Energy Conservation Program: Energy Conservation Standards for Consumer Water Heaters, 89330-89339 [2023-28556]
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Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules
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
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Supplemental notice of
proposed rulemaking and request for
comment.
AGENCY:
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
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SUMMARY:
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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
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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)
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.
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Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules
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 non-
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U.S. Code, Part B was redesignated Part A.
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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.
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
3 The 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).
4 An aquastat is a temperature measuring device
typically used to control the water temperature in
a separate hot water storage tank.
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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.
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TABLE II.1—JULY 2023 NOPR COMMENTS ON CIRCULATING WATER HEATER STANDARDS 5
Abbreviation
Bradford White Corporation ................................................................................................
California Energy Commission ...........................................................................................
Rheem Manufacturing Company ........................................................................................
A.O. Smith Corporation ......................................................................................................
New York State Energy Research and Development Authority ........................................
Air-Conditioning, Heating, and Refrigeration Institute ........................................................
BWC .................
CEC ..................
Rheem ..............
A.O. Smith ........
NYSERDA ........
AHRI .................
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.
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Comment No.
in the docket
Commenter(s)
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
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).
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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
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Commenter type
Manufacturer.
State Agency.
Manufacturer.
Manufacturer.
State Agency.
Trade Association.
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.
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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
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.
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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 instantaneous-
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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 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 re7 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.
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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
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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
8 At 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.
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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
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‘‘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.
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89335
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.
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.
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.
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.
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
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
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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
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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.
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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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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
V. Public Participation
posted within a few days of being
submitted. However, if large volumes of
A. Submission of Comments
comments are being processed
DOE will accept comments, data, and
simultaneously, your comment may not
information regarding this SNOPR no
be viewable for up to several weeks.
later than the date provided in the DATES
Please keep the comment tracking
section. Interested parties may submit
number that www.regulations.gov
comments, data, and other information
provides after you have successfully
using any of the methods described in
uploaded your comment.
the ADDRESSES section.
Submitting comments via email, hand
Submitting comments via
delivery/courier, or postal mail.
www.regulations.gov. The
Comments and documents submitted
www.regulations.gov web page will
via email, hand delivery/courier, or
require you to provide your name and
postal mail also will be posted to
contact information. Your contact
www.regulations.gov. If you do not want
information will be viewable to DOE
your personal contact information to be
Building Technologies staff only. Your
publicly viewable, do not include it in
contact information will not be publicly your comment or any accompanying
viewable except for your first and last
documents. Instead, provide your
names, organization name (if any), and
contact information in a cover letter.
submitter representative name (if any).
Include your first and last names, email
If your comment is not processed
address, telephone number, and
properly because of technical
optional mailing address. The cover
difficulties, DOE will use this
letter will not be publicly viewable as
information to contact you. If DOE
long as it does not include any
cannot read your comment due to
comments.
technical difficulties and cannot contact
Include contact information each time
you for clarification, DOE may not be
you submit comments, data, documents,
able to consider your comment.
and other information to DOE. If you
However, your contact information
submit via postal mail or hand delivery/
will be publicly viewable if you include courier, please provide all items on a
it in the comment itself or in any
CD, if feasible, in which case it is not
documents attached to your comment.
necessary to submit printed copies. No
Any information that you do not want
telefacsimiles (‘‘faxes’’) will be
to be publicly viewable should not be
accepted.
included in your comment, nor in any
Comments, data, and other
information submitted to DOE
9 The 2007 ‘‘Energy Conservation Standards
electronically should be provided in
Rulemaking Peer Review Report’’ is available at the
PDF (preferred), Microsoft Word or
following website: energy.gov/eere/buildings/
Excel, WordPerfect, or text (ASCII) file
downloads/energy-conservation-standardsrulemaking-peer-review-report-0 (last accessed
format. Provide documents that are not
April 1, 2023).
secured, that are written in English, and
10 The report is available at
that are free of any defects or viruses.
www.nationalacademies.org/our-work/review-ofDocuments should not contain special
methods-for-setting-building-and-equipmentperformance-standards.
characters or any form of encryption
ddrumheller on DSK120RN23PROD with PROPOSALS1
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
VerDate Sep<11>2014
16:35 Dec 26, 2023
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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.
E:\FR\FM\27DEP1.SGM
27DEP1
Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Proposed Rules
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
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:
■
■
Definitions.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
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
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[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
1. The authority citation for part 430
continues to read as follows:
■
§ 430.2
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.
*
*
*
*
*
[Docket No. FAA–2023–2400; Project
Identifier MCAI–2023–00782–T]
RIN 2120–AA64
Airworthiness Directives; BAE
Systems (Operations) Limited
Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
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
SUMMARY:
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
89339
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.
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,
ADDRESSES:
E:\FR\FM\27DEP1.SGM
27DEP1
]]>Agencies
[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: [email protected]. 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 [email protected] 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:
[email protected].
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:
[email protected].
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:
[email protected].
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 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
