Energy Conservation Program for Consumer Products: Notice of Petition for Waiver of Whirlpool Corporation From the Department of Energy Residential Dishwasher Test Procedure, and Grant of Interim Waiver

AGENCY:

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

ACTION:

Notice of petition for waiver, notice of grant of interim waiver, and request for comments.

SUMMARY:

This notice announces receipt of and publishes the Whirlpool Corporation (Whirlpool) petition for waiver (hereafter, “petition”) from specified portions of the U.S. Department of Energy (DOE) test procedure for determining the energy consumption of dishwashers. Today's notice also grants an interim waiver of the dishwasher test procedure. Through this notice, DOE also solicits comments with respect to the Whirlpool petition.

DATES:

DOE will accept comments, data, and information with respect to the Whirlpool petition until, but no later than August 16, 2010.

ADDRESSES:

You may submit comments, identified by case number DW-004, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: AS_Waiver_Requests@ee.doe.gov. Include either the case number [Case No. DW-004], and/or “Whirlpool Petition” in the subject line of the message.
• Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J/1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. Please submit one signed original paper copy.
• Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza, SW., Suite 600, Washington, DC 20024. Please submit one signed original paper copy.

Instructions: All submissions received must include the agency name and case number for this proceeding. Submit electronic comments in WordPerfect, Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format and avoid the use of special characters or any form of encryption. Wherever possible, include the electronic signature of the author. DOE does not accept telefacsimiles (faxes).

Any person submitting written comments must also send a copy to the petitioner, pursuant to 10 CFR 431.401(d). The contact information for the petitioner is: Mr. J.B. Hoyt, Director, Government Relations, Whirlpool Corporation, 2000 M 63, Mail Drop 3005, Benton Harbor, MI 49022, Phone: (269) 923-4647, E-mail: j.b.hoyt@whirlpool.com.

According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies to DOE: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Docket: For access to the docket to review the background documents relevant to this matter, you may visit the U.S. Department of Energy, 950 L'Enfant Plaza, SW., (Resource Room of the Building Technologies Program), Washington, DC, 20024; (202) 586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Available documents include the following items: (1) This notice; (2) public comments received; (3) the petition for waiver and application for interim waiver; and (4) prior DOE waivers and rulemakings regarding similar dishwasher products. Please call Ms. Brenda Edwards at the above telephone number for additional information regarding visiting the Resource Room.

FOR FURTHER INFORMATION CONTACT:

Dr. Michael G. Raymond, U.S. Department of Energy, Building Technologies Program, Mail Stop EE-2J, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-9611. E-mail: Michael.Raymond@ee.doe.gov.

Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-71, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585-0103. Telephone: (202) 586-7796. E-mail: Elizabeth.Kohl@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background and Authority

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

The regulations set forth in 10 CFR part 430.27 contain provisions that enable a person to seek a waiver from the test procedure requirements for covered consumer products. A waiver will be granted by the Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) if it is determined that the basic model for which the petition for waiver was submitted contains one or more design characteristics that prevents testing of the basic model according to the prescribed test procedures, or if the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR part 430.27(l). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption. 10 CFR part 430.27(b)(1)(iii). The Assistant Secretary may grant the waiver subject to conditions, including adherence to alternate test procedures. 10 CFR part 430.27(l). Waivers remain in effect pursuant to the provisions of 10 CFR part 430.27(m).

The waiver process also allows the Assistant Secretary to grant an interim waiver from test procedure requirements to manufacturers that have petitioned DOE for a waiver of such prescribed test procedures. 10 CFR part 430.27(a)(2) An interim waiver remains in effect for 180 days or until DOE issues its determination on the petition for waiver, whichever is sooner. An interim waiver may be extended for an additional 180 days. 10 CFR part 430.27(h)

II. Petition for Waiver

On March 16, 2010, Whirlpool filed a petition for waiver and application for interim waiver from the test procedure applicable to dishwashers set forth in 10 CFR part 430, subpart B, appendix C. Whirlpool claims that water softeners can prevent consumer behaviors that consume additional energy and water. Whirlpool also claims that a dishwasher equipped with a water softener will minimize pre-rinsing and rewashing, and that consumers will have less reason to periodically run their dishwasher through a clean-up cycle.

Whirlpool also claims that the amount of water consumed by the regeneration operation of a water softener in a dishwasher is very small, but that it varies significantly depending on the adjustment of the softener. The regeneration operation takes place infrequently, and the frequency is related to the level of water hardness. Including this water use in the measurement of water consumption during an individual energy test cycle could overstate water use by as much as 12 percent, and energy use by as much as 6 percent, according to Whirlpool. In view of the small amount of water consumed during softener regeneration and the relative infrequency of the regeneration operation, Whirlpool is requesting approval to measure water consumption of dishwashers having water softeners without including the water consumed by the dishwasher during softener regeneration. This is the approach used in European Standard EN 50242, “Electric Dishwashers for Household Use—Methods for Measuring the Performance.”

III. Application for Interim Waiver

Whirlpool also requests an interim waiver for particular basic models with integrated water softeners. An interim waiver may be granted if it is determined that the applicant will experience economic hardship if the application for interim waiver is denied, if it appears likely that the petition for waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination of the petition for waiver. (10 CFR part 430.27(g)).

DOE determined that Whirlpool's application for interim waiver does not provide sufficient market, equipment price, shipments, and other manufacturer impact information to permit DOE to evaluate the economic hardship Whirlpool might experience absent a favorable determination on its application for interim waiver. DOE understands, however, that the current test procedure may not predict accurately the water and energy consumption of its line of dishwashers with a built-in water softener. The test procedure will only register water consumption from softener regeneration in a small fraction of test runs, producing variable results. As a result, and based on the information provided by Whirlpool, DOE determined that the test results may provide materially inaccurate comparative data.

Whirlpool provided the European Standard EN 50242, “Electric Dishwashers for Household Use—Methods for Measuring the Performance,” as an alternate test procedure. This standard excludes water use due to softener regeneration from its water use efficiency measure. DOE notes that if water consumption of a regeneration operation is to be apportioned across all cycles of operation, then manufacturers would need to make calculations regarding average water hardness and average water consumption due to regeneration operations that are not currently provided for or allowed by the test procedure. DOE is considering development of an averaging procedure for use as an alternate test procedure in the decision and order on the Whirlpool waiver, and welcomes comments and data in support of such a procedure. In the meantime, use of EN 50242 would provide repeatable results, but would slightly underestimate the energy and water use of these models. In its petition, Whirlpool estimated that, on average, 23 gallons/year of water and 4 kWh/year would be consumed in softener regeneration. These values are based on internal testing conducted by Whirlpool. Therefore, in the interim waiver, DOE is adding these constant values to the energy consumption measured by appendix C.

Based on the likelihood of granting the petition for waiver, DOE grants Whirlpool's application for interim waiver. Therefore, Whirlpool shall not be required to test its dishwasher models:

KitchenAid brand:

KUDE60SXSS

KUDS30SXSS

Kenmore brand:

14052K01

14053K01

14059K01

14062K01

14063K01

14069K01

according to the existing DOE test procedure, which is found in 10 CFR 430, subpart B, appendix C, but shall be required to test and rate such products according to the alternate test procedure as set forth below.

Under appendix C, the water energy consumption, W or Wg, is calculated based on the water consumption as set forth in Sect. 4.3:

§ 4.3 Water consumption. Measure the water consumption, V, expressed as the number of gallons of water delivered to the machine during the entire test cycle, using a water meter as specified in section 3.3 of this Appendix.

Where the regeneration of the water softener depends on demand and water hardness, and does not take place on every cycle, Whirlpool shall measure the water consumption of dishwashers having water softeners without including the water consumed by the dishwasher during softener regeneration. If a regeneration operation takes place within the test, the water consumed by the regeneration operation shall be disregarded when declaring water and energy consumption, but constant values of 23 gallons/year of water and 4 kWh/year of energy shall be added to the values measured by appendix C.

IV. Summary and Request for Comments

Through today's notice, DOE announces receipt of Whirlpool's petition for waiver from certain parts of the test procedure that apply to dishwashers. DOE is publishing Whirlpool's petition for waiver in its entirety pursuant to 10 CFR 430.27(b)(1)(iv). The petition contains no confidential information. The petition includes a suggested alternate test procedure which is to measure the water consumption of dishwashers having water softeners without including the water consumed by the dishwasher during softener regeneration. DOE is interested in receiving comments from interested parties on all aspects of the petition, including the suggested alternate test procedure and any alternate test procedure. Pursuant to 10 CFR 430.27(b)(1)(iv), any person submitting written comments to DOE must also send a copy to the petitioner, whose contact information is included in the ADDRESSES section above.

J.B. Hoyt

Director, Government Relations

May 26, 2010

Via e-mail (cathy.zoi@ee.doe.gov) and Overnight Mail

The Honorable Catherine Zoi

Assistant Secretary, Energy Efficiency and Renewable Energy

U.S. Department of Energy

Mail Station EE-10

1000 Independence Avenue SW

Washington, DC 20585

A. Re: Amended Petition For Waiver and Application for Interim Waiver Under 10 CFR 430.27 for Dishwasher: With Integrated Water Softener

Dear Assistant Secretary Zoi:

Whirlpool Corporation (Whirlpool) respectfully submits this Amended Petition For Waiver and Application for Interim waiver, pursuant to 10 CFR 430.27, to the U.S. Department of Energy (DOE) regarding the test procedure specified in 10 CFR Part 430, Subpt. B, App. C (Test Procedure) for measuring the energy consumption of dishwashers. This Petition is being amended, pursuant to the request of the Department, for purposes of identifying specific model numbers of affected dishwashers in Section 2 (below).

This Amended Petition For Waiver and Application for Interim Waiver is directed to dishwashers containing a built-in or integrated water softener. 10 CFR 430.27(a)(1) provides that a manufacturer may submit a Petition to waive a requirement of § 430.23 upon grounds that the basic model contains one or more design characteristics which either prevent testing of the basic model according to the prescribed test procedures, or the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. Additionally, 10 CFR 430.27(b)(2) allows an applicant to request an Interim Waiver if economic hardship and/or competitive disadvantage is likely to result absent a favorable determination on the Application for Interim Waiver.

For the reasons set forth below, Whirlpool submits that the testing of dishwashers equipped with water softeners under the Test Procedure will lead to results that may be materially inaccurate and mislead consumers.

1. Petitioner.

Whirlpool Corporation is the world's leading manufacturer and marketer of major home appliances, with annual sales of approximately $17 billion in 2009, 67,000 employees, and 67 manufacturing and technology research centers around the world. The company markets Whirlpool, Maytag, KitchenAid, Jenn-Air, Amana, Brastemp, Consul, Bauknecht and other major brand names to consumers in nearly every country around the world.

2. Identification of Basic Models.

This Amended Petition For Waiver and Application for Interim Waiver is made with respect to all basic models of dishwashers that incorporate an integrated water softener (“Basic Models”). The Basic Model numbers are identified as follows:

KitchenAid brand:

KUDE60SXSS

KUDS30SXSS

Kenmore brand:

14052K01

14053K01

14059K01

14062K01

14063K01

14069K01

The design characteristic that is common among the Basic Models is an integrated automatic water softener which is designed to periodically regenerate. During the regeneration operation water is flushed through the water softener. The regeneration operation occurs infrequently and depends on the adjustment of the softener. Water used during the regeneration operation is in addition to the water used by the dishwasher during a dishwasher “normal” cycle.

3. Background.

A water softener reduces water hardness. Hard water is water that has high mineral content (in contrast with soft water). Hard water minerals primarily consist of calcium (Ca²⁺), and magnesium (Mg²⁺) metal cations, and sometimes other dissolved compounds such as bicarbonates and sulfates. Water hardness varies throughout the United States. Based on information provided by the U.S. Geological Survey, the mean water hardness within the U.S. is 217 mg/liter (milligrams per liter), which is the equivalent of 12.6 grains/gallon. See http://water.usgs.gov/owq/hardness-alkalinity.html

Hard water reduces the effectiveness of detergent leading to the need for additional detergent. The amount of rinse aid use is also affected by water hardness; more rinse aid is necessary to achieve good results with hard water. As a result, high water hardness can contribute to filming on dishwasher items, leading to consumer behaviors such as increased pre-rinsing and, in some cases, rewashing of dishes either by hand or by subsequent dishwasher cycles. Further, hard water can lead to the presence of scale build-up within the dishwasher requiring periodic dishwasher cleaning (clean-up).

Accordingly, systems that reduce water hardness can prevent behaviors that consume additional energy and water. Specifically, a dishwasher equipped with a water softener will minimize pre-rinsing and rewashing. Further, consumers will have less reason to periodically run their dishwasher through a clean-up cycle.

Under common water softener technology, water passing through a resin tank loses positively charged calcium and magnesium ions to negatively charged plastic beads. The water is softened in this manner till the plastic beads no longer can supply a negative charge. A brine tank is provided and holds a salt solution that periodically flushes and regenerates the resin tank, replacing calcium and magnesium ions with sodium. The water softening regeneration process requires water for both regeneration and for back-rinsing processes. For the purposes of this Waiver, both water usages are combined and used under the term “regeneration.”

In a dishwasher equipped with a consumer adjustable water softener, water softener regeneration does not take place during every cycle. Rather, regeneration takes place as a function of home water supply water hardness, determined by a customer adjustable dishwasher water hardness level setting. For a conventional dishwasher in a home with the mean water hardness of 12.6 grains per gallon, water softener regeneration may take place approximately every six to eight cycles. However, regeneration may vary significantly, depending on customer adjusted hardness level setting. As indicated by the U.S. Geological Survey information, water hardness within the U.S. varies significantly. For a significant population of U.S. consumers, their water hardness is such that no water softener operation is required.

The amount of water used for softener regeneration, when apportioned evenly across all dishwasher cycles, is very small. For conventional dishwashers, Whirlpool estimates that the typical water use during regeneration ranges between two to three (2-3) liters (0.5-0.8 gallons). If this amount is apportioned across six cycles (a reasonable average regeneration frequency rate), the water usage due to regeneration is approximately 0.41 liters/cycle (0.11 gallons/cycle). Based upon 215 dishwasher cycles per year , the estimated annual water and energy consumption, due to water softener regeneration, will be approximately 23 gallons/year of water and 4 kWh/year, respectively. This is less than 1.5% of the total energy use of the average dishwasher.

Providing a dishwasher with a water softener is not new. Most dishwashers manufactured and sold in European countries contain water softeners. Under the European Standard EN 50242 “Electric Dishwashers for Household Use—Methods for Measuring the Performance,” water usage and energy associated with water softeners is not included.

§ 8.2.1 of EN 50242 is set forth below:

§ 8.2.1 Regeneration operations

For dishwashers, where the regeneration of the water softener depends on demand and water hardness, and does not take place on every cycle; when calculating the arithmetical mean value of the energy, water consumption and time, if a regeneration operation takes place, within the test procedure, it shall be disregarded when declaring energy, water and time values. (Emphasis added)

Note: The frequency of the regeneration operations in some machines is not predictable and depends on the adjustment of the softener and the water hardness of the water used by the laboratories.

In the test report, it shall be stated whether regeneration(s) occurred during the five (or more) test cycles.

European Standard EN 50242 recognizes that including the water used during a regeneration operation would evaluate the tested dishwasher in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. Based on the infrequency of the regeneration operation, including the water used during a regeneration operation in the measurement of water consumption during an individual energy test cycle could lead to overstating the water use by as much as 12%, and overstating the energy use by as much as 6%.

4. Requirements Sought To Be Waived.

The Basic Models are subject to the provisions of 10 CFR Part 430, Subpt. B, App. C of the Test Procedure, which specifies the calculation of water energy consumption for non-soil-sensing and soil-sensing dishwashers using electrically or gas/oil heated water. Under the Test Procedure, the water energy consumption, W or Wg, are calculated based on the water consumption as set forth in 10 CFR Part 430, Subpt. B, App. C, Sect. 4.3:

§ 4.3 Water consumption. Measure the water consumption, V, expressed as the number of gallons of water delivered to the machine during the entire test cycle, using a water meter as specified in section 3.3 of this Appendix.

Whirlpool is requesting approval to measure water consumption of dishwashers having water softeners without including the water consumed by the dishwasher during softener regeneration. Similar to the European standard EN 50242, Whirlpool is proposing that if a regeneration operation takes place within the test procedure, the water consumed by the regeneration operation shall be disregarded when declaring water and energy consumption.

5. Grounds For Waiver and Interim Waiver.

10 CFR 430.27(a)(1) provides that a Petition to waive a requirement of § 430.23 may be submitted upon grounds that the basic model contains one or more design characteristics which either prevent testing of the basic model according to the prescribed test procedures, or the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data.

As noted above, the inclusion of a water softener in a dishwasher is likely to lead to water and energy savings due to enhanced effectiveness of the dishwasher. This advance in technology offers consumers a new benefit that should not be discouraged by the Test Procedure. Additionally, the amount of water consumed by the regeneration operation of a water softener in a dishwasher is very small and varies significantly depending on the adjustment of the softener.

In view of the small amount of water consumed during softener regeneration and the relative infrequency of the regeneration operation, Whirlpool is requesting approval to measure water consumption of dishwashers having water softeners without including the water consumed by the dishwasher during softener regeneration. If this Waiver and Interim Waiver are not granted, there will be significant uncertainty in the method for measuring water consumption for dishwashers with water softeners. If water consumption due to water softeners is measured during an energy cycle, without any apportionment of this water across all cycles, energy use for a dishwasher could be overstated by a significant amount. If water consumption of a regeneration operation is to be apportioned across all cycles of operation, then manufacturers would need to make calculations regarding average water hardness and average water consumptions due to regeneration operations that are not currently provided for or allowed by the Test Procedure.

6. Justification for Whirlpool's Interim Waiver Application.

Granting of an Interim Waiver is justified in this case because Whirlpool has provided strong evidence that demonstrates the likelihood of the granting of the Amended Petition for Waiver.

Additionally, Whirlpool will suffer significant economic hardship and competitive disadvantage if this Interim Waiver Application is not granted and there are strong public policy justifications to issue an Interim Waiver to help promote uniform interpretation and application of the Test Procedure to dishwashers with water softeners. As discussed above, if this Interim Waiver is not granted, there will be significant uncertainty in how to measure water consumption for dishwashers with water softeners. This will cause economic hardship and competitive disadvantage for Whirlpool. There are long lead times and significant expenses associated with the design and manufacture of dishwashers. Compliance with federally mandated energy consumption standards and ENERGY STAR criteria is a critical design factor for dishwashers. Any delay in obtaining clarity on this issue will cause Whirlpool economic hardship and competitive disadvantage.

7. Manufacturers of Similar Products and Affected Manufacturers.

We believe that at least two dishwasher manufacturers, BSH Home Appliances Corp. (Bosch-Siemens Hausgerate GmbH) and Miele Inc., are currently selling in the U.S. dishwashers with an integrated water softener.

The manufacturers that sell dishwashers in the United States include ASKO Appliances, Inc., BSH Home Appliances Corp. (Bosch-Siemens Hausgerate GmbH), Electrolux North America, Inc., Fisher & Paykel Appliances, GE Appliances and Lighting, Haier America, Indesit Company Sa, LG Electronics USA, Miele, Inc., Samsung Electronics Co., and Viking Range Corporation. The Association of Home Appliances Manufacturers is also generally interested in energy efficiency requirements for appliances, including dishwashers. Whirlpool will notify all these entities as set forth in the Department's rules and provide them with a version of this Amended Petition and Application.

8. Conclusion.

Whirlpool respectfully submits that by granting this Amended Waiver Petition and Application for Interim Waiver, the Department will ensure that advancements in technology and consumer beneficial innovations are not hindered by regulations, and that similar products are tested and rated for energy consumption on a comparable basis. This waiver should continue until the Test Procedure can be formally amended to exclude the water and energy consumed during a water softener regeneration operation.

Whirlpool certifies that all manufacturers of domestically marketed dishwashers identified above have been notified by letter of this Amended Petition and application. Copies of such letter and related certification are attached hereto.

  Sincerely,

/s/J.B. Hoyt

J.B. Hoyt

Director, Government Relations

Whirlpool Corporation