[Federal Register Volume 75, Number 18 (Thursday, January 28, 2010)]
[Notices]
[Pages 4548-4550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1749]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Docket Number EERE-BT-PET-0024]


Energy Efficiency Program for Consumer Products: Commonwealth of 
Massachusetts Petition for Exemption From Federal Preemption of 
Massachusetts' Energy Efficiency Standard for Residential Non-
Weatherized Gas Furnaces

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

ACTION: Notice of Petition for Exemption.

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SUMMARY: The Department of Energy (DOE) announces the filing of the 
Commonwealth of Massachusetts Petition for Exemption from Federal 
Preemption of Massachusetts' 90% Annual Fuel Utilization Efficiency 
Standard for Non-weatherized Gas Furnaces (hereafter ``Massachusetts 
Petition'' or ``Petition'''). To help DOE evaluate the merits of the 
Massachusetts Petition, DOE invites interested members of the public to 
submit comments they might have on the Massachusetts Petition and 
information related to the evaluation factors outlined in the Energy 
Policy and Conservation Act (EPCA or ``the Act'').

DATES: DOE will accept written comments, data, and information 
regarding the Massachusetts Petition until, but no later than March 29, 
2010.

ADDRESSES: A document entitled ``Massachusetts Petition for Exemption 
from Preemption'' is available for review on the Internet at http://
www1.eere.energy.gov/buildings/appliance--standards/state--
petitions.html or from Ms. Brenda Edwards-Jones, U.S. Department of 
Energy, Building Technologies Program, EE-2J, Room 1J-018, 1000 
Independence Ave., SW., Washington, DC 20585-0121, or by telephone 
(202) 586-2945. Please submit comments, identified by docket number 
EERE-BT-PET-0024 by any of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. E-mail: [email protected]. Include either the docket 
number EERE-BT-PET-0024, and/or ``Massachusetts Petition'' in the 
subject line of the message.
    3. Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy, 
Building Technologies Program, Mailstop EE-2J, Room 1J-018, 1000 
Independence Avenue, SW., Washington, DC 20585-0121. Please submit one 
signed original paper copy.
    4. Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S. Department 
of Energy, Building Technologies Program, Room 1J-018, 1000 
Independence Avenue, SW., Washington, DC 20585-0121.
    5. Instructions: All submissions received must include the agency 
name and docket number for this proceeding. For detailed instructions 
on submitting comments and additional information on the proceeding, 
see section II. C of this document (Submission of Comments).
    Docket: For access to the docket to read the background documents 
relevant to this matter, go to the U.S. Department of Energy, Forrestal 
Building, Room 1J-018 (Resource Room of the Building Technologies 
Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-
2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays. Available documents include the following items: The 
Massachusetts Petition; correspondence from Massachusetts, 
correspondence from DOE, and any comments received. Please call Ms. 
Brenda Edwards-Jones at the above telephone number for additional 
information regarding visiting the Resource Room.
    Please note: DOE's Freedom of Information Reading Room (formerly 
Room 1E-190 at the Forrestal Building) is no longer housing rulemaking

[[Page 4549]]

materials. Electronic copies of the Petition are available online at 
DOE's Web site at the following URL address: http://www2.eere.energy.gov/buildings/appliance_standards/state_petitions.html.

FOR FURTHER INFORMATION CONTACT: Mohammed Khan, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, 
DC 20585-0121, (202) 586-7892, or e-mail: [email protected].
    Michael Kido, U.S. Department of Energy, Office of General Counsel, 
GC-72, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-
8145, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction
    A. Authority
    B. Background
    1. History of Energy Conservation Standards for Residential 
Furnaces
    2. Massachusetts Petition and Summary of Relevant State Laws
    3. Factors to Consider in Granting or Declining an Exemption
    C. Submission of Comments

I. Introduction

    This notice announces two items. First, it announces the receipt of 
a petition submitted by the Commonwealth of Massachusetts asking that 
DOE exempt the State's standard for non-weatherized gas furnaces from 
preemption. The following discussion presents a brief summary of the 
background relevant to this matter. Second, DOE is providing notice 
that it is availing itself of the additional time permitted under its 
regulations to respond to this petition. Accordingly, DOE anticipates 
issuing its decision on this matter by no later than October 6, 2010.

A. Authority

    Part A of Title III of the Energy Policy and Conservation Act, as 
amended (hereafter ``Act''or EPCA) established the Energy Conservation 
Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-
6309) Products covered under the program, including residential 
furnaces, and the authority to regulate them, are listed in section 
322. (42 U.S.C. 6292) Section 325(f) (42 U.S.C. 6295(f)) establishes 
standards for certain classes of residential furnaces and requires DOE 
to issue two rulemakings to consider further amendments. Federal 
conservation standards for residential products generally preempt State 
laws or regulations concerning energy conservation testing, labeling, 
and standards. (42 U.S.C. 6297(a)-(c)) However, DOE can grant waivers 
of Federal preemption (hereafter ``waiver'' or ``exemption'') for 
particular State laws or regulations, in accordance with the procedures 
and other provisions of section 327(d) of the Act. (42 U.S.C. 6297(d)) 
In particular, section 327(d)(1)(A) of EPCA provides that any State or 
river basin commission with a State regulation regarding energy use, 
energy efficiency, or water use requirements for products regulated by 
the Energy Conservation Program, may petition for an exemption from 
Federal preemption and seek to apply its own State regulation. (42 
U.S.C. 6297(d)(1)(A))

B. Background

1. History of Energy Conservation Standards for Residential Furnaces
    Energy conservation standards for residential furnaces were 
initially specified by EPCA in terms of annual fuel utilization 
efficiency (AFUE). EPCA set minimum standards for all furnaces except 
for mobile home furnaces and ``small'' furnaces (i.e., those units with 
an input capacity less than 45,000 British thermal units per hour (Btu/
h)) at 78% AFUE, with a compliance date of January 1, 1992. EPCA also 
specified a separate 75% AFUE standard for mobile home furnaces with a 
compliance date of September 1, 1990. (42 U.S.C. 6295(f)(1)-(2)) For 
furnaces with an input capacity less than 45,000 Btu/h, DOE published a 
final rule on November 17, 1989 that set the minimum standard for those 
products at 78% AFUE, with a compliance date of January 1, 1992. 54 FR 
47916.
2. Massachusetts Petition and Summary of Relevant State Laws
    On October 6, 2009, the U.S. Department of Energy's Office of 
Energy Efficiency and Renewable Energy received the Massachusetts 
Petition requesting an exemption from Federal Preemption its 90% Annual 
Fuel Utilization Efficiency Standard for Non-weatherized Gas Furnaces. 
The DOE believes that the Massachusetts Petition conforms to the filing 
requirements set out in 10 CFR 430.42 and accepts it for filing.
    In its petition, the Commonwealth of Massachusetts asserts that its 
90% AFUE efficiency standard for non-weatherized gas furnaces is needed 
to meet ``unusual and compelling'' interests that warrant granting of 
its petition. Massachusetts amended its 1986 laws regulating the 
efficiency of appliances in 2005 to establish the 90% AFUE requirement. 
Additionally, in 2008, the Commonwealth passed the Green Communities 
Act (GCA), which requires the electric and gas utilities to meet 
resource needs through cost effective energy efficiency and demand 
reduction resources, and the Global Warming Solutions Act (GWSA) 
requiring greenhouse gas emissions limits be set by 2011. (Commonwealth 
of MA, No. 1, p.22, 23) The Commonwealth further asserts that, 
collectively, these laws also demonstrate it has interests that are 
``different in nature or magnitude than those prevailing in the United 
States generally.'' (Commonwealth of MA, No. 1, p.15).
    Due to limited resources, DOE plans to issue a final decision on 
this issue by October 6, 2010, which is one year from the date of DOE's 
receipt of the Commonwealth's petition. This extension of time, which 
is permitted under 10 CFR 430.46(c), is necessary to provide DOE 
sufficient time to review the materials provided by the Commonwealth 
and to evaluate any data and information submitted by interested 
parties during the comment period.
3. Factors To Consider in Granting or Declining an Exemption
    Section 327(d) of EPCA sets forth factors that the Secretary of 
Energy (hereafter ``Secretary'') is to consider in evaluating whether 
to grant an exemption. (42 U.S.C. 6297(d)) Section 327(d)(1)(B) 
requires the Secretary to grant an exemption if the Secretary 
determines that the proffered State regulation ``is needed to meet 
unusual and compelling State or local water interests.'' (42 U.S.C. 
6297(d)(1)(B)) According to section 327(d)(1)(C) of the Act, ``unusual 
and compelling'' interests are defined as interests which ``(i) are 
substantially different in nature or magnitude than those prevailing in 
the United States generally; and (ii) are such that the costs, 
benefits, burdens, and reliability of energy or water savings resulting 
from the State regulation make such regulation preferable or necessary 
when measured against the costs, benefits, burdens, and reliability of 
alternative approaches to energy or water savings or production, 
including reliance on reasonably predictable market-induced 
improvements in efficiency of all products subject to the State 
regulation.'' (42 U.S.C. 6297(d)(1)(C)) According to sections 
327(d)(3)-(4), the Secretary may not grant an exemption if the 
Secretary finds that the State regulation would ``significantly burden 
manufacturing, marketing, distribution, sale, or servicing of the 
covered product on a

[[Page 4550]]

national basis,'' or ``result in the unavailability'' in the State of 
any covered product's ``performance characteristics (including 
reliability), features, sizes, capacities, and volumes that are 
substantially the same as those generally available in the State at the 
time of the Secretary's finding, except that the failure of some 
classes (or types) to meet this criterion shall not affect the 
Secretary's determination of whether to prescribe a rule for other 
classes (or types).'' (42 U.S.C. 6297(d)(3) and (4)) To evaluate 
whether the State regulation will create a significant burden, the 
Secretary is to consider ``all relevant factors,'' including the 
following:
    (A) The extent to which the State regulation will increase 
manufacturing or distribution costs of manufacturers, distributors, and 
others;
    (B) The extent to which the State regulation will disadvantage 
smaller manufacturers, distributors, or dealers or lessen competition 
in the sale of the covered product in the State;
    (C) The extent to which the State regulation would cause a burden 
to manufacturers to redesign and produce the covered product type (or 
class), taking into consideration the extent to which the regulation 
would result in a reduction--
    (i) In the current models, or in the projected availability of 
models, that could be shipped on the effective date of the regulation 
to the State and within the United States; or
    (ii) In the current or projected sales volume of the covered 
product type (or class) in the State and the United States; and
    (D) The extent to which the State regulation is likely to 
contribute significantly to a proliferation of State appliance 
efficiency requirements and the cumulative impact such requirements 
would have. (U.S.C. 6297(d)(3)(A) through (D))

C. Submission of Comments

    DOE will accept comments, data, and information regarding this 
notice no later than the date provided at the beginning of the notice. 
Please submit comments, data, and information electronically. Send them 
to the following e-mail address: [email protected]. Submit 
electronic comments in WordPerfect, Microsoft Word, PDF, or text 
(ASCII) file format and avoid the use of special characters or any form 
of encryption. Identify comments in electronic format by the docket 
number EERE-BT-PET-0024 and wherever possible include the electronic 
signature of the author. DOE does not accept telefacsimiles (faxes).
    In accordance with 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 copies: one copy of the 
document including all the information believed to be confidential, and 
one copy of the document with the information believed to be 
confidential deleted. DOE will make its own determination about 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 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) 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.

    Issued in Washington, DC, on January 22, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.
[FR Doc. 2010-1749 Filed 1-27-10; 8:45 am]
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