[Federal Register Volume 79, Number 216 (Friday, November 7, 2014)]
[Proposed Rules]
[Pages 66338-66341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26398]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

========================================================================


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

[[Page 66338]]



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; Air-Conditioning, 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 
Air-Conditioning, 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: <a href="/cdn-cgi/l/email-protection#9dd5f8fce9f4f3facdeff2f9e8fee9eeb0afadacacb0c9cdb0adada9afddf8f8b3f9f2f8b3faf2eb"><span class="__cf_email__" data-cfemail="f6be9397829f9891a684999283958285dbc4c6c7c7dba2a6dbc6c6c2c4b69393d8929993d8919980">[email protected]</span></a>. 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-TP-0042-0083

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: <a href="/cdn-cgi/l/email-protection#4923262127672a30242b28253a2230092c2c672d262c672e263f"><span class="__cf_email__" data-cfemail="412b2e292f6f22382c23202d322a380124246f252e246f262e37">[email protected]</span></a>; 
Michael Kido, U.S. Department of Energy, Office of General Counsel, GC-
71, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-8145, 
email: <a href="/cdn-cgi/l/email-protection#ce83a7ada6afaba2e085a7aaa18ea6bfe0aaa1abe0a9a1b8"><span class="__cf_email__" data-cfemail="ce83a7ada6afaba2e085a7aaa18ea6bfe0aaa1abe0a9a1b8">[email protected]</span></a>.

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 Sec. Sec.  
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

[[Page 66339]]

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).
---------------------------------------------------------------------------

    \1\ AHRI 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.
---------------------------------------------------------------------------

    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. Sec.  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.
---------------------------------------------------------------------------

    \2\ The Administrative Procedure Act (APA), 5 U.S.C. Sec.  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. Sec.  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. Sec.  6295(o)(1), but to correct an error in the 
final rule addressing the test procedure. 42 U.S.C. Sec.  
6293(b)(2).
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------

    \3\ The 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. . .''
---------------------------------------------------------------------------

    2.26 Capacities of Storage Vessels
    The storage vessel capacity shall be within <plus-minus> 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

[[Page 66340]]

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     Revised Federal minimum  EF
-------------------------------------------------          >=.67-.0019V                    >=.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     Revised Federal minimum  EF
-------------------------------------------------          >=.97-.00132V                   >=.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     Revised Federal minimum  EF
-------------------------------------------------          >=.97-.00132V                   >=.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 non-compliant 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

[[Page 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
          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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