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Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Proposed Rules
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the Nations resilience to climate change. Id. at 86 FR 7037, 7041. Section 2 of the Order also instructs all agencies to review existing regulations, orders, guidance documents, policies, and any other similar agency actions agency actions promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, these policies. Id. Agencies are then directed, as appropriate and consistent with applicable law, to consider suspending, revising, or rescinding these agency actions and to immediately commence work to confront the climate crisis. Id.
In light of E.O. 13990, DOE has undertaken a review of the final interpretation and withdrawal of proposed rulemakings published in the Federal Register on January 15, 2021.
While E.O. 13990 triggered the Departments re-evaluation, DOE is relying on the analysis presented below, based upon EPCA, to re-examine the January 2021 Final Interpretive Rule.
Accordingly, the Department has initially determined that the historic application of the features provision to non-condensing technology reflects the better reading of the requirements in EPCA.
B. Historic Interpretation of the Features Provision As discussed, when evaluating and establishing energy conservation standards, DOE is required to divide covered products into product classes by the type of energy used, by capacity, or by other performance-related features that DOE determines justify a different standard. In making a determination of whether a performance-related feature justifies a different standard, the Department must consider factors such as the utility to the consumer of the feature and other factors DOE
determines are appropriate. 42 U.S.C.
6295q As the product class provision is complementary to the features provision, consideration of what constitutes a feature and what constitutes utility for the purpose of establishing a product class is germane to the application of the features provision.
At a basic level, a feature is a trait, attribute, or function of a product. The usefulness and benefit provided to a consumer by a feature is the features utility. Given the multitude of covered products and equipment for which DOE is responsible, the Department has found the concept of feature to be very case-specific. 86 FR
4776, 4797 Jan. 15, 2021. No single definition could effectively capture the
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potential for features across the broad array of consumer products and commercial equipment subject to EPCAs regulatory scheme. Id. That is why DOE developed the concept of consumer utility and how the consumer interacts with the product/equipment for when DOE is assessing features.
Id.
Historically, DOE has viewed utility as an aspect of the product that is accessible to the layperson and is based on user operation and interaction with the product. This interpretation has been applied in DOEs previous rulemakings by determining utility through the value the item brings to the consumer, rather than through analyzing complicated design features that do not impact what the consumer perceives as the value of the product, or costs that anyone, including the consumer, manufacturer, installer, or utility companies, may bear. DOE
reasoned that this approach is consistent with EPCAs 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.
6295o2AB and 3. Examples of prior consideration of the features provision, utility, and product/
equipment classes are provided in the following paragraphs.
In a final rule addressing energy conservation standards for cooking products, DOE did not consider a design option that eliminated oven door windows. 63 FR 48038, 48041 Sept. 8, 1998. A number of commenters asserted that the oven door window provides consumer utility by alleviating the need for users to open the oven door to check on the contents. Id. DOE agreed with commenters that the removal of the oven door window would increase the frequency in which consumers open the oven door. Id. DOE also found this increased opening would have the potential to increase energy usage. Id.
DOE further indicated that it would reevaluate oven door window designs should a window material with higher thermal insulation properties become a proven technology. Id.
In the case of residential clothes washers, DOE has maintained a product class distinction based on axis of loading i.e., front-loading and toploading units. Based on comments received during rulemakings, DOE
identified axis of loading as a feature that impacts consumer utility i.e., the longer cycle times of front-loading residential clothes washers versus cycle times for top-loaders are likely to impact consumer utility. 77 FR 32307, 32319
May 31, 2012. Conversely, DOE

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eliminated the suds-saving product class because the market had changed, and, at the time of the rulemaking, DOE
did not identify any suds-saving residential clothes washers on the market in the United States. 77 FR
32307, 32317 May 31, 2012.
In a 2011 rulemaking, DOE created separate product classes for vented and ventless residential clothes dryers based on DOEs recognition of the unique utility that ventless clothes dryers offer to consumers. 76 FR 22454, 22485
April 21, 2011. This utility could be characterized as the ability to have a clothes dryer in a living area where vents are impossible to install i.e., an apartment in a high-rise building. As explained in the accompanying technical support document, ventless dryers can be installed in locations where venting dryers would be precluded due to venting restrictions.3
But in another rulemaking, DOE
found that water heaters that utilize heat pump technology did not need to be put in a separate product class from conventional types of hot water heaters that utilize electric resistance technology, even though water heaters utilizing heat pumps require the additional installation of a condensate drain that a hot water heater utilizing electric resistance technology does not require. 75 FR 20112, 20135 April 16, 2010. Regardless of the installation factors, DOE did not find the mode of heating water to be a performancerelated feature or provide a unique utility. Id. DOE also noted comments stating that in the then-current market, water heaters that employed heat pump technology were advertised as replacements for water heaters that employed electric resistance technology.
Id.
However, DOE has cautioned that disparate products may have very different consumer utilities, thereby making direct comparisons difficult and potentially misleading. 76 FR 22454, 22485 April 21, 2011.
C. January 15, 2021 Final Interpretive Rule Regarding Non-Condensing Technology On March 12, 2015, DOE published a notice of proposed rulemaking NOPR
in the Federal Register to amend energy conservation standards for residential non-weatherized gas furnaces and mobile home furnaces, in furtherance of its statutory obligation to determine whether more stringent amended standards would be technologically 3 See pp. 359 of the technical support document, available at www.regulations.gov/document/EERE
2007-BT-STD-0010-0053.

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