[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Rules and Regulations]
[Pages 38600-38629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11782]



[[Page 38599]]

Vol. 88

Tuesday,

No. 113

June 13, 2023

Part II





Department of Energy





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10 CFR Parts 429 and 430





Energy Conservation Program: Test Procedure for Portable Electric Spas; 
Final Rule

  Federal Register / Vol. 88 , No. 113 / Tuesday, June 13, 2023 / Rules 
and Regulations  

[[Page 38600]]


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DEPARTMENT OF ENERGY

10 CFR Parts 429 and 430

[EERE-2022-BT-TP-0024]
RIN 1904-AF35


Energy Conservation Program: Test Procedure for Portable Electric 
Spas

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (``DOE'') is establishing 
definitions, a test procedure, and representation provisions for 
portable electric spas. Currently, portable electric spas are not 
subject to DOE test procedures or energy conservation standards. DOE is 
adopting a test procedure for measuring the standby loss for portable 
electric spas. The test method references the relevant industry test 
standard with certain additions and modifications.

DATES: The effective date of this rule is July 13, 2023. Compliance 
with the final rule will be mandatory for representations of fill 
volume and standby loss made on or after the compliance date of any 
energy conservation standards for portable electric spas. The 
incorporation by reference of certain materials listed in this rule is 
approved by the Director of the Federal Register on July 13, 2023.

ADDRESSES: The docket, which includes Federal Register notices, public 
meeting attendee lists and transcripts, 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 those containing information that is exempt from 
public disclosure.
    A link to the docket web page can be found at www.regulations.gov/docket/EERE-2022-BT-TP-0024. The docket web page contains instructions 
on how to access all documents, including public comments, in the 
docket.
    For further information on how to review the docket, contact the 
Appliance and Equipment Standards Program staff at (202) 287-1445 or by 
email: [email protected].

FOR FURTHER INFORMATION CONTACT: 
    Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Office, EE-2J, 
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].

SUPPLEMENTARY INFORMATION: DOE incorporates by reference the following 
industry standards into 10 CFR part 430:
    ANSI/APSP/ICC-14 2019 American National Standard for Portable 
Electric Spa Energy Efficiency; ANSI-approved November 19, 2019.
    Copies of ANSI/APSP/ICC-14 2019 can be obtained from the Pool & Hot 
Tub Alliance (``PHTA''), 2111 Eisenhower Avenue, Suite 500, Alexandria, 
VA 22314, or by going to www.phta.org.
    CSA C374:11 (R2021) Energy performance of hot tubs and spas; 
published November 2011, Update No. 1--National Standard of Canada--
April 2012.
    Copies of CSA C374:11 (R2021) can be obtained from CSA Group, 178 
Rexdale Blvd., Toronto, ON, Canada M9W 1R3, or by going to 
www.csagroup.org.
    See section IV.N of this document for a further discussion of these 
standards.

Table of Contents

I. Authority and Background
    A. Authority
    B. Background
II. Synopsis of the Final Rule
III. Discussion
    A. General Comments
    B. Scope and Definitions
    1. Scope of DOE Test Procedure
    2. Definitions of Categories of Portable Electric Spas
    3. Therapeutic Spas
    4. Portable Electric Spa Size
    C. Energy Consumption Metric
    1. Background
    2. Modes of Use
    3. Metric for Active Mode Energy Consumption
    D. Test Method
    1. Referenced Industry Test Method
    2. Excluded Sections of ANSI/APSP/ICC-14 2019
    3. Ambient Air Temperature
    4. Chamber
    a. Requirements in ANSI/APSP/ICC-14 2019
    b. Chamber Floor Requirements
    5. Electrical Supply Voltage and Amperage Configuration
    6. Fill Volume
    7. Spa Cover
    8. Air Temperature Measurement Location
    9. Water Temperature Settings
    10. Water Temperature Requirements
    11. Standby Loss Calculation
    E. Represented Values Provisions
    1. Basic Model
    2. Represented Values
    F. Test Procedure Costs
    G. Effective and Compliance Dates
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866, 13563, and 14904
    B. Review Under the Regulatory Flexibility Act
    1. Description and Estimate of Small Entities Regulated
    2. Description and Estimate of Compliance Requirements
    C. Review Under the Paperwork Reduction Act of 1995
    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, 1999
    I. Review Under Executive Order 12630
    J. Review Under Treasury and General Government Appropriations 
Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under Section 32 of the Federal Energy Administration 
Act of 1974
    M. Congressional Notification
    N. Description of Materials Incorporated by Reference
V. Approval of the Office of the Secretary

I. Authority and Background

    DOE 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. 
See 10 CFR 430.2. Currently, portable electric spas are not subject to 
DOE test procedures or energy conservation standards.
    On September 2, 2022, DOE published a final determination in the 
Federal Register (``September 2022 Final Determination'') in which it 
determined that portable electric spas qualify as a ``covered product'' 
under Part A of Title III of the Energy Policy and Conservation Act, 
Public Law 94-163, as amended (``EPCA'').\1\ 87 FR 54123. In the 
September 2022 Final Determination, DOE determined that coverage of 
portable electric spas is necessary or 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 (``kWh'') 
per year. Id. at 87 FR 54127.
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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), which reflect the last statutory amendments that impact 
Parts A and A-1 of EPCA.
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    Accordingly, portable electric spas are now included in the list of 
``covered products'' for which DOE is authorized to establish and amend 
energy

[[Page 38601]]

conservation standards and test procedures. (42 U.S.C. 6292(a)(20))
    The following sections discuss DOE's authority to establish a test 
procedure for portable electric spas and relevant background 
information regarding DOE's consideration of a test procedure for this 
product.

A. Authority

    EPCA 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 of EPCA \2\ 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 products, referred to as ``covered products.'' \3\ In addition 
to specifying a list of consumer products that are covered products, 
EPCA contains provisions that enable the Secretary of Energy to 
classify additional types of consumer products as covered products. To 
classify a consumer product as a covered product, the Secretary must 
determine that classifying the consumer product as a covered product is 
necessary or appropriate to carry out the purpose of EPCA and the 
average annual per household \4\ use by such a product is likely to 
exceed 100 kWh per year. (42 U.S.C. 6292(b)(1))
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    \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).
    \4\ The definition for ``household'' is found at 10 CFR 430.2.
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    The energy conservation program under EPCA consists essentially of 
four parts: (1) testing, (2) labeling, (3) Federal energy conservation 
standards, and (4) certification and enforcement procedures. Relevant 
provisions of EPCA specifically include definitions (42 U.S.C. 6291), 
test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), 
energy conservation standards (42 U.S.C. 6295), and the authority to 
require information and reports from manufacturers (42 U.S.C. 6296).
    The testing requirements consist of test procedures that 
manufacturers of covered products must use as the basis for (1) 
certifying to DOE that their products comply with the applicable energy 
conservation standards adopted under EPCA (42 U.S.C. 6295(s)), and (2) 
making other representations about the efficiency of those products (42 
U.S.C. 6293(c)). Similarly, DOE must use these test procedures to 
determine whether the products comply with any relevant standards 
promulgated under EPCA. (42 U.S.C. 6295(s))
    Federal energy efficiency requirements for covered products 
established under EPCA generally supersede State laws and regulations 
concerning energy conservation testing, labeling, and standards. (42 
U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for 
particular State laws or regulations, in accordance with the procedures 
and other provisions of EPCA. (42 U.S.C. 6297(d))
    Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures 
DOE must follow when prescribing or amending test procedures for 
covered products. EPCA requires that any test procedures prescribed or 
amended under this section shall be reasonably designed to produce test 
results which measure energy efficiency, energy use, or estimated 
annual operating cost of a covered product during a representative 
average use cycle (as determined by the Secretary) or period of use and 
shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
    If the Secretary determines, on her own behalf or in response to a 
petition by any interested person, that a test procedure should be 
prescribed, the Secretary shall promptly publish in the Federal 
Register proposed test procedures and afford interested persons an 
opportunity to present oral and written data, views, and arguments with 
respect to such procedure. The comment period on a proposed rule to 
prescribe a test procedure shall be at least 60 days and may not exceed 
270 days. In prescribing a test procedure, the Secretary shall take 
into account such information as the Secretary determines relevant to 
such procedure, including technological developments relating to energy 
use or energy efficiency of the type (or class) of covered products 
involved. (42 U.S.C. 6293(b)(2))
    In addition, EPCA requires that DOE amend its test procedures for 
all covered products to integrate measures of standby mode and off mode 
energy consumption into the overall energy efficiency, energy 
consumption, or other energy descriptor, unless the current test 
procedure already incorporates the standby mode and off mode energy 
consumption, or if such integration is technically infeasible. (42 
U.S.C. 6295(gg)(2)(A)(i)-(ii)) If an integrated test procedure is 
technically infeasible, DOE must prescribe separate standby mode and 
off mode energy use test procedures for the covered product, if a 
separate test is technically feasible. (42 U.S.C. 6295(gg)(2)(A)(i)) 
Any such amendment must consider the most current versions of the 
International Electrotechnical Commission (``IEC'') Standard 62301 \5\ 
and IEC Standard 62087 \6\ as applicable. (42 U.S.C. 6295(gg)(2)(A))
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    \5\ IEC 62301, Household electrical appliances--Measurement of 
standby power (Edition 2.0, 2011-01).
    \6\ IEC 62087, Audio, video and related equipment--Methods of 
measurement for power consumption (Edition 1.0, Parts 1-6: 2015, 
Part 7: 2018).
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    DOE is publishing this final rule in accordance with the statutory 
authority in EPCA.

B. Background

    DOE has not previously conducted a test procedure rulemaking for 
portable electric spas. DOE published in the Federal Register a notice 
of proposed rulemaking (``NOPR'') on October 18, 2022 (``October 2022 
NOPR''). 87 FR 63356. DOE held a public meeting related to this NOPR on 
November 17, 2022 (hereafter, the ``NOPR public meeting'').
    DOE received comments in response to the October 2022 NOPR from the 
interested parties listed in Table I.1.

           Table I.1--List of Commenters With Written Submissions in Response to the October 2022 NOPR
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                                            Reference in this final   Comment No. in
              Commenter(s)                           rule               the docket          Commenter type
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American Association for Laboratory       A2LA......................               6  Accreditation Body.
 Accreditation.
Appliance Standards Awareness Project,    Joint Advocates...........              12  Advocacy Organizations.
 American Council for an Energy-
 Efficient Economy, Natural Resources
 Defense Council, New York State Energy
 Research and Development Authority, and
 the Northwest Energy Efficiency
 Alliance.
Bullfrog International..................  Bullfrog..................              11  Manufacturer.

[[Page 38602]]

 
California Energy Commission............  CEC.......................              13  State Government Agency.
Jacuzzi Group (Sundance Spas, Jacuzzi     Jacuzzi Group.............               9  Manufacturer.
 Hot Tubs, Dimension One Spas,
 ThermoSpas).
Master Spas.............................  Master Spas...............               7  Manufacturer.
Pacific Gas and Electric Company, San     CA IOUs...................               8  Utilities.
 Diego Gas & Electric, and Southern
 California Edison; collectively, the
 California Investor-Owned Utilities.
Pool & Hot Tub Alliance, International    PHTA/IHTA.................              10  Trade Associations.
 Hot Tub Association.
Texas A&M Master of Public Service &      Texas A&M Students........               4  Individuals.
 Administration students: Rachel
 Trusler, Madeline Luster, and Taylor
 Rapp.
Watkins Wellness........................  Watkins...................              14  Manufacturer.
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    A parenthetical reference at the end of a comment quotation or 
paraphrase provides the location of the item in the public record.\7\ 
To the extent that interested parties have provided written comments 
that are substantively consistent with any oral comments provided 
during the NOPR public meeting, DOE cites the written comments 
throughout this final rule. DOE did not identify any oral comments 
provided during the NOPR public meeting that are not substantively 
addressed by written comments.
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    \7\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking to develop 
test procedures for portable electric spas (Docket No. EERE-2022-BT-
TP-0024, which is maintained at www.regulations.gov). The references 
are arranged as follows: (commenter name, comment docket ID number, 
page of that document).
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II. Synopsis of the Final Rule

    In this final rule, DOE is establishing a test procedure for 
measuring the energy use of portable electric spas in a new appendix GG 
to subpart B of part 430 of title 10 of the Code of Federal Regulations 
(``CFR'') (``appendix GG''). DOE is incorporating the applicable 
industry test method published by the Pool & Hot Tub Alliance 
(``PHTA'') \8\ in partnership with the International Code Council 
(``ICC'') and approved by the American National Standards Institute 
(``ANSI'') in ANSI/APSP/ICC-14 2019, ``American National Standard for 
Portable Electric Spa Energy Efficiency'' (``ANSI/APSP/ICC-14 2019''), 
with certain exceptions and additions. The test method produces a 
measure of the energy consumption of portable electric spas that 
represents the average power consumed by the spa, normalized to a 
standard temperature difference between the ambient air and the water 
in the spa, while the cover is on and the product is operating in its 
default operation mode. As discussed further in section III.C.3 of this 
final rule, DOE is referring to this power use metric as ``standby 
loss.''
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    \8\ The PHTA is the result of a 2019 merger between the 
Association of Pool and Spa Professionals (``APSP'') and the 
National Swimming Pool Foundation (``NSPF''). The reference to APSP 
has been retained in the ANSI designation of ANSI/APSP/ICC-14 2019.
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    DOE reviewed the relevant sections of ANSI/APSP/ICC-14 2019 and has 
determined that ANSI/APSP/ICC-14 2019, in conjunction with the 
additional test methods and calculations adopted in appendix GG, 
produces test results that reflect the energy efficiency, energy use, 
or estimated operating costs of a portable electric spa during a 
representative average use cycle. (42 U.S.C. 6293(b)(3))
    DOE also reviewed the burdens associated with conducting the 
portable electric spa test procedure adopted in this final rule and 
based on the results of such analysis, has determined that the test 
procedure would not be unduly burdensome to conduct. (42 U.S.C. 
6293(b)(3)) DOE's analysis of the burdens associated with the test 
procedure is presented in section III.F of this document.
    This final rule also adopts definitions for certain categories of 
portable electric spas in appendix GG and establishes requirements 
regarding the sampling plan and representations for portable electric 
spas in 10 CFR part 429.
    The effective date for the test procedure adopted in this final 
rule is 30 days after publication of this document in the Federal 
Register. Representations of energy use or energy efficiency must be 
based on testing in accordance with the test procedure beginning on the 
compliance date of any energy conservation standards for portable 
electric spas.

III. Discussion

    In the following sections, DOE discusses each topic considered 
regarding the portable electric spa test procedure. For each discussion 
topic, DOE provides relevant background information, summarizes the 
proposal from the October 2022 NOPR, summarizes stakeholder comments 
received, responds to those comments, and provides justification for 
the finalized test provisions adopted by this final rule.

A. General Comments

    DOE received general comments in response to the October 2022 NOPR 
that are relevant to establishing a test procedure for portable 
electric spas.
    PHTA/IHTA, the Jacuzzi Group, and Bullfrog encouraged DOE to move 
forward with both a test procedure and an energy conservation standard 
rule based on ANSI/APSP/ICC-14 2019. (PHTA/IHTA, No. 10 at p. 2; 
Jacuzzi Group, No. 9; Bullfrog, No. 11 at p. 1) A2LA, the CA IOUs, and 
the CEC generally supported the inclusion of ANSI/APSP/ICC-14 2019 in 
the proposed test procedure. (A2LA, No. 6 at p. 1; CA IOUs, No. 8 at p. 
1; CEC, No. 13 at p. 2) The Texas A&M Students and the Joint Advocates 
expressed support for DOE advancing the rulemaking for portable 
electric spas. (Texas A&M Students, No. 4 at p. 2; Joint Advocates, No. 
12 at p. 1) And Master Spas, Jacuzzi Group, and Bullfrog all supported 
the written responses from PHTA/IHTA. (Master Spas, No. 7 at p. 1.; 
Jacuzzi Group, No. 9; Bullfrog, No. 11 at p. 1)
    As discussed in the following sections, DOE is adopting a test 
procedure that is based on ANSI/APSP/ICC-14 2019 with certain additions 
and modifications.
    Additionally, PHTA/IHTA commented that DOE may want to consider 
whether anything in the proposed DOE test procedure or future energy 
conservation standards could force manufacturers to insulate portable 
electric spas to such an extreme that portable electric spas overheat 
during hot weather. (PHTA/IHTA, No. 10 at p. 19) PHTA/IHTA explained 
that

[[Page 38603]]

customer service departments receive calls from owners wanting to know 
how to cool off their portable electric spa, saying it is overheating 
from excess heat retention in warm climates. (Id.) PHTA/IHTA indicated 
that this can be a safety concern, and that it could happen more 
frequently with global warming and increasingly higher temperatures. 
(Id.) PHTA/IHTA questioned whether there is a tipping point between hot 
ambient temperatures versus energy savings on heat in cold climates in 
colder months that should be considered both in the proposed test 
procedure as well as a future energy conservation standard. (Id.) PHTA/
IHTA stated that they looked forward to providing any needed data, 
testing, or analysis to DOE. (Id.)
    In response, DOE notes that there is nothing in this test procedure 
final rule that will force manufacturers to change the amount that they 
insulate portable electric spas because the test procedure specifies 
only the method to measure energy performance and does not specify any 
required levels of energy performance. Required levels of energy 
performance would be considered in a separate energy conservation 
standard rulemaking, and DOE encourages PHTA/IHTA to provide comments 
on the topic of overheating to that rulemaking if PHTA/IHTA is 
concerned about portable electric spa overheating at that time.

B. Scope and Definitions

1. Scope of DOE Test Procedure
    As part of the October 2022 NOPR, DOE reviewed the applicable 
industry test procedure ANSI/APSP/ICC-14 2019,\9\ which provides 
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 types 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.'' This ANSI/APSP/ICC-14 2019 definition is identical to the 
definition used by the CEC and adopted by DOE in the September 2022 
Final Determination. 87 FR 54123, 54125. Section 3 of ANSI/APSP/ICC-14 
2019 also defines certain categories of portable electric spas, as 
discussed in section III.B.2 of this final rule.
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    \9\ ANSI/APSP/ICC-14 2019 is available at webstore.ansi.org/standards/apsp/ansiapspicc142019.
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    In the October 2022 NOPR, DOE tentatively concluded that all 
products on the market can be tested using methods consistent with or 
similar to those in ANSI/APSP/ICC-14 2019. 87 FR 63356, 63359. DOE 
proposed that the scope of the test procedure include all products 
meeting the definition of ``portable electric spa'' in 10 CFR 430.2. 
Id.
    DOE requested comment on its proposal for the scope of the test 
procedure to include all products that meet the definition of 
``portable electric spa.'' Id. Additionally, DOE requested comment on 
whether any additional products should be included within the scope of 
the DOE test procedure and whether any products that meet the 
definition of ``portable electric spa'' should be excluded from the 
scope of the DOE test procedure, and if so, on what basis. Id.
    The CEC commented in support of the scope and definitions proposed 
by DOE in the October 2022 NOPR. (CEC, No. 13 at p. 2)
    PHTA/IHTA supported the inclusion of all products meeting the 
definition of portable electric spa within the scope of the test 
procedure. (PHTA/IHTA, No. 10 at p. 9) PHTA/IHTA also commented that 
sensory deprivation and cold/ice bath products could unintentionally 
fall under the proposed scope and that DOE could consider clarifying 
that these products are excluded from the scope. (Id.) PHTA/IHTA stated 
that although sensory deprivation and cold/ice bath products are 
similar to portable electric spas in some ways, they are very different 
in other ways and are not compatible with the current or proposed 
portable electric spa test procedures. (Id.) PHTA/IHTA noted that cold/
ice bath products are not always supplied with heating functions. 
(PHTA/IHTA, No. 10 at p. 10)
    In response to PHTA/IHTA's recommendation to clarify the exclusion 
of sensory deprivation and cold/ice bath products from the scope of the 
test procedure, DOE has reviewed products on the market that appear to 
fit the description of these categories. Many of the models that DOE 
reviewed heat and circulate water. To the extent that such a product is 
supplied with equipment for heating and circulating water at the time 
of sale or sold separately for subsequent attachment, such a product 
would meet the definition of a portable electric spa. PHTA/IHTA also 
did not specify what product characteristics would differentiate 
sensory deprivation and cold/ice bath products that meet the portable 
electric spa definition from other types of portable electric spas. As 
a result, in this final rule, DOE is not categorically excluding these 
products from the scope of the portable electric spa test procedure.
    However, DOE notes that it may consider sensory deprivation and 
cold/ice bath products when evaluating potential energy conservation 
standards. To the extent that these products have significantly 
different design, operation, and efficiency characteristics as compared 
to other portable electric spas, DOE may consider whether separate 
treatment is appropriate. Any consideration of potential energy 
conservation standards for separate categories of portable electric 
spas would be addressed in a separate rulemaking. Further, as discussed 
in section III.F of this document, manufacturers are not required to 
test the subject portable electric spas in accordance with this test 
method until such time as compliance is required with any future 
applicable energy conservation standards.
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is finalizing the scope 
of coverage to include all products that meet the definition of 
``portable electric spa.''
2. Definitions of Categories of Portable Electric Spas
    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): A 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.
    (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 designed to be filled with air to form the body of the 
spa.
    These categories of portable electric spas defined in ANSI/APSP/
ICC-14 2019 differ in the way they are tested and in the allowed energy 
consumption specified in ANSI/APSP/ICC-14 2019. Based on DOE's review 
of the portable electric spa market, DOE tentatively

[[Page 38604]]

determined in the October 2022 NOPR that the category definitions 
defined in ANSI/APSP/ICC-14 2019 accurately categorize the products 
available on the market. 87 FR 63356, 63360. DOE proposed to include 
definitions for ``standard spa,'' ``exercise spa,'' ``combination 
spa,'' and ``inflatable spa'' in section 2 of appendix GG that are 
generally consistent with those category definitions in ANSI/APSP/ICC-
14 2019.\10\ Id. For all definitions other than ``exercise spa,'' DOE 
proposed a definition identical to the wording in ANSI/APSP/ICC-14 
2019. Id. For ``exercise spa,'' DOE proposed to include only the first 
paragraph of the definition from ANSI/APSP/ICC-14 2019 because the 
second paragraph \11\ of the definition is informative, describing 
examples of products that may be included within the definition. Id.
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    \10\ Section numbers in appendix GG as proposed in the October 
2022 NOPR were one whole number lower than the corresponding section 
numbers in appendix GG as finalized in this final rule. This final 
rule uses the section numbering as finalized in this final rule in 
all discussion of appendix GG to avoid potential confusion.
    \11\ The second paragraph of the definition of ``exercise spa'' 
in ANSI/APSP/ICC-14 2019 states the following: Exercise spas may 
include peripheral jetted seats intended for water therapy, heater, 
circulation and filtration system, or may be a separate distinct 
portion of a combination spa and may have separate controls. These 
aquatic vessels are of a design and size such that it has an 
unobstructed volume of water large enough to allow the 99th 
Percentile Man as specified in ANSI/APSP/ICC-16 to swim or exercise 
in place.
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    DOE requested comment on whether the definitions for the categories 
of portable spas proposed in section 2 of appendix GG (i.e., ``standard 
spa,'' ``exercise spa,'' ``combination spa,'' and ``inflatable spa'') 
adequately delineate the categories of portable electric spas and 
whether any additional or different categories are warranted. Id.
    In response to the October 2022 NOPR, the CA IOUs commented that, 
based on their market research, the current proposed definitions cover 
all products labeled as portable electric spas. (CA IOUs, No. 8 at p. 
2) The CA IOUs stated that the current categories adequately delineate 
the portable electric spa market and that the terms are well understood 
by advocates, industry, and regulators. (Id.)
    The CEC commented in support of the proposed definitions for 
standard spa, exercise spa, combination spa, and inflatable spa. (CEC, 
No. 13 at p. 2) The CEC noted that the proposed scope and definitions 
would align with ANSI/APSP/ICC-14 2019 and with California's Code of 
Regulations and would maintain consistency with several States that 
have adopted ANSI/APSP/ICC-14 2019 or that reference California's 
regulations. (Id.)
    PHTA/IHTA commented that, while they support DOE's proposed 
definitions of ``standard spa,'' ``combination spa,'' and ``inflatable 
spa,'' they recommend also adopting the second paragraph of the 
definition of ``exercise spa'' in ANSI/APSP/ICC-14 2019. (PHTA/IHTA, 
No. 10 at p. 10) PHTA/IHTA explained that, although the second 
paragraph is descriptive, it actually defines the product because the 
first sentence separates an exercise spa from a standard spa, while the 
second sentence separates an exercise spa from a pool. (Id.) PHTA/IHTA 
stated that this additional description under the definition of 
``exercise spa'' was created in response to multiple incidents of 
misclassification in order to prevent future misclassifications. (Id.) 
PHTA/IHTA expressed concern that eliminating the second paragraph from 
the definition in the DOE test procedure could imply that this 
classification is no longer accurate, thereby causing 
misclassifications and misapplications of DOE's regulations. (Id.)
    In response to PHTA/IHTA's comment regarding the definition of 
``exercise spa,'' DOE notes that the second paragraph of the definition 
as written in ANSI/APSP/ICC-14 2019 does not actually distinguish 
exercise spas from either standard spas or pools. The first sentence of 
the second paragraph lists potential features of exercise spas, 
including peripheral jetted seats, a heater, and a filtration and 
circulation system, all of which are also characteristic of standard 
spas. As a result, this sentence does not actually separate exercise 
spas from standard spas, as stated in PHTA/IHTA's comment. The first 
sentence also says that an exercise spa ``may be a separate distinct 
portion of a combination spa and may have separate controls,'' but this 
phrase does not add descriptive detail beyond what is included in DOE's 
proposed definition for ``combination spa.'' The second sentence states 
that an exercise spa holds an unobstructed volume of water sufficiently 
large for a 99th percentile man to swim in place. PTHA/IHTA's comment 
states that this sentence distinguishes exercise spas from pools. 
However, as a lower bound on volume, the requirement to fit a 99th 
percentile man does not actually distinguish exercise spas from larger 
pools. Finally, DOE notes that the CEC regulations use a definition for 
``exercise spa'' that is similar to DOE's proposed definition and does 
not include the second paragraph of the definition as stated in ANSI/
APSP/ICC-14 2019.\12\ Because a similar definition is used already as 
the basis of State coverage for portable electric spas, DOE concludes 
its own proposed single paragraph definition would not cause confusion 
among manufacturers or test labs.
---------------------------------------------------------------------------

    \12\ The CEC defines exercise spas as follows: ``Exercise spa' 
(also known as a `swim spa') means a portable electric spa that 
includes specific features and equipment to produce water flow for 
water physical therapy or physical fitness activity, including, but 
not limited to, swimming in place.'' See section 1602(g)(2) of 
Article 4 of Division 2 of Title 20 of the California Code of 
Regulations.
---------------------------------------------------------------------------

    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is establishing 
definitions for categories of portable electric spas that are identical 
to those in the proposed appendix GG.
3. Therapeutic Spas
    Section 1.3 of ANSI/APSP/ICC-14 2019 states that spas operated for 
medical treatment or physical therapy, among other types,\13\ are not 
included within the scope of ANSI/APSP/ICC-14 2019. However, DOE noted 
in the October 2022 NOPR that the definition of ``exercise spa'' in 
section 3 of ANSI/APSP/ICC-14 2019 indicates that exercise spas may 
include peripheral jetted seats intended for water therapy. 87 FR 
63324, 63360. DOE discussed in the October 2022 NOPR that it had 
reviewed the market and found that ``therapeutic,'' ``water therapy,'' 
or ``hydrotherapy'' applications are frequently advertised in marketing 
materials for many portable electric spas, including many models that 
do not appear to have features that are different than those found on 
models that do not mention therapeutic applications in their marketing 
materials. Id.
---------------------------------------------------------------------------

    \13\ Section 1.3 of ANSI/APSP/ICC-14 2019 states the following: 
These requirements do not apply to public spas (ANSI/APSP-2), 
permanently installed or inground spas (ANSI/APSP/ICC-3), or other 
spas, such as those operated for medical treatment, physical 
therapy, or other purposes.
---------------------------------------------------------------------------

    In the October 2022 NOPR, DOE stated its presumption that the types 
of spas operated for medical treatment or physical therapy intended to 
be referenced by section 1.3 of ANSI/APSP/ICC-14 2019 would not be 
portable and, therefore, would not be considered a portable electric 
spa (emphasis added). Id. DOE noted in the October 2022 NOPR that, to 
the extent that any of the categories of spas referenced by section 1.3 
of ANSI/APSP/ICC-14 2019 do not meet the definition of a portable 
electric spa, such products would not be within the scope of the test 
procedure. Id.

[[Page 38605]]

    DOE requested comment on whether there are portable electric spas 
used for special purposes, such as those operated for medical treatment 
or physical therapy, that should be excluded from the scope of the 
proposed test procedure or tested in a different manner. Id. If so, DOE 
requested comment on the method to determine the spas to exclude or 
test differently. Id.
    In response to the October 2022 NOPR, PHTA/IHTA stated that both 
portable electric spas and in-ground spas can be used for medical 
treatment or physical therapy, however in-ground spas are outside of 
the scope of this rulemaking. (PHTA/IHTA, No. 10 at p. 10) PHTA/IHTA 
noted they are not aware of any method to exclude or test differently 
portable electric spas that are used for medical treatment, physical 
therapy, or other special purposes. (Id.)
    The CEC commented that spas intended for medical treatment or 
physical therapy would not be portable and, therefore, would not be 
considered portable electric spas. (CEC, No. 13 at p. 2) The CEC also 
indicated that it has not received inquiries regarding spas intended 
for medical treatment or physical therapy that would pose an issue in 
defining the scope. (Id.)
    The Texas A&M Students commented that medical spas should still be 
subject to the same testing requirements as all other portable electric 
spas, because there is little distinction between what is and is not a 
medical spa and most medical spas are from the same manufacturers as 
recreational ones are but are simply sold and marketed on medical 
websites. (Texas A&M Students, No. 4 at p. 1)
    Based on the comments received and DOE's review of the portable 
electric spa market, DOE has determined that there is no need to 
explicitly exclude any products used for special purposes--such as 
those for therapeutic purposes--that meet the definition of portable 
electric spa from the scope of the Federal test procedure.
    Therefore, for the reasons discussed in the October 2022 NOPR and 
in the preceding paragraphs, DOE is finalizing the scope as proposed in 
the October 2022 NOPR and not adopting any specific exclusion for 
products that meet the definition of portable electric spa and are 
intended for special purposes, such as those for therapeutic purposes, 
in this final rule.
4. Portable Electric Spa Size
    ANSI/APSP/ICC-14 2019 does not specify any minimum or maximum size 
of portable electric spas to limit the scope of ANSI/APSP/ICC-14 2019.
    Based on DOE's tentative conclusion that all portable electric spas 
on the market can be tested using methods consistent with or similar to 
those in ANSI/APSP/ICC-14 2019, DOE tentatively concluded in the 
October 2022 NOPR that there is no need to limit the scope of the DOE 
test procedure based on the size of the portable electric spa. 87 FR 
63356, 63360. Therefore, DOE did not propose to specify any minimum or 
maximum size to limit the scope of the proposed test procedure. Id.
    DOE requested comment on its tentative determination not to propose 
a minimum or maximum size to limit the scope of the proposed test 
procedure. Id.
    In response to the October 2022 NOPR, the CEC and PHTA/IHTA 
supported DOE's tentative determination not to propose a minimum or 
maximum size for portable electric spas in the scope of the test 
procedure. (CEC, No. 13 at p. 2; PHTA/IHTA, No. 10 at p. 10)
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, DOE is not specifying any minimum or maximum size 
to limit the scope of the portable electric spa test procedure in this 
final rule.

C. Energy Consumption Metric

1. Background
    As discussed previously in this document, EPCA requires that any 
test procedures prescribed or amended must be reasonably designed to 
produce test results which reflect energy efficiency, energy use, or 
estimated annual operating cost of a given type of covered product 
during a representative average use cycle, and that test procedures not 
be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))
    In addition, EPCA requires that DOE amend its test procedures for 
all covered products to integrate measures of standby mode and off mode 
energy consumption into the overall energy efficiency, energy 
consumption, or other energy descriptor, taking into consideration the 
most current versions of IEC Standards 62301 and 62087, unless the 
current test procedure already fully accounts for and incorporates the 
standby mode and off mode energy consumption. (42 U.S.C. 
6295(gg)(2)(A)) If an integrated test procedure is technically 
infeasible, DOE must prescribe a separate standby mode and off mode 
energy use test procedure for the covered product, if technically 
feasible. (42 U.S.C. 6295(gg)(2)(A)(ii))
    EPCA defines three different modes of operation in 42 U.S.C. 
6295(gg)(1)(A). ``Active mode'' means the condition in which an energy-
using product is connected to a main power source, has been activated, 
and provides one or more main functions. ``Standby mode'' means the 
condition in which an energy-using product is connected to a main power 
source and offers one or more of the following user-oriented or 
protective functions: (a) to facilitate the activation or deactivation 
of other functions (including active mode) by remote switch (including 
remote control), internal sensor, or timer; or (b) continuous 
functions, including information or status displays (including clocks) 
or sensor-based functions. ``Off mode'' means the condition in which an 
energy-using product is connected to a main power source and is not 
providing any standby or active mode function. (42 U.S.C. 
6295(gg)(1)(A)(i)-(iii))
2. Modes of Use
    Based on market research performed by DOE and analysis from the 
CEC,\14\ portable electric spas are typically connected to a main power 
source and activated, and provide one or more main functions 24 hours a 
day, 365 days per year. Although a portable electric spa is typically 
used for a small number of hours throughout the year, heating the water 
from ambient temperature to the use temperature takes a long time, and 
the water must be filtered regularly to keep it fresh. Therefore, most 
users maintain the spa at their preferred use temperature at all times 
with periodic or continuous water filtration, even when not in use.\15\
---------------------------------------------------------------------------

    \14\ California Energy Commission Final Staff Report--Analysis 
of Efficiency Standards and Marking for Spas, 2018 Appliance 
Efficiency Rulemaking for Spas (Docket No. 18-AAER-02, TN No. 
222413). Available at efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
    \15\ Ibid.
---------------------------------------------------------------------------

    In the October 2022 NOPR, DOE tentatively concluded that all 
operational modes for portable electric spas would be considered 
``active modes'' as defined in 42 U.S.C. 6295(gg)(1)(A)(i). 87 FR 
63356, 63361. As such, portable electric spas would be considered to 
operate in active mode at all times, and standby mode and off mode, as 
defined by EPCA, would not be applicable to portable electric spas. Id. 
Therefore, DOE tentatively concluded that there is no standby mode or 
off mode energy consumption that can be accounted for or incorporated 
into the proposed DOE test procedure. Id.
    DOE requested comment on whether it is necessary to measure standby 
or off

[[Page 38606]]

mode energy consumption in the test procedure. Id.
    PHTA/IHTA supported DOE's tentative determination that portable 
electric spas are in active mode at all times. (PHTA/IHTA, No. 10 at p. 
10) Additionally, PHTA/IHTA stated they would have no objection to 
replacing the industry term ``standby mode'' in ANSI/APSP/ICC-14 2019 
with the EPCA-defined term ``active mode.'' (PHTA/IHTA, No. 10 at p. 
11)
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, DOE concludes that standby mode and off mode, as 
defined by EPCA, are not applicable to portable electric spas and that 
there is no standby mode or off mode energy consumption that can be 
accounted for or incorporated into the proposed DOE test procedure. 
Accordingly, this final rule does not include provisions for measuring 
standby mode or off mode.
3. Metric for Active Mode Energy Consumption
    ANSI/APSP/ICC-14 2019 includes a method for measuring the energy 
consumption of portable electric spas while the cover is on and the spa 
is operating in its default operation mode. The metric used by ANSI/
APSP/ICC-14 2019 is normalized standby power, which is the average 
power consumed by the portable electric spa while the cover is on and 
the spa is operating in its default operation mode, normalized to a 
standard temperature difference between the ambient air and the water 
in the spa.\16\ Normalized standby power is the metric used by the CEC 
and other States that use ANSI/APSP/ICC-14 2019 as the basis for their 
efficiency programs. It is also the metric used by CSA test method CSA 
C374:11 (R2021),\17\ ``Energy performance of hot tubs and spas'' (``CSA 
C374:11 (R2021)''), which is a method used for testing portable 
electric spas in Canada.
---------------------------------------------------------------------------

    \16\ Section 5.1 of ANSI/APSP/ICC-14 2019 specifies that the 
purpose of ANSI/APSP/ICC-14 2019 is to measure the energy 
consumption in ``standby mode.'' This use of ``standby mode'' is not 
consistent with the term as defined by EPCA but rather refers to a 
type of active mode as defined by EPCA, as explained in section 
III.C.2 of this final rule.
    \17\ CSA 374:11 (R2021) is available at www.csagroup.org/store/product/2703317/.
---------------------------------------------------------------------------

    According to analyses from the CEC,\18\ the mode of operation 
measured in ANSI/APSP/ICC-14 2019 represents approximately 75 percent 
of the energy consumed by a portable electric spa. DOE estimates that 
this percentage may be approximately 95 percent in some cases, based on 
investigative testing that DOE performed and data on typical spa usage 
from PKData.\19\ Taken together, the two estimates indicate the mode of 
operation measured in ANSI/APSP/ICC-14 2019 represents the largest 
portion of active mode energy consumption by far. Based on these data 
sources, DOE tentatively determined in the October 2022 NOPR that the 
most representative average use cycle or period of use of a portable 
electric spa is with the spa cover on (i.e., with no consumers in the 
spa), and with the spa continually or periodically filtering and 
heating the water in the spa, such that the spa is always ready for 
use. 87 FR 63356, 63361. DOE indicated in the October 2022 NOPR that it 
was not aware of any existing test methods that measure the energy 
consumption in any other parts of active mode described in section 
III.C.2 of the October 2022 NOPR. Id. DOE also indicated that it has 
been unable to determine any representative durations for these 
portions of active mode use. Id.
---------------------------------------------------------------------------

    \18\ California Energy Commission Final Staff Report--Analysis 
of Efficiency Standards and Marking for Spas, 2018 Appliance 
Efficiency Rulemaking for Spas (Docket No. 18-AAER-02, TN No. 
222413). Available at efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
    \19\ P.K. Data Inc. 2022 Hot Tub Market Data: Custom Compilation 
for Lawrence Berkeley National Laboratory (through 2021). 2022. 
Alpharetta, GA. Available at www.pkdata.com/reports-store.html (Last 
accessed April 24, 202312, 2022).
---------------------------------------------------------------------------

    Based on these considerations, DOE proposed to use normalized 
standby power from ANSI/APSP/ICC-14 2019 as the performance-based 
metric for representing the energy use of portable electric spas. Id. 
DOE further proposed to refer to this metric as ``standby loss,'' 
rather than ``normalized standby power,'' to avoid misinterpretation 
with the statutory definition of ``standby mode'' as defined in 42 
U.S.C. 6295(gg)(1)(A)(iii). Id.\20\ DOE also proposed to define the 
term ``standby loss'' in section 2.9 of appendix GG as ``the mean 
normalized power required to operate the portable electric spa in 
default operation mode with the cover on, as calculated in section 3.3 
of this appendix.'' Id.
---------------------------------------------------------------------------

    \20\ DOE noted in the October 2022 NOPR that the term ``standby 
loss'' has been used previously to describe the energy use of a 
water heater associated with maintaining water temperature (See 
sections 1.13 and 6.3.3 of appendix E to subpart B of 10 CFR part 
430). A portable electric spa is similar to a water heater in that 
regard, because both products consume energy to maintain their 
contents at a specified temperature over a long period of time.
---------------------------------------------------------------------------

    DOE requested comment on its proposal to use standby loss, 
equivalent to the normalized standby power as defined by ANSI/APSP/ICC-
14 2019, as the performance-based metric for representing the energy 
use of portable electric spas, and on its proposed definition for 
``standby loss'' in section 2.9 of appendix GG. Id. DOE also requested 
comment on data regarding the representative operation of spas when in 
use with the cover removed, including typical frequency and duration of 
use, operation of jets or other features, and number of users, and on 
how usage varies across spa types. Id. Lastly, DOE requested comment on 
any test methods that measure the operation of spas when in use with 
the cover removed. Id.
    PHTA/IHTA commented in support of DOE's proposal to use normalized 
standby power from ANSI/APSP/ICC-14 2019 as the performance-based 
metric for representing the energy use of portable electric spas. 
(PHTA/IHTA, No. 10 at p. 11) PHTA/IHTA also supported referring to this 
metric as ``standby loss'' instead of ``normalized standby power'' due 
to concerns of misinterpretation with other statutory definitions. 
(Id.) PHTA/IHTA noted that they were not aware of data analysis 
existing on typical portable electric spa usage, but rather only 
anecdotal accounts that suggest a wide range of usage. (Id.) PHTA/IHTA 
also stated that they were not aware of test methods measuring the 
operation of spas when being used with the cover removed. (Id.)
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is adopting the 
definition of ``standby loss'' in section 2.9 of appendix GG as ``the 
mean normalized power required to operate the portable electric spa in 
default operation mode with the cover on, as calculated in section 3.3 
of this appendix'' and establishing ``standby loss'' as the 
performance-based metric for representing energy usage of portable 
electric spas.

D. Test Method

1. Referenced Industry Test Method
    As discussed previously in this document, ANSI/APSP/ICC-14 2019 
contains a test method for measuring the standby loss \21\ of portable 
electric spas. ANSI/APSP/ICC-14 2019 measures standby loss as the 
average power required to maintain the spa's water at a ready-to-use 
temperature over a period of at least 72 hours, while the spa

[[Page 38607]]

remains covered in a controlled-temperature environment.
---------------------------------------------------------------------------

    \21\ As discussed in section III.C.3 of this document, ANSI/
APSP/ICC-14 2019 uses the term ``normalized standby power'' to refer 
to the metric that DOE is referring to as ``standby loss.'' To avoid 
confusion about multiple terms, the term ``standby loss'' is used 
throughout section III.D of this final rule to refer to ``normalized 
standby power'' in ANSI/APSP/ICC-14 2019.
---------------------------------------------------------------------------

    In the October 2022 NOPR, DOE discussed that it had reviewed ANSI/
APSP/ICC-14 2019 and tentatively concluded that it is reasonably 
designed to produce test results to determine the energy use of 
portable electric spas during a representative average use cycle or 
period of use. 87 FR 63356, 63362.
    In the October 2022 NOPR, DOE proposed to adopt specific sections 
of ANSI/APSP/ICC-14 2019 in its test procedure for portable electric 
spas, along with modifications and additions that DOE determined would 
improve repeatability and representativeness of test results. Id. DOE 
requested comment on its proposal. Id.
    PHTA/IHTA, the CEC, and the CA IOUs commented in support of DOE 
adopting specific sections of ANSI/APSP/ICC-14 2019. (PHTA/IHTA, No. 10 
at p. 11; CEC, No. 13 at p. 3; CA IOUs, No. 8 at p. 1)
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is adopting specific 
sections of ANSI/APSP/ICC-14 2019 in its test procedure for portable 
electric spas. Specific modifications, additions, and exceptions are 
discussed in sections III.D.2 through III.D.11 of this final rule.
2. Excluded Sections of ANSI/APSP/ICC-14 2019
    In the October 2022 NOPR, DOE proposed to exclude the following 
sections, subsections, and appendices of ANSI/APSP/ICC-14 2019 from 
DOE's test procedure:
     Sections 1, 2, 4, 6, and 7 in their entirety;
     Section 3 definitions for ``cover, specified,'' ``fill 
volume,'' ``rated volume,'' and ``standby mode'';
     Subsections 5.1, 5.2, 5.5.2, 5.5.4, 5.5.5, and 5.7;
     Appendix A subsection ``Chamber floor''; and
     Appendices B, C, and D.
87 FR 63356, 63362-63363.

    DOE explained the rationale for each proposed exclusion in the 
October 2022 NOPR and requested comment on whether any of the sections 
of ANSI/APSP/ICC-14 2019 that DOE proposed to exclude should be 
included in the DOE test procedure. Id.
    The CEC commented in support of excluding sections 1 and 2 of ANSI/
APSP/ICC-14 2019 from the test procedure. (CEC, No. 13 at pp. 2-3)
    PHTA/IHTA supported DOE's proposed exclusion of some sections of 
ANSI/APSP/ICC-14 2019 that are not appropriate for the Federal test 
procedure, but they expressed concern with excluding or changing the 
ambient temperature, normalization formula, and chamber floor 
requirements of ANSI/APSP/ICC-14 2019. (PHTA/IHTA, No. 10 at p. 12) DOE 
addresses these specific areas of concern identified by PHTA/IHTA in 
sections III.D.3 and III.D.4.b of this final rule.
    Watkins commented generally in support of the PHTA/IHTA comments. 
(Watkins, No. 14 at p. 1) Watkins also commented specifically that the 
proposed changes that deviate from ANSI/APSP/ICC-14 2019 would induce 
significant financial burden to manufacturers, create supply chain 
disruptions, and create a shortage of certified third-party 
laboratories. Watkins encouraged DOE to align as closely as possible 
with ANSI/APSP/ICC-14 2019. (Id. at p. 2)
    A2LA commented that sections 4.1 and 4.2 of ANSI/APSP/ICC-14 2019 
should be included,\22\ as accreditation of testing laboratories allows 
DOE to trust the validity of test results and ensures technical 
competency across testing laboratories and certification bodies. (A2LA, 
No. 6 at pp. 1-2)
---------------------------------------------------------------------------

    \22\ Section 4.1 of ANSI/APSP/ICC-14 2019 requires that all 
certification bodies shall be accredited to ISO/IEC 17065. Section 
4.2 of ANSI/APSP/ICC-14 2019 requires that all testing laboratories 
shall be qualified by a certification body or accredited by an 
accreditation body who is a member of the International Laboratory 
Accreditation Cooperation (``ILAC'').
---------------------------------------------------------------------------

    In response to the concerns expressed by Watkins, DOE has aligned 
its finalized test procedure with ANSI/APSP/ICC-14 2019 to the greatest 
extent possible consistent with its obligations under EPCA to design 
test procedures that measure the energy use of a portable electric spa 
during a representative average use cycle or period of use without 
being unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Where DOE 
has deviated from the provisions of ANSI/APSP/ICC-14 2019, DOE 
discusses throughout this final rule why such deviations are necessary 
to fulfill these statutory requirements. DOE has reviewed the burdens 
associated with conducting the portable electric spa test procedure 
adopted in this final rule. Based on the results of such analysis, DOE 
has determined that the test procedure would not be unduly burdensome 
to conduct. DOE's analysis of the burdens associated with the test 
procedure is presented in section III.F of this document. Accordingly, 
DOE does not expect the test procedure adopted in this final rule to 
adversely affect the availability of certified third-party laboratories 
to perform testing consistent with the finalized test procedure. DOE 
also does not expect the test procedure adopted in this final rule to 
create any supply chain disruptions, as suggested by Watkins. As 
discussed in section III.G of this final rule, there is no need to 
perform testing according to the DOE test procedure until the 
compliance date of any future Federal energy conservation standards, 
were DOE to establish energy conservation standards. This compliance 
date leaves at least several years for all testing to be completed, 
which DOE expects to be an adequate duration to ensure that any needed 
testing will not create supply chain disruptions.
    In response to the comment from A2LA, DOE's experience in 
conducting testing according to ANSI/APSP/ICC-14 2019 and to the DOE 
test procedure as finalized in this final rule demonstrates that the 
finalized DOE test procedure adequately outlines the details required 
to perform the test. As a result, the accreditation as specified in 
section 4.2 of ANSI/APSP/ICC-14 2019 is not necessary to achieve 
repeatable, reproducible, and representative test results from DOE's 
test procedure for portable electric spas. In addition, accreditation 
is not sufficient for ensuring a laboratory's test results are accurate 
because, although accreditation is a tool that can help a laboratory to 
become and remain technically competent, accreditation alone does not 
ensure the laboratory performs each test method correctly for each 
test. On this basis, DOE has concluded that the requirement for a 
testing laboratory to be qualified by a certification body accredited 
to ISO/IEC 17065 or accredited by an accreditation body who is a member 
of ILAC is not necessary for the purposes of conducting the DOE test 
procedure as finalized. Therefore, in this final rule, DOE is excluding 
the sections in ANSI/APSP/ICC-14 2019 regarding laboratory 
qualification from the DOE test procedure.
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, DOE is finalizing its proposal to exclude the 
following sections, subsections, and appendices of ANSI/APSP/ICC-14 
2019 from DOE's portable electric spa test procedure:
     Sections 1, 2, 4, 6, and 7 in their entirety;
     Section 3 definitions for ``cover, specified,'' ``fill 
volume,'' ``rated volume,'' and ``standby mode'';
     Subsections 5.1, 5.2, 5.5.2, 5.5.4, 5.5.5, and 5.7;
     Appendix A subsection ``Chamber floor''; and
     Appendices B, C, and D.

[[Page 38608]]

3. Ambient Air Temperature
    As part of the October 2022 NOPR, DOE reviewed the ambient air 
temperature requirements specified in several existing or past test 
procedures for portable electric spas.
    Section 5.5.4 of ANSI/APSP/ICC-14 2019 specifies that the ambient 
air temperature shall be a maximum of 63 [deg]F for the duration of the 
test. This approach to specifying ambient air temperature (i.e., in 
which a maximum temperature, rather than a target temperature, is 
specified) is used in conjunction with a normalization approach to 
determine a normalized standby loss value. Section 5.7.2 of ANSI/APSP/
ICC-14 2019 specifies that for inflatable spas, standard spas, or the 
standard spa portion of a combination spa, the measured standby loss is 
normalized to represent a temperature difference of 37 [deg]F between 
the average water temperature during the test and the average ambient 
air temperature during the test. For exercise spas or the exercise spa 
portion of a combination spa, the measured standby loss is normalized 
to represent a temperature difference of 22 [deg]F between the average 
water temperature during the test and the average ambient air 
temperature during the test.
    An earlier version of the CEC portable electric spa test procedure, 
on which ANSI/APSP/ICC-14 2019 is based, specified an ambient air 
temperature of 60 [deg]F  3 [deg]F.\23\ DOE notes that 60 
[deg]F is approximately equal to the annual average temperature for all 
of California.\24\
---------------------------------------------------------------------------

    \23\ See table in p. 5 of the CEC Docket Number 12-AAER-2G, 
document TN 73027. Available at efiling.energy.ca.gov/GetDocument.aspx?tn=73027&DocumentContentId=8328.
    \24\ See climate data from National Oceanic and Atmospheric 
Administration. Available at: www.ncei.noaa.gov/cag/statewide/time-series/4/tavg/12/12/2012-2021?base_prd=true&begbaseyear=2012&endbaseyear=2021.
---------------------------------------------------------------------------

    CSA C374:11 (R2021) specifies a mandatory test with ambient 
temperature of 44.6 [deg]F  1.8 [deg]F (7 [deg]C  2 [deg]C), and an optional cold-weather test with ambient 
temperature of 17.6 [deg]F  1.8 [deg]F (-8 [deg]C  2 [deg]C).
    DOE noted in the October 2022 NOPR that the DOE test procedure will 
be used for representations of portable electric spa energy consumption 
throughout the United States; therefore, the specified ambient air 
temperature must reflect a nationally representative value. 87 FR 
63324, 63363. To determine a nationally representative ambient air 
temperature that could be applicable to portable electric spas 
throughout the United States, DOE first determined the average annual 
air temperature across all states in the contiguous United States, and 
then calculated a weighted average across all states, weighted by the 
estimated number of spas installed in each state.\25\ Id. DOE used data 
from the National Oceanic and Atmospheric Administration \26\ 
indicating average temperature in each state for the years 2012-2021, 
and data from PKData \27\ indicating the number of spas installed in 
each state in 2020. Id. This methodology resulted in an average air 
temperature of 56.1 [deg]F. Rounded to the nearest degree Fahrenheit, 
DOE tentatively determined in the October 2022 NOPR that 56 [deg]F is a 
nationally representative ambient air temperature applicable to testing 
portable electric spas. Id.
---------------------------------------------------------------------------

    \25\ DOE used only the contiguous U.S., excluding Alaska and 
Hawaii, because the data from PKData on the number of spas in each 
state excluded Alaska and Hawaii.
    \26\ www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/statewide/time-series.
    \27\ P.K. Data Inc. 2022 Hot Tub Market Data: Custom Compilation 
for Lawrence Berkeley National Laboratory (through 2021). 2022. 
Alpharetta, GA. Available at www.pkdata.com/reports-store.html#/ 
(Last accessed April 24, 202312, 2022).
---------------------------------------------------------------------------

    Accordingly, based on this analysis, DOE proposed in the October 
2022 NOPR to specify 56.0 [deg]F as the target ambient air temperature 
in section 3.2.1 of appendix GG. Id. Consistent with the earlier CEC 
test procedure, DOE also proposed to specify a tolerance of 3.0 [deg]F on the ambient air temperature during the test. Id. 
DOE tentatively determined in the October 2022 NOPR that specifying an 
allowable range of temperatures would provide greater assurance of 
reproducible and representative test results compared to the approach 
used in ANSI/APSP/ICC-14 2019 of specifying only a maximum ambient air 
temperature. Id. DOE also proposed to specify that this requirement 
applies to each individual ambient air temperature measurement taken 
for the duration of the test (i.e., the requirement does not apply to 
the overall average ambient air temperature during the test). Id.
    DOE requested comment on its determination that, rounded to the 
nearest degree, 56 [deg]F is a nationally representative ambient air 
temperature applicable to testing portable electric spas. Id. DOE 
requested comment on its proposal to specify an ambient temperature of 
56.0  3.0 [deg]F during testing. Id. If commenters 
recommend a different ambient temperature, DOE requested data 
demonstrating the representativeness of that ambient temperature. Id.
    In response to the October 2023 NOPR, PHTA/IHTA stated that the 
ambient temperature in ANSI/APSP/ICC-14 2019 is not meant to be 
representative of a national average but rather a point of reference to 
ensure consistency in testing. (PHTA/IHTA, No. 10 at pp. 5, 12) PHTA/
IHTA asserted that DOE's proposal to use the national average 
temperature would not improve testing consistency or yield better 
results over ANSI/APSP/ICC-14 2019. (Id. at p. 5) Further, PHTA/IHTA 
stated that a 56 [deg]F ambient temperature requirement would require 
some existing test chambers to be upgraded to full air makeup systems. 
(Id. at p. 5, 12) PHTA/IHTA noted that the current ambient temperature 
requirement specified in ANSI/APSP/ICC-14 2019 is used for various 
State programs spanning a diverse range of climates. (Id. at p. 5)
    With regard to inflatable spas specifically, PHTA/IHTA commented 
that these products are typically used only during the 6-7 warmest 
months of the year and stored during the winter months when standby 
loss energy for other types of portable electric spas would be at its 
highest. (Id.) PHTA/IHTA presented data indicating that the simple 
(i.e., unweighted by installation volume) average temperature in the 48 
contiguous States over the last 12 years for the months April through 
October was 63.2 [deg]F. (Id.) PHTA/IHTA asserted that this average 
temperature would warrant using the ambient temperature specified in 
ANSI/APSP/ICC-14 2019 (i.e., maximum of 63 [deg]F) for simplicity and 
to avoid what PHTA/IHTA characterized as the heavy burden manufacturers 
would face if having to retest based on DOE's proposed ambient 
temperature or other temperature that would better reflect the seasonal 
use for inflatable spas. (Id. at pp. 5-6)
    PHTA/IHTA also presented data from manufacturer testing comparing 
the final normalized test results between the testing conducted at 56 
[deg]F (corresponding to DOE's proposed ambient air temperature) and 
testing conducted at 60 [deg]F (corresponding to a higher ambient air 
temperature allowable by ANSI/APSP/ICC-14 2019). (Id. at pp. 4-5) This 
testing included five portable electric spas collected in four 
different test chambers. (Id. at p. 5) The measured standby loss for 
each test was normalized to represent a temperature difference of 37 
[deg]F between the average water temperature during the test and the 
average ambient air temperature during the test, as required by ANSI/
APSP/ICC-14 2019. (Id.) The results of this testing indicated that the 
difference in final test results between the two ambient air 
temperatures deviated by an average of 1.4 percent,

[[Page 38609]]

with a maximum deviation for one unit of 2.2 percent. (Id. at pp. 5, 
12) PHTA/IHTA concluded that these test results demonstrate that it is 
not necessary to change the ambient temperature or the normalization 
formula (from what is currently specified in ANSI/APSP/ICC-14 2019), as 
retesting (according to DOE's proposed requirements) would achieve the 
same results. (Id.)
    With regard to DOE's proposal to specify a tolerance of 3 [deg]F around the target ambient air temperature, PHTA/IHTA 
commented that some test chambers cannot hold a 3 [deg]F 
ambient tolerance without rapid and damaging cycling to the cooling 
system, which is the reason why ANSI/APSP/ICC-14 2019 no longer 
specifies a minimum ambient air temperature requirement and uses the 
normalization approach instead. (Id. at pp. 6, 12)
    In summary, PHTA/IHTA recommended that DOE reference the ambient 
temperature requirement of 63 [deg]F or lower (i.e., with no lower 
boundary) as specified in ANSI/APSP/ICC-14 2019, in lieu of specifying 
a target temperature with an allowable range of 3.0 [deg]F 
during testing. (Id. at pp. 6, 12)
    Master Spas commented that 56 [deg]F is not representative of all 
consumers, and that, given the wide range of temperature and climates 
experienced by portable electric spa consumers, it would be challenging 
to develop a temperature that it is representative for consumers across 
different regions. (Master Spas, No. 7 at p. 1) Master Spas stated that 
changing the ambient air temperature would be burdensome and 
unnecessary, especially when the results of the temperature change 
could be calculated without expensive testing. (Id.)
    The CA IOUs commented that changing the ambient temperature would 
not affect the standby loss results because of the normalization 
approach used in the test procedure. (CA IOUs, No. 8 at p. 5) The CA 
IOUs presented data from the Alberta Research Council that the CA IOUs 
asserted provides experimental proof of the temperature normalization 
procedure. (Id. at p. 6) As described by the CA IOUs, the study 
measured eight portable spas at various ambient air and water 
temperature combinations, and the results demonstrated that when the 
difference between the ambient air and water temperature was increased 
by 2.6 times, the power consumption increase was 2.7 times greater. 
(Id.) Thus, the CA IOUs asserted that the temperature normalization 
method closely predicts energy consumption from experimental results. 
(Id.)
    The CA IOUs also suggested that if DOE were to finalize its 
proposal to specify 56 [deg]F as the target ambient air temperature for 
testing, products currently certified for State programs could avoid 
retesting by using normalization to extrapolate new values from those 
currently reported, and that as products are tested at updated 
temperatures, such an exemption could be retired after a transition 
period of one year. (Id.)
    As discussed earlier in this document, EPCA requires that any test 
procedures prescribed by DOE be reasonably designed to produce test 
results that measure energy efficiency, energy use, or estimated annual 
operating cost of a covered product during a representative average use 
cycle or period of use, while not being unduly burdensome to conduct. 
(42 U.S.C. 6293(b)(3)) DOE recognizes that no single temperature 
specification would be representative of all portable electric spa 
installations throughout the United States. Defining a nationally 
representative average air temperature for portable electric spas, 
however, provides a consistent basis of comparison for measured test 
results among the diversity of portable electric spa models available 
on the market. DOE has determined that defining a single ambient air 
condition representing the average annual condition experienced by 
portable electric spas in the United States, weighted by estimated 
installation volume, satisfies EPCA's requirements for the test 
procedure to produce results that measure energy use during a 
representative average period of use, while not being unduly burdensome 
to conduct. Based on DOE's analysis of available climate data, and 
noting that interested parties have not provided other, installation-
weighted data with which to determine a nationally representative 
average air temperature, DOE has determined that 56 [deg]F is a 
nationally representative ambient air temperature applicable to testing 
portable electric spas.
    As discussed, PHTA/IHTA stated that the ambient temperature in 
ANSI/APSP/ICC-14 2019 is not meant to be representative of a national 
average, and that use of a national average temperature would not 
improve testing consistency or yield better results over ANSI/APSP/ICC-
14 2019. (PHTA/IHTA, No. 10 at p. 5) In response, DOE notes that it is 
true that using a national average temperature will not improve testing 
consistency between tests in different laboratories or of different 
models because test results from different laboratories or of different 
models will be consistent with each other as long as they all use the 
same ambient temperature regardless of the ambient temperature set in 
the test procedure. However, use of a national average ambient 
temperature will yield better results than the ambient temperature in 
ANSI/APSP/ICC-14 2019 in that the results will be more representative 
of the average standby loss of portable electric spas throughout the 
U.S. than results determined using ANSI/APSP/ICC-14 2019.
    Testing with a 63 [deg]F ambient temperature for calculating 
standby loss in ANSI/APSP/ICC-14 2019 results in measures of standby 
loss that are approximately 15 to 23 percent lower than those would be 
if using a national average ambient temperature of 56 [deg]F. This 
change is because the rate of heat loss is approximately linearly 
related to the difference between the ambient temperature and the 
temperature of the water in the spa. This linear relationship between 
temperature difference and the rate of heat loss is the basis for the 
temperature normalization that is used in ANSI/APSP/ICC-14 2019 and 
that DOE is adopting in this final rule, as discussed later in this 
section. Use of a 63 [deg]F ambient temperature for calculating standby 
loss in ANSI/APSP/ICC-14 2019 results in a temperature difference that 
is 7 [deg]F less than it would be if using a nationally representative 
temperature of 56 [deg]F (i.e., 63 [deg]F-56 [deg]F = 7 [deg]F). That 7 
[deg]F results in a 15.2 percent lower calculated standby loss for 
portable electric spas tested at a 102 [deg]F  2 [deg]F 
water temperature [i.e., 7 [deg]F/(102 [deg]F-56 [deg]F) = 15.2 
percent], and a 22.6 percent lower calculated standby loss for exercise 
spas tested at a 87 [deg]F  2 [deg]F water temperature 
[i.e., 7 [deg]F/(87 [deg]F-56 [deg]F) = 22.6 percent]. This magnitude 
of understatement of standby loss means that results determined using 
the ambient temperature in ANSI/APSP/ICC-14 2019 are not representative 
of an average use cycle or period of use for portable electric spas in 
the U.S. Therefore, DOE has determined that the use of a national 
average ambient temperature of 56 [deg]F will yield results that are 
more representative of the average standby loss of portable electric 
spas throughout the U.S. than results determined using ANSI/APSP/ICC-14 
2019. As discussed in section III.D.11 of this final rule, DOE is 
adopting the use of 56 [deg]F as the representative ambient temperature 
in the normalization approach used for the standby loss calculation.
    Regarding the seasonality of inflatable spas and the potential that 
representative test conditions for inflatable spas might include an 
ambient air temperature different from

[[Page 38610]]

rigid spas, namely a temperature averaged across such the inflatable 
spa season, DOE considers that the use of different representative 
ambient temperatures for different categories of portable electric spas 
would produce test results that are not comparable among the different 
categories of portable electric spas. Comparability of energy use 
ratings would be important for any consumer comparing inflatable spas 
with hard-shelled spas to understand the relative efficiencies between 
the different models. For these reasons, this final rule reflects use 
of the same average representative ambient air temperature (i.e., 56 
[deg]F) for inflatable portable electric spas as for hard-shelled 
portable electric spas.
    Regarding comments received discussing the accuracy and advantages 
of the normalization approach, DOE has reviewed the data submitted by 
PHTA/IHTA and agrees with the conclusion that these test results 
demonstrate that the normalization approach produces accurate test 
results and can enable the use of a wider range of ambient air 
temperatures during testing than DOE had proposed in the October 2022 
NOPR. As a result, DOE is adopting an ambient temperature during 
testing of up to 63.0 [deg]F in this final rule.
    DOE recognizes that specifying the ambient air temperature as a 
maximum value (e.g., a maximum of 63 [deg]F), rather than a target 
value within a specified tolerance (e.g., 56.0  3 [deg]F), 
yields a less burdensome approach for testing, for the reasons 
described in PHTA/IHTA's comments. In considering the relative 
similarities in accuracy (i.e., representativeness) of the two 
approaches, as well as the differences in test burden between the two 
approaches, DOE has determined that the general approach currently used 
in ANSI/APSP/ICC-14 2019 of specifying only a maximum ambient air 
temperature--in conjunction with the normalization of measured test 
results--produces test results that measure the energy use of a 
portable electric spa during a representative average period of use 
while not being unduly burdensome to conduct.
    Finally, as previously noted, PHTA/IHTA stated that a 56 [deg]F 
ambient temperature requirement would require some existing test 
chambers to be upgraded to full air makeup systems. (PHTA/IHTA, No. 10 
at pp. 5, 12) Although DOE is adopting the use of 56 [deg]F as the 
representative ambient temperature for the normalization approach used 
in the standby loss calculation, DOE is adopting a maximum ambient 
temperature during testing of 63 [deg]F, as discussed in the previous 
two paragraphs. These requirements on ambient temperature during 
testing are identical to those of ANSI/APSP/ICC-14 2019. As a result, 
DOE has determined that there is no need for any test chambers to be 
upgraded due to the ambient temperature requirements of the test 
procedure in this final rule.
    In summary, for the reasons discussed in the preceding paragraphs, 
this final rule specifies in section 3.2.1 of appendix GG that ambient 
air temperature be maintained at a maximum of 63.0 [deg]F for the 
duration of the test, consistent with ANSI/APSP/ICC-14 2019. This 
ambient temperature requirement applies to each individual ambient air 
temperature measurement taken for the duration of the stabilization 
period and test period, as proposed in the October 2022 NOPR. 
Furthermore, in this final rule, the normalization of measured values 
in section 3.3 of appendix GG is based on a temperature of 56 [deg]F as 
a nationally representative ambient air temperature for testing 
portable electric spas, as proposed in the October 2022 NOPR. The 
normalization approach used for the standby loss calculation is 
discussed further in section III.D.11 of this final rule.
4. Chamber
a. Requirements in ANSI/APSP/ICC-14 2019
    ANSI/APSP/ICC-14 2019 includes informative appendix A that provides 
minimum requirements for the test chamber in which the portable 
electric spa is installed. These include optional specifications 
regarding chamber internal dimensions, air circulation, chamber 
insulation, and chamber floor insulation.
    In the October 2022 NOPR, DOE tentatively concluded that the 
specifications in appendix A to ANSI/APSP/ICC-14 2019 regarding chamber 
internal dimensions, air flow, and chamber insulation are appropriate 
for testing portable electric spas, and DOE proposed in section 3.1.1 
of appendix GG to install portable electric spas in chambers meeting 
those specifications. 87 FR 63356, 63364. DOE requested comment on its 
tentative conclusion and proposal. Id.
    In response to the October 2022 NOPR, PHTA/IHTA expressed support 
for DOE's tentative determination and proposal regarding chamber 
internal dimensions, air flow, and chamber insulation. (PHTA/IHTA, No. 
10 at p. 13) The CA IOUs commented that standardizing internal chamber 
dimensions, air flow, and chamber insulation would help to improve the 
repeatability of test results. (CA IOUs, No. 8 at p. 3) The CA IOUs 
also recommended that DOE require humidity controls and measurements to 
further improve the repeatability of test results. (Id. at p. 3) The CA 
IOUs explained that a portable electric spa in a sealed chamber with 
100 percent relative humidity would have a lower evaporation rate and 
thereby a lower measured energy consumption than is representative of 
field use. (Id.) The CA IOUs also identified several test procedures 
for other products that require control of relative humidity and 
indicated that the CEC's portable electric spa test procedure adopted 
in 2004 required the measurement of average relative humidity during 
the test. (Id. at p. 4)
    In response to the CA IOUs' recommendation to require humidity 
controls and measurements in the test procedure, DOE maintains that it 
is not clear these requirements are needed. Although the CA IOUs stated 
that evaporation is the primary source of standby loss from the 
portable electric spa, they did not provide any additional information 
aside from citing a CA IOUs report from 2014 submitted to the CEC 
(``2014 CA IOUs Report'').\28\ (CA IOUs, No. 8 at p. 3) That report 
provides no information on the amount of standby loss that is due to 
evaporation, aside from stating that ``a majority of heat is lost 
through evaporation'' and that spa covers with a good seal can reduce 
evaporation. As a result, it is possible that when the 2014 CA IOUs 
Report indicated that ``a majority of heat is lost through 
evaporation,'' the authors were referring to the case when the portable 
electric spa is uncovered or has a poorly fitting cover. And it is not 
clear from these sources how much evaporation occurs during the 
proposed DOE test procedure, in DOE's investigative testing, however, 
the amount of portable electric spas' water lost to evaporation was 
very small. This testing was done with the spas' covers installed, as 
is required in the test procedure established in this final rule. 
Although the scenario described by the CA IOUs is technically possible, 
DOE's testing suggests it is unlikely to occur with portable electric 
spas commonly on the market.
---------------------------------------------------------------------------

    \28\ ``Portable Electric Spas--California,'' California Energy 
Commission (California Investor-Owned Utilities, May 15, 2014). 
Available at), https://efiling.energy.ca.gov/GetDocument.aspx?tn=73027&DocumentContentId=8328.
---------------------------------------------------------------------------

    In addition, the CA IOUs identified several test procedures for 
other products that require measurement and control of humidity. (CA 
IOUs, No. 8 at

[[Page 38611]]

p. 4) DOE notes that measurement and control of humidity is more 
important for those test procedures because each of those products 
either: actively modifies the humidity of the ambient or process air as 
part of their operation (i.e., clothes dryers, dehumidifiers, central 
air conditioners, heat pump water heaters, and electric heat pump pool 
heaters); or moves air with a fan, for which humidity can affect air 
density and the resulting energy performance (i.e., ceiling fans and 
furnace fans); or both. A portable electric spa does not do either of 
those things during the test for standby loss. Accordingly, DOE 
concludes that relative humidity does not significantly impact typical 
operation of a spa during testing and that it is unnecessary to require 
measurement and control of relative humidity. Therefore, DOE is not 
adopting requirements to measure and control relative humidity in the 
test procedure for portable electric spas.
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is adopting 
specifications for chamber dimensions, air flow, and chamber insulation 
in section 3.1 of appendix GG, which refer to those provisions in 
appendix A to ANSI/APSP/ICC-14 2019.
b. Chamber Floor Requirements
    Appendix A to ANSI/APSP/ICC-14 2019 specifies that the test chamber 
floor may be insulated with 2 inches of polyisocyanurate insulation, 
that the insulation shall be laid directly on a level surface, and that 
the insulating layer shall be sheathed with at least 0.5 inches of 
plywood.
    In the October 2022 NOPR, DOE conducted an analysis to determine 
whether these requirements would produce test results that reflect 
representative consumer use in a proposed test procedure for portable 
electric spas. 87 FR 63324, 63364. DOE reviewed installation and 
owner's manuals for a representative sample of portable electric spas 
available on the market and found that the majority of manuals specify 
that the preferred method of installation is directly on a poured 
concrete slab. Id. A smaller portion of manuals specify installation on 
a wooden deck, and a small number of manuals specify other acceptable 
installation surfaces, such as concrete pavers or crushed gravel. Id. 
None of the manuals that DOE reviewed specify installing the portable 
electric spa with insulation between the ground and the spa. Id. 
Presuming that portable electric spas are installed consistently with 
the installation manual, DOE's findings in the October 2022 NOPR 
suggested that the most representative installation of a portable 
electric spa is to be installed directly on a concrete slab with no 
insulation between that surface and the spa. Id.
    In the October 2022 NOPR, DOE presented data from investigative 
testing to determine the extent to which installation with the optional 
insulation specified in the chamber floor section of appendix A to 
ANSI/APSP/ICC-14 2019 impacts energy use in comparison to installation 
with no insulation. Id. The data indicated that the amount of 
insulation and plywood specified in the chamber floor section of 
appendix A to ANSI/APSP/ICC-14 2019 reduced standby loss by up to 37 
percent compared to testing with no insulation. Id. As discussed in the 
October 2022 NOPR, these results demonstrated that the inclusion or 
exclusion of chamber floor insulation has a significant impact on 
measured energy use. Id.
    DOE further explained in the October 2022 NOPR that although DOE 
was not aware of any portable electric spas that include insulation 
and/or other materials such as plywood as part of the installation 
materials for the spa, DOE presumed that a consumer would be likely to 
install insulation and/or plywood if insulation and/or wood were to be 
included with the spa and specified by the installation instructions to 
be installed for use. Id. at 87 FR 63364-63365. In such case, DOE 
tentatively concluded in the October 2022 NOPR that testing with the 
insulation and/or plywood provided would produce test results that are 
representative of consumer use. Id. at 87 FR 63365.
    To ensure that test results are representative of an average 
consumer use cycle or period of use, DOE proposed in the October 2022 
NOPR to specify in section 3.1.2 of appendix GG that portable electric 
spas be installed directly on a level concrete floor or slab. Id. 
Additionally, DOE proposed to specify that if insulation and/or plywood 
is provided with the spa, and the manufacturer's instructions indicate 
that insulation and/or plywood be installed between the ground and the 
spa for normal use, the spa is to be installed with the minimum amount 
of insulation and/or plywood between the floor and the spa that is 
specified by the manufacturer's installation instructions. Otherwise, 
no insulation or plywood is to be installed between the floor and the 
spa. Id.
    DOE requested comment on its tentative determination that the most 
representative installation of a portable electric spa is directly on 
concrete with no insulation between that surface and the spa. Id. DOE 
also requested comment on its presumption that a consumer would be 
likely to install insulation and/or wood if insulation and/or wood were 
to be included with the portable electric spa and specified by the 
installation instructions to be installed for use, and that in such 
cases, testing with the insulation and/or wood provided would produce 
test results that are representative of consumer use. Id.
    In addition, DOE requested comment on its proposal to specify 
installing the portable electric spa directly on the chamber floor 
without any insulation between the spa and the floor. Id. Finally, DOE 
requested comment on the availability of concrete floors or slabs 
within test facilities and whether any test chamber floor alternatives, 
such as solid or perforated steel or aluminum floors, would represent 
portable electric spa operation when installed on concrete floors or 
slabs. Id.
    In response to the October 2022 NOPR, PHTA/IHTA commented that 
consumers install portable electric spas on a wide range of 
foundations, including concrete slabs, brick/pavers, pea gravel, tile, 
marble, wood decking (including both ground-mounted and elevated), 
synthetic decking (including both ground-mounted and elevated), coated 
steel decking, and urethane decking material. (PHTA/IHTA, No. 10 at p. 
13) PHTA/IHTA also stated that concrete slab thickness requirements 
vary greatly in the United States. (Id.)
    PHTA/IHTA commented on DOE's presumption that a consumer would be 
likely to install insulation and/or wood if it were included with the 
portable electric spa and specified in the installation instructions to 
be installed for use and that in such cases, testing with the 
insulation and/or wood provided would produce results that are 
representative of consumer use. (PHTA/IHTA, No. 10 at p. 14) PHTA/IHTA 
stated that for portable electric spas other than inflatable spas, it 
is not industry practice to include insulation and/or wood as part of 
the installation materials, and they have no data supporting the 
presumption that a consumer would be likely to install insulation and/
or wood if it were included. (Id.) PHTA/IHTA also stated that the idea 
of manufacturers including or recommending insulation adds variability 
to the portable electric spa test method because there is no guarantee 
the consumer will use it in their final installation. (Id.) PHTA/IHTA 
added that removal of the floor variable with a standardized 
reproducible floor provides better data to the end

[[Page 38612]]

consumer when comparing models for purchase. (Id.) Finally, PHTA/IHTA 
stated that the proposal of including a foundation with portable 
electric spa purchases would increase consumer cost and manufacturers' 
liability. (Id.) Regarding inflatable spas, PHTA/IHTA stated that these 
products are typically supplied with an insulating ground cover that 
the consumer is instructed to place underneath the inflated tub. (Id. 
at p. 13) PHTA/IHTA stated that they expect consumers to utilize the 
provided insulating ground cover during installation of inflatable 
spas, because they are put up and taken down seasonally. (Id. at p. 14)
    PHTA/IHTA commented that DOE's proposal to specify testing on 
concrete floors with no additional insulation would not be repeatable 
and that varying concrete temperatures or thicknesses could 
significantly impact test results. (Id. at p. 7) PHTA/IHTA noted that a 
concrete floor introduces an uncontrolled variable regardless of 
construction. (Id.) PHTA/IHTA added that test results need to be 
independent of both the geographical location of test labs and the 
season during which testing is conducted and that testing on bare 
concrete would make test results dependent on each of those. (Id.) In 
the event that DOE continues to pursue testing on concrete without 
insulation, PHTA/IHTA recommended more testing be conducted to better 
determine the effects of the chamber floor change. (Id. at p. 8)
    PHTA/IHTA commented also that not enough information was provided 
in the October 2022 NOPR about DOE's testing regarding the effect of 
changing floor conditions on portable electric spa standby loss. (Id.) 
PHTA/IHTA stated that industry was not able to provide its own data in 
time for comment, but that an early industry research project 
determined that the heat loss through the bottom of the spa was a 
relatively small portion of the total energy. (Id. at pp. 7-8) PHTA/
IHTA encouraged DOE, due to lack of data, to conduct more analysis and 
reconsider the approach in the October 2022 NOPR. (Id. at pp. 8, 13)
    Furthermore, PHTA/IHTA commented that testing on concrete may not 
actually be representative of concrete installations because a spa in 
the field would reach thermal equilibrium with the concrete surface it 
is installed on whereas one in a lab would not, and such a difference 
would lead to results not representative of customer use. (Id. at p. 8)
    PHTA/IHTA commented that testing on pallets or simulated decks 
would remove the variability of heat losses through the floor of the 
spa. PHTA/IHTA noted, however, that the ANSI/APSP/ICC-14 2019 writing 
committee recognized that the proportion of portable electric spas 
installed on decks was small and this added heat loss would skew the 
results for the vast majority of installations. (Id. at p. 7) PHTA/IHTA 
recommended that DOE maintain the chamber floor conditions specified in 
appendix A to ANSI/APSP/ICC-14 2019. (Id. at pp. 8, 13) PHTA/IHTA 
explained that the insulated floor used in ANSI/APSP/ICC-14 2019 and 
the platform with air flow beneath the spa used in CSA C374:11 (R2021) 
are not meant to be representative of typical installations, but 
instead to ensure the consistency of test results. (Id. at p. 7) PHTA/
IHTA also stated that they are not aware of any test chambers that 
currently use the CSA standard platform, as that standard is not 
currently required. (Id.)
    In response to DOE's request for comment regarding the availability 
of concrete floors or slabs within test facilities, PHTA/IHTA noted 
that they are not aware of any test chambers that have the ability to 
test on a concrete floor or slab without major renovations and that 
current test labs were designed to meet the ANSI/APSP/ICC-14 2019 
testing protocol. (Id. at p. 14)
    Similarly, the CA IOUs recommended that DOE maintain the chamber 
floor conditions specified in appendix A to ANSI/APSP/ICC-14 2019. (CA 
IOUs, No. 8 at p. 5) The CA IOUs stated that it is unclear whether 
installing portable electric spas on concrete represents standard 
consumer practice, indicating that several spa dealers and online 
sources provided advice for installing spas on concrete, plastic spa 
pads, and compacted gravel. (Id.) The CA IOUs commented that DOE's 
proposal to specify testing on concrete floors with no additional 
insulation would not be repeatable and that varying concrete 
temperatures or thicknesses could significantly impact test results. 
(Id.) The CA IOUs added that not enough information was provided in the 
October 2022 NOPR about DOE's testing regarding the effect of changing 
floor conditions on portable electric spa standby loss. (Id.)
    The CA IOUs also estimated that ANSI/APSP/ICC-14 2019 compliant 
spas are significantly less susceptible to ground effect conductivity 
loss than low insulation baseline spas and stated that they believe 
evaporative losses impact test results more than the ground effect. 
(Id.) The CA IOUs suggested that DOE collect and publicly display 
additional data to demonstrate the value of modifying a test method to 
measure the interaction between uninsulated ground and portable 
electric spas. (Id.) The CA IOUs commented it was unclear whether 
testing on a bare concrete floor would overpredict energy due to 
concrete's higher thermal conductivity relative to other mounting 
surfaces. (Id.)
    The CA IOUs stated that ANSI/APSP/ICC-14 2019 is suitable for spa 
performance measurement and comparison for arbitrary ground surfaces, 
and they encouraged DOE to develop equations to extrapolate ground 
effect by base type (e.g., concrete, wood, gravel, ABS plastic) for 
minimally insulated as well as moderate and high insulation spas in the 
consumer analysis of energy conservation standards. (Id.)
    Master Spas commented that, regardless of the representativeness of 
installing a portable electric spa on concrete, testing on concrete may 
not actually be representative of concrete installations because a spa 
in the field would reach thermal equilibrium with the concrete surface 
it is installed on whereas one in a lab would not, and such a 
difference would lead to results not representative of customer use. 
(Master Spas, No. 7 at p. 2) Master Spas stated that DOE's proposal to 
specify testing on concrete floors with no additional insulation would 
not be repeatable and that varying concrete temperatures could 
significantly impact test results. (Id.) Master Spas asserted that test 
results need to be independent of both the geographical location of 
test labs and the season during which testing is conducted and that 
testing on bare concrete would make test results dependent on each of 
those. (Id.)
    Master Spas commented that it is not clear whether testing on a 
concrete floor would result in significantly different normalized 
standby loss values than testing on an insulated chamber floor, 
especially for portable electric spas that currently satisfy ANSI/APSP/
ICC-14 2019 minimum performance standards and are likely to have more 
internal insulation to resist effects of varying floors. (Id.) Master 
Spas also stated that no test data exists right now to answer this 
question, and that adopting the DOE proposal for floor conditions would 
be risky. (Id.)
    In the event that DOE continues to pursue testing on concrete 
without insulation, the CEC requested that DOE specify control 
conditions for preparing and maintaining the temperature of the 
concrete slab. (CEC, No. 13 at p. 3) The CEC recommended that DOE 
continue collecting information to establish a testing floor 
representative of consumer use with standardized conditions. (Id.) The 
CEC also commented that DOE did not state in the October 2022 NOPR

[[Page 38613]]

whether it had considered stock distribution when estimating the 
distribution of spas recommended to be installed on a concrete floor. 
(Id.) The CEC noted that DOE's test results in the October 2022 NOPR 
did demonstrate a significant impact when changing the chamber floor's 
level of insulation. (Id.)
    In contrast, the Joint Advocates commented that they agreed with 
DOE's conclusion that the preliminary test results in the October 2022 
NOPR suggest the use of chamber floor insulation may result in 
unrepresentative standby loss ratings, and they supported DOE's efforts 
to ensure that the test procedure is representative. (Joint Advocates, 
No. 12 at p. 2)
    As discussed, EPCA requires test procedures to be representative of 
an average use cycle and not be unduly burdensome to conduct. (42 
U.S.C. 6293(b)(3)) DOE had proposed in the October 2022 NOPR that 
testing on a concrete floor or slab would meet these criteria because 
it would provide representative results while not being unduly 
burdensome. 87 FR 63356, 63365. However, comments from stakeholders 
suggest that, although concrete may be a representative material used 
by consumers, there is uncertainty regarding whether testing on 
concrete would provide reproducible test results--and therefore 
uncertainty regarding whether testing on concrete would reliably 
provide representative test results among different test laboratories. 
(PHTA/IHTA, No. 10 at p. 14; CA IOUs, No. 8 at p. 5; Master Spas, No. 7 
at p. 2) Comments also suggest that ensuring reproducible results from 
a concrete slab might require measures--such as control of the slab 
temperature--that could introduce substantial burden. (CEC, No. 13 at 
p. 3) Therefore, based on feedback provided in stakeholder comments, 
DOE has determined that there is uncertainty regarding whether testing 
on concrete would reliably produce representative test results without 
being unduly burdensome.
    Regarding suggestions to specify testing with insulation between 
the spa and the floor, DOE received no comments disputing its tentative 
determination that consumers are likely to install non-inflatable spas 
without any insulation between the supporting surface and the spa, and 
no comments stated it is common for consumers to install spas on top of 
insulation. While comments indicate that testing on insulation may 
yield repeatable and reproducible test results, for the reasons 
presented in the October 2022 NOPR (including DOE's test data), DOE has 
determined that testing on insulation would not yield results that are 
representative of consumer use, as required by EPCA. Testing on 
insulation underestimates the standby loss of portable electric spas as 
compared to testing with no insulation installed between the floor and 
the spa, as shown in DOE's investigative testing results in the October 
2022 NOPR. 87 FR 63324, 63364. As discussed, no comments stated it is 
common for consumers to install spas on top of insulation. As a result, 
it is most representative to test a portable electric spa when 
installed on a surface with a temperature and thermal conductivity that 
is similar to those of the surfaces on which portable electric spas are 
commonly installed, such as concrete, brick, gravel, tile, marble, or 
decking (see PHTA/IHTA, No. 10 at p. 13). Insulation has a much lower 
thermal conductivity than any of those materials, and therefore 
insulation reduces the rate of heat transfer from the bottom surface of 
the spa to the floor. This results in lower rate of heat transfer from 
the bottom surface of the spa to the floor than would occur if the spa 
was installed on one of the common mounting surfaces. As a result, DOE 
finds that measures of standby loss determined from spas installed on 
top of insulation are lower than what is representative. the spa. 
Although the CA IOUs suggested the possibility of developing equations 
to extrapolate the effect of the ground surface from the results of 
tests performed on insulation (CA IOUs, No. 8 at p. 5), this approach 
is not feasible for the test procedure because the magnitude of the 
underestimate of standby loss due to testing on insulation will vary 
between spas based on differences in product design, such as the amount 
of insulation installed inside the body of the spa.
    Through further consideration of the rationales presented by DOE in 
the October 2022 NOPR, as well as review of installation materials and 
consideration of stakeholder comments, DOE is specifying an approach in 
this final rule that addresses the challenges articulated by 
stakeholders and will provide test results that are representative 
without being unduly burdensome. DOE's review of installation manuals 
confirms that wooden decking is a common installation surface, as it 
was the second-most commonly listed mounting surface. Decking was also 
one of the common mounting surfaces that PHTA/IHTA indicated in their 
comments. (PHTA/IHTA, No. 10 at p. 13) Additionally, PHTA/IHTA 
commented that testing on pallets or simulated decks would remove the 
variability of heat losses through the floor of the spa. (Id. at p. 7) 
DOE has determined that this test approach would address the concerns 
noted by stakeholders regarding reproducibility and produce 
representative test results by not limiting heat transfer from the 
bottom of a portable electric spa. Clause 5.1.1(b) and Figure 1 of CSA 
C374:11 (R2021) specify a wooden decking test platform that is placed 
directly on the test room floor. The outside dimensions of the platform 
are large enough to support the entire base of the spa, and the 
platform is constructed using standard construction 2 inch by 6 inch 
planking with 0.236 inch spacing between the planks. The structure is 
supported by three equally spaced beams constructed using four layers 
of 2 inch by 6 inch planking laminated together, providing a 
standardized gap of free air space beneath the deck. PHTA/IHTA 
commented that the wooden decking specified by CSA C374:11 (R2021) is 
intended to provide consistent test results. (Id.) Based on 
consideration of the comments received in response to the October 2022 
NOPR, DOE has determined that testing on wooden decking would provide 
repeatable and reproducible test results and would yield test results 
that are representative of average consumer use cycle or period of use.
    As discussed, in response to the October 2022 NOPR, several 
commenters expressed concern about the lack of reproducibility of the 
concrete slab data, and the lack of supporting data, and encouraged DOE 
to compile more analysis and reconsider the chamber floor approach in 
the October 2022 NOPR. (PHTA/IHTA, No. 10 at pp. 8, 13; CA IOUs, No. 8 
at p. 5; Master Spas, No. 7 at p. 2) As discussed, DOE has evaluated 
the comments, reconsidered, and is adopting an alternate approach for 
the chamber floor. This approach requires installing the spa on the 
wooden decking specified by CSA C374:11 (R2021). DOE expects that this 
approach will allay the concerns of PHTA/IHTA and other commenters 
because PHTA/IHTA, in particular, stated in their comments in response 
to the October 2022 NOPR that they worked collaboratively to assist CSA 
with testing and data, including testing 4 portable electric spas for 
CSA, prior to the finalization, publishing, and implementation of CSA 
C374:11 (R2021). (PHTA/IHTA, No. 10 at p. 4) PHTA/IHTA also stated that 
the platform specified by CSA C374:11 (R2021) is intended to provide 
consistent test results, which would

[[Page 38614]]

alleviate the repeatability concerns noted by commenters. (Id. at p. 7) 
As a result, DOE expects that stakeholders will be satisfied with the 
reproducibility of test data produced from tests performed using the 
platform specified in CSA C374:11 (R2021).
    Regarding the question of burden, PHTA/IHTA suggested that test 
labs might not currently be equipped with the wooden platform specified 
by CSA C374:11 (R2021). (PHTA/IHTA, No. 10 at p. 7) However, DOE 
expects that the type of platform specified by CSA C374:11 (R2021) 
could be built at relatively modest cost (see section III.F of this 
final rule for more details on cost). Based on these considerations, 
DOE has determined that it would not be unduly burdensome to require 
testing on the wooden platform specified by CSA C374:11 (R2021).
    In summary, in this final rule, DOE is requiring testing of 
portable electric spas on the wooden platform specified by CSA C374:11 
(R2021). DOE has determined that this requirement will produce test 
results that are representative of an average consumer use cycle or 
period of use without being unduly burdensome. DOE is specifying this 
requirement in section 3.1.2 of appendix GG by incorporating by 
reference CSA C374:11 (R2021) in 10 CFR 430.3 and specifying in section 
3.1.2 of appendix GG to install the portable electric spa on a platform 
as specified in Clause 5.1.1(b) and Figure 1 of CSA C374:11 (R2021).
5. Electrical Supply Voltage and Amperage Configuration
    Section 5.5.6 of ANSI/APSP/ICC-14 2019 specifies that the voltage 
supplied to the portable electric spa be within 10 percent of the 
nameplate voltage during testing but specifies no other requirements 
for the electrical supply or amperage configuration. The following 
paragraphs discuss additional considerations regarding voltage supply 
and amperage configuration relevant to testing portable electric spas.
    DOE's market research indicates that most portable electric spas 
operate at a single voltage (e.g., either 120 or 240 volts (``V''), 
nominally). Models that operate at 120 V are often referred to as 
``plug and play'' models and are plugged into an ordinary 120 V 
electrical outlet. Models that operate at 240 V are typically required 
to be permanently connected (i.e., hard wired) into a 240 V circuit, 
similar to that which would supply an electric water heater. DOE is 
aware of models on the market that can be configured to operate at 
either 120 V or 240 V, depending on the preference of the consumer. 
Such models are most often pre-configured by the manufacturer to 
operate at 120 V and include instructions for converting the model to 
operate at 240 V. The conversion process typically requires changing 
the configuration of internal wiring and controls in addition to 
changes to the external wiring.
    Similarly, certain portable electric spas on the market allow the 
consumer to configure the maximum amperage at which the portable 
electric spa can operate at a particular voltage level. This 
configurability ensures that the operation of the portable electric spa 
is compatible with the electrical service of the home. For example, for 
a home with a 50 ampere (``A'') circuit breaker available, all the 
features on a particular portable electric spa may be capable of 
operating at the same time; whereas, for a home with only a 30 A 
circuit breaker available, the portable electric spa may still operate, 
albeit with reduced or restricted functionality. Units that provide 
amperage configurability most commonly operate at 240 V. On such units, 
changing the maximum amperage corresponds to allowing more or fewer 
components to operate at the same time (e.g., whether the heater is 
able to be energized at the same time as a secondary pump), or setting 
the level of operation for certain components (e.g., varying the number 
of heating elements that can operate simultaneously).
    The choice of voltage and maximum amperage can affect the rate of 
heating in the portable electric spa and the occurrence of multiple 
components of the spa (e.g., pump and heater) operating simultaneously. 
These differences in operation may affect measured energy use. 
Therefore, in the October 2022 NOPR, DOE tentatively concluded that 
additional specifications regarding the supply voltage and amperage 
configuration to be used during testing would ensure the 
reproducibility of the DOE test procedure across different test 
laboratories. 87 FR 63356, 63365.
    In the October 2022 NOPR, DOE proposed in section 3.1.3 of appendix 
GG a hierarchy to use for configuring the voltage and amperage 
configuration of the portable electric spa during testing in section 
3.1.3 of appendix GG. Id. Specifically, DOE proposed that if the 
portable electric spa can be installed or configured with multiple 
options of voltage, maximum amperage, or both, testing should use the 
as-shipped configuration. Id. If no configuration is provided in the 
as-shipped condition, DOE proposed that testing be conducted using the 
option specified in the manufacturer's instructions as the recommended 
configuration for normal consumer use. Id. If no configuration is 
provided in the as-shipped condition and the manufacturer's 
instructions do not provide a recommended configuration for normal 
operation, DOE proposed that testing be conducted using the maximum 
voltage specified in the manufacturer's installation instructions and 
the maximum amperage that the manufacturer's installation instructions 
specify for use with the maximum voltage. Id.
    DOE requested comment on the proposed hierarchy for specifying 
voltage and maximum amperage for portable electric spas that have 
multiple options for voltage and/or amperage. Id. DOE also requested 
comment on any cases for which the proposed language would not make 
clear the voltage and/or maximum amperage to be used during testing. 
Id.
    In response to DOE's request for comment in the October 2022 NOPR, 
the Joint Advocates supported DOE's proposed hierarchy to add 
clarification and make the test procedure more reproducible. (Joint 
Advocates, No. 12 at p. 2) However, the CEC recommended using the 
maximum voltage and maximum amperage on the nameplate for testing 
rather than the proposed hierarchy. (CEC, No. 13 at pp. 3-4) The CEC 
stated that the proposed hierarchy method introduces variability by 
relying on as-shipped configurations and manufacturer's instructions, 
as each manufacturer may configure and operate their spas differently. 
(Id. at p. 4) In addition, the CEC noted that as-shipped configurations 
may or may not be included in the literature provided by manufacturers, 
and manufacturer manuals are typically updated annually while older 
dated manuals are archived and not accessible to the public after a 
certain period. (Id.) The CEC indicated that, to ensure compliance, 
manufacturers and test laboratories must keep records of all manuals 
for tested units and tests must be repeatable. (Id.) The CEC continued 
that it is more accessible and manageable to rely on information 
permanently marked on the nameplate of a spa than on manufacturer 
literature that may be amended or become unavailable. (Id.)
    PHTA/IHTA stated that portable electric spas should be installed 
and tested to the manufacturer's instructions. (PHTA/IHTA, No. 10 at p. 
14) PHTA/IHTA also stated that the amperage rating is not relevant to 
energy performance in the mode of operation in DOE's proposed test 
procedure because the amperage is only used for sizing the breaker 
relevant to manual operations such as turning on the jet pumps, which 
are not used in the proposed test

[[Page 38615]]

procedure. (Id.) Finally, PHTA/IHTA recommended the final rule clearly 
state that a 10 percent voltage fluctuation in the unregulated power 
source is allowed during testing. (Id.)
    Regarding the CEC's recommendation to use the maximum voltage and 
current on the nameplate instead of using a hierarchy, DOE has 
determined that it is most representative to preferentially use the 
most commonly used voltage and maximum amperage settings instead of 
using only the maximum values on the nameplate. Although the nameplate 
maximums might be easier to identify and trace over several years, as 
suggested by the CEC, they are not necessarily the most commonly used 
settings. DOE considers it most likely that consumers would set up a 
portable electric spa using the as-shipped settings or the 
manufacturer's recommended configuration for normal consumer use and 
would only use the maximum values of each if no as-shipped or 
recommended configuration is available. For these reasons, DOE is using 
a hierarchy in this final rule.
    Regarding the CEC's comment that as-shipped configurations may or 
may not be included in the literature provided by manufacturers, the 
as-shipped configuration does not need to be included in literature 
because it is the configuration that exists when the unit is shipped to 
the customer. Regarding the CEC's comment that older dated manuals are 
archived and not accessible to the public after a certain period, 
appliance efficiency tests are typically performed on new products, 
which are typically shipped with a manual. As a result, older manuals 
are not typically required for appliance efficiency testing.
    In response to PHTA/IHTA's comment that the amperage is not 
relevant to energy performance in the DOE test procedure, it is likely 
that the setting for maximum amperage has no impact on the measured 
standby loss for many or most models. It is also possible that there 
are some models for which the setting for maximum amperage does have an 
impact on the measured standby loss, due to variations in the heating 
or pump settings in different maximum amperage settings. As a result, 
DOE considers it most representative to include the setting for maximum 
amperage in the hierarchy, instead of including only the setting for 
voltage, to ensure that the unit is set up with the setting for maximum 
amperage that is commonly used in the field. DOE also notes that 
adjusting the setting for maximum amperage of a portable electric spa 
is typically performed by adjusting settings on the setup panel of the 
spa, and therefore is not unduly burdensome. For these reasons, DOE is 
including the setting for maximum amperage in the hierarchy being 
adopted in this final rule.
    In response to PHTA/IHTA's comment about allowing voltage to be 
within 10 percent of the nameplate rating during testing, that 
tolerance is currently specified in section 5.5.6 of ANSI/APSP/ICC-14 
2019, which DOE is adopting in the test procedure.
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is adopting the 
requirements on electrical voltage and maximum amperage configuration 
in section 3.1.3 of appendix GG as proposed in the October 2022 NOPR. 
DOE is also dividing the requirements into subsections 3.1.3.1 and 
3.1.3.2 in section 3.1.3 of appendix GG to make the requirements 
clearer.
6. Fill Volume
    Section 3 of ANSI/APSP/ICC-14 2019 defines two quantities for the 
volume of water in a portable electric spa: fill volume and rated 
volume. ``Fill volume'' is the amount of water that is required to be 
in the spa during testing and is defined as the halfway point between 
the bottom of the skimmer opening and the top of the skimmer opening. 
In the absence of a wall skimmer, the fill volume is 6 inches (152 mm) 
below the overflow level of the spa. ``Rated volume'' is defined as the 
water capacity of a portable electric spa, in gallons (liters), as 
specified by the manufacturer on the spa, on the spa packaging, or the 
spa marketing materials. ANSI/APSP/ICC-14 2019 provides no requirement 
for the rated volume to correspond to the fill volume. ANSI/APSP/ICC-14 
2019 also does not specify any tolerance on the fill volume 
measurement.
    DOE compared fill volume and rated volume of portable electric spas 
on the market by reviewing certification records available in the CEC 
Modernized Appliance Energy Efficiency Database System 
(``MAEDbS'').\29\ Fill volume and rated volume are equivalent for some 
models but differ for other models. For most models with differing 
values of fill volume and rated volume, the variation is within a few 
percent. For example, in some cases, the value of rated volume 
corresponds to the fill volume rounded to the nearest multiple of 10. 
For other models, however, the difference between rated and fill volume 
is much greater than any difference due to rounding, ranging from 10 to 
50 percent of fill volume.
---------------------------------------------------------------------------

    \29\ The CEC Modernized Appliance Efficiency Database System. 
Available at cacertappliances.energy.ca.gov (Last accessed May 23, 
2023).
---------------------------------------------------------------------------

    The volume of the water in a portable electric spa has a 
significant effect on the energy consumption of the spa, such that any 
significant difference between fill volume and rated volume for 
particular portable electric spas suggests that the standby loss 
determined for those models (based on fill volume) may not be 
representative of the way those models are advertised or used by 
consumers (presumably, rated volume). Furthermore, lack of tolerance on 
the fill level specification may result in variation in the fill level 
that could reduce repeatability and reproducibility of the test.
    In the October 2022 NOPR, DOE made several proposals on how the 
volume of water in portable electric spas would be defined, determined 
during testing, and represented. 87 FR 63324, 63366.
    First, DOE proposed to exclude from incorporation by reference the 
definitions of ``fill volume'' and ``rated volume'' in ANSI/APSP/ICC-14 
2019, and to create a new definition of ``fill volume'' in section 2.5 
of appendix GG. Id. DOE proposed to define ``fill volume'' as the 
volume of water held by the portable electric spa when it is filled 
according to the filling instructions specified in section 3.1.4 of 
appendix GG. Id. DOE made this proposal to prevent the ambiguity in 
representations of volume that DOE had identified for some models in 
the CEC MAEDbS. Id.
    Second, to ensure that the volume of water in the portable electric 
spa during testing is representative of consumer use, DOE proposed to 
exclude the spa filling instructions in section 5.5.2 of ANSI/APSP/ICC-
14 2019 and to define new filling instructions that refer to 
manufacturer's instructions in section 3.1.4 of appendix GG. Id. 
Section 3.1.4 of appendix GG would specify filling the spa with water 
as follows:
    (a) If the manufacturer's instructions specify a single fill level, 
fill to that level with a tolerance of  0.125 inches.
    (b) If the manufacturer's instructions specify a range of fill 
levels and not a single fill level, fill to the middle of that range 
with a tolerance of  0.125 inches.
    (c) If the manufacturer's instructions do not specify a fill level 
or range of fill levels, fill to the halfway point between the bottom 
of the skimmer opening and the top of the skimmer opening with a 
tolerance of  0.125 inches.
    (d) If the manufacturer's instructions do not specify a fill level 
or range of fill levels, and there is no wall skimmer, fill to 6.0 
inches  0.125 inches below the overflow level of the spa. 
Id.

[[Page 38616]]

    Third, to ensure that the fill volume includes the water in all 
components of the portable electric spa, DOE proposed in section 3.1.4 
of appendix GG to follow the manufacturer's instructions for filling 
the spa with water, connecting and/or priming the pump(s), and starting 
up the spa. Id. After verifying that the portable electric spa is 
operating normally and that all water lines are filled, DOE proposed to 
power off the spa and adjust the fill level as needed. Id. DOE proposed 
to measure the volume of water added to the portable electric spa with 
a water meter while filling the spa, and to measure any water removed 
from the spa using a water meter, graduated container, or scale with an 
accuracy of  2 percent of the quantity measured. Id. DOE 
proposed to define ``fill volume'' as the volume of water held by the 
portable electric spa when the spa is filled, as specified in section 
3.1.4 of appendix GG. Id.
    Finally, DOE proposed that all representations of fill volume be 
within 5 gallons of the mean fill volume measured for the sample of the 
basic model. Id. The proposed requirement would allow manufacturers to 
continue to represent fill volume as a value rounded to the nearest 
multiple of 10, because any such rounded value would vary by no more 
than 5 gallons from the measured value. Id. Further discussion of DOE's 
proposals regarding represented values is detailed in section III.E.2 
of this final rule.
    DOE requested comment on its proposals to exclude from 
incorporation by reference the definitions of ``fill volume'' and 
``rated volume'' in ANSI/APSP/ICC-14 2019, to define a new term for 
``fill volume,'' and to specify new filling instructions in appendix 
GG. Id. DOE also requested comment on its proposal to specify a 
tolerance of  0.125 inches on the defined fill level and on 
whether any other tolerances on fill level, such as  0.0625 
inches or  0.25 inches, would be more appropriate than 
 0.125 inches. Id. at 87 FR 63367. Finally, DOE requested 
comment on its proposal to allow represented values of fill volume to 
be within 5 gallons of the mean fill volume measured for the sample of 
the basic model. Id.
    DOE received comments from the CEC, the Joint Advocates, and PHTA/
IHTA on the proposals in the October 2022 NOPR for definitions and fill 
level instructions. The CEC supported DOE's proposal to exclude the 
definition of ``rated volume'' from incorporation by reference because 
DOE is not proposing labeling requirements in the proposed rulemaking. 
(CEC, No. 13, at p. 4) The Joint Advocates commented in support of the 
additional proposed specifications to ensure that the fill volume in 
testing is representative. (Joint Advocates, No. 12 at p. 2) PHTA/IHTA 
expressed no position on the proposed change from the filling 
instructions in ANSI/APSP/ICC-14 2019 and deferred to individual 
manufacturer comments. (PHTA/IHTA, No. 10 at p. 15) DOE received no 
individual manufacturer comments on this topic.
    PHTA/IHTA stated that they do not see any significant issue with 
using manufacturer-recommended fill level for the test, as it provides 
clarity to the end user. (Id.) PHTA/IHTA also explained that, although 
ANSI/APSP/ICC-14 2019 sets a uniform method for filling a portable 
electric spa, the ANSI/APSP/ICC-14 2019 fill level requirements do not 
always agree with typical user fill levels. (Id.) PHTA/IHTA stated that 
the ANSI/APSP/ICC-14 2019 fill level is often similar to the user fill 
level, but the user fill level can differ from the ANSI/APSP/ICC-14 
2019 fill level due to the way the portable electric spa is designed to 
meet a specific consumer experience or other physical, operational, or 
cosmetic requirements. (Id.) PHTA/IHTA stated that the recommended fill 
line for inflatable spas is lower than the ANSI/APSP/ICC-14 2019 fill 
level. (Id.) PHTA/IHTA also stated that there are other models for 
which the recommended fill line is approximately 2 inches higher than 
the ANSI/APSP/ICC-14 2019 fill level, and for which the ANSI/APSP/ICC-
14 2019 fill volume would interfere with normal operation because it 
would not cover all the jets. (Id.)
    PHTA/IHTA and the CEC commented in support of DOE's proposal to 
allow a tolerance of  0.125 inches on fill level 
requirements. (PHTA/IHTA, No. 10 at p. 15; CEC, No. 13 at p. 4) The CEC 
supported adding instructions specifying that all water lines are 
filled, but the CEC recommended using the filling instructions in ANSI/
APSP/ICC-14 2019 rather than the hierarchy proposed in the October 2022 
NOPR. (CEC, No. 13, at p. 4) The CEC indicated that relying on 
manufacturer's instructions is not necessarily representative of 
consumer use if each manufacturer is different in providing 
instructions with various setup options. (Id.) The CEC recommended that 
DOE specify testing conditions that are identical for all manufacturers 
to ensure standardized conditions and comparable testing results across 
all products. (Id.)
    Regarding representations of fill volumes, the CEC supported 
specifying the value of the fill volume to be a whole number within 5 
gallons to allow consumers to easily compare similarly sized spas. (Id. 
at p. 5) Conversely, PHTA/IHTA commented that 5 gallons is a very tight 
tolerance for represented fill volumes, even with the proposed  0.125-inch fill tolerance, and that changes to plumbing or 
configuration could affect the volume and affect whether portable 
electric spas that would otherwise be grouped under the same basic 
model could be represented as having the same fill volume. (PHTA/IHTA, 
No. 10 at p. 15)
    In response to the CEC's comments recommending the use of the 
filling instructions in ANSI/APSP/ICC-14 2019 rather than the hierarchy 
proposed in the October 2022 NOPR, DOE concludes that the hierarchy 
proposed in the October 2022 NOPR is more representative than the fill 
level specified by ANSI/APSP/ICC-14 2019 because the hierarchy uses the 
fill level that is specified in the model-specific manufacturer's 
instructions, if available, instead of relying only on the geometrical 
relationships in ANSI/APSP/ICC-14 2019 that are not specific to the 
model. Although the CEC indicated that relying on manufacturer's 
instructions is not necessarily representative of consumer use if each 
manufacturer provides different instructions and instead recommended 
that DOE specify testing conditions that are identical for all 
manufacturers (CEC, No. 13, at p. 4), DOE has concluded that the most 
representative fill level to use for each model is the fill level that 
would be used most commonly for that model by consumers. As indicated 
in comments by PHTA/IHTA, the ANSI/APSP/ICC-14 2019 fill level is often 
similar to the user fill level, but the user fill level can differ from 
the ANSI/APSP/ICC-14 2019 fill level due to the way the portable 
electric spa model is designed to meet a specific consumer experience 
or other physical, operational, or cosmetic requirements. (PHTA/IHTA, 
No. 10 at p. 15) DOE concludes that the manufacturer's instructions, if 
available, provide the best indication of the typical user fill level 
because the manufacturer's instructions take into consideration the 
design and intended use of the model, and the instructions are the 
primary literature used by a consumer to determine the proper use of 
the portable electric spa. As a result, DOE concludes that the filling 
instructions in ANSI/APSP/ICC-14 2019 are not as representative of an 
average use cycle or period of use as the filling instructions proposed 
in the October 2022 NOPR.

[[Page 38617]]

    In response to PHTA/IHTA's comment on the proposed tolerance for 
represented value for fill volume, it is true that a  
0.125-inch fill level tolerance could allow for a variation in total 
fill volume of greater than 5 gallons between multiple tests on the 
same portable electric spa. However, the 5-gallon allowance in 
representations of fill volume does not necessarily delineate basic 
models, as suggested by PHTA/IHTA's comment. Rather, as described in 
section III.E.1 of this final rule, manufacturers have the ability to 
determine how they want to group individual models into basic models, 
as long as the individual model used to represent each basic model has 
the highest standby loss of all individual models in that basic model. 
As a result, a manufacturer could group multiple individual models of 
similar volumes into a single basic model and use test results from the 
individual model with the highest standby loss to represent that basic 
model. The 5-gallon allowance applies only to the flexibility that the 
manufacturer has in representing the mean fill volume from the testing 
of the individual model being used to represent the basic model. 
Therefore, DOE concludes that the 5-gallon allowance on represented 
fill volume is not overly narrow, and DOE is proceeding with its 
proposal.
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is finalizing its 
proposals on fill volume as proposed in the October 2022 NOPR.
7. Spa Cover
    Portable electric spas are typically covered when not in active 
use. The standby loss of a portable electric spa is significantly 
affected by the presence and thermal properties of a spa cover. Section 
5.5.5 of ANSI/APSP/ICC-14 2019 requires that the manufacturer's 
specified cover be used during the test. Section 3 of ANSI/APSP/ICC-14 
2019 defines ``cover, specified'' as the cover that is provided or 
specified by the manufacturer. However, ANSI/APSP/ICC-14 2019 does not 
specify how to conduct testing if the manufacturer does not specify a 
cover. For such cases, differences in laboratory decisions regarding 
the spa cover to be used for testing could result in significant 
variation in results between laboratories (i.e., low reproducibility of 
test results) and could also produce test results that are not 
representative of average consumer use.
    In the October 2022 NOPR, DOE proposed to exclude section 5.5.5 of 
ANSI/APSP/ICC-14 2019, which requires use of the manufacturer's 
specified cover during testing, and to exclude the definition in ANSI/
APSP/ICC-14 2019 for ``cover, specified.'' 87 FR 63356, 63367. DOE 
proposed instead to specify in section 3.1.5 of appendix GG to install 
the spa cover following the manufacturer's instructions. Id. 
Additionally, DOE proposed that if a basic model is distributed with 
multiple covers designated by the spa manufacturer for use with the 
basic model, the manufacturer must determine all represented values for 
that basic model based on the cover that results in the highest standby 
loss, except the manufacturer may choose to identify specific 
individual combinations of spa and cover as additional basic models. 
Id.
    In the October 2022 NOPR, DOE proposed to provide instructions for 
testing if the manufacturer does not specify a particular cover to be 
used with a portable electric spa. Id. DOE tentatively concluded that 
some consumers would opt to use a low-cost, minimally insulative cover 
if the spa manufacturer does not specify use of a particular cover. Id. 
As such, if a cover were not specified for use with a basic model, DOE 
proposed to specify the following in section 3.1.5 of appendix GG: If 
no cover is designated by the spa manufacturer for use with the 
portable electric spa, cover the spa with a single layer of 6 mil 
thickness (0.006 in; 0.15 mm) plastic film. Cut the plastic to cover 
the entire top surface of the spa and extend over each edge of the spa 
approximately 6 inches below the top surface of the spa. Use fasteners 
or weights to keep the plastic in place during the test, but do not 
seal the edges of the plastic to the spa (by using tape, for example). 
Id.
    DOE also noted in the October 2022 NOPR that this proposal may not 
be applicable when the spa manufacturer specifically designates a 
portable electric spa model for use without a cover or with ``no 
cover'' as one of multiple cover options designated by the spa 
manufacturer. Id. In both of these cases, testing the spa with a cover 
made of 6 mil plastic might not be representative of field use and, 
therefore, it might be more representative to test the spa without a 
cover. Id. DOE requested comment on its proposed requirements for 
testing a portable electric spa that does not have a cover designated 
for use by the spa manufacturer, on whether manufacturers would ever 
designate a portable electric spa model to be used without a cover, or 
designate a ``no cover'' option, and how such a spa should be tested to 
determine the highest standby loss. Id. at 87 FR 63366-63367.
    In response to the October 2022 NOPR, the CEC, the CA IOUs, and the 
Joint Advocates expressed support for DOE's proposal regarding spa 
cover specifications during testing. (CEC, No. 13 at pp. 4-5; CA IOUs, 
No. 8 at p. 2; Joint Advocates, No. 12 at pp. 2-3) Both PHTA/IHTA and 
the CEC commented that they are not aware of manufacturers that 
designate a ``no cover'' option or manufacturers that do not ship an 
approved cover with the portable electric spa. (PHTA/IHTA, No. 10 at p. 
16; CEC, No. 13 at p. 5) PHTA/IHTA emphasized that no spa would be able 
to pass a reasonable minimum energy efficiency standard without a cover 
and stated that they presumed any DOE test procedure would provide a 
minimum requirement that could not be met without a cover. (PHTA/IHTA, 
No. 10 at p. 16) Instead of the plastic film proposed by DOE to cover a 
portable electric spa without a designated cover, the CEC suggested 
using a cover that uses the same material and design as an inflatable 
spa cover. (CEC, No. 13 at pp. 4-5)
    In response to the CEC's comment regarding covers of the same 
design and material as inflatable spa covers, DOE notes that portable 
electric spas consume significantly more energy when the spa cover is 
removed and manufacturer's instructions that do not specify the use of 
a cover may lead some consumers to use only a low-cost, minimally 
protective cover that would prevent debris from entering the spa but 
would not provide substantial insulative properties. Therefore, it is 
necessary to simulate a low-cost, minimally protective cover for 
testing if a cover is not specified by a manufacturer. Although covers 
resembling those used by inflatable spas may represent a lower-
efficiency option than common covers for rigid spas, DOE finds that 
these covers provide more insulation than the plastic film proposed in 
the October 2022 NOPR. As a result, such covers would not meet the 
requirement of a low-cost, minimally protective cover as well as the 
plastic film proposed by DOE.
    Therefore, for the reasons discussed in the October 2022 NOPR and 
in the preceding paragraphs, in this final rule, DOE is finalizing its 
requirements for installing a spa cover in section 3.1.5 of appendix 
GG.
    DOE discusses its proposal on representations related to spa covers 
in section III.E.2 of this final rule.

[[Page 38618]]

8. Air Temperature Measurement Location
    Section 5.6.3 of ANSI/APSP/ICC-14 2019 requires that ambient air 
temperature be measured at one point located 12 to 18 inches above the 
level of the spa cover and a minimum of 8 inches from the wall of the 
chamber. The temperature probe will be positioned and out of direct 
airflow from the circulation fan. ANSI/APSP/ICC-14 2019 does not 
provide any further requirements on the location of the ambient air 
temperature measurement point, such that it would be possible in a 
large chamber for the measurement point to be located beyond the 
immediate proximity of the portable electric spa. In the October 2022 
NOPR, DOE noted that this lack of direction presents the possibility 
that the temperature could be taken at a location in the chamber with 
an ambient temperature that is different than the ambient temperature 
immediately around the portable electric spa. 87 FR 63356, 63368.
    In the October 2022 NOPR, DOE proposed further requirements on the 
horizontal location of the ambient air temperature measurement point. 
Id. Specifically, DOE proposed in section 3.1.6 of appendix GG that the 
ambient air temperature measurement point specified in section 5.6.3 of 
ANSI/APSP/ICC-14 2019 must be located above the center of the portable 
electric spa. Id. DOE tentatively concluded that this proposed 
requirement ensures that ambient temperature is measured in the 
immediate vicinity of the portable electric spa and in the same general 
location each time, thereby increasing test repeatability. Id.
    DOE requested comment on its proposal. Id. PHTA/IHTA commented that 
DOE's proposal reflects what is intended in ANSI/APSP/ICC-14 2019 and 
is common practice in the industry. (PHTA/IHTA, No. 10 at p. 16) PHTA/
IHTA continued that it fully supports DOE's proposal to clarify ambient 
air temperature measurement location. (Id.) The CEC also commented in 
support of clarifying the horizontal position at which to measure the 
ambient temperature to ensure the measurement is taken in the same 
location in every test. (CEC, No. 13 at p. 5)
    For the reasons stated in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is adopting 
specifications in section 3.1.6 of appendix GG that the ambient air 
temperature measurement point specified in section 5.6.3 of ANSI/APSP/
ICC-14 2019 must be located above the center of the portable electric 
spa.
9. Water Temperature Settings
    The definition of ``standby mode'' in ANSI/APSP/ICC-14 2019 
indicates that water temperature settings may be adjusted to meet the 
test conditions.\30\ ANSI/APSP/ICC-14 2019 does not specify, however, 
whether adjustments to the water temperature settings can be made 
during the test. Spa users typically leave a portable electric spa at 
the desired water temperature setting while the spa is operating in 
default operation mode with the cover on. Based on these consumer usage 
patterns, water temperature adjustments during a test would be 
unrepresentative of field use. In addition, the permitting of water 
temperature setting adjustments during a test could influence the 
outcome of the test.
---------------------------------------------------------------------------

    \30\ The definition of standby mode in section 3 of ANSI/APSP/
ICC-14 2019 is as follows: All settings at default as shipped by the 
manufacturer, except water temperature, which may be adjusted to 
meet the test conditions. No manual operations are enabled.
---------------------------------------------------------------------------

    In the October 2022 NOPR, DOE tentatively concluded that water 
temperature setting adjustments would not be appropriate during the 
test, and that its proposed specification is required to ensure 
repeatable, reproducible, and representative test results. 87 FR 63356, 
63368. DOE proposed in section 3.2.2 of appendix GG to specify that 
portable electric spa water temperature settings be adjusted to meet 
the test requirements, but that spa water temperature settings must not 
be adjusted between the start of the stabilizing period specified in 
section 5.6.1 of ANSI/APSP/ICC-14 2019 and the end of the test period 
specified in section 5.6.4.7 of ANSI/APSP/ICC-14 2019. Id.
    DOE requested comment on its proposed requirement that water 
temperature settings must not be adjusted between the start of the 
stabilizing period and the end of the test period. Id. In response to 
DOE's request for comment in the October 2022 NOPR, both PHTA/IHTA and 
the CEC expressed support for DOE's proposal to clarify to not adjust 
water temperature settings during testing periods. (PHTA/IHTA, No. 10 
at p. 16; CEC, No. 13 at p. 5) The CEC also noted that DOE's proposal 
reflects the intention of ANSI/APSP/ICC-14 2019 and current practice in 
the industry. (CEC, No. 13 at p. 5)
    For the reasons stated in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is adopting in section 
3.2.2 of appendix GG a specification that portable electric spa water 
temperature settings be adjusted to meet the test requirements, but 
that spa water temperature settings must not be adjusted between the 
start of the stabilizing period specified in section 5.6.1 of ANSI/
APSP/ICC-14 2019 and the end of the test period specified in section 
5.6.4.7 of ANSI/APSP/ICC-14 2019.
10. Water Temperature Requirements
    The sub-sections within section 5.6.1 of ANSI/APSP/ICC-14 2019 
specify the range of water temperatures that are allowed during the 
test based on the capabilities of the portable electric spa.\31\ In the 
October 2022 NOPR, DOE interpreted these requirements to apply to every 
temperature measurement taken during the test. 87 FR 63356, 63368. 
However, some consumer product test procedures specify requirements for 
the average temperature during a test instead of the individual 
temperature measurements.\32\ In the October 2022 NOPR, DOE stated that 
the phrasing used in section 5.6.1 of ANSI/APSP/ICC-14 2019 could be 
interpreted to refer to requirements on the average temperature during 
the test instead of every temperature measurement taken during the 
test. Id.
---------------------------------------------------------------------------

    \31\ For example, section 5.6.1.1 states that for exercise spas 
or the exercise portion of a combination spa, that are capable of 
maintaining a minimum water temperature of 100 [deg]F (38 [deg]C) 
for the duration of the test, the spa shall be tested at 102 [deg]F 
2 [deg]F (39 [deg]C 1 [deg]C) and maintain a 
minimum water temperature of 100 [deg]F (38 [deg]C) for the duration 
of the test.
    \32\ For example, the test procedure for refrigerators and 
refrigerator-freezers at appendix A to subpart B of part 430 
contains several requirements on the average temperature of the 
compartment(s) within the appliance.
---------------------------------------------------------------------------

    DOE proposed in the October 2022 NOPR to specify explicitly in 
section 3.2.3 of appendix GG that each individual water temperature 
measurement taken during the stabilization period and test period must 
meet the applicable water temperature requirements specified in section 
5.6.1 of ANSI/APSP/ICC-14 2019. Id. DOE proposed this specification to 
ensure that the water temperature requirements are interpreted 
consistently and repeatably because DOE tentatively determined the 
phrasing used in section 5.6.1 of ANSI/APSP/ICC-14 2019 creates the 
possibility that the range of water temperatures could vary between 
tests based on a laboratory's interpretation of whether the water 
temperature requirements apply to the average temperature or each 
individual measurement. Id. DOE conducted investigative testing and 
found that its

[[Page 38619]]

proposed requirement can be met in typical spa operation. Id.
    DOE requested comment on its proposal. Id. In response to the 
October 2022 NOPR, PHTA/IHTA commented that industry currently 
interprets requirements for individual water temperature measurements 
as proposed by DOE and that it supports DOE's proposal as it may better 
describe the original intent of what is provided for in ANSI/APSP/ICC-
14 2019. (PHTA/IHTA, No. 10 at p. 16)
    For the reasons stated in preceding paragraphs and in the October 
2022 NOPR, in this final rule, DOE is adopting in section 3.2.3 of 
appendix GG a specification that each individual water temperature 
measurement taken during the stabilization period and test period must 
meet the applicable water temperature requirements specified in section 
5.6.1 of ANSI/APSP/ICC-14 2019.
11. Standby Loss Calculation
    Section 5.7 of ANSI/APSP/ICC-14 2019 contains calculations for 
normalized standby power. This includes calculating the measured 
standby power and normalizing that standby power to a normalized 
temperature difference between the water in the spa and the ambient 
air. As discussed in section III.C.3 of this final rule, DOE is 
adopting a requirement to use the term ``standby loss'' instead of 
``normalized standby power.'' In addition, as discussed in section 
III.D.3 of this final rule, DOE is adopting a requirement to specify a 
representative ambient air temperature of 56 [deg]F.
    In the October 2022 NOPR, DOE proposed standby loss calculations in 
section 3.3 of appendix GG, including a normalized temperature 
difference of 46 [deg]F (i.e., 102 [deg]F-56 [deg]F) for units tested 
at a water temperature of 102 [deg]F  2 [deg]F, and a 
normalized temperature difference of 31 [deg]F (i.e., 87 [deg]F-56 
[deg]F) for units tested at a water temperature of 87 [deg]F  2 [deg]F. 87 FR 63356, 63369. DOE calculated each proposed 
normalized temperature difference as the difference between the 
midpoints of the allowable water temperature and ambient air 
temperature ranges, which DOE tentatively concluded as being the most 
representative method for determining a normalized temperature 
difference. Id.
    DOE's proposed approach to calculate the normalized temperature 
differs from the approach used in section 5.7 of ANSI/APSP/ICC-14 2019, 
which normalizes to a temperature difference equal to the minimum of 
the allowed water temperature range (i.e., 100 [deg]F or 85 [deg]F) 
minus the maximum of the allowed ambient air temperature range (i.e., 
63 [deg]F). Id. DOE tentatively concluded that this approach may not be 
representative of an average use cycle because it normalizes standby 
loss to the minimum expected temperature difference resulting from the 
two defined ranges. Id.
    DOE requested comment on the proposed standby loss calculations, 
including the method used to calculate normalized temperature 
differences based on the midpoint of the allowable temperature ranges. 
Id. DOE also requested comment on its tentative conclusion that 
normalizing standby loss to the midpoint of the allowable temperature 
ranges would produce test results that are more representative than 
normalizing standby loss to the minimum expected temperature difference 
between the allowable ranges. Id.
    PHTA/IHTA strongly recommended that there be no change to the 
normalized temperature difference and that DOE use the minimum water 
temperature and maximum ambient temperature to determine the normalized 
temperature difference. (PHTA/IHTA, No. 10 at pp. 7, 17) PHTA/IHTA 
indicated that the particular normalized temperature difference has no 
effect on the comparison between portable electric spas at a given 
temperature difference, in that the ranking of portable electric spa 
standby loss will stay the same no matter the normalized temperature 
difference used. (Id. at pp. 6, 17) PHTA/IHTA also indicated that the 
minimum water temperature and maximum ambient air temperature were 
chosen to reduce the number of test results discarded due to 
temperatures being out of tolerance. (Id. at p. 17) Finally, PHTA/IHTA 
stated that if DOE feels strongly that the normalized temperature 
difference should be 46 [deg]F, the formula specifying the allowed 
standby loss must be changed accordingly. (Id. at p. 7) Master Spas 
also commented that the current normalization method should be left 
intact, as it is representative, it is proven to be reproducible, and 
changing it would impose burden on the industry. (Master Spas, No. 7 at 
p. 2)
    Regarding PHTA/IHTA's comment that use of the minimum water 
temperature and maximum ambient air temperature minimizes the 
discarding of test results, DOE concludes that the normalized 
temperature difference has no effect on whether test results are 
discarded. The validity of test results is based on the water and 
ambient air temperature tolerances during the test, which are different 
than the normalized temperature difference used for normalizing the 
standby loss. The DOE test procedure uses the water temperature 
tolerances from ANSI/APSP/ICC-14 2019, and the ambient air temperature 
tolerances are discussed in section III.D.3 of this final rule.
    PHTA/IHTA's statement that the ranking of portable electric spa 
standby loss will stay the same regardless of whether the normalized 
temperature difference used is accurate. DOE proposed to change the 
normalized temperature difference not to change the ranking of portable 
electric spa standby loss, but to make representations of standby loss 
more representative. To this end, it is more representative to base the 
normalized temperature difference on an air temperature of 56 [deg]F--
the ambient air temperature that DOE has determined as the 
representative national ambient temperature for portable electric spas 
in section III.D.3 of this final rule--than it is to base it on air 
temperature of 63 [deg]F. It is also more representative to use the 
midpoint of the allowed water temperature range than it is to use the 
minimum of the allowed water temperature range, because it is DOE's 
understanding that the midpoint of each allowed temperature range 
(i.e., 102 [deg]F for most portable electric spas and 87 [deg]F for 
exercise spas that cannot maintain a minimum water temperature of 100 
[deg]F) is the most commonly used temperature setting for the products 
using the respective range.
    Regarding PHTA/IHTA's comment that the allowed standby loss must be 
changed if the normalized temperature difference is changed, DOE notes 
that if it were to establish an energy conservation standard for 
portable electric spas, that energy conservation standard would be 
based on the standby loss as measured by the DOE test procedure. As a 
result, any energy conservation standard would take into account the 
normalized temperature difference used in the DOE test procedure.
    Therefore, for the reasons discussed in the October 2022 NOPR and 
in the preceding paragraphs, in this final rule, DOE is finalizing in 
section 3.3 of appendix GG the standby loss calculations that were 
proposed in the October 2022 NOPR.

E. Represented Values Provisions

1. Basic Model
    In the course of regulating consumer products, DOE has developed 
the concept of a ``basic model'' to determine the specific product or 
equipment configuration(s) to which the regulations would apply. DOE's 
existing

[[Page 38620]]

definition of this term at 10 CFR 430.2 states that ``basic model'' 
means all units of a given type of covered product (or class thereof) 
manufactured by one manufacturer that have the same primary energy 
source and have essentially identical electrical, physical, and 
functional (or hydraulic) characteristics that affect energy 
consumption, energy efficiency, water consumption, or water 
efficiency.\33\
---------------------------------------------------------------------------

    \33\ The definition of ``basic model'' in 10 CFR 430.2 also 
includes several product-specific paragraphs that are not relevant 
to portable electric spas.
---------------------------------------------------------------------------

    In the October 2022 NOPR, DOE tentatively determined that the 
general definition of ``basic model'' is appropriate for portable 
electric spas. 87 FR 63356, 63379. For the purposes of applying the 
proposed portable electric spa regulations, DOE proposed to rely on the 
definition of ``basic model'' as currently defined at 10 CFR 430.2. Id. 
As proposed, manufacturers would be required to test only a 
representative number of units of a basic model in lieu of testing 
every individual model they manufacture, and individual models of 
portable electric spas would be permitted to be grouped under a single 
basic model so long as all grouped models have the same representative 
energy performance, which is representative of the unit with the 
highest standby loss. Id.
    DOE also proposed that if a basic model is distributed in commerce 
with multiple covers designated by the spa manufacturer for use with 
the basic model, a manufacturer must determine all represented values 
for that basic model based on the cover that results in the highest 
standby loss, except that the manufacturer may choose to identify 
specific individual combinations of spa and cover as additional basic 
models. Id. DOE addresses comments on this proposal regarding spa 
covers in section III.E.2 of this final rule.
    DOE requested comment on the proposed applicability of the 
definition of ``basic model'' at 10 CFR 430.2 to portable electric 
spas. Id.
    In written comments responding to the October 2022 NOPR, the CEC 
supported applying the definition of ``basic model.'' (CEC, No. 13 at 
p. 5) However, PHTA/IHTA and Master Spas stated that there is a lack of 
clarity on the features that constitute different basic models, and, 
without more clarity, manufacturers would only group basic models that 
have different aesthetic features (e.g., cabinet colors). (PHTA/IHTA, 
No. 10 at p. 17; Master Spas, No. 7 at pp. 2-3) Master Spas identified 
differences in fill volume, shape, size, electric characteristics, and 
hydraulic characteristics as items that might be used to differentiate 
basic models. (Master Spas, No. 7 at pp. 2-3) PHTA/IHTA also indicated 
that the use of a circulation pump and the number of jets are 
additional characteristics that might be used to distinguish models. 
(PHTA/IHTA, No. 10 at p. 17) PHTA/IHTA also argued that while DOE 
mentioned that basic models can help minimize test burden, the proposed 
method does not account for the testing required to determine the most 
consumptive spa within a given basic model. (Id.)
    In response to the lack of clarity that PHTA/IHTA and Master Spas 
identified regarding the features that constitute a basic model, DOE 
notes that manufacturers can choose how they interpret the term 
``essentially identical'' in the basic model definition, as long as the 
individual model used to represent the basic model has the highest 
standby loss of all individual models in that basic model. The more 
broadly they choose to interpret this term, the more individual models 
can potentially be grouped within a single basic model. Therefore, 
manufacturers have the ability to determine the number of basic models 
they want to represent, as long as the individual model used to 
represent each basic model has the highest standby loss of all 
individual models in that basic model.
    Regarding PHTA/IHTA's concern that DOE's claim that basic models 
can help minimize test burden does not account for the testing required 
to determine the most consumptive spa within a given basic model, DOE 
notes that, as discussed, manufacturers have the ability to determine 
the number of basic models they want to represent, as long as the 
individual model used to represent each basic model has the highest 
standby loss of all individual models in that basic model. When 
determining that number, manufacturers can consider the testing 
required to determine the most consumptive spa within a given basic 
model to ensure that their total testing burden, including tests to 
determine the most consumptive spa within a given basic model, will be 
manageable. In addition, DOE notes that manufacturers of other products 
have used the basic model approach to considerably reduce the number of 
individual models that require testing. There is no clear reason why 
portable electric spa manufacturers should not be able to do the same 
thing by combining their product knowledge with judicious use of the 
basic model definition. The alternative approach would be to have 
manufacturers test and rate individual models with any difference in 
design as unique basic models, which would increase testing burden far 
beyond PHTA/IHTA and Master Spa's estimates. As a result, DOE concludes 
that the basic model approach should reduce the testing burden on 
portable electric spa manufacturers considerably, even when including 
the testing required to determine the most consumptive spa within a 
given basic model, when compared to testing all individual models.
    Therefore, for the reasons discussed in the October 2022 NOPR and 
in the preceding paragraphs, in this final rule, DOE is finalizing its 
proposal in the October 2022 NOPR to rely on the definition of ``basic 
model'' as currently defined at 10 CFR 430.2.
2. Represented Values
    DOE provides requirements for represented values and sampling plans 
for all covered products in subpart B to 10 CFR part 429. The purpose 
of a statistical sampling plan is to provide a method to determine 
represented values of energy- and non-energy-related metrics for each 
basic model.
    In the October 2022 NOPR, DOE proposed to create a new section at 
10 CFR 429.66 \34\ for portable electric spas and to require that, for 
each basic model, a sample of sufficient size must be randomly selected 
and tested to ensure that any represented value of standby loss or 
other measure of energy consumption of a basic model for which 
customers would favor lower values is greater than or equal to the 
higher of the following two values:
---------------------------------------------------------------------------

    \34\ The section was proposed as 10 CFR 429.66 in the October 
2022 NOPR, but it is being finalized in this final rule as 10 CFR 
429.76, due to additional sections that have been added between the 
dates of the proposal and the final rule.
---------------------------------------------------------------------------

    (1) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TR13JN23.003
    
and x is the sample mean, n is the number of samples, and xi 
is the maximum of the i\th\ sample;
    Or,
    (2) The upper 95-percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR13JN23.004

and x is the sample mean, s is the sample standard deviation, n is the 
number of samples, and t0.95 is the t statistic for a 95-
percent one-tailed confidence interval with n-1 degrees of freedom 
(from appendix A of subpart B

[[Page 38621]]

of 10 CFR part 429). 87 FR 63356, 63369.
    DOE proposed in 10 CFR 429.66 that the represented value of standby 
loss must be a whole number of watts. Id. Additionally, DOE proposed 
that the represented value of fill volume must be a whole number of 
gallons that is within 5 gallons of the mean of the fill volumes 
measured for the units in the sample used to determine the represented 
value of standby loss. Id. DOE's proposal on fill volume 
representations is discussed in section III.D.6 of this final rule.
    Portable electric spas are often available with more than one model 
of cover, and the characteristics of the cover can significantly affect 
measured standby loss. In the October 2022 NOPR, DOE proposed that if a 
basic model is distributed in commerce with multiple covers designated 
by the spa manufacturer for use with the basic model, a manufacturer 
must determine all represented values for that basic model based on the 
cover that results in the highest standby loss, except the manufacturer 
may choose to identify specific individual combinations of spa and 
cover as additional basic models. Id. at 87 FR 63370. DOE also proposed 
that if a basic model is distributed in commerce with no cover 
designated by the spa manufacturer for use with the basic model, a 
manufacturer must determine all represented values for that basic model 
by testing as specified in section 3.1.5.2 of appendix GG to subpart B 
of part 430. Id. DOE's proposal on testing units without a designated 
cover is discussed in section III.D.7 of this final rule.
    DOE requested comment on the proposed statistical sampling 
procedures and representations requirements for portable electric spas. 
Id. DOE also requested comment on the proposal that represented values 
be based on testing with the designated cover that results in the 
highest standby loss or by testing as specified in section 3.1.5.2 of 
appendix GG to subpart B of part 430 if there is no designated cover. 
Id.
    In response to the October 2022 NOPR, the CEC commented in support 
of DOE's proposal for providing calculation instructions on represented 
values and sampling plans. (CEC, No. 13 at p. 5) PHTA/IHTA requested 
clarification on the number of units for each basic model that would be 
required for testing to generate the 95-percent confidence level. 
(PHTA/IHTA, No. 10 at p. 17) PHTA/IHTA indicated that ANSI/APSP/ICC-14 
2019 requires only a single unit to be tested and requested that DOE 
consider their concerns on how basic models are defined, as well as the 
amount of time necessary to test each model, given that some test labs 
only have the capacity to test one portable electric spa at a time. 
(Id. at p. 17-18) Master Spas also highlighted the amount of time 
required for testing and requested that DOE allow manufacturers to test 
only a single unit of a basic model when grouping of models is not 
exercised. (Master Spas, No. 7 at p. 3) Master Spas also stated that 
they supported testing at least two spas per basic model if grouping 
was performed. (Id.)
    PHTA/IHTA, the CEC, and the CA IOUs commented in support of DOE's 
proposal on the spa cover to use for representations. (PHTA/IHTA, No. 
10 at p. 18; CEC, No. 13 at p. 4; CA IOUs, No. 8 at p. 2)
    Regarding PHTA/IHTA's request for clarification of the number of 
units of each basic model that need to be tested, the proposed section 
10 CFR 429.66(a)(2) states that the sampling requirements of 10 CFR 
429.11 are applicable to portable electric spas. 10 CFR 429.11(b) 
states that the minimum number of units tested shall be no less than 
two, except where a different minimum limit is specified for the 
product or only one unit of the basic model is produced, in which case 
that single unit must be tested. As a result, at least two units of a 
basic model of portable electric spas must be tested, unless only one 
unit of the basic model is produced, in which case that single unit 
must be tested. Additionally, although PHTA/IHTA stated that ANSI/APSP/
ICC-14 2019 requires only a single unit to be tested, DOE has not been 
able to identify any specification of the number of units to be tested 
in ANSI/APSP/ICC-14 2019. As a result, DOE surmises that agencies that 
choose to use ANSI/APSP/ICC-14 2019 as part of a State or local energy 
conservation program or energy code, or manufacturers that choose to 
use ANSI/APSP/ICC-14 2019 on a voluntary basis, would choose the number 
of units to be tested per basic model.
    Regarding the comments from PHTA/IHTA and Master Spas on the 
potential for testing only one unit of a basic model instead of two, 
DOE notes that, as discussed, manufacturers have the ability to 
determine the number of basic models they want to represent, as long as 
the individual model used to represent each basic model has the highest 
standby loss of all individual models in that basic model. When 
determining that number, manufacturers can consider the need to test at 
least two units for each basic model to ensure that their total testing 
burden, including testing at least two units for each basic model, will 
be manageable. DOE surmises that this ability to define the grouping of 
individual models into basic models addresses the concerns of Master 
Spas and PHTA/IHTA, because Master Spas stated that they supported 
testing at least two spas per basic model if grouping were performed, 
and PHTA/IHTA referred to their concerns on basic model definition 
(discussed in section III.E.1) as part of their comment on the sample 
size. DOE also notes that these same minimum requirements are used 
across almost all products with DOE test procedures, with a wide range 
of required test durations. PHTA/IHTA did not make clear why 
manufacturers of portable electric spas would require a sample size 
smaller than those of other products. As a result, DOE is not including 
a smaller required sample size in this final rule.
    For the reasons discussed in the October 2022 NOPR and in the 
preceding paragraphs, in this final rule, DOE is establishing in 10 CFR 
429.76 the requirements for represented values and sampling plans that 
were proposed in the October 2022 NOPR. DOE is also updating paragraphs 
(a) and (b)(1) in 10 CFR 429.11, which lists the general sampling 
requirements for selecting units to be tested, to change the referenced 
sections from ``10 CFR 429.14 through 10 CFR 429.69'' to ``10 CFR 
429.14 through 10 CFR 429.69 and 10 CFR 429.76.''

F. Test Procedure Costs

    Use of the DOE test procedure established in this final rule will 
not be required for use until new energy conservation standards are 
established, if they are established. As a result, this test procedure 
will not in itself impose any costs on any manufacturers. Although use 
of the test procedure is not required as a result of this test 
procedure final rule, DOE has undertaken a study of the costs of 
testing a portable electric spa in the event of new energy conservation 
standards.
    In the October 2022 NOPR, DOE estimated the per-test cost for 
third-party laboratory testing of portable electric spas according to 
the current industry consensus test procedure, ANSI/APSP/ICC-14 2019, 
to be $5,000 for standard and inflatable spas, $9,000 for exercise 
spas, and $11,000 for combination spas. 87 FR 63356, 63370. In the 
October 2022 NOPR, DOE estimated the per-unit test cost for third-party 
lab testing according to the proposed DOE test procedure to be 
approximately the same except for an additional $150 per test to 
account for the purchase of equipment to control

[[Page 38622]]

ambient temperature. In this final rule, DOE has adjusted the test 
procedure, factoring in public comments that will be discussed further 
in the remainder of this section, to no longer require the use of this 
equipment. Accordingly, DOE expects per-unit test costs to be the same 
as the existing industry consensus test procedure. Two units will need 
to be tested per basic model to certify compliance under this test 
procedure. Although ANSI/APSP/ICC-14 2019 does not specify the number 
of units of a basic model that need to be tested, DOE generally 
requires that at least two units be tested to certify compliance with 
energy conservation standards (see 10 CFR 429.11(b)) to ensure that 
such determinations of compliance are representative of actual basic 
model performance and is finalizing that requirement in this final 
rule. Additionally, this final rule includes a requirement that testing 
be conducted on a raised wood deck rather than a foam bed (which is 
used in the industry test procedure). DOE expects the total cost of 
constructing this new flooring would be $877.01 per test station.\35\
---------------------------------------------------------------------------

    \35\ DOE expects that the required materials would consist of 77 
10 ft 2 x 6 wooden beams, for a cost of $8.95 each, and decking 
screws costing $22.94. Labor costs are expected to be four hours at 
a rate of $41.23 (national median wage of a mechanical engineering 
technician is 29.07, wages account for 70.5 percent of total 
employment costs). All together, these supplies and labor ($8.95 * 
77 + $22.94 + $41.23 * 4) equal $877.01.
---------------------------------------------------------------------------

    In response to the October 2022 NOPR, commenters expressed concern 
for the financial burden that would ensue by deviating from the ANSI/
APSP/ICC-14 2019 test procedure. The Texas A&M Students noted that 
increased cost for companies would result in higher cost to consumers, 
but that is not too concerning because spas are a luxury item. (Texas 
A&M Students, No. 4 at pp. 1-2) PHTA/IHTA commented that retesting all 
ANSI/APSP/ICC-14 2019 compliant products would cost a minimum of $5,000 
per portable electric spa and more for exercise spas. (PHTA/IHTA, No. 
10 at p. 18) PHTA/IHTA argued that the $150 increase for equipment to 
control ambient temperature described by DOE does not consider 
retesting, and that the number of models that would need to be retested 
is likely undervalued because manufacturers may be selling portable 
electric spas in states incompliant with CA Title 20. (Id.) Watkins 
also expressed concern for the significant financial burden that would 
result from deviation from ANSI/APSP/ICC-14 2019. (Watkins, No. 14 at 
p. 2)
    Regarding retesting portable electric spas, Master Spas commented 
that testing every spa twice would cause immense burden, and that even 
with advanced testing capacities, retesting would still take about 60 
weeks. (Master Spas, No. 7 at p. 3) Master Spas added that most labs do 
not have such testing capacities, which means their testing would take 
much longer, and retesting would be burdensome to the spa industry. 
(Id.) Because the industry cannot afford to lose time, Master Spas 
urged DOE to consider special exceptions for testing models twice. 
(Id.) PHTA/IHTA commented that retesting due to the proposed changes in 
ambient temperature, normalization, and chamber floor requirements in 
the October 2022 NOPR would incur millions of dollars in expenses with 
no significant increase in energy efficiency and could make costs to 
consumers higher. (PHTA/IHTA, No. 7 at pp. 3-4) PHTA/IHTA mentioned 
collaborating on CA Title 20 regulation and CSA C374:11 (R2021) \36\ 
and said that there is currently not enough testing data on the 
proposed changes to the test procedure to prove these changes will 
produce a net benefit. (Id.) Master Spas agreed that retesting would 
cost millions and that there is a lack of existing data, which would 
require additional trial and error testing. (Master Spas, No. 7 at p. 
3) PHTA/IHTA also commented that any substantive changes would require 
additional data analysis, as data mentioned in the October 2022 NOPR 
was not made available. (PHTA/IHTA, No. 7 at p. 4)
---------------------------------------------------------------------------

    \36\ The standard CSA 374:11 (R2021) was referred to as CAN/CSA-
C374-11 or CAN/CSA-C374-11 (R2021) by PHTA/IHTA and was referred to 
as CAN/CSA-C374-11 (R2021) in the October 2022 NOPR.
---------------------------------------------------------------------------

    In response to these comments, DOE notes that many of DOE's 
proposals in the October 2022 NOPR, specifically those regarding 
ambient temperature, normalization, and floor conditions, would have 
required retesting and imposed further burden on manufacturers in the 
event of new energy conservation standards. However, DOE has accounted 
for this potential burden in this final rule and modified its final 
proposal to mitigate unnecessary time and financial burden. These 
modifications are discussed in more detail in sections III.D.3 and 
III.D.4 of this final rule.
    In finalizing this test procedure, DOE finds that the testing of 
two units per basic model, including the retesting of models previously 
tested under the industry test procedure, is necessary for appropriate 
representativeness. As stated, use of the test procedure established in 
this final rule will not be required for use until the compliance date 
of any new energy conservation standards for portable electric spas, if 
such standards are finalized. DOE expects that the time period until 
any energy conservation standards on these products would allow 
sufficient time for manufacturers to conduct testing. Additionally, 
application of the basic model provisions, as discussed in section 
III.E.1 of this document, would limit the number of individual models 
manufacturers would be required to test to make representations of 
efficiency.
    In regard to possible impacts on consumers associated with this 
test procedure, DOE does not expect that these increased test costs for 
manufacturers will lead to significantly higher prices for consumers. 
Commenters are correct that, if energy conservation standards are 
finalized, test costs across the industry would constitute several 
millions of dollars--however, additional costs related to a given model 
are very small relative to overall production costs associated with 
that model and would not justify a significant increase to its selling 
price. DOE expects that the finalized test procedure will produce more 
representative efficiency metrics that consumers can use to inform 
purchasing choices to their benefit as well as better support 
compliance with potential energy conservation standards. Costs 
associated with this test procedure will be part of the cost-benefit 
analysis conducted for potential energy conservation standards, which 
DOE uses to evaluate whether potential standards are economically 
justified.

G. Effective and Compliance Dates

    The effective date for the prescribed test procedure will be 30 
days after publication of this final rule in the Federal Register.
    EPCA prescribes that all representations of energy efficiency and 
energy use, including those made on marketing materials and product 
labels, must be made in accordance with an amended or new test 
procedure, beginning 180 days after publication of the final rule in 
the Federal Register. (42 U.S.C. 6293(c)(2)) To the extent the test 
procedure established in this final rule is required only for the 
evaluation and issuance of new efficiency standards, compliance with 
the test procedure does not require use of such test procedure until 
the compliance date of new standards.
    For portable electric spas, all representations of energy 
efficiency and energy use, including those made on marketing materials 
and product labels, must be made in accordance with the test procedure 
in this final rule,

[[Page 38623]]

beginning on the compliance date of any Federal energy conservation 
standards for portable electric spas.
    DOE is specifying a compliance date later than 180 days after the 
publication of the final rule in the Federal Register because several 
States have test procedures and energy conservation standards in place 
for portable electric spas. The test procedure in this final rule 
establishes measures of energy consumption that are different than 
those currently used by States. As a result, compliance with the DOE 
test procedure would require all State programs to be adjusted to use 
the measures of energy consumption in the DOE test procedure.
    By requiring compliance with the DOE test procedure beginning on 
the compliance date of any Federal energy conservation standards for 
portable electric spas, DOE is avoiding the necessity for State 
programs to be adjusted to use the measures of energy consumption in 
the DOE test procedure. This compliance date also provides States and 
manufacturers additional time to adjust to the new rating method in the 
DOE test procedure and to align all changes with the compliance date of 
any Federal energy conservation standards. In addition, the extended 
compliance date will alleviate the potential burden, raised by some 
commenters in response to the October 2022 NOPR, for manufacturers to 
test a large number of models within a short duration with limited 
testing facilities.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866, 13563, and 14904

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving 
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011) and 
amended by E.O. 14094, ``Modernizing Regulatory Review,'' 88 FR 21879 
(April 11, 2023), requires agencies, to the extent permitted by law, to 
(1) propose or adopt a regulation only upon a reasoned determination 
that its benefits justify its costs (recognizing that some benefits and 
costs are difficult to quantify); (2) tailor regulations to impose the 
least burden on society, consistent with obtaining regulatory 
objectives, taking into account, among other things, and to the extent 
practicable, the costs of cumulative regulations; (3) select, in 
choosing among alternative regulatory approaches, those approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety, and other advantages; distributive impacts; 
and equity); (4) to the extent feasible, specify performance 
objectives, rather than specifying the behavior or manner of compliance 
that regulated entities must adopt; and (5) identify and assess 
available alternatives to direct regulation, including providing 
economic incentives to encourage the desired behavior, such as user 
fees or marketable permits, or providing information upon which choices 
can be made by the public. DOE emphasizes as well that E.O. 13563 
requires agencies to use the best available techniques to quantify 
anticipated present and future benefits and costs as accurately as 
possible. In its guidance, the Office of Information and Regulatory 
Affairs (``OIRA'') in the Office of Management and Budget (``OMB'') has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. For the reasons stated in this 
preamble, this final regulatory action is consistent with these 
principles.
    Section 6(a) of E.O. 12866 also requires agencies to submit 
``significant regulatory actions'' to OIRA for review. OIRA has 
determined that this final regulatory action does not constitute a 
``significant regulatory action'' under section 3(f) of E.O. 12866. 
Accordingly, this action was not submitted to OIRA for review under 
E.O. 12866.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a final regulatory flexibility analysis (``FRFA'') for 
any final rule where the agency was first required by law to publish a 
proposed rule for public comment, unless the agency certifies that the 
rule, if promulgated, will not have a significant economic impact on a 
substantial number of small entities. As required by Executive Order 
13272, ``Proper Consideration of Small Entities in Agency Rulemaking,'' 
67 FR 53461 (August 16, 2002), DOE published procedures and policies on 
February 19, 2003, to ensure that the potential impacts 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-general-counsel. DOE reviewed this final rule under the 
provisions of the Regulatory Flexibility Act and the procedures and 
policies published on February 19, 2003.
    As noted in section III.F of this document, no mandatory costs will 
be incurred by any manufacturers as a result of this final rule. Use of 
the test procedure would not be required until the compliance date of 
any new energy conservation standards established for portable electric 
spas. Therefore, DOE concludes that the impacts of the test procedure 
in this final rule would not have a ``significant economic impact on a 
substantial number of small entities,'' and that the preparation of a 
FRFA 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).
    Despite a FRFA not being required, in the following sections, DOE 
has conducted an analysis of the cost impacts to small businesses 
associated with this test procedure in the event of any new energy 
conservation standards for portable electric spas.
1. Description and Estimate of Small Entities Regulated
    DOE uses the Small Business Administration (``SBA'') small business 
size standards to determine whether manufacturers qualify as ``small 
businesses,'' which are listed by the North American Industry 
Classification System (``NAICS'').\37\ The SBA considers a business 
entity to be a small business if, together with its affiliates, it 
employs less than a threshold number of workers specified in 13 CFR 
part 121.
---------------------------------------------------------------------------

    \37\ Available at: www.sba.gov/document/support-table-size-standards.
---------------------------------------------------------------------------

    Portable electric spa manufacturers, who produce the products 
covered by this final rule, are classified under NAICS code 333414, 
``Heating Equipment (except Warm Air Furnaces) Manufacturing.'' In 13 
CFR 121.201, the SBA sets a threshold of 500 employees or fewer for an 
entity to be considered as a small business in this category. This 
employee threshold includes all employees in a business's parent 
company and any other subsidiaries. DOE used available public 
information, such as the MAEDbS, to identify potential manufacturers. 
Once DOE created a list of potential manufacturers, DOE used market 
research tools to determine whether any met the SBA's definition of a 
small entity.
    DOE identified 28 companies potentially manufacturing portable 
electric spas covered by this test procedure. DOE screened out 
companies that do not meet the small entity definition and, 
additionally, screened out companies that are largely or

[[Page 38624]]

entirely foreign owned and operated. Of the 28 companies, 14 were 
identified as a small business. Each of these small businesses were 
further identified--through a review of their websites and online 
documentation--to be original equipment manufacturers manufacturing 
covered portable electric spas as opposed to rebranding spas, 
integrating the spas into some broader product offering, or producing 
spas for strictly commercial applications.
2. Description and Estimate of Compliance Requirements
    DOE's test procedure is largely consistent with the current 
industry consensus test method ANSI/APSP/ICC-14 2019. As such, DOE 
anticipates that this final rule will be unlikely to significantly 
increase existing per-unit test burden given that DOE is referencing 
the prevailing industry test procedure. However, this test procedure 
does require two tests per basic model, which would be a substantial 
cost increase, as well as requiring tests to be conducted on decking 
rather than a foam pad--in the event energy conservation standards are 
established.
    Commenting on the October 2022 NOPR, the Texas A&M Students stated 
that companies may have to pay anywhere from $5,000-$11,150 to retest 
spas, and though that may not be a huge burden to large companies, it 
would be a burden for smaller companies. (Texas A&M Students, No. 4 at 
pp. 1-2) However, the Texas A&M Students noted that the cost would be 
somewhat mitigated because many States already have many of the 
proposed changes and tests in place. (Id. at p. 2)
    DOE agrees that costs imposed by the test procedure may be 
relatively higher for small manufacturers than large manufacturers. 
Still, DOE does not expect these costs to be a significant burden to 
small manufacturers. In the following paragraph and table, DOE reviews 
the estimated test costs for each identified small business and places 
those test costs in terms of the businesses estimated revenue.
    DOE understands that most portable electric spa manufacturers elect 
to test units at a third-party testing facility. DOE estimates the per 
unit model test costs for third-party lab testing to be $5,000 for 
standard and inflatable spas, $9,000 for exercise spas, and $11,000 for 
combination spas. In the table below, DOE provides estimates of the 
possible cost impacts (based on estimated basic model counts from 
MAEDbS) for each small business, estimated small business revenue, and 
those costs as a percentage of revenue. The cost to build decking for 
the purposes of the test is included on the assumption that a small 
business will need to cover the cost of decking for one testing 
station--estimated to total $877.01. On average, estimated testing 
costs represent 1.2 percent of annual revenue for a given small 
business.

                     Table IV.1--Estimated Testing Burden for Small, Domestic Manufacturers
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated                      Percent of
                          Manufacturer                            testing burden  Annual revenue  annual revenue
                                                                     (2022$mm)       (2022$mm)          (%)
----------------------------------------------------------------------------------------------------------------
Manufacturer A..................................................            0.16            51.4             0.3
Manufacturer B..................................................            0.01            10.3             0.1
Manufacturer C..................................................            0.12            29.6             0.4
Manufacturer D..................................................            0.05             0.6             8.5
Manufacturer E..................................................            0.03             111             0.0
Manufacturer F..................................................            0.28            62.0             0.5
Manufacturer G..................................................            0.34            27.0             1.3
Manufacturer H..................................................            0.12            20.0             0.6
Manufacturer I..................................................            0.14            7.52             1.9
Manufacturer J..................................................            0.04            23.7             0.2
Manufacturer K..................................................            0.04            40.0             0.1
Manufacturer L..................................................            0.09            12.7             0.7
Manufacturer M..................................................            0.06            7.73             0.8
Manufacturer N..................................................            0.02            2.19             1.0
----------------------------------------------------------------------------------------------------------------

    Based on this analysis, DOE does not expect the testing costs to be 
a significant burden to small manufacturers.

C. Review Under the Paperwork Reduction Act of 1995

    Although no energy conservation standards have been established for 
portable electric spas as of the publication of this final rule, 
manufacturers of portable electric spas would need to certify to DOE 
that their products comply with any potential future 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.
    Certification data will be required for portable electric spas once 
any energy conservation standards have been established for portable 
electric spas; however, DOE is not establishing certification or 
reporting requirements for portable electric spas in this final rule. 
Instead, DOE may consider proposals to establish certification 
requirements and reporting for portable electric spas under a separate 
rulemaking regarding appliance and equipment certification. DOE will 
address changes to OMB Control Number 1910-1400 at that time, as 
necessary.
    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

[[Page 38625]]

that collection of information displays a currently valid OMB Control 
Number.

D. Review Under the National Environmental Policy Act of 1969

    In this final rule, DOE establishes a test procedure that it 
expects will be used to develop and implement future energy 
conservation standards for portable electric spas. DOE has determined 
that this rule falls into a class of actions that are categorically 
excluded from review under the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 
CFR part 1021. Specifically, DOE has determined that adopting test 
procedures for measuring energy efficiency of consumer products and 
industrial equipment is consistent with activities identified in 10 CFR 
part 1021, appendix A to subpart D, A5 and A6. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on 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 it will follow in the 
development of such regulations. 65 FR 13735. For the reasons described 
below, DOE has examined this final rule and has determined that this 
rule meets the relevant standards of E.O. 13132.
    E.O. 13132 includes special requirements for preemption, including 
that Federal agencies must only construe a Federal statute to preempt 
State law where the statute includes express preemption or some other 
clear evidence that Congress intended preemption of State law, or where 
the exercise of State authority conflicts with the exercise of Federal 
authority under the Federal statute. Federal energy efficiency 
requirements for covered products established under EPCA generally 
supersede State laws and regulations concerning energy conservation 
testing, labeling, and standards. (42 U.S.C. 6297) As such, any State 
regulation regarding portable electric spa testing will be preempted on 
the compliance dates listed in the DATES section. States can petition 
DOE for exemption from such preemption to the extent, and based on 
criteria, set forth in EPCA. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 
6297)

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), 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. Section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation (1) clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 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 them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
this final rule meets the relevant standards of Executive Order 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 regulatory action resulting 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)) UMRA also 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 requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820; also available 
at www.energy.gov/gc/office-general-counsel. DOE examined this final 
rule according to UMRA and its statement of policy and determined that 
the rule contains neither an intergovernmental mandate, nor a mandate 
that may result in the expenditure of $100 million or more in any year, 
so these requirements do not apply.

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

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This final rule will 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

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this regulation will not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most 
disseminations of information to the public under 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

[[Page 38626]]

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 final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    Executive Order 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 OMB, 
a Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgated or is expected to lead to promulgation of a final 
rule, and that (1) is a significant regulatory action under Executive 
Order 12866, or any successor 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 significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use if the regulation is implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    This final regulatory action 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 a significant energy action by the Administrator 
of OIRA. Therefore, it is not a significant energy action, and, 
accordingly, DOE has not prepared a Statement of Energy Effects.

L. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the 
Federal Energy Administration Act of 1974, as amended by the Federal 
Energy Administration Authorization Act of 1977. (15 U.S.C. 788; 
``FEAA'') Section 32 essentially provides in relevant part that, where 
a proposed rule authorizes or requires use of commercial standards, the 
notice of proposed rulemaking must inform the public of the use and 
background of such standards. In addition, section 32(c) requires DOE 
to consult with the Attorney General and the Chairman of the Federal 
Trade Commission (``FTC'') concerning the impact of the commercial or 
industry standards on competition.
    The test procedure for portable electric spas adopted in this final 
rule incorporates testing methods contained in certain sections of the 
following commercial standards: Pool & Hot Tub Alliance ANSI/APSP/ICC-
14 2019, ``American National Standard for Portable Electric Spa Energy 
Efficiency,'' and CSA C374:11 (R2021) ``Energy performance of hot tubs 
and spas.'' DOE has evaluated these standards and is unable to conclude 
whether they fully comply with the requirements of section 32(b) of the 
FEAA (i.e., whether they were developed in a manner that fully provides 
for public participation, comment, and review.) DOE has consulted with 
both the Attorney General and the Chairman of the FTC about the impact 
on competition of using the methods contained in these standards and 
has received no comments objecting to their use.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

N. Description of Materials Incorporated by Reference

    ANSI/APSP/ICC-14 2019 and CSA C374:11 (R2021) are industry-accepted 
test standards that specify methods for measuring the energy efficiency 
of portable electric spas that differ in certain installation 
requirements.
    Specifically, the test procedure codified by this final rule 
references ANSI/APSP/ICC-14 2019 for measuring the energy efficiency of 
portable electric spas. ANSI/APSP/ICC-14 2019 is reasonably available 
from PHTA (www.phta.org).
    Specifically, the test procedure codified by this final rule 
references CSA C374:11 (R2021) for specifying the platform on which to 
install portable electric spas during testing. CSA C374:11 (R2021) is 
reasonably available from the CSA Group (www.csagroup.org).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects

10 CFR Part 429

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Small businesses.

10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Incorporation by reference, Intergovernmental relations, Small 
businesses.

Signing Authority

    This document of the Department of Energy was signed on May 30, 
2023, by Francisco Alejandro Moreno, Acting 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 May 30, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends parts 429 and 
430 of Chapter II of Title 10, Code of Federal Regulations as set forth 
below:

PART 429--CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER 
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT

0
1. The authority citation for part 429 continues to read as follows:

    Authority: 42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.


Sec.  429.11  [Amended]

0
2. Amend paragraphs (a) and (b)(1) by removing the text ``Sec. Sec.  
429.14 through 429.69'' and adding in its place ``Sec. Sec.  429.14 
through 429.69 and Sec.  429.76''.

[[Page 38627]]


0
3. Add Sec.  429.76 to subpart B to read as follows:


Sec.  429.76  Portable electric spas.

    (a) Determination of represented values. Manufacturers must 
determine the represented values for each basic model of portable 
electric spas by testing in conjunction with the following provisions.
    (1) For spa covers:
    (i) If a basic model is distributed in commerce with multiple 
covers designated by the spa manufacturer for use with the basic model, 
a manufacturer must determine all represented values for that basic 
model based on the cover that results in the highest standby loss, 
except that the manufacturer may choose to identify specific individual 
combinations of spa and cover as additional basic models.
    (ii) If a basic model is distributed in commerce with no cover 
designated by the spa manufacturer for use with the basic model, a 
manufacturer must determine all represented values for that basic model 
by testing as specified in section 3.1.5.2 of appendix GG to subpart B 
of this part.
    (2) The sampling requirements of Sec.  429.11 are applicable to 
portable electric spas; and
    (3) For each basic model of portable electric spas, a sample of 
sufficient size must be randomly selected and tested to ensure that any 
representation of standby loss or other measure of energy consumption 
of a basic model for which consumers would favor lower values shall be 
greater than or equal to the higher of:
    (i) The mean of the sample, where:
    [GRAPHIC] [TIFF OMITTED] TR13JN23.005
    

and x is the sample mean, n is the number of samples, and xi 
is the i\th\ sample; or,
    (ii) The upper 95 percent confidence limit (UCL) of the true mean 
divided by 1.05, where:
[GRAPHIC] [TIFF OMITTED] TR13JN23.006


and x is the sample mean, s is the sample standard deviation, n is the 
number of samples, and t0.95 is the t statistic for a 95 
percent one-tailed confidence interval with n-1 degrees of freedom 
(from appendix A of subpart B of part 429).
    (4) The represented value of standby loss must be a whole number of 
watts.
    (5) The represented value of fill volume of a basic model must be a 
whole number of gallons that is within 5 gallons of the mean of the 
fill volumes measured for the units in the sample selected as described 
in paragraph (a)(3) of this section.
    (b) [Reserved]

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
4. The authority citation for part 430 continues to read as follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.


0
5. Amend Sec.  430.3 by:
0
a. Revising paragraph (a);
0
b. Revising paragraph (k) introductory text;
0
c. Adding paragraph (k)(2);
0
d. Redesignating paragraphs (w) through (x) as paragraphs (x) through 
(y); and
0
e. Adding a new paragraph (w).
    The revision and additions read as follows:


Sec.  430.3  Materials incorporated by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, the U.S. Department of Energy (DOE) must 
publish a document in the Federal Register and the material must be 
available to the public. All approved incorporation by reference (IBR) 
material is available for inspection at DOE and at the National 
Archives and Records Administration (NARA). Contact DOE at: The U.S. 
Department of Energy, Office of Energy Efficiency and Renewable Energy, 
Building Technologies Program, 1000 Independence Ave. SW, EE-5B, 
Washington, DC 20585, (202) 586-9127, [email protected], https://www.energy.gov/eere/buildings/appliance-and-equipment-standards-program. For information on the availability of this material at NARA, 
visit www.archives.gov/federal-register/cfr/ibr-locations.html or email 
[email protected]. The material may be obtained from the sources 
in the following paragraphs of this section.
* * * * *
    (k) CSA. CSA Group, 178 Rexdale Blvd., Toronto, ON, Canada M9W 1R3, 
1-800-463-6727 or 416-747-4044, www.csagroup.org.
* * * * *
    (2) CSA C374:11 (R2021), Energy performance of hot tubs and spas, 
published November 2011, Update No. 1--National Standard of Canada--
April 2012; IBR approved for appendix GG to subpart B of this part.
* * * * *
    (w) PHTA. Pool & Hot Tub Alliance, 2111 Eisenhower Avenue, Suite 
500, Alexandria, VA 22314 (www.phta.org), (703) 838-0083.
    (1) ANSI/APSP/ICC-14 2019, American National Standard for Portable 
Electric Spa Energy Efficiency, ANSI-approved November 19, 2019; IBR 
approved for appendix GG to subpart B of this part.
    (2) [Reserved]
* * * * *

0
6. Amend Sec.  430.23 by adding a new paragraph (ii) to read as 
follows:


Sec.  430.23  Test procedures for the measurement of energy and water 
consumption.

* * * * *
    (ii) Portable electric spas. Measure the standby loss in watts and 
the fill volume in gallons of a portable electric spa in accordance 
with appendix GG to this subpart.

0
6. Add appendix GG to subpart B of part 430 to read as follows:

Appendix GG to Subpart B of Part 430--Uniform Test Method for Measuring 
the Energy Consumption of Portable Electric Spas

    Note: Beginning on the compliance date of any energy 
conservation standards for portable electric spas specified in Sec.  
430.32, all representations of fill volume, energy efficiency, and 
energy use of portable electric spas, including those made on 
marketing materials and product labels, must be made in accordance 
with this test procedure.

0. Incorporation by Reference

    DOE incorporated by reference in Sec.  430.3, the entire 
standard for ANSI/APSP/ICC-14 2019 and CSA C374:11 (R2021). However, 
only enumerated provisions of ANSI/APSP/ICC-14 2019 and CSA C374:11 
(R2021), as listed in this section 0 are required. To the extent 
there is a conflict between the terms or provisions of a referenced 
industry standard and the CFR, the CFR provisions control. Non-
enumerated provisions of ANSI/APSP/ICC-14 2019 are specifically 
excluded.

0.1. ANSI/APSP/ICC-14 2019

    (a) Section 3--Definitions (excluding the definitions for cover, 
specified; fill volume; rated volume; and standby mode), as 
specified in section 2.1 of this appendix;
    (b) Section 5--Test Method (excluding Sections 5.1, 5.2, 5.5.2, 
5.5.4, 5.5.5, and 5.7), as specified in sections 3, 3.1.6, 3.2.2, 
and 3.2.3 of this appendix;
    (c) Appendix A--Minimum Chamber Requirements (excluding section 
titled Chamber floor), as specified in section 3.1.1 of this 
appendix.
    0.2. CSA C374:11 (R2021)
    (a) Clause 5.1.1--Test room, as specified in section 3.1.2 of 
this appendix;

[[Page 38628]]

    (b) Figure 1--Test platform, as specified in section 3.1.2 of 
this appendix.

1. Scope

    This appendix provides the test procedure for measuring the 
standby loss in watts and the fill volume in gallons of portable 
electric spas.

2. Definitions

    2.1. Section 3, Definitions, of ANSI/APSP/ICC-14 2019 applies to 
this test procedure. In case of conflicting terms between ANSI/APSP/
ICC-14 2019 and DOE's definitions in this appendix or in Sec.  
430.2, DOE's definitions take priority.
    2.2. Combination spa means 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.
    2.3. Exercise spa means a 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. 
An exercise spa is also known as a swim spa.
    2.4. Exercise spa portion means the reservoir of a combination 
spa that is an exercise spa.
    2.5. Fill volume means the volume of water held by the portable 
electric spa when it is filled as specified in section 3.1.4 of this 
appendix.
    2.6. Inflatable spa means a portable electric spa where the 
structure is collapsible and is designed to be filled with air to 
form the body of the spa.
    2.7. Standard spa means a portable electric spa that is not an 
inflatable spa, an exercise spa, or the exercise spa portion of a 
combination spa.
    2.8. Standard spa portion means the reservoir of a combination 
spa that is a standard spa.
    2.9. Standby loss means the mean normalized power required to 
operate the portable electric spa in default operation mode with the 
cover on, as calculated in section 3.3 of this appendix.

3. Test Method

    Determine the standby loss in watts and fill volume in gallons 
for portable electric spas in accordance with section 5, Test 
Method, of ANSI/APSP/ICC-14 2019, except as follows.

3.1. Test Setup

3.1.1. Chamber

    Install the portable electric spa in a chamber satisfying the 
requirements specified for Chamber internal dimensions, Air flow, 
and Chamber insulation in appendix A, Minimum Chamber Requirements, 
to ANSI/APSP/ICC-14 2019.

3.1.2. Chamber Floor

    Install the portable electric spa on a platform as specified in 
Clause 5.1.1(b) and Figure 1 of CSA C374:11 (R2021).

3.1.3. Electrical Supply Voltage and Amperage Configuration

3.1.3.1. General

    If the portable electric spa can be installed or configured with 
multiple options of voltage, maximum amperage, or both, use the 
hierarchy in section 3.1.3.2 of this appendix to determine the 
configuration for testing.

3.1.3.2. Hierarchy

    Use the as-shipped configuration, if such a configuration is 
provided.
    If no configuration is provided in the as-shipped condition, use 
the option specified in the manufacturer's instructions as the 
recommended configuration for normal consumer use.
    If no configuration is provided in the as-shipped condition and 
the manufacturer's instructions do not provide a recommended 
configuration for normal consumer use, use the maximum voltage 
specified in the manufacturer's installation instructions and 
maximum amperage that the manufacturer's installation instructions 
specify for use with the maximum voltage.

3.1.4. Fill Volume

    Follow the manufacturer's instructions for filling the portable 
electric spa with water, connecting and/or priming the pump(s), and 
starting up the spa. After verifying that the spa is operating 
normally and that all water lines are filled, power off the spa and 
adjust the fill level as needed to meet the following specifications 
before starting the test.
    If the manufacturer's instructions specify a single fill level, 
fill to that level with a tolerance of 0.125 inches.
    If the manufacturer's instructions specify a range of fill 
levels and not a single fill level, fill to the middle of that range 
with a tolerance of 0.125 inches.
    If the manufacturer's instructions do not specify a fill level 
or range of fill levels, fill to the halfway point between the 
bottom of the skimmer opening and the top of the skimmer opening 
with a tolerance of 0.125 inches.
    If the manufacturer's instructions do not specify a fill level 
or range of fill levels, and there is no wall skimmer, fill to 6.0 
inches 0.125 inches below the overflow level of the spa.
    Measure the volume of water added to the spa with a water meter 
while filling the spa. Measure any water removed from the spa using 
a water meter, graduated container, or scale, each with an accuracy 
of 2 percent of the quantity measured. The fill volume 
is the volume of water held by the spa when the spa is filled as 
specified above.

3.1.5. Spa Cover

3.1.5.1. Cover Is Designated by the Spa Manufacturer

    Install the spa cover following the manufacturer's instructions.

3.1.5.2. No Cover Is Designated by the Spa Manufacturer

    If no cover is designated by the spa manufacturer for use with 
the spa, cover the portable electric spa with a single layer of 6 
mil thickness (0.006 inches; 0.15 mm) plastic film. Cut the plastic 
to cover the entire top surface of the spa and extend over the edge 
of the spa approximately 6 inches below the top surface of the spa. 
Use fasteners or weights to keep the plastic in place during the 
test, but do not seal the edges of the plastic to the spa (by using 
tape, for example).

3.1.6. Ambient Temperature Measurement Location

    The ambient air temperature measurement point specified in 
section 5.6.3 of ANSI/APSP/ICC-14 2019 must be located above the 
center of the spa.

3.2. Test Conditions and Conduct

3.2.1. Ambient Air Temperature

    Maintain the ambient air temperature at a maximum of 63.0 [deg]F 
for the duration of the test. This requirement applies to each 
individual ambient air temperature measurement taken for the 
duration of the stabilization period and test period.

3.2.2. Water Temperature Settings

    Adjust the spa water temperature settings to meet the applicable 
temperature requirements in section 5.6.1 of ANSI/APSP/ICC-14 2019. 
The spa water temperature settings must not be adjusted between the 
start of the stabilizing period specified in section 5.6.1 of ANSI/
APSP/ICC-14 2019 and the end of the test period specified in section 
5.6.4.7 of ANSI/APSP/ICC-14 2019.

3.2.3. Water Temperature Requirements

    Each individual water temperature measurement taken during the 
stabilization period and test period must meet the applicable water 
temperature requirements specified in section 5.6.1 of ANSI/APSP/
ICC-14 2019.

3.3. Standby Loss Calculation

    Calculate standby loss in watts by calculating the measured 
standby loss using Equation 1 of this appendix, calculating the 
measured temperature difference using Equation 2 of this appendix, 
and normalizing the standby loss using Equation 3 of this appendix. 
Use the standby loss calculated in Equation 3 as the standby loss 
value for the test.

[[Page 38629]]

[GRAPHIC] [TIFF OMITTED] TR13JN23.007

Where:

SLmeas = Measured standby loss (watts)
E = Total energy use during the test (watt-hours)
t = Length of test (hours)
[Delta]Tmeas = Measured temperature difference ([deg]F)
Twater avg = Average water temperature during test 
([deg]F)
Tair avg = Average air temperature during test ([deg]F)
SL = Standby loss (W)
[Delta]Tstd = Normalized temperature difference ([deg]F), 
as follows:

    46.0 [deg]F for all inflatable spas, standard spas, standard spa 
portions of a combination spa, exercise spas, and exercise spa 
portions of a combination spa tested to a minimum water temperature 
of 100 [deg]F; or 31.0 [deg]F for all exercise spas or exercise spa 
portions of a combination spa tested to a minimum water temperature 
of 85 [deg]F.

[FR Doc. 2023-11782 Filed 6-12-23; 8:45 am]
BILLING CODE 6450-01-P