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[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Rules and Regulations]
[Pages 71836-71859]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29503]

[[Page 71835]]

Vol. 76

Friday,

No. 223

November 18, 2011

Part VI

Department of Energy

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10 CFR Part 430

Energy Conservation Program: Energy Conservation Standards for Direct 
Heating Equipment; Final Rule

Federal Register / Vol. 76 , No. 223 / Friday, November 18, 2011 / 
Rules and Regulations

[[Page 71836]]

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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket Number EERE-2011-BT-STD-0047]
RIN 1904-AC56

Energy Conservation Program: Energy Conservation Standards for 
Direct Heating Equipment

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

ACTION: Final rule.

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SUMMARY: The Energy Policy and Conservation Act of 1975 (EPCA), as 
amended, prescribes energy conservation standards for various consumer 
products and certain commercial and industrial equipment, including 
residential direct heating equipment. In this final rule, the U.S. 
Department of Energy (DOE) is amending its definitions pertaining to 
direct heating equipment. Specifically, through this final rule, DOE is 
amending the definition of ``vented hearth heater,'' a type of direct 
heating equipment, to clarify the scope of the current exclusion for 
those vented hearth heaters that are primarily decorative hearth 
products. The amendment to the existing exclusion shifts the focus from 
a maximum input capacity limitation (i.e., 9,000 Btu/h) to a number of 
other factors, including the absence of a standing pilot light or other 
continuously-burning ignition source. DOE has concluded that these 
amendments would result in increased energy savings overall, as well as 
for the types of units under the exclusion.

DATES: The effective date of this rule is December 19, 2011. Compliance 
with the amended standards established for direct heating equipment in 
today's final rule is required on April 16, 2013, except for the 
exclusion criterion related to the elimination of a standing pilot 
light or other continuously-burning ignition source, which has a 
compliance date of January 1, 2015. The incorporation by reference of 
certain publications in the rule is approved by the Director of the 
Federal Register as of December 19, 2011.

ADDRESSES: The docket for this rulemaking is available for review at 
http://www.regulations.gov, including Federal Register notices, public 
meeting attendee lists and transcripts, comments, and other supporting 
documents/materials. All documents in the docket are listed in the 
http://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.
    A link to the docket Web page can be found at: http://www.regulations.gov. The http://www.regulations.gov Web page contains 
simple instructions on how to access all documents, including public 
comments, in the docket.

FOR FURTHER INFORMATION CONTACT: 

Mr. Mohammed Khan, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 
1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: 
(202) 586-7892. Email: Mohammed.Khan@ee.doe.gov.
Mr. Eric Stas, U.S. Department of Energy, Office of the General 
Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Telephone: (202) 586-9507. Email: Eric.Stas@hq.doe.gov.

    For further information on how to review the docket, contact Ms. 
Brenda Edwards, U.S. Department of Energy, Office of Energy Efficiency 
and Renewable Energy, Building Technologies Program, EE-2J, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 
586-2945. Email: Brenda.Edwards@ee.doe.gov.

SUPPLEMENTARY INFORMATION: This final rule incorporates by reference 
into part 430, the following industry standards:
    (1) ANSI Z21.50-2007 (CSA 2.22-2007), (``ANSI Z21.50''), ``Vented 
Gas Fireplaces,'' Approved February 22, 2007.
    (2) ANSI Z21.88-2009 (CSA 2.33-2009), (``ANSI Z21.88''), Vented Gas 
Fireplace Heaters,'' Approved March 26, 2009.
    Copies of these standards are available from the American National 
Standards Institute, 11 West 42nd Street, New York, New York 10036, 
(212) 642-4936, or at http://webstore.ansi.org/. You can also view 
copies of these standards at the U.S. Department of Energy, Resource 
Room of the Building Technologies Program, 950 L'Enfant Plaza SW., 6th 
Floor, Washington, DC 20024, (202) 586-2945, between 9 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

Table of Contents

I. Summary of the Final Rule and Its Benefits
II. History of the Energy Conservation Standards Rulemaking and 
Current Standards
III. Discussion
    A. Scope of Coverage of Vented Hearth Products
    1. Description of Vented Hearth Products
    2. Definitions for ``Direct Heating Equipment''
    B. Amended Definition for ``Vented Hearth Heater''
    1. Description of Criteria for Classification as Decorative 
Vented Hearth Products
    a. Vented Gas Log Sets
    b. Vented Hearth Products
    C. National Energy Savings
    D. Other Comments
    1. Test Procedures
    2. DOE Analysis and Public Meeting Conduct
    3. Impacts of Proposed Definition
    a. Consumer Choice
    b. Energy Savings
    c. Environmental Impacts
    d. Impacts on Manufacturers
    4. Procedural Requirements
    5. Product Characteristics
    6. Requests To Delay or Discontinue Rulemaking
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under the Information Quality Bulletin for Peer Review
    M. Congressional Notification
V. Approval of the Office of the Secretary

I. Summary of the Final Rule and Its Benefits

    Title III, Part B \1\ of the Energy Policy and Conservation Act of 
1975 (EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as 
codified), established the Energy Conservation Program for Consumer 
Products Other Than Automobiles, which includes the types of direct 
heating equipment that are the subject of this rulemaking. (42 U.S.C. 
6292(a)(9)) Pursuant to EPCA, any new or amended energy conservation 
standard that DOE prescribes for certain products, such as direct 
heating equipment, shall be designed to achieve the maximum improvement 
in energy efficiency that DOE determines is technologically feasible 
and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the 
new or amended standard must result in significant conservation of 
energy. (42 U.S.C. 6295(o)(3)(B)) On April 16, 2010 DOE published a 
final rule (hereafter

[[Page 71837]]

referred to as the April 2010 final rule) in accordance with these and 
other statutory provisions discussed in that final rule, which, in 
relevant part, promulgated definitions and energy conservation 
standards for vented gas hearth direct heating equipment. 75 FR 20112.
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    \1\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
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    In establishing the definitions pertaining to direct heating 
equipment in the April 2010 final rule, DOE recognized the aesthetic 
appeal of certain gas hearth products and included a provision in its 
definition of ``vented hearth heater'' that considered certain gas 
hearth products to be primarily decorative in nature, and excluded them 
from having to comply with DOE's minimum energy conservation standard 
otherwise applicable to vented gas hearth direct heating equipment. The 
April 2010 final rule did not address vented gas log sets. DOE 
clarified its position on vented gas log sets in a document published 
on DOE's Web site titled ``Frequently Asked Questions: `Vented Hearth 
Heater' Definition.'' \2\ However, based upon manufacturer concerns 
expressed subsequent to the publication of the April 2010 final rule, 
DOE commenced the current rulemaking to consider changes to the scope 
of the exclusion in order to achieve greater energy savings, promote 
consumer product choice, and ease manufacturer burdens.
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    \2\ This document is available on DOE's Web site at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/htgp_finalrule_faq.pdf.
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    Accordingly, in this final rule, DOE further amends its definitions 
pertaining to direct heating equipment. Specifically, DOE is amending 
its definition of ``vented hearth heater'' to modify the conditions 
contained in the existing definition for the subset of such products to 
be considered primarily decorative in nature and, therefore, not 
subject to the DOE's minimum energy conservation standards for vented 
hearth heaters. As an initial matter, DOE is providing clarification 
that vented gas log sets are included in the definition of ``vented 
hearth heater''; DOE has reached this conclusion because of the 
similarities between vented gas log sets and other types of gas hearth 
products. Vented gas log sets and other vented hearth products provide 
heat for consumers, and they have certain similar characteristics, such 
as the presence of a flame and ceramic logs. These products may also 
have an aesthetic appeal. However, due to ambiguity in the gathered 
data for vented gas log sets indentified by stakeholders at the public 
meeting for this rulemaking and in subsequent written comments, DOE has 
decided not to subject vented gas log sets to the energy conservation 
standards for vented hearth heaters at this time. Commenters also 
suggested that further consideration would need to be given to the 
applicability of the test procedure for vented home heating equipment 
and the potential for test procedure provisions tailored to vented gas 
log sets. Consequently, DOE has determined that additional analysis 
would be necessary to address vented gas log sets, a topic which DOE 
may address in a new proceeding in the context of a future rulemaking.
    Turning to the matter of vented hearth products, the definition of 
``vented hearth heater'' in the April 2010 final rule stated that 
``[t]hose heaters with a maximum input capacity less than or equal to 
9,000 British thermal units per hour (Btu/h), as measured using DOE's 
test procedure for vented home heating equipment (10 CFR part 430, 
subpart B, appendix O), are considered purely decorative and are 
excluded from DOE's regulations.'' 75 FR 20112, 20234 (April 16, 2010). 
In this final rule, DOE is amending the definition for ``vented hearth 
heater'' to explicitly provide that vented gas log sets are not being 
made subject to standards at this time, and to base the exclusion for 
primarily decorative vented hearth products on several criteria, 
including the American National Standards Institute (ANSI) standard to 
which the product is certified. The amended definition at 10 CFR 430.2 
being adopted by today's final rule is set forth in the regulatory 
text. More specifically, the amended definition states that the 
standards for vented hearth heaters are not applicable to vented gas 
log sets at this time. It also provides that vented hearth products are 
excluded from the vented hearth heat standards if they are: (1) 
Certified to ANSI Standard Z21.50, but not to ANSI Standard Z21.88; (2) 
sold without a thermostat and with a warranty provision expressly 
voiding all manufacturer warranties in the event the product is used 
with a thermostat; (3) expressly and conspicuously identified on its 
rating plate and in all manufacturer's advertising and product 
literature as a ``Decorative Product: Not For Use As A Heating 
Appliance''; and (4) with respect to products sold after January 1, 
2015, not equipped with a standing pilot light or other continuously-
burning ignition source.
    DOE believes the amended definition of ``vented hearth heater'' 
will provide benefits to both consumers and the gas hearth products 
industry in terms of energy savings and product choice, by allowing 
manufacturers to continue to offer primarily decorative hearth products 
across a broad range of input ratings, rather than limiting primarily 
decorative hearth products to input ratings below the current 
limitation of 9,000 Btu/h. By eliminating the use of standing pilot 
lights in all primarily decorative vented gas hearth products under the 
exclusion beginning on January 1, 2015, DOE believes the amended 
definition will result in a significant increase in overall energy 
savings, including for those types of units eligible for the primarily 
decorative products exclusion. At the same time, this rule will lessen 
the impacts and burden on manufacturers of vented hearth heaters, while 
promoting a variety of available models for consumers. For vented gas 
log sets, the amended definition classifies this product as a type of 
vented hearth heater because of the similarities to other vented hearth 
products (primarily because they provide some amount of heat to the 
living space). However, the amended definition does not require 
manufacturers of vented gas log sets to meet a minimum energy 
conservation standard at this time or to meet any criteria to qualify 
for exclusion from the standards for gas hearth direct heating 
equipment (i.e., vented hearth heaters). DOE estimates that the 
elimination of standing pilot lights in primarily decorative vented 
hearth heater products would result in an additional 0.04 quads of 
additional energy savings over the 30-year period from 2015 through 
2044, beyond those savings already achieved by the April 2010 final 
rule. (See section III.C for details on DOE's energy savings 
estimates.) Manufacturers of vented hearth products who choose not to 
avail themselves of the exclusion will be subject to the energy 
conservation standards for vented hearth heaters promulgated in the 
April 2010 final rule. (As noted above, these amendments clarify that 
manufacturers of vented gas log sets will not be subject to the energy 
conservation standards for vented hearth heaters promulgated in the 
April 2010 final rule.)
    Therefore, DOE has concluded that the amended definition of 
``vented hearth heater'' will improve the existing definitions 
pertaining to direct heating equipment and will further clarify the 
scope of the current exclusion from the energy conservation standards 
for those vented hearth heaters that are primarily decorative hearth 
products. In addition, the rule will result in significant additional 
energy savings, preserve consumer choice, and reduce the

[[Page 71838]]

burden on industry. For these reasons, DOE has concluded that the 
amendments to DOE's definition of ``vented hearth heater'' provide 
substantial benefits that outweigh the burden of the new requirements 
for products to be considered primarily decorative hearth products, and 
accordingly, DOE adopts them in this rule. DOE's rationale is presented 
in further detail immediately below.

II. History of the Energy Conservation Standards Rulemaking and Current 
Standards

    Prior to being amended in 1987, EPCA included home heating 
equipment as covered products. The amendments to EPCA effected by the 
National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100-
12) included replacing the term ``home heating equipment'' with 
``direct heating equipment,'' establishing standards for the direct 
heating equipment, and requiring that DOE determine whether these 
standards should be amended. (42 U.S.C. 6295(e)(3)-(4)) Nowhere in the 
statute is the term ``direct heating equipment'' defined. DOE amended 
the statutorily-prescribed standards for direct heating equipment for 
the first time in the April 2010 final rule by prescribing the current 
energy conservation standards for direct heating equipment manufactured 
on or after April 16, 2013. 75 FR 20112 (April 16, 2010). Of particular 
relevance here, the April 2010 final rule created a definition for 
``vented hearth heater,'' established product classes for gas hearth 
direct heating equipment (i.e., vented hearth heaters), and amended the 
minimum standards for direct heating equipment, including gas hearth 
direct heating equipment. The April 2010 final rule defined ``vented 
hearth heater'' as currently set out in 10 CFR 430.2. The definition 
adopted in the April 2010 final rule provided a description of the 
characteristics of vented hearth heaters, and also provided that vented 
hearth products with a maximum input capacity less than or equal to 
9,000 British thermal units per hour would be excluded from DOE's 
regulations due to their primarily decorative nature.
    In addition, the April 2010 final rule amended the definition of 
``vented home heating equipment or vented heater'' to include vented 
hearth heaters, along with the other types of heaters (i.e., vented 
wall furnace, vented floor furnace, and vented room heater) that were 
already defined as vented home heating equipment. Id.
    The amended standards established in the April 2010 final rule for 
gas hearth direct heating equipment are set forth in Table II.1.

  Table II.1--Federal Energy Efficiency Standards for Gas Hearth Direct
                            Heating Equipment
------------------------------------------------------------------------
                                        Standard level (compliance date:
            Product class                          4/16/2013)
------------------------------------------------------------------------
Gas hearth up to 20,000 Btu/h........  AFUE* = 61%.
Gas hearth over 20,000 Btu/h and up    AFUE = 66%.
 to 27,000 Btu/h.
Gas hearth over 27,000 Btu/h and up    AFUE = 67%.
 to 46,000 Btu/h.
Gas hearth over 46,000 Btu/h.........  AFUE = 68%.
------------------------------------------------------------------------
* Annual Fuel Utilization Efficiency.

    Following DOE's adoption of the April 2010 final rule, the Hearth, 
Patio & Barbecue Association (HPBA) sued DOE in the United States Court 
of Appeals for the District of Columbia Circuit to invalidate the rule 
as it pertained to vented gas hearth products. Statement of Issues to 
Be Raised, Hearth, Patio, & Barbecue Association v. Department of 
Energy, et al., No. 10-1113 (DC Cir. filed June 1, 2010). Litigation is 
pending; however, this final rule may make it unnecessary for the Court 
to resolve some of the issues surrounding the April 2010 final rule.
    DOE commenced this latest round of rulemaking for residential 
direct heating equipment on July 22, 2011 by publishing in the Federal 
Register a notice of public rulemaking (NOPR) and announcement of a 
public meeting to discuss the document. The NOPR proposed to amend the 
definition of ``vented hearth heater'' to clarify that vented gas log 
sets are covered products, and to specify a set of criteria for vented 
hearth products and vented gas log sets that would allow them to be 
considered primarily decorative units and thereby excluded from having 
to comply with the standards for gas hearth direct heating equipment 
adopted in the April 2010 final rule. DOE held a public meeting on 
September 1, 2011, in which it: (1) Presented the contents of the NOPR; 
(2) sought comments from interested parties on these subjects; and (3) 
in general, sought to inform interested parties about, and facilitate 
their involvement in, the rulemaking. Major issues discussed at the 
public meeting included: (1) The proposed exclusion requirements for 
gas log sets; (2) the physical and performance differences between gas 
log sets and other vented hearth heaters; (3) the compliance date for 
the energy conservation standards set forth in the April 2010 final 
rule; (4) the proposed compliance date for eliminating standing pilot 
lights under the proposed exclusion; (5) DOE's authority to cover 
primarily decorative hearth products; and (6) DOE's national energy 
savings (NES) analysis. At the meeting and during the comment period on 
the NOPR, DOE received many comments that helped it identify and 
resolve issues pertaining to the direct heating equipment relevant to 
this rulemaking. The comments received and DOE's responses are 
discussed in the section immediately below.

III. Discussion

A. Scope of Coverage of Vented Hearth Products

1. Description of Vented Hearth Products
    Vented hearth products include gas-fired products such as 
fireplaces, fireplace inserts, stoves, and log sets that typically 
include aesthetic features (e.g., yellow flame, large flame) and that 
provide space heating. Vented hearth products such as fireplaces, 
fireplace inserts, and stoves typically consist of ceramic logs and a 
gas burner that is surrounded by an enclosure, whereas vented gas log 
sets consist only of ceramic logs and a gas burner intended for 
installation in an existing masonry fireplace. Vented hearth products 
generally have a dual heating and aesthetic function, as consumers 
derive benefit from both the heat provided and the aesthetic appeal of 
a product that simulates a wood-burning appliance. Characteristic of 
this duality of purpose, units intended for use as a heating appliance 
and those units intended

[[Page 71839]]

primarily to be used as a decorative product often share very similar 
external appearances, unit construction, and input capacities, thereby 
making it difficult to differentiate between the two types of hearth 
products. DOE notes that the primary difference between the two types 
of vented hearth heaters is that primarily decorative units focus on 
ambiance and aesthetic utility associated with a solid fuel (e.g., 
wood-burning) fireplace in addition to heat output to the living space, 
whereas heating hearth products tend to focus on providing heat to the 
living space, but also provide some amount of ambiance not provided by 
a utilitarian heating device. Products intended for use as a heater are 
often shipped with or designed to be easily retrofitted with additional 
accessories that primarily decorative products do not have, such as 
thermostats to control the heat output. However, DOE research has shown 
that such accessories are typically optional and, thus, not definitive 
in distinguishing between heaters and primarily decorative units. In 
the July 2011 NOPR, DOE concluded that all vented hearth products 
constitute direct heating equipment where a gas-consuming device that 
generates a flame and gives off heat is inserted into the residential 
living space. 76 FR 43941, 43944-45 (July 22, 2011). Many interested 
parties have noted that decorative products are intended primarily for 
aesthetic use (as discussed in section III). However, DOE believes that 
regardless of whether the product is intended to provide only aesthetic 
appeal, by design, the product will generate heat due to the presence 
of the flame, and some of that heat will be transferred to the space. 
Indeed (as discussed further in section III), many interested parties 
have conceded that vented hearth products intended primarily for 
decorative use and vented gas log sets are an effective supplemental or 
emergency heat source, providing further justification for their 
inclusion as a type of covered direct heating equipment.
    In response to DOE's interpretation of its authority under EPCA 
regarding direct heating equipment, several interested parties stated 
that decorative hearth products and vented gas log sets are outside the 
scope of DOE's authority under EPCA. DOE's interpretation of its 
authority under EPCA, as well as the comments on DOE's authority as it 
pertains to EPCA's and DOE's definitions related to direct heating 
equipment, are discussed in the sections that immediately follow.
2. Definitions for ``Direct Heating Equipment''
    As discussed in section II, before the enactment of NAECA, EPCA 
included ``home heating equipment'' in DOE's appliance standards 
program. EPCA did not define ``home heating equipment,'' however. 
NAECA's amendments to EPCA replaced the term ``home heating equipment'' 
with ``direct heating equipment,'' and specified energy conservation 
standards for ``direct heating equipment,'' but once again, the statute 
did not define the term ``direct heating equipment.'' In the absence of 
an unambiguous statutory term, DOE has discretion to establish a 
reasonable regulatory definition. With that said, Congress's use of 
such broad terminology signals that the definition is open to 
accommodate future technological changes in the marketplace in keeping 
with DOE's energy-saving mandate under EPCA.
    Prior to the April 2010 final rule, DOE had previously defined 
``home heating equipment'' and related terms in its regulations, which 
can be found at 10 CFR 430.2. In the April 2010 final rule, DOE added a 
new definition of ``direct heating equipment,'' defining the term in 
the same manner that it had previously defined ``home heating 
equipment.'' 75 FR 20112, 20128, 20234 (April 16, 2010). DOE defines 
both ``home heating equipment'' and ``direct heating equipment'' as 
meaning ``vented home heating equipment and unvented home heating 
equipment.'' In its definitions at 10 CFR 430.2, DOE goes on to define 
both ``vented home heating equipment'' and ``unvented home heating 
equipment.'' Prior to being amended in the April 2010 final rule, the 
definition of ``vented home heating equipment,'' relevant here, read as 
set out in 10 CFR, parts 200-499, revised as of January 1, 2010, and 
did not explicitly include vented hearth heaters.
    In the April 2010 final rule, DOE concluded that vented hearth 
products (i.e., gas-fired products such as fireplaces, fireplace 
inserts, and stoves) meet its definition of ``vented home heating 
equipment,'' because their designs furnish heat to the living space of 
a residence. DOE also concluded, therefore, that they are covered 
products under EPCA and are properly classified as direct heating 
equipment. 75 FR 20112, 20128 (April 16, 2011). Accordingly, DOE 
adopted a new definition of ``vented hearth heater'' and amended its 
definition of ``vented home heating equipment or vented heater'' at 10 
CFR 430.2 to explicitly include vented hearth heaters, reading as 
currently set out in 10 CFR 430.2.
    In the April 2010 final rule, DOE did not specifically address 
vented gas log sets under the broader classification of direct heating 
equipment. However, given their primarily decorative nature, DOE 
published a document on DOE's Web site titled ``Frequently Asked 
Questions: `Vented Hearth Heater' Definition.'' \3\ In that document, 
DOE stated that because gas log sets are not constructed as part of an 
entire enclosure (i.e., there is no surrounding box or viewing pane) or 
a sealed system, they do not provide the same heating function as gas 
fireplaces, gas fireplace inserts, and gas stoves, which are 
constructed as enclosed systems. Due to these differences, DOE stated 
that vented gas log sets are intended to be installed for primarily 
decorative purposes, and as a result, are not subject to the standards 
for vented hearth heaters. Upon reconsidering the definitions of 
``direct heating equipment,'' ``vented home heating equipment,'' and 
``vented hearth heater,'' DOE determined in the July 2011 NOPR that 
vented gas log sets are heating appliances and proposed to explicitly 
include them under DOE's definitions. 76 FR 43941, 43945 (July 22, 
2011). DOE noted in the July 2011 NOPR that this approach is consistent 
with DOE's treatment of vented hearth products that provide both heat 
and aesthetic appeal. Id.
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    \3\ This document is available on DOE's Web site at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/htgp_finalrule_faq.pdf.
---------------------------------------------------------------------------

    Further, in the July 2011 NOPR, DOE noted that the terminology 
``designed to furnish warmed air'' in the definition of ``vented home 
heating equipment'' is not limited to furnishing warmed air through 
mechanical means by expelling or discharging such air, but can also 
refer to furnishing heat which warms the living space air through any 
method of heat transfer. Because of the very nature of hearth products 
(i.e., the presence of a flame), all hearth products create heat, and 
hearth products provide some amount of that heat to the surrounding 
living space, including radiant heat. As a result, DOE concluded that 
all vented hearth products and vented gas log sets are designed to 
furnish heat, regardless of whether they have a mechanical means for 
furnishing the air (such as a blower) or grills through which the warm 
air can be circulated via natural convection. Because vented gas log 
sets and primarily decorative vented hearth products will provide some 
amount of heat to the living space, DOE concluded in the July 2011 NOPR 
that all primarily

[[Page 71840]]

decorative vented hearth products and vented gas log sets are designed 
to furnish heat and, thus, are a subset of vented hearth heaters. 76 FR 
42941, 43944-45 (July 22, 2011).
    DOE received several comments related to its authority to cover 
hearth products as direct heating equipment under EPCA. Lennox stated 
that it did not believe DOE has established its statutory authority to 
regulate decorative gas fireplaces, and requested that DOE substantiate 
its authority. (Lennox, No. 6 at p. 1) The National Propane Gas 
Association (NPGA) stated that decorative hearth products existed at 
the time both EPCA and NAECA were enacted, and these products were not 
intended to be covered. Further, NPGA stated that EPCA specifically 
identifies which products are within the scope of the term ``direct 
heating equipment'' and that neither decorative hearth products nor 
decorative gas log sets are within the scope, and the commenter 
asserted EPCA only provided DOE with the authority to amend the current 
standards and not to impose standards on decorative gas log sets. 
(NPGA, No. 209 at pp. 1-3) The American Public Gas Association (APGA) 
concurred with NPGA's statements. (APGA, No. 223 at p. 1) Similarly, 
HPBA stated that DOE cannot lawfully categorize decorative hearth 
products as direct heating equipment because at the time these 
categorizations were made, fireplaces and gas log sets existed but were 
recognized as entirely different categories of products. HPBA commented 
that when interpreting a statute, DOE must give effect to the 
unambiguously expressed intent of Congress, and that the suggestion 
that the definition of ``direct heating equipment'' should be open to 
accommodate future technological changes in the marketplace does not 
apply here, since both decorative vented gas fireplaces and gas log 
sets existed at the time Congress addressed direct heating equipment in 
the statute. (HPBA, No. 201 at pp. 12-14) The American Gas Association 
(AGA) also stated that they did not believe that decorative hearth 
products and gas log sets were included in the original intent of 
Congress when establishing authority for direct heating equipment 
products designed to furnish warm air. (AGA, Public Meeting Transcript, 
No. 14 at pp. 85-86) AGA elaborated that decorative products were not 
included in the negotiations and discussions for amending the standards 
for direct heating equipment at the time leading up to the enactment of 
NAECA. (AGA, Public Meeting Transcript, No. 14 at pp. 94-95) The Air-
conditioning, Heating, and Refrigeration Institute (AHRI) stated that 
even though there was not a formal definition created for ``direct 
heating equipment'' in NAECA, decorative hearth products and gas log 
sets were purposefully not identified as being a part of the direct 
heating equipment standards, even though the products existed at the 
time. (AHRI, Public Meeting Transcript, No. 14 at pp. 91-92)
    In contrast, the Natural Resources Defense Council (NRDC) and 
EarthJustice stated that EPCA does not define the term ``direct heating 
equipment,'' although it directs DOE to regulate the efficiency of such 
equipment, and that EPCA's silence on the precise meaning of the term 
leaves it to DOE's discretion to interpret the scope of products that 
constitute direct heating equipment. Further, NRDC and EarthJustice 
commented that there is no basis in the language of EPCA for asserting 
that Congress intended to restrict DOE's authority when applying 
standards to vented hearth heaters. (NRDC and EarthJustice, No. 216 at 
p. 1)
    DOE cannot attempt to interpret the intent of Congress based on 
unsubstantiated assertions of what individual parties may have 
believed. Rather, DOE must interpret its authority with respect to 
direct heating equipment under EPCA based on what is written in the 
statute. As discussed above, EPCA does not define the term ``direct 
heating equipment.'' Thus, the statute is ambiguous regarding what 
Congress may have intended to include as direct heating equipment. DOE 
had previously defined ``direct heating equipment'' as a class of home 
heating equipment that is designed to furnish warmed air to the living 
space of a residence. Given the lack of a statutory definition for 
``direct heating equipment'' in EPCA, DOE provided its interpretation 
in the April 2010 final rule and established its authority to cover 
hearth products as direct heating equipment (i.e., as a class of home 
heating equipment that is designed to furnish warmed air to the living 
space of a residence). 75 FR 20112, 20128-30 (April 16, 2010). To 
restate its earlier conclusion, because virtually all hearth products 
(including those identified as ``decorative'' by industry) supply some 
amount of heat to the living space, DOE believes it is eminently 
reasonable to conclude that these products are direct heating equipment 
under EPCA. As a result, DOE maintains its position that these are 
covered products.
    DOE also received several comments from interested parties in 
response to the July 2011 NOPR regarding the definitions of ``direct 
heating equipment'' as they apply to primarily decorative hearth 
products and vented gas log sets based on the characteristics and use 
of those products.
    HPBA stated that DOE's proposed interpretation that decorative 
vented hearth products are direct heating equipment is unreasonable, 
because they are not heating products and their appeal is aesthetic. 
Furthermore, HPBA contended that the NOPR's statement that it is 
``difficult to differentiate between'' the two is misleading. HPBA 
pointed to the fact that heating hearth products are designed and sold 
as aesthetically-appealing products that can also serve as efficient 
utilitarian heating appliances. HPBA elaborated that these products are 
designed for heating efficiency, are heater-rated, and are sold on the 
basis of heating efficiency as well as aesthetic appeal. The commenter 
stated decorative hearth products, on the other hand, are designed and 
sold for aesthetic appeal and not for heating efficiency. HPBA stated 
that many such products--including both gas log sets and decorative 
vented gas fireplaces--are not a significant source of heat and would 
not be effective for utilitarian heating use. Additionally, HPBA 
asserted DOE's statement that products are to be classified as direct 
heating equipment if they ``provide some amount of heat to the living 
space'' is confusing, since many products (such as kitchen ovens, 
refrigerators, and desktop computers) provide heat but are not 
considered direct heating equipment, and that classifying gas logs as 
such is particularly unreasonable since it conflicts with DOE's prior 
interpretation. (HPBA, No. 201 at pp. 17-18) R.H. Peterson stated that 
their gas log sets are designed to provide a realistic simulation of a 
wood burning fire in a wood burning fireplace, not to provide heat. 
(R.H. Peterson, Public Meeting Transcript, No. 14 at p. 39) Similarly, 
a number of other interested parties commented that decorative hearth 
products should not be considered heating products because they are 
designed for ambiance and/or their primary purpose is not to provide 
heat. (Small Business Administration (SBA), No. 96 at p. 2; Big Woods, 
No. 3 at p. 1; Lennox Hearth Products, No. 6 at p. 1; Homefires, No. 10 
at p. 1; Advantage, No. 13 at p. 1; Empire, Public Meeting Transcript, 
No. 14 at p. 60 and No. 221 at p. 2; Crick-IT, No. 15 at p. 1; Sun 
Dance Leisure, No. 17 at pp. 1-2; Mazzeos, No. 16 at p. 1; Dealers LP 
Equipment, No. 20 at p. 1; Creekside Hearth and Patio, No. 21 at p. 1; 
Barbara Jenkins, No. 22 at p. 1; Fairview, No. 25

[[Page 71841]]

at p. 1; HWAM, No. 43 at p. 1; American Gas Log, No. 49 at p. 1; LF 
Pugh and Associates, No. 76 at p. 1; Siouxland No. 85 at p. 1; Thompson 
Gas, No. 95 at p. 1; Percy Guidry Hearth and Patio, No. 18 at p. 1; 
Perfection, No. 115 at p. 2; Penn Valley, No. 116 at p. 2; Sheldon 
Skolnick Associates, No. 118 at p. 1; Hearth & Home, Inc., No. 144 at 
p. 2, Gas-fired Products, No. 155 at p. 1; Oahu Gas Service, No. 166 at 
p. 1; Short's Stoves, No. 174 at p. 1; Thompson Gas, No. 191 at p. 1; 
Plumbing-Heating-Cooling Contractors Association (PHCC), No. 199 at p. 
1; Hearth & Home Technologies, No. 204 at p. 3; Hearth and Home Shoppe, 
No. 207 at p. 1; Rasmussen, No. 208 at p. 1; Golden Blount, No. 210 at 
p. 1; Independence Marketing, No. 214 at p. 1; Hearth and Home 
Technologies, No. 204 at p. 3; Mike Rogers, No. 225 at p. 1; Fred 
Pierce, No. 219 at p. 1; Form Letter Comments; \4\ Jack's Butane 
Service, No. 23 at p. 1; NPGA, Public Meeting Transcript, No. 14 at pp. 
30-31) AGA stated that the current statutory provisions for direct 
heating equipment do not cover hearth products as vented hearth 
heaters, because the primary purpose of hearth products is ambiance. 
(AGA, No. 217 at p. 1) Firelight Services, Top Hat Chimney Sweeps, and 
East Texas Brick Company stated that vented gas log sets are not sold 
or advertised as heaters and should not be treated as such. (East Texas 
Brick Co., No. 135 at p. 1; Top Hat, No. 168 at p. 1; Firelight, No. 
206 at p. 1; Arizona Gas, No. 98 at p. 3)
---------------------------------------------------------------------------

    \4\ DOE received a large number of comments from AmeriGas and 
Ferrellgas employees, which DOE refers to collectively as the ``Form 
Letter Comments.'' Although each comment was slightly different, 
these comments generally expressed the same ideas. Therefore, DOE 
cites them all together, when the same thought is contained in more 
than one comment. If a commenter from AmeriGas or Ferrellgas made a 
point that was unique to their comment, DOE cited that comment 
individually.
---------------------------------------------------------------------------

    Empire stated that it is not reasonable for DOE to assume that 
because a product uses energy and has heat as a byproduct, that it can 
be regulated the same as another product which is designed, certified, 
and currently regulated as a direct heating product. (Empire, Public 
Meeting Transcript, No. 14 at p. 60) Similarly, HPBA stated that 
decorative hearth products cannot be classified as direct heating 
equipment simply because such units provide some amount of heat to the 
living space, because many other products such as kitchen stoves, 
refrigerators, and incandescent light bulbs also provide some amount of 
heat to the living space, and clearly, they are not direct heating 
equipment. (HPBA, Public Meeting Transcript, No. 14 at p. 19) Heritage 
Propane commented that decorative hearth products produce heat 
indirectly like blenders or refrigerators that produce incidental heat 
by their operation. (Heritage Propane, No. 33 at p. 1) HPBA stated that 
DOE's interpretation that a product may be classified as direct heating 
equipment independent of the manufacturer's principle intention in 
designing, manufacturing, and marketing the product, is irrational in 
the context of efficiency regulation because, by definition, the 
efficiency of a product can be determined only in reference to how 
efficiently it serves its intended purpose. (HPBA, Public Meeting 
Transcript, No. 14 at p. 19)
    Specifically regarding vented gas log sets, Jeff Simmons stated 
that vented gas logs should not be considered direct heating equipment, 
because they do not generate a net gain of heat since any heat produced 
by the fire is balanced by the heat going up the vent or chimney 
(Simmons, No. 24 at p. 1) Big Woods stated that vented gas log sets 
cannot be made to be an efficient heater. (Big Woods, No. 3 at p. 1) 
Rasmussen stated that gas log sets should not be categorized as gas 
fireplace appliances, a term which encompasses heater-rated and 
decorative fireplaces, because gas log sets have the distinguishing 
characteristic of not being constructed as part of an entire enclosure 
with a surrounding box, viewing pane, or sealed system, as noted by DOE 
in the Frequently Asked Questions (FAQ) published for hearth products 
after the April 2010 final rule. (Rasmussen, Public Meeting Transcript, 
No. 14 at p. 68) U.S. Congresswoman Grace Napolitano stated that DOE 
was correct in the April 2010 rulemaking that interpreted the 
definition of vented hearth heater as not covering vented gas log sets. 
(Grace Napolitano, No. 224 at p. 1) NRDC and EarthJustice stated that 
there is no rational basis for treating gas log sets differently than 
vented gas fireplace, because both types of products are designed to 
furnish warmed air to the living space of a residence, and noted that 
during the September 1, 2011 hearing, manufacturers of gas log sets 
conceded that one of the functions of their products was to convey heat 
to the living space. (NRDC and EarthJustice, No. 216 at pp.1-2)
    DOE also received a number of comments describing the heating 
aspect of primarily decorative hearth products and vented gas log sets. 
Intertek commented that primarily decorative hearth products are 
designed for ambiance and produce heat indirectly, and explained that 
although primarily decorative products are usually designed to produce 
as little heat as possible, some customers do use primarily decorative 
products as secondary or back-up heat sources. (Intertek, No. 198 at p. 
2) Intertek stated that gas log sets designed to be installed in wood 
burning fireplaces produce low but highly variable net heat output, 
which depends on the specific fireplace geometry, materials, chimney 
and damper, duration of operation, and outdoor temperature. (Intertek, 
No. 198 at p. 2) Rasmussen stated that the heat emitted by gas log sets 
is not solely under the control of the manufacturer, but also depends 
on the efficiency of the fireplace in which it is installed, the 
ambient temperature inside and outside the house, the level at which 
the consumer burns the gas log, and the height of the flame. 
(Rasmussen, Public Meeting Transcript, No. 14 at p. 75) Rasmussen also 
stated that consumers use gas log sets in vented wood-burning 
fireplaces as appliances for ambiance with a secondary function of 
warmth, and that gas log sets can be used as a source of emergency 
warmth in case of power outages, which disable electric heat pumps. 
(Rasmussen, Public Meeting Transcript, No. 14 at p. 76) Rasmussen 
stated that the residual heat benefit is an extra feature that 
sometimes helps out in times of power outages during ice storms, but 
that people are not going to use these feature as the primary means of 
warming. (Rasmussen, Public Meeting Transcript, No. 14 at p. 160) 
Bradley Hughes of AmeriGas stated that primarily decorative vented gas 
appliances are for ambiance and only used as supplements for the main 
heat source in the home. (Bradley Hughes, No. 117 at p. 2) Similarly, 
Don Leonard of AmeriGas remarked that many customers used primarily 
decorative direct vent fireplaces to augment other sources of heating, 
and that primarily decorative fireplaces work nicely as an area heater. 
(Don Leonard, No. 52 at p. 1) C.J. Ellson of AmeriGas commented that 
thousands of Arizonans use gas log sets and fireplaces to offset their 
primary furnaces. (C.J. Ellson, No. 47 at p. 1) Titan commented that 
primarily decorative hearth products are useful as a back-up source of 
heat in the case of power outages. (Titan Propane, No. 220 at p. 1)
    NRDC and EarthJustice stated that it may be appropriate for DOE to 
recognize an exclusion from the standards for direct heating products 
that are designed and marketed to provide a decorative amenity; 
however, the

[[Page 71842]]

existence of this decorative aspect does not eliminate the fact that 
these products also serve a heating function and are accordingly 
classified as direct heating equipment. (NRDC and EarthJustice, No. 216 
at pp. 1-2) The Appliance Standards Awareness Project (ASAP) stated 
that with the exclusion criteria, DOE is trying to close loopholes in 
which non-decorative products could qualify for the exclusion. (ASAP, 
Public Meeting Transcript, No. 14 at p. 113) EarthJustice stated that 
since DOE already had an efficiency standard in place for vented hearth 
heaters, it needed to find a way to distinguish units that should 
follow those standards versus primarily decorative ones that are not 
required to follow the standards. (EarthJustice, Public Meeting 
Transcript, No. 14 at pp. 96-97)
    As noted previously, DOE recognizes that certain vented hearth 
products may be intended to be primarily decorative in nature. However, 
DOE also believes that intended product use is not a dispositive factor 
in determining whether the product is direct heating equipment. By 
their nature, all gas hearth products have a flame and are installed in 
the living space. As a result, they will give off heat to the living 
space, meaning they meet the applicable definitions for ``direct 
heating equipment'' and qualify as direct heating equipment under the 
statute regardless of the duality of function (i.e., providing an 
aesthetic aspect in addition to a heating benefit). As noted by several 
interested parties within the industry, products such as vented gas log 
sets and primarily decorative hearth products are often used by 
consumers as a supplemental, secondary, or emergency heat source. 
Regarding assertions that other products in the living space (such as 
refrigerators, light bulbs, etc.) provide heat to the space, but are 
not regulated as direct heating equipment, DOE notes that many of these 
products are already regulated for energy efficiency under EPCA, and 
offer ready metrics for quantifying energy efficiency. Further, DOE 
notes that none of the ``analogous'' products seek to avoid regulation 
as heating equipment, while claiming to simulate a product (wood-
burning fireplace) that is itself a heater (even if not regulated).
    As noted above, a manufacturer's stated intent for the use of a 
product is not dispositive in determining whether that product is a 
covered product under EPCA. Even if such intent were to be considered, 
DOE examined the marketing literature for these products and, contrary 
to HPBA's assertions, found that it is often ambiguous about whether a 
product is intended for use as a heater or is solely decorative 
equipment. For example, DOE found that Rasmussen markets a line of gas 
log sets named the Chillbuster ``Heat Effect'' Gas Log Heaters under 
the trade name ``Nice and Warm.'' \5\ DOE found that the product 
literature for this particular product indicates that these gas log 
sets can be used either as an unvented or vented gas log set. In 
unvented gas log sets, most of the heat will go into the space in which 
the product is installed (because none of the heat is vented up the 
flue as with vented products), while vented gas log sets are recognized 
as more decorative in nature because some percentage of the heat energy 
escapes through the flue; however, the product literature and 
installation manual do not clearly indicate that the gas log set will 
only provide a heating function when it is used as an unvented set, and 
is not achieved when the product is used as a vented gas log set. The 
literature points out that the product is a good source of supplemental 
heat and seems to suggest a potential method to configure the damper of 
the chimney, to allow it to maximize the maintenance of heat when 
operating in a vented mode. Further, DOE notes that the installation 
manual for this product refers to it as a ``heater'' when providing 
instructions for both vented and unvented installation.\6\ DOE also 
reviewed the product literature for the Mantis by Empire Comfort 
Systems, which is a high-efficiency hearth heater and is obviously 
intended to be used as a heater.\7\ In fact, the manufacturer promotes 
the fact that this product has an annual fuel utilization efficiency 
applicable to other types of vented home heating equipment. However, 
DOE found that this product is marketed similarly to many 
``decorative'' products, in that the product literature shows the 
product installed in the living space, with many optional decorative 
features such as a mantle surround or copper metallic wall surround. 
Moreover, the marketing materials for this heating product made direct 
statements about the ``ambiance'' that the unit achieves. Such 
ambiguities in product marketing literature make it difficult to 
determine whether the hearth products are intended for heating or are 
intended to be used for ambiance. Further, given that both ``heating'' 
and ``decorative'' vented hearth products are capable of providing both 
heat and ambiance, it is often difficult to determine which function is 
primary and which is secondary when reviewing manufacturer literature.
---------------------------------------------------------------------------

    \5\ For more information, see: http://www.rasmussen.biz/logs/chill.html (last accessed 11/8/2011).
    \6\ For more information, see: http://www.rasmussen.biz/logs/pdf/C1.DFC1.203.pdf (last accessed 11/8/2011).
    \7\ For more information, see: http://www.empirecomfort.com/empirecomfort/Fireplaces/mantis.asp and http://www.mantisbyempire.com/assets/MANTIS/brochures/Mantis_Brochure.pdf 
(last accessed 11/8/2011).
---------------------------------------------------------------------------

    DOE's proposed definition provides a clear distinction that will 
allow manufacturers and consumers to differentiate between products 
that are primarily heaters and products that are primarily decorative. 
Due to the fact that even those products deemed ``decorative'' by 
industry (including vented gas log sets) often generate enough heat to 
be considered as a secondary heat source (as explained above), and are 
typically marketed by the manufacturers to promote that fact, DOE 
believes they are appropriately categorized as direct heating 
equipment. However, in recognizing the primarily decorative nature of 
certain products that are intended to be used primarily as a decorative 
product rather than a heating product, DOE provided the exclusion in 
the April 2010 final rule to identify the primarily decorative products 
that should not be subject to the standards for vented hearth heaters. 
Today's notice, while recognizing that hearth heating products have a 
duality of purpose, improves the previous definition by providing a 
clear, objective distinction between those hearth heating products that 
are primarily decorative and those that are primarily used for 
utilitarian heating (both of which are direct heating equipment under 
EPCA) and allows manufacturers of primarily decorative hearth products 
to continue manufacturing primarily decorative products that would not 
be subject to the standards for direct heating equipment.
    In addition, DOE believes that the exclusion being adopted in 
today's notice improves upon the previous exclusion adopted in the 
April 2010 final rule, because that exclusion may have allowed heater-
type products to qualify for the decorative inclusion. For example, 
Empire's Mantis, which is intended for use as a space heater, is 
available in a configuration where it can be operated with an input 
rating of 9,000 Btu/h. If this was the only operational mode, this unit 
would have qualified for the exclusion in the April 2010 final rule, 
even though it is clearly intended to be a heater. (DOE notes that the 
Mantis demonstrates that manufacturers possess the technological 
capability to produce vented hearth products at relatively low gas 
input levels (i.e., below 9,000 Btu/h) which are also aesthetically 
pleasing.) Under the new exclusion criteria, this product

[[Page 71843]]

would not qualify for the exclusion unless it met the four criteria, 
which would clearly identify it as a decorative product.

B. Amended Definition for ``Vented Hearth Heater''

    DOE is amending the definition for ``vented hearth heater'' to read 
as set forth in the regulatory text of this final rule. Specifically, 
the amended definition explicitly states that the energy conservation 
standards for vented hearth heaters are not applicable for vented gas 
log sets at this time. The amended definition also provides that vented 
gas hearth products are excluded from the energy conservation standards 
for vented hearth heaters if they are: (1) Certified to ANSI Standard 
Z21.50, but not to ANSI Standard Z21.88; (2) sold without a thermostat 
and with a warranty provision expressly voiding all manufacturer 
warranties in the event the product is used with a thermostat; (3) 
expressly and conspicuously identified on its rating plate and in all 
manufacturer's advertising and product literature as a ``Decorative 
Product: Not For Use As A Heating Appliance''; and (4) with respect to 
products sold after January 1, 2015, not equipped with a standing pilot 
light or other continuously-burning ignition source.
    The amendments to the definition of ``vented hearth heater'' being 
adopted in this final rule are related to the scope of the exclusion 
for the subset of such heaters that DOE has determined should not be 
subject to the current energy conservation standards otherwise 
applicable to vented hearth heaters. In the April 2010 final rule, DOE 
defined the exclusion for primarily decorative vented hearth products 
as those with input ratings below 9,000 Btu/h. 75 FR 20112, 20129, 
20234 (April 16, 2010). Further, vented gas log sets were not addressed 
in that rulemaking. The changes to the definition that DOE is adopting 
in this notice are twofold and are discussed in the paragraphs that 
follow.
    First, DOE has determined that the definitions of direct heating 
equipment are inclusive of vented gas log sets, given the fact that 
these are gas-burning appliances that generate heat, and some of that 
heat is transferred to the living space. Under DOE's previous 
interpretation, these products were not subject to standards for direct 
heating equipment; however, as noted in section III.A.2, DOE now 
clarifies that these products should be classified as vented hearth 
products. As noted by interested parties, despite their decorative 
nature, vented gas log sets can be used by consumers as a secondary 
heat source, demonstrating that they are appropriately categorized as 
direct heating equipment. However, DOE is excluding vented gas log sets 
from being subject to the energy conservation standards for vented 
hearth heaters at this time. Based on the comments received on the 
proposed exclusion criteria for vented gas log sets contained in the 
NOPR (which are summarized below) DOE believes that additional research 
and subsequent rulemaking are warranted on these products prior to 
adopting standards or exclusion criteria.
    Second, DOE is adopting a specific set of criteria (rather than the 
9,000 Btu/h input rating limitation) for establishing whether a vented 
hearth product should be excluded from the energy conservation 
standards because such product is primarily decorative in nature. DOE 
believes that the conditions outlined in the definition for classifying 
a vented hearth product as decorative will create a clear, objective 
division between vented hearth products, which will be subject to DOE's 
standards for gas hearth direct heating equipment, and those vented 
hearth products that focus primarily on providing ambiance and 
aesthetic utility, which will not be subject to DOE's standards. DOE 
also expects that the amendments to the definition will lessen the 
burden on manufacturers and allow DOE to achieve greater energy savings 
than under the previous definition, while still achieving the energy 
efficiency mandate of EPCA, primarily through elimination of standing 
pilot lights or other continuously-burning ignition sources. DOE's 
analysis suggests that amendments associated with the amended 
definition will result in significant energy savings that will be 
greater than the savings under the definition adopted in the April 2010 
final rule, both overall as well as for the types of units eligible for 
the exclusion. (See section III.C of this notice for details on the 
estimated energy savings.)
1. Description of Criteria for Classification as Decorative Vented 
Hearth Products
    As noted above, DOE's amendments to the definition of ``vented 
hearth heater'' provides an exclusion clause for products that are 
primarily decorative in nature, provided that they are either a vented 
gas log set, or meet the four criteria to be considered primarily 
decorative that are outlined in the definition. In the July 2011 NOPR, 
DOE proposed that both vented gas log sets and primarily decorative 
hearth products meet a set of four criteria to be considered as 
primarily decorative products that are not subject to the standards for 
gas hearth DHE. 76 FR 43941, 43945-46 (July 22, 2011). The criteria, as 
well as public comments received on the proposed NOPR criteria, are 
explained below.
    DOE also received a number of comments that stated generally that 
the exclusion criteria are unnecessary and not justifiable on the basis 
of energy savings. These interested parties also stated that there is 
no need for an exclusion, because heating efficiency standards should 
not apply to primarily decorative products. (Form Letter Comments; 
Creekside Hearth and Patio, No. 21 at p. 1; American Gas Log, No. 49 at 
p. 2; Hearth and Home, Inc., No. 144 at p. 2; Crik-IT, No. 15 at p. 3; 
Dealers LP Equipment, No. 20 at p. 2; Sun Dance Leisure, No. 17 at p. 
3; Hearth and Home Shoppe, No. 207 at p. 1; Sheldon Skolnick 
Associates, No. 118 at p. 1; Penn Valley, No. 116 at p. 2; Perfection, 
No. 115 at p. 2; Heritage Propane, No. 33 at p. 1)
    In response, DOE believes that the exclusion criteria are an 
essential part of setting energy conservation standards for ``heating'' 
type hearth products in order to clearly and effectively differentiate 
them from primarily ``decorative'' type products that are not subject 
to standards. This distinction will allow manufacturers of primarily 
decorative products to continue to manufacture their products, and 
allow consumers to continue to utilize them for both their ambiance and 
heating properties.
    In the sections that follow, DOE discusses the exclusion criteria 
for vented gas log sets and decorative vented hearth products, and the 
comments received regarding the exclusion criteria for each type of 
product. Where an interested party raised an issue for both vented gas 
log sets and decorative vented hearth products, that issue is 
summarized and addressed separately for each type of product.
a. Vented Gas Log Sets
    In the NOPR, DOE proposed exclusion criteria for vented gas log 
sets similar to the criteria proposed (and being adopted in this 
notice) for primarily decorative hearth products. 76 FR 43941, 43945-46 
(July 22, 2011). In response to the proposed criteria, DOE received the 
following comments for vented gas log sets. After considering the 
comments, DOE believes additional research is warranted, and as a 
result, is not adopting at this time any criteria for these products to 
meet in order to be excluded from the direct heating equipment 
standards. Because DOE is not adopting any such criteria in this

[[Page 71844]]

rulemaking, comments raising issues with the proposed criteria are no 
longer at issue; however, for completeness DOE presents the comments 
below.
    In the July 2011 NOPR, DOE proposed that gas log sets certify to 
ANSI Z21.60 in order to be considered primarily decorative equipment 
and, therefore, exempt for an efficiency standard. 76 FR 43941, 43953 
(July 22, 2011) Many stakeholders submitted comments opposing the 
proposed certification requirement, because not all gas log sets are 
currently certified or able to certify to ANSI Z21.60. (NPGA, No. 209 
at p. 8; Creekside Hearth and Patio, No. 21 at p. 1; Crik-IT, No, 15 at 
p. 3; Sun Dance Leisure, No. 17 at p. 3; Hearth & Home, No. 144 at p. 
2; American Gas Log, No. 146 at p. 2; American Gas Log, No. 49 at p. 2; 
Heritage Propane, No. 33 at p. 1; Form Letter Comments; Perfection, No. 
115 at p. 2; Sheldon Skolnick, No. 118 at p. 1; Dealers LP Equipment, 
No. 20 at p. 2; Penn Valley, No. 116 at p. 2; HPBA, Public Meeting 
Transcript, No. 14 at pp. 20-21; Hearth and Home Shoppe, No. 207 at p. 
1) R.H. Peterson stated that there is no universal certification for 
gas log sets and that they are regulated differently by different 
cities and States. R.H. Peterson also commented that only 21 percent of 
their products are certified to ANSI Z21.60, compared to over 75 
percent that are certified to another standard or left uncertified. 
(R.H. Peterson, Public Meeting Transcript, No. 14 at pp. 49-50) 
Further, R.H. Peterson stated that ANSI Z21.60 only covers gas log 
burners up to 30 inches, but they sell larger sizes to accommodate 
large wood burning fireplaces. (R.H. Peterson, Public Meeting 
Transcript, No. 14 at p. 51) R.H. Peterson also commented that DOE's 
requirement of ANSI Z21.60 certification would eliminate custom units 
because they are, by definition, not certified to any particular 
standard. (R.H. Peterson, No. 218 at p. 3) AGA stated that the proposed 
certification requirement for gas log sets would prohibit thermostats 
except for fireplaces installed in bedrooms or bedsitting rooms in 
Canada, thereby preventing the Canadian and U.S. standards from 
aligning. (AGA, No. 217 at p. 2) Rasmussen stated that many gas log 
sets are not certified because their size or design is not covered by 
an existing standard or because not enough sets are sold to justify the 
cost of testing, certification, and listing. Rasmussen also explained 
that this does not mean the unit is unsafe, because uncertified sets 
are built to the same standard of quality as their certified sets. 
Rasmussen estimated that ANSI Z21.60 accounts for less than 20 percent 
of total gas log sales, and recommended this provision to either be 
struck from the exclusion or the provision be broadened to include 
other standards and uncertified sets. (Rasmussen, Public Meeting 
Transcript, No. 14 at pp. 72-74) AGA and NPGA commented that 
manufacturers that do not comply with ANSI Z21.60 or manufacturers that 
certify to another standard would not be excluded from the direct 
heating equipment standards, yet would not be able to demonstrate 
compliance with the current test procedures. (AGA, No. 217 at p. 2; 
NPGA, No. 209 at p. 7)
    Manufacturers were also concerned because match lit gas log sets 
would not be able to certify to ANSI Z21.60 and achieving that 
certification for such units would be unduly burdensome for 
manufacturers. HPBA stated that forcing gas log sets to be certified to 
ANSI Z21.60 would result in match light systems, which do not use a 
standing pilot light, being outlawed. (HBPA, Public Meeting Transcript, 
No. 14 at p. 23) R.H. Peterson commented that 50 percent of all vented 
gas log sets are sold as match lit systems, and match lit systems 
cannot be certified to ANSI Z21.60 because the standard requires a pre-
assembled pilot on the gas log burner. Additionally, R.H. Peterson 
noted that only 20 percent of the current market is certified to ANSI 
Z21.60. (R.H. Peterson, No. 218 at pp. 2-3; Public Meeting Transcript, 
No. 14 at pp. 51-52) R.H. Peterson stated that the certification 
requirements (e.g., a gas regulator, warning and rating plates) would 
increase the cost of gas log sets by three times the current amount. 
(R.H. Peterson No. 218 at p. 3) SBA stated that most gas log sets are 
not currently certified to ANSI Z21.60, and that match lit sets (which 
are a large percentage of log sets sold) cannot be certified under ANSI 
Z21.60, thereby eliminating the market for match lit log sets. (SBA, 
No. 96 at p. 45) NRDC and EarthJustice commented that the ANSI standard 
for gas log sets is unwarranted, and if manufacturers do not have to 
certify to ANSI Z21.60, then match light systems can be used instead of 
standing pilot lights. (NRDC and EarthJustice, No. 216 at p. 2) 
Rasmussen noted that match-lighted sets do not fall under the 
requirements of the ANSI Z21.60 certification that require gas logs to 
be equipped with a safety system to shut down the flow of gas to the 
burner in the event of an interruption of the gas supply or a flame 
out. (Rasmussen, Public Meeting Transcript, No. 14 at p. 74)
    The second criterion DOE proposed was that gas log sets must be 
sold without a thermostat and with a warranty provision expressly 
voiding all manufacturer warranties in the event the product is used 
with a thermostat. 76 FR 43941, 43953 (July 22, 2011) DOE received 
comments from Rasmussen and R.H. Peterson specifically about 
thermostats on gas log sets. Rasmussen described consumer use of gas 
logs with and without a thermostat as follows: using a thermostat, the 
consumer sets a temperature at which the gas log set cuts off the 
flame; without a thermostat, consumers usually set the unit too high 
for a short period of time, then lower the flame height and leave it at 
the lower setting for the duration of the evening. (Rasmussen, Public 
Meeting Transcript, No. 14 at p. 75) Rasmussen stated that having a 
thermostat on a gas log set is a minor feature and does not mean that 
the product is designed to supply heat, and further stated that 
thermostats are used with a very small proportion gas log set products. 
Rasmussen pointed out that a thermostat helps the elderly turn the gas 
log set on and off without having to reach down into the fireplace to 
do so. (Rasmussen, Public Meeting Transcript, No. 14 at pp. 116-117) 
Rasmussen concluded that, although the thermostat provision may not 
impact a big part of the gas log set market, its elimination would 
limit consumer choice, especially for less-mobile elderly; therefore, 
Rasmussen recommended the thermostat provision be stricken from the 
final rule for gas log sets. (Rasmussen, Public Meeting Transcript, No. 
14 at p. 77) R.H. Peterson commented that they do not sell gas log sets 
with thermostats. (R.H. Peterson, Public Meeting Transcript, No. 14 at 
p. 119)
    The third criterion is that the product must expressly and 
conspicuously be identified on its rating plate and in all manufacturer 
advertising and product literature as a ``Decorative Product: Not For 
Use As A Heating Appliance.'' DOE received comments from R.H. Peterson 
and Rasmussen about labeling requirements for gas log sets. R.H. 
Peterson commented that labeling would impose few additional costs and 
is a more efficient way of reducing the small energy usage from the low 
BTU standing pilots used in vented gas logs. R.H. Peterson suggested 
that rather than triple the cost of vented gas logs products, DOE could 
achieve very similar energy savings, however limited they are, by 
simply adopting labeling requirements. (R.H. Peterson, No. 218 at p. 
10) Rasmussen commented that all warnings and labels are printed on 
stickers which are applied to a metal plate that accompanies the gas 
log set,

[[Page 71845]]

and more stickers may require a larger plate. (Rasmussen, No. 208 at p. 
5) Further, Rasmussen objected to DOE's proposal to categorize gas log 
sets as a ``decorative product, not for use as a heating appliance.'' 
Rasmussen stated that classifying the products as vented hearth 
heaters, but stating they are not heating appliances, is confusing and 
that the label will likely be ignored by consumers. (Rasmussen, Public 
Meeting Transcript, No. 14 at p. 77)
    The final criterion DOE proposed was that products manufactured on 
or after July 1, 2014 must not be equipped with a standing pilot light 
or other continuously-burning ignition source in order to qualify for 
exclusion from the energy conservation standards for vented hearth 
heaters.
    DOE received comments from stakeholders opposing this restriction. 
Intertek commented that most gas log sets are manually lit and do not 
have an automatic ignition system, and that banning standing pilot 
lights would eliminate the lowest-cost, safe alternative. Further, 
Intertek stated that eliminating pilot lights would be problematic for 
gas log systems that are dual certified and can be used as either a 
vented or unvented appliance and require an oxygen depletion safety 
shutoff, which is a specialized form of a standing pilot. (Intertek, 
No. 198 at pp. 4-5) Similarly, Homefires stated that banning a safety 
control like the standing pilot light is a bad idea because it could 
lead to consumers using match light systems, which do not have a safety 
control. (Homefires, No. 10 at p. 1) R.H. Peterson stated that 
customers do not want intermittent ignition systems because: (1) It 
will triple the cost of the most common gas log set sizes; (2) there is 
no significant savings; and (3) they are difficult to install (due to 
lack of space). (R.H. Peterson, Public Meeting Transcript, No. 14 at 
pp. 47-48) Empire did not agree with the exclusion criterion for gas 
log sets, because they would have to incorporate an ignition system 
that would double the cost of the gas log set. (Empire, No. 221 at p. 
2) Mr. Simmons commented that matchless ignition should be required for 
decorative gas logs that have standing pilots because typically, 
customers with matchless ignition turn off the pilot when the log set 
is not in use for long periods of time. (Mr. Simmons, No. 24 at p. 1) 
NPGA commented that DOE cannot exclude decorative log sets from 
coverage of the performance standard as not being intended as heating 
appliances and then ban standing pilot lights because EPCA does not 
provide DOE with the authority to impose design requirements for direct 
heating equipment under 42 U.S.C. 6291(6). (NPGA, No. 209 at p. 5)
    Many stakeholders had concerns that elimination of standing gas 
pilot lights would significantly increase the cost of gas log sets. 
R.H. Peterson calculated that DOE's proposal would add $600 per unit to 
the cost of a gas log set. (R.H. Peterson, Public Meeting Transcript, 
No. 14 at p. 47) San Bernardino Fireplace & Woodstove stated that the 
certification requirements and the mandatory electronic ignition system 
would increase gas log prices from $300-$500 to $800-$1000, and that 
less than 1 percent of their current sales include piloted or remote 
ready systems because the high cost. (San Bernardino, No. 11 at p. 1) 
Percy Guidry Hearth & Patio noted that propane and liquefied petroleum 
vented gas logs are required to have safety pilot light kits and that 
requiring manufacturers to have a more advanced starter system would 
increase the cost of the product. (Percy Guidry Hearth & Patio, No. 18 
at p. 3) SBA remarked that eliminating standing gas pilot lights would 
be costly to the industry because the majority of gas log sets have 
standing gas pilot lights and would have to be redesigned and 
recertified if this feature were eliminated; SBA stated that using 
electronic ignition systems as an alternative to standing gas pilot 
lights would increase the average price from $400 to over $1,000, 
thereby reducing sales and profit margin for small businesses or even 
eliminating the market if consumers choose not to purchase sets. (SBA, 
No. 96 at p. 6) Rasmussen stated that if match lit sets and standing 
pilots are prohibited, it leaves only the option of electronic ignition 
systems, which Rasmussen argued might eliminate gas log sets from the 
marketplace entirely, since electronic ignition systems add more than 
$650 to the retail price of match lit sets. Further, Rasmussen stated 
that propane is used in rural areas and requires a safety shutdown 
because it is a more dangerous fuel than natural gas, and that 
mandating electronic ignitions for those sets could make gas log sets 
unaffordable for the rural poor. (Rasmussen, Public Meeting Transcript, 
No. 14 at p. 79) NPGA commented that banning standing gas pilots in 
propane units would require redesign for over 95 percent of propane 
units, which would be burdensome and costly. (NPGA, No. 209 at p. 8)
    Several stakeholders also opposed eliminating standing pilot lights 
from gas log sets because of installation limitations associated with 
this product. Rasmussen commented that gas log sets with electronic 
ignition systems are hard to install because gas logs do not have side 
and under floor spaces to hide the electronic ignition components. 
Rasmussen further explained that the majority of gas log set 
installations are not new construction or extensive remodels, meaning 
electronic ignition components must be installed in the existing 
firebox. Given that electronic ignition components are greater in 
number and size than standing pilots and are more heat-sensitive, 
Rasmussen stated that improper location can lead to heat damage, which 
poses a safety hazard. Rasmussen noted that since most fireplaces do 
not have a power source nearby, the electronic ignition system must 
rely on batteries which are very heat sensitive. Rasmussen stated that 
the size of electronic ignition systems means the gas log set must 
usually be downsized in order to accommodate the necessary control, 
which can detract from the aesthetic appeal. (Rasmussen, Public Meeting 
Transcript, No. 14 at pp. 80-81) American Gas Log commented that gas 
log sets with electronic ignition are hard to install, because most gas 
log sets are retrofitted into wood-burning fireplaces, and typical 
wood-burning fireplaces do not have compartments to shield the 
electrical components from the heat. American Gas Log stated that it 
has not been able to develop a safe and reliable retrofit gas log set 
with electronic ignition. (American Gas Log, No. 49 at p. 2)
    Stakeholders also commented about the compliance dates for vented 
gas log sets related to both the April 2010 final rule and the July 1, 
2014 proposed date by which manufacturers would have had to equip their 
products with non-continuously-burning ignition systems. Rasmussen 
stated that component manufacturers of electronic ignition systems will 
have difficulty adjusting within three years to the new demands of gas 
log set manufacturers, which include no standing pilot, battery 
operation, and small BTU footprint. (Rasmussen, Public Meeting 
Transcript, No. 14 at p. 107) NPGA commented that the April 2010 final 
rule did not apply to gas log sets, so therefore, the compliance dates 
from that rule cannot apply to gas log sets, and asserted that the 
standards applicable to gas log sets would have to be at least five 
years from date of promulgation of a standard for gas log sets. (NPGA, 
No. 209 at p. 6) R.H. Peterson argued that the statute requires DOE to 
give manufactures three years from any final rule and asserted that to 
make the ANSI certification requirement applicable in April 2013 is 
wrong, because before this rulemaking,

[[Page 71846]]

DOE had considered gas log sets not to be vented hearth heaters subject 
to this requirement. (R.H. Peterson, Public Meeting Transcript, No. 14 
at pp. 55-56) HBPA stated that the current proposed compliance dates 
are illegal and non-achievable, and elaborated that since the April 16, 
2010 final rule did not apply to gas log sets, the April 2013 deadline 
should not apply. (HBPA, Public Meeting Transcript, No. 14 at pp. 19-
20)
    As previously stated, DOE is not adopting any exclusion criteria 
for vented gas log sets at this time. Rather, in light of the comments 
received, DOE has determined that it must conduct additional research 
into the gas log set market prior to adopting any specific criteria for 
exclusion from the direct heating equipment standard, which would be 
done through subsequent rulemaking. DOE appreciates the comments 
received from the interested parties, as they raised significant issues 
for DOE to address and lead DOE to exclude all vented gas log sets from 
the standard. As a result, DOE is not addressing each comment in 
detail.
b. Vented Hearth Products
    For vented hearth products (other than vented gas log sets), the 
first criterion that a product must meet to be considered a primarily 
decorative vented hearth product is that it must be certified to a 
certain ANSI standard. 76 FR 43941, 43953 (July 22, 2011) Specifically, 
for vented hearth products, it must be certified to ANSI Standard 
Z21.50-2007, Vented Gas Fireplaces, but not be certified to ANSI 
Standard Z21.88-2009, Vented Gas Fireplace Heaters. (A unit could not 
be certified to both standards and still qualify for the exclusion.) 
DOE is incorporating by reference both of these standards into the 
DOE's definitions at 10 CFR 430.2 and the incorporation by reference 
provisions at 10 CFR 430.3. DOE recognizes that the hearth products 
industry has attempted to distinguish between heater and primarily 
decorative products using the certification under one of these 
standards as the criterion for classification into one category or the 
other. However, although this is a general practice in industry, DOE 
notes that not all manufacturers apply this criterion consistently to 
differentiate their heating hearth products from their primarily 
decorative products. As such, DOE has determined that this criteria, 
although an important part of DOE's definition, cannot be used alone to 
differentiate between the two types of products. In addition, ANSI 
Standard Z21.88 contains provisions that allow the main burners to be 
thermostatically-controlled, which ANSI Standard Z21.50 does not allow. 
Therefore, DOE believes this criterion will be helpful in 
differentiating, at least in part, between vented hearth heaters and 
vented hearth products that are primarily decorative in nature.
    In response to this proposed criterion in the NOPR, DOE received 
comments from several stakeholders. HPBA stated that there are 
decorative gas fireplaces that are not certified to ANSI Z21.50 (the 
standard covering decorative gas fireplaces) and that it has submitted 
this information to DOE. (HPBA, Public Meeting Transcript, No. 14 at 
pp. 20-21) AGA remarked that ANSI Z21.50 prohibits thermostats except 
for fireplaces installed in bedrooms or bedsitting rooms in Canada, and 
this rulemaking would prevent alignment of Canadian and U.S. standards. 
However, Rasmussen agreed with DOE that ANSI Z21.88 and ANSI Z21.50 
differentiate decorative and heater-rated fireplaces, but noted that 
not all jurisdictions on the eastern seaboard require ANSI Z21.88 or 
ANSI Z21.50 certification. (Rasmussen, Public Meeting Transcript, No. 
14 at p. 72)
    In response, DOE notes that although Canadian and U.S. standards 
may not align, DOE believes that this criterion provides an important 
and necessary means of distinguishing vented hearth heaters and vented 
hearth products that are primarily decorative in nature, because it is 
the method of differentiation that industry has traditionally used. 
However, as provided by HPBA, DOE found that some products asserted to 
be primarily decorative were certified to the heater standard and some 
products were certified to both ANSI standards. In response to HPBA's 
concerns about products that are not certified to ANSI Z21.50, DOE 
believes that the burden manufacturers incur by certifying that small 
subset of products would be less than burdens that would have been 
incurred under the conditions of the April 2010 final rule. As a 
result, DOE believes that the first exclusion criterion is reasonable 
and essential in differentiating between primarily decorative and 
heating hearth products.
    The second criterion in the definition is that the product must be 
sold without a thermostat and with a warranty provision expressly 
voiding all manufacturer warranties in the event the product is used 
with a thermostat. 76 FR 43941, 43953 (July 22, 2011) Hearth products 
intended for heating sometimes use thermostats to automatically turn on 
and off based on the temperature of the surrounding space. Often, 
thermostats are optional equipment that may be installed in the field. 
DOE believes that products intended to be used primarily for decorative 
purposes would not need to employ a thermostat. A thermostat cycles the 
appliance on and off based on the temperature of the room. If a 
consumer is concerned with ambiance (which should be the case for 
primarily decorative appliances), then there is no reason why a 
thermostat would be required to automatically control the operation 
based on the room temperature. DOE believes that a provision in the 
warranty that voids it if a thermostat is installed will discourage the 
misuse of vented hearth products that are intended primarily to be 
decorative and discourage the evasion of energy conservation standards 
by those who purchase primarily decorative products and seek to use 
them as heaters.
    In response to DOE's proposal of this criterion in the NOPR, DOE 
received several comments from interested parties. Intertek remarked 
that primarily decorative gas appliances are not allowed, under 
applicable codes and safety standards, to be supplied or installed to 
operate under thermostatic control, and that such products are supplied 
with an on/off control which may be a knob or valve of the appliance. 
Intertek stated that DOE has correctly identified thermostatic control 
as a key distinguishing feature of heating appliances. (Intertek, No. 
0198 at pp. 2-3) Rasmussen stated that it does not take issue with 
removing thermostats, but noted that the issue of banning thermostats 
on primarily decorative fireplaces was confusing, since the thermostat 
acts as an automatic shutoff device that prevents the consumer from 
over-using a primarily decorative appliance for heating purposes. 
Rasmussen asserted that DOE has focused too much on the startup 
function of thermostats rather than on the shut-down of the flame. 
(Rasmussen, Public Meeting Transcript, No. 14 at p. 120; Rasmussen, 
Public Meeting Transcript, No. 14 at p. 75) Many stakeholders opposed 
banning thermostats for safety reasons. AmeriGas, Heritage Propane, 
Siouxland, Penn Valley, Gas-Fired Products, and Gresham Petroleum 
commented that eliminating thermostats would decrease safety and 
increase energy consumption because the decorative products would not 
have a trigger for automatic shutoff and would be left on by the 
consumer. (Form Letter Comments; Heritage Propane; No. 33 at p. 1; 
Siouxland, No. 85 at p. 1; Penn Valley, No. 116 at p. 1; Gas-Fired 
Products, No. 155 at p. 1; Gresham Petroleum, No. 165 at p. 1)

[[Page 71847]]

    In response, DOE believes that this criterion is important to help 
differentiate between primarily decorative and heating appliances, and 
to discourage the misuse of primarily decorative vented hearth 
products. In response to the comments about safety, DOE finds that 
eliminating thermostats has not been proven to have a significant 
effect on the products safety. DOE notes that many hearth products are 
available on the market without thermostats, and there is no indication 
in the manufacturer literature, nor have the stakeholders provided any 
substantiation, that a hearth product without a thermostat is either 
unsafe or poses safety risks.
    The third criterion is that the product must expressly and 
conspicuously be identified on its rating plate and in all manufacturer 
advertising and product literature as a ``Decorative Product: Not for 
use as a Heating Appliance.'' 76 FR 43941, 43953 (July 22, 2011). This 
requirement will provide additional clarification for consumers and 
installers and make it obvious that the product is intended primarily 
for decorative purposes. DOE received several comments on this 
criterion in response to the July 2011 NOPR.
    R.H. Peterson commented that, in the NOPR, DOE recognized the 
importance of the role consumers played, and considered DOE's 
suggestion on better labeling requirements for primarily decorative 
fireplaces an attractive option for energy savings. (R.H. Peterson, No. 
218 at p. 10) AGA stated that the product was not considered in the 
Federal Trade Commission's labeling discussion, and that primarily 
decorative products should not be required to have a label. (AGA, 
Public Meeting Transcript, No. 14 at pp. 85-86)
    DOE disagrees with AGA's comment and notes that the exclusion 
criterion for manufacturers to disclose when their products are 
decorative in nature is not mandated for all hearth products, but 
rather, it is optional for those manufacturers who elect to pursue the 
exclusion for products that are decorative in nature. If such labeling 
is deemed to be overly burdensome, manufacturers have the choice to 
redesign products in order to meet the standards for gas hearth direct 
heating equipment established by the April 2010 final rule. As noted 
above, these products, although primarily decorative in nature, provide 
heat and are appropriately classified as direct heating equipment under 
the statute. Therefore, DOE believes it has the authority to require 
this criterion and believes this criterion is essential to help inform 
consumers about the intended use of the product.
    The final criterion proposed would require that products 
manufactured on or after July 1, 2014, must not be equipped with a 
standing pilot light or other continuously-burning ignition source in 
order to qualify for exclusion from energy conservation standards for 
vented hearth heaters. 76 FR 43941, 43953 (July 22, 2011) According to 
DOE's market research, more than half of the primarily decorative 
hearth product market would not be impacted by this limitation because 
the products already utilize alternatives to a standing pilot light, 
such as an intermittent pilot or electronic ignition. However, DOE 
notes that some products on the market would have needed to be: (1) 
Redesigned to eliminate the use of standing pilot lights or other 
continuously-burning ignition source; (2) redesigned by April 16, 2013 
to meet the required energy conservation standard level for gas hearth 
direct heating equipment established by the April 2010 final rule; or 
(3) removed from the market prior to July 1, 2014. DOE believes that 
given the prevalence and ease of availability of the technological 
alternatives to standing pilot lights and other continuously-burning 
ignition sources (e.g., electronic ignition, intermittent pilot) and 
the experience of manufacturers in implementing these alternatives, a 
compliance date of July 1, 2014 would have likely allowed a reasonable 
amount of time for manufacturers to redesign or remove from the market 
their products with standing pilots or shift production to product 
lines without a standing pilot or other continuously-burning ignition 
source. However, in consideration of the comments discussed below, DOE 
has revised the July 1, 2014 compliance date to January 1, 2015, in 
order to provide manufacturers with more than three full years from the 
time of publication of the final rule to implement changes to remove 
standing pilots or other continuously-burning ignition sources from 
products that would require it.
    In response to this proposed requirement, Short's Stoves stated 
that most manufacturers are already introducing electronic ignition on 
their fireplaces and gas log sets, which will save energy by turning 
off the pilot when not in use. (Short's Stoves, No. 174 at p. 1) NPGA 
commented that DOE cannot ban standing pilot lights because EPCA (42 
U.S.C 6291(6)) does not provide DOE with the authority to impose design 
requirements. (NPGA, No. 209 at p. 5) Intertek stated that standing 
pilot lights are an important safety feature that may not be readily 
replaced with electronic ignition systems or other intermittent 
alternatives, and suggested DOE consider the benefit of allowing 
primarily decorative gas appliances to include standing pilot lights, 
because the secondary heating function can provide sufficient backup 
heating during a power outage, and it reduces the risk of large 
explosive ignitions. (Intertek, No. 198 at pp. 3-4)
    In response to NPGA's comment about DOE's authority, DOE notes that 
it is not mandating a design requirement for primarily decorative 
hearth products, because meeting the exclusion criteria is completely 
optional and at the manufacturers' discretion. If manufacturers do not 
certify their product to ANSI Z21.50, then the product will not be 
considered primarily decorative, and the product may have a standing 
pilot light; however, if the product does not meet the criteria for the 
decorative exclusion, then it must comply with the energy conservation 
standards applicable to gas hearth direct heating equipment. DOE 
appreciates Intertek's comment about product safety, but it finds that 
eliminating standing pilot lights does not significantly reduce product 
safety, because products with alternative ignition systems are 
ubiquitously available on the market today. In the event of a power 
outage, DOE notes that electronic ignition systems are commonly 
equipped with a battery backup system that can provide power. Given the 
prevalence of alternatives to continuously-burning ignition systems in 
the market, DOE does not find there is adequate evidence of safety 
concerns related to replacing standing pilot ignitions or other 
continuously-burning ignition sources.
    Barbara Jenkins, Percy Guidry Hearth & Patio, Arizona Gas, and San 
Bernardino Fireplace & Woodstove stated that eliminating the standing 
pilot light is unreasonable, because the alternative is electronic 
ignition which is expensive and requires more maintenance. (Barbara 
Jenkins, No. 22 at p. 1; Percy Guidry, No. 18 at p. 2; Arizona Gas, No. 
98 at p. 2 ; San Bernardino, No. 11 at p. 1) San Bernardino Fireplace & 
Woodstove explained that electronic ignition systems are unreliable, 
and that 9 out of the 10 electronic ignition systems the company has 
sold did not work well and had to be bought back. (San Bernardino, No. 
11 at p. 1) Exotic Flames and Arizona Gas stated that electronic 
ignition systems are cost-prohibitive and would impact small 
distributer businesses. (Exotic Flames,

[[Page 71848]]

No. 19 at p. 1; Arizona Gas, No. 98 at p.2) Intertek commented that 
electronic ignitions systems are more expensive that standing pilot 
lights, because they require an electrician to install a circuit. 
(Intertek, No. 198 at p. 4) Hearth and Home Shoppe commented that 
banning standing pilot lights is unreasonable, because electronic 
ignitions will not work effectively at very cold temperatures and 
electronic pilots are extremely expensive. (Hearth and Home Shoppe, No. 
207 at p. 1) Golden Blount stated that eliminating standing gas pilot 
lights does not promote safety and that the energy savings do not 
outweigh the increased cost of an electronic ignition system. (Golden 
Blount, No. 210 at p. 1)
    In its analysis for the April 2010 final rule, in examining design 
changes between a baseline heating unit and a unit at efficiency level 
1 (which DOE assumed would be met through upgrading a baseline unit 
with an electronic ignition), DOE examined the differences between the 
components included in an electronic ignition system and a standing 
pilot ignition. In the analysis for the April 2010 final rule, DOE 
found the efficiency benefits associated with removing the standing 
pilot to be cost-effective (75 FR 20112, 20219 (April 16, 2010)), and 
believes that the same is true for primarily decorative hearth products 
given the similarities between the two in terms of components and 
construction. In response to the Hearth and Home Shoppe's comment about 
the effective operational temperature limit of electronic ignition, DOE 
finds that this concern is mitigated by the fact that only primarily 
decorative products will not be allowed to have a standing pilot light, 
and such products will not be used as the primary heat source of the 
residence.
    Interested parties also submitted comments about the July 1, 2014, 
compliance date DOE proposed for the elimination of standing pilot 
lights, and the April 16, 2013, date by which manufacturers must meet 
the other exclusion criteria or the standard for gas hearth direct 
heating equipment. HBPA stated that: (1) The proposed July 1, 2014 
compliance date for pilot restrictions contradicts the law; (2) DOE 
does not provide justification for the deadline; and (3) the deadline 
fails to consider the pressure it places of testing laboratories and 
their capacity. (HPBA, No. 201 at p. 20) Conversely, NRDC and 
EarthJustice commented that the proposed compliance dates are 
reasonable, because there are several low-cost options available to 
manufacturers seeking to replace standing pilot light systems, 
including manual and electronic spark ignitions systems. (NRDC and 
EarthJustice, No. 216 at p. 2)
    Several interested parties commented that compliance deadlines for 
primarily decorative vented gas fireplaces and gas log sets are 
arbitrary and unreasonable and cannot be met by the industry, because 
most manufacturers do not have the funds to meet the deadline. (Crik- 
IT, No. 15 at p. 2; Sun Dance Leisure, No. 17 at p. 2; Dealers LP 
Equipment, No. 20 at p. 1; Creekside, No. 21 at p. 1; HWAM, No. 43 at 
p. 1; American Gas Log, No. 49 at p. 1; Perfection, No. 115 at p. 2; 
Penn Valley, No. 16 at p. 2; Sheldon Skolnick, No. 118 at p. 1; Hearth 
and Home, No. 144 at p. 2; American Gas Log, No. 146 at p. 2; Form 
Letter Comments, Hearth and Home Shoppe, No. 207 at p. 1; New Jersey 
Propane Gas Association, No. 212 at p. 1; Mr. Pierce, No. 219 at p. 1; 
Advantage, No. 13 at p. 1; Empire, No. 221 at p. 2) NPGA commented that 
certification would be extremely burdensome to manufacturers. (NPGA, 
No. 209 at p. 8) Empire stated that manufacturers need time for 
research and development, and also the volume of certifications will 
increase, making 2014 too aggressive for an industry made up of small 
businesses with limited resources. (Empire, Public Meeting Transcript, 
No. 14 at p. 62) HBPA stated that according to Executive Order 13563, 
DOE needs to consider the cumulative impact of regulations, and since 
burdensome regulations have already been imposed on the hearth 
industry, adding more regulations would create a backlog on the few 
independent testing labs that certify hearth products. They believe 
that labs will not be able to handle the surge of new equipment that 
needs to be tested from the EPA New Source Performance Standards for 
wood-burning products (expected in the first quarter of 2013) and the 
current DOE regulations for heater-rated hearth products. (HPBA, Public 
Meeting Transcript, No. 14 at pp. 20-21) Modern Gas commented that the 
industry is not ready to implement new standards by the proposed 
compliance deadline. (Modern Gas, No. 0213 at p. 1) Short's Stoves 
stated that DOE's compliance timeline will be detrimental to the 
industry, because most small manufacturers do not have the funds to 
meet the regulations and redesign their equipment. (Short's stoves, No. 
174 at p. 1) Lennox stated that the proposed date violates the 
established precedent allowing at least three years for industries to 
implement new energy conservation standards, and requests DOE justify 
the accelerated effective date. Lennox explained that the current 
timeline places tremendous burden on the manufacturers. (Lennox, No. 6 
at pp. 1-2) Empire suggested DOE consider extending the compliance date 
to be effective three years after the publication of the final rule. 
Empire explained that 70 percent of the industry shipments are 
primarily decorative hearth products and that the manufacturers, which 
are mostly small businesses, need more time for research and 
development and certification. (Empire, No. 4 at p. 2; Empire, Public 
Meeting Transcript, No. 14 at p. 61)
    As explained below, DOE believes that the compliance date of April 
16, 2013 for meeting the first three exclusion criteria is reasonable, 
because the exclusion criteria adopted by this rulemaking for primarily 
decorative vented hearth products are both achievable and optional. The 
April 2010 final rule would require most primarily decorative equipment 
covered by this rulemaking to comply with the energy conservation 
standards for vented hearth products by April 16, 2013, giving 
manufacturers three full years lead time contemplated under EPCA to 
upgrade their products to meet the energy conservation standards, if 
they choose to do so. Today's final rule amends the April 2010 final 
rule to reduce the difficulty of meeting the exclusion. DOE notes that 
beyond statements of their opinion, the commenters have provided no 
data or other information to show why they could not meet the deadlines 
DOE has proposed. DOE does not believe that certification, elimination 
of thermostats, and proper labeling could not be accomplished by April 
16, 2013, and DOE believes that it is important to implement these 
changes to the exclusion for decorative products by the time compliance 
is required with the direct heating equipment standards, so as to 
prevent consumer confusion and disruptions in the marketplace. 
Moreover, DOE notes that it is no longer requiring gas log sets to 
comply with exclusion criteria nor the energy conservation standard, 
which will reduce the burden on test labs performing certification 
testing. DOE recognizes that elimination of the standing pilot light or 
other continuously-burning ignition source would likely require a more 
substantial change to manufacturers' affected product lines. 
Accordingly, for this criterion DOE is changing the compliance date 
from July 1, 2014, as proposed in the NOPR, to January 1, 2015 to 
provide more than three years

[[Page 71849]]

before the compliance date for removing continuously-burning ignition 
sources. DOE believes the January 1, 2015 compliance date for this 
criterion is reasonable, particularly given that the alternatives to 
continuously-burning ignition sources are readily available and 
currently used in a number of hearth products available on the market.

C. National Energy Savings

    As noted above, in the NOPR, DOE proposed that to qualify for an 
exclusion from the current energy conservation standards for products 
that are primarily decorative in nature, vented gas hearth products and 
vented gas log sets manufactured on or after July 1, 2014, must not be 
equipped with a standing pilot light or other continuously-burning 
ignition source. 76 FR 43941, 43944-45 (July 22, 2011). For the NOPR, 
DOE analyzed the energy savings expected to result from exclusion of 
the standing pilot light or other continuously-burning ignition source 
in the amended ``vented hearth heater'' definition. Based on 
information about vented hearth product models available in the 
market,\8\ DOE estimated that about 38 percent of the vented decorative 
hearth models on the market would need to be redesigned to eliminate 
the use of standing pilot lights or other continuously-burning ignition 
sources. DOE also estimated that 20 percent of vented gas logs would 
have standing pilot lights or other continuously-burning ignition 
sources, based on a 1997 GTI study.\9\ The remaining portion of the 
market is assumed to already utilize ignition-based alternatives, such 
as an intermittent pilot, electronic ignition, or match light ignition 
system (gas logs only).
---------------------------------------------------------------------------

    \8\ U.S. Department of Energy--Office of Codes and Standards, 
Analytical Tools: Energy Conservation Standards for Residential 
Water Heaters, Direct Heating Equipment, and Pool Heaters (April 27, 
2010). (http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/htgp_finalrule_correction.pdf).
    \9\ Menkedick, J., Hartford, P., Collins, S., Chumaker, S., 
Wells, D. Topic Report: Hearth Products Study (1995-1997). Gas 
Research Institute (GRI). September 1997. GRI-97/0298.
---------------------------------------------------------------------------

    Several parties criticized DOE's estimate of the fraction of vented 
gas logs that would have standing pilot lights or other continuously-
burning ignition sources. (HPBA, No. 0014 at p. 26; RH Peterson, No. 
0218 at p. 2; Rasmussen, No. 0208 at p. 6) DOE acknowledges the above 
comments. However, DOE is not adopting in this final rule a standing 
pilot removal requirement for this product.
    To estimate the energy savings, in the NOPR, DOE assumed that all 
primarily decorative hearth products and vented gas log models with 
standing pilot lights or other continuously-burning ignition sources 
would be replaced with an intermittent pilot ignition, and would have 
an average duration of the pilot operation of about 37.5 h/yr (the same 
as the main burner operating hours \10\). On average, continuous pilot 
energy use is about 350 Btu/h \11\ for primarily decorative vented 
hearth products \12\ and 1,250 Btu/h for vented gas logs.\13\ For both 
vented hearth products and vented gas log sets, DOE assumed that pilot 
lights operate year round (i.e., 8,760 h/yr) for 75 percent of the 
installations and that for the remaining 25 percent, the consumer 
operates the pilot for about one-fourth of the year (i.e., 2,190 h/yr). 
The average annual energy savings amount to 2.67 million Btu per unit 
for primarily decorative vented hearth products and 9.53 million Btu 
per unit for vented gas logs. DOE assumed an average lifetime of 15 
years for both primarily decorative vented hearth and vented gas logs 
units and average annual shipments of 460,000 primarily decorative 
vented hearth units and 103,000 vented gas log units.
---------------------------------------------------------------------------

    \10\ Houck, James, ``Residential Decorative Gas Fireplace Usage 
Characteristics'' (Report prepared for HPBA) (2010).
    \11\ U.S. Department of Energy--Office of Codes and Standards, 
Technical Support Document: Energy Conservation Standards for 
Residential Water Heaters, Direct Heating Equipment, and Pool 
Heaters (April 27, 2010).
    \12\ U.S. Department of Energy--Office of Codes and Standards, 
Technical Support Document: Energy Conservation Standards for 
Residential Water Heaters, Direct Heating Equipment, and Pool 
Heaters (April 27, 2010).
    \13\ This value was derived from data collected on the following 
manufacturer Web sites:
    Pittsburg Gas Grill and Heater Co. Frequently Asked Questions. 
(URL: http://www.pittsburghgasgrill.com/faq.html).
    Hargrove Hearth Products. Frequently Asked Questions. (URL: 
http://www.hargrovegaslogs.com/faq.htm).
    Leonard's Stone & Fireplace. Frequently Asked Questions. (URL: 
http://www.leonardsstoneandfireplace.net/faq.html).
    Fireside Hearth & Home. Frequently Asked Questions. (URL: http://www.firesidehearthandhome.com/faq.php).
    Heatilator. Common Questions. (URL: http://www.heatilator.com/customerCare/searchFaq.asp?c=Gas).
---------------------------------------------------------------------------

    Using the above assumptions, in the NOPR, DOE calculated the 
national energy savings over the analysis period to be 0.17 quads for 
primarily decorative hearth products and 0.07 quads for vented gas log 
sets under the proposed revised definition of ``vented hearth heater'' 
with an exclusion that would eliminate the standing pilot lights on 
those units. In the NOPR, DOE estimated that the elimination of 
standing pilots or other continuously-burning ignition sources in 
primarily decorative vented hearth products and gas log sets would 
result in an additional 0.12 quads of energy savings over the 30-year 
period from 2014 through 2043, beyond the savings estimated by the 
April 2010 final rule. 76 FR 43941, 43943 (July 22, 2011).
    Commenting on the NOPR, several parties stated that DOE 
overestimated the national energy savings for primarily decorative 
hearth products and vented gas log sets under the proposed revised 
definition of ``vented hearth heater.'' (NPGA, No. 0209 at p. 9; SBA, 
No. 0096 at p. 6; RH Peterson, No. 0218 at p. 3) Commenters criticized 
DOE's assumptions in three main areas: (1) Product operating hours; (2) 
pilot light usage; and (3) pilot light gas input rate.
    Regarding product operating hours, Rasmussen commented that the 
operating hours for primarily decorative hearth products and vented gas 
logs are highly variable. (Rasmussen, No. 0208 at p. 6) Homefires 
commented that for primarily decorative vented gas appliances, the 
typical system is only in use for 20 hours per year. (Homefires, No. 
0010 at p. 1) DOE agrees that the operating hours for primarily 
decorative hearth products and vented gas logs are highly variable, but 
for the current national energy savings analysis, it was only necessary 
to use an average value. For primarily decorative hearth products, DOE 
used 35 hour per years based on a report prepared for HPBA.\14\
---------------------------------------------------------------------------

    \14\ Houck, James, ``Residential Decorative Gas Fireplace Usage 
Characteristics'' (Report prepared for HPBA) (2010).
---------------------------------------------------------------------------

    Regarding pilot light usage, several parties stated that DOE 
overestimated the number of customers that leave their standing pilot 
light on during the non-heating season. (Rasmussen, No. 0208 at p. 7; 
Intertek, No. 0198 at p. 4) Exotic Flames and SBA stated that most 
standing pilot lights are not left on all the time, and Independence 
Marketing commented that most pilot lights are only left on during the 
winter. (Exotic Flames, No. 0019 at p. 1; SBA, No. 0096 at p. 6; 
Independence Marketing Ltd, No. 0214 at p. 1) Homefires stated that the 
pilot light is generally turned off after the customer uses the system. 
(Homefires, No. 0010 at p. 1) Arizona Gas stated that most standing 
pilot lights are lit at most 4 to 5 months or, for propane systems, are 
only lit for each use to conserve fuel. (Arizona Gas, No. 0098 at p. 2) 
HPBA stated that DOE's assumption that 75 percent of all standing 
pilots are left on all year, while 25 percent are left on for a quarter 
of the year, lacks evidence. (HPBA, No. 0201 at p. 2) NPGA stated that 
75 percent of consumers keep their pilot lights on for

[[Page 71850]]

three months of the year, and only 25 percent remain on year-round. 
(NPGA, No. 0209 at p. 9)
    For primarily decorative hearth products, DOE conducted further 
review in response to the comments, and accordingly revised its 
analysis as follows: Namely, that 50 percent of consumers keep their 
pilot lights on for three months of the year, 25 percent keep them on 
only when the equipment is being used, and 25 percent keep them on 
year-round. The fraction that keeps pilot lights on only when the 
equipment is being used is to address the pilot operation of propane 
systems \15\ and other situations when the user chooses to turn off the 
pilot after each use.
---------------------------------------------------------------------------

    \15\ According to Energy Information Administration's 2009 
Residential Energy Consumption Survey, 23 percent of secondary 
fireplaces use propane. For more information see: http://www.eia.gov/consumption/residential/data/2009/.
---------------------------------------------------------------------------

    Regarding the gas log set pilot light gas input rate, a number of 
parties stated that DOE's assumption that gas log pilot systems use 
1,250 Btu/hr was too high. (Rasmussen, No. 0208 at p. 6; RH Peterson, 
No. 0218 at p. 3; SBA, No. 0096 at p. 6) DOE acknowledges the 
information provided on vented gas log pilot systems. However, DOE did 
not include energy savings for vented gas log sets in its current 
analysis, because the standing pilot removal requirement for this 
product is not covered under today's rule. For primarily decorative 
hearth products, Intertek commented that on average, most pilot lights 
use 800 Btu/hr. For primarily decorative hearth products, DOE revised 
its analysis based upon the data provided by Intertek, which is similar 
to the data reported by manufacturers and distributors of hearth 
products and Natural Resources Canada (NRCAN) Web sites, as well as an 
EER Consulting report and a GRI study.\16\
---------------------------------------------------------------------------

    \16\ This value was derived from data collected on the following 
manufacturer Web sites:
    GRI 1997 Study: Menkedick, J., Hartford, P., Collins, S., 
Chumaker, S., Wells, D. ``Topic Report: Hearth Products Study (1995-
1997)''. Gas Research Institute (GRI). September 1997. GRI-97/0298.
    EER Consulting: Mullen, J. ``Input Rate of Pilot Burners on Gas 
Fireplaces'' (Consultant Report). EER Consulting. November 6, 2011.
    NRCAN Web site. NRCAN. ``Personal: Residential: Chapter 3--All 
About Gas Fireplaces'' (URL: http://oee.nrcan.gc.ca/Publications/infosource/Pub/home/all_about_gas_fireplaces_chapter3.cfm?text=N&printview=N).
    Pittsburg Gas Grill and Heater Co. Frequently Asked Questions. 
(URL: http://www.pittsburghgasgrill.com/faq.html).
    Leonard's Stone & Fireplace. Frequently Asked Questions. (URL: 
http://www.leonardsstoneandfireplace.net/faq.html).
    Fireside Hearth & Home. Frequently Asked Questions. (URL: http://www.firesidehearthandhome.com/faq.php).
    Heatilator. Common Questions. (URL: http://www.heatilator.com/customerCare/searchFaq.asp?c=Gas).
    Fireplace Professionals. Frequently Asked Questions. (URL: 
http://www.fireplaceprofessionals.com/faqs.htm).
---------------------------------------------------------------------------

    As a result of revising the assumptions for primarily decorative 
vented hearth products about the number of customers that leave their 
standing pilot light on and the pilot light gas input rate, DOE 
calculated that if all manufacturers of vented hearth products who 
could do so availed themselves of the exclusion, the national energy 
savings over the analysis period would be 0.17 quads for primarily 
decorative vented hearth products (not including gas log sets). 
According to DOE's estimates, elimination of standing pilots and other 
continuously-burning ignition sources in primarily decorative vented 
hearth products would result in an additional 0.04 quads of energy 
savings over the 30-year period from 2015 through 2044, beyond the 
savings estimated by the April 2010 final rule. DOE did not include the 
energy savings for vented gas log sets in its revised NES calculation, 
because the standing pilot elimination requirement for gas log sets has 
been removed from the exclusion for these products in today's final 
rule. In conclusion, even with modifications to DOE's National Energy 
Savings analysis based upon public comments (where substantiated), DOE 
has determined that the amendments in today's final rule would continue 
to provide substantial additional energy savings beyond those 
attributable to the April 2010 final rule.

D. Other Comments

1. Test Procedures
    In response to the definition of ``vented hearth heater'' proposed 
by DOE in the July 2011 NOPR, DOE received a number of comments 
regarding the applicability of the DOE test procedures for primarily 
decorative hearth products and vented gas log sets.
    HPBA stated that the AFUE methodology is inapplicable to primarily 
decorative gas fireplaces and cannot even be conducted on gas log sets; 
therefore, there is no applicable efficiency test method for these 
products. (HPBA, Public Meeting Transcript, No. 14 at pp. 21-22) NPGA 
stated that there is not an applicable test procedure to measure the 
efficiency of these products. (NPGA, No. 209 at p. 5) Further, NPGA 
stated that the current DOE test procedure cannot be applied to vented 
primarily decorative hearth products, because the test procedure 
measures convective heat transfer, rather than radiative heat transfer. 
(NPGA, No. 209 at pp. 6-7) SBA and AGA made similar comments. (SBA, No. 
96 at p. 4; AGA, No. 217 at pp. 1-2) Several interested parties stated 
that there are no test standards to determine whether DOE's 
interpretation of the primarily decorative hearth products definition 
is appropriate, and that primarily decorative hearth products are 
different from direct heating equipment because they produce heat 
indirectly by their operation. (Form Letter Comments; Oahu Gas Service, 
No. 166 at p. 1; Heritage Propane, No 33 at p. 1; American Gas Log, No. 
146 at p. 1; Penn Valley, No. 116 at p. 1; Gresham Petroleum, No. 165 
at p. 1; HWAM, No. 43 at p. 1; Slate Spring, No. 92 at p. 1; 
Perfection, No. 115 at p. 1; Hearth and Home, Inc., No. 144 at p. 1; 
American Gas Log, No. 49 at p. 1; Sheldon Skolnick Associates, No. 118 
at p. 1) R.H. Peterson commented specifically that gas log sets are not 
able to be tested using the standard AFUE test method. (R.H. Peterson, 
Public Meeting Transcript, No. 14 at pp. 36-37) Similarly, Short's 
Stoves commented that there is no sure way to test gas log sets, 
because they are installed into existing wood-burning fireplace which 
are not uniform. (Short's Stove, No. 174 at p. 1) R.H. Peterson 
commented that: (1) No vented gas log sets can or ever will be able to 
meet the 68-percent heating efficiency standard; (2) DOE knows there is 
no approved test; and (3) the only approved test does not work on 
vented gas logs. (R.H. Peterson, No. 218 at p. 5)
    Intertek stated that there currently is no recognized test method 
for evaluation of the efficiency of gas log sets and that it is 
difficult to adapt the test procedure for vented hearth products to 
primarily decorative products, because the basic premise of the vented 
hearth product test procedure is that the appliance is operated to 
satisfy a heating load. (Intertek, No. 198 at pp. 2-3) NPGA stated that 
the efficiency of a product can be determined only in reference to how 
efficiently it serves its intended purpose, so the DOE test procedure 
does not apply to primarily decorative hearth products. (NPGA, No. 209 
at p. 4) NPGA stated that to measure energy efficiency and stack 
losses, it is critical to have a test procedure that can account for 
the high and variable amount of dilution air, especially for gas log 
sets, and explained that based on testing by the Gas Technology 
Institute (GTI), the amount of CO2 required to account for 
stack losses creates too large an error

[[Page 71851]]

band to produce accurate results. (NPGA, No. 209 at p. 7) AGA stated 
that products designed and certified to ANSI Z21.50 or ANSI Z21.60 have 
been included, though they have no applicable test procedure. Further, 
AGA stated that when the test procedures for home heating equipment 
(not including furnaces) were developed, the ANSI Z21.50 or ANSI Z21.60 
products were not considered part of the developed test method. (AGA, 
Public Meeting Transcript, No. 14 at pp. 21-22) AGA also stated that 
manufacturers that do not comply with ANSI Z21.50 or manufacturers who 
certify to a different standard would not be excluded from the direct 
heating equipment standards, but would not be able to demonstrate 
compliance under the current test procedures. (AGA, No. 217 at p. 2)
    In considering the test procedures for vented home heating 
equipment as they apply to hearth products, DOE recognizes that the 
test procedures may not be applicable for gas log sets. Because DOE is 
not requiring the vented gas log sets to meet the standards for gas 
hearth direct heating equipment and is not requiring the products to 
meet any criteria for exclusion, the applicability of test procedures 
for those products is no longer relevant. However, as covered products, 
DOE may develop a test procedure for vented gas log sets in the future.
    In the December 2009 NOPR, DOE proposed that its test procedures 
for vented direct heating equipment be applied to establish the 
efficiencies of vented gas hearth direct heating equipment. 74 FR 
65852, 65861 (Dec. 11, 2009). In the April 2010 final rule, DOE noted 
that it received no comments from interested parties raising any 
concern in response to the NOPR about the application of the DOE test 
procedures for vented direct heating equipment to gas hearth direct 
heating equipment. 75 FR 20112, 20123 (April 16, 2010). DOE believes, 
therefore, that the test procedures for vented home heating equipment 
are generally applicable to gas hearth direct heating equipment. DOE 
believes that heating products can be tested using the vented home 
heating equipment test procedures, even though the test procedure may 
not be tailored specifically to these products. However, DOE is 
considering modifications to the direct heating equipment test 
procedures in a test procedure rulemaking for heating products (i.e., 
water heaters, direct heating equipment, and pool heaters). DOE 
published a request for information in the Federal Register on October 
12, 2011, which has a 45-day comment period that is open until November 
28, 2011. 76 FR 63211. DOE is considering potential changes to the test 
procedure for vented home heating equipment that would clarify the 
procedure with respect to hearth heating products to reduce ambiguity 
and ensure that it is applied uniformly to vented hearth heating 
products. DOE encourages interested parties to comment on any test 
procedure issues as a part of that ongoing rulemaking. Additionally, 
DOE notes that if there is adequate evidence that a certain subset of 
products exists that have characteristics that prevent them from being 
tested according to the prescribed test procedures, manufacturers have 
the option of submitting a petition of waiver in accordance with 10 CFR 
430.27.
2. DOE Analysis and Public Meeting Conduct
    DOE received comments generally about the September 1, 2011 public 
meeting and its analysis for the July 2011 NOPR. HPBA stated that 
public meeting was not conducted in accordance with law, because DOE 
did not provide any substantive response to questions from interested 
parties. (HPBA, No. 201 at p. 6) Similarly, R.H. Peterson stated that 
DOE offered only non-responsive answers during the public meeting. 
(R.H. Peterson, No. 218 at p. 10) NPGA stated that DOE violated EPCA by 
refusing to participate in questioning at the public meeting and by not 
providing adequate information upon which to comment. (NPGA, No. 209 at 
pp. 5-6) Further, NPGA asserted that DOE is imposing a performance and 
design standard in the current rulemaking and has not undergone the 
appropriate rulemaking process by not fully considering the standards' 
technological feasibility and economic justification. (NPGA, No. 209 at 
pp. 5-6) NPGA stated that because the underlying final rule was in 
error, the July 2011 NOPR proposing to amend the April 2010 final rule, 
is also in error. (NPGA, Public Meeting Transcript, No. 14 at p. 31) In 
addition, HPBA stated that DOE has not submitted relevant data, 
documentation, or research to explain, support, or clarify the NOPR, 
and that these materials must be made publicly available in advance of 
the comment period. (HPBA, No. 128 at p. 1) HPBA also stated that DOE 
failed to fulfill its obligation to consider other less-costly 
alternatives to the prohibition of standing pilot lights, and asserted 
that simply providing information for the public to make informed 
energy conservation decisions would achieve equal or greater energy 
conservation benefits. (HPBA, Public Meeting Transcript, No. 14 at pp. 
23-24) HPBA stated that there is a disconnect in this proposal, because 
DOE did not look at whether applying heating standards to primarily 
decorative products was technologically feasible or economically 
justified when the original standards were put in place. (HPBA, Public 
Meeting Transcript, No. 14 at p. 112) Further, HPBA stated that the 
heating efficiency standards are not technologically feasible for gas 
log sets and many primarily decorative gas fireplaces. (HPBA, Public 
Meeting Transcript No. 14 at p. 22) R.H. Peterson stated that it would 
be impossible for them to redesign and certify their products that 
would need to be recertified with the new pilot light restriction. 
(R.H. Peterson, Public Meeting Transcript, No. 14 at p. 56)
    In response, DOE notes that an extremely detailed analysis was done 
by DOE in promulgation of the April 2010 final rule. Because the NOPR 
proposals were definitional changes only to that fully analyzed rule 
and given the temporal proximity of the two rulemakings, DOE was able 
to rely on that prior analysis and to analyze the incremental changes 
that were being proposed in the July 2011 NOPR. Further, in this 
rulemaking proceeding, DOE is not imposing any mandatory burdens on 
manufacturers. Rather, in this rulemaking, DOE is providing 
manufacturers of primarily decorative hearth products with an 
alternative to meeting the standards promulgated by the April 2010 
final rule for gas hearth direct heating equipment. Regarding conduct 
at the public meeting, DOE notes that the primary purpose of the 
meeting was to facilitate stakeholder involvement and allow an 
opportunity for feedback on the positions presented by DOE in the July 
2011 NOPR. DOE respectfully listened to the statements and opinions 
voiced by the participants at the public meeting. In fact, much of the 
comment related to gas log sets received by DOE at the public meeting 
was extremely helpful in leading DOE to withdraw in this final rule the 
proposed exclusion criteria for that product and to exclude at this 
time all gas log sets from the gas hearth direct heating equipment 
energy conservation standards.
3. Impacts of Proposed Definition
a. Consumer Choice
    Several interested parties stated that the proposed definition 
would impact consumer choice. In particular, these interested parties 
stated that the proposed definition would force them to change the 
products they sell and distribute, which would impose a burden on 
consumer choice. (Perfection,

[[Page 71852]]

No. 115 at p. 1; Sheldon Skolnick Associates, No. 118 at p. 1; Hearth 
and Home, Inc., No. 144 at p. 1; American Gas Log, No. 49 at p. 1; 
Modern Gas, No. 213 at p. 1) Rasmussen stated that the new standard 
would limit consumer choice and drastically increase prices for gas log 
sets. (Rasmussen, Public Meeting Transcript, No. 14 at p. 84) R.H. 
Peterson stated that the standard would limit consumer alternatives and 
deprive consumers of gas log sets which are more efficient than 
existing wood-burning fireplaces. (R.H. Peterson, Public Meeting 
Transcript, No. 14 at p. 37) AGA voiced concern over the replacement 
market and what the product availability would be if the July 2011 NOPR 
proposal went into effect. (AGA, Public Meeting Transcript, No. 14 at 
p. 86)
    Several interested parties stated that this rulemaking is 
compounding problems caused by the April 2010 final rule, which defined 
all hearth products with input over 9,000 BTUs as direct heating 
equipment. (Thompson Gas, No. 95 at p. 1; Short's Stoves, No. 174 at p. 
1; Hearth and Home, Inc., No. 144 at p. 1; Sheldon Skolnick Associates, 
No. 118 at p. 1; New Jersey Propane Gas Association, No. 212 at p. 1; 
Form Letter Comments; Penn Valley, No. 116 at p. 1; HWAM, No. 43 at p. 
1; Perfection, No. 115 at p. 1)
    In contrast to the views expressed by the stakeholders in the 
preceding paragraph, DOE believes that the amended definition will 
increase consumer choice and product availability by better defining 
those vented hearth products that are primarily intended for heating 
purposes and those that are primarily intended for decorative purposes. 
Additionally, DOE notes that this rule eliminates the previous 
exclusion criteria of having an input capacity at or below 9,000 Btu/h. 
DOE believes that many of the comments made in reference to consumer 
choice related to the elimination of match lit gas log sets that would 
have occurred under the July 2011 proposal. Because this final rule 
does not adopt exclusion criteria for vented gas log sets and excludes 
them from energy conservation standards for gas hearth direct heating 
equipment, the concern about limiting consumer choice with respect to 
gas log sets is no longer an issue.
b. Energy Savings
    Several interested parties expressed their belief that this 
rulemaking would save little to no energy. (Heritage Propane, No. 33 at 
p. 1; Nevada Propane Dealers Association, No. 30 at p. 1; Barbara 
Jenkins; No. 22 at p. 1; HWAM, No. 43 at p. 1; LF Pugh and Associates, 
No. 76 at p. 1) Other interested parties elaborated that the amendments 
proposed in the July 2011 NOPR would cause consumers to use heating 
products for decorative effects, resulting in an overall increase in 
energy use. (Perfection, No. 115 at p. 1; Hearth and Home, Inc., No. 
144 at p. 1; Form Letter Comments; Sheldon Skolnick Associates, No. 118 
at p. 1) Thomas McGinnis of AmeriGas commented that he believes the 
rulemaking will not save energy because direct heating equipment 
produces more heat, which they believe will cause consumers to turn on 
air conditioning equipment, run fans, or open windows to get rid of 
unwanted heat. (Thomas McGinnis (AmeriGas), No. 26 at p. 1) Empire 
Comfort Systems stated that vented hearth products is the smallest 
energy user of all products targeted for regulation. (Empire, Public 
Meeting Transcript, No. 14 at p. 62) Similarly, Independence Marketing 
remarked that primarily decorative fireplaces consume 0.005 percent of 
the nearly 25,000 trillion BTUs of annual U.S. gas consumption, and of 
that, pilot lights consume 0.00165 percent. (Independence Marketing 
Ltd, No. 214 at p. 1)
    As noted above in section III.C, DOE calculated the energy savings 
that would result from switching from standing pilot lights to other 
non-continuously-burning ignition sources for primarily decorative 
hearth products. Based upon the analysis described in section III.C, 
DOE found that this change would result in 0.17 quads of energy savings 
over the analysis period. DOE believes these potential energy savings 
are significant, despite the commenters' anecdotal statements to the 
contrary.
c. Environmental Impacts
    Several interested parties stated that the proposed regulations in 
the July 2011 NOPR would promote the use of wood-burning fireplaces for 
decorative purpose. (Form Letter Comments; Fairview, No. 25 at p. 1; 
New Jersey Propane Gas Association, No. 212 at p. 1; Perfection, No. 
115 at p. 1; Oahu Gas Service, No. 166 at p. 1; Penn Valley, No. 116 at 
p. 1; Siouxland, No. 85 at p. 1; Hearth and Home, Inc., No. 144 at p. 
1; Sheldon Skolnick Associates, No. 118 at p. 1; Gas-fired products, 
No. 155 at p. 1) Other interested parties stated that the proposed 
regulation would promote use of wood-burning fireplaces, and that this 
would have a negative environmental impact because gas hearth products 
burn cleaner than wood-burning appliances. (Rasmussen, No. 208 at p. 
13; R.H. Peterson, Public Meeting Transcript, No. 14 at p. 43; Jack's 
Butane Service, No. 23 at p. 1; Big Woods, No. 3 at p. 1; San 
Bernardino Fireplace and Woodstove, No. 11 at p. 2; Arizona Gas, No. 98 
at p. 2m). Further, R.H. Peterson noted that a number of entities, 
including the NRDC and American Lung Association, support the 
transition from wood-burning fireplaces to gas log sets and that there 
is a program in Los Angeles that encourages and pays consumers to 
switch to gas log sets. (R.H. Peterson, Public Meeting Transcript, No. 
14 at p. 42)
    In response, DOE notes that definition adopted in this final rule 
would exclude vented gas log sets from having to comply with gas hearth 
direct heating equipment standards, without requiring that they meet 
any criteria for exclusion. Therefore, consumers would not be 
discouraged from replacing their wood-burning fireplaces with a gas log 
set as a result of this rule. DOE believes, therefore, that this 
rulemaking will not promote wood burning fireplaces and there will be 
no negative environmental impacts.
d. Impacts on Manufacturers
(i) Employment Impacts
    DOE received a number of comments stating that the hearth industry 
and employment would be negatively impacted by the proposals in the 
July 2011 NOPR. Empire Comfort Systems commented that DOE is not 
considering the economic condition of the hearth industry, which is a 
stressed industry directly affected by the housing market downturn, and 
that these regulations will likely promote more job losses for a minor 
energy savings. (Empire, Public Meeting Transcript, No. 14 at pp. 63-
64) Several other interested parties commented that the proposed 
regulations would have a significant negative impact on the hearth 
industry and would eliminate jobs. (Firelight, No. 206 at p. 1; 
Homefires, No. 10 at p. 1; Top Hat, No. 168 at p. 1; NPGA, No. 209 at 
p. 2; Sheldon Skolnick Associates, No. 118 at p. 1; H&S Oil, No. 125 at 
p. 1; East Texas Brick Co., No. 135 at p. 1; Nevada Propane Dealers 
Association, No. 30 at p. 1; Percy Guidry Hearth and Patio, No. 18 at 
p.4; Big Woods, No. 3 at p. 1; Mazzeo, No. 16 at p. 1; Independence 
Marketing Ltd, No. 214 at p. 2) APGA commented that natural gas 
distributors would be adversely impacted by this rulemaking as well. 
(AGPGA, No. 223 at p. 1)
    Numerous interested parties stated that the impact of the proposed 
standards on small business

[[Page 71853]]

manufacturers, distributors, and marketers would be significant, 
because the industry cannot meet the requirements and products would be 
too expensive to be viable in the marketplace. (Penn Valley, No. 116 at 
p. 2; Perfection, No. 115 at p. 2; American Gas Log, No. 49 at p. 2; 
Hearth and Home, Inc., No. 209 at p. 2; Sheldon Skolnick Associates, 
No. 118 at p. 1; Slate Spring, No. 92 at p. 1; Short's Stoves, No. 174 
at p. 1) Other interested parties stated that the rulemaking would 
place an unnecessary and onerous burden on their company. (American Gas 
Log, No. 49 at p. 1; Sheldon Skolnick Associates, No. 118 at p. 1; 
Perfection, No. 115 at p. 1; Hearth and Home, Inc., No. 144 at p. 1; 
Form Letter Comments; Thompson Gas, No. 191 at p. 1; Oahu Gas Service, 
No. 166 at p. 1)
    DOE disagrees with these comments and believes that today's final 
rule will have positive employment benefits, because the exclusion 
criteria being adopted in today's notice, as compared to the criteria 
in the April 2010 final rule, will reduce manufacturer burden, and that 
the exclusion criteria adopted in today's rule are less likely than the 
original exclusion criteria to cause job losses in the hearth industry. 
Furthermore, DOE believes that the impacts of today's rule are 
mitigated because DOE is not adopting exclusion requirements or an 
energy conservation standard for gas log sets in today's rule. It is 
important to remember that this final rule merely provides 
manufacturers with a choice in terms of either complying with the 
energy conservation standards or availing themselves of the exclusion 
from those standards.
(ii) Small Business Impacts
    DOE received several comments relating to how small businesses 
producing vented hearth products and gas log sets would be impacted. 
Multiple interested parties stated that a significant price increase 
associated with the proposed requirements would have a negative impact 
on small business entities. (R.H. Peterson, Public Meeting Transcript, 
No. 14 at p. 55; Form Letter Comments; Advantage, No. 13 at p. 1; 
Independence Marketing Ltd, No. 214 at p. 1; Creekside Hearth & Patio, 
No. 21 at p. 1; Sundance Leisure, No. 17 at p. 4; Crik-IT, No. 15 at p. 
3;) In contrast, NRDC commented that the impact on small businesses is 
not significant enough to sacrifice the anticipated energy savings. 
(NRDC, No. 216 at p. 3)
    In response, DOE believes that this final rule lessens the impacts 
as compared to the proposed standard and to the April 2010 final rule. 
For today's rule, DOE is not adopting exclusion requirements or minimum 
energy efficiency standards for gas log set manufacturers, thereby 
eliminating all burden related to those products. Additionally, DOE 
believes this rule reduces the burden on small manufacturers of 
primarily decorative hearth products when considered in comparison to 
meeting the April 2010 energy conservation standards. DOE acknowledges 
that the exclusion criteria would still have impacts on small business 
manufacturers of primarily decorative hearth products. DOE estimates 
industry conversion costs totaling $90,000 to $1.8 million for the four 
exclusion criteria. The full analysis of the number of small businesses 
and of the impacts on small businesses can be found in section IV.B.
    SBA stated that DOE significantly underestimated the number of 
small businesses producing gas log sets and, consequently, the cost to 
the industry of complying with the rule. SBA estimated that there are 
between twenty and fifty manufacturers of primarily decorative gas 
fireplaces and/or gas log sets, almost all of which are small 
businesses. (SBA, No. 96 at p. 4) HPBA stated that the NOPR estimate of 
14 small businesses (for both vented hearth and gas log set products) 
being impacted is low by a wide margin, and does not take into account 
distributors and retailers who are small businesses. (HPBA, No. 201 at 
p. 24)
    For gas lost set products, public comments helped make DOE aware 
that it had not identified all of the relevant small manufacturers at 
the NOPR stage. However, for the final rule, DOE is not adopting 
exclusion requirements or minimum energy efficiency standards for gas 
log set manufacturers, thereby eliminating all burden related to those 
products. For vented hearth products that are subject to the exclusion 
criteria, DOE conducted an additional round of investigation to 
identify small manufacturers of primarily decorative hearths. 
Consistent with SBA's finding, DOE identified thirty-six manufacturers 
of decorative hearth products (excluding gas log set manufactures). 
However, out of these thirty-six companies, only ten qualified as small 
domestic manufacturers of products covered by this rule. DOE believes 
this rule reduces the burden on these small manufacturers of primarily 
decorative hearth products by providing the exclusion criteria as an 
alternative to meeting energy conservation standards.
(iii) Cost of Compliance
    DOE received several comments regarding the cost to comply with the 
exclusion criteria. American Gas Log stated that the dollar estimate 
for testing, redesigning, and recertifying their gas log set product 
lines would be in excess of $350,000. (American Gas Log, No. 146 at p. 
2) Rasmussen commented that the conversion costs would be extremely 
high and could force them to leave the gas log set business. 
(Rasmussen, No. 208 at p. 11) HPBA stated that DOE's assumption that 
there would be no regulatory burdens associated with certification is 
not correct, because there are significant numbers of vented hearth 
products and vented gas log sets that are not certified to ANSI Z21.50 
and Z21.60. Furthermore, HPBA stated that a number of gas log sets 
cannot be certified to ANSI Z21.60. (HPBA, Public Meeting Transcript, 
No. 14 at pp. 24-25) HPBA also stated that the NOPR mischaracterizes 
the impacts the rule would have by assuming no regulatory burdens 
associated with the certification of primarily decorative products 
(most are not certified or cannot be), and that there will be no 
burdens associated with modifying product labeling and literature. 
Further, HPBA stated that the elimination of standing pilot lights 
would require redesign work, and would affect pricing. (HPBA, No. 201 
at p. 24) Plumbing-Heating-Cooling Contractors Association commented 
that DOE estimated an average of $9,000 per unit for modifying and 
recertifying primarily decorative hearth products, which PHCC considers 
too low. (PHCC, No. 199 at p. 1) NPGA stated that research and 
development would be a huge financial burden to manufacturers which DOE 
has underestimated. NPGA stated that certification would cost between 
$1,500 and $2,000 per model. (NPGA, No. 209 at p. 10) Similarly, Empire 
stated that the proposed amendments would cause expenditures in 
research and development, engineering, marketing, and inventory. 
(Empire, No. 2 at p. 2)
    Incorporating feedback from gas log set manufacturers, this final 
rule does not set exclusion criteria or energy conservation standards 
for gas log set manufacturers, thereby reducing burden on the industry. 
DOE presents an analysis of the costs of compliance for small business 
manufacturers of primarily decorative hearths in section IV.B of this 
notice. While PHCC states that DOE's conversion costs are too low, the 
trade association does not provide or justify revised estimates. 
Alternatively, NPGA recommended a certification cost

[[Page 71854]]

that is below DOE's estimate. However, based on interviews with gas 
hearth heater manufacturers during the April 2010 rulemaking, DOE 
believes its original estimates of compliance costs for hearth products 
are correct.
4. Procedural Requirements
    NPGA stated that this rulemaking does not comply with Executive 
Order 12988, ``Civil Justice Reform,'' because key terms are not 
adequately defined and the April 2010 rule and this rulemaking have not 
minimized litigation, as required by the Executive Order. (NPGA, No. 
209 at p. 11) NPGA also commented that DOE violated Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' because the 
energy savings for both vented hearth products and vented gas log sets 
were erroneously skewed. (NPGA, No. 209 at p. 5) HPBA commented that 
the NOPR was issued without adequate basis, in violation of Executive 
Order 13563, because it did not provide a reasoned determination that 
the benefits justify its costs. (HPBA, No. 201 at p. 2) NPGA also 
stated that this rulemaking did not meet the requirements of the 
Administrative Procedure Act, because the April 2010 final rule 
promulgated a definition that was not included in the December 2009 
NOPR and the public did not have an opportunity to comment on that 
definition. (NPGA, Public Meeting Transcript, No. 14 at p. 31) 
Congressman Mike Rogers remarked that DOE did not request comments on 
regulatory requirements for decorative vented gas fireplaces in the 
December 2009 NOPR and that this rulemaking runs counter to President 
Obama's Executive Order aimed at improving agency rulemakings. (Mike 
Rogers, No. 225 at p. 1)
    SBA stated that DOE must use the statutorily-prescribed process for 
imposing an energy efficiency standard upon manufacturers of vented gas 
log sets and cannot redefine ``vented hearth heater'' to cover vented 
gas log sets, thereby circumventing the required procedure for 
establishing a standard. (SBA, No. 96 at p. 3)
    In response, DOE first notes that in response to comments DOE is 
not requiring gas log sets to meet the standards for gas hearth direct 
heating equipment, or to meet any criteria for exclusion from the 
standards at this time. Regarding primarily-decorative hearth products, 
DOE notes that these products were explicitly considered in the April 
2010 final rule. The April 2010 final rule was preceded by the December 
2009 NOPR (74 FR 65852 (Dec. 11, 2009)) which allowed for public 
comment on the proposed standards and definitions related to vented 
hearth products. The issue of an exclusion for decorative products and 
how to differentiate between products that are heaters and products 
that are primarily decorative was raised in comments at the NOPR public 
meeting (Public Meeting Transcript for Heating Products NOPR Public 
Meeting held on January 7, 2010, No. EERE-2006-STD-0129-0089 at pp. 48-
52), so DOE's definitional changes at the time of the final rule were a 
logical outgrowth of public comments. As discussed in sections IV.A and 
IV.F, DOE believes this final rule satisfies the requirements of 
Executive Order 13563 and 12988, respectively.
5. Product Characteristics
    R.H. Peterson argued that DOE incorrectly assumed that gas logs 
have similar characteristics to primarily decorative fireplaces, and 
instead, the commenter stated that gas log sets can only be used in 
wood-burning fireplaces and have different characteristics than 
primarily decorative gas fireplaces. (R.H. Peterson, Public Meeting 
Transcript, No. 14 at p. 38) Rasmussen stated that DOE had previously 
recognized that there is a difference between gas log sets and other 
gas hearth products, that there is a difference in construction between 
the two types of products, and that the two types of products have 
different heating capabilities. Rasmussen elaborated that fireplaces 
are designed as a completed system where removing the logs would 
compromise safety, but vented gas log sets in wood-burning fireplaces 
can be changed out. (Rasmussen, Public Meeting Transcript, No. 14 at p. 
71)
    As noted in the Frequently Asked Questions: `Vented Hearth Heater' 
Definition that was published on DOE's Web site after the April 2010 
final rule, DOE agrees that there are differences between gas log sets 
and primarily decorative hearth products, both in construction and 
heating ability. Given those constructional and operational differences 
of the products, DOE is not requiring at this time that vented gas log 
sets meet any criteria to be exempt from the standards for gas hearth 
direct heating equipment that were promulgated in the April 2010 final 
rule, while DOE is establishing criteria for primarily decorative 
hearth products to meet to qualify to be excluded from the direct 
heating equipment energy conservation standards. However, DOE also 
notes that there are basic similarities, in that both units are 
inserted in the living space and provide heat. Therefore, as explained 
previously, DOE believes both types of products are properly classified 
as direct heating equipment.
6. Requests To Delay or Discontinue Rulemaking
    DOE received a number of comments requesting that DOE reconsider or 
withdraw this rulemaking, and abandon regulating primarily decorative 
hearth products. (Empire, Public Meeting Transcript, No. 14 at p. 64; 
Hearth and Home, Inc., No. 144 at pp. 1-2; Hearth and Home Shoppe, No. 
207 at p. 2; Sheldon Skolnick Associates, No. 118 at p. 1; Gas-fired 
Products, No. 155 at p. 1; Short's Stoves, No. 174 at p. 1; Penn 
Valley, No. 116 at p. 3; APGA, No. 223 at p. 1; NPGA, No. 209 at pp. 2 
and 12; Thompson Gas, No. 95 at p. 1; Gresham Petroleum, No. 165 at p. 
1; L.E. Klein, No. 162 at p. 1; New Jersey Propane Gas Association, No. 
212 at p. 1; Rasmussen, No. 208 at p. 13; Jack's Butane Service, No. 23 
at p. 1; Perfection, No. 115 at pp. 1-2; Modern Gas, No. 213 at p. 1; 
Fairview, No. 25 at p. 1; Form Letter Comments; Nevada Propane Dealers 
Association, No. 30 at p. 1; American Gas Log, No. 49 at p. 1; 
Siouxland, No. 85 at p. 1; Thompson; LF Pugh and Associates, No. 76 at 
p. 1; Slate Spring, No. 92 at p. 1; Heritage Propane, No. 33 at p. 1; 
Hearth & Home Technologies, No. 204 at p. 3; H&S Oil, No. 125 at p. 1; 
Arizona Gas, No. 98 at p. 1; HWAM, No. 43 at p. 1; Fred Pierce, No. 219 
at p. 2; Mike Rogers (U.S. Congressman), No. 225 at p. 1)
    Several interested parties urged DOE to request that Congress enact 
a corrective statutory definition that states that primarily decorative 
vented gas fireplaces and gas log sets are not direct heating 
equipment. (Hearth and Home, Inc., No. 144 at p. 2; Sheldon Skolnick 
Associates, No. 118 at p. 1; Russo, No. 56 at p. 1) Congressman Mike 
Rogers requested that DOE issue a stay of the effective date of the 
April 2010 Final Rule as related to primarily decorative hearth 
products until Congress can enact legislation to clarify the 
definitional distinction between primarily decorative vented gas 
fireplaces and gas log sets. (Mike Rogers, No. 225 at p. 2)
    In response, DOE believes that the exclusion criteria included in 
the April 2010 final rule have several limitations, which will be 
improved through the rulemaking process. The HPBA (a major trade 
association for hearth manufacturers) and several manufacturers 
expressed concerns about being able to meet the exclusion criteria in 
the April 2010 final rule and still produce products that consumers 
will want to buy. Additionally, as noted

[[Page 71855]]

previously, the limit on input capacity could have allowed certain 
heating hearth products to qualify for the primarily decorative 
exclusion. For these reasons, DOE believes that, while ensuring energy 
conservation, it should assist both industry and consumers with a 
clear, objective set of criteria to distinguish those vented hearth 
heaters that are primarily intended as heaters and all agree should be 
subject to energy conservation standards from those vented hearth 
heaters that are primarily intended for decorative purposes. 
Accordingly, DOE is issuing today's final rule amending the definition 
of ``vented hearth heater.''

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866 and 13563

    Today's regulatory action has been determined to not be a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, the Office of Information and Regulatory Affairs 
(OIRA) in the Office of Management and Budget (OMB) is not required to 
review this rule.
    DOE has also reviewed this regulation pursuant to Executive Order 
13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). 
Executive Order 13563 is supplemental to and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
agencies are required by Executive Order 13563 to: (1) Propose or adopt 
a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct regulation, including providing economic incentives to encourage 
the desired behavior, such as user fees or marketable permits, or 
providing information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. For the reasons stated in the preamble, 
DOE believes that today's final rule is consistent with these 
principles, including the requirement that, to the extent permitted by 
law, agencies adopt a regulation only upon a reasoned determination 
that its benefits justify its costs, and in choosing among alternative 
regulatory approaches, those approaches maximize net benefits.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a final regulatory flexibility analysis (FRFA) for any 
rule that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site (http://www.gc.doe.gov).
    DOE reviewed the impacts of the proposed amendments in today's 
final rule under the provisions of the Regulatory Flexibility Act and 
the procedures and policies discussed above. As a result of this 
review, DOE has prepared a FRFA for vented hearth products, a copy of 
which DOE will transmit to the Chief Counsel for Advocacy of the SBA 
for review under 5 U.S.C. 605(b). As presented and discussed below, the 
FFRA describes potential impacts on small manufacturers of vented 
hearth products associated with the required capital and product 
conversion costs from the proposed amended definition for ``vented 
hearth heater,'' which would change the scope of the exclusion from the 
applicable energy conservation standard.
1. Statement of the Need for, and Objectives of, the Rule
    The reasons why DOE is amending the definition of ``vented hearth 
heater'' in today's final rule and the objectives of this and other 
related amendments are provided elsewhere in the preamble and not 
repeated here.
2. Description and Estimated Number of Small Entities Regulated
    For manufacturers of direct heating equipment, the Small Business 
Administration (SBA) has set a size threshold, which defines those 
entities classified as ``small businesses'' for the purposes of the 
statute. DOE used the SBA's small business size standards to determine 
whether any small entities would be subject to the requirements of the 
rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 
53544 (Sept. 5, 2000) and codified at 13 CFR part 121. The size 
standards are listed by North American Industry Classification System 
(NAICS) code and industry description, which are available at: http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf. Direct 
heating equipment manufacturing is classified under NAICS 333414, 
``Heating Equipment (except Warm Air Furnaces) Manufacturing.'' The SBA 
sets a threshold of 500 employees or less for an entity to be 
considered as a small business for this category.
    In preparation for the April 2010 final rule, DOE conducted a 
market survey using available public information to identify potential 
small manufacturers of the type of products that are the subject of 
this rulemaking. DOE asked stakeholders and industry representatives if 
they were aware of any small manufacturers during manufacturer 
interviews and at previous DOE public meetings. DOE reviewed publicly-
available data and contacted various companies, as necessary, to 
determine whether they met the SBA's definition of a small business 
manufacturer of covered residential direct heating equipment. DOE 
screened out companies that did not offer products covered by this 
rulemaking, did not meet the definition of a ``small business,'' or are 
foreign owned and operated. Additionally, DOE conducted a second round 
of research based on the HPBA membership directory, AHRI product 
databases, SBA databases, and individual company Web sites to find 
potential small business manufacturers for this rulemaking. In total, 
DOE identified 36 companies that manufactured hearth products (e.g.,

[[Page 71856]]

fireplaces and/or fireplace inserts). Of those 36 companies, 26 
manufactured gas vented hearth products that are covered by this 
rulemaking. Of those 26 companies, five were large manufacturers. Of 
the 21 small businesses, 11 were foreign owned and operated and 10 were 
domestically owned and operated. Therefore, DOE identified 10 small 
domestic manufacturers of vented gas hearth products that are subject 
to the energy conservation standard.
    Before issuing the NOPR that lead to the April 2010 final rule, DOE 
attempted to contact the small business manufacturers of vented hearth 
products. One of the small businesses consented to being interviewed 
during the MIA interviews, and DOE received feedback from an additional 
two small businesses through survey responses. DOE also obtained 
information about small business impacts while interviewing 
manufacturers that exceed the small business size threshold of 500 
employees in this industry.
3. Description and Estimate of Compliance Requirements
    For the April 2010 final rule, DOE calculated the anticipated 
capital and product development costs for vented hearth heaters by 
estimating per-line cost and average number of product lines for a 
typical small business manufacturer. DOE used certification databases, 
product catalogs, interviews with manufacturers, and sources of public 
information to estimate the impacts of the rule on small business 
manufacturers. In the final rule, DOE concluded that because a typical 
manufacturer of vented hearth products already offers multiple product 
lines that meet and exceed the required efficiencies and because most 
product lines that did not meet the proposed standard could be upgraded 
with relatively minor changes, manufacturers, including the small 
business manufacturers, would be able to maintain a viable number of 
product offerings. 75 FR 20112, 20231 (April 16, 2010).
    In order to comply with the energy conservation standards 
promulgated in the April 2010 final rule, manufacturers of primarily 
decorative hearth products with efficiencies lower than the minimum 
allowable standard would need to either: (1) Redesign their products to 
meet the required standard level for gas hearth direct heating 
equipment; (2) redesign their products to ensure that input ratings are 
below 9,000 Btu/h; or (3) discontinue manufacturing those products. In 
the April 2010 final rule, DOE assumed manufacturers would redesign 
their products with input rating below 9,000 Btu/h with relatively 
minor changes to existing primarily decorative products. 75 FR 20112, 
20129 (April 16, 2010). Under the amended definition of ``vented hearth 
heater'' in this notice, the 9,000 Btu/h limitation would no longer 
apply for purposes of exclusion from the energy conservation standard. 
Instead, vented hearth products (regardless of input rating) would not 
be subject to the minimum standard for vented hearth heaters if they 
comply with the four criteria outlined above (i.e., (1) certified to 
ANSI Standard Z21.50, but not to ANSI Standard Z21.88); (2) sold 
without a thermostat and with a warranty provision expressly voiding 
all manufacturer warranties in the event the product is used with a 
thermostat; (3) expressly and conspicuously identified on its rating 
plate and in all manufacturer's advertising and product literature as a 
``Decorative Product: Not For Use As A Heating Appliance''; and (4) 
with respect to products sold after January 1, 2015, not equipped with 
a standing pilot light or other continuously-burning ignition source). 
Under the April 2010 final rule, vented gas log sets were not 
addressed. However, today's final rule explicitly provides that vented 
gas log sets are not subject to the energy conservation standard at 
this time.
    Each of the exclusion criteria for primarily decorative gas hearth 
products would have impacts on small business manufacturers. The first 
criterion (that the product must be certified to ANSI Standard Z21.50, 
but not ANSI Standard Z21.88 for decorative hearth products) would 
likely impose minimal new conversion costs on small businesses, but has 
the potential to impose costs up to $1.7 million. According to industry 
representatives, products that are primarily decorative in nature are 
generally certified to ANSI Standard Z21.50 (vented hearth products) 
while products that are heaters by nature are generally certified to 
ANSI Standard Z21.88 by manufacturers. Products that are certified to 
the appropriate ANSI standard today will not incur additional product 
conversion costs. However, for some hearth heating product lines, 
manufacturers may choose to eliminate optional thermostat features and 
certify to ANSI Z21.50 rather than meet the energy conservation 
standard for hearth heaters, which would require them to recertify 
products if they are currently certified to ANSI Z21.88. Under this 
scenario, the exclusion criteria could lead to product conversion 
costs. Based on publicly-available product information from the 10 
small domestic manufacturers, DOE identified 189 vented hearth product 
lines certified to ANSI Z21.88. While manufacturers are not likely to 
recertify all these products to ANSI Z21.50, the total ANSI 
recertification cost of all 189 product lines provides an upper bound 
on the product conversion costs. This upper bound for this first 
exclusion criterion is estimated to total $1.7 million. DOE expects the 
actual conversion cost to be lower than this figure.
    Regarding the second criterion that eliminates the option for 
manufacturers to offer a thermostat with any primarily decorative 
hearths, DOE does not believe that this would impose any capital 
conversion costs because thermostats are optional features on primarily 
decorative products. Thus, their removal would not require redesign of 
existing manufacturing lines.
    The third criteria would require manufacturers to clearly identify 
the decorative nature of the vented hearth product, as well as further 
detail the warranty provisions of the hearth product. These provisions 
would require an update of the product and marketing literature and 
product labeling, which DOE believes would result in added product 
conversion costs. However, DOE notes that product conversion costs to 
update manufacturer literature and labels are also required under the 
definition and standards for gas hearth direct heating equipment (i.e., 
vented hearth heaters) set forth by the April 2010 final rule, due to 
the requirements for making representations of the AFUE as well as 
certifying compliance to the Department. Under the April 2010 final 
rule, all of the product and marketing materials would have to have 
been revised to reflect the test AFUE. Because the compliance date for 
the standards promulgated in the April 2010 final rule is April 2013, 
DOE believes that manufacturers have likely not already updated product 
literature in preparation for compliance with those standards. 
Consequently, DOE estimated that all manufacturers, including small 
businesses, would incur product conversion costs for new labels and 
literature under the 2010 final rule. DOE believes the third criteria 
would result in similar updates to product specifications, marketing 
materials, and products labels to make clear the intended use of 
primarily decorative hearths. This would not impose a product 
conversion cost beyond the cost associated with the April 2010 final 
rule. Thus, DOE concludes the labeling requirement would have a minimal

[[Page 71857]]

impact additional on manufacturers, including small businesses.
    Lastly, DOE considered the criterion that requires manufacturers to 
eliminate standing pilot lights and other continuously-burning ignition 
devices from primarily decorative vented hearth products by January 1, 
2015. This would likely cause manufacturers to incur conversion costs 
to qualify for the proposed exclusion from the energy conservation 
standards. To calculate the conversion costs for primarily decorative 
hearth products to remove standing pilots, DOE used publicly-available 
information for the 10 domestic small business manufacturers to 
identify all vented hearth products certified to the ANSI Z21.50 
standard. DOE found the total number of product lines manufactured by 
small businesses for primarily decorative vented hearth products to be 
20. Based on a review of all small business manufacturers' products, 
DOE estimated that 47 percent of primarily decorative gas hearth 
products would have to remove standing pilots. Therefore, 10 of these 
product lines would have to be upgraded by January 1, 2015.
    DOE believes that the elimination of standing pilot would only 
result in product conversion costs associated with testing and 
recertification to the ANSI safety standards for the newly designed 
products. If all 10 product lines need to be retested and recertified 
as a result of the elimination of standing pilots or other 
continuously-burning ignition sources from the system, the estimated 
product conversion cost would be approximately $90,000 for the set of 
small businesses to comply with the January 1, 2015 exclusion criteria 
for the primarily decorative gas hearth products. DOE recognizes that 
not all decorative products are currently certified to ANSI Z21.50 and 
that the $90,000 represents a lower bound in conversion costs. However, 
DOE did not find a significant number of decorative hearth products 
that were not certified to either ANSI Z21.50 or ANSI Z21.88.
    Based on the engineering analysis performed for the April 2010 
final rule, DOE does not believe any capital conversion costs would be 
needed for manufacturers of primarily decorative hearth products to 
comply with the criterion for elimination of the standing pilot, 
because for these products the addition of an electronic ignition 
system primarily consists of component additions that would not require 
new capital investment or significant changes to the manufacturing 
line.
    In considering the impacts of this requirement, DOE compared the 
impacts of meeting the exclusion criteria to the alternative of meeting 
the efficiency requirements in the April 2010 final rule. Under the 
newly-proposed exclusion criteria, instead of completely redesigning 
primarily decorative hearth products to improve energy efficiency, 
manufacturers could make a comparatively minor engineering change of 
replacing the standing pilot or other continuously-burning ignition 
with an alternative technology such as an electronic ignition or 
interrupted ignition device. DOE believes that replacing the standing 
pilot or other continuously-burning ignition device with an alternative 
technology would be less burdensome to manufacturers than a complete 
redesign of primarily decorative hearth products to meet the minimum 
efficiency standard. Moreover, a redesign to comply with the energy 
conservation standard would likely necessitate elimination of any 
standing pilot on units so equipped anyway, along with additional 
engineering changes to improve efficiency. In addition, manufacturers 
would be required to test and certify their equipment to DOE 
efficiency's standards along with the ANSI safety standards, further 
increasing the cost and burden of compliance with the energy 
conservation standard in comparison to simply replacing the standing 
pilot or continuously-burning ignition with an alternative technology. 
Based on this analysis of the four exclusion criteria, DOE anticipates 
industry conversion costs of $90,000 to update primarily decorative 
hearth products that are currently certified to ANSI Z21.50 and have a 
continuously-burning ignition to meet the exclusion criteria, as these 
products would need to be recertified once the continuously-burning 
ignition was removed. If manufacturers chose to reclassify a 
significant portion of their hearth heating products that are currently 
certified to ANSI Z21.88 as decorative hearth products, which would 
require recertifying them to ANSI Z21.50, conversion costs for the four 
criteria could reach an upper bound of $1.8 million. However, 
manufacturers have indicated that this is not a likely scenario.
    As a result of the considerations discussed above, DOE has 
concluded that today's final rule would not disproportionately impact 
small manufacturers of vented hearth products.
4. Duplication, Overlap, and Conflict With Other Rules and Regulations
    DOE is not aware of any rules or regulations that duplicate, 
overlap, or conflict with the rule being considered today.
5. Significant Alternatives to the Rule
    The discussion above analyzes impacts on small businesses that 
would result from the amended definition for ``vented hearth heater,'' 
due to its effect on which units will be subject to energy conservation 
standards. DOE believes that the amended definition in this notice 
represents a similar burden on industry, including small business 
manufacturers, in comparison to the definition included in the April 
2010 final rule. In that rule, DOE rejected the other alternatives to 
the rule because of the lower energy savings associated with those 
alternatives.

C. Review Under the Paperwork Reduction Act of 1995

    Manufacturers of direct heating equipment must certify to DOE that 
their products comply with any applicable energy conservation 
standards. In certifying compliance, manufacturers must test their 
products according to the DOE test procedures for direct heating 
equipment, including any amendments adopted for those test procedures. 
DOE has established regulations for the certification and recordkeeping 
requirements for all covered consumer products and commercial 
equipment, including direct heating equipment. (76 FR 12422 (March 7, 
2011). The collection-of-information requirement for the certification 
and recordkeeping is subject to review and approval by OMB under the 
Paperwork Reduction Act (PRA). (44 U.S.C. 3501 et seq.) This 
requirement has been approved by OMB under OMB control number 1910-
1400. Public reporting burden for the certification is estimated to 
average 20 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act of 1969

    DOE has prepared a draft environmental assessment (EA) of the 
impacts of the proposed rule pursuant to the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.), the

[[Page 71858]]

regulations of the Council on Environmental Quality (40 CFR parts 1500-
1508), and DOE's regulations for compliance with the National 
Environmental Policy Act of 1969 (10 CFR part 1021). This assessment, 
which has been placed in the docket for this rulemaking, includes an 
examination of the potential effects of emission reductions likely to 
result from the rule in the context of global climate change, as well 
as other types of environmental impacts. The estimated additional 
cumulative CO2 and NOX emissions reductions for 
these proposed amendments to the energy conservation standards are 0.79 
million metric tons (Mt) for CO2 and 0.63 thousand metric 
tons (kt) for NOX. DOE found that the environmental effects 
associated with the amended standards for direct heating equipment are 
not significant. Therefore, after consideration of the public comments 
received on the NOPR, DOE issued a finding of no significant impact 
(FONSI) as part of the final EA. The FONSI is available in the docket 
for this rulemaking at http://www.regulations.gov.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism.'' 64 FR 43255 (Aug. 10, 1999), 
imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications. 
On March 14, 2000, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations. 65 FR 13735. EPCA governs and 
prescribes Federal preemption of State regulations as to energy 
conservation for the products that are the subject of today's final 
rule. States can petition DOE for exemption from such preemption to the 
extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No 
further action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' imposes on Federal agencies the general duty 
to adhere to the following requirements: (1) Eliminate drafting errors 
and ambiguity; (2) write regulations to minimize litigation; and (3) 
provide a clear legal standard for affected conduct rather than a 
general standard and promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Section 3(b) of Executive Order 12988 specifically 
requires that Executive agencies make every reasonable effort to ensure 
that the regulation: (1) Clearly specifies the preemptive effect, if 
any; (2) clearly specifies any effect on existing Federal law or 
regulation; (3) provides a clear legal standard for affected conduct 
while promoting simplification and burden reduction; (4) specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General. 
Section 3(c) of Executive Order 12988 requires Executive agencies to 
review regulations in light of applicable standards in section 3(a) and 
section 3(b) to determine whether they are met or it is unreasonable to 
meet one or more of them. DOE has completed the required review and 
determined that, to the extent permitted by law, this final rule meets 
the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, section 201 (codified at 2 U.S.C. 
1531). For a regulatory action likely to result in a rule that may 
cause the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year (adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy 
statement is also available at http://www.gc.doe.gov.
    Today's final rule does not contain a Federal intergovernmental 
mandate, because it will not require expenditures of $100 million or 
more by State, local, and Tribal governments, in the aggregate, or by 
the private sector. DOE has considered expenditures that will result 
from updating manufacturer literature, product labels, and making 
design changes to primarily decorative hearth products to eliminate the 
standing pilot light or other continuously-burning ignition source, and 
concluded that these expenditures will total less than $100 million. 
Accordingly, no further action is required under the UMRA.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this regulation would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to 
review most disseminations of information to the public under 
guidelines established by each agency pursuant to general guidelines 
issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 
2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 
2002). DOE has reviewed today's final rule under the OMB and DOE 
guidelines and has concluded that

[[Page 71859]]

it is consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB, a Statement of Energy Effects for any significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    DOE has concluded that today's regulatory action, which sets forth 
amended definitions for direct heating equipment, is not a significant 
energy action the rule is not a significant regulatory action under 
Executive Order 12866 and because the amended standards are not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy, nor has it been designated as such by the Administrator 
at OIRA. Accordingly, DOE has not prepared a Statement of Energy 
Effects on the final rule.

L. Review Under the Information Quality Bulletin for Peer Review

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (OSTP), issued its Final Information 
Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 
2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the bulletin is to enhance the quality and credibility of 
the Government's scientific information. Under the Bulletin, the energy 
conservation standards rulemaking analyses are ``influential scientific 
information,'' which the Bulletin defines as ``scientific information 
the agency reasonably can determine will have, or does have, a clear 
and substantial impact on important public policies or private sector 
decisions.'' Id. at 2667.
    In response to OMB's Bulletin, DOE conducted formal in-progress 
peer reviews of the energy conservation standards development process 
and analyses and has prepared a Peer Review Report pertaining to the 
energy conservation standards rulemaking analyses. Generation of this 
report involved a rigorous, formal, and documented evaluation using 
objective criteria and qualified and independent reviewers to make a 
judgment as to the technical/scientific/business merit, the actual or 
anticipated results, and the productivity and management effectiveness 
of programs and/or projects. The ``Energy Conservation Standards 
Rulemaking Peer Review Report'' dated February 2007 has been 
disseminated and is available at the following Web site: http://www1.eere.energy.gov/buildings/appliance_standards/peer_review.html.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's final 
rule.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Incorporation by Reference, Intergovernmental relations, Reporting and 
recordkeeping requirements, and Small businesses.

    Issued in Washington, DC, on November 8, 2011.
Kathleen Hogan,
Deputy Assistant Secretary for Energy Efficiency, Office of Technology 
Development, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, DOE amends part 430 of 
Chapter II, Subchapter D, of Title 10 of the Code of Federal 
Regulations, to read as set forth below:

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority:  42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

0
2. Section 430.2 is amended by revising the definition for ``Vented 
hearth heater'' to read as follows:

Sec.  430.2  Definitions.

* * * * *
    Vented hearth heater means a vented appliance which simulates a 
solid fuel fireplace and is designed to furnish warm air, with or 
without duct connections, to the space in which it is installed. The 
circulation of heated room air may be by gravity or mechanical means. A 
vented hearth heater may be freestanding, recessed, zero clearance, or 
a gas fireplace insert or stove. The following products are not subject 
to the energy conservation standards for vented hearth heaters:
    (1) Vented gas log sets and
    (2) Vented gas hearth products that meet all of the following four 
criteria:
    (i) Certified to ANSI Z21.50 (incorporated by reference; see Sec.  
430.3), but not to ANSI Z21.88 (incorporated by reference; see Sec.  
430.3);
    (ii) Sold without a thermostat and with a warranty provision 
expressly voiding all manufacturer warranties in the event the product 
is used with a thermostat;
    (iii) Expressly and conspicuously identified on its rating plate 
and in all manufacturer's advertising and product literature as a 
``Decorative Product: Not for use as a Heating Appliance''; and
    (iv) With respect to products sold after January 1, 2015, not 
equipped with a standing pilot light or other continuously-burning 
ignition source.
* * * * *

0
3. Section 430.3 is amended by adding new paragraphs (c)(18) and 
(c)(19) to read as follows:

Sec.  430.3  Materials incorporated by reference.

* * * * *
    (c) * * *
    (18) ANSI Z21.50-2007 (CSA 2.22-2007), (``ANSI Z21.50''), Vented 
Gas Fireplaces, Fifth Edition, Approved February 22, 2007, IBR approved 
for Sec.  430.2.
    (19) ANSI Z21.88-2009 (CSA 2.33-2009), (``ANSI Z21.88''), Vented 
Gas Fireplace Heaters, Fifth Edition, Approved March 26, 2009, IBR 
approved for Sec.  430.2.
* * * * *
[FR Doc. 2011-29503 Filed 11-17-11; 8:45 am]
BILLING CODE 6450-01-P
```