[Federal Register Volume 89, Number 194 (Monday, October 7, 2024)]
[Notices]
[Pages 81059-81062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23093]


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DEPARTMENT OF ENERGY

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


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

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.

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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: <a href="/cdn-cgi/l/email-protection#57121b1138222423656765630712036767676f1732327933383279303821"><span class="__cf_email__" data-cfemail="98ddd4def7edebecaaa8aaacc8ddcca8a8a8a0d8fdfdb6fcf7fdb6fff7ee">[email protected]</span></a>. 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

[[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: 
(240) 449-9387. Email: <a href="/cdn-cgi/l/email-protection#024372726e6b636c61675176636c666370667153776771766b6d6c714267672c666d672c656d74"><span class="__cf_email__" data-cfemail="236253534f4a424d40467057424d474251475072564650574a4c4d506346460d474c460d444c55">[email protected]</span></a>.
    Ms. Ani Esenyan, U.S. Department of Energy, Office of the General 
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. 
Telephone: (202) 586-4798. Email: <a href="/cdn-cgi/l/email-protection#6b0a0502450e180e05120a052b031a450f040e450c041d"><span class="__cf_email__" data-cfemail="bedfd0d790dbcddbd0c7dfd0fed6cf90dad1db90d9d1c8">[email protected]</span></a>.

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))
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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.
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
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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).
    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.
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    \3\ The joint stakeholders did not include E.L. Foust Co.
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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

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

[[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: <a href="/cdn-cgi/l/email-protection#a1cdd4c2c0d28fc0c5c8cfe1c4c48fc5cec48fc6ced7"><span class="__cf_email__" data-cfemail="6509100604164b04010c0b2500004b010a004b020a13">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#1561677a6c3b627461667a7b5570703b717a703b727a63"><span class="__cf_email__" data-cfemail="2551574a5c0b524451564a4b6540400b414a400b424a53">[email protected]</span></a>.

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
<a href="/cdn-cgi/l/email-protection#fb999499bb9d948e888f9894d5989496"><span class="__cf_email__" data-cfemail="f7959895b791988284839498d994989a">[email protected]</span></a>

[FR Doc. 2024-23093 Filed 10-4-24; 8:45 am]
BILLING CODE 6450-01-P


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