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###### Department of Energy

          - 10 CFR Parts 429 and 431
          - [Docket No. EERE-2011-BT-CE-0050]
          - RIN 1904-AC58

# AGENCY:

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

# ACTION:

Notice of Proposed Rulemaking (NOPR).

# SUMMARY:

This document clarifies the compliance date by which manufacturers must begin to use portions of a recently promulgated test procedure (i.e., the April 15, 2011 final rule) when certifying walk-in coolers and walk-in freezers. This document also proposes regulatory text changes to reflect U.S. Department of Energy's (DOE) intent that only manufacturers of components of walk-in coolers and walk-in freezers are required to submit certification reports. Additionally, the NOPR proposes clarifications as to the types of test data needed to support the certification of compliance per DOE's existing test procedures for walk-in coolers and walk-in freezers and the recently promulgated test procedure for this equipment. Finally, this document proposes to extend the compliance date for certification of metal halide lamp ballasts and fixtures.

# DATES:

DOE will accept comments, data, and information regarding the notice of proposed rulemaking (NOPR) postmarked no later than August 30, 2011. See section III, “Public Participation,” for details.

# ADDRESSES:

Any comments submitted must identify the NOPR for walk-in coolers and walk-in freezers and metal halide lamp ballasts and fixtures by providing the docket number EERE-2011-BT-CE-0050 and/or RIN number 1904-AC58. Comments may be submitted using any of the following methods:
      -  Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.                    
      -  E-mail: WICF-MHL-2011-CE-0050@ee.doe.gov.                          Include docket number EERE-2011-BT-CE-0050 and/or RIN 1904-AC58 in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file format and avoid the use of special characters or any form of encryption.                    
      -  Postal Mail:                          Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121.                          Telephone:                          (202) 586-2945. Please submit one signed original paper copy.                    
      -  Hand Delivery/Courier:                          Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza, SW., 6th Floor, Washington, DC 20024. Please submit one signed original paper copy.                    

*Docket:*                         For access to the docket to read background documents or comments received, visit the U.S. Department of Energy, Resource Room of the Building Technologies Program, 950 L'Enfant Plaza, SW., 6th Floor, Washington, DC 20024, (202) 586-2945, between 9 a.m. and 4 p.m. Monday                               ( print page 48746)                            through Friday, except Federal holidays. Please call Ms. Brenda Edwards at the above telephone number for additional information regarding visiting the Resource Room. Please note: DOE's Freedom of Information Reading Room (Room 1E-190 at the Forrestal Building) no longer houses rulemaking materials.                    

# FOR FURTHER INFORMATION CONTACT:

                        Ms. Ashley Armstrong, 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.                         *E-mail: Ashley.Armstrong@ee.doe.gov.*

                        In the Office of the General Counsel, contact Ms. Laura Barhydt, U.S. Department of Energy, Office of the General Counsel, GC-32, 1000 Independence Avenue, SW., Washington, DC 20585-0121.                         *Telephone:*                         (202) 287-5772.                         *E-mail:**Laura.Barhydt@hq.doe.gov*.                    

# SUPPLEMENTARY INFORMATION:

## I. Background

The Energy Policy and Conservation Act (EPCA), as amended by section 312(c) of the Energy Independence and Security Act (EISA 2007), requires the DOE to prescribe a test procedure to measure the energy use of walk-in coolers and freezers (collectively, walk-ins). See 42 U.S.C. 6314(a). DOE recently satisfied this requirement by issuing a final rule establishing a test procedure for manufacturers to use when measuring the energy use or energy efficiency of certain walk-in components: panels, non-display doors, display doors, and refrigeration systems. See 76 FR 21580 (April 15, 2011) (final rule prescribing walk-in test procedures) and 76 FR 33631 (June 9, 2011) (notice containing corrected formulas).

                    Since the publication of that rulemaking, DOE recognized a need to clarify the date by which manufacturers must begin using the test procedure. The                     **SUMMARY**                     and                     **DATES**                     sections of the preamble text to the final rule stated that the test procedures will be mandatory for making representations of energy usage or energy efficiency starting October 12, 2011; that is, 180 days after publication of the test procedure final rule. In this notice, DOE proposes to add regulatory text to clarify that the compliance date for using the test procedure for certifications of compliance is the same as the date for compliance with the energy conservation standards currently under development. DOE plans to issue the final rule by 2012 and manufacturers must comply with these standards within three years of publication of the final rule. DOE may also provide for a delayed effective date if the Secretary determines this three-year period is inadequate. (42 U.S.C. 6313(f)(4)(B)) DOE is also proposing to add regulatory text to clarify that only component manufacturers are required to submit certifications of compliance with the current standards.                

## II. Need for Clarification

DOE is publishing this notice to address questions from walk-in manufacturers regarding how to comply with their certification requirements under 10 CFR part 429, subpart B and Appendix A, which collectively prescribe the process for manufacturers to follow when certifying their commercial equipment as compliant under the relevant energy conservation standards. DOE recently indicated that walk-in manufacturers must comply with these requirements starting on October 1, 2011. 76 FR 38287, 38292 (June 30, 2011). EPCA, through amendments established by the Energy Independence and Security Act of 2007, Pub. L. 140-110 (Dec. 19, 2007) (EISA 2007), specified a test procedure that must be followed when determining the insulation value of the insulating foam used in walk-in applications, and manufacturers have raised questions as to whether they should continue using these procedures when certifying their equipment or use the new procedures that DOE promulgated in April 2011.

EISA 2007 prescribed several design requirements for walk-ins and specified that the R value (a representation of the thermal insulating characteristics of insulating foam) shall be the 1/K factor multiplied by the thickness of the panel, and the K factor shall be based on ASTM test procedure C518-2004. EPCA also prescribed certain temperature conditions for calculating the R value. (42 U.S.C. 6314(a)(9)(A)) Since 2009, these design requirements and test procedure provisions currently apply to all newly manufactured walk-ins. See 42 U.S.C. 6314(a)(9). See also 10 CFR Part 431.306(a)-(b) and 10 CFR 304(b)(1)-(4).

In addition to the above provisions, EPCA requires that DOE issue a test procedure for walk-ins. See 42 U.S.C. 6314(a)(9)(b). As noted above, DOE complied with that requirement by publishing a final rule prescribing a test procedure that covers the various key components comprising a walk-in. See 76 FR 21580 and 76 FR 33631.

Although the April 2011 test procedure continues to remain effective under today's proposal, the procedure prescribed by the EISA 2007 amendments must continue to be used by manufacturers for certification purposes. At this time, the statutorily-prescribed procedure for determining an R value must also continue to be used when making representations regarding the energy-related performance of the relevant walk-in components. To the extent that a manufacturer chooses to make representations regarding the energy-related performance of the relevant walk-in components beyond the R-value of the foam used in panels, the April 2011 test procedure must be used for those representations. Once energy conservation standards that are performance based are established in 2012 for walk-in equipment, manufacturers must exclusively use the April 2011 test procedure when certifying their components as well as when making representations regarding that equipment's energy-related performance.

To clarify walk-in manufacturer responsibilities, DOE is proposing to add regulatory text to specify when the current and new test procedures must be used. DOE is also proposing additional language to clarify when tests must be performed on walk-in panels and when tests may be performed on insulation foam used in the construction of panels, but that has not yet been incorporated into a walk-in panel. DOE invites comment on its proposed resolution to this issue. Finally, DOE is also clarifying that manufacturers are not and will not be required to test non-foam members and/or edge regions using the ASTM C518 test procedure prescribed in EPCA. Non-foam members and edge regions are only considered in the U-factor testing using ASTM C1363, which is part of the new DOE test procedures.

In addition, DOE's recent certification, compliance and enforcement rulemaking indicated that only manufacturers of walk-in cooler and freezer components are required to submit certification reports. 76 FR 38287, 38292 (June 30, 2011). As such, DOE is proposing to add regulatory text to clarify that the WICF component manufacturers are the entities responsible for certifying compliance to the Department.

                    Finally, DOE's recent certification, compliance and enforcement rulemaking extended the compliance dates for certification of several types of commercial equipment. 76 FR 38287, 38292. Specifically, DOE extended the certification compliance date for manufacturers of metal halide lamp fixtures to October 1, 2011. Since the issuance of the final rule, additional information has come to the attention of the DOE regarding a lack of sufficient                           ( print page 48747)                        test data to support certification on the full sample required by DOE's regulations. To provide parity with similarly situated manufacturers of other types of commercial equipment, DOE is proposing to extend the certification compliance date further for manufacturers of metal halide lamp fixtures, requiring submittal of a certification report no later than 1 year following publication of a final rule.                

## III. Public Participation

                    DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the                     **DATES**                     section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the                     **ADDRESSES**                     section at the beginning of this notice.                

### Submitting Comments via www.regulations.gov

The regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

                    Do not submit to                     *http://www.regulations.gov*                     information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through                     *www.regulations.gov*                     cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section below.                

                    DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that                     *www.regulations.gov*                     provides after you have successfully uploaded your comment.                

### Submitting Comments via E-mail, Hand Delivery/Courier, or Mail

                    Comments and documents submitted via email, hand delivery, or mail also will be posted to                     *www.regulations.gov.*                     If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.                

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

### Campaign Form Letters

Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

### Confidential Business Information

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 via email, postal mail, or hand delivery/courier two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about 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 by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result 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.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

## IV. Procedural Issues and Regulatory Review

### A. Review Under Executive Order 12866

This proposed rule has been determined not to be a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, this 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.*) requires preparation of an initial regulatory flexibility analysis (IRFA) 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. 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,                           ( print page 48748)                        2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site:                     *http://www.gc.doe.gov*.                

DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This proposed rule would merely extend the compliance date of a rulemaking already promulgated. To the extent such action has any economic impact it would be positive in that it would allow regulated parties additional time to come into compliance. DOE did undertake a full regulatory flexibility analysis of the original test procedures rulemaking. That analysis considered the impacts of that rulemaking on small entities. As a result, DOE certifies that, if adopted, this proposed rule, which would clarify the application of the test procedures, would not have a significant economic impact on a substantial number of small entities.

### C. Review Under the National Environmental Policy Act

                    DOE 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 DOE's implementing regulations at 10 CFR part 1021. Specifically, this rule amends an existing rule without changing its environmental effect and, therefore, is covered by the Categorical Exclusion in 10 CFR part 1021, subpart D, paragraph A5. Accordingly, neither an environmental assessment nor an environmental impact statement is required.                

## V. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of today's NOPR.

# List of Subjects

### 10 CFR Part 429

      - Energy conservation
      - Household appliances
      - Reporting and recordkeeping requirements

### 10 CFR Part 431

      - Administrative practice and procedure
      - Energy conservation
      - Reporting and recordkeeping requirements

Issued in Washington, DC on August 2, 2011.

Kathleen B. Hogan,

Deputy Assistant Secretary for Energy Efficiency, Office of Technology Development, Energy Efficiency and Renewable Energy.

For the reasons set forth in the preamble, DOE proposes to amend parts 429 and 431 of chapter II of title 10 of the Code of Federal Regulations to read as follows:

# PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT

1. The authority citation for Part 429 continues to read as follows:

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

2. Revise § 429.12(i)(6) to read as follows:

§ 429.12 

* * * * *

(i) * * *

                            (6) Metal halide lamp ballasts and fixtures, [insert date 1 year after date of publication of the final rule in the                             **Federal Register**                            ].                        

3. Revise § 429.53(b) to read as follows:

§ 429.53 

* * * * *

                            (b)                             *Certification reports.*                             (1) The requirements of § 429.12 are applicable to manufacturers of components of walk-in coolers and freezers (WICFs), except that paragraph § 429.12(b)(6) applies to the certified component; and                        

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) For WICF doors: The door type, R-value of the door insulation, and a declaration that the manufacturer has incorporated the applicable design requirements. In addition, for those WICFs with transparent reach-in doors and windows: The glass type of the doors and windows (e.g., double-pane with heat reflective treatment, triple-pane glass with gas fill), and the power draw of the antisweat heater in watts.

(ii) For WICF panels: The R-value of the insulation (except for glazed portions of the doors or structural members).

(iii) For WICF fan motors: The motor purpose (i.e., evaporator fan motor or condenser fan motor), the horsepower, and a declaration that the manufacturer has incorporated the applicable design requirements.

(iv) For WICF lighting: The efficacy of the lighting including ballast losses, and a declaration that the manufacturer has incorporated the applicable design requirements.

# PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT

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

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

5. Section 431.304 is amended by:

a. Redesignating paragraph (b) as paragraph (c) and adding a new paragraph (b); and

b. Adding in newly redesignated paragraph (c), new introductory text prior to paragraph (c)(1); and adding a new sentence at the end of paragraph (c)(5). The additions read as follows:

§ 431.304 

* * * * *

                            (b)                             *Testing and Calculations for Panels.*                             Manufacturers shall use this paragraph (b) for the purposes of certifying compliance with the applicable energy conservation standards and making representations of the R-value of panels until January 1, 2015.                        

(1) The R value shall be the 1/K factor multiplied by the thickness of the panel.

(2) The K factor shall be based on ASTM C518 (incorporated by reference; see § 431.303).

(3) For calculating the R value for freezers, the K factor of the foam at 20 degrees Fahrenheit (average foam temperature) shall be used.

(4) For calculating the R value for coolers, the K factor of the foam at 55 degrees Fahrenheit (average foam temperature) shall be used.

(5) Foam shall be tested after it is produced in its final chemical form. Foam produced inside of a panel (“foam-in-place”) must be tested in its final foamed state and must not include any structural members or non-foam materials other than the panel's protective skins or facers. A test sample less than or equal to 4 inches thick must be taken from the center of the foam-in-place panels. Foam produced as board stock may be tested prior to its incorporation into a final panel.

(6) Manufacturers are not required to consider non-foam member and/or edge regions in ASTM C518 testing.

                            (c)                             *Testing and Calculations.*                             Manufacturers shall use this paragraph (c) for any representations of energy efficiency/energy use (other than the R-                                  ( print page 48749)                                value of a panel) starting on October 12, 2011. Manufacturers shall use this paragraph (c) for the purposes of certifying compliance with the applicable energy conservation standards and for all representations of energy efficiency/energy use starting on January 1, 2015.                        

* * * * *

(5) * * * Testing must be performed on a completed panel; foam may not be used for the test sample.

* * * * *

[FR Doc. 2011-20114 Filed 8-8-11; 8:45 am]

BILLING CODE 6450-01-P