[Federal Register Volume 62, Number 198 (Tuesday, October 14, 1997)]
[Rules and Regulations]
[Pages 53508-53510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27018]



[[Page 53507]]

_______________________________________________________________________

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

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

[[Page 53508]]



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 cool-
down 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

[[Page 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 long-
established 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 post-publication 
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

[[Page 53510]]

submitted. If possible, the Department would appreciate an electronic 
copy of the comments on a 3.5'' diskette. The Department is currently 
using WordPerfect<SUP>TM</SUP> 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