Decision and Order Denying a Waiver to Felix Storch, Inc. (FSI) From the Department of Energy Residential Refrigerator and Refrigerator-Freezer Test Procedures, 49292-49295 [2014-19768]

Agencies

• DEPARTMENT OF ENERGY
• Office of Energy Efficiency and Renewable Energy

[Federal Register Volume 79, Number 161 (Wednesday, August 20, 2014)]
[Notices]
[Pages 49292-49295]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19768]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Case No. RF-038]


Decision and Order Denying a Waiver to Felix Storch, Inc. (FSI) 
From the Department of Energy Residential Refrigerator 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 its 
decision and order (Case No. RF-038) denying Felix Storch, Inc. a 
waiver from the DOE electric refrigerator and refrigerator-freezer test 
procedures used for determining the energy consumption of residential 
refrigerator-freezers for the basic models set forth in its petition 
for waiver. The decision and order continues to require that the 
currently applicable DOE test procedure be used when testing the 
company's Keg Beer Coolers, Assisted Living Refrigerator-freezers and 
Ultra-Compact Hotel Refrigerators.

DATES: This Decision and Order is effective August 20, 2014.

FOR FURTHER INFORMATION CONTACT:

Mr. Bryan Berringer, U.S. Department of Energy, Building Technologies 
Program, Mailstop EE-2J, 1000 Independence Avenue SW., Washington, DC 
20585-0121. Telephone: (202) 586-0371, Email: 
Bryan.Berringer@ee.doe.gov.
Mr. Michael Kido, 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) 586-8145. Email: 
Michael.Kido@hq.doe.gov.

SUPPLEMENTARY INFORMATION: 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 denies Felix Storch, Inc. (FSI) a waiver from the applicable 
residential refrigerator and refrigerator-freezer test procedures found 
in 10 CFR part 430, subpart B, appendix A1 and appendix A for certain 
basic models of its Keg Beer Coolers, Assisted Living Refrigerator-
freezers and Hotel Refrigerators and Ultra-Compact Hotel Refrigerators, 
as applicable. Under today's decision and order, FSI must continue to 
use the applicable DOE test procedure found in 10 CFR part 430, subpart 
B, appendix A1 and appendix A.
    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).

    Issued in Washington, DC, on August 13, 2014.
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. RF-038)

I. Background and Authority

    Title III, Part B of the Energy Policy and Conservation Act of 1975 
(EPCA), Pub. L. 94-163 (42 U.S.C. 6291-6309, as codified) established 
the Energy Conservation Program for Consumer Products Other Than 
Automobiles, a program covering most major household appliances, which 
includes the residential electric refrigerators and refrigerator-
freezers that are the focus of this notice.\1\ Part B includes 
definitions, test procedures, labeling provisions, energy conservation 
standards, and the authority to require information and reports from 
manufacturers. Further, Part B 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 not be unduly burdensome to conduct. (42 U.S.C. 
6293(b)(3)) The test procedure for residential electric refrigerators 
and refrigerator-freezers is currently set forth in 10 CFR part 430, 
subpart B, appendix A1. That procedure will be superseded by a new 
Appendix A contained in the same part and subpart. Manufacturers are 
required to use Appendix A starting in September 2014.
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    \1\ For editorial reasons, upon codification in the U.S. Code, 
Part B was re-designated Part A.
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    The regulations set forth in 10 CFR 430.27, which were recently 
amended, contain provisions that enable a person to petition DOE to 
obtain a waiver from the test procedure requirements for covered 
products. See 79 FR 26591 (May 9, 2014) (revising 10 CFR 430.27, 
effective June 9, 2014). (DOE notes that

[[Page 49293]]

while the previous version of 10 CFR 430.27 was effective at the time 
of FSI's submission, the substantive aspects of this regulation have 
not been changed by the May 9th rule.) A person may petition for a 
waiver from the test procedure requirements that would ordinarily apply 
to a particular basic model covered under DOE's regulations 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) 
(noting that a person may petition to waive for a particular basic 
model any requirements of 10 CFR 430.23 or of ``any appendix'' under 10 
CFR part 430, subpart B). 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.
    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. See 10 CFR 430.27(l) 
(prior to June 9, 2014) and 10 CFR 430.27(f)(2) (effective June 9, 
2014). Waivers remain in effect pursuant to the provisions of 10 CFR 
430.27(m) (prior to June 9, 2014). See also 10 CFR 430.27(h) (effective 
June 9, 2014).
    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).

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

    On December 12 and 17, 2013, FSI submitted two separate petitions 
for waiver from the test procedure applicable to residential electric 
refrigerators and refrigerator-freezers set forth in 10 CFR part 430, 
subpart B, appendices A and A1. The December 12th petition, which was 
accompanied by a request for an interim waiver that DOE denied, sought 
a waiver from appendices A1 and A with respect to the following 
specific product and model lines--Keg Beer Coolers (Models SBC590, 
SBC590OS, and SBC635M), Assisted Living Refrigerator-freezers (Models 
ALBF44 and ALBF68), and Hotel Refrigerators (Models HTL2 and HTL3).\2\ 
The December 17th petition, which was not accompanied by a request for 
an interim waiver, sought a waiver from the upcoming test procedure 
requirements in appendix A, which will be required to be used starting 
in September 2014, for the following specific product and model lines--
Keg Beer Coolers (Models SBC490B and SBC570R), Assisted Living 
Refrigerators (Models FF71TB, FF73, FF74, AL650R, ALB651BR, AL652BR, 
ALB653BR, CT66RADA, CT67RADA, AL750R, ALB751R, AL752BR, and ALB753LBR), 
and Ultra-Compact, Hotel Refrigerators (Models FF28LH, FF29BKH, 
FFAR21H, and FFAR2H). FSI did not contend in either petition that the 
products at issue have a design characteristic preventing the testing 
of any of the affected models. FSI also asserted generally that a 
denial of its waiver request would result in economic hardship.
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    \2\ The caption to the December 12th petition stated that FSI is 
seeking a waiver from both appendix A1 and appendix A. However, the 
actual relief sought, as stated in the conclusion of FSI's petition, 
states that the company is seeking to waive the applicability of 
appendix A from its products. Regarding the products affected by 
this petition, DOE is viewing FSI's request as applying to both 
appendices A1 and A.
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    With respect to the technical aspects of its petition, FSI asserted 
that its products could not be tested and rated for energy consumption 
on a basis representative of their true energy consumption 
characteristics. In particular, it asserted that the DOE test 
procedures for residential refrigeration products (both the current 
Appendix A1 and the new Appendix A that will be mandatory beginning on 
September 15, 2014) require that FSI's products be tested under 
conditions that would not, in its view, yield a fair and accurate 
representation of the actual energy use of its products. FSI stated 
that DOE's procedure (both current and future) require an ambient 
temperature of 90 [deg]F, which would, in FSI's view, yield results 
that would not accurately reflect the energy use of its products during 
normal use.
    The 90 [deg]F ambient temperature condition simulates the effects 
of door openings and closings, which are not performed during testing. 
See 10 CFR 430.23(a)(10) (explaining that ``[t]he intent of the energy 
test procedure is to simulate typical room conditions (approximately 70 
[deg]F (21 [deg]C)) with door openings, by testing at 90 [deg]F (32.2 
[deg]C) without door openings.''). As FSI pointed out, this particular 
aspect of the procedure, which has been widely accepted by industry, 
has been in place for at least 30 years. See, e.g. FSI Petition at 3 
(Dec. 12, 2013). FSI contended that the products addressed by its 
waiver petitions will be sold for uses where door openings and closings 
are highly infrequent. As a result, in its view, testing these products 
in accordance with the required DOE test procedure conditions, which 
are based on long-accepted industry-based testing standards, would 
result in measurements of energy use that are unrepresentative of the 
actual energy use of its products when considering the conditions of 
expected use by consumers.
    As an alternative to the DOE test procedure, FSI submitted an 
alternate test procedure to account for the energy consumption of its 
products. That procedure would test these units at 70 [deg]F or 72 
[deg]F over a 24-hour period instead of the required 90 [deg]F ambient 
temperature condition. In FSI's view, using this alternate test 
procedure will allow for the accurate measurement of the energy use of 
its products.
    On March 17, 2014, DOE published FSI's petitions for waiver in 
their entirety. That notice also denied FSI's request for an interim 
waiver from the test procedure. 79 FR 14686. In explaining its denial 
of FSI's interim waiver request, DOE indicated that FSI's petition 
provided insufficient information for DOE to determine whether the 
alternative test procedure that FSI proposed to use would be likely to 
provide a measurement of the energy use of these products that is 
representative of their operation under conditions of expected consumer 
use. Since DOE had found it unlikely that FSI's waiver petition would 
be granted and had determined that it was not desirable for public 
policy reasons to grant FSI with immediate relief, DOE declined to 
grant an interim waiver and sought additional information on the 
underlying basis for FSI's proposed alternative. In seeking comments on 
FSI's proposal, DOE noted that the existing test procedures in 
appendices A (refrigerators and refrigerator-freezers) and B (freezers) 
to subpart B of 10 CFR part 430, as well as recent test procedure 
waivers, contain a method for addressing certain types of products for 
which less frequent door openings occur. See 79 FR at 14688. 
Specifically, the test procedure for residential

[[Page 49294]]

freezers, which continues to apply a 90 [deg]F ambient temperature 
during testing, applies an adjustment factor to account for the 
relatively fewer expected door openings of upright and chest freezers, 
each of which has a corresponding adjustment factor for the overall 
energy use.
    DOE received a single comment in response to the March 17th notice. 
That comment, a submission from FSI dated April 14, 2014, disagreed 
with DOE's decision to deny FSI's interim waiver. In support of its 
position, FSI restated the general position expressed in its petition 
regarding the less frequent door openings it expected its products to 
experience, which it believed justified its claim that testing at 90 
[deg]F would result in measurements of energy consumption that were not 
representative of its products' energy use. FSI further stated that if 
DOE were to deny FSI's waiver request, it would be less able to plan 
its product selection, marketing, and sales programs and would be 
placed at a competitive disadvantage compared with larger multinational 
appliance manufacturers. FSI also indicated that if its products were 
to be forced off the market, the hotel industry may increasingly turn 
to more consumptive products such as those that rely on thermoelectric 
or absorption cooling.
    To support its view, FSI cited several studies preceding DOE's 
recent efforts to update and revise its test procedures that evaluated 
the representativeness of the 90 [deg]F test condition. While some of 
the studies do indicate that the 90 [deg]F test condition is an 
imperfect approximation of the additional thermal loading imposed by 
the door openings expected during typical consumer use, the extent to 
which the findings can be generalized to all products covered by DOE 
standards on a national basis is limited in several respects. For 
example, some studies were based on a relatively small sample of 
products (e.g., one study used only two units), others were based on in 
situ (i.e., on-site) test conditions that may not be representative at 
a national level (e.g., one study only evaluated homes in Florida), and 
not all studies relied on testing conducted in a manner consistent with 
the DOE test in respects other than that 90 [deg]F test condition 
(e.g., one study tested the units with spacing to the wall behind the 
unit closer than DOE requires). FSI also cited results from its own 
testing of the products that are the subject of the petition. FSI 
claimed that its test data demonstrate that the 90 [deg]F test 
condition is not appropriate. (FSI did not submit any of the reports 
from this testing.) These various pieces of information, however, do 
not substantiate FSI's claim that its products experience fewer door 
openings during actual use or that its suggested alternate temperature 
conditions would be appropriate in this context.
    DOE notes that it first adopted the 90[emsp14][deg]F ambient test 
condition in 1977 after conducting a public notice and comment 
proceeding to discuss the merits of a proposed test procedure that 
included the possibility of adopting the 90[emsp14][deg]F ambient 
temperature condition or a higher one. See 42 FR 46140, 46142 (Sept. 
14, 1977) (rejecting adoption of a 104[emsp14][deg]F ambient test 
condition in favor of 90[emsp14][deg]F). DOE explained the basis for 
selecting this temperature condition in its proposal leading to that 
final rule by noting in part that the selected temperature is designed 
to compensate for door openings when they occur and a correction factor 
can be applied ``when appropriate.'' 42 FR 21584, 21586 (April 27, 
1977). Further, the industry's more recent efforts at revising and 
updating the test procedures for refrigerators, refrigerator-freezers, 
and freezers have continued to consistently apply the 90[emsp14][deg]F 
ambient condition during testing. These industry efforts culminated in 
the development of the current version of the Association of Home 
Appliance Manufacturers' Energy and Internal Volume of Refrigerating 
Appliances, HRF-1-2008 (``HRF-1''), which DOE has incorporated by 
reference into its regulations. See 77 FR 3559 (Jan. 25, 2012) and 79 
FR 22320 (April 21, 2014). That industry procedure continues to rely on 
the 90[emsp14][deg]F ambient condition during testing. See HRF-1, sec. 
1.2. The continued reliance on this ambient condition indicates that it 
continues to provide materially accurate comparative data that are 
representative of the true energy consumption characteristics of the 
various categories of refrigerators, refrigerator-freezers, and 
freezers.
    In view of the substantial amount of effort and analysis conducted 
both by the industry and DOE regarding the appropriateness of applying 
a 90[emsp14][deg]F ambient condition, the supporting information 
offered by FSI does not provide a sufficient basis for permitting the 
use of an alternative procedure for the particular products addressed 
in FSI's petition. Additionally, the limited information provided by 
FSI (i.e. summary results without supporting data) does not indicate 
that its alternative testing approach would be appropriate.
    FSI also cited the requirement in EPCA that DOE's ``test procedures 
be reasonably designed to measure energy consumption representatively 
and not be unduly burdensome to conduct.'' DOE notes that the complete 
text of this section, found at 42 U.S.C. 6293(b)(3), states that ``any 
test procedures prescribed under this section shall be reasonably 
designed to produce test results which measure energy efficiency, 
energy use, water use (in the case of showerheads, faucets, water 
closets and urinals), or estimated annual operating cost of a covered 
product during a representative average use cycle or period of use, as 
determined by the Secretary.'' Emphasis added.
    In DOE's view, adopting FSI's alternative testing method would 
prevent DOE from providing a test procedure that would meet the 
statutory requirement prescribed in 42 U.S.C. 6293. The already 
prescribed 90[emsp14][deg]F ambient condition has been substantially 
vetted and accepted by the refrigeration industry for decades and is 
widely viewed as being reasonably designed to produce results that 
measure the energy use and efficiency of refrigerators, refrigerator-
freezers, and freezers--such as those at issue in FSI's petitions--
during a representative average use cycle or period of use. Given this 
background, and the limited supporting data offered by FSI in favor of 
an alternative test procedure, DOE cannot conclude that a waiver is 
appropriate with respect to FSI's request.
    Lastly, FSI asserted that it would suffer unnecessary economic 
hardship and financial burdens if it is not granted a test procedure 
waiver. DOE notes that the criteria for granting a waiver, in contrast 
to an interim waiver, do not weigh the potential economic hardships 
that a particular applicant may claim are likely to occur. 
Notwithstanding this fact, FSI provided no financial details following 
the publication of its petition that would demonstrate the extent of 
any economic hardship or impact that would have enabled DOE to further 
evaluate the merits of FSI's claim. And as indicated in DOE's earlier 
notice denying FSI's request for an interim waiver, the company did not 
provide sufficient information for DOE to evaluate its claim. See 79 FR 
at 14688. Accordingly, DOE cannot provide FSI with the relief it seeks 
under its claims of economic hardship.

III. Conclusion

    As DOE stated previously in its March 2014 notice, FSI's waiver 
petition did not provide DOE with sufficient information to establish 
that FSI's alternative test procedure would evaluate its models in a 
manner that is representative of their actual energy use

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under conditions of expected consumer use. Since it did not appear 
likely that FSI's petition for waiver would be granted as submitted and 
that it is not desirable for public policy reasons to grant FSI 
immediate relief pending a determination on the petition for waiver, 
DOE declined to grant FSI's request for an interim waiver and sought 
comment from stakeholders and the public on the merits of FSI's 
proposed alternative test method. While FSI submitted comments 
disagreeing with DOE's decision, those comments did not provide 
sufficient justification for DOE to change its decision in light of the 
issues discussed above. However, should FSI or other interested 
stakeholders raise this issue in the context of a test procedure 
rulemaking or revised petition for waiver, DOE may consider the 
adoption of an alternative approach such as an appropriate adjustment 
factor to reassess the situation presented by FSI. At this time, 
however, given the absence of sufficient information, DOE cannot grant 
FSI's petition for waiver as requested.
    Thus, by this decision and order, DOE denies FSI's waiver request 
from the applicable residential refrigerator and refrigerator-freezer 
test procedures found in 10 CFR part 430, subpart B, appendix A-1 and 
appendix A for the following basic models:
     Keg Beer Coolers (Models SBC590, SBC590OS, and SBC635M);
     Assisted Living Refrigerator-freezers (Models ALBF44 and 
ALBF68); and
     Hotel Refrigerators (Models HTL2 and HTL3).
    DOE is also denying FSI's waiver request from the applicable 
residential refrigerator and refrigerator-freezer test procedures found 
in 10 CFR part 430, subpart B, appendix A for the following basic 
models:
     Keg Beer Coolers (Models SBC490B and SBC570R);
     Assisted Living Refrigerators (Models FF71TB, FF73, FF74, 
AL650R, ALB651BR, AL652BR, ALB653BR, CT66RADA, CT67RADA, AL750R, 
ALB751R, AL752BR, and ALB753LBR); and
     Ultra-Compact, Hotel Refrigerators (Models FF28LH, 
FF29BKH, FFAR21H, and FFAR2H).
    Under today's decision and order, FSI must test its specific models 
of its Keg Beer Coolers, Assisted Living Refrigerator-freezers and 
Hotel Refrigerator variants using the DOE test procedure found in 10 
CFR part 430, subpart B, appendix A-1 and, when, applicable, the test 
procedure found in 10 CFR part 430, subpart B, appendix A.

    Issued in Washington, DC, on August 13, 2014.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Office of Technology 
Development, Energy Efficiency and Renewable Energy.
[FR Doc. 2014-19768 Filed 8-19-14; 8:45 am]
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