[Federal Register Volume 88, Number 247 (Wednesday, December 27, 2023)]
[Proposed Rules]
[Pages 89330-89339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28556]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2017-BT-STD-0019]
RIN 1904-AD91


Energy Conservation Program: Energy Conservation Standards for 
Consumer Water Heaters

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Supplemental notice of proposed rulemaking and request for 
comment.

-----------------------------------------------------------------------

SUMMARY: The Energy Policy and Conservation Act, as amended (``EPCA''), 
prescribes energy conservation standards for various consumer products 
and certain commercial and industrial equipment, including consumer 
water heaters. On July 28, 2023, the U.S. Department of Energy (``DOE'' 
or ``the Department'') proposed amended energy conservation standards 
for certain consumer water heaters, including circulating water 
heaters, along with supporting definitions. In this supplemental notice 
of proposed rulemaking (``SNOPR'') DOE proposes to amend the definition 
for circulating water heaters and clarify that circulating water 
heaters would be subject to the proposed energy conservation standards 
for storage-type water heaters. DOE requests comment on these proposed 
definitions.

DATES: 
    Comments: DOE will accept comments, data, and information regarding 
this SNOPR no later than January 10, 2024.
    Interested persons are encouraged to submit comments using the 
Federal eRulemaking Portal at www.regulations.gov under docket number 
EERE-2017-BT-STD-0019. Follow the instructions for submitting comments. 
Alternatively, interested persons may submit comments, identified by 
docket number EERE-2017-BT-STD-0019, by any of the following methods:
    Email: <a href="/cdn-cgi/l/email-protection#82c1edecf1f7efe7f0d5e3f6e7f0cae7e3f6e7f0f1b0b2b3b5d1d6c6b2b2b3bbc2e7e7ace6ede7ace5edf4"><span class="__cf_email__" data-cfemail="74371b1a070119110623150011063c111500110607464445432720304444454d3411115a101b115a131b02">[email protected]</span></a>. Include the 
docket number EERE-2017-BT-STD-0019 in the subject line of the message.
    Postal Mail: Appliance and Equipment Standards Program, U.S. 
Department of Energy, Building Technologies Office, Mailstop EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: 
(202) 287-1445. If possible, please submit all items on a compact disc 
(``CD''), in which case it is not necessary to include printed copies.
    Hand Delivery/Courier: Appliance and Equipment Standards Program, 
U.S. Department of Energy, Building Technologies Office, 950 L'Enfant 
Plaza SW, 6th Floor, Washington, DC 20024. Telephone: (202) 287-1445. 
If possible, please submit all items on a CD, in which case it is not 
necessary to include printed copies.
    No telefacsimiles (``faxes'') will be accepted. For detailed 
instructions on submitting comments and additional information on this 
process, see section V of this document.
    Docket: The docket for this activity, which includes Federal 
Register notices, comments, and other supporting documents/materials, 
is available for review at www.regulations.gov. All documents in the 
docket are listed in the www.regulations.gov index. However, not all 
documents listed in the index may be publicly available, such as 
information that is exempt from public disclosure.
    The docket web page can be found at www.regulations.gov/docket/EERE-2017-BT-STD-0019. The docket web page contains instructions on how 
to access all documents, including public comments, in the docket. See 
section IV of this document for information on how to submit comments 
through www.regulations.gov.
    EPCA requires the Attorney General to provide DOE a written 
determination of whether the proposed standard is likely to lessen 
competition. The U.S. Department of Justice Antitrust Division invites 
input from market participants and other interested persons with views 
on the likely competitive impact of the proposed standard. Interested 
persons may contact the Division at <a href="/cdn-cgi/l/email-protection#bdd8d3d8cfdac493cec9dcd3d9dccfd9cefdc8ced9d2d793dad2cb"><span class="__cf_email__" data-cfemail="1c7972796e7b65326f687d72787d6e786f5c696f787376327b736a">[email protected]</span></a> on or 
before the date specified in the DATES section. Please indicate in the 
``Subject'' line of your email the title and Docket Number of this 
proposed rulemaking.

FOR FURTHER INFORMATION CONTACT: 
    Ms. Julia Hegarty, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Email: 
<a href="/cdn-cgi/l/email-protection#1d5c6d6d71747c737e784e697c73797c6f796e4c68786e697472736e5d787833797278337a726b"><span class="__cf_email__" data-cfemail="93d2e3e3fffaf2fdf0f6c0e7f2fdf7f2e1f7e0c2e6f6e0e7fafcfde0d3f6f6bdf7fcf6bdf4fce5">[email protected]</span></a>.
    Ms. Melanie Lampton, U.S. Department of Energy, Office of the 
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 
20585-0121. Telephone: (240) 751-5157. Email: 
<a href="/cdn-cgi/l/email-protection#09446c656867606c27456864797d6667496178276d666c276e667f"><span class="__cf_email__" data-cfemail="f8b59d949996919dd6b49995888c9796b89089d69c979dd69f978e">[email protected]</span></a>.
    For further information on how to submit a comment or review other 
public comments and the docket, contact the Appliance and Equipment 
Standards Program staff at (202) 287-1445 or by email: 
<a href="/cdn-cgi/l/email-protection#216051514d48404f42447255404f45405345527054445255484e4f526144440f454e440f464e57"><span class="__cf_email__" data-cfemail="7d3c0d0d11141c131e182e091c13191c0f190e2c08180e091412130e3d181853191218531a120b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Synopsis
II. Introduction
    A. Background
    B. Deviation From Appendix A
III. Discussion
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866, 13563 and 14094
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Information Quality
V. Public Participation
    A. Submission of Comments
    B. Issues on Which DOE Seeks Comment
VI. Approval of the Office of the Secretary

I. Synopsis

    The Energy Policy and Conservation Act,\1\ as amended, Public Law 
94-163 (42 U.S.C. 6291-6317, as codified)

[[Page 89331]]

authorizes DOE to regulate the energy efficiency of a number of 
consumer products and certain industrial equipment. Title III, Part B 
of EPCA \2\ established the Energy Conservation Program for Consumer 
Products Other Than Automobiles. (42 U.S.C. 6291-6309) These products 
include consumer water heaters, the subject of this proposed 
rulemaking.
---------------------------------------------------------------------------

    \1\ All references to EPCA in this document refer to the statute 
as amended through the Energy Act of 2020, Public Law 116-260 (Dec. 
27, 2020), which reflect the last statutory amendments that impact 
Parts A and A-1 of EPCA.
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
---------------------------------------------------------------------------

    On July 28, 2023, DOE published a notice of proposed rulemaking 
(``NOPR'') proposing new and amended energy conservation standards for 
consumer water heaters. 88 FR 49058 (the ``July 2023 NOPR''). These 
proposed standards, which are shown in Table I.1 of the July 2023 NOPR 
included separate standards for circulating water heaters. 88 FR 49058, 
49060-49061. In response to the July 2023 NOPR, DOE received several 
comments from stakeholders requesting that DOE reconsider the standards 
proposed for circulating water heaters. In response to those comments, 
DOE has tentatively determined that these categories of water heaters 
should be treated as storage water heaters and, as a result, would be 
subject to the standards for storage water heaters proposed in the July 
2023 NOPR. The Department requests additional comment on its tentative 
determination that circulating water heaters should be treated as 
storage water heaters.

II. Introduction

    The following section briefly discusses the relevant background of 
DOE's regulation of circulating water heaters. A more comprehensive 
discussion of the rulemaking history of consumer water heaters, 
including relevant statutory authorities, can be found in the July 2023 
NOPR. 88 FR 49058, 49065-49068.

A. Background

    On September 5, 2019, DOE issued an enforcement policy for consumer 
gas-fired ``circulating water heaters'' (the ``September 2019 
Enforcement Policy''). In that policy, DOE stated that it would not 
seek civil penalties for failing to certify these products or for non-
compliance with the applicable standards, on or before December 31, 
2021.\3\ In the September 2019 Enforcement Policy, the Department 
stated it had become aware of an issue with respect to certain consumer 
instantaneous water heaters commonly referred to by industry as 
``circulating water heaters.'' These ``circulating water heaters'' 
operate differently than either the storage water heaters or the 
instantaneous water heaters that DOE considered in its previous 
rulemakings for consumer water heaters. DOE stated that it found 
several manufacturers producing consumer gas-fired ``instantaneous'' 
water heaters that are designed to be used with a volume of stored 
water (usually in a tank, but sometimes in a recirculating hot water 
system of sufficient volume) where the water heater does not directly 
provide hot water to fixtures, but rather replenishes heat lost from 
the tank or system through hot water draws or standby losses by 
circulating water to and from the tank or other system. Circulating 
water heaters are typically activated by an aquastat \4\ installed in a 
separately sold storage tank or an inlet water temperature sensor. Due 
to these differences, circulating water heaters could not easily be 
tested using DOE's test procedure for consumer water heaters.
---------------------------------------------------------------------------

    \3\ The September 2019 Enforcement Policy can be found online 
at: www.energy.gov/sites/prod/files/2019/09/f66/Enforcement%20Policy-CirculatingWH.92019.pdf (Last accessed: Oct. 
30, 2023).
    \4\ An aquastat is a temperature measuring device typically used 
to control the water temperature in a separate hot water storage 
tank.
---------------------------------------------------------------------------

    In a June 21, 2023, final rule amending the test procedure for 
consumer water heaters and residential-duty commercial water heaters 
(the ``June 2023 TP Final Rule''), DOE, among other things, addressed 
circulating water heaters by establishing a definition and method of 
test to determine UEF ratings for these products. 88 FR 40406. 
Specifically, DOE defined a ``circulating water heater'' as an 
instantaneous or heat pump-type water heater that does not have an 
operational scheme in which the burner, heating element, or compressor 
initiates and/or terminates heating based on sensing flow; has a water 
temperature sensor located at the inlet or the outlet of the water 
heater or in a separate storage tank that is the primary means of 
initiating and terminating heating; and must be used in combination 
with a recirculating pump and either a separate storage tank or water 
circulation loop in order to achieve the water flow and temperature 
conditions recommended in the manufacturer's installation and operation 
instructions. 10 CFR 430.2. DOE also determined that circulating water 
heaters with input ratings below 200,000 Btu/h (for gas-fired), 210,000 
Btu/h (for oil-fired), or 12 kW (for electric) meet the definitional 
criteria for instantaneous consumer water heaters. 88 FR 40406, 40420-
40422. Under the amended test procedure, gas-fired circulating water 
heaters, oil-fired circulating water heaters, and electric resistance 
circulating water heaters (which were tentatively considered the 
baseline category of electric circulating water heaters in the July 
2023 NOPR) are to be tested with unfired hot water storage tanks 
(``UFHWSTs'') with measured volumes between 80 and 120 gallons. See 
section 4.10 of appendix E to subpart B of 10 CFR part 430. DOE had 
determined that the relationship between standby losses and storage 
volume is similar for electric storage water heaters above 55 gallons 
and for UFHWSTs. Thus, in its analysis, DOE adjusted the UEF-based 
standards for instantaneous water heaters by applying the linear 
decreases in the currently applicable standards for electric storage 
water heaters greater than 55 gallons in rated storage volume to result 
in the converted standards for circulating water heaters. As a result, 
in the July 2023 NOPR, DOE proposed to establish updated UEF standards 
that reflect the new test method as discussed further in section IV.C.2 
of that document, beginning with the currently applicable standards for 
instantaneous water heaters.
    DOE received comments in response to the July 2023 NOPR regarding 
the proposed standards for circulating water heaters from the 
interested parties listed in Table II.1.

[[Page 89332]]



                  Table II.1--July 2023 NOPR Comments on Circulating Water Heater Standards \5\
----------------------------------------------------------------------------------------------------------------
                                                                    Comment No. in
            Commenter(s)                      Abbreviation            the docket           Commenter type
----------------------------------------------------------------------------------------------------------------
Bradford White Corporation..........  BWC........................             1164  Manufacturer.
California Energy Commission........  CEC........................             1173  State Agency.
Rheem Manufacturing Company.........  Rheem......................             1177  Manufacturer.
A.O. Smith Corporation..............  A.O. Smith.................             1182  Manufacturer.
New York State Energy Research and    NYSERDA....................             1192  State Agency.
 Development Authority.
Air-Conditioning, Heating, and        AHRI.......................             1167  Trade Association.
 Refrigeration Institute.
----------------------------------------------------------------------------------------------------------------

B. Deviation From Appendix A

    In accordance with section 3(a) of 10 CFR part 430, subpart C, 
appendix A (``appendix A''), DOE notes that it is deviating from the 
provision in the Process Rule regarding the length of the comment 
period for a NOPR. Section 6(f)(2) of the Process Rule specifies that 
the length of the public comment period for a NOPR will be not less 
than 75 calendar days. For this limited-scope SNOPR, DOE has opted 
instead to provide a shorter comment period. DOE believes a shorter 
comment period is appropriate as this SNOPR solely addresses the 
categorization of circulating water heaters. The comment period 
provided will provide interested parties with a meaningful opportunity 
to comment on the issue addressed in this supplemental proposal.
---------------------------------------------------------------------------

    \5\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking to develop 
energy conservation standards for consumer water heaters. (Docket 
No. EERE-2017-BT-STD-0019, which is maintained at 
www.regulations.gov). The references are arranged as follows: 
(commenter name, comment docket ID number, page of that document).
---------------------------------------------------------------------------

III. Discussion

    DOE developed this supplemental proposal regarding circulating 
water heaters after considering oral and written comments, data, and 
information from interested parties that represent a variety of 
interests. The following discussion addresses issues raised by these 
commenters on this specific topic.
    In response to the July 2023 NOPR, several commenters disagreed 
with DOE's decision to treat circulating water heaters as 
instantaneous-type water heaters. Commenters also expressed concerns 
that circulating water heater designs could be used in lieu of 
traditional storage water heaters to offer consumers alternatives to 
products which must comply with more-stringent standards.
    For example, CEC stated that a circulating water heater connected 
to a recirculation loop, where reheat is triggered by the temperature 
of the water flowing through the loop, is effectively treating the loop 
itself as a storage tank. (CEC, No. 1173 at p. 9-10) Based on this 
comment, DOE understands that simplifying a circulating water heater 
system as essentially a water heater plus a separate storage tank is 
appropriate, even for products designed to work with recirculation 
loops and not tanks specifically.
    NYSERDA stated that electric circulating water heaters are 
potentially capable of providing the same consumer utility as heat pump 
water heaters; therefore, the commenter recommended that DOE should 
either establish heat pump-level standards for these products or re-
define circulating water heaters more narrowly so that they do not 
become the preferred market option to a heat pump water heater. NYSERDA 
suggested that DOE could address more-stringent, heat pump level 
standards for electric circulating water heaters in a separate 
rulemaking to ensure that the energy savings from this rulemaking are 
realized. (NYSERDA, No. 1192 at pp. 6-7) AHRI indicated that electric 
resistance circulating water heaters, while not presently sold with 
storage tanks (as this would make for a more difficult and less 
efficient installation), would not offer any benefit over an electric 
resistance storage water heater; therefore, there is confusion 
regarding the misalignment between electric circulating water heater 
standards and electric storage water heater standards. (AHRI, No. 1167 
at pp. 10-11)
    Along these same lines, CEC commented that a manufacturer could 
also separate the water heater into component parts in order to qualify 
for the current definition of a circulating water heater: a ``kit'' 
that includes the same heating element, storage tank and thermostat as 
a typical storage water heater, with the thermostat installed in the 
storage tank in the same manner as a storage water heater. (CEC, No. 
1173 at p. 10) DOE understands the CEC comment may refer to 
manufacturers potentially selling storage water heaters as separate 
components, one of them being a ``circulating water heater,'' in order 
to classify a product as a circulating water heater instead of as a 
storage water heater (which may have more stringent standards).
    A.O. Smith stated that it believes that electric circulating water 
heaters meet the definition of an electric storage water heater and 
should therefore be held to the same standards as electric storage 
water heaters because the electric circulating water heaters on the 
market today cannot operate independent of a storage tank. A.O. Smith 
indicated that it is not aware of any performance-related features that 
would justify the creation of a separate product class and efficiency 
level for circulating water heaters. Additionally, the manufacturer 
raised a concern that electric circulating water heaters could be used 
instead of heat pump water heaters, and this would undermine energy 
savings resulting from this rule if electric circulating water heaters 
were held to a less-stringent standard. (A.O. Smith, No. 1182 at pp. 
12-13) Rheem commented that an electric circulating water heater can be 
used with any size tank to easily replace a water heater where a heat 
pump storage-type water heater would otherwise be required, and thus 
the standards for these products should be aligned to meet a UEF of 
2.3. (Rheem, No. 1177 at pp. 14-15)
    Regarding gas-fired circulating water heaters, A.O. Smith added 
that creating a gas-fired circulating water heater product class with 
efficiencies achievable by non-condensing technology is also likely to 
undermine the energy savings from the gas-fired instantaneous water 
heater standards being proposed at condensing-level. Unlike heat pump 
circulating water heaters, A.O. Smith stated, the ``heat engine'' of a 
gas-fired circulating water heater can be operated without the use of a 
storage tank, and therefore these can be sold separately in place of 
gas-fired instantaneous water heaters. A.O. Smith recommended that gas-
fired circulating water heaters be required to meet the same stringency 
of standard as gas-fired instantaneous water heaters (i.e., a 
condensing level). (A.O. Smith, No.

[[Page 89333]]

1182 at p. 13) By ``heat engine,'' DOE understands A.O. Smith is 
referring to the burner, blower, combustion chamber, and hot water heat 
exchanger, which altogether can output hot water at the setpoint 
temperature.
    Rheem did not support deferring consideration of more-stringent 
standards for gas-fired circulating water heaters because these 
products can be direct replacements for <2 gallon gas-fired 
instantaneous water heaters, which would have to achieve condensing 
efficiencies as a result of this rulemaking. Rheem noted that DOE has 
existing and recently finalized standards that would require condensing 
technology for consumer gas-fired storage water heaters with a rated 
storage volume greater than 55 gallons and less than or equal to 100 
gallons, as well as residential-duty commercial gas-fired storage water 
heaters.\6\ Rheem claimed that a gas-fired circulating water heater 
could easily replace a water heater where condensing efficiencies would 
otherwise be required, and the commenter concluded by recommending that 
DOE align the standards for gas-fired circulating water heaters with 
the standards for <2-gallon gas-fired instantaneous water heaters. 
Specifically, Rheem suggested DOE change the intercept in the gas-fired 
circulating water heater standards equations to match the values 
proposed for <2-gallon gas-fired instantaneous water heaters. (Rheem, 
No. 1177 at p. 14)
---------------------------------------------------------------------------

    \6\ On October 6, 2023, DOE published a final rule establishing 
amended energy conservation standards for commercial water heaters, 
including residential-duty gas-fired storage water heaters. 88 FR 
69686, 69822.
---------------------------------------------------------------------------

    In response, DOE notes that circulating water heaters contain very 
little to no water on their own (i.e., are ``tankless''), but, as was 
determined in the June 2023 TP Final Rule, require a separate volume of 
water in order to function properly when installed in the field. 88 FR 
40406, 40443. In other words, the circulating water heater and its 
separate tank or recirculation loop must be treated as one system. When 
considering the entire system--the circulating water heater plus the 
stored water volume required for its operation in the field--these 
water heaters are operationally very similar to storage-type water 
heaters. Thus, DOE agrees with commenters and has tentatively 
determined that it is appropriate to classify circulating water heaters 
as storage-type water heaters under its regulations.
    With respect to the issue of whether circulating water heaters 
should constitute a separate product class of storage-type water 
heaters, DOE notes that it must establish a separate standard for a 
group of covered products (i.e., establish a separate product class) 
based on the type of energy used, or if DOE determines that the group 
of covered products has a capacity or other performance-related feature 
that other products do not have and such feature justifies a different 
standard. (42 U.S.C. 6295(q)) In determining whether a performance-
related feature justifies a different standard, DOE must consider the 
utility of the feature to the consumer and other factors DOE determines 
are appropriate. (Id.)
    DOE agrees with commenters who stated that circulating water 
heaters provide the same consumer utility as storage-type water heaters 
and has determined that there are no performance-related features which 
would support establishing a separate product class for circulating 
water heaters.
    Further, in the June 2023 TP Final Rule, DOE established a new test 
method for circulating water heaters that requires them to be paired 
with a storage tank for testing, which is representative of how these 
products would be used in the field. DOE also defined the effective 
storage volume of circulating water heaters as the stored volume of hot 
water used when testing the circulating water heater (see section 
6.3.1.1 of appendix E). 88 FR 40406, 40461. While there are no longer 
any models of circulating consumer water heaters on the market today, 
the products which could potentially exist would all be classified as 
storage-type under the EPCA definitions when the volume of water in the 
tank is considered. For example, consumer gas-fired circulating water 
heaters must be tested with an 80- to 120-gallon UFHWST, resulting in 
effective storage volumes in that range. For 80 gallons, because EPCA 
defines instantaneous-type water heaters as having no more than one 
gallon of water per 4,000 Btu/h of input (see 42 U.S.C. 6291(27)(B)), 
the circulating water heater would need to have at least 320,000 Btu/h 
of heat input to be considered instantaneous-type. This input rate is 
too high to be considered a consumer water heater for which EPCA limits 
the maximum input rating to 200,000 Btu/h for instantaneous-type water 
heaters (see 42 U.S.C. 6291(27)(A)). Electric and oil-fired water 
heaters similarly would require an input rate well above the EPCA-
defined maximum thresholds to be considered a consumer instantaneous-
type water heater. Therefore, a designation of these products as 
consumer instantaneous-type water heaters is inaccurate and does not 
consider the function and operation of the product with its separately 
stored water.
    There is also a clear parallel with split-system heat pump water 
heaters. These products, which consist of a heat pump module and a 
separate storage tank, have long been considered to be electric storage 
water heaters by DOE and do not have separate standards. In the July 
2023 NOPR, DOE stated that it has not identified any unique 
performance-related features offered by split-system heat pump water 
heaters that would warrant a separate product class consideration at 
this time. 88 FR 49058, 49080. DOE also identified split-system heat 
pump water heaters as storage-type water heaters in the June 2023 TP 
Final Rule. 88 FR 40406, 40417.
    The comments from A.O. Smith regarding gas-fired circulating water 
heaters appear to state that gas-fired circulating water heaters can be 
potential substitutes for gas-fired instantaneous water heaters, hence 
this commenter suggested establishing condensing-level standards for 
gas-fired circulating water heaters. However, Rheem's comments appear 
to suggest that gas-fired circulating water heaters could be 
substitutes for any other type of gas-fired water heater (instantaneous 
or storage-type), hence coming to the same conclusion that standards 
for gas-fired circulating water heaters should reflect a condensing 
efficiency.
    DOE's test procedure in appendix E requires that gas-fired 
circulating water heaters be tested with an UFHWST having a volume 
between 80 and 120 gallons. (See section 4.10 of appendix E.) A re-
classification of gas-fired circulating water heaters as storage-type 
water heaters results in condensing-level standards if the gas-fired 
circulating water heater is tested with an UFHWST that is between 80 
and 100 gallons: such a configuration would result in an effective 
storage volume for the circulating water heater being 80 to 100 
gallons, and for these volumes the current standards at 10 CFR 
430.32(d) generally correspond to condensing efficiencies. If tested 
with an UFHWST that is between 100 and 120 gallons, the proposed 
standards correspond to noncondensing efficiencies.\7\ In the July 2023 
NOPR, DOE proposed standards for gas-fired storage water heaters using 
effective storage volume instead of rated storage volume such that, 
under the re-

[[Page 89334]]

classification proposed in this SNOPR, gas-fired circulating water 
heaters and traditional gas-fired storage water heaters can be 
evaluated on an equivalent basis.
---------------------------------------------------------------------------

    \7\ DOE received comments from stakeholders presenting concerns 
with the lower stringency of the standards for gas-fired storage 
water heaters larger than 100 gallons, and the Department aims to 
address these comments in a future document.
---------------------------------------------------------------------------

    DOE has tentatively determined that gas-fired circulating water 
heaters would not be direct substitutes for gas-fired instantaneous 
water heaters based on two factors that define circulating water 
heaters. First, circulating water heaters are defined as being 
thermostatically activated and not flow-activated. In its analysis for 
more-stringent standards for the gas-fired instantaneous water heater 
product classes, the Department has only come across products which 
have flow-activated control schemes. Products with flow-activated 
control schemes must be tested for a maximum gallons per minute 
(``maximum GPM'') delivery capacity and must be certified with such in 
order to determine a draw pattern. By contrast, products that are not 
flow-activated use a first-hour rating (``FHR'') delivery capacity 
metric and must be certified with such in order to determine a draw 
pattern. Currently, there are no gas-fired instantaneous water heaters 
less than 2 gallons and higher than 50,000 Btu/h of input certified to 
DOE with FHR. All products currently certified to DOE as demonstrating 
compliance with gas-fired instantaneous water heater standards certify 
a maximum GPM, indicating that these are all flow-activated products.
    Second, gas-fired instantaneous water heaters possess design 
options that allow these products to meet the consumer demand for hot 
water (i.e., achieve a high enough outlet water temperature) without 
the need for a recirculation pump and a separate stored volume of 
water, whereas, by definition, circulating water heaters require these 
components in order to operate correctly. Gas-fired instantaneous water 
heaters are capable of raising the temperature of cold inlet water to 
125 [deg]F <plus-minus> 5 [deg]F without a separate storage tank, and 
the maximum flow rate at which this is possible is the maximum GPM 
rating. Gas-fired instantaneous water heaters on the market today 
demonstrate this ability to raise the temperature to the desired 
setpoint at flow rates up to 6.0 gallons per minute. This is possible 
due to large burners with input rates as high as nearly 200,000 Btu/h, 
the statutory limit for gas-fired instantaneous water heaters. 
Classified as storage-type water heaters, gas-fired circulating water 
heaters may have no more than 75,000 Btu/h, which will provide hot 
water at a much lower flow rate.\8\ Because the vast majority of gas-
fired instantaneous water heaters are certified to the medium and high 
draw patterns, it is unlikely for the ``heat engine'' of a circulating 
water heater to be applied in place of a gas-fired instantaneous water 
heater.
---------------------------------------------------------------------------

    \8\ At even 100 percent recovery efficiency, a 75,000 Btu/h 
burner can only instantaneously raise water from 58 [deg]F to 125 
[deg]F at a maximum of 2.25 gallons per minute, which corresponds to 
the low draw pattern.
---------------------------------------------------------------------------

    Altogether, the flow-activated control scheme and larger modulating 
burners are designs belonging to gas-fired instantaneous water heaters 
which allow gas-fired instantaneous water heaters to offer a distinct 
consumer utility. As discussed in the July 2023 NOPR, storage and 
instantaneous water heaters offer distinct utilities to a consumer: for 
example, instantaneous water heaters provide a continuous supply of hot 
water, up to the maximum flow rate, while storage water heaters are 
often better suited to handle large initial demands for hot water as 
opposed to continuous draws. 88 FR 49058, 49078. DOE has tentatively 
determined that gas-fired circulating water heaters cannot offer the 
utility of a continuous supply of hot water without having flow-
activated control schemes and by virtue of reliance upon a 
recirculating pump and separate stored volume of hot water. Rather, the 
consumer utility of a gas-fired circulating water heater is akin to 
that of a gas-fired storage water heater.
    DOE requests comment on its tentative determination that gas-fired 
circulating water heaters do not provide the same consumer utility as 
gas-fired instantaneous water heaters.
    CEC stated their concern that DOE's proposed definition of 
circulating water heater could allow for several configurations of 
products beyond an instantaneous water heater paired with a 
recirculation pump. Per its comments, CEC believed that the majority of 
consumer water heater products could meet the circulating water heater 
definition with no physical modification simply based on the lack of 
specificity provided regarding the control scheme and configuration. 
(CEC, No. 1173, p. 9) CEC recommended that the definition describe 
specific hardware differences (e.g., thermostat controls, recirculation 
pump controls) in models manufactured for this purpose and not 
differences in published instructions or other documentation and added 
that definition also should not use the term ``primary'' and should 
instead state the specific methods of initiating and terminating 
heating that are allowed for this product type. (CEC, No. 1173 at pp. 
10-11) CEC added that the phrase ``must be used in combination with a 
recirculating pump and either a separate storage tank or water 
circulation loop in order to achieve the water flow and temperature 
conditions recommended in the manufacturer's installation and operation 
instructions'' provides too much discretion to manufacturer-published 
recommendations to be enforceable. CEC suggested that, as written, this 
phrasing allows manufacturers to recommend one set of conditions for 
recirculating operation and specify alternate conditions for non-
recirculating operation, provided that the recirculating conditions 
cannot be achieved without connection to a recirculating pump, 
resulting in a product that would be considered a circulating water 
heater solely due to its ability to be used with a recirculating loop. 
(CEC, No. 1173 at p. 10)
    In response to these concerns, DOE notes that the re-classification 
of circulating water heaters as storage-type water heaters would entail 
that the same standards would apply for traditional storage water 
heaters and circulating water heaters, such that there would be no 
incentive to re-label a traditional storage water heater as a 
circulating water heater. As stated earlier in this section, DOE has 
tentatively determined that instantaneous, flow-activated water heaters 
are clearly distinguished from circulating water heaters. The 
definition of a circulating water heater, as proposed in this SNOPR, 
will continue to state that such a water heater ``does not have an 
operational scheme in which the burner, heating element, or compressor 
initiates and/or terminates heating based on sensing flow.'' Therefore, 
it is unlikely for traditional instantaneous water heaters to be re-
labeled as circulating water heaters, because doing so would require 
manufacturers to remove the product's ability to activate/terminate 
based on sensing flow.
    With regards to the temperature conditions recommended in the 
manufacturer's installation and operation instructions, the Department 
notes that it does not currently have sufficient information to apply 
additional specificity, nor did DOE receive comments from manufacturers 
suggesting what these conditions could be. As such, DOE is not 
proposing to amend this portion of the definition of a circulating 
water heater but may re-assess this in a future rulemaking.
    Altogether, after considering this feedback from stakeholders, and 
reexamining the characteristics and

[[Page 89335]]

consumer utility of circulating water heaters and storage-type water 
heaters, DOE has tentatively determined that the new and amended 
storage-type water heater standards, which were proposed in the July 
2023 NOPR, are representative of circulating water heater designs. 
Therefore, DOE is proposing not to establish separate product classes 
for circulating water heaters; rather, DOE proposes that these products 
would be included in the applicable storage water heater product 
classes. Additionally, DOE is proposing to revise the definition of 
``circulating water heater'' at 10 CFR 430.2 to designate these 
products as storage-type. The proposed revised definition of 
``circulating water heater'' would additionally state that, ``paired 
with a separate storage tank, a circulating water heater constitutes a 
storage-type water heater.''
    BWC had objected to establishing separate product classes for 
circulating water heaters and reiterated its previous comments on the 
test procedure rulemaking, stating that circulating water heaters are 
utilized exclusively in commercial and industrial settings. (BWC, No. 
1164 at pp. 10-11, 45-46) BWC stated that because circulating water 
heaters are often paired with large hot water storage tanks, they are 
impractical for most residential applications due to space constraints 
and smaller hot water load demands. The commenter added that the 
creation of product classes for circulating water heaters will 
introduce additional burdens and confusion for manufacturers, testing 
laboratories, as well as installers in the field, while providing no 
practical benefit for consumers. (BWC, No. 1164 at pp. 10-11) Regarding 
gas-fired circulating water heaters, A.O. Smith had noted that models 
of these products present on the market today are only used in 
commercial applications, and the UFHWST tank pairing for these products 
is not common in residential applications as it would result in a more 
expensive installation compared to a gas-fired storage water heater. 
(A.O. Smith, No. 1182 at p. 13)
    As a result of this proposed amendment to the definition of 
circulating water heaters, the storage-type input rate limits apply 
when determining whether a circulating water heater is a consumer water 
heater. Specifically, these are: 75,000 Btu/h for gas-fired circulating 
water heaters, 105,000 Btu/h for oil-fired circulating water heaters, 
12 kW for electric resistance circulating water heaters, and 24 A at 
250 V for heat pump circulating water heaters (see the definition for 
``water heater'' at 10 CFR 430.2). Products with higher input rates 
would be commercial water heaters. For example, in earlier stages of 
this rulemaking, there were gas-fired circulating water heaters 
available on the market at input rates between 75,000 Btu/h and 200,000 
Btu/h; these products would be classified as commercial water heaters 
should they re-enter the market. DOE understands that this designation 
as commercial water heaters aligns with BWC's and A.O. Smith's 
suggestion that these water heaters are used in commercial 
applications.
    DOE requests comment on its proposed amended definition for 
circulating water heaters. DOE is seeking information on whether it is 
appropriate to classify these products as storage-type water heaters, 
and what the implications to industry might be.
    DOE has not identified any consumer water heaters currently 
available in the United States that qualify as circulating water 
heaters. If any such models do exist, they would have similar cost and 
use profiles as gas-fired storage water heater or electric storage 
water heater market and would have very few shipments. In the absence 
of any models or current shipments, DOE concludes that the life-cycle 
cost (LCC) analysis results, national impact analysis (NIA) results, 
and other downstream analysis results presented in the July 2023 NOPR 
are unchanged and remain representative, for gas-fired, oil-fired, and 
electric storage water heaters, with the proposed amended definition 
for circulating water heaters, and the proposed standards for storage 
water heaters are applicable to circulating water heaters.
    In this SNOPR DOE maintains its other proposals from the NOPR and 
will address other topics in a potential final rule adopting amended 
energy conservation standards for consumer water heaters. The proposals 
from the July 2023 NOPR not pertaining to the topics addressed herein 
(regarding circulating water heaters) have not been revised in this 
SNOPR; however, DOE continues to evaluate feedback received in response 
to the July 2023 NOPR prior to finalization.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866, 13563 and 14094

    Executive Order (``E.O.'')12866, ``Regulatory Planning and 
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by 
E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 
(Jan. 21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory 
Review,'' 88 FR 21879 (April 11, 2023), requires agencies, to the 
extent permitted by law, to (1) propose or adopt a regulation only upon 
a reasoned determination that its benefits justify its costs 
(recognizing that some benefits and costs are difficult to quantify); 
(2) tailor regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations; (3) select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity); (4) to the 
extent feasible, specify performance objectives, rather than specifying 
the behavior or manner of compliance that regulated entities must 
adopt; and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public. DOE 
emphasizes as well that E.O. 13563 requires agencies to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible. In its guidance, the 
Office of Information and Regulatory Affairs (``OIRA'') in the Office 
of Management and Budget (``OMB'') has emphasized that such techniques 
may include identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral changes. 
For the reasons stated in the preamble, this proposed regulatory action 
is consistent with these principles.
    Section 6(a) of E.O. 12866 also requires agencies to submit 
``significant regulatory actions'' to OIRA for review. OIRA has 
determined that the July 2023 NOPR constitutes a ``significant 
regulatory action'' within the scope of section 3(f)(1) of E.O. 12866. 
Accordingly, pursuant to section 6(a)(3)(C) of E.O. 12866, DOE has 
provided to OIRA an assessment, including the underlying analysis, of 
benefits and costs anticipated from the proposed regulatory action, 
together with, to the extent feasible, a quantification of those costs; 
and an assessment, including the underlying analysis, of costs and 
benefits of potentially effective and reasonably feasible alternatives 
to the planned

[[Page 89336]]

regulation, and an explanation why the planned regulatory action is 
preferable to the identified potential alternatives. These assessments 
are summarized in the July 2023 NOPR, and further detail can be found 
in the accompanying technical support document.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis (``IRFA'') 
for any rule that by law must be proposed for public comment, unless 
the agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
As required by E.O. 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's website (www.energy.gov/gc/office-general-counsel). The 
proposed definition change for circulating water heaters does not 
affect the IRFA presented in the July 2023 NOPR.

C. Review Under the Paperwork Reduction Act

    Manufacturers of consumer water heaters must certify to DOE that 
their products comply with any applicable energy conservation 
standards. In certifying compliance, manufacturers must test their 
products according to the DOE test procedures for consumer water 
heaters, including any amendments adopted for those test procedures. 
DOE has established regulations for the certification and recordkeeping 
requirements for all covered consumer products and commercial 
equipment, including consumer water heaters. (See generally 10 CFR part 
429). The collection-of-information requirement for the certification 
and recordkeeping is subject to review and approval by OMB under the 
Paperwork Reduction Act (``PRA''). This requirement has been approved 
by OMB under OMB control number 1910-1400. Public reporting burden for 
the certification is estimated to average 35 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act of 1969

    DOE is analyzing this proposed regulation in accordance with the 
National Environmental Policy Act of 1969 (``NEPA'') and DOE's NEPA 
implementing regulations (10 CFR part 1021). DOE's regulations include 
a categorical exclusion for rulemakings that establish energy 
conservation standards for consumer products or industrial equipment. 
10 CFR part 1021, subpart D, appendix B5.1. DOE anticipates that this 
rulemaking qualifies for categorical exclusion B5.1 because it is a 
rulemaking that establishes energy conservation standards for consumer 
products or industrial equipment, none of the exceptions identified in 
categorical exclusion B5.1(b) apply, no extraordinary circumstances 
exist that require further environmental analysis, and it otherwise 
meets the requirements for application of a categorical exclusion. See 
10 CFR 1021.410. DOE will complete its NEPA review before issuing the 
final rule.

E. Review Under Executive Order 13132

    E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), imposes 
certain requirements on Federal agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. The Executive order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this proposed rule and has 
tentatively determined that it would not have a substantial direct 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. EPCA governs 
and prescribes Federal preemption of State regulations as to energy 
conservation for the products that are the subject of this proposed 
rule. States can petition DOE for exemption from such preemption to the 
extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) 
Therefore, no further action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform,'' imposes on Federal agencies the general duty to 
adhere to the following requirements: (1) eliminate drafting errors and 
ambiguity, (2) write regulations to minimize litigation, (3) provide a 
clear legal standard for affected conduct rather than a general 
standard, and (4) promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Regarding the review required by section 3(a), 
section 3(b) of E.O. 12988 specifically requires that Executive 
agencies make every reasonable effort to ensure that the regulation: 
(1) clearly specifies the preemptive effect, if any, (2) clearly 
specifies any effect on existing Federal law or regulation, (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction, (4) specifies the retroactive 
effect, if any, (5) adequately defines key terms, and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires Executive agencies to review regulations 
in light of applicable standards in section 3(a) and section 3(b) to 
determine whether they are met or it is unreasonable to meet one or 
more of them. DOE has completed the required review and determined 
that, to the extent permitted by law, this proposed rule meets the 
relevant standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'') 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, section 201 (codified at 2 U.S.C. 
1531). For a proposed regulatory action likely to result in a rule that 
may cause the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector of $100 million or more in any 
one year (adjusted annually for inflation), section 202 of UMRA 
requires a Federal agency to publish a written

[[Page 89337]]

statement that estimates the resulting costs, benefits, and other 
effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also 
requires a Federal agency to develop an effective process to permit 
timely input by elected officers of State, local, and Tribal 
governments on a proposed ``significant intergovernmental mandate,'' 
and requires an agency plan for giving notice and opportunity for 
timely input to potentially affected small governments before 
establishing any requirements that might significantly or uniquely 
affect them. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA. 62 FR 12820. 
DOE's policy statement is also available at www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    Although this proposed rule does not contain a Federal 
intergovernmental mandate, it may require expenditures of $100 million 
or more in any one year by the private sector. Such expenditures may 
include: (1) investment in research and development and in capital 
expenditures by consumer water heaters manufacturers in the years 
between the final rule and the compliance date for the new standards 
and (2) incremental additional expenditures by consumers to purchase 
higher-efficiency consumer water heaters, starting at the compliance 
date for the applicable standard.
    Section 202 of UMRA authorizes a Federal agency to respond to the 
content requirements of UMRA in any other statement or analysis that 
accompanies the proposed rule. (2 U.S.C. 1532(c)) The content 
requirements of section 202(b) of UMRA relevant to a private sector 
mandate substantially overlap the economic analysis requirements that 
apply under section 325(o) of EPCA and Executive Order 12866. The 
SUPPLEMENTARY INFORMATION section of the July 2023 NOPR and the 
accompanying technical support document respond to those requirements.
    Under section 205 of UMRA, the Department is obligated to identify 
and consider a reasonable number of regulatory alternatives before 
promulgating a rule for which a written statement under section 202 is 
required. (2 U.S.C. 1535(a)) DOE is required to select from those 
alternatives the most cost-effective and least burdensome alternative 
that achieves the objectives of the proposed rule unless DOE publishes 
an explanation for doing otherwise, or the selection of such an 
alternative is inconsistent with law. As required by 42 U.S.C. 6295(m), 
the July 2023 NOPR would establish amended energy conservation 
standards for consumer water heaters that are designed to achieve the 
maximum improvement in energy efficiency that DOE has determined to be 
both technologically feasible and economically justified, as required 
by 6295(o)(2)(A) and 6295(o)(3)(B). A full discussion of the 
alternatives considered by DOE is presented in chapter 17 of the TSD 
for the July 2023 NOPR.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This proposed rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 12630

    Pursuant to E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights,'' 53 FR 8859 (Mar. 15, 
1988), DOE has determined that this proposed rule would not result in 
any takings that might require compensation under the Fifth Amendment 
to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review 
most disseminations of information to the public under information 
quality guidelines established by each agency pursuant to general 
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 
(Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving 
Implementation of the Information Quality Act (April 24, 2019), DOE 
published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has 
reviewed this NOPR under the OMB and DOE guidelines and has concluded 
that it is consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13211

    E.O. 13211, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 
2001), requires Federal agencies to prepare and submit to OIRA at OMB, 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    DOE has tentatively concluded that this regulatory action, which 
proposes amended energy conservation standards for consumer water 
heaters, is not a significant energy action because the proposed 
standards are not likely to have a significant adverse effect on the 
supply, distribution, or use of energy, nor has it been designated as 
such by the Administrator at OIRA. Accordingly, DOE has not prepared a 
Statement of Energy Effects on this proposed rule.

L. Information Quality

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (``OSTP''), issued its Final Information 
Quality Bulletin for Peer Review (``the Bulletin''). 70 FR 2664 (Jan. 
14, 2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the bulletin is to enhance the quality and credibility of 
the Government's scientific information. Under the Bulletin, the energy 
conservation standards rulemaking analyses are ``influential scientific 
information,'' which the Bulletin defines as ``scientific information 
the agency reasonably can determine will have, or does have, a clear 
and substantial impact on important public policies or private sector 
decisions.'' 70 FR 2664, 2667.
    In response to OMB's Bulletin, DOE conducted formal peer reviews of 
the

[[Page 89338]]

energy conservation standards development process and the analyses that 
are typically used and has prepared a report describing that peer 
review.\9\ Generation of this report involved a rigorous, formal, and 
documented evaluation using objective criteria and qualified and 
independent reviewers to make a judgment as to the technical/
scientific/business merit, the actual or anticipated results, and the 
productivity and management effectiveness of programs and/or projects. 
Because available data, models, and technological understanding have 
changed since 2007, DOE has engaged with the National Academy of 
Sciences to review DOE's analytical methodologies to ascertain whether 
modifications are needed to improve the Department's analyses. DOE is 
in the process of evaluating the resulting report.\10\
---------------------------------------------------------------------------

    \9\ The 2007 ``Energy Conservation Standards Rulemaking Peer 
Review Report'' is available at the following website: energy.gov/eere/buildings/downloads/energy-conservation-standards-rulemaking-peer-review-report-0 (last accessed April 1, 2023).
    \10\ The report is available at www.nationalacademies.org/our-work/review-of-methods-for-setting-building-and-equipment-performance-standards.
_____________________________________-

V. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding this 
SNOPR no later than the date provided in the DATES section. Interested 
parties may submit comments, data, and other information using any of 
the methods described in the ADDRESSES section.
    Submitting comments via www.regulations.gov. The 
www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to DOE 
Building Technologies staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and submitter representative name (if any). If your 
comment is not processed properly because of technical difficulties, 
DOE will use this information to contact you. If DOE cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, DOE may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment itself or in any documents attached to your 
comment. Any information that you do not want to be publicly viewable 
should not be included in your comment, nor in any document attached to 
your comment. Otherwise, persons viewing comments will see only first 
and last names, organization names, correspondence containing comments, 
and any documents submitted with the comments.
    Do not submit to www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (``CBI'')). Comments submitted 
through www.regulations.gov cannot be claimed as CBI. Comments received 
through the website will waive any CBI claims for the information 
submitted. For information on submitting CBI, see the Confidential 
Business Information section.
    DOE processes submissions made through www.regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that www.regulations.gov 
provides after you have successfully uploaded your comment.
    Submitting comments via email, hand delivery/courier, or postal 
mail. Comments and documents submitted via email, hand delivery/
courier, or postal mail also will be posted to www.regulations.gov. If 
you do not want your personal contact information to be publicly 
viewable, do not include it in your comment or any accompanying 
documents. Instead, provide your contact information in a cover letter. 
Include your first and last names, email address, telephone number, and 
optional mailing address. The cover letter will not be publicly 
viewable as long as it does not include any comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. If you submit via postal mail 
or hand delivery/courier, please provide all items on a CD, if 
feasible, in which case it is not necessary to submit printed copies. 
No telefacsimiles (``faxes'') will be accepted.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are not secured, that are written in English, and that are free of any 
defects or viruses. Documents should not contain special characters or 
any form of encryption and, if possible, they should carry the 
electronic signature of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email two well-marked copies: one copy of the document marked 
``confidential'' including all the information believed to be 
confidential, and one copy of the document marked ``non-confidential'' 
with the information believed to be confidential deleted. DOE will make 
its own determination about the confidential status of the information 
and treat it according to its determination.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).

B. Issues on Which DOE Seeks Comment

    Although DOE welcomes comments on any aspect of this SNOPR, DOE is 
particularly interested in receiving comments and views of interested 
parties concerning the following issues:
    (1) DOE requests comment on its tentative determination that gas-
fired circulating water heaters do not provide the same consumer 
utility as gas-fired instantaneous water heaters.
    (2) DOE requests comment on its proposed amended definition for 
circulating water heaters. DOE is seeking information on whether it is 
appropriate to classify these products as storage-type water heaters, 
and what the implications to industry might be.

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this 
Supplemental notice of proposed rulemaking and request for comment.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Intergovernmental relations, Small businesses.

[[Page 89339]]

Signing Authority

    This document of the Department of Energy was signed on December 
21, 2023, by Jeffrey Marootian, Principal Deputy Assistant Secretary 
for Energy Efficiency and Renewable Energy, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on December 21, 2023.
Treena V. Garrett
Federal Register Liaison Officer, U.S. Department of Energy

    For the reasons set forth in the preamble, DOE proposes to amend 
part 430 of chapter II, subchapter D, of title 10 of the Code of 
Federal Regulations, as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority:  42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

0
2. Amend Sec.  430.2 by:
0
(a) Revising the definition for ``Circulating water heater;'' and
0
(b) Adding in alphabetical order, the definitions for ``Electric 
circulating water heater,'' ``Gas-fired circulating water heater,'' and 
``Oil-fired circulating water heater.''
    The revision and additions read as follows:


Sec.  430.2  Definitions.

* * * * *
    Circulating water heater means a water heater that does not have an 
operational scheme in which the burner, heating element, or compressor 
initiates and/or terminates heating based on sensing flow; has a water 
temperature sensor located at the inlet or the outlet of the water 
heater or in a separate storage tank that is the primary means of 
initiating and terminating heating; and must be used in combination 
with a recirculating pump to circulate water and either a separate 
storage tank or water circulation loop in order to achieve the water 
flow and temperature conditions recommended in the manufacturer's 
installation and operation instructions. Paired with a separate storage 
tank, a circulating water heater constitutes a storage-type water 
heater.
* * * * *
    Electric circulating water heater means a circulating water heater 
with an input of 12 kW or less; contains more than one gallon of water 
per 4,000 Btu/h of input (including heat pump-only units with power 
inputs of no more than 24 A at 250 V).
* * * * *
    Gas-fired circulating water heater means a circulating water heater 
with a nominal input of 75,000 Btu/h or less; contains more than one 
gallon of water per 4,000 Btu/h of input.
* * * * *
    Oil-fired circulating water heater means a circulating water heater 
with a nominal input of 105,000 Btu/h or less; contains more than one 
gallon of water per 4,000 Btu/h of input.
* * * * *
[FR Doc. 2023-28556 Filed 12-26-23; 8:45 am]
BILLING CODE 6450-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>