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[Federal Register Volume 76, Number 201 (Tuesday, October 18, 2011)]
[Notices]
[Pages 64330-64335]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26883]

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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Case No. CW-021]

Notice of Petition for Waiver of LG Electronics U.S.A., 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, 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 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 November 17, 2011.

ADDRESSES: You may submit comments, identified by case number CW-021, 
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-021'' 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,

[[Page 64331]]

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 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: Dr. Michael G. Raymond, U.S. 
Department of Energy, Building Technologies Program, Mail Stop EE-2J, 
Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 
20585-0121. Telephone: (202) 586-9611. E-mail: 
Michael.Raymond@ee.doe.gov.
    Ms. Elizabeth Kohl, U.S. Department of Energy, Office of the 
General Counsel, Mail Stop GC-71, Forrestal Building, 1000 Independence 
Avenue, SW., Washington, DC 20585-0103. Telephone: (202) 586-7796. E-
mail: Elizabeth.Kohl@hq.doe.gov.

SUPPLEMENTARY INFORMATION: 

I. Background and Authority

    Title III, 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 consumer 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). 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 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 October 3, 2011, LG's 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 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. In 
its petition, LG seeks a waiver for the specified basic models with 
capacities 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), which was 
altered slightly (to correct rounding errors) by the supplemental 
proposed rule issued on July 26, 2011 http://www.eere.energy.gov/buildings/appliance_standards/residential/pdfs/rcw_tp_snopr.pdf.
    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 test 
procedure waivers to Whirlpool (75 FR 69653 (November 15, 2010)), 
General Electric Company (GE) (75 FR 76968 (December 10, 2010)), 
Samsung (76 FR 13169 (March 10, 2011), (76 FR 50207 (August 12, 2011)), 
and Electrolux (76 FR 11440 (March 2, 2011)) for products with 
capacities larger than currently specified in the test procedure. DOE 
has also granted previous waivers to LG for similar products. (76 FR 
11233, Mar. 1, 2011; 76 FR 21879, Apr. 19, 2011). 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, the same test procedure that 
would be established by adoption of DOE's September 2010 test procedure 
NOPR and requested by LG in its current and previous petitions. As 
noted above, DOE published a supplemental notice of proposed rulemaking 
to adjust the proposed test procedure (specifically, Table 5.1) to 
correct rounding errors in a supplemental notice of proposed rulemaking 
issued on July 26, 2011.

[[Page 64332]]

    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 
Whirlpool, GE, Electrolux and Samsung, as well as the previous waivers 
granted to LG for similar models, it appears likely that the petition 
for waiver will be granted. 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.
    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
------------------------------------------------------
WT6001H*........................  LG.
WT5170H*........................  LG.
WM3470H***......................  LG.
WM4070H***......................  LG.
415321........  Kenmore.
415421........  Kenmore.
------------------------------------------------------------------------

    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.

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 that appears in DOE's clothes washer test procedure NOPR. 75 FR 
57556 (September 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).

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 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 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 October 11, 2011.
Kathleen Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

October 3, 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. 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. 201-816-2000). 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[supreg] and OEM 
brands, including GE[supreg] and Kenmore[supreg].
    The test procedure under the Energy Policy and Conservation Act 
(EPCA), 42 U.S.C. Sec.  6291 et seq., provides for

[[Page 64334]]

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. 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). 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 waivers granted to LG for certain models. See 
76 Fed. Reg. 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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
E-mail: 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
E-mail: 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
------------------------------------------------------------------------
WT6001H*..................................  LG
WT5170H*..................................  LG
WM3470H***................................  LG
WM4070H***................................  LG
415321..................  Kenmore
415421..................  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).

APPENDIX 3

    [Letters are not included in the published document.]

[FR Doc. 2011-26883 Filed 10-17-11; 8:45 am]
BILLING CODE 6450-01-P
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