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Notice2024-23093

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

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Published

October 7, 2024

Issuing agencies

Energy Department

Abstract

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.

Full Text

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<title>Federal Register, Volume 89 Issue 194 (Monday, October 7, 2024)</title>
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[Federal Register Volume 89, Number 194 (Monday, October 7, 2024)]
[Notices]
[Pages 81059-81062]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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">[email&#160;protected]</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 <a href="http://www.regulations.gov">www.regulations.gov</a>. All documents in the docket are
listed in the <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov/docket/EERE-2024-BT-PET-0008">www.regulations.gov/docket/EERE-2024-BT-PET-0008</a>. 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">[email&#160;protected]</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">[email&#160;protected]</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

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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 <a href="https://foustco.com/all-products/air-purifiers/">https://foustco.com/all-products/air-purifiers/</a>.
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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 <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.regulations.gov">www.regulations.gov</a>
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 <a href="http://www.regulations.gov">www.regulations.gov</a>. 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">[email&#160;protected]</a>, <a href="/cdn-cgi/l/email-protection#1561677a6c3b627461667a7b5570703b717a703b727a63">[email&#160;protected]</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">[email&#160;protected]</a>

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

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