Notice of Petition for Waiver of LG Electronics U.S.A., Inc. From the Department of Energy Clothes Washer Test Procedure, and Grant of Interim Waiver
Federal Register, Volume 77 Issue 34 (Tuesday, February 21, 2012)
Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)
Notices
Pages 9907-9912
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2012-3942
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DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
Case No. CW-023
Notice of Petition for Waiver of LG Electronics U.S.A., Inc. From the Department of Energy 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, notice of grant of interim waiver, and request for comments.
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SUMMARY: This notice announces receipt of and publishes the LG Electronics U.S.A., 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 March 22, 2012.
ADDRESSES: You may submit comments, identified by case number CW-023, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Email: AS_Waiver_Requests@ee.doe.gov. Include ``Case No. CW-023'' in the subject line of the message.
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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.
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., 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.
FOR FURTHER INFORMATION CONTACT: Mr. Bryan Berringer, U.S. Department of Energy, Building Technologies Program, Mail Stop EE-2J, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-0371. Email: Bryan.Berringer@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. Email: Elizabeth.Kohl@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
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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.\1\ 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.
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\1\ For editorial reasons, upon codification in the U.S. Code, Part B was re-designated Part A.
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The regulations set forth in 10 CFR 430.27 contain provisions that enable a person to seek a waiver from the test procedure requirements for covered products. The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) will grant a waiver 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)), 431.401(f)(4). 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), 430.401(b)(1)(iii). The Assistant Secretary may grant the waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l), 431.401(f)(4). Waivers remain in effect pursuant to the provisions of 10 CFR 430.27(m) or 430.401(g), as appropriate.
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(g), 430.401(e)(3). 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), 430.401(e)(4).
On December 23, 2010, DOE issued enforcement guidance on the application of 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://energy.gov/sites/prod/files/gcprod/documents/LargeCapacityRCW_guidance_122210.pdf.
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Application for Interim Waiver and Petition for Waiver
On November 28, 2011, LG submitted a petition for waiver from the DOE test procedure applicable to automatic and semi-automatic clothes washers set forth in 10 CFR part 430, subpart B, appendix J1. LG requested the waiver for specified basic models with capacities greater than 3.8 cubic feet 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. 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 table is identical to the Table 5.1 found in DOE's clothes washer test procedure Notice of Proposed Rulemaking (NOPR). 75 FR 57556 (September 21, 1010). DOE notes that the Table 5.1 proposed in the September 2010 NOPR was amended to correct rounding errors in the supplemental proposed rule issued on July 26, 2011 http://www.eere.energy.gov/buildings/appliance_standards/residential/pdfs/rcw_tp_snopr.pdf (76 FR 49238, Aug. 9, 2011).
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), 430.401(e)(3)).
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. DOE has determined, however, that it is likely LG's petition will be granted, and that it is desirable for public policy reasons to grant LG relief pending a determination on the petition. Previously, DOE granted test procedure waivers to other manufacturers for products with capacities larger than currently specified in the test procedure. See, e.g., Electrolux (76 FR 11440 (Mar. 2, 2011)) and Samsung (76 FR 13169 (Mar. 10, 2011), 76 FR 50207 (Aug. 12, 2011), 76 FR 70996, (Nov. 16, 2011)). DOE has also granted previous waivers to LG for similar products. See,
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e.g., 76 FR 11233, Mar. 1, 2011; 76 FR 21879, Apr. 19, 2011; 76 FR 64330, Oct. 18, 2011; 77 FR 4999, Feb. 1, 2012. In these waivers, DOE established an alternate test procedure extending the linear relationship between the maximum test load size and clothes washer container volume up to 6.0 cubic feet. As noted above, this revised table would be established by adoption of DOE's September 2010 test procedure NOPR, as amended in the supplemental proposal issued on July 26, 2011.
The current DOE test procedure specifies test load sizes only for machines with capacities up to 3.8 cubic feet. For the reasons set forth in DOE's September 2010 NOPR, 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 waivers granted to LG and other manufacturers for similar models, it appears likely that the petition for waiver will be granted. DOE also believes that the energy efficiency of similar products should be tested and rated in the same manner. As a result, DOE grants an interim waiver to LG for 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.
LG shall be required to test and rate the specified clothes washer products according to the alternate test procedure as set forth in section III, ``Alternate Test Procedure.''
The interim waiver applies to the following basic residential model groups:
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Model Brand
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WT5070C*.................................. LG.
WM8000H**................................. LG.
414721.................. Kenmore.
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DOE makes decisions on waivers and interim waivers for only those models specifically set out in the petition, not future models that may be manufactured by the petitioner. LG may submit a subsequent 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 part 429.
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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 that appears in DOE's clothes washer test procedure NOPR (75 FR 57556, Sept. 21, 1010), altered slightly to correct rounding errors as specified in DOE's supplemental proposal issued on July 26, 2011.
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.
Table 5.1--Test Load Sizes
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Container volume Minimum load Maximum load Average load
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cu. ft. liter
----------------------------------------------------------- lb kg lb kg lb kg
>= = 0.10 lbs (0.05 kg).
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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), 430.401(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 solicits comments from interested parties on all aspects of the petition. Pursuant to 10 CFR 430.27(b)(1)(iv), 430.401(c)(1), any person submitting written comments to DOE must also send a copy of such comments to the petitioner. 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.
All submissions received must include the agency name and case number for this proceeding. Submit electronic comments in 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).
Issued in Washington, DC, on February 7, 2012.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
November 28, 2011
The Honorable Henry Kelly
Acting 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 Kelly:
LG Electronics, Inc. (LG) respectfully submits this Petition for Waiver and Application for Interim Waiver, pursuant to 10 C.F.R. Sec. 430.27, as related to DOE's test procedure for clothes washers. DOE has already granted LG waivers relating to testing of certain models. 76 Fed. Reg. 70999 (Nov. 16, 2011); id. 64330 (Oct. 18, 2011); id. 21879 (April 19, 2011); id. 11228 (March 1, 2011); id. 11233 (March 1, 2011); 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-
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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 LGreg and OEM brands, including GEreg and Kenmorereg.
The test procedure under the Energy Policy and Conservation Act (EPCA), 42 U.S.C. Sec. 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. Jl, 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. See, e.g., 76 Fed. Reg. 70999 (Nov. 16, 2011) (LG); id. 70996 (Nov. 16, 2011) (Samsung); id. 64330 (Oct. 18, 2011) (LG); id. 48149 (Aug. 8, 2011) (Samsung); id. 21879 (April 19, 2011 (LG); id. 21881 (April 19, 2011) (Samsung); id. 13169 (March 10, 2011) (Samsung); id. 11440 (March 2, 2011) (Electrolux); id. 11228 (March 1, 2011) (LG); id. 11233 (March 1, 2011) (LG); 75 Fed. Reg. 81258 (Dec. 27, 2010) (Electrolux); id. 76968 (Dec. 10, 2010) (GE); id. 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). And it has issued Supplemental Notices of Proposed Rulemakings to the same effect. 76 Fed. Reg. 69870 (Nov. 9, 2011); id. 49238 (Aug. 9, 2011). 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, IGC Enforcement Guidance on the Application of Waivers and on the Waiver Process (Dec. 23, 2010), at http://www.gc.energy.gov/documents/LargeCapacityRCW_guidance22210.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 waivers granted to LG for certain models. See 76 Fed. Reg. 70999 (Nov. 16, 2011); id. 64330 (Oct. 18, 2011); id. 21879 (April 19, 2011); id. 11228 (March 1, 2011); id. 11233 (March 1, 2011); 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.\1\
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\1\ All LG models are measured in accordance with DOE's final guidance for measuring clothes container capacity under the test procedure in 10 C.F.R. Part 430, Subpart B, Appendix J1.
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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 repeated this in its March 7, 2011 notice concerning its certification, compliance and enforcement rule. 76 Fed. Reg.12422, 12442 (``The Department renews its commitment to act swiftly on waiver requests'').\2\ LG appreciates this commitment by DOE.
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\2\ DOE goes on to state that ``DOE, as a matter of policy, will refrain from enforcement actions related to a waiver request that is pending with the Department'' Id.
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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
Table 5.1--Test Load Sizes
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Container volume Minimum load Maximum load Average load
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cu. ft. >= = 0.10 lbs (0.05 kg).
FR Doc. 2012-3942 Filed 2-17-12; 8:45 am
BILLING CODE 6450-01-P
