Energy Conservation Program for Consumer Products: Notice of Petition for Waiver of Electrolux Home Products, Inc. (Electrolux) 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.

SUMMARY:

This notice announces receipt of and publishes the Electrolux Home Products, Inc. (Electrolux) petition for waiver (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 to Electrolux an interim waiver from these same portions of the clothes washer test procedure. Through this notice, DOE also solicits comments with respect to the Electrolux petition.

DATES:

DOE will accept comments, data, and information with respect to the Electrolux petition until, but no later than January 26, 2011.

ADDRESSES:

You may submit comments, identified by case number CW-017, 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-017” 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.

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. 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 of the Energy Policy and Conservation Act (“EPCA”) sets forth a variety of provisions concerning energy efficiency. Part B of Title III provides for the “Energy Conservation Program for Consumer Products Other Than Automobiles.” (42 U.S.C. 6291-6309). 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.

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. 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. An interim waiver may be extended for an additional 180 days. 10 CFR 430.27(h).

II. Application for Interim Waiver and Petition for Waiver

On December 8, 2010, Electrolux filed a 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, Electrolux requested a waiver to test its clothes washers with basket volumes greater than 3.8 cubic feet on the basis of the residential test procedures contained in 10 CFR part 430, Subpart B, Appendix J1, with a revised Table 5.1 which extends the range of container volumes beyond 3.8 cubic feet.

Electrolux's 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. Electrolux manufactures basic models with capacities greater than 3.8 cubic feet, and it is for these basic models that Electrolux 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. Electrolux has submitted a revised table to extend the maximum basket volume from 3.8 cubic feet to 6.0 cubic feet, a table is similar to one developed by the Association of Home Appliance Manufacturers (AHAM). AHAM provided calculations to extrapolate Table 5.1 of the DOE test procedure to larger container volumes. DOE believes that this is a reasonable procedure because the DOE test procedure defines test load sizes as linear functions of the basket volume. AHAM's extrapolation was performed on the load weight in pounds, and AHAM seems to have used the conversion formula of 1/2.2 (or 0.45454545) to convert pounds to kilograms. LG and Samsung submitted a table similar to the table proposed by AHAM, rounding the results in kilograms to two decimal places. However, this table does contain small rounding errors which were corrected in the table included in DOE's clothes washer test procedure Notice of Proposed Rulemaking (NOPR) (75 FR 57556, September 21, 2010). Electrolux requests to use a table identical to Table 5.1 from DOE's clothes washer test procedure NOPR (75 FR 57556, September 21, 1010). See discussion in the Alternate Test Procedure section, below.

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 determined that Electrolux'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 Electrolux 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 ft.³ (71 FR 48913, August 22, 2006). This 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 ft³. 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. On November 18, 2010, DOE granted an interim waiver to LG for similar products as well (75 FR 71680, November 24, 2010). The alternate test procedure in the GE petition was the same as that granted to Whirlpool in its interim waiver, while the alternate test procedure in the Samsung and LG petition used the slightly different and more accurate conversion factor discussed above.

The current test procedure specifies test load sizes only for machines with capacities up to 3.8 cubic feet. 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 this, and the interim waivers granted to Whirlpool, Samsung, GE, and LG it appears likely that the petition for waiver will be granted. As a result, the Department of Energy grants an interim waiver to Electrolux 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. Therefore, it is ordered that:

The application for interim waiver filed by Electrolux is hereby granted for the specified Electrolux clothes washer basic models, subject to the specifications and conditions below.

1. Electrolux 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. Electrolux 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:

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. Electrolux 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 EPCA. (42 U.S.C. 6293(c)) Consistent representations are important for manufacturers to make representations about the energy efficiency of their products and to demonstrate compliance with applicable DOE energy conservation standards. Pursuant to its regulations for the grant of a waiver or interim waiver from an applicable test procedure at 10 CFR 430.27, DOE is considering setting an alternate test procedure for Electrolux in a subsequent Decision and Order. This alternate procedure is intended to allow manufacturers of clothes washers with basket capacities larger than provided for in the current test procedure to make valid representations. This test procedure is based on the expanded Table 5.1 of Appendix J1 from DOE's clothes washer test procedure Notice of Proposed Rulemaking (NOPR) (75 FR 57556, September 21, 2010). The NOPR Table 5.1 uses the accurate conversion factor 0.45359237 to convert from pounds to kilograms, and does not contain rounding errors. Furthermore, if DOE specifies an alternate test procedure for Electrolux, DOE may consider applying the alternate test procedure to similar waivers for residential clothes washers.

During the period of the interim waiver granted in this notice, Electrolux 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.

IV. Summary and Request for Comments

Through today's notice, DOE announces receipt of Electrolux's petition for waiver from certain parts of the test procedure that apply to clothes washers and grants an interim waiver to Electrolux. DOE publishes Electrolux'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 ft ³ 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.

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: Sheila A. Millar, Partner, Keller and Heckman LLP, 1001 G Street, NW., Suite 500 West, Washington, DC 20001; (202) 434-4135, E-mail: millar@khlaw.com. George E. Hawranko, Senior associate General Counsel, Electrolux Home Products, Inc., 20445 Emerald Parkway, SW., Suite 250, P.O. Box 35920, Cleveland, Ohio 44135-0920; (216) 898-1800; E-mail: george.e.hawranko@electrolux.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.

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.

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.

December 8, 2010

Via Hand Delivery

The Honorable Catherine R. Zoi

Assistant Secretary

Office of Energy Efficiency and Renewable Energy

U.S. Department of Energy

Mail Station EE-10

Forrestal Building

1000 Independence Avenue, SW.,

Washington, DC 20585-0121

Re: Petition for Waiver and Application for Interim Waiver from the Department of Energy Residential Clothes Washer Test Procedure by Electrolux Home Products, Inc.

Dear Assistant Secretary Zoi:

On behalf of our client, Electrolux Home Products, Inc. (Electrolux), we respectfully submit this Petition for Waiver and Application for Interim Waiver, pursuant to 10 C.F.R. § 430.27, requesting exemption by the Department of Energy from certain parts of the test procedure for determining the energy consumption of automatic and semi-automatic clothes washers.

Electrolux is a manufacturer and global leader of clothes washers and other household and professional use appliances. Electrolux focuses on innovations that are thoughtfully designed, based on extensive consumer insight, to meet the real needs of consumers and professionals. Electrolux's principal clothes washer brands in the United States include Electrolux®, Frigidaire®, and the following OEM brands: Kenmore®.

This petition for waiver contains no confidential business information and may be released pursuant to Freedom of Information Act requests.

I. Petition for Waiver

Electrolux seeks the Department's approval of this proposed amendment to the residential clothes washer test procedure to be assured of properly calculating the energy consumption and properly labeling its products. The test procedure under the Energy Policy and Conservation Act (EPCA), 42 U.S.C. 6291 et seq., provides for clothes washers to be tested with specified allowable test load sizes. See 10 CFR part 430, subpart B, appendix J1, Table 5.1. The largest average load under Table 5.1 is 9.20 lbs (4.17 kg). Electrolux believes that it is appropriate for DOE to grant this Petition for Waiver which would allow for testing and rating of specified Electrolux models (see below) with larger test loads where the model has a container volume that is greater than the largest volume shown on Table 5.1.

The following basic Electrolux residential clothes washer models are subject to this Petition for Waiver. The actual model numbers will vary to account for year of manufacture, product color, or other features (e.g., whether or not the unit has a top load or front load or other features), but whose energy impact is calculated based on test load sizes in accordance with this Petition.

DOE has already granted interim waivers to Whirlpool, General Electric, Samsung, and LG for testing with larger test loads for specified models in excess of 3.8 cubic feet. See 71 Fed. Reg. 48,913 (Aug. 22, 2006) (Whirlpool); 75 Fed. Reg. 57,915 (Sept. 23, 2010) (GE); Id. at 57,937 (Sept. 23, 2010) (Samsung); Id. at 71,680 (Nov. 24, 2010) (LG). In each case, the Department set forth an alternative “test procedure” to be used for the models covered by the waiver, which is simply an alternative table with extrapolated test load values for a container volume capacity up to 6 cubic feet. Further, the Department recently published notice of its “Decision and Order Granting a Waiver to Whirlpool” from the DOE's residential clothes washer test procedure. See 75 Fed. Reg. 69, 653 (Nov. 15, 2010) (“Decision and Order”).

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). AHAM provided calculations in its comments to extrapolate Table 5.1 to larger container volumes. The DOE has since issued a Notice of Proposed Rulemaking (NOPR) proposing to amend the DOE test procedure to adopt the AHAM proposed Table 5.1. 75 Fed Reg. 57,556 (Sept. 21, 2010). As DOE recognizes, it is in the public interest to have similar products tested and rated for energy consumption on a comparable basis. Id. at 69,654.

DOE's NOPR and November 15, 2010 Decision and Order granting the Whirlpool waiver used a slightly different conversion factor than those set forth in some initial applications for waivers. See Id. at 69,655. The differences are due to slight differences in the conversion factor used to convert pounds to kilograms. Id. Electrolux requests that DOE grant a waiver for testing and rating based on the revised Table 5.1 attached hereto in Appendix 1 (this is the Table 5.1 used by DOE in the NOPR), and applied to its testing and rating of basic models specified above. The waiver should continue until DOE adopts an applicable amended test procedure.

II. Application for Interim Waiver

Electrolux also requests an interim waiver for its testing and rating of the foregoing basic models manufactured after the grant of the interim waiver. The petition for waiver is likely to be granted, as evidenced not only by its merits, but also because DOE has granted interim waivers to other manufacturers (Whirlpool, GE, Samsung, and LG), a permanent waiver to Whirlpool, and has proposed a corresponding amendment to its test procedure.

Further, 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. See 10 C.F.R. § 430.27(g). Electrolux will experience economic hardship if this waiver is not granted, since waivers and interim waivers have been granted to competitors. In addition, public policy considerations require that this waiver be granted. As the Department noted in recently granting LG's interim waiver request, “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.” 75 Fed. Reg. at 71,682. A grant of an interim waiver for Electrolux is also appropriate.

We would be pleased to discuss this request with DOE and provide further information as needed. Electrolux will notify all manufacturers of domestically marketed units of the same product type, as set forth in Appendix 2, as required by the Department's rules, and provide them with a version of this Petition for Waiver and Application for Interim Waiver.

Sincerely,

Sheila A. Millar

Enclosures

cc: Michael Raymond

Bryan Berringer

Appendix 1

Appendix 2

Philip Manthei, Senior Staff Engineer, Agency and Codes Approval, Alliance Laundry Systems LLC, 221 Shepard Street, Ripon, WI 54971.

Michael L. Baroni, General Counsel, BSH Home Appliances Corporation, 5551 McFadden Avenue, Huntington Beach, CA 92649.

John Taylor, Vice President, Government Relations and Communications, LG Electronics U.S.A., Inc., 1776 K Street, NW., Washington, DC 20006.

Bryce Wells, Marketing Manager, Fisher & Paykel Appliances, 27 Hubble Street, Irvine, CA 92618-4209.

Earl F. Jones, Senior Counsel—Government Relations, GE Consumer & Industrial, Appliance Park, AP2-225, Louisville, KY 40225.

Shariff Kan, President, White Goods Group, Haier America, 1356 Broadway, New York, NY 10018.