2024-23093. Energy Conservation Program: Notice of Application from E.L. Foust Co. for a Small Business Exemption From the Department of Energy's Air Cleaner Energy Conservation Standards

Document Headings

Document headings vary by document type but may contain the following:

1. the agency or agencies that issued and signed a document
2. the number of the CFR title and the number of each part the document amends, proposes to amend, or is directly related to
3. the agency docket number / agency internal file number
4. the RIN which identifies each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions

See the Document Drafting Handbook for more details.

Department of Energy

1. [Case Number 2024-008; EERE-2024-BT-PET-0008]

AGENCY:

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

ACTION:

Notice of application for a small business exemption and request for public comment.

SUMMARY:

This notice announces the receipt of and publishes an application for a small business exemption submitted by E.L. Foust Co. (“ELF”) requesting an exemption from the U.S. Department of Energy (“DOE”) air cleaner energy conservation standards. Specifically, ELF requests a two-year exemption from the applicable energy conservation standards. DOE is publishing the nonconfidential portion of ELF's application and is soliciting comments, data, and information concerning the application.

DATES:

Written comments and information are requested and will be accepted on or before December 6, 2024.

ADDRESSES:

Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at www.regulations.gov under docket number EERE-2024-BT-PET-0008. Follow the instructions for submitting comments. Alternatively, interested persons may submit comments, identified by docket number EERE-2024-BT-PET-0008, by any of the following methods:

(1) Email: [e-mail]. Include the case number Case No. 2024-008 in the subject line of the message.

(2) Postal Mail and Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, Case No. 2024-003, 1000 Independence Avenue SW, Washington, DC 20585-0121. If possible, please submit all items on a compact disc (“CD”), in which case it is not necessary to include printed copies.

No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section V of this document.

Docket: The docket for this activity, which includes Federal Register notices, public meeting attendee lists and transcripts (if a public meeting is ( print page 81060) held), comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

The docket web page can be found at www.regulations.gov/​docket/​EERE-2024-BT-PET-0008. The docket web page contains instructions on how to access all documents, including public comments, in the docket.

FOR FURTHER INFORMATION CONTACT:

 

Mr. Troy Watson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: [phone]. Email: [e-mail].

Ms. Ani Esenyan, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: [phone]. Email: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Authority

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”),^[1] authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B 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. These products include air cleaners, the subject of this document. (42 U.S.C. 6292(a)(20))

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).

Under 42 U.S.C. 6295(t), DOE may grant a temporary exemption from an applicable energy conservation standard to a manufacturer if DOE finds that the annual gross revenues of such manufacturer from all its operations (including the manufacture and sale of covered products) does not exceed $8,000,000 for the 12-month period preceding the date of the application. In making this finding, DOE must account for the annual gross revenues of any other person who controls, is controlled by, or is under common control with, such manufacturer (42 U.S.C. 6295(t)(1)). The Secretary may not grant an exemption with respect to any type (or class) of covered product subject to an energy conservation standard unless the Secretary finds, after obtaining the written views of the Attorney General, that a failure to allow an exemption would likely result in a lessening of competition. (42 U.S.C. 6295(t)(2))

Subpart E of 10 CFR part 430 specifies further information regarding the purpose and process for considering applications for small business exemptions under 42 U.S.C. 6295(t). Among these requirements, 10 CFR 430.52(b) specifies that an application shall be in writing and shall include the following:

(1) Name and mailing address of applicant;

(2) Whether the applicant controls, is controlled by, or is under common control with another manufacturer, and if so, the nature of that control relationship;

(3) The text or substance of the standard or portion thereof for which the exemption is sought and the length of time desired for the exemption;

(4) Information showing the annual gross revenue of the applicant for the preceding 12-month period from all of its operations (including the manufacture and sale of covered products);

(5) Information to show that failure to grant an exemption is likely to result in a lessening of competition;

(6) Such other information, if any, believed to be pertinent by the petitioner; and

(7) Such other information as the Secretary may require.

II. Background

In a final determination published on July 15, 2022 (“2022 Final Determination”), DOE determined that classifying air cleaners as a covered product is necessary or appropriate to carry out the purposes of EPCA, and that the average U.S. household energy use for air cleaners is likely to exceed 100 kWh/yr. 87 FR 42297. In that 2022 Final Determination, DOE defined air cleaners as “a product for improving indoor air quality, other than a central air conditioner, room air conditioner, portable air conditioner, dehumidifier, or furnace, that is an electrically-powered, self-contained, mechanically encased assembly that contains means to remove, destroy, or deactivate particulates, VOCs, and/or microorganisms from the air. It excludes products that operate solely by means of ultraviolet light without a fan for air circulation.” 10 CFR 430.2.

On March 6, 2023, DOE published a test procedure final rule which established a definition and test procedure for conventional room air cleaners. 88 FR 14014. DOE defines conventional room air cleaner as an air cleaner that: (1) is a portable or wall mounted (fixed) unit, excluding ceiling mounted unit, that plugs into an electrical outlet; (2) operates with a fan for air circulation; and (3) contains means to remove, destroy, and/or deactivate particulates. 10 CFR 430.2.

On August 23, 2022, DOE received a Joint Proposal from a group of joint stakeholders representing manufacturers, efficiency advocates, and consumer groups, regarding energy conservation standards and related test procedures for air cleaners.^[3] The Joint Proposal specified two tiers of standard levels, with proposed compliance dates of December 31, 2023 (hereafter “Tier 1 standards”), and December 31, 2025 (hereafter “Tier 2 standards”), respectively. On April 11, 2023, DOE published a direct final rule adopting the standards and compliance dates from the Joint Proposal. These standards apply to products manufactured in, or imported into, the United States starting on December 31, 2023, for the Tier 1 standards and on December 31, 2025, for the Tier 2 standards. 88 FR 21752.

III. E.L. Foust Co. Application for a Small Business Exemption

On May 27, 2024,^[4] E.L. Foust Co. (“ELF”) submitted an application, pursuant to subpart E of 10 CFR part 430, requesting a small business exemption from the energy conservation standards at 10 CFR 430.32(ee). As discussed previously, there are two tiers of standards for air cleaners. Compliance with the Tier 2 standards is not required until December 31, 2025, which is the date on which the ( print page 81061) requested exemption from the December 31, 2023 Tier 1 standards would expire, if granted. As such, DOE is not considering an exemption for ELF for the Tier 2 standards at this time. To request an exemption from the Tier 2 standards, ELF will need to submit a separate application after this current application process is resolved with the current financial information available at that time and information regarding impacts on competition with respect to the Tier 2 standards.

ELF is asking for an exemption on the basis of its status as a small business. According to ELF, failure to receive a small business exemption would likely result in a lessening of competition in the market for air cleaners. ELF requested that the exemption apply for two years.

In its application, ELF referred to the market for air cleaners intended for people with multiple chemical sensitivity. Specifically, ELF stated that its air purifiers are built with zero plastic or glue to eliminate VOCs, and they offer particulate filtration. ELF claimed that larger companies do not offer these types of air cleaners, and estimated that five manufacturers, including ELF, specifically serve the market by not using plastics and glues in their air cleaners and by providing substantial gas phase filtration media. ELF stated that three of these manufacturers are based in the United States and that if DOE does not grant ELF an exemption, the market would be reduced to two U.S. manufacturers. ELF stated that the effects of the rule on those manufacturers is not known. ELF also stated that less competition in the non-plastic air cleaner market would accelerate the loss of non-plastic air cleaners and those products would become more expensive to consumers.

DOE has provided ELF's application for exemption, removing any confidential information, at the end of this notice and in the docket for this proceeding.

IV. Consultations With Other Agencies

The notice of ELF's application for exemption will be transmitted to the Attorney General by the Secretary along with: (a) a statement of the facts and of the reasons for the exemption, and (b) copies of all documents submitted. 10 CFR 430.54.

V. Request for Comments

Through this notice, DOE announces receipt of ELF's application for a small business exemption from the air cleaner energy conservation standards found in 10 CFR 430.32(ee), pursuant to subpart E of 10 CFR part 430. DOE is interested in feedback regarding whether the lack of an exemption would likely result in a lessening of competition. DOE invites all interested parties to submit in writing by December 6, 2024, comments and information on all aspects of the application.

1. Topics on Which DOE Seeks Comment

ELF has not provided information regarding specific basic models that would be exempted from DOE's air cleaner energy conservation standards. Based on a review of ELF's website and marketing materials, the company offers two model lines of air cleaners—the 160 series and the 400 series.^[5] The 160 series appears to be offered in three configurations, each with two particulate filter options. The 400 series includes steel frame HEPA filters. Both the 160 series and 400 series offer multiple carbon options for gas filtration. ELF has not provided information on the performance of these model lines and configurations with respect to DOE's test procedure and energy conservation standards for air cleaners.

DOE requests comment on whether a failure to allow an exemption to ELF from the Tier 1 standards would likely result in a lessening of competition. Specifically, DOE seeks information regarding the market for air cleaners serving the market for consumers with multiple chemical sensitivity, the availability of air cleaners constructed without plastics or glues, and the other manufacturers offering products serving this market. DOE requests information regarding the model lines offered by ELF and whether any similar models are available from other manufacturers that provide a similar function. DOE also requests comment on the claims made by ELF in their application, as summarized in section III of this document.

2. Process for Submitting Comments

Submitting comments via www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. If this instruction is followed, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not ( print page 81062) necessary to submit printed copies. Faxes will not be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: one copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

Signing Authority

This document of the Department of Energy was signed on September 30, 2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Signed in Washington, DC, on October 2, 2024.

Treena V. Garrett,

Federal Register Liaison Officer, U.S. Department of Energy.

ELF's Letter (Received May 27, 2024)

This document uses XXX to replace information that was CONFIDENTIAL information that was exempt from the mandatory public disclosure requirements of the Freedom of Information Act under 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information.

E.L. Foust Co.

P.O. Box 172

Mineral Point WI 53565

May 26, 2024

U.S. Department of Energy, Small Business Exemptions, Appliance Efficiency Standards

Assistant Secretary for Conservation and Renewable Energy

Forrestal Building

1000 Independence Ave. SW

Washington, DC 20585

Sent via email to: [e-mail], [e-mail].

Re: Application for Small Business Exemption per 10 CFR 430 subpart E to the applicable provisions of the Energy Conservation Program: Energy Conservation Standards for Air Cleaners published on April 11, 2023, at 88 FR 21752 and codified at 10 CFR 430.32(ee).

Dear Secretary,

On behalf of E.L. Foust Co (ELF), and pursuant to 10 CFR 430 subpart E, I write to apply for an exemption for two years to the applicable provisions of the Energy Conservation Program: Energy Conservation Standards for Air Cleaners, published on April 11, 2023, at 88 FR 21752 and codified at 10 CFR 430.32(ee).

ELF air purifiers were initially manufactured for people who suffer from Multiple Chemical Sensitivity (MCS) and that customer base still makes up a considerable portion of our customers. Our air purifiers are built with zero plastic or glue to eliminate VOCs. Within the last ten years, we started adding particulate filtration as an option. Many of our customers consider our air purifiers to be medical equipment. Some end up in the E.R. when they are exposed to the fumes or odors that affect them. Larger companies do not offer the equipment they need. Many cannot tolerate the plastic the larger companies use for their air purifier housings. Simply searching for discussion groups on MCS will reveal the daily challenges they face.

There are about five manufacturers, including E.L. Foust, that specifically serve the MCS market by not using plastics and glues in their air purifier products as well as providing substantial gas phase filtration media to provide effective filtration for months. Three of those manufacturers are based in the USA. Failure to grant an exemption will prevent E.L. Foust Co. from serving the MCS market and competition will be reduced to two USA-based manufacturers serving that market. The effects of the rule on those manufacturers is not known.

MCS customers are being marginalized by manufacturers who market air purifiers to them that are made with plastic that many find makes their condition worse as the plastic off-gases VOCs. As plastic is much cheaper than steel, the economic benefits to make plastic air purifiers will push purifiers that do not contain plastic and glues from the market. Less competition in the non-plastic MCS market will accelerate the loss of non-plastic air purifiers as competition will not need to be a qualifying factor if there is no competition or the non-plastic air purifier will become much more expensive. This will leave many MCS customers without a way to treat their symptoms.

The total gross revenue from the latest tax return is XXX. See attachments.

Please contact me with any questions, concerns, or requests for more information.

Sincerely,

Robert Oberhauser

President

E.L. Foust Co.

608-987-4800

[e-mail]

Footnotes

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.

2.  For editorial reasons, upon codification in the U.S. Code, Part B was redesignated Part A.

3.  The joint stakeholders did not include E.L. Foust Co.

4.  The date in ELF's application is specified as May 26, 2024, but the application was received by DOE via email on May 27, 2024.

5.  See https://foustco.com/​all-products/​air-purifiers/​.