[Federal Register Volume 71, Number 191 (Tuesday, October 3, 2006)]
[Proposed Rules]
[Pages 58308-58314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8432]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / 
Proposed Rules  

[[Page 58308]]



DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 431

[Docket No. EE-RM/TP-05-500]
RIN 1904-AB53


Energy Conservation Program: Test Procedures for Refrigerated 
Beverage Vending Machines and Commercial Refrigerators, Freezers and 
Refrigerator-Freezers

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

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE or the Department) published a 
notice of proposed rulemaking (NOPR) to adopt test procedures for 
measuring energy efficiency and related definitions for various 
consumer products and commercial and industrial equipment on July 25, 
2006, including refrigerated bottled or canned beverage vending 
machines and commercial refrigerators, freezers, and refrigerator-
freezers. For refrigerated bottled or canned beverage vending machines, 
the Department proposed to adopt the American National Standards 
Institute (ANSI)/American Society of Heating, Refrigerating, and Air-
Conditioning Engineers, Inc. (ASHRAE) Standard 32.1-2004 test procedure 
for measuring equipment energy consumption and for determining 
equipment capacity. For commercial refrigerators, freezers, and 
refrigerator-freezers, the Department proposed to adopt the ANSI/
Association of Home Appliance Manufacturers (AHAM) Standard HRF1-1979 
for determining equipment capacity.
    The Department now proposes an additional method as an alternative 
means for measuring the capacity of refrigerated bottled or canned 
beverage vending machines, namely the method to measure refrigerated 
volume that is set forth in an updated version of ANSI/AHAM HRF1. The 
Department also proposes to adopt this updated standard for measuring 
the volume of commercial refrigerators, freezers, and refrigerator-
freezers. The Department will receive written comments in response to 
the July 25, 2006 NOPR or to this supplemental notice of proposed 
rulemaking (SNOPR).

DATES: The Department held a public meeting on this rulemaking on 
Tuesday, September 26, 2006, from 9 a.m. to 5 p.m., in Washington, DC.
    The Department will accept comments, data, and information 
regarding this SNOPR no later than October 10, 2006. See section IV, 
``Public Participation,'' of this proposed rule for details.

ADDRESSES: You may submit comments, identified by docket number EE-RM/
TP-05-500 and/or Regulatory Information Number (RIN) 1904-AB53, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: testprocedures--[email protected]. Include EE-
RM/TP-05-500 and/or RIN 1904-AB53 in the subject line of the message.
     Postal Mail: Ms. Brenda Edwards-Jones, U.S. Department of 
Energy, Building Technologies Program, Mailstop EE-2J, Energy 
Conservation Test Procedures for Consumer Products and Commercial 
Equipment, EE-RM/TP-05-500 and/or RIN 1904-AB53, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. 
Please submit one original signed paper.
     Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S. 
Department of Energy, Building Technologies Program, Room 1J-018, 1000 
Independence Avenue, SW., Washington, DC 20585-0121.
    Instructions: All submissions must include the agency name and 
docket number or RIN for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see section IV, ``Public Participation,'' of this proposed 
rule for details.
    Docket: For access to the docket to read background documents or 
comments received, go to the U.S. Department of Energy, Forrestal 
Building, Room 1J-018 (Resource Room of the Building Technologies 
Program), 1000 Independence Avenue, SW., Washington, DC, between 9 a.m. 
and 4 p.m., Monday through Friday, except Federal holidays. Please call 
Ms. Brenda Edwards-Jones at (202) 586-2945 for additional information 
regarding visiting the Resource Room. Please note that the Department's 
Freedom of Information Reading Room (formerly Room 1E-190 at the 
Forrestal Building) is no longer housing rulemaking materials.

FOR FURTHER INFORMATION CONTACT: Mr. Charles F. Llenza, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121, (202) 586-2192. E-mail: [email protected], or 
Ms. Francine Pinto, 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 and Background
    B. Summary of the Proposed Rule
II. Discussion
    A. General Discussion
    B. Method for Measuring the Refrigerated Volume of Refrigerated 
Bottled or Canned Beverage Vending Machines
    C. Method for Measuring the Volume of Commercial Refrigerators, 
Freezers, and Refrigerator-Freezers
III. Procedural Requirements
    A. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132, ``Federalism''
    F. Review Under Executive Order 12988, ``Civil Justice Reform''
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act of 1999
    I. Review Under Executive Order 12630, ``Governmental Actions 
and Interference With Constitutionally Protected Property Rights''
    J. Review Under the Treasury and General Government 
Appropriations Act of 2001
    K. Review Under Executive Order 13211, ``Actions Concerning 
Regulations That

[[Page 58309]]

Significantly Affect Energy Supply, Distribution, or Use''
    L. Review Under Section 32 of the Federal Energy Administration 
(FEA) Act of 1974
IV. Public Participation
V. Approval of the Office of the Secretary

I. Introduction

A. Authority and Background

    Part B and Part C of Title III of the Energy Policy and 
Conservation Act, Public Law 93-163, 42 U.S.C. 6291-6309 and 42 U.S.C. 
6311-6317 respectively, as amended by the Energy Policy Act of 2005 
(EPACT 2005), Public Law 109-58, provide energy conservation programs 
for consumer products other than automobiles and for certain commercial 
and industrial equipment. Further, EPACT 2005 prescribes new or amended 
energy conservation standards and test procedures, and directs DOE to 
undertake rulemakings to promulgate such requirements.
    Section 135(c)(4) of EPACT 2005 amends section 325 of EPCA by 
adding, in part, new subsection 325(v)(2), 42 U.S.C. 6295(v)(2), which 
directs the Secretary to prescribe, by rule, energy conservation 
standards for refrigerated bottled or canned beverage vending machines. 
Further, section 135(b)(1) of EPACT 2005 amends section 323(b) of EPCA 
by adding, in part, new subsection 323(b)(15), 42 U.S.C. 6293(b)(15), 
which states that test procedures for this equipment shall be based on 
ANSI/ASHRAE Standard 32.1-2004, entitled ``Methods of Testing for 
Rating Vending Machines for Bottled, Canned or Other Sealed 
Beverages.'' Also pursuant to section 135(b)(2) of EPACT 2005, new 
subsection 323(f) of EPCA, 42 U.S.C. 6293(f)(1), directs the Secretary 
to prescribe testing requirements for refrigerated bottled or canned 
beverage vending machines no later than two years after the enactment 
of EPACT 2005, that is, August 8, 2007. (42 U.S.C. 6293(f)(1)) This 
section also directs DOE to base such testing requirements on existing 
industry test procedures, to the maximum extent practicable. (42 U.S.C. 
6292(f)(2)) Finally, section 136(c) of EPACT 2005 amends EPCA to 
require that, for purposes of standards for commercial refrigerators, 
freezers, and refrigerator-freezers, compartment volumes be measured in 
accordance with ANSI/AHAM HRF1-1979. (42 U.S.C. 6313(c))
    On July 25, 2006, DOE published a notice of proposed rulemaking to 
adopt test procedures for measuring energy efficiency and water-use 
efficiency, and related definitions, as well as test sampling, 
compliance certification, and enforcement requirements, for various 
consumer products and commercial and industrial equipment covered by 
the EPACT 2005 amendments to EPCA (hereafter referred to as the July 
2006 proposed rule). 71 FR 42178. The July 2006 proposed rule includes 
test procedures for refrigerated bottled or canned beverage vending 
machines. In accordance with the above described amendments to section 
323(b) and (f) of EPCA, the Department proposed to incorporate the 
ANSI/ASHRAE Standard 32.1-2004 test procedure by reference into Title 
10 of the Code of Federal Regulations, Part 431 (10 CFR Part 431) for 
the measurement of energy consumption and determination of capacity of 
this equipment.
    However, on July 11, 2006, while the July 2006 proposed rule was 
being prepared for publication in the Federal Register, the Department 
held an informal public meeting to present its proposed methodologies 
for conducting the rulemaking to establish standards for refrigerated 
bottled or canned beverage vending machines, discuss issues relevant to 
that rulemaking proceeding, and initiate stakeholder interaction. 
During the course of the public meeting, stakeholders suggested that 
``refrigerated volume'' would be a more appropriate measure of capacity 
than ``vendible capacity,'' which ANSI/ASHRAE Standard 32.1-2004 uses 
as the measure of capacity for refrigerated bottled or canned beverage 
vending machines.

B. Summary of the Proposed Rule

    In today's SNOPR, the Department proposes to incorporate by 
reference the methodology for measuring refrigerated volume in section 
5.2 (excluding subsections 5.2.2.2-5.2.2.4) of ANSI/AHAM HRF1-2004, 
``Energy, Performance and Capacity of Household Refrigerators, 
Refrigerator-Freezers and Freezers,'' as an additional method for 
measuring the capacity of refrigerated bottled or canned beverage 
vending machines. The Department proposes to retain in the final rule, 
as an alternative means for measuring the capacity for refrigerated 
bottled or canned beverage vending machines, the ``vendible capacity'' 
method which ANSI/ASHRAE Standard 32.1-2004 uses. In addition, the 
Department proposes to reference ANSI/AHAM HRF1-2004 as the methodology 
to measure volume for all commercial refrigerators, freezers, and 
refrigerator-freezers covered under section 342(c) of EPCA, 42 U.S.C. 
6313(c).

II. Discussion

A. General Discussion

    The Department examined ANSI/ASHRAE Standard 32.1-2004 and believes 
that it provides sound methods for measuring the daily energy 
consumption of refrigerated bottled or canned beverage vending 
machines, and satisfies the requirements of section 323(b)(3) of EPCA, 
42 U.S.C. 6293(b)(3). Therefore, as stated above, in the July 2006 
proposed rule the Department proposed to incorporate this test 
procedure by reference into 10 CFR Part 431. Included in the material 
DOE would incorporate by reference is the method set forth in ANSI/
ASHRAE Standard 32.1-2004 for determining the capacity of this 
equipment, which the standard refers to as ``vendible capacity.'' 
Vendible capacity consists essentially of the maximum number of units 
of product a vending machine can hold for sale.\1\ The ANSI/ASHRAE 
Standard 32.1-2004 does not use this measure of capacity to determine 
the actual energy consumption of equipment. However, manufacturers use 
it to compute allowable energy consumption. Energy conservation 
standards for refrigeration equipment are typically a function of 
equipment capacity, and the capacity of each model or basic model of 
equipment is used to calculate its maximum allowable energy use.
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    \1\ Section 5 of ASHRAE 32.1-2004 defines vendible capacity as 
``the maximum quantity of standard product that can be dispensed 
from one full loading of the vending machine without further reload 
operations when used as recommended by the manufacturer. The 
standard product shall be 12 oz (355 ml) cans for machines that are 
capable of dispensing 12 oz (355 ml) cans. For all other machines, 
the standard project [sic] shall be the product specified by the 
manufacturer as the standard product.''
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    As mentioned above, during the July 11, 2006, standards framework 
public meeting, stakeholders suggested that refrigerated volume would 
be a more appropriate measure of capacity than vendible capacity. The 
Coca-Cola Company stated that it would make sense to use refrigerated 
volume in establishing standards for energy consumption. (Public 
Meeting Transcript, No. 8 at p. 106, 124 and 130) \2\ The American 
Council for an Energy-Efficient Economy (ACEEE) stated that using 
refrigerated volume instead of vendible capacity, along with

[[Page 58310]]

energy use, would be a reasonable way of establishing baseline energy 
consumption. (Public Meeting Transcript, No. 8 at p.118) Royal Vendors 
stated that the metric for measuring the energy consumption of vending 
machines should be based on volume. (Public Meeting Transcript, No. 8 
at pp.123-124) Dixie Narco stated that the industry was in agreement on 
using refrigerated capacity, not vendible capacity, for this 
rulemaking. (Public Meeting Transcript, No. 8 at p.124) PepsiCo, Inc. 
agreed with the idea of using refrigerated volume. (Public Meeting 
Transcript, No. 8 at p.125)
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    \2\ In this and subsequent citations, ``Public Meeting 
Transcript'' refers to the transcript of the July 11, 2006, public 
meeting in the DOE rulemaking on standards for refrigerated bottled 
or canned beverage vending machines, Docket No. EERE-2006-STD-0125, 
the ``No.8'' refers to the document number of the transcript in that 
Docket, and the page references refer to the place in the transcript 
where the statement preceding appears.
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    After considering these comments, the Department now believes 
refrigerated volume should be included in its rules as a measure of 
capacity, along with ``vendible capacity,'' for refrigerated bottled or 
canned beverage vending machines. This would provide the Department 
with the means for evaluating whether it should set its standards for 
this equipment based on one or both of these metrics of capacity. 
Further, if the Department sets standards based on both metrics, it 
would have appropriate test procedures in place for determining 
compliance with such standards. If DOE bases its standards only on one 
test metric, then DOE could revise the test procedure to delete the 
other test metric.
    Among machines that are designed and intended for vending 12-ounce 
cans, there are a variety of dispensing mechanisms and storage 
arrangements that lead to potentially different refrigerated volumes 
for different machines with the same ``vendible capacity.'' Therefore, 
it may be better for the Department to require measurement of capacity, 
and set standards based on refrigerated volume.
    In addition, EPCA has historically used upper limits on energy 
consumption as a function of volume for the purposes of establishing 
energy conservation standards for refrigeration equipment. Energy 
conservation standards based on volume were established under section 
325 of EPCA, 42 U.S.C. 6295(b), and subsequently codified by DOE under 
Sec.  430.32(a) of 10 CFR Part 430, for residential refrigerators, 
freezers, and refrigerator-freezers. Also, on October 18, 2005, DOE 
published a final rule (70 FR 60407) that placed energy conservation 
standards into the CFR for certain commercial refrigeration equipment 
as prescribed in EPACT 2005. These standards are in terms of upper 
limits on daily energy consumption as a function of refrigerated 
volume. 10 CFR 431.66(b) Since refrigerated bottled and canned beverage 
vending machines are defined by EPACT 2005 as a type of commercial 
refrigerator, DOE would be consistent with existing residential and 
commercial refrigerator standards if it were to use refrigerated volume 
as a measure of capacity.\3\
    For these reasons, the Department now believes that it should 
consider refrigerated volume as the measure of capacity, in addition to 
vendible capacity, for refrigerated bottled or canned beverage vending 
machines. The Department is therefore including in today's SNOPR a 
methodology to measure the refrigerated volume of refrigerated canned 
or bottled beverage vending machines.
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    \3\ Section 135(a)(3) of EPACT 2005 amends section 321 of EPCA 
to add subsection 321(40), 42 U.S.C. 6291(40), which defines the 
term ``refrigerated bottled or canned beverage vending machine'' as 
``a commercial refrigerator that cools bottled or canned beverages 
and dispenses the bottled or canned beverages on payment.''
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B. Method for Measuring the Refrigerated Volume of Refrigerated Bottled 
or Canned Beverage Vending Machines

    The Department proposes to require measurement of the refrigerated 
volume of refrigerated bottled or canned beverage vending machines 
using the methodology in ANSI/AHAM HRF1. As mentioned above, the 
Department has established energy conservation standards for 
residential refrigerators, freezers, and refrigerator-freezers in terms 
of upper limits on energy consumption as a function of volume. The test 
procedure used to measure the compartment volume for each of these 
products is ANSI/AHAM HRF1-1979. 10 CFR Part 430, Subpart B, Appendix 
A1, section 1.2. Likewise, for commercial refrigeration equipment 
standards that are covered under section 342(c) of EPCA, 42 U.S.C. 
6313(c), compartment volume is defined in terms of ANSI/AHAM HRF1-1979. 
(Section 136(c) of EPACT 2005; 42 U.S.C. 6313(c)(1)((A) and (B)) 
Therefore, DOE proposed to incorporate this standard by reference into 
10 CFR Part 431 in the July 2006 proposed rule. 71 FR 42208. In 
addition, under section 1606 of Title 20 of the California Code of 
Regulations (July 2006), manufacturers of refrigerated bottled or 
canned beverage vending machines are required to use ANSI/AHAM HRF1-
1979 to measure and report the internal volume of multi-package units. 
Since ANSI/AHAM HRF1 is widely used in the refrigeration industry for 
measuring refrigerated volume for refrigerated bottled or canned 
beverage vending machines, the Department proposes to incorporate it by 
reference into today's SNOPR.
    The Department notes that ANSI/AHAM HRF1 was revised in 2004. The 
ANSI/AHAM HRF1-2004 is more readily available than the 1979 version and 
includes the same relevant information pertaining to the measurement of 
refrigerated volume. Some language is included in the 2004 version that 
clarifies the methodology specifically for certain types of household 
refrigerators (e.g., refrigerators with through-the-door ice and/or 
liquid dispensers). It also includes some clarifying language in the 
examples (e.g., the addition of control boxes). However, the 2004 
version of the standard retains the same methodology for measuring 
refrigerated volume. Therefore, the Department proposes to reference 
the 2004 version of ANSI/AHAM HRF1, instead of the 1979 version, for 
the measurement of refrigerated volume for refrigerated bottled or 
canned beverage vending machines.
    Specifically, the Department proposes to incorporate by reference 
section 5.2 of ANSI/AHAM HRF1-2004, excluding subsections 5.2.2.2 
through 5.2.2.4 that are not relevant to measuring refrigerated volume 
for refrigerated bottled or canned beverage vending machines. The 
Department recognizes that sections 4.2 and 5.2 address the measurement 
of refrigerated volume in household refrigerators and freezers, 
respectively, and do not directly address refrigerated bottled or 
canned beverage vending machines for which no commercial standards 
exist. Nevertheless, the Department believes that the methodology 
described in section 5.2 includes methods for the measurement of 
refrigerated volumes that are applicable to refrigerated bottled or 
canned beverage vending machines. Further, the Department believes 
that, although EPCA defines such equipment as a type of commercial 
refrigerator, the language in section 5.2 for household freezers is 
more appropriate than the language in section 4.2 for household 
refrigerators, because the methodology in section 5.2 is more relevant 
to the type of compartment(s) being measured in a refrigerated bottled 
or canned beverage vending machine.
    As addressed above, the EPACT 2005 amendments to EPCA require that 
test procedures for refrigerated bottled or canned beverage vending 
machines be ``based on'' ANSI/ASHRAE 32.1-2004. Energy consumption 
testing represents the bulk of the testing that manufacturers must 
conduct under this test procedure, while capacity measurements 
represent a minor

[[Page 58311]]

portion. Under today's proposal, the Department would continue to 
incorporate ANSI/ASHRAE 32.1-2004 by reference into 10 CFR Part 431 for 
the purpose of measuring energy consumption and capacity, but it 
proposes to add ANSI/AHAM HRF1-2004 as an additional method for 
measuring capacity. Thus, DOE is still proposing a test procedure for 
refrigerated bottled or canned beverage vending machines that is 
``based on'' ANSI/ASHRAE 32.1-2004 as required by EPCA.

C. Method for Measuring the Volume of Commercial Refrigerators, 
Freezers, and Refrigerator-Freezers

    As addressed above, the Department proposes to use the 2004 version 
of ANSI/AHAM HRF1 for measuring the refrigerated volume of refrigerated 
bottled or canned beverage vending machines. For all the same reasons, 
DOE proposes to replace references to ANSI/AHAM HRF1-1979 with 
references to ANSI/AHAM HRF1-2004 at 10 CFR 431.63(b)(2) of the 
proposed rule for commercial refrigerators, freezers, and refrigerator-
freezers, 71 FR 42208 (July 25, 2006), and in the existing rule for 
such equipment under 10 CFR 431.66(a).

III. Procedural Requirements

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

    Today's proposed rule is not a ``significant regulatory action'' 
under section 3(f)(1) of Executive Order 12866, ``Regulatory Planning 
and Review.'' 58 FR 51735 (October 4, 1993). Accordingly, today's 
action was not subject to review by the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. A regulatory 
flexibility analysis examines the impact of the rule on small entities 
and considers alternative ways of reducing negative impacts. Also, as 
required by Executive Order 13272, Proper Consideration of Small 
Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE 
published procedures and policies on February 19, 2003, to ensure that 
the potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. The Department 
has made its procedures and policies available on the Office of General 
Counsel's Web site: http://www.gc.doe.gov.
    The Department reviewed today's proposed rule under the provisions 
of the Regulatory Flexibility Act and the policies and procedures 
published on February 19, 2003. Refrigerated bottled and canned 
beverage vending machines are the subject of voluntary standards and 
test procedures, and State standards and test procedures, but are not 
yet covered by DOE's Federal manufacturing standards. The Department 
expects that the measurements for refrigerated volume in today's 
proposed rule would not take any more time to conduct than the 
measurement of vendible capacity proposed in the July 2006 proposed 
rule. Thus, DOE believes that this proposed rule would not impose 
significant economic costs on small manufacturers of this equipment. On 
this basis, DOE certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities.

C. Review Under the Paperwork Reduction Act of 1995

    This rulemaking would impose no new information or recordkeeping 
requirements. Accordingly, Office of Management and Budget clearance is 
not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et 
seq.)

D. Review Under the National Environmental Policy Act of 1969

    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 (42 U.S.C. 4321 et seq.) and the 
Department's implementing regulations at 10 CFR part 1021. 
Specifically, this rule establishing test procedures will not affect 
the quality or distribution of energy and, will not result in any 
environmental impacts, and, therefore, is covered by the Categorical 
Exclusion in paragraph A6 to subpart D, 10 CFR part 1021. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

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

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in developing 
regulatory policies that have federalism implications. On March 14, 
2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in developing 
such regulations. 65 FR 13735. The Department examined this proposed 
rule and determined that it does not have a substantial direct effect 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. Executive Order 13132 requires no 
further action.

F. 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 
Federal agencies the duty to adhere to the following requirements: (1) 
Eliminate drafting errors and ambiguity, (2) write regulations to 
minimize litigation, (3) provide a clear legal standard for affected 
conduct rather than a general standard, and (4) promote simplification 
and burden reduction. Section 3(b) of Executive Order 12988 
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. The Department has completed 
the required review and determined that, to the extent permitted by 
law, this

[[Page 58312]]

proposed rule meets the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and tribal governments and the 
private sector. For a proposed regulatory action likely to result in a 
rule that may cause expenditures by State, local, and tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish a written statement that 
estimates the resulting costs, benefits, and other effects on the 
national economy. 2 U.S.C. 1532(a) and (b). The UMRA requires a Federal 
agency to develop an effective process to permit timely input by 
elected officers of State, local, and tribal governments on a proposed 
``significant intergovernmental mandate.'' The UMRA also requires an 
agency plan for giving notice and opportunity for timely input to small 
governments that may be affected before establishing a requirement that 
might significantly or uniquely affect them. On March 18, 1997, DOE 
published a statement of policy on its process for intergovernmental 
consultation under UMRA (62 FR 12820) (also available at http://www.gc.doe.gov). Today's proposed rule contains neither an 
intergovernmental mandate nor a mandate that may result in the 
expenditure of $100 million or more in any year, so these requirements 
under the UMRA do not apply.

H. Review Under the Treasury and General Government Appropriations Act 
of 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 rule that may affect family well-being. 
Today's proposed rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is unnecessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 12630, ``Governmental Actions and 
Interference With Constitutionally Protected Property Rights''

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

J. Review Under the Treasury and General Government Appropriations Act 
of 2001

    Section 515 of the Treasury and General Government Appropriations 
Act of 2001 (44 U.S.C. 3516) provides for agencies to review most 
disseminations of information to the public under guidelines each 
agency establishes pursuant to general guidelines issued by OMB. OMB's 
guidelines were published at 67 FR 8452 (February 22, 2002); DOE's 
guidelines were published at 67 FR 62446 (October 7, 2002). The DOE has 
reviewed today's notice under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    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) of the OMB a 
statement of energy effects for any proposed significant energy action. 
A ``significant energy action'' is defined as any action by an agency 
that promulgated a final rule or is expected to lead to 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 reasonable alternatives to the action and their expected benefits 
on energy supply, distribution, and use. Because this proposed rule 
would not have a significant adverse effect on the supply, 
distribution, or use of energy, the rule is not a significant energy 
action. Accordingly, DOE has not prepared a statement of energy 
effects.

L. Review Under Section 32 of the Federal Energy Administration (FEA) 
Act of 1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91), the DOE must comply with section 32 of the Federal 
Energy Administration Act of 1974, as amended by the Federal Energy 
Administration Authorization Act of 1977. 15 U.S.C. 788. Section 32 
provides, in essence that, where a proposed rule authorizes or requires 
use of commercial standards, the notice of proposed rulemaking must 
inform the public of the use and background of such standards. In 
addition, section 32(c) requires DOE to consult with the Department of 
Justice (DOJ) and the Federal Trade Commission (FTC) concerning the 
impact of the commercial or industry standards on competition.
    The ANSI/AHAM HRF1-2004, ``Energy, Performance and Capacity of 
Household Refrigerators, Refrigerator-Freezers and Freezers,'' 
incorporated in this proposed rule for the measurement of refrigerated 
volume, is not referenced by EPACT 2005 for refrigerated bottled or 
canned beverage vending machines. Although Congress in EPACT 2005 did 
not require DOE to use this industry test procedure as the basis for 
the test procedures for refrigerated bottled or canned beverage vending 
machines, the Department believes that it offers a reasonable basis for 
developing a method for measuring refrigerated volume. The Department 
has evaluated this standard and is unable to conclude whether it fully 
complies with the requirements of section 32(b) of the Federal Energy 
Administration Act, (i.e., that it was developed in a manner that fully 
provides for public participation, comment and review). The Department 
will consult with the Attorney General and the Chairman of the FTC 
concerning the impact of this test procedure on competition, prior to 
prescribing a final rule.

IV. Public Participation

A. Public Meeting

    The Department will make the entire record of this proposed 
rulemaking, including the transcript from the September 26, 2006 public 
meeting, available for inspection at the U.S. Department of Energy, 
Forrestal Building, Room 1J-018 (Resource Room of the Building 
Technologies Program), 1000 Independence Avenue, SW., Washington, DC 
20585-0121, (202) 586-9127, between 9 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays. Anyone may purchase a copy

[[Page 58313]]

of the transcript from the transcribing reporter.

B. Submission of Comments

    The Department will accept comments, data, and information about 
the proposed rule no later than the date provided at the beginning of 
this SNOPR. Please submit comments, data, and information 
electronically to http://www.regulations.gov or testprocedures-- 
[email protected]. Please submit electronic comments in Microsoft 
Word, PDF, or text (ASCII) file format, and avoid the use of special 
characters or any form of encryption. Comments in electronic format 
should be identified by the docket number EE-RM/TP-05-500 and/or RIN 
number 1904-AB53, and wherever possible carry the electronic signature 
of the author. Absent an electronic signature, comments submitted 
electronically must be followed and authenticated by submitting the 
signed original paper document. No telefacsimiles (faxes) will be 
accepted.
    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 without the information believed to be confidential. The 
Department will make its own determination about the confidential 
status of the information.
    When determining whether to treat submitted information as 
confidential, the Department considers: (1) A description of the items, 
(2) whether and why such items are customarily treated as confidential 
within the industry, (3) whether the information is generally known by 
or available from other sources, (4) whether the information has 
previously been made available to others without obligation concerning 
its confidentiality, (5) whether the submitting person would suffer 
competitive injury from public disclosure, (6) when such information 
might lose its confidential character due to the passage of time, and 
(7) why disclosure of the information would be contrary to the public 
interest.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's 
supplemental proposed rule.

List of Subjects in 10 CFR Part 431

    Administrative practice and procedure, Commercial products, Energy 
conservation test procedures, Incorporation by reference.

    Issued in Washington, DC, on September 25, 2006.
Alexander A. Karsner,
Assistant Secretary, Energy Efficiency and Renewable Energy.
    For the reasons set forth in the preamble, the proposed rule that 
proposed to amend 10 CFR part 431 which was published at 71 FR 42178 on 
July 25, 2006, is proposed to be amended as set forth below:

PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND 
INDUSTRIAL EQUIPMENT

    1. The authority citation for part 431 continues to read as 
follows:

    Authority: 42 U.S.C. 6291-6317.

    2. Section 431.63 as proposed on July 25, 2006 (71 FR 42178) is 
further amended by revising paragraphs (b)(2), and (c)(2)(ii) to read 
as follows:

Test Procedures


Sec.  431.63  Materials incorporated by reference.

* * * * *
    (b) * * *
    (2) American National Standards Institute (ANSI)/Association of 
Home Appliance Manufacturers (AHAM) Standard HRF1-2004, ``Energy, 
Performance and Capacity of Household Refrigerators, Refrigerator-
Freezers and Freezers.''
* * * * *
    (c) * * *
    (2) * * *
    (ii) Anyone can purchase a copy of ANSI/AHAM HRF1-2004, ``Energy, 
Performance and Capacity of Household Refrigerators, Refrigerator-
Freezers and Freezers,'' from the American National Standards 
Institute, 1819 L Street, NW., 6th floor, Washington, DC 20036, (202) 
293-8020, or http://www.ansi.org.
* * * * *
    3. Section 431.64 as proposed on July 25, 2006 (71 FR 42178) is 
further amended by revising paragraph (b)(4) to read as follows:


Sec.  431.64  Uniform test method for the measurement of energy 
consumption of commercial refrigerators, freezers, and refrigerator-
freezers.

* * * * *
    (b) * * *
    (4) Determine the volume of each covered commercial refrigerator, 
freezer, or refrigerator-freezer using the methodology set forth in the 
ANSI/AHAM HRF1-2004, Sec.  3.21, Sec. Sec.  4.1 through 4.3, and 
Sec. Sec.  5.1 through 5.3.
    4. Section 431.293 as proposed on July 25, 2006 (71 FR 42178) is 
further amended by revising paragraphs (b), (c)(2) and by adding a new 
(c)(3) to read as follows:

Subpart Q--Refrigerated Bottled or Canned Beverage Vending Machines

Test Procedures


Sec.  431.293  Materials incorporated by reference.

* * * * *
    (b) Test procedures incorporated by reference.
    (1) American National Standards Institute (ANSI)/American Society 
of Heating, Refrigerating and Air-Conditioning Engineers, Inc. (ASHRAE) 
Standard 32.1-2004, ``Methods of Testing for Rating Vending Machines 
for Bottled, Canned, and Other Sealed Beverages.''
    (2) American National Standards Institute (ANSI)/Association of 
Home Appliance Manufacturers (AHAM) Standard HRF1-2004, ``Energy, 
Performance and Capacity of Household Refrigerators, Refrigerator-
Freezers and Freezers.''
    (c) * * *
    (2) Obtaining copies of standards. (i) Anyone can purchase a copy 
of ANSI/ASHRAE Standard 32.1-2004 from the American Society of Heating, 
Refrigerating and Air-Conditioning Engineers, Inc., 1791 Tullie Circle 
NE., Atlanta, GA 30329-2305, (404) 636-8400, or http://www.ashrae.org.
    (3) Anyone can purchase a copy of ANSI/AHAM HRF1-2004, ``Energy, 
Performance and Capacity of Household Refrigerators, Refrigerator-
Freezers and Freezers,'' from the American National Standards 
Institute, 1819 L Street, NW., 6th floor, Washington, DC 20036, (202) 
293-8020, or http://www.ansi.org.
    5. Section 431.294 as proposed on July 25, 2006 (71 FR 42178) is 
further amended by revising paragraph (b) to read as follows:


Sec.  431.294  Uniform test method for the measurement of energy 
consumption of refrigerated bottled or canned beverage vending 
machines.

* * * * *
    (b) Testing and Calculations. (1) The test procedure for energy 
consumption of refrigerated bottled or canned beverage vending machines 
shall be conducted in accordance with the test procedures specified in 
section 4, ``Instruments,'' the second paragraph of section 5, 
``Vending Machine Capacity,'' section 6, ``Test Conditions,'' and 
Sec. Sec.  7.1 through 7.2.3.2, under ``Test Procedures,'' of ANSI/
ASHRAE Standard 32.1-2004, ``Methods of

[[Page 58314]]

Testing for Rating Vending Machines for Bottled, Canned, and Other 
Sealed Beverages.''
    (2) Determine ``vendible capacity'' of refrigerated bottled or 
canned beverage vending machines in accordance with the second 
paragraph of section 5, ``Vending Machine Capacity,'' of ANSI/ASHRAE 
Standard 32.1-2004, ``Methods of Testing for Rating Vending Machines 
for Bottled, Canned, and Other Sealed Beverages,'' and measure 
``refrigerated volume'' of refrigerated bottled or canned beverage 
vending machines in accordance with the methodology specified in Sec.  
5.2 (excluding subsections 5.2.2.2 through 5.2.2.4) of the ANSI/AHAM 
HRF1-2004, ``Energy, Performance and Capacity of Household 
Refrigerators, Refrigerator-Freezers and Freezers.''
* * * * *
[FR Doc. 06-8432 Filed 9-28-06; 3:20 pm]
BILLING CODE 6450-01-P