EE-RM-93-501 COMMENT 116

Tuesday 

October 14, 1997 

Part III 

Department of 

Energy 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 430 

Energy Conservation Program for 

Consumer Products: Test Procedures for 

Furnaces and Boilers; Interim Final Rule 

53507 
 EE-RM-93-501 COMMENT 116

53508 Federal Register / Vol. 62, No. 198 / Tuesday, October 14, 1997 / Rules and Regulations 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 430 

[Docket No. EE-RM-93-501] 

RIN 1904-AA45 

Energy Conservation Program for 

Consumer Products: Test Procedures 

for Furnaces and Boilers 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Interim final rule. 

SUMMARY: The Department of Energy 

(the Department or DOE) is amending a 

provision of its recently promulgated 

final rule that prescribed revised test 

procedures to determine the energy 

efficiency of furnaces and boilers. Under 

today's amendment. the test procedures 

will provide that the flue collector box 

on a furnace or boiler with a power 

burner or draft inducer need not be 

insulated before the start of the cooldown test. 

DATES: This rule is effective November 

10. 1997. Written comments (ten copies) 

in response to this notice must be 

received by November 13. 1997. 

ADDRESSES: Written comments are to be 

submitted to: U.S. Department of 

Energy. Office of Energy Efficiency and 

Renewable Energy. Hearings and 

Dockets. Interim Final Rule for Test 

Procedures for Furnaces and Boilers. 

Docket No. EE-RM-93-501. Forrestal 

Building. 1000 Independence Avenue. 

S.W .. Washington. D.C. 20585. (202) 

586-7574. 

Copies of the public comments 

received may be read at the Department 

of Energy Freedom of Information 

Reading Room. Forrestal Building. 

Room lE-190. 1000 Independence 

Avenue. S.W .. Washington. DC 20585. 

(202) 586-6020 between the hours of 9 

a.m. and 4 p.m.. Monday through 

Friday. except Federal holidays. 

For more information concerning 

public participation in this rulemaking 

proceeding. see Section IV. "Public 

Comment." of SUPPLEMENTARY 

INFORMATION. 

FOR FURTHER INFORMATION CONTACT: 

Cyrus H. Nasseri. U.S. Department of 

Energy. Office of Energy EffiCiency and 

Renewable Energy. Mail Station EE-43. 

Forrestal Building. 1000 Independence 

Avenue. SW. Washington. DC 20585-

0121. (202) 586-9138. Or Edward Levy. 

Esq .. U.S. Department of Energy. Office 

of General Counsel. Mail Station GC-72. 

Forrestal Building. 1000 Independence 

Avenue. SW. Washington. DC 20585-

0103. (202) 586-9507. 

SUPPLEMENTARY INFORMATION: 

I. Discussion 

II. Procedural Requirements 

A. Review Under the National 

Environmental Policy Act of 1969. 

B. Review Under Executive Order 12866, 

"Regulatory Planning and Review." 

C. Review Under Executive Order 12612, 

"Federalism. " 

D. Review Under Executive Order 12630, 

"Goyernmental Actions and Interference 

With Constitutionally Protected Property 

Rights." 

E. Review Under the Paperwork Reduction 

Act. 

F. Review Under Executive Order 12988, 

"Civil Justice Reform." 

G. Review Under Unfunded Mandates 

Reform Act of 1995. 

H. Review Under Small Business 

Regulatory Enforcement Fairness Act of 

1996. 

III. Interim Final Rule 

IV. Public Comment 

1. Discussion 

On August 23. 1993, DOE published 

in the Federal Register a proposal 

(hereinafter referred to as the 1993 

proposed rule) to amend the DOE test 

pr9cedures for furnaces and boilers. 58 

FR 44538. A public hearing was held in 

Washington. DC. on January 5. 1994. on 

the proposed rule. On May 12. 1997. 

after review and evaluation of the 

comments received. DOE published in 

the Federal Register a final rule 

(hereinafter referred to as the 1997 final 

rule) amending the furnace test 

procedure. 62 FR 26140. The 1997 final 

rule incorporated by reference many 

provisions of the American National 

Standards Institute. Inc.! American 

Society of Heating. Refrigerating and 

Air-Conditioning Engineers. Inc. (ANSI! 

ASHRAE) Standard 103-1993 

(hereinafter referred to as Standard 103-

1993). Standard 103-1993 includes 

most of the provisions in the 1993 

proposed rule. However. as discussed in 

preamble to the 1997 final rule. the 

Department did not intend to adopt in 

the final rule any revision to the test 

procedure that would affect the measure 

of efficiency (Annual Fuel Utilization 

Efficiency (AFUE)) of existing furnaces 

and boilers. The 1997 final rule did not 

include. therefore. those provisions in 

the 1993 proposed rule (also contained 

in Standard 103-1993) that the 

Department believed would. if adopted. 

reduce the AFUE of certain existing 

furnaces and boilers. 

Among the provisions of Standard 

103-1993 that were included in the 

1997 final rule was section 7.2.2.2. This 

section of Standard 103-1993 specifies 

that. for power burner units (including 

power vented units and oil burners). the 

flue gas collector box shall be covered 

with insulation having an R-value of not 

less than 7 and an outer layer of 

aluminum foil before the cool-down and 

heat-up tests. 

After the publication of the 1997 final 

rule. the Gas Appliance Manufacturers 

Association (GAMA) contacted the 

Department and asserted that the 

adoption of this insulation reqUirement 

in the DOE test procedures will reduce 

the AFUE of many furnaces and boilers. 

GAMA stated that for some units the 

reduced AFUE would be below the 

minimum standard. while for others it 

would be below the qualifying levels for 

many utility rebate programs. 

As discussed in the preamble to the 

1997 final rule. 62 FR at 26147. the 

reqUirement to insulate the flue 

collector box of power burner units can 

be traced to language in prior DOE test 

procedures and ANSI! ASHRAE 

Standard 103-1982. DOE has reviewed 

that language. and has found that it was 

ambiguous. and was susceptible to a 

reasonable interpretation that it did not 

apply to power vented units. 

Furthermore. since 1983 furnace 

manufacturers. GAMA and Intertek 

Testing Services (an independent testing 

laboratory contracted by GAMA to 

administer its furnace and boiler 

Efficiency Certification Program) have 

done efficiency tests on furnaces and 

boilers equipped with power burners 

without insulating the flue gas collector 

box. 

As discussed above. the Department 

did not intend to include any provisions 

in the 1997 final rule which would 

affect the measured efficiency for 

furnaces or boilers. Upon further 

consideration of the above. the 

Department concludes that the 

reqUirement to insulate the flue 

collector box could lower existing AFUE 

measurements. The inclusion of this 

reqUirement would affect 

manufacturers' product offerings and 

their participation in utility rebate 

programs. Furthermore. it would add a 

testing burden on manufacturers. by 

requiring them to re-test and re-certify 

existing units. Therefore in today's 

interim final rule. DOE is deleting from 

its recently adopted test procedure for 

furnaces and boilers the insulation 

requirement for power burner units. 

II. Procedural Requirements 

A. Review Under the National 

Environmental Policy Act of 1969 

The Department has concluded that 

this interim final rule falls into a class 

of actions (categorical exclusion A5) 

that are categorically excluded from the 
 EE-RM-93-501 COMMENT 116

Federal Register / Vol. 62, No. 198 / Tuesday, October 14, 1997 / Rules and Regulations 53509 

National Environmental Policy Act of 

1969 (NEPA) review because they 

would not individually or cumulatively 

have a significant impact on the human 

environment, as determined by DOE's 

regulations (10 CFR Part 1021, 

Appendix A to Subpart D) 

implementing the NEPA (42 U.S.C. 

4321,4331-35,4341-47). Therefore this 

interim final rule does not require an 

environmental impact statement or an 

environmental assessment pursuant to 

NEPA. 

B. Review Under Executive Order 12866, 

"Regulatory Planning and Review" 

Today's 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, today's action was not 

subject to review under the Executive 

Order by the Office of Information and 

Regulatory Affairs. 

C. Review Under Executive Order 12612, 

"Federalism " 

Executive Order 12612 (52 FR 41685, 

October 30, 1987) requires that 

regulations or rules be reviewed for any 

substantial direct effects on States, on 

the relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among various levels of 

government. If there are sufficient 

substantial direct effects, then Executive 

Order 12612 reqUires preparation of a 

Federalism assessment to be used in all 

decisions involved in promulgating and 

implementing a regulation or a rule. 

The interim final rule published today 

would not alter the distribution of 

authority and responsibility to regulate 

in this area. The interim final rule 

would only revise a currently applicable 

DOE test procedure to improve existing 

testing methods, and to add provisions 

that DOE might use in future standard 

setting. Accordingly, DOE has 

determined that preparation of a 

federation assessment is unnecessary. 

D. Review Under Executive Order 

12630, "Governmental Actions and 

Interference With Constitutionally 

Protected Property Rights" 

It has been determined pursuant to 

Executive Order 12630 (52 FR 8859, 

March 18, 1988) that this final rule 

would not result in any Takings which 

might reqUire compensation under the 

Fifth Amendment to the United States 

Constitution. 

The Department believes that a test 

procedure implementing a longestablished statutory mandate in a 

manner calculated to minimize adverse 

economic impacts does not constitute a 

"taking" of private property. Thus, 

testing under the appliance standards 

program does not invoke the provisions 

ofE.O. 12630. 

E. Review Under the Paperwork 

Reduction Act 

No new information or recordkeeping 

reqUirements are imposed by this 

rulemaking. Accordingly, no OMB 

clearance is reqUired under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

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 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 i(is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and determined that, to the 

extent permitted by law, the final 

regulations meet the relevant standards 

of Executive Order 12988. 

G. Review Under Unfunded Mandates 

Reform Act of 1995 

If any proposed or final rule 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 anyone year, the Unfunded 

Mandates Reform Act of 1995, signed 

into law on March 22, 1995, requires an 

agency (prior to promulgation) to 

prepare a budgetary impact statement 

and select the least costly, most cost 

effective and least burdensome 

alternative that achieve the objectives of 

the rule and is consistent with statutory 

requirements. 

DOE has determined that the action 

promulgated today does not include 

such a Federal mandate. Therefore, the 

requirements of the Unfunded Mandates 

Act do not apply to this action. 

H. Review Under Small Business 

Regulatory Enforcement Fairness Act of 

1996 

As reqUired by 5 U.S.C. 801, DOE will 

report to Congress promulgation of the 

rule prior to its effective date. 5 U.S.C. 

801. The report will state that it has 

been determined that the rule is not a 

"major rule" as defined by 5 U.S.C. 

804(3). 

III. Interim Final Rule 

This Interim Final Rule revises a 

provision, concerning insulation of the 

flue collector box, that is included in 

the 1997 final rule promulgating test 

procedures for furnaces. The effective 

date of the test procedures in 1997 the 

final rule is November 10, 1997. In order 

to avoid confusion and unwarranted 

testing and compliance costs, DOE 

concluded that this amendment to the 

1997 final rule must be effective on 

November 10,1997, and must be issued 

as promptly as possible. Moreover based 

on the comments received in response 

to the 1993 proposed rule, the 

Department does not expect public 

comments objecting to the change made 

by this interim final rule. 

Therefore, the Department finds that 

it would be impracticable, unnecessary 

and contrary to the public interest to 

have notice and public comment prior 

to issuing the amendment set forth in 

this interim final rule. However, the 

Department is providing for a postpublication public comment period, and 

will respond to comments as 

appropriate in a notice of final 

rulemaking. 

IV. Public Comment 

Interested persons are invited to 

participate in the rulemaking by 

submitting data, comments, or 

information with respect to the test 

procedures set forth in this notice to the 

address indicated at the beginning of the 

notice. 

Comments should be identified both 

on the envelope and on the documents 

as "Test Procedures for Furnaces/ 

Boilers, Docket No. EE-RM-93-501." 

Ten (10) copies are requested to be 
 EE-RM-93-501 COMMENT 116

53510 Federal Register / Vol. 62. No. 198 / Tuesday. October 14. 1997 / Rules and Regulations 

submitted. If possible. the Department 

would appreciate an electronic copy of 

the comments on a 3.5" diskette. The 

Department is currently using 

WordPerfectTM 6.1. All submittals 

received by the date specified at the 

beginning of this notice will be 

considered by the Department of Energy 

before final action is taken on the 

interim final rule. 

Pursuant to the provisions of 10 CFR 

1004.11. any person submitting 

information which he or she believes to 

be confidential and exempt by law from 

public disclosure should submit one 

complete copy of the document and 

nine copies. if possible, from which the 

information believed to be confidential 

has been deleted. The Department of 

Energy will make its own determination 

with regard to the confidential status of 

the information and treat it according to 

its determination. 

Factors of interest to the Department 

of Energy when evaluating requests to 

treat as confidential information that 

has been submitted include: (1) A 

description of the items; (2) an 

indication as to 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) an indication as to 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. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure. Energy conservation. 

Household appliances. Incorporation by 

reference. 

Issued in Washington. DC, on September 5, 

1997. 

Joseph J. Romm. 

Acting Assistant Secretary, Energy Efficiency 

and Renewable Energy. 

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. 

Appendix N to Subpart B of Part 430-

Uniform Test Method for Measuring the 

Energy Consumption of Furnaces and 

Boilers 

2. Section 6.0 in appendix N to 

subpart B of part 430 is revised to read 

as follows: 

* * * * * 

6.0 Apparatus. The apparatus used 

in conjunction with the furnace or 

boiler during the testing shall be as 

specified in section 7 of ANSI/ ASHRAE 

Standard 103-1993 except for the 

second paragraph of section 7.2.2.2 and 

except for section 7.2.2.5. and as 

specified in section 6.1 of this appendix. 

* * * * * 

[FR Doc. 97-27018 Filed 10-10-97: 8:45 am] 

BILLING CODE 6450-01-P