```

[Federal Register Volume 78, Number 251 (Tuesday, December 31, 2013)]
[Proposed Rules]
[Pages 79638-79643]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31261]

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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket No EERE-2013-BT-DET-0057]
RIN 1904-AD14

Energy Conservation Program for Consumer Products: Proposed 
Determination of Hearth Products as a Covered Consumer Product

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

ACTION: Proposed determination of coverage.

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SUMMARY: The U.S. Department of Energy (DOE or the ``Department'') has 
tentatively determined that hearth products qualify as a covered 
product under Part A of Title III of the Energy Policy and Conservation 
Act (EPCA), as amended. More specifically, DOE has tentatively 
determined that hearth products meet the criteria for covered products 
because classifying products of such type as covered products is 
necessary or appropriate to carry out the purposes of EPCA (which is to 
improve the efficiency of covered consumer products to conserve the 
energy resources of the Nation), and the average annual U.S. household 
energy use for hearth products is likely to exceed 100 kilowatt-hours 
(kWh) per year.

DATES: DOE will accept written comments, data, and information on this 
notice, but no later than January 30, 2014.

ADDRESSES: Interested persons are encouraged to submit comments 
electronically. However, interested persons may submit comments, 
identified by docket number EERE-2013-BT-DET-0057 or Regulatory 
Information Number (RIN) 1904-AD14, by any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Email: HearthHtgProd2013DET0057@ee.doe.gov. Include EERE-
2013-BT-DET-0057 and/or RIN 1904-AD14 in the subject line of the 
message. Submit electronic comments in WordPerfect, Microsoft Word, 
portable document format (PDF), or American Standard Code for 
Information Exchange (ASCII) file format, and avoid the use of special 
characters or any form of encryption.
     Postal Mail: Ms. Brenda Edwards, U.S. Department of 
Energy, Building Technologies Office, Mailstop EE-2J, Proposed 
Determination for Hearth Products, EERE-2013-BT-DET-0057 and/or RIN 
1904-AD14, 1000 Independence Avenue SW., Washington, DC 20585-0121. 
Telephone: (202) 586-2945. If possible, please submit all items on a 
compact disc (CD), in which case it is not necessary to include printed 
copies.
     Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department 
of Energy, Building Technologies Office, 6th Floor, 950 L'Enfant Plaza 
SW., 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.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. No telefacsimilies 
(faxes) will be accepted. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see 
section VI of this document (Public Participation).
    Docket: The docket is available for review at www.regulations.gov, 
including Federal Register notices, comments, and other supporting 
documents/materials (search EERE-2013-BT-DET-0035). All documents in 
the docket are listed in the 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;D=EERE-2013-BT-DET-0057. This Web 
page contains a link to the docket for this notice on the 
www.regulations.gov site. The www.regulations.gov Web page contains 
instructions on how to access all documents, including public comments, 
in the docket.

FOR FURTHER INFORMATION CONTACT: Mr. John Cymbalsky, U.S. Department of

[[Page 79639]]

Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-2J, 1000 Independence Avenue SW., Washington, 
DC 20585-0121. Telephone: (202) 287-1692. Email: hearth_products@ee.doe.gov.
    Mr. Eric Stas, U.S. Department of Energy, Office of the General 
Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Telephone: (202) 586-9507 Email: Eric.Stas@hq.doe.gov.
    For 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 Office, Mailstop 
EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. 
Telephone: (202) 586-2945. Email: Brenda.Edwards@ee.doe.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Statutory Authority
II. Current Rulemaking Process
III. Proposed Definition
IV. Evaluation of Hearth Products as a Covered Product Subject to 
Energy Conservation Standards
    A. Coverage Necessary or Appropriate to Carry Out Purposes of 
EPCA
    B. Average Household Energy Use
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    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
VI. Public Participation
    A. Submission of Comments
    B. Issues on Which DOE Seeks Comments

I. Statutory Authority

    Title III of the Energy Policy and Conservation Act of 1975 (EPCA), 
as amended (42 U.S.C. 6291 et seq.), sets forth various provisions 
designed to improve energy efficiency for consumer products and certain 
commercial and industrial equipment. Title III, Part B \1\ of EPCA,\2\ 
Pubic Law 94-163 (42 U.S.C. 6291-6309, as codified) established the 
``Energy Conservation Program for Consumer Products Other Than 
Automobiles,'' a program covering most major household appliances 
(hereafter referred to as ``covered products''). In addition to 
specifying a list of covered residential and commercial products, EPCA 
contains provisions that enable the Secretary of Energy to classify 
additional types of consumer products as covered products. (42 U.S.C. 
6292(a)(20)) Specifically, for a given product to be classified as a 
covered product, the Secretary must determine that:

    \1\ For editorial reasons, upon codification in the U.S. Code, 
Part B was re-designated Part A.
    \2\ All references to EPCA in this document refer to the statute 
as amended through the American Energy Manufacturing Technical 
Corrections Act (AEMTCA), Public Law 112-210 (Dec. 18, 2012).
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    (A) Classifying the product as a covered product is necessary or 
appropriate for the purposes of carrying out EPCA; and
    (B) The average annual per-household energy use by products of 
such type is likely to exceed 100 kilowatt-hours (kWh) per year.

(42 U.S.C. 6292(b)(1)(A) and (B))

    For the Secretary to prescribe an energy conservation standard 
pursuant to 42 U.S.C. 6295(o) and (p) for covered products added 
pursuant to 42 U.S.C. 6292(b)(1), the Secretary must also determine 
that:

    (A) The average household energy use of the products has 
exceeded 150 kWh (or its Btu equivalent) per household for any 12-
month period;
    (B) The aggregate 12-month household energy use of the products 
has exceeded 4.2 TWh;
    (C) Substantial improvement in energy efficiency is 
technologically feasible; and
    (D) Application of a labeling rule under 42 U.S.C. 6294 is 
unlikely to be sufficient to induce manufacturers to produce, and 
consumers and other persons to purchase, covered products of such 
type (or class) that achieve the maximum energy efficiency that is 
technologically feasible and economically justified.

(42 U.S.C. 6295(l)(1)(A)-(D)) \3\

    \3\ DOE notes that a drafting error arose at the time Congress 
adopted the amendments to EPCA contained in the Energy Independence 
and Security Act of 2007 (EISA 2007), Public Law 110-140. As part of 
the EISA 2007 amendments, Congress added metal halide lamp fixtures 
to the list of specifically enumerated covered products at 42 U.S.C. 
6292(a)(19) and shifted the provision for the Secretary to classify 
``any other type'' of a consumer product as a covered product to 42 
U.S.C. 6292(a)(20). However, Congress did not similarly amend the 
criteria and other requirements for setting energy conservation 
standards for ``other'' covered products in 42 U.S.C. 6295(l)(1) and 
(2). The provisions in 42 U.S.C. 6295(l) continued to refer to 
standards for ``any type'' of covered product, while continuing to 
refer to 42 U.S.C. 6292(a)(20). Clearly, the provisions at 42 U.S.C. 
6295(l) were intended to apply more broadly than to metal halide 
lamp fixtures, so DOE continues to apply this provision as if the 
drafting error had not occurred. To do otherwise would render the 
provision at 42 U.S.C. 6295(l) a nullity, thereby thwarting DOE's 
ability to set energy conservation standards for newly covered 
products, an outcome which Congress could not have intended.
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    Hearth products are gas-fired equipment that provide space heating 
and/or provide an aesthetic appeal to the living space. If DOE issues a 
final determination that hearth products are a covered product, DOE 
will consider test procedures and energy conservation standards for 
hearth products, including an initial determination as to whether 
hearth products satisfy the provisions of 42 U.S.C. 6295(l)(1).

II. Current Rulemaking Process

    On April 16, 2010, DOE published a final rule in the Federal 
Register (hereafter referred to as the ``April 2010 final rule'') in 
accordance with the relevant statutory provisions discussed in that 
final rule, which, in relevant part, promulgated definitions and energy 
conservation standards for vented gas hearth products. 75 FR 20112. 
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 (D.C. Circuit) to 
invalidate the April 2010 rule and an amendment to that rule published 
on November 18, 2011 (76 FR 71836) as those rules 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 (D.C. 
Cir. filed July 1, 2010). On February 8, 2013, the D.C. Circuit issued 
its opinion in the HPBA case and ordered that the definition of 
``vented hearth heater'' adopted by DOE be vacated, and remanded the 
matter to DOE to interpret the challenged provisions in accordance with 
the Court's opinion. Hearth, Patio & Barbecue Association v. Department 
of Energy, et al., 706 F.3d 499 (D.C. Cir. 2013).
    DOE has not previously conducted an energy conservation standards 
rulemaking for hearth products with the exception of the vented hearth 
heaters, which are no longer covered products as a result of the Court 
ruling. If, after public comment, DOE issues a final determination of 
coverage for this type of product, DOE will consider both test 
procedures and energy conservation standards for all hearth products.
    With respect to test procedures, DOE would consider a proposed test 
procedure for measuring the energy efficiency, energy use, or estimated 
annual operating cost of hearth products during a representative 
average use cycle or period of use that is not unduly burdensome to 
conduct. (42 U.S.C.

[[Page 79640]]

6293(b)(3)) In a test procedure rulemaking, DOE initially prepares a 
notice of proposed rulemaking (NOPR) and allows interested parties to 
present oral and written data, views, and arguments with respect to 
such procedures. In prescribing new test procedures, DOE would take 
into account relevant information including technological developments 
relating to energy use or energy efficiency of hearth products.
    With respect to energy conservation standards, DOE is required to 
publish a NOPR that would provide DOE's proposal for potential energy 
conservations standards and a summary of the results of DOE's 
supporting technical analysis. The details of DOE's energy conservation 
standards analysis would be provided in a technical support document 
(TSD) that describes the details of DOE's analysis of both the burdens 
and benefits of potential standards, pursuant to 42 U.S.C. 6295(o). 
Because hearth products would be a product that is newly covered under 
42 U.S.C. 6292(b)(1), DOE would also consider as part of any energy 
conservation standard NOPR whether hearth products satisfy the 
requirements of 42 U.S.C. 6295(l)(1). After the publication of the 
NOPR, DOE would afford interested persons an opportunity during a 
period of not less than 60 days to provide oral and written comment. 
(42 U.S.C. 6295(p)(2)) After receiving and considering the comments on 
the NOPR and not less than 90 days after the publication of the NOPR, 
DOE would issue the final rule prescribing any new energy conservation 
standards for hearth products. (42 U.S.C. 6295(p)(3))

III. Proposed Definition

    DOE proposes to add a definition for ``hearth products'' in the 
Code of Federal Regulations (CFR) to clarify coverage of any potential 
test procedure or energy conservation standard that may arise from 
today's proposed determination. There currently is no statutory 
definition of ``hearth products.'' As discussed in section IV of this 
notice, DOE has preliminarily determined that adding hearth products as 
a covered product is justified under the relevant statutory criteria. 
Accordingly, DOE proposes to adopt the following definition of ``hearth 
products'' to consider in the context of any subsequent test procedures 
and energy conservation standards for hearth products, and to provide 
clarity for interested parties as it continues its analyses:

    Hearth product means a gas-fired appliance that simulates a 
solid-fueled fireplace or presents a flame pattern (for aesthetics 
or other purpose) and that may provide space heating directly to the 
space in which it is installed.

    This proposed definition includes (but is not necessarily limited 
to) all vented and unvented hearth products. More specifically, it 
includes vented decorative hearth products, vented heater hearth 
products, vented gas logs, gas stoves, outdoor hearth products, and 
ventless hearth products.
    DOE seeks comments from interested parties on its proposed 
definition of ``hearth products.''

IV. Evaluation of Hearth Products as a Covered Product

    The following sections describe DOE's evaluation of whether hearth 
products fulfill the criteria for being added as a covered product 
pursuant to 42 U.S.C. 6292(b)(1). As stated previously, DOE may 
classify a consumer product as a covered product if: (1) Classifying 
products of such type as covered products is necessary or appropriate 
to carry out the purposes of EPCA; and (2) the average annual per-
household energy use by products of such type is likely to exceed 100 
kWh (or its Btu equivalent) per year.

A. Coverage Necessary or Appropriate to Carry Out Purposes of EPCA

    Coverage of hearth products is necessary or appropriate to carry 
out the purposes of EPCA, which include: (1) To conserve energy 
supplies through energy conservation programs, and, where necessary, 
the regulation of certain energy uses; and (2) to provide for improved 
energy efficiency of motor vehicles, major appliances, and certain 
other consumer products. (42 U.S.C. 6201) The aggregate national energy 
use of hearth products is estimated to be 0.11 quads (31.2 TWh).\4\ 
Coverage of hearth products will further the conservation of energy 
supplies through both labeling programs and the regulation of energy 
efficiency. There is significant variation in the annual energy 
consumption of otherwise comparable models currently available, 
indicating that technologies exist to reduce the energy consumption of 
hearth products. Therefore, DOE has tentatively determined that 
coverage of hearth products is necessary and appropriate to carrying 
out the purposes of EPCA, thereby satisfying the provisions of 42 
U.S.C. 6292(b)(1)(A).
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    \4\ The aggregate national energy use of hearth products is 
based on energy use estimates for hearth products provided in 
section IV.B, Energy Information Administration, 2009 Residential 
Energy Consumption Survey (Available at: http://www.eia.doe.gov/emeu/recs), U.S. Census, 2011 American Housing Survey (Available at  
http://www.census.gov/housing/ahs/data/national.html), 2002 to 2012 
HPBA U.S. hearth shipments (Available at http://www.hpba.org/statistics/hpba-us-hearth-statistics), and. 2010 report prepared for 
HPBA by J. Houck, Residential Decorative Gas Fireplace Usage 
Characteristic (Available at: http://energy.gov/sites/prod/files/gcprod/documents/RFIRegReview_HPBAAttachC_03212011.pdf).
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B. Average Household Energy Use

    DOE calculated average household energy use for hearth products, in 
households that use the product, based on a study prepared for HPBA.\5\ 
Based on this study, vented heater hearth products operate on average 
75 hours per year, while vented decorative hearth products operate half 
that number (or 37.5 hours per year). DOE assumes that ventless hearth 
products operate 75 hours per year (similar to vented heater hearth 
products), while vented gas logs and outdoor units operate 37.5 hours 
per year (similar to vented decorative hearth products). Based upon a 
review of available information, DOE has tentatively determined that 
the average input capacity for all hearth products is 35,000 Btu/h, 
based on hearth models offered in 2010.\6\ DOE also took into account 
the energy use from a standing pilot light or other continuously-
burning ignition source. DOE estimated that on average, continuous 
pilot energy use is about 800 Btu/h.\7\ DOE assumed

[[Page 79641]]

that pilot lights operate year round (i.e., 8,760 h/yr) for 25 percent 
of the installations, only during the heating season (about one-fourth 
of the year, or 2,190 h/yr) for 25 percent of the installations, and 
only when the burner is on for the remaining 50 percent of the 
installations. Based on these combined estimates, vented heater hearth 
products and ventless hearth products are estimated to consume 4.82 
MMBtu/yr (1,411 kWh/yr) per hearth product, while vented decorative 
hearth products and vented gas logs and outdoor units are estimated to 
consume 3.49 MMBtu/yr (1,022 kWh/yr) per hearth product.
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    \5\ Houck, James. Residential Decorative Gas Fireplace Usage 
Characteristic. Report prepared for HPBA (2010) (Available at: 
http://energy.gov/sites/prod/files/gcprod/documents/RFIRegReview_HPBAAttachC_03212011.pdf).
    \6\ U.S. Department of Energy-Office of Codes and Standards, 
Analytical Tools: Energy Conservation Standards for Residential 
Water Heaters, Direct Heating Equipment, and Pool Heaters (April 27, 
2010) (Available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/htgp_finalrule_correction.pdf).
    \7\ This value was derived from data collected on the following 
manufacturer Web sites: GRI 1997 Study: Menkedick, J., Hartford, P., 
Collins, S., Chumaker, S., Wells, D. ``Topic Report: Hearth Products 
Study (1995-1997)''. Gas Research Institute (GRI). September 1997. 
GRI-97/0298.
    Intertek Testing Service. NOPR Comment  0198 to Hearth 
Products NOPR. (Available at: http://www.regulations.gov/#%21docketDetail;dct=FR+PR+N+O+SR+PS;rpp=50;so=DESC;sb=postedDate;po=
0;D=EERE-2011-BT-STD-0047).
    Heatilator. Common Questions. (URL: http://www.heatilator.com/customerCare/searchFaq.asp?c=Gas).
    EER Consulting, ``Input Rate of Pilot Burners on Gas 
Fireplaces'' (Consultant Report). EER Consulting (Nov. 6, 2011).
    NRCAN. Personal: Residential: Chapter 3--All About Gas 
Fireplaces (Available at URL: http://oee.nrcan.gc.ca/Publications/infosource/Pub/home/all_about_gas_fireplaces_chapter3.cfm?text=N&printview=N).
    Pittsburg Gas Grill and Heater Co. Frequently Asked Questions. 
(Available at URL: http://www.pittsburghgasgrill.com/faq.html).
    Leonard's Stone & Fireplace. Frequently Asked Questions. 
(Available at URL: http://www.leonardsstoneandfireplace.net/faq.html).
    Fireside Hearth & Home. Frequently Asked Questions. (Available 
at URL: http://www.firesidehearthandhome.com/faq.php).
    Fireplace Professionals. Frequently Asked Questions. (Available 
at URL: http://www.fireplaceprofessionals.com/faqs.htm).
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    Based on disaggregated shipments provided by HPBA from 2002-2003, 
vented decorative hearth products account for 30 percent of total 
shipments, vented heater hearth products account for 13 percent, vented 
gas logs and outdoor units account for 7 percent, and ventless hearth 
products account for 51 percent. Using the distribution of shipments 
from the data provided by HPBA results in a weighted average energy use 
of 4.33 MMBtu/yr (1,269 kWh/yr) per hearth product. Therefore, DOE has 
tentatively determined that the average annual per-household energy use 
for hearth products is likely to exceed 100 kWh/yr, thereby satisfying 
the provisions of 42 U.S.C. 6292(b)(1)(B).
    Based on the above, DOE has determined tentatively that hearth 
products qualify as a covered product under Part A of Title III of the 
EPCA, as amended.

V. Procedural Issues and Regulatory Review

    DOE has reviewed its proposed determination of hearth products 
under the following Executive Orders and Acts.

A. Review Under Executive Order 12866

    The Office of Management and Budget (OMB) has determined that 
coverage determination rulemakings do not constitute ``significant 
regulatory actions'' under section 3(f) of Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (Oct. 4, 1993). 
Accordingly, this proposed action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs 
(OIRA) in OMB.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996) 
requires preparation of an initial regulatory flexibility analysis for 
any rule that, by law, must be proposed for public comment, unless the 
agency certifies that the proposed rule, if promulgated, will not have 
a significant economic impact on a substantial number of small 
entities. A regulatory flexibility analysis examines the impact of the 
rule on small entities and considers alternative ways of reducing 
negative effects. Also, 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 impact of its rules on small 
entities are properly considered during the DOE rulemaking process. 68 
FR 7990 (Feb. 19, 2003). DOE makes its procedures and policies 
available on the Office of the General Counsel's Web site at 
www.gc.doe.gov./gc/office-general-counsel.
    DOE reviewed today's proposed determination under the provisions of 
the Regulatory Flexibility Act and the policies and procedures 
published on February 19, 2003.
    For manufacturers of hearth products, 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. There is no 
specific NAICS code for hearth products, so DOE applied the size 
threshold used for 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
    DOE surveyed available information, including the HPBA membership 
directory, Air-conditioning, Heating, and Refrigeration Institute 
(AHRI) product databases, SBA databases, and individual company Web 
sites, to identify potential small manufacturers of ``hearth 
products,'' as defined in this notice. 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. 
DOE identified 16 domestic, small business manufacturers of hearth 
products that are to be considered in this regulatory flexibility 
analysis.
    If adopted, today's proposed determination would set no standards; 
it would only positively determine that future standards may be 
warranted and should be explored in subsequent energy conservation 
standards and test procedure rulemakings. Economic impacts on small 
entities would be considered in the context of such rulemakings. On the 
basis of the foregoing, DOE certifies that the proposed determination, 
if adopted, would not have a significant economic impact on a 
substantial number of small entities. Accordingly, DOE has not prepared 
a regulatory flexibility analysis for this proposed determination. DOE 
will transmit this certification and supporting statement of factual 
basis to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    This proposed determination, which proposes to determine that 
hearth products meet the criteria for classification as a covered 
product for which the Secretary may prescribe an energy conservation 
standard pursuant to 42 U.S.C. 6295(o) and (p), will impose no new 
information or record-keeping requirements. Accordingly, OMB clearance 
is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et 
seq.)

D. Review Under the National Environmental Policy Act of 1969

    In this notice, DOE proposes to positively determine that hearth 
products meet the criteria for classification as a covered product. 
Environmental impacts would be explored in any future energy 
conservation standards rulemaking for hearth products. DOE has 
determined that review under the National Environmental Policy Act of 
1969 (NEPA), Public Law 91-190, codified at 42 U.S.C. 4321 et seq. is 
not required at this time. NEPA review can only be initiated ``as soon 
as environmental impacts can be meaningfully evaluated'' (10 CFR 
1021.213(b)). This proposed determination would only determine

[[Page 79642]]

that future standards may be warranted, but would not itself propose to 
set any specific standard. DOE has, therefore, determined that there 
are no environmental impacts to be evaluated at this time. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10, 
1999), imposes certain requirements on 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 assess carefully 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 developing 
regulatory policies that have Federalism implications. On March 14, 
2000, DOE published a statement of policy describing the 
intergovernmental consultation process that it will follow in 
developing such regulations. 65 FR 13735 (March 14, 2000). DOE has 
examined today's proposed determination and concludes that it would not 
preempt State law or have substantial direct effects on the States, on 
the relationship between the Federal government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. EPCA governs and prescribes Federal preemption of State 
regulations as to energy conservation for the product that is the 
subject of today's proposed determination. States can petition DOE for 
exemption from such preemption to the extent permitted, 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,'' 61 FR 4729 (Feb. 7, 1996), imposes on Federal 
agencies the duty to: (1) Eliminate drafting errors and ambiguity; (2) 
write regulations to minimize litigation; (3) provide a clear legal 
standard for affected conduct rather than a general standard; and (4) 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation specifies the 
following: (1) The preemptive effect, if any; (2) any effect on 
existing Federal law or regulation; (3) a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) the retroactive effect, if any; (5) definitions of key terms; and 
(6) 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 sections 3(a) and 3(b) to determine 
whether these standards are met, or whether it is unreasonable to meet 
one or more of them. DOE completed the required review and determined 
that, to the extent permitted by law, this proposed determination meets 
the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4, codified at 2 U.S.C. 1501 et seq.) requires each Federal 
agency to assess the effects of Federal regulatory actions on State, 
local, and tribal governments and the private sector. For regulatory 
actions likely to result in a rule that may cause expenditures by 
State, local, and Tribal governments, in the aggregate, or by the 
private sector of $100 million or more in any 1 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) 
and (b)) UMRA 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.'' 
UMRA also requires an agency plan for giving notice and opportunity for 
timely input to small governments that may be potentially affected 
before establishing any requirement that might significantly or 
uniquely affect them. On March 18, 1997, DOE published a statement of 
policy on its process for intergovernmental consultation under UMRA. 62 
FR 12820 (March 18, 1997). (This policy also is available at 
www.gc.doe.gov/gc/downloads/unfunded-mandates-reform-act-intergovernmental-relations). DOE reviewed today's proposed 
determination pursuant to these existing authorities and its policy 
statement and determined that the proposed determination contains 
neither an intergovernmental mandate nor a mandate that may result in 
the expenditure of $100 million or more in any year, so the UMRA 
requirements do not apply.

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 proposed determination 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

    Pursuant to Executive Order 12630, ``Governmental Actions and 
Interference with Constitutionally Protected Property Rights,'' 53 FR 
8859 (March 15, 1988), DOE determined that this proposed determination 
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

    The Treasury and General Government Appropriation Act, 2001 (44 
U.S.C. 3516 note) requires agencies to review most disseminations of 
information they make to the public under guidelines established by 
each agency pursuant to general guidelines issued by OMB. The 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 proposed determination 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 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 a final rule 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

[[Page 79643]]

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 if the proposal is implemented, and 
of reasonable alternatives to the proposed action and their expected 
benefits on energy supply, distribution, and use.
    DOE has concluded that today's regulatory action proposing to 
determine that hearth products meet the criteria for a covered product 
for which the Secretary may prescribe an energy conservation standard 
pursuant to 42 U.S.C. 6295(o) and (p) would not have a significant 
adverse effect on the supply, distribution, or use of energy. This 
action is also not a significant regulatory action for purposes of 
Executive Order 12866, and the OIRA Administrator has not designated 
this proposed determination as a significant energy action under 
Executive Order 12866 or any successor order. Therefore, this proposed 
determination is not a significant energy action. Accordingly, DOE has 
not prepared a Statement of Energy Effects for this proposed 
determination.

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. DOE has determined that the 
analyses conducted for this rulemaking do not constitute ``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.'' 70 FR 2667 (Jan. 14, 2005). The analyses were 
subject to pre-dissemination review prior to issuance of this 
rulemaking.
    DOE will determine the appropriate level of review that would be 
applicable to any future rulemaking to establish energy conservation 
standards for hearth products.

VI. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding this 
notice of proposed determination no later than the date provided at the 
beginning of this notice. After the close of the comment period, DOE 
will review the comments received and determine whether hearth products 
are a covered product under EPCA.
    Comments, data, and information submitted to DOE's email address 
for this proposed determination should be provided in WordPerfect, 
Microsoft Word, PDF, or text (ASCII) file format. Submissions should 
avoid the use of special characters or any form of encryption, and 
wherever possible comments should include the electronic signature of 
the author. No telefacsimiles (faxes) will be accepted.
    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 two 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 all the information believed to be confidential deleted. DOE will 
make its own determination as to 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 or available from public sources; (4) whether the 
information has previously been made available to others without 
obligations concerning its confidentiality; (5) an explanation of the 
competitive injury to the submitting persons which would result from 
public disclosure; (6) a date after which such information might no 
longer be considered confidential; and (7) why disclosure of the 
information would be contrary to the public interest.

B. Issues on Which DOE Seeks Comments

    DOE welcomes comments on all aspects of this proposed 
determination. DOE is particularly interested in receiving comments 
from interested parties on the following issues related to the proposed 
determination for hearth products:
     Definition(s) of ``hearth product'';
     Whether classifying hearth products as a covered product 
is necessary or appropriate to carry out the purposes of EPCA;
     Calculations and values for average household energy 
consumption of hearth products; and
     Availability or lack of availability of technologies for 
improving the energy efficiency of hearth products.
    The Department is interested in receiving views concerning other 
relevant issues that participants believe may affect DOE's ability to 
establish test procedures and energy conservation standards for hearth 
products. The Department invites all interested parties to submit in 
writing by January 30, 2014, comments and information on matters 
addressed in this notice and on other matters relevant to consideration 
of a determination for hearth products.
    After the expiration of the period for submitting written 
statements, the Department will consider all comments and additional 
information that is obtained from interested parties or through further 
analyses, and it will prepare a final determination. If DOE determines 
that hearth products qualify as a covered product, DOE will consider a 
test procedure and energy conservation standards for hearth products. 
Members of the public will be given an opportunity to submit written 
and oral comments on any proposed test procedure and standards.

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, 
Small businesses.

    Issued in Washington, DC, on December 24, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficency, Energy Efficiency and 
Renewable Energy.
[FR Doc. 2013-31261 Filed 12-30-13; 8:45 am]
BILLING CODE 6450-01-P
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