Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 43941 

Section 236 under its authority to 

protect ‘‘the common defense and 

security.’’ 

The Staff believes that Option 1 does 

not accomplish the objectives of 

increasing the deterrence of malevolent 

acts against NRC- and Agreement Stateregulated facilities, radioactive material, 

nuclear material, or property. Option 2 

is limited in scope to facilities or 

installations with risk-significant 

radioactive material and would not 

provide the desired deterrent value of 

consistent Federal criminal sanctions 

for certain other nuclear material or 

property, particularly during transport. 

Because Section 236 offers greater 

flexibility and greater capability for 

punishment than Section 229, Option 3 

would likely have a greater deterrent 

value than Option 2. Option 3 would be 

simpler for licensees, the NRC, and 

Agreement States. Option 4 

accomplishes the greatest increase in 

deterrence. 

III. Specific Questions 

To assist the NRC in evaluating 

whether additional rulemaking should 

be undertaken to implement the 

criminal penalty provisions of Sections 

229 and 236 of the AEA, the NRC is 

seeking stakeholder input on the 

following specific questions: 

Q1.1. Should the NRC conduct further 

rulemaking to implement the authority 

of Section 229 or Section 236 of the 

AEA, or both? 

Q1.2. Should the NRC forgo further 

rulemaking and rely on State criminal 

statutes (for both Agreement States and 

non-Agreement States) to deter 

individuals with malevolent intentions? 

Why? 

Q1.3. If the commenter’s view is that 

the NRC should conduct a rulemaking, 

which option for rulemaking is best? 

Why? The available options (1 through 

4) include no-action, rulemaking 

implementing the authority of Section 

229 alone, Section 236 alone, or both 

Sections 229 and 236. 

If a rulemaking is undertaken, the 

NRC is also seeking stakeholder input 

on the following questions: 

Q2.1. Should the NRC include the 

range of radioactive materials specified 

in Appendix I to 10 CFR Part 73 in 

quantities equal to or exceeding the 

Category 2 threshold limits? 

Q2.2. Alternatively, should the NRC 

use a different list of radionuclides, or 

different quantity limits? If so, what 

does the commenter suggest? Why? 

Q3.1. Should the NRC include the 

waste materials recommended by the 

NRC staff, specifically SNF from 

production reactors and naval reactors? 

These new requirements would apply 

only to activities regulated by the NRC, 

not to facilities or activities regulated by 

the U.S. Department of Energy. 

Q3.2. Should the NRC include source 

material in the form of UF6? This would 

include both natural uranium and 

depleted uranium but not SNM, which 

is already covered as ‘‘nuclear fuel’’ 

under the current language of Section 

236a.(3). Additionally, the NRC notes 

that uranium conversion and fuel 

fabrication facilities are already covered 

under the current language of Section 

236a.(4). Thus, adding source material 

and depleted uranium in the form of 

UF6 would allow for prosecution of 

malevolent acts against these materials 

while they are in transit. 

Q3.3. Should the NRC include the 

other property recommended by its 

staff, specifically, classified enrichment 

technology components? Since the 

language of Section 236a.(4) currently 

includes uranium enrichment facilities, 

adding this classified material would 

allow for the prosecution of malevolent 

acts against classified enrichment 

technology while these components are 

in transit. 

Q4.1. If the NRC conducts a 

rulemaking to implement the authority 

of Section 229 (Option 2), should it use 

a ‘‘public health and safety’’ basis or a 

‘‘common defense and security’’ basis? 

Why? As noted above, the NRC is not 

recommending further rulemaking using 

the authority of Section 229; however, 

the agency is seeking stakeholder views 

on this issue. 

Q4.2. If the NRC conducts a 

rulemaking to implement the authority 

of Section 236 (Option 3), should it use 

a ‘‘public health and safety’’ basis or a 

‘‘common defense and security’’ basis? 

Why? As noted above, the NRC is 

recommending conducting a rulemaking 

to implement the authority of Section 

236, using a ‘‘common defense and 

security’’ basis; however, the agency is 

seeking stakeholder views on this issue. 

Q4.3. Should the NRC conduct a 

rulemaking implementing the combined 

authority of Sections 229 and 236 

(Option 4), using either a ‘‘public health 

and safety’’ basis or a ‘‘common defense 

and security’’ basis? Why? 

Q4.4. If the NRC conducts a 

rulemaking implementing the authority 

of Section 229, Section 236, or a 

combination of both, and uses a ‘‘public 

health and safety’’ basis, what is the 

appropriate Agreement State 

compatibility category for this 

rulemaking? Why? 

IV. Public Webinar 

To facilitate the understanding of the 

public and other stakeholders of these 

issues and the submission of informed 

comments, the NRC staff is planning to 

schedule a Webinar in August or 

September, 2011. Participants must 

register to participate in the Webinar. 

Registration closes 1 day before the 

Webinar. When the Webinar is 

scheduled, registration information may 

be found at the NRC’s public Web site 

under the headings Public Meetings & 

Involvement > Public Meeting 

Schedule; see Web page http:// 

www.nrc.gov/public-involve/publicmeetings/index.cfm. 

Dated this 8th day of July 2011. 

For the Nuclear Regulatory Commission. 

Michael C. Layton, 

Acting Director, Division of Security Policy, 

Office of Nuclear Security and Incident 

Response. 

[FR Doc. 2011–18608 Filed 7–21–11; 8:45 am] 

BILLING CODE 7590–01–P 

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: Notice of proposed rulemaking 

and announcement of public meeting. 

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 direct heating equipment. In 

this notice, the U.S. Department of 

Energy (DOE) proposes to amend its 

definitions pertaining to direct heating 

equipment. Specifically, DOE is 

proposing to change to 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 decorative hearth 

products. The proposed modification to 

the existing exclusion would shift the 

focus from the current 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 tentatively concluded that 

these amendments would result in 

increased energy savings overall, as well 

as for the types of units under the 

exclusion. The notice also announces a 


srobinson on DSK4SPTVN1PROD with PROPOSALS
43942 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

1For editorial reasons, upon codification in the 

U.S. Code, Part B was redesignated Part A. 

public meeting to receive comment on 

these proposed amendments to the 

definition for ‘‘vented hearth heater’’ 

and associated analyses and results. 

DATES: DOE will hold a public meeting 

on September 1, 2011 from 9 a.m. to 

4 p.m., at DOE headquarters in 

Washington, DC. The meeting will also 

be broadcast as a webinar. See section 

VII, ‘‘Public Participation,’’ for webinar 

registration information, participant 

instructions, and information about the 

capabilities available to webinar 

participants. 

DOE will accept comments, data, and 

information regarding this notice of 

proposed rulemaking (NOPR) before and 

after the public meeting, but no later 

than September 20, 2011. See section V, 

‘‘Public Participation,’’ for details. 

ADDRESSES: The public meeting will be 

held at the U.S. Department of Energy, 

Forrestal Building, Room 8E–089, 1000 

Independence Avenue, SW., 

Washington, DC 20585. To attend, 

please notify Ms. Brenda Edwards at 

(202) 586–2945. Please note that foreign 

nationals visiting DOE Headquarters are 

subject to advance security screening 

procedures. Any foreign national 

wishing to participate in the meeting 

should advise DOE as soon as possible 

by contacting Ms. Edwards to initiate 

the necessary procedures. Please also 

note that those wishing to bring laptops 

into the Forrestal Building will be 

required to obtain a property pass. 

Visitors should avoid bringing laptops, 

or allow an extra 45 minutes. Persons 

can attend the public meeting via 

webinar. For more information, refer to 

the section V, ‘‘Public Participation,’’ 

near the end of this notice. 

Any comments submitted must 

identify the NOPR on Energy 

Conservation Standards for Direct 

Heating Equipment, and provide docket 

number EERE–2011–BT–STD–0047 

and/or regulatory information number 

(RIN) 1904–AC56. Comments may be 

submitted using any of the following 

methods: 

1. Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

2. E-mail: DHE–2011–STD– 

0047@ee.doe.gov. Include Docket 

Number EERE–2011–BT–STD–0047 

and/or RIN 1904–AC56 in the subject 

line of the message. 

3. Mail: Ms. Brenda Edwards, U.S. 

Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

1000 Independence Avenue, SW., 

Washington, DC 20585–0121. If 

possible, please submit all items on a 

compact disc (CD), in which case it is 

not necessary to include printed copies. 

4. Hand Delivery/Courier: Ms. Brenda 

Edwards, U.S. Department of Energy, 

Building Technologies Program, 950 

L’Enfant Plaza, SW., Suite 600, 

Washington, DC 20024. Telephone: 

(202) 586–2945. If possible, please 

submit all items on a CD, in which case 

it is not necessary to include printed 

copies. 

No telefacsimiles will be accepted. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 

rule may be submitted to the Office of 

Energy Efficiency and Renewable 

Energy through the methods listed 

above and by e-mail to Christine_J.

_Kymn@omb.eop.gov. 

For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see section V of this document (Public 

Participation). 

Docket: The docket 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/#

!docketDetail;dct=FR+PR+N+O

+SR+PS;rpp=250;so=DESC;sb=posted

Date;po=0;D=EERE–2011–BT–STD– 

0047. This Web page contains a link to 

the docket for this notice on the http:// 

www.regulations.gov site. The http:// 

www.regulations.gov Web page contains 

simple instructions on how to access all 

documents, including public comments, 

in the docket. See section V, ‘‘Public 

Participation,’’ for further information 

on how to submit comments through 

http://www.regulations.gov. 

For further information on how to 

submit a public comment, review other 

public comments and the docket, or 

participate in the public meeting, 

contact Ms. Brenda Edwards at (202) 

586–2945 or by e-mail: 

Brenda.Edwards@ee.doe.gov. 

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. E-mail: 

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. E-mail: 

Eric.Stas@hq.doe.gov. 

For information on how to submit or 

review public comments, 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. E-mail: 

Brenda.Edwards@ee.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Summary of the Proposed Rule 

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’’ 

a. Application to Vented Hearth Products 

b. Application to Vented Gas Log Sets 

B. Proposed Definition for ‘‘Vented Hearth 

Heater’’ 

C. Description of Criteria for Classification 

as Decorative Vented Hearth Products 

D. National Energy Savings 

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 

V. Public Participation 

A. Attendance at the Public Meeting 

B. Procedure for Submitting Prepared 

General Statements for Distribution 

C. Conduct of the Public Meeting 

D. Submission of Comments 

E. Issues on Which DOE Seeks Comment 

VI. Approval of the Office of the Secretary 

I. Summary of the Proposed Rule 

Title III, Part B1 of the Energy Policy 

and Conservation Act of 1975 (EPCA or 

the Act), Public Law 94–163 (42 U.S.C. 


srobinson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 43943 

2This document is available on DOE’s Web site 

at: http://www1.eere.energy.gov/buildings/ 

appliance_standards/residential/pdfs/ 

htgp_finalrule_faq.pdf. 

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, must be designed to achieve 

the maximum improvement in energy 

efficiency that is technologically 

feasible and economically justified. (42 

U.S.C. 6295(o)(2)(A)). Furthermore, the 

new or amended standard must result in 

a significant conservation of energy. (42 

U.S.C. 6295(o)(3)(B)). On April 16, 2010, 

DOE published a final rule (hereafter 

referred to as the April 2010 final rule) 

in accordance with these statutory 

provisions and other statutory 

requirements discussed in the final rule, 

which, in relevant part, promulgated 

definitions and energy conservation 

standards for vented gas hearth direct 

heating equipment. 75 FR 20112. 

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 

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, which DOE also 

considers decorative in nature. 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 In this notice, DOE 

proposes to further amend its 

definitions pertaining to direct heating 

equipment. Specifically, DOE is 

proposing to amend its definition of 

‘‘vented hearth heater’’ to modify the 

conditions contained in the existing 

definition for the subset of such 

products to be considered decorative in 

nature and, therefore, not subject to the 

DOE’s minimum energy conservation 

standards for vented hearth heaters. In 

addition, DOE is proposing to include 

vented gas log sets in the definition of 

‘‘vented hearth heater,’’ and to add a 

similar set of criteria for exclusion for 

vented gas log sets. DOE has tentatively 

concluded that vented gas log sets 

warrant similar treatment to vented 

hearth products, due to the similarities 

between the two types of products. Both 

provide heat and aesthetic appeal for 

consumers, and they have certain 

similar characteristics, such as the 

presence of a flame and ceramic logs. 

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 notice, DOE proposes to amend the 

definition for ‘‘vented hearth heater’’ to 

base the exclusion for decorative vented 

hearth products and vented gas log sets 

on several criteria, including the 

American National Standards Institute 

(ANSI) standard to which the product is 

certified. The proposed amended 

definition reads as set forth in the 

amendment to 10 CFR 430.2 later in this 

proposed rule. 

DOE believes the amended definition 

of ‘‘vented hearth heater’’ would 

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 decorative hearth 

products across a broad range of input 

ratings, rather than limiting 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 decorative vented gas hearth 

products and vented gas log sets 

beginning on July 1, 2014, DOE believes 

the amended definition would result in 

a significant increase in overall energy 

savings, including those types of units 

eligible for the decorative products 

exclusion. At the same time, this 

proposal would 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 

proposal would keep their treatment 

consistent with decorative vented 

hearth products, and would result in 

substantial energy savings. DOE 

estimates that the elimination of 

standing pilot lights in decorative 

vented hearth heater products and 

vented gas log sets would result in an 

additional 0.12 quads of additional 

energy savings over the 30-year period 

from 2014 through 2043, beyond those 

savings already achieved by the April 

2010 final rule. Manufacturers who 

choose not to avail themselves of the 

exclusion would be subject to the 

energy conservation standards for 

vented hearth heaters promulgated in 

the April 2010 final rule. 

Therefore, DOE has tentatively 

concluded that the proposed amended 

definition of ‘‘vented hearth heater’’ 

would improve the existing definitions 

pertaining to direct heating equipment 

and further clarify the scope of the 

current exclusion from the energy 

conservation standards for those vented 

hearth heaters that are decorative hearth 

products. In addition, the proposal 

would result in significant additional 

energy savings, preserve consumer 

choice, and reduce the burden on 

industry. For these reasons, DOE has 

tentatively concluded that the proposed 

amendments to DOE’s definition of 

‘‘vented hearth heater’’ would provide 

substantial benefits that outweigh the 

burden of the new requirements for 

products to be considered decorative 

hearth products, and accordingly, DOE 

proposes to adopt them in this notice. 

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 a final rule published on April 

16, 2010 (i.e., the April 2010 final rule), 

which prescribed the current energy 

conservation standards for direct 

heating equipment manufactured on or 

after April 16, 2013. 75 FR 20112. 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’’ at 10 

CFR 430.2. 

In addition, the April 2010 final rule 

amended the definition of ‘‘vented 


srobinson on DSK4SPTVN1PROD with PROPOSALS
43944 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

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. 

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

Product class 

Standard level 

(Compliance 

date: 

4/16/2013) 

Gas hearth up to 20,000 Btu/ 

h ........................................ AFUE* = 61% 

Gas hearth over 20,000 Btu/ 

h and up to 27,000 Btu/h .. AFUE = 66% 

Gas hearth over 27,000 Btu/ 

h and up to 46,000 Btu/h .. AFUE = 67% 

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, if this 

rule is adopted as proposed, it may 

make it unnecessary for the Court to 

resolve some of the issues surrounding 

the April 2010 final rule. 

III. Discussion 

A. Scope of Coverage of Vented Hearth 

Products 

1. Description of Vented Hearth 

Products 

Vented hearth products include gasfired 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. A vented hearth 

product can be intended to be a used as 

only a heating appliance or as a heat 

source with an aesthetic appeal. 

Characteristic of this duality of purpose, 

units designed as a heating appliance 

and those units that also have a 

decorative nature 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 

decorative units provide 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. Products intended for use 

as a heater are often shipped with or 

designed to be easily retrofitted with 

additional accessories that 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 

decorative units. To be clear, all vented 

hearth products constitute direct 

heating equipment where a gasconsuming device is inserted into the 

residential living space, but DOE 

believes that today’s proposal to modify 

the exclusion for decorative hearth 

products strikes an appropriate balance 

between energy savings and consumer 

choice for such units. 

2. Definitions for ‘‘Direct Heating 

Equipment’’ 

As discussed in section II above, 

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 

definition, 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 

published in 10 CFR Parts 400–499, 

revised as of January 1, 2010. 

a. Application to Vented Hearth 

Products 

In the April 2010 final rule, DOE 

concluded that vented hearth products 

(i.e., gas-fired products such as 

fireplaces, fireplace inserts, stoves, and 

log sets) meet its definition of ‘‘vented 

home heating equipment,’’ because their 

designs furnish warmed air 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, 2010). Accordingly, DOE adopted a 

new definition of ‘‘vented hearth 

heater’’ and amended its definition of 

‘‘vented home heating equipment or 

vented heater’’ to explicitly include 

vented hearth heaters, reading as 

published at 10 CFR 430.2. 

DOE notes 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 believes 

that all vented hearth products are 

designed to furnish warm air, 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. 

Based upon the above reasoning, DOE 

determined that decorative vented 

hearth products are a subset of vented 

hearth heaters. Further, DOE has 

concluded previously that all vented 

hearth heaters (including decorative 

vented hearth products) are included in 

the broader classification of direct 

heating equipment. However, because 

DOE recognizes the aesthetic aspects of 

vented hearth products that are 

decorative in nature, DOE adopted an 

exclusion for those products from the 


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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 43945 

3This document is available on DOE’s Web site 

at: http://www1.eere.energy.gov/buildings/ 

appliance_standards/residential/pdfs/ 

htgp_finalrule_faq.pdf. 

energy conservation standards that were 

promulgated in the April 2010 final 

rule. DOE continues to support this 

conclusion today, but is proposing to 

change the scope of the exclusion in 

order to achieve greater energy savings, 

promote consumer product choice, and 

ease manufacturer burdens. 

Given the lack of a statutory 

definition for ‘‘direct heating 

equipment,’’ DOE seeks comment 

regarding whether its interpretation that 

decorative vented hearth products are a 

type of direct heating equipment is 

reasonable. This is identified as Issue 1 

in section V.E, ‘‘Issues on Which DOE 

Seeks Comment.’’ 

b. Application to Vented Gas Log Sets 

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 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 decorative 

purposes, and as a result, are not vented 

hearth heaters. 

Upon reconsidering the definitions of 

‘‘direct heating equipment,’’ ‘‘vented 

home heating equipment,’’ and ‘‘vented 

hearth heater’’ for this notice, DOE has 

determined that vented gas log sets are 

heating appliances (albeit relatively 

inefficient ones) and would be included 

as covered products under DOE’s 

definitions. This approach is consistent 

with DOE’s treatment of vented hearth 

products that provide both heat and 

aesthetic appeal. As noted above, DOE 

has determined 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 

instead, it can refer to furnishing heat 

which warms the living space air 

through any method of heat transfer. 

Nor is the phrase ‘‘designed to furnish 

warmed air’’ dependent on a 

manufacturer’s principal intention in 

designing, manufacturing, or marketing 

such products. Because vented gas log 

sets will provide some amount of heat 

to the living space, DOE believes that all 

vented gas log sets are designed to 

furnish warm air and, thus, are a subset 

of vented hearth heaters. As with 

decorative vented gas hearth products, 

DOE recognizes that vented gas log sets 

are typically decorative in nature, and is 

proposing to exclude them from DOE’s 

standards for vented hearth heaters if 

they meet the specific set of criteria 

outlined in section III.B and discussed 

in detail in section III.C. 

Given the lack of a statutory 

definition for ‘‘direct heating 

equipment,’’ DOE seeks comment 

regarding whether its interpretation that 

vented gas log sets are a type of direct 

heating equipment is reasonable. This is 

identified as Issue 1 in section V.E, 

‘‘Issues on Which DOE Seeks 

Comment.’’ 

B. Proposed Definition for ‘‘Vented 

Hearth Heater’’ 

The amended definition for ‘‘vented 

hearth heater’’ that DOE is proposing in 

today’s document reads as as set forth 

in the amendment to 10 CFR 430.2 later 

in this proposed rule. 

The amendments to the definition of 

‘‘vented hearth heater’’ being proposed 

in this notice 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 decorative vented 

hearth products as those with input 

ratings below 9,000 Btu/h. 75 FR 20112, 

20129, 20234 (April 16, 2010). The 

changes to the definition that DOE is 

proposing in this notice are twofold and 

are discussed in the paragraphs that 

follow. 

First, DOE is proposing to exclude 

vented gas log sets from being subject to 

the energy conservation standards for 

vented hearth heaters, provided that 

they meet the set of criteria outlined in 

the definition of ‘‘vented hearth heater.’’ 

These products were previously not 

considered to be subject to standards for 

direct heating equipment; however, as 

noted in section III.A.2.b, DOE now 

believes these products should be 

subject to standards, unless they qualify 

for an exclusion along the lines of that 

proposed for vented gas hearth 

products. 

Second, DOE is also proposing a 

specific set of criteria (rather than the 

9,000 Btu/h input rating limitation) for 

establishing that a subset of vented 

hearth products should be excluded 

from the energy conservation standards 

because such units are decorative in 

nature. DOE believes that the conditions 

outlined in the definition for classifying 

a vented hearth product as decorative 

will create a clear division between 

vented hearth products that 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 proposed amendments 

to the definition would 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. In fact, DOE’s analysis 

suggests that amendments associated 

with the proposed definition would 

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.D of this notice for 

details on the estimated energy savings.) 

C. Description of Criteria for 

Classification as Decorative Vented 

Hearth Products 

As noted above, DOE’s proposed 

amendments to the definition of 

‘‘vented hearth heater’’ provide an 

exclusion for products that are 

decorative in nature, provided that they 

meet the criteria outlined in the 

definition. The exclusion criteria for 

vented gas log sets and vented hearth 

products are essentially the same (with 

the only exception being the first 

criterion), and are discussed together in 

the paragraphs below. 

The first criterion that a product must 

meet to be considered a decorative 

vented hearth product or vented gas log 

set is that it must be certified to a certain 

ANSI standard. Specifically, for vented 

hearth products, it must be certified to 

ANSI Standard Z21.50, Vented Gas 

Fireplaces, and not be certified to ANSI 

Standard Z21.88, Vented Gas Fireplace 

Heaters. For vented gas log sets, it must 

be certified to ANSI Standard Z21.60, 

Decorative Gas Fireplaces for 

Installation in a Solid-Fuel Fireplace. 

DOE recognizes that the hearth products 

industry has attempted to distinguish 

between heater and decorative products 

using the certification under one of 

these standards as the criterion for 

classification into one category or the 

other. Further, ANSI Standard Z21.88 

contains provisions that allow the main 


srobinson on DSK4SPTVN1PROD with PROPOSALS
43946 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

4U.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). 

5Menkedick, 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. 

6Houck, James, ‘‘Residential Decorative Gas 

Fireplace Usage Characteristics’’ (Report prepared 

for HPBA) (2010). 

7U.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). 

8U.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). 

9This value was derived from data collected on 

the following manufacturer Web sites: 

Pittsburgh 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). 

burners to be thermostaticallycontrolled. Therefore, DOE believes this 

criterion would be helpful in 

differentiating between vented hearth 

heaters and vented hearth products that 

are decorative in nature. In addition, the 

criterion for gas log sets would ensure 

that any products that meet the 

conditions for exclusion from energy 

conservation standards are certified to 

ensure safety and proper operation as a 

gas log set. 

The second criterion in the proposed 

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. 

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 there should be 

no reason for a product intended to be 

used primarily for decorative purposes 

would need to employ a thermostat. In 

addition, DOE believes a provision in 

the warranty that voids it if a thermostat 

is installed will discourage the misuse 

of vented hearth products that are 

intended to be decorative and also 

discourage evasion of energy 

conservation standards by those who 

purchase decorative products and seek 

to use them as heaters. 

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.’’ This 

requirement will provide additional 

clarification for consumers and 

installers and make it obvious that the 

product is intended for decorative 

purposes only. 

In the final criterion, which is 

perhaps of the greatest significance, 

DOE is proposing that products 

manufactured on or after July 1, 2014 

must not be equipped with a standing 

pilot light or other continuouslyburning ignition source in order to 

qualify for exclusion from energy 

conservation standards for vented 

hearth heaters. According to DOE’s 

market research, more than half of the 

decorative hearth product market and 

more than three-quarters of the vented 

gas log market would not be impacted, 

because the products already utilize 

alternatives to a standing pilot light, 

such as an intermittent pilot or 

electronic ignition. However, if DOE 

adopts the proposed definition of 

‘‘vented hearth heater’’ in a final rule, 

DOE notes that some products on the 

market would need 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 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 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 allows 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. DOE is interested in receiving 

comment from interested parties on the 

proposed compliance date for vented 

gas hearth products and vented gas log 

sets, including specific rationales and 

accompanying data as to why a different 

timeline for eliminating standing pilots 

or other continuously-burning ignition 

sources from decorative vented gas 

hearth products or vented gas log sets 

may or may not be warranted. This is 

identified as Issue 2 in section V.E, 

‘‘Issues on Which DOE Seeks 

Comment.’’ 

In addition, DOE seeks comments on 

all aspects of the proposed definition for 

‘‘vented hearth heater,’’ in particular, 

the criteria for exclusion of vented 

hearth products and vented gas log sets 

that are decorative in nature. This is 

identified as Issue 3 in section V.E, 

‘‘Issues on Which DOE Seeks 

Comment.’’ 

D. National Energy Savings 

As noted above, DOE is proposing 

that to qualify for an exclusion from the 

current energy conservation standards 

for products that are 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. 

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,4 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.5 The 

remaining portion of the market is 

assumed to already utilize ignition 

alternatives, such as an intermittent 

pilot or electronic ignition. 

To estimate the energy savings 

associated with today’s proposal, DOE 

assumed that all 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 6). On average, 

continuous pilot energy use is about 350 

Btu/h 7 for decorative vented hearth 

products 8 and 1,250 Btu/h for vented 

gas logs.9 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., 2190 h/yr). Thus, the 

average annual energy savings amount 

to 2.67 million Btu per unit for 


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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 43947 

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 decorative vented 

hearth and vented gas logs units and 

average annual shipments of 460,000 

decorative vented hearth units and 

103,000 vented gas logs units. 

In the April 2010 final rule, DOE 

estimated the national energy savings 

over the analysis period (2013–2042) for 

the vented hearth heaters to be 0.19 

quads. 75 FR 20112, 20185 (April 16, 

2010). Based on current information, 

DOE has determined that approximately 

70 percent of the vented hearth products 

considered in 2010 are decorative 

hearth products. If one assumes that 

manufacturers were to avail themselves 

of the exclusion proposed in this 

rulemaking for all such products, DOE’s 

revised national energy savings (NES) 

estimates show that the savings for the 

vented hearth heaters under the April 

2010 standards would be 0.06 quads, 

which does not include any energy 

savings from products considered 

decorative in nature. Using the above 

assumptions, DOE calculated the 

national energy savings over the 

analysis period to be 0.17 quads for 

decorative hearth products and 0.07 

quads for vented gas log sets under the 

proposed revised definition of ‘‘vented 

hearth heater’’ in today’s rule which 

would eliminate the standing pilot 

lights on those units. Accounting for the 

approximately 0.13 quad reduction in 

energy savings for 2010 final rule (from 

assuming that all decorative products 

avail themselves of the exclusion 

proposed in this rulemaking), DOE 

estimated that the net additional 

national energy savings compared to the 

2010 final rule would be 0.12 quads 

(rounded to two significant figures). 

IV. Procedural Issues and Regulatory 

Review 

A. Review Under Executive Orders 

12866 and 13563 

Section 1(b)(1) of Executive Order 

12866, ‘‘Regulatory Planning and 

Review,’’ 58 FR 51735 (Oct. 4, 1993), 

requires each agency to identify the 

problem that it intends to address, 

including, where applicable, the failures 

of private markets or public institutions 

that warrant new agency action, as well 

as to assess the significance of that 

problem. The problems that the 

standards in this rule address are as 

follows: 

(1) There is a lack of consumer 

information and/or information 

processing capability about energy 

efficiency opportunities in the home 

appliance market. 

(2) There is asymmetric information 

(one party to a transaction has more and 

better information than the other) and/ 

or high transactions costs (costs of 

gathering information and affecting 

exchanges of goods and services). 

(3) There are external benefits 

resulting from improved energy 

efficiency of direct heating equipment 

that are not captured by the users of 

such equipment. These benefits include 

externalities related to environmental 

protection and energy security that are 

not reflected in energy prices, such as 

reduced emissions of greenhouse gases. 

In addition, DOE has determined that 

today’s regulatory action is not an 

‘‘economically significant regulatory 

action’’ under section 3(f)(1) of 

Executive Order 12866. Accordingly, 

DOE has not prepared a regulatory 

impact analysis (RIA) on today’s rule, 

and 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 NOPR 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 an initial regulatory flexibility 

analysis (IRFA) 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 NOPR 

under the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies discussed above. As a result of 

this review, DOE has prepared an IRFA 

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 

IFRA 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 proposing to 

amend the definition of ‘‘vented hearth 

heater’’ in today’s NOPR and the 


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43948 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

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 all available public information to 

identify potential small manufacturers 

of the type of products that are the 

subject of this rulemaking. DOE’s 

research included the HPBA 

membership directory, AirConditioning, Heating, and Refrigeration 

Institute (AHRI) product databases, and 

individual company Web sites to find 

potential small business manufacturers. 

DOE also asked stakeholders and 

industry representatives if they were 

aware of any other small manufacturers 

during manufacturer interviews and at 

previous DOE public meetings. DOE 

reviewed all 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. In the April 2010 

final rule, DOE identified 10 small 

manufacturers of vented gas hearth 

products, and DOE believes that the 

vented hearth heater market has not 

changed significantly since the time of 

the April 2010 final rule. 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. The 

remaining small businesses that DOE 

identified in the rule did not respond to 

requests for additional information or 

interviews. 

For this rulemaking, DOE also 

identified seven small business 

manufacturers of vented gas log sets. Of 

these manufacturers, three are also 

small business manufacturers of 

decorative hearth products and, 

consequently, were previously 

identified. The only covered products 

made by the remaining four small 

business manufacturers are vented gas 

log sets. DOE attempted to contact the 

four small business manufacturers of gas 

log sets that it identified. Additionally, 

DOE believes that given the similarities 

in these types of products, the 

compliance costs of small business 

manufacturers of vented gas log sets 

resulting from this rulemaking can be 

reasonably assumed to be largely the 

same as the compliance costs of small 

business manufacturers of vented gas 

hearth products. 

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 decorative hearth products with 

efficiencies lower than the minimum 

allowable standard and input ratings 

above 9,000 Btu/h 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 decorative 

products. 75 FR 20112, 20129 (April 16, 

2010). Under the amended definition of 

‘‘vented hearth heater’’ proposed 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 and 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 

July 1, 2014, 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, under today’s proposal, 

vented gas log sets would be required to 

either meet the energy conservation 

standard for vented hearth heaters or to 

meet the four criteria outlined above for 

their exclusion (which are the same as 

the criteria for vented hearth products, 

except that they must be certified to 

ANSI Z21.60, rather than ANSI Z21.50, 

as it is the applicable standard for gas 

log sets). 

Each of the definitional criteria for 

decorative gas hearth products and 

vented gas log sets would have differing 

impacts on small business 

manufacturers. The first criterion (that 

the product must be certified to ANSI 

Standard Z21.50 and not ANSI Standard 

Z21.88 for decorative hearth products, 

and that the product must be certified 

to ANSI Z21.60 for gas log sets) would 

not impose new conversion costs on 

small businesses since DOE is not aware 

of any vented hearth products on the 

market that are not already certified to 

one of these standards. Products 


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considered by manufacturers to be 

decorative in nature are already certified 

to ANSI Standard Z21.50 (vented hearth 

products), and to ANSI Z21.60 (vented 

gas log sets). For these reasons, DOE 

believes that this criterion would not 

cause any additional compliance 

requirements for manufacturers, 

including small businesses. 

Complying with the second and third 

criteria would require manufacturers to 

clearly identify the decorative nature of 

the vented hearth product and vented 

gas log set, 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 will also be 

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 continue to incur 

these product conversion cost under 

both rules for those products affected by 

the definitional change. Regarding the 

second criterion that eliminates the 

option for manufacturers to offer a 

thermostat with any decorative hearths, 

DOE does not believe that this would 

impose any additional costs or burdens 

because thermostats are optional 

features and their removal would not 

require any redesign of existing product 

lines. Further, many decorative hearths 

are not offered with an optional 

thermostat from the point of sale by the 

manufacturer, so DOE believes this 

criterion alone would have little impact 

on the existing market, but would 

provide additional assurance that 

decorative products are not being 

installed as heating appliances. 

Consequently, DOE believes that the 

second and third criteria would simply 

result in revising product specifications, 

marketing materials, and products labels 

to make clear the intended use of 

decorative hearths, which DOE believes 

would have a minimal impact on 

manufacturers, including small 

businesses. 

Lastly, DOE considered the impacts of 

the final criterion to qualify for the 

decorative exclusion from the energy 

conservation standards for vented 

hearth heaters and vented gas log sets. 

That criterion requires manufacturers to 

eliminate standing pilot lights and other 

continuously-burning ignition devices 

from decorative vented hearth products 

by July 1, 2014 which would cause 

manufacturers to incur conversion costs 

to qualify for the proposed exclusion 

from the energy conservation standards. 

To calculate the conversion costs for 

decorative hearth products to remove 

standing pilots, DOE approximated the 

total number of product lines for 

decorative vented hearth products using 

the average number of annual shipments 

of decorative gas hearth products per 

product line, along with the average 

total shipments assumed for the analysis 

of national energy savings (i.e., 460,000 

units per year). To determine the 

average number of annual shipments of 

decorative gas hearth products per 

product line, DOE assumed that each 

decorative vented gas hearth product 

line has approximately the same 

number of annual shipments per line as 

the gas hearth products analyzed for the 

April 2010 final rule. Using this 

method, DOE found approximately 110 

total decorative product lines. Using the 

assumption that 38 percent of 

decorative gas hearth products would 

have to remove standing pilots, 42 of 

these product lines would have to be 

upgraded by July 1, 2014. To calculate 

the conversion costs for vented gas log 

sets, DOE used market data and the 

assumptions for the per line conversion 

costs to remove standing pilots from gas 

hearth products. To determine the 

number of vented gas log product lines 

with standing pilots, DOE reviewed the 

company Web sites for all 

manufacturers of gas hearth products 

and all manufacturers that certify gas 

space heaters with the California Energy 

Commission (CEC) and are listed in 

CEC’s appliance efficiency directory. 

DOE also conducted product searches to 

verify that it had captured all vented gas 

log sets that use a standing pilot. If it 

was not clear from the literature 

whether the vented gas log sets had a 

standing pilot, DOE assumed the 

product used a standing pilot. DOE 

found 35 vented gas log product lines 

that would need to be updated to 

remove the standing pilot ignition 

system by the July 1, 2014 deadline set 

in the proposed exclusion. 

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 77 product 

lines need to be retested and recertified 

as a result of the incorporation of 

standing pilots into the system, the 

estimated product conversion cost 

would be approximately $693,000 for 

the industry to comply with the 

proposed July 1, 2014 exclusion criteria 

for both decorative gas hearth products 

and vented gas log sets. DOE does not 

believe any capital conversion costs 

would be needed for manufacturers to 

comply with the criterion for 

elimination of the standing pilot, 

because manufacturers would not need 

to make any changes to their existing 

facilities to incorporate this design 

change into their product lines. Overall, 

the total conversion costs with today’s 

proposed amendments would be 

expected to be slightly lower than the 

total conversion costs for manufacturers 

of vented gas hearth heaters for the 

April 2010 final rule. 

In considering the impacts of this 

requirement, DOE compared it to the 

alternative of leaving in place the 

requirements in the April 2010 final 

rule, assuming manufacturers chose not 

to design for a Btu rating lower than 

9,000 Btu/h. If the definition of ‘‘vented 

hearth heater’’ were to remain as it was 

in the April 2010 final rule, 

manufacturers would have to redesign 

all decorative hearth products with 

input ratings over 9,000 Btu/h either to 

meet the minimum standard for gas 

hearth direct heating equipment or to 

have an input rating below 9,000 Btu/ 

h, or discontinue manufacturing those 

products. Under the newly proposed 

definition, instead of completely 

redesigning those products to improve 

energy efficiency, manufacturers could 

make a comparatively minor 

engineering change of replacing the 

standing pilot or other continuouslyburning 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 decorative hearth products 

to meet the minimum standard or to 

have an input rating below 9,000 Btu/ 

h. 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 


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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. 

As a result of the considerations 

discussed above, DOE has concluded 

that today’s proposal would not 

disproportionately impact small 

manufacturers of vented hearth 

products and vented gas logs. DOE 

requests comment on its assessment of 

the impact of today’s proposal on small 

business manufacturers. 

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 

Proposed 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 proposed in 

this notice would represent 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 that 

associated with those alternatives. 

DOE continues to seek input from 

businesses that would be affected by 

this rulemaking and will consider 

comments received in response to the 

NOPR for the development of final rule. 

This is identified as Issue 4 in section 

V.E, ‘‘Issues on Which DOE Seeks 

Comment.’’ 

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-ofinformation 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 

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 5.0 million metric tons 

(Mt) for CO2 and 3.9 thousand metric 

tons (kt) for NOX. Before issuing a final 

rule for direct heating equipment, DOE 

will consider public comments and, as 

appropriate, determine whether to issue 

a finding of no significant impact 

(FONSI) as part of a final EA or to 

prepare an environmental impact 

statement (EIS) for this rulemaking. 

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 proposed 

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 

proposed rule meets the relevant 

standards of Executive Order 12988. 


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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, sec. 

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 

proposed ‘‘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 proposed 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 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 

(Mar. 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 NOPR under the OMB and DOE 

guidelines and has concluded that 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 

proposed 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 proposed 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 tentatively concluded that 

today’s regulatory action, which sets 

forth amended definitions for direct 

heating equipment, is not a significant 

energy action because the proposed 

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 proposed 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. 

V. Public Participation 

A. Attendance at the Public Meeting 

The time, date, and location of the 

public meeting are listed in the DATES

and ADDRESSES sections at the beginning 

of this notice. If you plan to attend the 

public meeting, please notify Ms. 

Brenda Edwards at (202) 586–2945 or 

Brenda.Edwards@ee.doe.gov. As 

explained in the ADDRESSES section, 

foreign nationals visiting DOE 


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43952 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

Headquarters are subject to advance 

security screening procedures. 

In addition, you can attend the public 

meeting via webinar. Webinar 

registration information, participant 

instructions, and information about the 

capabilities available to webinar 

participants will be published on DOE’s 

Web site at: http://www.eere.energy.gov/ 

buildings/appliance_standards/ 

residential/direct_heating.html. 

Participants are responsible for ensuring 

their systems are compatible with the 

webinar software. 

B. Procedure for Submitting Prepared 

General Statements for Distribution 

Any person who has plans to present 

a prepared general statement may 

request that copies of his or her 

statement be made available at the 

public meeting. Such persons may 

submit requests, along with an advance 

electronic copy of their statement in 

PDF (preferred), Microsoft Word or 

Excel, WordPerfect, or text (ASCII) file 

format, to the appropriate address 

shown in the ADDRESSES section at the 

beginning of this notice. The request 

and advance copy of statements must be 

received at least one week before the 

public meeting and may be e-mailed, 

hand-delivered, or sent by mail. DOE 

prefers to receive requests and advance 

copies via e-mail. Please include a 

telephone number to enable DOE staff to 

make follow-up contact, if needed. 

C. Conduct of the Public Meeting 

DOE will designate a DOE official to 

preside at the public meeting and may 

also use a professional facilitator to aid 

discussion. The meeting will not be a 

judicial or evidentiary-type public 

hearing, but DOE will conduct it in 

accordance with section 336 of EPCA 

(42 U.S.C. 6306). There shall not be 

discussion of proprietary information, 

costs or prices, market share, or other 

commercial matters regulated by U.S. 

anti-trust laws. A court reporter will be 

present to record the proceedings and 

prepare a transcript. DOE reserves the 

right to schedule the order of 

presentations and to establish the 

procedures governing the conduct of the 

public meeting. After the public 

meeting, interested parties may submit 

further comments on the proceedings as 

well as on any aspect of the rulemaking 

until the end of the comment period. 

The public meeting will be conducted 

in an informal, conference style. DOE 

will present summaries of comments 

received before the public meeting, 

allow time for prepared general 

statements by participants, and 

encourage all interested parties to share 

their views on issues affecting this 

rulemaking. Each participant will be 

allowed to make a general statement 

(within time limits determined by DOE), 

before the discussion of specific topics. 

DOE will allow, as time permits, other 

participants to comment briefly on any 

general statements. 

At the end of all prepared statements 

on a topic, DOE will permit participants 

to clarify their statements briefly and 

comment on statements made by others. 

Participants should be prepared to 

answer questions by DOE and by other 

participants concerning these issues. 

DOE representatives may also ask 

questions of participants concerning 

other matters relevant to this 

rulemaking. The official conducting the 

public meeting will accept additional 

comments or questions from those 

attending, as time permits. The 

presiding official will announce any 

further procedural rules or modification 

of the above procedures that may be 

needed for the proper conduct of the 

public meeting. 

A transcript of the public meeting will 

be included in the docket, which can be 

viewed as described in the Docket 

section at the beginning of this notice. 

In addition, copies of the transcript will 

be posted on the DOE Web site, and any 

person may buy a copy of the transcript 

from the transcribing reporter. 

D. Submission of Comments 

DOE will accept comments, data, and 

information regarding this proposed 

rule before or after the public meeting, 

but no later than the date provided in 

the DATES section at the beginning of 

this proposed rule. Interested parties 

may submit comments, data, and other 

information using any of the methods 

described in the ADDRESSES section at 

the beginning of this notice. 

Submitting comments via http:// 

www.regulations.gov. The http:// 

www.regulations.gov Web page will 

require you to provide your name and 

contact information. Your contact 

information will be viewable to DOE 

Building Technologies staff only. Your 

contact information will not be publicly 

viewable except for your first and last 

names, organization name (if any), and 

submitter representative name (if any). 

If your comment is not processed 

properly because of technical 

difficulties, DOE will use this 

information to contact you. If DOE 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, DOE may not be 

able to consider your comment. 

However, your contact information 

will be publicly viewable if you include 

it in the comment itself or in any 

documents attached to your comment. 

Any information that you do not want 

to be publicly viewable should not be 

included in your comment, nor in any 

document attached to your comment. 

Otherwise, persons viewing comments 

will see only first and last names, 

organization names, correspondence 

containing comments, and any 

documents submitted with the 

comments. 

Do not submit to http:// 

www.regulations.gov information for 

which disclosure is restricted by statute, 

such as trade secrets and commercial or 

financial information (hereinafter 

referred to as Confidential Business 

Information (CBI)). Comments 

submitted through http:// 

www.regulations.gov cannot be claimed 

as CBI. Comments received through the 

Web site will waive any CBI claims for 

the information submitted. For 

information on submitting CBI, see the 

Confidential Business Information 

section below. 

DOE processes submissions made 

through http://www.regulations.gov 

before posting. Normally, comments 

will be posted within a few days of 

being submitted. However, if large 

volumes of comments are being 

processed simultaneously, your 

comment may not be viewable for up to 

several weeks. Please keep the comment 

tracking number that http:// 

www.regulations.gov provides after you 

have successfully uploaded your 

comment. 

Submitting comments via e-mail, 

hand delivery/courier, or mail. 

Comments and documents submitted 

via e-mail, hand delivery, or mail also 

will be posted to http:// 

www.regulations.gov. If you do not want 

your personal contact information to be 

publicly viewable, do not include it in 

your comment or any accompanying 

documents. Instead, provide your 

contact information in a cover letter. 

Include your first and last names, e-mail 

address, telephone number, and 

optional mailing address. The cover 

letter will not be publicly viewable as 

long as it does not include any 

comments. 

Include contact information each time 

you submit comments, data, documents, 

and other information to DOE. If you 

submit via mail or hand delivery/ 

courier, please provide all items on a 

CD, if feasible, in which case it is not 

necessary to submit printed copies. No 

facsimiles (faxes) will be accepted. 

Comments, data, and other 

information submitted to DOE 

electronically should be provided in 

PDF (preferred), Microsoft Word or 

Excel, WordPerfect, or text (ASCII) file 

format. Provide documents that are not 


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secured, that are written in English, and 

that are free of any defects or viruses. 

Documents should not contain special 

characters or any form of encryption 

and, if possible, they should carry the 

electronic signature of the author. 

Campaign form letters. Please submit 

campaign form letters by the originating 

organization in batches of between 50 to 

500 form letters per PDF or as one form 

letter with a list of supporters’ names 

compiled into one or more PDFs. This 

reduces comment processing and 

posting time. 

Confidential Business Information. 

Pursuant to 10 CFR 1004.11, any person 

submitting information that he or she 

believes to be confidential and exempt 

by law from public disclosure should 

submit via e-mail, postal mail, or hand 

delivery/courier two well-marked 

copies: one copy of the document 

marked confidential including all the 

information believed to be confidential, 

and one copy of the document marked 

non-confidential with the information 

believed to be confidential deleted. 

Submit these documents via e-mail or 

on a CD, if feasible. DOE will make its 

own determination about the 

confidential status of the information 

and treat it according to its 

determination. 

Factors of interest to DOE when 

evaluating requests to treat submitted 

information as confidential include: (1) 

A description of the items; (2) whether 

and why such items are customarily 

treated as confidential within the 

industry; (3) whether the information is 

generally known by or available from 

other sources; (4) whether the 

information has previously been made 

available to others without obligation 

concerning its confidentiality; (5) an 

explanation of the competitive injury to 

the submitting person which would 

result from public disclosure; (6) when 

such information might lose its 

confidential character due to the 

passage of time; and (7) why disclosure 

of the information would be contrary to 

the public interest. 

It is DOE’s policy that all comments 

may be included in the public docket, 

without change and as received, 

including any personal information 

provided in the comments (except 

information deemed to be exempt from 

public disclosure). 

E. Issues on Which DOE Seeks Comment 

Although DOE welcomes comments 

on any aspect of this proposal, DOE is 

particularly interested in receiving 

comments and views of interested 

parties concerning the following issues: 

1. Given the lack of a statutory 

definition for ‘‘direct heating 

equipment,’’ whether DOE’s 

interpretation that decorative vented 

hearth products and vented gas log sets 

are types of direct heating equipment is 

reasonable. 

2. The proposed compliance date for 

vented gas hearth products and vented 

gas log sets, including specific 

rationales and accompanying data as to 

why a different timeline for eliminating 

standing pilots or other continuouslyburning ignition sources from 

decorative gas hearth products may or 

may not be warranted. 

3. The proposed exclusion as a 

decorative vented hearth product or 

vented gas log set from the energy 

conservation standard. 

4. Impacts of the proposed amended 

definition of ‘‘vented hearth heater’’ on 

small business manufacturers of 

decorative vented hearth products or 

vented gas log sets. 

VI. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of today’s proposed rule. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Confidential business 

information, Energy conservation, 

Household appliances, Imports, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, and 

Small businesses. 

Issued in Washington, DC, on July 14, 

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 proposes to amend 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 

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. 

2. Section 430.2 is amended by 

revising the definition for ‘‘vented 

hearth heater’’ to read as follows: 

§ 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 that meet all of 

the following four criteria: 

(i) Certified to ANSI Standard Z21.60; 

(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 

July 1, 2014, not equipped with a 

standing pilot light or other 

continuously-burning ignition source; 

and 

(2) Vented gas hearth products that 

meet all of the following four criteria: 

(i) Certified to ANSI Standard Z21.50 

and not to ANSI Standard Z21.88; (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 

July 1, 2014, not equipped with a 

standing pilot light or other 

continuously-burning ignition source. 

* * * * * 

[FR Doc. 2011–18310 Filed 7–21–11; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Chapter II 

[Docket No. OP–1427] 

Continued Application of Regulations 

to Savings and Loan Holding 

Companies 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Notice of intent and request for 

comment. 

SUMMARY: The Board of Governors of the 

Federal Reserve System (‘‘Board’’) is 

issuing this notice of its intention to 

continue to enforce certain regulations 

previously issued by the Office of Thrift 

Supervision (‘‘OTS’’) after assuming 

supervisory responsibility for savings 

and loan holding companies (‘‘SLHCs’’) 


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