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###### Department of Energy

###### Office of Energy Efficiency and Renewable Energy

          - [Case No. CD-006]

# AGENCY:

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

# ACTION:

Notice of petition for waiver, granting of application for interim waiver, and request for public comments.

# SUMMARY:

This notice announces receipt of and publishes the BSH Home Appliances Corporation (BSH) petition for waiver (hereafter, “petition”) from specified portions of the U.S. Department of Energy (DOE) test procedure for determining the energy consumption of residential clothes dryers. The waiver request pertains to BSH's specified models of condensing residential clothes dryers. The existing test procedure does not apply to condensing clothes dryers. In addition, today's notice grants BSH an interim waiver from the DOE test procedure applicable to residential clothes dryers. DOE solicits comments, data, and information concerning BSH's petition.

# DATES:

DOE will accept comments, data, and information with respect to BSH's Petition until May 6, 2011.

# ADDRESSES:

You may submit comments, identified by case number CD-006, 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 the case number [Case No. CD-005] in the subject line of the message.                    
      -  Mail:                          Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, Petition for Waiver Case No. CD-005, 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., (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 rulemakings regarding similar clothes dryers. 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 residential clothes dryers 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 clothes dryers is contained in 10 CFR part 430, subpart B, appendix D.                

                    DOE's 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 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(a)(1). Petitioners must include in their petition any alternate test procedures known to the petitioner evaluate the basic model in a manner representative of its energy consumption. 10 CFR                           ( print page 19088)                        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 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 on the petition for waiver. 10 CFR 430.27(a)(2); 430.27(g). An interim waiver remains in effect for a period of 180 days or until DOE issues its determination on the petition for waiver, whichever is sooner, and may be extended for an additional 180 days, if necessary. 10 CFR 430.27(h).

## II. Petition for Waiver of Test Procedure

On December 28, 2009, BSH filed a petition for waiver and an application for interim waiver from the test procedure applicable to residential clothes dryers set forth in 10 CFR Part 430, Subpart B, Appendix D. BSH seeks a waiver from the applicable test procedure for its Bosch WTC82100US and Bosch WTE86300US product models because, BSH asserts, design characteristics of these models prevent testing according to the currently prescribed test procedure, as described in greater detail in the following paragraph. DOE previously granted Miele Appliance, Inc. (Miele) a waiver from test procedures for two similar condenser clothes dryer models (T1565CA and T1570C). 60 FR 9330 (Feb. 17, 1995). DOE granted Miele an interim waiver for similar additional products on February 1, 2011. (76 FR 5567). DOE also granted waivers for the same type of clothes dryer to LG Electronics (73 FR 66641, Nov. 10, 2008), Whirlpool Corporation (74 FR 66334, Dec. 15, 2009) and General Electric (75 FR 13122, Mar. 18, 2010). BSH claims that its condenser clothes dryers cannot be tested pursuant to the DOE procedure and requests that the same waiver granted to other manufacturers be granted for BSH's Bosch WTC82100US and Bosch WTE86300US models.

In support of its petition, BSH claims that the current clothes dryer test procedure applies only to vented clothes dryers because the test procedure requires the use of an exhaust restrictor on the exhaust port of the clothes dryer during testing. Because condenser clothes dryers operate by blowing air through the wet clothes, condensing the water vapor in the airstream, and pumping the collected water into either a drain line or an in-unit container, these products do not use an exhaust port like a vented dryer does. BSH plans to market a condensing clothes dryer for situations in which a conventional vented clothes dryer cannot be used, such as high-rise apartments and condominiums; the construction of these types of buildings does not permit the use of external venting.

The BSH Petition requests that DOE grant a waiver from the existing test procedure to allow the sale of two models (Bosch WTC82100US and Bosch WTE86300US) until DOE prescribes final test procedures and minimum energy conservation standards appropriate to condenser clothes dryers. Similar to the other manufacturers, BSH did not include an alternate test procedure in its petition.

## III. Application for Interim Waiver

BSH also requests an interim waiver from the existing DOE test procedure for immediate relief. Under 10 CFR 430.27(b)(2) each application for interim waiver “shall demonstrate likely success of the Petition for Waiver and shall address what economic hardship and/or competitive disadvantage is likely to result absent a favorable determination on the Application for Interim Waiver.” 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 BSH'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 BSH might experience absent a favorable determination on its application for interim waiver. DOE understands, however, that the BSH condensing clothes dryers have a feature that prevents testing them according to the existing DOE test procedure. In addition, as stated in the previous section, DOE has previously granted waivers to Miele, LG, Whirlpool and GE for similar products. It is in the public interest to have similar products tested and rated for energy consumption on a comparable basis, where possible. Further, DOE has determined that BSH is likely to succeed on the merits of its petition for waiver and that it is desirable for policy reasons to grant immediate relief.

                    For the reasons stated above, DOE grants BSH's application for interim waiver from testing of its condensing clothes dryer product line. Therefore,                     *it is ordered that:*

The application for interim waiver filed by BSH is hereby granted for BSH's Bosch WTC82100US and Bosch WTE86300US condensing clothes dryers. BSH shall not be required to test its Bosch WTC82100US and Bosch WTE86300US condensing clothes dryers on the basis of the test procedure under 10 CFR part 430 subpart B, appendix D.

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. BSH may submit a new or amended petition for waiver and request for grant of interim waiver, as appropriate, for additional models of clothes dryers 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.

Further, this interim waiver is conditioned upon the presumed validity of statements, representations, and documents provided by the petitioner. DOE may revoke or modify this interim waiver at any time upon a determination that the factual basis underlying the petition for waiver is incorrect, or upon a determination that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics.

## IV. Summary and Request for Comments

                    Through today's notice, DOE grants BSH an interim waiver from the specified portions of the test procedure applicable to BSH's Bosch WTC82100US and Bosch WTE86300US condensing clothes dryers and announces receipt of BSH's petition for waiver from those same portions of the test procedure. DOE publishes BSH's petition for waiver in its entirety pursuant to 10 CFR 430.27(b)(1)(iv). The petition contains no confidential information.                          ( print page 19089)    

DOE solicits comments from interested parties on all aspects of the petition. Pursuant to 10 CFR 430.27(b)(1)(iv), 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: Dr. Uwe Mette, Director, Engineering Laundry Products, BSH Home Appliances Corporation, 5551 McFadden Avenue, Huntington Beach, CA 92649. 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).

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.

Issued in Washington, DC on March 30, 2011.

Kathleen Hogan,

Deputy Assistant Secretary for Energy Efficiency, Office of Technology Development, Energy Efficiency and Renewable Energy.

December 28, 2009

Catherine Zoi

Energy Efficiency and Renewable Energy

Department of Energy

1000 Independence Avenue, SW., Washington, DC 20585.

                    Re:                     *Petition of Waiver and Application for Interim Waiver, BSH Condenser Clothes Dryers*

Dear Assistant Secretary: BSH Home Appliances Corporation (“BSH”) hereby submits this Petition for Waiver and Application for Interim Waiver, pursuant to 10 CFR 430.27, for its condenser clothes dryers. A waiver was granted to Miele Appliance, Inc. for the same type of product. 60 FR 9330 (Feb. 17, 1995).

BSH is the manufacturer of household appliances bearing the brand names of Bosch, Thermador, and Gaggenau. Its appliances include washing machines, clothes dryers, refrigerator-freezers, ovens, microwave ovens, dishwashers, and vacuum cleaners, and are sold worldwide, including in the United States. BSH's United States operations are headquartered in Huntington Beach, California. BSH's residential clothes dryers are produced in the United States and Poland.

BSH markets highly efficient, advanced-design condenser (non-vented) clothes dryers. The current BSH model numbers of these products are Bosch WTC82100US and Bosch WTE86300US. This product does not vent exhaust air to the outside as a conventional dryer does, but rather uses ambient air to cool the hot, humid air inside the appliance thereby condensing out the moisture. There is no exhaust air, only a wastewater stream that can be drained into a water container. This type of product is suited for installation conditions where exhaust venting is not practical or is cost prohibitive. It thus benefits those dwellers of high-rise apartments and others who in many cases have no way to vent to the outside or at least not without considerable remodeling/construction expense. The advantageous no-exhaust design characteristic produces a more complex drying process than the regular vented dryer.

                    Condenser clothes dryers offer additional utility to the consumer that affects energy consumption, and the characteristics of the product are not reflected by the test procedure. The condenser clothes dryer does not have an outside vent exhaust, and extracting the moisture from the warm moist air in the drum requires more energy to dry clothes than simply exhausting the warm moist air to the outdoors.[1] 

DOE's existing test procedure for clothes dryers requires the use of an exhaust restrictor to simulate the backpressure effects of a vent tube in an installed condition. And the test procedure does not provide any definition or mention of condenser clothes dryers. Since BSH's condenser clothes dryers do not have an exhaust vent and the DOE test procedure does not provide any definition or mention of condenser clothes dryers, the products cannot be tested in accordance with the test procedure. Thus, the test procedure does not apply to them. Consequently, the DOE energy conservation standard for clothes dryers does not apply to BSH condenser dryers since the DOE standard must be “determined in accordance with test procedures prescribed under section 6293 of this title.” 42 U.S.C. 6291(6).

These circumstances clearly warrant a waiver. 10 CFR 430.27 provides for waiver of DOE test procedures on the grounds that a basic model contains design characteristics that either prevent testing according to the prescribed test procedure or produce data so unrepresentative of a covered product's true energy consumption characteristics as to provide materially inaccurate comparative data. As discussed above, the BSH condenser clothes dryer contains a design characteristic—lack of an exhaust—that prevents testing according to the DOE test procedure. Further, the test procedure does not provide any definition or mention of condenser clothes dryers. A waiver should therefore be granted that provides that BSH is not required to test its condenser clothes dryers. The existing minimum energy conservation standard for clothes dryers also should not apply to these BSH condenser clothes dryers. The waiver should remain in effect until DOE prescribes final test procedures and minimum energy conservation standards appropriate to BSH's condenser clothes dryers.

                    That a waiver is warranted is borne out by the fact that DOE has granted a waiver to Miele for the same type of product. 60 FR 9330 (Feb. 17, 1995). DOE stated: “The Department agrees with Miele and AHAM that the condenser clothes dryer offers the consumer additional utility, and is justified to consum[e] more energy (lower energy factor) versus non-condenser clothes dryers. Furthermore, the Department believes that the existing clothes dryer test procedure is not applicable to the Miele condenser clothes dryers. This assertion is based on the fact that the existing test procedure requires the use of an exhaust restrictor and does not provide any definition or mention of condenser clothes dryers. The Department agrees with Miele that the current clothes dryer minimum energy conservation standard does not apply to Miele's condenser clothes dryers. Today's Decision and Order exempts Miele from testing its condenser clothes dryer and determining an Energy Factor. The Department is not publishing an amended test procedure for Miele at this time because there is not any reason to. The existing minimum energy conservation standard for clothes dryers is not applicable to the Miele condenser                           ( print page 19090)                        clothes dryer. Furthermore, the FTC does not have a labeling program for clothes dryers, therefore, Miele is not required to test its condenser clothes dryers.”                

BSH urges that the same waiver be granted to BSH as was granted to Miele for its comparable product.

Manufacturers of all other basic models marketed in the United States and known to BSH to incorporate similar design characteristics as the BSH condenser clothes dryer include Miele (models T1565CA and T1570C), Whirlpool (model WCD7500VW), LG (model DLEC733W), and GE (models DCVH480E* and DCVH485E*).

BSH is not aware of any alternative test procedure to evaluate in a manner representative of the energy consumption characteristics of the BSH condenser clothes dryers. BSH notes that DOE's February 17, 1995 decision on Miele's application indicated that Miele proposed that DOE consider adding a class for condenser clothes dryers in the then current clothes dryer rulemaking for minimum efficiency standards, along with an appropriate test procedure. DOE's decision indicated that DOE would consider adding a new product class for condenser clothes dryers in that rulemaking and would initiate a clothes dryers test procedure rulemaking to add the capability of testing condenser clothes dryers to the existing test procedure for any potential future use. To the best of BSH's knowledge, DOE has not done so.

BSH also requests immediate relief by grant of an interim waiver. Grant of an interim waiver is fully justified:

The petition for waiver is likely to be granted, as evidenced not only by its merits but also because DOE has already granted a similar waiver to Miele.

Lack of relief will impose economic hardship on BSH. BSH would be placed in an untenable situation: The product would be subject to a set of regulations that DOE already acknowledges is not applicable to such a product and cannot be complied with, while at the same time another manufacturer is allowed to operate under a waiver from such regulations.

Significant investment has already been made in BSH condensing clothes dryers. Lack of relief would not allow BSH to recoup this investment and would deny BSH anticipated sales revenue. This does not take into account significant losses in goodwill and brand acceptance.

Beyond that, since the BSH condensing clothes dryer is intended to be sold as a pair with BSH washing machines an inability to sell the clothes dryer will harm sales of the washing machine as well.

                    The basic purpose of the Energy Policy and Conservation Act, as amended by the National Appliance Energy Conservation Act, is to foster purchase of energy-efficient appliances, not hinder such purchases. The BSH condenser clothes dryer makes a dryer available to households where for physical, structural reasons a vented dryer could otherwise not be installed. BSH condenser clothes dryers thus offer benefits in the public interest. To encourage and foster the availability of these products is in the public interest. Standards programs should not be used as a means to block innovative, improved designs.[2]                                          DOE's rules thus should accommodate and encourage— not act to block—such a product.                

Granting the interim waiver and waiver would also eliminate a non-tariff trade barrier. In addition, grant of relief would help enhance economic development and employment, including not only BSH's operations in North Carolina, and Tennessee, but also at major national retailers and regional dealers that carry BSH products. Furthermore, continued employment creation and ongoing investments in its marketing, sales and servicing activities will be fostered by approval of the interim waiver. Conversely, denial of the requested relief would harm the company and would be anticompetitive.

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

BSH will notify all clothes dryer manufacturers of domestically marketed units known to BSH of this petition and application by letter.

Sincerely,

Dr. Uwe Mette

Director Engineering Laundry Products

# Footnotes

1.                             For editorial reasons, upon codification in the U.S. Code, Part B was re-designated Part A.                    
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1.                                                 
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2.                             See FTC Advisory Opinion No. 457, TRRP 1718.20 (1971 Transfer Binder); 49 FR 32213 (Aug. 13, 1984); 52 FR 49141, 49147-48 (Dec. 30, 1987).                    
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[FR Doc. 2011-8143 Filed 4-5-11; 8:45 am]

BILLING CODE 6450-01-P