Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Proposed Rules 48049 

Mississippi, Missouri, Arkansas, 

Virginia, Oklahoma, and New Mexico) 

to attend its annual meeting on February 

3, 2021. Most of the Executive Directors 

for certified peanut producer 

organizations attended this meeting. All 

the Board’s meetings are open to the 

public and interested persons are 

invited to participate and express their 

views. The Board announced that it 

voted to increase the threshold level 

from 10,000 to 20,000 per ton on a 3- 

year average production for a state to 

become a primary peanut-producing 

state. No concerns were raised. 

We have performed this initial RFA 

analysis regarding the impact of this 

proposed action on small entities, and 

we invite comments concerning 

potential effects of this action on small 

businesses. 

USDA has determined that this 

proposed rule is consistent with and 

would effectuate the purposes of the 

1996 Act. A 30-day comment period is 

provided to allow interested persons to 

respond to this proposal. All written 

comments received in response to this 

proposed rule will be considered prior 

to finalizing this action. 

List of Subjects in 7 CFR Part 1216 

Administrative practice and 

procedure, Advertising, Consumer 

information, Marketing agreements, 

Peanut promotion, Reporting and 

recordkeeping requirements. 

For reasons set forth in the preamble, 

7 CFR part 1216 is proposed to be 

amended as follows: 

PART 1216—PEANUT PROMOTION, 

RESEARCH, AND INFORMATION 

ORDER 

■ 1. The authority citation for 7 CFR 

part 1216 continues to read as follows: 

Authority: 7 U.S.C. 7411–7425; 7 U.S.C. 

7401. 

■ 2. Section 1216.15 is revised to read 

as follows: 

§ 1216.15 Minor peanut-producing states. 

Minor peanut-producing states means 

all peanut-producing states with the 

exception of Alabama, Arkansas, 

Florida, Georgia, Mississippi, Missouri, 

North Carolina, Oklahoma, South 

Carolina, Texas and Virginia. 

■ 3. Section 1216.21 is revised to read 

as follows: 

§ 1216.21 Primary peanut-producing 

states. 

Primary peanut-producing states 

means Alabama, Arkansas, Florida, 

Georgia, Mississippi, Missouri, North 

Carolina, Oklahoma, South Carolina, 

Texas and Virginia, provided these 

states maintain a 3-year average 

production of at least 20,000 tons of 

peanuts. 

■ 4. In § 1216.40, paragraphs (a) 

introductory text and (a)(1) are revised 

to read as follows: 

§ 1216.40 Establishment and membership. 

(a) Establishment of a National 

Peanut Board. There is hereby 

established a National Peanut Board, 

hereinafter called the Board, comprised 

of no more than 12 peanut producers 

and alternates, appointed by the 

Secretary from nominations as follows: 

(1) Eleven members and alternates. 

One member and one alternate shall be 

appointed from each primary peanutproducing state, who are producers and 

whose nominations have been 

submitted by certified peanut producer 

organizations within a primary peanutproducing state. 

* * * * * 

Bruce Summers, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2021–18536 Filed 8–26–21; 8:45 am] 

BILLING P 

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. 

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 

www.regulations.gov. 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 ResFurnaceCommWaterHeater

2018STD0018@ee.doe.gov. 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 


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48050 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Proposed Rules 

1All references to EPCA in this document refer 

to the statute as amended through the Energy Act 

of 2020, Public Law 116–260 (Dec. 27, 2020). 

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)) 

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/ 

#!docketDetail;D=EERE-2018-BT-STD0018. 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: 

ApplianceStandardsQuestions@

ee.doe.gov. 

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: 

Eric.Stas@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. 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) 

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 performancerelated 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 morestringent 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. 

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 


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3See pp. 3–59 of the technical support document, 

available at www.regulations.gov/document/EERE– 

2007-BT-STD-0010-0053. 

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 reevaluate 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 toploading 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

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 performancerelated 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 


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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). 

5The 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). 

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 noncondensing 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 noncondensing 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. 

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). 

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 nonweatherized 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 


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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 


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6Specifically, 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. 

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. 

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 waterheating 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 


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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: web.ornl.gov/sci/buildings/docs/ 

Condensing-Furnace-Venting-Part1-Report.pdf) 

(Last accessed May 6, 2021). 

8Although 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 ventsharing 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. 

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 noncondensing 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 noncondensing 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). 

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 


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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. 

10For 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. 

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. 

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 fuelswitching effects, the agency is 

generally free to set an appropriate level 

under the applicable statutory criteria 

regardless of any ancillary fuelswitching 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. 

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 fuelswitching in proposing the capacitybased 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 ventsharing 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. 


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Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Proposed Rules 48057 

Based on the foregoing discussion, 

DOE proposes to revise its interpretation 

of EPCA’s ‘‘features’’ provision in the 

context of condensing and noncondensing 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 noncondensing 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 nonweatherized 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 

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. 

Comments and documents submitted 

via email 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, 


lotter on DSK11XQN23PROD with PROPOSALS1
48058 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Proposed Rules 

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 

DEPARTMENT OF ENERGY 

10 CFR Part 431 

[EERE–2019–BT–STD–0018] 

RIN 1904–AE12 

Energy Conservation Program: Energy 

Conservation Standards for 

Distribution Transformers, Webinar 

and Availability of the Preliminary 

Technical Support Document 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notification of a webinar and 

availability of preliminary technical 

support document. 

SUMMARY: The U.S. Department of 

Energy (DOE) will hold a webinar to 

discuss and receive comments on the 

preliminary analysis it has conducted 

for purposes of evaluating energy 

conservation standards for distribution 

transformers. The webinar will cover 

the analytical framework, models, and 

tools that DOE is using to evaluate 

potential standards for this equipment; 

the results of preliminary analyses 

performed by DOE for this equipment; 

the potential energy conservation 

standard levels derived from these 

analyses that DOE could consider for 

this product should it determine that 

proposed amendments are necessary; 

and any other issues relevant to the 

evaluation of energy conservation 

standards for distribution transformers. 

In addition, DOE encourages written 

comments on these subjects. 

DATES: 

Meeting: DOE will hold a webinar on 

Wednesday, September 29, 2021, from 

10 a.m. to 2 p.m. See section IV, ‘‘Public 

Participation,’’ for webinar registration 

information, participant instructions 

and information about the capabilities 

available to webinar participants. 

Comments: Written comments and 

information will be accepted on or 

before, November 10, 2021. 

ADDRESSES: Interested persons are 

encouraged to submit comments using 

the Federal eRulemaking Portal at 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit comments, identified by docket 

number EERE–2019–BT–STD–0018, by 

any of the following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments.

2. Email: to DistributionTransfromers

2019STD0018@ee.doe.gov. Include 

docket number EERE–2019–BT–STD– 

0018 in the subject line of the message. 

No telefacsimiles (‘‘faxes’’) will be 

accepted. For detailed instructions on 

submitting comments and additional 

information on this process, see section 

IV of this document. 

Although DOE has routinely accepted 

public comment submissions through a 

variety of mechanisms, including the 

Federal eRulemaking Portal, email, 

postal mail, or 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. 

Docket: The docket for this activity, 

which includes Federal Register 

notices, comments, public meeting 

transcripts, 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, some documents listed in the 

index, such as those containing 

information that is exempt from public 

disclosure, may not be publicly 

available. 

The docket web page can be found at 

www.regulations.gov/docket?D=EERE2019-BT-STD-0018. The docket web 

page contains instructions on how to 

access all documents, including public 

comments in the docket. See section IV 

for information on how to submit 

comments through 

www.regulations.gov. 

To inform interested parties and to 

facilitate this process, DOE has prepared 

an agenda, a preliminary technical 

support document (‘‘TSD’’), and briefing 

materials, which are available on the 


lotter on DSK11XQN23PROD with PROPOSALS1