[Federal Register Volume 90, Number 81 (Tuesday, April 29, 2025)]
[Notices]
[Pages 17780-17783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-07352]
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DEPARTMENT OF ENERGY
[Case Number 2024-008; EERE-2024-BT-PET-0008]
Energy Conservation Program: Notice of Decision and Order
Granting an Exemption to E.L. Foust Co. From the Department of Energy
Air Cleaner Energy Conservation Standards
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of decision and order.
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SUMMARY: The U.S. Department of Energy (DOE) hereby gives notice of a
Decision and Order (Case Number 2024-008) that grants to E.L. Foust Co.
(ELF) a small business exemption from the DOE air cleaner energy
conservation standards. Specifically, ELF is granted an exemption from
the Tier 1 energy conservation standards for air cleaners through
December 30, 2025.
DATES: The Decision and Order is effective on April 29, 2025.
ADDRESSES: 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.
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. Jeremy Dommu, 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:
(202) 586-9870. Email: [email protected].
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: [email protected].
SUPPLEMENTARY INFORMATION: In accordance with 10 CFR part 430, subpart
E, DOE gives notification of the issuance of its Decision and Order as
set forth below. The Decision and Order grants ELF a small business
exemption from the applicable energy conservation standards for air
cleaners specified at 10 CFR 430.32(ee)(1) through December 30, 2025.
If ELF chooses to make any representations concerning the energy
efficiency of the its air cleaner basic models, it must do so in
accordance with the DOE test procedure specified in 10 CFR
430.23(hh)(4) and appendix FF to 10 CFR part 430, subpart B (appendix
FF).
Case # 2024-008
Decision and Order
I. Authority and Background
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).
[[Page 17781]]
Consistent with the requirements in 42 U.S.C. 6295, DOE has
established energy conservation standards for air cleaners. On April
11, 2023, DOE published a direct final rule adopting the standards and
compliance dates consistent with the recommendations from a group of
joint stakeholders representing manufacturers, efficiency advocates,
and consumer groups. 88 FR 21752. These standards apply to products
manufactured in, or imported into, the United States starting on
December 31, 2023, for the Tier 1 standards specified in 10 CFR
430.32(ee)(1) and on December 31, 2025, for the Tier 2 standards
specified in 10 CFR 430.32.(ee)(2).
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.
After receiving an application and accepting it for filing, DOE
publishes a notice announcing the application in the Federal Register.
10 CFR 430.53(d). DOE transmits notice of the application for exemption
to the Attorney General 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. After obtaining the written views of the Attorney
General, the Secretary evaluates whether a failure to allow an
exemption would likely result in a lessening of competition (see 10 CFR
430.55) and then issues a decision and order either granting or denying
the application (see 10 CFR 430.56) in accordance with 42 U.S.C.
6295(t)(2).
II. E.L. Foust Co. Application for a Small Business Exemption
On May 27, 2024,\3\ 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 requested exemption
from the December 31, 2023, Tier 1 standards expires. As such, DOE did
not consider an exemption for ELF for the Tier 2 standards. ELF will
need to submit a separate application if they wish to request an
exemption from the Tier 2 standards. Such an application would need to
include current financial information available at that time and
information regarding impacts on competition with respect to the Tier 2
standards.
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\3\ 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 requested 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 volatile organic compounds (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.
On October 7, 2024, DOE issued a notice announcing the receipt of
and publishing ELF's application for exemption. 89 FR 81059. In
accordance with its regulations, DOE also transmitted ELF's application
for exemption to the Attorney General 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.
In response to the 2024 notice announcing ELF's application, DOE
received comments submitted by Daikin Comfort Technologies North
America, Inc. (Daikin) \4\ and Michael Ravnitzky (Ravnitzky) \5\.
Daikin opposed the small business exemption, noting that there are
about 5 manufacturers in this segment of the air cleaner market making
products without plastics or glue to eliminate VOCs for people who
suffer from multiple chemical sensitivity, and that granting the waiver
will lessen the energy savings of the air cleaner energy conservation
standards and provide an unfair cost advantage for ELF's products.
Ravnitzky supported the request for a two-year waiver due to concern
for the impact that denying the waiver would have on individuals with
multiple chemical sensitivity.
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\4\ Daikin's comments can be accessed at: www.regulations.gov/comment/EERE-2024-BT-PET-0008-0003.
\5\ Ravnitsky's comments can be accessed at:
www.regulations.gov/comment/EERE-2024-BT-PET-0008-0002.
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III. Consultation with Other Agencies
Per 42 U.S.C. 6295(t)(2), DOE obtained the written views of the
Attorney General concerning ELF's application for exemption. Under this
statutory provision, DOE may only grant a small business exemption if
it has consulted with the Attorney General
[[Page 17782]]
and finds that a lessening of competition would likely result. In its
assessment letter \6\ responding to DOE, the Department of Justice
(DOJ) concluded that failure to grant ELF's application for a small
business exemption for air cleaners would reduce competition to some
degree. The basis for DOJ's determination is that, as a result of the
standard, ELF will no longer be able to sell its air cleaner products
through one of its main distribution channels, and therefore, customers
will have one less competitive option through that channel. DOJ made
this determination after reviewing ELF's application, as well as the
technical analysis supporting the rule from which the exemption is
sought. DOJ also reviewed the materials provided in response to the
related request for comments, spoke with the company's representative,
and reviewed other relevant, publicly available information.
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\6\ The text of the letter is provided at the end of this notice
and is available in the docket for this petition at
www.regulations.gov/docket/EERE-2024-BT-PET-0008.
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IV. Final Decision and Order
In accordance with 10 CFR 430.55 and 10 CFR 430.56, DOE gives
notice of the issuance of its decision and order granting ELF's
application for a small business exemption from the Tier 1 standards
for air cleaners, specified at 10 CFR 430.32(ee)(1), through December
30, 2025.
In evaluating this matter, DOE first reviewed financial information
submitted by ELF as part of its application and found that the annual
gross revenues from all its operations (including the manufacture and
sale of covered products) did not exceed $8,000,000 for the 12-month
period preceding the date of the application, consistent with 42 U.S.C.
6295(t)(1). DOE then considered whether a failure to allow the
exemption would result in a lessening of competition, consistent with
42 U.S.C. 6295(t)(2). After consultation with the Attorney General, DOE
has determined that failure to grant a small business exemption would
likely result in a lessening of competition. In response to Daikin's
comment regarding a lessening in energy savings and potential cost
advantage associated with granting the application, DOE notes
compliance costs are typically a much larger percentage of revenue for
small manufacturers than they are for larger manufacturers. An
exemption under 42 U.S.C. 6295(t) allows small manufacturers to spread
compliance costs across a longer timeframe. A necessary result of
extending the compliance timeframe for a small manufacturer is a
reduction in energy savings and a potential cost advantage for the
small manufacturer. But the impact is mitigated by the relatively short
duration of the exemption period.
After careful consideration of all the material that was submitted
by ELF, comments received in this process, and consultation with DOJ,
in this matter, it is ORDERED that:
(1) ELF air cleaners are exempt from the applicable energy
conservation standards set forth in 10 CFR 430.32(ee)(1).
(2) This Order is in effect through December 30, 2025. For air
cleaners manufactured on and after December 31, 2025, ELF is required
to comply with the applicable energy conservation standards specified
in 10 CFR 430.32(ee)(2).
(3) To the extent that ELF seeks any additional small business
exemption from the standards specified in 10 CFR 430.32(ee)(2), it
would be required to submit a separate application regarding those
standards in accordance with the requirements in 10 CFR part 430,
subpart E.
(4) Any representations of energy efficiency that ELF chooses to
make for its air cleaners must be made in accordance with the DOE test
procedure specified in 10 CFR 430.23(hh)(4) and appendix FF, as well as
the representations requirements specified in 10 CFR 429.68.
(5) This Order is issued on the condition that the statements and
representations provided by ELF are valid. DOE may rescind or modify
this Order at any time if it determines the factual basis underlying
the application for small business exemption is incorrect. Likewise,
ELF may request that DOE rescind the order if ELF discovers an error in
the information provided to DOE as part of its application.
Signing Authority
This document of the Department of Energy was signed on April 21,
2025, by Louis Hrkman, 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 April 24, 2025.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
DOJ's Letter (Received January 15, 2025)
Sent via email to [email protected] and [email protected]
RE: EL Foust Small Business Exemption
U.S. Department of Justice
Antitrust Division
RFK Main Justice Building
950 Pennsylvania Avenue NW
Washington, DC 20530
Ami Grace-Tardy
Assistant General Counsel for Legislation,
Regulation and Energy Efficiency
United States Department of Energy
1001 Independence Ave. SW
Washington, DC 20585
Dear Ms. Grace-Tardy:
I am responding to your October 8, 2024 letter seeking the views
of the Attorney General about the potential impact on competition of
E. L. Foust Co.'s application for a small-business exemption from
energy conservation standards for conventional room air cleaners.
Your request was submitted in accordance with Section 6295(t) of
the Energy Policy and Conservation Act of 1975 (ECPA), as amended.
This Section provides that the Department of Energy may not grant a
small-business exemption from an energy conservation standard until
it has obtained the written views of the Attorney General concerning
whether competition would be lessened if the Department of Energy
does not grant an applicant's requested exemption. 42 U.S.C.
66295(t)(2). The Attorney General's responsibility for responding to
requests from other departments about the effect of any action,
program or practice upon the maintenance and preservation of
competition has been delegated to the Assistant Attorney General for
the Antitrust Division in 28 CFR 0.40(g). The Acting Assistant
Attorney General for the Antitrust Division has authorized me, as
the Policy Director for the Antitrust Division, to provide the
Antitrust Division's views regarding the potential impact on
competition of proposed energy conservation standards on her behalf.
In conducting its analysis, the Antitrust Division applies the
standard set forth in 42 U.S.C. 6295(t)(2) and examines whether
failure to grant a small-business exemption would likely result in a
lessening of competition, for example, by limiting consumer choice,
reducing the number of competitors, or limiting the capability or
vigor with which they compete. A lessening of competition could
result in higher prices, reduced innovation, and other harms to
consumers, workers, and the American economy at large.
We have reviewed E. L. Foust Co.'s notice of application for a
small business exemption
[[Page 17783]]
contained in 89 FR 81059, October 7, 2024, as well as the technical
analysis supporting the rule from which the exemption is sought. We
have also reviewed the materials provided in response to the related
request for comments, spoken with the company's representative, and
reviewed other relevant, publicly available information. Based on
this review, we have learned that one result of the energy
conservation standards is that E. L. Foust Co. will no longer be
able to sell its air cleaner products through one of its main
distribution channels. Customers will therefore have one less
competitive option through that channel, necessarily reducing
competition to some degree. We have no reason, however, to believe
the impact on competition would be more substantial than the small
businesses' size would suggest.
Sincerely,
/s/David B. Lawrence,
Policy Director.
[FR Doc. 2025-07352 Filed 4-28-25; 8:45 am]
BILLING CODE 6450-01-P