Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Rules and Regulations 74559 

1This part was originally titled Part B. It was 

redesignated Part A in the United States Code for 

editorial reasons. 

■ d. In newly redesignated paragraph 

(h), by removing the words ‘‘through 

(h)’’ and adding the words ‘‘through (g)’’ 

in their place. 

Done in Washington, DC, this 11th day of 

December 2012. 

Kevin Shea, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2012–30259 Filed 12–14–12; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No. EERE–2009–BT–TP–0013] 

RIN 1904–AB95 

Energy Conservation Program for 

Consumer Products: Test Procedures 

for Residential Water Heaters, Direct 

Heating Equipment, and Pool Heaters 

(Standby Mode and Off Mode) 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: Where appropriate, the U.S. 

Department of Energy (DOE) is 

amending its test procedures for 

residential water heaters, direct heating 

equipment (DHE), and pool heaters to 

include provisions for measuring 

standby mode and off mode energy 

consumption, as required by the Energy 

Independence and Security Act of 2007 

(EISA 2007). DOE has concluded that 

such amendments are necessary for 

direct heating equipment and pool 

heaters, but test procedure amendments 

are not necessary for residential water 

heaters, because the existing test 

procedures for those products already 

address standby mode and off mode 

energy use. These test procedure 

amendments are primarily based upon 

provisions of the latest version of the 

International Electrotechnical 

Commission (IEC) Standard 62301 

(Second Edition 2011–01), ‘‘Household 

electrical appliances—Measurement of 

standby power,’’ which is incorporated 

by reference. For direct heating 

equipment and pool heaters, this final 

rule also adds new calculations to 

determine the annual energy 

consumption associated with product 

operation in standby mode and off 

mode, and it modifies the existing 

energy consumption equations to 

integrate standby mode and off mode 

energy consumption into the calculation 

of overall annual energy consumption of 

these products. For pool heaters only, 

the standby mode and off mode energy 

consumption is integrated into the 

efficiency metric. This rulemaking also 

adopts a number of definitions for key 

terms, as well as clarifies the rounding 

guidance and sampling provisions for 

the new measurement of standby mode 

and off mode. 

DATES: This rule is effective January 16, 

2013. The incorporation by reference of 

certain publications listed in this rule is 

approved by the Director of the Federal 

Register on January 16, 2013. 

The compliance date for any 

representations relating to standby 

mode and off mode of residential direct 

heating equipment and pool heaters is 

June 17, 2013; on and after this date, 

any such representations must be based 

upon results generated under these test 

procedures and sampling plans. For 

purposes of compliance with energy 

conservation standards, these test 

procedure amendments related to 

standby mode and off mode are not 

required at this time, but their use will 

be required upon the compliance date of 

the next standards final rule which will 

address standby mode and off mode. 

ADDRESSES: The docket for this 

rulemaking is available for review at 

www.regulations.gov, including Federal 

Register notices, public meeting 

attendee lists and transcripts, 

comments, and other supporting 

documents/materials. 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 www.regulations.gov. This Web 

page will contain a link to the docket for 

this notice in the www.regulations.gov 

Web site. The www.regulations.gov Web 

page contains simple instructions on 

how to access all documents, including 

public comments, in the docket. 

For further information on how to 

review the docket, contact Ms. Brenda 

Edwards at (202) 586–2945 or by email: 

Brenda.Edwards@ee.doe.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

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. 

Telephone: (202) 586–7892. Email: 

Mohammed.Khan@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. 

SUPPLEMENTARY INFORMATION: This final 

rule incorporates by reference into Part 

430 the following standard: 

ANSI Z21.56–2006 (‘‘ANSI Z21.56’’), 

Standard for Gas-Fired Pool Heaters, 

approved December 13, 2005, IBR 

approved for Appendix P to Subpart B. 

Copies of the ANSI Z21.56–2006 can 

be purchased from the American 

National Standards Institute, 11 West 

42nd Street, New York, New York 

10036, (212) 642–4936, or http:// 

webstore.ansi.org. 

Table of Contents 

I. Background and Authority 

II. Summary of the Final Rule 

III. Discussion 

A. Determination Not To Amend Test 

Procedures for Residential Water Heaters 

B. Use of IEC Standard 62301 (Second 

Edition), ‘‘Household Electrical 

Appliances—Measurement of Standby 

Power’’ 

C. Requirements for Unvented Heaters and 

Exclusion From Testing 

D. Technical Feasibility of an Integrated 

Efficiency Metric for Vented Heaters and 

Pool Heaters 

E. Hearth Products Coverage 

F. Review of Burner Operating Hours 

Estimates 

G. Other Issues Raised in the Supplemental 

Notice of Proposed Rulemaking 

IV. Effective Date and Compliance Date 

V. Compliance With Other EPCA 

Requirements 

VI. 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 Section 32 of the Federal 

Energy Administration Act of 1974 

M. Congressional Notification 

VII. Approval of the Office of the Secretary 

I. Background and Authority 

Title III of the Energy Policy and 

Conservation Act (42 U.S.C. 6291 et 

seq.; EPCA or the Act) sets forth a 

variety of provisions designed to 

improve energy efficiency. Part A 1 of 

Title III (42 U.S.C. 6291–6309) 

establishes the ‘‘Energy Conservation 

Program for Consumer Products Other 

Than Automobiles,’’ including 


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74560 Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Rules and Regulations 

2All references to EPCA refer to the statute as 

amended through the Energy Independence and 

Security Act of 2007, Public Law 110–140. 

3 IEC standards are available for purchase at: 

www.iec.ch. 

4EISA 2007 directs DOE to also consider IEC 

Standard 62087 when amending its test procedures 

to include standby mode and off mode energy 

consumption. See 42 U.S.C. 6295(gg)(2)(A). 

However, IEC Standard 62087 addresses the 

methods ofmeasuring the power consumption of 

audio, video, and related equipment. Accordingly, 

the narrow scope of this particular IEC standard 

reduces its relevance to today’s rule. 

residential water heaters, direct heating 

equipment, and pool heaters (all of 

which are referenced below as ‘‘covered 

products’’).2 (42 U.S.C. 6292(a)(4), (9), 

and (11)) 

Under the Act, this program consists 

essentially of four parts: (1) Testing; (2) 

labeling; (3) establishing Federal energy 

conservation standards; and (4) 

certification and enforcement 

procedures. The testing requirements 

consist of test procedures that 

manufacturers of covered products must 

use as the basis for certifying to DOE 

that their products comply with 

applicable energy conservation 

standards adopted pursuant to EPCA 

and for making representations about 

the efficiency of those products. (42 

U.S.C. 6293(c); 42 U.S.C. 6295(s)) 

Similarly, DOE must use these test 

procedures to determine whether the 

products comply with standards 

adopted under EPCA. (42 U.S.C. 

6295(s)) 

Under 42 U.S.C. 6293, EPCA sets forth 

criteria and procedures that DOE must 

follow when prescribing or amending 

test procedures for covered products. 

EPCA provides, in relevant part, that 

any test procedures prescribed or 

amended under this section must be 

reasonably designed to produce test 

results which measure energy 

efficiency, energy use, or estimated 

annual operating cost of a covered 

product during a representative average 

use cycle or period of use, and must not 

be unduly burdensome to conduct. (42 

U.S.C. 6293(b)(3)) 

In addition, if DOE determines that a 

test procedure amendment is warranted, 

it must publish proposed test 

procedures and offer the public an 

opportunity to present oral and written 

comments on them. (42 U.S.C. 

6293(b)(2)) Finally, in any rulemaking to 

amend a test procedure, DOE must 

determine the extent to which the 

proposed test procedure would alter the 

product’s measured energy efficiency. 

(42 U.S.C. 6293(e)(1)) If DOE determines 

that the amended test procedure would 

alter the measured efficiency of a 

covered product, DOE must amend the 

applicable energy conservation standard 

accordingly. (42 U.S.C. 6293(e)(2)) 

On December 19, 2007, the Energy 

Independence and Security Act of 2007 

(EISA 2007), Public Law 110–140, was 

enacted. The EISA 2007 amendments to 

EPCA, in relevant part, require DOE to 

amend the test procedures for all 

covered products to include measures of 

standby mode and off mode energy 

consumption. Specifically, section 310 

of EISA 2007 provides definitions of 

‘‘active mode,’’ ‘‘standby mode,’’ and 

‘‘off mode’’ (42 U.S.C. 6295(gg)(1)(A)); 

however, the statute permits DOE to 

amend these definitions in the context 

of a given product (42 U.S.C. 

6295(gg)(1)(B)). The statute requires 

integration of such energy consumption 

into the overall energy efficiency, 

energy consumption, or other energy 

descriptor for each covered product, 

unless the Secretary determines that: (1) 

The current test procedures for a 

covered product already fully account 

for and incorporate the standby mode 

and off mode energy consumption of the 

covered product; or (2) such an 

integrated test procedure is technically 

infeasible for a particular covered 

product, in which case the Secretary 

shall prescribe a separate standby mode 

and off mode energy use test procedure 

for the covered product, if technically 

feasible. (42 U.S.C. 6295(gg)(2)(A)) 

Under the statutory provisions 

adopted by EISA 2007, any such 

amendment must consider the most 

current versions of IEC Standard 62301, 

Household electrical appliances— 

Measurement of standby power, and IEC 

Standard 62087, Methods of 

measurement for the power 

consumption of audio, video, and 

related equipment .3 Id. At the time of 

enactment of EISA 2007, the most 

current version of the relevant IEC 

standard was IEC Standard 62301 (First 

Edition 2005–06).4

DOE’s test procedures for residential 

water heaters are found in the Code of 

Federal Regulations (CFR) at 10 CFR 

430.23(e) and 10 CFR part 430, subpart 

B, appendix E. The test procedures 

include provisions for determining the 

energy efficiency (energy factor (EF)), as 

well as the annual energy consumption 

of these products. 

There are separate test procedures for 

the two types of direct heating 

equipment (i.e., vented home heating 

equipment and unvented home heating 

equipment), specifically 10 CFR 

430.23(g) and 10 CFR part 430, subpart 

B, appendix G for unvented home 

heating equipment, and 10 CFR 

430.23(o) and 10 CFR part 430, subpart 

B, appendix O for vented home heating 

equipment. (Hereafter in this notice, the 

terms ‘‘vented heater’’ and ‘‘unvented 

heater’’ are used as shorthand to 

describe the two types of direct heating 

equipment.) The vented heater test 

procedures include provisions for 

determining energy efficiency (annual 

fuel utilization efficiency (AFUE)), as 

well as annual energy consumption. The 

unvented heater test procedures 

currently have no provisions for 

determining energy efficiency, as all 

unvented heaters are considered 100- 

percent efficient, because there is no 

opportunity for energy loss as is the case 

for vented heaters. However, for 

unvented heaters that are the primary 

heating source for the home, there is a 

calculation of annual energy 

consumption based on a single 

assignment of active mode hours. For 

unvented heaters that are not the 

primary heating source for the home, 

there are no calculation provisions for 

either efficiency or annual energy 

consumption. Given that unvented 

heaters are considered 100-percent 

efficient, DOE has not established a test 

procedure for determining energy 

efficiency of these products (and thus, 

has not established energy conservation 

standards for these products), as there 

would be no energy savings that would 

result from such actions. 

DOE’s test procedures for pool heaters 

are found at 10 CFR 430.23(p) and 10 

CFR part 430, subpart B, appendix P. 

The test procedures include provisions 

for determining two energy efficiency 

descriptors (i.e., thermal efficiency and 

pool heater heating seasonal efficiency), 

as well as seasonal energy consumption. 

The test procedures for residential 

water heaters include a full-year 

accounting of energy use, both 

electricity and fossil fuel as applicable 

to a given water heater. Specifically, the 

standby loss testing in the existing test 

procedure is synonymous with what 

EISA 2007 asks for inclusion in all test 

procedures, and, the EISA 2007 

definition of ‘‘off mode’’ is inapposite to 

water heater operation. Accordingly, it 

was tentatively concluded that the 

current test procedures for water heaters 

already fully account for and 

incorporate measurement of standby 

mode and off mode energy 

consumption, as required by EISA 2007. 

It is important to note that fossilfueled direct heating equipment and 

pool heaters typically consume both 

fossil fuel and electricity. Electric direct 

heating equipment only consumes 

electricity. In the existing test 

procedures for direct heating 

equipment, fossil-fuel energy 

consumption is accounted for 

comprehensively over a full-year cycle, 

thereby satisfying EISA 2007 


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Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Rules and Regulations 74561 

5 DOE notes that it is currently considering 

potential revisions to the test procedures for 

residential water heaters, direct heating equipment, 

and pool heaters in a separate rulemaking. This 

inquiry is more broadly focused and includes 

consideration of active mode operation, in contrast 

to today’s final rule, which is limited to standby 

mode and off mode. DOE published a request for 

information (RFI) for this rulemaking in the Federal 

Register on October 12, 2011. 76 FR 63211. 

requirements for fossil-fuel standby 

mode and off mode energy 

consumption. In the existing test 

procedures for pool heaters, fossil-fuel 

standby mode is included but off mode 

is not included. Electrical energy 

consumption in standby mode and off 

mode is not accounted for in either the 

direct heating equipment or pool heater 

test procedure. 

Proposed amendments to account for 

the energy consumption in standby 

mode and off mode of the products 

subject to this rulemaking were 

included in a notice of proposed 

rulemaking (NOPR) that was published 

in the Federal Register on August 30, 

2010. 75 FR 52892. DOE’s proposal was 

presented and explained at a public 

meeting on September 24, 2010 at DOE 

headquarters in Washington, DC. DOE 

invited written comments, data, and 

information on the NOPR and accepted 

such material through November 15, 

2010. Based upon public comments, 

DOE subsequently issued a 

supplemental notice of proposed 

rulemaking (SNOPR) which would 

reference the updated second edition of 

the IEC Standard 62301. 76 FR 56347 

(Sept. 13, 2011). DOE invited written 

comments, data, and information on the 

SNOPR through October 13, 2011.5

II. Summary of the Final Rule 

In general, DOE has retained the 

approach to incorporate standby mode 

and off mode presented in the August 

2010 NOPR, as well as incorporation by 

reference of the latest version of the 

relevant industry standard proposed in 

the September 2011 SNOPR, with some 

modifications based upon public 

comment input. 

As proposed in the August 2010 

NOPR, DOE is amending its test 

procedures for direct heating equipment 

and pool heaters to provide for the 

measurement of electrical standby mode 

and off mode power by using the IEC’s 

Standard 62301, ‘‘Household electrical 

appliances—Measurement of standby 

power,’’ as well as language to clarify 

application of this IEC standard. In 

addition, this final rule adds new 

calculations to determine annual energy 

consumption associated with the 

standby mode and off mode measured 

power. For pool heaters, the 

calculations are expanded to include an 

off mode for fossil-fuel energy 

consumption, which was not previously 

accounted for by the test procedure. For 

vented direct heating equipment, DOE 

has determined that it is not technically 

feasible to integrate standby mode and 

off mode electrical energy consumption 

into the calculation of overall energy 

efficiency (annual fuel utilization 

efficiency (AFUE)). This is primarily 

because the magnitude of the electrical 

energy for standby mode and off mode 

would be so comparatively small that in 

most cases, no change in the reported 

AFUE would result from the integration. 

However, the amendments for pool 

heaters provide for an integrated 

efficiency metric, because, for this 

product, it is technically feasible to 

integrate standby mode and off mode 

energy consumption into the calculation 

of overall annual energy efficiency. The 

amendments for unvented heaters only 

required measurement of standby mode 

and off mode energy consumption and, 

unlike the amendments for vented 

heaters, do not require this consumption 

to be integrated into an annual energy 

consumption accounting. This is 

because a detailed annual energy 

consumption accounting is not deemed 

appropriate for this product type (i.e., 

no annual accounting at all for 

supplemental heaters and only a 

simplified assigned value for primary 

heaters). No amendments are prescribed 

for residential water heaters, because 

the existing test procedure and metric 

for water heaters already account for 

standby mode and off mode energy 

consumption. 

III. Discussion 

In the August 30, 2010 NOPR and at 

the subsequent September 24, 2010 

public meeting, DOE sought input from 

interested parties on the proposed 

amendments to the DOE test procedures 

to address the standby mode and off 

mode energy consumption of residential 

water heaters, direct heating equipment, 

and pool heaters. Seven written 

comments were received from interested 

parties including: Bradford White 

Corporation (BWC), the Hearth, Patio & 

Barbecue Association (HPBA), the AirConditioning, Heating and Refrigeration 

Institute (AHRI), the American Council 

for an Energy-Efficient Economy 

(ACEEE), the Association of Home 

Appliance Manufacturers (AHAM), 

Natural Resources Defense Council 

(NRDC), and Pacific Gas and Electric 

Company (PG&E). All comments were 

generally supportive of the proposed 

amendments but asked for clarification 

and consideration of some specific 

modifications to possibly improve the 

amendments. 

In addition, three comments were 

received in response to the September 

13, 2011 SNOPR to incorporate IEC 

Standard 62301 (Second Edition). 

Comments were submitted by AHRI, 

AHAM, and a joint comment from 

Appliance Standards Awareness Project, 

American Council for an EnergyEfficiency Economy, and Northwest 

Energy Efficiency Alliance (ASAP et al). 

These comments were all supportive of 

the incorporation of IEC Standard 62301 

(Second Edition). 

The following discussion addresses 

the five specific issues that were 

identified in both comment periods and 

at the public hearing. 

A. Determination Not To Amend Test 

Procedures for Residential Water 

Heaters 

As discussed in the August 2010 

NOPR, the test procedures for 

residential water heaters include a fullyear accounting of energy use, both 

electricity and fossil fuel as applicable 

to a given water heater. 75 FR 52892, 

52895 (August 30, 2010). Specifically, 

the standby loss testing in the existing 

test procedure is synonymous with what 

EISA 2007 asks for inclusion in all test 

procedures, and the EISA 2007 

definition of ‘‘off mode’’ is inapposite to 

water heater operation. Accordingly, it 

was tentatively concluded that the 

current test procedures for water heaters 

already fully account for and 

incorporate measurement of standby 

mode and off mode energy 

consumption, as required by EISA 2007. 

(42 U.S.C. 6295(gg)(2)(A)) 

Bradford White and AHRI were 

supportive of DOE’s determination that 

the existing water heater test procedures 

already fully account for standby mode 

and off mode energy consumption and 

that no amendments are necessary. 

(Bradford White, No. 7 at p.1, AHRI, No. 

13 at p. 2) 

ACEEE also supported the 

determination, but expressed concern 

that DOE ‘‘does not recognize that some 

‘residential’ water heaters now have a 

true ‘Off’ switch and that the future may 

bring more water heaters with ‘off’ 

modes that are power consuming.’’ 

ACEEE also opined that consideration of 

this issue, now rather than later, would 

be beneficial. (ACEEE, No. 14 at p. 1) 

DOE agrees that if a more complete or 

accurate measure of energy 

consumption or energy efficiency can be 

developed, it should be considered for 

adoption in the DOE test procedures as 

soon as possible. However, there exist a 

number of analytical questions that 

would need to be investigated and 

answered before DOE could take such 


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74562 Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Rules and Regulations 

action for residential water heaters, as 

explained below. 

The ACEEE comment focuses on 

adding provisions to measure the power 

that might be consumed during a 

possible off mode and not on the due 

diligence necessary to develop a 

consistent and credible basis for 

defining and measuring off mode energy 

consumption in the water heater test 

procedures. DOE’s market research did 

not identify any residential water heater 

with an ‘‘Off’’ switch. Moreover, ACEEE 

did not identify any basic model of 

water heater with an ‘‘Off’’ switch, so 

DOE is unaware of the existence of such 

products and thus cannot analyze them 

for power consumption in off mode. 

Consequently, DOE has concluded that 

while ACEEE raises an issue that should 

be kept in mind, it remains a 

hypothetical concern at this time. The 

current test procedure accounting 

assumes residential water heaters are in 

service for the entire year and do not 

have or operate in an off mode. This 

assumed level of service is 

representative of how residential water 

heaters are used in most households 

and, therefore, consistent with statutory 

requirements. More specifically, EPCA 

requires that new or amended test 

procedures shall be reasonably designed 

to produce test results which measure 

energy efficiency, energy use, or 

estimated annual operating cost of a 

covered product during a representative 

average use cycle or period of use and 

shall not be unduly burdensome to 

conduct. (42 U.S.C. 6293(b)(3) 

(emphasis added)) This is not to say that 

every residential water heater will be 

used this way in the field, but rather, it 

is the most representative use cycle or 

period of use. The commenter’s 

suggested off mode that might be the 

subject of a DOE water heater test 

procedure amendment would be best 

described as ‘‘out of service’’ mode. 

Here, it is important to note that all 

water heaters can be taken out of service 

for various reasons and by various 

methods (e.g., circuit breakers, gas 

valves). DOE realizes that residential 

water heaters can be taken out of service 

for various reasons, but DOE is not 

aware what design feature of current 

residential water heaters would in fact 

produce an out of service mode different 

(i.e., an off mode) than that which 

would occur normally (e.g., 

disconnecting the power supply in a 

unoccupied home). 

The ACEEE comment seems to 

suggest that a more conveniently placed 

‘‘Off’’ switch (one which would allow 

the consumer to disconnect the water 

heater from its electrical power or fossilfuel source) could be a design feature 

that needs to be addressed in the test 

procedure. Here, it is important to note 

that the purpose of the test procedures 

is to develop a uniform basis of 

differentiation in terms of energy 

efficiency or annual consumption that 

would be associated with any design 

feature. As such, for purposes of a 

possible test procedure amendment, a 

determination would need to be made 

regarding the consumer behavioral 

difference that, in fact, may result from 

an off mode design feature and what, if 

any, energy savings would result. As 

noted above, DOE is not aware of any 

developments in this area by the water 

heating industry. Further, DOE 

published a request for information 

(RFI) which initiated a rulemaking and 

data collection process broadly to 

consider amendments to DOE’s test 

procedures for residential water heaters. 

76 FR 63211 (Oct. 12, 2011). This RFI 

did identify those portions of the test 

procedure where DOE believes 

amendments may be warranted, but it 

also invited interested parties to provide 

comments on any aspect of the 

residential water heater test procedure. 

DOE did not receive any comments 

asking for adoption of an off period, as 

suggested by ACEEE. 

This is not to say there may not be 

some possible energy savings potential 

for this concept eventually, but rather 

that DOE believes it is not appropriate 

to include such concept in the 

analytical basis of the test procedure at 

this time. 

In consideration of all of the above, 

DOE cannot, at this time take action to 

amend the water heater test procedure 

in the manner suggested by the 

commenter until the off switch concept 

is more fully developed and the need for 

such amendment has been established. 

With that said, DOE continues to 

monitor advancements in technologies 

related to all regulated products, 

including water heaters, and it will 

consider applicable technological 

improvements in its development of 

both test procedures and energy 

conservation standards in the context of 

future rulemakings. 

B. Use of IEC Standard 62301 (Second 

Edition), ‘‘Household Electrical 

Appliances—Measurement of Standby 

Power’’ 

As noted in the August 2010 NOPR, 

EPCA, as amended by EISA 2007, 

requires that test procedures be 

amended to include standby mode and 

off mode energy consumption, taking 

into consideration the most current 

versions of Standards 62301 and 62087 

of the International Electrotechnical 

Commission. 75 FR 52892, 52893–94 

(August 30, 2010) (citing 42 U.S.C. 

6295(gg)(2)(A)). The August 2010 NOPR 

proposed to amend the DOE test 

procedures for direct heating equipment 

and pool heaters by referencing IEC 

Standard 62301 (First Edition) to obtain 

the standby mode and off mode 

measured wattage. Id. at 52895. The 

amended DOE test procedures would 

use these measured wattages in 

calculations to accomplish the 

incorporation of standby mode and off 

mode energy consumption into the test 

procedures. DOE reviewed the IEC 

Standard 62301 (First Edition) and 

tentatively concluded that it would be 

generally applicable to direct heating 

equipment and pool heaters, although 

some clarification would be needed. 

Specifically, because there is a possible 

conflict with provisions of the existing 

procedures, the NOPR proposed to 

clarify where the IEC provisions would 

apply and where the DOE test procedure 

provisions would apply. Id. at 52897 

and 52900–01. With these clarifications, 

the NOPR proposed to reference IEC 

Standard 62301 (First Edition) for the 

wattage measurements. It is noted that 

IEC Standard 62301 (First Edition) had 

been incorporated by reference in 10 

CFR 430.3, Materials incorporated by 

reference, as part of the final rule 

amending the residential furnaces and 

boilers test procedure. 75 FR 64621 

(Oct. 20, 2010). 

In written comments on the August 

2010 NOPR, AHRI and AHAM asked 

that DOE consider referencing a revised 

version of the industry standard—IEC 

Standard 62301 (Second Edition). Both 

commenters cited technical 

improvements in the latter version that 

they expect would enhance repeatability 

and reproducibility of test results. 

(AHRI, No. 13 at p. 1, AHAM, No. 15 

at p. 2) AHAM additionally commented 

that the Final Draft International 

Standard (FDIS) version of IEC Standard 

62301 would be preferable to the 

Committee Draft for Vote (CDV) version 

of the standard, both of which were 

available at the time of DOE’s NOPR. 

(AHAM, No. 15 at p.2) The CDV of IEC 

Standard 62301 was released on August 

28, 2009, and the FDIS of IEC Standard 

62301 was released on October 29, 2010. 

On this matter, DOE notes that because 

IEC has now formally adopted IEC 

Standard 62301 (Second Edition), DOE 

is no longer considering earlier draft 

versions. In any event, the adopted 

version is consistent with the preference 

suggested by AHRI and AHAM. 

As mentioned above, since the time of 

the August 2010 NOPR, the IEC 

Standard 62301 technical committee has 

officially revised its standard. 

Specifically, a second edition of IEC 


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Standard 62301 has been issued by IEC 

with a final publication date of January 

27, 2011. 

DOE has conducted a review of the 

second edition of IEC Standard 62301, 

which is consistent with the 

requirement in EISA 2007 for DOE to 

consider the most current version of that 

standard. (42 U.S.C. 6295(gg)(2)(A)) As 

a result of its investigation, DOE agrees 

with AHRI and AHAM that some 

improvement to the test procedures may 

be possible with the incorporation of the 

second edition of the IEC standard as 

applied to the products that are the 

subject of this rulemaking. Specifically, 

IEC Standard 62301 (Second Edition) 

revises the standard’s power 

measurement accuracy provisions, 

based on technical submissions that 

showed the inability to achieve the 

accuracy levels required by the first 

edition for certain operating regimes 

with the use of typical instrumentation. 

A more comprehensive specification of 

required accuracy is provided in IEC 

Standard 62301 (Second Edition) that 

depends upon the characteristics of the 

power being measured. The other major 

change in IEC Standard 62301 (Second 

Edition) that relates to the measurement 

of standby mode power consumption of 

covered products involves the 

specification of stability criteria 

required to measure that power. IEC 

Standard 62301 (Second Edition) 

contains more detailed techniques to 

evaluate the stability of the power 

consumption and to measure the power 

consumption for stable loads with less 

burdensome methods such as direct 

meter reading, if certain clearly 

described conditions are met. DOE 

believes that the changes incorporated 

in IEC Standard 62301 (Second Edition) 

would allow for use of less burdensome 

methods when appropriate and would 

ensure accurate measures of standby 

mode energy consumption over a range 

of operating conditions encountered by 

typical residential heating products. 

As discussed above, DOE published a 

supplemental notice of proposed 

rulemaking in the Federal Register on 

September 13, 2011 (the September 

2011 SNOPR), which proposed to use 

the second edition of IEC Standard 

62301 in lieu of the first edition. 76 FR 

56347. Comments on the SNOPR were 

received from AHAM and AHRI, and a 

joint comment was submitted by the 

Appliance Standards Awareness Project, 

American Council for an EnergyEfficient Economy, and Northwest 

Energy Efficiency Alliance (ASAP et al). 

All comments were supportive of the 

use of IEC Standard 62301 (Second 

Edition). (AHAM, No. 22 at p. 1, AHRI, 

No. 24 at p. 1, and ASAP et al, No. 23 

at p. 1) In addition, ASAP et al added 

that referencing the most recent version 

of the IEC Standard 62301 would 

facilitate international harmonization of 

standby mode and off mode test 

procedures. (ASAP et al, No. 23 at p. 1) 

Accordingly, for the reasons 

discussed above, DOE is incorporating 

IEC Standard 62301 (Second Edition) 

into DOE’s test procedure regulations 

for residential direct heating equipment 

and pool heaters. To this end, this final 

rule adds a new reference in 10 CFR 

430.3, Materials incorporated by 

reference, for IEC Standard 62301 

(Second Edition) but does not remove 

the existing reference to IEC Standard 

62301 (First Edition) at 10 CFR 

430.3(m)(1). (Although DOE has 

determined that the provisions of IEC 

Standard 62301 (Second Edition) shall 

be applicable to residential direct 

heating equipment and pool heaters, the 

Department is currently maintaining the 

existing reference to IEC Standard 62301 

(First Edition), because other covered 

products continue to reference that 

standard.) In addition, DOE is issuing a 

number of editorial changes in the 

various appendices (G, O, and P) which 

are necessary for residential direct 

heating equipment and pool heaters to 

allow for the correct referencing. For 

example, the definition sections of the 

individual appendices need to define 

IEC Standard 62301 as the second 

edition instead of the first edition. Also, 

there are some section numbering 

differences in the second edition which 

impact the text of the measurement 

provisions of DOE’s various test 

procedures. Finally, as an editorial 

improvement, DOE is unifying the 

standby mode and off mode 

nomenclature used in the various test 

procedures. Specifically, the uniform 

nomenclature for electrical power 

consumption in standby mode and off 

mode will be PW,SB and PW,OFF, 

respectively. All of these changes are 

reflected in the regulatory text which 

can be found at the end of this final rule. 

C. Requirements for Unvented Heaters 

and Exclusion From Testing 

In the August 2010 NOPR, DOE 

proposed only to add certain 

measurement provisions to the existing 

test procedures for unvented heaters 

and not to include added or amended 

calculations to quantify annual standby 

mode and off mode energy 

consumption. In addition, DOE 

tentatively concluded that for some 

manually-controlled portable heaters, 

no testing for standby mode or off mode 

is required, because the units are 

expected to be inoperable during these 

modes. 75 FR 52892, 52898–99 (August 

30, 2010). AHRI, AHAM, and NRDC 

were supportive of the proposed 

amendments for unvented heaters, 

including the exclusion from the 

requirement to conduct standby mode 

and off mode testing when there is a 

means to disconnect the power source 

and instructions to do so are clearly 

visible. AHRI and NRDC asked that the 

exclusion provisions be clarified to 

avoid ambiguity and possible 

operational problems. AHAM fully 

supported these provisions and offered 

further evidence as to the 

appropriateness of the exclusion 

provisions. (AHRI, No. 13 at p. 2, 

AHAM, No. 15 at p. 2–3, and, NRDC, 

No. 16 at p. 1–2.) AHAM restated its 

support for these provisions in its 

comments on the September 2011 

SNOPR. (AHAM, No. 22 at p. 2.) AHRI 

additionally questioned the necessity of 

any amendments for unvented gas space 

heaters. (AHRI, No. 13 at p. 2.) 

The August NOPR proposed for 

unvented heaters to add separate 

provisions to measure the possible 

standby mode and off mode energy 

consumption for both fossil fuel and 

electricity. These added provisions 

would allow for exclusion from the 

standby mode and off mode 

requirements if there is means to 

disconnect the electric or gas power 

source when not in use and instructions 

to do so are clearly visible. This 

exclusion is identical to what is 

currently in the existing vented heater 

test procedures as applied to pilot lights 

on manually-controlled heaters. DOE 

believes this exclusion should also 

apply to unvented heaters so equipped. 

After carefully considering the public 

comments and available information, 

DOE reviewed the proposed provisions 

for unvented heaters, particularly the 

exclusion provisions, and has reached 

the following conclusions. For electric 

heaters, DOE has decided to adopt the 

regulatory provisions, as proposed. The 

commenters did not provide specific 

additional clarification, and DOE does 

not see where such additional guidance 

or information would be beneficial. For 

gas unvented heaters, DOE recognizes 

the point the commenters make 

regarding clear instructions and the 

point that AHRI raises concerning the 

unnecessary turning on and off of pilot 

lights during the heating season. (AHRI, 

No. 13 at p. 2) However, DOE believes 

this issue is best addressed by the 

industry in its development of 

instructions and labels and not within 

the scope of this DOE test procedure 

rulemaking. 

Regarding AHRI’s suggestion to not 

require any amendments for unvented 

heaters (because to AHRI’s knowledge, 


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6Fossil-fuel standby mode and off mode energy 

consumption is already accounted for in the AFUE 

metric. 

there are not any unvented heaters that 

have electrical standby mode and off 

mode energy consumption), DOE is not 

convinced there is no possibility for 

these products to experience electrical 

standby mode or off mode energy 

consumption, either currently or in the 

future. It is important to note, today’s 

final rule does not require any testing 

for the products that AHRI reports as 

having no possibility of electrical 

standby mode or off mode energy 

consumption (i.e., unvented heaters that 

have no electrical connection at all). 

Adopting the amendments as proposed 

will allow DOE to meet its EISA 2007 

mandate without adding unnecessary 

burden on the manufacturers of current 

products of this product type. 

D. Technical Feasibility of an Integrated 

Efficiency Metric for Vented Heaters and 

Pool Heaters 

The NOPR proposed an integrated 

thermal efficiency metric for pool 

heaters, but did not propose an 

integrated annual fuel utilization 

efficiency for vented heaters. All 

commenters that provided input on this 

issue were supportive of the proposal 

not to integrate the standby mode and 

off mode energy consumption into the 

AFUE metric for vented heaters because 

such integration would not likely 

change the reported AFUE numerical 

value. AHRI, NRDC, and PG&E all 

recommended that DOE adopt the same 

approach for pool heaters. AHRI 

restated its opposition to integrating 

standby mode and off mode energy 

consumption into the efficiency metric 

for pool heaters when commenting on 

the September 2011 SNOPR. These 

commenters believed that integration 

would not materially affect the reported 

value generated by the efficiency metric 

for pool heaters. A second objection 

raised by these commenters involved 

the use of the term ‘‘integrated thermal 

efficiency,’’ who argued that this 

terminology has specific meaning in the 

pool heater industry which is not 

consistent with the meaning proposed 

by DOE. (AHRI, No. 13 at pp. 2–5, 

ACEEE, No. 14 at pp. 1–2, NRDC, No. 

016 at pp. 2–3, PG&G 017 at p. 2, and, 

AHRI, No. 24 at p. 1) 

DOE considered proposing an 

integrated AFUE for vented heaters that 

would incorporate the standby mode 

and off mode energy consumption into 

the existing AFUE metric by adding this 

additional energy consumption to the 

active energy consumption already 

captured by the AFUE quotient. 

However, DOE has determined that such 

integration is technically infeasible for 

vented heaters. This is because the 

electrical standby mode and off mode 

energy usage would typically be 

relegated to background noise vis-a`-vis 

the much greater active mode energy 

consumption, due to the fact that most 

manufacturers’ ratings of AFUE (as well 

as the current energy conservation 

standards) are presented to the nearest 

whole number, and the magnitude of 

the energy for standby mode and off 

mode would be so comparatively small 

that it would not likely change the 

reported value. As a result, DOE expects 

that in most cases, no change in the 

reported AFUE would result from 

integration. For these reasons, DOE 

believes integrating electrical standby 

mode and off mode energy consumption 

into the AFUE descriptor for vented 

heaters would not provide useful or 

meaningful information and is, 

therefore, technically infeasible. 

DOE’s proposed approach for vented 

heaters would allow for the 

measurement of standby mode and off 

mode electrical 6 energy consumption of 

all vented heater products. Although the 

magnitude of energy savings may be 

small for a given unit, it could be 

substantial when aggregated across the 

full range of this covered product over 

DOE’s typical 30-year analysis period 

for setting standards. As required by 

EPCA, DOE will further address the 

standby mode and off mode electrical 

energy consumption of vented heaters 

in the next energy conservation 

standards rulemaking. (42 U.S.C. 

6295(gg)(3)) 

Unlike the integrated AFUE for 

vented heaters, DOE tentatively 

concluded in the August 2010 NOPR 

that an integrated efficiency metric for 

pool heaters is technically feasible and 

would provide measurable performance 

differentiation. 75 FR 52892, 52900 

(August 30, 2010). As explained in the 

NOPR, this is because the standby mode 

and off mode energy consumption for 

pool heaters is significant relative to the 

active mode energy consumption, as 

expressed in the original thermal 

efficiency descriptor. There were two 

contributing factors to this conclusion: 

(1) The standby mode and off mode 

energy consumption includes both fossil 

fuel and electrical energy consumption 

(thereby contributing to the overall 

magnitude of such energy 

consumption), and (2) pool heaters have 

a relatively smaller number of operating 

hours associated with active mode 

energy consumption. In support of this 

determination of a significant 

difference, the NOPR maintained that a 

standing pilot light alone could move 

the efficiency metric a few percentage 

points. Id. Further in support, and 

realizing that some pool heaters do not 

have standing pilot lights, DOE testing 

shows a 1 percentage point difference 

based solely on the added electrical 

standby mode and off mode 

consumption of a unit without a 

standing pilot light. Certain commenters 

argued that although the relative 

magnitude of the effect is larger for pool 

heaters than direct heating equipment, it 

is still very small and, as a result, would 

not allow for effective consumer 

information or government regulation. 

(AHRI, No. 13 at pp. 3–5, and, PG&G 

017 at p. 2) Additional opposition to the 

integration was pointed out in the 

comments of NRDC, which stated that 

the commingling of electricity and fossil 

fuels in the integrated metric is not 

preferred, because it does not allow for 

separate analysis of the source energy 

value of electrical standby mode and off 

mode energy consumption. (NRDC, No. 

016 at pp. 2–3.) These commenters 

preferred the separate metric approach 

for both test procedures and energy 

conservation standards. 

DOE has reviewed this issue, carefully 

considering the public comments, and 

has determined it must maintain the 

integrated efficiency metric approach 

for pool heaters because it is technically 

feasible to do so. This is DOE’s mandate 

under EPCA, as amended by EISA 2007. 

(42 U.S.C. 6295(gg)(2)(A)) As with 

vented heaters (and any other future 

energy conservation standards 

rulemaking for covered consumer 

products), DOE must address the 

standby mode and off mode energy 

consumption in the next standards 

rulemaking. The integrated metric 

adopted in this final rule will be the 

regulating metric for purposes of pool 

heater standards, once the standard is 

amended to also address standby mode 

and off mode energy consumption. 

Finally, on the matter of the 

commenters’ objection to the 

terminology ‘‘integrated thermal 

efficiency,’’ DOE has retained this 

terminology in this final rule, for the 

reasons described below. By way of 

background, EPCA’s definition of 

‘‘efficiency descriptor’’ specifically 

states that for pool heaters, the 

descriptor shall be thermal efficiency. 

(42 U.S.C. 6291(22)(E)) Accordingly, the 

‘‘integrated thermal efficiency’’ 

terminology was proposed to maintain 

consistency with the statute. This 

approach would allow for the 

integration and incorporation of standby 

mode and off mode energy consumption 

into the test procedure as called for in 

42 U.S.C. 6295(gg)(2)(A) and eventual 

incorporation in the energy 


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conservation standard as called for in 42 

U.S.C. 6295(gg)(3). The original 

‘‘thermal efficiency’’ descriptor would 

remain in the test procedure to provide 

the regulating basis for the current 

energy conservation standard. 

Commenters pointed out that the term 

‘‘thermal efficiency’’ has a specific 

meaning in the industry. Specifically, 

‘‘thermal efficiency’’ is based on the 

industry test methods (ANSI Z21.56, 

‘‘Standard for Gas-Fired Pool Heaters’’) 

and describes the pool heater’s 

performance in terms of heating water 

and not the unit’s overall performance, 

including the energy liability that might 

be associated with standby mode and off 

mode operation. AHRI suggested that 

the existing test procedure terminology 

‘‘heating seasonal efficiency’’ would be 

preferable, because it is an extension of 

thermal efficiency that includes the 

pilot light consumption in standby 

mode and is ideally suited for 

modification to include the standby 

mode and off mode electrical energy 

consumption. (However, DOE notes that 

the heating seasonal efficiency 

descriptor, as suggested by AHRI, does 

not fully account for the standby hours 

in the non-heating season, unlike DOE’s 

integrated thermal efficiency descriptor. 

Moreover, DOE believes that including 

the non-heating standby hours in a 

seaonal metric could also cause 

confusion, because the metric would 

then be a bit of a misnomer.) 

Nevertheless, despite commenters’ 

preference for a different metric and 

terminology to measure the performance 

of pool heaters, one cannot lose sight of 

the fact that EPCA specifically states 

that the efficiency descriptor for pool 

heaters shall be thermal efficiency (42 

U.S.C. 6291(22)(E)), and the statute also 

requires DOE to account for standby 

mode and off mode energy consumption 

in an integrated metric, if technically 

feasible (42 U.S.C. 6295(gg)(2)(A) and 

(3)). Thus, DOE does not have lattitude 

to adopt other metrics as commenters 

suggested. Instead, the Department is 

adopting integrated thermal efficiency 

in order to implement both of these 

statutory requirements. Furthermore, 

DOE also believes that there are 

advantages to maintaining consistency 

of its terminology related to standby 

mode and off mode across the test 

procedures for various products. DOE is 

confident that manufacturers and other 

interested stakeholders will be able to 

grasp the relevant terminology for 

purposes of the DOE test procedure. 

Accordingly, DOE has today prescribed 

‘‘integrated thermal efficiency’’ (TEI) as 

the integrated efficiency descriptor for 

pool heaters. 

To further clarify its test procedure 

regulations for pool heaters, DOE is also 

prescribing a number of editorial 

changes to 10 CFR 430.23(p). These 

edits are largely housekeeping matters 

designed to correct the references to 

sections of appendix P that have now 

changed numerically because of today’s 

final rule. 

E. Hearth Products Coverage 

HPBA filed two sets of comments on 

the August 2010 NOPR. In the first set 

of comments, HPBA concluded that the 

provisions related to measurement of 

standby mode and off mode energy 

consumption ‘‘will probably have a 

minimal inpact on vented hearth 

heating products.’’ However, in its 

second set of comments, HPBA stated 

more broadly that the test procedures 

for direct heating equipment are not 

applicable to decorative hearth 

products, specifically the products 

covered by ANSI Standard Z21.50, 

‘‘Vented Gas Fireplaces.’’ According to 

HPBA, decorative hearth products are 

intended to provide ambiance rather 

than heat, so, therefore, HPBA believes 

decorative hearth products are not 

covered ‘‘direct heating equipment’’ and 

that heating efficiency is not an 

appropriate measure of performance for 

these products. Further, HPBA 

maintains that even if heating efficiency 

was desired for these appliances, the 

DOE test method is inapplicable as a 

means to determine heating efficiency, 

given a number of inappropriate 

assumptions regarding their 

representative average use. ACEEE 

recognized this concern of HPBA but 

suggested the matter not be addressed in 

a test method rulemaking. (HPBA, No. 8 

at p. 1 and No. 12 at p. 1–4. ACEEE, No. 

14 at p. 1.) 

In response, DOE notes that the scope 

of the current test procedure rulemaking 

is limited to provisions related to 

measurement of standby mode and off 

mode energy consumption of residential 

water heaters, direct heating equipment, 

and pool heaters. HPBA concedes that 

the specific provisions at issue here 

would have minimal impact on vented 

hearth heating products. On HPBA’s 

larger question regarding the 

applicability of the DOE test procedure 

for measuring the AFUE of vented 

hearth heaters, DOE has concluded that 

the test procedure does provide the 

technical capability to generate AFUE 

values for all vented hearth heaters. If 

modifications to the test procedure are 

warranted to optimize the testing of 

such units, such concerns will be 

addressed in a separate test procedure 

rulemaking for water heaters, direct 

heating equipment, and pool heaters, 

which is currently underway. As noted 

earlier, DOE published an RFI for that 

rulemaking in the Federal Register on 

October 12, 2011. 76 FR 63211. 

However, DOE notes that in its 

November 18, 2011 final rule for direct 

heating equipment energy conservation 

standards, DOE adopted a definition of 

‘‘vented hearth heater’’ which contains 

an exclusion for decorative hearth 

products. 76 FR 71836, 71859. Units 

that fall within the exclusion would not 

be subject to the otherwise applicable 

energy conservation standards, and they 

would likewise not be required to be 

tested under the DOE test procedure. 

F. Review of Burner Operating Hours 

Estimates 

NRDC suggested that DOE should 

review the burner operating hours 

(BOH) estimate in the test procedures 

for each appliance type. (NRDC No. 016, 

pp. 1–2) NRDC further added that these 

estimates are referenced from earlier 

ANSI standards, some of which are well 

over ten years old. It is noted here that 

these estimates are relevant to the 

matter of this rulemaking because BOH 

is used as an approximation of the 

active mode time duration for both 

direct heating equipment and pool 

heaters. This concept of using the 

existing test procedures assignment of 

BOH as an approximation of active 

mode time duration was developed in 

the August 2010 NOPR. 75 FR 52892, 

52897 (August 30, 2010). No comments 

were received objecting to this 

assignment. The NRDC comment relates 

to the numerical value of the current 

test procedure estimate and whether 

there is a need to update the numerical 

value of these assignments in the test 

procedures. 

DOE has reviewed this matter, and for 

the reasons explained below, DOE has 

concluded that there is not a need to 

change the test procedure estimates of 

BOH for direct heating equipment or 

pool heaters. These test procedure 

estimates are not referenced from old 

ANSI standards as the commenter 

suggests, but rather independent 

assignments and equations developed 

within the various rulemakings 

establishing the DOE test procedures. 

With these representative bases 

established, the test procedures can 

yield uniform results. The direct heating 

equipment BOH is based primarily on 

an estimate of heating degree days that 

would be typical of where direct heating 

equipment is used. For the national 

average case, 2950 heating degree days 

is assigned. 43 FR 20147, 20182 (May 

10, 1978). The BOH for direct heating 

equipment is then calculated from this 

heating degree day assignment and a 


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7For more information, see the DHE life-cycle 

cost and payback period spread sheet which is 

available at: http://www1.eere.energy.gov/buildings/ 

appliance_standards/residential/ 

heating_products_fr_spreadsheets.html. 

number of other factors that can affect 

the BOH of direct heating equipment. 

Typically, the test procedure yields 

values of 700–800 BOH for DHE. The 

level of national average heating degree 

days is representative of a southern-tier 

U.S. location which DOE believes is still 

appropriate for the distribution of direct 

heating equipment. That is, the 

inherently smaller capacities of DHE, as 

compared to central furnaces would 

suggest that DHE product types address 

on average a relatively milder or more 

southern heating requirement. A review 

of the 2009 Residential Energy 

Consumption Survey (available at 

www.eia.gov) supports this southern tier 

approach for DHE products. 

Specifically, the RECS 2009 Table 

HC6.6, ‘‘Space Heating in U.S. Homes, 

By Climate Region,’’ reports that a 

majority of households having this type 

of product (termed in RECS 2009 as 

‘‘room heaters’’ and ‘‘wall and floor 

pipeless furnaces’’) are in the two 

southernmost of the five climate zones 

used by RECS. 

Further, a review of the 2005 

Residential Energy Consumption Survey 

(also available at www.eia.gov) provided 

more data supporting DOE’s current 

approach to BOH. A weighted average of 

the heating degree days using the 

distribution of room heaters and wall 

and floor pipeless furnaces resulted in 

an estimate that homes in which direct 

heating equipment is installed are 

subjected to an annual heating degree 

day number of 2900. Considering the 

uncertainty in this value, DOE considers 

this estimate to be highly consistent 

with the existing value in the test 

method, and accordingly, DOE has 

concluded that there is no justification 

for modifying the heating degree days 

that form the basis of the determination 

of burner operating hours for direct 

heating equipment. It should be noted 

that the data released for the 2009 RECS 

do not yet contain sufficient information 

to determine this weighted average more 

precisely. However, these data are 

supportive of the southern tier 

assignment for national average heating 

degree days as currently provided in the 

DOE test procedure. It is important to 

note that the regional calculations in 

this test procedure allow for other 

assignments based on geographic 

location. 

Investigating this issue further, DOE 

looked at another source of information 

to determine if the DHE test procedures’ 

overall calculation methodology would 

need amending. To this end, DOE 

reviewed the estimates of energy 

consumption contained in the recent 

analysis supporting amended energy 

conservation standards for DHE. 75 FR 

20112 (April 16, 2010). That analysis 

reported BOH similar to that estimated 

in the DOE test procedure (700–800 

hours) for DHE used as primary heating 

appliances; however, a smaller number 

is reported for BOH in this analysis for 

some types of DHE that could be used 

as supplemental heaters.7 That lower 

estimate is important to bear in mind in 

a standards analysis in order to avoid 

overestimating the energy savings that 

might be associated with a given 

standard level. However, DOE believes 

supplemental use or any non-use of a 

product should not be part of the test 

procedures’ representative use 

calculations. Rather, a better basis of the 

representative use calculations would 

be calculations that include full use of 

the product. Given the significant 

portion of DHE products that are used 

as primary heating sources and the 

product’s potential to be used on a 

regular basis, DOE has concluded that 

the test procedure should assume full 

use. Moreover, persons relying on 

energy use estimates when making 

purchasing decisions and planning on 

frequent use of the product would not 

be served by reducing the estimate to 

account for the marginal use of the 

product by others. 

In sum, DOE has reviewed all aspects 

of the current BOH assignments and 

calculations for direct heating 

equipment and has not found any 

potential for systematic error or 

unrepresentative results. More 

specifically, DOE did not find any 

research or data that contradicts the 

representativeness of this existing basis 

of determining direct heating equipment 

BOH. 

Somewhat less complicated than 

direct heating equipment, the pool 

heater test procedure includes a direct 

assignment of BOH, without need for 

the complicated suite of calculations 

found in the DHE test procedure. This 

simplified approach is reasonable 

because the energy consumption of pool 

heaters is not typically affected by the 

various factors accounted for in the DHE 

test procedure calculations (e.g., 

oversizing, climatic effects, and the lack 

of modulating controls). Accordingly, 

the pool heater test procedure assumes 

a single assignment of 104 BOH. This 

assignment is based on survey data 

available at the time proposed 

amendments for the test procedure were 

developed in 1993. 58 FR 44538, 44548, 

44571 (August 23, 1993). On review, 

this level of usage is still deemed 

representative. Specifically, the 2005 

Residential Energy Conservation Survey 

(available at www.eia.gov) reports 

similar usage for pool heaters. 

In sum, DOE has reviewed the 

numerical assignments as well as the 

analytical basis for BOH in both the 

direct heating equipment and pool 

heaters test procedures and maintains 

that they are representative of the 

average use cycles that would be 

encountered by present day appliances. 

G. Other Issues Raised in the September 

2011 SNOPR 

In addition to proposing the use of the 

second edition of IEC Standard 62301, 

the September 2011 SNOPR clarified 

rounding guidance and sampling 

provisions applicable to the new 

measures of energy consumption (i.e., 

PW,SB and PW,OFF). 

For these new values of energy 

consumption, the September 2011 

SNOPR clarified that the rounding 

guidance provided in IEC Standard 

62301 (Second Edition) would apply. 76 

FR 56347, 56350–51 (Sept. 13, 2011). 

Specifically, DOE proposed to add the 

following sentence to the measurement 

provisions of the proposed regulatory 

text, where appropriate: ‘‘The recorded 

standby power (PW,SB) (or off mode 

power PW,OFF, where appropriate) shall 

be rounded to the second decimal place, 

and for loads greater than or equal to 

10W, at least three significant figures 

shall be reported.’’ Id. at 56353–54. DOE 

requested comments as to the adequacy 

and appropriateness of this clarification. 

AHRI opined that the second decimal 

place rounding represents an 

unnecessarily stringent level of 

precision when one considers the 

annualized accounting of total electrical 

energy consumption as represented in 

the term ESO. (AHRI No. 24 at p. 2) DOE 

believes the IEC rounding provisions for 

the wattage measurements are 

appropriate and within the capabilities 

of the instrumentation specified in the 

IEC standard. Specifically, DOE’s review 

of IEC Standard 62301—compliant 

instrumentation has determined that 

one can easily support this level of 

reporting precision. Moreover, the test 

procedures for other DOE covered 

products already utilize IEC Standard 

62301 for the wattage measurements, 

and DOE believes there is benefit in 

measuring standby mode and off mode 

energy consumption of various covered 

products in a consistent manner. In 

sum, carrying the IEC level of precision 

through the annualized consumption 

calculations does not represent any 

additional burden, because it is simply 

a matter of running a calculation and 

reporting the results. Accordingly, DOE 


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has concluded that these comments do 

not justify a departure from the IEC 

provisions, so DOE is adopting the 

rounding guidance as proposed. 

The September 2011 SNOPR clarified 

that the sampling provisions already 

used for the measures of energy 

consumption in the existing test 

procedures for direct heating equipment 

and pool heaters would also apply to 

the new measures of energy 

consumption for standby mode and off 

mode. Id. at 56350–51. No comments 

were received regarding the clarification 

of applicable sampling provisions for 

the new measures of energy 

consumption. Accordingly, for the 

reasons above, DOE has decided to 

adopt the proposed approach presented 

in the SNOPR in today’s final rule. 

IV. Effective Date and Compliance Date 

The effective date for these 

amendments is January 16, 2013. At that 

time, representations may be made 

about residential direct heating 

equipment and pool heaters using the 

new metrics PW,SB and PW,OFF reflecting 

standby mode and off mode energy use, 

as well as any other measure of energy 

consumption which depends on PW,SB

and PW,OFF, which were adopted 

pursuant to these amendments. The 

compliance date for any representations 

relating to standby mode and off mode 

of direct heating equipment and pool 

heaters is June 17, 2013; on or after that 

date, any such representations must be 

based upon results generated under 

these test procedures and sampling 

plans. However, DOE would clarify that 

use of these proposed test procedure 

amendments related to standby mode 

and off mode energy consumption 

would not be required for purposes of 

energy conservation standards 

compliance, until the compliance date 

of the next standards final rule that 

addresses standby mode and off mode. 

More specifically, the introductory 

sentences to 10 CFR part 430, subpart B, 

Appendix O for vented direct heating 

equipment and Appendix P for pool 

heaters, read as follows: ‘‘The 

procedures and calculations that refer to 

standby mode and off mode energy 

consumption * * * need not be 

performed to determine compliance 

with energy conservation standards for 

these products at this time.’’ The above 

statement will be removed as part of a 

future rulemaking to amend either 

energy conservation standards for direct 

heating equipment or standards for pool 

heaters to account for standby mode and 

off mode energy consumption, and 

compliance with the applicable test 

procedure provisions will be required 

on the compliance date of those 

amended energy conservation 

standards. A statement has also been 

added to the introductory note to these 

appendices to clarify that any 

representations pertaining to standby 

mode and off mode energy consumption 

of these products that are made on or 

after a date 180 days after the date of 

publication of this test procedure final 

rule in the Federal Register must be 

based upon results generated under this 

test procedure, consistent with the 

requirements of 42 U.S.C. 6293(c)(2). 

Although this is a statutory requirement 

under 42 U.S.C. 6293(c), DOE has 

concluded that it would be useful to 

explicitly state this requirement in 

DOE’s regulations. 

V. Compliance With Other EPCA 

Requirements 

In amending a test procedure, EPCA 

directs DOE to determine to what 

extent, if any, the test procedure would 

alter the measured energy efficiency or 

measured energy use of a covered 

product. (42 U.S.C. 6293(e)(1)) If the 

amended test procedure alters the 

measured energy efficiency or measured 

energy use, the Secretary must amend 

the applicable energy conservation 

standard to the extent the amended test 

procedure changes the energy efficiency 

of products that minimally comply with 

the existing standard. (42 U.S.C. 

6293(e)(2)) The current energy 

conservation standards for vented direct 

heating equipment and pool heaters are 

based on existing test procedure 

metrics—annual fuel utilization 

efficiency (AFUE) and thermal 

efficiency (Et), respectively—neither of 

which is affected by the inclusion of 

electrical standby mode and off mode 

energy consumption in other metrics 

adopted as part of today’s final rule. 

There are no energy conservation 

standards for unvented direct heating 

equipment. As explained further below, 

today’s test procedure final rule has no 

effect on any current energy 

conservation standard. 

As provided by EPCA, amendments to 

the test procedures to include standby 

mode and off mode energy consumption 

shall not be used to determine 

compliance with previously established 

standards. (42 U.S.C. 6295(gg)(2)(C)) 

The inclusion of a standby mode and off 

mode test method in this final rule will 

not affect a manufacturer’s ability, using 

existing metrics, to demonstrate 

compliance with the existing energy 

conservation standards for direct 

heating equipment or pool heaters. The 

standby mode and off mode tests need 

not be performed to determine 

compliance with the current energy 

conservation standards for these 

products, because the current standards 

do not comprehensively account for 

electrical standby mode and off mode 

energy consumption. (For the reasons 

stated above, this final rule does not 

prescribe test procedure amendments 

for residential water heaters. 

Accordingly, there is no effect on water 

heater compliance.) 

EPCA requires that new or amended 

test procedures shall be reasonably 

designed to produce test results which 

measure energy efficiency, energy use, 

or estimated annual operating cost of a 

covered product during a representative 

average use cycle or period of use and 

shall not be unduly burdensome to 

conduct. (42 U.S.C. 6293(b)(3)) For the 

reasons that follow, DOE has 

determined that incorporation by 

reference of IEC Standard 62301 

(Second Edition), along with the other 

modifications and additional 

calculations described above, satisfy 

this requirement. 

As noted previously, the DOE test 

procedures, as amended, reference 

provisions from the incorporated IEC 

Standard 62301 (Second Edition) for the 

measurement of standby mode and off 

mode energy consumption, which is a 

widely-accepted and used international 

standard. Based on its analysis of IEC 

Standard 62301 (Second Edition), DOE 

has determined that the test methods 

and equipment that the amendments 

require for measuring standby mode and 

off mode power do not differ 

substantially from the test methods and 

equipment in the current DOE test 

procedure for residential direct heating 

equipment and pool heaters. Therefore, 

testing of these products pursuant to 

today’s final rule will not require any 

significant investment in new test 

facilities or equipment. For these 

reasons, DOE does not believe that the 

standby mode and off mode test 

procedure provisions will add 

significant costs. 

VI. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Order 12866 

The Office of Management and Budget 

has determined that test procedure 

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 regulatory action was not subject to 

review under that Executive Order by 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget (OMB). 


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8The August 2010 NOPR review under the 

Regulatory Flexibly Act was regarding IEC Standard 

62301 (First Edition). In the subsequent September 

2011 SNOPR which proposed to adopt the IEC 

Standard 62301 (Second Edition), it was tentatively 

determined that the second edition would be 

expected to reduce testing burden relative to the 

first edition. 76 FR 56347, 56351 (Sept. 13, 2011). 

DOE hereby confirms that conclusion in today’s 

final rule. 

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 (IRFA) for any rule 

that, by law, must be proposed for 

public comment and a final regulatory 

flexibility analysis (FRFA) for any such 

rule that an agency adopts as a final 

rule, unless the agency certifies that the 

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 Executive Order 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 

impacts of its rules on small entities are 

properly considered during the DOE 

rulemaking process. 68 FR 7990. DOE 

has made its procedures and policies 

available on the Office of the General 

Counsel’s Web site at www.gc.doe.gov/ 

gc/office-general-counsel. 

Today’s final rule adopts test 

procedure provisions to measure 

standby mode and off mode energy 

consumption of residential direct 

heating equipment and pool heaters, 

generally through the incorporation by 

reference of IEC Standard 62301 

(Second Edition) and the modifications 

and additional calculations described in 

detail in the August 2010 NOPR. DOE 

reviewed today’s final rule under the 

provisions of the Regulatory Flexibility 

Act and the policies and procedures 

published on February 19, 2003. 68 FR 

7990. 

As noted above, the test procedure 

incorporates by reference provisions 

from IEC Standard 62301 (Second 

Edition) 8 for the measurement of 

standby mode and off mode energy 

consumption. IEC Standard 62301 

(Second Edition) is widely accepted and 

used internationally to measure electric 

power in standby mode and off mode. 

Based on its analysis of IEC Standard 

62301 (Second Edition), DOE 

determined that the test methods and 

equipment that the amendments require 

for measuring standby mode and off 

mode power do not differ substantially 

from the test methods and equipment in 

the current DOE test procedure for 

direct heating equipment and pool 

heaters. Even if the testing facility 

decides to upgrade its measurement 

instrumentation to meet today’s rule, an 

applicable meter (i.e., one that complies 

with IEC Standard 62301) would cost 

$3,000 or less. Therefore, testing of 

direct heating equipment and pool 

heaters pursuant to today’s final rule 

will not require any significant 

investment in test facilities or new 

equipment. The testing time to conduct 

the standby mode and off mode testing 

on a single unit is estimated at 15 

minutes to 60 minutes. Assuming a 

laboratory technician would be present 

at a cost of $60 per hour, this time 

represents a labor cost range of $15 to 

$60. This range of cost would be related 

to the stability of the electrical 

consumption being measured, with a 

longer testing time being required for 

unstable measurements in order to 

allow for accurate averaging. It is 

important to note, that the second 

edition of IEC Standard 62301 sought 

improvement in this area by more 

clearly defining the stability criteria and 

allowing for less burdensome direct 

meter reading methods, thereby 

reducing testing time in cases where the 

criteria are met. In the worst case, the 

impacts of the potential incremental 

instrument and labor costs are still 

small compared to the overall financial 

investment needed to undertake a 

business enterprise involving the testing 

of consumer products. For these 

reasons, DOE has concluded that the 

standby mode and off mode test 

procedure provisions will not add 

significant costs. 

For the manufacturers of the three 

types of heating products, the Small 

Business Administration (SBA) has set a 

size threshold, which defines those 

entities classified as ‘‘small businesses’’ 

for the purposes of the statute. DOE 

used the SBA’s small business size 

standards to determine whether any 

small entities would be subject to the 

requirements of the rule. 65 FR 30836, 

30848–49 (May 15, 2000), as amended at 

65 FR 53533, 53544–45 (Sept. 5, 2000) 

and codified at 13 CFR part 121. The 

size standards are listed by North 

American Industry Classification 

System (NAICS) code and industry 

description and are available at http:// 

www.sba.gov/sites/default/files/files/ 

Size_Standards_Table(1).pdf. 

Residential water heater manufacturing 

is classified under NAICS 335228— 

‘‘Other Major Household Appliance 

Manufacturing.’’ DHE and pool heater 

manufacturing are classified under 

NAICS 333414—‘‘Heating Equipment 

(except Warm Air Furnaces) 

Manufacturing.’’ The SBA sets a 

threshold of 500 employees or less for 

an entity to be considered as a small 

business for both of these categories. 

However, since DOE has determined 

that it is not necessary to establish 

additional standby mode and off mode 

test procedure provisions for water 

heaters in this rulemaking, there is no 

need to analyze the impact of this 

rulemaking on water heater 

manufacturers. 

In a recent review of the residential 

DHE and pool heater markets, DOE 

identified 10 manufacturers of only 

vented DHE, 3 manufacturers of only 

unvented DHE, 2 manufacturers of both 

vented and unvented DHE, and 1 pool 

heater manufacturer that can be 

considered small businesses. DOE’s 

research involved reviewing several 

industry trade association membership 

directories (e.g., AHRI and HPBA), 

product databases (e.g. AHRI, CEC, and 

ENERGY STAR databases), individual 

company Web sites, and marketing 

research tools (e.g. Dun and Bradstreet 

reports) to create a list of all domestic 

small business manufacturers of direct 

heating equipment and gas-fired pool 

heaters covered by this rulemaking. In 

the August 2010 NOPR, DOE identified 

a similar number of small business 

manufacturers and tentatively certified 

that this rule would not have a 

significant impact on a substantial 

number of small entities. 75 FR 52892, 

52901–02 (August 30, 2010). 

Additionally, as discussed above, DOE 

hereby confirms that the IEC Standard 

62301 (Second Edition) would be 

expected to reduce testing burden 

relative to the first edition and confirms 

that this rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, DOE has not prepared a 

regulatory flexibility analysis for this 

rulemaking. DOE’s certification and 

supporting statement of factual basis 

was provided to the Chief Counsel for 

Advocacy of the SBA for review under 

5 U.S.C. 605(b). DOE did not receive any 

comments or public testimony regarding 

a significant economic impact on any 

small entities. Thus, DOE reaffirms and 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 


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C. Review Under the Paperwork 

Reduction Act of 1995 

Manufacturers of residential direct 

heating equipment and pool heaters 

must certify to DOE that their products 

comply with all applicable energy 

conservation standards. In certifying 

compliance, manufacturers must test 

according to the applicable DOE test 

procedures, including any amendments 

adopted for those test procedures on the 

date that compliance is required. DOE 

has established regulations for the 

certification and recordkeeping 

requirements for all covered products 

and commercial equipment, including 

residential direct heating equipment 

and pool heaters (76 FR 12422 (March 

7, 2011)). The collection-of-information 

requirement for certification and 

recordkeeping is subject to review and 

approval by OMB under the Paperwork 

Reduction Act (PRA). This requirement 

has been approved by OMB under OMB 

Control Number 1910–1400. Public 

reporting burden for the certification is 

estimated to average 20 hours per 

response, including the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, and 

completing and reviewing the collection 

of information. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

D. Review Under the National 

Environmental Policy Act 

DOE is establishing a final rule to 

amend the test procedure for residential 

direct heating equipment and pool 

heaters to address measurement of the 

standby mode and off mode energy 

consumption of these products. DOE 

has determined that this final rule falls 

into a class of actions that are 

categorically excluded from review 

under the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et 

seq.), and DOE’s implementing 

regulations at 10 CFR part 1021. 

Specifically, this final rule, which 

adopts an industry standard for 

measurement of standby mode and off 

mode energy consumption, amends an 

existing rule without affecting the 

amount, quality, or distribution of 

energy usage, and, therefore, will not 

result in any environmental impacts. 

Thus, this rulemaking is covered by 

Categorical Exclusion A5 found in 10 

CFR part 1021, subpart D, which applies 

to any rulemaking that interprets or 

amends an existing rule without 

changing the environmental effect of 

that rule. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

imposes certain requirements on 

Federal agencies formulating and 

implementing policies or regulations 

that preempt State law or that have 

Federalism implications. 64 FR 43255 

(August 10, 1999). 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 carefully assess 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 the 

development of 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 the development of 

such regulations. 65 FR 13735. DOE has 

examined this final rule and determined 

that it would not have a substantial 

direct effect on the States, on the 

relationship between the national 

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 products that are the subject of 

today’s final rule. States can petition 

DOE for exemption from such 

preemption to the extent, and based on 

criteria, set forth in EPCA. (42 U.S.C. 

6297(d)) Therefore, Executive Order 

13132 requires no further action. 

F. Review Under Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (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. Regarding 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 

sections 3(a) and 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, this rule meets 

the relevant standards of Executive 

Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. (Pub. L. 104–4, sec. 201 

(codified at 2 U.S.C. 1531)) 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 one 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)) The 

UMRA also requires a Federal agency to 

develop an effective process to permit 

timely input by elected officers of State, 

local, and Tribal governments on a 

‘‘significant intergovernmental 

mandate,’’ and requires an agency plan 

for giving notice and opportunity for 

timely input to potentially affected 

small governments before establishing 

any requirements 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. (This policy is 

also available at http://www.gc.doe.gov.) 

DOE examined today’s final rule, which 

modifies the current test procedures for 

direct heating equipment and pool 

heaters according to UMRA and its 

statement of policy and determined that 

the rule contains neither an 

intergovernmental mandate, nor a 


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mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any year. Accordingly, no further 

assessment or analysis is required under 

UMRA. 

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 

rule 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 Executive Order 12630, 

‘‘Governmental Actions and Interference 

with Constitutionally Protected Property 

Rights,’’ 53 FR 8859 (March 15, 1988), 

DOE has determined that this final rule 

would not result in any takings that 

might require compensation under the 

Fifth Amendment to the United States 

Constitution. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

Section 515 of the Treasury and 

General Government Appropriations 

Act, 2001 (44 U.S.C. 3516 note) provides 

for Federal agencies to review most 

disseminations of information to the 

public under information quality 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. 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 final rule 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 

Executive Order 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 OIRA at OMB, a 

Statement of Energy Effects for any 

significant energy action. A ‘‘significant 

energy action’’ is defined as any action 

by an agency that promulgates or is 

expected to lead to promulgation of a 

final rule, and that: (1) Is a significant 

regulatory action under Executive Order 

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 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 should the proposal 

be implemented, and of reasonable 

alternatives to the action and their 

expected benefits on energy supply, 

distribution, and use. Today’s final rule 

is not a significant regulatory action 

under Executive Order 12866 or any 

successor order; would not have a 

significant adverse effect on the supply, 

distribution, or use of energy; and has 

not been designated by the 

Administrator of OIRA as a significant 

energy action. Therefore, DOE has 

determined that this rule is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects for this rulemaking. 

L. Review Under Section 32 of the 

Federal Energy Administration Act of 

1974 

Under section 301 of the Department 

of Energy Organization Act (Pub. L. 95– 

91; 42 U.S.C. 7101 et seq.), DOE must 

comply with all laws applicable to the 

former Federal Energy Administration, 

including section 32 of the Federal 

Energy Administration Act of 1974 

(Pub. L. 93–275), as amended by the 

Federal Energy Administration 

Authorization Act of 1977 (Pub. L. 95– 

70). (15 U.S.C. 788) Section 32 provides 

in relevant part that where a proposed 

rule authorizes or requires use of 

commercial standards, the notice of 

proposed rulemaking must inform the 

public of the use and background of 

such standards. In addition, section 

32(c) requires DOE to consult with the 

Attorney General and the Federal Trade 

Commission (FTC) concerning the 

impact of commercial or industry 

standards on competition. 

Certain of the amendments and 

revisions in this final rule incorporate 

testing methods contained in the 

following commercial standard, the 

International Electrotechnical 

Commission (IEC) Standard 62301, 

‘‘Household electrical appliances— 

Measurement of standby power’’ 

(Second Edition, 2011–01). DOE has 

evaluated this standard and is unable to 

conclude whether it fully complies with 

the requirements of section 32(b) of the 

Federal Energy Administration Act (i.e., 

that it was developed in a manner that 

fully provides for public participation, 

comment, and review). DOE has 

consulted with the Attorney General 

and the Chairman of the FTC 

concerning the impact on competition 

of requiring manufacturers to use the 

test methods contained in this standard, 

and neither recommended against 

incorporation of this standard. 

M. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of today’s rule before its effective date. 

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(2). 

VII. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Incorporation by reference, 

Intergovernmental relations, Small 

businesses. 

Issued in Washington, DC, on November 

16, 2012. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

For the reasons stated in the 

preamble, DOE is amending part 430 of 

Chapter II, Subchapter D of Title 10 of 

the Code of Federal Regulations, 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; 28 U.S.C. 

2461 note. 

■ 2. Section 430.3 is amended by 

revising paragraphs (d)(16) and (m)(2) to 

read as follows: 

§ 430.3 Materials incorporated by 

reference. 

* * * * * 

(d) * * * 

(16) ANSI Z21.56–2006, section 2.10 

(‘‘ANSI Z21.56’’), Standard for GasFired Pool Heaters, approved December 

13, 2005, IBR approved for appendix P 

to subpart B. 

(m) * * * 

(2) IEC 62301 (‘‘IEC 62301’’), 

Household electrical appliances— 

Measurement of standby power, (Edition 

2.0, 2011–01), IBR approved for 

appendices C1, G, I, J2, O, P, and X1 to 

subpart B. 

* * * * * 


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Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Rules and Regulations 74571 

§ 430.23 [Amended] 

■ 3. Section 430.23 is amended by: 

■ a. Removing the words ‘‘section 4.2 of 

appendix P’’ in paragraph (p)(1)(i) and 

adding in their place ‘‘section 5.2 of 

appendix P’’; and 

■ b. Removing the words ‘‘section 4.3 of 

appendix P’’ in paragraph (p)(1)(ii) and 

adding in their place ‘‘section 5.3 of 

appendix P’’. 

■ 4. Appendix G to Subpart B of Part 

430 is amended in section 2 by adding 

sections 2.3, 2.3.1, 2.4, and 2.4.1 to read 

as follows: 

Appendix G to Subpart B of Part 430— 

Uniform Test Method for Measuring the 

Energy Consumption of Unvented Home 

Heating Equipment 

* * * * * 

2. * * * 

2.3 Pilot light measurement. Except as 

provided in section 2.3.1 of this appendix, 

measure the energy input rate to the pilot 

light (Qp), with an error no greater than 3 

percent, for unvented heaters so equipped. 

2.3.1 The measurement of Qp is not 

required for unvented heaters where the pilot 

light is designed to be turned off by the user 

when the heater is not in use (i.e., for units 

where turning the control to the OFF position 

will shut off the gas supply to the burner(s) 

and the pilot light). This provision applies 

only if an instruction to turn off the unit is 

provided on the heater near the gas control 

value (e.g., by label) by the manufacturer. 

2.4 Electrical standby mode power 

measurement. Except as provided in section 

2.4.1 of this appendix, for all electric heaters 

and unvented heaters with electrical 

auxiliaries, measure the standby power 

(PW,SB) in accordance with the procedures in 

IEC 62301 Second Edition (incorporated by 

reference; see § 430.3), with all electrical 

auxiliaries not activated. Voltage shall be as 

specified in section 1.4.1 Electrical supply of 

this appendix. The recorded standby power 

(PW,SB) shall be rounded to the second 

decimal place, and for loads greater than or 

equal to 10W, at least three significant figures 

shall be reported. 

2.4.1 The measurement of PW,SB is not 

required for heaters designed to be turned off 

by the user when the heater is not in use (i.e., 

for units where turning the control to the 

OFF position will shut off the electrical 

supply to the heater). This provision applies 

only if an instruction to turn off the unit is 

provided on the heater (e.g., by label) by the 

manufacturer. 

* * * * * 

■ 5. Appendix O to Subpart B of Part 

430 is amended by: 

■ a. Adding a Note after the heading; 

■ b. Redesignating sections 1.1 through 

1.32 as follows: 

Old sections New sections 

1.1 to 1.14 1.2 to 1.15 

1.15 to 1.19 1.17 to 1.21 

1.20 and 1.21 1.23 and 1.24 

Old sections New sections 

1.22 to 1.25 1.26 to 1.29 

1.26 to 1.32 1.31 to 1.37 

■ c. Adding new sections 1.1, 1.16, 1.22, 

1.25 and 1.30; 

■ d. Adding sections 3.7, 3.7.1, and 

3.7.2; and 

■ e. Revising sections 4.6.3 and 4.6.3.1, 

and adding section 4.7. 

The additions and revisions read as 

follows: 

Appendix O to Subpart B of Part 430— 

Uniform Test Method for Measuring the 

Energy Consumption of Vented Home 

Heating Equipment 

NOTE: The procedures and calculations 

that refer to standby mode and off mode 

energy consumption, (i.e., sections 3.7 and 

4.7 of this appendix) need not be performed 

to determine compliance with energy 

conservation standards for vented heaters at 

this time. However, on or after June 17, 2013, 

any representation related to standby mode 

and off mode energy consumption of these 

products must be based upon results 

generated under this test procedure, 

consistent with the requirements of 42 U.S.C. 

6293(c)(2). For vented home heating 

equipment, the statute requires that after July 

1, 2010, any adopted energy conservation 

standard shall incorporate standby mode and 

off mode energy consumption, and upon the 

compliance date for such standards, 

compliance with the applicable provisions of 

this test procedure will also be required. 

1.0 Definitions. 

1.1 ‘‘Active mode’’ means the condition 

during the heating season in which the 

vented heater is connected to the power 

source, and either the burner or any electrical 

auxiliary is activated. 

* * * * * 

1.16 ‘‘IEC 62301 (Second Edition)’’ means 

the test standard published by the 

International Electrotechnical Commission, 

titled ‘‘Household electrical appliances— 

Measurement of standby power,’’ Publication 

62301 Edition 2.0 2011–01 (incorporated by 

reference; see § 430.3). 

* * * * * 

1.22 ‘‘Off mode’’ means the condition 

during the non-heating season in which the 

vented heater is connected to the power 

source, and neither the burner nor any 

electrical auxiliary is activated. 

* * * * * 

1.25 ‘‘Seasonal off switch’’ means the 

control device, such as a lever or toggle, on 

the vented heater that affects a difference in 

off mode energy consumption as compared to 

standby mode consumption. 

* * * * * 

1.30 ‘‘Standby mode’’ means the 

condition during the heating season in which 

the vented heater is connected to the power 

source, and neither the burner nor any 

electrical auxiliary is activated. 

* * * * * 

3.0 * * * 

3.7 Measurement of electrical standby 

mode and off mode power. 

3.7.1 Standby power measurements. With 

all electrical auxiliaries of the vented heater 

not activated, measure the standby power 

(PW,SB) in accordance with the procedures in 

IEC 62301 (Second Edition) (incorporated by 

reference, see § 430.3), except that section 

2.9, Room ambient temperature, and the 

voltage provision of section 2.3.5, Electrical 

supply, of this appendix shall apply in lieu 

of the IEC 62301 (Second Edition) 

corresponding sections 4.2, Test room, and 

4.3, Power supply. Clarifying further, the IEC 

62301 (Second Edition) sections 4.4, Power 

measuring instruments, and section 5, 

Measurements, shall apply in lieu of section 

2.8, Energy flow instrumentation, of this 

appendix. Measure the wattage so that all 

possible standby mode wattage for the entire 

appliance is recorded, not just the standby 

mode wattage of a single auxiliary. The 

recorded standby power (PW,SB) shall be 

rounded to the second decimal place, and for 

loads greater than or equal to 10W, at least 

three significant figures shall be reported. 

3.7.2 Off mode power measurement. If 

the unit is equipped with a seasonal off 

switch or there is an expected difference 

between off mode power and standby mode 

power, measure off mode power (PW,OFF) in 

accordance with the standby power 

procedures in IEC 62301 (Second Edition) 

(incorporated by reference, see § 430.3), 

except that section 2.9, Room ambient 

temperature, and the voltage provision of 

section 2.3.5, Electrical supply, of this 

appendix shall apply in lieu of the IEC 62301 

(Second Edition) corresponding sections 4.2, 

Test room, and 4.3, Power supply. Clarifying 

further, the IEC 62301 (Second Edition) 

sections 4.4, Power measuring instruments, 

and section 5, Measurements, shall apply in 

lieu of section 2.8, Energy flow 

instrumentation, of this appendix. Measure 

the wattage so that all possible off mode 

wattage for the entire appliance is recorded, 

not just the off mode wattage of a single 

auxiliary. If there is no expected difference 

in off mode power and standby mode power, 

let PW,OFF = PW,SB, in which case no separate 

measurement of off mode power is necessary. 

The recorded off mode power (PW,OFF) shall 

be rounded to the second decimal place, and 

for loads greater than or equal to 10W, at 

least three significant figures shall be 

reported. 

4.0 * * * 

4.6.3 Average annual auxiliary electrical 

energy consumption for vented heaters. For 

vented heaters with single-stage controls or 

manual controls, the average annual auxiliary 

electrical consumption (EAE) is expressed in 

kilowatt-hours and defined as: 

EAE = BOHSSPE + ESO

Where: 

BOHSS = as defined in 4.6.1 of this appendix 

PE = as defined in 3.1.3 of this appendix 

ESO = as defined in 4.7 of this appendix 

4.6.3.1 For vented heaters with two-stage 

or modulating controls, EAE is defined as: 

EAE = (BOHR + BOHH)PE + ESO

Where: 

BOHR = as defined in 4.6.1 of this appendix 

BOHH = as defined in 4.6.1 of this appendix 


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74572 Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Rules and Regulations 

PE = as defined in 3.1.3 of this appendix 

ESO = as defined in 4.7 of this appendix 

* * * * * 

4.7 Average annual electric standby 

mode and off mode energy consumption. 

Calculate the annual electric standby mode 

and off mode energy consumption, ESO, 

defined as, in kilowatt-hours: 

ESO = ((PW,SB * (4160—BOH)) + (PW,OFF * 

4600)) * K 

Where: 

PW,SB = vented heater standby mode power, 

in watts, as measured in section 3.7 of this 

appendix 

4160 = average heating season hours per year 

PW,OFF = vented heater off mode power, in 

watts, as measured in section 3.7 of this 

appendix 

4600 = average non-heating season hours per 

year 

K = 0.001 kWh/Wh, conversion factor for 

watt-hours to kilowatt-hours 

BOH = burner operating hours as calculated 

in section 4.6.1 of this appendix where 

for single-stage controls or manual 

controls vented heaters BOH = BOHSS

and for vented heaters equipped with 

two-stage or modulating controls BOH = 

(BOHR + BOHH). 

■ 6. Appendix P to Subpart B of Part 

430 is revised to read as follows: 

Appendix P to Subpart B of Part 430— 

Uniform Test Method for Measuring the 

Energy Consumption of Pool Heaters 

Note: The procedures and calculations that 

refer to standby mode and off mode energy 

consumption (i.e., sections 2.2, 2.3, 3.2, 4.2, 

4.3, 5.3 equation (3), and 5.4 of this appendix 

P) need not be performed to determine 

compliance with energy conservation 

standards for pool heaters at this time. 

However, on or after June 17, 2013, any 

representations related to standby mode and 

off mode energy consumption of these 

products must be based upon results 

generated under this test procedure, 

consistent with the requirements of 42 U.S.C. 

6293(c)(2). For pool heaters, the statute 

requires that after July 1, 2010, any adopted 

energy conservation standard shall 

incorporate standby mode and off mode 

energy consumption, and upon the 

compliance date for such standards, 

compliance with the applicable provisions of 

this test procedure will also be required. 

1. Definitions. 

1.1 Active mode means the condition 

during the pool heating season in which the 

pool heater is connected to the power source, 

and the main burner, electric resistance 

element, or heat pump is activated to heat 

pool water. 

1.2 IEC 62301 (Second Edition) means the 

test standard published by the International 

Electrotechnical Commission, titled 

‘‘Household electrical appliances— 

Measurement of standby power,’’ Publication 

62301, Edition 2.0 2011–01. (incorporated by 

reference; see § 430.3) 

1.3 Off mode means the condition during 

the pool non-heating season in which the 

pool heater is connected to the power source, 

and neither the main burner, electric 

resistance elements, nor heat pump is 

activated. 

1.4 Seasonal off switch means a switch 

present on the pool heater that effects a 

difference in off mode energy consumption 

as compared to standby mode energy 

consumption. 

1.5 Standby mode means the condition 

during the pool heating season in which the 

pool heater is connected to the power source, 

and neither the main burner, electric 

resistance elements, nor heat pump is 

activated. 

2. Test Method. 

2.1 Active mode. The test method for 

testing pool heaters in active mode is as 

specified in section 2.10 of ANSI Z21.56 

(incorporated by reference; see § 430.3). 

2.2 Standby mode. The test method for 

testing the energy consumption of pool 

heaters in standby mode is as described in 

sections 3 through 5 of this appendix. 

2.3 Off mode. 

2.3.1 Pool heaters with a seasonal off 

switch. 

For pool heaters with a seasonal off switch, 

no off-mode test is required. 

2.3.2 Pool heaters without a seasonal off 

switch. 

For pool heaters without a seasonal off 

switch, the test method for testing the energy 

consumption of the pool heater is as 

described in sections 3 through 5 of this 

appendix. 

3. Test conditions. 

3.1 Active mode. Establish the test 

conditions specified in section 2.10 of ANSI 

Z21.56 (incorporated by reference; see 

§ 430.3). 

3.2 Standby mode and off mode. 

Following the conclusion of the 30-minute 

active mode test described in section 2.10 of 

ANSI Z21.56 (incorporated by reference; see 

§ 430.3), reduce the thermostat setting to a 

low enough temperature to put the pool 

heater into standby mode. Operate the pool 

heater in standby mode for 60 minutes. 

4. Measurements. 

4.1 Active mode. Measure the quantities 

delineated in section 2.10 of ANSI Z21.56 

(incorporated by reference; see § 430.3). The 

measurement of energy consumption for oilfired pool heaters in Btu is to be carried out 

in appropriate units (e.g., gallons). 

4.2 Standby mode. Record the average 

electric power consumption during the 

standby mode test, PW,SB, in W, in 

accordance with section 5 of IEC 62301 

(Second Edition) (incorporated by reference; 

see § 430.3) and the fossil fuel energy 

consumption during the standby test, Qp, in 

Btu. Ambient temperature and voltage 

specifications of ANSI Z21.56 (incorporated 

by reference; see § 430.3) shall apply to this 

standby mode testing. The recorded standby 

power (PW,SB) shall be rounded to the second 

decimal place, and for loads greater than or 

equal to 10W, at least three significant figures 

shall be reported. 

4.3 Off mode. 

4.3.1 Pool heaters with a seasonal off 

switch. For pool heaters with a seasonal off 

switch, the average electric power 

consumption during the off mode, PW,OFF = 

0, and the fossil fuel energy consumed during 

the off mode, Qoff = 0. 

4.3.2 Pool heaters without a seasonal off 

switch. Record the average electric power 

consumption during the standby/off mode 

test, PW,OFF (= PW,SB), in W, in accordance 

with section 5 of IEC 62301 (Second Edition) 

(incorporated by reference; see § 430.3), and 

the fossil fuel energy consumption during the 

off mode test, Qoff (= Qp), in Btu. Ambient 

temperature and voltage specifications of 

ANSI Z21.56 (incorporated by reference; see 

§ 430.3) shall apply to this off mode testing. 

The recorded off mode power (PW,OFF) shall 

be rounded to the second decimal place, and 

for loads greater than or equal to 10W, at 

least three significant figures shall be 

reported. 

5. Calculations. 

5.1 Thermal efficiency. Calculate the 

thermal efficiency, Et (expressed as a 

percent), as specified in section 2.10 of ANSI 

Z21.56 (incorporated by reference; see 

§ 430.3). The expression of fuel consumption 

for oil-fired pool heaters shall be in Btu. 

5.2 Average annual fossil fuel energy for 

pool heaters. The average annual fuel energy 

for pool heaters, EF, is defined as: 

EF = BOH QIN + (POH ¥ BOH)QPR + (8760 

¥ POH) Qoff,R

Where: 

BOH = average number of burner operating 

hours = 104 h 

POH = average number of pool operating 

hours = 4464 h 

QIN = rated fuel energy input as defined 

according to section 2.10.1 or section 

2.10.2 of ANSI Z21.56, as appropriate. 

QPR = average energy consumption rate of 

continuously operating pilot light, if 

employed, = (QP/1 h) 

QP = energy consumption of continuously 

operating pilot light, if employed, as 

measured in section 4.2 of this appendix, 

in Btu 

8760 = number of hours in one year 

Qoff,R = average off mode fossil fuel energy 

consumption rate = Qoff/(1 h) 

Qoff = off mode energy consumption as 

defined in section 4.3 of this appendix 

5.3 Average annual auxiliary electrical 

energy consumption for pool heaters. The 

average annual auxiliary electrical energy 

consumption for pool heaters, EAE, is 

expressed in Btu and defined as: 

(1) EAE = EAE,active + EAE,standby,off

(2) EAE,active = BOH * PE 

(3) EAE,standby,off = (POH ¥ BOH) PW,SB(Btu/ 

h) + (8760 ¥ POH) PW,OFF(Btu/h) 

Where: 

EAE,active = auxiliary electrical consumption 

in the active mode 

EAE,standby,off = auxiliary electrical 

consumption in the standby mode and 

off mode 

PE = 2Ec, if heater is tested according to 

section 2.10.1 of ANSI Z21.56, in Btu/h 

= 3.412 PErated, if heater is tested 

according to section 2.10.2 of ANSI 

Z21.56, in Btu/h 

Ec = electrical consumption of the heater 

(converted to equivalent unit of Btu), 

including the electrical energy to the 

recirculating pump if used, during the 

30-minute thermal efficiency test, as 

defined in section 2.10.1 of ANSI Z21.56, 

in Btu per 30 min. 


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Federal Register / Vol. 77, No. 242 / Monday, December 17, 2012 / Rules and Regulations 74573 

1The CPI–U is compiled by the Bureau of 

Statistics of the Department of Labor. To calculate 

the adjustment, the FDIC used the Department of Labor, Bureau of Labor Statistics B All Urban 

Consumers tables to arrive at the CPI–U values. 

2 = conversion factor to convert unit from per 

30 min. to per h. 

PErated = nameplate rating of auxiliary 

electrical equipment of heater, in Watts 

BOH = as defined in 5.2 of this appendix 

POH = as defined in 5.2 of this appendix 

PW,SB (Btu/h) = electrical energy 

consumption rate during standby mode 

expressed in Btu/h = 3.412 PW,SB, Btu/h 

PW,SB = as defined in 4.2 of this appendix 

PW,OFF (Btu/h) = electrical energy 

consumption rate during off mode 

expressed in Btu/h = 3.412 PW,OFF, Btu/ 

h 

PW,OFF = as defined in 4.3 of this appendix 

5.4 Integrated thermal efficiency. 

5.4.1 Calculate the seasonal useful output 

of the pool heater as: 

EOUT = BOH[(Et/100)(QIN + PE)] 

Where: 

BOH = as defined in 5.2 of this appendix 

Et = thermal efficiency as defined in 5.1 of 

this appendix 

QIN = as defined in 5.2 of this appendix 

PE = as defined in 5.3 of this appendix 

100 = conversion factor, from percent to 

fraction 

5.4.2 Calculate the annual input to the 

pool heater as: 

EIN = EF + EAE

Where: 

EF = as defined in 5.2 of this appendix 

EAE = as defined in 5.3 of this appendix 

5.4.3 Calculate the pool heater integrated 

thermal efficiency (TEI) (in percent). 

TEI = 100(EOUT/EIN) 

Where: 

EOUT = as defined in 5.4.1 of this appendix 

EIN = as defined in 5.4.2 of this appendix 

100 = conversion factor, from fraction to 

percent 

[FR Doc. 2012–30193 Filed 12–14–12; 8:45 a.m.] 

BILLING CODE 6450–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Parts 308 and 390 

Rules of Practice and Procedure 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Final rule. 

SUMMARY: The Federal Civil Penalties 

Inflation Adjustment Act of 1990, as 

amended, requires all Federal agencies 

that have statutory authority to impose 

civil money penalties (CMPs), every 

four years, to publish, as adjusted for 

inflation, the maximum authorized 

amount of those CMPs. The Federal 

Deposit Insurance Corporation (FDIC) 

last adjusted the maximum amounts of 

CMPs under its jurisdiction in 2008. 

The FDIC is issuing this final rule to 

publish the adjusted maximum CMPs. 

DATES: This rule is effective on 

December 31, 2012. 

FOR FURTHER INFORMATION CONTACT: Carl 

J. Gold, Counsel, Legal Division (202) 

898–8702, or David Chapman, Chief 

Statistician, (703) 254–0227, Division of 

Insurance and Research. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Debt Collection Improvement Act 

of 1996 (DCIA) amended section 4 of the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Inflation 

Adjustment Act) (28 U.S.C. 2461 note), 

to require the head of each Federal 

agency, by regulation published within 

180 days of the enactment of the DCIA, 

and at least once every four years 

thereafter, to adjust the maximum 

authorized amount of each CMP which 

the agency is authorized to assess. The 

agency is required to use the inflation 

adjustment formula set forth in section 

5(b) of the Inflation Adjustment Act. 

To satisfy the requirements of the 

DCIA, the FDIC is amending part 308 of 

its regulations (12 CFR part 308) of its 

regulations pertaining to its Rules of 

Practice and Procedure that address 

CMPs. The amount of each CMP that the 

FDIC has jurisdiction to impose has 

been increased according to the 

prescribed formula, or maintained at the 

previous level if warranted. The 

penalties specified in part 308 of the 

FDIC’s regulations were last adjusted in 

2008 (73 FR 73153, Dec. 2, 2008). 

In addition, the FDIC is amending 

Part 390 of its regulations (12 CFR part 

390) to adjust the maximum authorized 

CMP amounts it may assess against 

State savings associations under 

applicable laws. Title III of the DoddFrank Wall Street Reform and Consumer 

Protection Act of 2010 (Dodd-Frank Act) 

transferred the functions, powers, and 

duties of the Office of Thrift 

Supervision (OTS) relating to State 

savings associations to the FDIC 

effective one year after July 21, 2010, the 

date that the Dodd-Frank Act was 

enacted. The Dodd-Frank Act also 

amended section 3 of the Federal 

Deposit Insurance Act (FDI Act) to 

designate the FDIC as the ‘‘appropriate 

Federal banking agency’’ for State 

savings associations. The FDIC 

transferred 12 CFR 509.103, the OTS 

regulation that prescribed procedures 

regarding assessment of CMPs against 

State savings associations, and the 

maximum permissible CMP amounts, to 

new part 390 of the FDIC’s regulations. 

See 76 FR 47652 (Aug. 5, 2011). The 

amounts in the OTS regulation were last 

adjusted in 2008, and therefore are also 

subject to review and adjustment as 

provided by the DCIA. 

Any increase in penalty amounts 

under the DCIA shall apply only to 

violations that occur after the effective 

date of the amended regulations. 

Summary of Calculation 

The Inflation Adjustment Act requires 

that each CMP amount be increased by 

the ‘‘cost of living’’ adjustment, which 

is defined as the percentage by which 

the Consumer Price Index (CPI–U) 1 for 

the month of June of the calendar year 

preceding the adjustment exceeds the 

CPI for the month of June of the 

calendar year in which the amount of 

the CMP was last set or adjusted 

pursuant to law. Any increase is to be 

rounded to the nearest multiple of: (A) 

$10 in the case of penalties less than or 

equal to $100; (B) $100 in the case of 

penalties greater than $100, but less 

than or equal to $1,000; (C) $1,000 in 

the case of penalties greater than $1,000, 

but less than or equal to $10,000; (D) 

$5,000 in the case of penalties greater 

than $10,000, but less than or equal to 

$100,000; (E) $10,000 in the case of 

penalties greater than $100,000, but less 

than or equal to $200,000; and (F) 

$25,000 in the case of penalties greater 

than $200,000. Under the DCIA, the first 

time that a CMP was adjusted following 

implementation of the DCIA in 1996, 

the increase could not exceed ten 

percent of the then-current original 

penalty amount, even though the 

intervening cost-of-living exceeded ten 

percent. As a general matter, under the 

DCIA, a particular CMP will not be 

increased for inflation or cost-of-living 

when the ‘‘rounding’’ process fails to 

reach the level warranting adjustment, 

as shown in the Summary of 

Adjustments chart below. In those cases, 

a particular CMP might be increased at 

a subsequent future quadrennial 

adjustment, when the level of inflation 

for the years since the last prior 

adjustment is taken into account. An 

example of the computation steps is 

found at 73 FR 73153 (Dec. 2, 2008), 

which published the FDIC’s adjustments 

of CMPs in 2008. 

Summary of Adjustments 

Under the Inflation Adjustment Act, 

the FDIC must adjust for inflation the 

maximum civil monetary penalties 

which it has authority to assess under 

the FDIA and other statutes. The 


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