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[Federal Register Volume 79, Number 63 (Wednesday, April 2, 2014)]
[Notices]
[Pages 18536-18541]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07362]

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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Case No. VHE-002]

Notice of Petition for Waiver and Grant of Interim Waiver of 
Empire Comfort Systems From the DOE Vented Home Heating Equipment Test 
Procedure

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

ACTION: Notice of Petition for Waiver, Granting of Application for 
Interim Waiver, and Request for Public Comments.

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SUMMARY: This notice announces receipt of and publishes the Empire 
Comfort Systems Inc. (Empire) petition for waiver from the U.S. 
Department of Energy (DOE) test procedure for determining the energy 
consumption of vented home heating equipment. The waiver request 
pertains to Empire's specified models of condensing-type vented 
heaters. The existing test procedure does not apply to condensing 
heaters. Empire asks that it be permitted to use the DOE test procedure 
proposed in the Notice of Proposed Rulemaking (NOPR) for Direct Heating 
Equipment and Pool Heaters published in the Federal Register on October 
24, 2013 (78 FR 63410), as an alternate test procedure to account for 
the energy consumption of its condensing-type direct heating equipment 
(DHE) models. DOE notes that only one of the basic model numbers 
submitted in the petition is a covered product subject to the test 
methods for vented home heating equipment. Today's notice also grants 
Empire an interim waiver from the DOE test procedure applicable to 
direct heating equipment for the one basic model number properly 
included in the petition, subject to use of the alternative test 
procedure set forth in this notice. DOE solicits comments, data, and 
information concerning Empire's petition and the suggested alternate 
test procedure.

DATES: DOE will accept comments, data, and information with respect to 
the Empire Petition until, but no later than May 2, 2014.

ADDRESSES: You may submit comments, identified by case number VHE-002, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: AS_Waiver_Requests@ee.doe.gov. Include the case 
number [Case No. VHE-002] in the subject line of the message. Submit 
electronic comments in WordPerfect, Microsoft Word, PDF, or ASCII file 
format, and avoid the use of special characters or any form of 
encryption.
     Postal Mail: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Office, Mailstop EE-5B, Petition for 
Waiver Case No. VHE-002, 1000 Independence Avenue SW., Washington, DC 
20585-0121. Telephone: (202) 586-2945. If possible, please submit all 
items on a compact disc (CD), in which case it is not necessary to 
include printed copies.
     Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy, Building Technologies Office, 950 L'Enfant Plaza SW., Suite 
600, Washington, DC 20024. If possible, please submit all items on a 
CD, in which case it is not necessary to include printed copies.
    Docket: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at www.regulations.gov. All documents in the docket are listed 
in the www.regulations.gov index. However, some documents listed in the 
index, such as those containing information that is exempt from public 
disclosure, may not be publicly available.
    For further information on how to submit a comment, or review other 
public comments and the docket, contact Ms. Brenda Edwards at (202) 
586-2945 or by email: Brenda.Edwards@ee.doe.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Bryan Berringer, U.S. Department 
of Energy, Building Technologies Office, Mail Stop EE-5B, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 
586-0371. Email: Bryan.Berringer@ee.doe.gov.
    Mr. Eric Stas, U.S. Department of Energy, Office of the General 
Counsel, Mail Stop GC-71, 1000 Independence Avenue SW., Washington, DC 
20585-0103. Telephone: (202) 586-9507. Email: Eric.Stas@hq.doe.gov.
    For information on how to submit or review public comments, contact 
Ms.

[[Page 18537]]

Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency 
and Renewable Energy, Building Technologies Office, Mailstop EE-5B, 
1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: 
(202) 586-2945. Email: Brenda.Edwards@ee.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background and Authority

    Title III, Part B \1\ of the Energy Policy and Conservation Act of 
1975 (EPCA), Public Law 94-163 (42 U.S.C. 6291-6309, as codified), 
established the Energy Conservation Program for Consumer Products Other 
Than Automobiles, a program covering most major household appliances, 
which includes the vented home heating equipment that is the focus of 
this notice.\2\ Part B includes definitions, test procedures, labeling 
provisions, energy conservation standards, and the authority to require 
information and reports from manufacturers. Further, Part B authorizes 
the Secretary of Energy to prescribe test procedures that are 
reasonably designed to produce results which measure the energy 
efficiency, energy use, or estimated annual operating costs of a 
covered product, and that are not unduly burdensome to conduct. (42 
U.S.C. 6293(b)(3)) The test procedure for vented home heating equipment 
is contained in 10 CFR part 430, subpart B, appendix O, Uniform Test 
Method for Measuring the Energy Consumption of Vented Home Heating 
Equipment.
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    \1\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
    \2\ All references to EPCA in this document refer to the statute 
as amended through the American Energy Manufacturing Technical 
Corrections Act (AEMTCA), Public Law 112-210 (Dec. 18, 2012).
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    The regulations set forth at 10 CFR 430.27 contain provisions that 
enable a person to seek a waiver from the test procedure requirements 
for covered products. The Assistant Secretary for Energy Efficiency and 
Renewable Energy (the Assistant Secretary) will grant a waiver if it is 
determined that the basic model for which the petition for waiver was 
submitted contains one or more design characteristics that prevents 
testing of the basic model according to the prescribed test procedures, 
or if the prescribed test procedures may evaluate the basic model in a 
manner so unrepresentative of its true energy consumption 
characteristics as to provide materially inaccurate comparative data. 
10 CFR 430.27(l). Petitioners should include in their petition any 
alternate test procedures known to the petitioner to evaluate the basic 
model in a manner representative of its energy consumption. The 
Assistant Secretary may grant the waiver subject to conditions, 
including adherence to alternate test procedures. Id. Waivers remain in 
effect pursuant to the provisions of 10 CFR 430.27(m).
    The waiver process also allows the Assistant Secretary to grant an 
interim waiver from test procedure requirements to manufacturers that 
have petitioned DOE for a waiver of such prescribed test procedures if 
it is determined that the applicant will experience economic hardship 
if the application for interim waiver is denied, if it appears likely 
that the petition for waiver will be granted, and/or if the Assistant 
Secretary determines that it would be desirable for public policy 
reasons to grant immediate relief pending a determination on the 
petition for waiver. 10 CFR 430.27(a)(2) and (g). An interim waiver 
remains in effect for a period of 180 days or until DOE issues its 
determination on the petition for waiver, whichever is sooner, and may 
be extended for an additional 180 days, if necessary. 10 CFR 430.27(h).

II. Petition for Waiver of Test Procedure and Application for Interim 
Waiver

    On January 20, 2014, Empire filed a petition for waiver for 
condensing-type direct heating equipment models from the test procedure 
applicable to vented home heating equipment set forth in 10 CFR part 
430, subpart B, appendix O.\3\ In its petition, Empire seeks a waiver 
from the existing DOE test procedure for its vented gas heaters and 
fireplace systems under 10 CFR part 430 because Empire asserts that the 
existing test procedure does not account for condensing-type heating 
equipment. Empire seeks to use the test method proposed by DOE in a 
NOPR for Direct Heating Equipment and Pool Heaters published in the 
Federal Register on October 24, 2013 (78 FR 63410) (hereinafter the 
``October 2013 NOPR''), as an alternate test procedure to account for 
the energy consumption of its condensing-type DHE models. That notice, 
in relevant part, defines the term ``condensing vented heater'' and 
provides a method for testing these devices.
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    \3\ On July 21, 2011, Empire originally filed a petition for 
waiver from the DOE test procedure for residential vented home 
heating equipment for specified condensing-type direct heating 
equipment models applicable to its Mantis vented gas fireplace 
systems. The DOE test procedure in appendix O has no provisions for 
testing condensing-type direct heating equipment. On November 3, 
2011, DOE published the Empire petition for waiver (Case No. VHE-
001) from the vented home heating equipment test procedure in the 
Federal Register (76 FR 68180). The notice provided for the 
submission of comments by December 5, 2011. Because all known 
manufacturers of domestically-marketed units of the same product 
type were not timely notified that DOE published the Petition for 
Waiver, DOE determined that re-opening of the public comment period 
was appropriate. On February 1, 2012, DOE published a notice of re-
opening of public comment period in the Federal Register (77 FR 
5001) with the comment period ending on March 2, 2012. DOE received 
no comments during the initial petition for waiver nor during the 
re-opening of public comment period. In the January 20, 2014 
request, Empire stated that the list of models in the original 
waiver submitted to DOE on July 21, 2011 is no longer accurate and 
is superseded by its latter petition. Thus, DOE has withdrawn the 
petition under Case No. VHE-001.
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    DOE notes that of the eight basic model numbers set forth in 
Empire's petition, only one (PVS (18, 35)(K)(N)(P)) qualifies as a 
covered DHE product. The remaining seven basic models (which are 
fireplaces, fireplace inserts, or stoves) are hearth products and are, 
therefore, subject to neither the test procedure requirements of 10 CFR 
part 430, subpart B, appendix O nor the proposed requirements of the 
October 2013 NOPR.\4\ Therefore, only one of the basic models submitted 
in the petition was considered for waiver. For the remaining basic 
models, since testing of hearth products is not required under DOE 
regulations at this time, there is no need to consider a waiver for 
such models. However, if Empire chooses to conduct testing to make 
representations regarding the energy efficiency of these products, the 
company is free to use any test procedure it deems appropriate.
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    \4\ On February 8, 2013, the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) issued a decision 
vacating the DOE definition of ``Vented hearth heater'' at 10 CFR 
430.2, and remanded the issue to DOE to interpret the challenged 
provisions consistent with the court's opinion. Hearth, Patio & 
Barbecue Association v. U.S. Department of Energy, 706 F.3d 499, 509 
(D.C. Cir. 2013). Since that time, DOE has published a proposed 
coverage determination that would classify all hearth products as a 
new covered product pursuant to 42 U.S.C. 6292(a)(20) and (b). 78 FR 
79638 (Dec. 31, 2013).
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    Empire also requests an interim waiver from the existing DOE test 
procedure for immediate relief. As noted above, an interim waiver may 
be granted if it is determined that the applicant will experience 
economic hardship if the application for interim waiver is denied, if 
it appears likely that the petition for waiver will be granted, and/or 
the Assistant Secretary determines that it would be desirable for 
public policy reasons to grant immediate relief pending a determination 
of the petition for waiver. See 10 CFR 430.27(g).
    DOE has determined that Empire's application for interim waiver 
does not provide sufficient market, equipment price, shipments, and 
other manufacturer impact information to

[[Page 18538]]

permit DOE to evaluate the economic hardship Empire might experience 
absent a favorable determination on its application for interim waiver. 
DOE understands, however, that absent an interim waiver, the basic 
model submitted by Empire that qualifies as a covered product could not 
be tested and rated for energy consumption on a basis representative of 
its true energy consumption characteristics. It is in the public 
interest to have similar products tested and rated for energy 
consumption on a comparable basis, where possible. Furthermore, DOE has 
determined that Empire is likely to succeed on the merits of its 
petition for waiver and that it is desirable for public policy reasons 
to grant immediate relief. Empire requests to use the test method 
proposed by DOE in the October 2013 NOPR as an alternate test procedure 
to account for the energy consumption of its condensing-type direct 
heating equipment models; that notice, in relevant part, defines the 
term ``condensing vented heater'' and provides a method for testing 
these devices, thereby providing a suitable vehicle for testing these 
products and making representations as to their energy efficiency.

III. Interim Waiver Granted

    For the reasons stated above, DOE grants Empire's application for 
interim waiver from testing of its condensing vented gas heater system. 
DOE cannot grant Empire's application for interim waiver of its vented 
hearth products, as these products do not meet the definition of direct 
heating equipment. Therefore, it is ordered that:
    The application for interim waiver filed by Empire is hereby 
granted for Empire's condensing vented gas heater system, subject to 
the following specifications and conditions below. Empire shall not be 
required to test its condensing vented gas heater system on the basis 
of the test procedure at 10 CFR part 430, subpart B, appendix O, but 
instead, it shall be required to test and rate that system according to 
the alternate test procedure as set forth in section IV, ``Alternate 
test procedure.'' Testing is not required at this time for all other 
basic models listed in the petition that refer to hearth products 
(i.e., those that are fireplaces, fireplace inserts, or stoves), 
although if Empire elects to test such models, it may use an 
appropriate test procedure of its choosing.
    Specifically, the interim waiver applies to the following basic 
model (condensing vented heater):
PVS (18,35) (K)(N)(P)
    The interim waiver does not apply to the following basic models 
(condensing fireplaces, fireplace inserts, and stoves):
FG28BM (K)(N)(P)
IG28BM (N)(P)
BF28 (B,C,G)M(K)(N)(P)
BP28 (B,C,G)M(K)(N)(P)
BI28 (B,C,G)M(K)(N)(P)
FF28BM (K)(N)(P)
FI28BM (N)(P)

    DOE makes decisions on waivers and interim waivers for only those 
models specifically set out in the petition, not future models that may 
be manufactured by the petitioner. Empire may submit a new or amended 
petition for waiver and request for grant of interim waiver, as 
appropriate, for additional models of vented gas heater systems for 
which it seeks a waiver from the DOE test procedure. In addition, DOE 
notes that granting of an interim waiver or waiver does not release a 
petitioner from the certification requirements set forth at 10 CFR part 
429.
    Further, this interim waiver is conditioned upon the presumed 
validity of statements, representations, and documents provided by the 
petitioner. DOE may revoke or modify this interim waiver at any time 
upon a determination that the factual basis underlying the petition for 
waiver is incorrect, or upon a determination that the results from the 
alternate test procedure are unrepresentative of the basic models' true 
energy consumption characteristics.

IV. Alternate Test Procedure

    EPCA requires that manufacturers use DOE test procedures to make 
representations about the energy consumption and energy consumption 
costs of products covered by the statute. (42 U.S.C. 6293(c)) 
Consistent representations are important for manufacturers to use in 
making representations about the energy efficiency of their products 
and to demonstrate compliance with applicable DOE energy conservation 
standards, as well as for consumers who rely upon such representations 
in making purchasing decisions. Pursuant to its regulations applicable 
to waivers and interim waivers from applicable test procedures at 10 
CFR 430.27, DOE will consider setting an alternate test procedure for 
Empire in a subsequent Decision and Order.
    During the period of the interim waiver granted in this notice, 
Empire shall test the product listed above according to the test 
procedures for condensing vented heaters proposed by DOE in the NOPR 
test procedure rule published October 24, 2013 (78 FR 63410). At this 
time, testing is not required for hearth products (e.g., fireplaces, 
fireplace inserts, or stoves), and these products are not covered by 
the test procedure at 10 CFR part 430, subpart B, appendix O, or the 
October 2013 NOPR. If Empire elects to test hearth product models, it 
may use an appropriate test procedure of its choosing.

V. Summary and Request for Comments

    Through today's notice, DOE announces receipt of Empire's petition 
for waiver from the DOE test procedure for vented home heating 
equipment and grants Empire an interim waiver from the test procedure 
for its PVS (18, 35)(K)(N)(P) condensing direct heater model. DOE 
publishes Empire's petition for waiver in its entirety. The petition 
does not contain confidential information. The petition includes a 
suggested alternate test procedure to determine the energy efficiency 
of Empire's specified condensing direct heaters. DOE has required use 
of this alternate test procedure as a condition of its grant of interim 
waiver and is considering including this alternate procedure in its 
subsequent Decision and Order.
    DOE solicits comments from interested parties on all aspects of the 
petition, including the suggested alternate test procedure and 
calculation methodology. Any person submitting written comments to DOE 
must also send a copy of such comments to the petitioner. The contact 
information for the petitioner is: Mr. Kenneth J. Belding, Vice 
President--Delivery Support Services, Empire Comfort Systems, Inc., 918 
Freeburg Avenue, Belleville, Illinois 62220-2623. All submissions 
received must include the agency name and case number for this 
proceeding. Submit electronic comments in WordPerfect, Microsoft Word, 
Portable Document Format (PDF), or text (American Standard Code for 
Information Interchange (ASCII)) file format and avoid the use of 
special characters or any form of encryption. Wherever possible, 
include the electronic signature of the author. DOE does not accept 
telefacsimiles (faxes).
    Pursuant to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit two copies to DOE: one copy of the document 
marked ``confidential'' with all of the information believed to be 
confidential included, and one copy of the document marked ``non-
confidential'' with all of the information believed to be confidential 
deleted. DOE will make its own determination about the

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confidential status of the information and treat it according to its 
determination.

    Issued in Washington, DC, on March 26, 2014.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

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[GRAPHIC] [TIFF OMITTED] TN02AP14.001

[FR Doc. 2014-07362 Filed 4-1-14; 8:45 am]
BILLING CODE 6450-01-P
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