CHICAGO

LONDON

NEW YORK

HOUSTON

LOS ANGELES

TOKYO

BRUSSELS

ERIKA Z. JONES

202-778-0642

MAYER, BROWN & PLATT

2000 PENNSYLVANIA AVENUE, N.W.

WASHINGTON , D.C. 20006-1882

July 29, 1993

Michael J. McCabe, Director

Office of Codes and Standards

Office of Building Technologies

Conservation and Renewable Energy

United States Department of Energy

Forrestal Building

1000 Independence Avenue, S.W.

Washington, D.C. 20585

Dear Mr. McCabe:

202-463-2000

TELEX 892603

FACSIMILE:

202-861-0473

This letter is in response to your April 21, 1993 letter and

the July 7, 1993 meeting between representatives of Whirlpool and

the Department of Energy. It appears to us from the correspondence

between Whirlpool and DOE and from the July 7 meeting that there

have been misunderstandings on both sides about Whirlpool's

proposed method of complying with the clothes washer testing

procedure contained in section 3.2.2 of 10 C.F.R. Part 430, Subpart

B, Appendix J. It is our intent to clarify our position on this

matter to dispel any erroneous impressions that may have arisen

from our previous communications.

Section 3.2.2 sets forth the procedures for testing " [h] ot

water consumption for a normal cycle with the water level selector

at maximum fill." The "normal cycle" is defined by section 1.10 as

"the cycle recommended by the manufacturer for washing cotton

and/or linen clothes."

Section 3.2.2.1 directs the tester to set the water level

selector of the washer to maximum fill and to "[a]ctivate the

normal cycle." (Emphasis added). Next, section 3.2.2.2 directs the

tester to "set the wash/rinse temperature selector to the hottest

setting available (hot/warm)." The tester then measures the number

of gallons used for the wash cycle and the deep rinse and spray

rinse cycles. Section 3.2.2.3-3.2.2.5.

On October 19, 1992, Whirlpool wrote to DOE for clarification

of section 3.2.2.2's requirement that the wash/rinse temperature be

set "at the hottest setting available." Specifically, Whirlpool

asked whether it was permissible to design the washer so that the

usual or default rinse temperature in the normal cycle would be

cold, but the consumer would be able to override that default

option and choose a warm rinse. Whirlpool also asked whether,

 EE-RM-93-701 COMMENT 0D

CHICAGO 

LONDON 

NEW YORK 

HOUSTON 

LOS ANGELES 

TOKYO 

BRUSSELS 

ERIKA Z. JONES 

202-778-0642 

MAYER, BROWN & PLATT 

2000 PENNSYLVANIA AVENUE, N.W. 

WASHINGTON, D.C. 20006-1882 

July 29, 1993 

Michael J. McCabe, Director 

Office of Codes and Standards 

Office of Building Technologies 

Conservation and Renewable Energy 

United States Department of Energy 

Forrestal Building 

1000 Independence Avenue, S.W. 

Washington, D.C. 20585 

Dear Mr. McCabe: 

202-463-2000 

TELEX 892603 

FACSIMILE: 

202-861-0473 

This letter is in response to your April 21, 1993 letter and 

the July 7, 1993 meeting between representatives of Whirlpool and 

the Department of Energy. It appears to us from the correspondence 

between Whirlpool and DOE and from the July 7 meeting that there 

have been misunderstandings on both sides about Whirlpool's 

proposed method of complying with the clothes washer testing 

procedure contained in section 3.2.2 of 10 C.F.R. Part 430, Subpart 

B, Appendix J. It is our intent to clarify our position on this 

matter to dispel any erroneous impressions that may have arisen 

from our previous communications. 

Section 3.2.2 sets forth the procedures for testing "[h] ot 

water consumption for a normal cycle with the water level selector 

at maximum fill." The "normal cycle" is defined by section 1.10 as 

"the cycle recommended by the manufacturer for washing cot ton 

and/or linen clothes." 

Section 3.2.2.1 directs the tester to set the water level 

selector of the washer to maximum fill and to "[a] ctivate the 

normal cycle." (Emphasis added). Next, section 3.2.2.2 directs the 

tester to "set the wash/rinse temperature selector to the hottest 

setting available (hot/warm)." The tester then measures the number 

of gallons used for the wash cycle and the deep rinse and spray 

rinse cycles. Section 3.2.2.3-3.2.2.5. 

On October 19, 1992, Whirlpool wrote to DOE for clarification 

of section 3.2.2.2' s requirement that the wash/rinse temperature be 

set "at the hottest setting available." Specifically, Whirlpool 

asked whether it was permissible to design the washer so that the 

usual or default rinse temperature in the normal cycle would be 

cold, but the consumer would be able to override that default 

option and choose a warm rinse. Whirlpool also asked whether I 
MAYER, BROWN & PLATT

Mr. Michael J. McCabe

July 29, 1993

Page 2

given such a design, the washer could be tested and certified under

section 3.2.2 using the cold rinse.

DOE responded by letter on December 18, 1992. In that letter,

DOE stated that the "wash/rinse temperature selector" is "an

independent feature from the normal cycle selector" and that

section 3.2.2.2 requires Whirlpool to "set [its] temperature switch

to the hottest setting available (i.e., hot/warm) after the normal

cycle is selected." (Emphasis added.)

In response to this letter, Whirlpool sent a letter to DOE

dated January 15, 1993 seeking clarification of DOE's December 18

letter with respect to a manual "lock-out" feature of the warm

rinse in the normal cycle. This system would "lock out" warm water

once the normal cycle and option switch were selected, leaving

consumers with cold water as the only rinse option for the normal

cycle. Under this system, then, the "hottest setting available"

once the normal cycle and option switch were activated would be

hot/cold (i.e., hot wash/cold rinse), but under that design,

consumers using the normal cycle would have been able to override

that option manually.

On April 21, 1993, DOE rejected the manual override option.

To the company's surprise, DOE's April 21, 1993 letter also

rejected an automatic "lock-out" system, under which consumers

selecting the normal cycle would not be able to obtain a warm rinse

in that cycle, regardless of the temperature setting selected by

the consumer. Whirlpool fully accepts DOE's interpretation that

the manual override option discussed in Whirlpool's prior

correspondence will not comply with section 3.2.2. Whirlpool

believes, however, that the automatic "lock-out" system in the

normal cycle is fully consistent with the DOE rules and the energy

conservation purpose of the statute and rules: when the

temperature selector is set to the "hottest setting available" in

the normal cycle, the consumer will obtain only a cold water rinse.

For this reason, we are now seeking further clarification.

In the April 21, 1993 letter, DOE stated:

[T]he Department believes that all of the temperature

combinations covered by the Temperature Use Factors

(TUFs), and available to the consumer, must be tested.

Each TUF combination offered must be tested using the

cycle which is normal or available for that temperature

combination. Locking out the warm rinse in the "normal"

cycle and then offering it on another cycle does not

exempt the Whirlpool Corporation from the compliance

requirement in section 3.2.2.2 * * *. DOE believes that

this "newly-named" cycle becomes the "normal" cycle for

 EE-RM-93-701 COMMENT 0D

MAYER, BROWN & PLATT 

Mr. Michael J. McCabe 

July 29, 1993 

Page 2 

given such a design, the washer could be tested and certified under 

section 3.2.2 using the cold rinse. 

DOE responded by letter on December 18, 1992. In that letter, 

DOE stated that the "wash/rinse temperature selector" is "an 

independent feature from the normal cycle selector" and that 

section 3.2.2.2 requires Whirlpool to "set [its] temperature switch 

to the hottest setting available (i.e., hot/warm) after the normal 

cycle is selected." (Emphasis added.) 

In response to this letter, Whirlpool sent a letter to DOE 

dated January 15, 1993 seeking clarification of DOE's December 18 

letter with respect to a manual "lock-out" feature of the warm 

rinse in the normal cycle. This system would "lock out" warm water 

once the normal cycle and option switch were selected, leaving 

consumers with cold water as the only rinse option for the normal 

cycle. Under this system, then, the "hottest setting available" 

once the normal cycle and option switch were activated would be 

hot/cold (i.e., hot wash/cold rinse), but under that design, 

consumers using the normal cycle would have been able to override 

that option manually. 

On April 21, 1993, DOE rejected the manual override option. 

To the company's surprise, DOE's April 21, 1993 letter also 

rej ected an automatic "lock- out" system, under which consumers 

selecting the normal cycle would not be able to obtain a warm rinse 

in that cycle, regardless of the temperature setting selected by 

the consumer. Whirlpool fully accepts DOE's interpretation that 

the manual override option discussed in Whirlpool's prior 

correspondence will not comply with section 3.2.2. Whirlpool 

believes, however, that the automatic "lock- out" system in the 

normal cycle is fully consistent with the DOE rules and the energy 

conservation purpose of the statute and rules: when the 

temperature selector is set to the "hottest setting available" in 

the normal cycle, the consumer will obtain only a cold water rinse. 

For this reason, we are now seeking further clarification. 

In the April 21, 1993 letter, DOE stated: 

[T]he Department believes that all of the temperature 

combinations covered by the Temperature Use Factors 

(TUFs), and available to the consumer, must be tested. 

Each TUF combination offered must be tested using the 

cycle which is normal or available for that temperature 

combination. Locking out the warm rinse in the "normal" 

cycle and then offering it on another cycle does not 

exempt the Whirlpool Corporation from the compliance 

requirement in section 3.2.2.2 * * *. DOE believes that 

this "newly-named" cycle becomes the "normal" cycle for 
MAYER, BROWN & PLATT

Mr. Michael J. McCabe

July 29, 1993

Page 3

those TUF covered temperature combinations that are not

offered on the cycle labeled as "normal."

We agree completely that Whirlpool is not "exempt" from the

compliance requirement in section 3.2.2.2. The automatic "lockout" design, however, enables Whirlpool to meet the 1994 automatic

washer energy standards, in part because a hot wash/cold rinse is

the "hottest setting. available" in the normal cycle. Yet DOE's

April 21 letter can be read as meaning that if Whirlpool locks warm

rinses out of its "normal cycle," making cold water the only water

available for rinsing in that cycle, then DOE will measure the hot

water consumed during another cycle that does allow for warm

rinses. In effect, DOE will treat this other cycle as the "normal

cycle" for purposes of section 3.2.2.

This position (if it actually is DOE's position) would be

inconsistent not only with the position stated in DOE's December 18

letter, but, more importantly, with the testing procedures set

forth in section 3.2.2 and with the definition of "normal cycle"

contained in section 1.10. As summarized above, section 3.2.2

requires the tester to activate the "normal cycle" and then set the

wash/rinse temperature selector to the "hottest setting available."

That setting, under the design in which Whirlpool has invested a

great deal of money in reliance on the testing procedure as

written, would be a hot wash/cold rinse. Under the position

suggested by the April 21 letter, however, the steps of the testing

procedure would be inverted. The tester would choose the hottest

setting available on the washer (presumably hot/warm) and then

select a cycle in which that temperature setting is available.

Under this procedure, then, washers with the "lock-out" system

would not even be tested in the "normal cycle, " contrary to the

procedure established by section 3.2.2.

Moreover, according to this position, the reference to "normal

cycle" in section 3.2.2 would be redefined to mean whatever cycle

allows for a warm water rinse. This definition would be

inconsistent with the definition of "normal cycle" contained in

section 1.10.

If this interpretation of the April 21 letter is correct, then

DOE would have amended section 3.2.2's testing procedures and

section 1.10's definition of "normal cycle" without following the

procedural requirements established by Congress for such amendments

-- including notice of the amendment and opportunity for comments

by interested persons. See 42 U.S.C. § 6293(b). Moreover, such

amendments -- if they were meant to apply in May 1994 -- would

deprive Whirlpool and other clothes-washer manufacturers of the 5-

year lead time mandated by Congress to allow them to redesign their

washers to comply with new standards. See id. § 6295(g)(4)(C).

 EE-RM-93-701 COMMENT 0D

MAYER, BROWN & PLATT 

Mr. Michael J. McCabe 

July 29, 1993 

Page 3 

those TUF covered temperature combinations that are not 

offered on the cycle labeled as "normal." 

We agree completely that Whirlpool is not "exempt" from the 

compliance requirement in section 3.2.2.2. The automatic "lockout" design, however, enables Whirlpool to meet the 1994 automatic 

washer energy standards, in part because a hot wash/cold rinse is 

the "hottest setting.available" in the normal cycle. Yet DOE's 

April 21 letter can be read as meaning that if Whirlpool locks warm 

rinses out of its "normal cycle," making cold water the only water 

available for rinsing in that cycle, then DOE will measure the hot 

water consumed during another cycle that does allow for warm 

rinses. In effect, DOE will treat this other cycle as the "normal 

cycle" for purposes of section 3.2.2. 

This position (if it actually is DOE's position) would be 

inconsistent not only with the position stated in DOE's December 18 

letter, but, more importantly, with the testing procedures set 

forth in section 3.2.2 and with the definition of "normal cycle" 

contained in section 1.10. As summarized above, section 3.2.2 

requires the tester to activate the "normal cycle" and then set the 

wash/rinse temperature selector to the "hottest setting available. " 

That setting, under the design in which Whirlpool has invested a 

great deal of money in reliance on the testing procedure as 

written, would be a hot wash/cold rinse. Under the position 

suggested by the April 21 letter, however, the steps of the testing 

procedure would be inverted. The tester would choose the hottest 

setting available on the washer (presumably hot/warm) and then 

select a cycle in which that temperature setting is available. 

Under this procedure, then, washers with the "lock-out" system 

would not even be tested in the "normal cycle," contrary to the 

procedure established by section 3.2.2. 

Moreover, according to this position, the reference to "normal 

cycle" in section 3.2.2 would be redefined to mean whatever cycle 

allows for a warm water rinse. This definition would be 

inconsistent with the definition of "normal cycle" contained in 

section 1.10. 

If this interpretation of the April 21 letter is correct, then 

DOE would have amended section 3.2.2' s testing procedures and 

section 1.10's definition of "normal cycle" without following the 

procedural requirements established by Congress for such amendments 

-- including notice of the amendment and opportunity for comments 

by interested persons. See 42 U.S.C. § 6293(b). Moreover, such 

amendments -- if they were meant to apply in May 1994 -- would 

deprive Whirlpool and other clothes-washer manufacturers of the 5-

year lead time mandated by Congress to allow them to redesign their 

washers to comply with new standards. See id. § 6295(g) (4) (C). 
MAYER, BROWN & PLATT

Mr. Michael J. McCabe

July 29, 1993

Page 4

Finally, we believe that such amendments would be inconsistent

with Congress' intent in passing the National Appliance Energy

Conservation Act of 1987, Pub. L. No. 100-12, 101 Stat. 103. In

that Act, Congress specifically provided that "[a]ll rinse cycles

of clothes washers shall include an unheated water option, but may

have a heated water rinse option, for products manufactured on or

after January 1, 1988." 42 U.S.C. § 6295(g)(3) (emphases added).

Congress thus clearly intended that manufacturers are entitled to

offer a warm water rinse option, which Whirlpool has elected to do

on cycles other than the normal cycle. Yet, by effectively

forbidding the automatic "lock-out" system proposed by Whirlpool,

the new testing procedure described above would limit Whirlpool to

two unattractive options, both of which would cause great expense,

not significantly advance the energy conservation objective of the

statute and rules, and deprive consumers of useful and desirable

options: Whirlpool could either (1) eliminate warm water rinses

from all cycles, or (2) completely redesign the whole automatic

washer, at great expense and with completely inadequate lead time,

so that the normal cycle could include a warm rinse but, because of

other modifications, would comply with the regulatory

specifications for energy consumption.

It is urgent that DOE provide Whirlpool with its definitive

interpretation of the testing procedure. Substantial sums of money

already have been invested, and additional substantial sums will

have to be invested in the very near future, in the design or

redesign of Whirlpool's product and in the purchase of parts needed

to make the product available in May 1994. In addition, Whirlpool

will simply be unable to redesign some models of automatic washers

by May 1994.

We trust that this letter will help to clear up what we

believe to be misunderstandings, and that we will be able to reach

agreement on the proper interpretation of section 3.2.2.2. We

therefore request that you provide immediately a letter confirming

that compliance with section 3.2.2.2 will be measured only in the

normal cycle, as that term is defined in section 1.10.

If we are unable to- resolve this matter and DOE in fact

intends to apply section 3.2.2.2 to cycles other than the "normal

cycle" (as defined in section 1.10), Whirlpool anticipates seeking

expedited judicial review. To that end, and in light of the lead

time necessary for Whirlpool to produce its clothes washers for

sale starting in May 1994, we hereby request that DOE stay the

application of section 3.2.2.2 to cycles other than the "normal

cycle" (as defined in section 1.10) pending judicial review. If

DOE insists on applying section 3.2.2.2 to cycles other than the

"normal cycle," as defined in Section 1.10, and neither DOE nor a

court stays the application of the rule to those cycles, it will

 EE-RM-93-701 COMMENT 0D

MAYER, BROWN & PLATT 

Mr. Michael J. McCabe 

July 29, 1993 

Page 4 

Finally, we believe that such amendments would be inconsistent 

with Congress' intent in passing the National Appliance Energy 

Conservation Act of 1987, Pub. L. No. 100-12, 101 Stat. 103. In 

that Act, Congress specifically provided that" [a]ll rinse cycles 

of clothes washers shall include an unheated water option, but may 

have a heated water rinse option, for products manufactured on or 

after January 1, 1988." 42 U.S.C. § 6295(g) (3) (emphases added). 

Congress thus clearly intended that manufacturers are entitled to 

offer a warm water rinse option, which Whirlpool has elected to do 

on cycles other than the normal cycle. Yet, by effectively 

forbidding the automatic "lock-out" system proposed by Whirlpool, 

the new testing procedure described above would limit Whirlpool to 

two unattractive options, both of which would cause great expense, 

not significantly advance the energy conservation objective of the 

statute and rules, and deprive consumers of useful and desirable 

options: Whirlpool could either (1) eliminate warm water rinses 

from all cycles, or (2) completely redesign the whole automatic 

washer, at great expense and with completely inadequate lead time, 

so that the normal cycle could include a warm rinse but, because of 

other modifications, would comply with the regulatory 

specifications for energy consumption. 

It is urgent that DOE provide Whirlpool with its definitive 

interpretation of the testing procedure. Substantial sums of money 

already have been invested, and additional substantial sums will 

have to be invested in the very near future, in the design or 

redesign of Whirlpool' s product and in the purchase of parts needed 

to make the product available in May 1994. In addition, Whirlpool 

will simply be unable to redesign some models of automatic washers 

by May 1994. 

We trust that this letter will help to clear up what we 

believe to be misunderstandings, and that we will be able to reach 

agreement on the proper interpretation of section 3.2.2.2. We 

therefore request that you provide immediately a letter confirming 

that compliance with section 3.2.2.2 will be measured only in the 

normal cycle, as that term is defined in section 1.10. 

If we are unable to' resolve this matter and DOE in fact 

intends to apply section 3.2.2.2 to cycles other than the "normal 

cycle" (as defined in section 1.10), Whirlpool anticipates seeking 

expedited judicial review. To that end, and in light of the lead 

time necessary for Whirlpool to produce its clothes washers for 

sale starting in May 1994, we hereby request that DOE stay the 

application of section 3.2.2.2 to cycles other than the "normal 

cycle" (as defined in section 1.10) pending judicial review. If 

DOE insists on applying section 3.2.2.2 to cycles other than the 

"normal cycle," as defined in Section 1.10, and neither DOE nor a 

court stays the application of the rule to those cycles, it will 
MAYER, BROWN & PLATT

Mr. Michael J. McCabe

July 29, 1993

Page 5

cost Whirlpool many millions of dollars in order to comply. A stay

pending judicial review is therefore appropriate in order to

prevent irreparable injury to Whirlpool.

Sincerely,

Erika Z. Jones

Counsel to Whirlpool Corporation

CC: The Honorable Robert R. Nordhaus

General Counsel

Department of Energy

David Grumbine, Esq.

Senior Counsel

Whirlpool Corporation

 EE-RM-93-701 COMMENT 0D

MAYER, BROWN & PLATT 

Mr. Michael J. McCabe 

July 29, 1993 

Page 5 

cost Whirlpool many millions of dollars in order to comply. A stay 

pending judicial review is therefore appropriate in order to 

prevent irreparable injury to Whirlpool. 

Sincerely, 

4 J- ~/1h£ Erika Z. Jones 

Counsel to Whirlpool Corporation 

cc: The Honorable Robert R. Nordhaus 

General Counsel 

Department of Energy 

David Grumbine, Esq. 

Senior Counsel 

Whirlpool Corporation