2013-10480. 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.

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: [e-mail]. 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: [phone]. 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; [phone], 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: [phone]. Email: [e-mail].

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: [phone]. Email: mailto:[e-mail].

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))

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 °F, which is required for testing and rating purposes. Instead, FSI asserts that the equipment can only operate from 0 °F to −5 °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 °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 °F to −5 °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 °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 °F. In light of this 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 °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 °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 °F or −5 °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 °F ± 2 °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 °F, FSI shall test the specified basic models at an integrated average temperature of −8 ± 2 °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 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.

Footnotes

1.  For editorial reasons, upon codification in the U.S. Code, Part C was re-designated Part A-1.