This document, concerning the Proposed Determination of Hearth Products as a Covered

Consumer Product , is a rulemaking action issued by the Department of Energy. Though it is not intended or expected, should any discrepancy occur between the document posted here and the document published in the Federal Register , the Federal Register publication controls. This document is being made available through the Internet solely as a means to facilitate the public's access to this document.1 [6450
- 01
- P] DEPARTMENT OF ENERGY 10 CFR Part 430 [ Docket No EERE
- 2013
- BT
- DET
- 0057 ]

RIN: 1904
- AD1 4

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

.

SUMMARY: T he 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 product s 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 reso urces 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

.2

DATES: DOE will accept written comments, data, and information on this notice, but no later than [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]

.

ADDRESSES: Interested persons are encouraged to submit comments electronically. However, interested persons may submit comments, identified by docket number EERE-2013

- BT -DET0057 or Regulatory Information Number (RIN) 1904- AD 1 4 , 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-B T -DET-0057 and/or RIN 1904

- AD 1 4 in the subject line of the message. Submit electronic comments in WordPerfect, Microsoft Word, portable doc ument 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-00 57 and/or RIN 1904

– AD 1 4 , 1000 Independence Avenue SW, Washington, D. C. 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, 6 th Floor, 950 L’Enfant Plaza SW , Washington, D. C. 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD, in which case it3

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

- 003 5). All documents in the docket are listed in th e 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 contain s a link to the docket for this notice on the www.regulations.gov site

. The www.regulations.gov web page contain s instructions on how to access all documents, including public comments, in the docket.

FOR FURTHER IN FORMATION CONTACT : Mr. J ohn Cymbalsky , U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office , EE

2J, 1000 Independence Avenue SW, Washington, D

. C

. 20585

- 0121. Telephone: (202) 287

- 1692

. Email: hearth_products@ee.doe.gov

.4

M r . Eric S tas , U.S. Department of Energy, Office of the General Counsel, GC

- 7 1, 1000 Independence Avenue SW , Washington, D

. C

. 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 Comments5

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 Pub. L. 94

- 163 (42 U.S.C. 6291

– 6309 , as codified ) establishe d 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 li st of covered residential and commercial products, EPCA contains provisions that enable the Secretary of Energy to classify a dditional type s of consumer product s as covered product s. (42 U.S.C. 6292(a)(20)) Specifically, f or a given product to be classif ied as a covered product, the Secretary must determine that :

(A) C lassifying the product as a covered product is necessary or appropriate for the purposes of carrying out EPCA; and (B) T he 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 t he Secretary to prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p ) for covered product s added pursuant to 42 U.S.C. 6292(b)(1) , t he Secretary must also 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), Pub. L. 112

- 210 (Dec. 18, 2012)

.6

(A) T he average household energy use of the product s has exceeded 150 kWh (or its Btu equivalent) per household for a ny 12

- month period; (B) T he aggregate 12

- month household energy use of the product s ha s exceeded 4.2 TWh ; (C) S ubstantial improvement in energy efficiency is technologically feasible ; and (D) A pplication 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 justif ied

.

(42 U.S.C. 6295(l)(1) (A)

- (D) ) 3

Hearth products are gas - fired equipment that provide space heating and/or provide an aesthetic appeal to the l i ving space. If DOE issues a final determ ination 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 satisf y the provisions of 42 U.S.C. 6295(l)(1).

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), Pub. L. 110

- 140. As part of t he 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) co ntinued 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 a pply 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 Con gress could not have intended.7

II . Current Rulemaking Process
On April 16, 2010 , DOE publi shed a final rule in the Federal Register ( hereafter r eferred 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 perta ined 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 Ju ly 1, 2010). On February 8 , 2013, the D.C. Circuit issued its opinion in the HPBA cas e and ordered that the definition of “v ented h earth h eater ” 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 Ener gy, et al. , 706 F.3d 499 (D.C. Cir. 2013).

DOE has not previously conducted an energy conservation standard s rulemaking for hearth products with the exception of the vented hearth heater s, 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 product s .8

With respect to test procedures, DOE w ould 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 . 6293(b)(3)) In a test procedure rulemaking, DOE initially
prepare s a notice of proposed rulemaking (NOPR) and allow s interested parties to present oral and written data, views, and arguments with respect to such procedures. In prescribing new test
proc edures, 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) t hat 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 par t of any energy conservation standard NOPR whether hearth products satisf y 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 he arth products

. (42 U.S.C. 6295(p)(3))9

III . Proposed Definition DOE proposes to add a definition for “ hearth products ” in the C ode 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 c onservation standards for hearth products , and to provide clarity for interested parties as it continues its analyses:

Hearth product means a g as - 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 propos ed definition includes (but is not necessarily limited to ) all vented and unvented hearth products

. More specifically, i t 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

. ”10

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. 629 2(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 annua l 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, a nd certain other consumer products. (42
U.S.C. 6201 ) T he aggregate national energy use of hearth products is estimated to be 0.11 quads ( 31 .2 T Wh )

. 4 C overage of hearth products will further the conservation of energy supplies through both labeling programs and the regulation of energy efficiency

. T here is significant variation in the annual energy consumption of otherwise comparable models currently available , indicating that t echnologies exist to reduce the energy consumption of hearth products

. Therefore, DOE has tentatively determined that coverage of hearth products is necessary and

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 ), US Census, 2011 American Housing Survey (Available at http://www.census.gov/housing/ahs/data/national.html ), 2002 to 2012 HPBA US 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/docu ments/RFIRegReview_HPBAAttachC_03212011.pdf ).11

appropriate to carrying out the purposes of EPCA, thereby satisfying the provisions of 42 U. S.C. 6292(b)(1)(A).

B. A verage Household Energy Use
DOE calculated a verage 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 decorat ive 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 , base d on heart h 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 o n average, continuous pilot energy use is about 800 Btu/h. 7 DOE assumed

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 H eat ing Equipment, and Pool Heaters ( April 27, 2010 ) (Available at: http://www1.eere.energy.gov/buildings/appliance_standards/residentia l/pdfs/htgp_finalrule_correction.pdf ). 7 This value was derived from data collected on the following manufacturer websites: 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?tex t=N&printview =N )

. Pittsburg Gas Grill and Heater Co. Fr equently 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 )

.12

that pilot lights operate year round ( i.e. , 8,760 h/yr) for 2 5 p ercent of the installations, only during the heating season ( about one

- fourth of the year , or 2,190 h/yr) for 2 5 p ercent 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 decorat iv e hearth products and vented gas logs and outdoor units are estimated to consume 3.49
MMBtu / yr ( 1,022 kWh/yr) per hearth product.

Based on disaggregated shipments p rovided by HPBA from 2002

- 2003, vented decorat iv e 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. Us ing the distribution of shipments from the data provided by HPBA result s in a weighted average energy use of 4 .33 MMBtu / yr (1,269 kWh/yr) per hearth product

. Therefore, DOE has tentatively determine d 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.

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 )

.13

V. Procedural Issues and Regulatory Review DOE has review e d its proposed determination of hearth products under the following
E xecutive O rders and A cts.

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 sect ion 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. R eview 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 propose d 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 e ffects. Also, as required by E xecutive Order 13272, “Proper Consideration of Small Entities in Ag ency 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 D OE rulemaking process. 68 FR 7990 (Feb

. 19, 2003). DOE makes its procedures and policies available on the Office of the General Counsel’s website at www.gc.doe.gov./gc/office

- general

- counsel

.14

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 dete rmine 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 Indust ry Classification System (NAICS) code and industry description, which are available
at: http://www.sba.gov/sites/default/files/Size_Standards_Table.pdf

. T here is no specific N AICS code for hearth product s, 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 dat abases, and individual company web sites, to identify potential small manufacturers of “hearth produc ts ,” as defined in this n otice. DOE screened out companies that did not offer products covered by this rulemaking, did not meet the definition of a “smal l business,” or are foreign

- owne d and operated. DOE identified 1 6 dome stic, small business manufacturers of hearth products that are to be considered in this regulatory flexibility analysis.15

I f adopted, t oday’s proposed determination would set no standards; it would only positively determine that future standards may be war ranted and should be explored in subsequent energy conservation standards and test procedure rulemaking s . Economic impacts on small entities would be considered in the context of such rulemaking s . On the basis of the foregoing, DOE certifies that the pro posed 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 certifica tion 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

recor d

- 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 Polic y Act of 1969 (NEPA), Pub. L. 91

- 190, codified at 4216

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)). T his proposed determination w ould only determine 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 pol icies 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 imp lications. 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 produc t that is the subject of today’s proposed determination. States can petition DOE for exemption from such preemption17

to the extent permitted, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No f urther 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 affecte d conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of E xecutive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation specifies the fol lowing: (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 Attor ney General. Section 3(c) of E xecutive Order 12988 requires Executive agencies to review regulations in light of applicable standard s 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 t he relevant standards of
E xecutive Order 12988.18

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 g overnments, 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 o ther 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 intergovernmenta l 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 t oday’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 m ay result in the expenditure of $100 million or more in any year, s o the UMRA requirements do not apply.19

H. Review Under the Treasury and General Government Appropriations Act , 1999 Section 654 of the Treasury and General Government Appropriations Act , 1 999 (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. Ac cordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

I. Review Under Executive Order 12630

Pursuant to E xecutive Order 12630, “Governmental Actions and Interference with Constitutio nally 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 A ppropriations 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 conc luded that it is consistent with applicable policies in those guidelines.20

K. Review Under Executive Order 13211

E xecutive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 20 01), 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 E xecutive 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 designate d 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 reaso nable 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 purpos es of E xecutive Order 12866, and the OIRA Administrator has not designated this proposed determination as a sig nificant energy action under E xecutive 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.21

L. Review Under the Information Quality Bulletin for Peer Review
On December 16, 20 04, 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 t he 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 a ppropriate level of review that would be applicable to any future rulemaking to establish energy conservation standards for hearth products

.

V I . 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

.22

Comments, data, and information submitted to DOE’s e

- mail 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 en cryption, 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 exemp t 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.23

B. Issues on Which DOE Seeks Comments
DOE welcomes c omments on all aspects of this proposed determination. DOE is particularly interested in rece iving comment s from interested parties on the following issues relate d 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 ;

 C alculations 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 rece iving views concerning other relevant issues that participants believe may affect DOE’s ability to establish test procedures and energy conservation standards for hearth products

. T he Department invit es all interested parties to submit in writing by [INSE RT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] , 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 qualif

y as a covered product, DOE will consider a test procedure and energy conservation standards for hearth products

. M embers of the public will be given an opportunity to submit written and oral comments on any propo sed test procedure and standards.