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.

Proposed Rules Federal Register

58308 

Vol. 71, No. 191 

Tuesday, October 3, 2006 

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. 

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 refrigeratorfreezers. 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_EPACT2005@ee.doe.gov. 

Include EE–RM/TP–05–500 and/or RIN 

1904–AB53 in the subject line of the 

message. 

• Postal Mail: Ms. Brenda EdwardsJones, 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: 

Charles.Llenza@ee.doe.gov, 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: Francine.Pinto@hq.doe.gov. 

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 


ycherry on PROD1PC64 with PROPOSALS
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1Section 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.’’ 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. 

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 refrigeratorfreezers, 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. 

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 


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3Section 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.’’

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) 

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 § 430.32(a) of 10 

CFR Part 430, for residential 

refrigerators, freezers, and refrigeratorfreezers. 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. 

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 


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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 


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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, RefrigeratorFreezers 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 


ycherry on PROD1PC64 with PROPOSALS
Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Proposed Rules 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_ 

EPACT2005@ee.doe.gov. 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 

§ 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: 

§ 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, § 3.21, §§ 4.1 

through 4.3, and §§ 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 

§ 431.293 Materials incorporated by 

reference. 

* * * * * 

(b) Test procedures incorporated by 

reference. 

(1) American National Standards 

Institute (ANSI)/American Society of 

Heating, Refrigerating and AirConditioning 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: 

§ 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 §§ 7.1 

through 7.2.3.2, under ‘‘Test 

Procedures,’’ of ANSI/ASHRAE 

Standard 32.1–2004, ‘‘Methods of 


ycherry on PROD1PC64 with PROPOSALS
58314 Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Proposed Rules 

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 § 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, RefrigeratorFreezers and Freezers.’’

* * * * * 

[FR Doc. 06–8432 Filed 9–28–06; 3:20 pm] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2006–23842; Directorate 

Identifier 2005–NM–145–AD] 

RIN 2120–AA64 

Airworthiness Directives; Boeing 

Model 777–200, 777–300, and 777–

300ER Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Supplemental notice of 

proposed rulemaking (NPRM); 

reopening of comment period. 

SUMMARY: The FAA is revising an earlier 

proposed airworthiness directive (AD) 

for certain Boeing Model 777–200 and 

777–300 series airplanes. The original 

NPRM would have required repetitive 

inspections for discrepancies of the 

splined components that support the 

inboard end of the inboard trailing edge 

flap; related investigative, corrective, 

and other specified actions if necessary; 

a one-time modification of the inboard 

support of the inboard trailing edge flap 

by installing a new isolation strap and 

attachment hardware; and repetitive 

replacement of the torque tube 

assembly. The original NPRM resulted 

from reports of corrosion on the torque 

tube and closeout rib fittings that 

support the inboard end of the inboard 

trailing edge flap, as well as a structural 

reassessment of the torque tube joint 

that revealed the potential for premature 

fatigue cracking of the torque tube that 

would not be detected using reasonable 

inspection methods. This action revises 

the original NPRM by providing the 

terminating action for the repetitive 

inspections of modifying the inboard 

main flap. This action also revises the 

original NPRM by specifying prior or 

concurrent accomplishment, for certain 

Boeing Model 777–200 series airplanes, 

of one-time inspections of the flap seal 

panels for cracking and minimum 

clearances, and of the torque tubes for 

damage; and related investigative and 

corrective actions if necessary. We are 

proposing this supplemental NPRM to 

detect and correct corrosion or cracking 

of the torque tube and closeout rib 

fittings that support the inboard end of 

the inboard trailing edge flap. Cracking 

in these components could lead to a 

fracture, which could result in loss of 

the inboard trailing edge flap and 

consequent reduced controllability of 

the airplane. 

DATES: We must receive comments on 

this supplemental NPRM by October 30, 

2006. 

ADDRESSES: Use one of the following 

addresses to submit comments on this 

supplemental NPRM. 

• DOT Docket Web site: Go to 

http://dms.dot.gov and follow the 

instructions for sending your comments 

electronically. 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

your comments electronically. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590. 

• Fax: (202) 493–2251. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

Contact Boeing Commercial 

Airplanes, P.O. Box 3707, Seattle, 

Washington 98124–2207, for service 

information identified in this proposed 

AD. 

FOR FURTHER INFORMATION CONTACT: Gary 

Oltman, Aerospace Engineer, Airframe 

Branch, ANM–120S, FAA, Seattle 

Aircraft Certification Office, 1601 Lind 

Avenue, SW., Renton, Washington 

98057–3356; telephone (425) 917–6443; 

fax (425) 917–6590. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

We invite you to submit any relevant 

written data, views, or arguments 

regarding this supplemental NPRM. 

Send your comments to an address 

listed in the ADDRESSES section. Include 

the docket number ‘‘Docket No. FAA–

2006–23842; Directorate Identifier 

2005–NM–145–AD’’ at the beginning of 

your comments. We specifically invite 

comments on the overall regulatory, 

economic, environmental, and energy 

aspects of this supplemental NPRM. We 

will consider all comments received by 

the closing date and may amend this 

supplemental NPRM in light of those 

comments. 

We will post all comments submitted, 

without change, to http://dms.dot.gov, 

including any personal information you 

provide. We will also post a report 

summarizing each substantive verbal 

contact with FAA personnel concerning 

this supplemental NPRM. Using the 

search function of that Web site, anyone 

can find and read the comments in any 

of our dockets, including the name of 

the individual who sent the comment 

(or signed the comment on behalf of an 

association, business, labor union, etc.). 

You may review the DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78), or you may visit 

http://dms.dot.gov. 

Examining the Docket 

You may examine the AD docket on 

the Internet at http://dms.dot.gov, or in 

person at the Docket Management 

Facility office between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The Docket 

Management Facility office (telephone 

(800) 647–5227) is located on the plaza 

level in the Nassif Building at the DOT 

street address stated in ADDRESSES. 

Comments will be available in the AD 

docket shortly after the Docket 

Management System receives them. 

Discussion 

We proposed to amend 14 CFR part 

39 with a notice of proposed rulemaking 

(NPRM) for an AD (the ‘‘original 

NPRM’’) for certain Boeing Model 777–

200 and 777–300 series airplanes. The 

original NPRM was published in the 

Federal Register on February 9, 2006 

(71 FR 6687). The original NPRM 

proposed to require repetitive 

inspections for discrepancies of the 

splined components that support the 

inboard end of the inboard trailing edge 

flap; related investigative, corrective, 

and other specified actions if necessary; 

a one-time modification of the inboard 

support of the inboard trailing edge flap 

by installing a new isolation strap and 

attachment hardware; and repetitive 

replacement of the torque tube 

assembly. 


ycherry on PROD1PC64 with PROPOSALS