[6450-01-P] DEPARTMENT OF ENERGY 10 CFR Parts 429 and 431 [Docket No. EERE-2011-BT-CE-0050] RIN: 1904-AC58

Energy Conservation Program: Compliance Date Regarding the Test Procedures for Walk-In Coolers and Freezers and the Certif ication for Metal Halide Lamp Ballasts and Fixtures

AGENCY: Office of Energy Efficiency and Re newable 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 pr ocedure (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 Ener gy’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 clarif ications as to the types of te st data needed to support the certification of compliance per DOE’s existing test procedures for walk-i n coolers and walk-in freezers and the recently promulgated test procedur e for this equipment. Finally, this document

1proposes to extend the compliance date for cer tification of metal ha lide lamp ballasts and fixtures.

DATES: DOE will accept comments, data, and info rmation regarding the notice of proposed rulemaking (NOPR) postmarked no later than [ INSERT DATE 21 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER ]. 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 ballast s and fixtures by providi ng 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.re gulations.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 Independen ce Avenue, SW., Washington, DC 20585

- 0121. Telephone: (202) 586-2945. Please submit one signed original paper copy.

2 Hand Delivery/Courier : Ms. Br enda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L’Enfant Plaza, SW., 6 th Floor, Washington, DC 20024. Please submit one signed original paper copy.

Docket : For access to the docket to read backgrou nd 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 9:00 a.m. and 4:00 p.m. Monday through Friday, except Federal holidays. Please call Ms. Brenda Edwards at the above telephone number for additional inform ation regarding visiting the Resource Room. Please note: DOE’s Freedom of Information R eading 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 Rene wable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW ., Washington, DC 20585-0121. E-mail: Ashley.Armstrong@ee.doe.gov

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In the Office of the General Counsel, contac t 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

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3SUPPLEMENTARY INFORMATION: I. Background The Energy Policy and Conservation Act (E PCA), as amended by section 312(c) of the Energy Independence and Security Act (EISA 20 07), 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 sa tisfied this requirement by issu ing a final rule establishing a test procedure for manufacturers to use when me asuring the energy use or energy efficiency of certain walk-in components: pane ls, 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 contai ning corrected formulas).

Since the publication of that rulemaking, DOE recognized a need to clarify the date by which manufacturers must begin using the test proce dure. 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 effici ency starting October 12, 2011; that is, 180 days after publication of the test procedure final rule. In this notice, DOE prop oses to add regulatory text to clarify that the compliance date for using the test procedur e for certifications of compliance is the same as the date for compliance with the energy conservation standards currently under development. DO E plans to issue the final ru le 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 determin es 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

4only component manufacturers are required to submit certifications of compliance with the current standards.

II. Need for Clarification DOE is publishing this notice to address quest ions from walk-in manufacturers regarding how to comply with their cer tification 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 co mpliant 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 Indepe ndence and Security Act of 2007, Pub. L. 140-110 (Dec. 19, 2007) (EISA 2007), specified a test procedur e 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 requireme nts 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 pr escribed certain temperature conditions for calculating the R value. (42 U.S.C. 6314(a)(9)(A)) Since 2009, th ese 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).

5In 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 proc edure that covers the various key components comprising a walk-in. See 76 FR 21580 and 76 FR 33631.

Although the April 2011 test procedure cont inues 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 repres entations regarding the energy-related performance of the relevant wa lk-in components. To the extent that a manufacturer chooses to make representations regarding the en ergy-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 representati ons. Once energy conserva tion standards that are performance based are established in 2012 fo r walk-in equipment, manufacturers must exclusively use the April 2011 test procedure when certifying their components as well as when making representations regarding that e quipment’s energy-rela ted performance.

To clarify walk-in manufacturer responsibilities, DOE is pr oposing to add regulatory text to specify when the current and new test pro cedures 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 c onstruction of panels, but that has not yet been incorporated into a walk-in panel. DOE invites comment on its proposed reso lution to this issue.

6Finally, DOE is also clarifying that manufacturer s are not and will not be required to test nonfoam members and/or edge regi ons using the ASTM C518 test pr ocedure prescribed in EPCA. Non-foam members and edge regions are only cons idered in the U-factor testing using ASTM C1363, which is part of the new DOE test procedures

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

Finally, DOE's recent certification, complian ce and enforcement rulemaking extended the compliance dates for certifica tion of several types of comm ercial equipment. 76 FR 38287, 38292. Specifically, DOE extended the certification co mpliance 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 su fficient 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 fo r manufacturers of metal halide lamp fixtures, requiring submittal of a certificati on report no later than 1 year fo llowing publication of a final rule.

7III. Public Participation DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DA TES section at the be ginning of this proposed rule. Interested parties may submit comments, data, and other info rmation 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 represen tative 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 te chnical 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.

8Do not submit to www.regulations.gov informa tion for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (herei nafter referred to as Confidential Business Information (CBI)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website 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, y our comment may not be viewable for up to several weeks. Please keep the comment track ing number that www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, 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 pe rsonal contact informa tion to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Incl ude your first and last names, email address, telephone number, and optional mailing address. Th e cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you s ubmit comments, data, documents, and other information to DOE. If you submit via mail or ha nd delivery/courier, please provide all items on

9a CD, if feasible. It is not n ecessary 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 te xt (ASCII) file format. Provide documents that are not secured, that ar e written in English, a nd 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 th e 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 re duces comment processing and posting time.

Confidential Business Information According to 10 CFR 1004.11, any person submitti ng 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-marke d copies: one copy of the document marked confidential including all the in formation believed to be conf idential, 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 st atus of the information and treat it according to its determination.

10Factors of interest to DOE when evaluati ng requests to treat submitted information as confidential include: (1) A desc ription 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) whethe r the information has previously been made available to others without oblig ation 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 char acter 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 ma y 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 re gulatory action’’ under section 3(f) of Executive Order 12866. Accordingly, this action wa s not subject to review under the Executive Order by the Office of Information a nd 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 prepar ation of an initial regulatory flexibility analysis (IRFA) for any rule that by law must be proposed for public

11comment, unless the agency certifies that the rule , if promulgated, will not have a significant economic impact on a substantial number of small entities. As re quired by Executive Order 13272, ‘‘Proper Consideration of Small Entities in Agency Rulemaking,’’ 67 FR 53461 (August 16, 2002), DOE published procedures and policie s on February 19, 2003, to ensure that the potential impacts of its rules on small ent ities are properly cons idered 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 th e provisions of the Regul atory Flexibility Act and the procedures and policies published on Fe bruary 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 positiv e in that it would allow regulated parties additional time to come into compliance. DOE di d undertake a full regulatory flexibility analysis of the original test procedur es rulemaking. That analysis co nsidered the impacts of that rulemaking on small entities. As a result, DOE cer tifies 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 Enviro nmental 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

12Categorical Exclusion in 10 CF R part 1021, subpart D, paragraph A5. Accordingly, neither an environmental assessment nor an environm ental impact statement is required.

V. Approval of the Office of the Secretary The Secretary of Energy has appr oved publication of today’s NOPR.

List of Subjects in 10 CFR part 429 Energy conservation, Household appliances, Reporting and recordkeeping requirements.

List of Subjects in 10 CFR part 431 Administrative practi ce 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

13For 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, COMP LIANCE, AND EN FORCEMENT FOR CONSUMER PRODUCTS AND COMMERCI AL 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 General requirements applicab le to certification reports.

* * * * *

(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 Walk-in coolers and walk-in freezers.

14* * * * * (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 sh all include the following public productspecific 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 requir ements. In addition, for those WICFs with transparent reach-in doors and wind ows: 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 in sulation (except for glaz ed portions of the doors or structural members) (iii) For WICF fan motors: the motor purpose (i .e., evaporator fan mo tor or condenser fan motor), the horsepower, and a declar ation that the manufacturer ha s incorporated the applicable design requirements. (iv) For WICF lighting: the efficacy of th e lighting including ballast losses, and a declaration that the manufacturer has incorporated the applicable design requirements.

PART 431 -- ENERGY EFFICIENCY PR OGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENT

4. The authority for part 431 continues to read as follows:
15Authority : 42 U.S.C. 6291-6317.

5. Section 431.304 is revised by:

a. Redesignating paragraph (b) as paragra ph (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). Th e additions read as follows:

§ 431.304 Uniform test method for the measurement of energy consumption of walk-in coolers and walk-in freezers.

* * * * *

(b) Testing and Calcula tions for Panels. Manufacturers shall use this paragraph (b) for the purposes of certifying compliance with the app licable energy conservatio n 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 fo r freezers, the K factor of the foam at 20 degrees Fahrenheit (average foam temperature) shall be used.

16(4) For calculating the R value fo r 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 mate rials other than the panel’s prot ective 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.

b. In renumbered paragraph (c), inserting ne w introductory text prio r to subparagraph (1) to read as follows:

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

* * * * *

17(5) * * * Testing must be performed on a comple ted panel; foam may not be used for the test sample.

* * * * *

18