Energy Conservation Program for Appliance Standards: Energy Conservation Standards for Residential Furnaces and Commercial Water Heaters, 60090-60096 [2020-20773]
Download as PDF
60090
Proposed Rules
Federal Register
Vol. 85, No. 186
Thursday, September 24, 2020
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF ENERGY
10 CFR Parts 430 and 431
Energy Conservation Program for
Appliance Standards: Energy
Conservation Standards for
Residential Furnaces and Commercial
Water Heaters
Office of Energy Efficiency and
Renewable Energy, U.S. Department of
Energy.
AGENCY:
Notice of supplemental
proposed interpretive rule; request for
comment.
ACTION:
In response to a petition for
rulemaking submitted on October 18,
2018 (Gas Industry Petition), the
Department of Energy (DOE) published
that petition in the Federal Register on
November 1, 2018, for public review
and input, and DOE subsequently
published a proposed interpretive rule
in the Federal Register on July 11, 2019,
which tentatively determined that in the
context of residential furnaces,
commercial water heaters and similarlysituated products/equipment, use of
non-condensing technology (and
associated venting) may constitute a
performance-related ‘‘feature’’ under the
Energy Policy and Conservation Act
(EPCA) that cannot be eliminated
through adoption of an energy
conservation standard. After carefully
considering the public comments on its
proposed interpretive rule, DOE has
tentatively determined to consider a
more involved class structure which
turns on maintenance of compatibility
with existing venting categories, and the
Department seeks further information
on the potential feasibility, burdens, and
other implications of implementing
such a venting-compatibility approach.
DOE requests comments limited in
scope to this issue, after which DOE will
respond to not only this matter, but also
to all of the other topics raised in
comments on the July 2019 notice of
proposed interpretive rule.
SUMMARY:
VerDate Sep<11>2014
16:41 Sep 23, 2020
Jkt 250001
Written comments and
information are requested on or before
October 26, 2020.
ADDRESSES: Interested persons are
encouraged to submit comments,
identified by ‘‘Energy Conservation
Standards for Residential Furnaces and
Commercial Water Heaters,’’ by any of
the following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Email: ResFurnaceCommWaterHeater
2018STD0018@ee.doe.gov. Include
Docket No. EERE–2018–BT–STD–0018
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.
Postal Mail: Appliance and
Equipment Standards Program, U.S.
Department of Energy, Building
Technologies Office, Mailstop EE–5B,
1000 Independence Avenue SW,
Washington, DC 20585–0121. If
possible, please submit all items on a
compact disc (CD), in which case it is
not necessary to include printed copies.
Hand Delivery/Courier: Appliance
and Equipment Standards Program, U.S.
Department of Energy, Building
Technologies Office, 950 L’Enfant Plaza
SW, Suite 600, Washington, DC 20024.
Telephone: (202) 287–1445. If possible,
please submit all items on a CD, in
which case it is not necessary to include
printed copies.
No telefacsimiles (faxes) will be
accepted. For detailed instructions on
submitting comments and additional
information, see section IV of this
document (Public Participation).
Docket: For access to the docket to
read background documents, or
comments received, go to the Federal
eRulemaking Portal at: https://
www.regulations.gov/docket?D=EERE2018-BT-STD-0018.
FOR FURTHER INFORMATION CONTACT:
Ms. Lysia Bowling, Senior Advisor,
U.S. Department of Energy, Office of
Energy Efficiency and Renewable
Energy, 1000 Independence Avenue
SW, Washington, DC 20585. Telephone:
(202) 430–1257. Email: Lysia.Bowling@
ee.doe.gov.
Mr. Eris Stas, U.S. Department of
Energy, Office of the General Counsel,
1000 Independence Avenue SW,
Washington, DC 20585. Telephone:
DATES:
PO 00000
Frm 00001
Fmt 4702
Sfmt 4702
(202) 586–5827. Email: Eric.Stas@
hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Summary Description
A. Relevant Statutory Provisions
B. DOE’s Historical Interpretation
C. The Gas Industry Petition
D. DOE’s Proposed Interpretive Rule
III. Discussion of Issues Regarding
Structuring of Potential Product/
Equipment Classes
IV. Public Participation
V. Approval of the Office of the Secretary
I. Background
On October 18, 2018, the Department
received a petition for rulemaking
submitted by the American Public Gas
Association (APGA), Spire, Inc., the
Natural Gas Supply Association
(NGSA), the American Gas Association
(AGA), and the National Propane Gas
Association (NPGA), 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
the Energy Policy and Conservation Act
of 1975 1 (EPCA; 42 U.S.C. 6291 et seq.),
as amended (i.e., by setting standards
which can only be met by products/
equipment using condensing
combustion technology and thereby
precluding the distribution in commerce
of products/equipment using noncondensing combustion technology) and
(2) withdraw the proposed energy
conservation standards for residential
furnaces 2 and commercial water
heaters 3 based upon such findings. DOE
published the petition in the Federal
Register on November 1, 2018 (83 FR
54883) and requested public comment,
1 All references to EPCA in this document refer
to the statute as amended through America’s Water
Infrastructure Act of 2018, Public Law 115–270
(Oct. 23, 2018).
2 Standards for non-weatherized residential
furnaces were published in a notice of proposed
rulemaking at 80 FR 13120 (March 12, 2015)
(Docket No. EERE–2014–BT–STD–0031–0032) and
in a supplemental notice of proposed rulemaking at
81 FR 65720 (Sept. 23, 2016) (Docket No. EERE–
2014–BT–STD–0031–0230).
3 Standards for commercial water heating
equipment were published in a notice of proposed
rulemaking at 81 FR 34440 (May 31, 2016) (Docket
No. EERE–2014–BT–STD–0042).
E:\FR\FM\24SEP1.SGM
24SEP1
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Proposed Rules
A. Relevant Statutory Provisions
In this notice, DOE explains its
historical interpretation regarding the
evaluation of what constitutes a product
‘‘feature’’ which cannot be eliminated
under EPCA, specifically in the context
of residential furnaces and commercial
water heaters. For covered consumer
products, the key statutory provision at
issue can be found at 42 U.S.C.
6295(o)(4), which provides that the
Secretary may not prescribe an amended
or new standard under this section 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.
Where the Secretary finds such
‘‘performance characteristics (including
reliability), features, sizes, capacities,
and volumes’’ (collectively referred to
hereafter as ‘‘features’’) to exist, the
statute provides a remedy at 42 U.S.C.
6295(q)(1), which states that a rule
prescribing an energy conservation
standard for a type (or class) of covered
products shall specify a level of energy
use or efficiency higher or lower than
that which applies (or would apply) for
such type (or class) for 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 group (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 under 42 U.S.C.
6295(q)(1) concerning whether a
performance-related feature justifies the
establishment of a higher or lower
standard, the Secretary shall consider
such factors as the utility to the
consumer of such a feature, and such
other factors as the Secretary deems
appropriate.
These provisions also apply to
covered non-ASHRAE 5 commercial and
industrial equipment through the
crosswalk provision at 42 U.S.C.
6316(a). (Under the statute, ‘‘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,
4 See 42 U.S.C. 6295(o)(4); 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa); and as applicable in certain
cases through 42 U.S.C. 6316(a)).
5 ‘‘ASHRAE’’ refers to the American Society of
Heating, Refrigerating and Air-Conditioning
Engineers.
with a comment period scheduled to
close on January 30, 2019. DOE received
two requests from interested parties
seeking an extension of the comment
period in order to develop additional
data relevant to the petition. DOE
granted those requests through
publication in the Federal Register of a
notice extending the comment period on
the notice of petition for rulemaking
until March 1, 2019. 84 FR 449 (Jan. 29,
2019).
The 90-day public comment period,
including the 30-day extension to
submit comments, invited public input
in order to better understand
stakeholder perspectives and increase
transparency around a complex issue
involving DOE’s legal authority. DOE
received comments from a variety of
stakeholders, including representatives
from gas industry associations, the
manufactured housing industry,
efficiency advocates, consumer
advocates, State organizations and
Attorneys General, and individuals
(mostly form letter comments). In
general, the gas industry associations
and the manufactured housing industry
supported the petition, and the
advocates and State officials opposed it.
After carefully considering the
comments on the petition, DOE
published a notice of proposed
interpretive rule in the Federal Register
on July 11, 2019 to provide the public
additional information about DOE’s
tentative interpretation of EPCA’s
‘‘features’’ provision 4 in the context of
condensing vs. non-condensing furnaces
and water heaters, as informed by
public comments. 84 FR 33011. Once
again, DOE received comments from a
variety of stakeholders, including
representatives from gas industry
associations, the housing industry,
appliance manufacturers, utilities,
environmental and efficiency advocates,
consumer advocates, State organizations
and Attorneys General, and individuals.
DOE plans to respond to these
comments, and the issues raised therein,
fully in a subsequent document, after
receiving comment on the topic
presented in this supplemental notice of
proposed interpretive rule.
II. Summary Description
VerDate Sep<11>2014
16:41 Sep 23, 2020
Jkt 250001
PO 00000
Frm 00002
Fmt 4702
Sfmt 4702
60091
packaged terminal air conditioners
(PTACs), packaged terminal heat pumps
(PTHPs), warm-air furnaces, packaged
boilers, storage water heaters,
instantaneous water heaters, or unfired
hot water storage tanks, which are
addressed by ASHRAE in ASHRAE
Standard 90.1, Energy Standard for
Buildings Except Low-Rise Residential
Buildings.)
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 similar ‘‘features’’ provision
which states, ‘‘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 adopting the levels set by ASHRAE.
Congress was clearly aware of the
features issue, and it chose to act in the
context of DOE standard setting, but not
ASHRAE standard setting. There is
likewise no companion provision to 42
U.S.C. 6295(q)(1) for ASHRAE
equipment.
B. DOE’s Historical Interpretation
With this statutory background in
mind, in the March 12, 2015, notice of
proposed rulemaking (NOPR) for energy
conservation standards for residential
furnaces, DOE set forth in detail its
rationale for why it did not considering
the venting of non-condensing furnaces
to constitute a product ‘‘feature’’ under
42 U.S.C. 6295(o)(4). 80 FR 13120,
13137–13138.
As discussed previously, when
evaluating and establishing energy
conservation standards, the statute
requires DOE to divide covered
products into product classes by the
E:\FR\FM\24SEP1.SGM
24SEP1
60092
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Proposed Rules
type of energy used, by capacity, or by
other performance-related features that
justify a different standard. In making a
determination whether a performancerelated feature justifies a different
standard, DOE 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)) Historically, DOE has viewed
utility as an aspect of the product that
is accessible to the layperson and is
based on user operation, rather than
performing a theoretical function. This
interpretation has been implemented
consistently in DOE’s previous
rulemakings by determining utility
through the value the item brings to the
consumer, rather than through
analyzing more complicated design
features, 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)).
Under EPCA, DOE has typically
addressed consumer utility by
establishing separate product classes or
otherwise taken action when a
consumer may value a product feature
based on the consumer’s everyday
needs. For instance, DOE has
determined that it would be
impermissible under 42 U.S.C.
6295(o)(4) to include elimination of
oven door windows as a technology
option to improve the energy efficiency
of cooking products.6 DOE reached this
conclusion based upon how consumers
typically use the product: Peering
through the oven window to judge if an
item is finished cooking, as opposed to
checking the timer and/or indicator
light or simply opening the oven door
(which could waste more energy) to see
if the item is finished cooking. DOE has
also determined that consumers may
value other qualities such as ability to
self-clean,7 size,8 and configuration.9
This determination, however, can
change depending on technological
developments and shifts in consumer
behavior/preferences, and it is
conceivable that certain products may
6 63
FR 48038, 48041 (Sept. 8, 1998).
FR 62034, 62048 (Oct. 17, 2008) (separating
standard ovens and self-cleaning ovens into
different product classes).
8 77 FR 32307, 32319 (May 31, 2012) (creating a
separate product class for compact front-loading
residential clothes washers).
9 75 FR 59469, 59487 (Sept. 27, 2010) (creating a
separate product class for refrigerators with bottommounted freezers).
7 73
VerDate Sep<11>2014
16:41 Sep 23, 2020
Jkt 250001
disappear from the market entirely due
to shifting consumer demand. DOE
stated that it has determined such value
on a case-by-case basis through its own
research, as well as public comments
received.
DOE offered a cautionary note that
disparate products may have very
different consumer utilities, thereby
making direct comparisons difficult and
potentially misleading. For instance, 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 (e.g., an
apartment in a high-rise building). As
explained in that April 2011 direct final
rule technical support document,
ventless dryers can be installed in
locations where venting dryers would
be precluded due to venting restrictions.
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. 74 FR 65852, 65871 (Dec. 11,
2009). DOE found that regardless of
these installation factors, the heat pump
water heater and the conventional water
heater still had the same utility to the
consumer: Providing hot water. Id. In
both cases, DOE made its finding based
on consumer type and utility type,
rather than product design criteria that
impact product efficiency.
DOE expressed concern that 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 for the
consumer. DOE stated that it was very
concerned that determining features
solely on product technology could
undermine the Department’s Appliance
Standards Program. DOE reasoned that
if it is required to maintain separate
product classes to preserve less-efficient
technologies, future advancements in
the energy efficiency of covered
products would become largely
voluntary, an outcome which seems
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
inimical to Congress’s purposes and
goals in enacting EPCA.
Turning to the product at issue in that
rulemaking, DOE noted that residential
furnaces are currently divided into
several product classes. For example,
furnaces are separated into product
classes based on their fuel source (gas,
oil, or electricity), which is required by
statute. In the most recent rulemaking
for that covered product, DOE analyzed
only two product classes for residential
furnaces: (1) Non-weatherized gas-fired
furnaces (NWGFs) and (2) mobile home
gas-fired furnaces (MHGFs). DOE did
not additionally separate NWGFs and
MHGFs into condensing and
noncondensing product classes.
In that rulemaking, DOE tentatively
concluded that the methods by which a
furnace is vented did not provide any
separate performance-related impacts,
and, therefore, that DOE had no
statutory basis for defining a separate
class based on venting and drainage
characteristics. DOE reasoned that
NWGF and MHGF venting methods did
not provide unique utility to consumers
beyond the basic function of providing
heat, which all furnaces perform. Using
this logic, the possibility that installing
a non-condensing furnace may be less
costly than a condensing furnace due to
the difference in venting methods did
not justify separating the two types of
NWGFs into different product classes.
Unlike the consumers of ventless dryers,
which DOE had determined to be a
performance-related feature based on
the impossibility of venting in certain
circumstances (e.g., high-rise
apartments), DOE reasoned that
consumers of condensing NWGFs are
homeowners that may either use their
existing venting or have a feasible
alternative to obtain heat. In other
words, homeowners would still be able
to obtain heat regardless of the venting.
In contrast, DOE reasoned that a
resident of a high-rise apartment or
condominium building that is not
architecturally designed to
accommodate vented clothes dryers
would have no option in terms of
installing and enjoying the utility of a
dryer in their home unless he or she
used a ventless dryer.
As explained previously, DOE’s
conclusion in the March 12, 2015,
NOPR was that the utility of a furnace
involves providing heat to a consumer.
DOE reasoned that such utility is
provided by any type of furnace, but to
the extent that a consumer has a
preference for a particular fuel type
(e.g., gas), improvements in venting
technology may eventually allow a
consumer to obtain the efficiency of a
condensing furnace using the existing
E:\FR\FM\24SEP1.SGM
24SEP1
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Proposed Rules
venting in a residence by sharing
venting space with water heaters. DOE
postulated that this update in
technology would significantly reduce
the cost burden associated with
installing condensing furnaces and
reduce potential instances of
‘‘orphaned’’ water heaters, where the
furnace and water heater can no longer
share the same venting (due to one unit
being condensing and the other
noncondensing). In other words, when
mature, this technology could allow
consumers to switch from a noncondensing furnace to a condensing
furnace in a greater variety of
applications, such as urban row houses.
For more information, interested parties
were asked to consult appendix 8L of
the NOPR TSD.
C. The Gas Industry Petition
As noted previously, on October 18,
2018, DOE received a petition from 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
the Energy Policy and Conservation Act
of 1975, as amended (i.e., by setting
standards which can only be met by
products/equipment using condensing
combustion technology) and (2)
withdraw the proposed energy
conservation standards for residential
furnaces and commercial water heaters
based upon such findings. In their
petition, the Gas Industry Petitioners
argue that DOE misinterpreted its
mandate under section 325(o)(4) of
EPCA by failing to consider as a
‘‘feature’’ of the subject residential
furnaces and commercial water heating
equipment the compatibility of a
product/equipment with conventional
atmospheric venting systems and the
ability to operate without generating
liquid condensate requiring disposal via
a plumbing connection. Consequently,
the Gas Industry Petitioners assert that
DOE’s proposals would make
unavailable non-condensing products/
equipment with such features, which
currently exist in the marketplace, in
contravention of the statute. The
petition makes a number of technical,
legal, and economic arguments in favor
of its suggested interpretation, and it
points to DOE’s past precedent related
to space constraints and differences in
available electrical power supply (and
associated installation costs) as
supporting its call to find that noncondensing technology amounts to a
performance-related ‘‘feature.’’ Based
upon these arguments, the Gas Industry
VerDate Sep<11>2014
16:41 Sep 23, 2020
Jkt 250001
Petitioners concluded that DOE should
issue an interpretive rule treating noncondensing technology as a ‘‘feature’’
under EPCA, withdraw its rulemaking
proposals for both residential furnaces
and commercial water heaters, and
proceed on the basis of this revised
interpretation.
D. DOE’s Proposed Interpretive Rule
As discussed in section I of this
document, DOE published a notice of
proposed interpretive rule in the
Federal Register on July 11, 2019. 84 FR
33011. In consideration of public
comments and other information
received on the Gas Industry Petition,
DOE proposed 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). Based on those
comments and for the reasons set forth
fully in that document, DOE proposed
to interpret prospectively the statute to
provide that adoption of energy
conservation standards that would limit
the market to natural gas and/or
propane gas furnaces, water heaters, or
similarly-situated products/equipment
(where permitted by EPCA) that use
condensing combustion technology
would result in the unavailability of a
performance related feature within the
meaning of 42 U.S.C. 6295(o)(4) and 42
U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as
applicable in certain cases through 42
U.S.C. 6316(a)).
As explained in the proposed
interpretive rule, the statute accords the
Secretary of Energy considerable
discretion in terms of determining
whether a performance characteristic of
a covered product/equipment amounts
to a performance-related feature which
cannot be eliminated through adoption
of an energy conservation standard.
DOE stated that it has taken the
opportunity presented by the Gas
Industry Petition to reconsider its
historical interpretation of EPCA’s
‘‘features’’ provision in the context of
condensing and non-condensing
technologies used by certain gas
appliances. Contrary to the petitioners’
assessment, DOE found this to be a close
case, with persuasive arguments on both
sides of the issue. However, a number
of factors convinced DOE to propose a
revision to its interpretation.
First, DOE acknowledged that it has,
in the past, taken space constraints and
similar limitations into account when
setting product classes (e.g., PTACs,
ventless clothes dryers). For example,
DOE was sensitive to the costs
associated with requiring expensive
PO 00000
Frm 00004
Fmt 4702
Sfmt 4702
60093
building modifications when it decided
to set separate equipment classes for
standard size PTACs and non-standard
size PTACs. 73 FR 58772 (Oct. 7, 2008).
DOE stated that it expects that similar
expenses would occur here, if DOE were
to hold to its historical interpretation, at
least for some subset of installations.
Although limited data were provided to
address the actual costs that consumers
and commercial customers would face
to modify their existing category I
venting, there is little doubt that some
number of such installations would be
quite costly. These more complicated/
costly installations are documented as
part of DOE’s analysis of the venting
costs for residential furnaces, which
considered potential venting
modifications that could be required
when replacing an existing category I
furnace with a condensing (category IV)
furnace (see appendix 8D of the 2016
SNOPR TSD for further details).
Second, DOE stated that it has in the
past focused on the consumer’s
interaction with the product/equipment
in deciding whether a performance
feature is at issue. In the context of
residential furnaces and commercial
water heaters, DOE has focused on the
primary function of the appliance (e.g.,
providing heat to a home or potable hot
water) in establishing the nexus to the
consumer. In the past, DOE opined that
consumers were only interested in
obtaining heat or hot water from the
appliance, so they would not care about
the mechanism for generating that end
product. However, commenters have
made clear that in at least some cases,
the physical changes associated with a
condensing appliance may change a
home’s aesthetics (e.g., by adding new
venting into the living space or
decreasing closet or other storage space),
thereby impacting consumer utility even
under DOE’s prior approach.
Third, DOE noted that it has been its
policy to remain neutral regarding
competing energy sources in the
marketplace. As certain commenters
have pointed out and as DOE’s own
analyses have shown, some enhanced
level of fuel switching is likely to
accompany standard setting using
DOE’s prior interpretation. Many
consumers who are currently gas
customers may show a proclivity for
that fuel type and would be negatively
impacted by a standard that requires the
purchase of a condensing unit to the
extent they feel compelled to change to
a different fuel type. DOE explained that
it seeks neither to determine winners
and losers in the marketplace nor to
limit consumer choice.
Finally, DOE stated that it is very
concerned about ensuring energy
E:\FR\FM\24SEP1.SGM
24SEP1
60094
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Proposed Rules
affordability, particularly for persons
with low incomes. Although energy
efficiency improvements may pay for
themselves over time, there is typically
a significant increase in first-cost
associated with furnaces and water
heaters using condensing technology.
For consumers with difficult installation
situations (e.g., inner-city row houses),
there would be the added cost of
potentially extensive venting
modifications. In certain cases,
commenters have argued that
accommodating condensing products
may not even be possible. Although
DOE continues to believe that costs are
properly addressed in the economic
analysis portion of its rulemakings, it
stated that it remains cognizant of such
issues. DOE stated that it has tentatively
concluded that the other reasons
discussed immediately above are
sufficient in and of themselves to justify
the Department’s proposed change in
interpretation, but it acknowledged
these cost impacts in order to be fully
transparent in terms of the agency’s
thinking.
The agency reasoned that creating
separate product classes for condensing
and non-condensing furnaces, water
heaters, and similarly-situated products/
equipment (where permitted by EPCA)
would prevent many of these potential
problems. Although DOE’s proposed
revised approach may have some impact
on overall energy saving potential as a
result of establishing separate product/
equipment classes, the Department
noted that that is not the touchstone of
EPCA’s ‘‘features’’ provision; through
that provision, Congress expressed its
will that certain product utilities will
take priority over additional energysaving measures. (For example, DOE did
not eliminate the oven window which
consumers found useful, despite the
potential for further energy savings.)
With that said, DOE expressed it belief
that any potentially negative
programmatic impacts of its revised
interpretation are likely to be limited.
DOE reasoned that the proposed
interpretation would be likely to impact
only a limited set of appliances, and
DOE noted that market trends have
favored the growing reach of condensing
furnaces, even as non-condensing
alternatives have remained available.
DOE stated that it has every reason to
believe that such trends will continue.
DOE sought to clarify the limitations
of its proposed revised interpretation,
based upon the existing statutory
provisions. As discussed previously,
DOE can effect this change for all
relevant consumer products, all nonASHRAE commercial and industrial
equipment, and ASHRAE equipment in
VerDate Sep<11>2014
16:41 Sep 23, 2020
Jkt 250001
those instances where DOE has clear
and convincing evidence to adopt levels
higher than the levels in ASHRAE
Standard 90.1.
As noted, additional, subsequent DOE
action would be required before the
interpretation in the proposed
interpretive rule could be implemented.
The proposed interpretive rule, even
once finalized, would not alter the
Department’s current regulations. This
interpretation does not and will not be
used to abrogate DOE’s responsibilities
under existing laws or regulations, nor
does it change DOE’s existing statutory
authorities or those of regulators at the
Federal, State, or local level. DOE
anticipates continued engagement and
productive involvement of members of
the public and the regulated community
in subsequent activities that may follow
this interpretation.
As discussed in the proposed
interpretive rule, DOE decided to grant
the Gas Industry Petition to the extent
that it proposed to prospectively
interpret the statute to provide that
adoption of energy conservation
standards that would limit the market of
natural gas and/or propane gas furnaces,
water heaters, or similarly-situated
products/equipment (where permitted
by EPCA) to appliances that use
condensing combustion technology
would result in the unavailability of a
performance related feature within the
meaning of 42 U.S.C. 6295(o)(4) and 42
U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as
applicable in certain cases through 42
U.S.C. 6316(a)). The proposal clarified
that such interpretation would apply to
all applicable residential products, nonASHRAE commercial equipment, and
ASHRAE equipment where DOE adopts
a level more stringent than the ASHRAE
level.
DOE stated that it is denying the Gas
Industry Petition as it pertains to those
rulemakings where ASHRAE sets
standard levels that trigger DOE to
consider and adopt those level (unless
DOE finds clear and convincing
evidence to adopt more-stringent
levels), due to lack of authority. DOE
also denied the Gas Industry Petition’s
request for DOE to withdraw the
proposed rules for residential furnaces
and commercial water heaters as
unnecessary. DOE stated that if the
interpretive rule were to be finalized, it
would anticipate developing
supplemental notices of proposed
rulemaking (SNOPRs) that would
implement the new legal interpretation
for those two rulemakings that were the
subject of the petition for rulemaking.
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
III. Discussion of Issues Regarding
Structuring of Potential Product/
Equipment Classes
DOE received a number of comments
with diverse views on the Department’s
proposed interpretive rule related to the
Gas Industry Petition, with some
supporting the proposal and others in
opposition. Once again, all of those
comments will be addressed by DOE in
a subsequent document. Consequently,
there is no need to repeat those
arguments, and interested parties are
instead asked to limit the scope of their
comments to the specific issue raised in
this supplemental notice of proposed
interpretive rule.
As noted previously, in its proposed
interpretive rule, DOE explored the
issue of whether non-condensing
technology (and associated venting)
constitutes a performance-related
‘‘feature’’ under 42 U.S.C. 6295(o)(4),10
as would support a separate product/
equipment class under 42 U.S.C.
6295(q)(1).11 84 FR 33011, 33015 (July
11, 2019). DOE initially assumed that if
it were to adopt an interpretation
consistent with the Gas Industry
Petition, it would suffice to set product/
equipment classes largely based upon
the key distinction of whether an
appliance utilizes condensing or noncondensing combustion technology.
However, a number of comments on the
proposed interpretive rule suggested
that such approach may not adequately
resolve the issue at hand, as presented
in the petition.
More specifically, while U.S. Boiler
(USB) generally agreed with DOE’s
revised interpretation, the commenter
argued that DOE has erred in focusing
on ‘‘non-condensing’’ technology as the
performance-related feature, suggesting
that the agency should instead focus on
Category I venting. According to USB,
Category II, III, and IV (as well as noncategorized direct vent furnaces and
boilers) are currently available using
non-condensing technology, but many
of the same problems identified in the
Gas Industry Petition still may arise.
USB stated that non-condensing
Category II, III, and IV appliances
generally share the same venting
consumer utility issues as condensing
appliances and equipment, and that
they can theoretically operate at higher
efficiencies than Category I. However,
the commenter argued that elimination
of models using Category I venting
(under a standard level that could only
10 42 U.S.C. 6316(a) for non-ASHRAE equipment;
42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa) for ASHRAE
equipment where DOE is setting more-stringent
standards.
11 42 U.S.C. 6316(a) for non-ASHRAE equipment.
E:\FR\FM\24SEP1.SGM
24SEP1
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Proposed Rules
be met by products/equipment using
Category II, III, or IV venting) would
create the same problems which DOE
has sought to address through its
proposed revised interpretation. USB
commented that vent categorization has
been recognized for over 20 years by
manufacturers, utilities, and code
enforcement officials as the best way to
determine how to safely vent
appliances. (USB, No. 78 at pp. 1–2)
Burnham Holdings, International (BHI)
made essentially identical arguments to
those raised by USB, and Crown Boiler
offered a similar comment that DOE
should focus product classes based
upon type of venting used, rather than
the use of condensing or noncondensing technology. (BHI, No. 83 at
pp. 1–2; Crown Boiler, No. 79 at pp. 1–
2)
In response to the comments from
USB, BHI, and Crown Boiler suggesting
that DOE focus on the type of venting
as the performance related feature rather
than non-condensing operation, DOE
notes that, while separate from the
product/equipment, the venting system
is inextricably linked to the design of
the product. Because the venting system
is a separate component from the
product, DOE initially sought to focus
on non-condensing operation as the
performance-related characteristic of the
product itself. However, after further
considering these commenters’
concerns, DOE understands that
interpreting non-condensing operation
to be a feature could still result in a
reduction of utility for certain
consumers, because some noncondensing appliances require
connection to venting systems other
than Category I and would likely result
in many of the installation issues that
DOE seeks to address through this
interpretive rulemaking.
As a result, DOE further considered
what constitutes a ‘‘feature’’ or
‘‘performance-related characteristic’’
under EPCA, and in particular, whether
such feature might be based on venting
system compatibility of the product.
Because the most significant concerns
regarding venting system compatibility
involve use of gas appliances that are
not compatible with Category I venting
in place of gas appliances that are
compatible with Category I venting,
DOE considered whether compatibility
with Category I venting should be a
protected feature under EPCA.
Moreover, DOE also considered whether
any impact to venting system
compatibility resulting from increasing
product or equipment efficiency
standards would cause the
aforementioned issues. For example, it
is conceivable that if a more-stringent
VerDate Sep<11>2014
16:41 Sep 23, 2020
Jkt 250001
standard results in an appliance
compatible with Category III venting
systems being replaced with an
appliance that is only compatible with
Category IV venting systems, many of
the same issues might arise as have been
identified for the replacement of
appliances compatible with Category I
venting systems. Thus, compatibility
with venting systems of any type could
conceivably be a feature that consumers
desire and which DOE must consider
when evaluating more-stringent
standards. Under such an interpretation,
compatibility with each existing venting
technology would be a feature under
EPCA that could require separate classes
based on compatibility with venting
systems for each venting category, and
uncategorized venting systems could
also require separate classes.
The first approach (i.e., considering
only Category I venting compatibility as
a performance-related feature) has the
benefit of potentially simplifying the
regulatory scheme in comparison to the
latter approach, which could require
classification of products in each
venting category separately. The first
approach would result in more
streamlined regulations and product/
equipment classes for gas appliances, as
compared to the latter approach, while
resolving the most significant issues
involved with venting system
compatibility. The latter approach
potentially would address more
comprehensively possible issues related
to the compatibility of an appliance
with venting systems, but it would make
the regulatory scheme more complex
and could create extra compliance
burdens, as the number of product/
equipment classes for vented appliances
could increase greatly (e.g., each current
class of gas appliance could require
further segmentation by each of the four
categories of venting and also could
need to account for gas appliances that
are compatible with uncategorized
venting systems). Both approaches
would have the benefit of not limiting
DOE to consideration of the combustion
technology that provides the function of
the appliance (e.g., condensing, noncondensing), about which some
commenters have expressed concerns.
Instead, DOE’s focus would be to ensure
compatibility with existing venting,
thereby allowing DOE to be responsive
to potential future technological
advances in venting system
compatibility.
Based on these considerations, DOE is
considering a proposed alternative
interpretation, in addition to the
interpretation proposed in the July 2019
notice of proposed interpretive rule. As
discussed previously, the July 2019
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
60095
notice of proposed interpretive rule
proposed that adoption of energy
conservation standards that would limit
the market to natural gas and/or
propane gas furnaces, water heaters, or
similarly-situated products/equipment
(where permitted by EPCA) that use
condensing combustion technology
would result in the unavailability of a
performance-related feature within the
meaning of 42 U.S.C. 6295(o)(4) and 42
U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as
applicable in certain cases through 42
U.S.C. 6316(a)). In this document, DOE
is also proposing an interpretation that
an appliance’s compatibility with a
venting system is a performance-related
characteristic of that appliance under
EPCA. Specifically, DOE is also
considering an interpretation that, based
on current appliance/venting system
compatibility limitations, the adoption
of energy conservation standards that
would limit the market to natural gas
and/or propane gas furnaces, water
heaters, or similarly-situated products/
equipment (where permitted by EPCA)
that are incompatible with any existing
venting systems available on the market
would result in the unavailability of a
performance related feature within the
meaning of 42 U.S.C. 6295(o)(4) and 42
U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as
applicable in certain cases through 42
U.S.C. 6316(a)). DOE considered
limiting its proposal to include only that
compatibility with Category I venting
systems is a feature, as suggested by the
commenters, and seeks comment on
doing so. In addition, DOE is
considering a broader approach taking
into consideration all venting categories
since concerns similar to those that gave
rise to the petition could conceivably
occur for appliances that are compatible
with venting systems other than
Category I. The Department welcomes
input on both potential approaches, and
it will consider adopting either or the
original proposed approach in its final
interpretation, in light of the
information received both previously
and in response to today’s request.
DOE will consider all comments
received on the issue of the potential
utility associated with ensuring venting
system compatibility, as well as
comments on the potential for added
regulatory complexity from the
alternative approaches, before making a
final decision.
IV. Public Participation
Submission of Comments
DOE invites all interested parties to
submit in writing by the date listed in
the DATES section of this document,
comments and information regarding
E:\FR\FM\24SEP1.SGM
24SEP1
60096
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Proposed Rules
this supplemental proposed interpretive
rule.
Submitting comments via https://
www.regulations.gov. The https://
www.regulations.gov web page will
require you to provide your name and
contact information prior to submitting
comments. 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 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.
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 https://
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 https://
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 https://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 https://
www.regulations.gov provides after you
have successfully uploaded your
comment.
Submitting comments via email, hand
delivery, or postal mail. Comments and
documents via email, hand delivery, or
postal mail will also be posted to https://
www.regulations.gov. If you do not want
your personal contact information to be
VerDate Sep<11>2014
16:41 Sep 23, 2020
Jkt 250001
publicly viewable, do not include it in
your comment or any accompanying
documents. Instead, provide your
contact information on 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 in your
cover letter each time you submit
comments, data, documents, and other
information to DOE. If you submit via
postal mail or hand delivery, please
provide all items on a CD, if feasible, in
which case it is not necessary to submit
printed copies. No telefacsimiles (faxes)
will be accepted.
Comments, data, and other
information submitted electronically
should be provided in PDF (preferred),
Microsoft Word or Excel, WordPerfect,
or text (ASCII) file format. Provide
documents that are not secured, written
in English, and free of any defects or
viruses. Documents should not include
any 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, postal mail, or hand
delivery 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. Submit these documents via
email or on a CD, if feasible. 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).
DOE considers public participation to
be a very important part of its process
for considering regulatory actions. DOE
actively encourages the participation
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
and interaction of the public during the
comment period. Interactions with and
between members of the public provide
a balanced discussion of the issues and
assist DOE in determining how to
proceed with a regulatory action.
Anyone who wishes to be added to DOE
mailing list to receive future notices and
information about this matter should
contact Appliance and Equipment
Standards Program staff at (202) 287–
1445 or via email at
ApplianceStandardsQuestions@
ee.doe.gov.
V. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of this supplemental notice
of proposed interpretive rule.
Signing Authority
This document of the Department of
Energy was signed on September 16,
2020, by Daniel R Simmons, 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 September
16, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
[FR Doc. 2020–20773 Filed 9–23–20; 8:45 am]
BILLING CODE 6450–01–P
BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Part 1026
[Docket No. CFPB–2020–0028]
RIN 3170–AA98
Qualified Mortgage Definition Under
the Truth in Lending Act (Regulation
Z): Seasoned QM Loan Definition;
Extension of Comment Period
Bureau of Consumer Financial
Protection.
ACTION: Notice of proposed rulemaking;
extension of comment period.
AGENCY:
E:\FR\FM\24SEP1.SGM
24SEP1
Agencies
[Federal Register Volume 85, Number 186 (Thursday, September 24, 2020)]
[Proposed Rules]
[Pages 60090-60096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20773]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 /
Proposed Rules
[[Page 60090]]
DEPARTMENT OF ENERGY
10 CFR Parts 430 and 431
Energy Conservation Program for Appliance Standards: Energy
Conservation Standards for Residential Furnaces and Commercial Water
Heaters
AGENCY: Office of Energy Efficiency and Renewable Energy, U.S.
Department of Energy.
ACTION: Notice of supplemental proposed interpretive rule; request for
comment.
-----------------------------------------------------------------------
SUMMARY: In response to a petition for rulemaking submitted on October
18, 2018 (Gas Industry Petition), the Department of Energy (DOE)
published that petition in the Federal Register on November 1, 2018,
for public review and input, and DOE subsequently published a proposed
interpretive rule in the Federal Register on July 11, 2019, which
tentatively determined that in the context of residential furnaces,
commercial water heaters and similarly-situated products/equipment, use
of non-condensing technology (and associated venting) may constitute a
performance-related ``feature'' under the Energy Policy and
Conservation Act (EPCA) that cannot be eliminated through adoption of
an energy conservation standard. After carefully considering the public
comments on its proposed interpretive rule, DOE has tentatively
determined to consider a more involved class structure which turns on
maintenance of compatibility with existing venting categories, and the
Department seeks further information on the potential feasibility,
burdens, and other implications of implementing such a venting-
compatibility approach. DOE requests comments limited in scope to this
issue, after which DOE will respond to not only this matter, but also
to all of the other topics raised in comments on the July 2019 notice
of proposed interpretive rule.
DATES: Written comments and information are requested on or before
October 26, 2020.
ADDRESSES: Interested persons are encouraged to submit comments,
identified by ``Energy Conservation Standards for Residential Furnaces
and Commercial Water Heaters,'' by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
Email: [email protected]. Include
Docket No. EERE-2018-BT-STD-0018 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.
Postal Mail: Appliance and Equipment Standards Program, U.S.
Department of Energy, Building Technologies Office, Mailstop EE-5B,
1000 Independence Avenue SW, Washington, DC 20585-0121. If possible,
please submit all items on a compact disc (CD), in which case it is not
necessary to include printed copies.
Hand Delivery/Courier: Appliance and Equipment Standards Program,
U.S. Department of Energy, Building Technologies Office, 950 L'Enfant
Plaza SW, Suite 600, Washington, DC 20024. Telephone: (202) 287-1445.
If possible, please submit all items on a CD, in which case it is not
necessary to include printed copies.
No telefacsimiles (faxes) will be accepted. For detailed
instructions on submitting comments and additional information, see
section IV of this document (Public Participation).
Docket: For access to the docket to read background documents, or
comments received, go to the Federal eRulemaking Portal at: https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0018.
FOR FURTHER INFORMATION CONTACT:
Ms. Lysia Bowling, Senior Advisor, U.S. Department of Energy,
Office of Energy Efficiency and Renewable Energy, 1000 Independence
Avenue SW, Washington, DC 20585. Telephone: (202) 430-1257. Email:
[email protected].
Mr. Eris Stas, U.S. Department of Energy, Office of the General
Counsel, 1000 Independence Avenue SW, Washington, DC 20585. Telephone:
(202) 586-5827. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Summary Description
A. Relevant Statutory Provisions
B. DOE's Historical Interpretation
C. The Gas Industry Petition
D. DOE's Proposed Interpretive Rule
III. Discussion of Issues Regarding Structuring of Potential
Product/Equipment Classes
IV. Public Participation
V. Approval of the Office of the Secretary
I. Background
On October 18, 2018, the Department received a petition for
rulemaking submitted by the American Public Gas Association (APGA),
Spire, Inc., the Natural Gas Supply Association (NGSA), the American
Gas Association (AGA), and the National Propane Gas Association (NPGA),
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 the Energy Policy and
Conservation Act of 1975 \1\ (EPCA; 42 U.S.C. 6291 et seq.), as amended
(i.e., by setting standards which can only be met by products/equipment
using condensing combustion technology and thereby precluding the
distribution in commerce of products/equipment using non-condensing
combustion technology) and (2) withdraw the proposed energy
conservation standards for residential furnaces \2\ and commercial
water heaters \3\ based upon such findings. DOE published the petition
in the Federal Register on November 1, 2018 (83 FR 54883) and requested
public comment,
[[Page 60091]]
with a comment period scheduled to close on January 30, 2019. DOE
received two requests from interested parties seeking an extension of
the comment period in order to develop additional data relevant to the
petition. DOE granted those requests through publication in the Federal
Register of a notice extending the comment period on the notice of
petition for rulemaking until March 1, 2019. 84 FR 449 (Jan. 29, 2019).
---------------------------------------------------------------------------
\1\ All references to EPCA in this document refer to the statute
as amended through America's Water Infrastructure Act of 2018,
Public Law 115-270 (Oct. 23, 2018).
\2\ Standards for non-weatherized residential furnaces were
published in a notice of proposed rulemaking at 80 FR 13120 (March
12, 2015) (Docket No. EERE-2014-BT-STD-0031-0032) and in a
supplemental notice of proposed rulemaking at 81 FR 65720 (Sept. 23,
2016) (Docket No. EERE-2014-BT-STD-0031-0230).
\3\ Standards for commercial water heating equipment were
published in a notice of proposed rulemaking at 81 FR 34440 (May 31,
2016) (Docket No. EERE-2014-BT-STD-0042).
---------------------------------------------------------------------------
The 90-day public comment period, including the 30-day extension to
submit comments, invited public input in order to better understand
stakeholder perspectives and increase transparency around a complex
issue involving DOE's legal authority. DOE received comments from a
variety of stakeholders, including representatives from gas industry
associations, the manufactured housing industry, efficiency advocates,
consumer advocates, State organizations and Attorneys General, and
individuals (mostly form letter comments). In general, the gas industry
associations and the manufactured housing industry supported the
petition, and the advocates and State officials opposed it.
After carefully considering the comments on the petition, DOE
published a notice of proposed interpretive rule in the Federal
Register on July 11, 2019 to provide the public additional information
about DOE's tentative interpretation of EPCA's ``features'' provision
\4\ in the context of condensing vs. non-condensing furnaces and water
heaters, as informed by public comments. 84 FR 33011. Once again, DOE
received comments from a variety of stakeholders, including
representatives from gas industry associations, the housing industry,
appliance manufacturers, utilities, environmental and efficiency
advocates, consumer advocates, State organizations and Attorneys
General, and individuals. DOE plans to respond to these comments, and
the issues raised therein, fully in a subsequent document, after
receiving comment on the topic presented in this supplemental notice of
proposed interpretive rule.
---------------------------------------------------------------------------
\4\ See 42 U.S.C. 6295(o)(4); 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa); and as applicable in certain cases
through 42 U.S.C. 6316(a)).
---------------------------------------------------------------------------
II. Summary Description
A. Relevant Statutory Provisions
In this notice, DOE explains its historical interpretation
regarding the evaluation of what constitutes a product ``feature''
which cannot be eliminated under EPCA, specifically in the context of
residential furnaces and commercial water heaters. For covered consumer
products, the key statutory provision at issue can be found at 42
U.S.C. 6295(o)(4), which provides that the Secretary may not prescribe
an amended or new standard under this section 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.
Where the Secretary finds such ``performance characteristics
(including reliability), features, sizes, capacities, and volumes''
(collectively referred to hereafter as ``features'') to exist, the
statute provides a remedy at 42 U.S.C. 6295(q)(1), which states that a
rule prescribing an energy conservation standard for a type (or class)
of covered products shall specify a level of energy use or efficiency
higher or lower than that which applies (or would apply) for such type
(or class) for 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 group (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 under 42 U.S.C. 6295(q)(1) concerning whether a
performance-related feature justifies the establishment of a higher or
lower standard, the Secretary shall consider such factors as the
utility to the consumer of such a feature, and such other factors as
the Secretary deems appropriate.
These provisions also apply to covered non-ASHRAE \5\ commercial
and industrial equipment through the crosswalk provision at 42 U.S.C.
6316(a). (Under the statute, ``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 (PTACs), packaged terminal heat pumps
(PTHPs), warm-air furnaces, packaged boilers, storage water heaters,
instantaneous water heaters, or unfired hot water storage tanks, which
are addressed by ASHRAE in ASHRAE Standard 90.1, Energy Standard for
Buildings Except Low-Rise Residential Buildings.)
---------------------------------------------------------------------------
\5\ ``ASHRAE'' refers to the American Society of Heating,
Refrigerating and Air-Conditioning Engineers.
---------------------------------------------------------------------------
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
similar ``features'' provision which states, ``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
adopting the levels set by ASHRAE. Congress was clearly aware of the
features issue, and it chose to act in the context of DOE standard
setting, but not ASHRAE standard setting. There is likewise no
companion provision to 42 U.S.C. 6295(q)(1) for ASHRAE equipment.
B. DOE's Historical Interpretation
With this statutory background in mind, in the March 12, 2015,
notice of proposed rulemaking (NOPR) for energy conservation standards
for residential furnaces, DOE set forth in detail its rationale for why
it did not considering the venting of non-condensing furnaces to
constitute a product ``feature'' under 42 U.S.C. 6295(o)(4). 80 FR
13120, 13137-13138.
As discussed previously, when evaluating and establishing energy
conservation standards, the statute requires DOE to divide covered
products into product classes by the
[[Page 60092]]
type of energy used, by capacity, or by other performance-related
features that justify a different standard. In making a determination
whether a performance-related feature justifies a different standard,
DOE 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)) Historically, DOE has viewed utility as an aspect of the
product that is accessible to the layperson and is based on user
operation, rather than performing a theoretical function. This
interpretation has been implemented consistently in DOE's previous
rulemakings by determining utility through the value the item brings to
the consumer, rather than through analyzing more complicated design
features, 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)).
Under EPCA, DOE has typically addressed consumer utility by
establishing separate product classes or otherwise taken action when a
consumer may value a product feature based on the consumer's everyday
needs. For instance, DOE has determined that it would be impermissible
under 42 U.S.C. 6295(o)(4) to include elimination of oven door windows
as a technology option to improve the energy efficiency of cooking
products.\6\ DOE reached this conclusion based upon how consumers
typically use the product: Peering through the oven window to judge if
an item is finished cooking, as opposed to checking the timer and/or
indicator light or simply opening the oven door (which could waste more
energy) to see if the item is finished cooking. DOE has also determined
that consumers may value other qualities such as ability to self-
clean,\7\ size,\8\ and configuration.\9\ This determination, however,
can change depending on technological developments and shifts in
consumer behavior/preferences, and it is conceivable that certain
products may disappear from the market entirely due to shifting
consumer demand. DOE stated that it has determined such value on a
case-by-case basis through its own research, as well as public comments
received.
---------------------------------------------------------------------------
\6\ 63 FR 48038, 48041 (Sept. 8, 1998).
\7\ 73 FR 62034, 62048 (Oct. 17, 2008) (separating standard
ovens and self-cleaning ovens into different product classes).
\8\ 77 FR 32307, 32319 (May 31, 2012) (creating a separate
product class for compact front-loading residential clothes
washers).
\9\ 75 FR 59469, 59487 (Sept. 27, 2010) (creating a separate
product class for refrigerators with bottom-mounted freezers).
---------------------------------------------------------------------------
DOE offered a cautionary note that disparate products may have very
different consumer utilities, thereby making direct comparisons
difficult and potentially misleading. For instance, 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 (e.g., an apartment in a high-rise building). As
explained in that April 2011 direct final rule technical support
document, ventless dryers can be installed in locations where venting
dryers would be precluded due to venting restrictions.
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. 74 FR 65852, 65871 (Dec. 11, 2009). DOE found that
regardless of these installation factors, the heat pump water heater
and the conventional water heater still had the same utility to the
consumer: Providing hot water. Id. In both cases, DOE made its finding
based on consumer type and utility type, rather than product design
criteria that impact product efficiency.
DOE expressed concern that 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 for the consumer. DOE stated that it was very
concerned that determining features solely on product technology could
undermine the Department's Appliance Standards Program. DOE reasoned
that if it is required to maintain separate product classes to preserve
less-efficient technologies, future advancements in the energy
efficiency of covered products would become largely voluntary, an
outcome which seems inimical to Congress's purposes and goals in
enacting EPCA.
Turning to the product at issue in that rulemaking, DOE noted that
residential furnaces are currently divided into several product
classes. For example, furnaces are separated into product classes based
on their fuel source (gas, oil, or electricity), which is required by
statute. In the most recent rulemaking for that covered product, DOE
analyzed only two product classes for residential furnaces: (1) Non-
weatherized gas-fired furnaces (NWGFs) and (2) mobile home gas-fired
furnaces (MHGFs). DOE did not additionally separate NWGFs and MHGFs
into condensing and noncondensing product classes.
In that rulemaking, DOE tentatively concluded that the methods by
which a furnace is vented did not provide any separate performance-
related impacts, and, therefore, that DOE had no statutory basis for
defining a separate class based on venting and drainage
characteristics. DOE reasoned that NWGF and MHGF venting methods did
not provide unique utility to consumers beyond the basic function of
providing heat, which all furnaces perform. Using this logic, the
possibility that installing a non-condensing furnace may be less costly
than a condensing furnace due to the difference in venting methods did
not justify separating the two types of NWGFs into different product
classes. Unlike the consumers of ventless dryers, which DOE had
determined to be a performance-related feature based on the
impossibility of venting in certain circumstances (e.g., high-rise
apartments), DOE reasoned that consumers of condensing NWGFs are
homeowners that may either use their existing venting or have a
feasible alternative to obtain heat. In other words, homeowners would
still be able to obtain heat regardless of the venting. In contrast,
DOE reasoned that a resident of a high-rise apartment or condominium
building that is not architecturally designed to accommodate vented
clothes dryers would have no option in terms of installing and enjoying
the utility of a dryer in their home unless he or she used a ventless
dryer.
As explained previously, DOE's conclusion in the March 12, 2015,
NOPR was that the utility of a furnace involves providing heat to a
consumer. DOE reasoned that such utility is provided by any type of
furnace, but to the extent that a consumer has a preference for a
particular fuel type (e.g., gas), improvements in venting technology
may eventually allow a consumer to obtain the efficiency of a
condensing furnace using the existing
[[Page 60093]]
venting in a residence by sharing venting space with water heaters. DOE
postulated that this update in technology would significantly reduce
the cost burden associated with installing condensing furnaces and
reduce potential instances of ``orphaned'' water heaters, where the
furnace and water heater can no longer share the same venting (due to
one unit being condensing and the other noncondensing). In other words,
when mature, 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. For more information,
interested parties were asked to consult appendix 8L of the NOPR TSD.
C. The Gas Industry Petition
As noted previously, on October 18, 2018, DOE received a petition
from 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 the Energy Policy and Conservation Act of 1975, as
amended (i.e., by setting standards which can only be met by products/
equipment using condensing combustion technology) and (2) withdraw the
proposed energy conservation standards for residential furnaces and
commercial water heaters based upon such findings. In their petition,
the Gas Industry Petitioners argue that DOE misinterpreted its mandate
under section 325(o)(4) of EPCA by failing to consider as a ``feature''
of the subject residential furnaces and commercial water heating
equipment the compatibility of a product/equipment with conventional
atmospheric venting systems and the ability to operate without
generating liquid condensate requiring disposal via a plumbing
connection. Consequently, the Gas Industry Petitioners assert that
DOE's proposals would make unavailable non-condensing products/
equipment with such features, which currently exist in the marketplace,
in contravention of the statute. The petition makes a number of
technical, legal, and economic arguments in favor of its suggested
interpretation, and it points to DOE's past precedent related to space
constraints and differences in available electrical power supply (and
associated installation costs) as supporting its call to find that non-
condensing technology amounts to a performance-related ``feature.''
Based upon these arguments, the Gas Industry Petitioners concluded that
DOE should issue an interpretive rule treating non-condensing
technology as a ``feature'' under EPCA, withdraw its rulemaking
proposals for both residential furnaces and commercial water heaters,
and proceed on the basis of this revised interpretation.
D. DOE's Proposed Interpretive Rule
As discussed in section I of this document, DOE published a notice
of proposed interpretive rule in the Federal Register on July 11, 2019.
84 FR 33011. In consideration of public comments and other information
received on the Gas Industry Petition, DOE proposed 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). Based on those comments and for the reasons set forth fully
in that document, DOE proposed to interpret prospectively the statute
to provide that adoption of energy conservation standards that would
limit the market to natural gas and/or propane gas furnaces, water
heaters, or similarly-situated products/equipment (where permitted by
EPCA) that use condensing combustion technology would result in the
unavailability of a performance related feature within the meaning of
42 U.S.C. 6295(o)(4) and 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as
applicable in certain cases through 42 U.S.C. 6316(a)).
As explained in the proposed interpretive rule, the statute accords
the Secretary of Energy considerable discretion in terms of determining
whether a performance characteristic of a covered product/equipment
amounts to a performance-related feature which cannot be eliminated
through adoption of an energy conservation standard. DOE stated that it
has taken the opportunity presented by the Gas Industry Petition to
reconsider its historical interpretation of EPCA's ``features''
provision in the context of condensing and non-condensing technologies
used by certain gas appliances. Contrary to the petitioners'
assessment, DOE found this to be a close case, with persuasive
arguments on both sides of the issue. However, a number of factors
convinced DOE to propose a revision to its interpretation.
First, DOE acknowledged that it has, in the past, taken space
constraints and similar limitations into account when setting product
classes (e.g., PTACs, ventless clothes dryers). For example, DOE was
sensitive to the costs associated with requiring expensive building
modifications when it decided to set separate equipment classes for
standard size PTACs and non-standard size PTACs. 73 FR 58772 (Oct. 7,
2008). DOE stated that it expects that similar expenses would occur
here, if DOE were to hold to its historical interpretation, at least
for some subset of installations. Although limited data were provided
to address the actual costs that consumers and commercial customers
would face to modify their existing category I venting, there is little
doubt that some number of such installations would be quite costly.
These more complicated/costly installations are documented as part of
DOE's analysis of the venting costs for residential furnaces, which
considered potential venting modifications that could be required when
replacing an existing category I furnace with a condensing (category
IV) furnace (see appendix 8D of the 2016 SNOPR TSD for further
details).
Second, DOE stated that it has in the past focused on the
consumer's interaction with the product/equipment in deciding whether a
performance feature is at issue. In the context of residential furnaces
and commercial water heaters, DOE has focused on the primary function
of the appliance (e.g., providing heat to a home or potable hot water)
in establishing the nexus to the consumer. In the past, DOE opined that
consumers were only interested in obtaining heat or hot water from the
appliance, so they would not care about the mechanism for generating
that end product. However, commenters have made clear that in at least
some cases, the physical changes associated with a condensing appliance
may change a home's aesthetics (e.g., by adding new venting into the
living space or decreasing closet or other storage space), thereby
impacting consumer utility even under DOE's prior approach.
Third, DOE noted that it has been its policy to remain neutral
regarding competing energy sources in the marketplace. As certain
commenters have pointed out and as DOE's own analyses have shown, some
enhanced level of fuel switching is likely to accompany standard
setting using DOE's prior interpretation. Many consumers who are
currently gas customers may show a proclivity for that fuel type and
would be negatively impacted by a standard that requires the purchase
of a condensing unit to the extent they feel compelled to change to a
different fuel type. DOE explained that it seeks neither to determine
winners and losers in the marketplace nor to limit consumer choice.
Finally, DOE stated that it is very concerned about ensuring energy
[[Page 60094]]
affordability, particularly for persons with low incomes. Although
energy efficiency improvements may pay for themselves over time, there
is typically a significant increase in first-cost associated with
furnaces and water heaters using condensing technology. For consumers
with difficult installation situations (e.g., inner-city row houses),
there would be the added cost of potentially extensive venting
modifications. In certain cases, commenters have argued that
accommodating condensing products may not even be possible. Although
DOE continues to believe that costs are properly addressed in the
economic analysis portion of its rulemakings, it stated that it remains
cognizant of such issues. DOE stated that it has tentatively concluded
that the other reasons discussed immediately above are sufficient in
and of themselves to justify the Department's proposed change in
interpretation, but it acknowledged these cost impacts in order to be
fully transparent in terms of the agency's thinking.
The agency reasoned that creating separate product classes for
condensing and non-condensing furnaces, water heaters, and similarly-
situated products/equipment (where permitted by EPCA) would prevent
many of these potential problems. Although DOE's proposed revised
approach may have some impact on overall energy saving potential as a
result of establishing separate product/equipment classes, the
Department noted that that is not the touchstone of EPCA's ``features''
provision; through that provision, Congress expressed its will that
certain product utilities will take priority over additional energy-
saving measures. (For example, DOE did not eliminate the oven window
which consumers found useful, despite the potential for further energy
savings.) With that said, DOE expressed it belief that any potentially
negative programmatic impacts of its revised interpretation are likely
to be limited. DOE reasoned that the proposed interpretation would be
likely to impact only a limited set of appliances, and DOE noted that
market trends have favored the growing reach of condensing furnaces,
even as non-condensing alternatives have remained available. DOE stated
that it has every reason to believe that such trends will continue.
DOE sought to clarify the limitations of its proposed revised
interpretation, based upon the existing statutory provisions. As
discussed previously, DOE can effect this change for all relevant
consumer products, all non-ASHRAE commercial and industrial equipment,
and ASHRAE equipment in those instances where DOE has clear and
convincing evidence to adopt levels higher than the levels in ASHRAE
Standard 90.1.
As noted, additional, subsequent DOE action would be required
before the interpretation in the proposed interpretive rule could be
implemented. The proposed interpretive rule, even once finalized, would
not alter the Department's current regulations. This interpretation
does not and will not be used to abrogate DOE's responsibilities under
existing laws or regulations, nor does it change DOE's existing
statutory authorities or those of regulators at the Federal, State, or
local level. DOE anticipates continued engagement and productive
involvement of members of the public and the regulated community in
subsequent activities that may follow this interpretation.
As discussed in the proposed interpretive rule, DOE decided to
grant the Gas Industry Petition to the extent that it proposed to
prospectively interpret the statute to provide that adoption of energy
conservation standards that would limit the market of natural gas and/
or propane gas furnaces, water heaters, or similarly-situated products/
equipment (where permitted by EPCA) to appliances that use condensing
combustion technology would result in the unavailability of a
performance related feature within the meaning of 42 U.S.C. 6295(o)(4)
and 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as applicable in certain
cases through 42 U.S.C. 6316(a)). The proposal clarified that such
interpretation would apply to all applicable residential products, non-
ASHRAE commercial equipment, and ASHRAE equipment where DOE adopts a
level more stringent than the ASHRAE level.
DOE stated that it is denying the Gas Industry Petition as it
pertains to those rulemakings where ASHRAE sets standard levels that
trigger DOE to consider and adopt those level (unless DOE finds clear
and convincing evidence to adopt more-stringent levels), due to lack of
authority. DOE also denied the Gas Industry Petition's request for DOE
to withdraw the proposed rules for residential furnaces and commercial
water heaters as unnecessary. DOE stated that if the interpretive rule
were to be finalized, it would anticipate developing supplemental
notices of proposed rulemaking (SNOPRs) that would implement the new
legal interpretation for those two rulemakings that were the subject of
the petition for rulemaking.
III. Discussion of Issues Regarding Structuring of Potential Product/
Equipment Classes
DOE received a number of comments with diverse views on the
Department's proposed interpretive rule related to the Gas Industry
Petition, with some supporting the proposal and others in opposition.
Once again, all of those comments will be addressed by DOE in a
subsequent document. Consequently, there is no need to repeat those
arguments, and interested parties are instead asked to limit the scope
of their comments to the specific issue raised in this supplemental
notice of proposed interpretive rule.
As noted previously, in its proposed interpretive rule, DOE
explored the issue of whether non-condensing technology (and associated
venting) constitutes a performance-related ``feature'' under 42 U.S.C.
6295(o)(4),\10\ as would support a separate product/equipment class
under 42 U.S.C. 6295(q)(1).\11\ 84 FR 33011, 33015 (July 11, 2019). DOE
initially assumed that if it were to adopt an interpretation consistent
with the Gas Industry Petition, it would suffice to set product/
equipment classes largely based upon the key distinction of whether an
appliance utilizes condensing or non-condensing combustion technology.
However, a number of comments on the proposed interpretive rule
suggested that such approach may not adequately resolve the issue at
hand, as presented in the petition.
---------------------------------------------------------------------------
\10\ 42 U.S.C. 6316(a) for non-ASHRAE equipment; 42 U.S.C.
6313(a)(6)(B)(iii)(II)(aa) for ASHRAE equipment where DOE is setting
more-stringent standards.
\11\ 42 U.S.C. 6316(a) for non-ASHRAE equipment.
---------------------------------------------------------------------------
More specifically, while U.S. Boiler (USB) generally agreed with
DOE's revised interpretation, the commenter argued that DOE has erred
in focusing on ``non-condensing'' technology as the performance-related
feature, suggesting that the agency should instead focus on Category I
venting. According to USB, Category II, III, and IV (as well as non-
categorized direct vent furnaces and boilers) are currently available
using non-condensing technology, but many of the same problems
identified in the Gas Industry Petition still may arise. USB stated
that non-condensing Category II, III, and IV appliances generally share
the same venting consumer utility issues as condensing appliances and
equipment, and that they can theoretically operate at higher
efficiencies than Category I. However, the commenter argued that
elimination of models using Category I venting (under a standard level
that could only
[[Page 60095]]
be met by products/equipment using Category II, III, or IV venting)
would create the same problems which DOE has sought to address through
its proposed revised interpretation. USB commented that vent
categorization has been recognized for over 20 years by manufacturers,
utilities, and code enforcement officials as the best way to determine
how to safely vent appliances. (USB, No. 78 at pp. 1-2) Burnham
Holdings, International (BHI) made essentially identical arguments to
those raised by USB, and Crown Boiler offered a similar comment that
DOE should focus product classes based upon type of venting used,
rather than the use of condensing or non-condensing technology. (BHI,
No. 83 at pp. 1-2; Crown Boiler, No. 79 at pp. 1-2)
In response to the comments from USB, BHI, and Crown Boiler
suggesting that DOE focus on the type of venting as the performance
related feature rather than non-condensing operation, DOE notes that,
while separate from the product/equipment, the venting system is
inextricably linked to the design of the product. Because the venting
system is a separate component from the product, DOE initially sought
to focus on non-condensing operation as the performance-related
characteristic of the product itself. However, after further
considering these commenters' concerns, DOE understands that
interpreting non-condensing operation to be a feature could still
result in a reduction of utility for certain consumers, because some
non-condensing appliances require connection to venting systems other
than Category I and would likely result in many of the installation
issues that DOE seeks to address through this interpretive rulemaking.
As a result, DOE further considered what constitutes a ``feature''
or ``performance-related characteristic'' under EPCA, and in
particular, whether such feature might be based on venting system
compatibility of the product. Because the most significant concerns
regarding venting system compatibility involve use of gas appliances
that are not compatible with Category I venting in place of gas
appliances that are compatible with Category I venting, DOE considered
whether compatibility with Category I venting should be a protected
feature under EPCA. Moreover, DOE also considered whether any impact to
venting system compatibility resulting from increasing product or
equipment efficiency standards would cause the aforementioned issues.
For example, it is conceivable that if a more-stringent standard
results in an appliance compatible with Category III venting systems
being replaced with an appliance that is only compatible with Category
IV venting systems, many of the same issues might arise as have been
identified for the replacement of appliances compatible with Category I
venting systems. Thus, compatibility with venting systems of any type
could conceivably be a feature that consumers desire and which DOE must
consider when evaluating more-stringent standards. Under such an
interpretation, compatibility with each existing venting technology
would be a feature under EPCA that could require separate classes based
on compatibility with venting systems for each venting category, and
uncategorized venting systems could also require separate classes.
The first approach (i.e., considering only Category I venting
compatibility as a performance-related feature) has the benefit of
potentially simplifying the regulatory scheme in comparison to the
latter approach, which could require classification of products in each
venting category separately. The first approach would result in more
streamlined regulations and product/equipment classes for gas
appliances, as compared to the latter approach, while resolving the
most significant issues involved with venting system compatibility. The
latter approach potentially would address more comprehensively possible
issues related to the compatibility of an appliance with venting
systems, but it would make the regulatory scheme more complex and could
create extra compliance burdens, as the number of product/equipment
classes for vented appliances could increase greatly (e.g., each
current class of gas appliance could require further segmentation by
each of the four categories of venting and also could need to account
for gas appliances that are compatible with uncategorized venting
systems). Both approaches would have the benefit of not limiting DOE to
consideration of the combustion technology that provides the function
of the appliance (e.g., condensing, non-condensing), about which some
commenters have expressed concerns. Instead, DOE's focus would be to
ensure compatibility with existing venting, thereby allowing DOE to be
responsive to potential future technological advances in venting system
compatibility.
Based on these considerations, DOE is considering a proposed
alternative interpretation, in addition to the interpretation proposed
in the July 2019 notice of proposed interpretive rule. As discussed
previously, the July 2019 notice of proposed interpretive rule proposed
that adoption of energy conservation standards that would limit the
market to natural gas and/or propane gas furnaces, water heaters, or
similarly-situated products/equipment (where permitted by EPCA) that
use condensing combustion technology would result in the unavailability
of a performance-related feature within the meaning of 42 U.S.C.
6295(o)(4) and 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as applicable
in certain cases through 42 U.S.C. 6316(a)). In this document, DOE is
also proposing an interpretation that an appliance's compatibility with
a venting system is a performance-related characteristic of that
appliance under EPCA. Specifically, DOE is also considering an
interpretation that, based on current appliance/venting system
compatibility limitations, the adoption of energy conservation
standards that would limit the market to natural gas and/or propane gas
furnaces, water heaters, or similarly-situated products/equipment
(where permitted by EPCA) that are incompatible with any existing
venting systems available on the market would result in the
unavailability of a performance related feature within the meaning of
42 U.S.C. 6295(o)(4) and 42 U.S.C. 6313(a)(6)(B)(iii)(II)(aa) (and as
applicable in certain cases through 42 U.S.C. 6316(a)). DOE considered
limiting its proposal to include only that compatibility with Category
I venting systems is a feature, as suggested by the commenters, and
seeks comment on doing so. In addition, DOE is considering a broader
approach taking into consideration all venting categories since
concerns similar to those that gave rise to the petition could
conceivably occur for appliances that are compatible with venting
systems other than Category I. The Department welcomes input on both
potential approaches, and it will consider adopting either or the
original proposed approach in its final interpretation, in light of the
information received both previously and in response to today's
request.
DOE will consider all comments received on the issue of the
potential utility associated with ensuring venting system
compatibility, as well as comments on the potential for added
regulatory complexity from the alternative approaches, before making a
final decision.
IV. Public Participation
Submission of Comments
DOE invites all interested parties to submit in writing by the date
listed in the DATES section of this document, comments and information
regarding
[[Page 60096]]
this supplemental proposed interpretive rule.
Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page will require you to provide your name and
contact information prior to submitting comments. 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 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. 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 https://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
https://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 https://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 https://www.regulations.gov provides after you have successfully uploaded your
comment.
Submitting comments via email, hand delivery, or postal mail.
Comments and documents via email, hand delivery, or postal mail will
also be posted to https://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 on 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 in your cover letter each time you
submit comments, data, documents, and other information to DOE. If you
submit via postal mail or hand delivery, please provide all items on a
CD, if feasible, in which case it is not necessary to submit printed
copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted electronically
should be provided in PDF (preferred), Microsoft Word or Excel,
WordPerfect, or text (ASCII) file format. Provide documents that are
not secured, written in English, and free of any defects or viruses.
Documents should not include any 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, postal mail, or hand delivery 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. Submit these documents via email or on a CD, if feasible. 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).
DOE considers public participation to be a very important part of
its process for considering regulatory actions. DOE actively encourages
the participation and interaction of the public during the comment
period. Interactions with and between members of the public provide a
balanced discussion of the issues and assist DOE in determining how to
proceed with a regulatory action. Anyone who wishes to be added to DOE
mailing list to receive future notices and information about this
matter should contact Appliance and Equipment Standards Program staff
at (202) 287-1445 or via email at
[email protected].
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this
supplemental notice of proposed interpretive rule.
Signing Authority
This document of the Department of Energy was signed on September
16, 2020, by Daniel R Simmons, 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 September 16, 2020.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2020-20773 Filed 9-23-20; 8:45 am]
BILLING CODE 6450-01-P