[Federal Register: May 27, 2004 (Volume 69, Number 103)]
[Rules and Regulations]
[Page 30151-30162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my04-1]
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Rules and Regulations
Federal Register
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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 GSW Water Heating From the DOE Uniform Federal
Test Procedure for Measuring Efficiency of Commercial Water Heaters
(Case No. WH-014)
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.
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SUMMARY: Today's notice grants an Interim Waiver to GSW Water Heating
(GSW) and publishes GSW's Petition for Waiver from the existing
Department of Energy (the Department or DOE) test procedure for
commercial water heaters. GSW 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-014, 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-014 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-014, 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, Project Manager, 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-
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,
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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 gas-fired 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 July 31, 2003, GSW 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: JW80-160N, JW80-199N, JW80-160NH, JW80-199NH, JW100-
160N, JW100-199N, JW100-160NH, JW100-199NH, JW70-250N, JW70-300N, JW70-
360N, JW70-250NH, JW70-300NH, and JW70-360NH.
In its petition, GSW seeks a waiver from the applicable test
procedure because GSW asserts that the current DOE test procedure is
incompatible with the new DOE energy efficiency standards, which became
effective on October 29, 2003. GSW 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 GSW 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 GSW 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 GSW is hereby
granted for the basic models of water heating equipment as follows:
JW80-160N, JW80-199N, JW80-160NH, JW80-199NH, JW100-160N, JW100-199N,
JW100-160NH, JW100-199NH, JW70-250N, JW70-300N, JW70-360N, JW70-
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250NH, JW70-300NH, and JW70-360NH.
(2) GSW 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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[FR Doc. 04-12037 Filed 5-26-04; 8:45 am]
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