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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Rules and Regulations
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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 performance-related feature that 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 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 of 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 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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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.
On January 20, 2021, the White House issued E.O. 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 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.
As noted in the August 2021 NOPIR, DOE undertook a review of the final interpretation and withdrawal of proposed rulemakings published in the Federal Register on January 15, 2021, in response to E.O. 13990. 86 FR 48049, 48051 August 27, 2021. While E.O.
13990 triggered the Departments reevaluation, DOE is relying on the analysis and reasoning presented in the August 2021 NOPIR and in this document, based upon EPCA, to withdraw the January 2021 Final Interpretive Rule and to re-instate its historical interpretation of the features provision as applied to noncondensing technology, because DOE
believes the historical interpretation reflects the better reading of the requirements in EPCA.
B. Historical Interpretation of the Features Provision As discussed previously in this document, 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
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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 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 based on the usefulness or value of the specific feature to the consumer, rather than based on considerations including design parameters that do not impact what the consumer perceives as the function 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. 6295o2A
B 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
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