Energy Conservation Program for Consumer Products: Notice of Petition for Waiver of LG Electronics USA, Inc. From the Department of Energy Residential Clothes Washer Test Procedure, and Grant of Interim Waiver

AGENCY:

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

ACTION:

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

SUMMARY:

This notice announces receipt of and publishes the LG Electronics USA, Inc. (LG) petition for waiver and application for interim waiver (hereafter, “petition”) from specified portions of the U.S. Department of Energy (DOE) test procedure for determining the energy consumption of clothes washers. Today's notice also grants an interim waiver of the clothes washer test procedure. Through this notice, DOE also solicits comments with respect to the LG petition.

DATES:

DOE will accept comments, data, and information with respect to the LG petition until, but no later than March 31, 2011.

ADDRESSES:

You may submit comments, identified by case number CW-018, 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 “Case No. CW-018” 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 should 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 430.27(d). The contact information for the petitioner is: John I. Taylor, Vice President, Government Relations and Communications, LG Electronics USA, Inc., 1776 K Street, NW., Washington, DC 20006; (202) 719-3490; Email: john.taylor@lge.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.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) a date upon which such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

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 clothes washer 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. Jennifer Tiedeman, 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) 287-6111. E-mail: Jennifer.Tiedeman@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background and Authority

Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-163 (42 U.S.C. 6291-6309, as codified), established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances, which includes the clothes washers that are the focus of this notice. Part B includes definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. Further, Part B 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 automatic and semi-automatic clothes washers is contained in 10 CFR part 430, subpart B, appendix J1.

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 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 430.27(b)(1)(iii). The Assistant Secretary may grant the waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l). Waivers remain in effect pursuant to the provisions of 10 CFR 430.27(m).

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 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. DOE may extend an interim waiver for an additional 180 days. 10 CFR 430.27(h).

On December 23, 2010, DOE issued enforcement guidance on the application of recently granted waivers for large-capacity clothes washers and announced steps to improve the waiver process and refrain from certain enforcement actions. This guidance can be found on DOE's Web site at http://www.gc.energy.gov/1661.htm .

II. Application for Interim Waiver and Petition for Waiver

On September 24, 2010, LG filed an initial petition for waiver and application for interim waiver from the test procedure applicable to automatic and semi-automatic clothes washers set forth in 10 CFR part 430, subpart B, appendix J1. In particular, LG requested a waiver to test its clothes washers with basket volumes greater than 3.8 cubic feet on the basis of the aforementioned residential test procedures, using a revised Table 5.1 which extends the range of container volumes beyond 3.8 cubic feet. This petition was granted on November 24, 2010. 75 FR 71680. On January 19, 2011, LG filed the instant petition for waiver and application for interim waiver to expand the number of models subject to the alternative test procedure set forth in the company's September 2010 petition for waiver.

LG's current petition seeks a waiver from the DOE test procedure because the mass of the test load used in the procedure, which is based on the basket volume of the test unit, is currently not defined for basket sizes greater than 3.8 cubic feet. LG manufactures basic models with capacities greater than 3.8 cubic feet, and it is for these basic models that LG seeks a waiver from DOE's test procedure.

Table 5.1 of Appendix J1 defines the test load sizes used in the test procedure as linear functions of the basket volume. LG requests that DOE grant a waiver for testing and rating based on a revised Table 5.1, the same table as set forth in the interim waiver granted to LG on November 24, 2010. 75 FR 71680. The table is identical to the Table 5.1 found in DOE's recently published clothes washer test procedure Notice of Proposed Rulemaking (NOPR). 75 FR 57556 (September 21, 1010).

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 430.27(g)). DOE has determined that LG'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 LG might experience absent a favorable determination on its application for interim waiver. Previously, however, DOE granted an interim test procedure waiver to Whirlpool for three of Whirlpool's clothes washer models with container capacities greater than 3.8 cubic feet. 71 FR 48913 (August 22, 2006). The notice contained an alternate test procedure, which extended the linear relationship between maximum test load size and clothes washer container volume in Table 5.1 to include a maximum test load size of 15.4 pounds (lbs) for clothes washer container volumes of 3.8 to 3.9 cubic feet. On September 16, 2010, DOE granted interim waivers to General Electric (75 FR 57915 (September 23, 2010)) and Samsung (75 FR 57937 (September 23, 2010)) for similar products. GE's waiver was granted on December 10, 2010. 75 FR 76968. As stated above, DOE granted a previous interim waiver to LG on November 24, 2010.

The current DOE test procedure specifies test load sizes only for machines with capacities up to 3.8 cubic feet, and DOE believes that extending the linear relationship between test load size and container capacity to larger capacities is valid. In addition, testing a basic model with a capacity larger than 3.8 cubic feet using the current procedure could evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. Based on these considerations, and the interim waivers granted to LG, Whirlpool, Samsung and GE, it appears likely that the petition for waiver will be granted. As a result, DOE grants an interim waiver to LG for of the basic models of clothes washers with container volumes greater than 3.8 cubic feet specified in its petition for waiver, pursuant to 10 CFR 430.27(g). DOE also provides for the use of an alternative test procedure extending the linear relationship between test load size and container capacity, described below. Therefore, it is ordered that:

The application for interim waiver filed by LG is hereby granted for the specified LG clothes washer basic models, subject to the specifications and conditions below.

1. LG shall not be required to test or rate the specified clothes washer products on the basis of the test procedure under 10 CFR part 430 subpart B, appendix J1.

2. LG shall be required to test and rate the specified clothes washer products according to the alternate test procedure as set forth in section IV, “Alternate Test Procedure.”

The interim waiver applies to the following basic model groups:

DOE makes decisions on waivers and interim waivers for only those models specifically set out in the petition, not future models that may or may not be manufactured by the petitioner. LG may submit a new or amended petition for waiver and request for grant of interim waiver, as appropriate, for additional models of clothes washers for which it seeks a waiver from the DOE test procedure. In addition, DOE notes that grant of an interim waiver or waiver does not release a petitioner from the certification requirements set forth at 10 CFR 430.62.

III. Alternate Test Procedure

EPCA requires that manufacturers use DOE test procedures to make representations about the energy consumption and energy consumption costs of products covered by the statute. (42 U.S.C. 6293(c)) Consistent representations are important for manufacturers to use in making representations about the energy efficiency of their products and to demonstrate compliance with applicable DOE energy conservation standards. Pursuant to its regulations applicable to waivers and interim waivers from applicable test procedures at 10 CFR 430.27, DOE will consider setting an alternate test procedure for LG in a subsequent Decision and Order.

The alternate procedure approved today is intended to allow LG to make valid representations regarding its clothes washers with basket capacities larger than provided for in the current test procedure. This alternate test procedure is based on the expanded Table 5.1 of Appendix J1 submitted by LG. As noted above, the Table 5.1 submitted by LG in its petition is the same Table 5.1 that appears in DOE's clothes washer test procedure NOPR. 75 FR 57556 (September 21, 1010). The NOPR Table 5.1 uses the accurate conversion factor 0.45359237 employed by LG and Samsung to convert test loads from pounds to kilograms. The rounding errors contained in earlier LG petitions for waiver are not present in LG's current petition.

During the period of the interim waiver granted in this notice, LG shall test its clothes washer basic models according to the provisions of 10 CFR part 430 subpart B, appendix J1, except that the expanded Table 5.1 below shall be substituted for Table 5.1 of appendix J1.

IV. Summary and Request for Comments

Through today's notice, DOE announces receipt of LG's petition for waiver from certain parts of the test procedure that apply to clothes washers and grants an interim waiver to LG. DOE is publishing LG'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 to measure the energy consumption of clothes washers with capacities larger than the 3.8 cubic feet specified in the current DOE test procedure. DOE is interested in receiving comments from interested parties on all aspects of the petition, including the suggested alternate test procedure and any other 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.

LG Electronics U.S.A., Inc., 1000 Sylvan Avenue, Englewood Cliffs, NJ 07632

January 19, 2011

The Honorable Catherine Zoi, Assistant Secretary, Energy Efficiency and Renewable Energy, United States Department of Energy, Mail Station EE-10, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585

Re: Petition for Waiver and Application for Interim Waiver, Test Procedure for Clothes Washers

Dear Assistant Secretary Zoi: LG Electronics, Inc. (LG) respectfully submits this Petition for Waiver and Application for Interim Waiver, pursuant to 10 C.F.R. § 430.27, as related to DOE's test procedure for clothes washers. DOE has already granted LG an interim waiver relating to testing of certain models. 75 Fed. Reg. 71680 (Nov. 24, 2010). The current Petition and Application would expand the number of models subject to the grant of a waiver. LG requests expedited treatment of the Petition and Application.

LG is a manufacturer of clothes washers and other products sold worldwide, including in the United States. LG's U.S. operations are LG Electronics USA, Inc., with headquarters at 1000 Sylvan Avenue, Englewood Cliffs, NJ 07632 (tel. 201-816-2000). Its worldwide headquarters are located at LG Twin Towers 20, Yoido-dong, Youngdungpo-gu Seoul, Korea 150-721; (tel. 011-82-2-3777-1114); URL: http.www.LGE.com. LG's principal brands include LG® and OEM brands, including GE® and Kenmore®.

The test procedure under the Energy Policy and Conservation Act (EPCA), 42 U.S.C. § 6291 et seq., provides for clothes washers to be tested with specified allowable test load sizes. See 10 C.F.R. Pt. 430, Subpt. B, App. J1, Table 5.1. The largest average load under Table 5.1 is 9.20 lbs. LG believes that it is appropriate for DOE to grant a waiver that would allow for testing and rating of specified models (see Appendix 1 hereto) with larger test loads where the model has a container volume that is greater than the largest volume shown on Table 5.1.

DOE has already granted waivers and/or interim waivers to a number of manufacturers, including LG, Whirlpool, General Electric, Samsung, and Electrolux for testing with larger test loads for specified models with container volumes in excess of 3.8 cubic feet. 75 Fed. Reg. 71680 (Nov. 24, 2010) (LG); id. 57915 (Sept. 23, 2010) (GE); id. 57937 (Sept. 23, 2010) (Samsung); id. 69653 (Nov. 15, 2010) (Whirlpool); id. 76962 (Dec. 10, 2010) (Electrolux); id. 76968 (Dec. 10, 2010) (GE); id. 81258 (Dec. 27, 2010) (Electrolux); 71 Fed. Reg. 48913 (Aug. 22, 2006) (Whirlpool). The Association of Home Appliance Manufacturers (AHAM) has submitted comments to DOE suggesting that the DOE test procedure be amended to provide for testing with loads in excess of those shown in Table 5.1 when testing is done on clothes washers with volumes in excess of 3.8 cubic feet. See AHAM Comments on the Framework Document for Residential Clothes Washers; EERE-2008-BT-STD-0019; RIN 1904-AB90, at Appendix B—AHAM Proposed Changes to J1 Table 5.1 (Oct. 2, 2009). In addition, DOE has issued a Notice of Proposed Rulemaking proposing to amend the DOE test procedure to adopt the AHAM proposed Table 5.1. 75 Fed. Reg. 57556 (Sept. 21, 2010). Further, DOE has issued a guidance document indicating the appropriateness of waivers for testing with larger test loads for clothes washers with volumes in excess of 3.8 cubic feet. DOE, GC Enforcement Guidance on the Application of Waivers and on the Waiver Process (Dec. 23, 2010), at http://www.gc.energy.gov/documents/LargeCapacityRCW_guidance_22210.pdf.

LG requests that DOE grant a waiver for testing and rating based on the revised Table 5.1 in Appendix 2 hereto. This is the Table 5.1 as already set forth in the interim waiver granted to LG for certain models. See 75 Fed. Reg. 71680 (Nov. 24, 2010). The revised Table 5.1 should be applied to LG's testing and rating of other models as specified in Appendix 1 hereto.

The waiver should continue until DOE adopts an applicable amended test procedure.

LG also requests an interim waiver for its testing and rating of the foregoing models. The petition for waiver is likely to be granted, as evidenced not only by its merits, but also because DOE has granted waivers and/or interim waivers to LG, Whirlpool, GE, Samsung, and Electrolux and has proposed a corresponding amendment to its test procedure. Hence, grant of an interim waiver for LG is appropriate.

We would be pleased to discuss this request with DOE and provide further information as needed.

LG requests expedited treatment of the Petition and Application. In that regard, DOE has stated in its December 23, 2010 Enforcement Guidance (supra) that it “commits to act promptly on waiver requests.” LG appreciates this commitment by DOE.

We hereby certify that all manufacturers of domestically marketed units of the same product type have been notified by letter of this petition and application, copies of which letters are set forth in Appendix 3 hereto.

Sincerely,

John I. Taylor,

Vice President, Government Relations and Communications, LG Electronics USA, Inc., 1776 K Street, NW., Washington, DC 20006, Phone: 202-719-3490, Fax: 847-941-8177, Email: john.taylor@lge.com

Of counsel: John A. Hodges, Wiley Rein LLP, 1776 K Street, NW., Washington, DC 20006, Phone: 202-719-7000, Fax: 202-719-7049, Email: jhodges@wileyrein.com

Appendix 1

The waiver and interim waiver requested herein should apply to testing and rating of the following model series of LG-manufactured clothes washers. Please note that the actual model numbers will vary to account for such factors as year of manufacture, product color, or other features. Nonetheless, they will always have volumes in excess of 3.8 cubic feet.

(In the chart below, “ # ” represents a number; “*” represents a letter.)

Appendix 2