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 1E–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,

‘‘Governmental 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

I. 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

procedures 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
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

of E.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 it 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 any one 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
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