Energy Conservation Program for Consumer Products: Notice of Petition for Waiver of LG Electronics, Inc. (LG) From the Department of Energy Residential Refrigerator and Refrigerator-Freezer 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 LG petition for waiver (hereafter, “petition”) from parts of the U.S. Department of Energy (DOE) test procedure for determining the energy consumption of electric refrigerators and refrigerator-freezers. Today's notice also grants an interim waiver of the test procedures applicable to residential refrigerator-freezers. Through this document, DOE is soliciting 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 July 19, 2010.

ADDRESSES:

You may submit comments, identified by case number RF-016, 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 either the case number [Case No. RF-016], and/or “LG Petition” in the subject line of the message.
• Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J/1000 Independence Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. Please submit one signed original paper copy.
• Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Please submit one signed original paper copy.

Instructions: All submissions received 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).

Any person submitting written comments must also send a copy of such comments to the petitioner, pursuant to Title 10 of the Code of Federal Regulations (10 CFR) 430.27(d). The contact information for the petitioner is: John I. Taylor, Vice President, Government Relations and Communications, LG Electronics USA, Inc., 1776 K Street, NW., Washington, DC 20006. E-mail: john.taylor@lge.com.

According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies to DOE: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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 (4) prior DOE rulemakings regarding refrigerators. 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. Betsy 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 sets forth a variety of provisions concerning energy efficiency. Part A of Title III provides for the “Energy Conservation Program for Consumer Products Other Than Automobiles.” (42 U.S.C. 6291-6309) Part A includes definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. Further, Part A authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results that 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 residential refrigerators and refrigerator-freezers is contained in 10 CFR part 430, subpart B, appendix A1.

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); 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 additionally 180 days, if necessary. (10 CFR 430.27(h))

II. Petition for Waiver of Test Procedure

On April 20, 2010, LG filed a petition for waiver from the test procedure applicable to residential electric refrigerators and refrigerator-freezers set forth in 10 CFR part 430, subpart B, appendix A1. LG is designing new refrigerators and refrigerator-freezers that contain variable anti-sweat heater controls that detect a broad range of temperature and humidity conditions, and respond by activating adaptive heaters, as needed, to evaporate excess moisture. LG's technology is similar to that used by General Electric Company (GE), Whirlpool Corporation (Whirlpool), Electrolux, Haier and Samsung Electronics America, Inc. (Samsung). The GE, Whirlpool and Electrolux waivers were granted February 27, 2008 (73 FR 10425), May 5, 2009 (74 FR 20695), and December 15, 2009 (74 FR 66338), respectively. DOE granted an interim waiver to Haier on March 11, 2010 (75 FR 11522) and to Samsung on April 16, 2010 (75 FR 1959).

In its petition, LG seeks a waiver from the existing DOE test procedure applicable to refrigerators and refrigerator-freezers under 10 CFR part 430 because the existing test procedure takes neither ambient humidity nor adaptive technology into account. Therefore, LG states that the test procedure does not accurately measure the energy consumption of LG's new refrigerators and refrigerator-freezers that feature variable anti-sweat heater controls and adaptive heaters. Consequently, LG has submitted to DOE for approval an alternate test procedure that would allow it to correctly calculate the energy consumption of this new product line. LG's alternate test procedure is the same in all relevant particulars as that prescribed for other manufacturers for refrigerators and refrigerator-freezers that are equipped with the same type of technology. The alternate test procedure applicable to these products simulates the energy used by the adaptive heaters in a typical consumer household, as explained in the decision and order that DOE published in the Federal Register on February 27, 2008. 73 FR 10425. DOE believes that it is in the public interest to have similar products tested and rated for energy consumption on a comparable basis.

III. Application for Interim Waiver

LG also requests an interim waiver from the existing DOE test procedure. 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 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. However, DOE understands that absent an interim waiver, LG's products would not otherwise be tested and rated for energy consumption on a comparable basis with equivalent products for which DOE previously granted waivers, and would be required to represent a higher energy consumption for essentially the same product. Furthermore, it appears likely that LG's Petition for Waiver will be granted, and it is desirable for public policy reasons to grant LG immediate relief pending a determination on the petition for waiver. As stated above, DOE has already granted similar waivers to GE, Whirlpool, and Electrolux, as well as interim waivers to Haier and Samsung, because the test procedure does not accurately represent the energy consumption of refrigerator-freezers containing relative humidity sensors and adaptive control anti-sweat heaters. The rationale for granting these waivers is equally applicable to LG, which has products containing similar relative humidity sensors and anti-sweat heaters. DOE has also concluded that it is in the public interest to have similar products tested and rated for energy consumption on a comparable basis.

For the reasons stated above, DOE grants LG's application for interim waiver from testing of its refrigerator-freezer product line containing relative humidity sensors and adaptive control anti-sweat heaters. Therefore, it is ordered that:

The application for interim waiver filed by LG is hereby granted for LG's refrigerator-freezer product line containing relative humidity sensors and adaptive control anti-sweat heaters, subject to the specifications and conditions below.

1. LG shall not be required to test or rate its refrigerator-freezer product line containing relative humidity sensors and adaptive control anti-sweat heaters based on the test procedure under 10 CFR part 430 subpart B, appendix A1.

2. LG shall be required to test and rate its refrigerator-freezer product line containing relative humidity sensors and adaptive control anti-sweat heaters 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:

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. Alternate Test Procedure

For the duration of the interim waiver, LG shall be required to use the test procedures for electric refrigerator-freezers prescribed by DOE at 10 CFR part 430, appendix A1, except that, for the LG products listed above only:

(A) The following definition is added at the end of Section 1:

1.13 “Variable anti-sweat heater control” means an anti-sweat heater where power supplied to the device is determined by an operating condition variable(s) and/or ambient condition variable(s).

(B) Section 2.2 is revised to read as follows:

2.2 Operational conditions. The electric refrigerator or electric refrigerator-freezer shall be installed and its operating conditions maintained in accordance with HRF-1-1979, section 7.2 through section 7.4.3.3. except that the vertical ambient temperature gradient at locations 10 inches (25.4 cm) out from the centers of the two sides of the unit being tested is to be maintained during the test. Unless shields or baffles obstruct the area, the gradient is to be maintained from 2 inches (5.1 cm) above the floor or supporting platform to a height one foot (30.5 cm) above the unit under test. Defrost controls are to be operative. The anti-sweat heater switch is to be “off” during one test and “on” during the second test. In the case of an electric refrigerator-freezer equipped with variable anti-sweat heater control, the result of the second test will be derived from the calculation described in 6.2.3. Other exceptions are noted in 2.3, 2.4, and 5.1 below.

(C) New section 6.2.3 is inserted after section 6.2.2.2.

6.2.3 Variable anti-sweat heater control test. The energy consumption of an electric refrigerator-freezer with a variable anti-sweat heater control in the “on” position (E_on), expressed in kilowatt-hours per day, shall be calculated equivalent to:

E_ON = E + (Correction Factor)

where E is determined by 6.2.1.1, 6.2.1.2, 6.2.2.1, or 6.2.2.2, whichever is appropriate, with the anti-sweat heater switch in the “off” position.

Correction Factor = (Anti-sweat Heater Power × System-loss Factor) × (24 hrs/1 day) × (1 kW/1000 W)

where:

Anti-sweat Heater Power = A1 * (Heater Watts at 5%RH)

+ A2 * (Heater Watts at 15%RH)

+ A3 * (Heater Watts at 25%RH)

+ A4 * (Heater Watts at 35%RH)

+ A5 * (Heater Watts at 45%RH)

+ A6 * (Heater Watts at 55%RH)

+ A7 * (Heater Watts at 65%RH)

+ A8 * (Heater Watts at 75%RH)

+ A9 * (Heater Watts at 85%RH)

+ A10 * (Heater Watts at 95%RH)

where A1-A10 are from the following table:

Heater Watts at a specific relative humidity = the nominal watts used by all heaters at that specific relative humidity, 72 °F ambient, and DOE reference temperatures of fresh food (FF) average temperature of 45 °F and freezer (FZ) average temperature of 5 °F.

System-loss Factor = 1.3.

V. Summary and Request for Comments

Through today's notice, DOE grants LG an interim waiver from the specified portions of the test procedure applicable to LG's new line of refrigerators and refrigerator-freezers with variable anti-sweat heater controls and adaptive heaters, and announces receipt of LG's petition for waiver from certain parts of the test procedure that apply to basic models of refrigerators and refrigerator-freezers with variable anti-sweat heater controls and adaptive heaters manufactured by 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 and calculation methodology to determine the energy consumption of LG's specified refrigerators and refrigerator-freezers with adaptive anti-sweat heaters. DOE is interested in receiving comments from interested parties on all aspects of the petition, including the suggested alternate test procedure and calculation methodology. 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, whose contact information is included in the ADDRESSES section above.

April 20, 2010

The Honorable Catherine Zoi

Assistant Secretary, Energy Efficiency and Renewable Energy

United States Department of Energy

Mail Station EE-10

Forrestal Building

1000 Independence Avenue, SW

Washington, DC 20585

Re: Petition for Waiver and Application for Interim Waiver, Refrigerator-Freezers with Adaptive Anti-Sweat Heater Technology

Dear Assistant Secretary Zoi:

LG Electronics, Inc. (LG) respectfully submits this Petition for Waiver and Application for Interim Waiver, pursuant to 10 CFR § 430.27, for LG refrigerator-freezers with adaptive anti-sweat heater technology.

The applicable Department of Energy (DOE) test procedure does not provide an appropriate method for testing and rating refrigerator-freezers with this technology. DOE has recognized this in granting waiver relief to other manufacturers, including Electrolux, General Electric, LG, Samsung, and Whirlpool.

LG is a manufacturer of digital appliances, as well as mobile communications, digital displays, and digital media products. Its appliances include refrigerators, refrigerator-freezers, air-conditioners, washing machines, clothes dryers, air cleaners, ovens, microwave ovens, dishwashers, and vacuum cleaners and are 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® and OEM brands, including GE® and Kenmore®. LG's appliances are produced in Korea and Mexico.

LG's refrigerator-freezers with adaptive anti-sweat heater technology are beneficial products. They react according to different ambient conditions such as temperature and humidity. A list of models is set forth in Appendix A hereto.

A waiver and interim waiver for adaptive anti-sweat heater technology is warranted. The test procedure under the Energy Policy and Conservation Act (EPCA), 42 U.S.C. § 6291 et seq., namely 10 C.F.R. Pt. 430, Subpt. B, App. Al, as applied to refrigerator-freezers with this technology will yield different test results depending on the relative ambient relative humidity in the test chamber. The test procedure does not specify a value for the relative ambient humidity in the test chamber. Thus, the test procedure evaluates the LG basic models in a manner so unrepresentative of their true energy consumption characteristics as to provide materially inaccurate comparative data, and/or the basic models contain one or more design characteristics that prevent testing of the basic models according to the prescribed test procedures. In such circumstances DOE “will grant” waiver relief. 10 C.F.R. §§ 430.27(l).

LG's adaptive anti-sweat heater technology is similar to that of Electrolux, General Electric, LG, Samsung, and Whirlpool for refrigerator-freezers that have been the subject of waiver relief. As with such companies for which waiver relief has been granted, LG should be required to test and rate the product lines containing this technology (see Appendix A hereto) according to an alternative test procedure rather than be required to test or rate on the basis of the test procedure under 10 C.F.R. Part 430, Subpart B, Appendix A1. The alternative test procedure provides for the test to be run with the anti-sweat heater switch in the “off” position and then, because the test chamber is not humidity-controlled, there would be added to that result the kilowatt hours per day derived by calculating the energy used when the anti-sweat heater is in the “on” position. The alternative is set forth in detail in Appendix B hereto.

The waiver should continue until a test procedure can be developed and adopted by DOE that will provide a fair and accurate assessment of this technology's energy consumption and efficiency levels. LG believes that the alternative test procedure in this petition does provide a fair and accurate assessment.

LG 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 granted waiver relief to other manufacturers. The rationale for granting relief to them applies equally to LG. And, it is in the public interest for comparable products to be tested in a comparable manner.

— Without waiver relief, LG will suffer economic hardship. LG would be placed in an untenable situation: refrigerator-freezers with this technology would be subject to a set of Regulations that clearly should not apply to such a product. Without such relief, LG's products would not be tested and rated for energy consumption on a comparable basis with comparable products for which DOE previously granted waivers. LG would be required to represent a higher energy consumption than would be the case with waiver relief.

— Significant investment has already been made in refrigerator-freezers with this technology. Lack of relief would not allow LG to recoup this investment and would deny LG anticipated sales revenue. This does not take into account significant losses in goodwill and brand acceptance.

— The basic purpose of EPCA is to foster purchase of energy-efficient products, not hinder such purchases. LG refrigerator-freezers with this technology are beneficial and 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. DOE's rules should accommodate and encourage such a product.

— Granting the interim waiver and waiver would also eliminate a non-tariff trade barrier.

— Grant of relief would also help enhance economic development and employment, including not only LG Electronics USA's operations in New Jersey, Illinois and Alabama, but also at major national retailers and regional dealers that carry LG 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.

CONCLUSION

LG respectfully requests that DOE grant a waiver and interim waiver from existing test procedures for LG refrigerator-freezers with adaptive anti-sweat heater technology until such time as a representative test procedure is developed and adopted by DOE for such products. In the meantime, the alternative test procedure set forth herein is appropriate.

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

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 C 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 A

The waiver requested by LG should apply to the following model series of LG refrigerator-freezers, which include LG, Kenmore®, and Viking® brands. 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 include anti-sweat technology whose energy impact is calculated in accordance with this petition.

(In the chart below, “#” represents a number; “*” represents a letter.)

APPENDIX B

As requested in this petition, LG should be required to test the products for which a waiver is requested according to the test procedures for electric refrigerator-freezers prescribed by DOE at 10 CFR Part 430, Appendix A1, except that, for the LG products: (A) The following definition is added at the end of Section 1:

1.13 “Variable anti-sweat heater control” means an anti-sweat heater where power supplied to the device is determined by an operating condition variable(s) and/or ambient condition variable(s).

(B) Section 2.2 is revised to read as follows:

2.2 Operational conditions. The electric refrigerator or electric refrigerator-freezer shall be installed and its operating conditions maintained in accordance with HRF-1-1979, section 7.2 through section 7.4.3.3. except that the vertical ambient temperature gradient at locations 10 inches (25.4 cm) out from the centers of the two sides of the unit being tested is to be maintained during the test. Unless shields or baffles obstruct the area, the gradient is to be maintained from 2 inches (5.1 cm) above the floor or supporting platform to a height one foot (30.5 cm) above the unit under test. Defrost controls are to be operative. The anti-sweat heater switch is to be “off” during one test and “on” during the second test. In the case of an electric refrigerator-freezer equipped with variable anti-sweat heater control, the “on” test will be the result of the calculation described in 6.2.3. Other exceptions are noted in 2.3, 2.4, and 5.1 below.

(C) New section 6.2.3 is inserted after section 6.2.2.2.

6.2.3 Variable anti-sweat heater control test. The energy consumption of an electric refrigerator-freezer with a variable anti-sweat heater control in the “on” position (E[on]), expressed in kilowatt-hours per day, shall be calculated equivalent to:

E[ON] = E + (Heater Contribution) [note: called “correction factor” by General Electric]

where E is determined by 6.2.1.1, 6.2.1.2, 6.2.2.1, or 6.2.2.2, whichever is appropriate, with the anti-sweat heater switch in the “off” position.

Heater Contribution n1 = (Anti-sweat Heater Power × System-loss Factor) × (24 hrs/1 day) × (1 kW/1000 W)

Where:

Anti-sweat Heater Power = A1 * (Heater Watts at 5%RH)

+ A2 * (Heater Watts at 15%RH)

+ A3 * (Heater Watts at 25%RH)

+ A4 * (Heater Watts at 35%RH)

+ A5 * (Heater Watts at 45%RH)

+ A6 * (Heater Watts at 55%RH)

+ A7 * (Heater Watts at 65%RH)

+ A8 * (Heater Watts at 75%RH)

+ A9 * (Heater Watts at 85%RH)

v+ A10 * (Heater Watts at 95%RH)

where A1-A10 are from the following table:

Heater Watts at a specific relative humidity = the nominal watts used by all heaters at that specific relative humidity, 72 [degrees] F ambient, and DOE reference temperatures of fresh food average temperature of 45 [degrees] F and freezer average temperature of 5 [degrees] F.

System-loss Factor = 1.3