```

[Federal Register Volume 78, Number 156 (Tuesday, August 13, 2013)]
[Proposed Rules]
[Pages 49202-49207]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19560]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 78, No. 156 / Tuesday, August 13, 2013 / 
Proposed Rules

[[Page 49202]]

DEPARTMENT OF ENERGY

10 CFR Part 431

[Docket No. EERE-2013-BT-STD-0030]
RIN 1904-AD01

Energy Conservation Program for Certain Commercial and Industrial 
Equipment: Proposed Determination of Natural Draft Commercial Packaged 
Boilers as Covered Equipment

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

ACTION: Proposed determination of coverage.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) proposes to determine that 
natural draft commercial packaged boilers meet the criteria for covered 
equipment under Part A-1 of Title III of the Energy Policy and 
Conservation Act (EPCA), as amended. DOE proposes that classifying 
equipment of such type as covered equipment is necessary to carry out 
the purpose of Part A-1 of EPCA, which is to improve the efficiency of 
certain industrial equipment to conserve the energy resources of the 
Nation.

DATES: DOE will accept written comments, data, and information on this 
notice, but no later than September 12, 2013.

ADDRESSES: Interested persons are encouraged to submit comments 
electronically. However, interested persons may submit comments, 
identified by docket number EERE-2013-BT-STD-0030 or Regulation 
Identifier Number (RIN) 1904-AD01, by any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Email: PkgdBoilers2013STD0030@ee.doe.gov. Include EERE-
2013-BT-STD-0030 and/or RIN 1904-AD01 in the subject line of the 
message. Submit electronic comments in WordPerfect, Microsoft Word, 
portable document format (PDF), or American Standard Code for 
Information Interchange (ASCII) file format, and avoid the use of 
special characters or any form of encryption.
     Mail: Ms. Brenda Edwards, U.S. Department of Energy, 
Building Technologies Office, Mailstop EE-2J, 1000 Independence Avenue 
SW., Washington, DC 20585-0121. Telephone: (202) 586-2945. If possible, 
please submit all items on a compact disc (CD), in which case it is not 
necessary to include printed copies.
     Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy, Building Technologies Office, 6th Floor, 950 L'Enfant Plaza 
SW., Washington, DC 20024. Telephone: (202) 586-2945. If possible, 
please submit all items on a CD, in which case it is not necessary to 
include printed copies.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. No telefacsimilies 
(faxes) will be accepted. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see 
section VI of this document (Public Participation).
    Docket: The docket is available for review at www.regulations.gov, 
including Federal Register notices, comments, and other supporting 
documents/materials (search EERE-2013-BT-STD-0030). All documents in 
the docket are listed in the www.regulations.gov index. However, not 
all documents listed in the index may be publicly available, such as 
information that is exempt from public disclosure.
    A link to the docket Web page can be found at: http://www1.eere.energy.gov/buildings/appliance_standards/product.aspx/productid/74. This Web page contains a link to the docket for this 
notice on the www.regulations.gov site. The www.regulations.gov Web 
page contains instructions on how to access all documents, including 
public comments, in the docket. See section VI for further information 
on how to submit comments through www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. James Raba, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies, EE-2J, 1000 Independence Avenue SW., Washington, DC 
20585-0121. Telephone: (202) 586-8654. Email: commercial_packaged_boilers@ee.doe.gov.
    Mr. Eric Stas, U.S. Department of Energy, Office of the General 
Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585. 
Telephone: (202) 586-9507. Email: Eric.Stas@hq.doe.gov.
    For information on how to submit or review public comments, contact 
Ms. Brenda Edwards, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies, Mailstop EE-2J, 
1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: 
(202) 586-2945. Email: Brenda.Edwards@ee.doe.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Statutory Authority
II. Current Rulemaking Process
III. Definition(s)
IV. Evaluation of Natural Draft Commercial Packaged Boilers as a 
Covered Equipment
    A. Energy Consumption in Operation
    B. Distribution in Commerce
    C. Prior Inclusion as Covered Equipment
    D. Coverage Necessary to Carry Out Purposes of Part A-1 of the 
Energy Policy and Conservation Act
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under the Information Quality Bulletin for Peer Review
VI. Public Participation
    A. Submission of Comments
    B. Issues on Which the Department of Energy Seeks Comments

I. Statutory Authority

    Title III of the Energy Policy and Conservation Act of 1975 (EPCA), 
as amended (42 U.S.C. 6291 et seq.), sets forth various provisions 
designed to improve energy efficiency for consumer products and certain 
commercial

[[Page 49203]]

equipment. Part C of Title III of EPCA (42 U.S.C. 6311-6317), which was 
re-designated for editorial reasons as Part A-1 upon codification in 
the U.S. Code, establishes the ``Energy Conservation Program for 
Certain Industrial Equipment,'' which covers certain commercial and 
industrial equipment (hereafter referred to as ``covered equipment'').
    EPCA identifies 11 types of covered equipment and sets forth a 
twelfth provision for any other type of equipment which the Secretary 
of Energy (Secretary) classifies as covered equipment. (42 U.S.C. 
6311(1)(A)-(L)) EPCA also provides for the types of equipment that can 
be classified as covered ``industrial equipment'' in addition to the 
equipment enumerated under 42 U.S.C. 6311(1), which includes packaged 
boilers as covered industrial equipment. (42 U.S.C. 6311(2)(B)) 
Further, pursuant to EPCA, industrial equipment must also, without 
regard to whether such equipment is in fact distributed in commerce for 
industrial or commercial use, be of a type:
    (1) Which in operation consumes, or is designed to consume, energy;
    (2) which to any significant extent, is distributed in commerce for 
industrial or commercial use; and
    (3) which is not a ``covered product'' as defined in 42 U.S.C. 
6291(2) of EPCA, other than a component of a covered product with 
respect to which there is in effect a determination under 42 U.S.C. 
6312(c). (42 U.S.C. 6311(2)(A))
    To classify equipment as covered commercial or industrial 
equipment, the Secretary must determine that classifying the equipment 
as covered equipment is necessary for the purposes of Part A-1 of EPCA. 
In general, the purpose of Part A-1 is to improve the efficiency of 
certain industrial equipment, such as packaged boilers, and to conserve 
the energy resources of the Nation. (42 U.S.C. 6312 (a), (b)).

II. Current Rulemaking Process

    DOE has previously conducted energy conservation standards 
rulemakings for natural draft commercial packaged boilers. As explained 
in section IV.C, DOE is undertaking this coverage determination to 
explicitly clarify its statutory authority under EPCA to cover natural 
draft commercial packaged boilers. Following public comment, DOE 
intends to issue a final determination of coverage for this equipment, 
and would consider amended energy conservation standards and test 
procedures for this equipment as part of its upcoming rulemaking for 
commercial packaged boilers.
    With respect to test procedures, DOE's existing test procedures for 
commercial packaged boilers contain provisions for measuring the energy 
efficiency of natural draft commercial packaged boilers. As with any of 
DOE's test procedures, the current test procedure allows for 
measurement of the energy efficiency, energy use, or estimated annual 
operating cost of natural draft commercial packaged boilers during a 
representative average use cycle or period of use in a manner that is 
not unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) Although DOE's 
existing test procedure has generally proven adequate for testing 
natural draft commercial packaged boilers, DOE may consider any 
necessary amendments to these test procedures in the context of its 
upcoming ``7-year-lookback'' test procedure rulemaking. (42 U.S.C. 
6314(a)(1)) In a typical test procedure rulemaking, DOE initially 
prepares a test procedure notice of proposed rulemaking (NOPR) and 
allows interested parties to present oral and written data, views, and 
arguments with respect to such procedures. In amending test procedures, 
DOE takes into account relevant information, including technological 
developments relating to energy use or energy efficiency of natural 
draft commercial packaged boilers.
    With respect to energy conservation standards, DOE typically 
prepares initially an energy conservation standards rulemaking 
Framework Document (the Framework Document). The Framework Document 
explains the issues, analyses, and process that it is considering for 
the development of energy conservation standards. After DOE receives 
comments on the Framework Document, DOE typically prepares an energy 
conservation standards rulemaking preliminary analysis and technical 
support document (TSD) for the preliminary analysis. The preliminary 
analysis typically provides initial draft analyses of potential energy 
conservation standards on consumers, manufacturers, and the Nation. 
These steps are not legally required.
    DOE is required to publish a NOPR setting forth DOE's proposed 
energy conservation standards and a summary of the results of DOE's 
supporting technical analysis. The details of DOE's analysis are 
provided in a TSD that describes the details of DOE's analysis of both 
the burdens and benefits of potential standards, pursuant to 42 U.S.C. 
6295(o). DOE affords interested persons an opportunity during a period 
of not less than 60 days after the publication of the NOPR to provide 
oral and written comment. (42 U.S.C. 6295(p)(2)) After receiving and 
considering the comments on the NOPR and not less than 90 days after 
the publication of the NOPR, DOE would issue the final rule prescribing 
any amended energy conservation standards for natural draft commercial 
packaged boilers. (42 U.S.C. 6295(p)(3)).

III. Definition(s)

    DOE is considering a definition for ``Natural Draft Commercial 
Packaged Boiler'' to clarify coverage of any potential test procedure 
or energy conservation standard amendments that may arise subsequent to 
today's proposed determination. There is currently no statutory 
definition of ``natural draft commercial packaged boiler,'' so DOE is 
considering the following definition of ``natural draft commercial 
packaged boiler'' to provide clarity for interested parties as it 
continues its analyses:
    Natural draft commercial packaged boiler means a commercial 
packaged boiler designed to operate with negative pressure in the 
firebox and in the flue connection created by a chimney or the height 
of the unit itself, up to the draft control device. Such boilers do not 
require mechanical drafting equipment to vent combustion gases, but may 
include mechanical devices such as mechanical flue or stack dampers to 
limit the heat losses through the flue vent during off-cycle.
    DOE seeks comments from interested parties about this definition 
for ``natural draft commercial packaged boiler.''

IV. Evaluation of Natural Draft Commercial Packaged Boilers as a 
Covered Equipment

    The following sections describe DOE's evaluation of whether natural 
draft commercial packaged boilers fulfill the criteria for being added 
as covered equipment pursuant to 42 U.S.C. 6311(2) and 42 U.S.C. 6312.
    Packaged boilers are listed as a type of industrial equipment at 42 
U.S.C. 6311(2)(B). The following discussion addresses DOE's 
consideration of the three requirements of 42 U.S.C. 6311(2)(A) and 42 
U.S.C. 6312.

A. Energy Consumption in Operation

    Based on the Energy Information Administration's (EIA) 2013 Annual 
Energy Outlook (AEO) and 2003 Commercial Building Energy Consumption 
Survey (CBECS) data, DOE estimated that the annual energy use of gas 
and oil-fired commercial packaged boilers was 0.73 quad in

[[Page 49204]]

2012.1 2 3 Based on the number of natural draft commercial 
packaged boiler models in the 2013 Air-Conditioning, Heating, and 
Refrigeration Institute (AHRI) certification directory (41 percent 
average for both gas and oil-fired commercial packaged boilers), DOE 
estimated that the annual energy use of natural draft gas and oil-fired 
commercial packaged boilers was 0.30 quad in 2012, or the equivalent of 
approximately 51.7 million barrels of oil. Based on CBECS 2003 data, 
DOE estimated that, on average, existing gas and oil-fired commercial 
packaged boilers consume about 1,362 MMBtu/yr or about 400,000 kWh/yr 
per building that use natural draft gas and oil-fired commercial 
packaged boilers.4 5
---------------------------------------------------------------------------

    \1\ Energy Information Administration (EIA), 2013 Annual Energy 
Outlook (AEO) Full Version (Available at: http://www.eia.gov/forecasts/aeo/) (Last accessed April 15, 2013).
    \2\ Energy Information Administration (EIA), 2003 Commercial 
Building Energy Consumption Survey (CBECS) (Available at: http://www.eia.gov/consumption/commercial/) (Last accessed April 10, 2013).
    \3\ AEO 2013 provides total space heating energy use for 
commercial buildings, In 2012, AEO 2013 estimates that 1.51 quads is 
used for gas space heating and 0.115 quad is used for oil space 
heating in the U.S. commercial buildings. To determine the fraction 
of space heating in commercial buildings provided by commercial gas 
and oil-fired packaged boilers, DOE used CBECS estimates, which show 
that 43 percent of gas heating is provided by gas boilers and 74 
percent of oil heating is provided by oil-fired boilers.
    \4\ Average energy use of gas and oil boilers per building in 
CEBCS 2003 is equal to 1,555 MMBtu/yr. DOE adjusted this value to 
reflect a 6.9-percent improvement in existing buildings compared to 
2003 buildings based on AEO 2013 data (Available at: http://www.eia.gov/forecasts/aeo/assumptions/pdf/commercial.pdf). DOE also 
adjusted the energy use data to normal weather conditions using the 
10-year average heating degree-days (HDD) (2003-2012) compared to 
2003 HDDs based on National Oceanic and Atmospheric Administration 
(NOAA) data (Available at: http://www7.ncdc.noaa.gov/CDO/CDODivisionalSelect.jsp), which resulted in a 5.1-percent decrease 
in heating energy consumption.
    \5\ Conversion: 1 kWh=3412 Btu.
---------------------------------------------------------------------------

B. Distribution in Commerce

    Natural draft commercial packaged boilers are distributed both in 
the commercial and industrial sectors. During the analysis leading to 
the 2009 commercial packaged boilers final rule (74 FR 36312 (July 22, 
2009)), DOE obtained from AHRI an estimate of annual shipments of 
commercial packaged boilers that, at the time, were approximately 
36,000 units. (2009 Technical Support Document, Chapter 6, Shipment 
Analysis \6\) Since no recent shipments data are available, DOE plans 
to assume that the same number of units will be shipped in 2013 (about 
36,000 gas and oil-fired commercial packaged boilers). Since 41 percent 
of commercial packaged boilers models in the 2013 AHRI Directory \7\ 
are natural draft commercial packaged boilers, DOE estimates that about 
15,000 natural draft commercial packaged boilers will be shipped 
domestically in 2013.
---------------------------------------------------------------------------

    \6\ See http://www.regulations.gov/#!documentDetail;D=EERE-2008-
BT-STD-0013-0011.
    \7\ Air-Conditioning, Heating, and Refrigeration Institute 
(AHRI), Commercial Packaged Boiler Certification Directory (April 
2013) (Available at: http://www.ahridirectory.org/) (Last accessed 
April 15, 2013).
---------------------------------------------------------------------------

C. Prior Inclusion as a Covered Product

    Natural draft commercial packaged boilers are not currently 
included as covered products under Title 10 of the Code of Federal 
Regulations, part 430 (10 CFR part 430). However, as explained below, 
under DOE's interpretation of the relevant statutory provisions, 
natural draft commercial packaged boilers are currently included as 
covered equipment under subpart E of 10 CFR part 431.

D. Coverage Necessary To Carry Out Purposes of Part A-1 of the Energy 
Policy and Conservation Act

    The purpose of part A-1 of EPCA is to improve the energy efficiency 
of certain industrial equipment to conserve the energy resources of the 
Nation. Commercial packaged boilers are covered equipment under the 
statute. Until now, DOE has not drawn a distinction between a 
commercial packaged boiler that is manufactured and shipped as a 
natural draft model or a mechanical draft model. Consistent with this 
position, DOE adopted energy conservation standards for natural draft 
commercial packaged boilers in a final rule published in the Federal 
Register on July 22, 2009, which was consistent with the efficiency 
levels contained in the American Society of Heating, Refrigerating and 
Air Conditioning Engineers (ASHRAE) Standard 90.1-2007. 74 FR 36312.
    DOE continues to conclude that, from a technical perspective, 
natural draft commercial packaged boilers are similar in purpose and 
function to their mechanical-draft counterparts. Nevertheless, DOE is 
initiating this coverage determination for natural draft commercial 
packaged boilers, because explicit coverage of natural draft commercial 
packaged boilers is necessary to carry out the purposes of part A-1 of 
EPCA. Coverage will promote the conservation of energy and provide a 
more level playing field to the variety of commercial packaged boilers 
on the market, thereby discouraging potential substitution effects. 
Beyond the energy conservation standards currently in place for natural 
draft commercial packaged boilers, DOE will commence a rulemaking to 
consider amending the energy conservation standards both for commercial 
packaged boilers with mechanical draft equipment and, pending the 
outcome of today's proposed coverage determination, natural draft 
commercial packaged boilers. Amended energy conservation standards that 
may result after such final coverage determination would help to 
capture some portion of the potential for improving efficiency of 
natural draft commercial packaged boilers.
    In view of all the information in section IV of this notice, DOE 
proposes to determine that natural draft commercial packaged boilers 
qualify as covered equipment under part A-1 of Title III of EPCA, as 
amended. (42 U.S.C. 6311 et seq.)

V. Procedural Issues and Regulatory Review

    DOE has reviewed its proposed determination of natural draft 
commercial packaged boilers under the following Executive Orders and 
Acts.

A. Review Under Executive Order 12866

    The Office of Management and Budget has determined that coverage 
determination rulemakings do not constitute ``significant regulatory 
actions'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this 
proposed action was not subject to review under the Executive Order by 
the Office of Information and Regulatory Affairs (OIRA) in the Office 
of Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996), 
requires preparation of an initial regulatory flexibility analysis for 
any rule that, by law, must be proposed for public comment, unless the 
agency certifies that the proposed rule, if promulgated, will not have 
a significant economic impact on a substantial number of small 
entities. A regulatory flexibility analysis examines the impact of the 
rule on small entities and considers alternative ways of reducing 
negative effects. Also, as required by E.O. 13272, ``Proper 
Consideration of Small Entities in Agency Rulemaking'' 67 FR 53461 
(August 16, 2002), DOE published procedures and policies on February 
19, 2003, to ensure that the potential impact

[[Page 49205]]

of its rules on small entities are properly considered during the DOE 
rulemaking process. 68 FR 7990 (Feb. 19, 2003). DOE makes its 
procedures and policies available on the Office of the General 
Counsel's Web site at http://energy.gov/gc/office-general-counsel.
    DOE reviewed today's proposed determination under the provisions of 
the Regulatory Flexibility Act and the policies and procedures 
published on February 19, 2003. DOE certifies that the proposed 
determination, if adopted, would not have a significant economic impact 
on a substantial number of small entities. The factual basis for this 
certification is as follows:
    The Small Business Administration (SBA) considers a business entity 
to be a small business, if, together with its affiliates, it employs 
less than a threshold number of workers specified in 13 CFR part 121. 
65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 
(Sept. 5, 2000). These size standards and codes are established by the 
North American Industry Classification System (NAICS). The threshold 
number for the relevant NAICS classification code 333414, ``Heating 
Equipment (except Warm Air Furnaces) Manufacturing,'' is 500 employees. 
To determine whether any manufacturers of natural draft commercial 
packaged boilers fall below this threshold number, DOE assembled an 
extensive database of commercial packaged boiler models and 
manufacturers based on surveys of the AHRI certification directory,\8\ 
the California Energy Commission (CEC) appliance database,\9\ and 
additional industry and manufacturer Web sites. DOE used this database 
to identify manufacturers of natural draft commercial packaged boilers 
for further analysis. Using publically-available data from sources such 
as Hoover's online database \10\ and manufacturer Web sites, DOE 
evaluated each manufacturer to determine if they met the SBA's 
definition of a ``small business manufacturing facility'' and have 
their manufacturing facilities located within the United States. Based 
on this analysis, DOE identified seven small businesses that 
manufacture natural draft commercial packaged boilers.
---------------------------------------------------------------------------

    \8\ See Air-Conditioning, Heating, and Refrigeration Institute: 
Certification Directory (Available at: http://www.ahridirectory.org/ahridirectory/pages/home.aspx).
    \9\ See California Energy Commission: Appliance Database 
(Available at: http://www.appliances.energy.ca.gov/).
    \10\ See Hoover's Database (Available at: http://www.hoovers.com/).
---------------------------------------------------------------------------

    If adopted, today's proposed determination would not amend 
standards and would only reaffirm DOE's authority to cover natural 
draft commercial packaged boilers. The proposed determination also does 
not amend any test procedures. Economic impacts on small entities would 
be considered in the context of such rulemakings.
    DOE will transmit this certification and supporting statement of 
factual basis to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    This proposed determination, which proposes to determine that 
natural draft commercial packaged boilers meet the criteria for 
classification as covered equipment, will impose no new information or 
recordkeeping requirements. Accordingly, the Office of Management and 
Budget (OMB) clearance is not required under the Paperwork Reduction 
Act. (44 U.S.C. 3501 et seq.)

D. Review Under the National Environmental Policy Act of 1969

    In this notice, DOE proposes to positively determine that natural 
draft commercial packaged boilers meet the criteria for classification 
as covered equipment. Environmental impacts would be explored in any 
future energy conservation standards rulemaking for natural draft 
commercial packaged boilers. DOE has determined that review under the 
National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 
codified at 42 U.S.C. 4321 et seq. is not required at this time. NEPA 
review can only be initiated ``as soon as environmental impacts can be 
meaningfully evaluated.'' (10 CFR 1021.213(b)) This proposed 
determination would only determine that natural draft commercial 
packaged boilers meet the criteria for classification as covered 
equipment, but would not itself propose to set any specific standard. 
DOE has, therefore, determined that there are no environmental impacts 
to be evaluated at this time. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required.

E. Review Under Executive Order 13132

    Executive Order (E.O.) 13132, ``Federalism,'' 64 FR 43255 (August 
10, 1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to assess carefully the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in developing 
regulatory policies that have Federalism implications. On March 14, 
2000, DOE published a statement of policy describing the 
intergovernmental consultation process that it will follow in 
developing such regulations. 65 FR 13735 (March 14, 2000). DOE has 
examined today's proposed determination and concludes that it would not 
preempt State law or have substantial direct effects on the States, on 
the relationship between the Federal government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. EPCA governs and prescribes Federal preemption of State 
regulations as to energy conservation for the equipment that is the 
subject of today's proposed determination. States can petition DOE for 
exemption from such preemption to the extent permitted, and based on 
criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is 
required by E.O. 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal 
agencies the duty to: (1) Eliminate drafting errors and ambiguity; (2) 
write regulations to minimize litigation; (3) provide a clear legal 
standard for affected conduct rather than a general standard; and (4) 
promote simplification and burden reduction. Section 3(b) of E.O. 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation specifies the following: (1) The 
preemptive effect, if any; (2) any effect on existing Federal law or 
regulation; (3) a clear legal standard for affected conduct while 
promoting simplification and burden reduction; (4) the retroactive 
effect, if any; (5) definitions of key terms; and (6) other important 
issues affecting clarity and general draftsmanship under any guidelines 
issued by the Attorney General. Section 3(c) of E.O. 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in sections 3(a) and 3(b) to determine whether these 
standards are met, or whether it is unreasonable to meet one or more of 
them. DOE

[[Page 49206]]

completed the required review and determined that, to the extent 
permitted by law, this proposed determination meets the relevant 
standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4, codified at 2 U.S.C. 1501 et seq.) requires each Federal 
agency to assess the effects of Federal regulatory actions on State, 
local, and tribal governments and the private sector. For regulatory 
actions likely to result in a rule that may cause expenditures by 
State, local, and tribal governments, in the aggregate, or by the 
private sector of $100 million or more in any 1 year (adjusted annually 
for inflation), section 202 of UMRA requires a Federal agency to 
publish a written statement that estimates the resulting costs, 
benefits, and other effects on the national economy. (2 U.S.C. 1532(a) 
and (b)) UMRA requires a Federal agency to develop an effective process 
to permit timely input by elected officers of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' 
UMRA also requires an agency plan for giving notice and opportunity for 
timely input to small governments that may be potentially affected 
before establishing any requirement that might significantly or 
uniquely affect them. On March 18, 1997, DOE published a statement of 
policy on its process for intergovernmental consultation under UMRA. 62 
FR 12820 (March 18, 1997). (This policy also is available at http://energy.gov/gc/office-general-counsel.) DOE reviewed today's proposed 
determination pursuant to these existing authorities and its policy 
statement and determined that the proposed determination contains 
neither an intergovernmental mandate nor a mandate that may result in 
the expenditure of $100 million or more in any year, so the UMRA 
requirements do not apply.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This proposed determination 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.

I. Review Under Executive Order 12630

    Pursuant to E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights,'' 53 FR 8859 (March 
15, 1988), DOE determined that this proposed determination would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriation Act, 2001 (44 
U.S.C. 3516 note) requires agencies to review most disseminations of 
information they make to the public under guidelines established by 
each agency pursuant to general guidelines issued by the Office of 
Management and Budget (OMB). The OMB's guidelines were published at 67 
FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 
62446 (Oct. 7, 2002). DOE has reviewed today's proposed determination 
under the OMB and DOE guidelines and has concluded that it is 
consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13211

    E.O. 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 OMB 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 a final rule or is expected to lead to promulgation of 
a final rule, and that: (1) Is a significant regulatory action under 
E.O. 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 the Office of 
Information and Regulatory Affairs (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 if the proposal is implemented, and of reasonable 
alternatives to the proposed action and their expected benefits on 
energy supply, distribution, and use.
    DOE has concluded that today's regulatory action proposing to 
determine that natural draft commercial packaged boilers meet the 
criteria for classification as covered equipment would not have a 
significant adverse effect on the supply, distribution, or use of 
energy. This action is also not a significant regulatory action for 
purposes of E.O. 12866, and the OIRA Administrator has not designated 
this proposed determination as a significant energy action under E.O. 
12866 or any successor order. Therefore, this proposed determination is 
not a significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects for this proposed determination.

L. Review Under the Information Quality Bulletin for Peer Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (OSTP), issued its Final Information 
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 
2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the Bulletin is to enhance the quality and credibility of 
the Government's scientific information. DOE has determined that the 
analyses conducted for this rulemaking do not constitute ``influential 
scientific information,'' which the Bulletin defines as ``scientific 
information the agency reasonably can determine will have or does have 
a clear and substantial impact on important public policies or private 
sector decisions.'' 70 FR 2667 (Jan. 14, 2005). The analyses were 
subject to pre-dissemination review prior to issuance of this 
rulemaking.
    DOE will determine the appropriate level of review that would be 
applicable to any future rulemaking to amend energy conservation 
standards for natural draft commercial packaged boilers.

VI. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding this 
notice of proposed determination no later than the date provided at the 
beginning of this notice. After the close of the comment period, DOE 
will review the comments received and determine whether natural draft 
commercial packaged boilers are covered equipment under EPCA.
    Comments, data, and information submitted to DOE's email address 
for this proposed determination should be provided in WordPerfect, 
Microsoft Word, PDF, or text (ASCII) file format. Submissions should 
avoid the use of special characters or any form of

[[Page 49207]]

encryption, and wherever possible, comments should include the 
electronic signature of the author. No telefacsimiles (faxes) will be 
accepted.
    Pursuant to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit two well-marked copies: One copy of the 
document marked ``confidential'' including all the information believed 
to be confidential, and one copy of the document marked ``non-
confidential'' with the information believed to be confidential 
deleted. DOE will make its own determination as to the confidential 
status of the information and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include: (1) A description of the 
items; (2) whether and why such items are customarily treated as 
confidential within the industry; (3) whether the information is 
generally known or available from public sources; (4) whether the 
information has previously been made available to others without 
obligations concerning its confidentiality; (5) an explanation of the 
competitive injury to the submitting persons which would result from 
public disclosure; (6) a date after which such information might no 
longer be considered confidential; and (7) why disclosure of the 
information would be contrary to the public interest.

B. Issues on Which the Department of Energy Seeks Comments

    DOE welcomes comments on all aspects of this proposed 
determination. DOE is particularly interested in receiving comments 
from interested parties on the following issues related to the proposed 
determination for natural draft commercial packaged boilers:
     Definition of ``natural draft commercial packaged 
boiler'';
     Whether classifying natural draft commercial packaged 
boilers as covered equipment is necessary to carry out the purposes of 
Part A-1 of EPCA; and
     Availability or lack of availability of technologies for 
improving the energy efficiency of natural draft commercial packaged 
boilers.
    DOE invites all interested parties to submit, in writing and by 
September 12, 2013, comments and information on matters addressed in 
this notice and on other matters relevant to a determination for 
natural draft commercial packaged boilers. DOE is also interested in 
receiving views concerning other issues relevant to amending the test 
procedure and energy conservation standards for natural draft 
commercial packaged boilers.
    After the expiration of the period for submitting written 
statements, DOE will consider all comments and additional information 
that is obtained from interested parties or through further analyses, 
and it will prepare a final determination. If DOE confirms in the final 
determination that natural draft commercial packaged boilers qualify as 
covered equipment, DOE may consider amendments to the test procedure 
and energy conservation standards for natural draft commercial packaged 
boilers as part of the upcoming rulemaking for commercial packaged 
boilers generally. Members of the public will be given an opportunity 
to submit written and oral comments on any proposed amended test 
procedure and standards.

List of Subjects in 10 CFR Part 431

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on August 7, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.
[FR Doc. 2013-19560 Filed 8-12-13; 8:45 am]
BILLING CODE 6450-01-P
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