Energy Conservation Program for Consumer Products: Amendment to the Definition of “Electric Refrigerator”

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The Department of Energy (DOE or Department) is amending the definition of Electric refrigerator in its energy conservation program regulations to include a maximum temperature of the fresh food storage compartment, and to exclude certain appliances whose physical configuration makes them unsuitable for general storage of perishable foods.

EFFECTIVE DATE:

December 19, 2001.

FOR FURTHER INFORMATION CONTACT:

Michael G. Raymond, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Forrestal Building, Mail Station EE-43, 1000 Independence Avenue, SW, Washington, DC 20585-0121, phone (202) 586-9611 or by e-mail at michael.raymond@ee.doe.gov.

Francine Pinto, U.S. Department of Energy, Office of General Counsel, Forrestal Building, Mail Station GC-72, 1000 Independence Avenue, SW, Washington, DC 20585, phone (202) 586-7432.

SUPPLEMENTARY INFORMATION:

I. Background and Introduction

DOE received requests from several manufacturers of wine coolers, including Danby Products, Ltd. and the Witt Company, seeking exemptions from the refrigerator energy efficiency standards for wine coolers. These products are configured with special storage racks for wine bottles and in general do not attain as low a storage temperature as a standard refrigerator. These characteristics make them unsuitable for general long-term storage of perishable foods. Wine coolers also have glass front doors which makes them less energy efficient than standard refrigerators.

On July 13, 1999, DOE published a Notice of Proposed Rulemaking (NOPR) to amend the definition of the term “electric refrigerator.” 64 FR 37706. The Department proposed to amend the definition of electric refrigerator at 10 CFR 430.2 to exclude wine coolers from coverage by the energy efficiency regulations. Sales of these products are small and excluding them from coverage would not have any significant impacts.

DOE proposed to exclude wine coolers by including an upper temperature limit in the definition of electric refrigerator. The refrigerator definition contains the phrase “designed for the refrigerated storage of food at temperatures above 32° F.” Clearly, not all temperatures above 32° F would be suitable for the refrigerated storage of food. What is lacking in the definition is a temperature range suitable for food storage for a reasonable length of time. The “American National Standard—Household Refrigerators/Household Freezers,” ANSI/AHAM HRF-1-1988, Section 7.6.5.1, “Recommended Level of Performance” states: “It is recommended that in the fresh food compartment of household refrigerators, an average temperature within the range of 34° F and 41° F be attainable between the coldest and warmest settings of the controls. * * *” Also, from the same paragraph, “Refrigerator-freezer design and development engineers believe 41° F to be a very practical but not absolute upper limit.”

Accordingly, the Department proposed to change the definition of a refrigerator to include the 41° F upper limit, and to exclude refrigerators containing special storage racks only. By the proposed definition, appliances which, at the coldest setting of the controls, could not attain a fresh food compartment temperature below 41° F, and contained only special-purpose storage racks, would not be considered a refrigerator and, therefore, not a covered product. The definition proposed by the Department was:

“Electric refrigerator means a cabinet designed for the refrigerated storage of food at temperatures above 32° F and below 41° F, configured for general refrigerated food storage, and having a source of refrigeration requiring single phase, alternating current electric energy input only. An electric refrigerator may include a compartment for the freezing and storage of food at temperatures below 32° F, but does not provide a separate low temperature compartment designed for the freezing and storage of food at temperatures below 8° F.”

II. Discussion

In response to the July 13, 1999, NOPR, the Department received two comments. The Association of Home Appliance Manufacturers (AHAM) supported the proposed rule, but recommended that the upper temperature limit be lowered from 41° F to 38° F. AHAM stated “this revision is necessary to accommodate the temperatures needed for champagne and other sparkling wines and to avoid unnecessary government imposed limits on technological and commercial development. 38° F also is the rating point for an “all-refrigerator” and, therefore, using that limit sets the appropriate divider.” The Sub-Zero Freezer Company also recommended lowering the upper temperature limit from 41° F to 38° F.

As AHAM and Sub-Zero stated, 38° F is the rating point for the all-refrigerator in the DOE test procedure. It is also the rating point for variable defrost control refrigerators. The purpose of the revised definition of an electric refrigerator is to exclude wine coolers, not all-refrigerators or variable defrost control refrigerators. For this reason, the Department does not want to set the upper limit temperature at 38° F. In order to accommodate concerns about temperatures for the storage of champagne and sparkling wines, we have decided to lower the defined upper temperature limit from 41° F to 39° F. The Department today revises the definition of an electric refrigerator (10 CFR Part 430.2 Definitions), as follows: Electric refrigerator means a cabinet designed for the refrigerated storage of food at temperatures above 32° F and below 39° F, configured for general refrigerated food storage, and having a source of refrigeration requiring single phase, alternating current electric energy input only. An electric refrigerator may include a compartment for the freezing and storage of food at temperatures below 32° F, but does not provide a separate low temperature compartment designed for the freezing and storage of food at temperatures below 8° F.

III. Procedural Issues and Regulatory Review

A. Review Under the National Environmental Policy Act

The Department has reviewed this rule under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of the Council on Environmental Quality, 40 CFR parts 1500-1508, the Department's regulations for compliance with NEPA, 10 CFR part 1021, and the Secretarial Policy on the National Environmental Policy Act (June 1994). DOE has concluded that this rule is covered under the Categorical Exclusion in paragraph A5 to subpart D, 10 CFR part 1021, which applies to rulemakings that interpret or amend an existing regulation without changing the environmental effect of the regulation. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

B. Review Under Executive Order 12866, “Regulatory Planning and Review”

This regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs in the Office of Management and Budget.

C. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601, requires an assessment of the impact of regulations on small businesses. Small businesses are those firms within an industry that are privately owned and less dominant in the market and that meet the size standards for small concerns promulgated by the Small Business Administration. A regulatory flexibility analysis examines the impact of the rule on small entities and considers alternative ways of reducing negative impacts. The regulatory flexibility analysis requirement does not apply if the head of an agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605. Today's final rule redefines the term “electric refrigerator” to exclude wine coolers. This change to the definition was requested by small manufacturers of wine coolers for their benefit, and no negative impact on any small manufacturer is foreseen. Accordingly, DOE certifies that this rule will not have a significant economic impact on a substantial number of small entities.

D. Review Under the Paperwork Reduction Act

No new information or record keeping requirements are imposed by this rulemaking. Accordingly, no Office of Management and Budget clearance is required under the Paperwork Reduction Act. 44 U.S.C. 3501 et seq.

E. 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 Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), 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 section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE reviewed today's final rule under the standards of section 3 of the Executive Order and determined that, to the extent permitted by law, the final regulations meet the relevant standards.

F. “Takings” Assessment Review

DOE has determined pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 52 FR 8859 (March 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the United States Constitution.

G. Review Under Executive Order 13132

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. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. Agencies also must have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. DOE published its intergovernmental consultation policy on March 14, 2000. (65 FR 13735). Today's final rule only changes the definition of an electric refrigerator and it would 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.

H. Review Under the Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4 (“Unfunded Mandates Act”) requires that the Department prepare an assessment of costs and benefits before promulgating a rule that includes a Federal mandate that may result in expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. The written assessment must include: (i) Identification of the Federal law under which the rule is promulgated; (ii) a qualitative and quantitative assessment of anticipated costs and benefits of the Federal mandate and an analysis of the extent to which such costs to state, local, and tribal governments may be paid with Federal financial assistance; (iii) if feasible, estimates of the future compliance costs and of any disproportionate budgetary effects the mandate has on particular regions, communities, non-Federal units of government, or sectors of the economy; (iv) if feasible, estimates of the effect on the national economy; and (v) a description of the Department's prior consultation with elected representatives of state, local, and tribal governments and a summary and evaluation of the comments and concerns presented. The Department has determined that today's final rule does not include a Federal mandate that may result in estimated costs of $100 million or more to state, local or to tribal governments in the aggregate or to the private sector. Therefore, the requirements of Sections 203 and 204 of the Unfunded Mandates Act do not apply to this action.

I. Review Under the Treasury and General Government Appropriations Act of 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. No. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. Today's final rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

J. Review Under Executive Order 13211

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), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to the 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 of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

Today's final rule will not have a significant adverse effect on the supply, distribution, or the use of energy, and, therefore, is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Congressional Notification

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 430

• Administrative practice and procedure
• Energy conservation
• Household appliances

For the reasons set forth in the preamble, Part 430 of Chapter II of Title 10, Code of Federal Regulations, is amended as set forth below.

PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

1. The authority citation for Part 430 continues to read as follows:

Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

2. Section 430.2 is amended by revising the definition for Electric refrigerator to read as follows: