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[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.

[[Page 9908]]

     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: 

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 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.

II. 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,

[[Page 9909]]

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:

------------------------------------------------------------------------
                   Model                                Brand
------------------------------------------------------------------------
WT5070C*..................................  LG.
WM8000H**.................................  LG.
414721..................  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, 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).

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), 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-

[[Page 9911]]

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. 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
----------------------------------------------------------------------------------------------------------------
                     Container volume                         Minimum load      Maximum load      Average load
----------------------------------------------------------------------------------------------------------------
               cu. ft. >= =  0.10 lbs (0.05 kg).

[FR Doc. 2012-3942 Filed 2-17-12; 8:45 am]
BILLING CODE 6450-01-P
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