This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

66338 

Vol. 79, No. 216 

Friday, November 7, 2014 

DEPARTMENT OF ENERGY 

10 CFR Part 429 

[Docket Number EERE–2011–BT–TP–0042] 

Energy Conservation Program for 

Consumer Products and Certain 

Commercial and Industrial Equipment: 

Test Procedures for Residential and 

Commercial Water Heaters; AirConditioning, Heating, & Refrigeration 

Institute Petition for Repeal 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Petition for repeal; request for 

comments. 

SUMMARY: The Department of Energy 

(DOE) received a petition from the AirConditioning, Heating, and Refrigeration 

Institute (AHRI), requesting that DOE 

repeal certain parts of the final rule for 

test procedures for residential and 

commercial water heaters published in 

the Federal Register on July 11, 2014. 

Specifically, AHRI sought repeal of 

amendments made to the test procedure 

final rule that address the rated volume 

of residential storage water heaters. 

AHRI stated that these amendments in 

effect increase the stringency of the 

applicable minimum standards for 

residential water heaters in violation of 

the statute, are unnecessary to develop 

a uniform energy descriptor, and do not 

coincide with industry practice. DOE 

seeks comment on whether to grant the 

petition and proceed with a rulemaking 

on this matter. 

DATES: Any comments must be received 

by DOE not later than January 6, 2015. 

ADDRESSES: Comments must be 

submitted, identified by docket number 

EERE–2011–BT–TP–0042, by one of the 

following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

2. Email: HeatingProducts-2011-TP0042@ee.doe.gov. Include either the 

docket number EERE–2011–BT–TP– 

0042, and/or ‘‘AHRI Petition’’ in the 

subject line of the message. 

3. Mail: Ms. Brenda Edwards, U.S. 

Department of Energy, Building 

Technologies Program, Mailstop EE–5B, 

Room 1J–018, 1000 Independence 

Avenue SW., Washington, DC 20585– 

0121. Please submit one signed original 

paper copy. 

4. Hand Delivery/Courier: Ms. Brenda 

Edwards, U.S. Department of Energy, 

Building Technologies Program, Room 

1J–018, 1000 Independence Avenue 

SW., Washington, DC 20585–0121. 

5. Instructions: All submissions 

received must include the agency name 

and docket number for this proceeding. 

Docket: For access to the docket to read 

background documents, or comments 

received, go to the Federal eRulemaking 

Portal at http://www.regulations.gov. In 

addition, electronic copies of the 

Petition are available online at at the 

following URL address: http://

www.regulations.gov/

#!documentDetail;D=EERE-2011-BT-TP0042-0083 

FOR FURTHER INFORMATION CONTACT: John 

Cymbalsky, U.S. Department of Energy, 

Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–5B, 1000 

Independence Avenue SW., 

Washington, DC 20585–0121, (202) 287– 

1692, or email: john.cymbalsky@

ee.doe.gov; Michael Kido, U.S. 

Department of Energy, Office of General 

Counsel, GC–71, 1000 Independence 

Avenue SW., Washington, DC 20585, 

(202) 586–8145, email: Michael.Kido@

hq.doe.gov. 

SUPPLEMENTARY INFORMATION: The 

Administrative Procedure Act (APA), 5 

U.S.C. 551 et seq., provides among other 

things that, ‘‘[e]ach agency shall give an 

interested person the right to petition 

for the issuance, amendment, or repeal 

of a rule.’’ (5 U.S.C. 553(e)). The U.S. 

Department of Energy (DOE) received a 

petition from the Air-Conditioning, 

Heating, and Refrigeration Institute 

(AHRI) dated September 29, 2014, 

requesting that DOE repeal certain parts 

of the rule for efficiency test procedures 

for residential and commercial water 

heaters published in the Federal 

Register on July 11, 2014. 79 FR 40542 

(July 11, 2014), Docket No. EERE–2011– 

BT–TP–0042–0082 ‘‘the water heater 

test procedure’’, or, in context, ‘‘the test 

procedure’’. 

Specifically, AHRI sought repeal of 

amendments made to §§ 429.17 and 

428.134 of the test procedure final rule 

that address the rated volume of 

residential storage water heaters. AHRI 

stated that these amendments in effect 

increase the stringency of the applicable 

minimum standards for residential 

water heaters in violation of 42 U.S.C 

6293; are not necessary to satisfy DOE’s 

obligation to develop a uniform 

efficiency descriptor for residential and 

commercial water heaters, as required 

by the American Energy Manufacturing 

Technical Corrections Act (AEMTCA) of 

2012; do not address any efficiency 

performance issue for water heaters; 

were not developed to respond to any 

problem that was identified by 

commenters during the rulemaking, and 

do not coincide with industry practice. 

AHRI believes that the Federal Trade 

Commission should be involved in the 

development of an alternative solution, 

and that one option that should be 

considered is use of the FTC 

EnergyGuide label, which will be 

undergoing significant changes next 

year to reflect the ratings based on the 

use of the Universal Efficiency 

Descriptor test procedure. In 

promulgating this petition for public 

comment, DOE seeks views on whether 

to grant the petition and undertake a 

rulemaking to consider the proposals 

contained in the petition. By seeking 

such comment, DOE takes no position at 

this time on the merits of the suggested 

rulemaking. 

Issued in Washington, DC, on October 30, 

2014. 

Kathleen B. Hogan, 

Deputy Assistant Secretary for Energy 

Efficiency, Energy Efficiency and Renewable 

Energy. 

AHRI PETITION 

Before the 

United States Department of Energy 

Office of Energy Efficiency and 

Renewable Energy 

In the Matter of: Docket No. EERE– 

2011–BT–TP–0042–0082, RIN: 1904– 

AC53, Energy Conservation Program for 

Consumer Products and Certain 

Commercial and Industrial Equipment: 

Test Procedures for Residential and 

Commercial Water Heaters; Final Rule. 

10 CFR Part 429 


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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Proposed Rules 66339 

1AHRI is the trade association representing 

manufacturers of air conditioning, heating, 

commercial refrigeration, and water heating 

equipment. AHRI’s 320 member companies employ 

approximately 130,000 men and women in the 

United States. The total value of member shipments 

by these companies is over $20 billion annually. 

AHRI’s water heater manufacturer members account 

for essentially all residential storage water heaters 

and well over 90% of all residential water heaters 

sold and installed in the U.S. 

2The Administrative Procedure Act (APA), 5 

U.S.C. § 553, requires that ‘‘each agency shall give 

an interested person the right to petition for the 

issuance, amendment, or repeal of a rule.’’ (5 U.S.C. 

§ 553(e)). This right is necessary to protect 

interested parties from rulemakings that may be in 

error, that exceed statutory authority, or are 

otherwise invalid. AHRI is not asking DOE to repeal 

any energy efficiency standard that would fall 

within 42 U.S.C. § 6295(o)(1), but to correct an error 

in the final rule addressing the test procedure. 42 

U.S.C. § 6293(b)(2). 

3The preface for ANSIZ21.10.1 states ‘‘This 

publication represents a basic standard for safe 

operation, substantial and durable construction, 

and acceptable performance of storage gas water 

heaters. . .’’ 

Petition for Reconsideration 

The Air-Conditioning, Heating, and 

Refrigeration Institute (AHRI) 1

respectfully requests that the 

Department of Energy (DOE) repeal 

certain parts of the rule for efficiency 

test procedures for residential and 

commercial water heaters published in 

the Federal Register on July 11, 2014. 

79 Fed. Reg. 40542 (July 11, 2014). 

AHRI seeks repeal of the test 

procedure final rule 2 solely in regards 

to amendments made to Sections 429.17 

and 429.134 that address the rated 

volume of residential storage water 

heaters. The amendment to 

429.17(a)(ii)(C) requires that the rated 

volume value must be the mean of the 

storage volumes measured on the units 

that were tested to establish the model’s 

ratings. The amendment to 

429.134(d)(2) makes the rated volume 

subject to DOE’s enforcement 

provisions. These amendments in effect 

increase the stringency of the applicable 

minimum efficiency standards for 

residential gas, electric, and oil storage 

water heaters in violation of 42 U.S.C. 

§ 6293(e). They also were not necessary 

to satisfy DOE’s obligation to develop a 

uniform efficiency descriptor for 

residential and commercial water 

heaters, as required by the American 

Energy Manufacturing Technical 

Corrections Act (AEMTCA) of 2012; 

they do not address any efficiency 

performance issue for water heaters; and 

they were not developed to respond to 

any problem that was identified by 

commenters during the rulemaking. 

AHRI and its members have worked 

diligently over the last fifty years to 

improve the energy efficiency of 

HVACR and Water Heating equipment. 

It is only out of concern for the 

applicability of increased efficiency 

standards through the test procedure 

amendment, and the alteration of 

industry practice and the scope of 

DOE’s regulatory authority over the past 

25 years, that AHRI respectfully seeks 

repeal of the referenced provisions of 

the test procedure final rule. 

At the December 6, 2013, public 

hearing for this rulemaking, DOE 

presented data that showed the average 

rated storage volume of 19 electric water 

heaters was 9.4% higher than measured 

and the average rated storage volume of 

44 gas water heaters was 4.8% higher 

than measured. From the perspective of 

the rated volume, the measured volume 

of the electric water heaters averaged 

about 8.6% less than the rated volume 

and the measured volume of the gas 

water heaters averaged about 4.6% less 

than the rated volume. At that meeting 

and in the comments we submitted on 

January 4, 2014, we provided 

information explaining why this data 

was neither unusual nor alarming. We 

noted that the relationship of measured 

volume and rated volume is addressed 

by the applicable national, consensus 

water heater standards. These standards 

address safety and other aspects of 

residential water heater models. The 

system of building code regulations in 

the U.S., along with other demands of 

the market, create a situation that makes 

compliance with these standards 

mandatory for any residential water 

heater intended to be sold and installed 

in the U.S. 

The standard for residential electric 

water heaters, UL 174 requires the 

following: 

33 Water Capacity Test 

33.1 The actual water capacity of a 

water heater shall be no less than 90 

percent of the marked rated capacity. 

33.2 Unless the actual capacity of a 

water tank is known, or is obviously 90 

percent or more of the rated capacity, 

the tank capacity is to be measured by 

any convenient means. 

The standard for residential type gas 

storage water heaters, American 

National Standard Z21.10.1,3 requires 

the following: 

2.26 Capacities of Storage Vessels 

The storage vessel capacity shall be 

within ± 5.0 percent of the 

manufacturer’s rated capacity. 

Method of Test 

The storage capacity shall be 

determined by weighing the system 

when dry and empty and reweighing it 

when full or by filling the system with 

water, the weight of which has been 

predetermined. The capacity shall then 

be computed in gallons and compared 

with the manufacturer’s rated capacity. 

Accordingly, the data presented by 

DOE is in conformance with industry 

practice consistent with the 

requirements of the applicable national 

standards. This practice has been in 

place for at least the past 50 years. If 

there were a real concern that this 

typical difference between the measured 

volume and the rated volume impacted 

the minimum efficiency standards or 

consumer information, that concern 

would have evidenced itself already. 

The requirements noted above existed 

in the applicable water heater standards 

when the first minimum energy factor 

(EF) standards for residential water 

heaters were established by the National 

Appliance Energy Conservation Act of 

1987. We can attest with absolute 

certainty that those minimum EF 

standards were developed with full 

knowledge of the relationship of 

measured and storage volume for those 

water heaters. The data from DOE’s test, 

when properly considered in terms of 

the relationship of how the measured 

volume compares to the rated volume, 

reflects what is, and has been, the 

standard practice for residential storage 

water heaters for more than 40 years. 

The measured volume is lower than the 

rated volume. That relationship has not 

changed significantly in all those years. 

The test procedure established in this 

rulemaking does not change the 

situation at all. As DOE validated, the 

measured volumes of storage water 

heaters are consistently complying with 

the requirements of the nationally 

recognized standards. Manufacturers are 

not overstating the rated volume so that 

the minimum energy factor requirement 

for that model would be lower. 

In this rulemaking, DOE clearly knew 

that the measured volume of residential 

electric water heaters was somewhere 

around 9% less than the rated volume 

and the measured volume of residential 

gas water heaters was somewhere 

around 4.5% less than the rated volume. 

These results reflect the respective 

requirements for electric and gas water 

heaters specified in the national 

consensus standards cited above. 

Recognizing that in an enforcement 

situation manufacturers still need some 

margin to address test variability, the 

requirement of 429.17(a)(ii)(C) will have 

the effect of lowering the rated volume 

of every electric storage water heater by 

10% and lowering the rated volume of 

every gas and oil storage water heater by 

5%. Manufacturers cannot feasibly 

redesign their products to make the 

measured volume match the current 

rated volume values. Any such redesign 

is precluded by the efficiency standards 


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66340 Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Proposed Rules 

which already require several inches of 

insulation around the tank. A larger 

tank with the same amount of insulation 

will produce models that are either too 

wide to fit through standard doorways 

or too tall to fit into existing installation 

spaces. Furthermore, the cost to spend 

the time and money to redesign and test 

models just for a cosmetic change is 

prohibitive. 

The impact and change to the 

efficiency standards for existing 

products is illustrated in the table 

below, which shows: 1) The rated 

volume sizes that make up a 

manufacturer’s line of residential water 

heaters; 2) the new rated volume that 

will be required to comply with 

429.17(a)(ii)(C); 3) the current minimum 

EF requirement for each of these sizes 

using the respective rated volume 

values; and 4) the revised minimum EF 

requirement going into effect on April 

16, 2015, for each of these sizes using 

the respective rated volume values. The 

bolded values show the higher 

minimum standards that result from the 

amendments addressing the rated 

volume. (Note, recognizing DOE’s 

certification and enforcement 

provisions, the ‘‘New DOE’’ rated 

volumes are rounded to whole integer 

values.) 

GAS STORAGE WATER HEATERS

Rated volume (G) Current Federal minimum 

EF ≥.67–.0019V 

Revised Federal minimum 

EF ≥.675–.0015V 

Current New DOE Current New DOE Current New DOE 

30 ......................................................................................... 28 .61 .62 .63 .63 

40 ......................................................................................... 38 .59 .60 .62 .62 

50 ......................................................................................... 47 .58 .58 .60 .60 

>55 ....................................................................................... >55 EF ≥.67–.0019V EF ≥.8012–.00078V 

65 ......................................................................................... 62 .55 .55 .75 .75 

75 ......................................................................................... 71 .53 .53 .74 .75 

ELECTRIC STORAGE WATER HEATERS

Rated volume (G) Current Federal minimum 

EF ≥.97–.00132V 

Revised Federal minimum 

EF ≥.96–.0003V 

Current New DOE Current New DOE Current New DOE 

30 ......................................................................................... 27 .93 .93 .95 .95 

40 ......................................................................................... 36 .92 .92 .95 .95 

50 ......................................................................................... 45 .90 .91 .95 .95 

>55 ....................................................................................... >55 .97–.00132V 2.057–.00113V 

65 ......................................................................................... 58 .88 .89 1.98 1.99 

80 ......................................................................................... 72 .86 .88 1.97 1.98 

100 ....................................................................................... 90 .84 .85 1.94 1.96 

119 ....................................................................................... 107 .81 .83 1.92 1.94 

OIL STORAGE WATER HEATERS

Rated volume (G) Current Federal minimum 

EF ≥.97–.00132V 

Revised Federal minimum 

EF ≥.96–.0003V 

Current New DOE Current New DOE Current New DOE 

30 ......................................................................................... 28 .53 .54 .62 .63 

50 ......................................................................................... 47 .50 .50 .59 .59 

The tables above clearly illustrate that 

implementation of the new 

429.17(a)(ii)(C) amendment increases 

the current and upcoming revised 

federal minimum efficiency 

requirements for several sizes of 

residential storage water heaters. 

Furthermore, this change, if applied to 

the current standards, makes the subset 

of models in these sizes that are rated 

at the current minimum EF, now noncompliant with the federal standard. 

The July 11, 2014, final rule 

established a uniform efficiency 

descriptor and associated test procedure 

for water heaters. Although the storage 

volume must be measured for purposes 

of the test, the value of the rated volume 

has no bearing on the calculations that 

determine the efficiency using this test 

procedure. The applicable provisions of 

AEMTCA make no mention of 

regulating the rated volume nor were 

any comments submitted during the 

rulemaking process raising this as an 

issue requiring DOE action. These 

amendments attached to the UED test 

procedure rule are unrelated and 

unnecessary issues that were generated 

by DOE without any external request or 

justification. In the final rule notice 

DOE plainly states its purpose for these 

amendments: ‘‘DOE seeks to eliminate 

any potential incentives for 

manufacturers to continue the current 

practice of exaggerating the storage 

volume of water heaters currently on the 

market by inflating the rated volume as 

compared to the actual measured 

volume.’’ If, in fact, the rated volume of 

storage water heaters was an issue, it 

would be a consumer disclosure or 


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Federal Register / Vol. 79, No. 216 / Friday, November 7, 2014 / Proposed Rules 66341 

labeling issue, and the appropriate 

action would be proposal of a consumer 

protection or product advertising rule 

by a Federal agency responsible for such 

matters. It is inappropriate and outside 

the scope of DOE’s statutory authority in 

a regulation covering water heater 

efficiency test procedures. Furthermore, 

casting a practice that has been in place 

for more than 50 years, and codified in 

the related water heater national 

standards as an ‘‘exaggeration of storage 

volume’’ and judging manufacturers as 

‘‘inflating the rated volume’’ indicate a 

bias on DOE’s part that is unwarranted 

and unrelated to DOE’s role of 

developing test procedures and 

efficiency standards. 

In the final rule notice, DOE stated 

that the efficiency of a water heater is 

related to the rated storage volume. 

Thus, it is within DOE’s authority to 

regulate. That statement is incorrect and 

cannot be used to attempt to justify this 

action as within DOE’s authority. It has 

long been recognized that the rated 

storage volume has no direct effect on 

how efficiently a given model of water 

heater operates and that the volume of 

the storage tank cannot be used as the 

metric to represent the water heater’s 

hot water delivery capability. Since the 

very first federal efficiency test 

procedures for residential water heaters 

developed in the late 1970s, the 

measure of a storage water heater’s 

efficiency has been energy factor (EF). 

The measure of the storage water 

heater’s performance, generally referred 

to as capacity, is the first hour rating 

(FHR). The first hour rating of a storage 

water heater is a combination of the 

volume of water in the storage tank, the 

input rate of the model, and how 

efficiently energy is transferred to the 

water in the tank. When the first hour 

rating test is conducted on a unit, the 

actual volume of the tank, not the rated 

volume, contributes to the final 

measured result. As a an example, when 

properly sized the hot water needs of a 

particular household may be met by a 

gas model that has a rated volume of 40 

or 50 gallons or an electric model that 

has a rated volume of 50 or 65 gallons 

or a gas instantaneous (tankless) model, 

which has no storage volume. 

Additionally the residential water 

heater sizing specifications in the 

national model plumbing codes use the 

FHR, not the rated volume, as the basis 

for selecting the properly sized storage 

water heater for a given installation. 

This information illustrates why the 

first hour rating is the appropriate 

metric to represent a storage water 

heater’s ability to deliver hot water and 

how it has been used in the field for 

many years. The EF and FHR have been 

and continue to be the two certified 

values for storage water heaters 

measured by the test procedure. There 

have not been any issues in the field 

related to the relationship between the 

rated and measured volume. 

It is correct that the rated storage 

volume is used in the equations that 

establish the specific EF minimum 

requirement for a given size storage 

water heater. However, that is the 

minimum efficiency standard that a 

residential storage water heater model 

must meet. It is not the efficiency of the 

water heater model. As illustrated by 

our most critical point, DOE has 

appeared to have missed that 

distinction. If every storage water heater 

model currently on the market today 

were to have its rated volume lowered 

to comply with the amendments in this 

final rule, there would be no change to 

the efficiency of any one of those 

models. Likewise, there would be no 

energy savings achieved by those new 

rated volume values. 

As we have illustrated, the value of 

the rated volume does influence the 

minimum EF standard. A higher rated 

volume does result in a lower EF 

requirement. The theoretical possibility 

that a rated volume would be overstated 

to get a lower minimum EF requirement 

has existed since the first NAECA 

standards went into effect in 1990. In 

our comments, we explained how this 

possibility has never occurred. DOE 

acknowledged this in the final rule 

notice. An examination of the influence 

of federal efficiency standards on rated 

volume shows an effect opposite to the 

concern of ‘‘higher’’ rated volume 

values. The following table shows the 

typical rated volumes for a 

manufacturer’s standard product line of 

gas and electric water heaters in 1990 

and today. In a number of cases, the 

rated volumes have decreased. This is a 

direct consequence of adding more 

insulation to a model whose outside 

diameter cannot change for practical 

installation concerns. The remaining 

option is to make the diameter of the 

storage water tank smaller. Since the 

measured volume is smaller, 

compliance with the applicable 

standard requires the rated volume to be 

lowered. There are no rated volumes 

that increased. 

Gas rated 

volume 

Electric rated 

volume 

1990 2014 1990 2014 

30 30 30 ** 27/30 

40 40 40 38/40 

50 50 52 47/50 

* 65 66 65 

Gas rated 

volume 

Electric rated 

volume 

1990 2014 1990 2014 

75 75 82 80 

*** 100 100 

120 119 

* This model size did not exist in 1990. It is 

a downsized version of the historical 75 gallon 

model. 

** The listing of two sizes indicates that both 

sizes are in the product line. 

*** Only some manufacturers offer this 

model size. 

Even though the other standards 

requirements and market influences, 

which made the possibility of overstated 

rated volumes unrealistic, have 

remained the same for 40 years, DOE 

attempts to justify this punitive measure 

because of a desire to rule out this 

possibility in the future. That reasoning 

ignores the fact that the ‘‘future’’ 

minimum efficiency standards that go 

into effect on April 16, 2015, are an 

overwhelmingly compelling incentive to 

not ‘‘inflate’’ the rated volume of a 

residential storage water heater above 55 

gallons. The minimum efficiency 

requirements for models above 55 

gallons are significantly more stringent 

than those for models less than 55 

gallons. Furthermore, for electric storage 

water heaters 55 gallons or smaller the 

revised minimum EF standard is the 

same; i.e .95, for all rated volume sizes. 

Recognizing the significance of this 

change and the process by which it was 

effected, we request immediate action to 

repeal the amendments involving the 

certification and enforcement of rated 

volume values. AHRI will work with 

DOE to develop an alternative solution 

to the concern that an overstated rated 

volume, outside the requirements of the 

national consensus water heater 

standards could lower the minimum EF 

requirement for a particular model of 

storage water heater. As we have noted, 

this is fundamentally a consumer 

disclosure or labeling issue. 

Accordingly we believe that the Federal 

Trade Commission should be involved 

in the development of an alternative 

solution and that one option that should 

be considered is use of the FTC 

EnergyGuide label, which will be 

undergoing significant changes next 

year to reflect the ratings based on the 

use of the Universal Efficiency 

Descriptor test procedure. 

Respectively Submitted, 

Frank A. Stanonikm, 

Chief Technical Advisor. 

Dated: September 29, 2014 

[FR Doc. 2014–26398 Filed 11–6–14; 8:45 am] 

BILLING CODE 6450–01–P 


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