## 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

### 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 ofEnergy Efficiency and Renewable Energy, Department of Energy.

ACTION: Interimfinal rule.

SUMMARY: The Department ofEnergy (the Department or DOE) is amending a provision ofits recently promulgated final rule thatprescribed revised test proceduresto determine the energy efficiency offurnaces and boilers. Under today's amendment. thetest procedures will provide that the flue collectorbox

on a furnace or boilerwith a power burner or draft inducer need not be insulated before the start ofthe 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 submittedto: U.S. Department of Energy. Office ofEnergy 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 ofthe public comments received may be read at the Department ofEnergy Freedom ofInformation Reading Room. Forrestal Building. Room lE-190. 1000 Independence Avenue. S.W

.. Washington. DC 20585. (202) 586-6020 between the hours of9

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 ofEnergyEffiCiency and Renewable Energy. Mail StationEE-43. Forrestal Building. 1000 Independence Avenue. SW. Washington. DC 20585- 0121. (202) 586-9138. OrEdward Levy. Esq

.. U.S. Department ofEnergy. Office ofGeneral 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 UnderExecutive 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,

"CivilJustice 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 (hereinafterreferred to as the 1993 proposed rule) to amendthe DOE test pr9cedures for furnaces and boilers. 58 FR 44538. A public hearing was held in Washington. DC. onJanuary 5. 1994. on the proposed rule. On May 12. 1997. after review and evaluation ofthe
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 ofthe American National Standards Institute. Inc.!American Society ofHeating. Refrigerating and Air-ConditioningEngineers. Inc. (ANSI! ASHRAE) Standard 103-1993 (hereinafterreferred to as Standard 103- 1993). Standard 103-1993 includes
most ofthe 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 tothe test procedure that would affect the measure ofefficiency (Annual Fuel Utilization Efficiency (AFUE)) ofexistingfurnaces and boilers. The 1997 final rule did not include. therefore. those provisions in the 1993 proposed rule (also contained in Standard 103-1993) thatthe Department believed would. ifadopted. reduce the AFUE ofcertain existing furnaces and boilers.

Amongthe provisions ofStandard 103-1993 that were included in the 1997 final rule was section 7.2.2.2. This section ofStandard 103-1993 specifies that. for power burner units (including powervented units and oil burners). the flue gas collector box shall be covered with insulation having an R-value ofnot less than 7 and an outer layer of aluminum foil before the cool-down and heat-up tests.

After the publication ofthe 1997 final rule. the Gas Appliance Manufacturers Association (GAMA) contacted the Department and asserted that the adoption ofthis insulation reqUirement in the DOE test procedures will reduce the AFUE ofmany furnaces and boilers. GAMA stated that for some unitsthe reduced AFUE would be below the minimum standard. while for others it would be belowthe qualifying levels for
manyutility rebate programs.

As discussed in the preamble to the 1997 final rule. 62 FR at 26147. the reqUirement to insulate the flue collector box ofpower burnerunits 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 applyto 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 insulatingthe 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 orboilers. Upon further consideration ofthe above. the Department concludes that the reqUirement to insulatethe flue collector box could lower existing AFUE
measurements. The inclusion ofthis reqUirement would affect manufacturers' productofferings and theirparticipation 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 intoday's interim final rule. DOE is deleting from its recently adopted test procedure for furnaces and boilers the insulation requirement for powerburner units.

II. Procedural Requirements



### A. 

### Review Under theNational Environmental PolicyActof1969

The Department has concluded that this interimfinal rule falls into a class ofactions (categorical exclusion A5) that are categorically excluded from the

### 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 onthe 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 assessmentpursuantto NEPA.

B. 

### Review Under Executive Order 12866, 

### "RegulatoryPlanningandReview"

Today's regulatory action has been determined notto be a "significant regulatory action" underExecutive Order 12866, "Regulatory Planning and Review," 58 FR 51735, October 4, 1993. Accordingly, today's action was not subjectto reviewunder the Executive Order by the Office ofInformation and Regulatory Affairs.



### C. Review Under Executive Order 12612, 

### "Federalism"

Executive Order 12612 (52 FR 41685, October 30, 1987) requires that regulations orrules be reviewed for any substantial direct effects on States, on the relationship between the Federal Government and the States, or on the distribution ofpower and responsibilities among various levels of government. Ifthere are sufficient substantial direct effects, then Executive Order 12612 reqUires preparation ofa 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 interimfinal 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 ofa federation assessment is unnecessary.


### D. Review Under Executive Order 12630, 

### "GovernmentalActionsand Interference With Constitutionally ProtectedPropertyRights"

It has 

### been determined pursuant to Executive Order 12630 (52 FR 8859, March 18, 1988) thatthis final rule would not result in any Takings which might reqUire compensation underthe Fifth Amendmentto 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" ofprivate property. Thus, testing underthe appliance standards
program does not invoke the provisions ofE.O. 12630.



### E. Review Under the Paperwork ReductionAct

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 etseq.).

F. 

### Review UnderExecutive Order 12988, 

### "CiviljusticeReform"

With respectto the review ofexisting regulations andthe promulgation of

new regulations, section 3(a) of Executive Order 12988, "CivilJustice Reform," 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general dutyto 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) ofExecutive Order 12988 specifically requires that Executive agencies make every reasonable effort to

ensure thatthe regulation: (1) 

### Clearly specifies the preemptive effect, ifany; (2) clearly specifies any effect on existing Federal law orregulation; (3) provides a clear legal standard for affected conduct while promoting simplification andburden reduction; (4) specifies the retroactive effect, ifany; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued bythe Attorney General. Section 3(c) ofExecutive Order 12988 requires Executive agencies to review regulations in light ofapplicable standards in section 3(a) and section 3(b) to determine whetherthey are met or i(is unreasonable to meet one or more of them. DOE has completedthe required review and determined that, to the
extent permitted by law, the final regulations meet the relevant standards ofExecutive Order 12988.



### G. Review Under UnfundedMandates ReformActof1995



### Ifany proposed or final rule includes

a Federal mandate that may result in expenditureby state, local, and tribal governments, in the aggregate, orby the private sector, of $100 million ormore 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 thatthe action promulgated today does not include such a Federal mandate. Therefore, the requirements ofthe Unfunded Mandates Act do not applyto this action.

H. 

### Review Under SmallBusiness RegulatoryEnforcementFairnessActof 1996

As reqUired by 5 U.S.C. 801, DOE will reportto Congress promulgation ofthe rule priorto its effective date. 5 U.S.C. 801. The report will state that ithas been determined that the rule is not a "majorrule" as defined by 5 U.S.C. 804(3).

III. Interim 

### Final Rule



### This Interim Final Rule revises a provision, concerning insulation ofthe flue collector box, that is included in the 1997 final rule promulgatingtest procedures for furnaces. The effective date ofthe test procedures in 1997 the final rule is November 10, 1997. In order
to avoid confusion and unwarranted testing and compliance costs, DOE concluded thatthis amendment to the 1997 final rule must be effective on November 10,1997, and must be issued

as promptlyas 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 bythis interim final rule.

Therefore, the Department finds that it would be impracticable, unnecessary and contrary to the public interestto have notice and public comment prior
to issuingthe amendment set forth in this interimfinal rule. However, the Department is providing for a postpublication public comment period, and will respond to comments as appropriate in a notice offinal rulemaking.

IV. Public 

### Comment

Interested persons are invited to participate in the rulemakingby submitting data, comments, or information with respect to the test procedures setforth in this notice to the address indicated atthe beginning ofthe notice.

Comments shouldbe identified both

on the envelope and on the documents

as "TestProcedures for Furnaces/ Boilers, Docket No. EE-RM-93-501." Ten (10) copies are requested to be

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

submitted. Ifpossible. 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 bythe date specified at the beginningofthis notice will be considered by the Department ofEnergy 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 confidentialand exempt by law from public disclosure should submit one complete copy ofthe document and nine copies. ifpossible, from whichthe 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 accordingto its determination.

Factors ofinterestto the Department ofEnergy when evaluating requests to treat as confidential informationthat has been submitted include: (1) A description ofthe items; (2) an indication as to whether and why such items are customarily treated as confidential within the industry; (3) whetherthe information is generally known by. or available from. other
sources; (4) whetherthe information has preViously been made available to others without obligation concerning its confidentiality; (5) an explanation ofthe competitive injuryto 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 oftime; and (7) why disclosure ofthe information would be contraryto the public interest.



### List ofSubjectsin 10 

### CFR Part430

Administrative practice and procedure. Energy conservation. Household appliances. Incorporation by reference.

Issued in Washington. DC, on September 5, 1997. JosephJ. Romm. ActingAssistantSecretary, EnergyEfficiency andRenewableEnergy.

For the reasons set forth in the preamble, Part 430 ofChapter II ofTitle 10. Code ofFederal Regulations. is amended as setforth 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 SubpartBofPart430- Uniform TestMethod for Measuringthe Energy Consumption ofFurnaces and Boilers

2. Section 6.0 in appendixN to subpart B ofpart 430 is revised to read

as follows: 

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6.0 Apparatus. The apparatus used in conjunction with the furnace or boiler duringthe testing shall be as specified in section 7 ofANSI/ASHRAE Standard 103-1993 exceptfor the second paragraph ofsection 7.2.2.2 and except for section 7.2.2.5. and as specified in section 6.1 ofthis appendix. 

### * 

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

BILLING CODE 6450-01-P