89330 Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules 

1All 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. 

PART 987—DOMESTIC DATES 

PRODUCED OR PACKED IN 

RIVERSIDE COUNTY, CALIFORNIA 

■ 1. The authority citation for 7 CFR 

part 987 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Revise 987.339 to read as follows: 

§ 987.339 Assessment rate. 

On and after October 1, 2023, an 

assessment rate of $0.15 per 

hundredweight is established for dates 

produced or packed in Riverside 

County, California. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–28279 Filed 12–26–23; 8:45 am] 

BILLING CODE P 

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: 

ConsumerWaterHeaters2017STD0019@

ee.doe.gov. 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/EERE2017-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 

energy.standards@usdoj.gov 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: 

ApplianceStandardsQuestions@

ee.doe.gov. 

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: Melanie.Lampton@

hq.doe.gov. 

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: 

ApplianceStandardsQuestions@

ee.doe.gov. 

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) 


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2For editorial reasons, upon codification in the 

U.S. Code, Part B was redesignated Part A. 

3The September 2019 Enforcement Policy can be 

found online at: www.energy.gov/sites/prod/files/ 

2019/09/f66/Enforcement%20PolicyCirculatingWH.92019.pdf (Last accessed: Oct. 30, 

2023). 

4An aquastat is a temperature measuring device 

typically used to control the water temperature in 

a separate hot water storage tank. 

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. 

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 gasfired ‘‘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 noncompliance 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. 

In a June 21, 2023, final rule 

amending the test procedure for 

consumer water heaters and residentialduty 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, gasfired 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
89332 Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules 

5The 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). 

TABLE II.1—JULY 2023 NOPR COMMENTS ON CIRCULATING WATER HEATER STANDARDS 5

Commenter(s) Abbreviation Comment No. 

in 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 Development Authority ........................................ NYSERDA ........ 1192 State Agency. 

Air-Conditioning, Heating, and Refrigeration Institute ........................................................ AHRI ................. 1167 Trade Association. 

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. 

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 morestringent, 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. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
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6On 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. 

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. 

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 gasfired 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 gasfired 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) 

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 storagetype 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 gasfired 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 instantaneoustype 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 instantaneoustype. 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 oilfired 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 instantaneoustype 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 splitsystem 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 gasfired 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 condensinglevel 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 reVerDate Sep<11>2014 16:35 Dec 26, 2023 Jkt 262001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\27DEP1.SGM 27DEP1

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8At even 100 percent recovery efficiency, a 

75,000 Btu/h burner can only instantaneously raise 

water from 58 °F to 125 °F at a maximum of 2.25 

gallons per minute, which corresponds to the low 

draw pattern. 

classification proposed in this SNOPR, 

gas-fired circulating water heaters and 

traditional gas-fired storage water 

heaters can be evaluated on an 

equivalent basis. 

DOE has tentatively determined that 

gas-fired circulating water heaters 

would not be direct substitutes for gasfired instantaneous water heaters based 

on two factors that define circulating 

water heaters. First, circulating water 

heaters are defined as being 

thermostatically activated and not flowactivated. In its analysis for morestringent standards for the gas-fired 

instantaneous water heater product 

classes, the Department has only come 

across products which have flowactivated 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 flowactivated 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 gasfired instantaneous water heater 

standards certify a maximum GPM, 

indicating that these are all flowactivated 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 °F ± 5 °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. 

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 manufacturerpublished 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 nonrecirculating 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 relabeled 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 reassess this in a future rulemaking. 

Altogether, after considering this 

feedback from stakeholders, and 

reexamining the characteristics and 


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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 storagetype 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 


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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 


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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 


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9The 2007 ‘‘Energy Conservation Standards 

Rulemaking Peer Review Report’’ is available at the 

following website: energy.gov/eere/buildings/ 

downloads/energy-conservation-standardsrulemaking-peer-review-report-0 (last accessed 

April 1, 2023). 

10The report is available at 

www.nationalacademies.org/our-work/review-ofmethods-for-setting-building-and-equipmentperformance-standards. 

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

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. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules 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 

■ 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. 

■ 2. Amend § 430.2 by: 

■ (a) Revising the definition for 

‘‘Circulating water heater;’’ and 

■ (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: 

§ 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2023–2400; Project 

Identifier MCAI–2023–00782–T] 

RIN 2120–AA64 

Airworthiness Directives; BAE 

Systems (Operations) Limited 

Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to 

supersede Airworthiness Directive (AD) 

2022–25–18, which applies to certain 

BAE Systems (Operations) Limited 

Model BAe 146 and Model Avro 146– 

RJ series airplanes. AD 2022–25–18 

requires repetitive inspections for 

cracking of the main landing gear (MLG) 

side stay outer link and replacement if 

necessary. Since the FAA issued AD 

2022–25–18, additional investigations of 

the causes of the cracking were 

conducted. This proposed AD would 

require a reduction of the repetitive 

visual inspection interval, provide 

optional repetitive special detailed 

inspections, accomplishing a one-off 

dimensional tolerance check and 

performing a repetitive lubrication of 

the MLG side stay outer link pivot, as 

specified in a United Kingdom (U.K.) 

Civil Aviation Authority (CAA) (U.K. 

CAA) AD, which is proposed for 

incorporation by reference (IBR). The 

FAA is proposing this AD to address the 

unsafe condition on these products. 

DATES: The FAA must receive comments 

on this proposed AD by February 12, 

2024. 

ADDRESSES: You may send comments, 

using the procedures found in 14 CFR 

11.43 and 11.45, by any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

regulations.gov. Follow the instructions 

for submitting comments. 

• Fax: 202–493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

• Hand Delivery: Deliver to Mail 

address above between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

AD Docket: You may examine the AD 

docket at regulations.gov under Docket 

No. FAA–2023–2400; or in person at 

Docket Operations between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. The AD docket 

contains this NPRM, the mandatory 

continuing airworthiness information 

(MCAI), any comments received, and 

other information. The street address for 

Docket Operations is listed above. 

Material Incorporated by Reference: 

• For U.K. CAA material incorporated 

by reference in this AD, contact Civil 

Aviation Authority, Aviation House, 

Beehive Ring Road, Crawley, West 

Sussex RH6 0YR, United Kingdom; 

telephone +44(0) 330 022 4401; email 

continued.airworthiness@caa.co.uk; 

website caa.co.uk. 

• For BAE Systems (Operations) 

Limited service information identified 

in this AD, contact BAE Systems 

(Operations) Limited, Customer 

Information Department, Prestwick 

International Airport, Ayrshire, KA9 

2RW, Scotland, United Kingdom; 

telephone +44 1292 675207; fax +44 

1292 675704; email RApublications@

baesystems.com; website regionalservices.com. 

• You may view this material at the 

FAA, Airworthiness Products Section, 

Operational Safety Branch, 2200 South 

216th Street, Des Moines, WA. For 

information on the availability of this 

material at the FAA, call 206–231–3195. 

FOR FURTHER INFORMATION CONTACT: 

Todd Thompson, Aviation Safety 

Engineer, FAA, 1600 Stewart Avenue, 


ddrumheller on DSK120RN23PROD with PROPOSALS1