JE F 1325.8 (8-89) EFG (07-90) 

### Un ted States Government 

# memorandum

DATE: July 22, 1994

REPLY TO ATTN OF: P. Marc LaFrance, EE-431 

### Departmentof Energy

SUBJECT: Draft Coordination for Clarification of Existing Clothes Washer Test Procedure Final Rule,

ACCRTS No. EE-1283 TO: Eugene Margolis, GC-72 Mark Friedrichs, PO-50 Attached for your review is a draft final rule for the clarification of the existing clothes washer test procedure to address the Whirlpool "lockout" issue. There are a considerable number of controversial issues. Most notibly is the Department's response to comments, as to how we handled the interpretation and reversed interpretation which commenters claim disrupted the competitive marketplace. Additionally, the attached final rule amendment has changed considerably, such that lockouts will no longer show any energy savings, so Whirlpool may claim that it violates the Department and Whirlpool's October 1993 agreement. Please provide yourcommentsto me by COB July 29, 1994.
Attachment .JEF1325.8 ! (8-89) EFG(Ol-90)**Un~ted**

### StatesGovernment DepartmentofEnergy 

# memorandum

DATE:

REPLYTO ATTNOF:

SUBJECT:

TO: DraftCoordinationforClarificationofExistingClothesWasherTestProcedureFinalRule, ACCRTSNo.EE-1283

. EugeneMargolis,GC-72 MarkFriedrichs,PO-50 Attachedforyourreviewisadraftfinalrulefortheclarificationoftheexistingclothes washertest procedure to address the Whirlpool "lockout" issue. There are a considerable number of controversialissues.MostnotiblyistheDepartment'sresponsetocomments,astohowwehandled theinterpretationandreversedinterpretationwhichcommentersclaimdisruptedthecompetitive marketplace.Additionally,theattachedfmalruleamendmenthaschangedconsiderably,suchthat lockoutswillnolongershowanyenergysavings,soWhirlpoolmayclaimthatitviolatesthe DepartmentandWhirlpool'sOctober1993agreement. PleaseprovideyourcommentstomebyCOBJuly29, 1994. AttachmentDEPARTMENT OF ENERGY Office of Energy-Efficiency and Renewable Energy

10 CFR Part 430 Docket No: EE-RM-93-701
Energy Conservation Program for Consumer Products.

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of

Energy.

ACTION: Final rule.

SUMMARY: The Energy Policy and Conservation Act, as amended by the National Energy Conservation Policy Act, the National Appliance Energy Conservation Act of 1987, the National Appliance Energy Conservation Amendments of 1988, and the Energy Policy Act of 1992, requires the Department of Energy (DOE or the Department) to administer an energy conservation program for certain major household appliances and commercial equipment. Among other program elements, the Act requires that standard methods of testing be prescribed for each covered product. The purpose of today's notice is to amendment the Department of Energy (DOE or the Department) clothes washer test procedure. The test procedure now provides a means to properly test clothes washers that are designed to lock out any wash/rinse temperature selection from the normal cycle.

DATES: The effective date for this document is (180 days from Federal Register publication). DEPARTMENT OF ENERGY Office of EDergy'Efficiency and Renewable Energy
10 CFR Part 430 Docket No: EE-RM-93-701 Energy Conservation Program for Consumer Products.

AGENCY:

ACTION:

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

Final rule.

The Energy Policy and Conservation Act, as amended by the National Energy Conservation Policy Act, the National Appliance Energy Conservation Act of 1987, the National Appliance Energy Conservation Amendments of 1988, and the Energy Policy Act of 1992, requires the Department of Energy (DOE or the Department) to administer an energy conservation program for certainmajor household appliances and commercial equipment. Among other program elements, the Act requires that standard methods oftesting be prescribed for each covered product. The purpose oftoday's notice is to amendment the Department of Energy (DOE or the Department) clothes washer test procedure. The test procedure now provides ameans to properly test clothes washers that are designed to lock out any wash/rinse temperature selection from the normal cycle.

DATES: The effectivedate for this document is (180 days from Federal Registerpublication).FOR FURTHER INFORMATION CONTACT:
P. Marc LaFrance U.S. Department of Energy Office of Energy Efficiency and Renewable Energy Mail Station EE-43 Forrestal Building 1000 Independence Avenue, SW Washington, DC, 20585 (202) 586-7140 Eugene Margolis, Esq. U.S. Department of Energy Office of General Counsel Mail Station GC-72 Forrestal Building 1000 Independence Avenue, SW Washington, DC, 20585 (202) 586-9507

SUPPLEMENTARY INFORMATION:
I., Introduction

A. Authority

Part B of Title III of the Energy Policy and Conservation Act, Public Law 94-163, as amended by the National Energy Conservation Policy Act, Public Law 95-619, the National Appliance Energy Conservation Act of 1987, Public Law 100-12, the National Appliance Energy Conservation Amendments of 1988, Public Law 100-357, and the Energy Policy Act of 1992, Public Law 102-486, created the Energy Conservation Program for Consumer Products other than Automobiles (Program).' The products currently subject to this Program (often referred to as "covered products") include clothes washers, the subject of today's noti ce.

' Part B of Title III of EPCA, as amended, is referred to in this proposed rule as the "Act." Part B of Title III is codified at 42 U.S.C. 6291-6309.

C:\...\WPfina1.003 2 July 25, 1994 9:20am FOR FURTHER INFORMATION CONTACT: P. Marc LaFrance

. U.S. Department of Energy Office of Energy Efficiency and Renewable Energy Mail Station EE-43 Forrestal Building 1000 Independence Avenue, SW Washington, DC, 20585 (202) 586-7140 . Eugene Margolis, Esq. U.S. Department of Energy Office ofGeneral Counsel Mail Station GC-72 Forrestal Building 1000 Independence Avenue, SW Washington, DC, 20585 (202) 586-9507
SUPPLEMENTARY INFORMATION:
I. Introduction

A. Authority

Part BofTitle III of the Energy Policy and Conservation Act, Public Law 94-163, as amended by the National Energy Conservation Policy Act, Public Law 95-619, the National Appliance Energy Conservation Act of 1987, Public Law 100-12, the National Appliance Energy Conservation Amendments of 1988, Public Law 100-357, and the Energy Policy Act of 1992, Public Law 102-486, created the Energy Conservation Program for Consumer Products other than Automobiles (Program).l The products currently subject to this Program (often referred to as IIcovered products ll) include clothes washers, the subject of today's notice.

1 Part B of Title III of EPCA, as amended, is referred to in this proposed rule as the "Act." Part B of Title III is codified at 42 U.S.C. 6291-6309. 2 C:\

...\WPfinal.003 July 25, 1994 9:20amUnder the Act, the Program consists essentially of three parts:

testing, labeling, and the Federal energy conservation standards. Violations of the standard, as determined under the test procedure, are subject to civil penalties. The Department, in consultation with the National Institute of Standards and Technology (formerly the National Bureau of Standards), is required to amend or establish new test procedures as appropriate for each of the covered products. Section 323. The purpose of the test procedures is to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and must not be unduly burdensome to conduct. Section 323(b)(3). A test procedure is not required if DOE determines by rule that, one cannot be developed. Section 323(d)(1). One hundred and eighty days after a test procedure for a product is adopted, no manufacturer may represent the energy consumption of, or the cost of energy consumed by, the product except as reflected in tests conducted according to the DOE procedure. Section 323(c)(2). However, the 180-day period referred to in section 323(c)(2) may be extended for a period of up to an additional 180 days if the Secretary determines that the requirements of section 323(c)(2) would impose undue burden. Section 323(c)(3). Test procedures appear at 10 CFR part 430, subpart B.

Section 323(e) of the Act requires DOE to determine to what extent, if any, a proposed test procedure would alter the measured energy efficiency or measured energy use of any covered product as determined under the existing test procedure. If DOE determines that an amended test procedure would alter the measured efficiency or measured energy use of a covered product, the DOE is required to amend the related energy conservation standard accordingly. In

C:\...\WPfinal.003 July 25, 1994

9:20am Under the Act, the Program consists essentiallyofthree parts: testing, labeling, and the Federal energy conservation standards. Violations ofthe standard, as determined under the test procedure, are subject to civil e, penalties. The Department, in consultation with the National Institute of Standards and Technology (formerly the National Bureau of Standards), is required to amend or establish new testprocedures as appropriate for each of the covered products. Section 323. The purpose ofthetest procedures is to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of acovered product during arepresentative average use cycle or period ofuse andmust not be unduly burdensome to conduct. Section 323(b)(3). Atest procedure is not required ifDOE determines by rule thate
one cannot be developed. Section 323(d)(1). One hundred and eighty days aftera test procedure for aproduct is adopted, no manufacturermay represent the energy consumption of, orthe cost ofenergy consumed by, the product except as reflected in tests conducted according to the DOE procedure. Section 323(c)(2). However, the 180-day period referred to in section 323(c)(2) may be extended for a period ofup to an additional 180 days ifthe Secretary determines that the requirements of section 323(c)(2) would impose undue burden. Section 323(c)(3). Test procedures appear at 10 CFR part 430, subpart B.

Section 323(e) ofthe Act requires DOE to determine to what extent, if any, aproposed test procedure would alterthemeasured energy efficiency or measured energy use of any covered product as determined under the existing test procedure. IfDOE determines that an amended test procedure would alter themeasured efficiency ormeasured energy use of a covered product, the DOE is required to amend the related energy conservation standard accordingly. In

3 c:\.•.\WPfinal.003 July 25, 1994 9:20amdetermining the amended standard, the DOE is required to measure the energy

efficiency or energy use of representative samples of covered products which minimally comply with the existing standard. The average efficiency of these representative samples, tested using the amended test procedure, constitutes the amended standard. Section 323(e)(2).

B. Background

The clothes washer test procedure was originally proposed by notice issued May 11, 1977. (42 FR 25329, May 17, 1977). Subsequently, the Department published the original clothes washer test procedure on September 28, 1977 (42 FR 49802) with the only amendment being an editorial change in the title of Appendix J on June 29, 1979. (44 FR 37938).

Whirlpool Corporation (Whirlpool) has designed a new line of clothes washers to meet the appliance energy conservation standard established by DOE that became effective May 14, 1994. Whirlpool is obligated to test these clothes washers for compliance with the new standard using the test procedure regulations set forth in 10 CFR Part 430, Subpart B, Appendix J. The new clothes washers have been designed to lock out hot water using a wash/rinse water temperature combination setting (warm rinse) in the cycle Whirlpool has designated as the "normal cycle" under the regulations. However, a warm rinse is available in all other cycles. Thus, the energy consumption in the "normal cycle" is lower than other cycles which offer more energy intensive wash/rinse water temperature combinations.

The "lockout" issue originated with Whirlpool requesting an interpretation of

C:\...\WPfinal.003 4 July 25, 1994 9:20am determining the amended standard, the DOE is required to measure the energy efficiency or energy use ofrepresentative samples ofcovered products which

- minimally comply with the existing standard. The average efficiency of these representative samples, tested using the amended test procedure, constitutes the amended standard. Section 323(e)(2).

B. Background

The clothes washer test procedure was originally proposed by notice issued May 11, 1977. (42 FR 25329, May 17, 1977). Subsequently, the Department published the original clothes washer test procedure on September 28, 1977 (42 FR 49802) with the only amendment being an editorial change in the titleofAppendix J on June 29, 1979. (44 FR 37938).
Whirlpool Corporation (Whirlpool) has designed anew line ofclothes washers to meet the appliance energy conservation standard established by DOE that became effectiveMay 14, 1994. Whirlpool is obligated to test these clothes washers for compliance with the new standard using the test procedure regulations set forth in 10 CFR Part 430, Subpart B, Appendix J. The new clothes washers have been designed to lock out hot water using awash/rinse water temperature combination setting (warm rinse) in the cycle Whirlpool has designated as the "normal cyclell under the regulations. However" awarm rinse is available in all other cycles. Thus, the energy consumption in**th~** "normal cycle" is lower than other cycles which offermore energy intensivewash/rinse water temperature combinations.

The "lockout" issue originated with Whirlpool requesting an interpretaticn of

4 C:\

...\WPfinal.003 July 25, 1994 9:20amthe test procedure from the Department in 1992, and again in early 1993. The

Department responded to these requests (December 18, 1992 and April 21, 1993 letters), disagreeing with Whirlpool's interpretation and indicating that Whirlpool must set the temperature selector to the hottest setting available after the normal cycle is selected. Whirlpool continued discussions with the Department and after further review by the Department, the Department issued a letter to Whirlpool on October 20, 1993. In the letter to Whirlpool, the Department stated, "...Whirlpool's interpretation of the test procedure is one that the Department concurs is permissible reading of the test procedure. The Department believes, however, that Whirlpool's interpretation may yield results not consistent with the objectives of the Energy Policy and Conservation Act, as amended.". In the letter, the Department continued to say that we planned on amending the test procedure to establish and clarify the testing requirements for clothes washers that do not have all of the temperature combinations available in the normal cycle. This is the purpose of today's final rule.

II. Discussion

The Department published a proposed rule (December 22, 1993, 58 FR 67710) to amend the clothes washer test procedure to address the Whirlpool clothes washer "lock out" issue. Hereafter, it is referred to as the proposed rule. A public hearing was, subsequently held on February 24, 1994. Today's final rule provides a detailed discussion about the issues raised by the various entities and provides rationale to support the amended test procedure which will resolve this issue.

C:\...\WPfinal.003 5 July 25, 1994 9:20am the test procedure from the Department in 1992, and again in early 1993. The Department responded to these requests (December 18, 1992 and April 21, 1993 letters), disagreeing with Whirlpoolls interpretation and indicating that Whirlpool must set the temperature selectorto the hottest setting available afterthe normal cycle is selected. Whirlpool continued discussions with the Department and after further review by the Department, the Department issued a lettertoWhirlpool on October 20, 1993. In the lettertoWhirlpool, the Department stated, 1I •••Whirlpool IS interpretation ofthe test procedure is one that the Department concurs is permissible reading ofthe test procedure. The Department believes, however, thatWhirlpoolls interpretationmay yield results not consistentwith the objectives ofthe Energy Policy and Conservation Act, as amended. lI • In the letter, the Department continued to say thatwe planned on amending the test procedure to establish and clarify the testing requirements for clothes washers that do not have all ofthe temperature combinations available in the normal cycle. This is the purpose oftodayls final rule.

11. Discussion

The Department published aproposed rule (December 22, 1993, 58 FR 67710) to amend the clothes washer test procedure to address the Whirlpool clothes washer IIlockoutll issue. Hereafter, itis referred to as the proposed rule." Apublic hearing was subsequently held on February 24, 1994. Todayls final rule provides adetailed.discussion about the issues raised by the various entities and provides rationale to support the amended test procedure which will resolve this issue.

5 C:\•..\WPfinal.003 July 25. 1994 9:20amThe Department received eight (8) written comments in response to the proposed

rule, and received testimony from four (4) persons at the public hearing. Written comments and/or testimonies were provided by the American Council for an Energy-Efficient Economy (ACEEE), Frigidaire company (Frigidaire), General Electric Company (GE), Maytag Corporation (Maytag), Natural Resources Defense Council (NRDC), the Oregon Department of Energy (ODOE), Speed Queen Company (Speed Queen), and Whirlpool Corporation (Whirlpool). The Department will present discussions of issues related to the test procedure interpretation and revision process raised in the comments, followed by discussion of the issues of the test procedure amendment.

A) Test procedure interpretation and revision process

The Department received numerous comments concerning the Department's process of providing the interpretation of the requirements for the "normal cycle" as they relate to the "lock out" issue, initiated by Whirlpool. Several comments opposed the amendment and the Department's interpretation. Frigidaire (No. 2 at 9) indicated that the amendment should not be adopted because it provides an unfair competitive advantage. Frigidaire also indicated that, "The procedure of negotiating and communicating the change in this matter requires improvement". Frigidaire (Oral testimony at 46) stated, "... I don't think there is a loophole that exists today. I mean, it's an incorrect interpretation, and it would require a reversal of decisions that were made last October." GE (No. 3 at 3) objected to the rulemaking and stated, "The Department's failure to notify immediately all manufacturers of its October 20, 1993 reversal of interpretation is likely to adversely affect competition within the home laundry industry sector of the economy." GE (No. 3 at 4)

C:\... \WPfinal.003 6 July 25, 1994 9:20am The Department received eight (8) written comments in response to the proposed rule, and received testimony from four (4) persons at the public hearing. Written comments and/ortestimonies were provided by theAmerican Council for
an Energy-Efficient Economy (ACEEE), Frigidairecompany (Frigidaire), General Electric Company (GE), Maytag Corporation (Maytag), Natural Resources Defense Council (NRDC), the Oregon Department of Energy (ODOE), Speed Queen Company (Speed Queen), and Whirlpool Corporation (Whirlpool). The Department will present discussions of issues related to the test procedure interpretation and revision process raised in the comments, followed by discussion ofthe issues ofthe testprocedure amendment.
A) Test procedure interpretation and revision process

The Department received numerous comments concerning the Department's process ofproviding the interpretation ofthe requirements for the IInormal cyclell as they relateto the IIlockout" issue, initiatedby Whirlpool. Several comments opposed the amendment and the Department's interpretation. Frigidaire (No.2 at 9) indicated that the amendment should not be adopted because itprovides
an unfair competitive advantage. Frigidaire also indicated that, liThe procedure ofnegotiating and communicating the change in thismatter requires improvement". Frigidaire (Oral testimony at 46) stated, "

... I don't think there is a loophole that exists today. Imean, it's an incorrect interpretation, and itwould require areversal ofdecisions thatwere made last October." GE (No.3 at 3) objected to the rulemaking and stated, liThe Department's failure to notify immediately all manufacturers of its October 20, 1993 reversal of interpretation is likelyto adversely affect competition within the home laundry industry sector ofthe economy. II GE (No.3 at 4)

6 C:\•..\WPfinal.003 July 25. 1994 9:20amstated, "The Department cannot reverse a regulatory interpretation that

substantially impacts affected parties without first providing: notice and the opportunity to comment, as required by the Administrative Procedure Act; appropriate impact analysis, as required by Executive Order 12866; and a delayed effective date, as required by the Energy policy and Conservation Act (as amended)." GE believes that the rulemaking is premature and should be withdrawn until the Department addresses the October 1993 reversal of interpretation. GE (No. 12 at 2) indicated that they believe the Department's original interpretation was correct and that no test procedure amendment is needed. GE stated that the key issue that they believe the Department's original interpretation was correct is because in the current test procedure (section 3,2.2.2) it requires the wash/rinse temperature selector to be set to the hottest setting "available". GE goes on to describe in detail why they believe the adjective "available" refers to the clothes washer verses the normal cycle. Maytag (No. 1 at 3) indicated that the Department's lack of timely notice that discussions were continuing (with Whirlpool) after July 1993 has created a situation where Maytag clothes washers may be perceived-by potential customers to have a competitive disadvantage as compared to Whirlpool's products on energy consumption and feature availability. Maytag also strongly urged the Department to adopt internal procedures designed to provide appropriate notice to all parties potentially affected by a request for a interpretative ruling. Maytag further referenced an example (10 CFR 205.80) of an interpretative procedure. Speed Queen (No. 8 at 2) indicated that they were not given a timely opportunity to comment on the exchange of interpretation documents until after the proposed rule was published. Speed Queen recommended that, "DOE should demand usage of the mechanisms in place to openly engage in interpretation requests. One such mechanism is a petition

C:\...\WPfinal.003 7 July 25, 1994 9:20am stated, liThe Department cannot reverse a regulatory interpretation that substantially impacts affected partieswithout first providing: notice and the opportunity to comment, as- required by the Administrative Procedure Act; appropriate impact analysis, as required by Executive Order 12866; and a delayed effectivedate, as required by the Energy policy and Conservation Act (as amended)." GE believes that the rulemaking is premature and should be withdrawn until the Department addresses the October 1993 reversal of interpretation. GE (No. 12 at 2) indicated that they believe the Departmentls original interpretationwas correct and that no test procedure amendment is needed. GE stated that the key issue that they believe the Departmentls original interpretationwas correct is because in the current testprocedure (section 3.2.2.2) it requires thewash/rinse temperature selectorto be set to the hottest setting "availablell • GE goes on to describe in detail why they believe the adjective "available" refers to the clothes washer verses the normal cycle. Maytag (No.1 at 3) indicated thatthe Departmentls lack of timely notice that discussions were continuing (with Whirlpool) afterJuly 1993 has created a situationwhere Maytag clothes washers may be perceived-by potential customers to have acompetitive disadvantage as compared to Whirlpool IS products on energy consumption and feature availability. Maytag also strongly urged the Department to adopt internal procedures designed to provide appropriate notice to all parties potentially affected by a request for a interpretativeruling. Maytag further referenced an example (10 CFR 205.80) ofan interpretative procedure. Speed Queen (No.8 at 2) indicated that they were not given atimely opportunity to comment on the exchange of interpretation documents until afterthe proposed rule was published. Speed Queen recommended that, "DOE should demand usage ofthe mechanisms in place to openly engage in interpretation requests.

7 One such mechanism is a petition

C:\ •••\NPfinal.003 July 25. 1994 9:20amfor a waiver to a test procedure.".

ACEEE (No. 5 at 1), NRDC (No. 10 at 2), and ODOE (No. 11 at 1) generally supported the Department's proposed rule to close the "loop hole" in the test procedures.

Whirlpool (No. 4) and (No. 9) supports the Department's process of interpretation and timeliness of notification. (TBD- General counsel position on several issues is required before we can formulate a valid response to this controversial issues)

Test procedure amendment issues

The proposed rule provided an amended test procedure which proposed testing in the most energy intensive cycle for temperature selections which are locked out of the normal cycle
. The proposed test procedure then apportioned the hot water energy consumption measured under the normal and the most energy intensive cycles, on a 75% and 25% basis, respectively. The majority of the test procedure comments dealt with this portion of the Department's proposed rule.

The Department had proposed weighting factors of 75% (normal cycle) and 25% (most energy intensive cycle) because this was based on historical consumer
usage data on the use of the normal cycle. Many commenter's were opposed to this. Maytag (No. 1 at 5) stated, "While Maytag's data indicates the "normal cycle" use to be 67%, this percentage could be dramatically impacted by the manner in which a manufacturer designs and displays its "normal cycle" for the

C:\...\WPfina1.003 $ July 25, 1994 9:20am for awaiver to atest procedure.".

ACEEE (No.5 at 1), NRDC (No. 10 at 2), and aDaE (No. 11 at 1) generally supported the Department1s proposed rule to close the Illoop hole" in the test procedures.
Whirlpool (No.4) and (No.9) supports the Department1s process of interpretation and timeliness ofnotification. (TBO- General counsel position on several issues is required beforewe can formulate avalidresponse to this controversial issues)
B) Test procedure amendment issues

The proposed rule provided an amended test procedure which proposed testing in themost energy intensivecycle for temperature selections which are locked out ofthe normal cycle. The proposed test procedure then apportioned the hot water energy consumption measured under the normal and themost energy intensive cycles, on a75% and 25% basis, respectively. The majority ofthe test procedure comments dealt with this portion ofthe Department1s proposed rule.

The Department had proposed weighting factors of75% (normal cycle) and 25% (most energy intensive cycle) because this was based on historical consumer usage data on the use ofthe normal cycle. Many commenter1s were opposed to this

..Maytag (No.1 at 5) stated, IIWhile Maytag1s data indicates the IInormal cycle" use to be 67%, this percentage could be dramatically impacted by the
manner in which amanufacturer designs and displays its "normal cycle" for the

8 c:\ •••\wpfinal.003 July 25, 1994 9:20amproduct,". Maytag proposed the use of a "test cycle" instead of the normal

cycle. The "test cycle" will be discussed below in detail. Frigidaire (No. 2 at 3) stated, "The 75/25 apportionment is inappropriate" because "Data is based on products where all temperature options are available in the normal cycle", "Data is not valid for a product with a "new" feature", "The hot water energy calculation decreases by approximately 25% with no loss in consumer utility", and "The energy standard should change (for a product w/ lock out)". GE (No.3 at 6) stated,,"We question what effect the temperature lockout feature will have on the 75%/25% cycle usage assumptions which justify the usage factors found in the calculation." ACEEE (No. 5 at 1) stated, "We are also troubled by use of 25% weighting factor for the "normal" cycle, a weighting factor which is not based on empirical measurements on how consumers would actually use washers with normal cycles different from energy-intensive cycles. Therefore, we recommend that for the present time, a 100% weighting factor be assigned to the most energy-intensive cycle, until such time that empirical data is available on how these washers will actually be used." Speed Queen (No. 8 at 2) stated, "Consumers will quickly modify their usage pattern by switching to select the cycle most nearly approximating a "normal" cycle to obtain the hot wash/warm rinse selection." NRDC (No. 10 at 2) stated, the Department would be better justified in using solely the results of the most energy intensive cycle. Since there are no statistically valid data on how consumers choose wash cycles,

Whirlpool (No. 4 at 5) and (No. 9 at 6) is the only commenter that supports the proposed apportionment. Whirlpool believes that the 75% value for use of the normal cycle has been consistent over many surveys2. They also feel that

2 Proctor and Gamble survey data from numerous years which was referenced in Whirlpools submission.

C:\...\WPfinal.003 9 July 25, 1994 9:20am product.II, Maytag proposed the use of a IItest cycle" instead ofthe nonnal cycle. The "test cycle" will be discussed below in.detail. Frigidaire (No.2 at 3) stated, liThe 75/25 apportionment is inappropriate" because IIData is based on products where all temperature options are available in the nonnal cyclell

, IIData is not valid for a product with a IInew" feature", liThe hot water energy calculation decreases by approximately 25% with no loss in consumer utility", and liThe energy standard should change (for a product

### wi lock out)", GE (No.3 at 6) stated, "We question what effect the temperature lockout feature will have on the 75%/25% cycle usage assumptions which justifythe usage factors found in the calculation. 1I ACEEE (No.5 at 1) stated, "We are also troubled by use of25% weighting factor for the "nonna'" cycle, a weighting factorwhich is not based on empirical measurements on how consumers would actually use washers with nonnal cycles different from energy-intensive cycles. Therefore, we recommend that for the present time, a 100% weighting factor be assigned to the most energy-intensive cycle, until such time that empirical data is availableon how these washers will actuallybe used." Speed Queen (No. 8at 2) stated, "Consumers wi11 qUicklymodify their usage pattern by switching to select the cyclemost nearly approximating a "nonnalll cycle to obtain'the hot wash/warm rinse selection. 1I NRDC (No. 10 at 2) stated, ",.• the Department would be betterjustifiedin using solely the results ofthemost energy intensive cycle. Since there are no statistically valid data on how consumers choose wash cycles,

..,11,
Whirlpool (No.4 at 5) and (No.9 at 6) is the only commenter that supports the proposed apportionment. Whirlpool believes that the 75% value for use of the nonnal cycle has been consistent overmany surveys2. They also feel that

2 Proctorand Gamble survey data from numerous years which was referenced in Whirlpools submission.
9 c:\ •••\WPfinal.003 July 25, 1994 9:20amthe type of cycle used is chosen first, then the temperature selection is made

second. Whirlpool also believes that the use of the most energy intensive .cycle for 25% of the time may overstate the energy consumption because consumers may use other non-normal cycles that are less energy intensive. Whirlpool basically concluded by saying that the test procedure should be amended as proposed.

The Department also received comments relative to the energy consumption of clothes washers with lock outs if they were tested in accordance with the proposed test procedure. Frigidaire (No. 2 at 7) stated that the proposed test procedure would underestimate energy consumption by 24.9% and 31.4% for a five-temperature machine and a four-temperature machine, respectively, as compared to clothes washers without warm rinse lockout. Speed Queen (No. 8 at 1) indicated that the proposed test procedure would reveal a 6% disparity because the proposed calculations did not sufficiently weight hot water usage in the most energy intensive cycle.

After careful deliberation, it is DOE's belief that using the 75/25 weighting factors is not appropriate. DOE agrees with the majority of commenters that without actual consumer use data, any weighting factors between the normal cycle and any other cycle of lockout clothes washers can only be considered as pure conjecture. The "normal" cycle of a lockout clothes washer is not the same as a normal cycle of traditional washing machines. The consumer habits of using these new clothes washers will not necessarily be the same as using the traditional non-lockout washers. Extending historical data to this type of clothes washers, as advocated by Whirlpool, is not appropriate. Furthermore, the Department did not receive convincing evidence from Whirlpool

C:\...\WPfinal.003 1 ® July 25, 1994 9:20am the type ofcycle used is chosen first, then the temperature selection ismade second. Whirlpool also believes'that the use ofthemost energy intensive cycle for 25% ofthe time may overstate the energy consumption because
consumers may use other non-normal cycles that are less energy intensive. Whirlpool basically concluded by saying that the test procedure should be amended as proposed.

The Department also received comments relativeto the energy consumption of clothes washers with lock outs ifthey were tested in accordance with the proposed test procedure. Frigidaire (No.2 at 7) stated that the proposed test procedure would underestimate energy consumption by 24.9% and 31.4% for a five-temperature machine and afour-temperature machine, respectively, as compared to clothes washers without warm rinse lockout. Speed Queen (No. 8at 1) indicated that the proposed test procedure would reveal a 6% disparity because the proposed calculations did not sufficientlyweight hot water**usa~e** in themost energy intensive cycle.

After careful deliberation, it is DOE's beliefthat using the 75/25 weighting factors is not appropriate. DOE agrees with themajority ofcommenters that without actual consumer use data, any weighting factors between the normal cycle and any other cycle of lockout clothes washers can only be considered as pure conjecture. The "normal" cycle of a lockout clothes washer is not the
same as anormal cycle oftraditional washing machines. The consumer habits ofusing these new clothes washers will not necessarily be the same as using the traditional non-lockout washers. Extending historical data to this type ofclothes washers, as advocated by Whirlpool, is not appropriate. Furthermore, the Department did not receive convincing evidence from Whirlpool

10 C:\.•.\WPfina1.003 July 25, 1994 9:20amregarding the validity of their assumption that consumers choose the cycle

selection first and the temperature combination second in washing clothes. Therefore, the Department concludes that, in the absence of credible consumer use data, the weighting factor for the most energy intensive cycle should be 100% for any washer with a wash/rinse temperature selection lockout in the normal cycle. Additionally, this will prevent any potential energy consumption and/or reporting disparity, as reported by Frigidaire or Speed Queen. The ratio of using the normal and the most energy intensive cycles when lockouts are used, could be reviewed in future test procedure rulemakings, when Temperature Use Factors are addressed and when credible actual consumer use data for these washers become available.

In today's final rule, the amended test procedure has been revised from the proposed test procedure to require use of the most energy intensive cycle for wash/rinse temperature lockouts for 100% of the time. Therefore, there is no longer.any need to prorate the energy between the normal cycle and most energy intensive cycle in the energy calculation equation. The energy consumption for all temperature selections, along with their appropriate Temperature Use Factors in the normal cycle, are combined with the energy consumption and appropriate Temperature Use Factors from the most energy intensive cycle for the locked out temperature combination(s).

The comments also revealed a concern about the possibility of other features or selections being locked out. Maytag (No. 1 at 5) provided an example of consumer habits if a,hot wash or a maximum water level were locked out. Frigidaire (Oral testimony at 35) indicated that water levels and "different things" could be locked out. Speed Queen (No. 8 at 1) indicated that the

C:\...\WPfinal.003 1 1 July 25, 1994 9:20am regarding the validity oftheir assumption that consumers choose the cycle selection first and the temperature combination second in washing clothes. Therefore, the Department concludes that, in the absence ofcredible consumer
use data, the weighting factor for themost energy intensive cycle should be 100% for any washer with awash/rinse temperature selection lockout in the normal cycle. Additionally, this will prevent any potential energy consumption and/or reporting disparity, as reported by Frigidaire orSpeed Queen. The ratio of using the normal and themost energy intensive cycles when lockouts are used, could be reviewed in future test procedure rulemakings, when Temperature Use Factors are addressed and when credible actual consumer use data for thesewashers become available.

In today's final rule, the amended test procedure has been revised from the proposed test procedure to require use ofthemost energy intensivecycle for

.wash/rinse temperature lockouts for 100% ofthe time. Therefore, there is no

longer.any need to prorate the energy between the normal cycle and most energy intensive cycle in the energy calculation equation. The energy consumption for all temperature selections, along with theirappropriate Temperature Use Factors in the normal cycle, are combined with the energy consumption and appropriate Temperature Use Factors from themost energy intensive cycle for the locked out temperature combination(s).

The comments also revealed a concern about the possibility of other features
or selections being locked out. Maytag (No. 1at 5) provided an example of
consumer habits if a hot wash or amaximum water level were locked out. Frigidaire (Oral testimony at 35) indicated thatwater levels and "different things" could be locked out. Speed Queen (No.8 at 1) indicated that the

11 C:\•••\WPfinal.003 July 25, 1994 9:20am.Department's proposal did not address hot wash, partial fills or partial timer

hot wash/warm rinse lockouts.

The Department agrees with the commenters' concern about other possible lockouts. Today's rule addresses all possible temperature selection lockouts. The Department was able to address all temperature selections because a temperature selection lockout was the subject of the proposed rule. However, other issues such as, wash time and maximum fill level, were not part of the proposedrule and it would not be appropriate for the Department to issue a final rule regarding them. The Department does not feel that a "loop hole" in the test procedure exists for the wash time or maximum fill issues. The Department believes the requirement for wash time is specified as a basic test condition (section 2.10) and any testing conducted with less time than 9.75 minutes of agitation time would be non-compliant with the requirements of the Code of Federal Regulation. In the case of maximum fill, the requirement is specified prior to the selection of the wash cycle and refers to the maximum fill of the clothes washer. The intent of the maximum fill testing portion of the test procedure is to measure the maximum energy consumption capability of the clothes washer. However, to help clarify the language regarding the maximum fill requirements, the Department has proposed minor changes in the TBD-DATE proposed rule. (FR TBD). The Department believes that any type of maximum fill or wash time lockout design would require the submission of a Petition for Waiver.

In light of all of the concerns about lockouts on the normal cycle, several commenters raised questions about the Department maintaining the requirement for testing in the "normal" cycle. Maytag (No. 1 at 5) proposed the use of a

C:\...\WPfinal.003 2 July 25, 1994 1 9:20am Department1s proposal did not address hot wash, partial fills or partial timer hot wash/warm rinse lockouts.

The Department agrees with the commenters l concern about otherpossible lockouts. Today1s rule addresses all possibletemperature selection lockouts. The Department was able to address all temperature selections because a temperature selection lockout was the subject ofthe proposed rule. However, other issues such as, wash time and maximum fill level, were not part ofthe proposed'rule and itwould not be appropriate for the Department to issue a final rule regarding them. The Department does not feel that a IIlo,op holell in the test procedure exists for thewash time ormaximum fill issues. The Department believes the requirement for wash time is specified as a basic test condition (section 2.10) and any testing conducted with less time than 9.75 minutes ofagitation time would be non-compliant with the requirements ofthe Code of Federal Regulation. In the case ofmaximum fill, the requirement is specified priorto the selection ofthe wash cycle and refers to themaximum fill of the clothes washer. The intent ofthemaximum fill testing portion of the test procedure is to measure themaximum energy consumption capability of the clothes washer. However, to help clarifythe language regarding the maximum fill requirements, the Department has proposed minor changes in the TBD-DATE proposed rule. (FRTBD). The Department believes that any type of maximum fill orwash time lockout'design would require the submission of a Petition forWaiver.

In light of all ofthe concerns about lockouts on the normal cycle, several commenters raised questions about the Department maintaining the requirement for testing in the IInormalll cycle. Maytag (No.1 at 5) proposed the use ofa

12 c:\•..\WPfinal.003 July 25, 1994 9:20amenergy test cycle which would include elements such as: minimum wash time, all

wash/rinse temperature combinations, maximum water fill and maximum spin speed. Maytag (No. 6 at 1) also provided specific changes to the test procedure for their proposed test cycle. Speed Queen (No. 8 at 1) also proposed that a test cycle be adopted with requirements very similar to Maytag's proposal. GE (No. 12 at 4) supported the Maytag proposal of a test cycle, if the Department continued with the amendment (as discussed earlier). ODOE (No. 11 at 1) supported the Maytag proposal of a test cycle. ACEEE (No. 5 at 2) indicated that the Department could define specific cycles as proposed by Maytag, although they felt that it should be done in a subsequent rulemaking.;

The Department found the concept of an alternate test cycle to be interesting, although, this was not the intention of the proposed rule. Since this had not been proposed and available for comment by all interested parties the Department does not believe that it would be appropriate in this rule to adopt a significantly different approach to closing the lockout "loop hole". Furthermore, the Department does not have any assessment as to how this would impact existing models and the potential development of new models. However, the Department has proposed a general test procedure revision (TBD - fill in when available) and anticipates proposing a subsequent general test procedure revision, as discussed in the publication, so if any parties are still interested in this alternate approach, then they should provide new comments for those rulemakings.

The Department received numerous comments indicating that the proposed test procedure was ambiguous and complicated. Frigidaire (No, 2 at 8) and (Oral

C:\ ... \WPfina1.003 1 3 July 25, 1994 9:20am energy test cycle which would include elements such as: minimumwash time, all wash/rinse temperature combinations, maximum water fill and maximum spin speed. Maytag (No.6 at 1) also provided specific changes to the test procedure for theirproposed test cycle. Speed Queen (No.8 at 1) also proposed that atest cycle be adopted with requirements very similarto Maytag1s proposal. GE (No. 12 at 4) supported the Maytag proposal of atest cycle, ifthe Department continued with the amendment (as discussed earlier). ODOE (No. 11 at 1) supported the Maytag proposal of atest cycle. ACEEE (No. 5at 2) indicated that the Department could define specific cycles as proposed by Maytag, although they felt that it should be done in a subsequent rulemaking.

The Department found the concept of an alternatetest cycle to be interesting, although, this was not the intention ofthe proposed rule. Since this had not been propos.ed and available for corranent by all interested parties the Department does not believe that itwould be appropriate in this rule to adopt
a significantlydifferent approach to closing the lockout IIloop holell • Furthermore, the Department does not have any assessment as to how this would impact existingmodels and the potential development ofnew models. However, the Department has proposed ageneral test procedure revision (TBD

- fill in when available) and anticipates proposing a subsequent general test procedure revision, as discussed in the publication, so ifany parties are still interested in this alternate approach, then they should provide hew corranents for those rulemakings.

The Department received numerous comments indicating that the proposed test procedure was ambiguous and complicated.

13 Frigidaire (No.2 at 8) and (Oral

C:\

...\WPfinal.003 July 25, 1994 9:20amtestimony at 34) indicated that the test procedure is unnecessarily

complicated and that it added additional test burden and ambiguities with room for creative interpretation. ACEEE (No. 5 at 1) stated, "While we are in general support of the proposed amended test procedure, we are troubled that the proposed amendment may create additional ambiguities in what is meant by "normal" and "most energy-intensive cycle".". GE (No. 3 at 5) and Maytag (Oral testimony at 15) question how pre-wash and extra-rinse cycles are treated under the non-normal cycle testing requirement. Whirlpool (No. 9 at 6) suggested word changes in Section 3.2 of the proposed amendment to clarify the word "available".

The Department agrees that the test procedure of the proposed rule and the final rule are more complicated than the current test procedure. However, today's amended test procedure does not change any testing requirements for clothes washers that do not incorporate any temperature selection lockouts. Today's amended test procedure is also considerably less complicated than the proposed rule. Additionally, the definition of the "non-normal cycle" was modified to specifically exclude any manually selected pre-wash, pre-soak, and extra-rinse cycles.

As one of the suggested alternatives, Frigidaire (Oral testimony at 31) recommends having a separate class and minimum energy standard for clothes washers with lock out. NRDC (No. 10 at 2) opposed the addition of a separate class and minimum energy standard for clothes washers with lock-out. The Department believes that lock outs do not offer any utility and therefore do not warrant a separate class.

C:\...\WPfina1.003 14 July 25, 1994 9:20am testimony at 34) indicated that the testprocedure is unnecessarily complicated and that it added additional test burden and ambiguities with room for creative interpretation. ACEEE (No.5 at 1) stated, "While we are in general support ofthe proposed amended test procedure, we are troubled that the proposed amendment may create additional ambiguities in what ismeant by

"norma'" and "most energy-intensive cycle".". GE (No.3 at 5) and Maytag (Oral testimony at 15) question how pre-wash and extra-rinse cycles are treated under the non-normal cycle testing requirement. Whirlpool (No.9 at 6) suggested word changes in Section 3.2 of the proposed amendment to clarify the word "available".

The Department agrees that the test procedure ofthe proposed rule and the final rule aremore complicated than the current test procedure. However, today·s amended test procedure does not change any testing requirements for

.clothes washers that do not incorporate any temperature selection lockouts.

Today·s amended test procedure is also considerably less complicated than the proposed rule. Additionally, the definition ofthe "non-normal cycle" was modified to specificallyexclude any manually selected pre-wash, pre-soak, and extra-rinsecycles.

As one ofthe suggested alternatives, Frigidaire (Oral testimony at 31) recommends having a separate class and minimum energy standard for clothes washers with lock out. NRDC (No: 10 at 2) opposed the addition of a separate class and minimum energy standard for clothes washers with lock-out. The Department believes that lock outs do not offerany utility and therefore do not warrant a separate class.

14 C:\..•\WPfinal.003 July 25, 1994 9:20amThe last issue which caused a significant concern dealt with the Department's

proposal to allow one year of lead time from the final rule publication to the effective date of the amendment. Maytag (No. 1 at 4), Frigidaire (Oral testimony at 10), ACEEE (No, 5 at 1), Speed Queen (No. 8 at 2), NRDC (No. 10 at 3) and ODOE (No. 11 at 2) all opposed a one year lead time. They believe that a 180 day lead time is sufficient. Frigidaire (No. 7 at 1) provided additional information regarding lead time as a response to the Department's request at the hearing. Frigidaire estimated that it would take six to nine months to introduce a product into production if it fit into a brand line which had been recently restructured. Whirlpool (No. 9 at 6) is the only commenter who agrees with the Department's original proposal of one year. The Department is swayed by the other commenters and believes that the 180 day lead time should be sufficient for the vast majority of the Whirlpool products, only some of which will need modifying.

The above modifications will not change the related existing energy efficiency standard for this appliance. The Department believes that today's final rule will have a minimal impact on the clothes washer industry because of the limited availability of machines which have this unique feature. To the Department's knowledge, until Whirlpool's planned lock-out design, clothes. washers have offered all available wash/rinse temperature combinations in their normal cycles. Furthermore, Whirlpool's clothes washers are considerably above the minimum standard, whereas the standard would only require adjustment if it impacted clothes washers that minimally comply. Therefore, the Department has determined that no change in the energy efficiency standard would be required under 42 U.S.C. §6293(e)(2) by this amended test procedure.

C:\... \WPfinal.003 1 5 July 25, 1994 9:20am The last issuewhich caused a significant concern dealt with the Department's proposal to allow one year of lead time from the final rule publication to the effectivedate ofthe amendment. Maytag (No.1 at 4), Frigidaire (Oral testimony at 10), ACEEE (No.5 at 1), Speed Queen (No.8 at 2), NRDC (No. 10 at 3) and ODOE (No. 11 at 2) all opposed aone year lead time. They believe that a 180 day lead time is sufficient. Frigidaire (No.7 at 1) provided additional information regarding lead time as a response to the Department's request at the hearing. Frigidaire estimated that itwould take six to nine months to introduce a product into production if it fit into abrand line which had been recently restructured. Whirlpool (No.9 at 6) is the only commenterwho agrees with the Department's original proposal of one year. The Department is swayed by the othercommenters and believes that the 180 day lead time should be sufficient forthe vastmajority oftheWhirlpool products, only some ofwhich will need modifying.

The above modifications will not change the related existing energy efficiency standard for this appliance. The Department believes that today's final rule will have aminimal impact on the clothes washer industry because ofthe limited availability ofmachines which have this unique feature. To the Department's knowledge, until Whirlpool's planned lock-out design, clothes. washers have offered all availablewash/rinse temperature combinations in their normal cycles. Furthermore, Whirlpool's clothes washers are considerably above theminimum standard, whereas the standard would only require adjustment if it impacted clothes washers that minimally comply. Therefore, the Department has determined that no change in the energy efficiency standard would be required under 42 U.S.C. §6293(e)(2) by this amended test procedure.

15 C:\••.\WPfinal.003 July 25, 1994 9:20amIII. Environmental Review

Since test procedures under the Program will be used only to standardize the measurement of energy usage and will not affect the quality or distribution of energy usage, prescribing test procedures will not result in any environmental impacts. The Department, therefore, has determined that prescribing test procedures under the Program is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. This rulemaking, which amends existing Part 430 of Title 10 and will not change the environmental effect of such regulation, is an item which is "categorically excluded (A5)" by the Department of Energy's regulations on Nation Environmental Policy Act Implementing Procedures. (10 Code of Federal Regulation, Part 1021) (57 FR 15122, April 24, 1992) (Appendix A to Subpart D, Categorical Exclusion A5.). Consequently, neither an Environmental Impact Statement nor an Environmental Assessment is required for today's rule.

IV. Regulatory Planning and Review

Today's regulatory action has been determined not to be a "significant regulatory action" under Executive Order 12866, "Regulatory Planning and Review," (58 FR 51735, October 4, 1993). Accordingly, today's action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs.

V. Regulatory Flexibility Act

C:\...\WPfinal.003 1 6 July 25, 1994 9:20am III. Environmental Review

Since test procedures under the Program will be used only to standardize themeasurement ofenergy usage and will not affect the quality or distribution ofenergy usage, prescribing test procedures will not result in any environmental impacts. The Department, therefore, has determined that prescribing testprocedures under the Program is not amajor Federal action significantly affecting the quality ofthe human environment within the meaning ofthe National Environmental Policy Act of 1969. This rulemaking, which amends existing Part 430 ofTitle 10 and will not change the environmental effect of such regulation, is an itemwhich is "categorically excluded (A5)" by the Department of Energy·s regulations on Nation Environmental PolicyAct Implementing Procedures. (10 Code of Federal Regulation, Part 1021) (57 FR 15122, April 24, 1992) (Appendix Ato Subpart D, Categorical Exclusion A5.). Consequently, neither an Environmental Impact Statement nor an Environmental Assessment is required for today·s rule.

IV. Regulatory Planning and Review
Today·s regulatory action has been determined not to be a IIsignificant regulatory action ll under Executive Order 12866, "Regulatory Planning and Review," (58 FR 51735, October 4, 1993). Accordingly, today·s action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs.



### V. Regulatory FlexibilityAct

16 C:\

...\WPfinal.003 July 25, 1994 9:20amThe Regulatory Flexibility Act (Public Law 96-345) (5 U.S.C. 601-612)

requires that an agency prepare an initial regulatory flexibility analysis and that it be published at the time the proposed rule is published. This requirement (which appears in section 603) does not apply if the agency "certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities." Today's rule will marginally affect the clothes washer manufacturers. As previously discussed, the test procedure would not have significant economic impact, but rather, it would simply provide common testing methods. Therefore, DOE certifies that the final rule, as promulgated, will not have a "significant economic impact on a substantial number of small entities."

VI. Federalism Review

Executive Order 12612 (52 FR 41685, October 30, 1987) requires that regulations or rules be reviewed for any substantial direct effects on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among various levels of government. If there are sufficient substantial direct effects, then Executive Order 12612 requires preparation of a federalism assessment to be used in all decisions involved in promulgating and implementing a regulation or a rule.

The Department has identified a substantial direct effect that today's rule might have on State governments. It would preempt inconsistent State regulations. However, DOE has concluded that such effect is not sufficient to warrant preparation of a federalism assessment. The Department knows of no such inconsistent state regulations. Moreover, if there are any such state

C:\...\WPfinal.003 1 7 July 25, 1994 9:20am The Regulatory FlexibilityAct (Public Law 96-345) (5 U.S.C. 601-612) requires that an agency prepare an initial regulatory flexibility analysis and that it be published at the time the proposed rule is published. This requirement (which appears in section 603) does not apply ifthe agency "certifies that the rulewill not, ifpromulgated, have a significant economic impact on a substantial number of small entities. 1I Today's rulewill marginally affect the clothes washermanufacturers. As previously discussed, the test procedure would not have significant economic impact, but rather, it wouVd simply provide common testingmethods. Therefore, DOE certifies that the final rule, as promulgated, will not have a "significant economic impact
on a substantial number of small entities. II


### VI. Federalism Review

Executive Order 12612 (52 FR 41685, October 30, 1987) requires that regulations or rules be reviewed for any substantial direct effects on States,
on the relationship between the Federal Government and the States, or on the distribution ofpower and responsibilities among various levels of government. Ifthere are sufficient substantial direct effects, then Executive Order 12612 requires preparation of afederalism assessment to be used in all decisions involved in promulgating and implementing a regulation or a rule.

The Department has identified a substantial direct effect that today's rulemight have on State governments. Itwould preempt inconsistent State regulations. However, DOE has concluded that such effect is not sufficient to warrant preparation ofa federalism assessment. The Department knows ofno such inconsistent stateregulations. Moreover, ifthere are any such state

17 C:\.•.\WPfinal.003 July 25, 1994 9:20amregulations, the Act provides for subsequent State petitions for exemption.

Thus, a determination as to whether a State law prevails must be made on a case-by-case basis using criteria set forth in the Act. If DOE receives such a petition, it will then be appropriate to consider preparing a federalism assessment consistent with the criteria in the Act.

List of Subjects in 10 CFR Part 430

Administrative practice and procedure, Energy conservation, Household appliances.

In consideration of the foregoing, the Department amends part 430 of chapter II of title 10, Code of Federal Regulations, as set forth below.

Issued in Washington, DC, (Federal Register).

Christine A. Ervin Assistant Secretary Energy Efficiency and Renewable Energy

C:\...\WPfinal.003 1 $ July 25, 1994 9:20am regulations, the Act**provide~** for subsequent State petitions for**exemption~** Thus, adetermination as to whether a State law prevailsmust be made on a case-by-case basis using criteria set forth in the Act. IfDOE receives such
apetition, itwill then be appropriate to consider preparing a federalism assessment consistentwith the criteria in the Act.

List of Subjects in 10 CFR Part 430

Administrative practice and procedure, Energy conservation, Household appliances.

In consideration ofthe foregoing, the Department amends part 430 of chapter II oftitle 10, Code of Federal Regulations, as set forth below.

Issued in Washington, DC, (Federal Register).

Christine

### A. Ervin Assistant Secretary Energy Efficiency and Renewable Energy

18 C:\..•\WPfinal.003 July 25, 1994 9:20amPART 430

-ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

A. The authority citation for part 430 continues to read as follows: Authority: 42 U.S.C. 6291-6309 Appendix J to Subpart B of Part 430

-Uniform Test Method for Measuring the Energy Consumption of Automatic and Semi-Automatic Clothes Washers B. In Appendix J to Subpart B of part 430, paragraphs 1.10 through 1.18 are redesignated as paragraphs 1.13 through 1.21, respectively, and new paragraphs 1.11 and 1.12 are added to read as follows: 1.11 Most energy intensive cycle means the non-normal cycle that uses the most energy when tested with the required wash/rinse temperature combinations. 1.12 Non-normal cycle means a cycle other than the normal cycle, excluding any manually selected pre-wash, pre-soak, and extra-rinse.
C. In Appendix J to Subpart B of part 430, paragraph 1.9 is redesignated as paragraph 1.10, and paragraph 1.9 is added to read as follows: 1.9 Lockout means that at least one wash/rinse water temperature combination is not available in the normal cycle that is available in another cycle on the machine.
D. Section 3.2 of Appendix J to Subpart B of Part 430 is revised to read as follows: 3.2 Test cycle. Establish the testing conditions set forth in section 2 of this Appendix. For clothes washers that do not have lockout, skip sections 3.2.5. For automatic clothes washers that lock out certain wash/rinse temperature combinations in the normal cycle, conduct all of the following sections including section 3.2.5.

E. Between section 3.2.4 and 3.3 of Appendix J to Subpart B of Part 430, add new section 3.2.5 to read as follows: 3.2.5 Hot water energy consumption testing for clothes washers that lockout any wash/rinse temperature combinations in the normal cycle. 3.2.5.1 For clothes washers that lockout cettain wash/rinse temperature combinations, perform additional tests on non-normal cycles. Set the cycle selector to`a non-normal cycle. Set the water level selector at maximum fill and insert the appropriate test load, if applicable. Activate the cycle of the clothes washer and also any suds-saver switch. Set the wash/rinse temperature selector to the hottest untested temperature combination setting that is locked out in the normal cycle and repeat 3.2.2.3, 3.2.2.4, and 3.2.2.5. 3.2.5.2 Repeat 3.2.5.1 under the same temperature combination setting for all other untested non-normal cycles on the machine. 3.2.5.3 Total the measured hot water consumption of wash, deep rinse, and spray rinse of each non-normal cycle tested in 3.2.5.1 and 3.2.5.2 and compare. The cycle that has the highest hot water consumption shall be the most energy intensive cycle for that particular wash/rinse temperature combination setting. The hot water consumption of the most energy intensive cycles shall be used in section 4 calculations.

C:\...\WPfina1.003 1 9 July 25, 1994 9:20am PART 430-ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS A. The authority citation for part 430 continues to read as follows: Authority: 42 U.S.C. 6291-6309 Appendix J to Subpart B of Part 430-UnifoDn Test Method for Measuring the Energy Consumption of Automatic and Semi-Automatic**C~othes** Washers B. In Appendix J to Subpart B of part 430, paragraphs 1.10 through 1.18 are redesignated as paragraphs 1.13 through 1.21, respectively, and new paragraphs 1.11 and 1.12 are added to read as follows: 1.11 Most energy intensive cycle means the non-normal cycle that uses the most energy when tested with the requi,red wash/rinse temperature combinations. 1.12 Non-normal cycle means a cycle other than the normal cycle, excluding any manually selected pre-wash, pre-soak, and extra-rinse.

* * * * *

C. In Appendix J to Subpart B of part 430, paragraph 1.9 is redesignated as paragraph 1.10, and paragraph 1.9 is added to read as follows: 1.9 Lockout means that at least one wash/rinse water temperature combination is not available in the normal cycle that is available in another cycle on the machine. * * * * * D. Section 3.2 of Appendix J to Subpart B of Part 430 is revised to read as follows: 3.2 Test cycle. Establish the testing conditions set forth in section 2 of this Appendix. For clothes washers that do not have lockout, skip sections 3.2.5. For automatic clothes washers that lock out certain wash/rinse temperature combinations in the normal cycle, conduct all of the following sections including section 3.2.5. * * * * * E. Between section 3.2.4 and 3.3 of Appendix J to Subpart B of Part 430, add new section 3.2.5 to read as follows: 3.2.5 Hot water energy consumption testing for clothes washers that lockout any wash/rinse temperature**combin~tions** in the normal cycle. 3.2.5.1 For clothes washers that lockout certain wash/rinse temperature, combinations, perform additional tests on non-normal cycles. Set the cycle selector to a non-normal cycle. Set the water level selector at maximum fill and insert the appropriate test load, if applicable. Activate the cycle of the clothes washer and also any suds-saver switch. Set the wash/rinse temperature selector to the hottest untested temperature combination setting that is locked out in the normal cycle and repeat 3.2.2.3, 3.2.2.4, and 3.2.2.5. 3.2.5.2 Repeat 3.2.5.1 under the same temperature combination setting for all other untested non-normal cycles on the machine. 3.2.5.3 Total the measured hot water consumption of wash, deep rinse, and spray rinse of each non-normal cycle tested in 3.2.5.1 and 3.2.5.2 and compare. The cycle that has the highest hot water consumption shall be the most energy intensive cycle for that particular wash/rinse temperature combination setting. The hot water consumption of the most energy intensive cycles shall be used in section 4 calculations.

19 c:\ •.•\WPfinal.003 July 25. 1994 9:20am3.2.5.4 Repeat 3.2.5.1 through 3.2.5.2 for all other wash/rinse temperature

combination selections that are locked out in the normal cycle. The hot water consumption of the most energy intensive cycle for each locked out wash/rinse temperature selection shall be used in section 4 calculations.
.3.2.5.5 Set the water level selector at minimum fill and insert the - appropriate test load, if applicable. Activate the cycle of the clothes washer and also any suds-saver switch. Repeat tests as described in 3.2.5.1 through 3.2.5.4, except that minimum fill tests are required only for the most energy intensive cycles as determined during the maximum fill tests. The hot water consumption of the most energy intensive cycles shall be used in section 4 calculations.

* F. In Appendix J to Subpart B of Part 430, section 4.1 is revised to read as follows: 4.1 Per-cycle temperature-weighted hot water consumption for maximum and minimum water fill levels. Calculate the per-cycle temperature-weighted hot water consumption for the maximum water fill level, Vmax. expressed in gallons per cycle and defined as:
Vmax = X1 -,n [Vi X TUFT] + X2 [TUFW x SH]
where Vi = Reported hot water consumption in gallons per-cycle at maximum

fill for each wash/rinse temperature selection, as recorded in 3.3.2. (For clothes washers that have lockouts, there will be "Vi's" for wash/rinse temperature combination settings available in the normal cycle and "Vi's" for wash/rinse temperature combination settings in the most energy intensive cycle.) TUFT = Applicable temperature use factor corresponding to wash/rinse

temperature selection as shown in 5 or 6. n = Number of wash/rinse temperature selections available to the user

for the clothes washer under test. TUFW = Temperature use factor for warm wash setting. For clothes washers equipped with suds-saver feature: X1 = Frequency of use without suds-saver feature = .86. X2 = Frequency of use with suds-saver feature = .14. For clothes washers not equipped with suds-saver feature: X1 = 1.0 X2 = 0.0 SH Fresh make-up water measured during suds-return cycle at maximum

water fill level. Calculate the per

-cycle temperature

-weighted hot water consumption for the minimum water fill level, Vmin, expressed in gallons per cycle and defined as:

Vmin = X1 11_1 ' [V1 x TUFT] + X2 [TUF, x SL] where Vi = Reported hot water consumption in gallons per cycle at minimum

fill for each wash/rinse temperature selection, as recorded in 3.3.3. (For clothes washers that have lockouts, there.will be "V1's" for wash/rinse temperature combination settings available in the normal cycle and "V1's" for wash/rinse temperature combination settings in the most energy intensive cycle.) .TUFT = Applicable temperature factor corresponding to wash/rinse

temperature selection as shown in 5 or 6. SL = Fresh make-up water measured during suds-return cycle at minimum

water fill level.

C:\...\WPfinal.003 20 July 25, 1994 9:20am 3.2.5.4 Repeat 3.2.5.1 through 3.2.5.2 for all other wash/rinse temperature combination selections that are locked out in the normal cycle. The hot water consumption of the most energy intensive cycle for each locked out wash/rinse temperature selection shall be used in section 4 calculations. ,3.2.5.5 Set the water level selector at minimum fill and insert the appropriate test load, if applicable. Activate the cycle of the clothes washer and also any suds-saver switch. Repeat tests as described in 3.2.5.1 through 3.2.5.4, except that minimum fill tests are required only for the most energy intensive cycles as determined during the maximum fill tests. The hot water consumption of the most energy intensive cycles shall be used in section 4 calculations. * * * * * F. In Appendix J to Subpart B of Part 430, section 4.1 is revised to read as follows: 4.1 Per-cycle temperature-weighted hot water consumption for maximum and minimum water fill levels. Calculate the per-cycle temperature-weighted hot water consumption for the maximum water fill level, V rnax, expressed in gallons per cycle and defined as:

where Vi =

TUFi
n = TUFw Reported hot water consumption in gallons per-cycle at maximum fill for each wash/rinse temperature selection, as reoorded in 3.3.2. (For clothes washers that have lockouts, there will be "Vi'S" for wash/rinse temperature combination settings available in the normal cycle and "Vi'S" for wash/rinse temperature
. combination settings in the most energy intensive cycle.) Applicable temperature use factor corresponding to wash/rinse temperature selection as shown in 5 or 6. Number of wash/rinse temperature selections available to the user for the clothes washer under test. Temperature use factor for warm wash setting. For clothes washers equipped with suds-saver feature: Xl = Frequency of use without suds-saver feature = .86. of use with suds-saver feature = .14. not equipped with suds-saver feature: X

2 = Frequency For clothes washers Xl '1.0 X

2 0.0 SH Fresh make-up water measured during suds-return cycle at maximum water fill level. Calculate the per-cycle temperature-weighted hot water consumption for the minimum water fill level, V rnin, expressed in gallons per cycle and defined as:

where Vi =

,TUFi Reported hot water consumption in gallons per cycle at minimum fill for each wash/rinse temperature selection, as recorded in 3.3.3. (For clothes washers that have lockouts, there .will be "Vi'S" for wash/rinse temperature combination settings available in the normal cycle and "Vi'S" for wash/rinse temperature combination settings in the most energy intensive cycle.) Applicable temperature factor corresponding to wash/rinse temperature selection as shown in 5 or 6. Fresh make-up water measured during suds-return cycle at minimum water fill level.
.20 C:\,•.\WPfinal.003 July 25, 1994 9:20amn = As defined above.

TUFW = As defined above. X1 = As defined above. X2 = As defined above.

21 C:\... \WPfinal.003 July 25, 1994

9:20am n = AS TUF

.. As Xl As X2 = As defined defined defined defined above. above. above. above.

21 C:\.•.\WPfinal.003 July 25, 1994 9:20am