Proposed Rule2021-18017
Energy Conservation Program for Appliance Standards: Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters
Primary source
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Published
August 27, 2021
Issuing agencies
Energy Department
Abstract
On January 15, 2021, the Department of Energy (DOE or Department) published a final interpretive rule in the Federal Register determining that, in the context of residential furnaces, commercial water heaters, and similarly-situated products or equipment, use of non-condensing technology (and associated venting) constitutes a performance-related "feature" under the Energy Policy and Conservation Act, as amended (EPCA), that cannot be eliminated through adoption of an energy conservation standard. DOE deems it prudent to revisit its interpretation. For the reasons stated in this document, the Department proposes to return to its previous and long-standing interpretation (in effect prior to the January 15, 2021 final interpretive rule), under which the technology used to supply heated air or hot water is not a performance-related "feature" that provides a distinct consumer utility under EPCA. DOE requests comment on its proposed interpretation. Once DOE has arrived at a final interpretation, the Department plans to again evaluate whether amended energy conservation standards would result in significant savings of energy, be technologically feasible, and be economically justified, consistent with its interpretation.
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[Federal Register Volume 86, Number 164 (Friday, August 27, 2021)]
[Proposed Rules]
[Pages 48049-48058]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-18017]
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DEPARTMENT OF ENERGY
10 CFR Parts 430 and 431
[EERE-2018-BT-STD-0018]
RIN 1904-AE39
Energy Conservation Program for Appliance Standards: Energy
Conservation Standards for Residential Furnaces and Commercial Water
Heaters
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notification of proposed interpretive rule; request for
comment.
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SUMMARY: On January 15, 2021, the Department of Energy (DOE or
Department) published a final interpretive rule in the Federal Register
determining that, in the context of residential furnaces, commercial
water heaters, and similarly-situated products or equipment, use of
non-condensing technology (and associated venting) constitutes a
performance-related ``feature'' under the Energy Policy and
Conservation Act, as amended (EPCA), that cannot be eliminated through
adoption of an energy conservation standard. DOE deems it prudent to
revisit its interpretation. For the reasons stated in this document,
the Department proposes to return to its previous and long-standing
interpretation (in effect prior to the January 15, 2021 final
interpretive rule), under which the technology used to supply heated
air or hot water is not a performance-related ``feature'' that provides
a distinct consumer utility under EPCA. DOE requests comment on its
proposed interpretation. Once DOE has arrived at a final
interpretation, the Department plans to again evaluate whether amended
energy conservation standards would result in significant savings of
energy, be technologically feasible, and be economically justified,
consistent with its interpretation.
DATES: DOE will accept comments, data, and information regarding this
proposed interpretive rule no later than September 27, 2021.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions for submitting comments. Alternatively, interested persons
may submit comments, identified by docket number EERE-2018-BT-STD-0018
and/or RIN number 1904-AE39, by email: to
<a href="/cdn-cgi/l/email-protection#217344526754534f404244624e4c4c764055445369444055445313111019727565111110196144440f454e440f464e57"><span class="__cf_email__" data-cfemail="693b0c1a2f1c1b07080a0c2a0604043e081d0c1b210c081d0c1b5b5958513a3d2d59595851290c0c470d060c470e061f">[email protected]</span></a>. Include docket number
EERE-2018-BT-STD-0018 and/or RIN number 1904-AE39 in the subject line
of the message. Submit electronic comments in WordPerfect, Microsoft
Word, PDF, or ASCII file format, and avoid the use of special
characters or any form of encryption.
Although DOE has routinely accepted public comment submissions
through a variety of mechanisms, including postal mail and hand
delivery/courier, the Department has found it necessary to make
temporary modifications to the comment submission process in light of
the ongoing COVID-19 pandemic. DOE is currently suspending receipt of
public comments via postal mail and hand delivery/courier. If a
commenter finds that this change poses an undue hardship, please
contact Appliance Standards Program staff at (202) 586-1445 to discuss
the need for alternative arrangements. Once the COVID-19 pandemic
health emergency is resolved, DOE anticipates resuming all of its
regular options for public comment submission, including postal mail
and hand delivery/courier.
No telefacsimiles (faxes) will be accepted. For detailed
instructions on submitting comments and additional information on this
process, see section IV (Public Participation) of this document.
Docket: The docket for this activity, which includes Federal
Register notices, comments, and other
[[Page 48050]]
supporting documents/materials, is available for review at
<a href="http://www.regulations.gov">www.regulations.gov</a>. All documents in the docket are listed in the
<a href="http://www.regulations.gov">www.regulations.gov</a> 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: <a href="http://www.regulations.gov/#!docketDetail">www.regulations.gov/#!docketDetail</a>;D=EERE-2018-BT-STD-0018. The docket web page contains
instructions on how to access all documents, including public comments,
in the docket.
FOR FURTHER INFORMATION CONTACT: Ms. Catherine Rivest, 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. Telephone: (202) 586-7335. Email:
<a href="/cdn-cgi/l/email-protection#abeadbdbc7c2cac5c8cef8dfcac5cfcad9cfd8fadeced8dfc2c4c5d8ebcece85cfc4ce85ccc4dd"><span class="__cf_email__" data-cfemail="b1f0c1c1ddd8d0dfd2d4e2c5d0dfd5d0c3d5c2e0c4d4c2c5d8dedfc2f1d4d49fd5ded49fd6dec7">[email protected]</span></a>.
Mr. Eric Stas, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 586-5827. Email: <a href="/cdn-cgi/l/email-protection#1356617a703d40677260537b623d777c763d747c65"><span class="__cf_email__" data-cfemail="e8ad9a818bc6bb9c899ba88099c68c878dc68f879e">[email protected]</span></a>.
For further information on how to submit a comment or review other
public comments and the docket, contact the Appliance and Equipment
Standards Program staff at (202) 287-1445 or by email:
<a href="/cdn-cgi/l/email-protection#39784949555058575a5c6a4d58575d584b5d4a684c5c4a4d5056574a795c5c175d565c175e564f"><span class="__cf_email__" data-cfemail="25645555494c444b46407651444b414457415674504056514c4a4b566540400b414a400b424a53">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Background
A. Authority
B. Historic Interpretation of the ``Features'' Provision
C. January 15, 2021 Final Interpretive Rule Regarding Non-
Condensing Technology
II. Proposed Interpretive Rule
III. Conclusion
IV. Public Participation
V. Approval of the Office of the Secretary
I. Introduction and Background
The following sections discuss the statutory authority underlying
this proposed interpretive rule, as well as the relevant background
related to determination of what constitutes a ``feature'' for the
purpose of establishing energy conservation standards under EPCA.
Additionally, these sections address DOE's historic interpretation,
DOE's interpretation in the January 15, 2021 final interpretive rule
(86 FR 4776), and the issuance of Executive Order 13990. This
background sets the stage for presentation of DOE's current proposed
interpretive rule addressing whether non-condensing technology (and
associated venting) constitutes a performance-related ``feature'' under
EPCA which may not be eliminated by an energy conservation standard.
A. Authority
EPCA \1\, Public Law 94-163 (42 U.S.C. 6291 et seq.), as amended,
authorizes DOE to regulate the energy efficiency of a number of
consumer products and certain industrial equipment. When establishing
new or amended standards for covered products, DOE is directed to
consider any lessening of the utility or the performance of covered
products likely to result from the imposition of the standard. (42
U.S.C. 6295(o)(2)(B)(i)(IV)) Moreover, the Secretary of Energy
(Secretary) may not prescribe an amended or new standard if the
Secretary finds (and publishes such finding) that interested persons
have established by a preponderance of the evidence that the standard
is likely to result in the unavailability in the United States in any
covered product type (or class) of performance characteristics
(including reliability), features, sizes, capacities, and volumes
(collectively referred to hereafter as ``features'') that are
substantially the same as those generally available in the United
States at the time of the Secretary's finding. (42 U.S.C. 6295(o)(4);
the ``features'' provision)
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\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).
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EPCA provides a companion provision at 42 U.S.C. 6295(q)(1), which
requires that a rule prescribing an energy conservation standard for a
type of covered products shall specify a level of energy use or
efficiency higher or lower than that which applies (or would apply) to
any group of covered products which have the same function or intended
use, if the Secretary determines that covered products within such
group:
(A) consume a different kind of energy from that consumed by
other covered products within such type (or class); or
(B) have a capacity or other performance-related feature which
other products within such type (or class) do not have and such
feature justifies a higher or lower standard from that which applies
(or will apply) to other products within such type (or class).
In making a determination of whether a performance-related feature
justifies the establishment of a higher or lower standard, the
Secretary must consider such factors as the utility to the consumer of
such a feature, and such other factors as the Secretary deems
appropriate. (42 U.S.C. 6295(q)(1))
These provisions apply generally to covered commercial and
industrial equipment, other than ASHRAE equipment,\2\ through the
crosswalk provision at 42 U.S.C. 6316(a). ASHRAE equipment has its own
separate statutory scheme under EPCA, with the default situation being
that DOE must adopt the level set forth in ASHRAE Standard 90.1 unless
the Department has clear and convincing evidence to adopt a more
stringent standard (see 42 U.S.C. 6313(a)(6)). Under 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa), there is a provision similar to the
``features'' provision previously discussed that states that the
Secretary may not prescribe an amended standard under this subparagraph
if the Secretary finds (and publishes the finding) that interested
persons have established by a preponderance of the evidence that a
standard is likely to result in the unavailability in the United States
in any product type (or class) of performance characteristics
(including reliability, features, sizes, capacities, and volumes) that
are substantially the same as those generally available in the United
States at the time of the finding of the Secretary. However, it is
noted that this provision contains the specific limitation that it
applies to an amended standard prescribed under this subparagraph
(i.e., when DOE is acting under its authority to set a more-stringent
standard). There is no companion ``features'' provision under 42 U.S.C.
6313(a)(6)(A), which is the provision that would apply when DOE is
triggered to adopt the levels set by ASHRAE. There is likewise no
companion provision to 42 U.S.C. 6295(q)(1) for ASHRAE equipment.
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\2\ ``ASHRAE'' refers to the American Society of Heating,
Refrigerating and Air-Conditioning Engineers. Under EPCA, ``ASHRAE
equipment'' refers to small commercial package air conditioning and
heating equipment, large commercial package air conditioning and
heating equipment, very large commercial package air conditioning
and heating equipment, packaged terminal air conditioners, packaged
terminal heat pumps, warm-air furnaces, packaged boilers, storage
water heaters, instantaneous water heaters, and unfired hot water
storage tanks, which are addressed by ASHRAE in ASHRAE Standard
90.1, Energy Standard for Buildings Except Low-Rise Residential
Buildings. (See 42 U.S.C. 6313(a)(6))
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In addition, on January 20, 2021, the White House issued Executive
Order 13990, ``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25,
2021). Section 1 of that Order lists several policies related to the
protection of public health and the environment, including reducing
greenhouse gas emissions and bolstering
[[Page 48051]]
the Nation's resilience to climate change. Id. at 86 FR 7037, 7041.
Section 2 of the Order also instructs all agencies to review ``existing
regulations, orders, guidance documents, policies, and any other
similar agency actions (agency actions) promulgated, issued, or adopted
between January 20, 2017, and January 20, 2021, that are or may be
inconsistent with, or present obstacles to, [these policies].'' Id.
Agencies are then directed, as appropriate and consistent with
applicable law, to consider suspending, revising, or rescinding these
agency actions and to immediately commence work to confront the climate
crisis. Id.
In light of E.O. 13990, DOE has undertaken a review of the final
interpretation and withdrawal of proposed rulemakings published in the
Federal Register on January 15, 2021. While E.O. 13990 triggered the
Department's re-evaluation, DOE is relying on the analysis presented
below, based upon EPCA, to re-examine the January 2021 Final
Interpretive Rule. Accordingly, the Department has initially determined
that the historic application of the ``features'' provision to non-
condensing technology reflects the better reading of the requirements
in EPCA.
B. Historic Interpretation of the ``Features'' Provision
As discussed, when evaluating and establishing energy conservation
standards, DOE is required to divide covered products into product
classes by the type of energy used, by capacity, or by other
performance-related features that DOE determines justify a different
standard. In making a determination of whether a performance-related
feature justifies a different standard, the Department must consider
factors such as the utility to the consumer of the feature and other
factors DOE determines are appropriate. (42 U.S.C. 6295(q)) As the
product class provision is complementary to the ``features'' provision,
consideration of what constitutes a feature and what constitutes
utility for the purpose of establishing a product class is germane to
the application of the ``features'' provision.
At a basic level, a ``feature'' is a trait, attribute, or function
of a product. The usefulness and benefit provided to a consumer by a
feature is the feature's ``utility.'' Given the multitude of covered
products and equipment for which DOE is responsible, the Department has
found the concept of ``feature'' to be very case-specific. 86 FR 4776,
4797 (Jan. 15, 2021). No single definition could effectively capture
the potential for features across the broad array of consumer products
and commercial equipment subject to EPCA's regulatory scheme. Id. That
is why DOE developed the concept of consumer utility and how the
consumer interacts with the product/equipment for when DOE is assessing
``features.'' Id.
Historically, DOE has viewed utility as an aspect of the product
that is accessible to the layperson and is based on user operation and
interaction with the product. This interpretation has been applied in
DOE's previous rulemakings by determining utility through the value the
item brings to the consumer, rather than through analyzing complicated
design features that do not impact what the consumer perceives as the
value of the product, or costs that anyone, including the consumer,
manufacturer, installer, or utility companies, may bear. DOE reasoned
that this approach is consistent with EPCA's requirement for a separate
and extensive analysis of economic justification for the adoption of
any new or amended energy conservation standard (see 42 U.S.C.
6295(o)(2)(A)-(B) and (3)). Examples of prior consideration of the
``features'' provision, utility, and product/equipment classes are
provided in the following paragraphs.
In a final rule addressing energy conservation standards for
cooking products, DOE did not consider a design option that eliminated
oven door windows. 63 FR 48038, 48041 (Sept. 8, 1998). A number of
commenters asserted that the oven door window provides consumer utility
by alleviating the need for users to open the oven door to check on the
contents. Id. DOE agreed with commenters that the removal of the oven
door window would increase the frequency in which consumers open the
oven door. Id. DOE also found this increased opening would have the
potential to increase energy usage. Id. DOE further indicated that it
would re-evaluate oven door window designs should a window material
with higher thermal insulation properties become a proven technology.
Id.
In the case of residential clothes washers, DOE has maintained a
product class distinction based on axis of loading (i.e., front-loading
and top-loading units). Based on comments received during rulemakings,
DOE identified axis of loading as a feature that impacts consumer
utility (i.e., the longer cycle times of front-loading residential
clothes washers versus cycle times for top-loaders are likely to impact
consumer utility). 77 FR 32307, 32319 (May 31, 2012). Conversely, DOE
eliminated the suds-saving product class because the market had
changed, and, at the time of the rulemaking, DOE did not identify any
suds-saving residential clothes washers on the market in the United
States. 77 FR 32307, 32317 (May 31, 2012).
In a 2011 rulemaking, DOE created separate product classes for
vented and ventless residential clothes dryers based on DOE's
recognition of the ``unique utility'' that ventless clothes dryers
offer to consumers. 76 FR 22454, 22485 (April 21, 2011). This utility
could be characterized as the ability to have a clothes dryer in a
living area where vents are impossible to install (i.e., an apartment
in a high-rise building). As explained in the accompanying technical
support document, ventless dryers can be installed in locations where
venting dryers would be precluded due to venting restrictions.\3\
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\3\ See pp. 3-59 of the technical support document, available at
<a href="http://www.regulations.gov/document/EERE-2007-BT-STD-0010-0053">www.regulations.gov/document/EERE-2007-BT-STD-0010-0053</a>.
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But in another rulemaking, DOE found that water heaters that
utilize heat pump technology did not need to be put in a separate
product class from conventional types of hot water heaters that utilize
electric resistance technology, even though water heaters utilizing
heat pumps require the additional installation of a condensate drain
that a hot water heater utilizing electric resistance technology does
not require. 75 FR 20112, 20135 (April 16, 2010). Regardless of the
installation factors, DOE did not find the mode of heating water to be
a performance-related feature or provide a unique utility. Id. DOE also
noted comments stating that in the then-current market, water heaters
that employed heat pump technology were advertised as replacements for
water heaters that employed electric resistance technology. Id.
However, DOE has cautioned that disparate products may have very
different consumer utilities, thereby making direct comparisons
difficult and potentially misleading. 76 FR 22454, 22485 (April 21,
2011).
C. January 15, 2021 Final Interpretive Rule Regarding Non-Condensing
Technology
On March 12, 2015, DOE published a notice of proposed rulemaking
(NOPR) in the Federal Register to amend energy conservation standards
for residential non-weatherized gas furnaces and mobile home furnaces,
in furtherance of its statutory obligation to determine whether more
stringent amended standards would be technologically
[[Page 48052]]
feasible and economically justified, and would save a significant
amount of energy. 80 FR 13120 (March 2015 Furnace NOPR). To provide
further consideration of comments suggesting a separate product class
for furnaces based on input capacity and in order to mitigate some of
the negative impacts of the proposed standards, DOE published a notice
of data availability (NODA) in the Federal Register on September 14,
2015. 80 FR 55038 (September 2015 Furnaces NODA). DOE subsequently
published a supplemental notice of proposed rulemaking (SNOPR) for this
rulemaking in the Federal Register on September 23, 2016, in which DOE
proposed to establish capacity-based product classes. 81 FR 65720
(September 2016 Furnaces SNOPR). On May 31, 2016, DOE published in the
Federal Register a proposal to amend the energy conservation standards
for commercial water heaters. 81 FR 34440 (May 2016 Commercial Water
Heaters NOPR).
In both the residential furnaces rulemaking and the commercial
water heaters rulemaking, DOE proposed amended energy conservation
standards that would effectively require products/equipment in certain
classes to use condensing technology to meet the amended standards. See
81 FR 65720, 65852 (Sept. 23, 2016) and 81 FR 34440, 34503-34504 (May
31, 2016). For the product/equipment classes where such standards were
proposed, if finalized, the amended standards would have effectively
eliminated all non-condensing products/equipment that are currently on
the market in those classes.
In the March 2015 Furnace NOPR, DOE tentatively concluded that the
methods by which a furnace is vented--which is a significant
differentiator of condensing and non-condensing furnaces--do not
provide any separate performance-related impacts. Therefore, DOE had no
statutory basis for defining a separate class based on venting and
drainage characteristics because venting methods do not provide unique
utility to consumers beyond the basic function of providing heat, which
all furnaces perform. 80 FR 13120, 13138 (March 12, 2015). In the
September 2016 Furnace SNOPR, DOE reiterated its tentative conclusion
that methods of venting do not provide any performance-related utility
separate from the basic function of a furnace. 81 FR 65720, 65753
(Sept. 23, 2016). Similarly, in the May 2016 Commercial Water Heater
NOPR, DOE tentatively concluded that both non-condensing and condensing
gas-fired commercial water heating equipment provide the same hot water
for use by commercial consumers, and, therefore, separate equipment
classes could not be justified. 81 FR 34440, 34463 (May 31, 2016).
On October 18, 2018, DOE received a petition for rulemaking
submitted by the American Public Gas Association, Spire, Inc., the
Natural Gas Supply Association, the American Gas Association, and the
National Propane Gas Association, collectively referred to as the ``Gas
Industry Petitioners,'' asking DOE to: (1) Issue an interpretive rule
stating that DOE's proposed energy conservation standards for
residential furnaces and commercial water heaters would result in the
unavailability of ``performance characteristics'' within the meaning of
EPCA, specifically by eliminating from the market units utilizing non-
condensing technology, and (2) withdraw the proposed energy
conservation standards for residential furnaces and commercial water
heaters based upon such findings. DOE published the notice of petition
in the Federal Register on November 1, 2018 and requested public
comment.\4\ 83 FR 54883.
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\4\ In response to requests submitted by two stakeholders, DOE
extended the initial 90-day comment period for an additional 30
days. 84 FR 449 (Jan. 29, 2019).
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Following consideration of the comments on the petition, DOE
published a notice of proposed interpretive rule on July 11, 2019,
presenting DOE's tentative interpretation that, in the context of
residential furnaces, commercial water heaters, and similarly-situated
products/equipment, use of non-condensing technology (and associated
venting) would constitute a performance-related ``feature'' under EPCA
that cannot be eliminated through adoption of an energy conservation
standard. 84 FR 33011 (July 2019 Proposed Interpretive Rule).\5\ DOE
also provided that, if such interpretation were to be finalized, it
anticipated developing supplemental notices of proposed rulemaking that
would implement the new legal interpretation for the subject
residential furnaces and commercial water heaters. 84 FR 33011, 33021
(July 11, 2019).
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\5\ The July 2019 Proposed Interpretive Rule granted the request
for an interpretive rule but initially denied the Gas Industry
Petitioners' request to withdraw DOE's earlier proposed rules for
residential furnaces and commercial water heaters. 84 FR 33011,
33021 (July 11, 2019).
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DOE published a supplemental notice of proposed interpretation in
the Federal Register on September 24, 2020, which proposed alternative
approaches to product/equipment class setting in this context. 85 FR
60090. The supplemental proposed interpretive rule was in response to
comments expressing concern with the proposed focus on ``non-
condensing'' technology as the performance-related feature. 85 FR
60090, 60094-60095 (Sept. 24, 2020). Alternatively, the supplemental
notice of proposed interpretation considered venting compatibility as a
possible ``feature.'' 85 FR 60095 (Sept. 24, 2020). DOE requested
comment on this alternative approach. Id.
On January 15, 2021, DOE published in the Federal Register a final
interpretive rule determining that, in the context of residential
furnaces, commercial water heaters, and similarly-situated products/
equipment, use of non-condensing technology (and associated venting)
constitutes a performance-related ``feature'' under EPCA that cannot be
eliminated through adoption of an energy conservation standard. 86 FR
4776 (January 2021 Final Interpretation). Following consideration of
comments and data submitted by stakeholders in response to the proposed
interpretation and supplemental proposal, DOE found that when used by
the appliances in question, non-condensing technology (and associated
venting) constitutes a performance-related feature that provides
consumer utility distinct from that provided by such appliances that
employ condensing technology. More specifically, in contrast to
condensing units, non-condensing units: (1) Avoid complex installations
in certain locations constrained by space, existing venting, and
available drainage; (2) avoid the encroachment on usable space that
would occur in certain installations, and (3) do not enhance the level
of fuel switching that might accompany standard setting absent a
separate product/equipment class for non-condensing appliance. 86 FR
4776, 4816 (Jan. 15, 2021). DOE stated that such an interpretation
would extend to all relevant/applicable cases involving consumer
products, non-ASHRAE commercial equipment, and ASHRAE equipment where
DOE adopts a level more stringent than the ASHRAE level. 86 FR 4776,
4816-4817 (Jan. 15, 2021).
In light of this final interpretation, DOE withdrew its March 12,
2015 proposed rule and September 23, 2016 supplemental proposed rule
for energy conservation standards for non-weatherized gas furnace and
mobile home gas furnaces, as well as its May 31, 2016 proposed rule for
energy conservation standards for commercial water heating equipment.
86 FR 3873 (Jan. 15, 2021). However, DOE has not implemented the
January 15, 2021 final interpretation in the context of any individual
energy conservation
[[Page 48053]]
standards rulemakings for affected covered products/equipment.
II. Proposed Interpretive Rule
Based on DOE's reconsideration of the January 2021 Final
Interpretation, the Department is proposing to revise its
interpretation of EPCA's ``features'' provision in the context of
condensing and non-condensing technology used in furnaces, water
heating equipment, and similarly-situated appliances. Consistent with
the interpretation presented in the May 2015 Furnaces NOPR, the
September 2016 Furnaces SNOPR, and the May 2016 Commercial Water
Heaters NOPR, DOE tentatively concludes that in the context of
residential furnaces, commercial water heaters, and similarly-situated
products or equipment, use of non-condensing technology (and associated
venting) is not a performance-related ``feature'' for the purpose of
the EPCA prohibitions at 42 U.S.C. 6295(o)(4) and 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa). DOE initially finds that non-condensing
technology (and the associated venting) does not provide unique utility
to consumers separate from an appliance's function of providing heated
air or water, as applicable.
Upon further consideration, DOE has tentatively concluded that
utility is determined through the benefits and values the feature
provides to the consumer while interacting with the product, not
through analyzing or making comparisons to more complicated design
features, or costs that anyone, including the consumer, manufacturer,
installer, or utility companies, may bear. Stated differently, DOE has
tentatively determined that differences in cost or complexity of
installation between different methods of venting (e.g.., a condensing
furnace versus a non-condensing furnace) do not make any method of
venting a performance-related feature under 42 U.S.C. 6295(o)(4), as
would justify separating the products/equipment into different product/
equipment classes under 42 U.S.C. 6295(q)(1). Again, this approach is
consistent with EPCA's requirement for a separate and extensive
analysis of economic justification for the adoption of any new or
amended energy conservation standard (see 42 U.S.C. 6295(o)(2)-(3); 42
U.S.C. 6313(a)(6)(A)-(C); 42 U.S.C. 6316(a)).
Therefore, because DOE has come to see that the issues underlying
its January 15, 2021 final interpretive rule are appropriately framed
as matters of cost, this proposed interpretation would return those
issues for resolution to their proper sphere as part of DOE's economic
analysis in individual energy conservation standards rulemakings. DOE
initially finds this interpretation to be the best reading of the
relevant provisions of EPCA, which is consistent with the intent and
purposes of the statute. In DOE's view, the proposed interpretation
would align better with EPCA's goals of increasing the energy
efficiency of covered products and equipment through the establishment
and amendment of energy conservation standards and promoting
conservation measures when feasible. (42 U.S.C. 6291 et seq., as
amended) The following paragraphs set forth DOE's rationale for its
proposed revised interpretation in further detail. As background, DOE
must follow specific statutory criteria for prescribing new or amended
standards for covered products and covered equipment. In general, a new
or amended standard must be designed to achieve the maximum improvement
in energy efficiency that the Secretary determines is technologically
feasible and economically justified. (42 U.S.C. 6295(o)(2)(A); 42
U.S.C. 6295(o)(3)(B); 42 U.S.C. 6316(a)) In deciding whether a proposed
standard is economically justified, DOE must determine whether the
benefits of the standard exceed its burdens after receiving comments on
the proposed standard and by considering, to the greatest extent
practicable, seven factors (see footnote 6). One of the seven factors
for consideration is the lessening of the utility or the performance of
the covered products likely to result from the standard. (42 U.S.C.
6295(o)(2)(B)(i)(IV); 42 U.S.C. 6313(a)(6)(B)(ii)(IV); 42 U.S.C.
6316(a)) As discussed, EPCA further directs that the Secretary may not
prescribe an amended or new standard if the Secretary finds (and
publishes such finding) that interested persons have established by a
preponderance of the evidence that the standard is likely to result in
the unavailability in the United States in any covered product type (or
class) of performance characteristics (including reliability),
features, sizes, capacities, and volumes that are substantially the
same as those generally available in the United States at the time of
the Secretary's finding. (42 U.S.C. 6295(o)(4); 42 U.S.C.
6313(a)(6)(B)(iii)(II); 42 U.S.C. 6316(a)) Also, as discussed, when
prescribing an energy conservation standard, DOE must consider whether
separate product/equipment classes are justified based on performance-
related features and their associated utility. (42 U.S.C. 6295(q)(1);
42 U.S.C. 6316(a)) The ``features'' provision, the seven factors for
economic justification, and the product class provisions are all
required considerations in establishing new and amended energy
conservation standards.
As mentioned previously, a ``feature'' is a trait, attribute, or
function of a product. The usefulness and benefit provided to a
consumer by a feature is the feature's ``utility,'' and consumer
utility is used to evaluate whether a purported feature justifies a
separate product class. DOE has historically viewed utility of a
product or equipment as an aspect of the appliance that is accessible
to the layperson consumer and is based upon user operation and
interaction with that appliance. Examples of features, such as oven
door windows and angle of access for clothes washers, are illustrative
of this principle. Consumers use the oven door window (in conjunction
with the oven lamp) to gauge the progress of food undergoing baking,
without the need to open the oven door. Needing to open the oven door
entails loss of heat, which would decrease the energy efficiency of the
oven. The oven door window is a feature which consumers generally
appreciate and with which they routinely interact when cooking. The
window's elimination would result in the loss of a performance-related
feature that provides valued utility for consumers. Another example
would be the angle of access of a clothes washer. Currently, consumers
have two options when purchasing clothes washers: Front-loading
machines and top-loading machines. Some consumers, such as the elderly,
may prefer a top-loading clothes washer, because it is easier to reach
the laundry without excessive bending, which is in contrast to the
angle of access of a front-loading washer. A broader spectrum of
consumers recognizes and appreciates the ability of a top-loading
washer to readily accept additional clothing items, even after a wash
cycle has begun. Other consumers, such as those with disabilities, may
prefer a front-loading machine because that angle of access better
suits their access needs. The two angles provided consumer utility in
terms of ease of use to different consumer subgroups. Consequently,
consistent with the requirements of EPCA, DOE viewed angle of access as
a performance-related feature for clothes washers that cannot be
eliminated from the market through adoption of an energy conservation
standard.
In contrast to the examples discussed in the preceding paragraph,
DOE has historically viewed a consumer's interaction with a furnace or
water heater to be a simple one, whereby the user only interacts to
place a call for heated air or water. After the consumer
[[Page 48054]]
adjusts the thermostat or faucet, the user receives the requested
heated air or water. There is no noticeable difference to the consumer
in access or output based upon the type of technology or venting used
by the appliance. As noted previously, this had been DOE's longstanding
interpretation of EPCA's ``features'' provision in the context of these
appliances until the January 15. 2021 final interpretive rule, and for
the reasons explained in the following paragraphs, DOE proposes to once
again return to an interpretation that different venting methods of
natural gas, propane gas, and/or oil-fired furnaces, water heaters, and
similarly-situated products or equipment are not features that provide
unique utility to consumers independent from such appliances' function
of providing heated air or water, as applicable.
Furthermore, DOE has tentatively concluded that it gave
insufficient weight to other policy arguments in development of the
January 15, 2021 final interpretive rule. Most importantly, as
explained in prior rulemakings, tying the concept of ``feature'' to a
specific technology would effectively lock in the currently existing
technology as the ceiling for product efficiency and eliminate DOE's
ability to address technological advances that could yield significant
consumer benefits in the form of lower energy costs while providing the
same functionality/utility for the consumer. 81 FR 65720, 65752 (Sept.
23, 2016). Because the statute effectively accords performance-related
features a protected status, the Department must take great care when
making a features determination. Although DOE acknowledges that the
January 15, 2021 final interpretive rule suggested that making a
features determination would not impede innovation and the development
of more efficient technologies, after careful reevaluation, the agency
has tentatively reached a different conclusion, for the reasons
explained in this proposed interpretive rule. DOE is concerned that
determining features solely on product technology, rather than on how
the consumer interacts with and benefits from the feature, could
undermine the Appliance Standards Program as established by EPCA. See
id. If DOE is required to maintain separate product classes to preserve
less efficient technologies, then future advancements in the energy
efficiency of covered products would become largely voluntary, an
outcome in conflict with Congress's purposes and goals in enacting
EPCA. DOE's proposed interpretation would avoid such deleterious
outcomes.
Finally, the proposed revised interpretation would maintain
consideration of installation costs as part of the extensive analysis
of economic justification for the adoption of any new or amended energy
conservation standard, as required by EPCA, thereby avoiding what would
amount to double-counting of cost considerations as arguably would
occur through the January 15, 2021 final interpretive rule. In order
for DOE to set an energy conservation standard, EPCA requires that such
standard must be designed to achieve the maximum improvement in energy
savings that is technologically feasible and economically justified.
The statute further recites seven factors for use when considering
economic justification.\6\ (42 U.S.C. 6295(o)(2)-(3); 42 U.S.C.
6313(a)(6)(A)-(C); 42 U.S.C. 6316(a)) DOE again notes that the
statute's ``features'' provision makes no mention of cost as a relevant
consideration. (42 U.S.C. 6295(o)(4); 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa)) As required by EPCA, DOE conducts a
comprehensive economic analysis as part of each standards rulemaking.
In this case, DOE originally considered the additional costs associated
with installing condensing residential furnaces and condensing
commercial water heaters in the rulemaking proceedings for those
appliances that were withdrawn in conjunction with the January 2021
interpretive rule (See 81 FR 65720, 65776-65783 (Sept. 23, 2016); 81 FR
34440, 34484-34485 (May 31, 2016)) and would do so again in future
rulemakings if the interpretation in this proposal were to be
finalized.
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\6\ Specifically, at 42 U.S.C. 6295(o)(2)(B)(i) (and with
essentially the same language at 42 U.S.C. 6313(a)(6)(B)(ii)), EPCA
provides: In determining whether a standard is economically
justified, the Secretary shall, after receiving views and comments
furnished with respect to the proposed standard, determine whether
the benefits of the standard exceed its burdens by, to the greatest
extent practicable, considering--
(I) the economic impact of the standard on the manufacturers and
on the consumers of the products subject to such standard;
(II) the savings in operating costs throughout the estimated
average life of the covered product in the type (or class) compared
to any increase in the price of, or in the initial charges for, or
maintenance expenses of, the covered products which are likely to
result from the imposition of the standard;
(III) the total projected amount of energy, or as applicable,
water, savings likely to result directly from the imposition of the
standard;
(IV) any lessening of the utility or the performance of the
covered products likely to result from the imposition of the
standard;
(V) the impact of any lessening of competition, as determined in
writing by the Attorney General, that is likely to result from the
imposition of the standard;
(VI) the need for national energy and water conservation; and
(VII) other factors the Secretary considers relevant.
---------------------------------------------------------------------------
The Department acknowledges that in its January 2021 final
interpretive rule, it extended its view of consumer utility of furnaces
and water heaters beyond those appliances' primary function of
providing heated air or water, giving considerable weight to
installation situations that could require the addition of new pipes or
venting to the usable space of a home or business, major modifications
to a utility room, or encroachment upon an existing window or patio. 86
FR 4776, 4786 (Jan. 15, 2021). However, upon further evaluation, DOE
realizes that its change in interpretation was unnecessary and arguably
beyond what the statute can support, because even if the Department had
definitive evidence regarding the extent of difficult or impossible
installation situations, loss of usable residential or commercial
space, or fuel switching effects, DOE nonetheless had a strong
statutorily-based rationale for its historic interpretation, as would
support a subsequent return thereto. If consumer utility turns on the
layperson's operation and interaction with the product (i.e., calling
for and enjoying the heated air or water which the appliance in
question provides) rather than type of venting, then all furnaces and
water heaters provide the same basic utility: heated air or water.
While DOE acknowledges that installation of condensing products/
equipment requires modifications to the installed space in some
applications (e.g., concealing vent pipes that pass through the living
space by inclusion in a soffit), such modifications may impact the
installation cost and/or complexity, but once installed, they do not
impact the user's operation and interaction with the appliance.
Moreover, the Department understands that there are technological
solutions for most difficult installation situations and that consumers
also have heating and water-heating options other than installation of
a condensing appliance. Consequently, the agency tentatively finds that
the matter essentially boils down to one of cost, which is a topic
properly analyzed and adequately addressed under the economic
justification provisions of EPCA. DOE's reasoning, which is consistent
with the Department's historic interpretation, is discussed in further
detail in the paragraphs that follow. However, before turning to that
rationale, DOE would add furthermore that it has tentatively concluded
that it gave undue weight to
[[Page 48055]]
these arguments presented by the Gas Industry Petitioners, which were
largely based upon anecdotal accounts and limited installer survey
data. After reexamining the record, DOE has preliminarily determined
that the qualitative arguments made by the Gas Industry Petitioners
were not accompanied by sufficient evidence to establish the existence
or magnitude of the alleged problem, as would support the significant
change from DOE's historic interpretation to the interpretation
contained in the January 2021 final interpretive rule.
As noted previously, upon reconsideration, DOE has tentatively
concluded that consumers have other options for resolving difficult
installation situations--the situations that provided two of the three
reasons for the January 15, 2021 final interpretive rule--without the
need for the Department to declare non-condensing technology and
associated venting to be a performance-related feature under EPCA. This
provides a further basis for DOE's proposed return to its historic
interpretation. In short, consumers facing difficult installation
situations can either: (1) Utilize a technological solution to resolve
their installation problem, or (2) switch to an appliance utilizing
alternative technologies. Either approach would allow those consumers
with potentially difficult installation situations to choose how best
to avoid loss of usable space, extensive building modifications, or
extreme installation costs identified in the January 15, 2021 final
interpretive rule.
The first option is to use new technology to overcome identified
installation problems. It has been DOE's historic position that there
is a technological solution to accommodate virtually all of the
difficult installation situations involving gas-fired appliances,
although some might be costly (e.g., requiring new venting). Although a
critical piece of the Gas Industry Petitioners' argument in support of
their petition was that it may be impossible to install a condensing
appliance in certain replacement applications, they never provided any
definitive proof as to the existence of this problem or its extent. In
promulgating the January 15, 2021 final interpretive rule, DOE found
these theories persuasive, but upon further examination, there is at
best weak foundational support to challenge the Appliance Standards
Program's record of evidence that it is technologically feasible to
install condensing appliances in virtually all replacement
applications. If the consumer's affinity for gas-fueled appliances is
sufficiently high to warrant their continued use, the consumer will
choose to make such changes when installing the more efficient
appliance, which reflects an economic decision.
Technological solutions should also resolve the specific issue of
orphaned water heaters identified by the Gas Industry Petitioners. (An
``orphaned water heater'' refers to the situation in which a non-
condensing furnace and non-condensing water heater share a common vent,
but, upon replacement of the non-condensing furnace with a condensing
furnace, they can no longer share that same venting due to differences
in venting requirements.) DOE has, in fact, identified a newer
technology for which comprehensive data are currently unavailable, but
when mature, it could address the issue of orphaned appliances, allow
consumers to switch from a non-condensing furnace to a condensing
furnace, and permit continued use of existing common venting in a
greater variety of applications.\7\ 86 FR 4776, 4781 (Jan. 15, 2021).
More specifically, this venting technology may allow a consumer to
obtain the efficiency of a condensing furnace using the existing
venting in a residence by sharing venting space with a water heater. It
would significantly reduce the cost burden associated with installing
condensing furnaces and reduce potential instances of ``orphaned''
water heaters. This technology could allow consumers to switch from a
non-condensing furnace to a condensing furnace in a greater variety of
applications, such as urban row houses. See 80 FR 13120, 13138 (March
12, 2015). DOE is concerned that characterizing the method of venting
as a ``feature'' due to concerns over orphaned water heaters would
limit future advancements in this technology, because establishment of
separate product or equipment classes for non-condensing appliances
would limit the market for such innovative devices that allow
condensing and non-condensing appliances to share the same venting.\8\
Consequently, DOE has reconsidered and changed its view regarding the
argument put forth in the January 2021 Final Interpretation--that
replacement of a non-condensing furnace with a condensing unit may
result in an orphaned water heater. 86 FR 4776, 4785 (Jan. 15, 2021).
---------------------------------------------------------------------------
\7\ In the technical support documents accompanying the proposed
rules for residential furnaces, DOE referenced a study from the Oak
Ridge National Laboratory that identified various approaches to
address the orphaned water heater problem without the need for
expensive renovations. See Momen, A. M., J. Munk, K. Biswas, and P.
Hughes, Condensing Furnace Venting Part 2: Evaluation of Same-
Chimney Vent Systems for Condensing Furnaces and Natural Draft Water
Heaters (2015) Oak Ridge National Laboratory: Oak Ridge, TN. Report
No. ORNL/TM-2014/656 (Available at: <a href="http://web.ornl.gov/sci/buildings/docs/Condensing-Furnace-Venting-Part1-Report.pdf">web.ornl.gov/sci/buildings/docs/Condensing-Furnace-Venting-Part1-Report.pdf</a>) (Last accessed May 6,
2021).
\8\ Although DOE argued in the January 15, 2021 final
interpretive rule that establishment of separate product or
equipment classes would not limit innovation or market trends toward
condensing appliances (see 86 FR 4776, 4805), the Department has
come to question whether such view is correct, given the potential
for a substantial portion of the relevant appliance market to remain
at significantly lower levels of efficiency. Even if current trends
toward condensing appliances hold, the market might stall before
achieving the full energy-savings benefits that EPCA might capture
through adoption of an appropriate energy conservation standard(s),
a result contrary to the statute's goals. The same principle holds
in the context of innovative vent-sharing technologies, because in
addressing difficult installations, the January 15, 2021 final
interpretive rule essentially undermines a significant component of
the market for such technological solutions. Rather than encourage a
technological solution with a high energy-savings potential, the
Department has come to see that the January 15, 2021 final
interpretive rule inappropriately substituted maintenance of a
status quo with lower energy-savings potential.
---------------------------------------------------------------------------
DOE would also clarify that the present case of non-condensing gas-
fired residential furnaces and commercial water heaters is
distinguishable from certain other products that the Department has
regulated in the past, such as space-constrained central air
conditioners and ventless and compact clothes dryers. DOE explained in
two direct final rules that the latter products necessitated design
differences related to their reduced size or ventless operation that
inherently limited their energy efficiency, and the agency set separate
classes on that basis. For ventless clothes dryers, DOE also found that
certain consumers (e.g., high-rise apartment dwellers) might not be
able to have a clothes dryer at all, unless a ventless option were
available. See 76 FR 37408, 37439-37440 (June 27, 2011); 76 FR 22454,
22485 (April 21, 2011). In contrast, there are insufficient data to
show that consumers would be without furnace and water heater options
in the absence of non-condensing furnaces and water heaters.
Furthermore, the subject non-condensing furnaces and water heaters are
not significantly different in overall footprint or size from their
condensing counterparts (although the composition of the venting used
may be different), and the energy efficiency differences are a result
of the technology used, a design parameter that is dictated by
considerations other than size.
The second option for resolving difficult installation situations
would be for the consumer to replace a gas-fired furnace or water
heater with an electric heat pump or water heater, thereby
[[Page 48056]]
obviating the need for extensive changes to existing venting. Consumers
routinely make such choices where they deem it appropriate, which
reflects an economic decision. This option would accommodate the needs
of consumers who are predominantly concerned with loss of usable space
or aesthetics \9\ because it would obviate the need to make significant
changes to the residential or commercial space. Nothing in EPCA
precludes such effects, as long as DOE's standard would not eliminate
the appliance of that fuel type entirely, and in this case, maintaining
non-condensing and condensing units under a single class of product or
equipment would not eliminate the availability of natural gas, propane,
or other fuel type models from the U.S. market.
---------------------------------------------------------------------------
\9\ DOE notes that in the January 15, 2021 final interpretive
rule, the Department clarified that in discussing ``aesthetics,'' it
sought to distinguish between purely subjective considerations
(e.g., even the slightest change in color or shape) and physical
modifications to a dwelling or business that would be appreciably
noticed by the consumer and impact the use of the living or
commercial space. In that final interpretive rule, DOE explained
that it would limit consideration of performance-related features to
the latter group, because a proliferation of product/equipment
classes was neither intended nor desired. 86 FR 4776, 4799-4800.
However, in this current proposed interpretive rule, the option to
replace a non-condensing, gas-fired appliance with a comparable
electric appliance empowers individual consumers to make the choice
of when aesthetic concerns warrant such change.
---------------------------------------------------------------------------
It bears noting that while EPCA recognizes that various fuel types
exist in the appliance marketplace and provides certain protections, it
does not directly address fuel switching or mandate that DOE take
regulatory action to preclude such marketplace effects. In certain
appropriate cases, Congress set statutory energy conservation standard
levels for products, such as consumer water heaters (see 42 U.S.C.
6295(e)(1)) and consumer boilers (see 42 U.S.C. 6295(f)(3)), based on
fuel type (e.g., gas, oil, electricity). EPCA also recognizes
differences in fuel type under 42 U.S.C. 6295(q)(1)(A), which provides
for setting separate classes where appliances ``consume a different
kind of energy from that consumed by other covered products within such
type (or class).'' Notably, however, ECPA's ``features'' provision at
42 U.S.C. 6295(o)(4) does not include fuel type within its ambit. Thus,
Congress structured EPCA to recognize fuel-type distinctions and to
create a level playing field, while balancing the need for overall
energy savings. In historically implementing the Appliance Standards
Program, DOE has similarly sought to adhere to a policy of fuel
neutrality, where consistent with EPCA. DOE develops energy
conservation standards in compliance with the statutory requirements of
EPCA, which does not generally involve cross-class comparisons for
standard setting. Although DOE typically analyzes fuel-switching
effects, the agency is generally free to set an appropriate level under
the applicable statutory criteria regardless of any ancillary fuel-
switching effects. Thus, to the extent the January 15, 2021 final
interpretive rule sought to enshrine an agency obligation to prevent
fuel-switching, such action was without statutory basis. Moreover, DOE
finds the Gas Industry Petitioners' arguments about potential fuel
switching to be likely overstated for the reasons explained
subsequently.
To start, the January 15, 2021 final interpretive rule was
misguided in suggesting that any rule that would result in fuel
switching violates the fuel neutrality principle, because fuel
switching occurs frequently and most certainly in the context of new
energy conservation standards. Fuel switching is a natural part of
market operation for the subject appliances, and it may occur even in
the absence of amended energy conservation standards. Installation
costs may influence consumer decisions regarding fuel choice, and at
any time, a segment of consumers may choose replacement products that
rely on a different fuel source than that of the unit being replaced.
With that said, the mere potential for fuel switching should not serve
as the basis for establishment of a performance-related feature under
EPCA.
The appropriate threshold for when fuel switching violates the fuel
neutrality principle requires a degree of fuel switching that is much
greater than typically found in DOE energy conservation standards
rulemakings. Given DOE's policy of fuel neutrality and because fuel
switching may be impacted by the adoption of standards, when conducting
an energy conservation standards rulemaking, the Department routinely
accounts for potential fuel switching in its consumer choice model,
which is one part of its full suite of analyses. In certain
applications, consumers may choose to replace natural gas or propane
gas products with electric products that provide the same utility in
the face of changed standards. The extent to which consumers might
replace natural gas or propane products with electric products is
dependent in part on the stringency of the standards.\10\ See e.g., 81
FR 65720, 65791-65793 (Sept. 23, 2016). DOE has typically found fuel
switching to occur in a small number of cases in any given rulemaking,
and based upon currently available information, the Department does not
expect that instances of fuel switching would be significantly
different for the subject residential furnaces, commercial water
heaters, and similarly-situated products or equipment.
---------------------------------------------------------------------------
\10\ For the trial standard levels evaluated in the September
2016 SNOPR, DOE estimated between 1.5 percent and 16.0 percent of
customers would replace a non-weatherized gas furnace with either a
heat pump or an electric furnace, depending on the stringency of the
evaluated standard levels.
---------------------------------------------------------------------------
For example, DOE notes that it was required by statute in a prior
rulemaking to consider differential standards for small furnaces based
upon input capacity as a means to address fuel switching. Specifically,
under 42 U.S.C. 6295(f)(1)(B), Congress directed DOE to consider the
appropriate standard level to be set for furnaces with an input
capacity of less than 45 kBtu/h. In doing so, Congress directed DOE to
consider a standard level within a specified range that was not likely
to result in a significant shift from gas heating to electric
resistance heating with respect to either residential construction or
furnace replacement. Id. See also 54 FR 47916 (Nov. 17, 1989) (final
rule adopting energy conservation standards for ``small'' furnaces). In
the September 2016 Furnace SNOPR, DOE considered the potential for
reduction of fuel-switching in proposing the capacity-based standards.
81 FR 65720, 65755 (Sept. 23, 2016). Regarding commercial water
heaters, DOE initially determined that fuel switching beyond the
continuation of historical trends would be unlikely due to differences
in operating costs and differences in hot water delivery capacity. 81
FR 34440, 34494 (May 31, 2016). Although the Gas Industry Petitioners
made vocal arguments to the contrary about fuel switching in support of
their petition and in the context of various rulemaking proceedings,
they did not provide data to substantiate these claims.
In this case, there is insufficient evidence that fuel switching
would be greater than is typically encountered in DOE rulemakings. DOE
notes that the incidence of fuel switching for the subject appliances
may be mitigated further by the availability of technological solutions
such as the vent-sharing device discussed previously. For all of these
reasons, DOE does not find potential fuel switching alone to be a basis
to support a determination that non-condensing technology and
associated venting constitute a performance-related feature.
[[Page 48057]]
Based on the foregoing discussion, DOE proposes to revise its
interpretation of EPCA's ``features'' provision in the context of
condensing and non-condensing technology used in furnaces, water
heating equipment, and similarly-situated appliances (where permitted
by EPCA) along the lines discussed previously. Accordingly, DOE
tentatively concludes that in the context of residential furnaces,
commercial water heaters, and similarly-situated products/equipment,
use of non-condensing technology (and associated venting) is not a
performance-related ``feature'' for the purpose of the EPCA
prohibitions at 42 U.S.C. 6295(o)(4) and 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa).
III. Conclusion
DOE has initially determined that its proposed interpretation is
the best reading of the language of EPCA and DOE's statutory obligation
to establish energy conservation standards for covered products and
equipment. Additionally, the proposed interpretation would allow DOE to
consider more efficient standards for certain products and equipment.
DOE is proposing to revise its application of the ``features''
provisions in 42 U.S.C. 6295(o)(4) and 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa) as an interpretive rule within the meaning
of the Administrative Procedure Act (APA). 5 U.S.C. 551(4); 5 U.S.C.
553(b). DOE is publishing this proposed interpretive rule to solicit
comment and to provide the public with a clear and transparent
explanation of DOE's view of a specific legal question, thereby
following a process similar to that which resulted in the January 2021
final interpretive rule.
DOE wishes to make clear that an interpretive rule is a type of
rule or regulation within the meaning of those terms in the
Administrative Procedure Act, 5 U.S.C. 551(4). It is well established
under the APA that agencies have the authority to issue interpretive
rules, and that these rules are a valuable tool for an agency to use to
advise the public prospectively and in a clear and transparent manner
of the agency's construction of a statute it administers.
Once again, it is noted that DOE withdrew its March 12, 2015
proposed rule and September 23, 2016 supplemental proposed rule for
energy conservation standards for non-weatherized gas furnace and
mobile home gas furnaces, as well as its May 31, 2016 proposed rule for
energy conservation standards for commercial water heating equipment,
for further proceedings consistent with the interpretation contained in
the January 15, 2021 final interpretive rule. 86 FR 4776, 4817 (Jan.
15, 2021); see also 86 FR 3873 (Jan. 15, 2021). As explained in this
document, DOE is once again examining its interpretation of the
relevant statutory provisions in the context of residential furnaces,
commercial water heating equipment, and similarly-situated products/
equipment. When this proceeding is complete, DOE plans to again
evaluate whether amended energy conservation standards would result in
significant savings of energy, be technologically feasible, and be
economically justified, consistent with its latest interpretation.
However, in any future rulemaking, DOE would make clear that the
rulemakings for residential furnaces and commercial water heating
equipment have been subject to multiple rounds of public comment,
including public meetings, and that extensive records have been
developed in the relevant dockets. (See Docket Number EERE-2014-BT-STD-
0031 and Docket Number EERE-2014-BT-STD-0042, respectively).
Consequently, DOE wishes to reassure stakeholders that the information
obtained through those earlier rounds of public comment, information
exchange, and data gathering have not gone to waste. Instead, DOE
anticipates building upon the existing record through further notice
and comment rulemaking. Such an approach also reflects DOE's cognizance
of the statutory deadlines associated with the energy conservation
standards for residential furnaces and commercial water heating
equipment.
Review Under Executive Order 12866
The Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) waived review of this proposed
interpretive rule under Executive Order 12866, ``Regulatory Planning
and Review.'' 58 FR 51735 (Oct. 4, 1993).
IV. Public Participation
DOE invites all interested parties to submit in writing by the date
listed in the DATES section of this document, comments and information
regarding this proposed interpretive rule. Interested parties may
submit comments, data, and other information using any of the methods
described in the ADDRESSES section at the beginning of this document.
Submitting comments via <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>
provides after you have successfully uploaded your comment.
Submitting comments via email. Comments and documents submitted via
email also will be posted to <a href="http://www.regulations.gov">www.regulations.gov</a>. 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,
[[Page 48058]]
and other information to DOE. 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).
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this
notification of proposed interpretive rule.
Signing Authority
This document of the Department of Energy was signed on August 17,
2021, by Kelly Speakes-Backman, Principal Deputy Assistant Secretary
and Acting 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 August 18, 2021.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2021-18017 Filed 8-26-21; 8:45 am]
BILLING CODE 6450-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 27, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.