[Federal Register Volume 80, Number 58 (Thursday, March 26, 2015)]
[Notices]
[Pages 16001-16004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06922]


-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

[Case No. VHE-002]


Energy Conservation Program for Consumer Products: Decision and 
Order Granting a Waiver to Empire Comfort Systems From the Department 
of Energy Vented Home Heating Equipment Test Procedure

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

ACTION: Decision and Order.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) gives notice of its 
Decision and Order in Case No. VHE-002, which grants Empire Comfort 
Systems, Inc. (Empire) a waiver from the existing DOE test procedure 
for determining the energy consumption of residential vented home 
heating equipment. DOE previously published the Empire Petition for 
Waiver and solicited comments, data, and information regarding the 
petition, which requested permission to use the DOE test procedure 
proposed in the

[[Page 16002]]

Notice of Proposed Rulemaking (NOPR) for Direct Heating Equipment and 
Pool Heaters published in the Federal Register on October 24, 2013, as 
an alternate test procedure to account for the energy consumption of 
its condensing-type direct heating equipment (DHE) models. Under this 
Decision and Order, Empire shall be required to test and rate its 
condensing-type direct DHE models using the applicable provisions of 
the DOE test procedure final rule for DHE published in the Federal 
Register on January 6, 2015. Empire shall use those provisions as an 
alternate test procedure until July 6, 2015, the mandatory compliance 
date for the amended test procedure, at which point this waiver shall 
terminate.

DATES: This Decision and Order is effective March 26, 2015. The waiver 
granted in this Decision and Order shall terminate on July 6, 2015.

FOR FURTHER INFORMATION CONTACT:
    Mr. Bryan Berringer, U.S. Department of Energy, Building 
Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW., 
Washington, DC 20585-0121. Telephone: (202) 586-0371. Email: 
[email protected].
    Mr. Eric Stas, U.S. Department of Energy, Office of the General 
Counsel, Mail Stop GC-33, 1000 Independence Avenue SW., Washington, DC 
20585-0103. Telephone: (202) 586-9507. Email: [email protected].

SUPPLEMENTARY INFORMATION: In accordance with 10 CFR 430.27(l), DOE 
gives notice of the issuance of its Decision and Order as set forth 
below. The Decision and Order grants Empire's request for waiver from 
the existing residential vented home heating equipment test procedure 
in 10 CFR part 430, subpart B, appendix O for its PVS (18,35)(K)(N)(P) 
basic model of condensing-type direct heating equipment, provided that 
Empire tests and rates such products using the alternate test procedure 
described in this notice. This Decision and Order prohibits Empire from 
making representations concerning the energy efficiency of these 
products unless the product has been tested consistent with the 
provisions of the alternate test procedure set forth below, and the 
representations fairly disclose the test results. Distributors, 
retailers, and private labelers are held to the same standard when 
making representations regarding the energy efficiency of these 
products. (42 U.S.C. 6293(c)) This waiver shall terminate on July 6, 
2015, the mandatory compliance date for the amended DOE DHE test 
procedure (the source of the alternate test procedure).

    Issued in Washington, DC, on March 20, 2015.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

Decision and Order

    In the Matter of: Empire Comfort Systems Inc. (Empire) (Case No. 
VHE-002).

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), sets 
forth a variety of provisions concerning energy efficiency and 
established the ``Energy Conservation Program for Consumer Products 
Other Than Automobiles.'' This program covers most major household 
appliances, including the vented home heating equipment that is the 
subject 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 that measure 
energy efficiency, energy use, or estimated operating costs, and that 
are not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The test 
procedure for residential 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.
---------------------------------------------------------------------------

    \1\ For editorial reasons, on codification in the U.S. Code, 
Part B was re-designated 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).
---------------------------------------------------------------------------

    The regulations set forth in 10 CFR 430.27, which were recently 
amended, contain provisions that enable a person to petition DOE to 
obtain a waiver from the test procedure requirements for covered 
products. See 79 FR 26591 (May 9, 2014) (revising 10 CFR 430.27, 
effective June 9, 2014). (DOE notes that while the previous version of 
10 CFR 430.27 was effective at the time of Empire's submission, the 
substantive aspects of this regulation have not been changed by the May 
9, 2014 final rule.) A person may petition for a waiver from the test 
procedure requirements that would ordinarily apply to a particular 
basic model covered under DOE's regulations when: (1) The petitioner's 
basic model for which the petition for waiver was submitted contains 
one or more design characteristics that prevent testing according to 
the prescribed test procedure, or (2) when prescribed test procedures 
may evaluate the basic model in a manner so unrepresentative of its 
true energy and/or water consumption characteristics as to provide 
materially inaccurate comparative data. 10 CFR 430.27(a)(1) (noting 
that a person may petition to waive for a particular basic model any 
requirements of 10 CFR 430.23 or of ``any appendix'' under 10 CFR part 
430, subpart B). Petitioners must 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 
characteristics. 10 CFR 430.27(b)(1)(iii).
    DOE may grant a waiver subject to conditions, including adherence 
to alternate test procedures. 10 CFR 430.27(f)(2). Waivers remain in 
effect pursuant to the provisions of 10 CFR 430.27(h).
    Any interested person who has submitted a Petition for Waiver may 
also file an Application for Interim Waiver from the applicable test 
procedure requirements. 10 CFR 430.27(b)(2). DOE will grant an interim 
waiver request if it is determined that the applicant will experience 
economic hardship if the interim waiver is denied, if it appears likely 
that the petition for waiver will be granted, and/or DOE 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(e)(2).

II. Empire's Petition for Waiver: Assertions and Determinations

    On January 20, 2014, Empire filed a Petition for Waiver and 
Application for Interim Waiver for a condensing-type direct heating 
equipment model from the test procedure applicable to vented home 
heating equipment set forth in 10 CFR part 430, subpart B, appendix 
O.\3\

[[Page 16003]]

See 79 FR 18536 (April 2, 2014). 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.
---------------------------------------------------------------------------

    \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 current 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 the 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 comment period 
nor during the re-opening of the 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.
---------------------------------------------------------------------------

    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, DOE has considered only one of the 
basic models submitted in the petition 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    Empire also requested an interim waiver from the existing DOE test 
procedure, which DOE granted. See 79 FR 18536, 18537 (April 2, 2014). 
An interim waiver may be granted if it appears likely that the Petition 
for Waiver will be granted and/or DOE 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(e)(2). DOE 
determined that Empire's Application for Interim Waiver did not provide 
sufficient market, equipment price, shipments, and other manufacturer 
impact information to 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 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 requested 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. For the reasons stated above, DOE 
granted Empire's Application for Interim Waiver from testing of its 
condensing-type vented gas heater system. 79 FR 18536, 18537-38 (April 
2, 2014).
    DOE did not receive any comments on the Empire petition published 
in the Federal Register on April 2, 2014 (79 FR 18536).
    Under this Decision and Order, Empire shall be required to test and 
rate its condensing-type direct heating equipment (DHE) models using 
the DOE Final Rule test procedure for DHE published in the Federal 
Register on January 6, 2015 (80 FR 792). The effective date of this 
rule was February 5, 2015 and compliance will be mandatory starting 
July 6, 2015. DOE feels that the use of the Final Rule test procedure 
will utilize the most up-to-date test method and be able to compare 
similar products to help inform the consumer when purchasing these 
types of products.

III. Consultations With Other Agencies

    DOE consulted with the Federal Trade Commission (FTC) staff 
concerning the Empire petition for waiver. The FTC staff did not have 
any objections to granting a waiver to Empire.

IV. Conclusion

    After careful consideration of all the material that was submitted 
by Empire and consultation with the FTC staff, it is ordered that:
    (1) The Petition for Waiver submitted by the Empire Comfort 
Systems, Inc. (Case No. VHE-002) is hereby granted as set forth in the 
paragraphs below.
    (2) Empire shall be required to test and rate the following basic 
model (condensing vented heater):
    PVS (18,35) (K)(N)(P) according to the alternate test procedure set 
forth in paragraph (3) below.
    (3) Empire shall not be required to test the products listed in 
paragraph (2) above according to the test procedure for residential 
vented home heating equipment set forth in 10 CFR part 430, subpart B, 
appendix O, but instead shall use as the amended test procedure as set 
forth in the final rule published in the Federal Register on January 6, 
2015 (80 FR 792).
    (4) Representations. Empire may make representations about the 
energy use of its condensing-type DHE models for compliance, marketing, 
or other purposes only to the extent that such products have been 
tested in accordance with the provisions outlined above and such 
representations fairly disclose the results of such testing.
    (5) This waiver shall terminate on July 6, 2015, consistent with 
the provisions of 10 CFR 430.27(h)(2).
    (6) This waiver is issued on the condition that the statements, 
representations, and documentary materials provided by the petitioner 
are valid. DOE may revoke or modify this waiver at any time if it 
determines the factual basis underlying the Petition for Waiver is 
incorrect, or the results from the alternate test procedure are 
unrepresentative of the basic model's true energy consumption 
characteristics.
    (7) This waiver is granted for only those models specifically set 
out in Empire's January 20, 2014 Petition for Waiver, not future models 
that may be manufactured by Empire. Empire may submit a new or amended 
Petition for Waiver and Application for Grant of Interim Waiver, as 
appropriate, for additional residential vented home heating equipment 
models for which it seeks a waiver from the DOE test

[[Page 16004]]

procedure. Grant of this waiver also does not release Empire from the 
certification requirements set forth at 10 CFR part 429.

    Issued in Washington, DC, on March 20, 2015.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.
[FR Doc. 2015-06922 Filed 3-25-15; 8:45 am]
 BILLING CODE 6450-01-P