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Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Proposed Rules
supporting documents/materials, is available for review at www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.
The docket web page can be found at:
www.regulations.gov/
!docketDetail;D=EERE-2018-BT-STD0018. The docket web page contains instructions on how to access all documents, including public comments, in the docket.
FOR FURTHER INFORMATION CONTACT: Ms.
Catherine Rivest, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE5B, 1000
Independence Avenue SW, Washington, DC 205850121. Telephone: 202 586
7335. Email:
ApplianceStandardsQuestions@
ee.doe.gov.
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC33, 1000 Independence Avenue SW, Washington, DC 205850121.
Telephone: 202 5865827. Email:
Eric.Stas@hq.doe.gov.
For further information on how to submit a comment or review other public comments and the docket, contact the Appliance and Equipment Standards Program staff at 202 287
1445 or by email:
ApplianceStandardsQuestions@
ee.doe.gov.
SUPPLEMENTARY INFORMATION:

Table of Contents
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I. Introduction and Background A. Authority B. Historic Interpretation of the Features Provision C. January 15, 2021 Final Interpretive Rule Regarding Non-Condensing Technology II. Proposed Interpretive Rule III. Conclusion IV. Public Participation V. Approval of the Office of the Secretary
I. Introduction and Background The following sections discuss the statutory authority underlying this proposed interpretive rule, as well as the relevant background related to determination of what constitutes a feature for the purpose of establishing energy conservation standards under EPCA. Additionally, these sections address DOEs historic interpretation, DOEs interpretation in the January 15, 2021 final interpretive rule 86 FR
4776, and the issuance of Executive Order 13990. This background sets the stage for presentation of DOEs current
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proposed interpretive rule addressing whether non-condensing technology and associated venting constitutes a performance-related feature under EPCA which may not be eliminated by an energy conservation standard.
A. Authority EPCA 1, Public Law 94163 42 U.S.C.
6291 et seq., as amended, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. When establishing new or amended standards for covered products, DOE is directed to consider any lessening of the utility or the performance of covered products likely to result from the imposition of the standard. 42 U.S.C.
6295o2BiIV Moreover, the Secretary of Energy Secretary may not prescribe an amended or new standard if the Secretary finds and publishes such finding that interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type or class of performance characteristics including reliability, features, sizes, capacities, and volumes collectively referred to hereafter as features that are substantially the same as those generally available in the United States at the time of the Secretarys finding. 42 U.S.C.
6295o4; the features provision EPCA provides a companion provision at 42 U.S.C. 6295q1, which requires that a rule prescribing an energy conservation standard for a type of covered products shall specify a level of energy use or efficiency higher or lower than that which applies or would apply to any group of covered products which have the same function or intended use, if the Secretary determines that covered products within such group:
A consume a different kind of energy from that consumed by other covered products within such type or class; or B have a capacity or other performancerelated feature which other products within such type or class do not have and such feature justifies a higher or lower standard from that which applies or will apply to other products within such type or class.

In making a determination of whether a performance-related feature justifies the establishment of a higher or lower standard, the Secretary must consider such factors as the utility to the consumer of such a feature, and such 1 All references to EPCA in this document refer to the statute as amended through the Energy Act of 2020, Public Law 116260 Dec. 27, 2020.

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other factors as the Secretary deems appropriate. 42 U.S.C. 6295q1
These provisions apply generally to covered commercial and industrial equipment, other than ASHRAE
equipment,2 through the crosswalk provision at 42 U.S.C. 6316a. 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. 6313a6. Under 42 U.S.C.
6313a6BiiiIIaa, there is a provision similar to the features provision previously discussed that states that the Secretary may not prescribe an amended standard under this subparagraph if the Secretary finds and publishes the finding that interested persons have established by a preponderance of the evidence that a standard is likely to result in the unavailability in the United States in any product type or class of performance characteristics including reliability, features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the finding of the Secretary. However, it is noted that this provision contains the specific limitation that it applies to an amended standard prescribed under this subparagraph i.e., when DOE is acting under its authority to set a morestringent standard. There is no companion features provision under 42 U.S.C. 6313a6A, which is the provision that would apply when DOE
is triggered to adopt the levels set by ASHRAE. There is likewise no companion provision to 42 U.S.C.
6295q1 for ASHRAE equipment.
In addition, on January 20, 2021, the White House issued Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. 86 FR
7037 Jan. 25, 2021. Section 1 of that Order lists several policies related to the protection of public health and the environment, including reducing greenhouse gas emissions and bolstering 2 ASHRAE refers to the American Society of Heating, Refrigerating and Air-Conditioning Engineers. Under EPCA, ASHRAE equipment refers to small commercial package air conditioning and heating equipment, large commercial package air conditioning and heating equipment, very large commercial package air conditioning and heating equipment, packaged terminal air conditioners, packaged terminal heat pumps, warm-air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and unfired hot water storage tanks, which are addressed by ASHRAE in ASHRAE Standard 90.1, Energy Standard for Buildings Except Low-Rise Residential Buildings.
See 42 U.S.C. 6313a6

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