2010-28646. Energy Conservation Program for Consumer Products: Decision and Order Granting a Waiver to Whirlpool From the Department of Energy Residential Clothes Washer Test Procedure

AGENCY:

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

ACTION:

Decision and order.

SUMMARY:

The U.S. Department of Energy (DOE) gives notice of the decision and order (Case No. CW-015) that grants to Whirlpool Corporation (Whirlpool) a waiver from the DOE clothes washer test procedure for determining the energy consumption of clothes washers. Under today's decision and order, Whirlpool shall be required to test and rate its clothes washers with larger clothes containers using an alternate test procedure that takes this technology into account when measuring energy consumption.

DATES:

This Decision and Order is effective November 15, 2010.

FOR FURTHER INFORMATION CONTACT:

Dr. Michael G. Raymond, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: [phone], E-mail: [e-mail].

Jennifer Tiedeman, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0103. Telephone: [phone], E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

In accordance with Title 10 of the Code of Federal Regulations (10 CFR 430.27(l)), DOE gives notice of the issuance of its decision and order as set forth below. The decision and order grants Whirlpool a waiver from the applicable clothes washer test procedure in 10 CFR part 430, subpart B, appendix J1 for certain basic models of clothes washers with capacities greater than 3.8 cubic feet, provided that Whirlpool tests and rates such products using the alternate test procedure described in this notice. Today's decision prohibits Whirlpool from making representations concerning the energy efficiency of these products unless the product has been tested consistent with the provisions and restrictions in the alternate test procedure set forth in the decision and order below, and the representations fairly disclose the test results. Distributors, retailers, and private labelers are held to the same standard when making representations regarding the energy efficiency of these products. 42 U.S.C. 6293(c).

Issued in Washington, DC, on November 4, 2010.

Cathy Zoi,

Assistant Secretary, Energy Efficiency and Renewable Energy.

Decision and Order

In the Matter of: Whirlpool Corporation (Case No. CW-015).

I. Background and Authority

Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency. Part A of Title III provides for the “Energy Conservation Program for Consumer Products Other Than Automobiles.” 42 U.S.C. 6291-6309. Part A includes definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. Further, Part A authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results that measure energy efficiency, energy use, or estimated operating costs, and that are not unduly burdensome to conduct. 42 U.S.C. 6293(b)(3). The test procedure for residential clothes washers, the subject of today's notice, is contained in 10 CFR part 430, subpart B, appendix J1.

DOE's regulations for covered products contain provisions allowing a person to seek a waiver for a particular basic model from the test procedure requirements for covered consumer products when (1) the petitioner's basic model for which the petition for waiver was submitted contains one or more design characteristics that prevent testing according to the prescribed test procedure, or (2) when prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption characteristics. 10 CFR 430.27(b)(1)(iii).

The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l). Waivers remain in effect pursuant to the provisions of 10 CFR 430.27(m).

Any interested person who has submitted a petition for waiver may also file an application for interim waiver of the applicable test procedure requirements. 10 CFR 430.27(a)(2). The Assistant Secretary will grant an interim waiver request if it is determined that the applicant will experience economic hardship if the interim waiver is denied, if it appears likely that the petition for waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the petition for waiver. 10 CFR 430.27(g).

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

On November 21, 2005, Whirlpool filed a petition for waiver from the test procedure applicable to automatic and semi-automatic clothes washers set forth in 10 CFR part 430, subpart B, appendix J1. In particular, Whirlpool requested a waiver to test its clothes washers on the basis of the residential test procedures contained in 10 CFR part 430, Subpart B, Appendix J1, with a revised Table 5.1 extended to larger container volumes. Whirlpool's petition was published in the Federal Register on August 22, 2006. 71 FR 48913. DOE received one comment on the Whirlpool petition, from a private citizen who opined that the purpose of waivers is to evade regulations.

In its petition, Whirlpool pointed out that the required mass of the test load used in DOE's test procedure is based on the basket volume of the test specimen. However, the test procedure does not define required test load masses for the basket sizes of Whirlpool's basic models cited in its waiver application, which are larger than those contemplated by the test procedure. Specifically, in the DOE test procedure, the relation between basket volume and test load mass is only defined for basket volumes between 0 and 3.8 cubic feet. Whirlpool has designed a series of clothes washers that contain basket volumes of greater than 3.8 cubic feet. On June 22, 2010 and July 20, 2010, General Electric Company (GE) and Samsung Electronics America, Inc. (Samsung), respectively, filed very similar petitions for waiver and applications for interim waivers for their clothes washers with basket volumes greater than 3.8 cubic feet. DOE granted GE and Samsung's interim waivers on September 16, 2010. (75 FR 57915; 75 FR 57937).

Table 5.1 of Appendix J1 defines the test load sizes used in the test procedure as linear functions of the basket volume. Whirlpool has submitted a proposed revised table to extend the maximum basket volume from 3.8 cubic feet to 5.1 cubic feet, a table similar to one developed by the Association of Home Appliance Manufacturers (AHAM) and provided to DOE in comments on a proposed DOE residential clothes washer test procedure rulemaking. The notice of proposed rulemaking (NOPR) was published September 21, 2010 (75 FR 57556). When the residential clothes washer test procedure rulemaking process is complete, any amended test procedure will supersede the alternate test procedure described in this waiver. AHAM provided calculations to extrapolate Table 5.1 of the DOE test procedure to larger container volumes. DOE believes that this is a reasonable procedure because the DOE test procedure defines test load sizes as linear functions of the basket volume. AHAM's extrapolation was performed on the load weight in pounds, and AHAM appears to have used the conversion ratio of 1/2.2 (or 0.45454545) to convert pounds to kilograms. Whirlpool used the more accurate conversion value of 0.45359237 (which Samsung also used in its similar petition), rounding the results in kilograms to two decimal places. The Table 5.1 in the clothes washer NOPR referenced above has some small differences with the Table 5.1 used by Whirlpool and Samsung. The differences are due to rounding which Samsung and Whirlpool applied too early. The largest difference is 0.5%. The Table 5.1 values here are from DOE's NOPR. As DOE has stated in the past, it is in the public interest to have similar products tested and rated for energy consumption on a comparable basis.

III. Consultations With Other Agencies

DOE consulted with the Federal Trade Commission (FTC) staff concerning the Whirlpool petition for waiver. The FTC staff did not have any objections to granting a waiver to Whirlpool.

IV. Conclusion

After careful consideration of all the material that was submitted by Whirlpool, the interim waivers granted to GE and Samsung, the clothes washer test procedure rulemaking, and consultation with the FTC staff, it is ordered that:

(1) The petition for waiver submitted by the Whirlpool Corporation (Case No. CW-015) is hereby granted as set forth in the paragraphs below.

(2) Whirlpool shall not be required to test or rate the following Whirlpool models on the basis of the current test procedure contained in 10 CFR part 430, subpart B, appendix J1. Instead, it shall be required to test and rate such products according to the alternate test procedure as set forth in paragraph (3) below:

Brand	Model No.
Amana	NFW7600X*
Kenmore	2803*
Kenmore	2804*
Kenmore	2803*
Kenmore	2804*
Kenmore	2706*
Kenmore	2707*
Kenmore	2708*
Kenmore	2709*
Kenmore	2808*
Kenmore	n/a
Kenmore	2806*
Kenmore	2807*
Kenmore	2808*
Kenmore	2809*
Kenmore	2808*
Kenmore	2809*
Maytag	MHWE950W*
Maytag	MHWE550W*
Maytag	MHWE400W*
Maytag	MHWE450W*
Maytag	MTW6300TQ1
Maytag	MTW6500TQ1
Maytag	MTW6600T*1
Maytag	MTW6700TQ1
Maytag	MVWB400VW0
Maytag	MVWB700VW0
Maytag	MVWB800VW0
Maytag	MVWB300W*
Maytag	MVWB450W*
Maytag	MVWB750W*
Maytag	MVW7000X*
Maytag	MHW6000X*
Maytag	MVWB850W*
Whirlpool	WFW9750W*
Whirlpool	WFW9470W*
Whirlpool	WTW9451X*
Whirlpool	WTW6200S2
Whirlpool	WTW6200V*
Whirlpool	WTW6400S2
Whirlpool	WTW6600S2
Whirlpool	WTW6700T0
Whirlpool	WTW6300W*
Whirlpool	WTW6340W*
Whirlpool	WTW6700T*
Whirlpool	WTW7300X*
Whirlpool	WTW7340X*
Whirlpool	WFW94HEX*
Whirlpool	WFW95HEX*
Whirlpool	WFW97HEX*
Whirlpool	WTW7600X*
Whirlpool	WTW7800X*
Whirlpool	WTW6500W*
Whirlpool	WTW6800W*
Whirlpool	WTW7990X*

(3) Whirlpool shall be required to test the products listed in paragraph (2) above according to the test procedures for clothes washers prescribed by DOE at 10 CFR part 430, appendix J1, except that, for the Whirlpool products listed in paragraph (2) only, the expanded Table 5.1 below shall be substituted for Table 5.1 of appendix J1.

Table 5.1—Test Load Sizes

Container volume		Minimum load		Maximum load		Average load
cu. ft.	liter	lb	kg	lb	kg	lb	kg
≥ <	≥ <
0-0.8	0-22.7	3.00	1.36	3.00	1.36	3.00	1.36
0.80-0.90	22.7-25.5	3.00	1.36	3.50	1.59	3.25	1.47
0.90-1.00	25.5-28.3	3.00	1.36	3.90	1.77	3.45	1.56
1.00-1.10	28.3-31.1	3.00	1.36	4.30	1.95	3.65	1.66
1.10-1.20	31.1-34.0	3.00	1.36	4.70	2.13	3.85	1.75
1.20-1.30	34.0-36.8	3.00	1.36	5.10	2.31	4.05	1.84
1.30-1.40	36.8-39.6	3.00	1.36	5.50	2.49	4.25	1.93
1.40-1.50	39.6-42.5	3.00	1.36	5.90	2.68	4.45	2.02
1.50-1.60	42.5-45.3	3.00	1.36	6.40	2.90	4.70	2.13
1.60-1.70	45.3-48.1	3.00	1.36	6.80	3.08	4.90	2.22
1.70-1.80	48.1-51.0	3.00	1.36	7.20	3.27	5.10	2.31
1.80-1.90	51.0-53.8	3.00	1.36	7.60	3.45	5.30	2.40
1.90-2.00	53.8-56.6	3.00	1.36	8.00	3.63	5.50	2.49
2.00-2.10	56.6-59.5	3.00	1.36	8.40	3.81	5.70	2.59
2.10-2.20	59.5-62.3	3.00	1.36	8.80	3.99	5.90	2.68
2.20-2.30	62.3-65.1	3.00	1.36	9.20	4.17	6.10	2.77
2.30-2.40	65.1-68.0	3.00	1.36	9.60	4.35	6.30	2.86
2.40-2.50	68.0-70.8	3.00	1.36	10.00	4.54	6.50	2.95
2.50-2.60	70.8-73.6	3.00	1.36	10.50	4.76	6.75	3.06
2.60-2.70	73.6-76.5	3.00	1.36	10.90	4.94	6.95	3.15
2.70-2.80	76.5-79.3	3.00	1.36	11.30	5.13	7.15	3.24
2.80-2.90	79.3-82.1	3.00	1.36	11.70	5.31	7.35	3.33
2.90-3.00	82.1-85.0	3.00	1.36	12.10	5.49	7.55	3.42
3.00-3.10	85.0-87.8	3.00	1.36	12.50	5.67	7.75	3.52
3.10-3.20	87.8-90.6	3.00	1.36	12.90	5.85	7.95	3.61
3.20-3.30	90.6-93.4	3.00	1.36	13.30	6.03	8.15	3.70
3.30-3.40	93.4-96.3	3.00	1.36	13.70	6.21	8.35	3.79
3.40-3.50	96.3-99.1	3.00	1.36	14.10	6.40	8.55	3.88
3.50-3.60	99.1-101.9	3.00	1.36	14.60	6.62	8.80	3.99
3.60-3.70	101.9-104.8	3.00	1.36	15.00	6.80	9.00	4.08
3.70-3.80	104.8-107.6	3.00	1.36	15.40	6.99	9.20	4.17
3.80-3.90	107.6-110.4	3.00	1.36	15.80	7.16	9.40	4.26
3.90-4.00	110.4-113.3	3.00	1.36	16.20	7.34	9.60	4.35
4.00-4.10	113.3-116.1	3.00	1.36	16.60	7.53	9.80	4.45
4.10-4.20	116.1-118.9	3.00	1.36	17.00	7.72	10.00	4.54
4.20-4.30	118.9-121.8	3.00	1.36	17.40	7.90	10.20	4.63
4.30-4.40	121.8-124.6	3.00	1.36	17.80	8.09	10.40	4.72
4.40-4.50	124.6-127.4	3.00	1.36	18.20	8.27	10.60	4.82
4.50-4.60	127.4-130.3	3.00	1.36	18.70	8.46	10.80	4.91
4.60-4.70	130.3-133.1	3.00	1.36	19.10	8.65	11.00	5.00
4.70-4.80	133.1-135.9	3.00	1.36	19.50	8.83	11.20	5.10
4.80-4.90	135.9-138.8	3.00	1.36	19.90	9.02	11.40	5.19
4.90-5.00	138.8-141.6	3.00	1.36	20.30	9.20	11.60	5.28
5.00-5.10	141.6-144.4	3.00	1.36	20.70	9.39	11.90	5.38
5.10-5.20	144.4-147.2	3.00	1.36	21.10	9.58	12.10	5.47
5.20-5.30	147.2-150.1	3.00	1.36	21.50	9.76	12.30	5.56
5.30-5.40	150.1-152.9	3.00	1.36	21.90	9.95	12.50	5.65
5.40-5.50	152.9-155.7	3.00	1.36	22.30	10.13	12.70	5.75
5.50-5.60	155.7-158.6	3.00	1.36	22.80	10.32	12.90	5.84
5.60-5.70	158.6-161.4	3.00	1.36	23.20	10.51	13.10	5.93
5.70-5.80	161.4-164.2	3.00	1.36	23.60	10.69	13.30	6.03
5.80-5.90	164.2-167.1	3.00	1.36	24.00	10.88	13.50	6.12
5.90-6.00	167.1-169.9	3.00	1.36	24.40	11.06	13.70	6.21
Notes: (1) All test load weights are bone dry weights.
(2) Allowable tolerance on the test load weights are ±0.10 lbs (0.05 kg).

(4) Representations. Whirlpool may make representations about the energy use of its clothes washer products for compliance, marketing, or other purposes only to the extent that such products have been tested in accordance with the provisions outlined above and such representations fairly disclose the results of such testing.

(5) This waiver shall remain in effect consistent with the provisions of 10 CFR 430.27(m).

(6) This waiver is issued on the condition that the statements, representations, and documentary materials provided by the petitioner are valid. DOE may revoke or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics.

Issued in Washington, DC, on November 4, 2010.

Cathy Zoi,

Assistant Secretary, Energy Efficiency and Renewable Energy.