[Federal Register Volume 78, Number 86 (Friday, May 3, 2013)]
[Notices]
[Pages 26006-26023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10480]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Case No. CR-005]


Notice of Petition for Waiver of Felix Storch, Inc. (FSI) From 
the Department of Energy Commercial Refrigerator, Freezer 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.

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SUMMARY: This notice announces receipt of and publishes a petition for 
waiver and application for interim waiver from Felix Storch, Inc. (FSI) 
(hereafter, ``petition'') from the U.S. Department of Energy (DOE) test 
procedure for determining the energy consumption of commercial 
refrigerators, freezers and refrigerator-freezers. Today's notice also 
grants an interim waiver for specific basic models to FSI from portions 
of the DOE commercial refrigerator, freezer and refrigerator-freezer 
test procedure. Through this notice, DOE also solicits comments with 
respect to the FSI petition.

DATES: DOE will accept comments, data, and information with respect to 
the FSI petition until June 3, 2013.

ADDRESSES: You may submit comments, identified by case number CR-005, 
by any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Email: [email protected]. Include ``Case No. 
CR-005'' 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., Washington, DC, 20024; (202) 586-2945, between 
9:00 a.m. and 4:00 p.m., Monday through Friday, except on 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) DOE rulemakings and waivers 
regarding commercial refrigeration equipment. 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: [email protected].

Ms. Jennifer Tiedeman, 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) 287-6111. Email: 
mailto:[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background and Authority

    Title III, Part C of the Energy Policy and Conservation Act of 1975 
(EPCA), Public Law 94-163 (42 U.S.C. 6311-17 (``sections 6311-6317'')), 
established the Energy Conservation Program for certain industrial 
equipment, which includes commercial refrigeration equipment, the focus 
of this notice.\1\ Part C specifically includes definitions (42 U.S.C. 
6311), energy conservation standards (42 U.S.C. 6313), test procedures 
(42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the 
authority to require information and reports from manufacturers (42 
U.S.C. 6316). With respect to test procedures, Part C authorizes the 
Secretary of Energy (the Secretary) to prescribe test procedures that 
are reasonably designed to produce results that measure energy 
efficiency, energy use, and estimated annual operating costs, and that 
are not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
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    \1\ For editorial reasons, upon codification in the U.S. Code, 
Part C was re-designated Part A-1.

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    6314(a)(6)(C) directs DOE to develop test procedures to establish 
the appropriate rating temperatures for products for which standards 
will be established under section 6313(c)(5), including (1) Ice-cream 
freezers; (2) commercial refrigerators, freezers, and refrigerator-
freezers with a self-contained condensing unit without doors; and (3) 
commercial refrigerators, freezers, and refrigerator-freezers with a 
remote condensing unit. Provisions of section 6314(a)(6) provide DOE 
with additional authority to establish and amend test procedures for 
commercial refrigeration equipment. On December 8, 2006, DOE published 
a final rule adopting test procedures for commercial refrigeration 
equipment. 71 FR 71340. Title 10 of the Code of Federal Regulations (10 
CFR) 431.64 directs manufacturers of commercial refrigerators, freezers 
and refrigerator-freezers to use certain sections of Air-Conditioning 
and Refrigeration Institute (ARI) Standard 1200-2006, ``Performance 
Rating of Commercial Refrigerated Display Merchandisers and Storage 
Cabinets'' when measuring the energy consumption of this equipment. On 
January 9, 2009, DOE established energy conservation standards for 
certain classes of commercial refrigerators, effective January 1, 2012, 
and provided that the test procedures at 10 CFR 431.64 apply to that 
equipment. 74 FR 1092, 96. The basic models included in FSI's petition 
are subject to the applicable standards established in that rulemaking 
and are therefore required to be tested and rated according to the 
prescribed DOE test procedure as of January 1, 2012.
    DOE's regulations for covered products and equipment permit a 
person to seek a waiver from the test procedure requirements for 
covered commercial equipment if at least one of the following 
conditions is met: (1) The petitioner's basic model contains one or 
more design characteristics that prevent testing according to the 
prescribed test procedures; or (2) the prescribed test procedures may 
evaluate the basic model in a manner so unrepresentative of its true 
energy consumption as to provide materially inaccurate comparative 
data. 10 CFR 431.401(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. 10 
CFR 431.401(b)(1)(iii). The Assistant Secretary for Energy Efficiency 
and Renewable Energy (Assistant Secretary) may grant a waiver subject 
to conditions, including adherence to alternate test procedures. 10 CFR 
431.401(f)(4). Waivers remain in effect according to the provisions of 
10 CFR 431.401(g).
    The waiver process also permits parties submitting a petition for 
waiver to file an application for interim waiver of the applicable test 
procedure requirements. 10 CFR 431.401(a)(2). The Assistant Secretary 
will grant an interim waiver 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 430.401(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 
430.401(e)(4).

II. Application for Interim Waiver and Petition for Waiver

    On January 31, 2013, FSI submitted a petition for waiver from the 
DOE test procedure applicable to commercial refrigerators, freezers and 
refrigerator-freezers set forth in 10 CFR 431.64, as well as an 
application for interim waiver. FSI requested the waiver for certain 
basic models of its commercial ice cream freezers. This equipment is 
classified as a commercial ice cream freezer (category (vii)) in the 
table listing some of the applicable test procedure requirements at 10 
CFR 431.64(b)(3)). The applicable test procedure for this equipment is 
specified in 10 CFR 431.64(b), which incorporates by reference ARI 
Standard 1200-2006, section 3, ``Definitions,'' section 4, ``Test 
Requirements,'' section 7, ``Symbols and Subscripts,'' and, section 5, 
``Rating Requirements for Remote Commercial Refrigerated Display 
Merchandisers and Storage Cabinets.''
    FSI seeks a waiver and interim waiver from the applicable test 
procedure under 10 CFR 431.64 on the grounds that its commercial ice 
cream freezers contain design characteristics that prevent testing 
according to the current DOE test procedure. Specifically, FSI asserts 
that particular basic models of commercial ice cream freezers are not 
able to operate at the specified integrated average temperature of -
15[emsp14][deg]F, which is required for testing and rating purposes. 
Instead, FSI asserts that the equipment can only operate from 
0[emsp14][deg]F to -5[emsp14][deg]F. Consequently, FSI requested that 
DOE grant a waiver from the applicable test procedure, allowing the 
specified products to be tested at an integrated average temperature of 
0[emsp14][deg]F, which FSI asserts is an acceptable temperature at 
which to test the specified basic models. FSI further asserts that 
these basic models of commercial ice cream freezers are designed to 
maintain the frozen state of an already frozen product, not to lower 
the temperature of non-frozen products to the 0[emsp14][deg]F to -
5[emsp14][deg]F operating temperature.
    In addition, FSI asserts that the commercial ice cream freezers 
subject to the petition also have significantly greater volumes per 
unit of total display area (TDA) than other commercial freezers of a 
similar type and function. FSI believes the current method of 
measurement for TDA in the DOE test procedure does not provide a fair 
and accurate representation of the display area and, therefore, the 
energy use of its products. FSI is requesting an adjustment or 
allowance for the measurement of TDA.
    The Department articulated its position regarding basic models of 
commercial refrigeration equipment that are not capable of operating at 
the required integrated average temperature specified by the DOE test 
procedure in a test procedure final rule published on February 21, 
2012. 77 FR 10292. Specifically, to qualify to use the lowest 
application product temperature for a certain piece of equipment, a 
manufacturer should be confident that any case tested under that 
provision could achieve the specified lowest application product 
temperature within 2[emsp14][deg]F and could not be tested 
at the rating temperature (i.e., integrated average temperature 
specified by the DOE test procedure) for the given equipment class. 
Further, in the final rule, DOE clarified that, for many pieces of 
equipment, the lowest application product temperature that should be 
used for testing will be the lowest temperature setting on the unit's 
thermostat. 77 FR 10292, 10303 (February 21, 2012).
    DOE agrees with FSI's assertion that the basic models identified in 
its petition cannot be operated at the associated rating conditions 
currently specified for commercial ice cream freezers in the DOE test 
procedures given the available data. However, when the temperature knob 
is set to the coldest setting as described in the February 2012 final 
rule, DOE has confirmed that the corresponding integrated average 
temperature achieved during operation by these basic models is 
approximately -8[emsp14][deg]F. In light of this and DOE's position in 
the February

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2012 final rule, DOE has concluded that FSI's request to test these 
basic models of commercial ice cream freezers at an integrated average 
temperature of 0[emsp14][deg]F is inappropriate. Instead, DOE has 
determined that the basic models of commercial ice cream freezers 
listed in FSI's petition should be tested at their lowest application 
product temperature as defined at 10 CFR 431.62, which corresponds to 
an integrated average temperature of -8[emsp14][deg]F.
    DOE rejects FSI's request regarding the use of an alternative 
calculation and use of the TDA metric to characterize the display area 
of the commercial ice cream freezer. During the previous rulemaking 
considering energy conservation standards for commercial refrigeration 
equipment, TDA was chosen as the display metric because DOE found 
through its own investigation and research and after receiving public 
comment on the issue that it is most representative of the heat loads 
that define the performance of transparent-door equipment--namely 
radiation and conduction through glass doors. 74 FR 1092 (Jan. 9, 
2009). Additionally, since commercial ice cream freezers are used for 
merchandising in the retail environment, ``face area'' (or area of 
visible product), which is analogous to TDA, is often used by retailers 
as the metric of equipment capacity. In the ongoing rulemaking it was 
reconfirmed that TDA should be the metric of choice. Consequently, DOE 
is not swayed by FSI's argument and does not believe that the 
commercial ice cream freezers described in the petition contain design 
characteristics that make the methods of determination and the TDA 
metric unrepresentative and is denying this portion of the petition.
    Last, FSI has raised two smaller testing issues, which DOE does not 
believe merit any consideration. First, FSI states that the packets 
used for testing purposes should be pre-chilled to 0[emsp14][deg]F or -
5[emsp14][deg]F before the test is started, implying that the current 
test procedure incorporates some type of pull-down period. FSI's 
assertion is incorrect; the DOE test procedure does not incorporate a 
pull-down period during the energy consumption test. Instead, the DOE 
test procedure allows the commercial ice cream freezer to be loaded 
with room temperature product simulators and filler packages, and 
requires that the unit run until it has reached steady-state operation 
at the specified rating temperature for the required stabilization 
period as defined in sections 3 and 7.4 of ASHRAE 72-2005. The actual 
energy consumption test does not begin until the stabilized integrated 
average temperature is reached and maintained. Consequently, FSI's 
request is denied. Second, FSI asserts that the integrated average 
temperature must stabilize prior to starting the energy consumption 
test. DOE agrees with FSI on this point, however, stabilization is 
currently required by the DOE test procedure, as specified by ASHRAE 
72-2005, ``Method of Testing Commercial Refrigerators and Freezers,'' 
which is incorporated by reference as part of the DOE test procedure. 
Thus, FSI's request is redundant and unnecessary.
    DOE has determined that one portion FSI's petition likely will be 
granted, and that it is desirable for public policy reasons to grant 
FSI relief pending a determination on the petition. DOE believes that 
it is likely FSI's petition will be granted because the commercial ice 
cream freezers specified in FSI's petition are not able to operate at 
the specified integrated average temperature of -15[emsp14][deg]F 
 2[emsp14][deg]F. DOE previously granted interim waivers to 
Hill PHOENIX Inc. and Hussmann based on a similar issue pertaining to 
the ability to test certain of their products at the specified 
integrated average temperature in the DOE test procedure. (77 FR 5782, 
February 6, 2012, and 77 FR 4800, Jan. 31, 2012, respectively) In 
addition, DOE has determined that it is desirable that the energy 
efficiency of this equipment be tested and rated in a manner similar to 
other commercial refrigeration equipment while DOE considers the 
petition for waiver. As a result, DOE grants an interim waiver to FSI 
for the specified models of its commercial refrigerator products. 
Therefore, it is ordered that:
    The application for interim waiver filed by FSI is hereby granted 
for the basic models of commercial ice cream freezer specified in FSI's 
application, subject to the provisions specified in section III below. 
FSI shall be required to test and rate the specified basic models 
according to the alternate test procedure as set forth in section III, 
``Alternate test procedure.''
    The interim waiver applies to the following basic models:

SCF694, SCF695S, SCF1094, SCF1095S, SCF1494, SCF1495S, SCF1694, 
SCF1695S, SCF1894, SCF1895S, SCF630, SCF940, SCF1310, and SF1710
    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. FSI may submit a petition for waiver 
and application for interim waiver, as appropriate, for additional 
models of commercial refrigerators, freezers and refrigerator-freezers 
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

    As a condition for granting this interim waiver to FSI, DOE 
requires FSI to test the commercial ice cream freezers specified in its 
January 31, 2013 petition and listed above according to the test 
procedure specified at 10 CFR 431.64, except that instead of testing at 
the required integrated average temperature of -15  
2[emsp14][deg]F, FSI shall test the specified basic models at an 
integrated average temperature of -8  2[emsp14][deg]F, 
which DOE confirmed is the lowest temperature at which those models can 
operate.
    DOE notes that it has published an amended test procedure for 
commercial refrigeration equipment. (77 FR 10292, Feb. 21, 2012). The 
amended test procedure addresses the testing issue addressed in this 
waiver, requiring products to be tested at their lowest application 
product temperature. Id. Use of the amended test procedure will be 
required on the compliance date of any amended standards for this 
equipment.

IV. Summary and Request for Comments

    Through today's notice, DOE announces receipt of FSI's petition for 
waiver from the test procedures that apply to commercial refrigerators, 
freezers and refrigerator-freezers. For the reasons articulated above, 
DOE also grants FSI an interim waiver from those procedures as 
described above. DOE is publishing FSI's petition for waiver in its 
entirety pursuant to 10 CFR 431.401(b)(1)(iv). Confidential business 
information has been redacted from the petition. Furthermore, today's 
notice includes an alternate test procedure that FSI is required to 
follow as a condition of its interim waiver.
    DOE solicits comments from interested parties on all aspects of the 
petition. Pursuant to 10 CFR 431.401(d), any person submitting written 
comments must also send a copy of such comments to the petitioner. The 
contact information for the petitioner is: Paul Storch, President, 
Summit Appliance Div., Felix Storch, Inc., 770 Garrison Ave., Bronx, NY 
10474. All submissions received must include the agency name and case 
number for this proceeding. Submit electronic

[[Page 26009]]

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).
    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: 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.

    Issued in Washington, DC, on April 29, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.
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[FR Doc. 2013-10480 Filed 5-2-13; 8:45 am]
BILLING CODE 6450-01-C