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, CHICAGO LONDON NEWYORK HOUSTON LOSANGELES TOKYO BRUSSELS

ERIKAZ.JONES

202-778-0642 

### MAYER,BROWN & 

### PLATT

2000PENNSYLVANIAAVENUE,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 TELEX892603

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 theDepartment of Energy. Itappears tous 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 containedinsection3.2.2 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 atmaximum fill." The "normal cycle" is definedby 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, section3.2.2.2 directs the tester to "set the wash/rinse temperature selector to the hottest settingavailable (hot/warm)." The testerthenmeasures thenumber 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 section3.2.2.2's requirementthat thewash/rinsetemperaturebe 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 whetherIMAYER, 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 MAYER,BROWN & PLATT

Mr. Michael J. McCabe July 29, 1993 Page 2
given sucha design, the washercouldbe tested and certifiedunder section 3.2.2 using the cold rinse.

DOE respondedbyletteronDecember 18, 1992. Inthat letter, DOE stated that the "wash/rinse temperature selector" is "an independent feature from the normal cycle selector" and that section3.2.2.2 requiresWhirlpool 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 inthenormal cycle. This systemwould "lockout" warmwater
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 thenormal cyclewouldnotbe able to obtaina warmrinse 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 thenormal cycle, the consumerwill obtainonlya coldwaterrinse. 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 warmrinse 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 forMAYER, 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 thecompliance 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 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 tomeet 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 lettercanbe read as meaning that ifWhirlpool locks warm rinses out of its "normal cycle," making coldwater the onlywater available for rinsing in that cycle, thenDOE 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 onlywiththepositionstatedinDOE'sDecember 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 toactivate the "normal cycle" and then set the wash/rinsetemperature selectortothe "hottest settingavailable." 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 suggestedbytheApril 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, accordingto thisposition, thereferenceto "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 interpretationof theApril 21 letteris 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 proceduralrequirements establishedbyCongress for suchamendments

-- 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 depriveWhirlpool and other clothes-washermanufacturers of the 5- year leadtimemandatedby Congress to allowthemto redesigntheir 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 MAYER, BROWN& PLATT

Mr. Michael J. McCabe July 29, 1993 Page 4
Finally, we believethat suchamendmentswouldbe 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 anunheatedwater 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 warmwater rinse option, whichWhirlpool has elected to do

on cycles other than the normal cycle. Yet, by effectively forbidding the automatic "lock-out" system proposed byWhirlpool, the new testingprocedure described above would limit Whirlpool to two unattractive options, both of whichwould cause great expense, not significantlyadvance the energy conservationobjective 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 thenormal cycle could include a warmrinsebut, because of other modifications, would comply with the regulatory specifications for energy consumption.

It is urgent that DOE provide Whirlpool with its definitive interpretationof the testingprocedure. Substantial sums ofmoney already have been invested, and additional substantial sums will have to be invested in the very near future, in the design or redesignofWhirlpool's product and inthepurchase ofparts needed tomake the product available inMay 1994. In addition, Whirlpool will simplybe 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 bemisunderstandings, 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 immediatelya 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 willMAYER, 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 MAYER, BROWN & PLATT

Mr. Michael J. McCabe July 29, 1993 Page 5

costWhirlpoolmanymillions of dollars inorderto comply. Astay pending judicial review is therefore appropriate in order to prevent irreparable injury to Whirlpool.

Sincerely, 

# 4 J-**~/1h£** Erika Z. Jones CounseltoWhirlpoolCorporation

cc: The Honorable Robert R. Nordhaus General Counsel Department of Energy

David Grumbine, Esq. Senior Counsel Whirlpool Corporation