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[Federal Register Volume 76, Number 40 (Tuesday, March 1, 2011)]
[Notices]
[Pages 11228-11233]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4485]

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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

 [Case No. CW-018]

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.

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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.

[[Page 11229]]

    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.\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 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

[[Page 11230]]

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:

------------------------------------------------------------------------
                   Model                                Brand
------------------------------------------------------------------------
WM3360H***................................  LG
WM3550H***................................  LG
WM3150H**.................................  LG
WM3975H***................................  LG
WM3985H***................................  LG
WT4901C*..................................  LG
294700..................  Kenmore
------------------------------------------------------------------------

    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.

                                           Table 5.1--Test Load Sizes
----------------------------------------------------------------------------------------------------------------
               Container volume                     Minimum load          Maximum load          Average load
----------------------------------------------------------------------------------------------------------------
            cu. ft.                  liter
-----------------------------------------------     lb         kg         lb         kg         lb         kg
           [gteqt] 0.10 lbs (0.05 kg).

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.

    Issued in Washington, DC, on February 23, 2011.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.
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. Sec.  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.

[[Page 11232]]

    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[reg] and OEM brands, 
including GE[reg] and Kenmore[reg].
    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. 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.\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 CFR part 430, Subpart B, Appendix J1.
---------------------------------------------------------------------------

    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.)

------------------------------------------------------------------------
                   Model                                Brand
------------------------------------------------------------------------
WM3360H***................................  LG.
WM3550H***................................  LG.
WM3150H**.................................  LG.
WM3975H***................................  LG.
WM3985H***................................  LG.
WT4901C*..................................  LG.
294700..................  Kenmore.
------------------------------------------------------------------------

Appendix 2

                                           Table 5.1--Test Load Sizes
----------------------------------------------------------------------------------------------------------------
               Container volume                     Minimum load          Maximum load          Average load
----------------------------------------------------------------------------------------------------------------
         cu. ft. >= =  0.10 lbs (0.05 kg).

[FR Doc. 2011-4485 Filed 2-28-11; 8:45 am]
BILLING CODE 6450-01-P
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