Energy Conservation Program for Consumer Products: Test Procedures for Furnaces and Boilers

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 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