Washington, DC, on May 12, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-10292 Filed 5-14-21; 8:45 am]
BILLING CODE 6450-01-P