Federal Register / Vol. 69, No. 103 / Thursday, May 27, 2004 / Rules and Regulations 30175

DEPARTMENT OF ENERGY

10 CFR Part 431 

Office of Energy Efficiency and 

Renewable Energy; Energy 

Conservation Program for Certain 

Industrial Equipment: Granting of the 

Application for Interim Waiver and 

Publishing of the Petition for Waiver of 

Bock Water Heaters, Inc. From the 

DOE Uniform Federal Test Procedure 

for Measuring Efficiency of 

Commercial Water Heaters (Case No. 

WH–018)

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy.

ACTION: Notice of petition for waiver and 

solicitation of comments; grant of 

interim waiver. 

SUMMARY: Today’s notice grants an 

Interim Waiver to Bock Water Heaters, 

Inc. (BWH) and publishes BWH’s 

Petition for Waiver from the existing 

Department of Energy (the Department 

or DOE) test procedure for commercial 

water heaters. BWH claims that it 

cannot demonstrate compliance with 

the new energy efficiency requirements 

for commercial water heating products 

that became effective October 29, 2003, 

for some of its water heater models, 

using the current test procedure. The 

test procedure for measuring 

compliance with the new standards was 

published as a proposed rule on August 

9, 2000, and has not yet been finalized. 

As part of today’s action, the 

Department is also soliciting comments, 

data, and information with respect to 

the Petition for Waiver.

DATES: The Department will accept 

comments, data, and information with 

respect to this Petition for Waiver on or 

before June 28, 2004.

ADDRESSES: You may submit comments, 

identified by Case No. WH–018, by any 

of the following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: commercial waterheater 

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

WH–018 in the subject line of the 

message. 

• Mail: Ms. Brenda Edwards-Jones, 

U.S. Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

Commercial Water Heater Waiver, Case 

No. WH–018, 1000 Independence 

Avenue, SW., Washington, DC, 20585–

0121. Telephone: (202) 586–2945. 

Please submit one signed paper original. 

• Hand Delivery/Courier: Ms. Brenda 

Edwards-Jones, U.S. Department of 

Energy, Building Technologies Program, 

Room 1J–018, 1000 Independence 

Avenue, SW., Washington, DC, 20585. 

To read background documents or 

comments received, go to the U.S. 

Department of Energy, Forrestal 

Building, Room 1J–018 (Resource Room 

of the Building Technologies Program), 

1000 Independence Avenue, SW., 

Washington, DC, (202) 586–9127, 

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

through Friday, except Federal holidays. 

Please call Ms. Brenda Edwards-Jones at 

the above telephone number for 

additional information regarding 

visiting the Resource Room. Please note: 

The Department’s Freedom of 

Information Reading Room (formerly 

Room 1E–190 at the Forrestal Building) 

is no longer housing rulemaking 

materials.

FOR FURTHER INFORMATION CONTACT:

Mohammed Khan, U.S. Department of 

Energy, Building Technologies Program, 

Mail Stop EE–2J, Forrestal Building, 

1000 Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586–

7892; e-mail: 

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, 

packaged boilers, water heaters, and 

other types of commercial equipment.

Today’s notice involves commercial 

equipment under Part C, which 

specifically provides for definitions, test 

procedures, labeling requirements, 

energy conservation standards, and 

information and reports from 

manufacturers. With respect to test 

procedures, Part C generally authorizes 

the Secretary of Energy to prescribe test 

procedures that are reasonably designed 

to produce results that reflect energy 

efficiency, energy use and estimated 

annual operating costs, and that are not 

unduly burdensome to conduct. (42 

U.S.C. 6314) 

For commercial water heaters, EPCA 

provides that DOE’s test procedure shall 

be that generally accepted industry test 

procedure developed or recognized by 

the Air-Conditioning and Refrigeration 

Institute (ARI) or by the American 

Society of Heating, Refrigerating and Air 

Conditioning Engineers (ASHRAE), as 

referenced in ASHRAE/Illuminating 

Engineers Society (IES) Standard 90.1 

and in effect on June 30, 1992. (42 

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

provides that if this industry test 

procedure is amended, the Secretary of 

Energy shall amend DOE’s test 

procedure to be consistent with the 

amended industry test procedure, 

unless the Secretary determines that 

such a modified test procedure does not 

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

6314(a)(4)(B)) 

The current DOE test procedure that 

is applicable to this equipment is the 

one referenced in the version of 

ASHRAE/IES 90.1 in effect in 1992, the 

American National Standards Institute 

(ANSI)/Canadian Standards Association 

(CSA) Standard Z21.10.3–1990. In 

response to ASHRAE’s amendment to 

this standard, the Department issued a 

Notice of Proposed Rulemaking to adopt 

an updated test procedure for 

commercial water heaters, ANSI/CSA 

Standard Z21.10.3–1998, which is 

referenced in ASHRAE/IES Standard 

90.1–1999. (65 FR 48852, August 9, 

2000) The Department however, has not 

taken final action with respect to the 

proposed rule. Thus, the Standard 

Z21.10.3–1990 remains the applicable 

test procedure. 

In January 2001, the Department 

adopted the AHSRAE 90.1–1999 energy 

efficiency standards for commercial 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 


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30176 Federal Register / Vol. 69, No. 103 / Thursday, May 27, 2004 / Rules and Regulations 

commercial equipment on December 13, 

1999 (64 FR 69597), as part of the 

commercial furnace test procedure rule, 

and the Department expects to publish 

a final rule codifying this process in 10 

CFR 431.201. Until that occurs, DOE 

will use the waiver provisions for 

consumer products and electric motors 

for waivers involving other covered 

commercial equipment. These waiver 

provisions are substantively identical. 

The waiver provisions allow the 

Assistant Secretary for Energy Efficiency 

and Renewable Energy to waive 

temporarily the test procedures for a 

particular basic model when a petitioner 

shows that the basic model contains one 

or more design characteristics that 

prevent testing according to the 

prescribed test procedures, or when the 

prescribed test procedures may evaluate 

the basic model in a manner so 

unrepresentative of its true energy 

consumption as to provide materially 

inaccurate comparative data. (See 10 

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

Waivers generally remain in effect until 

final test procedure amendments 

become effective, thereby resolving the 

problem that is the subject of the 

waiver. 

DOE will grant an Interim Waiver if 

it determines that the applicant will 

experience economic hardship if the 

Application for Interim Waiver is 

denied, if it appears likely that the 

Petition for Waiver will be granted, and/

or the Assistant Secretary determines 

that it would be desirable for public 

policy reasons to grant immediate relief 

pending a determination on the Petition 

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

Interim Waiver remains in effect for a 

period of 180 days or until DOE issues 

its determination on the Petition for 

Waiver, whichever is sooner, and may 

be extended for an additional 180 days, 

if necessary.

On September 10, 2003, BWH filed a 

Petition for Waiver and Application for 

Interim Waiver from the ‘‘DOE Uniform 

Federal Test Procedure for Measuring 

Efficiency of Commercial Water 

Heaters,’’ referenced in the version of 

ASHRAE 90.1 in effect in 1992, ANSI/

CSA Z21.10.3–1990. It requested 

permission to use ASHRAE Standard 

118.1–2003 as an alternate test 

procedure for its water heating products 

having the following model numbers: 

71PG, 120PG, 190PG, 241PG, 361PG, 

70G–190SD, 75G–145D/SD, and 100G–

180SD. 

In its petition, BWH seeks a waiver 

from the applicable test procedure 

because BWH asserts that the current 

DOE test procedure is incompatible 

with the new DOE energy efficiency 

standards, which became effective on 

October 29, 2003. BWH also states that 

the above-specified models of water 

heating products do not meet the new 

energy efficiency requirements using the 

current test procedure. 

Due to the fact that DOE has 

experienced delays in publishing a final 

rule for the test procedure for 

commercial water heating products, and 

also recognizes that certain basic models 

of commercial water heaters are 

allegedly not compliant with the new 

energy efficiency standards absent a 

waiver from the current DOE test 

procedure, the Department has decided 

to grant this interim waiver to ensure 

that such models do not become 

noncompliant. However, the 

Department believes the appropriate 

alternate is the test procedure published 

in the August 9, 2000, proposed rule, 

which incorporates by reference ANSI/

CSA Standard Z21.10.3–1998, the 

applicable industry standard referenced 

by ASHRAE/IES Standard 90.1–1999. 

EPCA requires the Department, for 

certain commercial equipment, to 

amend its test procedures consistent 

with amended ASHRAE or ARI industry 

test procedures. (42 U.S.C. 6314(4)(B)) 

Because ASHRAE Standard 118.1–2003 

is not referenced in the amended 

ASHRAE Standard 90.1–1999, it would 

be inconsistent with the statutory 

language of EPCA to use it as an 

alternate test procedure as BWH 

requests. 

The most significant differences 

between the protocols presented in the 

proposed August 9, 2000, DOE test 

procedure and those presented in 

ASHRAE Standard 118.1–2003 are the 

duration requirements for the Standby 

Loss Test; other differences are minimal. 

The ANSI/CSA Standard Z21.10.3–1998 

test procedure specifies that the Standby 

Loss Test shall continue until the first 

cutout occurs following 24 hours from 

the time data collection is initiated. 

Because it is possible for some water 

heaters to not experience the cutout 

until days beyond the 24 hour limit, the 

industry test standard, ASHRAE 

Standard 118.1–2003, includes a 48-

hour limit to preclude undue test 

burdens. The inclusion of a 48-hour 

provision in the proposed DOE test 

procedure was suggested by the Gas 

Appliance Manufacturers Association 

(GAMA) and the California Energy 

Commission (CEC) in comments 

submitted in response to the August 9, 

2000, proposed rule. The Department 

agrees with the need for the additional 

test duration requirement and believes 

that the evidence in the record is clear 

and convincing that without the 48-hour 

termination provision, the standby loss 

test procedure in the ANSI/CSA 

Standard Z21.10.3–1998 can pose 

undue burdens on manufacturers. 

Therefore, this waiver authorizes the 

use of ANSI/CSA Standard Z21.10.3–

1998, and regarding the Standby Loss 

Test in section 2.10 of ANSI/CSA 

Standard Z21.10.3–1998, adds the 

requirement that the standby loss test 

duration shall be the shorter of either, 

(1) until the first cutout following 24 

hours from the initiation of data 

collection, or (2) until 48 hours from the 

initiation of data collection if the water 

heater is not in the heating mode at that 

time. 

After careful consideration of all the 

material that was submitted by BWH 

and others, the Department has decided 

to grant this interim waiver for the 

public policy reason that it is not 

desirable to make certain models of 

commercial water heaters noncompliant 

with the applicable energy efficiency 

standards given that the appropriate test 

procedure is not yet finalized. Hence, it 

is ordered that: 

(1) The ‘‘Application for Interim 

Waiver’’ filed by BWH is hereby granted 

for the basic models of water heating 

equipment as follows: 71PG, 120PG, 

190PG, 241PG, 361PG, 70G–190SD, 

75G–145D/SD, and 100G–180SD. 

(2) BWH is permitted the use of ANSI/

CSA Standard Z21.10.3–1998 to 

establish compliance with the efficiency 

standards for its water heating products 

manufactured after October 29, 2003. 

Further, regarding the Standby Loss 

Test, section 2.10 of ANSI/CSA 

Standard Z21.10.3–1998, the use of an 

additional test duration requirement is 

permitted as follows: The standby loss 

test duration shall be the shorter of 

either, (i) until the first cutout following 

24 hours from the initiation of data 

collection, or (ii) until 48 hours from the 

initiation of data collection if the water 

heater is not in the heating mode at that 

time. 

This Interim Waiver is based upon the 

presumed validity of statements and all 

allegations submitted by the company. 

This Interim Waiver may be removed or 

modified at any time upon a 

determination that the factual basis 

underlying the Application is incorrect. 

This Interim Waiver shall remain in 

effect for a period of 180 days after 

issuance or until DOE acts on the 

Petition for Waiver, whichever is 

sooner, and may be extended for an 

additional 180-day period, if necessary. 

DOE is hereby publishing the ‘‘Petition 

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

430.27(b)) The Petition contains no 

confidential information. The 

Department solicits comments, data, 

and information respecting the Petition. 


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Any person submitting written 

comments to DOE concerning either the 

Petition for Waiver or Interim Waiver 

must also send a copy of such 

comments to the petitioner. 10 CFR 

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

Issued in Washington, DC, on May 21, 

2004. 

David K. Garman, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy.

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