# Energy Conservation Program for Consumer Products: Test Procedure for Clothes Washers and Reporting Requirements for Clothes Washers, Clothes Dryers, and Dishwashers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A97-22682 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** August 27, 1997 - **Citation:** 62 FR 45484 ## Text DEPARTMENT OF ENERGY Office of Energy Efficiency and Renewable Energy 10 CFR Part 430 [Docket No. EE-RM-94-230A] RIN 1904-AA68 Energy Conservation Program for Consumer Products: Test Procedure for Clothes Washers and Reporting Requirements for Clothes Washers, Clothes Dryers, and Dishwashers AGENCY: Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This rule amends the Department of Energy clothes washer test procedure to test for compliance with the existing energy conservation standard. It also establishes a new clothes washer test procedure which will be used to analyze, and will apply to, anticipated revisions to the existing clothes washer energy conservation standards. This rule also modifies reporting requirements for clothes washers, clothes dryers, and dishwashers, requiring manufacturers and private labelers to submit energy factor data on their certification reports to the Department. DATES: This rule is effective February 23, 1998. ADDRESSES: Copies of the transcripts of the public hearings and the public comments received on any of the proposed rules, may be read and photocopied at the Department of Energy Freedom of Information Reading Room, U.S. Department of Energy, Forrestal Building, Room 1E-190, 1000 Independence Avenue, SW, Washington, DC 20585, (202) 586-6020 between the hours of 9:00 a.m. and 4:00 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Bryan Berringer and P. Marc LaFrance, U.S. Department of Energy, Energy Efficiency and Renewable Energy, Mail Station EE-43, Forrestal Building, 1000 Independence Avenue, SW, Washington, DC 20585-0121, (202) 586-0371. Edward Levy, Esq., U.S. Department of Energy, Office of General Counsel, Mail Station GC-72, Forrestal Building, 1000 Independence Avenue, SW, Washington, DC 20585-0103, (202) 586-9507. SUPPLEMENTARY INFORMATION: I. Introduction II. Background III. Discussion A. Clothes Washer Test Procedures--Issues Related to Both Appendices J and J1 1. Adaptive Water Fill Control System 2. Electrical Supply Requirements 3. Field Testing 4. Remaining Moisture Content a. Energy Required to Remove Moisture from the Test Load b. Spin Speed and Spin Time c. Test Load Size for RMC 5. Thermostatically Controlled Water Valves 6. Water Consumption Factor B. Clothes Washer Test Procedures--Issues Related to Appendix J 1. Agitator and Spin Speed Settings 2. Capacity Measurement 3. Modified Energy Factor Definition 4. Other Issues 5. Temperature Measuring (Sensing) Device 6. Temperature Selections a. Multiple Warm Wash Temperatures b. Temperature Selection(s) Locked Out of the Normal Cycle 7. Water-Heating Clothes Washers 8. Weighing Scales for Test Cloth and Clothes Container C. Clothes Washer Test Procedures--Issues Related to Appendix J1 1. Capacity Measurement 2. Consumer Selectable Options for the Energy Test Cycle 3. Energy Test Cloth 4. Energy Test Cycle Definition 5. Other Issues 6. Supply Water Temperature 7. Test Load Tolerances 8. Warm Wash Temperature Selections 9. Warm Rinse D. Related Issues, Revision to 10 CFR 430.23, ``Test procedures for measures of energy consumption.'' E. Reporting Requirements, Revision to 10 CFR 430.62, ``Submission of data.'' F. Effective Date IV. Determination Concerning the Impact of the Amended Test Procedures on Standards V. Procedural Requirements A. Environmental Review B. Regulatory Planning and Review C. Federalism Review D. ``Takings'' Assessment Review E. Paperwork Reduction Act Review F. Unfunded Mandates Act. G. Review Under the Regulatory Flexibility Act of 1980 H. Review Under Executive Order 12988, ``Civil Justice Reform'' I. Review Under Small Business Regulatory Enforcement Fairness Act of 1996 I. Introduction Part B of Title III of the Energy Policy and Conservation Act as amended (EPCA), establishes the Energy Conservation Program for Consumer Products Other Than Automobiles (Program).1 The products currently subject to this Program (often referred to hereinafter as ``covered products'') include clothes washers, clothes dryers and dishwashers, the subjects of today's notice. --------------------------------------------------------------------------- \1\ Part B of Title III of EPCA, as amended, is referred to in this final rule as the ``Act'' and provisions of the Act are referred to either as ``Section__of the Act.'' Part B of Title III is codified at 42 U.S.C. 6291-6309. --------------------------------------------------------------------------- Under the Act, the Program consists essentially of three parts: testing, labeling, and the Federal energy conservation standards. The Department, in consultation with the National Institute of Standards and Technology (NIST, formerly the National Bureau of Standards), is required to establish new test procedures or amend existing test procedures, as appropriate, for each of the covered products. EPCA, section 323. The purposes of the test procedures are to provide uniform methods that generally must be used as the basis for any representations concerning the energy consumption of a product, and for determining whether the product complies with the applicable energy conservation standard. See EPCA, sections 323(c), 324(c), and 325(s). Test procedures appear at 10 Code of Federal Regulation (CFR) part 430, Subpart B. A test procedure promulgated under section 323 of the Act must be reasonably designed to produce test results which measure energy efficiency, energy use, water use (in the case of shower heads, faucets, water closets and urinals), 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. EPCA, section 323(b)(3). A test procedure is not required if DOE determines by rule that one cannot be developed. EPCA, section 323(d)(1). One hundred and eighty days after a test procedure for a product is adopted, no manufacturer may make representations with respect to energy use, efficiency or water use of such product, or the cost of energy consumed by such product, except as reflected in tests conducted according to the DOE procedure. EPCA, section 323(c)(2). This 180-day period may be extended for up to an additional 180 days if the Secretary determines that the requirements of section 323(c)(2) would impose undue burden. EPCA, section 323(c)(3). 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, measured energy use or measured water use of any covered product as [[Page 45485]] determined under the existing test procedure. If DOE determines that an amended test procedure would alter the measured efficiency or measured use of a covered product, DOE is required to amend the applicable energy conservation standard accordingly. EPCA, section 323(e)(2). II. Background Today's final rule reflects the Department's consideration of several proposed rules issued since December 1993 concerning DOE clothes washer test procedures, and of the public comment and testimony received in response to those proposals. The Department's action consolidates the issues pertaining to these proposals and reflects the most recent data submitted by clothes washer manufacturers. The initial proposal, published on December 22, 1993, proposed to amend the clothes washer test procedure to address temperature selections that are locked out of the normal cycle (formerly Docket Number EE-RM-93-701). 58 FR 67710 (December 22, 1993) (hereinafter referred to as the December 1993 proposed rule). A public hearing was held on February 24, 1994. The Department proposed the following approach for a clothes washer equipped with this feature: for each temperature combination in the normal cycle from which a temperature selection is locked out, hot water consumption would be prorated between the temperature combination in that cycle and the corresponding temperature combination in the cycle with the greatest hot water consumption. The unknown factor in the calculation was the frequency with which users would choose the normal versus other cycles for a particular temperature combination selection, i.e., the proration value. As stated in the December 1993 proposed rule, clothes washers equipped with a temperature selection ``lockout'' design feature had not been available previously in the marketplace. Therefore, no data regarding the effect of this feature on consumer cycle selection were available. The Department proposed a proration value representative of normal cycle use for all clothes washers (normal cycle would be selected 75 percent of the time). Many of the commenters objected to the proposed value. Following review of the comments, on May 24, 1995, the Department revised the proposal, specifically requesting usage data for clothes washers with ``lockouts,'' and, absent receipt of valid usage data, proposing to reduce the proration value (normal cycle would be used 20 percent). 60 FR 27441 (May 24, 1995) (hereinafter referred to as the May 1995 proposed rule). The Department received data from the Whirlpool Corporation (Whirlpool), and comments from White Consolidated Industries Inc. (White Consolidated), Maytag Corporation (Maytag), and Whirlpool. On March 23, 1995, the Department published another proposed rule to amend the clothes washer test procedure (former Docket Number EE-RM- 94-230). 60 FR 15330 (hereinafter referred to as the March 1995 proposed rule). This proposal addressed: innovative technologies (high spin speed and adaptive (automatic) water fill control); water heating clothes washers; annual number of clothes washer cycles; and other general revisions. The March 1995 proposed rule also proposed the reporting of energy factor data on manufacturer certification reports for clothes washers, clothes dryers and dishwashers. On July 12, 1995, a hearing on the proposed rule was held in Washington, DC. The Department received comments from 10 interested parties: the Association of Home Appliance Manufacturers (AHAM), General Electric Appliances (GEA), Eugene Water and Electric Board (EWEB), Miele Appliance Inc. (Miele), Proctor and Gamble (P&G), Maytag, Speed Queen Company (Speed Queen), Clorox Company (Clorox), American Council for an Energy Efficient Economy (ACEEE), and Whirlpool. The Department believes that the existing test procedure, Appendix J, overstates the average annual energy consumption for clothes washers because of changes in consumer habits since the current test procedure was adopted.2 The Department had planned on initiating a subsequent clothes washer test procedure rulemaking, at a later date, which would take into account current consumer habits, and would be used as the basis for considering revision of the clothes washer energy conservation standards.3 --------------------------------------------------------------------------- \2\ Proctor & Gamble data indicates a decrease in the use of hot water. \3\ The second round of clothes washer standards rulemaking was initiated by the publication of an Advance Notice of Proposed Rulemaking (ANOPR). (59 FR 56423, November 14, 1994.) The Department has initiated the process for issuing a Supplemental ANOPR, having conducted an initial workshop in November 1996, with another workshop scheduled for July 23, 1997. --------------------------------------------------------------------------- In its comments on the March 1995 proposed rule, however, AHAM included and requested that DOE adopt an additional new test procedure, based on current consumer habits, which would be used in considering revision of the clothes washer energy conservation standards, and would take effect when new standards take effect. On April 22, 1996, the Department proposed such a new clothes washer test procedure, Appendix J1, as well as certain additional revisions to the currently applicable test procedure in Appendix J to Subpart B of 10 CFR part 430. 61 FR 17589 (hereinafter referred to as the supplemental proposed rule). Appendix J1 would be codified in the CFR for informational purposes, would be used in the analysis and review of revised efficiency standards, and would replace Appendix J upon the effective date of such revised standards. The revised Appendix J would be a revision of the current test procedure, consistent with the existing standards, and would become effective 180 days after issuance of the final rule. In response to the supplemental proposed rule, the Department received comments from 11 interested parties: The Consortium for Energy Efficiency (CEE), National Resources Defense Council (NRDC), Miele, Frigidaire Company (Frigidaire), Lever Brothers Company (Lever), AHAM, Maytag, Raytheon Appliances (Raytheon), Whirlpool, Fisher and Paykel Limited (Fisher and Paykel), and White Consolidated. Since publication of the March 1995 proposed rule, several new issues emerged that were neither covered by the existing clothes washer test procedure contained in Appendix J nor addressed in the supplemental proposed rule. These issues arose in the context of interim waivers from the clothes washer test procedure, granted by DOE with respect to clothes washer features not covered by the current test procedure. Specifically, the Department granted GEA Interim Waivers for its clothes washers with unique adaptive water fill control and temperature selection features. 61 FR 18129 (April 6, 1996) and 61 FR 47115 (September 6, 1996). Therefore, on November 8, 1996, the Department issued a notice to reopen the comment period to invite comment on options the Department was considering to address issues raised by these waiver applications. 61 FR 57794 (hereinafter referred to as the reopening notice rule). In response to the reopening notice, DOE received two comments, from Fisher and Paykel, and AHAM. [[Page 45486]] III. Discussion A. Clothes Washer Test Procedures--Issues Related to Both Appendices J and J1 1. Adaptive Water Fill Control System An adaptive water fill control system (AWFCS) in a clothes washer is a control scheme which determines automatically, without operator intervention, the amount of water used to wash a particular load of clothing, based on the size or weight of that clothing load. The existing test procedure provides only for testing machines with manual fill controls. In the March 1995 proposed rule, the Department proposed to amend Appendix J to include test provisions for a clothes washer that had an AWFCS 4 instead of manual controls. In the reopening notice, the Department also proposed to include test provisions for clothes washers that had both adaptive and manual water fill control capability, as well as test provisions for clothes washers with multiple AWFCS settings. --------------------------------------------------------------------------- \4\ In the March 1995 proposed rule, the terminology used for this feature was ``machine-controlled water fill,'' although the Department is adopting language used in the supplemental proposed rule, ``adaptive water fill control system.'' --------------------------------------------------------------------------- In the supplemental proposed rule, the Department proposed provisions for clothes washers with AWFCS features. Appendix J1 requires testing with maximum, average, and minimum size test loads, whereas the proposed Appendix J requires testing with only maximum and minimum size test loads. Appendices J and J1 specify different load usage factors (used to prorate energy results from various tests) for the different size loads. In addition, Appendix J1 has a new test load table with variable size loads based on clothes washer capacity, which are generally larger than the Appendix J fixed size test loads. AWFCS Provisions for Appendix J In response to the March 1995 proposed rule, Speed Queen commented that it supports the Department's proposal and rejects the adoption of AHAM's future AWFCS provisions (subsequently proposed for Appendix J1) for Appendix J. (Speed Queen, No. 29 at 3, Docket 230).5 GEA cautioned the Department not to adopt any AWFCS provisions for Appendix J because ``adverse competitive impact is simply too great if notice through the waiver procedure is not available.'' (GEA, No. 36 at 3, Docket 230). Whirlpool supported incorporation into Appendix J of AHAM's proposed test provisions concerning AWFCS. The company stated that ``the AHAM proposed procedure will provide a usage that more closely approximates the consumer use habits, and since there are not currently any vertical-axis product[s] that utilize AFC [automatic fill control] and horizontal-axis product is not required to meet a specific energy standard, this would not require a new standard to be established.'' (Whirlpool, No. 37 at 3, Docket 230). --------------------------------------------------------------------------- \5\ Comments have been assigned to docket numbers and have been numbered consecutively. A Comment in response to the May 1995 proposed rule, Docket number EE-RM-93-701, will have its appropriate number followed by ``Docket 701'', a comment in response to the March 1995 proposed rule, Docket number EE-RM-94-230, will have its appropriate number followed by ``Docket 230'', and a comment in response to the supplemental proposed rule or reopening notice, Docket number EE-RM-94-230A, will have its appropriate number followed by ``Docket 230A.'' Statements that were presented at the July 12, 1995, public hearing are identified as Testimony. --------------------------------------------------------------------------- The Department rejects GEA's argument not to promulgate AWFCS test provisions in Appendix J. The Department has the responsibility to provide codified test provisions for issues that have been addressed previously by waivers. At the time of the March 1995 proposed rule, the Department had already granted a waiver to Asko Incorporated (Asko) for its clothes washers with AWFCS capability. 59 FR 15710 (April 4, 1994). Since the publication of the March 1995 proposed rule, the Department has granted a Waiver to Miele and an Interim Waiver to GEA for their clothes washers with AWFCS capability. 61 FR 11201 (March 19, 1996) and 61 FR 18125 (April 24, 1996). The Department believes that the Appendix J1 AWFCS test provisions, which specify a new test load table based on current consumer habits, will provide more accurate results for clothes washers equipped with AWFCS. In the supplemental proposed rule, the Department requested additional information regarding the possible adoption of the proposed Appendix J1 test load table for Appendix J. If adopted, the test load table would have been applicable only to front-loader and top-loader clothes washers with AWFCS capability. The Department received an overwhelming negative response to this suggestion. Miele, AHAM, Maytag, Raytheon and White Consolidated opposed the use of the Appendix J1 test load table for any testing other than Remaining Moisture Content (RMC) testing (which is voluntary for Appendix J) because of test burden concerns and disparity of test results between front-loader and traditional top-loader clothes washers. (Miele, No. 4 at 1; AHAM, No. 7 at 1, 4, 5; Maytag, No. 8 at 3; Raytheon, No. 9 at 4; and White Consolidated, No. 11 at 1, 2 and No. 12 at 1, all Docket 230A). In response to the supplemental proposed rule, the Department did not receive any comments supporting the adoption, other than for RMC testing, of the new test load table for Appendix J. The Department believes that the promulgation of the March 1995 proposed rule AWFCS test provisions, which use test loads that do not reflect current consumer usage habits, most likely will provide an artificial credit for clothes washers with AWFCS capability. The Department also believes, however, that the artificial credit, or reduced energy consumption rating, will be offset by the Appendix J's current overstating of energy consumption. Consequently, the rating depicted to consumers for AWFCS clothes washers generally will be representative of the actual energy consumption. Therefore, the Department is maintaining the test load requirements for energy consumption testing as proposed in the March 1995 proposed rule. In the reopening notice, with regard to clothes washers with multiple AWFCS settings, 6 the Department proposed test provisions to average the results from the most and least energy intensive settings. AHAM commented that it supported the Department's proposal. (AHAM, No. 19 at 1, Docket 230A). Fisher and Paykel commented that this proposal would add test burden but indicated that it had no alternative. (Fisher and Paykel, No.22 at 3, Docket 230A). Based on the comments received, DOE has determined that for clothes washers with multiple AWFCS settings the test provisions proposed in the reopening notice are appropriate. Therefore they are incorporated into today's final rule for Appendix J. --------------------------------------------------------------------------- \6\ Multiple AWFCS settings allow a consumer to adjust the ``sensitivity'' of the AWFCS feature so as to permit different amounts of water for a given load of clothing and corresponding different amounts of energy consumption. --------------------------------------------------------------------------- AWFCS Provisions for Both Appendices J and J1 In the reopening notice, with regard to a clothes washer that had both AWFCS and manual water fill control, 7 the Department proposed requirements to test both features and to average the results. AHAM comment supported the Department's proposal. (AHAM, No. 19 at 1, Docket 230A). Fisher and Paykel stated that it believed the AWFCS [[Page 45487]] feature would be used more frequently than the manual mode. Fisher and Paykel added, however, that it has no data concerning use of the AWFCS feature in the U.S. (Fisher and Paykel, No. 22 at 3, Docket 230A). The Department had proposed the same testing and averaging requirements for Appendix J1 in the supplemental proposed rule and received no negative comments. Based on all of these factors, the test provisions proposed for clothes washers with both AWFCS and manual water fill control are incorporated into today's final rule for Appendices J and J1. --------------------------------------------------------------------------- \7\ In Appendix J, two types of manual fill control are defined, ``sensor filled'' and ``timed filled.'' --------------------------------------------------------------------------- Fisher and Paykel commented that the proposed definition of ``adaptive control system'' is ambiguous and suggested that the definition state explicitly that it does not include ``AWFCS.'' (Fisher and Paykel, No. 16 at 1, Docket 230A). The Department agrees with Fisher and Paykel. Therefore, the Department has adopted language for the ``adaptive control system'' definition for Appendices J and J1 as suggested by Fisher and Paykel. In addition, to prevent any ambiguity, the Department has made minor revisions to the rule language where the terms ``adaptive control system'' and ``adaptive water fill control system'' are used. AWFCS Provisions for Appendix J1 In the supplemental proposed rule, with regard to clothes washers with multiple AWFCS settings, the Department proposed test provisions to average the results from tests of the most and least energy intensive settings. AHAM and Raytheon opposed this proposal and suggested an alternative method to reduce test burden. (AHAM, No. 14 at 1; and Raytheon, No. 9 at 4 and No. 13 at 2; both Docket 230A). The alternative method would require testing the most energy intensive setting with a maximum size test load, the most and least energy intensive settings with an average size test load, and the least energy intensive setting with a minimum size test load. The Department's proposal would have required testing of the most and least energy intensive settings for the maximum, average, and minimum size test loads. Since an average size test load would be used by consumers most of the time (74 percent), the Department has determined that AHAM's proposal would account for 87 percent of the energy consumption test results (of the full compliment of tests results proposed by the Department), while only requiring 66 percent of the number of tests. In addition, the AHAM proposal would ensure that the combination of settings with the lowest possible energy consumption, i.e., the lowest energy intensive setting with a minimum size test load, and with the highest possible energy consumption, i.e., the highest energy intensive setting with a maximum size test load, would be tested. Therefore, the Department is adopting the test methodology for Appendix J1 suggested by AHAM and supported by Raytheon. Based on AHAM's suggested test procedure, the supplemental proposed rule also specified that additional test loads be tested if an AWFCS clothes washer does not have linear results for average size test loads, i.e., non-linear between the maximum and minimum size test load results. For a clothes washer that generates non-linear test results, additional tests would be required for ``above average'' and ``below average'' test load sizes. AHAM, Fisher and Paykel, and Raytheon believe that the additional testing requirements would create an unnecessary test burden. (AHAM, No. 14 at 2, 3; Fisher and Paykel, No. 16 at 6, 10; and Raytheon, No. 13 at 2; all Docket 230A). In addition, AHAM provided an analysis which indicates that, with a worst case non- linear result, the change in resulting energy factor or modified energy factor would be small, an average of some four to five percent. (AHAM, No. 21, Docket 230A). The Department has reviewed the analysis provided by AHAM and agrees that the additional test burden is not warranted for the potential improvement in test accuracy. Furthermore, the worst case scenario analyzed by AHAM does not appear to be likely, and thus actual test result disparity would be less than four or five percent. Therefore, Appendix J1 as promulgated today does not require testing of ``above average'' and ``below average'' test loads for AWFCS clothes washers that generate non-linear test results. 2. Electrical Supply Requirements The March 1995 proposed rule proposed deleting a provision in the existing test procedures (Appendix J) that allowed turning off console lights that did not consume more than 10 watts of power during the clothes washer test cycle. Similarly, the supplemental proposed rule did not propose to include such a provision in Appendix J1. Speed Queen supported the Department's proposal to delete the provision from Appendix J. (Speed Queen, No. 29 at 4, Docket 230). NRDC, Maytag, and Raytheon supported the Department's proposal not to include this provision in Appendix J1. (NRDC, No. 2 at 2; Maytag, No. 8 at 2; and Raytheon, No. 9 at 1; all Docket 230A). Today's final rule is consistent with the March 1995 proposed rule and supplemental proposed rule, and excludes this provision. 3. Field Testing In the supplemental proposed rule, the Department proposed that both Appendices J and J1 would require manufacturers to field test a non-conventional clothes washer (such as one with automatic control of features other than water fill) as a basis for requesting a test procedure waiver pursuant to 10 CFR 430.27. The Department stated that field test data would be used to support the petition for waiver. Both the preamble and rule language indicate that a test procedure waiver would be required in order to test a non-conventional clothes washer, and the field testing proposal clearly assumes that a waiver would be needed to test such a machine. The supplemental proposed rule would also require field testing if a manufacturer believes that a clothes washer with both manual and adaptive fill controls is being used by consumers, in the adaptive mode, more than 50 percent of the time, and seeks a waiver from the provision of the test procedure that assumes such 50% usage. AHAM had recommended the proposed field testing provisions for both Appendices J and J1, to provide data to support waiver applications. (AHAM, No. 5 at 5, Docket 230). In response to the supplemental proposed rule, AHAM commented that the field testing requirements should be optional, not mandatory, and recommended specific rule language revisions. (AHAM, No. 7 at 1 & 5 and No. 14 at 4, Docket 230A). AHAM's position was supported by several manufacturers. (Miele, No. 4 at 2; Maytag, No. 8 at 3; Fisher and Paykel, No. 16 at 12, 13; and Raytheon, No. 9 at 3; all Docket 230A). Neither AHAM nor the other commenters, however, questioned the need for a waiver to establish test procedures for a non-conventional clothes washer. The Department agrees with AHAM and the commenting manufacturers that the field testing provisions should not be mandatory. For a non- conventional clothes washer such as one with an adaptive control system, the test procedures in proposed Appendices J and J1 would provide materially inaccurate data as to energy consumption. Therefore, a test procedure waiver would be required. A waiver in effect creates a new test procedure for a machine, specifying inapplicable provisions of the required test procedure and additional [[Page 45488]] requirements necessary for testing or analysis of test results, thus providing a basis for determining compliance with efficiency standards and for making efficiency representations. The proposed field testing was intended to support a test procedure waiver, by providing a generally accepted method for collecting data and adjusting test results. Although the Department continues to believe that field testing can serve this purpose, it recognizes the possibility that a waiver could be supported by means other than field testing, and by field test methods other than those in the supplemental proposed rule. Moreover, there may be instances where the proposed field testing methods are inadequate. Therefore, today's final rule provides that the proposed field testing requirements are guidelines, rather than mandatory procedures that a manufacturer must use to gather information to support each waiver application. Although field testing should be used where appropriate, the Department will still consider a petition for waiver that is not based on field testing. In addition, the Department may reject field testing results, if warranted. As in the proposed rule, however, the final rule makes clear that a manufacturer must obtain a test procedure waiver for non-conventional clothes washers, including machines with adaptive control systems. Fisher and Paykel provided additional comments regarding field testing provisions. The company is concerned about (1) whether the proposed rule is intended to permit field testing outside of the U.S., (2) the equation to correlate field testing results with laboratory test ratings, and (3) a requirement to record the dry clothing weight prior to washing. (Fisher and Paykel, No. 16 at 12, 13; Docket 230A). Fisher and Paykel assumes that field testing could be performed in any location, including outside of the U.S. The company did not comment whether manufacturers should be required to perform field testing in the U.S. The Department contemplates that field testing would determine consumer behavior relative to a particular clothes washer. Such consumer behavior would be a basis for determining compliance with DOE efficiency standards (and whether the clothes washer could be sold in the U.S.) and for representations within the U.S. concerning the machine's efficiency. Thus, consumer usage data derived in the U.S. would be most applicable. Nevertheless, since today's rule makes field testing provisions optional, the Department does not believe it needs to address whether field tests should be restricted to the U.S. Field test results, however, will be subject to competitor and Department review as part of the Petition for Waiver process found at 10 CFR 430.27. A petitioner submitting consumer usage data derived outside of the U.S. most likely would be expected to show that the data applies to, and is valid for, U.S. consumer usage patterns. Therefore, today's final rule does not add a requirement to restrict field testing to the U.S. and is being promulgated as proposed. Fisher and Paykel also questioned the field testing equation used to develop an acceptable rating of a ``test'' clothes washer (section 6.1 of the supplemental proposed rule). (Fisher and Paykel, No. 16 at 13, Docket 230A). The following paragraph is an excerpt from section 6.1 of the supplemental proposed rule. ``The field test results will be used to determine the best method to correlate the rating of the test clothes washer to the rating of the base clothes washer. If the base clothes washer is rated at A kWh per year, but field tests at B kWh per year, and the test clothes washer field tests at D kWh per year, the test unit would be rated as follows: A x (D/B)=GkWh per year'' Fisher and Paykel suggested an alternate mathematical expression which provides the same result but ``better indicates that a ratio of the base clothes washer \8\ laboratory and field energy measurements are used to correct the test clothes washer field results.'' Fisher and Paykel misunderstood the intent of the equation. The Department maintains that the rating of the ``test'' clothes washer should be derived by adjusting the established ``base'' clothes washer rating. Thus, the ``base'' clothes washer rating would be multiplied by the ratio of the field results for a ``test'' clothes washer divided by the field results of a ``base'' clothes washer. Therefore, the Department is promulgating the proposed mathematical expression without revision. --------------------------------------------------------------------------- \8\ A ``base'' clothes washer refers to a machine already being sold in commerce without the unique feature being field tested. --------------------------------------------------------------------------- Fisher and Paykel opposed a field testing requirement to have consumers dry the clothing load prior to washing. According to Fisher and Paykel, the result may affect consumer behavior, i.e., a consumer may choose different clothes washer settings if the actual weight of the clothing is known. The company also maintains that it is unrealistic to have consumers dry dirty clothing, and that the calculations do not use the dry weight of the clothing. (Fisher and Paykel, No. 16 at 13, Docket 230A). The Department agrees with Fisher and Paykel that it is impracticable to have consumers dry soiled clothing in their clothes dryers prior to washing. This would waste energy, soil the clothes dryer for future use, and may make it more difficult to clean the clothing. Fisher and Paykel is incorrect, however, in asserting that the dry clothing weight is not required. Data regarding load size is useful to correlate tests in the field with laboratory tests which use fixed test loads. In addition, the dry clothing weight is required when a calculation is needed of the remaining moisture content result. The Department believes that this measurement can be obtained at the end of the clothes dryer drying cycle. Therefore, to establish more practicable requirements, today's final rule specifies the measurement of the dry clothing weight at the end of the laundry process. 4. Remaining Moisture Content The March 1995 proposed rule proposed to include an optional test provision in Appendix J to address the moisture content of clothing at the completion of the clothes washer cycle (referred to herein as ``remaining moisture content'' or ``RMC'' \9\). This provision included a calculation to determine the energy required to fully dry the clothing. AHAM recommended a revised test provision to test the RMC of a test load for its suggested future use test procedure, and suggested adoption of these same test provisions, on an optional basis, for Appendix J. (AHAM, No. 5 at 3, 7 and No. 8 at 1, both Docket 230). This was supported by Raytheon. (Raytheon, No. 29 at 2, Docket 230). The Department accepted AHAM's recommended test provisions to address the RMC of clothing at the completion of the clothes washer cycle, and proposed to incorporate them into Appendix J1. --------------------------------------------------------------------------- \9\ RMC represents a percentage derived by dividing the moisture weight that is remaining in the clothing at the completion of the clothes washer cycle by the weight of the dry clothes prior to the clothes washing cycle. --------------------------------------------------------------------------- The Department believes these provisions are superior to the provisions proposed in the March 1995 proposed rule, Appendix J, for calculating the energy required to remove moisture from clothing. The Appendix J1 approach is based on current consumer usage habits which reflect larger loads, account for wash loads that are not dried in clothes dryers, i.e., 16 percent of wash loads, and account for residual moisture, i.e., 4 percent remaining in the clothing at the completion of a typical clothes dryer cycle. Thus, DOE [[Page 45489]] believes the Appendix J1 test methodology is more representative of a consumer's energy use. The provisions of Appendix J1 also provide a means to assess the water extraction capability of a clothes washer independent of any other descriptor, i.e., a RMC percentage value. Accordingly, today's final rule incorporates consistent test provisions for RMC and the energy required to remove the moisture from the clothing for both Appendices J and J1. This includes the adoption of a new test load table for testing RMC in Appendix J. The Department also received comments concerning aspects of RMC which were addressed in the supplemental proposed rule. The following issues relate to RMC and are applicable to both Appendices J and J1. a. Energy Required to Remove Moisture from the Test Load. The RMC value is used to calculate the energy required to remove moisture from the test load, ``DE''. The ``DE'' is calculated using the maximum size test load, load adjustment factor (LAF) (P&G ratio of maximum load size to average load size), nominal energy required to remove moisture from clothes (assumed constant for all clothes dryers, 0.5 kWh/lb), and the clothes dryer utilization factor (DUF) (percentage of clothes washer loads that are dried by clothes dryers). AHAM originally recommended a DUF of 83 percent, although P&G calculates the DUF to be 84.4 percent.\10\ The Department stated in the supplemental proposed rule that it planned on using 84 percent for the DUF. Raytheon and Maytag support the Department's use of 84 percent for the DUF. (Maytag, No. 8 at 2; and Raytheon, No. 9 at 1, both Docket 230A). Today's final rule incorporates a DUF of 84 percent for Appendices J and J1. --------------------------------------------------------------------------- \10\ Comment 32 on Docket number EE-RM-94-403. --------------------------------------------------------------------------- b. Spin Speed and Spin Time. GEA expressed concern about the possibility of manufacturers providing manually selectable options to consumers, e.g., multiple spin speed and time selections, which would affect the resulting RMC of consumer wash loads. GEA believes that the Department should not use the lowest RMC level achieved in a clothes washer for the future minimum energy conservation standard analysis or for energy reporting, and that there should be some type of ``discounting of the RMC credit.'' According to GEA, consumers may not always choose the setting which would result in the lowest RMC value. (Testimony at 157). In response, the Department stated in the supplemental proposed rule that it was considering a requirement to average the extreme values of the multiple selections, e.g., spin speeds and times, that are available in the energy test cycle. The Department requested comments regarding this issue. Several comments were received. AHAM provided a revised method to prorate multiple consumer options affecting RMC. AHAM believes that settings for the lowest RMC value , i.e., greatest extraction of moisture, will be used by consumers 75 percent of the time and that the highest RMC value will be used 25 percent of the time. This is based on P&G usage data for delicate and permanent press cycles. (AHAM, No. 7 at 2 and No. 14 at 4, both Docket 230A). The AHAM methodology was supported by Miele, Maytag, and Raytheon. (Miele, No. 4 at 3; Maytag, No. 8 at 2; and Raytheon, No. 9 at 1; all Docket 230A). NRDC supports some type of ``averaging'' to address this issue and believes the concern ``would be mitigated'' as proposed in the supplemental proposed rule. (NRDC, No. 2 at 2, Docket 230A). Fisher and Paykel believes that the factory default spin speed should be used for the RMC test, although in the absence of a factory default it supported the AHAM methodology. (Fisher and Paykel, No. 16 at 12, Docket 230A). White Consolidated opposed conducting the RMC test at any speed other than the maximum spin speed because testing momie cloth (the specified test cloth) at low spin speeds does not reflect actual consumer usage. White Consolidated also indicated that mismatching the wash cycle, load size, and load type can produce RMC measurements that miss ``real world'' results by as much as 35 percent. (White Consolidated, No. 12 at 1, 2, Docket 230A). The Department believes that some consumers will choose spin speed and spin duration options which achieve RMC values above the lowest attainable in the energy test cycle, although consumer usage habits are not known. For this reason, the Department proposed to require averaging the lowest and highest RMC values. Almost all the commenters advocated a proration of 75 percent for the lowest RMC value and 25 percent for the highest RMC value. These values are based on the use of the delicate and permanent press cycles. Use of these cycles may not correlate exactly to the use of optional spin speed and spin duration selections in the energy test cycle. This approach, however, seems reasonable because consumers who wash less durable articles of clothing in the energy test cycle to prevent possible fabric damage probably will refrain from extracting the maximum amount of water in the clothes washer. There may be some merit to White Consolidated's concern that consumer use of cycles, load size, and load type must be more accurately gauged in order to accurately represent RMC. Until such data is available, however, the optimum choice appears to be the use of the 75/25 percent proration based on delicate and permanent press cycle usage. Today's final rule incorporates the 75/25 percent proration into Appendices J and J1. Miele expressed concern about excluding an option for no spin speed from the minimum spin speed test requirement. Miele indicated that for front loader clothes washers which have a no spin speed option, the clothing will remain submerged in water and the door will remain locked until a spin speed selection is made. (Miele, No. 4 at 3 and No. 17 at 1, both Docket 230A). The Department agrees with Miele that, if a clothes washer is equipped with an optional no spin speed selection in the energy test cycle, such selection should not constitute the lowest spin speed selection for RMC calculations. The Department believes that a no spin speed selection is a unique feature intended for rare use by consumers. Moreover, it is unlikely that consumers would place wet clothing, without any partial drying by the clothes washer, directly into a clothes dryer. Therefore, today's final rule includes language to exclude a no spin selection from RMC testing requirements for Appendices J and J1. c. Load Size for RMC. In response to the March 1995 proposed rule, GEA provided a graph with RMC on the ``Y'' axis and Load Size on the ``X'' axis. (GEA, No. 6 at appendix E, Docket 230). Although not quantified, the graph depicted a relatively large negative slope of approximately 0.5. Thus, according to the graph, as load size gets larger the RMC level decreases substantially.11 If GEA's graph accurately depicts the slope, this would have a major impact on the expected energy savings to consumers and on manufacturer efficiency/energy consumption representations, because the data show that consumers use their clothes washers with an average size load 74 percent of the time. Under the proposed test procedure, RMC is first determined for a maximum size load. The RMC thus determined is then adjusted in order to determine the moisture content that would remain in an average size load. The adjustment [[Page 45490]] formula is based on the assumption, which GEA disputes, that RMC, as a percentage amount, is the same for different load sizes. If GEA is correct, the anticipated energy consumption to remove the moisture from the clothing, as determined under the foregoing calculation, would be artificially low. In the supplemental proposed rule, the Department requested data and comments concerning this issue. --------------------------------------------------------------------------- \11\ RMC is a percentage which decreases, although the actual remaining moisture weight increases because the larger load retains more moisture. --------------------------------------------------------------------------- The Department received confidential data from Miele and Whirlpool, and publicly available data from Raytheon and Maytag. (Miele, No. 4; Whirlpool, No. 10; Raytheon, No. 9 at 1; and Maytag, No. 15 at 1, 2; all Docket 230A). AHAM believes that the maximum test load should be used for RMC testing because the difference (RMC percentage value) with an average test load is small. (AHAM, No. 7 at 3, Docket 230A). Raytheon and Maytag support AHAM's position. Maytag also indicated that a maximum test load produces more consistent and repeatable test results. (Maytag, No. 15 at 1, 2). Miele believes that an average test load should be tested in addition to the maximum test load because RMC as a percentage is not the same for different size loads and may vary significantly for various machines. Furthermore, Miele believes the improved test results outweigh the additional test burden. (Miele, No. 4 at 4). The Department has analyzed the individual data submissions and has determined that there is a general correlation between RMC (as a percentage value) and load size. As load size increases, RMC (percentage value) decreases. On average, the relationship appears to have a negative slope of approximately 0.05, much smaller than on GEA's graph. The data, however, show that in some cases, as load size increases, RMC actually increases (with a small positive slope). Considering the range of data received, the relatively small variation of RMC for average and maximum load sizes, the additional test burden of testing average loads, and the greater consistency of RMC test results with larger loads, the Department is maintaining the requirement to test RMC only with the maximum test load. Therefore, today's final rule maintains the test load requirements for Appendix J1 as proposed, and incorporates into Appendix J a new test load table identical to the maximum test load table requirements of Appendix J1. 5. Thermostatically Controlled Water Valves The Department proposed a definition for thermostatically controlled water valves in the March 1995 proposed rule. AHAM provided a revised definition in its recommended test procedure, and requested adoption of this definition for the Appendix J test procedure. (AHAM, No. 8 at 1, Docket 230). Miele and Speed Queen supported the adoption of the AHAM's suggested definition. (Speed Queen, No. 29 at 5; and Miele, No. 10 at 1; both Docket 230). In the supplemental proposed rule, the Department proposed to adopt a slightly revised version of the AHAM definition language. In response to the supplemental proposed rule, AHAM objected to the Department's revised definition. The revised definition specified that the ``valves'' sensed the water temperature and adjusted the supply water to maintain a desired temperature. AHAM wants the definition to apply to a ``clothes washer's'' ability versus the ``valve's'' ability to sense and adjust the water temperature. The predominant design concepts for thermostatically controlled water valves operate internally within the valve, but new design strategies include an interface between the valve and a clothes washer electronic controller. (AHAM, No. 7 at 5, Docket 230A). Miele, Maytag, and Raytheon support AHAM's definition. (Miele, No. 4 at 5; Maytag, No. 8 at 3; and Raytheon, No. 9 at 3, 4; all Docket 230A). Fisher and Paykel shared AHAM's concern and also believes that the definition should reflect only the clothes washer's ability to ``achieve'' a desired water temperature, rather than to ``maintain'' a desired water temperature. (Fisher and Paykel, No. 16 at 3, Docket 230A). The Department agrees with the intent of AHAM's definition for thermostatically controlled water valves because it allows greater flexibility in achieving the desired result. Whether a particular water temperature results from the water valve's operation or the clothes washer electronic control is immaterial, as long as the clothes washer has the ability to sense and adjust the supply water temperature. Finally the suggestion from Fisher and Paykel to change the definition from ``maintain'' to ``achieve'' a desired mixed water temperature has caused the Department to re-examine the definition. The fundamental purpose of this feature is to adjust the supply temperature in order to obtain a desired supply water temperature, or a desired wash tub temperature. In light of this purpose, the Department believes that the proposed definition and the suggested AHAM definition are too specific. To simply change the definition to ``achieve'' as suggested by Fisher and Paykel would be inappropriate because some clothes washers with this feature attempt to maintain the supply water temperature, and others seek to maintain the wash water temperature. Furthermore, this definition is used in the test procedure only to ensure that a clothes washer with these characteristics is tested with appropriate supply water temperatures. Therefore, the Department believes the definition can be simplified to be more generic, and still serve its intended purpose in the test procedure. The Department is adopting the following definition in today's final rule for Appendices J and J1: ``Thermostatically controlled water valves means clothes washer controls that have the ability to sense and adjust the hot and cold supply water.'' 6. Water Consumption Factor In the March 1995 proposed rule, the Department proposed a Water Consumption Factor (WCF), expressed in clothes washer capacity per gallon per cycle. The Department believes that providing a means of determining WCF may allow consumers, utilities or other organizations to compare clothes washer water consumption independent of clothes washer capacity. In response to the March 1995 proposed rule, the Department received several comments regarding inclusion of the WCF in Appendix J. Miele and Speed Queen indicated that the WCF should be the inverse of what was proposed because many utilities already use that factor (gallons per cycle per cubic foot capacity). (Miele, No. 10 at 2; and Speed Queen, No. 29 at 3; both Docket 230). AHAM indicated that WCF on a per cycle basis can be expressed as cubic feet per gallon. (AHAM, No. 33 at 5, Docket 230) . The Department agrees with Miele and Speed Queen that the WCF should be consistent with existing utility programs and represented on a per cycle basis as gallons (weighted water consumption) per cubic foot capacity. Accordingly, the Department proposed a revised WCF for Appendix J1 in the supplemental proposed rule, which was the inverse of the WCF in the March 1995 proposed rule. In response, the Department received positive comments. (AHAM, No. 7 at 4; Maytag No. 8 at 3; and Raytheon, No. 9 at 3; all Docket 230A). Therefore, today's final rule incorporates a WCF expressed as gallons per cycle per cubic feet in Appendices J and J1. In addition, the definition for WCF in Appendix J has been revised to be consistent with the new expression. [[Page 45491]] B. Clothes Washer Test Procedures--Issues Related to Appendix J 1. Agitator and Spin Speed Settings In the March 1995 proposed rule, the Department proposed requirements for agitator and spin speed settings to conduct energy consumption testing because they are not addressed in the current test procedure. Speed Queen supported the Department's proposal. (Speed Queen, No. 29 at 4, Docket 230). The Department received no negative comments, and therefore DOE is adopting this proposal. In addition, the Department is making minor language revisions with respect to these terms. The term ``agitator'' is being changed to ``agitation'' to be more generic.\12\ Certain provisions relating to spin speed are being modified to address concerns regarding optional RMC testing, as discussed above. --------------------------------------------------------------------------- \12\ See discussion below regarding ``capacity'' where the definition for ``agitator'' is no longer required. --------------------------------------------------------------------------- 2. Capacity Measurements In the March 1995 proposed rule, the Department proposed minor revisions to the requirements regarding measurement of capacity to hold clothing (section 3.1). These changes were non-substantive in nature and did not attempt to change any clothes washer's capacity rating. AHAM recommended that the Department adopt simpler rule language which was generic both to front-loader and top-loader clothes washers. (AHAM, No. 5 at 3, 6 and No. 8 at 1, both Docket 230). The Department agrees that AHAM's suggested rule language for clothes washer capacity measurement is simpler and most likely will achieve the same result. The Department, however, believes that the suggested language is not specific enough concerning the orientation of the clothes container opening during testing. The Department believes that it is reasonable to assume that a clothes washer will be placed in a position so that its opening is horizontal to the ground to conduct the capacity measurement. However, DOE prefers to remove any vagueness from the test procedure. Therefore, the Department is adding the following procedural step to the AHAM suggested language: ``Place the clothes washer in such a position that the uppermost edge of the clothes container opening is leveled horizontally, so that the container will hold the maximum amount of water.'' Therefore, the Department is adopting the language recommended by AHAM, with the above revision, in today's final rule for Appendix J. In addition, since the term ``agitator'' is no longer mentioned in the capacity measurement section, the Department is deleting the proposed ``agitator'' definition from Appendix J. The deletion of the ``agitator'' definition was supported by Speed Queen. (Speed Queen, No. 29 at 4, Docket 230). 3. Modified Energy Factor Definition In the March 1995 proposed rule, the Department proposed to add to Appendix J an additional energy descriptor, called a modified energy factor (MEF), which would include moisture removal energy. This new descriptor would provide more comprehensive determinations, and comparisons, of the energy efficiency of clothes washers in the marketplace. It would be used for informational purposes only, such as rebate programs. The MEF was also proposed in Appendix J1 for possible future use. The definition for the modified energy factor, as proposed in the March 1995 proposed rule, referred to both water-heating and non-water- heating clothes washers. Miele has suggested a more generic definition that excludes mention of specific types of clothes washers. (Miele, No. 10 at 2, Docket 230). The Department proposed this generic version of the definition in the supplemental proposed rule for Appendix J1 and received no negative comments. The Department believes the definition suggested by Miele is more versatile and applicable to all clothes washers, including water-heating clothes washers that use externally heated hot water. Therefore, today's final rule incorporates a definition for ``modified energy factor'' in Appendix J, which is identical to the definition which was proposed and is being adopted in Appendix J1. 4. Other Issues In both the March 1995 proposed rule and the reopening notice, the Department proposed several minor modifications to Appendix J. The Department did not receive any negative comment relative to these proposals. Therefore, today's final rule maintains the rule language as proposed in the March 1995 proposed rule, and adopts changes discussed in the reopening notice. These modifications are provided in tabular form as follows: ------------------------------------------------------------------------ Sections in appendix Proposal Source J ------------------------------------------------------------------------ Deletion of AHAM Test March 1995 proposed Not Applicable Procedure References. rule. (Deletion of sections 1.7 & 1.8 in current Appendix J). Clarification of Maximum March 1995 proposed Sections 3.2.1.2.1 & Fill Testing (``available rule. 3.2.2.1. on the clothes washer''). Similarly Labeled March 1995 proposed Section 4.1.1.1. Temperature Use Factors rule. (TUFs). One and Two Temperature Reopening notice.... Section 5. Clothes Washer TUF Values. ------------------------------------------------------------------------ The Department also received suggestions for several minor clarifications to the rule language. The following table provides these suggested modifications: ------------------------------------------------------------------------ March 1995 proposed rule section/issue Comment DOE action/ response ------------------------------------------------------------------------ Sections 2.8.2.1 and Miele, No. 10 at 2, Intent incorporated. 2.8.2.2: remove ambiguity Docket 230. for use of test loads. Section 3.2.2.4: variable Miele, No. 10 at 3, Intent incorporated. callouts. Docket 230. Section 4.1.1.2: concern Miele, No. 10 at 3, Not incorporated: about temperature rise of Docket 230. adoption would 90 deg. F instead of 80 affect efficiency deg. F. ratings of existing models. (Appendix J1 has a temperature rise of 75 deg. F.) Section 4.3.3: reference Miele, No. 10 at 3, Intent incorporated. callouts. Docket 230. [[Page 45492]] Section 5: clarification for Miele, No. 10 at 3, Intent incorporated. water-heating and non-water- Docket 230. heating clothes washer titles. Need definitions for Miele, No. 10 at 1, Not incorporated: ``automatic'' and ``semi- Docket 230. these terms are automatic'' clothes washers. already defined in 10 CFR 430.2. ------------------------------------------------------------------------ 5. Temperature Measuring (Sensing) Device The March 1995 proposed rule proposed essentially to maintain the existing temperature equipment requirements, while changing its nomenclature from ``thermometer'' to ``temperature sensing device'' (section 2.5.3). AHAM suggested a revision of these requirements, both for its recommended test procedure and Appendix J. AHAM's language specified in part, that accuracy of equipment would be maintained over the range of temperatures being measured, rather than over a broader range as is currently required. AHAM also suggested revision of nomenclature in the proposed test procedure from ``Temperature sensing device'' to ``Temperature measuring device.'' (AHAM, No. 8 at 1, Docket 230). The Department believes that the revised AHAM language, on which comments were solicited in the supplemental proposed rule, will eliminate a requirement that is irrelevant to the test procedure, while maintaining its accuracy and providing manufacturer equipment flexibility. Therefore, today's rule incorporates into Appendix J the supplemental proposed rule language for a temperature measuring device. 6. Temperature Selections Currently, and as proposed, Appendix J allows for the testing of three basic wash temperatures, cold, warm, and hot, in several combinations with two rinse temperatures, cold and warm. The test procedures set forth percentages, called temperature use factors (TUFs), that represent the proportion of time that each temperature combination selection (TCS) (wash/rinse combination offered to a consumer) is used. However, some new clothes washers have new TCSs which are not explicitly covered by the Appendix J test procedure. a. Multiple Warm Wash Temperatures. Currently, there are clothes washers on the market that have multiple warm wash TCSs. The Department's understanding is that these TCSs are relatively straightforward. The warm wash temperatures of the TCSs are spaced so that the temperature of the middle warm wash TCS is at the mid-point between the temperatures of the warmest warm wash TCS and the coolest warm wash TCS. Also, for any other TCS above the middle warm wash TCS, there is a corresponding TCS that is an equal number of degrees below the middle warm wash TCS. In the reopening notice, the Department proposed requirements to test only the middle warm wash TCS. In addition, if a middle TCS does not exist, then the next hotter TCS above the mid-point would be tested. AHAM agreed generally with the above proposal. Fisher and Paykel provided comments and agreed with the requirement to test only the middle TCS. (Fisher and Paykel, No. 22 at 1, 2, Docket 230A). Therefore, today's final rule includes the above described test provisions for Appendix J. The Department's proposal also addressed situations where TCSs are not spaced equally by temperature. The Department is unaware of any current clothes washers with these types of TCSs, but wants to provide test provisions in the event they are included on future models. The Department's proposal in the reopening notice would require testing at the next hotter warm wash TCS above the mean of the temperature range for multiple warm wash TCS. Fisher and Paykel questioned whether the reference to the mean referred to the mean temperature or to the TCS with the mean position on the control panel. Fisher and Paykel suggested that it should be applicable to the temperature and that DOE should require that the mean temperature be determined. In addition, Fisher and Paykel stated that the TCS with the mean temperature should be tested if available on the clothes washer model, or if such a TCS is not available, the next higher warm wash TCS above a theoretical mean should be tested. (Fisher and Paykel, No. 22 at 2, 3, Docket 230A). Fisher and Paykel maintains that the actual mean TCS of the temperature range should be tested, if available, whereas the Department believes the next higher TCS should be tested. The Department believes the next higher TCS should be tested in lieu of the actual mean TCS because it is concerned about the way TCSs may be displayed to consumers. The rationale for testing the middle TCS for clothes washers with multiple warm wash TCSs, spaced equally by temperature, is that consumers are just as likely to select a TCS above the middle TCS as they are to select one below the middle TCS. In the case of clothes washers with TCSs that are not spaced equally by temperature, consumers may be given, for example, multiple selections above an actual mean TCS of the temperature range and only one selection below it. In this case, consumers may select warm wash TCSs above the mean TCS more frequently than the one warm wash TCS below the mean TCS. To test the mean TCS could give a relatively low, and hence unrepresentative, picture of the energy consumption of the clothes washer. Therefore, the Departments proposed that the next higher TCS be tested. Today's final rule includes requirements for Appendix J as stated in the reopening notice and reiterated above. In the reopening notice, the Department also proposed test provisions for clothes washers with multiple temperature settings, i.e., a range of temperatures from which a consumer can make a selection within a specific TCS. Section 3.2.2.2 of the current test procedure requires that the ``hottest setting available'' be used for testing a hot wash TCS. In the reopening notice, the Department proposed a test methodology which requires that the hottest temperature setting within a hot, warm or cold TCS be tested. This approach is similar to the Department's proposal in the March 1995 proposed rule for addressing similar TCSs that are labeled so as to appear to the consumer to be virtually identical. In essence, the similarly labeled TCSs are two temperature settings for one basic TCS. For example, on a given clothes washer, one cold wash/cold rinse TCS may be labeled ``cold/cold,'' with a wash temperature that is never heated, and another can be labeled ``auto cold/cold'' with a wash temperature that uses some hot water. The March 1995 proposed rule proposed that the hottest of these two selections be used for testing. The Department believes this proposal is consistent with the industry's basic interpretation of the existing test [[Page 45493]] procedure. The Department did not receive any negative comment regarding the March 1995 proposed rule's provision for similarly labeled TCSs. Shortly before the publication of the reopening notice, Fisher & Paykel asserted that for DOE to require testing at the hottest temperature setting available within a TCS would be inconsistent with the test methodology regarding multiple warm wash TCSs (discussed above).13 The two approaches may appear to be inconsistent, but the Department believes they would establish the best solution considering that the hottest setting available must be used in tests involving a hot wash TCS or similarly labeled TCSs. To the greatest extent possible, the Department wants to ensure that all models are tested and rated on a comparable basis. --------------------------------------------------------------------------- \13\ Fisher & Paykel provided this comment to the Department regarding Interim Waiver CW-004 (61 FR 18129 on April 6, 1996) which addresses this same issue. --------------------------------------------------------------------------- In response to the reopening notice, AHAM commented that, in general, it supports the Department's proposal. AHAM believes that the rule language should make specific reference to a secondary control, which is how the temperature of the TCS (selected with the primary control) would be adjusted. AHAM supports the rationale to test the hottest temperature available for a TCS. (AHAM, No. 19 at 2, Docket 230A). Fisher and Paykel stated that its comments provided in response to Waiver CW-004 (discussed above) remain essentially the same. (Fisher and Paykel, No. 22 at 1, Docket 230A). The Department agrees with AHAM that manufacturers most likely would present multiple temperature selections within a TCS with a secondary control. Therefore, today's final rule incorporates rule language to clarify this point. The Department sees some merit in Fisher and Paykel's concern about testing multiple temperature settings within a TCS at the hottest setting available. For the reasons stated above, however, the Department believes that today's rule is the best solution considering the test procedures currently in effect. Moreover, the future test procedure, Appendix J1, establishes even more consistent test procedures to address this issue. Therefore, today's final rule adopts the requirement proposed in the reopening notice to test the hottest temperature setting available within a TCS in Appendix J. b. Temperature Selections Locked Out of the Normal Cycle. In the May 1995 proposed rule, the Department proposed that, for a clothes washer with a normal cycle temperature selection ``lockout'' feature, the hot water consumption be prorated between the TCS that has the ``lockout'' in the normal cycle and the same TCS in the cycle with the greatest hot water consumption. The unknown factor in the calculation is the frequency with which users would choose the normal versus other cycles when a temperature selection is selected, i.e., the proration values. The Department proposed to set the proration values at 20 percent for the normal cycle and 80 percent for the most energy intensive cycle (the cycle other than normal that consumes the maximum amount of energy), unless consumer usage data becomes available that support other values. The proposed values were based on an assumption that 80 percent of the time a consumer wants the locked out temperature, it will choose a cycle that offers that particular temperature selection, and the remaining 20 percent of the time consumers will not alter the cycle and will accept the locked out temperature selection. The frequency with which consumers use the normal cycle is important if a clothes washer is equipped with a temperature selection ``lockout.'' The clothes washer test procedure requires testing at the normal cycle because this is believed to be representative of how consumers use their clothes washers. Traditionally, consumers select the normal cycle most of the time and the remaining cycles, either more or less energy intensive, the remainder of the time. Hot water energy constitutes the greatest component of the energy consumption, approximately 90 percent or more, and the energy consumption for the various cycles, e.g. ``normal,'' ``heavy duty,'' ``delicate,'' etc., on a typical clothes washer without lockouts may not vary much from one cycle to the next, for a given temperature and fill selection. This is not true for a clothes washer with a temperature selection lockout feature. For such a clothes washer, temperature selections that appear to be the same in different cycles are in fact different, and result in consumption of different amounts of energy. Whirlpool utilized an independent consultant to conduct a consumer survey regarding the use of clothes washers with and without the ``lockout'' feature. Whirlpool submitted a summary of the results of the survey to the Department. (Whirlpool, No. 13, Docket 701). The Department made this summary available to stakeholders for review and comment. White Consolidated commented that it disagreed with the concept of prorating the energy consumption results from the normal and most energy intensive cycles, including the proposed 20/80 percent values. In essence, White Consolidated believes that a TCS with a lockout should be tested in the most energy intensive cycle, and the result used 100 percent for the calculations. White Consolidated believes that normal cycle operation on a particular clothes washer may be represented to consumers in such a manner that they use it significantly less than they would on a traditional clothes washer.14 White Consolidated also asserted that the data submitted by Whirlpool did not indicate the frequency with which consumers select the normal cycle. (White Consolidated, No. 14, Docket 701). Whirlpool provided comment that the proration value for the use of the normal cycle should be 75 percent. Whirlpool believes that its survey shows no significant difference between consumers' use of the normal cycle with or without a lockout. (Whirlpool, No. 16, Docket 701). Maytag stated that it supports the Department's proposal to use 20 percent as the proration value for the normal cycle. Maytag also indicated that it believes the survey conducted by Whirlpool had minimal value because the survey did not include any Sears Kenmore models, which have the highest market share in the clothes washer industry. Maytag also stated that (1) the way the cycle selections are depicted to the consumer will have a significant impact on how often a consumer will select a normal cycle, and (2) as the normal cycle is depicted on the Whirlpool clothes washers, consumers will use the normal cycle less frequently. (Maytag, No. 17, Docket 701). --------------------------------------------------------------------------- \14\ P&G data indicates that the normal cycle on a typical clothes washer is used approximately 75 percent of the time. The DOE test procedure uses the normal cycle to approximate typical use by consumers. --------------------------------------------------------------------------- The Department reviewed the publicly available survey summary and confidential raw survey data provided by Whirlpool. The survey data indicate that consumers select a normal cycle, with a temperature selection lockout, slightly less often than they select a normal cycle without a temperature selection lockout. This supports Whirlpool's claim that the lockout feature had minimal impact on the use of the normal cycle. The results also showed, however, that consumers' overall use of the normal cycle of Whirlpool clothes washers is significantly less than their use of the normal cycle for typical clothes washers (use of the normal cycle for the industry [[Page 45494]] is estimated to be 75 percent, based on P & G survey data). This result supports the statements made by White Consolidated and Maytag regarding use of the normal cycle. Whirlpool, after consultation with the Department regarding its confidential data, provided public information which indicated that consumers selected the normal cycle on its clothes washers equipped with temperature selection lockouts 32 percent of the time. (Whirlpool, No. 18, Docket 701). The Department believes that the proration value for the use of the normal cycle should reflect the frequency of consumer choice of that cycle. The Department believes that the confidential survey data, provided by Whirlpool, indicating the actual use of the normal cycle by consumers with a temperature selection lockout feature does exactly that. Therefore, the Department is promulgating today's final rule with proration values of 32 percent for the normal cycle and 68 percent for the most energy intensive cycle for the Appendix J test procedure. 7. Water-Heating Clothes Washers Traditionally, clothes washers in the U.S. have used water heated outside of the machine, in a dwelling's water heating source. These are defined as non-water-heating clothes washers. New, predominantly imported, clothes washers have their own internal heaters which heat cold water supplied for washing. These are referred to as water-heating clothes washers. In addition, some water-heating clothes washers have the capability of using water heated externally, and can use their internal heater to increase the temperature of such water, or to maintain the temperature of water in the wash tub. The March 1995 proposed rule proposed test provisions for water- heating clothes washers that do not use externally heated water. The test provisions included definitions for water-heating and non-water- heating clothes washers. In the supplemental proposed rule, the Department proposed to include in Appendix J provisions to test water- heating clothes washers that use externally heated water. Under the proposed Appendix J1 definition, these clothes washers are treated as water-heating clothes washers because they are equipped with an internal heater, although they are tested with a combination of test provisions for water-heating and non-water-heating clothes washers. Generally, commenters supported these proposals, although a few modifications were suggested. AHAM requested the Department adopt in Appendix J the definitions for water-heating and non-water-heating clothes washers that AHAM suggested for Appendix J1. The AHAM definitions are generic and applicable to water-heating clothes washers that use externally heated water. (AHAM, No. 8 at 1, Docket 230). The intent of the AHAM definitions was supported by Miele. (Miele, No. 10 at 1, Docket 230). Commenters agreed that the Department should incorporate into Appendix J test provisions for water-heating clothes washers that use externally heated water. (AHAM, No. 7 at 1, 4, 5; Miele, No. 4 at 2; Maytag, No. 8 at 3; and Raytheon, No. 9 at 3: all Docket 230A). The Department agrees with AHAM and Miele that the definitions for water-heating and non-water-heating clothes washers should address water-heating clothes washers that use externally heated water. Furthermore, the Department proposed AHAM's definitions for the Appendix J1 test procedure in the supplemental proposed rule and did not receive any negative comments. Therefore, today's final rule incorporates revised definitions in Appendix J, identical to those proposed for Appendix J1. Today's final rule also incorporates procedural steps into Appendix J for water-heating clothes washers that use externally heated water. 8. Weighing Scales for Test Cloth and Clothes Container In the March 1995 proposed rule, the Department also proposed to maintain existing requirements for the weighing scales which are used to measure the weight of test cloth and clothes washers (for container capacity determination). AHAM revised the requirements for weighing scales in its recommended test procedure. AHAM also recommended that its rule language be adopted for Appendix J. The AHAM language eliminates requirements to have specific measuring ranges for the weighing scales, and specifies instead a maximum allowable percentage of error for a particular measured value. (AHAM, No. 8 at 1, Docket 230). The Department believes the AHAM language, on which the Department sought comments in the supplemental proposed rule but received none, will maintain the accuracy of the existing test procedure while providing manufacturer equipment flexibility, thus eliminating an unnecessary test burden. Therefore, today's rule incorporates the supplemental proposed rule language for weighing scales into Appendix J. C. Clothes Washer Test Procedures--Issues Related to Appendix J1 1. Capacity Measurement Both the proposed Appendix J and proposed Appendix J1 required testing to determine the capacity of the clothes container. This capacity is defined as the maximum volume which a dry clothes load could occupy. The capacity is then used as a significant component in the calculation of the Energy Factor and Modified Energy Factor, which are used to rate the efficiency of the clothes washer on a per cycle basis. The actual load, in pounds of clothing, that a clothes washer can wash is a function of many variables including the portion of the container's volume which is actually available for clothes washing, the agitation system and the motor torque. But the Department has used the measured clothes container capacity as a proxy for the actual load a clothes washer is capable of washing, and this has worked well for purposes of comparing vertical-axis clothes washers to each other. The Department believes that measured container capacity will serve the same function for horizontal-axis clothes washers. However, it is unclear whether the relationship of measured capacity to load capability is the same for vertical-axis and horizontal-axis clothes washers. The proposed Appendix J and proposed Appendix J1 test procedures require measuring the capacity to the upper most part of the clothes washer container, which includes the volume encompassed by a ring that may be attached to the top of the clothes container. The maximum water level in any vertical-axis clothes washer may vary, but the water level cannot go to the top of the ring attached to the top of the clothes container. Maytag calculated that this current method of measuring capacity results in the measured volume of vertical-axis clothes washers exceeding the wetted volume 15 by a minimum of 15 percent to well over 20 percent. (Maytag, No. 13 at 1, Docket 230). AHAM, commenting on behalf of clothes washer manufacturers, including Maytag, asserts the current method for measuring vertical-axis clothes washer capacity is sufficient and should not be changed. (AHAM, No. 33 at 5, Docket 230). --------------------------------------------------------------------------- \15\ DOE uses the term ``wetted volume'' to refer to the space in a clothes washer within which washing and rinsing occur. --------------------------------------------------------------------------- In a horizontal-axis clothes washer, washing and rinsing occur in the entire volume of the clothes container. Thus, the measured and wetted volumes of a [[Page 45495]] horizontal-axis clothes washer are the same, and Maytag proposed multiplying the measured volume of a horizontal-axis clothes washer by a factor of 1.2. (Maytag, No. 13 at 2, Docket 230). This factor would mathematically increase the ``measured capacity'' of horizontal-axis clothes washers and would result in a 20 percent increase in the Energy Factor and Modified Energy Factor for horizontal-axis clothes washers. A similar factor is included in the International Electrotechnical Commission (IEC) 456 test procedure for clothes washers. ACEEE supports a capacity credit for horizontal-axis clothes washers.16 ACEEE stated that the IEC test procedure has a 15 percent credit and believes the credit may be too low. ACEEE believes the credit should be 21 percent. (ACEEE, No. 32 at 3, Docket 230). --------------------------------------------------------------------------- \16\ Commenters have used both terms ``factor'' and ``credit'' which are intended to mean the same thing. --------------------------------------------------------------------------- Speed Queen opposes a horizontal-axis clothes washer capacity adjustment factor, stating that adequate time for discussion and comment is needed on this ``recently raised issue.'' (Speed Queen, No. 29 at 3, Docket 230). GEA opposes any horizontal-axis clothes washer capacity credit stating, ``In view of the evidence, from P & G, that American consumer washing habits are driven in large part by their perception of capacity, proponents of a European adjustment factor must provide hard data of its applicability to the U.S. market.'' (GEA, No. 36 at 2, Docket 230). Whirlpool also opposes any credit for horizontal- axis clothes washer capacity because there are no data that would demonstrate American loading habits for horizontal-axis clothes washers. (Whirlpool, No. 37 at 4, Docket 230). The Department notes that the measured volume of a vertical-axis clothes washer is larger than the wetted volume, whereas, these two volumes are the same for horizontal-axis clothes washers. This suggests that, for these two types of machines, a difference may exist in the relationship of measured capacity to the amount of clothes a clothes washer is capable of washing. However, the Department has no data to indicate that this possible difference translates into an actual difference in load size capability when the other variables that affect load size are considered, or as to how U.S. consumers will use horizontal-axis clothes washers. In the supplemental proposed rule, the Department did not propose a capacity credit for horizontal-axis clothes washers. The Department stated that, if data became available, it would consider making adjustments to the test procedures for either vertical or horizontal- axis clothes washers to ensure that the comparisons are relatively accurate. In Appendix J1, the Department did not make any changes to the measurement procedures, or adjust any calculations regarding capacity. Maytag indicated that data to support a credit, or adjustment, for horizontal-axis clothes washers currently were not available, but that it may submit subsequent comments if such data became available. (Maytag, No. 8 at 1 and No. 15 at 2, Docket 230A). Raytheon supported the Department's proposal to retain the established capacity measurement requirements. (Raytheon, No. 9 at 1, Docket 230A). Based on the foregoing, today's final rule retains the same basic approach to capacity as was proposed in the supplemental proposed rule. However, minor language revisions were incorporated, as discussed above in section III.B.2 of this notice. If data become available which would indicate a significant impact on the comparisons between vertical and horizontal-axis clothes washers, the Department will consider initiating a rulemaking to make appropriate revisions to the test procedure. 2. Consumer Selectable Options for the Energy Test Cycle In the supplemental proposed rule, the Department proposed test provisions for clothes washers equipped with consumer selectable options available in the energy test cycle (supplemental proposed rule Section 3.2.3.5). These provisions were proposed primarily because of the possibility that manufacturers would provide multiple spin speed and spin time selections for the energy test cycle. (See the discussion above regarding spin speed and spin time in section III.A.4b of this notice.) The proposal however, was applicable to all possible consumer selectable options available in the energy test cycle, other than wash time (which was addressed in section 2.10). The language included examples of selectable options, such as various spin speeds or adaptive water fill selections, and required testing of the extremities of the available selections and averaging of the results. AHAM, NRDC, and clothes washer manufacturers provided specific comments regarding multiple consumer selectable options for spin speed and spin time. These comments and the Department's response, including revised requirements for these features, are discussed fully in section III.A.4b of this notice. AHAM and clothes washer manufacturers also provided specific comments regarding multiple consumer selectable options for adaptive water fill control systems. These comments and the Department's response, including revised requirements for adaptive water fill control systems, are discussed fully in section III.A.1. AHAM recommended that the Department revise section 3.2.3.5 regarding consumer options for the energy test cycle to exclude wash time, temperature, fill levels, and extraction. AHAM also recommended that the tests be conducted on the combined maximum and combined minimum energy intensities for all such consumer options. (AHAM, No. 14, Docket 230A). Raytheon supported AHAM's recommendation. (Raytheon, No. 13 at 2, Docket 230A). Fisher and Paykel recommended that the Department convert section 3.2.3.5 into six procedural steps. Fisher and Paykel's recommended changes were consistent with AHAM's recommendation to exclude wash time, temperature, fill levels, and extraction from this section. Fisher and Paykel also recommended that other options be tested in the factory default setting or in the manufacturers ``recommended positions for a cotton and/or linen clothes cycle.'' Fisher and Paykel recommended language including exclusions for non-energy related features, as well as comprehensive testing provisions for special circumstances not covered by the generic provisions. (Fisher and Paykel, No. 16 at 9, 10, Docket 230A). Having reviewed the AHAM and manufacturer comments, the Department sees no need to include in Appendix J1 general provisions for ``consumer options for the energy test cycle.'' In the supplemental proposed rule, the Department expressed concern regarding consumer options for multiple spin speed, spin time, and multiple adaptive water fill control system selections. These options have now been addressed in other sections of the rule language as discussed above. The Department is concerned about adopting specific test provisions to address unknown, potential options. The commenters did not provide a rationale as to why the suggested provisions were needed in the test procedure, other than that the Department had originally proposed them. The Department believes that any other feature which affects the energy consumption of clothes washers should be subject to the public comment provisions of the waiver process found at 10 CFR 430.27. The Department acknowledges that in the supplemental proposed rule it proposed a procedure to address [[Page 45496]] generally consumer options in the energy test cycle. This proposal was primarily designed, however, to address specific concerns stated in the proposed rule and to elicit comment on procedures for other possible consumer options. The specific concerns have been addressed elsewhere and no other consumer options were identified in the comments. Therefore, the Department sees no reason to include in the test procedure a generic test provision for consumer options in the energy test cycle, and today's rule contains no such provision. 3. Energy Test Cloth The supplemental proposed rule proposed requirements to precondition the energy test cloth prior to its use for energy consumption testing. These requirements generally were based on the AHAM recommended test provisions, except that the Department changed the requirement for detergent from an AHAM specification to a generic specification (commercially available detergent). AHAM, Maytag, and Raytheon supported the Department's proposal to use commercially available detergent, although they recommended that the Department change the requirement from a specific dosage of detergent (6 grams per gallon of water) to a dosage as recommended by the manufacturer. (AHAM, No. 7 at 3; Maytag No. 8 at 2: and Raytheon No. 9 at 2; all Docket 230A). The Department agrees with the commenters that the dosage should be specified as recommended by the manufacturer because of different types and sizes of clothes washers in the marketplace. A specific dosage, such as 6 grams per gallon of water, may be too small or too large for a particular clothes washer. Therefore, today's final rule revises the requirement for clothes washer detergent dosage, as indicated above, in Appendix J1. 4. Energy Test Cycle Definition In the supplemental proposed rule, the Department proposed a definition for ``energy test cycle,'' for Appendix J1. The energy test cycle definition is used to define the cycle on which the energy consumption tests are to be conducted, and corresponds to the cycle the manufacturer recommends for washing cotton or linen clothes. The energy test cycle is comparable to the ``normal cycle'' defined in Appendix J. Fisher and Paykel objected to inclusion of the following language in the energy test cycle definition: ``all temperature selections available on the model, regardless of whether the wash/rinse temperature selections or water levels are available in the cycle recommended for cottons and/or linens.'' Fisher and Paykel believes it is unfair to impose testing requirements of temperature selections that are available only in other cycles, e.g., warm rinse for the delicate cycle, because the other cycles are not used as frequently as the cycle recommended for cotton and/or linen clothes. (Fisher and Paykel, No. 16 at 2, Docket 230A). The Department believes Fisher and Paykel's comment regarding the energy test cycle raises an issue that is essentially the same as the normal cycle temperature selection lockout issue, discussed above, for Appendix J. The temperature selection lockout issue caused significant controversy among U.S. clothes washer manufacturers, and was the subject of extensive debate. (See Docket Number EE-RM-93-701). The energy test cycle is intended to be representative of typical consumer use of a clothes washer. Absence of temperature selections from the energy test cycle of a clothes washer may mean that cycle is not representative and may lead to manufacturer representations that do not reflect true energy consumption. This may not be the case for all clothes washers with temperature selections available in cycles other than the energy test cycle, but the issue remains a significant concern to the Department. Therefore, today's final rule maintains the substance of the definition for energy test cycle, as proposed in the supplemental proposed rule. Certain changes however, solely for purposes of clarification, have been made in the definition as promulgated in today's final rule. 5. Other Issues The supplemental proposed rule proposed several minor changes in AHAM's suggested test procedure, about which DOE received no negative comment. Therefore, in these respects, today's final rule maintains the rule language in Appendix J1 as proposed in the supplemental proposed rule. These minor changes are provided in tabular form as follows: ---------------------------------------------------------------------------------------------------------------- Proposal Rule sections ---------------------------------------------------------------------------------------------------------------- Maximum use of five energy stuffer cloths.................. Section 2.7. Water-heating clothes washer test provisions, including Sections 2.11, 3, and 4. test room temperature requirements and externally heated water use. Not to include a suds-saver test provision................. N/A. Temperature Use Factors.................................... Section 4. ---------------------------------------------------------------------------------------------------------------- 6. Supply Water Temperature Under the Department's proposal in the supplemental proposed rule, supply water temperature would affect the energy consumption of water- heating clothes washers and clothes washers with thermostatically controlled water valves, whereas other non-water-heating clothes washers would not be affected by the supply water temperature. The Department's proposal, based on AHAM's recommendation, specified different tolerances for the supply water temperatures for these two situations. Clothes washers whose energy consumption is affected by the supply water temperature were required to be tested with a hot water supply of 135 deg.F with a tolerance (+0 deg.F-10 deg.F), and cold water supply of 60 deg.F with a tolerance (+0 deg.F-10 deg.F). Clothes washers whose energy consumption is not affected by the supply water temperature were required to be tested with a hot water supply of 135 deg.F with a tolerance ( 5 deg.F), and cold water supply of 60 deg.F with a tolerance ( 5 deg.F). Fisher and Paykel asserted that, since one type of machine is not affected by supply temperature, there is no reason to specify different tolerances for the two types of clothes washers while using the same tolerance range (10 deg.F). Fisher and Paykel also believes that in a laboratory it is easier to set a temperature to a 5 deg.F tolerance than a +0 deg.F-10 deg.F tolerance. Fisher and Paykel recommended that the requirements for supply water be combined for both types of clothes washers. The hot water supply would be set at 130 deg.F with a tolerance (5 deg.F), and the cold water supply would be set at 55 deg.F with a tolerance (5 deg.F). (Fisher and Paykel, No. 16 at 5, Docket 230A). The Department is concerned, however, about unnecessary test burden. In many areas of the U.S., during much of the year, the temperature of the ground water remains above 60 deg.F. Setting cold water [[Page 45497]] requirements below 65 deg.F for clothes washers not affected by supply temperatures, which represent a majority of the current clothes washer market, would impose an unnecessary test burden. The Department also believes that the ability to establish a temperature within a 10 deg.F tolerance range is the same regardless of how it is specified. In light of Fisher and Paykel's comments, however, the Department agrees it is warranted to revise the proposed provisions for supply water temperatures. In order to establish an appropriate and readily apparent difference between those clothes washers affected by supply water temperatures and those which are not, the Department is eliminating the specified tolerances for clothes washers affected by supply water temperatures. In today's final rule, the Department is adopting revised requirements such that the hot water supply shall not exceed 135 deg.F (57.2 deg.C), and the cold water supply shall not exceed 60 deg.F (15.6 deg.C) for clothes washers affected by supply temperatures in Appendix J1. 7. Test Load Tolerances In the supplemental proposed rule, the Department proposed a test load table which has loads that vary with clothes washer capacity. The table was based on the AHAM recommended test procedure, except that the Department changed the tolerance from AHAM's suggested value of 0.10 pounds to 0.05 pounds. The Department made this change because it believed that a tolerance of 0.05 pounds enabled the required test load sizes to be achieved through the use of energy stuffer cloths that weigh approximately 0.04 pounds each. The Department requested comment on this proposal. AHAM, Maytag, and Raytheon opposed the Department's proposal to establish a tolerance of 0.05 pounds. Their concern is that the tighter tolerance has minimal impact (0.66 percent) on the test results. They also believe that the tighter tolerance imposes an unnecessary test burden because ambient, humid air, causes a dry test load to gain weight. (AHAM, No. 7 at 2; Maytag, No. 8 at 2; and Raytheon, No. 9 at 2; all Docket 230A). NRDC supported the Department's proposal to establish a tolerance of 0.05 pounds. (NRDC, No. 2 at 2, Docket 230A). The Department agrees that the concern raised by AHAM and manufacturers has merit because the test procedure requires the test load to be ``bone dry,'' meaning that the weight of the test load is stable within one percent after 10 minutes in a clothes dryer. Since the test procedure does not have a low humidity requirement, it is likely that the test load will gain weight during the time period after it is removed from the clothes dryer and before its weight is measured. Therefore, given the practical considerations of the testing environment, a theoretical weight for energy stuffer cloth cannot be used. For these reasons, today's final rule changes the test load table tolerance to 0.10 pounds in Appendix J1. 8. Warm Wash Temperature Selections The supplemental proposed rule proposed test provisions for warm wash temperature selections. These provisions included definitions for ``warm wash'' and ``uniformly distributed warm wash,'' as well as testing requirements for clothes washers with various types of intermediate warm wash temperatures. In proposed Appendix J1, if a clothes washer has uniformly distributed warm wash temperature selections (wash temperatures have a linear relationship with all discrete warm wash selections and are equally spaced, or infinite in number), the energy consumption value is determined by a calculation rather than a test. If the warm wash temperature selections are not uniformly distributed, the Department proposed testing all discrete intermediate warm wash temperature selections (i.e., all temperature selections that are below the hottest hot (135 deg.F (57.2 deg.C)) and above the coldest cold). In the case of infinite non-uniformly distributed temperature selections, testing would be conducted at the 20, 40, 60, and 80 percent positions of the temperature selection device. The Department did not receive any comments regarding the proposed ``warm wash'' definition. AHAM, Maytag, and Raytheon stated that they supported the Department's definition for ``uniformly distributed warm wash,'' but they expressed concern about the application of the definition and about the requirements for testing. (AHAM, No. 7 at 4; Maytag, No. 8 at 3; and Raytheon, No. 9 at 2; all Docket 230A). Fisher and Paykel stated that the portion of the definition for ``uniformly distributed warm wash'' which describes the criteria for a ``linear relationship'' is unclear. The definition, in Appendix J1, stated ``In all cases, the mean of the water temperature of the warmest and the coldest warm selections must coincide with the mean of the hot and cold water temperature.'' Fisher and Paykel believes the term ``hot and cold water temperature'' is ambiguous and could refer to hot and cold wash temperatures, or could apply to hot and cold supply water temperatures. In addition, due to various temperature settings and tolerances throughout the test procedure, Fisher and Paykel suggested that a tolerance (8 deg.F (4.4 deg.C)) be established to qualify the term ``must coincide.'' (Fisher and Paykel, No. 16 at 3, Docket 230A). The Department agrees with Fisher and Paykel and has revised the ``uniformly distributed warm wash'' definition, regarding the criteria for ``linear relationship,'' to remove any ambiguity. The linear relationship criterion is applicable over the temperature range between the ``hot wash'' and the ``cold wash.'' Therefore, today's final rule revises this section in Appendix J1 from ``* * * mean of the hot and cold water temperature'' to ``* * * mean of the hot wash and cold wash water temperatures.'' With regard to Fisher and Paykel's suggestion of a tolerance, the Department believes that some acceptable tolerance should be established because having the terminology ``must coincide,'' without a tolerance, would mean the linear relationship requirement would not be satisfied if any deviation existed, however slight. The Department, however, believes Fisher and Paykel's suggested tolerance value is too large. In Appendix J1, within the definition of ``uniformly distributed warm wash,'' a tolerance of `` 5 percent'' was proposed in the sentence prior to the one that is the subject of Fisher and Paykel's comment. This tolerance was not objected to by any commenters. The Department believes this same value should be applied to the sentence where Fisher and Paykel believes a tolerance should be added. The nominal temperature range between a ``hot wash'' and ``cold wash'' is 75 deg.F. Five percent of this range results in a tolerance of 3.8 deg.F. Therefore, the Department is adopting `` 3.8 deg.F( 2.1 deg.C)'' as a tolerance for the criteria for a linear relationship in Appendix J1. AHAM, Fisher and Paykel, and Raytheon support in part and oppose in part the Department's proposed testing method for warm wash temperature selections that are not uniformly distributed. They agree that where a clothes washer has less than three such selections, all should be tested. But they oppose testing all selections where a machine has more than three such selections, based primarily on a claim of excessive test burden. For clothes washers with more than three discrete [[Page 45498]] warm wash temperature selections, they suggest DOE give manufacturers the option of either testing all of the selections or treating this category as if it were a clothes washer with ``infinite'' temperature selections. This would reduce significantly the number of required tests if a clothes washer were equipped with numerous discrete warm wash temperature selections. In addition, AHAM, Fisher and Paykel, and Raytheon believe the number of test points for clothes washers with infinite temperature selections should be reduced from four to three, and a requirement should be added to test to the next higher temperature selection if a particular test point is not available. (AHAM, No. 14 at 2; Fisher and Paykel, No. 16 at 11, 12; and Raytheon, No. 13 at 1; all Docket 230A). The Department is concerned with the test burden imposed by the test procedures. For example, the Department is aware of a current clothes washer model that has 32 intermediate warm wash temperature selections. To test all 32 temperature selections with all of the other test procedure provisions would be expensive, and could be considered excessive test burden. The Department agrees with the suggested option to consider clothes washers with more than three warm wash temperatures as clothes washers with infinite warm wash temperature selections. The Department believes testing at the various test points of the temperature range, with a requirement to test to the next higher selection if a temperature selection is not available at a specified test point, will provide representative data of the warm wash temperature selection offerings. In addition, DOE agrees that manufacturers should have the option of testing all temperature selections if they choose to. Therefore, the Department is adopting in Appendix J1 the suggested treatment of clothes washers with more than three warm wash temperature selections that are not uniformly distributed. The question of whether clothes washers with infinite warm wash temperature selections should be tested at four points (20, 40, 60, and 80 percent of the temperature range) as proposed by the Department, or at three points (25, 50, and 75 percent of the temperature range) as suggested by commenters, raises a number of issues. First, the Department believes that although the accuracy of the test results will increase with more test points, the test burden also will increase. In addition, manufacturers of clothes washers with numerous discrete warm wash temperature selections would most likely provide a discrete warm wash temperature selection at approximately the 50 percent location of the temperature range, which would not be tested with the four test point requirement proposed by the Department. Therefore, today's final rule incorporates into Appendix J1 a requirement that clothes washers with infinite temperature selections be tested at three points (25, 50, and 75 percent) of the temperature range. However, if the Department were to obtain data indicating that today's requirements result in representations not reflective of a clothes washer's true energy consumption, then the Department would consider a rulemaking to reevaluate these requirements. In addition to the above comments regarding warm wash temperature selections, AHAM and Raytheon suggested the adoption of a new procedural step with equations to determine the temperatures of warm wash water in a non-water-heating clothes washer, based on proration of hot water consumption. (AHAM, No. 14 at 1, and Raytheon, No. 13 at 3, both Docket 230A). The Department has reviewed the suggestion and believes it would be beneficial to include this in the procedure for determining warm wash water temperatures for non-water-heating clothes washers. The definition for uniformly distributed warm wash temperature selections requires the plotting of warm wash temperatures with the position of the temperature selection device. The suggestion by AHAM and Raytheon is one method which is acceptable and will be transparent to users of the test procedure. Therefore, today's final rule incorporates AHAM and Raytheon's suggestion for a procedural step to determine the temperature of a non-water-heating clothes washer warm wash temperature selection in Appendix J1. 9. Warm Rinse In the supplemental proposed rule, the Department proposed requirements to test heated rinses (section 3.7) independent of wash temperatures. This proposal, based generally on AHAM's recommendation, required that the entire electrical energy be measured for a ``warm wash and hottest rinse cycle,'' and that the energy used in the heated rinse be derived from this measurement of the energy used in the entire clothes washer cycle. AHAM suggested, and Raytheon supported, a revision to the heated rinse testing requirements so as to measure only the energy consumption including electrical energy consumption of the warm rinse cycle. In addition, AHAM and Raytheon suggested some minor modifications to the rule language implementing these testing requirements, to make the language more consistent with the entire test procedure. (AHAM, No. 14 at 3; and Raytheon, No. 13 at 1; both Docket 230A). The Department believes that the revisions suggested by AHAM and Raytheon will provide the same test result as DOE's proposal while reducing test burden, and will simplify the rule language in the process. Therefore, the Department is adopting these suggested revisions for warm rinse testing in Appendix J1. D. Related Issues, Revision to 10 CFR 430.23, ``Test procedures for measures of energy consumption.'' In the March 1995 proposed rule, the Department proposed specific changes to 10 CFR 430.23(j) (1) and (2). These changes included a decrease in the number of annual cycles, changes in Appendix J section number references, and the incorporation of the Modified Energy Factor descriptor. In the supplemental proposed rule, DOE stated that if it were to adopt Appendix J1, then it would make the necessary changes to Sec. 430.23 for Appendix J1. The Department did not receive any negative comments regarding these proposals. In today's final rule, the Department is incorporating the proposed changes into Sec. 430.23. In addition, the Department is making nonsubstantive changes to Sec. 430.23 and Appendix J. The Department proposed that the Modified Energy Factor descriptor be set forth in Appendices J and J1, and referenced in Sec. 430.23. The Department believes it would be beneficial to users of the test procedures, and would be more consistent with the foregoing proposal, if the Energy Factor descriptor now located in Sec. 430.23, was instead referenced in Sec. 430.23 and set forth in Appendices J and J1. Today's final rule promulgates these changes. Section 430.23(j)(3) provides a general statement regarding other useful measures of energy consumption which are likely to assist consumers in making purchasing decisions. Currently, this section does not include any descriptors, or useful information to consumers. The Department believes that including references to the Water Consumption Factor, Remaining Moisture Content, and a calculation for annual water consumption will provide greater exposure of additional information to consumers, or users of the test procedure. These changes are nonsubstantive and provide information available in the existing test procedures. [[Page 45499]] These changes do not impose any additional requirements on manufacturers. Therefore, today's final rule includes the above references in Sec. 430.23(j)(3). E. Reporting Requirements, Revision to 10 CFR 430.62, ``Submission of Data'' In the March 1995 proposed rule, the Department proposed to require that, on the certification report for each basic model of a dishwasher, clothes dryer, or clothes washer the manufacturer would report the Energy Factor for the basic model. The Department did not receive any negative comments regarding this proposal. Therefore, today's final rule includes a requirement for Energy Factors to be included on manufacturers' certification reports for dishwashers, clothes dryers, and clothes washers, as proposed in the March 1995 proposed rule. ACEEE commented, however, that the Department should require in addition the reporting of clothes washer capacity, total clothes washer water use, and RMC. ACEEE believes this data will support market incentive programs for high efficiency clothes washers. (ACEEE, No. 32 at 2). The Department already requires the reporting of clothes washer capacity in the certification report. 10 CFR 430.62(a)(2), ``Submission of Data.'' The Department believes it would not be appropriate to require manufacturers to report total water use and RMC. Today's Appendix J does not require the calculation of total water use or RMC. These criteria are provided in the test procedure for optional use by manufacturers or other testers. Imposing reporting requirements for such criteria would impose additional test burden on manufacturers. The Department does, however, support the wide dissemination of this information on a voluntary basis, as reflected in today's amendments to Sec. 430.23(j)(3), discussed above. Therefore, today's final rule does not include reporting requirements for clothes washer total water use or RMC. F. Effective Date The effective date specified for today's amendments is (insert date 180 days after publication). Thus, as of that time, manufacturers must use Appendix J as amended in this rule whenever they are required to test clothes washers to determine if they comply with applicable energy conservation standards. Similarly, unless the Department receives and grants a petition for extension under section 323(c)(3) of EPCA, any representations concerning clothes washers, made after (insert date 180 days from publication) should be based on this amended test procedure. The Department notes, in addition, that, until the amendments become effective in 180 days, they cannot be used to establish compliance with standards by clothes washers that cannot be tested under existing test procedures. Manufacturers of any products that cannot be adequately tested under the current test procedure must seek a waiver under 10 CFR 430.27 for the interim period. As noted above and at the outset of the text of Appendix J1, Appendix J1 will not become mandatory until new energy conservation standards for clothes washers have been adopted. At that time, DOE will remove the current Appendix J. In the meantime, Appendix J1 will be used in the development of the new standards. IV. Determination Concerning the Impact of the Amended Test Procedures on Standards Section 323 of EPCA requires that the Department determine the extent to which an amended test procedure would alter the measured energy efficiency or measured energy use of clothes washers as compared with the existing test procedure. Such assessment is made for the purpose of assuring that revisions in test procedures do not in effect alter existing energy conservation standards by altering the compliance of existing products with those standards. Today's amendments to Appendix J would not affect measurement of the efficiency or energy use of any clothes washer, with the exception of a clothes washer with a lockout feature. With respect to clothes washers with a lockout feature, the amendments being adopted fill a gap in the prior test procedures. Prior procedures lacked a suitable means for testing whether such clothes washers comply with applicable standards, and today's amendments provide such a means. It is the Department's understanding that very few clothes washers with a lockout feature are currently being manufactured. Moreover, the Department is not aware of any such machine that complies with applicable energy conservation standards under prior test procedures, and that would be rendered in non-compliance under Appendix J as amended today. Appendix J1 also would not affect the measurement of compliance with existing standards. It is being promulgated for use in developing future amendments to the standards for clothes washers, and would go into effect only upon the effective date of any such future amendment. V. Procedural Requirements A. Environmental Review The Department has concluded that this final rule falls into a class of actions (categorical exclusion A5) that are categorically excluded from the National Environmental Policy Act of 1969 (NEPA) review because they would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, Subpart D) implementing NEPA [42 U.S.C. 4321, 4331-35, 4341-47 (1976)]. Therefore, this rule does not require an Environmental Impact Statement or an Environmental Assessment pursuant to NEPA. B. Regulatory Planning and Review DOE has determined that this is not 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 by the Office of Information and Regulatory Affairs. C. Federalism Review Executive Order 12612 (52 FR 41685, October 30, 1987) requires that regulations or rules be reviewed for any substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. If there are sufficient substantial direct effects, the Executive Order requires the preparation of a Federalism assessment to be used in decisions by senior policy makers in promulgating or implementing the regulation. The final rule published today would not alter the distribution of authority and responsibility to regulate in this area. The final rule would only revise a currently applicable DOE test procedure to improve existing testing methods, and to add provisions that DOE would use in future standard setting. Accordingly, DOE has determined that preparation of a federation assessment is unnecessary. D. ``Takings'' Assessment Review It has been determined pursuant to Executive Order 12630 (52 FR 8859, March 18, 1988) that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution. [[Page 45500]] E. Paperwork Reduction Act Review No new information or recordkeeping requirements are imposed by this rulemaking. Accordingly, no OMB clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). F. Unfunded Mandates Act Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded Mandates Act'') (signed into law on March 22, 1995) requires that the Department prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. The Department has determined that this action does not include a Federal mandate that may result in estimated costs of $100 million or more to state, local or to tribal governments in the aggregate or to the private sector. Therefore, the requirements of Sections 203 and 204 of the Unfunded Mandates Act do not apply to this action. G. Review Under the Regulatory Flexibility Act of 1980 The Regulatory Flexibility Act of 1980, 5 U.S.C. 603, requires the preparation of an initial regulatory flexibility analysis for every rule which by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. A regulatory flexibility analysis examines the impact of the rule on small entities and, if the impact is significant and widespread, the analysis considers alternate ways of reducing negative impacts. In the March 1995 proposed rule and the May 1995 proposed rule, the Department certified that the proposed amendments, if adopted as final rules, would not have a significant economic impact on a substantial number of small entities. None of the comments on these proposed rules disagreed. In adopting final rules based on these proposals, the Department continues to adhere to this conclusion. Certain provisions of Appendix J in today's final rules, and all of Appendix J1, arise out of the April 1996 supplemental proposed rule, and certain other provisions of Appendix J are based on the November 1996 reopening notice. The Department believes these provisions of the final rule also will not have a significant impact on either small or large manufacturers of clothes washers under the provisions of the Regulatory Flexibility Act. No comment indicated otherwise. These amendments to Appendix J incorporate: (1) Test procedures already in use by manufacturers pursuant to waivers that DOE previously granted to those manufacturers, (2) test provisions that expand or elaborate on am [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-22682. Public record. Not legal advice.