[Federal Register Volume 87, Number 32 (Wednesday, February 16, 2022)]
[Proposed Rules]
[Pages 8745-8752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03190]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 87, No. 32 / Wednesday, February 16, 2022 / 
Proposed Rules  

[[Page 8745]]



DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2022-BT-DET-0006]
RIN 1904-AF31


Energy Conservation Program: Proposed Determination of Portable 
Electric Spas as a Covered Consumer Product

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Notification of proposed determination and request for comment.

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SUMMARY: The U.S. Department of Energy (``DOE'') has tentatively 
determined that portable electric spas qualify as a covered product 
under Part A of Title III of the Energy Policy and Conservation Act, as 
amended (``EPCA''). DOE has tentatively determined that coverage of 
portable electric spas is necessary and appropriate to carry out the 
purposes of EPCA and that the average U.S. household energy use for 
portable electric spas is likely to exceed 100 kilowatt-hours per year.

DATES: Written comments, data, and information are requested and will 
be accepted on or before April 18, 2022.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at www.regulations.gov. Follow the 
instructions for submitting comments. Alternatively, interested persons 
may submit comments, identified by docket number EERE-2022-BT-DET-0006, 
by any of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
    2. Email: To [email protected]. Include docket 
number EERE-2022-BT-DET-0006 in the subject line of the message.
    No telefacsimiles (``faxes'') will be accepted. For detailed 
instructions on submitting comments and additional information on this 
process, see section VI of this document.
    Although DOE has routinely accepted public comment submissions 
through a variety of mechanisms, including postal mail and hand 
delivery/courier, DOE has found it necessary to make temporary 
modifications to the comment submission process in light of the ongoing 
COVID-19 pandemic. DOE is currently suspending receipt of public 
comments via postal mail and hand delivery/courier. If a commenter 
finds that this change poses an undue hardship, please contact 
Appliance Standards Program staff at (202) 586-1445 to discuss the need 
for alternative arrangements. Once the COVID-19 pandemic health 
emergency is resolved, DOE anticipates resuming all of its regular 
options for public comment submission, including postal mail and hand 
delivery/courier.
    Docket: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at www.regulations.gov. All documents in the docket are listed 
in the www.regulations.gov index. However, not all documents listed in 
the index may be publicly available, such as information that is exempt 
from public disclosure.
    The docket web page can be found at www.regulations.gov/docket/EERE-2022-BT-DET-0006. The docket web page contains instructions on how 
to access all documents, including public comments, in the docket. See 
section VI, ``Public Participation,'' for further information on how to 
submit comments through www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:  Mr. Jeremy Dommu, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 
20585-0121. Telephone: (202) 586-9870. Email: 
[email protected].
    Ms. Kristin Koernig, U.S. Department of Energy, Office of the 
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 
20585-0121. Telephone: (202) 586-3593. Email: 
[email protected].
    For further information on how to submit a comment or review other 
public comments and the docket, contact the Appliance and Equipment 
Standards Program staff at (202) 287-1445 or by email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority
II. Current Rulemaking Process
III. Scope of Coverage
IV. Evaluation of Portable Electric Spas as a Covered Product 
Subject to Energy Conservation Standards
    A. Coverage Necessary or Appropriate To Carry Out the Purposes 
of EPCA
    B. Average Household Energy Use
    C. Preliminary Determination
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act of 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act of 2001
    K. Review Under Executive Order 13211
    L. Information Quality
VI. Public Participation
    A. Submission of Comments
    B. Issues on Which DOE Seeks Comments
VII. Approval of the Office of the Secretary

I. Statutory Authority

    EPCA \1\ authorizes DOE to regulate the energy efficiency of a 
number of consumer products and certain industrial equipment. (42 
U.S.C. 6291-6317) Title III, Part B \2\ of EPCA established the Energy 
Conservation Program for Consumer Products Other Than Automobiles, 
which sets forth a variety of provisions designed to improve energy 
efficiency for certain consumer products, referred to generally as 
``covered products.'' \3\ In addition to specifying a list of consumer 
products that are covered products, EPCA contains provisions that 
enable the

[[Page 8746]]

Secretary of Energy to classify additional types of consumer products 
as covered products. For a given consumer product to be classified as a 
covered product, the Secretary must determine that:
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    \1\ All references to EPCA in this document refer to the statute 
as amended through the Energy Act of 2020, Public Law 116-260 (Dec. 
27, 2020).
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
    \3\ The enumerated list of covered products is at 42 U.S.C. 
6292(a)(1)-(19).

    (1) Classifying the product as a covered product is necessary or 
appropriate to carry out the purposes of EPCA; and
    (2) The average annual per-householdenergy use by products of 
such type is likely to exceed 100 kilowatt-hours (``kWh'') (or its 
British thermal unit (``Btu'') equivalent) per year. (42 U.S.C. 
6292(b)(1)) \4\
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    \4\ DOE has defined ``household'' to mean an entity consisting 
of either an individual, a family, or a group of unrelated 
individuals, who reside in a particular housing unit. For the 
purpose of this definition:
    (1) Group quarters means living quarters that are occupied by an 
institutional group of 10 or more unrelated persons, such as a 
nursing home, military barracks, halfway house, college dormitory, 
fraternity or sorority house, convent, shelter, jail or correctional 
institution.
    (2) Housing unit means a house, an apartment, a group of rooms, 
or a single room occupied as separate living quarters, but does not 
include group quarters.
    (3) Separate living quarters means living quarters:
    (i) To which the occupants have access either:
    (A) Directly from outside of the building, or
    (B) Through a common hall that is accessible to other living 
quarters and that does not go through someone else's living 
quarters, and
    (ii) Occupied by one or more persons who live and eat separately 
from occupant(s) of other living quarters, if any, in the same 
building. 10 CFR 430.2.

    When attempting to add additional consumer product types to the 
``covered products'' classification, DOE must first determine whether 
these criteria from 42 U.S.C. 6292(b)(1) are met. Once such a 
determination is made, the Secretary may prescribe test procedures to 
measure the energy efficiency or energy use of such product. (42 U.S.C. 
6293(b)(1)(B)) Furthermore, once a product is determined to be a 
covered product, the Secretary may set standards for such product, 
subject to the provisions in 42 U.S.C. 6295(o) and (p), provided that 
DOE determines that the four additional criteria at 42 U.S.C. 6295(l) 
have been met. Specifically, 42 U.S.C. 6295(l) requires the Secretary 
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to determine that:

    (1) The average household energy use of the products has 
exceeded 150 kWh per household for a 12-month period;
    (2) The aggregate 12-month energy use of the products has 
exceeded 4200 gigawatt-hours;
    (3) Substantial improvement in the energy efficiency of products 
of such type is technologically feasible; and
    (4) Application of a labeling rule under 42 U.S.C. 6294 is 
unlikely to be sufficient to induce manufacturers to produce, and 
consumers and other persons to purchase, covered products of such 
type (or class) that achieve the maximum energy efficiency that is 
technologically feasible and economically justified. (42 U.S.C. 
6295(l)(1))

II. Current Rulemaking Process

    DOE has not previously conducted a rulemaking for portable electric 
spas. In a presentation provided to DOE on December 6, 2021, the Pool 
and Hot Tub Alliance (``PHTA'') asserted that portable electric spas 
meet the EPCA thresholds of significance required for the Secretary to 
classify a consumer product as a covered product under 42 U.S.C. 
6295(l) and 42 U.S.C. 6292(b)(1).\5\ DOE independently examined the 
PHTA's assertion that portable electric spas meet EPCA's significance 
thresholds in section IV.B of this document and tentatively finds the 
PHTA's claims to be credible. Therefore, DOE has decided to proceed 
with this proposed determination. If, after public comment, DOE issues 
a final determination of coverage for this product, DOE may prescribe 
both test procedures and energy conservation standards for this 
product. DOE will publish a final decision on coverage as a separate 
notice, which is an action that will be completed prior to the 
initiation of any test procedure or energy conservation standards 
rulemaking. See 10 CFR part 430 subpart C appendix A section 5(c). If 
DOE determines that coverage is warranted, DOE will proceed with its 
typical rulemaking process for both test procedures and standards. Id. 
DOE is not proposing test procedures or energy conservation standards 
as part of this proposed determination. If DOE proceeds with a 
rulemaking to establish energy conservation standards, DOE would 
determine if portable electric spas satisfy the provisions of 42 U.S.C. 
6295(l)(1) during the course of that rulemaking.
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    \5\ Portable Electric Spas, information provided to DOE from 
PHTA, California Investor-Owned Utilities and Appliance Standards 
Awareness Project, www.regulations.gov/docket/EERE-2022-BT-DET-0006-
0001.
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III. Scope of Coverage

    Portable electric spas are factory-built hot tubs or spas that are 
intended for the immersion of people in heated, temperature-controlled 
water that is circulated in a closed system. Portable electric spas are 
not covered products currently. A wide range of portable electric spa 
products are available on the market, including standard spas, exercise 
spas, combination spas, and inflatable spas.
    To help inform its proposed scope of coverage, DOE reviewed 
existing classifications of portable electric spas developed by the 
PHTA--the industry trade group for portable electric spas--and used in 
California Energy Commission (``CEC'') regulations.\6\ The following 
paragraphs discuss DOE's examination of these sources and present the 
proposed definition that would provide the basis for coverage of 
portable electric spas under EPCA.
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    \6\ See section 1602(g)(2) of Article 4 of Division 2 of Title 
20 of the California Code of Regulations (``CCR'').
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    PHTA publishes a standard method of test, certified by American 
National Standards Institute (``ANSI''), for measuring the performance 
of portable electric spas, titled ANSI/Association of Pool and Spa 
Professionals (``APSP'')/International Code Council (``ICC'') 14 2019, 
American National Standard for Portable Electric Spa Energy Efficiency 
(``ANSI/APSP/ICC-14 2019'').\7\ PHTA describes this standard as 
providing recommended minimum guidelines for testing the energy 
efficiency of factory-built residential portable electric spas. The 
standard methods included in ANSI/APSP/ICC-14 2019 provide a means to 
compare and evaluate the energy efficiency of different models of 
portable electric spas in conditions relevant to product use. Section 3 
of ANSI/APSP/ICC-14 2019 defines ``Portable Electric Spa'' as ``a 
factory-built electric spa or hot tub, supplied with equipment for 
heating and circulating water at the time of sale or sold separately 
for subsequent attachment.'' ANSI/APSP/ICC-14 2019 also defines ``Spa'' 
as ``a product intended for the immersion of persons in temperature-
controlled water circulated in a closed system, and not intended to be 
drained and filled with each use. A spa usually includes a filter, a 
heater (electric, solar, or gas), a pump or pumps, and a control, and 
may also include other equipment, such as lights, blowers, and water 
sanitizing equipment.'' The term ``hot tub'' is defined in ANSI/APSP/
ICC-14 2019 as a synonym of ``spa.''
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    \7\ ANSI/APSP/ICC-14 2019 is available at: https://webstore.ansi.org/standards/apsp/ansiapspicc142019.
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    In addition, Section 3 of ANSI/APSP/ICC-14 2019 defines the 
following categories of portable electric spas:
    (1) Standard Spa: A portable electric spa that is not an inflatable 
spa, an exercise spa, or the exercise spa portion of a combination spa.
    (2) Exercise Spa: (Also known as a swim spa): Variant of a portable 
electric spa in which the design and construction includes specific 
features and equipment to produce a water flow intended to allow 
recreational physical activity including, but not limited to, swimming 
in place.

[[Page 8747]]

    (3) Combination Spa: A portable electric spa with two separate and 
distinct reservoirs, where (a) one reservoir is an exercise spa; (b) 
the second reservoir is a standard spa; and (c) each reservoir has an 
independent water temperature setting control.
    (4) Inflatable Spa: A portable electric spa where the structure is 
collapsible and is designed to be filled with air to form the body of 
the spa.
    The CEC defines portable electric spa and most of the spa 
categories consistently with ANSI/APSP/ICC-14 2019,\8\ though CEC does 
not define ``spa''. For the purpose of this analysis, DOE evaluated 
portable electric spas as a factory-built electric spa or hot tub, 
supplied with equipment for heating and circulating water at the time 
of sale or sold separately for subsequent attachment, as defined by 
ANSI/APSP/ICC-14 2019 and the CEC. DOE proposes to adopt this 
definition to inform stakeholders while DOE continues its analysis. DOE 
notes that this proposed definition would exclude units that are site-
assembled, such as portable electric spas that are permanently 
installed in the ground or attached to a pool, and spas sold with 
methods of water heating other than electricity, such as propane or 
natural gas spa heaters or wood-fired hot tubs.
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    \8\ See section 1602(g)(2) of Article 4 of Division 2 of Title 
20 of the CCR. There is some variation in the definition of exercise 
spa as compared to ANSI/APSP/ICC-14 2019.
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    As stated previously in this document, EPCA authorizes DOE to 
classify a type of consumer product as a covered product upon making 
certain determinations. EPCA defines a ``consumer product'' as any 
article (other than an automobile) of a type--(A) which in operation 
consumes, or is designed to consume, energy; and (B) which, to any 
significant extent, is distributed in commerce for personal use or 
consumption by individuals; without regard to whether such article of 
such type is in fact distributed in commerce for personal use or 
consumption by an individual. (42 U.S.C. 6291(1)) As such, when 
considering the potential scope of coverage, DOE does not consider 
whether an individual product is distributed in commerce for 
residential or commercial use, but whether it is of a type of product 
distributed in commerce for residential use.
    DOE seeks feedback from interested parties on its proposed 
definition and scope of coverage of portable electric spas.

IV. Evaluation of Portable Electric Spas as a Covered Product Subject 
to Energy Conservation Standards

    The following sections describe DOE's preliminary evaluation of 
whether portable electric spas fulfill the criteria for being added as 
a covered product pursuant to 42 U.S.C. 6292(b)(1). As stated 
previously, DOE may classify a consumer product as a covered product 
if:

    (1) Classifying products of such type as covered products is 
necessary or appropriate to carry out the purposes of EPCA; and
    (2) The average annual per-household energy use by products of 
such type is likely to exceed 100 kWh (or its Btu equivalent) per 
year. 42 U.S.C. 6292(b)(1)

A. Coverage Necessary or Appropriate To Carry Out the Purposes of EPCA

    After evaluating the estimated shipments of portable electric spas 
and the potential availability of technologies that can be employed to 
improve the efficiency of portable electric spas, DOE has preliminarily 
determined that coverage of portable electric spas is necessary and 
appropriate to carry out the purposes of EPCA, which include:

    (1) To conserve energy supplies through energy conservation 
programs, and, where necessary, the regulation of certain energy 
uses; and
    (2) To provide for improved energy efficiency of motor vehicles, 
major appliances, and certain other consumer products. (42 U.S.C. 
6291(4)-(5))

    Although portable electric spas are not currently subject to energy 
conservation standards under EPCA, as discussed, several states have 
adopted standards, starting with California in 2004 and including 
Arizona, Colorado, Connecticut, Maine, Massachusetts, Nevada, Oregon, 
Rhode Island, Vermont, and Washington.\9\ According to the DOE Energy 
Information Administration's Residential Energy Consumption Survey 
(``RECS''), there were 8.4 million spas in the U.S. in 2015.\10\ DOE 
also obtained data from PKData, and, based on that data, DOE estimates 
that in, 2019, the existing stock of residential hot tubs (as separate 
from the stock of spas in residential pools) was approximately 5.5 
million, with approximately 95% of these being electric spas.\11\ Based 
on these same data, DOE also estimates that approximately 230,000 
electric spas were shipped in 2019. Id.
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    \9\ https://appliance-standards.org/product/portable-electric-spas.
    \10\ https://www.eia.gov/consumption/residential/data/2015/. DOE 
would note that this number likely includes spas that do not meet 
the proposed definition of portable electric spa.
    \11\ P.K. Data Inc. 2020 Pool Heaters Market Data: Custom 
Compilation for Lawrence Berkeley National Laboratory. 2020. 
Alpharetta, GA. (Last accessed July 1, 2021.) https://www.pkdata.com/reports-store.html#/.
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    DOE requests data and information regarding the current annual 
shipments of portable electric spas and the installed base of portable 
electric spas, specifying the scope of products included in any such 
estimates (e.g., standard, exercise, combination, inflatable, etc.).
    In 2018, the CEC published a final staff report analyzing 
efficiency standards and marking for spas.\12\ That report examined 
potentially available technologies that can be employed to improve the 
efficiency of portable electric spas. The report included several 
options but stated that improved insulation (in terms of improved 
insulation coverage, type and quantity) within the tub walls and of the 
tub cover offer the greatest opportunity for improved efficiency. The 
report also mentioned further attainable efficiency improvements 
through, but not limited to, improved spa cover design, and improved 
pump and motor system design within the spa itself. The findings of 
this report indicate that technologies exist, and are already available 
in the market, to reduce the energy consumption of portable electric 
spas.
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    \12\ Final Staff Report, Analysis of Efficiency Standards and 
Marking for Spas, 2018 Appliance Efficiency Rulemaking for Spas 
Docket Number 18-AAER-02 TN 222413. Available online at https://efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
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    DOE requests comment on the availability of technologies for 
improving energy efficiency of portable electric spas. Specifically, 
DOE requests comment on the available technologies for improving energy 
efficiency as they apply to the different types of portable electric 
spas under consideration.

B. Average Household Energy Use

    Additionally, DOE analyzed whether portable electric spas would 
meet the average annual per-household energy use criteria in 42 U.S.C. 
6292(b)(1)(B). For this determination, DOE estimated the average 
household energy use threshold for portable electric spas, in 
households that use the product, using power consumption data reported 
in the CEC database (``MAEDbS'').\13\ The ratings of certified portable 
electric spas contained in MAEDbS demonstrate significant variation in 
the total power consumption among different models of standard, 
combination, and exercise spas that are currently available.

[[Page 8748]]

MAEDbS is the only publicly available source that provides energy 
consumption data for portable electric spas of which DOE is aware. For 
each model, MAEDbS lists the standby power in watts (``W''), along with 
other relevant capacity and performance metrics. MAEDbS certification 
requires that standby power is measured according to ANSI/APSP/ICC-14 
2019, the required California test procedure as specified in the CCR at 
20 CCR 1604(g)(2). For portable electric spas measured according to the 
test procedure, standby mode is the predominant mode of spa operation 
and includes power use to maintain the set temperature and to circulate 
and filter the water. Power use in standby mode may also include some 
ancillary power use, e.g., to power a controller. CEC estimated that 
standby mode represents 75 percent of the energy consumed by a portable 
electric spa, with the remainder being startup mode (when the spa is 
heating up to its operating temperature) and active mode (when the 
spa's water jets are operating).\14\
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    \13\ CEC Modernized Appliance Efficiency Database System. 
Accessed December 17, 2021. Available online at https://cacertappliances.energy.ca.gov.
    \14\ Final Staff Report, Analysis of Efficiency Standards and 
Marking for Spas, 2018 Appliance Efficiency Rulemaking for Spas 
Docket Number 18-AAER-02 TN 222413. Available online at https://efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
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    CEC has set standards specifying maximum allowable standby power 
consumption as a function of spa volume separately for: (1) Standard 
spas and exercise spas capable of maintaining 100 degrees F during the 
test; (2) exercise spas; and (3) inflatable spas.\15\ Table IV.1 shows 
the reported range of power consumption by volume for the different spa 
categories specified in the database for models. DOE further divided 
the metrics in Table IV.1 by the volume bins defined by the CEC in its 
report.\16\
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    \15\ See section 1605.3(g)(7)(A) of Article 4 of Division 2 of 
Title 20 of the CCR.
    \16\ Final Staff Report, Analysis of Efficiency Standards and 
Marking for Spas, 2018 Appliance Efficiency Rulemaking for Spas 
Docket Number 18-AAER-02 TN 222413 at p. 35, Available online at 
https://efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.

                        Table IV.1--Reported Power Consumption by Spa Category and Volume
----------------------------------------------------------------------------------------------------------------
                                                                                 Standby power (W)
           CEC index              Volume range      Model count  -----------------------------------------------
                                    (gallons)                         Minimum         Average         Maximum
----------------------------------------------------------------------------------------------------------------
                                                  Standard Spas
----------------------------------------------------------------------------------------------------------------
1A............................         100 < 180              38              82             130             169
1B............................         181 < 300             289              40             156             215
2.............................         301 < 600             568              75             204             295
3.............................         601 < 900               7             208             277             350
5.............................     1,201 < 1,500               3             275             375             458
7.............................     1,801 < 2,100               6             559             588             602
8.............................     2,101 < 2,400               3             401             508             561
9.............................            >2,401              14             414             424             555
----------------------------------------------------------------------------------------------------------------
                                                 Inflatable Spas
----------------------------------------------------------------------------------------------------------------
1A............................         100 < 180               8             221             237             239
1B............................       1,181 < 300               7             232             233             233
----------------------------------------------------------------------------------------------------------------
                                                  Exercise Spas
----------------------------------------------------------------------------------------------------------------
3.............................         601 < 900               2             212             212             212
4.............................       901 < 1,200              14             163             278             445
5.............................     1,201 < 1,500              26             265             391             491
6.............................     1,501 < 1,800              47             263             424             551
7.............................     1,801 < 2,100              24             217             452             555
8.............................     2,101 < 2,400              14             413             525             657
9.............................            >2,401               6             437             462             474
----------------------------------------------------------------------------------------------------------------
                                     Combination Spas (Standard Spa Portion)
----------------------------------------------------------------------------------------------------------------
1B............................         181 < 300               7             160             180             207
2.............................         301 < 600              25             145             201             243
----------------------------------------------------------------------------------------------------------------
                                     Combination Spas (Exercise Spa Portion)
----------------------------------------------------------------------------------------------------------------
6.............................     1,501 < 1,800              22             162             373             563
7.............................     1,801 < 2,100              10             234             382             467
----------------------------------------------------------------------------------------------------------------

    During the process of updating the standards for California in 
2018, CEC reported a duty cycle of 5,040 hours per year for inflatable 
spas (which are intended for seasonal use) and 8,760 hours per year for 
standard, exercise, and combination spas.\17\ And according to RECS, 
spas that are in use are used on average 7.4 months per year.\18\ 
However, DOE notes that the spas may be kept full and in standby mode 
the entire year regardless of active use of the spa.
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    \17\ Ibid.
    \18\ U.S. Energy Information Administration, Residential Energy 
Consumption Survey (RECS), 2015, https://www.eia.gov/consumption/residential/data/2015/.
---------------------------------------------------------------------------

    Using average power consumption for a standard spa of 194 W (the 
lowest average of the categories in MAEDbS) and 8,760 hours per year of 
use, DOE estimates an average standby energy consumption of 1,699 kWh 
per year for portable electric spas. DOE notes that

[[Page 8749]]

use of the minimum standby power found in MAEDbS (40 W) and the 
estimated 5,040 hours per year of use for inflatable spas (and similar 
to 7.4 months of use found in RECS) exceeds 200 kWh per year energy 
use. In addition, the rest of the country may have shipments of 
portable electric spas that exceed California's and other states' 
maximum power consumption standards.\19\
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    \19\ See PHTA information provided to DOE for a list of states 
with minimum efficiency requirements, www.regulations.gov/docket/EERE-2022-BT-DET-0006.
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    In a presentation provided to DOE in December 2021,\20\ PHTA also 
provided an estimate of household energy use based on RECS. PHTA 
estimated that portable electric spas consume 5.755 billion kWh/year in 
the U.S. and there are 3.673 million households in the U.S. that 
operate portable electric spas regularly. This estimate results in 
average energy consumption of 1,567 kWh per year per household, which 
is similar to DOE's estimate of 1,699 kWh per year.
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    \20\ PHTA information provided to DOE for a list of states with 
minimum efficiency requirements, www.regulations.gov/docket/EERE-2022-BT-DET-0006.
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    For these reasons, although there may be variation in distribution 
due to climate or spa size that might impact national average power 
consumption as compared to the estimate of 194 W (either higher or 
lower), DOE has tentatively determined that the average annual per-
household energy use for portable electric spas is very likely to 
exceed 100 kWh per year, satisfying the provisions of 42 U.S.C. 
6292(b)(1).
    DOE requests comment on the national representativeness of the spa 
volume bins shown in Table IV.1 of this document. DOE requests comment 
or information on whether these volume bins are applicable to all types 
of spas.
    DOE requests data and information on the range of standby power 
consumption of spas in non-regulated markets.
    DOE requests data and information regarding standby power 
consumption at the different volumes for all types of portable electric 
spas.
    DOE request data and information regarding active power consumption 
at the different volumes for all types of portable electric spas.

C. Preliminary Determination

    Based on the foregoing, DOE has tentatively determined that: 
Classifying portable electric spas, as proposed to be defined in this 
document, is necessary and appropriate to carry out the purposes of 
EPCA; and the average annual per-household energy use by portable 
electric spas is likely to exceed 100 kWh per year. As such, DOE has 
preliminarily determined to classify portable electric spas as a 
covered product under Part A of Title III of EPCA, as amended.
    DOE requests comment on whether classifying portable electric spas 
as a covered product is necessary and appropriate to carry out the 
purposes of EPCA.
    DOE also requests comment on its preliminary determination that the 
average annual per-household energy use by portable electric spas is 
likely to exceed 100 kWh per year.

V. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    This proposed determination has been determined to be not 
significant for purposes of Executive Order (``E.O.'') 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (Oct. 4, 1993). As a 
result, the Office of Management and Budget (``OMB'') did not review 
this proposed determination.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis (``IRFA'') 
for any rule that by law must be proposed for public comment, unless 
the agency certifies that the proposed rule, if promulgated, will not 
have a significant economic impact on a substantial number of small 
entities. As required by E.O. 13272, ``Proper Consideration of Small 
Entities in Agency Rulemaking'' 67 FR 53461 (Aug. 16, 2002), DOE 
published procedures and policies on February 19, 2003, to ensure that 
the potential impact of its rules on small entities are properly 
considered during the DOE rulemaking process. 68 FR 7990. DOE has made 
its procedures and policies available on the Office of the General 
Counsel's website (www.energy.gov/gc/office-assistant-general-counsel-legislation-regulation-and-energy-efficiency).
    This proposed determination would not establish test procedures or 
energy conservation standards for portable electric spas. If adopted, 
the proposed determination would only positively determine that future 
standards may be warranted and should be explored in an energy 
conservation standards and test procedure rulemaking. Economic impacts 
on small entities would be considered in the context of such 
rulemakings. Therefore, DOE initially concludes that the impacts of the 
proposed determination would not have a ``significant economic impact 
on a substantial number of small entities,'' and that the preparation 
of an IRFA is not warranted. DOE will transmit the certification and 
supporting statement of factual basis to the Chief Counsel for Advocacy 
of the Small Business Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act

    Manufacturers of covered products must certify to DOE that their 
products comply with any applicable energy conservation standards. To 
certify compliance, manufacturers must first obtain test data for their 
products according to the DOE test procedures, including any amendments 
adopted for those test procedures. DOE has established regulations for 
the certification and recordkeeping requirements for all covered 
consumer products and commercial equipment. (See generally 10 CFR part 
429.) The collection-of-information requirement for the certification 
and recordkeeping is subject to review and approval by OMB under the 
Paperwork Reduction Act (``PRA''). This requirement has been approved 
by OMB under OMB control number 1910-1400. Public reporting burden for 
the certification is estimated to average 35 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number. As noted previously, this 
proposed determination, if made final, would not establish any testing 
requirements or energy conservation standards for portable electric 
spas that would be subject to the PRA.

D. Review Under the National Environmental Policy Act of 1969

    DOE is analyzing this proposed determination in accordance with the 
National Environmental Policy Act (``NEPA'') and DOE's NEPA 
implementing regulations (10 CFR part 1021). DOE's regulations include 
a categorical exclusion for rulemakings that are strictly procedural. 
10 CFR part 1021, subpart D, appendix A6. DOE anticipates that this 
rulemaking qualifies for categorical exclusion A6

[[Page 8750]]

because it is a strictly procedural rulemaking and otherwise meets the 
requirements for application of a categorical exclusion. See 10 CFR 
1021.410. DOE will complete its NEPA review before issuing the final 
determination.

E. Review Under Executive Order 13132

    E.O. 13132, ``Federalism'' 64 FR 43255 (Aug. 10, 1999), imposes 
certain requirements on federal agencies formulating and implementing 
policies or regulations that preempt state law or that have federalism 
implications. The Executive order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. The Executive order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process that it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this proposed determination 
and had tentatively determined that it would not have a substantial 
direct effect on the States, on the relationship between the Federal 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. DOE notes, 
however, that if the agency determines that the products at issue in 
today's proposed determination are covered and energy conservation 
standards are subsequently promulgated for these products, any existing 
State standards would be preempted by EPCA. EPCA governs and prescribes 
Federal preemption of State regulations as to energy conservation for 
the products that are the subject of this proposed determination. 
States can petition DOE for exemption from such preemption to the 
extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) 
Therefore, no further action is required by E.O. 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform,'' imposes on federal agencies the general duty to 
adhere to the following requirements: (1) Eliminate drafting errors and 
ambiguity, (2) write regulations to minimize litigation, (3) provide a 
clear legal standard for affected conduct rather than a general 
standard, and (4) promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Regarding the review required by section 3(a), 
section 3(b) of E.O. 12988 specifically requires that Executive 
agencies make every reasonable effort to ensure that the regulation: 
(1) Clearly specifies the preemptive effect, if any, to be given to the 
law (2) clearly specifies any effect on existing Federal law or 
regulation, (3) provides a clear legal standard for affected conduct, 
(4) specifies the retroactive effect, if any, to be given to the law, 
(5) defines key terms, either explicitly or by reference to other 
statues that explicitly define those terms, and (6) addresses other 
important issues affecting clarity and general draftsmanship of 
legislation under any guidelines issued by the Attorney General. 
Section 3(c) of E.O. 12988 requires Executive agencies to review 
regulations in light of applicable standards in sections 3(a) and 3(b) 
to determine whether they are met or it is unreasonable to meet one or 
more of those standards. DOE completed the required review and 
determined that, to the extent permitted by law, this proposed 
determination meets the relevant standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'') 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a proposed regulatory action likely to result in a rule that may 
cause the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA requires a Federal agency to develop 
an effective process to permit timely input by elected officers of 
State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirement that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. 62 FR 12820. DOE's policy statement is also available at 
www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    DOE examined this proposed determination according to UMRA and its 
statement of policy and determined that the proposed determination does 
not contain a Federal intergovernmental mandate, nor is it expected to 
require expenditures of $100 million or more in any one year by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector. As a result, the analytical requirements of UMRA do not apply.

H. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This proposed determination would not have any impact on 
the autonomy or integrity of the family as an institution. Accordingly, 
DOE has concluded that it is not necessary to prepare a Family 
Policymaking Assessment.

I. Review Under Executive Order 12630

    Pursuant to E.O. 12630, ``Governmental Actions and Interference 
with Constitutionally Protected Property Rights'' 53 FR 8859 (Mar. 15, 
1988), DOE has determined that this proposed determination would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act 
of 2001

    Section 515 of the Treasury and General Government Appropriation 
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to 
review most disseminations of information to the public under 
information quality guidelines established by each agency pursuant to 
general guidelines issued by OMB. OMB's guidelines were published at 67 
FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 
62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving 
Implementation of the Information Quality Act (April 24, 2019), DOE 
published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has 
reviewed this proposed determination under the OMB and DOE guidelines 
and has concluded that it is consistent with applicable policies in 
those guidelines.

[[Page 8751]]

K. Review Under Executive Order 13211

    E.O. 13211, ``Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 
2001), requires Federal agencies to prepare and submit to the Office of 
Information and Regulatory Affairs (``OIRA'') at OMB a Statement of 
Energy Effects for any proposed significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgates or is expected to lead to promulgation of a final 
rule, and that (1) is a significant regulatory action under E.O. 12866, 
or any successor Executive order; and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    This proposed determination to classify portable electric spas as 
covered products is not a significant regulatory action under Executive 
Order 12866. Moreover, it would not have a significant adverse effect 
on the supply, distribution, or use of energy, nor has it been 
designated as such by the Administrator of OIRA. Accordingly, DOE has 
not prepared a Statement of Energy Effects.

L. Information Quality

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (``OSTP''), issued its Final Information 
Quality Bulletin for Peer Review (``the Bulletin''). 70 FR 2664 (Jan. 
14, 2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the Bulletin is to enhance the quality and credibility of 
the Government's scientific information. DOE has determined that the 
analyses conducted for this proposed determination do not constitute 
``influential scientific information,'' which the Bulletin defines as 
``scientific information the agency reasonably can determine will have 
or does have a clear and substantial impact on important public 
policies or private sector decisions.'' 70 FR 2667 (Jan. 14, 2005). The 
analyses were subject to pre-dissemination review prior to issuance of 
this proposed determination.

VI. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding this 
notification of proposed determination no later than the date provided 
at the DATES section at the beginning of this document. Interested 
parties may submit comments, data, and other information using any of 
the methods described in the ADDRESSES section at the beginning of this 
document.
    Submitting comments via www.regulations.gov. The 
www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to DOE 
Building Technologies staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and submitter representative name (if any). If your 
comment is not processed properly because of technical difficulties, 
DOE will use this information to contact you. If DOE cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, DOE may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment or in any documents attached to your comment. 
Any information that you do not want to be publicly viewable should not 
be included in your comment, nor in any document attached to your 
comment. Otherwise, persons viewing comments will see only first and 
last names, organization names, correspondence containing comments, and 
any documents submitted with the comments.
    Do not submit information to www.regulations.gov for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (``CBI'')). Comments submitted 
through www.regulations.gov cannot be claimed as CBI. Anyone submitting 
comments through the website will waive any CBI claims for the 
information submitted. For information on submitting CBI, see the 
Confidential Business Information section.
    DOE processes submissions made through www.regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that www.regulations.gov 
provides after you have successfully uploaded your comment.
    Submitting comments via email. Comments and documents submitted via 
email also will be posted to www.regulations.gov. If you do not want 
your personal contact information to be publicly viewable, do not 
include it in your comment or any accompanying documents. Instead, 
provide your contact information on a cover letter. Include your first 
and last names, email address, telephone number, and optional mailing 
address. With this instruction followed, the cover letter will not be 
publicly viewable as long as it does not include any comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. Facsimile submissions will not 
be accepted.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, or text (ASCII) file format. Provide documents that are not 
secured, that are written in English, and that are free of any defects 
or viruses. Documents should not contain special characters or any form 
of encryption and, if possible, they should carry the electronic 
signature of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. Pursuant to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email two well-marked copies: One copy of the document marked 
``confidential'' including all the information believed to be 
confidential, and one copy of the document marked ``non-confidential'' 
with the information believed to be confidential deleted. DOE will make 
its own determination about the confidential status of the information 
and treat it according to its determination.
    It is DOE policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except

[[Page 8752]]

information deemed to be exempt from public disclosure).

B. Issues on Which DOE Seeks Comments

    DOE welcomes comments on all aspects of this proposed 
determination. DOE is particularly interested in receiving comments and 
views of interested parties concerning the following issues:
     Proposed definition and scope of coverage of portable 
electric spas;
     Data and information regarding current annual shipments of 
portable electric spas and the installed base of portable electric 
spas, specifying the scope of products included in any such estimates 
(e.g., standard, exercise, combination, inflatable, etc.);
     Availability or lack of availability of technologies for 
improving energy efficiency of portable electric spas;
     Data and information regarding annual energy use estimates 
for portable electric spas;
     Whether classifying portable electric spas as a covered 
product is necessary or appropriate to carry out the purposes of EPCA; 
and
     Whether the average annual per-household energy use by 
portable electric spas is likely to exceed 100 kWh per year.
    DOE is interested in receiving views concerning other relevant 
issues that participants believe would affect its ability to establish 
test procedures and energy conservation standards for portable electric 
spas.
    After the expiration of the period for submitting written 
statements, DOE will consider all comments and additional information 
that is obtained from interested parties or through further analyses, 
and it will prepare a final determination.

VII. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this 
notification of proposed determination.

Signing Authority

    This document of the Department of Energy was signed on February 9, 
2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary 
for Energy Efficiency and Renewable Energy, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on February 10, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2022-03190 Filed 2-15-22; 8:45 am]
BILLING CODE 6450-01-P