30168 Federal Register / Vol. 69, No. 103 / Thursday, May 27, 2004 / Rules and Regulations 

[FR Doc. 04–12036 Filed 5–26–04; 8:45 am] 

BILLING CODE 6450–01–C

DEPARTMENT OF ENERGY

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 431 

Energy Conservation Program for 

Certain Industrial Equipment: Granting 

of the Application for Interim Waiver 

and Publishing of the Petition for 

Waiver of Rheem Water Heaters From 

the DOE Uniform Federal Test 

Procedure for Measuring Efficiency of 

Commercial Water Heaters (Case No. 

WH–017)

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy.

ACTION: Notice of petition for waiver and 

solicitation of comments; grant of 

interim waiver. 

SUMMARY: Today’s notice grants an 

Interim Waiver to Rheem Water Heaters 

(RWH) and publishes RWH’s Petition 

for Waiver from the existing Department 

of Energy (the Department or DOE) test 

procedure for commercial water heaters. 

RWH claims that it cannot demonstrate 

compliance with the new energy 

efficiency requirements for commercial 

water heating products that became 

effective October 29, 2003, for some of 

its water heater models, using the 

current test procedure. The test 

procedure for measuring compliance 

with the new standards was published 

as a proposed rule on August 9, 2000, 

and has not yet been finalized. As part 

of today’s action, the Department is also 

soliciting comments, data, and 

information with respect to the Petition 

for Waiver.

DATES: The Department will accept 

comments, data, and information with 

respect to this Petition for Waiver on or 

before June 28, 2004.

ADDRESSES: You may submit comments, 

identified by Case No. WH–017, by any 

of the following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: commercialwaterheater

waiver@ee.doe.gov. Include Case No. 

WH–017 in the subject line of the 

message. 

• Mail: Ms. Brenda Edwards-Jones, 

U.S. Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

Commercial Water Heater Waiver, Case 

No. WH–017, 1000 Independence 

Avenue, SW., Washington, DC 20585–

0121. Telephone: (202) 586–2945. 

Please submit one signed paper original. 

• Hand Delivery/Courier: Ms. Brenda 

Edwards-Jones, U.S. Department of 

Energy, Building Technologies Program, 

Room 1J–018, 1000 Independence 

Avenue, SW., Washington, DC 20585. 

To read background documents or 

comments received, go to the U.S. 

Department of Energy, Forrestal 

Building, Room 1J–018 (Resource Room 


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of the Building Technologies Program), 

1000 Independence Avenue, SW., 

Washington, DC, (202) 586–9127, 

between 9 a.m. and 4 p.m., Monday 

through Friday, except Federal holidays. 

Please call Ms. Brenda Edwards-Jones at 

the above telephone number for 

additional information regarding 

visiting the Resource Room. Please note: 

The Department’s Freedom of 

Information Reading Room (formerly 

Room 1E–190 at the Forrestal Building) 

is no longer housing rulemaking 

materials.

FOR FURTHER INFORMATION CONTACT:

Mohammed Khan, U.S. Department of 

Energy, Building Technologies Program, 

Mail Stop EE–2J, Forrestal Building, 

1000 Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586–

7892; e-mail: 

Mohammed.Khan@ee.doe.gov; or 

Francine Pinto, Esq., or Thomas 

DePriest, Esq., U.S. Department of 

Energy, Office of General Counsel, Mail 

Stop GC–72, Forrestal Building, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0103, (202) 586–

9507; e-mail: Francine. 

Pinto@hq.doe.gov, or Thomas.DePriest 

@hq.doe.gov.

SUPPLEMENTARY INFORMATION: Title III of 

the Energy Policy and Conservation Act 

(EPCA) sets forth a variety of provisions 

concerning energy efficiency. Part B of 

Title III (42 U.S.C. 6291–6309) provides 

for the ‘‘Energy Conservation Program 

for Consumer Products Other than 

Automobiles.’’ Part C of Title III (42 

U.S.C. 6311–6317) provides for a 

program entitled, ‘‘Certain Industrial 

Equipment,’’ which is similar to the 

program in Part B, and which includes 

commercial air conditioning equipment, 

package boilers, water heaters, and other 

types of commercial equipment.

Today’s notice involves commercial 

equipment under Part C, which 

specifically provides for definitions, test 

procedures, labeling requirements, 

energy conservation standards, and 

information and reports from 

manufacturers. With respect to test 

procedures, Part C generally authorizes 

the Secretary of Energy to prescribe test 

procedures that are reasonably designed 

to produce results that reflect energy 

efficiency, energy use and estimated 

annual operating costs, and that are not 

unduly burdensome to conduct. (42 

U.S.C. 6314) 

For commercial water heaters, EPCA 

provides that DOE’s test procedure shall 

be that generally accepted industry test 

procedure developed or recognized by 

the Air-Conditioning and Refrigeration 

Institute (ARI) or by the American 

Society of Heating, Refrigerating and Air 

Conditioning Engineers (ASHRAE), as 

referenced in ASHRAE/Illuminating 

Engineers Society (IES) Standard 90.1 

and in effect on June 30, 1992. (42 

U.S.C. 6314(a)(4)(A)) This statute also 

provides that if this industry test 

procedure is amended, the Secretary of 

Energy shall amend DOE’s test 

procedure to be consistent with the 

amended industry test procedure, 

unless the Secretary determines that 

such a modified test procedure does not 

meet the statutory criteria. (42 U.S.C. 

6314(a)(4)(B)) 

The current DOE test procedure that 

is applicable to this equipment is the 

one referenced in the version of 

ASHRAE/IES 90.1 in effect in 1992, the 

American National Standards Institute 

(ANSI)/Canadian Standards Association 

(CSA) Standard Z21.10.3–1990. In 

response to ASHRAE’s amendment to 

this standard, the Department issued a 

Notice of Proposed Rulemaking to adopt 

an updated test procedure for 

commercial water heaters, ANSI/CSA 

Standard Z21.10.3–1998, which is 

referenced in ASHRAE/IES Standard 

90.1–1999. (65 FR 48852, August 9, 

2000) The Department however, has not 

taken final action with respect to the 

proposed rule. Thus, the Standard 

Z21.10.3–1990 remains the applicable 

test procedure. 

In January 2001, the Department 

adopted the ASHRAE 90.1–1999 energy 

efficiency standards for commercial gasfired and oil-fired water heaters as new 

Federal efficiency standards effective 

October 29, 2003. (66 FR 3335, January 

12, 2001.) Because the Department has 

not yet issued a final rule on its 

proposal for an updated test procedure 

for commercial water heaters, 

commercial water heater manufacturers 

must demonstrate compliance with the 

new energy efficiency standards using 

the existing DOE test procedure. 

The Department is required to make 

adjustments to its regulations, as 

necessary, to prevent special hardship, 

inequity or unfair distribution of 

burdens. (42 U.S.C. 7194) Currently, the 

Department has regulatory provisions in 

10 CFR 430.27 and 10 CFR 431.29 

allowing a waiver from test procedure 

requirements for covered consumer 

products and electric motors. There are 

no specific waiver provisions for other 

covered commercial equipment. 

However, the Department proposed 

waiver provisions for covered 

commercial equipment on December 13, 

1999 (64 FR 69597), as part of the 

commercial furnace test procedure rule, 

and the Department expects to publish 

a final rule codifying this process in 10 

CFR 431.201. Until that occurs, DOE 

will use the waiver provisions for 

consumer products and electric motors 

for waivers involving other covered 

commercial equipment. These waiver 

provisions are substantively identical. 

The waiver provisions allow the 

Assistant Secretary for Energy Efficiency 

and Renewable Energy to waive 

temporarily the test procedures for a 

particular basic model when a petitioner 

shows that the basic model contains one 

or more design characteristics that 

prevent testing according to the 

prescribed test procedures, or when the 

prescribed test procedures may evaluate 

the basic model in a manner so 

unrepresentative of its true energy 

consumption as to provide materially 

inaccurate comparative data. (See 10 

CFR 430.27 (a)(1), 10 CFR 431.29 (a)(1).) 

Waivers generally remain in effect until 

final test procedure amendments 

become effective, thereby resolving the 

problem that is the subject of the 

waiver. 

DOE will grant an Interim Waiver if 

it determines that the applicant will 

experience economic hardship if the 

Application for Interim Waiver is 

denied, if it appears likely that the 

Petition for Waiver will be granted, and/

or the Assistant Secretary determines 

that it would be desirable for public 

policy reasons to grant immediate relief 

pending a determination on the Petition 

for Waiver. (See 10 CFR 430.27 (g).) An 

Interim Waiver remains in effect for a 

period of 180 days or until DOE issues 

its determination on the Petition for 

Waiver, whichever is sooner, and may 

be extended for an additional 180 days, 

if necessary.

On September 2, 2003, RWH filed a 

Petition for Waiver and Application for 

Interim Waiver from the ‘‘DOE Uniform 

Federal Test Procedure for Measuring 

Efficiency of Commercial Water 

Heaters,’’ referenced in the version of 

ASHRAE 90.1 in effect in 1992, ANSI/

CSA Z21.10.3–1990. It requested 

permission to use ANSI/CSA Z21.10.3–

1998 as an alternate test procedure for 

its water heating products having the 

following model numbers: *50–98, *75–

125, *82–156, *37–160, *76–180, *37–

200, *76–200, *91–200, *100–200**, 

*72–250**, *100–250*, 100–270**, 

*72–300**, *91–300**, *100–310**, 

*65–360**, *65–400**, *85–400**, 

*100–400**, GX90–550**, GX90–

640**, GX90–715**, GX90–500**, 

GX90–600**, and GX90–680** for 

which, RWH states, ‘‘The * may be 

replaced by a ‘G’, ‘GN’, ‘T’ or ‘TN’

which represents trade brands of Rheem 

(G) and Richmond (T). (N) represents a 

natural gas only model. The ** may be 

replaced by an ‘A’ which represents 

ASME.’’


Case No. WH-017 COMMENT 01
30170 Federal Register / Vol. 69, No. 103 / Thursday, May 27, 2004 / Rules and Regulations 

In its petition, RWH seeks a waiver 

from the applicable test procedure 

because RWH asserts that the current 

DOE test procedure is incompatible 

with the new DOE energy efficiency 

standards, which became effective on 

October 29, 2003. RWH also states that 

the above-specified models of water 

heating products do not meet the new 

energy efficiency requirements using the 

current test procedure. 

Due to the fact that DOE has 

experienced delays in publishing a final 

rule for the test procedure for 

commercial water heating products, and 

also recognizes that certain basic models 

of commercial water heaters are 

allegedly not compliant with the new 

energy efficiency standards absent a 

waiver from the current DOE test 

procedure, the Department has decided 

to grant this interim waiver to ensure 

that such models do not become 

noncompliant. The Department believes 

the appropriate alternate is the test 

procedure published in the August 9, 

2000, proposed rule, which incorporates 

by reference ANSI/CSA Standard 

Z21.10.3–1998, the applicable industry 

standard referenced by ASHRAE/IES 

Standard 90.1–1999. EPCA requires the 

Department, for certain commercial 

equipment, to amend its test procedures 

consistent with amended ASHRAE or 

ARI industry test procedures. (42 U.S.C. 

6314(4)(B)) 

The most significant differences 

between the protocols presented in the 

proposed August 9, 2000, DOE test 

procedure and the current DOE test 

procedure, ANSI/CSA Z21.10.3–1990, 

are the duration requirements for the 

Standby Loss Test; other differences are 

minimal. The ANSI/CSA Standard 

Z21.10.3–1998 test procedure specifies 

that the Standby Loss Test shall 

continue until the first cutout occurs 

following 24 hours from the time data 

collection is initiated. This 24-hour 

requirement was created to reduce test 

burdens; the duration requirement 

specified in the ANSI/CSA Z21.10.3–

1990 test procedure is 48 hours 

minimum. However, because it is 

possible for some water heaters to not 

experience the cutout until days beyond 

the 24 hour limit, a newer industry test 

standard, ASHRAE Standard 118.1–

2003, which ASHRAE Standard 90.1 

currently does not reference, includes a 

48-hour limit to preclude undue test 

burdens. The inclusion of a 48-hour 

provision in the DOE test procedure was 

suggested by the Gas Appliance 

Manufacturers Association (GAMA) and 

the California Energy Commission (CEC) 

in comments submitted in response to 

the August 9, 2000, proposed rule. The 

Department agrees with the need for the 

additional test duration requirement 

and believes that the evidence in the 

record is clear and convincing that 

without the 48-hour termination 

provision, the standby loss test 

procedure in the ANSI/CSA Standard 

Z21.10.3–1998 can pose undue burdens 

on manufacturers. Therefore, this 

waiver authorizes the use of ANSI/CSA 

Standard Z21.10.3–1998, and regarding 

the Standby Loss Test in section 2.10 of 

ANSI/CSA Standard Z21.10.3–1998, 

adds the requirement that the standby 

loss test duration shall be the shorter of 

either, (1) until the first cutout following 

24 hours from the initiation of data 

collection, or (2) until 48 hours from the 

initiation of data collection if the water 

heater is not in the heating mode at that 

time. 

After careful consideration of all the 

material that was submitted by RWH 

and others, the Department has decided 

to grant this interim waiver for the 

public policy reason that it is not 

desirable to make certain models of 

commercial water heaters noncompliant 

with the applicable energy efficiency 

standards given that the appropriate test 

procedure is not yet finalized. Hence, it 

is ordered that: 

(1) The ‘‘Application for Interim 

Waiver’’ filed by RWH is hereby granted 

for the basic models of water heating 

equipment as follows: *50–98, *75–125, 

*82–156, *37–160, *76–180, *37–200, 

*76–200, *91–200, *100–200**, *72–

250**, *100–250*, 100–270**, *72–

300**, *91–300**, *100–310**, *65–

360**, *65–400**, *85–400**, *100–

400**, GX90–550**, GX90–640**, 

GX90–715**, GX90–500**, GX90–

600**, and GX90–680** for which, 

RWH states, ‘‘The * may be replaced by 

a ‘G’, ‘GN’, ‘T’ or ‘TN’ which represents 

trade brands of Rheem (G) and 

Richmond (T). (N) represents a natural 

gas only model. The ** may be replaced 

by an ‘A’ which represents ASME.’’

(2) RWH is permitted the use of ANSI/

CSA Standard Z21.10.3–1998 to 

establish compliance with the efficiency 

standards for its water heating products 

manufactured after October 29, 2003. 

Further, regarding the Standby Loss 

Test, section 2.10 of ANSI/CSA 

Standard Z21.10.3–1998, the use of an 

additional test duration requirement is 

permitted as follows: The standby loss 

test duration shall be the shorter of 

either, (i) until the first cutout following 

24 hours from the initiation of data 

collection, or (ii) until 48 hours from the 

initiation of data collection if the water 

heater is not in the heating mode at that 

time. 

This Interim Waiver is based upon the 

presumed validity of statements and all 

allegations submitted by the company. 

This Interim Waiver may be removed or 

modified at any time upon a 

determination that the factual basis 

underlying the Application is incorrect. 

This Interim Waiver shall remain in 

effect for a period of 180 days after 

issuance or until DOE acts on the 

Petition for Waiver, whichever is 

sooner, and may be extended for an 

additional 180-day period, if necessary. 

DOE is hereby publishing the ‘‘Petition 

for Waiver’’ in its entirety. (See 10 CFR 

430.27(b).) The Petition contains no 

confidential information. The 

Department solicits comments, data, 

and information respecting the Petition.

Any person submitting written 

comments to DOE concerning either the 

Petition for Waiver or Interim Waiver 

must also send a copy of such 

comments to the petitioner. 10 CFR 

430.27(b)(1)(iv) and 430.27(d).

Issued in Washington, DC, on May 21, 

2004. 

David K. Garman, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy.

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