[Federal Register Volume 68, Number 45 (Friday, March 7, 2003)]
[Rules and Regulations]
[Pages 10957-10961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5404]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 430

[Docket No. EE-RM/TP-02-001]
RIN 1904-AB12


Energy Conservation Program for Consumer Products: Test Procedure 
for Refrigerators and Refrigerator-Freezers

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

ACTION: Direct final rule.

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SUMMARY: The Department of Energy (Department or DOE) today promulgates 
a revision to the test procedure for measuring the energy consumption 
of refrigerators and refrigerator-freezers. The revision changes the 
calculation of the test time period for long-time automatic defrost to 
give credit for a control capable of timing defrost to occur other than 
during a compressor ``on'' cycle, thereby taking advantage of the 
natural warming of the evaporator during an ``off'' cycle, and saving 
additional energy. The revision has no effect on the testing of 
refrigerators and refrigerator-freezers that do not have a long-time 
automatic defrost system. This change in the test procedure will 
encourage the use of energy enhancing technology. This amendment to the 
test procedure will not cause any refrigerator or refrigerator-freezer 
that currently complies with the minimum energy conservation standards 
to become noncompliant with the standard.

DATES: This direct final rule is effective May 6, 2003, unless adverse 
or critical comments are received by April 7, 2003. If the effective 
date is delayed, timely notice will be published in the Federal 
Register.

ADDRESSES: Written comments should be addressed to: Ms. Brenda Edwards-
Jones, U.S. Department of Energy, Office of Energy Efficiency and 
Renewable Energy, EE-2J, 1000 Independence Avenue, SW., Washington, DC 
20585-0121. E-mail address: [email protected]. You should 
identify all such documents both on the envelope and on the documents 
as Energy Conservation Program for Consumer Products: Test Procedures 
for Refrigerators and Refrigerator-Freezers, Docket No. EE-RM/TP-02-
001.
    Copies of public comments received may be read in the Freedom of 
Information Reading Room (Room No. 1E-190) at the U.S. Department of 
Energy, Forrestal Building, 1000 Independence Avenue, SW., Washington, 
DC between the hours of 9 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Raymond, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, EE-2J, 1000 
Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-9611, E-
mail: [email protected]; or Francine Pinto, Esq., U.S. 
Department of Energy, Office of General Counsel, GC-72, 1000 
Independence Avenue, SW., Washington, DC 20585, (202) 586-9507, E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction
    A. Authority
    B. Background
II. Discussion
III. Final Action
IV. Procedural Requirements
    A. Review Under the National Environmental Policy Act of 1969
    B. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''
    C. Review Under the Regulatory Flexibility Act
    D. ``Takings'' Assessment Review
    E. Review Under Executive Order 13132, ``Federalism'
    F. Review Under the Paperwork Reduction Act
    G. Review Under Executive Order 12988, ``Civil Justice Reform''
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under the Treasury and General Government 
Appropriations Act, 1999
    J. Review Under Executive Order 13211
    K. Review Under the Small Business Regulatory Enforcement 
Fairness Act
    L. Approval by the Office of the Secretary

I. Introduction

A. Authority

    Part B of title III of the Energy Policy and Conservation Act, as 
amended (EPCA or Act), establishes the Energy Conservation Program for 
Consumer Products Other Than Automobiles (Program). The products 
currently subject to this Program (``covered products'') include 
residential refrigerators and refrigerator-freezers, the subject of 
today's direct final rule.
    Under the Act, the Program consists of three parts: testing, 
labeling, and the Federal energy conservation standards. The 
Department, in consultation with the National Institute of Standards 
and Technology (NIST), must amend or establish test procedures as 
appropriate for each of the covered products. (42 U.S.C. 6293). The 
purpose of the test procedures is to measure energy efficiency, energy 
use, or estimated annual operating cost of a covered product during a 
representative average use cycle or period of use. The test procedure 
must not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)).
    If a test procedure is amended, EPCA section 323(e)(1) requires DOE 
to determine, in the rulemaking, to what extent, if any, the new test 
procedure would change the measured energy efficiency or measured 
energy use of any covered product as determined under the existing test 
procedure. (42 U.S.C. 6293(e)(1)). If DOE determines that the amended 
test procedure would

[[Page 10958]]

change the measured energy efficiency or measured energy use of a 
covered product, DOE must amend the applicable energy conservation 
standard during the rulemaking that establishes the new test procedure. 
In determining the amended energy conservation standard, DOE is 
required to measure the energy efficiency or energy use of a 
representative sample of covered products that minimally comply with 
the existing standard. The average energy efficiency or energy use of 
these representative samples, tested using the amended test procedure, 
shall constitute the amended energy conservation or energy use standard 
for the applicable covered products. (42 U.S.C. 6293(e)(2)).
    Beginning 180 days after an amended or new test procedure for a 
covered product is prescribed or established under section 323(b) of 
EPCA, no manufacturer, distributor, retailer, or private labeler may 
make any representation with respect to the energy use, efficiency, or 
cost of energy consumed by such product, unless such product has been 
tested in accordance with such amended or new DOE procedure and such 
representation fully discloses the results of such testing. (42 U.S.C. 
6293(c)(2)).

B. Background

    On November 21, 2000, Electrolux filed an application for interim 
waiver and a petition for waiver regarding the calculation of the long-
time automatic defrost test time period in refrigerators and 
refrigerator-freezers having a variable defrost control function. The 
Department granted the interim waiver on July 30, 2001, and published 
its decision in the Federal Register on August 3, 2001. (66 FR 40689). 
In the same Federal Register notice, the Department published 
Electrolux's petition for waiver, and solicited comments, data, and 
information respecting the petition. On March 29, 2002, DOE published a 
notice in the Federal Register extending the interim waiver for 180 
days, or until July 25, 2002, because it determined that it would seek 
to amend the refrigerator and refrigerator-freezer test procedure and 
the planned amendment would eliminate any need for continuation of the 
waiver. (67 FR 15192). Furthermore, amendment of the test procedure 
would allow all manufacturers to use the amended test procedure if they 
have a product with a long-time automatic defrost function.
    Electrolux's petition requested that the calculation of the test 
time period for long-time automatic defrost models be modified for its 
variable defrost control models. This modification would allow for the 
existence of a control that is capable of timing defrost to occur other 
than during a compressor ``on'' cycle, thereby taking advantage of the 
natural warming of the evaporator during an ``off'' cycle, and saving 
energy as a result. Technology has advanced sufficiently that it is 
feasible to design and build a system that no longer has to initiate 
defrost during a compressor run period, as did the old mechanical 
defrost timers. Electrolux asked to have the time before the heaters 
turn ``on'' be included in the defrost period. The evaporator is 
warming up during this time, with no use of electrical energy. The 
current test procedure does not properly account for the energy savings 
produced by Electrolux's timing of the defrost heater activation.
    The Department received three written comments concerning the 
petition for waiver. All the comments supported granting the waiver, 
with one modification.
    Maytag supported Electrolux's proposal provided that it is 
applicable on an industry-wide basis to all manufacturers. The 
Department's waiver process allows for granting of waivers for a 
``particular basic model,'' so the waiver requested and granted applies 
only to the Electrolux basic models that include variable defrost 
control. Without a test procedure change, any manufacturer desiring to 
use this modification to the test procedure could do so only by 
petitioning the Department for its own waiver.
    Fisher & Paykel, a major manufacturer of refrigerators in New 
Zealand, generally approved of Electrolux's petition, but argued for a 
somewhat different modification. It proposed that the third sentence of 
section 4.1.2.1 of the test procedure (which is the only sentence 
Electrolux sought to modify) read as follows:

    ``The second part would start at the last compressor off that is 
part of steady state operation (or at a point still within stable 
operation if there are no temperature swings) before a defrost is 
initiated. It would terminate at the [second] [third] turn ``on'' of 
the compressor or after four hours, whichever comes first. If there 
are compressor swings without compressor cycling, the start point 
shall be at the last temperature peak in stable operation and the 
end point shall be at the [second] [third] temperature peak after 
the defrost.''

    Finally, the Association of Home Appliance Manufacturers (AHAM), 
representing the manufacturers who produce over 90% of the household 
refrigerators and refrigerator-freezers in the U.S., agreed in 
principle with Electrolux's petition, but requested a change in the 
wording. AHAM suggested that the four hour limitation of the test 
commence when the defrost heater is initiated, rather than at the 
beginning of the second part of the two-part test period. It stated 
that this change would alleviate concerns about ``the possibility of 
being able to modify the performance of a refrigerator to such an 
extent that it would not recover from defrost in the four hour time 
period allotted within the proposed waiver.''
    AHAM recommended that Electrolux's proposed language be changed so 
that revised section 4.1.2.1 of the test procedure would read as 
follows:

    ``Long-time Automatic Defrost. If the model being tested has a 
long-time automatic defrost system, the test period may consist of 
two parts. A first part would be the same as the test for a unit 
having no defrost provisions (section 4.1.1). The second part would 
start when a defrost is initiated when the compressor ``on'' cycle 
is terminated prior to start of the defrost heater and terminates at 
the second turn ``on'' of the compressor or four hours from the 
initiation of the defrost heater, whichever comes first.''

    AHAM stated that it discussed this change with its members, and was 
not aware of any member who disagreed with its position. It 
specifically listed the following members as having participated in and 
concurred in its proposal: GE Appliances, Electrolux Home Products, 
Fisher & Paykel, Maytag, Sub-Zero, and Whirlpool. In summary, AHAM 
asserted that all commenters on Electrolux's Petition were in agreement 
with AHAM's proposal.

II. Discussion

    The Department consulted with the National Institute of Standards & 
Technology (NIST), which agreed that the current test procedure for 
refrigerators and refrigerator-freezers is not clear with regard to the 
initiation of the defrost cycle test time period in Electrolux's new 
product. (The current test procedure states: ``The second period would 
start when a defrost period is initiated during a compressor ``on'' 
cycle * * *'' Electrolux's new product initiates the defrost period 
when the compressor is ``off''.) NIST informed the Department that the 
change proposed in the Electrolux Petition would clarify the defrost 
cycle initiation and more accurately measure the energy consumption of 
Electrolux's new product. NIST endorsed the revised language proposed 
by AHAM. As stated above, all commenters on the test procedure change 
apparently support AHAM's proposal. This proposed change has widespread 
support and will

[[Page 10959]]

result in a test procedure that more accurately measures energy 
consumption. The application of the existing test procedure to the new 
product is unclear, and this amendment will clarify its application to 
the new product. For all these reasons, the Department has determined 
that it should promulgate this direct final rule and make a change to 
the refrigerator and refrigerator-freezer test procedure.
    The revised calculation of the test time period results in a small 
(generally about one percent) decrease in the tested energy consumption 
of models that incorporate the advanced defrost timing feature, a 
feature that delays the initiation of the defrost heater, thereby using 
natural warming to defrost. Section 323(e) of EPCA requires the 
Department, in a rulemaking, to determine to what extent, if any, the 
proposed test procedure would change the existing measured energy 
efficiency or measured energy use of any covered product under the 
existing test procedure. This statutory provision is designed to 
prevent the alteration of an existing Federal energy conservation 
standard that otherwise could result from a change in a test procedure. 
It also seeks to ensure that products in compliance with the applicable 
energy conservation standards under the existing test procedure will 
not be put out of compliance because the test procedure has been 
amended. When the Department considers section 323(e) of EPCA in the 
context of this direct final rule, the Department concludes that no 
change to the energy conservation standard is required. The reasons are 
as follows: (1) This test procedure amendment affects only products 
with a variable defrost control function, none of which minimally 
comply with the existing standard. There are, therefore, no minimally-
compliant products under section 323(e) that would show any change in 
energy use under the amended test procedure. (2) This test procedure 
amendment, which was developed to give credit to an energy saving 
technology, will result in lowering the measured energy use. Lowering 
measured energy use will, of course, not raise energy use over the 
standard, which prescribes a ceiling on maximum energy use. Instead, 
lowering energy use merely removes measured energy use further from 
that ceiling. Therefore, this amendment does not make any compliant 
products non-compliant with the applicable energy conservation 
standard.

III. Final Action

    DOE is publishing this direct final rule without prior proposal 
because DOE views this amendment as noncontroversial and anticipates no 
significant adverse comments. However, in the event that significant 
adverse or critical comments are filed, DOE has prepared a Notice of 
Proposed Rulemaking (NOPR) proposing the same amendment. This NOPR is 
contained in a separate document in this Federal Register publication. 
The direct final action will be effective May 6, 2003, unless 
significant adverse or critical comments are received by April 7, 2003. 
If DOE receives significant adverse or critical comments, the revisions 
will be withdrawn before the effective date. In the case of withdrawal 
of this action, the withdrawal will be announced by a subsequent 
Federal Register document. All public comments will then be addressed 
in a separate final rule based on the proposed rule that is also issued 
today. DOE will not implement a second comment period on this action. 
Any parties interested in commenting on this rule should do so at this 
time. If no significant adverse comments are received, the public is 
advised that this rule will be effective May 6, 2003.

IV. Procedural Requirements

A. Review Under the National Environmental Policy Act of 1969

    In this rule, the Department promulgates a small change to the test 
procedure for measuring the energy consumption of household 
refrigerators and refrigerator-freezers. The Department has determined 
that this rule falls into a class of actions that are categorically 
excluded from review under the National Environmental Policy Act of 
1969 (NEPA), 42 U.S.C. 4321 et seq. The rule is covered by Categorical 
Exclusion A5, for rulemakings that interpret or amend an existing rule 
without changing the environmental effect, as set forth in the 
Department's NEPA regulations in Appendix A to subpart D, 10 CFR part 
1021. This rule will not affect the quality or distribution of energy 
usage and, therefore, will not result in any environmental impacts. 
Accordingly, neither an environmental impact statement nor an 
environmental assessment is required.

B. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''

    Today's rule is not a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review.'' 58 FR 51735 
(October 4, 1993). Accordingly, today's action is not subject to review 
under the Executive Order by the Office of Information and Regulatory 
Affairs.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that an 
agency prepare an initial regulatory flexibility analysis for any rule, 
for which a general notice of proposed rulemaking is required, that 
would have a significant economic effect on small entities unless the 
agency certifies that the proposed rule, if promulgated, will not have 
a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 605.
    Today's rule prescribes test procedures that will be used to test 
compliance with energy conservation standards. The rule affects 
refrigerator and refrigerator-freezer test procedures and would not 
have a significant economic impact, but rather would provide common 
testing methods. Therefore DOE certifies that today's rule would not 
have a ``significant economic impact on a substantial number of small 
entities,'' and the preparation of a regulatory flexibility analysis is 
not warranted.

D. ``Takings'' Assessment Review

    DOE has determined pursuant to Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights,'' 53 FR 8859 (March 18, 1988), that this regulation 
would not result in any takings which might require compensation under 
the Fifth Amendment to the United States Constitution.

E. Review Under Executive Order 13132, ``Federalism''

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), requires that regulations, rules, legislation, and any other 
policy actions be reviewed for any substantial direct effects on 
States, on the relationship between the Federal government and the 
States, or in the distribution of power and responsibilities among 
various levels of government. If there are substantial direct effects, 
then this Executive Order requires preparation of a federalism 
assessment to be used in all decisions involved in promulgating and 
implementing a policy action.
    The rule published today would not regulate or otherwise affect the 
States. Accordingly, DOE has determined that preparation of a 
federalism assessment is unnecessary.

F. Review Under the Paperwork Reduction Act

    No new information or record keeping requirements are imposed by 
this rulemaking. Accordingly, no OMB

[[Page 10960]]

clearance is required under the Paperwork Reduction Act, 44 U.S.C. 3501 
et seq.

G. Review Under Executive Order 12988, ``Civil Justice Reform''

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by sections 3(a) and 3(b) of Executive Order 12988, it 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
sections 3(a) and 3(b) to determine whether they are met or it is 
unreasonable to meet one or more of them. DOE reviewed today's rule 
under the standards of section 3 of the Executive Order and determined 
that, to the extent permitted by law, the proposed regulations meet the 
relevant standards.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
Mandates Act'') requires that the Department prepare a budgetary impact 
statement before promulgating a rule that includes a Federal mandate 
that may result in expenditure by state, local, and tribal governments, 
in the aggregate, or by the private sector, of $100 million or more in 
any one year. The budgetary impact statement must include: (i) 
Identification of the Federal law under which the rule is promulgated; 
(ii) a qualitative and quantitative assessment of anticipated costs and 
benefits of the Federal mandate and an analysis of the extent to which 
such costs to State, local, and tribal governments may be paid with 
Federal financial assistance; (iii) if feasible, estimates of the 
future compliance costs and of any disproportionate budgetary effects 
the mandate has on particular regions, communities, non-Federal units 
of government, or sectors of the economy; (iv) if feasible, estimates 
of the effect on the national economy; and (v) a description of the 
Department's prior consultation with elected representatives of State, 
local, and tribal governments and a summary and evaluation of the 
comments and concerns presented.
    The Department has determined that the action today does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to State, local or to tribal governments in the 
aggregate or to the private sector. Therefore, the requirements of 
sections 203 and 204 of the Unfunded Mandates Act do not apply to this 
action.

I. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule or policy that may affect 
family well-being. Today's rule would not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
the promulgation of a final rule, and that: (1) Is a significant 
regulatory action under Executive Order 12866, or any successor order; 
and (2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use.
    Today's rule will not have a significant adverse effect on the 
supply, distribution, or the use of energy, and, therefore, is not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

K. Review Under the Small Business Regulatory Enforcement Fairness Act

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's rule prior to its effective date. The report 
will state that it has been determined that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 801(2).

L. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's direct 
final rule.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Energy conservation, 
Household appliances.

    Issued in Washington, DC, on February 28, 2003.
David K. Garman,
Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, the Department amends 
part 430 of chapter II of title 10, Code of Federal Regulations, to 
read as follows:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

    1. The authority citation for part 430 continues to read as 
follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.


    2. Section 4.1.2.1 of Appendix A1 to subpart B of part 430 is 
revised to read as follows:

Appendix A1 to Subpart B of Part 430--Uniform Test Method for Measuring 
the Energy Consumption of Electric Refrigerators and Electric 
Refrigerator-Freezers

    4. * * *
    4.1.2.1 Long-time Automatic Defrost. If the model being tested has 
a long-time automatic defrost system, the test time period may consist 
of two parts. A first part would be the same as the test for a unit 
having no defrost provisions (section 4.1.1). The second part would 
start when a defrost is initiated when the compressor ``on'' cycle is 
terminated prior to start of the defrost heater and

[[Page 10961]]

terminates at the second turn ``on'' of the compressor or four hours 
from the initiation of the defrost heater, whichever comes first. See 
diagram in Figure 1 to this section.
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