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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Rules and Regulations
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interpretation that, in the context of residential furnaces, commercial water heaters, and similarly-situated products/
equipment, use of non-condensing technology and associated venting would constitute a performance-related feature under EPCA that cannot be eliminated through adoption of an energy conservation standard. 84 FR
33011 July 2019 Proposed Interpretive Rule.6 DOE also provided that, if such interpretation were to be finalized, it anticipated developing supplemental notices of proposed rulemaking that would implement the new legal interpretation for the subject residential furnaces and commercial water heaters.
84 FR 33011, 33021 July 11, 2019.
DOE published a supplemental notice of proposed interpretation in the Federal Register on September 24, 2020, which proposed alternative approaches to product/equipment class setting in this context. 85 FR 60090. The supplemental proposed interpretive rule was in response to comments expressing concern with the proposed focus on non-condensing technology as the performance-related feature. 85 FR
60090, 6009460095 Sept. 24, 2020.
Alternatively, the supplemental notice of proposed interpretation considered venting compatibility as a possible feature. 85 FR 60095 Sept. 24, 2020.
DOE requested comment on this alternative approach. Id.
On January 15, 2021, DOE published in the Federal Register a final interpretive rule determining that, in the context of residential furnaces, commercial water heaters, and similarly-situated products/equipment, use of non-condensing technology and associated venting constitutes a performance-related feature under EPCA that cannot be eliminated through adoption of an energy conservation standard. 86 FR 4776. Following consideration of comments and data submitted by stakeholders in response to the proposed interpretation and supplemental proposal, DOE found that when used by the appliances in question, non-condensing technology and associated venting constitutes a performance-related feature that provides consumer utility distinct from 6 The July 2019 Proposed Interpretive Rule granted the request for an interpretive rule but initially denied the Gas Industry Petitioners request to withdraw DOEs earlier proposed rules for residential furnaces and commercial water heaters. 84 FR 33011, 33021 July 11, 2019.

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that provided by such appliances that employ condensing technology. More specifically, in contrast to condensing units, DOE stated that non-condensing units: 1 Avoid complex installations in certain locations constrained by space, existing venting, and available drainage;
2 avoid the encroachment on usable space that would occur in certain installations; and 3 do not enhance the level of fuel switching that might accompany standard setting absent a separate product/equipment class for non-condensing appliance. 86 FR 4776, 4816 Jan. 15, 2021. DOE stated that such interpretation would extend to all relevant/applicable cases involving consumer products, non-ASHRAE
commercial equipment, and ASHRAE
equipment where DOE adopts a level more stringent than the ASHRAE level.
86 FR 4776, 48164817 Jan. 15, 2021.
In light of this final interpretation, DOE withdrew its March 12, 2015
proposed rule and September 23, 2016
supplemental proposed rule for energy conservation standards for nonweatherized gas furnaces and mobile home gas furnaces, as well as its May 31, 2016 proposed rule for energy conservation standards for commercial water heating equipment. 86 FR 3873
Jan. 15, 2021. However, DOE has not implemented the January 15, 2021 final interpretation in the context of any individual energy conservation standards rulemakings for affected covered products/equipment.
D. August 2021 Proposed Interpretive Rule On August 27, 2021, DOE published a proposed interpretative rule in the Federal Register the August 2021
NOPIR, in which DOE re-examined the conclusions reached in the January 2021
Final Interpretive Rule. 86 FR 48049
August 27, 2021. Based on DOEs reconsideration of the January 2021
Final Interpretative Rule, the Department proposed to revise its interpretation of EPCAs features provision in the context of condensing and non-condensing technology used in furnaces, water heating equipment, and similarly-situated appliances. 86 FR
48049, 48053 August 27, 2021. DOE
tentatively concluded that, in the context of residential furnaces, commercial water heaters, and similarly-situated products or equipment, use of non-condensing technology and associated venting is
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not a performance-related feature for the purpose of the EPCA prohibitions at 42 U.S.C. 6295o4 and 42 U.S.C.
6313a6BiiiIIaa. Id. DOE
initially found that non-condensing technology and the associated venting does not provide unique utility to consumers separate from an appliances function of providing heated air or water, as applicable. Id.
DOE initially found this interpretation to be the best reading of the relevant provisions of EPCA, which is consistent with the intent and purposes of the statute. Id. Specifically, the proposed interpretation would align better with EPCAs goals of increasing the energy efficiency of covered products and equipment through the establishment and amendment of energy conservation standards and promoting conservation measures when feasible. See id. citing 42 U.S.C. 6291 et seq., as amended.
Furthermore, DOE initially determined that the proposed interpretation would avoid requiring separate product or equipment classes to preserve less efficient technologies, while maintaining consideration of installation costs as part of the extensive analysis of economic justification for the adoption of any new or amended energy conservation standard see id. at 86 FR
48049, 48054 citing 42 U.S.C.
6295o23; 42 U.S.C. 6313a6A
C; 42 U.S.C. 6316a. The complete discussion of DOEs rationale for the August 2021 NOPIR is set forth at 86 FR
48049, 4805348057 August 27, 2021.
DOE requested comment on the proposed interpretation, which would reinstate DOEs prior reading of EPCAs features provision in the context of residential furnaces, commercial water heaters, and similarly-situated products.
86 FR 48049, 4805748058 August 27, 2021. The comment period was scheduled to close on September 27, 2021. However, in response to a request from a number of stakeholders,7 DOE
subsequently extended the comment period until October 12, 2021. 86 FR
53014 Sept. 24, 2021.
DOE received comments in response to the August 2021 NOPIR from the interested parties listed in Table I.1.
7 See comment period extension request submitted by American Gas Association, American Public Gas Association, Spire Inc. and Spire Missouri, Inc., and the National Propane Gas Association, Docket No. EERE2018BTSTD
00180125.

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