[Federal Register Volume 78, Number 231 (Monday, December 2, 2013)]
[Notices]
[Pages 72074-72077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28764]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Case No. CR-005]


Decision and Order Granting a Waiver to Felix Storch, Inc. (FSI) 
From the Department of Energy Commercial Refrigerator, Freezer and 
Refrigerator-Freezer Test Procedures

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Decision and order.

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SUMMARY: The U.S. Department of Energy (DOE) gives notice of the 
decision and order (Case No. CR-005) that grants Felix Storch, Inc. 
(FSI) a waiver from the DOE test procedures for determining the energy 
consumption of its commercial ice cream freezers for the basic models 
set forth in its petition for waiver (petition). FSI claims in its 
petition that the specified basic models cannot be tested in accordance 
with the DOE test procedure for commercial ice cream freezer equipment 
because the equipment cannot operate at the integrated average product 
temperature of -15  2 [deg]F, specified in DOE's test 
procedures. Under today's decision and order, FSI shall be required to 
test and rate the commercial ice cream freezers specified in the 
petition at the lowest integrated average temperature of -8  2 [deg]F, which DOE confirmed is the lowest temperature at which 
those models can operate and which is consistent with the lowest 
application product temperature provision in the DOE test procedures.

DATES: This Decision and Order is effective December 2, 2013.

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: DOE issues notice of this Decision and Order 
in accordance with Title 10 of the Code of Federal Regulations (10 CFR) 
431.401(f)(4). In this Decision and Order, DOE grants FSI a waiver for 
the commercial ice cream refrigerators specified in its petition 
submitted on January 31, 2013. FSI must test and rate this equipment at 
the lowest integrated average temperature of -8  2 [deg]F, 
which is consistent with the lowest application product temperature 
provision in the DOE test procedure at 10 CFR 431.64(b)(3)(A).
    Today's decision requires FSI to make representations concerning 
the energy efficiency of this equipment consistent with the provisions 
and restrictions of the alternate test procedure in the Decision and 
Order below, and the representations must fairly disclose the test 
results. (42 U.S.C. 6314(d)) The same standard applies to distributors, 
retailers, and private labelers when making representations of the 
energy efficiency of this equipment.

    Issued in Washington, DC, on November 25, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

Decision and Order

    In the Matter of: Felix Storch, Inc. (FSI) (Case No. CR-005).

[[Page 72075]]

I. Background and Authority

    Title III, Part C of the Energy Policy and Conservation Act of 1975 
(EPCA), Pub. L. 94-163 (42 U.S.C. 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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    Section 343(a)(6)(C) of EPCA directs DOE to develop test procedures 
to establish the appropriate rating temperatures for products for which 
standards will be established under section 343(a)(6), 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. Other provisions of section 
343(a)(6) provide DOE with additional authority to establish and amend 
test procedures for commercial refrigeration equipment. (42 U.S.C. 
6314(a)(6)(C)) 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. 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).

II. FSI's Petition for Waiver: Assertions and Determinations

    In its January 31, 2013 petition, FSI sought a waiver from the DOE 
test procedures 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 sought a 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 -5 [deg]F  2 
[deg]F, which is required for testing and rating purposes. Instead, FSI 
asserts that the equipment can only operate from 0 [deg]F to -5 [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 [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 
[deg]F to -5 [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 do other commercial freezers of a 
similar type and function. FSI believes the current method of 
measurement of 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 [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 (Feb. 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

[[Page 72076]]

February 2012 final rule, DOE has confirmed that the corresponding 
integrated average temperature achieved during operation by these basic 
models is approximately -8 [deg]F. In light of this fact and DOE's 
position in the February 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 [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  2 [deg]F.
    DOE rejects FSI's request regarding the use of an alternative 
calculation and use an adjustment to 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 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.
    DOE received three comments following publication of FSI's notice 
of petition for waiver, notice granting interim waiver, and request for 
comments. 78 FR 26006 (May 3, 2013) One comment from FSI stated that 
the company disagrees with DOE's requirement that testing be conducted 
at an integrated average temperature of -8  2 [deg]F, as 
well as the use of total display area (TDA). Instead, FSI requested the 
use of an integrated average temperature of -5  2 [deg]F 
and an adjustment factor to accommodate for the extra volume not 
considered by DOE's TDA-based procedures. The two other comments DOE 
received were from Elcold Frysere Hobro ApS and Vestfrost Solutions, 
manufacturers that build the freezers described in FSI's petition. Both 
of these commenters stated that the freezers should be tested at an 
average operating temperature of 0 [deg]F and that testing at -8 
[deg]F, as specified in the interim waiver, would cause the compressor 
to not cycle and would not be representative of typical use. Further, 
the commenters objected to the fact that DOE's conclusion was based on 
only one test by a contracting laboratory.
    As stated in the notice granting FSI an interim waiver (May 3, 
2013, 78 FR 26006), 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 [deg]F. In light of this fact and DOE's 
position in the February 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 [deg]F or -5 [deg]F is 
inappropriate. FSI has not provided any information (i.e., test data) 
showing that -5 [deg]F (or 0 [deg]F) is the coldest temperature at 
which its equipment can operate. On the other hand, DOE test data 
demonstrate that the minimum operating temperature of the equipment is 
-8 [deg]F. Neither FSI nor other commenters have claimed that DOE 
tested defective units or that FSI has modified its control strategy. 
Absent any other information, DOE must rely on the data that it has 
obtained through testing of units. Therefore, 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  2 [deg]F.
    DOE rejects FSI's request regarding the use of an alternative 
calculation and use of an adjustment to 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, DOE has reconfirmed TDA as the 
metric of choice for commercial refrigeration equipment. 78 FR 55890 
(Sept. 11, 2013). 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.

III. Conclusion

    After careful consideration of all the material that was submitted 
by FSI and the additional comments received, it is ordered that:
    (1) The petition for waiver submitted by the FSI (Case No. CR-005) 
is hereby granted as set forth in paragraphs (2), (3), (4), and (5).
    (2) FSI shall be required to test and rate the following basic 
models according to the alternate test procedure set forth in paragraph 
(3) of this section. SCF694, SCF695S, SCF1094, SCF1095S, SCF1494, 
SCF1495S, SCF1694, SCF1695S, SCF1894, SCF1895S, SCF630, SCF940, 
SCF1310, SF1710.
    (3) Alternate Test Procedure. FSI shall test the equipment listed 
in paragraph (2) according to the DOE test procedure set forth in 10 
CFR 431.64, except that instead of testing at -15 [deg]F  2 
[deg]F (as set forth in the table at 10 CFR 431.64(b)(3)), 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, FSI shall test the specified basic models 
at an integrated average temperature of -8  2 [deg]F, which 
DOE has determined 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.
    (4) Representations. In making representations about the energy

[[Page 72077]]

efficiency of its commercial ice cream freezers listed in paragraph 
(2), for compliance, marketing, or other purposes, FSI must fairly 
disclose the results of testing under the alternate test procedure 
specified in this waiver.
    (5) This waiver amendment shall remain in effect from the date this 
Decision and Order is issued, consistent with the provisions of 10 CFR 
431.401(g). 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.
    (6) This waiver is granted for only those models specifically set 
out in FSI's petition, not future models that may be manufactured by 
FSI. FSI may submit a new or amended petition for waiver and request 
for grant of interim waiver, as appropriate, for additional models for 
which it seeks a waiver from the DOE test procedure. Grant of this 
waiver also does not release FSI from the certification requirements 
set forth at 10 CFR part 431.
    (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 November 25, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.
[FR Doc. 2013-28764 Filed 11-29-13; 8:45 am]
BILLING CODE 6450-01-P