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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Rules and Regulations
IER stated that there is no explanation provided for the assertion made by DOE
that the January 2021 Final Interpretive Rule would impede innovation and the development of more efficient technologies, and IER further stated that the market is moving toward more efficient appliances. IER, No. 138 at p.
7 In addition, IER argued that Congresss purposes and goals in enacting EPCA were not that energy efficiency should overtake all competing concerns. Id. at p. 8.
Crown Boiler, New Yorker Boiler, and U.S. Boiler reiterated their prior recommendations that DOE use compatibility with Category I venting as the feature that should be protected, stating that this approach would address the concern with potentially locking in a particular technology. Crown Boiler, No. 127 at pp. 56; New Yorker Boiler, No. 130 at p. 6; U.S. Boiler, No. 129 at p. 6 Crown Boiler, New Yorker Boiler, and U.S. Boiler further commented that DOEs reliance on E.O. 13990 to initiate the review of the January 2021 Final Interpretive Rule suggests that DOEs reversal is rooted more in politics than in fault with the current rule. Crown Boiler, No. 127 at p. 1; New Yorker Boiler, No. 130 at p. 1; U.S. Boiler, No.
129 at p. 1.
Similarly, APGA et al. commented that DOE cannot rely solely on the terms of E.O. 13990 as its justification for changing its position, and that DOE
must follow the statute and not render policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.
APGA et al., No. 140 at p. 5.
Additionally, GEUAG stated that nothing has changed in the applicable legal standards and requirements that govern such determinations and asserted that DOEs decision is a result of changing policy preferences. The commenter stated that DOE cited E.O.
13990 as part of its rationale to justify its change in position, but argued that such executive actions cannot supersede existing statutes, such as EPCA, that protect consumers from regulatory overreach. GEUAG, No. 132 at p. 8.
APGA et al. and GEUAG asserted that promotion of electrification is not an authorized objective under EPCA, and that the proposed interpretation would expand DOEs authority beyond that authorized by Congress. APGA et al., No. 140 at pp. 2, 5. 6, 7, 11; GEUAG, No.
132 at p. 5 GEUAG asserted that the proposed interpretation in the August 2021 NOPIR would arbitrarily and unnecessarily erode the important role played by natural gas and propane in favor of energy sources that have significant and negative environmental
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and human rights issues, or require technologies that cannot meet demands currently served by natural gas and propane. GEAUAG also stated that the reliance on such alternative energy sources will put the United States in competition for rare earth minerals against those with policies in conflict with the best interests of Americans.
GEUAG, No. 132 at p. 3 DOE
understands this comment to be referencing the use of rare earth minerals in certain technologies that are commonly associated with electrification, such as batteries. APGA
et al. further commented that EPCAs purpose to conserve energy must be considered in terms of the product being regulated gas products, not savings incurred by switching to a different product class electric products. APGA
et al., No. 140 at p. 11.
As stated previously, DOE initiated a re-review of the January 2020 Final Interpretative Rule in response to E.O
13990. However, the final interpretation, which reinstates DOEs historical interpretation, is based solely on EPCA, review of public comments received, and the analysis presented in this document. Contrary to assertions from certain commenters, it is not based on political considerations or a policy to promote electrification. Instead, as explained in detail previously, it is based on what the Department has concluded to be the better reading of the features provision in light of EPCAs direction for DOE to establish new and amended energy conservation standards for covered products and equipment to achieve the congressional purpose of improving the energy efficiency of major appliances and certain other consumer products. 42 U.S.C. 62015 It is further noted that EPCA directs DOE to regulate enumerated types of covered products and equipment, not specific subcategories of equipment tied to the technologies they utilize. Not surprisingly, different groups of commenters on the August 2021 NOPIR
had diametrically opposed viewpoints as to the lawful interpretation of the relevant statutory provisions.
In the 2016 Furnaces SNOPR, DOE
expressed concern that separate standards based on preserving a technology used to produce heated air or the associated type of venting would not place any restriction on the use of non-condensing appliances and, therefore, would not be a meaningful standard, resulting in little or no change in products offered, their market shares, or energy savings. See 81 FR 65720, 6575265753 Sept. 23, 2016. DOE
remains concerned that determining features solely on product technology,
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rather than on how the consumer interacts with and benefits from the feature, could undermine the Appliance Standards Program established by EPCA.
As previously discussed and identified by commenters, newer technologies are being developed and introduced into the market that, when mature could address issues of difficult installation orphaned appliances in particular, thereby allowing consumers to switch from a non-condensing furnace to a condensing furnace while permitting continued use of existing common venting in a greater variety of applications. This venting technology may allow a consumer to obtain the efficiency of a condensing furnace using the existing venting in a residence by sharing venting space with a water heater. However, DOE also notes that such technology was not incorporated into the analysis conducted for the prior rulemakings and would include such technology in its analysis only after evaluating the technological feasibility of any such technology in future rulemakings.
In response to Crown Boiler, New Yorker Boiler, and U.S. Boilers suggestions to rely on venting capability as the feature, DOE previously determined that such an approach would increase the complexity and regulatory burden of its regulatory framework e.g., the certification of appliances capable of operating with multiple categories of venting with little benefit. 86 FR 4776, 4972. Jan. 15, 2021 Additionally, DOE notes that much of the same reasoning for rejecting an interpretation of the features provision to cover non-condensing technology would apply. Venting compatibility is not an aspect of the product that is accessible to the layperson and is based on user operation and interaction with the product. The issues sought to be addressed by these commenters recommendation are issues of cost related to installation and would result in preserving less-efficient technologies.
If DOE is required to maintain separate product classes to preserve less-efficient technologies i.e., if noncondensing products remain available, the development and advancement of such technologies may be slowed, if not stalled. As efficiencies are increased for non-condensing appliances to nearcondensing efficiency levels i.e., higher efficiencies, small amounts of acidic condensate would form that would require upgrades similar to what is required for condensing systems. Thus, were the product and equipment classes tied to non-condensing technology,
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