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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Rules and Regulations or new standard if the Secretary finds and publishes such finding that interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type or class of performance characteristics including reliability, features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time of the Secretarys finding. 42 U.S.C.
6295o4; 42 U.S.C.
6313a6BiiiII; 42 U.S.C. 6316a Also, as discussed, when prescribing an energy conservation standard, DOE
must consider whether separate product/equipment classes are justified based on: 1 Consumption of a different kind of energy or 2 existence of performance-related features and their associated utility. 42 U.S.C. 6295q1;
42 U.S.C. 6316a The features provision, the seven factors for economic justification, and the product class provisions are all required considerations in establishing new and amended energy conservation standards.
As discussed in the August 2021
NOPIR, a feature is a trait, attribute, or function of a product. 86 FR 48049, 48053 August 27, 2021. The usefulness and benefit provided to a consumer by a feature is the features utility, and consumer utility is used to evaluate whether a purported feature justifies a separate product class. Id.
DOE has historically viewed utility of a product or equipment as an aspect of the appliance that is accessible to the layperson consumer and is based upon user operation and interaction with that appliance. Borrowing from the examples presented in the previous section of this document, oven door windows and angle of access for clothes washers are illustrative of this principle. Consumers use the oven door window in conjunction with the oven lamp to gauge the progress of food undergoing baking, without the need to open the oven door. Needing to open the oven door and losing heat would arguably decrease the energy efficiency of the oven. The oven door window is a feature which consumers generally appreciate and with which they routinely interact when cooking. The windows elimination would result in the loss of a performance-related feature that provides valued utility for consumers. Regarding the angle of access of a clothes washer, consumers currently have two options when purchasing clothes washers: Frontloading machines and top-loading machines. Some consumers, such as the
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elderly, may prefer a top-loading clothes washer, because it is easier to reach the laundry without excessive bending, which is in contrast to the angle of access of a front-loading washer. A
broad spectrum of consumers recognizes and appreciates the ability of a toploading washer to readily accept additional clothing items, even after a wash cycle has begun. Other consumers, such as those with disabilities, may prefer a front-loading machine because that angle of access better suits their access needs. The two angles provide consumer utility in terms of ease of loading or use to different consumer subgroups. As with the oven door window, the angle of access is a feature with which consumers routinely interact while washing clothes.
Consequently, consistent with the requirements of EPCA, DOE views angle of access as a performance-related feature for clothes washers that cannot be eliminated from the market through adoption of an energy conservation standard.
In contrast to the examples discussed in the preceding paragraph, DOE has historically viewed a consumers interaction with a furnace or water heater to be a simple one, whereby the user interacts only to initiate demand for heated air or water. After the consumer adjusts the thermostat or faucet, the user receives the requested heated air or water. There is no noticeable difference to the consumer in output based upon the type of technology non-condensing or condensing or venting used by the appliance, and, therefore, there is no difference in the utility derived from the appliance based on these factors. As noted previously, this approach had been DOEs longstanding interpretation of EPCAs features provision in the context of these appliances until the January 2021 Final Interpretive Rule.
On this topic, commenters had divergent viewpoints as to whether noncondensing technology, and associated venting, constitute a performancerelated feature under EPCA. One group of commenters clearly favored the approach proposed in the August 2021
NOPIR. For example, NEEA commented in support of DOEs proposed interpretation that the technology used to supply heated air or water does not constitute a performance-related feature and that venting type or the use of non-condensing technology does not constitute a performance-related feature as defined in EPCA. NEEA, No.
137 at p. 1 NEEA asserted that users are typically unaware of their water heaters or furnaces venting category or heating technology, as it does not provide them
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with any utility. NEEA, No. 137 at p.
2 CEC generally supported reinstatement of the prior interpretation of features, stating that the interpretation from the January 2021
Final Interpretive Rule is unjustified, is not authorized by law, misapplies EPCA, and will preserve inefficient products that offer no unique utility to the consumer. CEC, No. 134 at p. 1
CEC agreed that the use of noncondensing technology and associated venting is not a performance-related feature for the purpose of the EPCA
prohibitions because it does not have a direct effect on the utility of providing the consumer with hot air or water.
CEC, No. 134 at p. 3
NBI commented that non-condensing technologies used in furnaces and water heaters do not represent a performancerelated feature that justifies a different energy conservation standard. NBI, No.
128 at p. 1 NBI further commented that non-condensing technology does not represent a unique utility to consumers that is separate from the appliances function of providing heated air or water. Id.
The Institute for Policy Integrity stated that, while there may be some undefined, limited number of cases in which installation of a condensing unit could result in the loss of some usable space, in all other cases, such installation would not result in the loss of usable space. The commenter went on to state that the potential unavailability of a unit using noncondensing technology would not result in any significant loss of utility for many, if not most, consumers. Institute for Policy Integrity, No. 145 at p. 3
A.O. Smith stated that the proposed reversal of the January 2021 Final Interpretive Rule would return the Department to the most sensible reading of the statute. A.O. Smith, No. 133 at p. 2 The State Attorneys General commented that furnaces and water heaters using non-condensing technologies and associated venting offer no unique utility to consumers beyond the basic function of providing heated air and heated water and that DOE had a strong statutory basis for its historical interpretation of features.
State Attorneys General, No. 136 at pp.
2, 3
Another group of commenters supported the January 2021 Final Interpretive Rule as the proper application of EPCAs features provision. Among this group, Bradford White asserted that, based on the dictionary definitions of attribute and characteristic, a feature would include an attribute, which could be
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