[Federal Register Volume 69, Number 103 (Thursday, May 27, 2004)]
[Rules and Regulations]
[Pages 30175-30181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12034]



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DEPARTMENT OF ENERGY

10 CFR Part 431


Office of Energy Efficiency and Renewable Energy; Energy 
Conservation Program for Certain Industrial Equipment: Granting of the 
Application for Interim Waiver and Publishing of the Petition for 
Waiver of Bock Water Heaters, Inc. From the DOE Uniform Federal Test 
Procedure for Measuring Efficiency of Commercial Water Heaters (Case 
No. WH-018)

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

ACTION: Notice of petition for waiver and solicitation of comments; 
grant of interim waiver.

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SUMMARY: Today's notice grants an Interim Waiver to Bock Water Heaters, 
Inc. (BWH) and publishes BWH's Petition for Waiver from the existing 
Department of Energy (the Department or DOE) test procedure for 
commercial water heaters. BWH claims that it cannot demonstrate 
compliance with the new energy efficiency requirements for commercial 
water heating products that became effective October 29, 2003, for some 
of its water heater models, using the current test procedure. The test 
procedure for measuring compliance with the new standards was published 
as a proposed rule on August 9, 2000, and has not yet been finalized. 
As part of today's action, the Department is also soliciting comments, 
data, and information with respect to the Petition for Waiver.

DATES: The Department will accept comments, data, and information with 
respect to this Petition for Waiver on or before June 28, 2004.

ADDRESSES: You may submit comments, identified by Case No. WH-018, by 
any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: commercial waterheater [email protected]. Include 
Case No. WH-018 in the subject line of the message.
     Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy, 
Building Technologies Program, Mailstop EE-2J, Commercial Water Heater 
Waiver, Case No. WH-018, 1000 Independence Avenue, SW., Washington, DC, 
20585-0121. Telephone: (202) 586-2945. Please submit one signed paper 
original.
     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.
    To read background documents or comments received, 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) 586-9127, between 9 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays. Please call Ms. Brenda 
Edwards-Jones at the above telephone number for additional information 
regarding visiting the Resource Room. Please note: The Department's 
Freedom of Information Reading Room (formerly Room 1E-190 at the 
Forrestal Building) is no longer housing rulemaking materials.

FOR FURTHER INFORMATION CONTACT: Mohammed Khan, U.S. Department of 
Energy, Building Technologies Program, Mail Stop EE-2J, Forrestal 
Building, 1000 Independence Avenue, SW., Washington, DC 20585-0121, 
(202) 586-7892; e-mail: [email protected]; or Francine Pinto, 
Esq., or Thomas DePriest, Esq., U.S. Department of Energy, Office of 
General Counsel, Mail Stop GC-72, Forrestal Building, 1000 Independence 
Avenue, SW., Washington, DC 20585-0103, (202) 586-9507; e-mail: 
[email protected], or Thomas.DePriest @hq.doe.gov.

SUPPLEMENTARY INFORMATION: Title III of the Energy Policy and 
Conservation Act (EPCA) sets forth a variety of provisions concerning 
energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides 
for the ``Energy Conservation Program for Consumer Products Other than 
Automobiles.'' Part C of Title III (42 U.S.C. 6311-6317) provides for a 
program entitled, ``Certain Industrial Equipment,'' which is similar to 
the program in Part B, and which includes commercial air conditioning 
equipment, packaged boilers, water heaters, and other types of 
commercial equipment.
    Today's notice involves commercial equipment under Part C, which 
specifically provides for definitions, test procedures, labeling 
requirements, energy conservation standards, and information and 
reports from manufacturers. With respect to test procedures, Part C 
generally authorizes the Secretary of Energy to prescribe test 
procedures that are reasonably designed to produce results that reflect 
energy efficiency, energy use and estimated annual operating costs, and 
that are not unduly burdensome to conduct. (42 U.S.C. 6314)
    For commercial water heaters, EPCA provides that DOE's test 
procedure shall be that generally accepted industry test procedure 
developed or recognized by the Air-Conditioning and Refrigeration 
Institute (ARI) or by the American Society of Heating, Refrigerating 
and Air Conditioning Engineers (ASHRAE), as referenced in ASHRAE/
Illuminating Engineers Society (IES) Standard 90.1 and in effect on 
June 30, 1992. (42 U.S.C. 6314(a)(4)(A)) This statute also provides 
that if this industry test procedure is amended, the Secretary of 
Energy shall amend DOE's test procedure to be consistent with the 
amended industry test procedure, unless the Secretary determines that 
such a modified test procedure does not meet the statutory criteria. 
(42 U.S.C. 6314(a)(4)(B))
    The current DOE test procedure that is applicable to this equipment 
is the one referenced in the version of ASHRAE/IES 90.1 in effect in 
1992, the American National Standards Institute (ANSI)/Canadian 
Standards Association (CSA) Standard Z21.10.3-1990. In response to 
ASHRAE's amendment to this standard, the Department issued a Notice of 
Proposed Rulemaking to adopt an updated test procedure for commercial 
water heaters, ANSI/CSA Standard Z21.10.3-1998, which is referenced in 
ASHRAE/IES Standard 90.1-1999. (65 FR 48852, August 9, 2000) The 
Department however, has not taken final action with respect to the 
proposed rule. Thus, the Standard Z21.10.3-1990 remains the applicable 
test procedure.
    In January 2001, the Department adopted the AHSRAE 90.1-1999 energy 
efficiency standards for commercial gas-fired and oil-fired water 
heaters as new Federal efficiency standards effective October 29, 2003. 
(66 FR 3335, January 12, 2001) Because the Department has not yet 
issued a final rule on its proposal for an updated test procedure for 
commercial water heaters, commercial water heater manufacturers must 
demonstrate compliance with the new energy efficiency standards using 
the existing DOE test procedure.
    The Department is required to make adjustments to its regulations, 
as necessary, to prevent special hardship, inequity or unfair 
distribution of burdens. (42 U.S.C. 7194) Currently, the Department has 
regulatory provisions in 10 CFR 430.27 and 10 CFR 431.29 allowing a 
waiver from test procedure requirements for covered consumer products 
and electric motors. There are no specific waiver provisions for other 
covered commercial equipment. However, the Department proposed waiver 
provisions for covered

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commercial equipment on December 13, 1999 (64 FR 69597), as part of the 
commercial furnace test procedure rule, and the Department expects to 
publish a final rule codifying this process in 10 CFR 431.201. Until 
that occurs, DOE will use the waiver provisions for consumer products 
and electric motors for waivers involving other covered commercial 
equipment. These waiver provisions are substantively identical.
    The waiver provisions allow the Assistant Secretary for Energy 
Efficiency and Renewable Energy to waive temporarily the test 
procedures for a particular basic model when a petitioner shows that 
the basic model contains one or more design characteristics that 
prevent testing according to the prescribed test procedures, or when 
the prescribed test procedures may evaluate the basic model in a manner 
so unrepresentative of its true energy consumption as to provide 
materially inaccurate comparative data. (See 10 CFR 430.27 (a)(1), 10 
CFR 431.29 (a)(1).) Waivers generally remain in effect until final test 
procedure amendments become effective, thereby resolving the problem 
that is the subject of the waiver.
    DOE will grant an Interim Waiver if it determines that the 
applicant will experience economic hardship if the Application for 
Interim Waiver is denied, if it appears likely that the Petition for 
Waiver will be granted, and/or the Assistant Secretary determines that 
it would be desirable for public policy reasons to grant immediate 
relief pending a determination on the Petition for Waiver. (See 10 CFR 
430.27 (g).) An Interim Waiver remains in effect for a period of 180 
days or until DOE issues its determination on the Petition for Waiver, 
whichever is sooner, and may be extended for an additional 180 days, if 
necessary.
    On September 10, 2003, BWH filed a Petition for Waiver and 
Application for Interim Waiver from the ``DOE Uniform Federal Test 
Procedure for Measuring Efficiency of Commercial Water Heaters,'' 
referenced in the version of ASHRAE 90.1 in effect in 1992, ANSI/CSA 
Z21.10.3-1990. It requested permission to use ASHRAE Standard 118.1-
2003 as an alternate test procedure for its water heating products 
having the following model numbers: 71PG, 120PG, 190PG, 241PG, 361PG, 
70G-190SD, 75G-145D/SD, and 100G-180SD.
    In its petition, BWH seeks a waiver from the applicable test 
procedure because BWH asserts that the current DOE test procedure is 
incompatible with the new DOE energy efficiency standards, which became 
effective on October 29, 2003. BWH also states that the above-specified 
models of water heating products do not meet the new energy efficiency 
requirements using the current test procedure.
    Due to the fact that DOE has experienced delays in publishing a 
final rule for the test procedure for commercial water heating 
products, and also recognizes that certain basic models of commercial 
water heaters are allegedly not compliant with the new energy 
efficiency standards absent a waiver from the current DOE test 
procedure, the Department has decided to grant this interim waiver to 
ensure that such models do not become noncompliant. However, the 
Department believes the appropriate alternate is the test procedure 
published in the August 9, 2000, proposed rule, which incorporates by 
reference ANSI/CSA Standard Z21.10.3-1998, the applicable industry 
standard referenced by ASHRAE/IES Standard 90.1-1999. EPCA requires the 
Department, for certain commercial equipment, to amend its test 
procedures consistent with amended ASHRAE or ARI industry test 
procedures. (42 U.S.C. 6314(4)(B)) Because ASHRAE Standard 118.1-2003 
is not referenced in the amended ASHRAE Standard 90.1-1999, it would be 
inconsistent with the statutory language of EPCA to use it as an 
alternate test procedure as BWH requests.
    The most significant differences between the protocols presented in 
the proposed August 9, 2000, DOE test procedure and those presented in 
ASHRAE Standard 118.1-2003 are the duration requirements for the 
Standby Loss Test; other differences are minimal. The ANSI/CSA Standard 
Z21.10.3-1998 test procedure specifies that the Standby Loss Test shall 
continue until the first cutout occurs following 24 hours from the time 
data collection is initiated. Because it is possible for some water 
heaters to not experience the cutout until days beyond the 24 hour 
limit, the industry test standard, ASHRAE Standard 118.1-2003, includes 
a 48-hour limit to preclude undue test burdens. The inclusion of a 48-
hour provision in the proposed DOE test procedure was suggested by the 
Gas Appliance Manufacturers Association (GAMA) and the California 
Energy Commission (CEC) in comments submitted in response to the August 
9, 2000, proposed rule. The Department agrees with the need for the 
additional test duration requirement and believes that the evidence in 
the record is clear and convincing that without the 48-hour termination 
provision, the standby loss test procedure in the ANSI/CSA Standard 
Z21.10.3-1998 can pose undue burdens on manufacturers. Therefore, this 
waiver authorizes the use of ANSI/CSA Standard Z21.10.3-1998, and 
regarding the Standby Loss Test in section 2.10 of ANSI/CSA Standard 
Z21.10.3-1998, adds the requirement that the standby loss test duration 
shall be the shorter of either, (1) until the first cutout following 24 
hours from the initiation of data collection, or (2) until 48 hours 
from the initiation of data collection if the water heater is not in 
the heating mode at that time.
    After careful consideration of all the material that was submitted 
by BWH and others, the Department has decided to grant this interim 
waiver for the public policy reason that it is not desirable to make 
certain models of commercial water heaters noncompliant with the 
applicable energy efficiency standards given that the appropriate test 
procedure is not yet finalized. Hence, it is ordered that:
    (1) The ``Application for Interim Waiver'' filed by BWH is hereby 
granted for the basic models of water heating equipment as follows: 
71PG, 120PG, 190PG, 241PG, 361PG, 70G-190SD, 75G-145D/SD, and 100G-
180SD.
    (2) BWH is permitted the use of ANSI/CSA Standard Z21.10.3-1998 to 
establish compliance with the efficiency standards for its water 
heating products manufactured after October 29, 2003. Further, 
regarding the Standby Loss Test, section 2.10 of ANSI/CSA Standard 
Z21.10.3-1998, the use of an additional test duration requirement is 
permitted as follows: The standby loss test duration shall be the 
shorter of either, (i) until the first cutout following 24 hours from 
the initiation of data collection, or (ii) until 48 hours from the 
initiation of data collection if the water heater is not in the heating 
mode at that time.
    This Interim Waiver is based upon the presumed validity of 
statements and all allegations submitted by the company. This Interim 
Waiver may be removed or modified at any time upon a determination that 
the factual basis underlying the Application is incorrect.
    This Interim Waiver shall remain in effect for a period of 180 days 
after issuance or until DOE acts on the Petition for Waiver, whichever 
is sooner, and may be extended for an additional 180-day period, if 
necessary. DOE is hereby publishing the ``Petition for Waiver'' in its 
entirety. (See 10 CFR 430.27(b)) The Petition contains no confidential 
information. The Department solicits comments, data, and information 
respecting the Petition.

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    Any person submitting written comments to DOE concerning either the 
Petition for Waiver or Interim Waiver must also send a copy of such 
comments to the petitioner. 10 CFR 430.27(b)(1)(iv) and 430.27(d).

    Issued in Washington, DC, on May 21, 2004.
David K. Garman,
Assistant Secretary, Energy Efficiency and Renewable Energy.
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[FR Doc. 04-12034 Filed 5-26-04; 8:45 am]
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