[Federal Register Volume 69, Number 242 (Friday, December 17, 2004)]
[Notices]
[Pages 75518-75521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27643]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy


Energy Conservation Program for Consumer Products: Decision and 
Order Denying the American Water Heater Company Petition for Waiver of 
the DOE Test Procedure for Measuring the Energy Consumption of Water 
Heaters (Case No. WH-010)

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

ACTION: Decision and Order; Denial of Petition for Waiver.

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SUMMARY: Today's notice denies the American Water Heater Company's 
(American) Petition for Waiver from the U.S. Department of Energy (DOE 
or the Department) Uniform Test Method for Measuring the Energy 
Consumption of Water Heaters. American claims the DOE test method does 
not allow for an accurate representation of the true energy consumption 
of its residential water heaters fitted with an automatic, adaptive, 
control, a microprocessor-based control system. The Department does not 
believe the current test procedure misrepresents the true energy 
consumption of the American water heater equipped with an automatic, 
adaptive, electronic control.

ADDRESSES: 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: <a href="/cdn-cgi/l/email-protection#581537303935353d3c7613303936183d3d763c373d763f372e"><span class="__cf_email__" data-cfemail="0a4765626b67676f6e2441626b644a6f6f246e656f246d657c">[email protected]</span></a>; or Francine Pinto, 
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: <a href="/cdn-cgi/l/email-protection#a6e0d4c7c8c5cfc8c388f6cfc8d2c9e6ced788c2c9c388c1c9d0"><span class="__cf_email__" data-cfemail="da9ca8bbb4b9b3b4bff48ab3b4aeb59ab2abf4beb5bff4bdb5ac">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: In accordance with 10 CFR part 430.27(l), 
notice is hereby given of the issuance of the Decision and Order as set 
out below. In the Decision and Order, American is denied a Waiver from 
the Department's Uniform Test Method for Measuring the Energy 
Consumption of Water Heaters for its water heaters that have automatic, 
adaptive, electronic controls.

    Issued in Washington, DC, on December 14, 2004.
David K. Garman,
Assistant Secretary, Energy Efficiency and Renewable Energy.

Decision and Order

    In the matter of: American Water Heater Company (American). (Case 
No. WH-010)

Background

    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'' which requires, 
among other things, that DOE prescribe standardized test procedures to 
measure the energy consumption of certain consumer products, including 
water heaters. The relevant DOE test procedure for purposes of today's 
decision and order is ``Uniform Test Method for Measuring the Energy 
Consumption of Water Heaters'' (current test procedure). The current 
test procedure is set forth in 10 CFR part 430, subpart B, Appendix E. 
It prescribes a method for characterizing the energy requirements of 
all types of water heaters and yields model-specific energy efficiency 
information that can aid consumers in their purchasing decisions.
    The Department's regulations contain provisions allowing a person 
to seek a waiver from the test procedure requirements for covered 
consumer products and electric motors. These provisions are set forth 
in 10 CFR 430.27 and 10 CFR 431.29. The waiver provisions allow the 
Assistant Secretary for Energy Efficiency and Renewable Energy 
(Assistant Secretary) to waive temporarily the test procedure 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. (10 CFR 430.27(l)) Waivers 
generally remain in effect until final test procedure amendments become 
effective, thereby resolving the problem that is the subject of the 
waiver.
    On January 24, 2002, the Department published a notice in the 
Federal Register, 67 FR 3449, (hereafter referred to as the January 
2002 notice) regarding a Petition for Waiver and Application for 
Interim Waiver received on April 26, 2001, from American. In its 
Petition for Waiver, American sought modifications to the DOE test 
procedure to accommodate its electric water heaters which are fitted 
with an automatic, adaptive, electronic control device said to 
automatically raise or lower the thermostat set point based on patterns 
of use. American has developed the automatic, adaptive, electronic 
control in an effort to reduce standby energy losses. American stated 
that by lowering the temperature of the water within the water heater 
tank, standby losses can be reduced. American requested four 
modifications to the current test procedure:
    (1) The inclusion of a qualification test on the automatic, 
adaptive, electronic control to ensure that it automatically changes 
the set point;
    (2) Change the specified nominal average tank temperature to the 
lowest stable temperature achieved by the automatic, adaptive, 
electronic control from the existing constant set point of 135[deg] F;
    (3) Change the volume of water of each draw to provide an equal 
amount of thermal energy as would be provided in each draw of the 
current procedure; and
    (4) Change the equations to compute the energy factor by replacing 
the 135[deg] F nominal temperature with T<INF>su</INF>, the maximum 
average tank temperature

[[Page 75519]]

observed after the recovery following the sixth draw.
    In the January 2002 notice, the Department denied an Interim Waiver 
to American from the current test procedure and solicited comments, 
data and information as to whether to grant the Petition for Waiver as 
well as comments on testing water heaters with electronic controls.

Assertions and Determinations

    The Department believes American's proposed test procedure is not 
appropriate because of certain issues which would arise from modifying 
the current test procedure as American requests. DOE received comments 
from the American Gas Association (AGA), American, Applied Energy 
Technology (AET), Rheem Manufacturing Company (Rheem), and Southern 
California Gas Company (SCG) in response to the Petition for Waiver and 
the January, 2002, notice. This section provides a discussion of the 
comments and places the issues into context.
    The current test procedure stipulates a first-hour rating test that 
provides for an estimate of the amount of ``hot'' water (water having a 
temperature above 110[deg] F) a storage water heater can supply within 
one hour. In its comments, AET and Rheem expressed concern that 
American did not propose a modified first-hour rating. In response to a 
similar DOE statement in the January 2002 notice, American provided 
results from first-hour rating tests for three of its basic models. 
These models were tested in accordance with the current test procedure 
except with the starting water heater tank temperature set at the 
lowest stable temperature, approximately 115[deg] F instead of 135[deg] 
F set point requirement. American asserted that this change to the 
first-hour rating test is appropriate because American advises 
consumers to use a thermostat set point of 120[deg] F. American further 
argued that its modified first-hour rating test accurately reflects the 
typical hourly consumption of actual consumer use since 115[deg] F is 
the typical temperature of tanks used by consumers.
    DOE believes the first-hour rating test, as proposed by American in 
its response to the January 2002 notice, is unacceptable because 
drawing hot water until a 25[deg] F drop is observed at the tank outlet 
from an initial temperature of 115[deg] F would result in water that 
could be too cold for residential use. For example, Chapter 49 of the 
2003 American Society of Heating, Refrigerating and Air-Conditioning 
Engineers (ASHRAE) Applications Handbook lists the following 
representative hot water temperatures for various uses:

Hand washing: 105[deg] F
Shaving: 115[deg] F
Showers and tubs: 110[deg] F
    Residential dish washing and laundry: 140[deg] F.

    None of the temperatures listed above for residential applications 
are less than 105[deg] F. Allowing American to draw water until the 
water temperature becomes 25[deg] F cooler than the 115[deg] F start 
temperature, as prescribed in its modified test proposal, would result 
in 90[deg] F water from the water heater. Water at 90[deg] F is below 
the recommended hot water temperatures such as those indicated in the 
ASHRAE Applications Handbook.
    With respect to American's proposal for a modified start-
temperature of 115[deg] F, AET recommended setting a lower limit on the 
temperature of the outlet water as a criterion for stopping a draw 
during the first-hour rating test as opposed to using a fixed 
temperature drop. Again, considering the ASHRAE recommended 
temperatures, DOE believes that a lower limit should not be less than 
105[deg] F. Allowing American to perform a first-hour rating test at a 
lower limit of 105[deg] F with a start temperature of 115[deg] F (or 
even 120[deg] F) could result in unequal delivery capacity ratings 
compared to water heaters that are unequipped with an automatic, 
adaptive, electronic control since start temperatures would be 
different and the lower limit could be different.
    The Department also believes that the effectiveness of the 
automatic, adaptive, electronic control in establishing and maintaining 
a lowest stable temperature under typical use patterns is 
unpredictable. In the January 2002 notice, DOE stated that ``American 
did not provide any test data that DOE could use to determine that a 
lower thermostat set point would result from typical household use * * 
*.'' American responded by reiterating that the laboratory test data of 
three of its water heater models showed that the automatic, adaptive, 
electronic control would reach a lowest stable temperature. While 
American's data demonstrates that three of its water heaters equipped 
with automatic, adaptive, electronic controls can create a lowest 
stable temperature in a laboratory setting, American did not provide 
data that shows that the lowest stable temperature achievable in a 
laboratory represents, or correlates to, what may be typical of 
household use in the field. AET, Rheem, and SCG argued that American's 
request to test the water heater at the lowest stable temperature is 
inappropriate because there is no guarantee that in actual practice, 
the water heater would operate at such a level. Rheem and AET both 
stated that the proposed test procedure uses a best-case scenario and 
not necessarily thermostat set-points representative of actual field 
use.
    American did not respond to DOE's request for data that 
characterizes water usage in family dwellings. American also did not 
provide evidence that, in actual field use, its water heaters would 
store water at the lowest stable temperature said to be achievable by 
the automatic, adaptive, electronic control. The data American provided 
to DOE on February 14, 2002, in response to the notice of January 2002, 
however, shows the performance of one water heater from each of four 
classes under a regulated draw pattern that artificially moves the 
thermostat set point up or down. The regulated draws are not 
necessarily representative of typical household water demand patterns 
and thus not necessarily representative of typical set-point 
temperatures and hot water temperatures. In its comments, American 
provides additional laboratory-derived data for four of the six basic 
models for which it seeks a waiver. American states that this data 
shows that the lowest, stable attainable temperatures range from 
112[deg] F to 118[deg] F, and the temperature difference results from 
the control algorithm and hardware. Again however, American did not 
provide data that shows how the lowest stable temperature achievable in 
a laboratory represents or correlates to what may be typical of 
household use in the field.
    Rheem also points out that the automatic, adaptive, electronic 
control has (four) different modes which can be manually selected. In 
addition to the ``Energy Saver Cycle'' mode, which American terms the 
control mode responsible for adjusting the stored water temperature 
based on the actual hot water usage pattern, the automatic, adaptive, 
electronic control includes a manually selectable constant temperature 
mode, a manually selectable vacation mode, and a manually selectable 
low-temperature mode. Because these modes can be manually selected, the 
Department recognizes that consumers may select a mode other than the 
Energy Saver Cycle mode. The potential energy savings, which American 
claims are achievable in the Energy Saver Cycle mode, would not be 
attained if the user selects an operating mode other than the Energy 
Saver Cycle (e.g., a fixed set point of 135[deg] F). The Department 
believes American has not demonstrated how the

[[Page 75520]]

consumer would set, and keep, the automatic, adaptive, electronic 
control in the Energy Saver Cycle mode.
    The automatic, adaptive, electronic control's ability to 
automatically raise the set-point temperature when hot water demand is 
high poses a concern. It is conceivable that in actual field use, the 
new automatic, adaptive, electronic control could result in higher 
energy consumption since it is capable of upwardly adjusting the set 
point, making the water temperature inside the tank higher than that 
ordinarily observed or higher than the set-point temperature prescribed 
in the current test procedure. Operating at set-point temperatures 
higher than those prescribed in the current test procedure would result 
in energy consumption higher than that observed using the current test 
procedure.
    Another reason the DOE believes American's proposed modifications 
are not suitable is that the modifications could allow for inequitable 
testing. AGA, AET, Rheem, and SCG believe American's proposed test 
procedure is biased towards the specific control device American has 
introduced. AGA, AET, and SCG commented that providing an exemption for 
such a control offers an unfair advantage to electric water heaters, as 
most gas water heaters do not incorporate an electricity source whereby 
an automatic controller such as American's can be powered and operated. 
Rheem and AET indicated that the proposed waiver would discount other 
types of controls. For example, conventional thermostats are also a 
type of control, but these simple and low-cost devices would not be 
covered under American's proposed rating procedure. American proposes a 
particular test that would qualify its control, but other controllers 
that work in a slightly different manner would not qualify under 
American's test, despite being capable of forcing the tank temperature 
to a lower level. SCG stated that, because of the large variability in 
hot water use, the purpose of the current test procedure is to provide 
a level playing field while not necessarily duplicating actual 
household energy consumption. Besides its assertion of posing an unfair 
advantage, AET also stated that, since American indicates no lowest 
stable temperature, the proposed modification would result in a test 
procedure potentially subject to abuse by allowing water heaters to be 
tested at temperatures that would not be considered useful. The 
proposed test procedure is potentially subject to further abuse since 
American has not specified thermostat cut-out and cut-in temperatures.
    DOE believes the current test procedure provides for an equitable 
test metric for all applicable water heaters and an evaluation method 
that is representative of the true energy consumption of the water 
heater in question under the demand conditions specified. The current 
24-hour-simulated-use test procedure simulates the consumption of hot 
water; the test begins with six draws at one-hour intervals. The total 
amount of water removed from the tank in these equally sized draws is 
64.3 gallons at a flow rate of three gallons per minute. After the draw 
portion of the test, the water heater sits idly until a period of time 
totaling 24 hours has elapsed. The temperature of the water in the tank 
is set at 135[deg] F, and the temperature of the inlet water is set at 
58[deg] F. The current test procedure says 135[deg] F is the needed 
water temperature; American's proposed test would not allow the water 
heater to yield a water temperature of 135[deg] F. American suggests a 
modified procedure, which is to deliver the identical amount of thermal 
energy by increasing the amount of water drawn from the tank at a lower 
temperature. This modification however, would not emulate a demand 
condition requiring 135[deg] F water. Granting American's waiver 
request would result in an inequitable metric as some water heaters 
would need to satisfy demands at 135[deg] F while others would only 
need to satisfy demands at much lower temperatures.
    A control device such as American's can provide an automated means 
for changing the temperature of the water stored in a water heater. 
However, DOE does not believe that a waiver for a lower set-point-
temperature is warranted on the basis of automation. American argues 
that its automatic, adaptive, electronic control will automatically 
cause the water heater to operate at a lower temperature than is 
required in the current test procedure and thus, should be tested at a 
lower temperature. While water heaters with conventional controllers 
can be manually set to operate at a lower temperature than is specified 
in the DOE test procedure and thus achieve the same effect as 
American's automatic, adaptive, electronic control, the current test 
procedure does not allow for a manual change. American's control 
feature does not change the fundamental operation of its water heater 
or create a unique operating regime that is unattainable by water 
heaters equipped with conventional controls. For these reasons also, 
DOE believes that allowing American to test its water heater equipped 
with its automatic, adaptive, electronic control at a set-point 
temperature lower than that specified in the current test procedure 
would create an inequitable test standard.
    DOE believes American has not provided sufficient evidence to 
establish that the current test procedure misrepresents the true energy 
consumption of its water heater equipped with its new automatic, 
adaptive, electronic control. American has also not substantiated its 
claim that a water heater with its automatic, adaptive, electronic 
control will save energy compared to a water heater with a conventional 
control when responding to the same demand conditions. American has 
responded to DOE's request for more data by providing results on three 
tanks in a laboratory setting in which a series of short draws 
demonstrated an automatic decrease in tank temperature, and longer 
draws show an automatic increase in temperature. While the test results 
show that the automatic, adaptive, electronic control can decrease the 
temperature of the water inside the tank to a minimally acceptable 
temperature, as defined by the automatic, adaptive, electronic control, 
the results fail to demonstrate energy savings at temperatures matching 
those prescribed in the current DOE test procedure. Moreover, American 
has not provided data that justify a deviation from the prescribed 
temperatures. A demonstration of performance under an artificial draw 
pattern that is designed to force the water heater to its optimum 
control settings, which do not correspond to set-point temperatures 
prescribed in the current DOE test procedure and which are too low to 
yield water that is sufficiently warm for recommended household uses, 
is insufficient to establish that testing in accordance with the 
current test procedure would result in materially inaccurate 
comparative energy consumption data. The energy consumption measured 
under the current test procedure would not be misrepresentative of 
American's water heaters' true energy consumption under the demand 
conditions assumed in the test procedure. Accordingly, the petitioner 
has not met the criterion in 10 CFR 430.27 (l) that a waiver be granted 
if the prescribed test procedure evaluates the basic model in a manner 
so unrepresentative of its true energy consumption as to provide 
materially inaccurate comparative data.
    Furthermore, the Department believes American's automatic, 
adaptive, electronic control does not preclude testing in accordance 
with the current test procedure, and no other aspect of

[[Page 75521]]

the water heater's design precludes testing it in accordance with the 
provisions in the current test procedure. The Department has determined 
that the relevant basic models of water heaters that are the subject of 
the application for waiver can be tested under the current test 
procedure. AGA agrees with this conclusion; it stated that there is 
nothing that prevents American's water heater from being tested under 
the current test procedure, and that test results would accurately 
predict energy consumption under the behavioral assumptions inherent in 
the test procedure (namely, the amount of water required and the 
temperature at which that water is needed). Accordingly, the petitioner 
has not met the criterion in 10 CFR 430.27 (l) that the basic model 
contains one or more design characteristics that prevent testing 
according to the prescribed test procedures.

Conclusion

    Following a careful consideration of all the material that was 
submitted by American, the comments received, and based on the criteria 
for granting a waiver as provided in 10 CFR 430.27 (l), it is ordered 
that no waiver will be granted.

    Issued in Washington, DC, on December 14, 2004.
David K. Garman,
Assistant Secretary, Energy Efficiency and Renewable Energy.
[FR Doc. 04-27643 Filed 12-16-04; 8:45 am]
BILLING CODE 6450-01-P


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