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 Suite 600, 1901 North Moore Street 

Arlington, VA 22209 USA 

 Phone: (703) 522-0086 • Fax: (703) 522-0548 

Email: hpbamail@hpba.org 

Web Site: www.hpba.org 

 

June 24, 2011 

Improving Regulations General Docket 

Environmental Protection Agency 

EPA Docket Center 

Mailcode: 2822T 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Attention Docket ID No. EPA-HQ-OA-2011-0156 

Re: Comments to “Improving Our Regulations: A Preliminary Plan for Periodic Retrospective 

Reviews of Existing Regulations” 

To Whom It May Concern: 

The Hearth, Patio & Barbecue Association (“HPBA”) appreciates the opportunity to submit 

comments on “Improving Our Regulations: A Preliminary Plan for Periodic Retrospective 

Reviews of Existing Regulations” (the “Preliminary Plan”), Docket ID No. EPA-HQ-OA-2011-

0156-0119. HPBA supports both the Preliminary Plan, the retrospective regulatory review 

process and the larger initiative to improve federal regulations that was spurred by the issuance 

of Executive Order 13563. The Preliminary Plan and the regulatory reforms called for in 

Executive Order 13563 will help ensure that the federal regulatory system, including programs 

administered by EPA, will be efficient, effective and dynamic in the coming decades. 

HPBA is an international not-for-profit trade association established in 1980. HPBA’s 

membership is composed of approximately 2,300 manufacturers, retailers, distributors, service 

and installation firms, and many other entities in the hearth, patio, and barbecue industries. 

Examples of products that HPBA’s members manufacture, sell, service and install include: 

factory-built fireplaces, gas logs, fireplace inserts; wood, pellet, coal, gas and electric stoves; 

barbecues, grills and smokers; and patio furniture and accessories. Roughly 80 of HPBA’s 

members are hearth appliance manufacturers – the majority of whom qualify as small businesses 

per the Small Business Administration. 

Background 

Aside from expressing our general support for the Preliminary Plan that EPA has developed, 

HPBA would like to direct EPA’s attention to an outdated aspect of one particular regulation that 

impacts a large percentage of HPBA’s membership: 40 C.F.R. Subpart AAA – Standards of 
 

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Performance For New Residential Wood Heaters (“Subpart AAA”). Specifically, Subpart AAA 

requires manufacturers of every model line that is subject to the rule to obtain EPA certification 

of the model line’s compliance with the emissions standard. The rule requires that 

manufacturers submit paper applications for certification to EPA’s Stationary Source 

Compliance Division. See 40 C.F.R. § 60.533(b). The current certification application process 

entails EPA entering the necessary information from the paper applications into an electronic 

lotus notes spreadsheets for review by EPA personnel. All of the certification laboratories that 

complete the applications are currently equipped to create reports electronically, rather than 

manually. 

The transfer of data from the paper certification applications to the electronic format is quite time 

consuming. According to an individual with 12 years of experience in certification laboratories, 

companies typically experience a delay of four to six weeks from the time EPA receives the 

certification application until the time the certification is issued. However, this individual has 

seen the process take approximately four months in one instance. The timing of certification for 

new hearth products is fairly cyclical, as the hearth products industry is a highly seasonal 

business. Manufacturers generally show new products at the HPBA spring trade show in March 

to vet the product with retailers and consumers. Following the spring trade show, manufacturers 

will submit a certification application to EPA if they believe there is sufficient market demand 

for their new product, in hopes that EPA can process the certification before the period when 

most consumers buy wood heaters – typically in August and the autumn months. Wood heater 

manufacturers are exposed to a fairly high level of risk while awaiting certification, as they 

produce the season’s output of new models before they receive certification from EPA. Wood 

heater manufacturers are in a “race” to receive their certification so that they may ship and 

invoice these heaters before the busy purchasing season begins in August. The regulations do 

not allow manufacturers to sell units that are not certified and properly labeled pursuant to 

Subpart AAA. See 40 C.F.R. § 60.538. Thus, manufacturers are left in an exposed financial 

position – awaiting certification while an inventory that they cannot sell or ship to customers sits 

idle. 

Compounding the risk that companies face while awaiting certification is the fact that many 

other wood heater manufacturers undertake this process at the same time. Thus, EPA’s system, 

which is already slowed by virtue of paper application processing, is even slower because of the 

volume of applications it processes at the same time. Further exacerbating the certification 

“logjam” at EPA is the fact that Subpart AAA is currently undergoing a long delayed review. It 

is anticipated that as a result of this review, Subpart AAA’s applicability will be expanded to 

cover a universe of wood heaters that has not previously been subject to NSPS regulation. Both 

HPBA and employees of certification laboratories anticipate that the entry of these new products 

into the Subpart AAA-regulated market will bring many small companies into this program and 

cause significantly more delay in the certification process. To be sure, the potential impacts of 

this expansion of Subpart AAA applicability will be mitigated by the plan to privatize much of 

the certification process, through the use of ISO certified independent third party certification 

bodies. However, current plans are for OECA to review the work of these certification bodies; 

HPBA is confident that if the certification submission system is converted to an electronic 

medium, much of the avoidable delay in the certification process will be eliminated. 
 

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 At present, we understand that the Office of Air Quality Protection and Standards intends to 

amend Subpart AAA following the current review to include an electronic certification 

submission system. In order to ensure that this change occurs, HPBA respectfully asks EPA to 

commit to implementing an electronic certification submission system for Subpart AAA as part 

of its retrospective review process. Replacing Subpart AAA’s current paper certification 

submission system with an electronic system is consistent with the Preliminary Plan, Executive 

Order 13563, and the retrospective review process because it would: 1) be consistent with EPA’s 

stated goal of increasing electronic reporting; 2) accelerate the development of new technologies; 

3) improve environmental protection; and 4) relieve the small business community of 

unnecessary pressure. 

EPA’s Goal of Increasing Electronic Reporting 

Replacing paper reporting requirements with electronic ones is consistent with the broad 

command in Executive Order 13563 for agencies to conduct retrospective analyses to make their 

regulatory programs more effective and less burdensome. See Executive Order 13563, 76 Fed. 

Reg. 3821, 3822 (Jan. 21, 2011). The Memorandum on Regulatory Flexibility, Small Business 

and Job Creation issued the same day as Executive Order 13563 specifically targeted electronic 

reporting as an option agencies should consider that leads to decreased regulatory burdens on 

small businesses. 76 Fed. Reg. 3827, 3828 (Jan. 21, 2011). Accordingly, the Preliminary Plan 

discusses EPA’s intention to abandon paper-based reporting in favor of electronic reporting. The 

agency believes that paper reporting is unnecessarily resource-intensive, inefficient and 

ineffective for compliance monitoring and assurance. Preliminary Plan, pp. 5-6. 

The Preliminary Plan also identifies individual rules that EPA slated for priority retrospective 

reviews. The Preliminary Plan indicates that several of these rules involve paper reporting 

requirements that EPA plans to replace with electronic reporting including: the reporting of 

health and safety data under TSCA, FIFRA and FFDCA; reporting of additional requirements 

under TSCA; creating an electronic manifest for RCRA-regulated shipments; electronic 

submittal of RCRA Site ID forms; and electronic submittal of SIP revisions under the Clean Air 

Act. Preliminary Plan pp. 14-31. Additionally, in the portion of the Preliminary Plan that lays 

out EPA’s plan for future periodic regulatory reviews, one of the criteria that EPA will apply to 

future reviews is whether the regulation “imposes paperwork activities (reporting recordkeeping, 

or third party notifications) that could benefit from online reporting or electronic recordkeeping.” 

Preliminary Plan at p. 38. 

Accordingly, creating an electronic certification submission system for Subpart AAA is 

consistent with the general command of Executive Order 13563 and the accompanying 

memorandum, EPA’s general intention of replacing paper-based reporting systems with 

electronic ones, and the agency’s initial plan to eliminate paper-based reporting requirements for 

the select set of regulations discussed above. 

Accelerating the Development of New Technologies 

One of the broad goals stated in Executive Order 13563 is to maintain a regulatory system that 

“protect[s] public health, welfare, safety, and our environment while promoting economic 

growth, innovation, competitiveness, and job creation.” Inherent in this goal is the message that 
 

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regulations should promote where possible, and not unnecessarily impede, the development of 

new technologies. In the Preliminary Plan, EPA made “Innovation” one of the criteria for future 

regulatory reviews. Preliminary Plan at p. 39. The criteria call on EPA to ask whether an 

alteration could be made to the regulation to spur new markets, technologies or jobs. 

In the context of the wood heater industry, a new product’s entry into the market is contingent 

upon EPA processing the certification pursuant to Subpart AAA. As described above, the timing 

of the certification is often critical, as there is a relatively narrow window between the spring 

trade show and the time that consumers begin making new product selections in August. At a 

minimum, delays in certification caused by the paper-based reporting system can lead to a new 

product not reaching the market in time for the height of the wood heater purchasing season. 

Manufacturers may also choose to defer entry of a product into the marketplace by one season 

because they doubt that the product will be certified in time for the purchasing season. A more 

extreme consequence that could result from delays in the paper-based reporting system would 

involve a product or manufacturer’s commercial viability being undermined because a new 

product was not certified in time for the busy purchasing season. Clearly this scenario would be 

unlikely for larger, established manufacturers, as they are better equipped to take risks. 

However, HPBA is very concerned that many small entities, whose products will be subject to 

Subpart AAA following the current review, may underestimate the delays in this process and be 

unable to continue in business. 

In either event, customers would be deprived of new technologies that are frequently more 

energy efficient and result in lower emissions rates than existing models. Without even 

considering the effect on consumers, the current certification submission system does not 

accelerate the development of new technologies and their introduction into the market – it 

impedes it. Further, because new products and technologies may encounter certification delays, 

the paper-based reporting system does not reward or encourage the development of new 

technologies that can bring a myriad of benefits. Therefore, creating an electronic certification 

submission system for wood heaters covered by Subpart AAA is in accord with the retrospective 

review process and EPA’s Preliminary Plan. 

Improved Environmental Protection 

As stated above, one of the President’s objectives in issuing Executive Order 13563 was to 

protect the environment while encouraging innovation. This goal is reflected in the Preliminary 

Plan’s criteria for future periodic regulatory reviews. Specifically, the Preliminary Plan asks 

“[d]oes the regulation have complicated or time-consuming requirements, and are there feasible 

alternative compliance tools that could relieve burden while maintaining environmental 

protection?” Preliminary Plan at p. 38. The Preliminary Plan’s section on priority retrospective 

reviews also discusses the goal of ensuring that NSPS eight-year reviews result in updates to 

outdated emissions control technologies when possible. Preliminary Plan at p. 22. 

Electronic certification submission for Subpart AAA wood heaters furthers both of these goals 

because it will likely result in improved environmental protection and emissions control 

technologies. Electronic certification reporting will undoubtedly result in more wood heater 

models on the market that have improved energy efficiency and decreased particulate matter 

emissions. This should improve environmental protection in two ways. First, new models with 
 

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improved emissions control technologies and performance will begin to supplant existing 

models. Second, the increased competition created by the entry of new products into the market 

should drive prices down and encourage customers that would not otherwise purchase new wood 

heaters to do so. The second effect is quite significant if it comes to fruition because 

approximately 60% of all wood heaters in use in the U.S. still pre-date Subpart AAA. As these 

pre-existing units are not subject to Subpart AAA, EPA could indirectly influence a turn-over to 

new units that would benefit particulate matter emissions and the environment. 

From conversations with the EPA Office of Air Quality Protection and Standards, HPBA 

understands that in the current review of Subpart AAA, EPA plans to revise the rule to institute 

an electronic certification submission system. HPBA is fully supportive of this change to the 

rule and wants to ensure that it is included in the revision that emerges from the review. 

Although this change will not directly mandate any specific new emissions control technologies, 

it will certainly indirectly increase the number of pollution control technologies that are available 

on the wood heater market. 

Relieving the Small Business Community of Unnecessary Pressure 

As discussed above, the memorandum that accompanied the issuance of Executive Order 13563 

– Regulatory Flexibility, Small Business and Job Creation – stressed the importance of 

simplifying reporting requirements for small businesses. Additionally, the criteria for future 

retrospective reviews in the Preliminary Plan calls on EPA to consider whether regulations that 

have a large impact on small businesses could be changed to reduce the impact, while still 

maintaining environmental protection. Preliminary Plan at p. 38. Executive Order 13563 also 

includes a broad command for regulations to impose the least burden possible on society. 

Small businesses are often the companies that develop new and innovative products in the wood 

heater industry. Thus, the certification process discussed above and the risks associated with 

trying to certify a new product in time for the prime purchasing season frequently impact small 

businesses. Predictably, the risks associated with new product certification are significantly 

higher for small businesses, as they generally have fewer existing products on the market and 

less capital to survive a delay in EPA processing and issuing a new product’s certification. As 

noted previously, manufacturers cannot sell or ship products that are awaiting certification. 

Thus, manufacturers are often left in a precarious position, as they have made large financial 

commitments to produce the inventory of a new model that they are unable to recoup costs on 

until they receive certification. 

To illustrate the increased hardship that certification poses for small businesses, when Subpart 

AAA first went into effect, roughly 80 percent of the small businesses that manufactured 

regulated wood heaters went out of business. With the scope of Subpart AAA expanding after 

the current review to include a universe of products that were not previously subject to the rule, 

HPBA expects the manufacturers of these products to encounter difficulties with the certification 

submission system and the ensuing delays. Although HPBA does not anticipate that large 

numbers of manufacturers of the newly regulated products will go out of business, we anticipate 

that these manufacturers will not be sufficiently prepared for the certification process and the 

inevitable delays that will accompany an influx of newly-regulated products. 
 

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Both EPA and the industry can take additional steps during the next 18 months, the anticipated 

duration of the current review, to begin to prepare the newly-regulated manufacturers for 

compliance with Subpart AAA. However, converting to an electronic certification submission 

system is one way to ease this transition that is apparent at this point in time, and is consistent 

with the regulatory review process and EPA’s approach towards reporting requirements in other 

regulatory regimes. Given the limited time frame remaining in the Subpart AAA review, we 

believe it is critical for EPA to begin this process immediately. 

Conclusion 

For the reasons stated above, HPBA asks EPA to amend Subpart AAA to include an electronic 

certification submission requirement. Further, HPBA encourages the agency to take the 

necessary steps at this juncture – including budgeting and arranging third-party contracts – to 

ensure that EPA can promptly implement the electronic submission system once it is 

incorporated into Subpart AAA. 

Sincerely, 

Jack H. Goldman 

President & CEO 

HPBA