Daily Rules, Proposed Rules, and Notices of the Federal Government
Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-71, 1000 Independence Avenue, SW., Washington, DC 20585-0103.
In accordance with Title 10 of the Code of Federal Regulations (10 CFR 430.27(l)), DOE gives notice of the issuance of its decision and order as set forth below. The decision and order grants Samsung a waiver from the applicable clothes washer test procedure in 10 CFR part 430, subpart B, appendix J1 for certain basic models of clothes washers with capacities greater than 3.8 cubic feet, provided that Samsung tests and rates such products using the alternate test procedure described in this notice. Today's decision prohibits Samsung from making representations concerning the energy efficiency of these products unless the product has been tested consistent with the provisions and restrictions in the alternate test procedure set forth in the decision and order below, and the representations fairly disclose the test results. Distributors, retailers, and private labelers are held to the same standard when making representations regarding the energy efficiency of these products. 42 U.S.C. 6293(c).
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.
DOE's regulations for covered products contain provisions allowing a person to seek a waiver for a particular basic model from the test procedure requirements for covered consumer products when (1) the petitioner's basic model for which the petition for waiver was submitted contains one or more design characteristics that prevent testing according to the prescribed test procedure, or (2) when prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption characteristics. 10 CFR 430.27(b)(1)(iii).
The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) may grant a 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).
Any interested person who has submitted a petition for waiver may also file an application for interim waiver of the applicable test procedure requirements. 10 CFR 430.27(a)(2). The Assistant Secretary will grant an interim waiver request if it is determined that the applicant will experience economic hardship if the interim waiver is denied, if it appears likely that the petition for waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination on the petition for waiver. 10 CFR 430.27(g).
On July 20, 2010, Samsung filed a petition for 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, Samsung requested a waiver to test its clothes washers on the basis of the residential test procedures contained in 10 CFR part 430, Subpart B, Appendix J1, with a revised Table 5.1 extended to larger container volumes. Samsung's petition was published in the
Samsung's petition seeks a waiver from the DOE test procedure because the mass of the test load used in the DOE test procedure is based on the basket volume of the test specimen, which is currently not defined for the basket sizes of the basic models cited in its waiver application. In the DOE test procedure, the relation between basket volume and test load mass is defined for basket volumes between 0 and 3.8 cubic feet. Samsung has designed a series of clothes washers that contain basket volumes greater than 3.8 cubic feet.
DOE has granted petitions for waiver and requests for interim waiver to other manufacturers for clothes washer basic models with capacities greater than 3.8 cubic feet. In addition to the interim waiver granted to Samsung (75 FR 57937, Sept. 23, 2010), DOE has granted interim waivers to Whirlpool Corporation (71 FR 48913, Aug. 22,
Table 5.1 of Appendix J1 defines the test load sizes used in the test procedure as linear functions of the basket volume. Samsung has submitted a proposed revised table to extend the maximum basket volume from 3.8 cubic feet to 6.0 cubic feet, a table similar to one developed by the Association of Home Appliance Manufacturers (AHAM) and provided to DOE in comments on a proposed DOE residential clothes washer test procedure rulemaking. 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 appears to have used the conversion ratio of 1/2.2 (or 0.45454545) to convert pounds to kilograms. Samsung used the more accurate conversion value of 0.45359237 (which Whirlpool also used in its similar petition), rounding the results in kilograms to two decimal places.
A similar Table 5.1 was also set forth in the notice of proposed rulemaking (NOPR) to amend the DOE test procedure, published September 21, 2010 (75 FR 57556). The Table 5.1 in the clothes washer NOPR has some small differences with the Table 5.1 used by Samsung and Whirlpool. The differences are due to rounding, and the largest difference is less than 0.5%. The Table 5.1 values in the alternative test procedure set forth in this waiver are from DOE's NOPR. As DOE has stated in the past, it is in the public interest to have similar products tested and rated for energy consumption on a comparable basis.
DOE consulted with the Federal Trade Commission (FTC) staff concerning the Samsung petition for waiver. The FTC staff did not have any objections to granting a waiver to Samsung.
After careful consideration of all the material that was submitted by Samsung, the waivers and interim waivers granted to Whirlpool, GE, LG, Electrolux and Samsung, DOE's proposed rule to amend the clothes washer test procedure, and consultation with FTC staff, it is ordered that:
(1) The petition for waiver submitted by Samsung Electronics America, Inc. (Case No. CW-014) is hereby granted as set forth in the paragraphs below.
(2) Samsung shall not be required to test or rate the following Samsung models on the basis of the current test procedure contained in 10 CFR part 430, subpart B, appendix J1. Instead, it shall be required to test and rate such products according to the alternate test procedure as set forth in paragraph (3) below:
(3) Samsung shall be required to test the products listed in paragraph (2) above according to the test procedures for clothes washers prescribed by DOE at 10 CFR part 430, appendix J1, except that, for the Samsung products listed in paragraph (2) only, the expanded Table 5.1 below shall be substituted for Table 5.1 of appendix J1.
(4) Representations. Samsung may make representations about the energy use of its clothes washer products for compliance, marketing, or other purposes only to the extent that such products have been tested in accordance with the provisions outlined above and such representations fairly disclose the results of such testing.
(5) This decision and order applies only to those models specifically set out in the petition, not future models that may be manufactured by Samsung. Samsung 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. Grant of this waiver does not release Samsung from the certification requirements set forth at 10 CFR 430.62.
(6) This waiver shall remain in effect consistent with the provisions of 10 CFR430.27(m).
(7) This waiver is issued on the condition that the statements, representations, and documentary materials provided by the petitioner are valid. DOE may revoke or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics.
Issued in Washington, DC, on March 3, 2011.