[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Proposed Rules]
[Pages 69147-69154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28928]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket No. EERE-2011-BT-DET-0072]
RIN 1904-AC66


Energy Conservation Program for Consumer Products: Proposed 
Determination To Treat Non-Compressor Residential Refrigeration 
Products as Covered Products

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

ACTION: Proposed determination.

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SUMMARY: The U.S. Department of Energy (DOE) has preliminarily 
determined that residential refrigeration products that do not 
incorporate a compressor qualify as covered products under Part B of 
Title III of the Energy Policy and Conservation Act (EPCA), as amended. 
DOE reached this preliminary conclusion because classifying products of 
such type as covered products is necessary or appropriate to carry out 
the purposes of EPCA, and the average U.S. household energy use for 
such products, (e.g., thermoelectric wine chillers) is likely to exceed 
the 100 kilowatt-hour (kWh) per year threshold required for coverage.

[[Page 69148]]


DATES: DOE will accept written comments, data, and information on this 
notice, but no later than December 8, 2011.

ADDRESSES: Interested persons may submit comments, identified by docket 
number EERE-2011-BT-DET-0072, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov 
Follow the instructions for submitting comments.
     Email: [email protected]. Include EERE-2011-BT-
DET-0072 and/or RIN 1904-AC66 in the subject line of the message.
     Mail: Ms. Brenda Edwards, U.S. Department of Energy, 
Building Technologies Program, Mailstop EE-2J, Proposed Determination 
for Residential Refrigeration Products that do not Incorporate a 
Compressor, EERE-2011-BT-DET-0072 and/or RIN 1904-AC66, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Phone: (202) 586-
2945. Please submit one signed paper original.
     Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy, Building Technologies Program, 6th Floor, 950 L'Enfant 
Plaza, SW., Washington, DC 20024. Phone: (202) 586-2945. Please submit 
one signed paper original.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking.
    Docket: For access to the docket to read background documents or 
comments received, go to the U.S. Department of Energy, 6th Floor, 950 
L'Enfant Plaza, SW., Washington, DC 20024, (202) 586-2945, between 9 
a.m. and 4 p.m., Monday through Friday, except Federal holidays. Please 
call Ms. Brenda Edwards at (202) 586-2945 for additional information 
regarding visiting the Resource Room.

FOR FURTHER INFORMATION CONTACT: Mr. Lucas Adin, 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. Telephone: (202) 287-1317. Email: [email protected].
    In the Office of General Counsel, contact Mr. Michael Kido, U.S. 
Department of Energy, Office of the General Counsel, GC-71, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 
586-8145. Email: [email protected]; or Ms. Jennifer Tiedeman, 
U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 
287-6111. Email: [email protected].

Table of Contents

I. Statutory Authority
II. Current Rulemaking Process
III. Scope of Coverage
IV. Evaluation of the Annual Energy Use of Thermoelectric and 
Absorption Refrigeration Products
    A. Coverage Necessary or Appropriate To Carry Out Purposes of 
EPCA
    B. Average Household Energy Use
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    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
    F. Review Under Executive Order 12988
    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
    J. Review Under the Treasury and General Government 
Appropriations Act of 2001
    K. Review Under Executive Order 13211
    L. Review Under the Information Quality Bulletin for Peer Review
VI. Public Participation
    A. Submission of Comments
    B. Issues on Which DOE Seeks Comments

I. Statutory Authority

    Title III of the Energy Policy and Conservation Act (EPCA), as 
amended (42 U.S.C. 6291 et seq.), sets forth various provisions 
designed to improve energy efficiency. Part B of Title III of EPCA (42 
U.S.C. 6291-6309) established the ``Energy Conservation Program for 
Consumer Products Other Than Automobiles,'' which covers consumer 
products and certain commercial products (hereafter referred to as 
``covered products'').\1\
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    \1\ Upon codification in the U.S. Code, Part B was re-designated 
Part A for editorial reasons.
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    EPCA specifies a list of covered consumer products that includes 
refrigerators, refrigerator-freezers, and freezers (referred to 
collectively as ``residential refrigeration products'') that can be 
operated by alternating current (AC) electricity, are not designed to 
be used without doors, and include a compressor and condenser as an 
integral part of the cabinet assembly. (42 U.S.C. 6292(a)(1)) This 
proposed coverage determination addresses those residential 
refrigeration products that do not meet these specific criteria.
    In addition to specifying a list of covered residential and 
commercial products, EPCA permits the Secretary of Energy to classify 
additional types of consumer products as covered products when certain 
prerequisites have been met. For a given product to be classified as a 
covered product, the Secretary must determine that (1) Covering that 
product is either necessary or appropriate to carry out the purposes of 
EPCA and (2) the average annual per-household energy use by products of 
such type is likely to exceed 100 kWh per year. (42 U.S.C. 6292(b)(1)).
    After first determining whether the above criteria are met, the 
Secretary may prescribe energy conservation standards for a covered 
product. See 42 U.S.C. 6295(o) and (p). In order to set standards for a 
given product that has been added as a newly covered product pursuant 
to 42 U.S.C. 6292(b)(1), the Secretary must determine that four 
additional criteria are met. First, the average per household energy 
use within the United States by the products of such type (or class) 
exceeded 150 kilowatt-hours (or its BTU equivalent) for any 12-month 
period ending before such determination. Second, the aggregate 
household energy use within the United States by products of such type 
(or class) exceeded 4,200,000,000 kilowatt-hours (or its BTU 
equivalent) for any such 12-month period. Third, a substantial 
improvement in the energy efficiency of products of such type (or 
class) is technologically feasible. And fourth, the application of a 
labeling rule under 42 U.S.C. 6294 to such type (or class) is not 
likely to be sufficient to induce manufacturers to produce, and 
consumers and other persons to purchase, covered products of such type 
(or class) that achieve the maximum energy efficiency that is 
technologically feasible and economically justified. (42 U.S.C. 
6295(l)(1)).
    In addition to the above, if DOE issues a final determination that 
non-compressor residential refrigeration products are covered products, 
DOE will consider test procedures for these products and will determine 
if they satisfy the provisions of 42 U.S.C. 6295(l)(1) during the 
course of any energy conservation standards rulemaking.

II. Current Rulemaking Process

    DOE has not previously conducted an energy conservation standard 
rulemaking for non-compressor equipped residential refrigeration 
products. If, after public comment, DOE issues a final determination of 
coverage for this product, DOE will consider both test procedures and 
energy conservation standards for these products.
    Additionally, assuming that DOE determines that the criteria for 
extending coverage to non-compressor

[[Page 69149]]

residential refrigeration products are met and that accompanying energy 
conservation standards are warranted, DOE will, consistent with EPCA, 
propose a test procedure for these products. In developing an 
appropriate procedure, DOE will take steps to help ensure that the 
procedure is not unduly burdensome to conduct for measuring the energy 
efficiency, energy use or estimated annual operating cost of these 
products during a representative average use cycle or period of use. 
(42 U.S.C. 6293(b)(3)) In carrying out this process, DOE initially 
prepares a notice of proposed rulemaking (NOPR) and allows interested 
parties to present oral and written data, views, and arguments with 
respect to such procedures. DOE also considers relevant information, 
including technological developments relating to energy use or energy 
efficiency of the covered products.
    With respect to energy conservation standards, DOE typically 
prepares an Energy Conservation Standards Rulemaking Framework Document 
(the framework document). The framework document explains the issues, 
analyses, and process that it is considering for the development of 
energy conservation standards for the product(s) to be addressed by the 
standard. After DOE receives comments on the framework document, DOE 
typically prepares an Energy Conservation Standards Rulemaking 
preliminary analysis, and an accompanying technical support document 
(TSD) that provides the details of DOE's analysis. The preliminary 
analysis typically provides initial draft analyses of potential impacts 
of energy conservation standards on consumers, manufacturers, and the 
nation. Neither of these steps is legally required and DOE may, 
depending on the circumstances of a particular case, combine these 
steps when preparing a new standards rulemaking.
    DOE also typically publishes a notice of proposed rulemaking (NOPR) 
as part of the energy conservation standards rulemaking. The NOPR 
provides DOE's proposal for potential energy conservation standards and 
a summary of the results of DOE's supporting technical analysis. The 
details of DOE's energy conservation standards analysis are provided in 
an accompanying TSD. DOE's analysis describes both the burdens and 
benefits of potential standards, pursuant to 42 U.S.C. 6295(o). Because 
non-compressor residential refrigeration products would be newly 
covered under 42 U.S.C. 6292(b)(1), DOE would also consider, as noted 
above, whether these products satisfy certain specified criteria before 
prescribing standards for them. See 42 U.S.C. 6295(l)(1). After the 
publication of the NOPR, DOE affords interested persons an opportunity 
during a period of not less than 60 days to provide oral and written 
comment. After receiving and considering the comments on the NOPR, and 
not less than 90 days after the publication of the NOPR, DOE would 
issue the final rule prescribing any new energy conservation standards 
for residential refrigeration products that do not incorporate a 
compressor.

III. Scope of Coverage

    DOE proposes in this determination to extend coverage to 
refrigeration products that are not currently covered under existing 
authority for residential refrigeration products (42 U.S.C. 6292(a)(1)) 
because they use alternative refrigeration technologies that do not 
include a compressor and condenser unit as an integral part of the 
cabinet assembly. Hence, DOE is proposing to extend coverage to those 
residential refrigeration products that operate using AC electricity 
but use either thermoelectric-based or absorption-based systems. In 
addition, while some non-compressor refrigeration products operate 
using energy sources other than AC electricity, it is DOE's 
understanding that most, if not all, of these products would likely 
fall outside the scope of coverage as consumer products under EPCA 
because they are primarily used in mobile applications such as 
recreational vehicles. See 42 U.S.C. 6292(a) (excluding from coverage 
``those consumer products designed solely for use in recreational 
vehicles and other mobile equipment'').
    DOE seeks feedback from interested parties on this scope of 
coverage.

IV. Evaluation of the Annual Energy Use of Thermoelectric and 
Absorption Refrigeration Products

    The following sections describe DOE's evaluation of whether 
residential refrigeration products that do not incorporate a compressor 
fulfill the EPCA criteria for being added as covered products. As 
stated previously, DOE may classify a consumer product as a covered 
product if (1) Classifying products of such type as covered products is 
necessary and appropriate to carry out the purposes of EPCA; and (2) 
the average annual per-household energy use by products of such type is 
likely to exceed 100 kilowatt-hours (or its Btu equivalent) per year. 
42 U.S.C. 6292(b)(1).

A. Coverage Necessary or Appropriate To Carry Out Purposes of EPCA

    To satisfy the purposes of EPCA, the coverage of non-compressor 
residential refrigeration products is both necessary and appropriate to 
carry out the purposes of EPCA. These products consume energy generated 
from limited energy supplies and their regulation would be likely to 
result in the improvement of their energy efficiency. Accordingly, 
establishing standards for these products fall squarely within the 
overall statutory goals set out in EPCA to: (1) Conserve energy 
supplies through energy conservation programs; and (2) provide for 
improved energy efficiency of major appliances and certain other 
consumer products. (42 U.S.C. 6201)
    In a related matter, DOE recently set energy conservation standards 
and accompanying test procedures for residential refrigerators, 
refrigerator-freezers, and freezers (collectively, refrigeration 
products). See 76 FR 57516 (Sept. 15, 2011) (amending energy 
conservation standards for residential refrigeration products) and 75 
FR 78810 (Dec. 16, 2010) (amending current test procedures and issuing 
an interim final rule to create revised test procedures for products 
manufactured starting in 2014). During DOE's efforts to amend the 
standards for these products, interested parties urged DOE to include 
wine chillers as part of this effort. See 75 FR 59470, 59486 (Sept. 27, 
2010) (residential refrigeration products NOPR, noting industry's 
urging that DOE consider wine storage products within the scope of the 
standards rulemaking). Wine chillers are devices used to store bottles 
of wine at temperatures that are higher than those used to store fresh 
food. Wine chillers, which typically use either a conventional 
compressor-condenser or a thermoelectric-based system, have a 
temperature range of between 45 [deg]F and 55 [deg]F, compared to 39 
[deg]F for the safe storage of fresh food used in refrigerators and 
refrigerator-freezers. Given the different purposes served by these 
products and their accompanying performance characteristic differences, 
DOE decided to generally address these wine chiller products in a 
separate rulemaking. 76 FR at 57534.
    Consistent with this approach, DOE is currently considering 
initiating an energy conservation standard rulemaking addressing wine 
chillers. As a prerequisite to the setting of standards for these 
products, DOE is interested in ensuring that both compressor-based and 
non-compressor-based products would be covered as part of this approach 
in order to prevent a mass

[[Page 69150]]

shift in the market from compressor-based to alternative refrigeration 
technologies such as thermoelectric- and absorption-based systems that 
currently fall outside of EPCA's scope of coverage for refrigeration 
products. As explained below, DOE has reason to believe that products 
that use these alternative technologies are less efficient than 
products using conventional compressor-based refrigeration systems. As 
a result, a shift by manufacturers to use these alternative 
technologies could have an adverse impact on overall energy efficiency. 
To address this potential problem, and to provide a more comprehensive 
approach to the treatment of wine chillers generally, DOE seeks to 
establish coverage over products that employ these alternative 
technologies pursuant to the Agency's authority under 42 U.S.C. 
6292(b).
    Available information collected by DOE suggests that products using 
thermoelectric technology will be much less efficient than their 
compressor-equipped counterparts.\2\ DOE is also aware that residential 
refrigeration products using thermoelectric technology have become 
commercially available--particularly, wine chillers. Similarly, a 
limited number of products using absorption technology, which is also 
less energy efficient than compressor-based refrigeration technology, 
are also commercially available. Hence, DOE believes that coverage and 
energy standards for these products are necessary in order to ensure 
that the existing standards for compressor-based refrigeration products 
and potential future standards for compressor-based wine chillers are 
not undermined by a switch to less-efficient technologies.
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    \2\ See, for example, the residential refrigeration product 
energy conservation standard rulemaking TSD, Chapter 4, Screening 
Analysis, http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/refrig_nopr_tsd_2010-09-23.pdf.
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B. Average Household Energy Use

    DOE estimated the average household energy use for two of the 
primary types of residential refrigeration products that do not 
incorporate a compressor--thermoelectric wine chillers and absorption 
refrigeration products.
    Thermoelectric wine chillers incorporate cooling modules that 
utilize the Peltier effect.\3\ DOE obtained limited data to estimate 
their average household energy use and deduced the magnitude of 
thermoelectric wine chiller energy use from a combination of (1) 
Thermoelectric wine chiller market data, (2) energy use data for vapor 
compression (i.e., conventional compressor/condenser-based) wine 
chillers, and (3) thermoelectric module efficiency.
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    \3\ The Peltier effect refers to the creation of a temperature 
differential across a device comprised of two dissimilar electrical 
conductors by passing an electric current through the junction 
between them.
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    To estimate the size of the thermoelectric wine chiller market, DOE 
purchased data on wine chiller sales in the U.S. from 2007 to 2010 from 
the NPD Group, Inc. (NPD), a marketing research firm.\4\ NPD reports 
that these data represent 30- to 45-percent of the total wine chiller 
market, yielding a total estimate of between 580,000 to 880,000 unit 
sales in the U.S. for the year 2009. Unfortunately, the NPD data do not 
differentiate between vapor compression and thermoelectric products. 
Therefore, DOE researched manufacturer product offerings to approximate 
the thermoelectric share of the wine chiller market.
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    \4\ NPD Group, Inc., available at http://www.npd.com/corpServlet?nextpage=corp_welcome.html.
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    Specifically, DOE researched two of the three largest wine chiller 
brands based on sales figures in the NPD database, Haier \5\ and 
Vinotemp,\6\ and determined that 69-percent and 82-percent, 
respectively, of their wine chiller product offerings for capacities of 
fewer than 30 bottles are thermoelectric. Because the NPD data also 
indicate that 80 percent of the wine chiller market is comprised of 
products with capacities of fewer than 30 bottles, DOE surmised that 
thermoelectric wine chillers represent a large fraction of the wine 
chiller market, specifically within the portion of the market comprised 
of products with capacities of fewer than 30 bottles.
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    \5\ Haier America Trading. (http://www.haieramerica.com/wine-beer-beverage).
    \6\ Vinotemp International. (http://www.vinotemp.com/Browse.aspx/387/Wine-Coolers?gclid=CPSvs57hlaoCFQo0QgodCEEOxQ).
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    To estimate vapor compression wine chiller energy use, DOE relied 
on the annual energy use of vapor compression wine chiller products 
permitted under California's maximum energy use standards \7\ as well 
as the NPD sales data cited above. The California Energy Commission 
(CEC) currently specifies a maximum allowable energy use for wine 
chillers as a function of internal volume. From the purchased NPD sales 
data, which cover the years 2007 to 2010, DOE deduced an internal 
volume for each model listed in the database. Using this information, 
DOE developed a range of vapor compression annual energy use values for 
the range of internal volumes of models in the NPD database, assuming 
that the energy use of these products is the maximum allowed by the CEC 
standard. This derived annual energy use ranges from 305 to 392 kWh for 
wine chillers with capacities of fewer than 30 bottles.
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    \7\ California Energy Commission, 2010 Appliance Efficiency 
Regulations, December 2010. CEC-400-2010-012. http://www.energy.ca.gov/2010publications/CEC-400-2010-012/CEC-400-2010-012.PDF.
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    Additionally, during the recent standards rulemaking for 
residential refrigeration products, DOE tested a thermoelectric 
refrigerator. The results from those tests showed that this particular 
product's efficiency was an order of magnitude lower than that of a 
conventional comparable vapor compression product.\8\ These results 
suggest that the energy use of thermoelectric refrigeration products 
could be much higher than that of vapor compression products.
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    \8\ U.S. Department of Energy. Final Rule Technical Support 
Document. 2011. p. 4-12. Available at http://www1.eere.energy.gov/buildings/appliance_standards/pdfs/refrig_finalrule_tsd.pdf.
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    However, because these observations are based on limited testing of 
a single thermoelectric product purchased in 2008, DOE recently 
performed metering of four thermoelectric wine chillers with capacities 
of six, 12, 15, and 28 bottles during the period from May 27, 2011 to 
June 28, 2011. While the metering was conducted in a non-controlled 
ambient environment with room temperatures varying between 
64[emsp14][deg]F and 85[emsp14][deg]F, DOE believed that the additional 
measurements would improve DOE's understanding of typical 
thermoelectric wine chiller energy use, since a greater number of data 
points would be likely to improve the confidence of the measured 
values, because the initial product was not a wine chiller, and because 
thermoelectric refrigeration technology may have evolved in the past 
three years. The measured energy use for the four units over the 
approximately one-month time period varied between 18 to 50 kWh, with 
the high value associated with the 28 bottle capacity wine chiller. 
Assuming wine chillers are powered year-round, i.e., consumers do not 
unplug the units for extended periods of time, the monthly consumption 
translates into annual energy use values of 218 to 598 kWh, which 
closely match the values derived for vapor compression units from the 
NPD and CEC data.
    The limited metered data clearly indicate that thermoelectric wine 
chiller annual energy use exceeds the 100 kWh per year threshold set by 
EPCA for establishing coverage. DOE notes that the range of 
thermoelectric wine chiller energy use based on the metering is

[[Page 69151]]

approximately the same as the derived range for vapor compression wine 
chillers. Although the implication is that thermoelectric units may 
have a level of energy consumption comparable to their vapor 
compression counterparts, DOE emphasizes that the test data are not 
conclusive and a prescribed test procedure to comprehensively measure 
their energy use is currently unavailable. As an example of the 
limitations of the recorded data, the metered tests likely indicate the 
low end of possible energy use because they did not capture the energy 
impacts from door openings, nor did they include steps to verify that 
compartment temperatures were maintained at 55[emsp14][deg]F per CEC 
test procedure requirements. Had these steps been included as part of 
the measurements, the measured energy consumption of the thermoelectric 
products examined by DOE would have likely been significantly higher. 
Consequently, DOE believes that the limited metering data should not be 
the sole basis for estimating energy use for products of this type.
    In contrast with thermoelectric refrigeration products, absorption 
refrigeration products use a fluid-based refrigeration cycle that 
relies upon heat addition, which is typically provided by electric 
resistance heaters or fuels such as natural gas and propane. Such 
systems ``compress'' \9\ the refrigerant, which is typically ammonia, 
using a sorbent fluid, which is typically water.\10\ The refrigerant is 
absorbed by the fluid, creating a liquid solution containing the 
refrigerant. This solution is transferred from the ``low-pressure'' to 
the ``high-pressure'' sides of the system as a liquid, and the 
refrigerant is subsequently boiled out of the solution by heating it. 
Most absorption systems used for small refrigeration products employ an 
inert gas on the low-pressure side of the system, usually hydrogen or 
helium for ammonia-water systems, which allows the partial pressure of 
the refrigerant gas to remain low while boosting the total gas 
pressure. This significantly reduces the total pressure difference 
between the ``high pressure'' and ``low pressure'' sides. The system 
eliminates the expansion valve and replaces the pumping action of a 
mechanical compressor with the thermal siphon driven by the heat input, 
similar to the arrangement used in coffee makers to lift the boiling 
water to the top of the coffee maker. By generating By moving the 
refrigerant from the evaporator back to the condenser using the 
sorbent, an absorption system generates refrigeration using heat input.
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    \9\ ``Compress'' in this context has a different meaning that in 
conventional compressor-based refrigeration products because, for 
the absorption systems in most of these products, the refrigerant is 
moved from a region of low partial pressure to a region of high 
partial pressure rather than actually being compressed.
    \10\ A sorbent fluid is one that absorbs gas of another 
substance (in this case the refrigerant) in an exothermic process 
similar to condensation.
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    Electric-powered absorption units are commonly used by the hotel 
industry since they are much quieter than products with a compressor. 
These products would be part of the coverage determination proposed in 
this notice. Natural gas- or propane-fired absorption units are used 
primarily in mobile applications, remote areas, and mobile residences 
that do not have reliable access to electricity--these products would 
not be part of the coverage determination as proposed. Electric-powered 
absorption products tend to have a fairly significant level of energy 
use. As an example, the energy use of the Dometic CS 52 DV, a 
representative absorption refrigeration wine chiller product, is 
reported by the manufacturer to use 1.25 kWh per day in a 68 [deg]F 
ambient environment,\11\ which translates into an annual energy use of 
456 kWh, assuming these products are powered year-round. Very small (< 
1.5 cubic foot) absorption-cooled refrigerators provided by hotels for 
their guests use approximately 310 kWh/yr as reported by the 
manufacturer, or up to 530 kWh/yr in limited field 
testing.12 13 DOE seeks comment on the market share and 
penetration of all absorption refrigeration products. DOE also seeks 
comment on whether coverage should also be considered for fuel-fired 
units.
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    \11\ Dometic Corporation. (https://www.dometic.com/enus/Americas/USA/Hotel-Equipment/Wine-Cellars/products/?productdataid=68705).
    \12\ The Bartender AMB-302 1.1 cu. ft. refrigerator is reported 
to consume 840 Wh per day, or 307 kWh/yr (http://www.atlanticminifridge.com/Brochures/AMF_Minibar_Brochure.pdf).
    \13\ DOE also undertook field monitoring of absorption-cooled 
hotel ``mini'' refrigerators (the Dometic RH 341 LD with 1.4 cu. ft. 
capacity, and the Bartender AMB-302 with 1.1 cu. ft. capacity) in 
two hotels in the San Francisco Bay Area in March-April 2010. A 
total of 48 refrigerators were metered over a period of 
approximately two weeks, resulting in annualized energy use 
measurements from 307 to 528 kWh/yr.
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    Based upon these evaluations of the two primary types of 
residential refrigeration products that do not incorporate a compressor 
(i.e. thermoelectric-based wine chillers and absorption-based 
refrigeration products), DOE has been able to develop estimates of 
their annual energy use that indicate that these products consume 
significantly more than 100 kWh annually. Therefore, DOE has 
tentatively determined that the average annual per household energy use 
for residential refrigeration products that do not incorporate a 
compressor is likely to exceed the 100 kWh threshold set by EPCA.

V. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget has determined that coverage 
determination rulemakings do not constitute ``significant regulatory 
actions'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this 
proposed action was not subject to review under the Executive Order 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., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996) 
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 proposed 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 effects. Also, as required by E.O. 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 impact of its rules on small 
entities are properly considered during the DOE rulemaking process. 68 
FR 7990 (February 19, 2003). DOE makes its procedures and policies 
available on the Office of the General Counsel's Web site at http://www.gc.doe.gov.
    DOE reviewed today's proposed determination under the provisions of 
the Regulatory Flexibility Act and the policies and procedures 
published on February 19, 2003. If adopted, today's proposed 
determination would set no standards; they would only positively 
determine that future standards may be warranted and should be explored 
in an energy conservation standards and test procedure rulemaking. 
Economic impacts on small entities would be considered in the context 
of such rulemakings. On the basis of the

[[Page 69152]]

foregoing, DOE certifies that the proposed determination, if adopted, 
would have no significant economic impact on a substantial number of 
small entities. Accordingly, DOE has not prepared a regulatory 
flexibility analysis for this proposed determination. DOE will transmit 
this certification and supporting statement of factual basis to the 
Chief Counsel for Advocacy of the Small Business Administration for 
review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    This proposed determination that residential refrigeration products 
that do not incorporate a compressor meet the criteria for covered 
products for which the Secretary may prescribe energy conservation 
standards pursuant to 42 U.S.C. 6295(o) and (p) will impose no new 
information or record-keeping requirements. Accordingly, the Office of 
Management and Budget (OMB) 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

    In this notice, DOE proposes to positively determine that future 
standards may be warranted and that environmental impacts should be 
explored in an energy conservation standards rulemaking. DOE has 
determined that review under the National Environmental Policy Act of 
1969 (NEPA), Public Law 91-190, codified at 42 U.S.C. 4321 et seq. is 
not required at this time. NEPA review can only be initiated ``as soon 
as environmental impacts can be meaningfully evaluated'' (10 CFR 
1021.213(b)). This proposed determination would only determine that 
future standards may be warranted, but would not itself propose to set 
any specific standard. DOE has, therefore, determined that there are no 
environmental impacts to be evaluated at this time. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

E. Review Under Executive Order 13132

    Executive Order (E.O.) 13132, ``Federalism'' 64 FR 43255 (August 
10, 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 assess carefully 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 that it will follow in 
developing such regulations. 65 FR 13735 (March 14, 2000). DOE has 
examined today's proposed determination and concludes that it would not 
preempt State law or have substantial direct effects on the States, on 
the relationship between the Federal government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. DOE notes, however, that if the agency determines that 
the products at issue in today's notice are covered and energy 
conservation standards are subsequently promulgated for these products, 
any existing State standards would be preempted by EPCA. EPCA governs 
and prescribes Federal preemption of State regulations as to energy 
conservation for the product that is the subject of today's proposed 
determination. States can petition DOE for exemption from such 
preemption to the extent permitted, and based on criteria, set forth in 
EPCA. (42 U.S.C. 6297) No further action is required by E.O. 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform'' 61 FR 4729 (February 7, 1996), imposes on Federal 
agencies the duty to: (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 E.O. 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation specifies the following: (1) The 
preemptive effect, if any; (2) any effect on existing Federal law or 
regulation; (3) a clear legal standard for affected conduct while 
promoting simplification and burden reduction; (4) the retroactive 
effect, if any; (5) definitions of key terms; and (6) other important 
issues affecting clarity and general draftsmanship under any guidelines 
issued by the Attorney General. Section 3(c) of E.O. 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in sections 3(a) and 3(b) to determine whether these 
standards are met, or whether it is unreasonable to meet one or more of 
them. DOE completed the required review and determined that, to the 
extent permitted by law, this proposed determination meets the relevant 
standards of E.O. 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, codified at 2 U.S.C. 1501 et seq.) requires each Federal 
agency to assess the effects of Federal regulatory actions on State, 
local, and tribal governments and the private sector. For regulatory 
actions 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)) 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.'' 
UMRA also requires an agency plan for giving notice and opportunity for 
timely input to small governments that may be potentially affected 
before establishing any 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 (March 18, 1997). (This policy also is available at http://www.gc.doe.gov). DOE reviewed today's proposed determination pursuant 
to these existing authorities and its policy statement and determined 
that the proposed determination contains neither an intergovernmental 
mandate nor a mandate that may result in the expenditure of $100 
million or more in any year, so the UMRA requirements 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 of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This proposed determination would not have any impact on 
the autonomy or integrity of the family as an institution.

[[Page 69153]]

Accordingly, DOE has concluded that it is not necessary to prepare a 
Family Policymaking Assessment.

I. Review Under Executive Order 12630

    Pursuant to E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights'' 53 FR 8859 (March 15, 
1988), DOE determined that this proposed determination would not result 
in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

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

    The Treasury and General Government Appropriation Act of 2001 (44 
U.S.C. 3516, note) requires agencies to review most disseminations of 
information they make to the public under guidelines established by 
each agency pursuant to general guidelines issued by the Office of 
Management and Budget (OMB). The OMB's guidelines were published at 67 
FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 
FR 62446 (October 7, 2002). DOE has reviewed today's proposed 
determination 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

    E.O. 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 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 promulgates a final rule or is expected to lead to promulgation of 
a final rule, and that: (1) Is a significant regulatory action under 
E.O. 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 the Office of 
Information and Regulatory Affairs (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 if the proposal is implemented, and of reasonable 
alternatives to the proposed action and their expected benefits on 
energy supply, distribution, and use.
    DOE has concluded that today's regulatory action proposing to 
determine that residential refrigeration products that do not 
incorporate a compressor meet the criteria for covered products for 
which the Secretary may prescribe energy conservation standards 
pursuant to 42 U.S.C. 6295(o) and (p) would not have a significant 
adverse effect on the supply, distribution, or use of energy. This 
action is also not a significant regulatory action for purposes of E.O. 
12866, and the OIRA Administrator has not designated this proposed 
determination as a significant energy action. Therefore, this proposed 
determination is not a significant energy action. Accordingly, DOE has 
not prepared a Statement of Energy Effects for this proposed 
determination.

L. Review Under the Information Quality Bulletin for Peer Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (OSTP), issued its Final Information 
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (January 
14, 2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the Bulletin is to enhance the quality and credibility of 
the Government's scientific information. DOE has determined that the 
analyses conducted for this rulemaking do not constitute ``influential 
scientific information,'' which the Bulletin defines as ``scientific 
information the agency reasonably can determine will have or does have 
a clear and substantial impact on important public policies or private 
sector decisions.'' 70 FR 2667 (January 14, 2005). The analyses were 
subject to pre-dissemination review prior to issuance of this 
rulemaking.
    DOE will determine the appropriate level of review that would be 
applicable to any future rulemaking to establish energy conservation 
standards for set-top boxes and network equipment.

VI. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding this 
notice of proposed determination no later than the date provided at the 
beginning of this notice. After the close of the comment period, DOE 
will review the comments received and determine whether residential 
refrigeration products that do not incorporate a compressor are covered 
products under EPCA.
    Comments, data, and information submitted to DOE's email address 
for this proposed determination should be provided in WordPerfect, 
Microsoft Word, PDF, or text (ASCII) file format. Submissions should 
avoid the use of special characters or any form of encryption, and 
wherever possible comments should include the electronic signature of 
the author. 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 should 
have all the information believed to be confidential deleted. DOE will 
make its own determination as to the confidential status of the 
information and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include (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 or available from public sources; (4) whether the 
information has previously been made available to others without 
obligations concerning its confidentiality; (5) an explanation of the 
competitive injury to the submitting persons which would result from 
public disclosure; (6) a date after which such information might no 
longer be considered confidential; and (7) why disclosure of the 
information would be contrary to the public interest.

B. Issues on Which DOE Seeks Comments

    DOE welcomes comments on all aspects of this proposed 
determination. DOE is particularly interested in receiving comments 
from interested parties on the following issues related to the proposed 
determination for residential refrigeration products that do not 
incorporate a compressor:
    (1) Is the proposed scope of coverage for residential refrigeration 
products that do not incorporate a compressor sufficient or are there 
aspects to this proposed scope that require modification?
    (2) Should the scope of coverage be extended to also include 
products that are not powered or activated solely by AC power input, 
for instance products that are fired with natural gas or propane? What 
are the annual shipments of such products?
    (3) DOE notes that since the statutory definition of a refrigerator 
excludes certain products--namely, those devices that are designed to 
be used without doors--DOE is interested in whether its scope of 
coverage should also include products that are designed to be used

[[Page 69154]]

without doors. DOE is also interested in information regarding the 
existence and examples of these types of products. Assuming that these 
types of products exist, what are their annual shipments?
    (4) DOE is interested in whether classifying residential 
refrigeration products that do not incorporate a compressor as covered 
products is necessary or appropriate to carry out the purposes of EPCA.
    (5) DOE seeks stock and shipment data for residential refrigeration 
products that do not incorporate a compressor, segregated by different 
product types.
    (6) DOE seeks information regarding energy test procedures suited 
for residential refrigeration products that do not incorporate a 
compressor.
    (7) DOE seeks information regarding energy use of these products.
    (8) DOE seeks information concerning the extent to which similar 
coverage may be appropriate for commercial or industrial products that 
utilize similar refrigeration technologies.
    (9) DOE seeks calculations and accompanying values for household 
and national energy consumption.
    (10) DOE seeks information as to the availability or lack of 
availability of technologies for improving energy efficiency of 
residential refrigeration products that do not incorporate a 
compressor.
    The Department is interested in receiving views concerning other 
relevant issues that participants believe would affect DOE's ability to 
establish test procedures and energy conservation standards for 
residential refrigeration products that do not incorporate a 
compressor. The Department invites all interested parties to submit in 
writing by December 8, 2011, comments and information on matters 
addressed in this notice and on other matters relevant to consideration 
of a determination for residential refrigeration products that do not 
incorporate a compressor.
    After the expiration of the period for submitting written 
statements, the Department will consider all comments and additional 
information that is obtained from interested parties or through further 
analyses, and it will prepare a final determination. If DOE determines 
that residential refrigeration products that do not incorporate a 
compressor qualify as covered products, DOE will consider initiating 
rulemakings to develop test procedures and energy conservation 
standards for residential refrigeration products that do not 
incorporate a compressor. Members of the public will be given an 
opportunity to submit written and oral comments on any proposed test 
procedure and standards.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on November 1, 2011.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency and Renewable Energy.
[FR Doc. 2011-28928 Filed 11-7-11; 8:45 am]
BILLING CODE 6450-01-P